along the community in our narrowly jurisdiction is where this court will begin and that's where i'll begin there are two different decisions of this court which preclude district court jurisdiction for two separate grounds one jurisdictional statute that grants jurisdiction to consider an election contest which at bottom is what this case is all parties agree that the standards of section thirteen forty four are not met in this case and if this is an election contest that ought to and the case the district court says it's not really in the way in contests the district court says people are arguing about their right to vote which was guaranteed in the dunn case and therefore you have section thirteen thirty one federal question jurisdiction which was established by powell versus mccormack but the problem with that is that both done and palm versus mccormick had already been decided when this court decided the hubbard case this port was obliged to examine its own jurisdiction as it did and it concluded that there is are to examine the district court could apply if this isn't an election contest and we're not giving you your seat back what is the remedy and the district court didn't say the plaintiffs have said in this court that well what they want is a new election lobe the supreme court says there are two elements of constitutional standing that you have to allege is that the that the defendants caused your injury well maybe that's been alleged here but you have to wedge the defendants ten redressing and there is no allegation that these defendants have any authority to give anybody a new way to what  the remedy they are asking for is a new election in their brief in this case your honor they asked for a new election in their complaint they dumped in their complaint they ask state courts have no authority in this case to elect to order a new election there has to be a vacancy which none of these defendants are able to do the seats been full for ten years for five to two per two years now and even if there were a state system for election contest a decision about who won that election as opposed to a new a much if you get into a state court yes that's the remedy they have jury trials in the question before the jury by statute is who got the most lawful votes now because this is a legislative case confined to the jurisdiction of the way this wager by the constitution you can't get in the state court with this the constitution says this and they sat for lawful winner there is no authority in the rules to refuse to seat anybody two years after the fact they've made their decision and i don't think there is any provision in state law for changing the decision saying to be because of what's in the mississippi constitution these to be the jurisdiction for this kind of contest that's why there's no state court jurisdiction there what you're saying that's correct your  absolutely the constitutional provision in this is that puts it soley whatever one says or not about the process is within the exclusive domain of the houses that that is the way i read the constitution  can tell you nobody has ever gone well i take that back there have been cases in mississippi where people have tried to challenge house all action contests or senate election contests and the supreme court has told them you can't do that most recently there is one sided and are required rate where it came up again just last year and the supreme court says no so in jurisdiction in the house that's that's not unusual that is the federal case that you look at the route to go to be harkey and subsequent cases it's pretty clear that and if you're in the federal system so in your respects him to do an election contest is in the house now and policy mccormick he came back and he sued for his feet or his salary and sugo for money you can litigate in lots of different places but but mr eaton is not suing here and the question isn't should he get paid the who got the short straw who didn't get the pool his name is there is not a plaintive in any of this he filed a contest in the house he is not a party to this case he contest in the house and he did it before they pulled the straws because he thought he had the votes and he didn't want to be a sore loser and he says i think the won and the house said you didn't win and then these five voters after the fact file this suit but the the man in the seats not here now if you had standing if you had a defendant you could sue then the question would be is that defendant the state that raises the eleventh amendment per  question i think it's clear that these five individual members can't do anything could the house be ordered to do something case after case at least at the district court level says that the legislature is the state even if it's not obviously the state what the district court went off on is x party go which is a legal fiction that says if you've got a constitutional issue that involves the state you can sue the state off the k t case this court's probably most recent decision says that the young exception applies for a state office or has some connection with the enforcement of an unconstitutional law but the house isn't an officer it's an institution it's clearly the state young doesn't apply that and there's no unconstitutional law here the statute is perfectly constitutional they just claim we miss applied it it is already been influenced their looking for a this if you disagree with everything i've said so far which is entirely possible and my question is can we get to that question with a district court has jurisdiction no you can't i think that's what steel company says you have to legitimate legislative activity and revelant eastland say that includes other matters which the constitution placed within the jurisdiction of either house election contests or place by the constitution within the jurisdiction of the house that's federal and state both and if you look at the court of appeals cases cited in our briefs you will see there are lots of actions that legislature from the burden of having to come to court to defend yourself that gets you out altogether so the third circuit of the arson says you can't contest an impeachment as you may know in virginia the general assembly elect state judges the fourth circuit and compelling attendance by a member is a legislative act all of these actions directed toward individual people are nevertheless legislative acts and case after case in the courts of appeals would also be covered  here the final thing i'll say and i'll sit down the district court relied on the huge case from this court that really does apply to local governments where you don't have separation of legislative executive and judicial powers the third circuit has said we don't apply that rule at the state level and i don't think you should but even if you apply use they say you're protected unless there is bad faith there's no bad faith here we applied the statute the real issue in this case is did we apply mississippi law correctly you read their complaint they say we should have followed an attorney general within you know we said we follow the supreme court opinion we think we got it right even says that there is no question but that this is an election contest brought under twenty eight u s c section thirteen forty four we didn't bring this case under a section thirteen forty four we  in the section thirteen forty three subsection warn it is not an election contest it is a contest about whether the constitutional rights of citizens like to get to that up there there are lots of things that can be addressed about the rebellion maybe i'll just go there now under the united states constitution federal courts have a portable powers and they utilize those equitable powers to facial lots of remedies and one thing that a trout would allow in the district court as the cases indicate is for the district court to consider i've come in saying that these plaintiffs have been denied their federal constitutional right to vote their federal constitutional right to vote in a state election and that the federal courts are not foster and you know they say that there are three factors that you consider in that regard one is injury in fact i have five citizen to have been denied their right to vote to is causation there's absolutely no question but to do causation came from that the now by the special committee in the legislature and three years which you're hopping written on  asking us to give an advisory opinion and he and i mean a decoration saying now i mean that's not what we do well i mean even assuming that your premise of that the now would be correct but the question is would you be asking the federal court well of its power to merely declare that that is a truism but i mean we don't do it the there's nothing controversial at least as i understand it i mean the election occurred what two years ago you would take a person one i mean the protocol whatever that person has been in office serving you know with two years so you know there's no putting it to pace back into to the mean and so you say there is no election contest so there was nothing about to you know upset what transpired so all of that has occurred so even if what you are certain is correct in the abstract but you just said this is not an election contest so what would be the basis of us setting aside an election to which there is and has not been a contest of the according to the midst of the legislature is these pious made within a district to a different precinct and didn't tell the state when was it thirty days if they had made was that right to the secretary of state's office where they won twenty of the statewide election of management system they call it the same system so when it got to the secretary of state's office investigating the facts in those affidavits and when they investigated the facts of the mr allen they learned that mr allen was correctly living in the precinct where he registered to vote that two other in this group that tesco will testify i mean the been alleged in this complaint just say we went to the place where we were supposed to register i change and they didn't do it to the legislature the vote was forty five eighty four to five eighty nine it had been sort of five there by the secretary of state they'd gone through the routine of declaring then that winner was sworn in at the legislature and then they came behind with the contest if you will of the house or the procedure and what they did was say we were good they did that and gave them the incentive to result would be forty five eighty nine to forty five eighty eight and if you would allow me to develop that in the district court i would can't prosecute somebody for fraud they can't do anything other than declare who is a fit number for house reps and it's a misstep and they've done that with respectfully raise the complaint in the these people deserve to have redress even if it came redress all of their rights that have been denied and that they deserve redress and i'm not saying they were done right or wrong i'm saying assuming everything that you we're going to order a new election an election contest is to say who won and judge reason the district court said i'm not going to say who warned that's my point in pointing out to kenneth starr article is he spent thirty eight pages talking about the constitutional equitable powers of the federal court system and th where of the court should say will your two years three years down the road and is just no good remuda here and as a practical matter we can't give any but we're not here just stood asking you to give us an advisory opinion we're asking you for the opportunity to go to the district code and present our case and let that district court here the  facts and determine whether there is an appropriate rimmon of if if if i were a citizen the smith county who had been denied my right to vote in the united states district judge said in those boys that the legislature did it to i be right please with that remedy and i think the federal court said oh it to our citizens to protect their constitutional right to and that we have a right to proceed to trial in the district court and let us prove our case that's all i ask immunity what your response on the the immunity only amusing is the legislature is not an alter ego of the state of mississippi the legislature can't act without the mississippi seen it in concert with the legislature of the governor can veto acts of the legislature it is not an alter ego of the state the mississippi legislature is not the state in the bond case if i have one more second it's all in the brief and in the bottom case  was denied a sitting in the georgia legislature because he advocated against the vietnam war and when and ultimately ended in the united states supreme court the supreme court said we don't allow a citizen's right to a constitutional right to free speech to deny him to be seated in a legislative body even though the georgia legislature did and in this  thousand eighty three use of statute that's exactly what the plaintiffs did and hubbard in this court said there was no jurisdiction that's exactly what the plaintiffs did and jonson the hood in this court said there was no jurisdiction jonson  relevant to the second point for mr what are spun to he says there was a deliberate attempt to slip the election i don't think that's in the complaint i do think that's in the district court's opinion but it was certainly in and this court said that claim was so baseless it didn't even satisfied bill the hood jurisdiction and they threw it out on that basis if that's his claim there's no jurisdiction over it what if one of the state legislature had thrown out  i don't think i don't think the volume makes a difference frankly in mississippi there are provisions in the old days when some precincts had some brave bad problems the law allows court to throw out entire precincts which can add up to thousands of votes the legislature has never done anything like that but i don't think it changes anything about jurisdiction mr chorley is right we are here on the pleadings and will review what is pleading says this is in paragraph thirteen the special committee resolution recites that the affidavit votes thrown out involved electors who moved the residence to a different voting precinct within the county and yet did not more than thirty days prior to the election make a written request to the cork that's what the yes well that's what's in the  and he says we were wrong about that because there's an one nine hundred eighty seven attorney general's opinion that says we should allow those people to vote anyway that's in paragraph twenty one so you look at what he  and under young the hose and then this court says you don't have a federal remedy just because somebody gets mississippi law wrong i want to say a couple of things about immunity he says the house isn't the state for eleventh i guess this is the eleventh amendment not the immunity because the house can't act without the senate and the governor that is usually the case but when it comes to judging the elections of its members it act alone congress the united states is exactly the same way when the house decides an election contest it acts alone so that purpose the house of representatives is the united states and mississippi constitution it is the state of state of mississippi and hotly he says if i need to underexpose party young to all one hundred twenty two written members of the house the obvious answer is that's carrying a good legal fiction too far but the other answer is if he does that and the court were to allow it you would create a conflict with the third circuit in larson in the impeachment kate where the guy didn't leave anything to chance he sued every member of the pennsylvania senate and the third circuit said every member of the pennsylvania senate was immune we think we're immune to we think there is no jurisdiction we think that if there were we'd have legislative immunity but the bottom line is and i want to say before i sit down we think we did right you look at his complaint it says we messed up mississippi long we're very conscious of our responsibilities on the mississippi law we think we read rush the i v right we don't think we did anything wrong