very well good morning judge loken is the presiding judge on this panel but because he's participating only by audio yes that preside at the session this morning we lapse you'll have to stop on your own if you wish to save time i understand your honor thank you the state of georgia is about your conduct to special elections for the u s senate counsel i wish you hadn't started with that because but it will take us the heart of the matter the th the men that elevates state law over federal law on vacancies period period period to give you many examples trust me article one the constitution does the opposite it's subordinate state law to the federal law on vacancies why doesn't the actual case your started the two senate seat you're talking about actually help your opponent and prove his case well i think your honor we're both in this case and what they're relying on is the statutory authorization ok so that you go ahead well it's actually the federal statute two u s c section eight and remember section seven is congress taking this already for itself under its elections clause power but in section eight a congress is giving it back as an express authorization of authority and i think it's spewed among the parties here that if the scenario qualifies under section eight a it's not going to be preempted by section seven so this is not a traditional preemption case in the sense that we're looking at a conflict between a state statute in section seven like in foster against love but rather we're asking a question of statutory interpretation of what the elements under section eight are satisfied in those two elements are a vacancy and the other factor is a failure to elapse and so i think i'll just starting with the vacancy factor if i it is beyond dispute that by operating in of minnesota law and without a federal injunction there will end up inevitably be a vacancy con january in the  rational seat that's a point the plaintiffs not only concede they emphasize they actually go so far as to call it irreparable harm where we have a although we have something of a disagreement on that one it underscores the agreement on the part of all parties that there will be a vacancy the plaintiff respond that there is no current vacancy but this misreads the statutory tax doesn't require that there be a vacancy at the time of the election at the time prescribe by law that phrase modifies the failure to elect element and it wouldn't make any sense to read the statute any other way because if f baby see has to occur nd because of the causation standard that's right there in the statutory text and also because we're talking about the context of vacancy in office and of course the way that term limits work you were virtually never have a vacancy at the time of the failure of the law that would occur a few months down the road when the terms and the new terms yeah that's the holding of the busby decision we think it's both binding and if not and only persuasive on this point and so the vacancy element doesn't seem to be particularly difficult in this case the plaintiffs focus more fundamentally on the failure to elect elements but the phrase  well that it's said it's not going to allow wordplay in the context of preemption i don't think the case addressed failed to elect under section eight directly and serve it wasn't part of its holding but more fundamentally to your point you're on what about what about the  the footnote that's what the footnote addressed well with the footnote simply said on section eight i think you're referring to the footnote the referred to the legislative history was that there was some legislative history indicating that a failure to elect would refer to majority vote requirements and states but i would point to footnote four in the same decision to emphasize the narrowness of the holding in that decision which expressed the said that it wasn't going to rule out the possibility that states would use nontraditional mechanisms and remember that's just a section seven i think we're even further afield from that case when we're talking about section eight a which at the asked was addressed in dictum in that case and would especially emphasize that the only thing the court said about it was to note the legislative history and of course we know that this statutory analysis doesn't begin and end with the legislative history begins and ends with the text of the tex clear the text here is clear and it's clear in pointing the court to independent principles of state was not creativity it's not word play is really the only thing that this phrase could possibly mean tellingly the plaintiffs haven't really offered this court something else that it might mean they really seem to read it out of the statute entirely what is the mystery really what is the limiting principle on most important one that i think will be dispositive in almost every case is that it's a generally a pleasurable law the state has to drink its own poison if the state wants to declare failure to act in a congressional case it has to be willing to apply the same standard with state races recall that this statutory rape where is that anywhere that they have to apply the same stay most states have completely different systems on filling vacancies for up we won't go there but just just tell me when you get that it has to be the same law now not for filling vacancies your honors for but for declaring a failure to elect when is the election a failure ok and the point here minnesota statute t y for be thirteen says that a election marred by the death of a major party candidate on the eve of an election is inconclusive it needs to be done that's true for the state legislative races all two hundred and one dollars of them that were on the ballot last week it's true for the gubernatorial race the attorney general so on and so forth and so right off the bat because it's a generally a political definition of fair to lex that's right where it is in the statute literally the meaning of the statute a failure to elect so is that the only limiting principle as long as is a generally applicable rule the state can cancel election for whatever reason it deems appropriate no your honor i think it's the most important one because it just incentivizes mischief but the court could go beyond that and i think it would be justified in looking at other factors including whether it's on the state's ability to produce that was emphasized in the public citizen case i think it would also have to be rare we know that failures to elect are a rare occurrence so if this is something that is likely to happen very often i think a federal court would have a justification to step in it would have to you're anything else not and not intended to sub the default election day in other words it really is a special election procedure not a default election procedure as was the case in foster against fluff and you have all of that here minnesota is drinking its own poison it will apply this rule no matter which races is m occurs in state election laws most states distinguish partisan offices from nonpartisan offices it would make a lot of sense to have a major party rule governing zone are started and our circuit there's a different rule for the nebraska legislation the minnesota legislature right vs nonpartisan elected go ahead the definition of failure to elect is going to mean different things in different places and that's not just true in the circuit that's true right now across the nation today michigan is sending the winner of a senate race with forty nine point eight percent of the focus of the senate georgia's not there is already a patchwork of was defining a failure elect and i would emphasize we're talking about the phrase failure to elect we're not talking about a patchwork of different default election days the standard of uniformity is in section seven but section eight a in giving back to the states gives flexibility the states in literally the court or the main quarter of a sentence it gives states the authority to set the times of special elections doesn't place a limit on that authority and there's no reason why there would have to be a national standard or a failure election are respectful submission is that it wouldn't even be a good idea it's not something that's inherent in the phrase special what failure to elect and i would just to give you an analogy if you were reading in a sports magazine you saw the phrase failure to win you would understand in the context of that lead a contest that would incorporate and refer the reader to the rules of whatever game might be an issue you win in cricket differently than you win in baseball and i think we have a similar point here there's really three important elements that trip that demonstrate to this court why it should look to state law principles and not try to craft some type of a uniform national standard st of course is that we have a legal concepts inherently legal whether an election succeeds or whether it fails the nd is that there is n uniform election code tell us that answer congress has some election laws but it was never contemplated that congress would have the comprehensive set of election laws and that's certainly not the castle i think that's not true because doesn't say congress can change anything as faith does about elections and when rep it does your honor but that's sort of a in effect a corrective measure in the case of richo against common cause the supreme court recently described this as the opportunity for congress to come in and correct abuses in joseph story's commentary on the constitution he opined that most wall will remain state when this law was enacted and as was the case in joe's stories time that most elections law is state law and certainly the rules of a failure to elect state law whiningly and overarching question in these types of cases whether there's a need for a national uniformity there isn't such a need and we see that there is not national uniformity playing out in this space right now what do you mean there's not national uniformity ninety nine point nine nine nine nine nine elections occur on one day that's uniformity council that's true and it's also true in minnesota minnesota abides by the fall election day for its elections it intended to for the nd rational district this is an exceptionally  i'm not sure what rarity means but under your view as i understand it all fifty states could have different reasons why they postpone or cancel all elections based on different weather related problems or different difficulties with the election process the health of candidates the efficiency of the campaign and so  forth why when that is am i correct that's your that's the implication of your proposed rule it is your honor and i think it's the only rule that would really make sense because they're the reasons make the point about whether in our brief some weather events or disaster us in miami but not in minnesota and vice versa and so this term failure to elect doesn't create a national of judicially manageable standards for identifying with this occurs because that's really the alternative is that you know why does it matter if there is going to be a bright line rule then why isn't it better rule just to say no state may do if that were true your honor then that would cut out the exigent circumstances in the case of a hurricane or another natural disasters over fire nation all federal legislation in that case has that ever happened since it in seventy four where there's been an election for the house postponed on account of there have secured there been elections that have been that have been thrown out because of this i'm not aware of one postponed in advance but one could imagine it could happen for example on nine hundred and eleven dollars new york postponed its elections are they happen to be primaries that year but nothing prevents head a terrorist attack from happening in september two thousand and two as opposed to two thousand and one of the plaintiffs you know the they would have had to go forward with elections to congress in new york and it would have been particularly perplexing because the state could have cancelled all of its state and local elections but it still would have been required to go forward with its federal elections and that doesn't make a lot of sense i don't think it's what congress intended and i see that i'm getting into my rebuttal time so i will step aside please congressional district of minnesota in fact there was no failure to in fact there was a successful election throughout the state of minnesota and in that congressional district in particular i want to jump to  what seems to be the nub of the court's questioning at the outset the fact is there are things in in florida and they don't cancel actions the fact is that there and they have never canceled a federal election there have been devastating floods and tornadoes and they have never postponed or canceled a federal election the fact is that the only instance that  mister elias on the natural disaster i was trying to pin that down in your brief you've said no state has ever postponed but are you saying that as a matter of law no state could postpone an election on account natural understanding that there was a failure took where it b o voter participation rates were in that in the single digits because there simply was no access to vote but that's not this case that's not even close to this case there would have to be single digit voting if there were some twelve percent turnout been there would be no failure to act then i was doing my hands postpone i think at that point there would be a different case before this court or equipped to determine whether myriad of cases that were brought up this election cycle citing coded as a reason to change election laws could you imagine if the state of minnesota had applied the standard that my good friend opposing counsel articulate is under control there will be no elect no federal elections in the state of minnesota that would be completely implausible in fact it's so impossible that no one has or know when you get caught that that was a possibility and brought it to any is that the event has to be you know how would you are particularly your single digit voting scenario right is so much since i'm so again i want to say i start with the plain text of the statute and it is a a a circumstance where essentially no election is able to help i'm not i don't think that this court needs to venture into whether it's single digits or double digits but it is certainly not the routine unfortunate but routine a vent of candidates passing away can this pass away like all humans in it and not infrequent times during the elections and why that doesn't result on election day in a your honor i'm glad you asked that question because under that theory every state could opt out of uniform action by simply to by simply passing a law to dance that says for example if more well that's that's that's parading a horrible you can be constraints on on that doctrine including a a paid and attempt to undermine section seven i think your honor that the but the that the the if it state of gate delegated to a two election board as for example in north carolina is the case the ability to  treat existence circumstances to include both natural disasters and epidemics or pandemics you literally would have states declaring because of code that there could be no presidential no senate and no house selection during  under the standards applied by the plaintiffs there is no difference between a natural disaster that is no or a natural disaster that is of a virus and that is simply not that would simply unwind the the fabric of the of the recognizes major parties why isn't why isn't that you know the gig that doesn't result in a failure to elect your honor i i did answer that two ways the st is that if you read the rest of the statute the rest of section eight it interestedly talks about death it says a failure to elect at the time prescribe by law or by the death resignation or incapacity of the of the there was a death of a candidate and of congress we know that we know that there was no death of a person like to the question is whether it qualifies as a failure to a lack you know if say there was a bomb that goes off in that made in the republican and democrat  both killed in the only person on the ballot left is the marijuana party candidate can the state declare that's grounds to cancel and postpone your action so i'll answer that again with with with two pieces the st is that the statute does speak to you have to read the statute as a whole and it does seem to single out death of a elected and i think that that should influence the way the court reads the involve a death of either the d f l or the republican party candidate this involves the death tragic death but the death of a candidate who in the end received twenty four thousand votes so this this court needn't answer the question of what would happen if you have either the d f l or the republican party candidate that's a that's a question for another port and another death i think it would i think i think it federal court can't trump a governing state law that way so that as of november th there was a failure to elect and has a january there will be a vacancy and now the federal constitution and state  law have all different kinds of mechanisms to deal with the situation the we're situation your honor i dare say if if this court were to take the extraordinary step of canceling an election and  saying that a state could declare declare a failure to act on the death of a quote marijuana drunk you're not listening counsel you don't wanna listen i'm not saying this court would cancel the election this court would say that under state to opt out of that day by declaring an emergency is based on whether we're back to parading the horribles but your honor it's not a parade of horribles it's a reality there are in fact put in in florida every year and no one has ever saw seen fit to go to a federal court has has the state of florida declared that the votes should not be certified on account of her king no your honor i don't think there's no reason to go to a federal court that i don't believe that the state of florida or any other state other than minnesota is of attempt it to do what is that issue here but certainly the state of florida would be watching and the state of florida that thought that that where that power is vested in the governor and the secretary of state or the state of north carolina where it's in the hands of a partisan election board to declare emergencies and to have plenary thirty to change election rules we will see those those those bodies authority to say you know what we think that there is an existence here you know whether it is easy to decode it is that insecurity or something else and we will cancel these elections and postpone them until a future date and that will unravel the fabric that congress has put in place that we have a uniform election day for congress so that the voters are voting at the same time on the same sets of issues under the same sets of conditions so it may sound like a parade of horribles but the fact is minnesota is not unique in facing a mutual d circumstances states have been respectful of congresses prerogative to to abide by the uniform election date and where this court opened the door and allowed whether this circumstance is really rare or what not so so so you do you disagree completely with the i'm opinion we put out on this day i don't i think that the it well then we just do what you just described i think what the court court did in the stay which i think is these which i think is the proper and most prudent course at this point is to say that in this case in this case before it needn't decide a whole bunch of other circumstances that what if squids in this circumstance you had the death of a credit that we now know about twenty four thousand books was not in fact the conduct of choice and therefore we need to address the question of what it would be if a if in fact a major party candidate passed the left i've speculated as to what or not speculated i've i've offered what i think the framework might look like there but but this court and decide that that's a bad approach because it gets into case specific judgments about how much snow and how many and how much luck are all strength and so forth a particular candidate needs before the st top two there you know you about what you know about weighted voting we won't go there but but but it doesn't have to involve just the top two that's why i answered the question the way i did your honor is i think that i think that foster and and miller only go so far as to talk to as to address a state's legitimate interest in wanting to make sure that there is a majority of the church her in will in the in the in who gets seated i don't believe that any federal your form election day would be implicated here where the where allowing an election that you are after the the change in political circumstances whatever they are the new president's new congress new  thrown out after voting occurred none of the votes ended up counting in that race and it was redone ten months later state law violations and the determination of it's going very slowly so congress didn't exercise its powers right over that answer is yes congress intervened in the same way it did here by setting section seven's uniform election day the state had to appeal to eight day to throw that election out in schedule a new one in september of twenty nin the reason it did this was because of violations of north carolina well north carolina has chosen to make illegal a practice known colloquially as ballot harvesting which is not a legal court now wait wait i don't understand because you know the there are several studies that show all the many contests in the u s house it says each has to be judge election returns qualifications get congress do anything on that election you're talking about you know they have a special committee usually to do that eliza's positions never should have happened it was all preempted the state was required to send the top vote getter to congress not withstanding serious allegations of state law violations that were ended up being found to consistent with their position which i understand to be wanting a fifty percent rule wasn't satisfied or to something cataclysmic like i'd like to really know exactly what they to something a little bit broader which includes a case like fraud and i think here it's not just fraud it's a particular form of voting that north carolina has made a policy choice against and other states and not california doesn't determine that this form of vote gathering is unlawful and that was what triggered the investigation i think the stay stage long is problematic for a different reason which is that it would require a federal court to come in and effectively after the fact into its own determination and do some type of federal standard but the question here is really whether there is an effort to evade the default election day and i would echo just locums point that there really is no incentive to do that the notion that there's going to be some kind of creative portables i think is quite fantastic given that under our reading of the rule the state would have to live with its own poison it has to be willing  to apply the same rules to all of its elections it can't simply cancel the congressional election and not some of the election finally i do want to address the covert cases which are really under very different theories in north carolina case which by the way  government in saint paul come january literally no legislative seats would be filled there's absolutely no incentive to do that i say i'm running out of my time well suppose they said will postpone it until december we know the permissible under the rule y default election day if the state is willing to go through the hassle of all of that on a generally applicable basis due to preexisting law i i think that it would be permissible under our right it's what i thought ok judge long can you have anything further extending that concludes the session for the this morning and the court will be in recess until further call the dock