legislation process are lying soley on moore versus ogilvy the idaho initiative is a system that's created only by the state constitutional process it's a power that was created by the people and reserved to them more you say well that could have been three hundred voters and you had to get two hundred here who could have been was or was not i don't know the exact limitations rather but i think that it's easy to see where two hundred as a rigid number appl ballot versus direct legislation and i think that there are a number of distinct differences between the two bodies as they as they apply for instance within a third party candidate they've only got one to the requirements and the mandates of the entrenched two party system i mean who sets up the rules for third parties that the democrats and the republicans the two major parties who have been elected and so they get to get they get to control all the ra there's a difference in the standard of review or or in the history well thank you your honor for clarifying that and i think that there is a precise difference when we're talking about third party candidates we're talking about people who even if elected are are one step removed from the actual law making process it in general when a candidate is elected they do not have a direct impact on every citizen in the state no one candidate can make a law that impacts every citizen in the state when we pass a direct legislative legislation and initiative we're breaking a law that will impact not just those folks who live in an urban area not just those folks that live in the rural area but a law that and i would i would turn your attention to the federal state first most specifically federalist number ten where we should defend against our tendency to force a multitude of the majority or even as this court recently stated  in federal stumper seventy eight chief justice j that one of the course duties is to defend against the tyranny of the majority and i think that what the idaho system does is it creates a system whereby every single but and for that matter are maybe we should step back from this process a little bit and think about the initiative and the whole system of the initiative and what what the state argues at this point is that the initiative the system that's created in idaho cannot be struck down simply and make it reliance on more versus ogilvy but there are a host of cases falling more versus ogilvy they create a standard for analyzing whether or not the state's process is unbelievers and some on the rights of those citizens injury of which the character of the magnitude of that injury is assessed by the court within this case one interesting proposition because the plaintiffs have not attempted to circulate any initiative in fact if you look at the excerpts of the  fifty one percent of all of the counties that will be unconstitutional under the one person one vote absolutely your honor because then we are burdening the fundamental right to vote and that ok now if that if that cell that is to say you cannot  get by your argument your honor is that the state presents their interest in the ballot and so the state's interests in regulating this provision of the ballot include and this is all supported by the record that's been that's before you  different idea to the table and so i think that the idea of a system is fair and it is actually one of the inherent things within the idaho system is that it makes it so that no one region or one group of people within the state can dominate the percent i don't think it's more than forty percent your honor but i think that also when we start getting into these mathematical equations we start making a number of different assumptions and some of the assumptions that we make our age are going to get everybody signature and that everybody signature equates support and i think that when you talk about making laws that are going to affect every citizen in the state even if you get sixty percent of the voters out of a four county area well maybe that's a lot of the better impacts just that four county area and there are still mechanisms within i don't know that the initiative process is very open every county has the initiative every municipality has an initiative so as far as localized types of legislation there are ways there's anything in the record that summarizes it different ways in which the different states regulate them process your honor i do i do not think that that information is in the record i do know that twenty three out of the was in your category and tell us we've got to get rid of it yes and i think that the utah supreme court made the same error that the district court did in this case i think that there's a long line of cases geographical distribution requirements supreme court decision that was filed in august of two thousand and two i do believe they review a number of states wyoming is another state that has a county distribution requirement and here are let me to understand what  state a justification is they don't want the rural voters dominated by the urban but clearly that's been a problem developing problem in state after state and it's been a problem that spend understood throughout the twentieth century now of the twenty first but the problem is that the people in the rural counties don't have the population is simply smaller and that's a problem of if you want to call it a problem is the problem with democracy and we can do what i do who wants to do which just window recognize the proper method of analysis of this case because these are old cases gray was the sanders and also more against all the and i just like the quoth couple of the i think controlling precipice that are there articulated in these cases in court and from great court in the supreme court in gray and there is no indication in the constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the state go on from great but once the class of voters is chosen and their qualifications specified we see no constitutional way by which equality of voting power may be invaded and the court refers back to the principles of political equality as initially an associate in a declaration of independence the gettysburg address etc and like what i don't know was done is violated these principles and also they have another i think really helpful quote from the great whites the geographic bee in a geographical unit for which a representative is to be chosen is designated all who participate in the election are to have an equal vote whatever their race whatever their se proposing political change when colorado chose to discriminate in the petition circulation process against paved circulators that was struck down in grant and nine hundred ninety nine point but the sign or but the principles for the sake the purpose of the initiative this to propose political change at that point in time this is not yet submitted to the voters but it's the it's the voters themselves and by the way the only people who can sign of the titian and i don't hope are registered voters this is an exercise of the voting franchise it's one of the bundle of rights if you will that a voter and a qualified electorate and i hope pass they have it by virtue of being qualified electors those of the only people who can cite deficients so the notion that it's not voting is true but it's also part of the exercise of the political franchise for the individual electors it isn't a question though as it moves as it relates to what's the and the evidence at trial in that case which is also referred to in the supreme court's analysis was that there's i don't know the numbers but there's you know i maybe a third of the population adult population colorado is not registered the rest are the two thirds are and those who are most of them can one of the plaintiffs in that case bill or testified that he chose not to be a registered voter as a political statement but he still wanted to strictly  petitions so the supreme court was asked whether this is a severe burden the requirement that circulators be ready for the voters they didn't actually analyze it on that basis but they actually did  which they live that they they do rely on it and they do or the house district argument but i understand the court saying where are we going where might we be going i know that there are courts i think there are courts that would say that that's constitutional i would argue that it isn't again because this is that makes them quite interesting to me because my assumption is that on a regular versus car around versus sounds more presumably theory that you can do that because the house districts are necessarily going to be a little population as district understood district where my answer would be that relying on a great relying on more vo believe that once you've decided the geographical territory within which a boat is to be taken or an act political act is to be allowed and the qualification of voters is has been determined you can't distinguish between the motorist based on where they live with and actually a graphical unit you can subdivide it and say that one should get six percent of the signatures from the people of boise county by county here's what my problem is i think the general feeling that with congressional districts you have a congress person i mean if you don't have a lot of other officers or politicians or official that are like organized in the missing something by by district on the other end with counties they have all types of political organs and people elected or responsive to the people the country's not going to come together if we don't make some compromises on these equality principles and in the original form of the nation but i don't hasn't made any point that somehow the rural areas are going to see the threats of cedar it's causing political strife that their rights are being overrun but viewpoint discrimination is not tolerated under the first amendment judge will only reach the equal protection under the fourteenth but i ask this court to also consider first amendment incorporated to the due process clause of the fourteenth because this is  for a change in the government is an act of participating in political change this is the way that idaho has elected one of the ways they've liked it to self government the people of idaho cannot assign more weight in any of the political process to people based on their geography your honor if they could there are other issues ok the rural voters feel they're disadvantaged but they're disadvantaged by numbers as well as their geographical interests but there are other ways that people disadvantaged there are people in race racial groups who feel they're disadvantaged we don't we couldn't allow idaho to say so percent of the latino community six percent of the african american very throat but they couldn't do that they couldn't do it by occupation they couldn't limit we could say we want six percent of the non property owners and six percent of the white male property owners they can't the find it to give weight to subunits like that they have to treat every difference this judge will found in as you talk were found and if you look at some of the cases where they have upheld county distribution requirements excuse me distribution requirement some of the election law cases some of those cases they deal with congressional districts rather counties ok so they have upheld the notion that you can require the populations are equal among the units so i doesn't have the same elections for candidates for not the same thing in fact third parties get less respect i think than even the initiative process i've done a lot of their party litigation over the years and those cases that say you've got to look at the severity of the bird versus the versus the harm almost always comes out like rational basis review and those people lose  based on where they live  same but it still results in that i'm certainty if we were to extended out through to the logical extreme of you know ninety percent of the voters want a candidate on the ballot who's prohibited because of the conspiracy of one district but i think that when we look at  terms we have to think are we looking at this in in logical terms based on assumptions of actual voter turnout natural voter participation or recreating barriers to a state created state process governing strictly state laws that are going to be applied to the again you're and i respectfully submit to the court that we it's easy to long direct legislation with candidate for third party access but i think that there is a profound diversity is that nearly a quarter  newspaper very scantly i need thirty one which is an initiative that has been proposed to label a person in the state of washington and a portion of an animal i won't go into what that but  don't think we can really you know i understand that but as far as looking at whether or not the state has a legitimate interest in putting forth the reasons and whether those reasons are supported i think that it goes to that nature of the argument and what the state has done is said this is our threshold just to get it on the ballot and what's on the ballot is a simple majority there's no veto there's no other there's no other mechanism there to block the