somewhere and even with something as simple as a deadline lawmakers need room to hurry but before i get too far into the merits i'll back up to standing the secretary's position in a nutshell is that at least one of the two plaintiffs mr ma said enough at his deposition to signal an authentic intent to vote and because of the timing of mr mayes's arrest he was not able to use the confine voter process but he would have been able to use the hospitalized voter process so we do agree with the plaintiffs that that is enough to claim an injury that is fairly traceable did he ask if he could vote or whether and how he could i believe it was a how question the way he described in the deposition i'm never directly asked the jailer to provide him a mechanism by which he could write he didn't ask to be taken like i thought you're thirty six witness you know one option or she may be here she i'm sorry she she she made some reference to well she said something like i don't know what the perps are and then i thought she said something like well they in the past someone's asked if we could transport them to like he didn't do any of that he didn't he didn't do any of that i do want to make sure to clarify that miss did later on the deposition talk about the purposes but no i don't think he ever went as far as actually requesting a ballot i think it was more of a question of how can i and you think that's enough we think it hinges on intent your honor we think plaintiffs are correct that a person to receive government benefit that they're not eligible fluor what about the line of cases that say hey if you don't ask for it you can't get it and if you say how or whether what you're saying is we should interpret that why not remain and it because it's a jurisdictional fact that has to be found arguably and let the district court determine i'm just curious if he was actually requesting it reverses the weather i don't think that line of cases would apply here because the board of elections wouldn't have had any discretion even if he had asked to give him a ballot he did not qualify for under ohio law so i do think really here it comes down to intent to vote and mr mays also did have a long track record of voting the plaintiffs in their supplemental also point to a line  cases that you if you're ineligible for a government benefit you don't need to make a futile request so we do agree with them on that front but where we depart and as i turn to the merits is how all this plays out when you're measuring the burden on voting  that's because burdick teaches us that election laws are going to invariably exclude some people from voting but that doesn't mean all laws are subject anderson burdick should apply here because your brief kind of danced around it we can see that that's what  a for america held if we were on the on buying stage we might have a different position we certainly preserved on and on what would you argue because i didn't see you clear picture so on bonk we would argue that obama for america blends a traditional equal protection analysis that would apply to the disparate treatment component of their claim and an anderson burdick a mouse's that would apply to the right to vote portion of their claim and by one gene those two together obama for america actually ratchets up the scrutiny incorrectly for the treatment of non suspect classes but we are accepting at this panel level that obama for america applies protection analysis would be rational bas exactly your honor fundamental right so the fundamental right that's what the anderson that's the right to vote claim that's anderson burdick we don't dispute that that applies in terms of having a saturday deadline but on the claim that hospitalized in jail voters are being treated desperately those are non sport suspect classes turning back to measuring the burden it's not a hindsight after the fact measurement because any day any deadline if you show up to seven  sliding scale where if you have a minimal burden on the right to vote it is a rational basis scrutiny and we think it is a minimum burden here think about it in terms of quantity repeatability and avoid ability the quantity of voters at stake is a small number these  idiosyncratic circumstances that presumably effect a small number of voters each election and i say presumably but any exception would create that situation in some ways where node distinguishable class was suing but it's an individual right so why do i care about quantity it's an individual right your honor but anderson burdick tells us we have to measure the burden on voting and this sort of gets to the split in crawford between the plurality and the concurrence the concurrence says you do not measure the burden by individual impact even the plurality of those says we're not trying to get out life's vagaries that's why a challenger even under that plurality special burden test to that it didn't foreclose has a burden of coming forth and showing that you apply under some bird right i'm sorry even school conceded you apply anderson burdick in this and so why ok get past quantity st nd go to the next two because i'm not convinced that it's not a moderate bird ok pasch want to be there's the repeatability factor some election laws like an identification requirement or registration are going to hit the same voter election after election if there's any underlying problem this however is a once in a lifetime advance for any single voter it's not just being arrested it's being arrested in this three day window and then not being able to make bail so there's no repeat burden and that's different from a case like obama for america where the voting hours  and again for the same voter and then there's a void ability and that's the idea that mr nelson mr mays and any other voter in ohio has the ability to avoid unforeseen circumstances near election day by voting early over the month t right there is no these voters get this in the other voters get that so if you have this distinction that's done by statute other than obama other than obama for america are there any will that  applied are there any of that apply rational basis well mcdonald said that even in the equal protection context in elections there is wide latitude i know bottom of mcdonald's been narrowed in some ways but that principle has never actually been contradicted by from the th circuit about whether working mothers could vote either applied rational basis or something very similar to it i would also point out that under andersen berta even under the end a person burdick sliding scale rational basis is the standard when it's a minimal burden on boy voting and you want to go back to the line drawing principle and think about it both on a macro and micro level on a macro level this court recognizing obama for america that anybody can be suddenly called away from the polls on or near election day so we're not playing just want to make this case just about jails but we're not really talking about just the late jailed scenario think about traffic accidents weather emergencies family  suddenly called away on the eve of election surely the state doesn't have to stand trial for all those and that seems reasonable what can i just ask you about so one of the things you say in your brief and i think below and here is that jail voting is more difficult than hospital food right we say that a lawmaker because of the relevant differences between jails and hospitals could reasonably think at least on a per request basis that it is more difficult to analyze that because it seems to me so to get to that point that this is a factual question and maybe i do agree with you there to the point that there's a factual dispute but also doesn't that require vacating in remain no you and certainly the court should have granted the point of summary judgment but this is actually a classic case where the defendants are entitled to summary judgment it's about constitutional law and it's not about whether particular facts are true or false it's about the legitimacy of a legislative lodgment and the test under and i stop you there and i'm sorry to interrupt you but the hospital is saying the plaintiffs are saying look it's harder in the hospital i think they said something like  jail can bring everyone to you seems to me you can test that and say well it's hard in a jail we've got to send people who have security classifications all these things isn't that a classic factual dispute no your honor i think we need to back up to the legal rule obama for america ass a very typical equal protection question that is whether the two groups being compared are alike in all relevant respects that's page forty five of the analysis and also repeats the black letter equal protection law that classifications are not forbidden so all the only thing we need to show here isn't the overall measuring of difficulty all we have to show is a relevant difference between the two groups from which a lawmaker could reasonably distinguish the two and here i think there are at least two relevant differences that are can tiredly undisputed on the record one we haven't contradicted testimony that jails sometimes require background checks so not any board employee can go to them on election day to vote a voter by contrast you have a loan i'm sorry to interrupt your tea alone b and off like could the state win just on the security concern alone without anything else it could your honor because obama for america says that any relevant difference allows for the distinction  that makes sense when you're talking about non suspect classes but i also make the comparison between the background checks and jails and the undisputed evidence on the record that shows with hospitals boards of elections are able to pick whoever whatever employee is the most two it be a very different process in the sense for once you've got jailed voters or you've got the people who do jail voters also often do the hospitals where they're doing other duties on election day butler county for example testified that it's permanent employees take the do the jail voting and they're not available on election day but i think the the bigger picture answer might be that you can't compare the current system under which the election officials are able to give lead time to the jail so that they can i lowkey inmates you have a new system you have any evidence you point to in the record that shows two q could you made this argument in your brief that says security concerns are greater on election day or is it just that  because it seems to me a logistical problem is you lay out in your brief but i want to understand why it's a security concern that's different on the friday before it's not that the security concern for the jails is different on election day it's that when you're doing things on election day when the election officials is the busiest time of the year for them to have to have prescreened background check employees only that pool versus hospitals where you can send anybody it's not a security concern it's a logistical nightmare and not quite your honor certainly there's the security of the concerns of the jails and add time to the process and that fisher lieutenant fisher from butler county for example talked about how they screen contraband so that is a more intensive security that a election official has to go through than they'd spit experience at the hospitals no i understand that but my point is that seems logistical to me not a security concern i would agree i would agree so and yes and the big picture is that jails at the very least present logistical challenges that are not president hospital setting and all obama for america requires is a relevant difference difference on the disparate treatment i asked you separate question which i didn't see in your brief which is bellowed the wo fish and a whole line of cases say the prisoners are different as a matter of their says they're not similarly situated to non prisoners is that a threshold question we have to ask before we get to anderson burdekin equal protection analysis and if so i mean you argue they're not similarly situated why not point to bellevue wolfish and that line of cases i'm i'm missing something about it i think what we're probably doing is just pointing to the underlying reasons of those cases but i do think it's a threshold in the sense of obama for america's disparate tree and alice's showed so i'm sorry to interrupt you because i've been thinking about this if it's eight threshold do i have to look at whether the distinction is irrational is that part of the threshold in korea do i do anderson burdick no matter what i think that's built into the relevant difference so if there was a distinction that just has no rational bearing i'm treating these groups differently as to this particular voting then you wouldn't be able to rely on a relevant difference if it's unreasonable so i think that's built in to the standard already  counting it in terms of equal protection or the st amendment claim then we would do the saturday noon deadline analysis and because this is a minimal burden on voting all deadlines are going to exclude some people by their very nature but that doesn't mean that the state doesn't and judgment if you were to win would we have to get out of the class issue at all so i think the short answer is whatever order you do them in i do think you have to decide that them both if we were to win on the summary judgment it would it would honestly benefit us if the class stayed in place but i don't think that's the even handed the answer because i think the class issue is necessary to be decided so that everyone knows going forward what the preclude the fact of why we publish our case what's the difference the difference is that someone could take the case beyond the panel level at the six circuit a future plaintiff if we're to win versus if they are in precluded they wouldn't get to even start why wouldn't that why  wouldn't have applied to this case because the plaintiffs want is just a directive from the secretary of state so why do we why is there even a class action to begin with they're just asking ascertain ability but you are correct that the secretary is going to take whatever lessons apply from this case and and apply them faithfully wouldn't craft and applying craft create a problem because ohio could continue what doing what they're doing if it doesn't apply to a class in other words as imagine the plaintiffs when what we say now and we issue a decision couldn't they go it couldn't different plaintiffs or couldn't oh continue doing what they're doing if there's no class technically yes sure the assumption beyond that's underlying craft is that government officials expect where like here they put on the record we're going to follow it act in good faith but you are correct that there wouldn't be the same level of preclusion without a class and then the flip side is if you don't have a class but you win on the merits presumably you agree they could judgment to come forward with actual evidence as opposed to suppositions what do we do sorry to interrupt you so early but what do we do with welby wolfish in that line of cases that say prisoners are inherently different so that one of cases a stablish has an obligation on the state to do more than it would have to do for other other groups of in this case voters why why is that explained that well because they are in the states custody so while the state may not have to provide a hall meal to someone who is just in society when the when that person is in the state's custody that's to comply but what they also say right is aton our rights are limited and we can limit rights of detainees both pretrial imposed trial in a way we can't limit it to the general problem and so and it revolves around security concerns and so if the state has quote unquote legitimate security concerns then why isn't bellevue wolfish and there's like i had my court do a quick search there's tons of circuit cases saying look they're just different and states have no obligation to treat them the same trial detainees may not be punished because they are in pretrial detention the purpose of pretrial detention may be punished in all sorts of ways i'm not saying punished is a bad word but there are rights are restricted in all sorts of ways well they're pretrial detainees they don't have nd amendment rights they don't have th amendment rights i mean all kind of st amendment even is restricted but there's certainly nothing about voting that would be related to the security concerns and i'd dispute the legitimacy of the considered good security concerns as an issue but the limitations must be related to ensuring that the detainee is available for trial and ensuring the safety of the public and prevent literally preventing a knowledgeable voter from voting while there our how are they preventing because at the hospital side for a nd it's no different then any other voter that has something unexpected happened they can't get to the poll so they get in a car accident does the state after bring them a ballot what if it's a highway patrol officer that hits them does the state have to now bring them a ballot so they can vote in time what if they're unexpectedly called out to out of the state does the state have to give them a ballot no your honor because those people would not be similarly situated in that one ohio has recognized by statute that these two categories of voters who are in identifiable locations or the board of elections has a relationship that they are already coming to them that there is a predictable what if in old age home was run by the state they'd have to give them they have to do the same thing for them if someone checked in in the timeframe  know your honor because the again it's a matter of similar situation that there is not an unmixed typically there is not an unexpected entry into a nursing home position your class too broad what about the point the state raises that people that knew they were to have to turn themselves in friday or sad day had to vote had it to those people as you say in our brief are not part of the class because they are not arrested they go to the president of the jail and turn themselves in and so they're just simply not part of the class the only the only group of people that are left for the state are those that they say are aware that they are committing some sort of violation and that would be and then that's one of the reasons that the state that the court found it necessary to have a class in this case because in their papers below the state said that the county ought to county boards should be making determinations about whether the person who was arrested should have known based on whether they had consciousness of guilt and i think the district court found that to be o'brien case and in the goosby case the court recognized the supreme court recognized that mcdonald was about the factual record in the case where there was no factual record about the alternatives to voting in this case clearly a concedes this that these folks are unable to vote and this court has held that this group of voters as unable to vote well they're able to vote they just can't vote in the narrow window and mcdonald said you have no constitutional right to an absentee and unequivocal and without so why i mean i understand what o'brien did but o'brien said it's wholly arbitrary because prisoners in one prison could vote in prisoners in the prison in the county over couldn't or even your cell me could vote and you could so it was visa ve each other which makes perfect sense now you're similarly situated you're both prisoners o'brien also relied on the fact of people who had medical emergencies could not vote and that was one of the factors in the equal protection analysis and o'brien there's no dispute in this case that the people in this position are unable to vote entirely and and facts in their districts or briefing well they're able to vote they just can't vote in the window that no one else in ohio can vote except hospital voters right i feel their right to vote still exists it's not a complete pression of their right to vote it's can they set can the states have any deadlines like  what if let me ask you this if the state will let me answer the st one can the state set any deadlines i'm sorry i'm interrupting myself yes your honor and this is for one reason why we dispute the notion that the three pm deadline would be what we would be saying that that state certainly has an interest in the election ending and the state has said and the deposition testimony in this case reveals that three pm on election day provides sufficient time in fact the official who does both jail voting and hospital voting said that she can't think of anything this is a county by county right so we have a small county it would be a lot harder you have to concede that right actually if the record doesn't reflect that and in the district court with this logic reflects that right if you have one poll worker in an adams county then you can't do both so a couple things your honor the secretary of state's thirty six witnesses testified that the staffing is proportionate to the need and in the district court that state took the secretary took the opposite position the secretary said that there are in small counties it is likely that there will be elections in which there is no voter or potentially votes on election day no absentee ballots nothing else just election day that would raise a different problem because as o'brien recognizes if you have voters who are not permitted to go to  alternative to vote then for those voters an absentee ballot would be required but that's not that's not the system we have here that you would be fine i'm sorry if we just struck down the hospital exception with that that would solve the problem  your honor i don't believe that that would be appropriate under the case law the supreme court has in a recent decision said that the in an equal protection setting and particularly one dealing with the fundamental right to vote that the standard approach is to give the benefit to the group that is not currently getting the equal benefit what about in that immigration parent case where you had the mom getting the benefit not the dad and they took it away from everyone so they play really doesn't apply across the board well in that case the court emphasized that large expanse that would happen to the statutory scheme and also it was though it was the decision was about sex discrimination this seems like we're rewriting the law and now where is it we struck something down assume sure proprium if we got rid of something we're not rewriting the law to make ohio do more than they want the constitution specifically gives them this to decide so why wouldn't the right remedy assuming you're right about mcdonald why wouldn't the right remedy be to get rid of the exception under that circumstance and not rewrite the law because it's the fundamental right to vote in the state has needed to the legislature made a decision that it cared to offer this could make that decision again you could go to them the old fashioned way and convince them hey the court just got rid of the exception you won it the only way you can now do this is to do it for both and that's a different calculus for th maybe the state says we don't want to expend those resources so we'll do it for not that's constitutional it seems to me so why isn't the only remedy that's appropriate in this circumstance not to force the taxpayers to pay more but to take it back and then let the taxpayers decide well on the promise that the taxpayers have to pay more of believe is not correct but to an o'brien the supreme court did not say in new york you can't have you can't give absentee ballots to anyone anymore  because this you might not want to have wanted to do that if you knew that you were going to have to give them to jail voters so in and the fundamental right and i thought i know brian if you correct me if i'm wrong because you know it much better than me i thought you know brian they said it's wholly arbitrary you can't create them differently but they didn't say one way or another or rewriting the statute they just said you can't treat these people differently you know in a brand the court said that if you are if there is no alternative means for a group of voters to vote the state has to give them an absentee ballot that that is then constitutionally required because it's not about a right to an absentee ballot it's about the right to vote and it is uncontested that these voters in the district court the secretary  an insurmountable barrier to their have an access to a ballot where did they say that because what they say is it's a burden on the franchise and denied equal protection and then they reminded i didn't see did they say specifically the state must do x and not y in the decision i believe your honor the state it references the fact that there's not a right to an absentee ballot except where the record proves that no they definitely do that but that wasn't clear to me and you should correct me again it wasn't clear to me that they ordered the remedy you're trying to get us to order here does that make sense i think from memory i don't know the exact right remedy all of this isn't but thank you so this is undisputed that the of the burden here is extreme and and the state and the reply brief recognize that if notice is not given when a deadline has already passed that's akin to the effect of denial and i ask can i interrupt you again let me read you the paragraph that i remembered and see if i'm misinterpreting this because it says and i'm going to summarize and then i if you want i can read anything you want to you probably don't have it the construction given the new york statutes by its trial an appellate division may well have been a reasonable interpretation but the highest court of the state has concluded otherwise and it is not our function to construe a state statute to the contrary to the construction given by the highest court of the state we have no choice therefore but to hold that as construed the statute denies them equal protection of the laws right so that they don't say you have to go one way or another it's not they're not picking there they're just and then they  your specific instruction and i believe on remand your honor that the result was that the absentee ballots were given to the voters here it may be but my point is that then new york had the choice on remey and presumably but the supreme court didn't say you have to pick the one which is what i thought you were saying maybe i misunderstood you and i apologize if i did i am aware of no case and which when a state has decided to provide a right to vote a benefit that furthers the right to vote that we want to group of voters that the response to an equal protection challenge has been to take away the so isn't this the one way ratchet you're saying the only if the state gives a right we can extend it but we could we could never let the state cut it back in this is the thing that the case before o'brien that i'm not blanking macdonald said that look illinois being generous here and god forbid court start stepping in because what'll happen is the states will reel it back no it's not a one way or actually your honor because this is an equal protection decision and actually the district court's injunction on its face but any permits would be an equal protection decision i'm sorry to interrupt you any time it would be an equal protection it would be a one way ratchet you would always have to extend whatever you've given to everyone in assets because as soon as at every one you're saying they're similarly situated so i guess couldn't give you that so anyone that could arguably be similarly situated it's not a one ratchet because the ruling unlike the district court's ruling in the golden week case that was before the six circuit is not that the legislature house to provide this benefit but what if the legislature and this is in the district courts injunction if musson until the legislature changes the deadline for the hospital group it must give the same deadline to th e voters why is that not in order to the ohio legislature you better changes that line until you do the secretary of state bust issue a directive that acts right well it's an i mean it's like until you change the deadline it seems to me like it's a it's a hammer over their head you better change its deadline i think it's actually deference to the legislature your honor to for this very point to recognize that this is not a one way or ratchet that this is specifically to a deadline the senate has chosen did we give deference to the legislature could we say ohio you've got to pick one of two things either up to extend this to prisoners or you have to take it away from people in hospitals will that be an acceptable remedy at the state side i think part of the issue is that this involves the fundamental right to vote and part of the issue is what's not but that wouldn't be in knowing are you saying that every prisoner no matter what must able to vote all the way up to election day and you have any case in the country that says that no what we're saying is that everyone who's eligible to vote who is held in state custody and and this circuit has recognized that whether or not the state is the one causing it is important in the ohio democratic party case that because it was non state caused circumstances in that case the burden was lower where the state is causing the burden the it is a higher burden and  there is simply no case that says that you have the state i mean our states get an argument just as good which is the person caused the bird by beating their wife or doing whatever they did these are pretrial detainees whose innocence is presumed  court can't make the judgement that the in fact one of the plaintiffs let me ask her to dismiss the law have to be nationwide that all pretrial detainees the state has to allow to vote and they have to do whatever it takes to allow them to vote this  this is an equal protection about a specific statute and ohio and so this case doesn't have that sort of ramification it's about if you give one class of general what we took away the equal protection thing with the option of the legislature and you said it burdens the right to vote so then if that's the and its opinion on the undue burden claim that is wholly d inappropriate to ask this court to render summary judgment in the state's favor on a claim the district court did not decide i'm unaware of a case the district court indicated in a footnote that it was unlikely to succeed the district court was framing it as not as an as applied challenge but as a facial challenge and that is that is not correct this is not a facial challenge to the deadline why can't court of appeals always decide if the records complete the but the record is not complete and that's the court noted that on the security issue that the secretary did not put forth any evidence that and the secretary says that it's about the timing and the reply brief he says that the security adds more time on election day well the election that th somehow matters on election day that argument was never raised in the district court but more importantly there's nothing in the record that supports it the official from franklin county who does both jails and hospitals was specifically asked can you think of anything about the jails as opposed to the hospitals that would make it different for the board on election day to print the ballots determine the eligibility and deliver them to the jails and she said she could not think of a single thing now that in and of itself is a prima facia case for similar situation and the jail officials also testified lieutenant fisher i do doesn't matter to him whether they come on to say it's going to be the same to the jails and so there's no evidence that there is more time spent because of security as it relates to the timing that's just simply devoid of that in the record and if you one question about class or it is the same question judge nalbandian asked if do we have to decide because last question if the state were to win on the remains i don't think it has to decide the cluster of occasion and now go with the state why do we have to decide if the state wins but no i don't think so your honor why do you why is the class class even appropriate under craft service a to two issues your honor one as a just as a practical matter there are all sorts of moodiness potential concerns and the supreme court has said if you bring these as a class that the class certification relates back to when you filed the motion you won't mood out the plaintiffs if they get the relief which happened in this case and and i would just point out that the fact that montgomery county was able to deliver the ballots and it took twenty minutes and that's testimony in the record of the three hundred and two thousand and thirty minutes and it was no problem on election day is a at least a material factual dispute as to that issue but as with respect to craft in the necessity doctrine i think as i said the district court and as we were concerned by the secretary saying on the one hand it's not necessary will apply this injunction to everyone and then on the same page of their class certification response proof saying it depends upon whether or not the person knew that they were committing a crime and that those people it wasn't  those people would need to be examined to see by the board whether that was something that happened that is wholly inappropriate and would raise a whole set of other constitutional questions i see that my time has i do you need or do you need a class  if the secretary of state were were to issue the director of and it were followed then the class wouldn't be necessary for the relief to be in place now i think the supreme court and the shady grove decision has put the end to this to so long as you meet the requirements of rule twenty three b two there should not be used and you are entitled to that class and so i think the necessity actually is no longer a proper question of course to consider  merit anything else no thank you very much is the way to get proper deference to the legislature in this case kicks him before well before we get to any remedy it's by being faithful to the flexible deferential constitutional standard anderson burdick recognizes that for any cases involving less than severe burdens the presumption is that reasonable action rules pass this court has said repeatedly in cases like legislative choice in ohio depressed democratic party that the state does not have any obligation to preserve produce exacting empirical proof for any of its laws its plaintiffs that bear the burden of their claim and this is a classic case for summary judgment it's a legal question about the legitimacy of the group and some types of intermediate scrutiny cases th birth right and i believe that was a st amendment case so i'm not debating as a general thing is a general yes as a general rule the state you know the state bears the word as a general principle but that's just not not the classic form of intermediate scrutiny i'd point the court to the clingman case in the timmons case that whole that when there is a less than severe burden the presumption is actually starts in favor of the state and that makes sense because if you step back to what trying to do the ability to set the time place and manner of elections is expressly given to the states and they need room to operate there and that's why although we certainly disagree with aspects of the obama for america  decision the standard it set forth for disparate treatment claims on page four thousand and thirty five it's important to remain faithful to that if there is any relevant difference between the two groups the constitutional question and it because a policy question wouldn't label it exactly a security concern evidence there was certainly evidence that even under the current system which allows for a glance planning there was sometimes problems locating voters and i'd also point out in that mcgovern county situation which was the t r o in this case something did go very wrong and that's that because they hadn't cleared background checks election officials who did not actually have direct access to the voters so they had to hand off a bow which presents its own voter security issue when they were complying with the correct your honor because the employer and this goes to the background checked in jail versus freedom to send anybody in hospital difference i was talking about when they went to the jail on election day with the short notice they had not cleared montgomery county's background check requirement so if you look this isn't cavendish's deposition they did not have access to the jails they had to hand them over to somebody else under it's a law that's a little bit fuzzy from the record it's certainly clear from the record they did not have access to the details i believe they handed it off to to jail official but so that's a little bit unclear on the record but it's certainly still and that's consistent with what this court held in obama for america under the relevant difference principle i'd also point out that mcdonald does set the general general principle that is often repeated that a state shouldn't be punished for going out of the way its way but we don't dispute that o'brien at some level and i do agree that the remedy in brian is a little bit ambiguous but we don't dispute that o'brien would raise it a much harder challenge for us if it was a complete no practical system by which to vote type of system but that's not this nothing in o'brien comes anywhere close to saying that a state can't have a jail process that just comes with a reasonable deadline shortly before election i thought in mcdonald the warden said  it's distinguishable because mcdonald involved prisoners in this case doesn't i'm sorry i mean this case and macdonald involved prisoners and obama for america did and that was one of the ways that it's been distinguished well i certainly think our argument makes that practical point that the reason why i think that goes to why there are relevant differences between jailed voters and hospitalized voters i do understand my time is up i do want to make one quick point on  that's fine we are requesting resolution by march th we request resolution mean either a mandate or if the court doesn't timing such that a mandate could be issued or if the court does not think that is feasible we were newer request for a pending appeal ok thank you counseling the case will be submitted i want to thank both counsel it's not often we get such outstanding counsel on both sides to argue a tough case like this and i can tell you half of all of us we really appreciate the thoughtfulness you all have put into this and the time you've put into it and we'll take it under advisement thank you