court my name is david hannity and i'm here on behalf of the plaintiffs and i was going to start by talking about three points one is that it doesn't matter what oregon law says or how it characterizes the effect of relatively relatively modest and that the can as long as they show that the practical consequence of the relief that they're seeking will likely increase the chances that their injuries will be redressed is all that they need to show at this stage in the proceedings and third i was going to talk about how measure eighty eight is the type of is a legislative action that is subject to at the district court could grant any relief that would reach rest where did the district court go wrong in its you know as far as their redress ability or the fairly traceable to the injuries in this case will we feel that the federal court misapplied oregon law but we feel that oregon law doesn't matter because how federal courts look at sorry your claim is that the voters in passing the referendum were voting no on the referendum  denied your clients of equal protection of the law correct correct correct i mean let's just assume for a minute you prevail on that let's just suggesting you would or anything but let's just assume what what is it that referendum meaning that it's just like any other type of legislative action whether you know it's a voter initiative or a subsequent legislature this measure e t a it has the substantive result which is what justice o'connor was referring to in cuyahoga falls versus a community hope foundation where in that case the legislature changed its mind before it became effective and and repealed it filed there was nothing no requirement under organ that it would need voter approval it was only when measure a da it was filed that the enacted statute that the driver called law was suspended and that but that's all allowed for under the oregon constitution correct so what was the first part of that you have all allowed for under the oregon constitution abs absolute you're in the process well then that's assuming that that the referendum is valid and that ignores the well that the driver card law existed in the first place and was enact it well so you don't challenge the referendum process we do not and then everything everything sort of the process with proper here is that the legislature passed the bill signed by the governor but then the two simple whoever they were the two legislative initiated the process for referendum and referred it to the voters as part of the legislative process correct and we're seeing that the subsequent independent legislative process under oregon law that the driver carlo so my question though earlier was let's assume that you can just assume that you're beyond front of the district court on your equal protection claim what do you want the district court to do you know we think did we think did the federal courts have the power to review legislative actions that violate custom the constitution and they have the power to remedy those constitutional violations wanted and so would you the district court here's what you want we want you to do we want you to order the lead we want you to order the department of motor vehicles to end product of the legislative process in the legislature in there with the bill but then the referendum came along still if you if you had but then referendum result from going you think then the underlying bill itself can go into effect either right do you or and what we're saying is that referendum is an unlawful legislative action independent from the driver card law being an acted in the first place and we're case there was a referendum but that referendum it purportedly invalidated an earlier in acted law but the state court in that case found that referendum unlawful early in  vs south dakota in both of those cases the referendum was filed before the earlier an act of law took effect which is the exact same situation here and these plaintiffs are asking for the same type of relief that the court provided  because that are enacted referendum because that referendum never took effect there was no substantive result but she made clear at least two times that if a referendum that rejects an earlier in acted law is then found invalid then that is substantive result of that inactive referendum can be challenged if there is evidence of discriminatory intent or if it's arbitrary and capricious and that's precisely what we're challenging here is that this inactive referendum measure eighty eight is legislative action just like any other type of legislative action that repealed an earlier law and this legislative action has its legislative record has evidence of discriminatory intent and what we're asking the court to do is enjoying the state officials from giving effect to that because they just don't understand that maybe i misunderstood how this process works under the oregon constitution because you keep you keep using the term repealed or i understood it to be just a normal regular process and that the end when the voters were voted no bill and challenge that and if you prevail in your challenge to measure eighty eight then you can enjoin order the state officials to just go ahead and implement twenty eight j letter that was sent to us does not seem to match up with that in your honor we disagree but at the same time it doesn't matter how morgan characterizes the effect of its referendum federal courts look at the practical operation and the fact of that legislative action and there's no question under oregon law that legislative action or measure it is a separate independent legislative action by the by the challenging the substantive result of that referendum because it was a no vote in a prevented that in the earlier an act of legislation from taking effect ok and that's what we're challenging here so you have again it's the practical operation effect because what it is is justice ginsburg was talking about in the arizona legislature the arizona legislature pearse's the arizona redistricting commission that  the referendum are two different legislative acts where one creates a positive law and the other is a negative where it's you know correcting the sins of omission versus the sins of commission and so there isn't a if a if voters vote yes there's a change because there's a new law in a referendum if voters vote no there's a change because it's a rejection of an earlier inactive law and so what we're saying here is the  period of time that we're asking the federal court to look at is the period after driver card law was enacted signed by the governor and would have taken effect up until the time that measure it was filed and again that referendum is a subsequent independent legislative action so what we're saying is once misery eighty eight is invalidated then the it would reset back to the time when driver card formidably as d v d s versus south dakota because in that case the federal court did give the plaintiffs the relief the receipt with the by invalidating that referendum we believe in cases like missouri it please the court john a market in representing governor brown and the other state defendants the key issue in this case is whether the federal court can provide any effective redress to plaintiffs in particular was there anything that the district court could do based on plaintiff's allegations that would have resulted in plaintiffs being able to obtain driver cards the district court correctly concluded that even if it could invalidate the outcome on the vote of measure eighty eight that would not resurrect the driver card bill house bill thirty three and the court could not order or again to an act a law that was not validly passed or constitutionally required so there was no relief available to remedy plaintiffs a legit injuries to take a step back under the oregon constitution and you legislation proposed by the oregon legislature must go through three steps and i don't want to be too much about this is how a bill becomes a law but just to be clear on how the oregon constitution works first it has to pass both houses of the legislature then it's presented to the governor she can either sign it veto it or do nothing if she does nothing that's the same as signing it next it moves on to the voters the voters can either do nothing or petition for a referendum again if they do nothing that's as if they approved a referendum just like when it sits on the governor's desk however if there is a referendum called then there's only two possible results either an up vote or a down vote in this case that third step never happened it never got to an affirmative vote a past vote by the oregon voters to enact law because of that what plaintiffs are asking for is not possible we cannot go back and have sent a house bill eight thirty three suddenly become oregon law could you end up with a result where there is no law yes and that's what happens in cases where you know plaintiffs challenge say an affirmative initiative that creates a new law and that new law is unconstitutional there the court can provide relief because it would take it back to the status quo where there is no law here are after if if that was to happen here if we're going to go back to the status quo the status quo is no oregon driver law their driver card law there never has been and so that is why there is no relief in this case because going back to the status quo is not is precisely the opposite of what plaintiffs want so your point is that you can you can't go back and end up with the oregon law on a driver again occasion cards as opposed to driver's but it would just wipe the book law off the books i mean it would it would basically i mean invalidate the initiative the legislature could go back and reenact the law correct i think they would have to think it's too speculative i mean if i can imagine what that relief would be that would actually get to the ultimate question of driver cards i mean if you if this court were to say to the oregon legislature consider this issue again i mean i don't know that that's any different than where we're at you know at this moment if if the it's determined that the referendum that is if you is animated by racial and other reasons and that initiative or that referendum were declared unconstitutional then we'd all be kind of a ground zero right well i think i don't think would quite be a ground zero because there's been no challenge to the actual referral process and so that's why i said once a valid referral has been called and i'm talking about the process of actually referring it to the voters not the vote but because there's no challenge to that process once it's been validly referred to the voters the only options are either pass or reject there isn't a sort of you know other option and so i think perhaps if there had been a procedural problem with or with the referral like you have ninety days to file the referral petition if it was filed on the ninety second day and somehow that got passed people and it still got referred to the organ voters and the organ voters voted i think this would be a much closer case if it was a procedural question and a problem of where you could say there was never actually a valid referral you hold them where does that kind of hold it did not involve any question of redress ability so i mean i think that's sort of the end of the answer that nobody raised this issue it was you know the defendants prevailed on a different not not only what was referred in the and the board on the referendum but the underlying statute no then acted by the legislature they both get undercut so there's nothing there right there right so we would go back to the status quo  law right so in some ways isn't that a redress to the players because no law is better than this law no law is exactly where we're at still and i think there's no difference whether it was a law that was no no no it's better than the law that would be in the the referendum or pass there is no the only law that's in effect is the well the oregon driver's license law which is not at issue here there is no law in effect that would allow i just drive out it just wipes out the identity card in effect correct which is not in oregon law at the moment the driver cards have never been a part of our position is driver cards have never been available in oregon which would be the result whether this referendum was valid or invalid we reach the same place and that is why it's not redress the bill so there's no redress you know the conceivable basis not that i've been able to think to think up and i will say in the best d d s case i think that's the closest to this case factually although that case of course from the eighth circuit it did not directly address standing everybody seemed to assume that there was some relief that could be ordered however the eighth circuit simply said you know there should be a judge's summary judgment in favor of the plaintiffs in that case without saying what practical impact that would possibly have so i think you know factually that's the closest case but it really doesn't you know get to the heart of this little court just order the  issue i think if there was it i think the only time the federal court could issue such an order if there is an ongoing constitutional violation which we don't have here and that would be in the cases where you know federal courts have ordered things like taxation and busing to deal with segregation and desegregation but here there's no allegation that oregon scheme for a driver's license as it stands at the moment is unconstitutional which i think is what you would need in order to require the d m v to issue a driver cards  and because it's been gone through show so then fall back to the statute and say therefore this you know i'm going to deem this statute to become effective without a referendum so th state should force the statute and that i don't think it's possible basically because it never passed because once the rest of the legislature write it did it did but there's these three steps to about i know that there's a target so the court process in its entirety because there's been no challenge to the actual referral so that was another difference an s t d yes the court actually found that there was discrimination that's a dormant commerce clause but that there was discrimination in the actual referral of the measure to the voter's discrimination on the part of the state in that case here there's been no allegation and no suggestion that there was any discrimination in referring the case to the voters because that's not at issue i think the most the court can do is undo the actual vote on the measure oregon the voters can you know it's not limited to constitutional amendments they could bring an initiative asking for a law you know enacting the same exact law on driver cards they could do that at this point so i guess that would sort of to me be the same and i guess i wouldn't see the district court wanting to weigh in when there really is you know another avenue to get to that same result because that you know a revote would seem almost like a new vote on a on a new law well because this is this referendum is  the earlier almost correct correct yes there's never been driver cards in oregon you know that was what the house bill was for and that is has there been  not been found unconstitutional and i believe it's in the briefing that maybe twelve states offer driver cards so it's not like oregon is some outlier by not offering driver cards at this point time separate legislative processes that what we're seeing is that the driver card law was enacted in one could have survived on its own without any referral a referendum it didn't need that third step did driver car would become effective in january two thousand and fourteen there's no question about that now but here is one of the there's like her first step the law as an act it and then there's this last step which the referendum then turn out to well in your view but the actual fact of referral was never challenged and i mean i've seen situations where referenda initiatives are challenged on a procedural basis but here it was a challenge and so that was sort of  till there's a ripe so did the cases right because if voters would have voted yes there would have been no subsume result that could be challenged and so what we're saying is even if in this case there is a state law we're saying the state law doesn't require an act meant if measure it is invalidated in even if there was a requirement which there isn't the federal court has the power to enjoin state laws that hinder the enforcement of federal and i just ask one last question what you're asking though the challenge to the referral process itself you know for the before there's a vote on the referendum not no vote to the referral process yes if there is to the process but we're not challenging the process we're challenging the substance result ok thank you all right thank you thank both of you for the argument and the merry helpful briefing m s versus kate brownnose admitted