right each side has fifteen minutes and it's everyone ready to proceed all right we're ready thank you good morning good morning your honor may please court david boies and behalf of the pla and as a result dismissed our complaint our burden here is to convince the court that williams does not control and that the court should proceed to the merits and examine our claim that this winner take all provision with respect to the electoral college not the electoral college itself but the winner take all provisional electoral college  the th and st amendments so you're arguing for a two step process correct we know i'm kind of wondering why do we have to treat the electoral college as a single separate two step process why shouldn't we consider it unique so a generous system established by the constitution it is it is your honor i think it's true generous thing savaged by the constitution however as the supreme court has noted a number of times and we indicate in our briefs the fact that something is a stablish in the constitution the fact that certain powers are given either the federal government or the state governments does not eliminate the challenge to the exercise just like the two step process that was involved greg and sanders change in the electoral college can can you attack that in court or is that something that has to be a constitutional amendment i think changing the electoral college has to be a constitutional  ok i think that so why isn't this an end run well if you are i'm just i'm trying to figure out the context because i know there's a number of as you can see probably as you watch the last case i kind of like to understand what people are doing what's the bigger picture and i know there been cases in other states about this and where their motions to dismiss have been granted and i'm just wondering are is this just where the th circuit is this just  a dress rehearsal for the supreme court or what's going on here well i think it is likely that this issue will probably land in the supreme court some point but not to address the court's question this is not an run against around the electoral college the electoral college doesn't numb things as this court recognized in the public integrity alliance case it gives a certain additional weight to smaller states we're not attacking that at all it gives the power to the states to select electors not through popular election but through the state legislatures determination as  sometimes been done in history we're not attacking that power we think it would be unwise and undesirable but we're not attacking that as a constitutional issue what we're attacking here is the way the winner take all i know a stopped clock is right twice a day and so i'm not but it's just surprising to me with people out there with their you know political machinations haven't thought about this before so i mean that doesn't mean that a novel argument someone has to make it  if sort of the passage of time insulated practices from constitutional review a lot of things would have changed in this country so are you have your head going all across the country are you handling all of these say that there was no discrimination because it was a political issue not a racial issue that argument i think is contrary to the supreme court decisions and would come against  one of the things that they say is that the would come against travis and greg and sanders don't apply and one of the reasons they say that greg and sanders doesn't apply is they don't recognize this court this court expressly recognized the grey against sanders held that in a two step election process to discard the votes of the minority in the nd step that was a violation of the constitution so i whatever the st circuit may have been interpreted we think incorrectly but whatever the law that law would be in terms of interpretation of gravy sanders and that be for us to go the other way and there's a split circuit but we're going to decide the case obviously i can't speak for anyone but we're going to decide it doesn't matter let's say we're great that way i'm saying is this hypothetical that williams is controlling here and we were all against it does it really matter whether we do it and opinion or or and imam despeaux well that just that effect your supreme court journey i mean i mean whether i'm published thirty seconds you very much ok thank you good morning good morning me at least the court how do you leave for the state defendants this case is about california's decision to use a particular electoral method plurality voting for the 's complaint here is that the moral method chosen by california results in their votes not being counted in the national election for president however there is no national election for president there are dollars separate elections that are held for the purpose of awarding presidential electors and california has chosen the most common method in the united states perelli voting it dates back to the very  presidential election the founding generation including thomas jefferson thought that this was an acceptable electoral method in the election that is held to award california's presidential electors all votes are counted equally this is why every court to have considered this issue has rejected this type of claim usually in reliance on the williams case which was as as you know summarily affirmed by the supreme court two step holding for gray versus sanders i understand plaintiffs are relying very heavily on footnote twelve in that case however no court has recognized gray versus sanders as standing for the proposition that plaintiffs present every court to have interpreted grey versus sanders particularly the supreme court and the th circuit has always recognized that case as being about geographic discrimination want to define it for our purposes it frankly doesn't matter how many steps it is because every vote is counted equally one determining the outcome of the election that is held in  california and i understand you know plaintiffs have presented various theories of what the two steps are depending on whether this is interpreted as an election for the president or as an election for presidential  of that matters because gray does not stand for a proposition that there is a rule against the use of plurality voting in any type of election regardless of the number of steps do you expect the supreme court decision consolidated cases of child versus washington and colorado department of state versus baka to have any impact on this litigation no i don't anticipate that they will in in that and those sets of cases that the supreme court will hear this april i believe the issue there is whether states can take steps to bind their electors to to enforce requirements under state law that their electors cast their electoral votes for the presidential candidates of their political parties that case does not involve a challenge to the method of appointing presidential electors in any of the states even if the supreme court  rule in that case and find that there is a prohibition on a state imposing a penalty for example or removing a faithless elector the process which is used i believe in all states whereby the  presidential electors are nominated by political parties by processes controlled by political parties those would all continue i think you would you would continue to see the nomination of electors that would in large part  you know follow the the expectation that they will vote for their presidential candidates of their political parties and so we don't see that that particular litigation will have an effect on on this one violated the equal protection clause in those cases simply has not been met here in those cases the court found that there were political exclusion from political participation they find that there were pretty egregious examples of exclusion from from voter registration that type of thing there is no allegation here that the republicans are are being denied the right to vote to register at any of that kind of thing so how would it change the plaintiff's burden california state california has decided as an exercise of its authority under article two section one that it wants to award its presidential electors in the manner that that allows those fifty five dollars electoral votes to have the biggest impact possible in the electoral college and so a decision forcing california to split its votes essential would reduce the impact of those votes it would reduce the impact of the electoral votes that could go to the presidential candidate whom a majority of californians  affirm a lower court opinion or did it do we have a full blown opinion there yes so the williams vs virginia opinion was initially decided by a three judge panel in virginia and that  there is a there is a full well reasoned opinion there directly considering the one person one vote claimed that was presented and made in reliance on gray versus sanders and so there is a similar argument as the one that plaintiffs attempt at vance here not controlling precedent the standard you know even for a summary affirm and is that if the same issues were necessarily decided a lower court cannot go against that opinion and here are the same issues were  was inactive for discriminatory purpose has in you know invidious discriminatory effects of the kind that the practices considered by the courts in those small time member destroying cases had and the court the supreme court has has explicitly considered and rejected arguments that the that the effects of for ality voting the supposed lack of representation of minorities excuse me of supporters of the minority party  the supreme court has said i believe in the whitcomb case that even when legislative seats are considered safe seats for a certain party and year after year election after election they go to the same party that in and of itself is just looking at the history of how electoral votes have been awarded in california you know this this method of awarding electoral votes dates back to the very st presidential election that california participated in in eight winning any seats or any representation under a plurality voting system that in and of itself is not constitutionally suspect is what happened in williams that is a precedent only with respect to the and this is the language of the supreme court the precise issues presented now what are the different issues presented here from williams  st there was no issue presented in terms of williams in terms of the two step holding that we are relying on nd there was no issue presented in part because the st supreme court case that actually held a violation based on that theory was four or five years later in our fight against register rd the williams court specifically says there is no allegation there is no assertion in that case of any discrimination on contrary to what we are alleging here for there was of course no challenge under the  st st amendment so for all of those reasons include and then additional reasons we say in our brief before all of those four critical reasons williams cannot be controlling and so what ought to happen is we ought to have an opportunity to have our case presented on the merits in the district court that was what was precluded to us and to the plaintiffs as a result of a motion to dismiss now if it if there are any problems with any of the allegations being precise  enough in this case then what should have happened is that should have been and the court recognized that ordinarily you would have an opportunity to amend your complaint in the court held that was futile because williams controlled if williams doesn't control at a held unconstitutional not merely because the geographic units in the state had different populations but because of the two step process that was involved and the only sense in which that geographic as the public alliance case makes clear the only sense in which that is geographic is that you're losing your vote because you happen to be in a political entity in which you are in a minority but when you are in that two step process and as i say there can't be in this circuit any doubt that the electoral college is a two step process after public integrity alliance when you're in the two step process gray against sanders says you cannot at the nd step throw away the votes of the minority which is which is what happens when you have a winner take all approach to the election so this is a case associate with like minded voters or petition the government or presidential candidates one of the things that the supreme court has held is that when you we can the ability of a political party to function that is a violation of the st amendments freedom of association and the context in which that has come  up before has not been in the context of electoral college but has been the context of other actions that the state has taken that has somehow weakened political parties for example where  sometimes they force political parties to accept open primaries sometimes they restrict who can become a member of a political party but there are a number of actions that have been taken that this court has concluded and somehow we can see the ability of the political party to function but we king not in the sense of district debility to associate with like minded voters but it's just a disincentive there's not the disincentive they're not saying you can't associate but they're reducing the incentives or they're in some in some cases placing a burden and and where that we billeted to associate we can see effectiveness of the association and one of the things that we allege and we think we could prove this if the case had not been dismissed and we've had an opportunity to go to the merits one of the things that voice in the selection of the president that inherently weakens the political party and burdens and reduces the incentive of the ability of people to band together for that purpose and that that is a important associational value and one that has been recognized by the courts particularly by the supreme court's only in the last few decades that is something that wasn't