the next case is the alabama state one of the national association for the advancement of colored people versus the state of alabama from the secretary of state of alabama on this book or is here for the appella congress intent to abrogate under the stringent standard general authorization to sue is simply not enough rather the text must be most both specific and unmistakable and because the v r a lacks such specific and unequivocal text it does not abrogate sovereign immunity and the district court's decision should be reversed now before delving further into the merits if you want to address this court's decision lewis from about four months ago as the parties were counted in our pleading last week lewis did decide this section to abrogation question three and half months ago the state of alabama filed a petition for a hearing on bond if that petition is granted then the lewis panel decision will be vacated and then it will fall to either the on backcourt or to this panel to consider the abrogation question new therefore we would submit that it would be a good use of the court's time today to hear argument as if lewis is going to be vacated that way if lewis is indeed  if it were not if it did not grant a private right of action for parties to sue states directly and quite frankly your honour's we don't think that holding makes any sense that the ira even if private parties cannot sue states directly private parties would still be free under the v r a's implied right of action or under section one thousand nine hundred three to bring suit against state officials against local officials and against local governments moreover if you look to section twelve of the ira i think this is very important there's  enforcement provision there that provides the attorney general multiple powers to bring litigation that wouldn't force of the ira first the attorney general to bring criminal actions against individuals who intend on rights they're guaranteed by the  second even more to the point for this particular case need turn in general is given explicit authority to sue the states in federal court in a civil action now that's important for two reasons first he says as you indicate such a restriction on state action would be toothless without a right to sue for a remedy but then the and then the next sentence he says and the right of private let against bring such an action under section t section two i think it's important not to conflate two separate issues one issue of whether congress intended to provide a private right of action in the very separate question of whether congress in tided and so intended to abrogate sovereign immunity those are two very different tests and the implied right of action test is much easier to satisfy and do they look at two very different things so if you're looking for an implied right of action by necessity you're having to read between the lines because the text itself doesn't confer the right of action now if you're looking at aggregation of sovereign immunity what the court said is you have to look at the text and there's nothing in the text that makes it an mistakenly clear what about the words in the turks quote any is some sort of duty imposed on the state and there is some sort of general right of action that has been conferred on private parties where the court has still held where the supreme court is still help that that alone is not sufficient to provides parties private parties the ability to vindicate their constitutional rights but it doesn't abrogate sovereign immunity they can still sue state officials yes local officials local governments but not states directly now i'd like to return to don't you because i do think it statute that imposed substantial obligations on the states that was the ha that's education of the handicapped act as the court set the ha is replete with references to the states it requires states to rectally to revise certain funding to educate handicapped children and also to provide certain services to handicapped children moreover it has an attorney's fees provision that expressly references the states and then it has this general authorization for private parties to sue in federal court now despite putting obligations on the states and despite there being a general authorization to sue the court held that was not enough to abrogate you need specific textual language shows one that congress knew how to do this and second as the courts knew there was a permissible inference in reading the statute by which you could conclude that maybe congress intended the states to be defendants in private party litigation but a permissible inference isn't enough here you are you don't have to even think that we have the best reading of the our eight years have to conclude that we have a plausible reading and i don't think that they've been able to negate that again as you said perfect confidence is required before courts can go and extend their authority over a separate sovereign and held them into court to face litigation from private parties or at your ignoring or the supreme court's order opinion and carries i don't see how simple tribe helps them or harms us or at all your honor i think it is our case or not theirs and for the simple reason if you look at the statute edition someone tried the indian gaming regulatory act that was designed to force states to negotiate with indian tribes over to see you know gambling and if you look at the actual text and this is what the court did in some of tribe there are multiple references litigation specific references to the states it says that states bear  burden of proof also it mentions that the states have their additional again litigation specific references to the states in addition to mentioning that burden of proof it provides a federal courts can actually order the states to take certain actions so that there is no plausible reading of the indian gaming regulatory act of the clue that when federal courts have the ability to order states do something well then clearly states can be sued by the indian tribes under the act but that's not the case in the v r a as as we point out that can still accomplish its work if private parties are allowed to sue state officials local governments local government officials and if the attorney general as us point out before section  shows they turn in general can still bring these direct actions against states in federal court and that's important not just to show that the ira can still function but important as evidence of congress intent because what this shows is that congress that pass ira knew how to give specific textual authorization to a party to sue states in federal court they did that for the attorney general they did not do that for private parties that is strong textual evidence that congress find that we are immune as i don't i assume it will still proceed because there you also have the secretary of state has also that's absolutely right your honor the plants can still seek relief from the secretary of state which also suggests that they knew the proper defendant in this case was the secretary of state he's the chief elections officer in this case that also addresses another point you are there serious practical facts that follow when the state is wrongfully named as a defendant it can alter the course of litigation it hasn't in this case but  it does affect which lawyers are involved it affects who receive service and notice so it would make no sense for the plans to sue only the state of alabama and when the secretary of state might not have even known of the litigation finally the state is a large entity some plaintiffs have used that fact to serve abusive discovery requests on far flung arms and agencies of the state that have little or nothing to do with the litigation conversely when the proper state party is named as the defendant litigation state of alabama is not immune from suit under the voting rights act and before you get started on talking about the issue of sovereign immunity let me go back to the last question that not the question that i just posed which you've also sued the secretary of state why why also sue the state of alabama your honor in this case we have sued multiple parties and including the secretary of state but not only there are a number of reasons a number of circumstances in which the state may take the position or the secretary of state may take the position that he or she may not be in a position to provide the full relief that isn't that is required by the district court should the district court issue a remedy in this case the state the secretary of state may or may not have the authority to fully implement  redistricting a redistricting effort that may occur as a result of the district court's decision so we do not know exactly that this report has wide latitude in terms of the remedy that it may impose or not impose and the secretary of state may not be the appropriate party to implement that remedy and therefore we determine that it was important to sue the state not only does a voting rights act give us that right to do so but it may be critically important in terms of actually implementing the authority of the voting rights act with respect to this issue is there anything different in this case from the lewis ques no your honor with respect to this issue the issue is exactly the same the defendant is even exactly the same and the results we submit should be exactly the same and that's the same that is the same conclusion that the district court reached when it analyzed the state motion to dismiss based on sovereign immunity and a district court properly held that congress up was unequivocal unequivocal in its intent to abrogate the state's all states sovereign immunity analysis of the case law the examined the statutory language and the historical context of the voting rights act and concluded that it is and i'm quoting it is difficult to conceive of any reasonable interpretation of section two that does not involve abrogation of states of the states immunity and that was prior to this court in l reaching the exact same conclusion and in the lewis case the court again was considering whether what this sovereign immunity issue with regard to the voting rights act and in the lewis this court join the fifth and the sixth circuit in holding that indeed a congress validly abrogated state sovereign immunity there are two questions in every sovereign immunity analysis of this the first is whether there's evidence of unequivocal intent and the second is whether it's a valid exercise of power the district court properly ruled that there was unequivocal intent and about exercise of power the lewis court followed with that same analysis in fact the lewis court agreed with the six circuit and nixon when it said that it's unmistakably clear in the language of the statute that congress intended section two to be enforced directly against the states the text of the statute explicitly prohibits any state from imposing voting qualifications practices procedures that bridge right to vote on account of race or color the language of section could not be more clear and that is why the mix in court they spent much more than two sentences but the analysis was pretty straightforward and if you and as if you read  cases where this issue has been addressed on the circuit court level but even cases on the district court level it is a straightforward two step legal analysis that does not require an fate it was not necessary to be lengthy the us court said that congress clearly intended section two to be enforceable by private action and congress clearly intended section two to be enforceable directly against the states now with regard to second question also a simple legal analysis congress acted pursuant to a valid exercise of power the luas court again said that the civil war mints the fourteenth and fifteenth amendments which were specifically designed as an expansion of federal power and intrusion on state solvent that state sovereignty fundamentally altered the balance of state and federal power struck  constitution again this is a constitutional analysis that has been applied repeatedly by the courts with regard to the voting rights act since it wasn't acted in one thousand nine hundred sixty five and the lewis court went on to hold that the historical interest credential justification for congress's power to abrogate states over munity through the section five the fourteenth amendment and section of amendment apply with equal force and validity to congressional action under section two of the fifteenth amendment like the sixth circuit we see no reason to treat identical provisions differently and that should be the end of the analysis with regard to alabama's sovereign immunity section two and section five of the fourteenth and fifteenth amendments are identical and they give congress the valid power to exercise  to exercise its legislative authority in support of the civil war a minute's so the clear language of the statute its intent its historical context in which the voting rights act was establish make it clear that the district court properly found that the state of alabama is not immune now known to us and questions about the the procedure what would happen in this case this case has already happened the lawsuit the trial has already occurred it started on november the seventh and concluded on the vendor the nineteenth from our perspective any remedy in this case would would immunity from suit and lawsuit here has already occurred the only thing remaining is that judge watkins has not issued any rule ruling with regard to the liability or non liability of the state of alabama but the a moment the mint does not provide for immunity from liability and green versus graham makes that distinction very clearly judge pryor amendment focuses only on the energy from suit and moreover quote the supreme court as saying to niall's of sovereign immunity are immediately appealable only because sovereign immunity includes immunity from suit the value of which is for the most part lost as litigation proceeds pash past motion practice this case is far past motion practice we've concluded the trial and only liability remains and there is no immunity from liability the state did not seek a stay they not did not move for an expedited appeal in this case and so there is a question i think a real question as to whether the collateral order rule actually provides some jurisdiction for it in a locker toy appeal given now the the occurrence of the trial in this case one more point that i would just like to leave with the court is that in the reply brief and in the initial brief this state instant extended an invitation to the court to look at whether the results test was at was constitutional or may be constitutional in some circumstances in the way it may be applied down the road that is not an issue need to look at the results test and we would respectfully request that the court not accept the invitation to engage in constitutional speculation that is unnecessary to decide the soft immunity issue now moot right we believe it is your honor we believe it's moot the suit has occurred so i'm unity from suit appears to be on a not sure what the remedy would be not filed that suggestion that is one of the reasons that we had moved to propose to postpone the oral argument in this case but the trial it has only recently concluded and  therefore we have not filed any such pleading but no stay has been entered so you would expect that the district court judge will well in our judgment at some point yes or soon probably well we still and i soon we'll start off with the issue of the trial that's occurred yes your honor so tried to conclude recently proceedings in the trial but we as a friend on the other side just mentioned we're still waiting on the trial transcript and there will be a period of post from briefings and then there will be closing arguments afterwards and then we'll be waiting on the court to issue a ruling and it's conceivable that could still there could be a retrial and one doesn't know how long this proceedings could go our sovereign immunity and our dignity interests are still harmed as long as we are still forced to appear in a federal court in that case you know once a judgment centered it might be a different question but until then this is still a live issue it is in no means moot the second honors well let me let me just ask you about that so what you're saying is the trial evidence or the phase of the trial is completed but you've still got briefing in arguments on the on the briefing issues to go when the trial so the trial is still in progress to that extent is that where we are yes ron but that's correct so that's one reason why this this case is by no means mood and we're still being forced to appear in federal jurisdiction and the court of another sovereign as a old system of judicial elections has been challenged it's a very important issue for the state we want some sort of resolution as quickly as possible so to further state the case would've for the prolong that uncertainty for again very vital issue to the state ever are starting and he's also very vital so we do urge this court to reach the issue we will continue to press it whether it is in lewis for non bank or whether it's for this court or whether it's in some into the text of the area very closely and i think that's for good reason the private cause of action that the ira doesn't even exist on the face of the statute is implied i think that it's the notion of implied abrogation is a bit of an oxymoron under the supreme court's control in precedent if the scope of the right of action is not defined in the statute and in the text it's hard to say that the text makes it unmistakably clear that that right of action should go against