misapplying a very narrow exception to the th amendment's one person one vote requirement for electoral districts and that decision if left standing threatens to muddy the proverbial waters in this important area of law and undermine the ability of texans to have a fair say in how their property is regulated and government so the supreme court has not addressed popular election districts in this context is that right that the two franchise cases states do of course have the ability to create so called special purpose districts a kind of local government was specialized focus and powers and the united states supreme court has said in that of in a very narrow set of circumstances some of those special purpose districts may be exempt from compliance with having equally populated districts but the edwards aco for authority or the e a a does not come close to qualifying for that very narrow constitutional exception for that exception to apply under the salyer and ball supreme court precedents that precedence three factors must be satisfied one is a threshold one the judge had just brought up and then the two conditions analyzed and salyer involved in the st of course is that the franchise be limited if the franchise is open to everyone and the jurisdiction is required to comply with one person one vote all and all three conditions must be m then if it's an if it's a limited franchise case the courts would then look to the two failure involved conditions where you say the clear statement is that an open franchise case is off the charts off the board or i think it starts in hadley where the court says there's just no way when the when the jurisdiction is granted the vote to everyone there's no no way to really draw a line and then in sawyer and all the court says the reason we're looking to to figure out whether this is one of those narrow exceptions is because this isn't an open franchise case let me say that a look at the case for you pointed out to you brief open franchise i think it it sort of cuts against the nd issue that a court looks at to see if an exception to the one person one vote exists which is the jurisdiction has a very narrow purpose and function and role and relationship to deal people for the electorate so for example if the if everyone votes and everyone participates in it seems like a governmental entity that has a much broader effect in authority whereas if you're just talking about dentists or if you're just talking about wires as one thing to say what sort of sense of it may be but looking at work each day actually their authority is it's only a limited purpose  in and so forth just dealing with water on the offer and aspects of that that you know better than i do and they don't have the kind of broader powers of salary all this talking about so it's one thing to say what your expectations based the was an open franchise exist and that was the case and how clear as well that the supreme court said the power just that you know college trustees exercise in hadley is much or less than in a free for example with the commissioners court and the scope is is less and there is still because of an open franchise and because of the kinds of powers that the trustees exercised and hardly there was still a requirement that once the vote talking about here is a situation where you're you're talking about a do you get in a single where you have an instrument that is not a job exercise the general the nd prong of the test under sawyer and fall so with the question doesn't just end with does the special purpose district have general governmental powers or not it also you have to show it has to be shown that the  exercise of the authority and powers of the jurisdiction whatever they be act both to the benefit and burden of a discrete definable group so for example in the salt river district though they did have waited votes it was weighted by how much the landowners how much acreage they had and they were only making assessments against right and that was a business enterprise incidental to the purpose of the district which was water conservation here in the purpose of the e a a is much broader i mean this is not just about  compliance with the endangered species act the authority has greater powers to ensure that water is not wasted on that public health interests are served for all of the people who use the  the offers of water for various reasons but but to get your point with the waiting isn't a problem the weighting of votes when there's a limited franchise and the votes are weighted based on something other than population it's not a problem specifically because those individuals in that narrow group and even the ones who have a greater weight to their vote are the ones bearing the benefits and the burdens of the of the  e and so because that's what their county is using the water for not to mostly not agricultural purposes they're paying millions and millions and millions of dollars every year to to use that water and so they are funding the operation of the e a even though they don't have seventy five percent of controlling voice and you know what the e p a decides to regulate then there's also the burger no you leave the no wiggle room when it comes to confine with what b p a mandates with respect to behavior and conduct of its of the consumers within bear county and there's the burden so there's  financial burden but there is also the burden of having your conduct governed to having the e a a tell you how you use your private property both the water that you own under your land and what you do on the dirt above that this is a really significant power that i think has been perhaps lost in some of the cost discussion it is a real burden that exercise its authority imposes on bear county residents they can have you know be forced to pay fines for not capping for the band and well so they can be told you know what kind of paving can happen to apply there has to be a identifiable discrete group that is disproportionately impact bears both the burden and benefit here we have a situation where everyone reaps some benefits and bear some burden for the ability to access the upper for and to make sure that it's usable in the future so it's just not possible to say here is a group in the agricultural voters for example that can say these are the only people being taxed or these are the only people getting water dispersed to them and that was the case in salyer involved so i think the easiest way to decide this case is obviously the open franchise versus limited franchise  think the facts in that and pitman are different enough to create and the recognition of a need of this court and to correct an error in the court below to ensure that the way that recognized the importance of groundwater the problems associated with maintaining and conserving the op of course exceptional and unique groundwater as one that needs is a problem that needs to be dealt with by between the ball in this case are that those of in ball the district had no ability to control the usage of the water that it was dispersing to landowners and that's not the case here but even more significantly the sale of electricity to put the people of phoenix was just incidental to me so there were landowners who had boats in phoenix but the bigger issue was the providing in the sale of electricity but that was a business enterprise incidental to the purpose of the salt water district which so river district which was to conserve and disperse water surface water and here we have a common resource ground water issue that we want to make sure that the property rights of texans to access the groundwater that they own beneath their property and if and how they conduct their behavior on top of the groundwater on the land that they own is that they're allowed a say in the policies and the administration in the policing activities of the of the entity that's going to affect that that those rights but it does look to historical usage of the war ready the permits at least initially based on what that historical usage was and we're looking at the case law of this world and here and where the disproportionate impact of disproportionate benefit in burden of the edwidge aquifer i think the historical usage piece is an element to consider when you're looking at the of the breath of the power of the e p a so by being at least initially limited by historical purposes a has some guidance on how much water might be allowed to be pumped by the agricultural folks related to pumping for irrigation for agricultural crops wants to sell its water rights to an industrious someone who will use it for industrial purposes they can do that if the e a a approves the the amendment the change to the  was that the district there could not control the conduct or how people used to the water after it was dispersed to them under the permitting scheme that that's not the case here  horribles that was discussed when the act was initially formed it was so if if we give san antonio voters their fair say they'll drain the opera fair but the statute itself limits the question is  use not how much but how you use it some say in the policing authority the egg roll making authority there is a limit the statute limits the amount of water but but the policy preferences ball precondition a real definable disparate impact can't be satisfied so it isn't just how much san antonio residents are paying for their drinking water it's how the health and safety inspections the compliance process seas are run and if the e p a is going to have that kind of impact on the san antonio voters daily lives than san antonio voters ought to be able to have a say in it and remember to the the general french us your honor i but i be at like to talk about how those cases up the situation we have and provide the possibility for what the texas legislature did in this case  cite that provides that rule and it's contradicted by numerous cases including in the supreme court in avery the supreme court reserved the question of whether a special purpose of government affecting definable groups of constituents have been preferable for the court for non landowner lassies judgment included in the districts voting as well since they were also impacted by the districts acted but the court will defer to the approach chosen by the state legislature as the question for the court referendum which all residents of the county could vote but the votes were weighted differently depending on the geography of the residence a demonstrating that there is no absolute rule that where the voting franchise is given to all within an area th that says legislatures are going to need to devise schemes to address local conditions in different circumstances and we've got to be somewhat flexible in the way that we let state legislatures act so i think you then look at cases where powers and reviewed whether the effect on property owners was disproportionately greater than other voters and that whether property owners were the only parties affected or whether property owners entire economic well being depending on the district  well the court found that the district was a special purpose district but said the question before the court was whether indiana had been elected to give some advice to citizens particularly affected by particular government functions must give them autonomy or the solve respect to those functions but the court found that it was fair for the legislature to give some vote to those citizens who were last impacted as well as the legislature of texas did with the because they had some interest involved the policy underlying the sawyer bollixed option also contradicts the argument that states can never vote differently when all the people living within an area are given the vote looks argument will operate as a straitjacket property owners and property owners determine how they're going to use their water what she was referring to is actually about the property rights of land owners to say i was doing this one thing and i'm not going to do something else what does with as long as you're not dumping it out and not using it it's not waste so no there is not we will be sued for taking if you were to tell a under no we don't think that's conservative enough no not really  it's mistrial once the property right is granted once you've got a permit and you talked about historical use so once historical users came in and if they want to change their product they get a permit and they may change that use from one use to another now part of what the a dozen regulating the locker firm protecting it is there are some drought cutbacks that limit the use of rather when dr for starts to fall and those are mandated by the legislature there in the act and the also general conservation requirements and so that some of what has been touched on earlier that there's an obligation to conserve water so for instance a lot of irrigators have switched to more conservative to practice not because they were mandated lot of litigation that led to the creation of the e p a because there was a desperately needed solution to the problem of baka for being drawn down there were there were industrial users in the san antonio area that had permits because they have conservation plans to use their water as officially as possible it's important also to realise that their county residents are not impacted by fees other than as a as a flow through and that is because the city of lacked one would that make a difference ron a representative to the border i think that it's important that the legislature was trying to balance the interest couldn't be done by one of the saree and so if you divide it up into thirds two of the three would have to agree on a particular issue for that issue to prevail i don't think that it's even possible that that would have been acceptable  to the region for that and the spring flow in agricultural to have sole control the idea was to look at the use of the outer look at the importance of the water to the to these regional interests and to try to provide a balance  once we are looking at a special purpose district we know that the powers are limited of the agency then and there are disproportionate impacts and if i may add go through and talk about how w e believe that that the legislature appropriately determine the weight but once we know we're looking at a special purpose just tricked it's simply a determination of what's a reasonable allocation of the vote and in  much greater in the agricultural counties in fact uncontroverted expert testimony of dr mccall is that western counties use three day times well rather per capita than their county and eastern users use more than twice as much water per capita as bear county because they're the western counties and one rd in the eastern counties if that's helpful most impacted and one time when there are to pump in there the most benefit and as you pointed out everyone who's using this resource is benefited by the resource being available to them we also know that recharge in the recharge zone for through the surface surface features such as case strings and calls that eighty eight percent of the recharge zone is located in the western and eastern counties and only twelve percent of the recharge zone  in bear county so the activities of the e bay to protect the clarity of water recharge to the aquifer disproportionately impact people in the western and eastern counties and the interest south three quarters of the uk are for is located in restaurant eastern governing the conduct of citizens more administer such normal functions of government as the main streets operation of schools sanitation health or welfare services it does not have a broader purpose to protect public health and safety unlike  quantity and quality are limited to fill a statutory purpose to ensure that there is water in the offer for for permit holders and spring i'd just like to point out that it's important to recognize that this court's decision i going to have a significant impact across the state of texas like other states texas has devised mechanisms of local government to address local needs and officially solve local problems in the area of water management by creating groundwater conservation districts to manage one who are prefers within their area and several g c d as have been created with elected boards that are not based on one person one vote but disproportionate weight to the votes of people most impacted by district regulation  i think it's absolutely important that we that texas be acting within the case law and and when we create special purpose districts without providing one person one vote that those districts may very limited in their focus and i think they've gone out of their way to do that  does with respect to most of the activities of the  decision here to give some voice to even those those individuals who were last impacted should be deferred to because the scope and the powers of the agency are so construct right right because it's important to the region there's some importance and this was quite the solution to a long time problem and i think that that raises the issue that the e a a provided a mechanism to secure water supplies for irrigators municipalities downstream entities an endangered species dependent upon the awkward if the scan was done the legislature would likely either created appoint a board or would vest management of the denying our residents any direct say in the management of the way the has been incredibly successful over its twenty three year history in both conserving the opera for and balancing the interests of the region is a model nationwide for how to successfully ma thank you your honor sir judge higginbotham i wanted to point your attention to the case we cited baker be regional high school district out of the nd circuit i think the court there had some language that may be of assistance disenfranchisement versus the dilution question and the nd circuit there said we have school districts in which those towns which are paying the most for the district support have to accept a diluted vote in the running of the schools goes to to the discussion of lockport represent of republican form of government and the importance of ensuring that when you are electing representatives from districts and so not exercising direct democracy like you were like voters were in voting on the eleven shot referendum in law court that you ensure that the ability of voters to ensure that the elected the bodies elected from the districts fairly reflect the voters who vote not the regional interests not the land itself that one person one vote in in an open franchise popular election case speaks to the voters voting not the interests the regional has the authority to do versus what it actually does but if you look at the statutory language in the rules promulgated by the e p a under their statutory authority they have more than just this nominal administrative authority i mean for problems for a solution there isn't there is changing realities too so bear county is getting more and more populated so that despite the gross population disparity is getting worse and worse you are seeing increased transfers voters who are paying the most for the administration of the e a a have the least say in that and that dilution of the vote in an open franchise system is constitutionally problematic i just want to take my last thirty seconds to to discrete group that bears the benefits and burdens with rational basis test generally speaking so the texas legislature is decision to have these balancing of interests isn't part of the inquiry about whether there is a discrete identifiable group that bears both the benefits and the burdens that group does not exist here and so the district court should not have even properly gotten to that question about whether it survives you know whether there was other rational rational basis only comes about if you get past the present the the existence of the preconditions and since there isn't a discrete group here lulac respectfully ask this court to  apply the important constitutional provisions at issue here and to reverse the court below thank you ana thank you ms ricks your case both of these cases are under submission in the court is in recess under the usual order