senator supported by the states african american minority the problems with that system under the voting rights act and the th amendment would be readily apparent at minimum a legal challenge to such a system would not fail at the outset proceedings the use of winner take all to elect nine electors in south carolina's presidential election is not different it is an electoral decision by south carolina it is not required by the elector clause or the constitution and twelve a nd holding that was not addressed in williams and it includes a direction claim based on the fact that the nine electors are elected out large in the slate election that is also not precluded by billions go dark precluded by williams it is circuits recent decision on the th amendment claims in lyman vs take it specifically because the st circuit although it ultimately rejected those claims correctly articulated a number of relevant principles of law that apply here today and probation on casting a ballot unquote stating that there is no question that multi member apportionment schemes can violate the dictates of the equal protection clause if by design or impact they dilute the voting strength of political elements of the population it did not dispute that it would likely be quote unconstitutional for massachusetts to provide for the election of its state senators using a single slate at large winner take all election because it would result in one party rule applying clear standards that exist the jingles factors the target the circumstances tax there's no question that on the pleadings the voting rights act claim must go back to the state doesn't really dispute the plaintiffs have alleged this three  stooges ultimately free to make that argument in the context of a totality of the circumstances analysis once this case goes back to the district court it is simply not right for decision here is this court held in united states versus charleston the distinction between partisanship partisanship in race and the overlap between the two although relevant arises in the context of the totality of the circumstances analysis and analysis that post dates the jingles threshold inquiry is for of fact and turns on a very specific particularized analysis in contrast the th circuit case that the state cites lulac versus clemens dealt with partisanship differently it put that into the threshold jingles analysis on the rd factor believing it was more relevant ultimately to the test and in any event who act provides the state no support here because that was a decision after a trial and in deep plaintiffs in that case specifically argued it would be dangerous th circuit expressly health and i quote plaintiffs are entirely correct in maintaining the courts should not summarily dismiss a vote then you should claims in cases where racially divergent voting patterns correspond with partisan affiliation that's the and sixty eight sixty one dollars in other words your honour's applying clear for circuit precedent united states versus charleston case to the election for electors which is covered by the voting rights act no less than an election for judges would be as the supreme court dilution claim and a one person one vote point in brief the claims are that the election for electors is effectively at large slate election that dilutes the votes of political minorities and contravention of standards established in cases like rogers versus lodge and with cumbersome chavez and white vs register again the st circuits analysis is instructive in this regard the st circuit agreed that there is no question that multi member apportionment schemes can violate the dictates of the equal protection clause by design or impact they dilute the voting strength of political elements of the population the only also agreed that the analogy to a slate election for the entire state senate which would undoubtedly be a problematic power grab by majority party using a dangerous electoral mechanism the slate at large winner take all action would likely be unconstitutional if only distinguished this problematic analogy by pointing out that elect not deliberate but in this regard the st circuit in the four circuits differ during the court to the republican party versus north carolina north carolina versus martin case in that case this court explicitly held or rejected the position excuse me and i  mechanism is used to dilute the strength of political minority this circuit should disagree with the st circuit and indeed embrace the analogy that winner take all is no more permissible here than it would be in the context of that state  out that there are significant distinction between how this circuit approaches summary pharmacist and how those are approached in the st and the th circuit this circuit has repeatedly refused to read some references broadly into regards one to foreclose republican party in north carolina says martin what repeatedly refused to defer to a summary order book distinguishing one person one vote and that was in claims quite stating that a st amendment claim that was never raised to the supreme court could not be foreclosed by conclusion your honor just as a high level summary plaintiffs happened are clear standards that the st circuit embraced apply make clear the voting rights act claim and they have alleged a th amendment claim and they have made clear that williams should not be a barrier to these points which have never been addressed which were not addressed in williams and should not be foreclosed by williams as this court stated in right versus north carolina two thousand and fifteen decision  dismissals are especially disfavor in cases where the complaint sets forth a novel legal theory that can best be assessed after factual development that statement clearly applies both to the voting rights act claim and the th amendment claim and this court should at minimum allow to develop that theory and those facts before the district court in order to ultimately prove their claims thank you i'd like to reserve let me interrupt my time for a part of yes your honor let me ask you one question the jingles if it's one ultimate unit then the question is is it just nothing more than just a majority vote everybody's vote counts the same but you end up with more votes one way than the other if in your honor i would point your honour's to the constitution which the state invokes elector clauses protecting its decision in fact the one requirement the constitution does have is that south carolina hold a vote for nine electors that it has to do that no fewer no more and it has to elect those nine individuals the constitution itself contours this at minimum as a multimeter election and it would violate the constitution to not understand the voting rights act can apply to that multi member election thank you runners i'll reserve the remainder of my time for all i thank you all right will hear present claims that are neither novel more plausible and don't have offer new valid justification for deviating from settled law to consider what amounts to generalize partisan grievances much less any explanation as to how the federal court should go about designing a proportional system that isn't used by any state in the union where as here the constitution expressly grants state legislatures the authority to determine the manner of appointing presidential electors this court should be skeptical of request therefore this court should remand with instructions to dismiss for lack of jurisdiction or alternatively affirm the district court's well reasoned decision in granting the prior motion to dismiss the plaintiff's complaint with prejudice st as to just issue bil d article two as i mentioned expressly authorizes each state to appoint presidential electors in such manner as the legislature there of may direct the supreme court has described a specific textual grant as providing states exclusive authority and  the supreme court recognized in bush v gore that there d is no federal constitutional right to vote for electors for president united states and the lesson until the state legislature chooses a statewide election is  means to implement its power to appoint members of the electoral college course once the state provides for those marab of women bush noted that it can be exercised in a way that violates other specific provisions of the constitution violator or materially disparate treatment  valuing one person's vote over that of another and to be clear we do not submit to the state's plenary authority to dictate the manner in which presidential electors are appointed is in all cases beyond the realm of judicial review on the basis of as a basis to foreclose a st amendment claim if not directly at least derivative lee because of the four circuits prior ruling republican party of north carolina versus martin which makes clear that if there is no  then you got the voting rights claim that foreclosed by williams too i think that is foreclosed on on its own terms as well as the persuasive application of williams to that because  this report noted below to the extent you can even applies the voting rights act framework to this case the only logical way to do it would be to look to the one that the voting rights act does not apply to presidential elections we have not taken that position affirmatively but would acknowledge that it is certainly a new been question as to whether or not it applies i don't and seemed to suggest that it may not necessarily apply but that even if it did they did not stay to a cause of action nor the voting rights act are designed to ensure electoral success not just opportunity to participate in elections in the same terms as that and that is precisely what the case and in this circumstance rights act the winner take all system complies with equal protection because it is just inherently favor or disfavor any particular voters every district court to consider the question is not as much in the version and fit context of working the minute claim their argument fails right out of the gate because the supreme court has expressly recognize the issues addressed in gray posit to the electoral college system and both the three judge court and the supreme court and williams were well aware of grey which was decided before williams enroll lot of on by the plaintiffs in that case and it is a great degree said that any analogies to the electoral college are in a positive so the notion that the gray the court and grace would in a separate and distinct holding in a twelve foot newt while noting that any analogies to the electoral college are in a posit we would submit is is a stretch in trying to make that that case winner take all method neither discards votes nor dilutes voting strength as the supreme court noted in macpherson and addressing it similar issues initially and dismissing similar nonrepresentational arguments the constitution contains an express commitment exclusive authority to state legislatures to determine how to point president electors and in cases where as here each citizen has an equal right to vote the same as any other citizen no discrimination is made less plaintiffs one person one for one but necessarily fails as a matter of law with respect to the st amendment claims as noted that this court's opinion in the republican party of north carolina versus morton  plainly forecloses any derivative st amendment claim and notes that it cannot be brought where there is not a valid th amendment claim voting rights is well is the district court in this case quickly identified plaintiffs are you in here conflates diminishing motivation to participate with a severe burden on the actual ability of people to participate in the voting rights act and she's been in the vetting process to be sure as such this court like the st circuit not decide which of the various tiers of scrutiny would apply to any balancing of burdens or interests additionally as noted previously submitted williams controls for the reasons  outlined in republican party of more converses martin and that there cannot be a separate derivative st minute claim because the constitution does not provide a right to or a guarantee of a fictive association persuasive speech no major candidate is going to come to a state with a situation like this where one of takes all and because of that they don't have an opportunity to interface and petition those you're the major candidates for the other party don't come to south carolina and in fact the major candidate win the election i guess or whatever or even in an articulate no position the basically t south carolina voters don't matter because they just don't have an opportunity to talk to major campaigns and that would be true in states where the reverse of the case is not a republican democrat it's just a medical who's in charge is more likely and i certainly understand that not argument i don't know that i would conceded that is cognize will burn much less one that would not be easily outweighed by the state's regulatory interest in elections but i new at least for south carolina it can hardly be said that sucking on has not been important to the democratic party and the democratic candidates have avoided south carolina by any means but more so the converse is also the method to avoid it dilution of votes within this state so that the states block of votes no longer counted were carried is much weight in the national level there's as a curtain on the party and the members of the party who is not predominate the burden on them they don't have a say so in terms of policy for throughout there there are papers that there is this national election for president and that's not the case under the constitution by its terms but it is difficult to sort of carry out this this hypothetical because it's purely hypothetical because this proportional system is not used in any state but you can certainly imagine a scenario in which if numerous states were to adopt or as plaintiffs asked that they impose judicially a proportional were less votes on the table and i think that or even to the extent plaintiffs assert that is a burden it is far from clear and and would easily be outweighed by any regulatory interest in elections and by the very interests that were noted in the way the williams opinion by the three judge panel and the period state interest there were cited but my thomas jefferson at the time and which is yeah yes you have some further yeah just to quickly conclude you are bottom supreme court has repeatedly recognize that our political system necessarily involves winners and losers same precise same premise applies to the winner take all method for these reasons and those stated in the governor's motion to dismiss in the joint brief submitted score we would submit that this court should join every other court to consider the same or similar challenges and promptly dispose of this matter whether by remanding with instructions  act applies to the presidential election williams versus rhodes which makes the th amendment which is the basis in authority for the voting rights act applies to the presidential election that's likely why the state has never contested that the voting rights act absolutely applies to a state decisions under the electrifies how the contour its elections nd your honour's asked specifically why it is that there is a voting rights act claim and why it is specifically that voters are not treated equally the answer is look at united states versus charleston which lays out specific factors for determining whether voters are treated equally in the context of anger and rights act claim those factors absolutely include as an initial matter some discussion of proportionality to quote paul versus virginia from the circuit whether the minority has quote the opportunity to exercise in electoral power that is commensurate with their population in the relevant jurisdiction and quote is a key inquiry of the initial jingo threshold factors that's what we're looking for and here we have a multime election for multiple electors and indeed an african american community in south carolina as a result of winner take all has not elected a single elector in more than forty years since jimmy carter and if you look at our complaint there was a question i believe  that you asked about whether or not there are allegations in the complaint that explain the voting rights act claim the answer is there are dozens that demonstrate the distinct effect of winner take all on the african american minority in south carolina can point to a history of disenfranchisement that point to different outcomes in the political process and a failure to elect candidates at the state level and that specifically point to the way that winner take all in particular in the one thousand nine hundred and forty eight election in south carolina where south carolina gave all of its votes to strom thurmond was particularly used in the context of racial voting on the pleadings this is absolutely enough to state a claim because of winner take all and in fact no guarantees in south carolina the white majority all of the electors in every election do so but it should not be permitted to do so on with meaning to turn as well to the st amendment claim which starts when you asked about st there's no question that williams decision did not foreclose the st amendment claim that's absolutely correct the st circuit hasn't close nd your honour's also spoke about whether or not we can measure whether candidates are ignoring south carolina because a winner take all and whether the effect is democratic candidates don't take seriously the interests of a democratic minority in south carolina that they don't have any influence over national politics that because it winner take all not only their votes but also their voices are signs and the answer is again we know that the state in response to this question contested the factual premise that in fact candidates are ignoring south carolina that's not kind of appropriate thing to do on a motion to dismiss and if you look at paragraph sixty of our complaint we have clearly alleged that this incentive structure works exactly as intuitively you think it would be the candidate indeed ignore south carolina i would also point out that this incentive framework is indeed relevant to the st amendment analysis in roads justice harlan in his concurrence spoke specifically about how basic incentives can  ignoring south carolina we also allege numerous facts there are overlapping d between the th and st amendment claims that generally demonstrate that because of winner take all and because of the artificial structure created by winner take all minorities in south carolina are clinton refused to go near the election to the upper midwest because she thought she was ahead in those places and the winner would take all it seems to me candidates could avoid states on the opposite conclusion they won't go to a democrat today might not go to california because they count on california and a republican doesn't go to california because they don't get to california it's a it's a  dicey thing to start sorting all that out your honor that might ultimately be what the state can prove on the facts but this speculation about the facts that contravenes allegations in the complaint on the st amendment claim the voting  question is not to my questions not focusing on the facts as much as it's focusing on the theory and other words this may be just political discretion in campaigning and some candidate may think he can swing the  state there's nothing that's occludes him from going to the state and the candidates in today's communications get to see the candidates on television from every people from every state get to see them  college system but it seems to me that this might be something that just goes along with that system can i briefly answer your question you're asking yes yes your honor the factual theories and i do believe they are factual theories about the way winner take all interact with minority votes or keep them in a context the way it interacts with candidates and incentive structures in the st minute context the way the facts minority rights and the voting rights act context these aren't deep complex factual determinations there can be a time money effort whether they're going to win or not can't what are they contributing in other words the facts it's a little bit like the weather i mean you can there's so many facts you may not be able to state up a player base a cause carolina would make is that that's part of the political process that we can review and if i may answer that question your honor i want to understand the context of the at least if the statements because i agree that a candidate was candidate could choose to not go to a state with any number of reasons but this not the st amendment rights of a candidate will think about will talk about a st amendment rights of the individuals in the state and for a candidate to choose not to go to south carolina because basically there's no chance you're going to win south carolina and it's a want to take all is a different thing to not to go to a state you think you're going to win for the voters there is obvious if you think you're going to win there those voters are going to have some influence and you better you better feel very comfortable that you've had that influence and listen to their concerns in order to get that state whereas that doesn't exist in south carolina and it's the question of the birth that we're talking about here on that it bears upon those who wish to have st amendment associational rights and in this instance the voters as i understand it in the st amendment perspective as saying we don't have that privilege that perhaps they have in michigan even though it may a misconceived perception on that part and a to me in fact have had that but it didn't matter if their candidate and didn't win and that would be true for the republican candidate for south carolina that you know you would choose to go there too but if you lost then those who thought they had influence won't have influence so but the question is is why would one not choose to come there and basically you ignore that and haven't been in a number of statewide elections i'm was terrible but that's those true here and and just to keep it narrowly focused the question really comes to the to the burton and as you co counsel pointed out is awaiting here to go home and i'm not that winner take all as a specific electoral mechanism is as we believe but the reason why candidates don't visit south carolina it's not because there aren't enough minorities to provide electors to the candidates it's not because the state couldn't be competitive under alternative systems including systems other states use now and used at the founding it's because pacifically of winner take all that in both the th and st and we are a contract these minorities are unable to have any electoral influence in the context of presidential elections and it's just one final point i agree and i believe that this colloquy has revealed there are complicated questions here both a fact and a fury which is exactly why this circuit how they write versus north carolina that when a complaint sets forth a novel legal theory that can best be assessed that there was a legal theory they can best be assessed after factual development precisely because we can better understand the way the incentive structures operate we can better understand and we followed it and i think we're the only court to follow that and i think both lawyers and judges like you i don't fully intend to eliminate it if we go back to oral argument in the courtroom which i'm sure we will but i