should have been in federal court all along and of course the reverse the district courts remain an order in all of and this unique and rarely used provision provided ample support for the general and the rd is the merits of the plans process but please be generous to questions because there's a lot of issues in this case so st turning to the question of jurisdiction this court can afford relief to the seventeen plans chalons file plan now the plainest contend that it's too late for that to occur because that there would it would cost election administration difficulties but that is really a question of whether that's still good policy under the circumstances and the very act of putting the general assembly back in charge of the election administration election law state is itself a form of relief late in the election process to stick by the twenty seven thousand plants that would automatically spring back into that and suppose that it just cited to reenact a twenty nine thousand plan with other if we agree with your opponent on the refusal clause argument there's no reason to address movements at all right well i think that would be odd because  in the order that you've taken them or alternatively that we're required to answer both of them for some reason i was under the belief your honor that because that move this question is the predicate yours their final question of whether that be up here all is moot and there that's assessed at the time of removal so i think it falls flat right there furthermore the missing link in their argument is that we lost in the district court and that this report didn't mean and once we're in that position really in the position of anything that they can't who does not prevail on an issue and wants to challenge that issue and you bifurcate your approach you challenge it as your allows you but then you cordon it in litigation strategy based on the assumption that that is a valid or so we did everything in a state court and everything that they described when they brought in their flurry of rule twenty a j labs we did all that under the assumption that the  cases where there is a judgment of the state for perth and worse that really creates an incentive on the part of the state court to reach a judgment st and keep in mind we're talking about sensitive issues and it's really nation certified mail to the district or and the plaintiffs the position that one sounds don there is absolutely nothing the district court could do about anything and we disagree with that and we lost so we could have gone to the district court for a stay because the court order ruled against us on that you coming up here we would have had what i mean when the court had already ruled against you on that eat you ask the district court to stay its order pending appeal no what we asked for was to stay the mailing so that we could decide whether to move st that well it's different and so they came back and said no it's too late they can't even do that never mind a stay it can't even give you time to think about a stay you've got to go right back to provision the st is a demand by the planet for an affirmative act that is refused by the state after the nd is that the state actor must be responsible for that act and the rd is that there must be a prohibited injunction and one seeking affirmative assistance from the state ordinarily when a plane goes to court against the government it just wants relief stopping the government from doing something and that for example  ordinary case and that type of case is not going to be covered under the reviews last but this case is different it's under the unique class of cases where the plan comes in not only once i'm thinking of joining but also wants part but it's not unusual at all that someone who wants some affirmative assistance also wants an injunction because that's sort of two sides at the same point you need the state stop doing what it's doing before you can get the state to do what you want  just give them a plan which we could we could have started the case in act two new plan that implemented the state law as they requested it which at the time would have required basis we could have done with this a vast the refusal and i'm actually that really i think the answer is the nd element which is that this is the body before the court that is most capable of doing the refusal and the planners are contending that there's an executive in force an element in this but that's not in status that's just says that bend it and it says act and as didn't convince me so help me understand a little bit why it is when i look at the the section in it's rather short i concede that but that the petitioners claim that the refusal falls under calls to  the refusal clause of cause to our subsection two that that only applies to state officers who refused to enforce yes you're on the reason for that is because this is the principal star assizes which means we have to review the case based on the facts before the court and the issues present this is the warning at the supreme court gave us in cases like the arkansas issue gaming commission  that it's a word in an opinion and what matters is that those were private individuals and the court had no occasion to consider what would have happened had it been a legislative body might there and it's my answer your honor please with the chief that there was no occasion for the court of pains to consider what would be different if a legislative body had been present at removing parties there were private individuals were civil rights protesters and persons assisting african americans in need not answer the question of what public officials it applies to state federal executive nonexecutive enforcement not enforcement those questions maybe i get your point but that's not the rationale that's given here the court didn't give the rationale merely that these are private actors well i think the fair way to read the ration out was that they were not acting under color of state law and the convenient word that was used the only one except color of state law and he doesn't appear in the refusal clause and b doesn't appear in bain's in the section that we're we're talking about listen you may be like maybe you're in the head of i can't remember who wrote yes and you sort of figured out what he was thinking but it's certainly not apparent from the refusal call and is not apparent from baines itself again the supreme court reminds us that when we're trying to understand we have to read the cases or look at the facts there are no issue presented or even discussion or rationale at all on the lines of distinguishing between among state offices my clients are state officers and their institutional  i'm not sure why does or st in your mind but tell me why you why didn't baines just sort of resolve this whatever we think about the text of the statute that we read  particularly in light of city of greenwood that i think is addictive but certainly bain's doesn't appear to be and that would sort of very simply resolve it but it suggests to me all your alternative arguments that you don't have confidence that pains is a whole second it's too late to provide relief this isn't just a matter of policy it's a matter of due process under the supreme court's opinion sell the election is already ongoing people have voted military ballots have been sent out in some respects but we do read cases based on what was addressed there and reassure sat the federal constitution does not give us then but says states might be able to and in all kinds of contacts federal courts apply state law  the federal court decision holding that multiple north carolina state legislative districts there are no racial jerry matters in response to legislative dependence created the plans of issue here but the coming to court said very democrats because that's the only way to avoid intentional discrimination against african americans in violation of the constitution and that's certainly also just completely unreasonable and obviously wrong on the practicality issue i'll just put a finer point on what misty and weren't raised which is that the primaries are ongoing right now in north carolina there are over nine thousand ballots have already been mailed out orders military overseas orders absentee voters was about to happen in this case to go to election that was ongoing and you know it's not just a policy issue for the nd reason that the fact that the election is ongoing as a result for me all naps after a final judgment  facts and that's really what we're in we're not used to that but it's not in a rising on your claim it's the defense of the voting rights act and the equal protection clause that creates the federal issue and so if you don't look which is if this case were proceed in federal court the rules of decision would be state rules of the citizen and this this report will do what this report does in diversity case is under the your doctrine made and your gas about that based on state law so that's one the nd i want to turn to the cross appeal and emphasize that on all of our arguments here we have multiple different bases to get to the same point and so on a consistent inconsistency all we have three and positions that each alone would satisfy jurisdiction and so that's one factor that comes in when you're deciding whether to those we have different arguments that some might win and some might lose and we have many ways to get at the same place the same with our standing to raise the issue we have both an argument based on our being legislative officers where i think the district court at least made a fair reading of bain's even if you end up disagreeing with that and that's not an abuse of the special to make it a judgment call out if but we have the alternative argument based on state law that seats and most saying is that then with graphics in north carolina make that difficult if not impossible to do that and to satisfy our obligations under the voting rights act same time and in this regard is particularly significant that they cite the pennsylvania case because in the pennsylvania case that's what the special master did at the remedial base he went in and made an effort to create a symmetry and that's hard because the political parties are not even we distributed throughout the state the democratic constituencies are concentrated in a few areas and so what he did was he had to go in and make a concerted effort to spread out the democratic voters and in the process he dismantled a majority minority district in philadelphia now that's pennsylvania and you don't have the same voting rights act the shoes that you have here in north carolina we have significant problems here as this state or before we got to the end but that's where we were at the start that's an objective basis to remove thank you your honors thank  because says that the lawsuit has to be brought up or that offends refusal to act on the ground but acting would be inconsistent you can't bring a lawsuit against someone for doing something you haven't done it on and as far as i'm aware there is no support in the case law anywhere for the notion that someone can bring a refusal was a claim on the basis of a refusal that might occur you know sometime in the middle of the if it doesn't matter but right so for that matter i get that's one thing but for a refusal act they had not acted as you had requested at that point yes but they have to refuse to act at that point that the state court won't have time to run be a problem for the next election and if there's nothing nothing to lose they're going to keep doing it today as for expedited consideration this court they asked for expiration briefing which we consented to and they did not ask for  have and by the way they could also have asked for a stay pending appeal which they did not ask for but you did oppose their request for the district court to not mail a letter immediately so the district