action but a sixty five year old identically situated even a six year old who doesn't d have any health condition is entitle to cast a ballot by mail without offering any excuse restriction is applied in this context the same thing is true of a forty five year old who may live with elderly parents not want to own person because she doesn't want to expose them to the risk track or a thirty year old child thirty year old who has a child with a respiratory condition all voters under the age of sixty five are required to trade off their rights to health and safety and the rights of their loved ones and family against the ability to burdens on the right to vote because they chose in the june primary just a few months ago to allow everyone regardless of age the ability to cast a ballot in the primary election and they do not and cannot dispute that burden now what what's the legal significance if any of you in your view the fact that indiana's governor has lifted the prior stay at home order and the state as i understand it has progressed to under phase five the public health emergency is still with us and i'm reading now from executive order twenty dash forty four which is the renewal of that emergency which says that the virus has now spread to every town dethrone indiana with over one hundred and fourteen thousand cases the virus is still prevalent in confirmed cases daily and tragically continue deaths and then it recognizes that emergency conditions continue to exist in the state requiring the continuation of emergency declaration up the other thing i would say is that the fact that indiana has progressed to stage five now is of course no guarantee that cove it will be under control when voters go to the polls in november we've already seen in some states including states in the midwest and other indicators turning in the wrong direction in the end that itself unfortunately has seen high numbers of positive tests the last few days i looked this morning on the state skopec dashboard which gets updated daily i think it was around nine hundred people were diagnosed and twenty that's today so i think voters who are trying to decide whether they feel comfortable going to the polls to cast a ballot or whether they need to seek significant and unprecedented burden and it was wired modification to the state's election procedures the nd reason is that this is foreseeable d in a way that a blizzard or snowstorm does not we know we know back in march the co a significant issue and an election new in june when the primary was conducted we know now and and we are there is an opportunity for the state to make reasonable accommodations which will understand them to really disputes that there are significant burdens placed on the exercise d of this on the ability to vote rather they make two moves on the th amendment one is to say that the th amendment should be there's a facial violation of that amendment it's especially apparent when the restriction that indiana has on absentee voting for folks under sixty five dollars is applied in a pandemic that's i think how the descendants understood it in their we consistently argued both as applied and facial challenge in this court the other thing i guess i would say your honor is i think we need i don't i think it was clear everybody understood what kind of bringing ordinarily i think of course it does apply because the impetus for this lawsuit was what the emergence of this of this bank in march and april and so i think that provides additional context as well seek i ask a question on your th a man an argument that is on my mind with it and it goes to the remedy point there's there's an exchange back and forth in the briefs i'm sure mr fisher will address it where you know you're arguing for a so called levelling up remedy in the states says that the remedy in the st instance should belong to us and we would level down i'd like to hear what your reaction is to that and i think i've got a follow up question for you my reaction and this is i guess goes back to judge ripples question about the pleadings from the very beginning we have said that we want a leveling remedy and the state never the th amendment that the question is who decides and it seems like the state has a pretty decent argument in my view given the authority can for another article line that we should have a crack at the remedy in the  instance and we're saying we'd prefer you know to level down and if that's the case then it seems to me that you have to argue maybe you are that the sheer force of the th amendment in some other way  even when the age barrier is lifted somehow confers you know this right to mail in voting i think that's a harder lift for you and at that point in time i wonder whether you're whether you're really talking about if the state is right on the leveling down leaning on the th amendment almost entirely and well one of the reasons i say that is purcell's on my mind if i'm not mistaken people in indiana have had started to mail in votes and if they're talking about a leveling down remedy it's sure seems that there's a real risk for chaos and confusion well i agree with your honor that there would be much less confusion and level don't see how that's the case where what we are seeking is exactly a regime stay put in place for the price and the supreme court said recently in the common cause rhode island wh reference i think they are true there's not really much disagreement between the parties the defendants don't dispute i don't understand them to dispute that there's a significant burden placed on the exercise of the right to vote by  something they couldn't dress by extending the time for mail in ballots to arrive but it's also not a reason to take away the choice of voters as the man if they choose the last interest of the state situation where you've got a question perhaps about what the law requires but there is a there is a perhaps challenging question over but the proper remedy is in here the way this statute is written which is to  set up a system where everybody generally speaking goes to vote in person at the polling place on election day and then creates exceptions for that one of which is for voters over sixty five i think th tells us you you delete you you declare invalid the exception which leaves only you know the general rule in place now we have started voting i think you're exactly right mail and voting has already been written corrupt promoted to  that tent is to protect your elderly that's right exactly right your honor and you know if you if you announce all of a sudden that there's going to be an injunction relating to  whether the elderly can can undertake mail in voting that is going to cause all kinds of problem and confusion better i think if there is a serious question of the th amendment to let that be sorted out on summary judgment let it go election not after voting has already begun which is exactly the problem that purcell is worried about so i don't think that that cuts in favor of what the plaintiffs are seeking here now i do want to remind the court of course that on the th amendment claim the th circuit just recently decided that that was not a valid claim that they rejected this exact theory that the plaintiffs are advancing here and among other things they cited the mcdonald case and said there is no right to vote absentee part of the right core right to vote is not a right to possess or cast an absentee ballot and as a consequence just because we have this allowance for the elderly to safeguard their ability to vote in a particular way that doesn't mean that that's a burden or an infringement or or an abridgement i guess is the text i'm looking for on the right to vote of people who  between eighteen and sixty five and so i think that there is no distinction between these two cases in regard to that logic and i think you know we are the court to follow what the th circuit did on that on this question i think  mr fisher would you would you mind if i ask you just a couple of practical questions just to confirm or get the benefit of your understanding of how the absentee ballot applications are working so suppose suppose you have an individual under sixty five that is immunocompromised could they check the box on that on the state form that indicates that they they have an illness and no in fact we are  onus exception i think by text requires you to be confined to your home there is a broader exception for disability but we don't read that to include immuno compromised status without something more  doctor if a doctor said to a registered voter under sixty five dollars because of the situation with your immune system you really you really need to avoid going out including on voting day they couldn't in good faith check that box if they have an illness and then sign it and get an absentee ballot i think that may be different if the if a doctor is saying you need to be confined to your home and that's a that is a consequence of  something like that that may be different i think but what we don't have any of our of the plaintiffs in this case that describe their situation that way they do people could an individual applied to recommission on individual basis and say i capacity for local boards to create their own exceptions and state commission of the even the state commission well the say commission could yes absolutely in fact they the rationale for the primary  order which from it all mail in voting was to make it an emergency determination for all voters and i think if he's an individual voter made that kind of application surely that that's within their authority well that's we're going to be your black and white structure there's a safety of the whole state level where an individual can go and look i've got a real problem here specific to me i want to vote and you give me an exception for him absentee ballot and then the commission can decide that matter and i grew with that one hundred percent your honor and let me can i just that this dialogue is important to me with judge ripple so mr fisher would that apply in your judgment if i if hypothetically i was a physician and i and i said i treat cancer patients or aids patients and i've got to be you know quadrupling careful so i'm going to write a letter to the commission  explain my situation and conclude a letter by requesting permission to vote to vote by mail well i think that the the statutory allowance that i'm familiar with that speaks in terms of  whether an emergency permits this and i think in in the east if we're talking about a pandemic related concern that is temporary that pushes a sense of urgency on the situation i think that and that's what i understand judge ripple to be talking about and i think in my hypotheticals trying i'm trying to cut it out of the same cloth that it's not general that i you know it's one hundred percent pandemic related and trying to be central to me for the for the cancer patients that i treat i think that it upon a proper showing that that might be permissible that might be something the commission could do now i don't mean to suggest that they does a surly would i suggest that the process is there the procedure is there you know it seems to me the they would have the capability to work with the word emergency in that circumstance to come up with with a solution if they thought that was appropriate so you know if that's the thing about of course the commission is they do have a you know they have their own discretion they have their own way of addressing these issues  to be saying well we don't dispute that the pandemic is a burden on voting and in person at the polls well let's be clear about the pandemic of course the pandemic is a burden on life i mean it i everything now every and there are many burdens on life many burdens on life that make it very difficult if not impossible for some people to get to the polls every election but the supreme court in this  said that's not enough under anderson burdick to rule a particular regulation out of bounds or to confer a particular type of voting method on an individual voter that's just the nature of what we deal with when we deal with elections we have to have structure states have to have flexibility to adopt a mix of rules that permit access and but also balance that against the need for security and sometimes inevitably somebody is going to be unable to vote as a result that's that's just the way it is so in the fact that the commission in the midst of the early stages of the pandemic and in the right on the heels of the governor's stay at home order  only pushed out the deadline for the primary but it but extended on its emergency authority the ability to for everybody to cast a mail in ballot doesn't bind it to do the same thing now and i don't think there's anybody and in the end of that at this moment that mailing voting is available to everybody so it would induce a change of status quo and potentially confusion to issue an injunction that suddenly opens that up you know everybody understood that that order was for that election and indeed that if i think my friend said that everybody understood at the before the primary that there were burdens generally about the pandemic that we had to deal with but of course you know they didn't even seek the  plenary injunction until after the primary and as a consequence on this timeline here we are at this late date after after voting has already begun really you know within a month of the election and election day that they want to expand the right to mail in voting to everybody and i think purcell it just tells us that that's not an appropriate way to to litigate voting claims mr fisher mr glick steen makes the point that look this state managed to handle this at the time of the primary just fine  in fact did quite well with that what can you say at a you know a fairly high level of specificity as to the difficulty the state would have of implementing the same for the general election well and i think to be clear that much of the burden here would call on it you do it why couldn't you get it i mean there's still time there's still some time well of course that we're talking about here in part is dealing with the volume of the volume of mail the security for the ballots the personnel required to process the ballots and to to have to count them properly and the declarations we have in the record from some of the county clerks attest to the extraordinary measures they had to undertake in the primary just to deal with the  expense the physical space necessary the security had to be hired extra personnel and i think it's important to understand that absentee ballots are not simply run through a machine when they come in it's not something that i think you can deal with as efficiently as as in person voting in some respects because the process is there have to be absentee ballot counters present there has to be the election board present there has to be an opportunity to inspect the ballot in the application to make sure everything is as it should be and so it does take time and so if you have this massive volume of mail in ballots that's going to require more personnel and possibly push back the knowledge of the results which generally are available election night so i think there are very specific consequences that happen when you have this much mail and voting that's also of course not even to mention the risks that we incur on the front end when more people have more access to mail in voting that opens up not just opportunities for fraud or opportunities for coercion and indiana has had a merrell action in the last couple of decades thrown out because of the fraud of the mail and voting process so i think there are good reasons for the legislature to have been skeptical so i think there are very specific concerns that we know your honors i think i say look at my notes i think i've really touched on on the points that i wanted to make and if there are further questions i'd be glad to try to answer them but if not i don't want to belabor the point unnecessarily and  pastorate case that you all right yes exactly yeah where that at the olympics had to be thrown out and you know i think part of the problem there was fraud with the handling of mail in ballots which gave rise to statutory amendments that restrict who may thank you your honor i have five or six points i'd like to make all of the court wants to take me elsewhere i'm happy to follow the st concerns the mcdonald case and the th circuit appropriation in that case it is not correct that the th circuit there was no evidence that the that nd thing i'd like to talk about is the idea of his safety valve the sort of individualized applications mission one problem is that the commission only deal with these issues they met only once after we filed our d lawsuit and they said that they wanted to defer to the practical matter judge ripple there's not a remedy before the election i mean i think that the election is now thirty three days away so i also think that it raises serious equal protection concerns if you have one off grants  i mean the federal constitution is binding on the states too but i think there's no principle that if the federal constitution is being violated one has to exhaust state remedies for coming to court for granted that the next think i would say is about leve i do want to say a few things about the idea that the root minister of problems in the primary because of falling d d in balance the reality is that there were many mail in ballots requested in the primary and an afternoon and because everybody wanted to vote by mail there's no showing that there was likely to do so in the general election so i think we're going to see increased mailing balloting no matter what and there's not really a unique harm here for i'm allowing additional voters choice to access the b already gone out the very party the indicating who is eligible to vote by mail and who's not the application period is open and rules for  expand category of its ability to include anybody feels that it can't be in proximity to another person because of a risk to health or safety factor expanding the category doesn't take rights away from anybody i don't