based on where you live that is facially unconstitutional under reynolds vs sims and a host of other supreme court precedent counsel the problem i have with your argument is that as i understand current california law without regard to the  every voter in this state is permitted to vote by mail are they not they are but they have to take an affirmative step in order to which is a very easy thing to do you can do it by sending a letter picking up the telephone going on the internet walking into the office of the registrar of voters and being placed on a permanent mail ballot list but they have how to how does the v c a unfairly burden  count voters in counties that are not participating in the v c because the v c a is is the legislature putting its thumb on the scale in determining which counties the voters are going to have easier and how grand i understand access to the vote to a ballot in california is easy but in these particular jurisdictions we're going to make it that much easier says the legislature but it isn't the supreme court say that we balance under burdick the state's interest in trying to encourage when you look a little further into that the seven counties that have voted for hillary clinton have seven and a half million people and the seven counties that voted for donald trump have half a million people so the state has has chosen which counties are going to have easier access to people that are going to using chose in which counties people are going to have easier access to the french as i understand access the franchise in california is relatively easy but again it requires an affirmative step to get on that permanent mail ballot is your argument that this is similar to an impermissible mode such as res or whether or not you have to pay a poll tax or whether you property before you're allowed to vote it is it doesn't rise to that level of constitutional concern it rises to the level of concern identified by the sixth circuit and obama for america he was dead where the court said you can't treat different groups of voters different in  way the ability they made voting harder for people well except that they allowed it for the military so they said all originally it was a day they allowed everyone to have three days before from over there actually case correctly and they took it away from and only let the military do it correct so in other words  this case no one and no one's life has been made harder in this case to vote as it except that when you look at and i think the district court put it put it well it's almost like you've taken soup in your diluting it but the state is choosing where the vote is being diluted but how and that bigger letters and about they all can be tough to read is very small but we want to test it we want to test it in some counties in california and we're going to pick eight counties tested but not all of them because we know it's too expensive to do it tested all of them and we  want to do a pilot program can they do that in your view your honor i think there's a difference between which kind of machine i'm using in a particular county where again yeah actually have to go to a polling place or job some technology that makes voting easier and your honor look at there  versus when you can and getting back to my question can the state have a pilot program to try the new voting technique in one county or does it have to do it in every single county that's in the state i think when it changes access to the ballot when it actually changes access to the franchise on a discriminatory basis they can't look at what you're throwing the word discriminatory in there in a way to say i'm just asking a pilot program that they pull a number out of a hat and it says to me you're the lucky guys you get to have the pilot program do we have an equal protection violation i think it depends what the pilot program is why did you take the program is simply to make it easier to vote and we all agree it's easier to go into all the county if the technology works which is why we're going to test it can california do that i think it depends on what the technology is and how it's being applied why would yet why would it matter if it's easier to go into all me county than it is in stanislaus county on your theory is not a violation of equal protection clause and no your honor i'm not saying that if one county uses optical scanners and one county uses touch screen voting machines that there's an equal protection problem that's not what we're saying here in that case everybody is going to the polling place and accessing you know they're going to the polling place they may be signing in using paper books or electronic books or voting on an i get an optical scanner versus a versus a d r e that's not what's happening here what's happening here is california is saying you favored voters in our favor jurisdictions you're going to get to vote by mail no matter what you're going to get the ballot on a positive note to the bottom you seem to be making a type of delusion argument for suggests that one person's vote is not worth as much as another person's vote how is it in this scheme that the votes of your clients are somehow worth less than the votes of the voters in the counties that are using this this new system of i'm struggling to understand how there's any solution at all for your clients because what the what the state said at the time they passed the bill was we know or we believe based on the experience of colorado washington and oregon when you go to vote by mail it increases overall turnout and so what they're saying is we're going to choose particular counties where we want to see turnout increase and here's the dilution problem we're talking about jurisdictions in california in terms of which candidates are representing that are multi county jurisdictions for example governor senator the other statewide offices like attorney general people in los angeles vote in los angeles county vote for those folks as the people in nevada county and placer county and you the county in sacramento county but the state is saying hey guess what if you live in sacramento county we're going to make it that much easier for you for your county to cast their ballots is it really that much easier to get back to the question i asked at the beginning about current capability for mail in voting your honor at night is just a matter of asking to be place on a permanent mail vote list but the state made a determination in two thousand and sixteen when they passed this that they didn't believe that voter participation overall was high enough that's why they needed to make it that much easier but we know that to be true do we know that we know that voter turnout rates are very low in large parts of california but your i guess i get back from historical record i don't i guess i get back to your point if it's so easy to vote in california why is voter turnout so low what the state is saying is we if we look at our neighboring states in colorado in oregon and washington we know that when you go to vote by mail generally turnout slash voter participation is increased so the answer is i think that a good thing it is a good marker but i think that the answer is that the permanent vote by mail option that you've suggested is not as easy as as it might be right otherwise the state wouldn't need to say we're going to mail to everybody it shows up unsolicited in your mailbox you don't have to affirmatively request that your name be placed on the list that's what i mean that affirmative request is incredibly easy i could do it from here if i were a registered voter in california by simply getting on the internet so i was going to your polling place on election day and i so it's just let me go back to a question i a you answered do we apply the supreme court's test in enders and bird to resolve the legal question well your honor anderson verdict was it was a scale care where the court needs to decide it's a scale in which we balance the interest of the state against the impact on the vote that's right and when you have a statute is it just a test we apply well to yes or no answer no because the statute is not facially neutral so what test do we apply so i think you apply strict scrutiny here because  because on its face it is treating voters differently based on where they live if you're in placer county or you the county you've got to take some affirmative class class or i'm sorry placer county or yuma county you've got to take an affirmative step different then your neighbors who r due process equal protection or due process because it's overweighting the votes of the counties that are permitted to do this and here's where you get into an even bigger problem this year there's fourteen counties that have the option come two thousand and twenty you've got more counties except los angeles that have the op and then you've got los angeles county treated differently so you literally have three different classes of counties and remember the counties that can be added in two thousand and twenty have to be to specific list of conditions before they can do without a goal suppose that the democratic party acted like cook county illinois and they really made an effort to get out the vote and so they chartered buses and went to rest homes and hospitals contacted the shut ins and loaded  all on the buses and brought them down to the polling place to make sure that they cast their ballot would be unfair dilution as compared to voters in other areas where there was not such an effort to get out the vote the difference is it's not the government putting its thumb on the scale in this case it is the government putting its thumb on the scale because the supermajority democrats in the legislature decided which counties got to be got to be got to have the special to work with the hypothetical so the mayor of san francisco says look everybody i'm going to spend the entire day on the radio i'm a knock on every door i can to get out the vote for the democratic party and the mayor modesto says i'm not going to do that access the franchise all that is is government officials publicly encouraging people to let's say signed up on the permanent absentee list i don't think there's a problem if a bunch of different mayors and only some mayor say please go sign up on the permanent absentee list i do think it's a problem when the legislature comes out and says in these favored counties we're going to essentially do vote by mail for everybody but in these other counties we're not and not only that not only do you not have the option you can't do it this interest is is there any thing in the legislative history or in the record of this bill that tells us how the fourteen counties were selected i don't believe that there is your honor i think it's a list and i know that the  experiment to try to improve the rate of voting your your argument suggests that the legislative record does reveal some kind of political motive favoring counties that might vote a certain way as opposed to others but seems to be what you say you look at it mean the legislature didn't have the november twenty sixth election results in there in before them when they when they adopted this legislation in twenty sixteen so you can only look sort of prospect of lee at this but the if the net effect of it is that you know there's a fourteen times more people in the counties that voted for hillary clinton than it voted for donald trump to have the option of doing all the time now and i think that the better answer is if the legislature wants to move the can move the state to although by mail they state allowed to make changes incrementally to experiment in order to determine whether or not this is actually an effective tool to increase voter turnout i think incremental change is ok when it's not done in a discriminatory way and i think in this case where you facially say if you live in these fourteen jurisdictions you're favored versus not these other forty some odd years to actions i mean to a pilot program you're not going to necessarily start with some of the biggest you might start with small you might go to you know county and say we're going to try it here before we unleash on los angeles what's wrong with that i mean i'll tell you the way oregon did it oregon did it by allowing vote by and what's wrong with the question i just asked because the problem is that well i guess it depends on what election what level of election you're talking about ok statewide statewide i think it's a problem because you're waiting the access to the ballot differently and you're voting in the same election so you know you're saying against it so that get back to just almost question a state cannot experiment and in a state wide election they say it's all or nothing now i'm not saying they can't experiment i'm saying they are saying they need to if they're going to experiment they need to experiment in a way that's careful from for example what oregon did when they try began the process towards vote by mail the legislature allowed jurisdictions to choose to do all vote by mail in their local actions where you didn't have this multi county thing so you didn't have people all voting for you know you had people all voting for mayor in a town that decides they were going to mail ballots to everybody in this case you've got this weird doing in some jurisdictions not when everybody is voting for the same candidates and that's why you get to again to answer the question we both asked now that the answer is no they cannot run a pilot program for a statewide election i think it depends what the pilot program is doing w right where you're online you're significantly changing access to the actual ballots in a significant way that's that's where i quarrel with you a significant change is it really where we're current law permits every registered voter in the state of california to vote by mail if that's the way they want to do it i think the legislature believed it was a significant change or they wouldn't have done it if access to the ballot was so easy and it was an access that was a factor is going on there's a significant financial incentive to the counties as they're not to be able to get rid of all these antiquated voting machines and not have to i don't know if they have to lease polling places or not but they certainly have to hire poll workers to man them i mean the record shows lots of examples of the cost of conducting an election which will be eliminated if this system is rolled out well there are i mean there are costs involved in running elections that's that is true you try but but congress was all county like sierra county that's that's not an insignificant good morning in may it please the court deputy attorney general benjamin glickman on behalf of respondents if i could i'd like to start with the district court's decision in this case which focused on the third and fourth winter factors and that is reviewed by this court for an abus discretion there's no dispute in this case that the district court applied the correct legal standard it applied the winter factors in under this court's precedent it must be affirmed unless it's this is and was a logical implausible or not supported by the record here plaintiffs point to nothing in the record to call into question that is records determination the defendant submitted sworn declarations establishing the risk of disenfranchisement if an injunction were to issue for two reasons the logistical and feasibility of switching models at this stage and the concern of vote about voter confusion after having educated voters on a new model or the potential for switching models twice in six months in response to that is the district court noted repeatedly plaintiffs submitted nothing is hardly an abuse of discretion for the district court to conclude that some evidence outweighs none for that reason alone the district court should be affirmed now if turning to the merits which the court seems very it's not itself a standard overview it's a framework to determine a standard of review you look at the burden on the voters if it's severe strict scrutiny applies if it's something less than severe a lesser level   line of cases he just assumed for the sake of argument that they had met those first two factors but yes it is the state's position that that even assuming that there were serious concerns which was incorrect and it's for the reasons judge coleman noted that the burden if any on plaintiffs in this case is minimal at worst and we would venture that it's not actually a burden at all the v c a doesn't affect their right to their ability to vote in any way they can vote the same way they could in two thousand and sixteen and twenty fourteen in tw yet the sixth circuit there applied anderson burdick weighed the severe burden and the state's interest in determining the constitutionality of that law and i note not only is obama for america distinguishable for the reason judge owens noted that there it was restricting the access to the right to vote but it was also distinguishable because there was actually evidence in the record in that case significant evidence in the record expert testimony that hundreds of thousands of primarily african american and lower income voters would not be able to vote if they were not granted this ability to vote early here there is no evidence whatsoever that plaintiffs will be unable to vote in the june election in the november election or any election that alone distinguishes obama for america the he's dead so how did you guys pick you guys how did the legislature settle on these fourteen counties it's a really interesting list of the fifty eight california so there's nothing in the legislative record that specifies how they were chosen i have and it anecdotal information about how they were chosen says i am i will not yeah but what the legislative record does show is it refers to these fourteen counties as early adopter counties which i supports the court's framing of this as a pilot program and i think that's further supported by the elements of the law that require reporting the counties that participate in this program must report to the secretary of state after every election and then the secretary of state must report to the legislature and that is indicate indicative that the legislature wanted to make sure that these programs were actually effective and as the court has noted there is nothing in the constitution that requires  a state legislature to address all evils at once or to remedy everything at the same time they are pursued permitted even in the election context to proceed incrementally and this goes back to the one nine hundred sixty s with the mcdonald case for out of the u turning now to the allegation of partisan motivation number one there is no allegation in this case a partisan motivation that's not a part of the complaint in this case it was not briefed in this case so it's just not part of this case even if it were there is certainly no evidence of partisan motivation the notation of the who the fourteen counties voted for was just simply to show that happened by happenstance to be seven and seven for senator clinton and for  whether or not there was a significant increase in voter turnout that's correct as of the report that was published by the secretary of state last night there's about two point six million ballots that have got to be counted statewide and so until those ballots are counted it's impossible to know  what turnout statewide or in any of these counties will actually end up and am i correct aren't there currently all mail voting elections permitted in counties in california for like school boards  r special replacing somebody who dies or resigns from that that's correct first for special elections or or district elections in addition in counties where there is no precinct with more than i think five hundred voters perhaps to  fifty they can they can they don't have to do a polling place for such a small number of voters so for example sierra county that was mentioned for several elections now they have conducted all mail ballots there have been prior legislation that had permitted the county  diego county to experiment with all mail ballots in special elections in those counties so again this is this is not a new phenomenon and one thing that the appellant's them for size is that every other state to adopt a similar system did it wholesale and that that's true in that they did not say fourteen counties can go in forty four can't right now but it's simply not true that it was implemented and one fell swoop and we brief this at the district court washington it took six or eight years before it was a universal adoption likewise in oregon so you know there are the concerns raised by plaintiffs in this case would have been the same in those cases because some counties were doing it and some were not and that actually brings me to the larger  problem with the plaintiffs argument this case and that is that they focus on voter dilution but there simply is no dilution in this case taking for example statewide elections statewide elections all votes cast in the state regardless of the county in which they were cast or totaled up and whoever gets the most votes wins it doesn't matter what county those votes came from it doesn't matter if one county had one hundred percent turnout or another county had zero percent turnout it's all that matters is who gets the most votes statewide irrespective of where those ballots were cast from and the same is true for multi county legislative districts and i think the best case to see the distinction and why this case does not present a one person one vote or voter dilution concern is gravy sanders and that's a case that the plaintiffs have relied on in the district court cited in that case georgia did not allocate individual votes to candidates at all instead what it did was it allocated county unit votes to individual counties and whichever county got the what or whichever candidate in a particular county got the most votes all of the county unit votes for that county were allocated to that candidate in the problem there was that the county unit votes were not allocated in proportion to population so rural counties had an inordinate power to affect the outcome of election vs of the more largely populated counties was similar to the electoral college and how it operated here of course there is no no system like that for a three county legislative district it doesn't matter if all of the votes came from one of the three counties all that matters is which county which candidate got the most votes district wide and then finally just just to wrap up throughout this case plaintiffs of mis represented how this law operates  that law just los angeles is not required to do anything ever they can continue like every other county in the state to to do their current polling place model and move forward like that the only difference for los angeles is that beginning in tw twenty they will have three options they can continue doing what they're doing now they can adopt the all male ballot elections that fourteen counties have the option to do this this election or they have a third option which is somewhat of a hybrid legislation calls a vote center election and the difference there is that ballot mail ballots are not mailed to every registered voter rather they're mailed only to the permanent vote by mail ballots or senior vote by mail voters and to  voters in jurisdictions under five hundred persons or precincts under five hundred persons so it's kind of a halfway step where some people will automatically get a mail and not everybody will get the mail and so under plaintiffs theory if their theory is that the legislature is putting the thumb on the scale and they're trying to boost turnout in los angeles that hybrid option runs counter to to that argument because it is not mailing about every voter in los angeles county and in less than or any other questions i your honor like to make a couple points in rebuttal first with respect to the third and fourth winter factors where we believe the court the lower court went wrong is that here you've got a statute that on its face treats voters differently when they live in different counties and as a result what the court was trying to balance was a nonexistent governmental interest interest you know in treating people differently versus treating people in accordance with the constitution so just like this court did in sanders which was the montana judicial endorsement if there's if the laws unconstitutional the weighting of the governmental interest becomes a balance that we think the district court got wrong so because the statute is discriminatory on its face the the court got the lower court got it wrong because that assumes that it's strict scrutiny applies right yes right ok so and suppose we disagreed with that premise then don't we apply the andersen burdic factors and the competing interests well then i mean then you're saying just mean the just record assumed that strict scrutiny applied so we don't really know where the district court came out on that of a district court said i guess i'll assume that it raises serious something the government can do but it doesn't rise to the level of a compelling interest where treating everybody the same based on where they live is a compelling governmental interest as that on the other side of the grounds for six months or so and how you get to strict scrutiny those votes count exactly the same there is no consequence that flows from the different residency of those two voters none so how do you how do you get to strict scrutiny because it's a differential access to the franchise it's just like in bush v gore where they said you can't count votes differently you're changing it in when voters are voting the same election in this case you're changing the ability to access the ballot and that's why this is so significant they're not just saying vote on d r e's versus punch cards or or optical differential access is i get the ballot automatically mailed to my how as opposed to i get the mail the ballot mail to my house if i have registered and made a request for and i can't go to a polling place there's no polling places in these all now counties either a lot so you don't have the option to go vote it off you can drop it off and drop box you can drop it off at the county register or you can put it in the mail i mean it's a pretty easy system voting by mail isn't easy system but again what it's doing is it's it's the legislature said we're trying to increase turnout in these particular counties and that's why i don't think is the significance  guess that's where you what part company it might be so it might be and as an interesting state interest but this report has never found increasing voter turnout to be a compelling state interest to override the equal protection issues that we allege here so thank you