and morning you have four cases to hear this morning and if you haven't been here any this week already you should call rest assured that we've read your braves the authority cited in your graves at least portions of the record and we know about your case when in the limited time that's available to you when you come to the  he should feel free to get straight to the heart of your argument we're probably going to have some questions but pay attention to our traffic lights when the red light shines it's time to end of course if you're finishing it  and answer to a question from the court you can feel free to finish that answer but be mindful of our time if if we think you need more  thank you your honor may please the court the district court states on pages forty five dollars forty six cents of its final order that candidates of the major parties in florida receive an average of primacy effect voter proximately five percent when listed st given flor history of election results in which the margin of victory or defeat is less than three dollars to five dollars percentage point the district court concluded that florida's about order statute has impacted plaintiffs person th amendment rights by systematically allocating that small but statistically significant advantage to republican candidates based on these findings the district court struck down a seventy year old neutral florida statute which is benefiting had a much more fundamental concern which is as i understand it the secretary of state does not prepare the ballots because that right yes your honor the secretary of state does not prepare the ballots so any injury to the plaintiffs it's hard for me to see how it's traceable to the  secretary of state or addressable by the secretary of state and the district court appeared to to recognize that by joining nine parties one isn't that the most fundamental easy clean problem with this appeal i meet with with this injunction your honor it's one of several problems with the injunction we have an injury issues well we have a but on causation if we frame it as that that is an issue however i would note for the court that there are pinions from this court and most recently the democratic party versus lee that dealt with florida signature matching requirements where the th circuit said that the secretary is florida's chief financial pardon me chief elections officer and so she was the appropriate party in a case concerning signature matching which was done at the county level as well so we agree with your honor however i simply note for the court that there is at least th circuit case that talks about the secretary's rol officer doesn't specifically address standing but it had a similar factual scenario the deed disagree that we're you're bound by lead to the extent that we has a specific rule that's been discussed laid out and thoroughly upon by this court leave it to my mind presumes that the secretary is the appropriate defendant in the case it doesn't doesn't hold that your honor it holds that in ninety seconds the st issue in the case that it's under the heading it says is the secretary of state the proper defendant right yes your honor and it holds that sheet he or she is the procedural posture of the case with such set the interveners in the case asked for an emergency stay from this court and this court ended up issuing an opinion after that state was requesting the state of florida brief not one word of the issue we did not join in the stay the discussion there we believe was a predicate to getting to the heart of the matter about whether or not the signature matching requirement was or wasn't constitutional i do not believe that that is necessary or it well thought out reason holding from the case it was a discussion of one of the preliminary issues before getting to  matter so i don't think that is a threshold issue we would the court would have to have decided that issue right implicitly yes well i thought we had a supreme court precedent from the time of ch justice marshall says that if a court does not address a jurisdictional issue that you cannot assume that the case stands for that proposition that the court has  that we call those drive by jurisdictional rulings that's what the supreme court has called them th yes your honor that is correct and that's why i said i just marshal said in eighteen o five no question was made in that case as to jurisdiction it was that's why i said it was implicit in the opinion but it does not bind this court because it wasn't thoroughly discussed there wasn't a reason rational pinioned there and so that would be the reason why the prior panel ruled that does not apply in this instance say in it  you know i had an opinion that says we're not going to stay an injunction but for purposes of what the whether the secretary of state is a proper defendant or not is not a jurisdictional really honor there are other issues threshold issues that we believe control here is well st and foremost we're talking about parsing out a small biz to to simply significant advantage that might exist in some elections some of the time and that goes to the heart of the matter  small the statistically significant injury that occurs in some elections some of the time to some unidentified voter to some an identified candidate and to some unidentified members of the democratic organizations we do not believe that satisfies the injury prong article three standing and finally yonder the anderson verdict test offers no reprieve at the end of the day what we have here is a small but statistically significant injury that happens some of the time how do gauge that how do we measure that how do we compare that to some ideal where me ask you about the organizational standing of priorities usa these sorted drain on resources theory of injury and there was evidence in the record that because the democratic candidates were starting every election three to five points behind they would have to invest more resources into the state to compensate for that difference why does that not a ledge injury the standing purposes your honor as i understand organizational standing for the organization itself they have to be more specific that they can't simply say that we're going to divert resources it to further our mission to elect democrats their mission is to elect democrats they have to be more specific in how they're diverting those resources when are they diverting those resources this is an issue that it's cropped up recently in the shelby advocates for about elections versus target case from the th circuit there you had an organization  saying that we are going to need to divert our resources so that we can make sure the elections in shelby county are run appropriate well here the thirty six dollars witness said he talked about the resources we expend to deal with the five percent harm done to the voters that we're reaching out and our efforts and cost associated with it it's your honor if you go on to read the thirty piece except as issue there's no discussion about what specific projects these resources were going to be diverted to they did not distinguish which activities they would undertake because of the primacy of fact what are the priorities usa doing differently because of the primacy of fact there is no answer to that question than thirty six deposition from priorities usa the d n c or anyone else there is a vague thank you honored i'm jason torches here behalf of the national public and senatorial committee and republican governors association i'm like to echo what mr g c l said about riccio i also want to turn the court's attention to guilty whitford that involved claims alleging violations of voting rights but what the court said in guilty wickford was those violations had to be personal and specific to the voter that was bringing the case and in this case you had ms jacobson testify at trial and she sounds shockingly like dr whitford where she said oh look if you fix this problem it's going to you know by going to county by county rotation it will be better for democrats in other parts of the state but it won't affect me because my congressional district my senate district my house or draw wholly contained in the same county and they'll be no rotation so she said if i win it's better for a democratic voters in other parts of the state that's precisely like dr whitford was situated in guilty whitford and for that reason we think that you know the individual plaintiff has no no standing to be in front of the court similarly the organization not necessarily benefit or for her benefit her though in state want elections so you are the interesting thing about statewide elections when you look at the literature and the testimony that was in evidence is the evidence shows that in statewide elections in the higher profile elections which tend to be the statewide elections the ballot order effect is minimal if not present at all and in fact you know if you think about the go the governor's race and senate race in florida in two thousand and eighteen they were some of the most expensive races ever so there was plenty of evidence and  i'm wondering it is about to gil is she i mean that does distinguish her her voting in the local races doesn't well you know here's the other problem with the with the statewide  doesn't or no not does it distinguish it or not i'm i don't think it does in in part because she can't show that it really actually benefits are there their proposed solution was ordering the counties by population and rotating and even when you do that you wind up with a six thousand and forty split of which party is going to lead the ballot based on the population of the counties so they didn't really have a solution that eliminates the problem that they're claiming that they're claiming exists and is again it's not clear from  the evidence that they actually presented what the what the effect is in any particular race what the magnitude of the effect is in any particular race i mean essentially the evidence that they that they showed to back up these claims was so hypothetical and speculative that you're really in the sort of gil and clapper lines of president from the supreme court i do want to make a quick point about d n c v levy there is actually that is still pending on appeal here there's a been a request for to vacate that opinion that was  a motions panel opinion because of the change in law in florida on the signature match was mooted on appeal and so there's really no opportunity to have that to have that kid to have that motions panel opinion reviewed so there is vacate a request pending with this court were the interests he is party to that and has asked the court to vacate their so i do want to say we're still pending a ruling from this court on whether that motions panel opinion is still going to stand and be good law or whether it's where there is no harm to any individual's right to vote is a pretty stunning claim there is no testimony in the record and no evidence that any voter voted mistakenly for the wrong candidate there is no evidence in the record that any voter had a hard time voting for the candidate they wanted to vote for there is no evidence in the record that any candidate had a hard time obtaining a ballot or again no evidence no no individual voter who said oh i voted for candidate day just because they were st on the list these are all sort of hypotheticals introduced by a professor who did a study who actually testified that he can't say what the effect was or if there was actually about order effect in any particular race and await my understanding is your position and the secretary's position is is that the plaintiff's claim is really a partisan vote dilution hine that is correct or are they actually initially they phrase it as a partisan vote dilution claim and sort of leaned heavily into that until groucho and now they're backing away and saying no no this is a part garden variety equal protection claim except that the supreme court said essentially equal protection claims don't really apply to political parties political parties are not powerless to act political parties can can change my spare time i'm interested in hearing how they describe it yes and i am too because they vacillated on exactly what their claim is and what the basis of their arguments here are and i guess with that i  of supervisors i don't understand that because that's who actually prepares the ballot write their elected officials they're not supervised in any meaningful sense that i can tell under florida law by the secretary of state they're not removable by the secretary of state the governor could suspend them that would be subject then to the senate as i understand it the florida senate having to decide whether the removable or not appear to be end officials and dependent of the secretary of state who who are the really the the responsible parties here for what you're complaining about but actually your honor i believe the i think the secretary herself would disagree because she has not raised that issue as a problem for why she cannot somehow have to figure that out on my own though that's jurisdiction absolutely your honor but i think it's indicative that the secretary does not believe that she does not have authority over dellec to election laws in florida and of course under this court precedent in lee which specifically did did find that when it's not a just jurisdictional ruling though as it i believe it is your honor i don't believe that that was even you mentioned a drive by ruling that was not my understanding of a drive by ruling is when a court the st very very st paragraph of the argument or of the of the merit section physically notes that before we move into the andersen burdick analysis let's make clear that the secretary of state is the chief elections officer and the proper defendant to be sued in the selection matter despite the fact that the administration of the disc of the shall is issue in that case was happening on a county by county basis i also want to clarify and because you're on the right of the issue of a drive ruling that mandy powell by the supreme court was anything but the defendants in man b powell specifically argued to the supreme court that the political question doctrine barred federal courts from reviewing valid order disputes between or among political parties but the problem is we have a summary of ferment there and one of the arguments as i understand it was just that the secretary just had kind of unbridled discretion in picking it was going to be st and that was part that could that could be the basis for the disc for the supreme court affirming to we just we can't know and the supreme court tells us about summary affirm it says that we're not to to read too much into that right correct or out of all the  under this court's president man is binding some resources are binding for what they said for the anything that is essential to sustain the judgment rights and that so you're correct your honor that we do not cannot infer all sorts of things from an opinion but here there are things that are binding district court's finding of unconstitutionality it was it was presented in man it was decided in man and is therefore binding when it came to the merits judgment in man that the court there specifically found that that invariably awarding  position on the ballot to a certain category of candidates violated the right to equal protection and to fair and even martin the argument was he just this this official and the case of papers that come in at the same time is just awarding it what kind of whim to the incumbent and that's the problem so man may not stand for any more than the proposition that he can't do that well i believe that the actual judgment in man is that breaking ties the method of of of rid of choosing awarding st position by breaking ties in favor of the incumbents that was the issues there by a lady and the others the malee situated candidates right to fair and even handed treatment dilution calling it seemed that you argued that in the district court but that you've kind of studiously avoided using that label in this court not at all your honor in fact we have always presented in our complaint in ever sense that there were different plaintiffs here the individual just using the label equal protection doesn't help me very much you know there's there's one point person one vote equal protection there can be equal protection that the principles that apply to racial discrimination claims what right is being burdened here it's not access to the ballot right that everyone's on the ballot that's correct your honor it's not a registration issue allocation of st position on the ballot the fact that andersen itself makes clear that the bird but the bird does not have to specifically disenfranchise voters or limit access to the ballot but it applies to the voting process itself and t supreme court has stated in at least two instances your honor st in anderson is our garden your voter comments well the individual voter individual voters burden is there a burden on their right to associate to advance their political interests because the statute provides an automatic headstart for their opponents in every election that sounds like dilution that sounds like the problem is that as a result of the placement the st placement on the ballot that they're going to get this don affect that's going to dilute the voting strength of those who aren't in the st place on the ballot and when i was in the individual voters that that is that is the essence of the claim exactly as i said that's  fifty five percent of the vote to be elected there be no questions that the voters for the party in power would their vote would be more valuable than it would be that they don't have to their right to their or other the party out of power their right to associate with their  make a difference whether the the cause of the artists and vote dilution is how district lines are drawn versus where you place the candidates on the ballot because richard specifically talks about partisan gerrymanderin that that's true for the placement on the ballot not at all your honor the supreme court of the district in context repeatedly said that partisan partisanship for the sake of partisanship is a legitimate state interest in the redistricting context not so you've just got it placed candidates and parties on the ballot in an order that makes it that is totally neutral as to partisanship and eliminates any advantage for any party is that parties but for these purposes all the parties are similarly situated because all of them are already on the ballot already have obtained access to the ballot what makes them not similarly situated well the supreme court's case line timmons and this court case lani has made clear that states do have a legitimate interest in actually differentiating between major party candidates and i know there are times of how they gain access you know that that is that is true but once that none of those cases say that once they have already obtained access to the ballot that in their treatment that they're not entitled to if your theory is right that they're not all similarly sick situated for purposes of equal protection well i think by the design of the statute  rotation doesn't rotation go to everybody it can your honor but that was that would be a broader challenge than the one we brought it would be a challenge more akin to the challenge brought in cases like alcoa understand what the logical implication of your challenge would ould be we would have a good basis for saying they're all similarly situated well if any court were to find that they were similarly situated contrary to what the court found in al corn and contrary to what the th circuit found in mclean then that certainly could be it would be an option but that was not addition in the district court's holding below it is much narrower than that and i think it's worth pointing out that in for instance in mclean there were two separate issues one was can recognize parties be treated differently or be treated better on the ballot for instance than independent candidates and the answer there were under mclean's ruling was yes but can a ballot order systems similar to the one that florida has which systematically puts its thumb on the scale and favor of one major party over  state can supervise them in the performance of that work and tell them no you're doing it wrong and you have to do it this way and would have any power to make that happen i believe as the chief election what this court found in lee's as the chief elections officer the secretary of state has the authority to administer election laws and in the ballot ordering statute itself section nine a says the department of state shall adopt rules prescribing upright a uniform primary and general election ballot for each certified voting system talks about enforcing the rules and then one of the matters included in those rules is number two individual race layout or about that that the secretary basically has authority to determine procedure to govern ballot order in the event that the legislature fails to do so seclude the secretary does have authority believe she has authority has acted on that authority and maybe in fact and had is prepared to act on that authority again i think it's a let me doesn't actually do it so i mean to the legislature prescribes rules for all kinds of things but that doesn't make the legislature the minister that executes the law right the secretary is the one who oversees and executes the they're bound by laws passed by the legislature doesn't mean the legislature is a property of and just like they are bound by the laws passed by legislature and overseen by the secretary or enforced by the chief elections officer of the state i want to bring up to one very important the court has made clear on at least two instances that it that a state statute can actually violate the equal protection clause where it exacerbates an aggregate known voter biases in favor or against certain groups  would you talk about why the evidence was sufficient to shows injury and in fact on the part of priorities usa the organizational plaintiff absolutely honor and the organizational plaintiffs had standing on at least three independent grounds as proven at trial one was plaintiff to a plaintiff's to the organizational plaintiff's established that they expend resources and have diverted resources in order to combat the ballot order statute and the deficit that they experience as a result of the ballot order statute the district or a matter of fact that testimony was provided a trial to that effect just say what specific resources and how much they expended now in fact in crawford the court specifically emphasized that the fact that it's been asked it has not been estimated and the fact that it's light does not have trial it appears on page ninety nine of the transcript when asked what resources she expected to shift because of the bowed order statue in the primacy effect she said she could not quantify those resources that are shifted due to the primacy effect i would also like to discuss briefly the issue of man as a texas brief points out nearly forty percent of the states have some version of a statute that list candidates because of a prior election if man controls and what we're saying is that forty percent of the state's ballot order statutes are unconstitutional man doesn't have that broad a scope i would point the court to justice alito statement and comptrol entering and the ballot ordering that we have here are both rooted in the elections clause that the st of the political branches this decision of how we're going to go about doing things in a gerrymandering context the state legislature could just draw grids that are inherently nonpartisan but that's not what they do we defer to them in about ordering scheme where we have a complicated set of overlapping requirements in the rd largest state in the union with nine million voters where people vote in sixty seven counties spread across over six thousand precincts in two time zones in three languages perhaps this is something that the state legislature in the elections officials should get a say on how to go about ordering the ballot in not have the courts be put in a position where the courts are dictating which of the alternatives makes the most sense now the court at the the district court pardon me at the motion for stay hearing talk about how the district court would perhaps require an alphabetical order right i mean to me this white lies the secretary are you not saying wrong defendant it's because as secretary of state thinks secretary of state is the right defendant no your honor we do not think we're the right defendant we have made this argument on several occasions in other contexts and quite frankly in the northern district of florida we have not succeeded and we have not pressed the issue here but as your honor pointed out this is a threshold jurisdictional issue to judge prior's question about the seats about uniformity rule we have about uniformity rule that says and provides guidelines for the supervisors on how to set their ballots however i would refer the court to christina white's testimony where she says miami dade county supervisor she's responsible for setting about finding a printer making sure the ballots are printed on time making sure she has adequate resources to put these ballots in front of voters but that's just ministerial if there's a prescribed form for as the statute says individual race layout she's just printing it right while your honor she is printing it and there is a lot of latitude given on how we print this is you recall in the two thousand and eighteen election but not with respect to the the order of the net does she have discretion regarding the order of the names on the ballot no your honor she does not have discretion when it comes to the order of the names on the ballot but there is a lot of discretion on say whether or not the name should be in the left column can now what does that mean what does that mean that portion of the statute that says the rules incorporate the requirements in the section and shall prescribe additional matters and forms that include without limitation individual race layout so your honor after the primary we have a valid order that the state provides to the supervisors and they set their ballots choosing their preferred printer their preferred software their preferred machines that have all been approved and then they design and set the ballots per the order that's