the united states court of appeals to the th circuit is now open according to law god save the united states and th that you should not be video or audio tape in this or taking pictures and you should conduct yourself in the same fashion as you would if you were to list a courthouse please also recall that when you are part of the record we appreciate a record thank you just pains may please the court texas does not have online voter registration plate of think it should so they want to force voter registrars to accept applications prepared online and submitted by a  party organization but instead of suing voter registrars they sued the secretary of state who doesn't accept or process voter registration applications the plaintiff sued the wrong defendant and they cannot invoke ex parte young's narrow exception to sovereign immunity for two primary reasons st the secretary does not have a particular duty to enforce voter registration requirements and to the secretary has not demonstrated a willingness to enforce them here so i want to start with the particular duty point as this court has held this requires a section by section and malice and here the question is the submission of voter registration up occasions piece fell out of the big show why not just anybody to change their behavior i don't believe that has been pleaded and if you look at the press release itself it's cited in their complaint with a link it appears that are a way to rating on that press release they call it the we signature rule but that press release does not purport to announce a rule and it doesn't say anything about web signatures what the press release says is texas does not have online voter registration and i have sort of press releases that i agree with that the statute doesn't say anything and i think the right way to approach it is as this court did in t t p versus abbott because the question of course is is  secretary the proper defendant under expert a young and so i think you have to look at whether the secretary is charged with enforcement of the registration requirements whether they come from the statute or whether they come from this alleged wet signature rule and the answer is no on both counts the statutes specifically charge voter registrars in the counties and by the plaintiff's own pleadings they say they are eight to twenty nine but in four percent of the web signature rule will be left entirely to registrars unfettered discretion so either way you put it it doesn't matter the fact is as they've pleaded and as the law provides it's voter registrars who are charged with  take is that they go to restaurants going to accept online registration the kind of this case is kind of irrelevant because they can except it doesn't think system with what the secretary of state prior once said in this one seems to be living with it or she would it with all my i wouldn't agree with the statement that they necessarily can accept online registrations i mean i think the fact is that texas does not provide for online voter registration but the point relevant to the question here is that the secretary is press release didn't buy any one because it was merely a five votes that he gave you can't stop why don't they just go back to is that kagan well i think your question takes us to the critical point which is this is something that's done by the county voter registrar's and that that's all that needs to be established here because as the court s city of austin versus paxton where one state actor agency is charged with enforcing the challenge for vision and a different official is the name defendant our exports a young analysis ends and that's exactly where we are here and so county travis county clerk's behavior was determined by any kind of binding statement by the secretary that's simply not what's alleged pages to twenty seven and to twenty eight of the record in their complaint the time line that they allege is the press release came out the travis county registrar said i'm going to go ahead and accept these anyway and then later he changed his mind so all we know is that one registrar didn't think he was bound by the secretary for some reason he changed his mind but the question really is who's in forcing it and it's the registrars so if i could move to the nd part even if there were some particular duty here we have no demonstrated willingness to exercise any duty of enforcement because all we have all they rely on is advice or guidance and so we know that that does not carry constraint that is necessary to establish enforcement for purposes of export young and so we think that's where this analysis ought and and if before i run out of time i do want to quickly mention that the two points i made her dispositive but there's a rd issue that the court should be aware of and that is there will leave that they request is not permissible under exporta young because here they don't just request prohibitory relief against the secretary they do ask for that but that would be in effect because they want her to stop enforcing registration requirements in a particular way and she doesn't do that in the st place but what they really seem to want is mandatory relief requiring the secretary to take some affirmative action this is at our way to thirty six and to twenty one dollars on two hundred and twenty one dollars they say they want to quote instruct the secretary to inform all county registrar's that voter registration applications should not be rejected for lack of a web signature that's impermissible under export young as this court held  court cannot enjoin a state official to probably get a regulation or pass legislation and so the supreme court has made a similar holding a wife versus gordon so that kind of relief is simply not available either under ex parte young or princip federalism so it's not available here and of course declaratory in prohibitory relief are not available d because they're not effective against the secretary one final point the plaintiffs have now argue don't appeal that the civil rights act for vision they rely on abrogate sovereign immunity as we've explained in our reply brief that's incorrect abrogation determined by a three part test they have only discussed the nd part which is that there is a potential source of abrogation but that's not sufficient and in fact congress has not unequivocally made a statement of intent to abrogate and so that argument fails as well if there are no further questions   is abusing or abusing voting rights then the only recourse that she has is to ask a different state official the attorney general to bring a lawsuit and so we think that that's further evidence that she does not have been forced before in connection with the attorney general be free to say i'm not going to proceed with this lawsuit i know you have a complaint that you've been you've been about would be a violation but i'm not going to proceed i guess what i'm asking you is security comes forward seeking a rig and the law requires that she approach the attorney general about doing it does the attorney general have a question to say no i won't do i believe that he does your honor at least under the terms of section thirty one point zero zero five because that only says that the search secretary may seek enforcement so i'm not aware of any provision of law that would require the attorney general to take action if for whatever reason he didn't think it was warranted and so if there are no further questions at this point i will yield the lection actions which violate federal law and place of voters in a position in which they may lose their ability to register go right before the election or they may not be able to register at all the secretaries of state's office instructed voters that their applications were incomplete because they lacked what signatures and she also instructed us constitute a law we advise you to press release about this case which i would not do if i did yes just change i agree it's not a ruling however in this case the reason why we found this lawsuit is because of the results of the secretary's actions and the secretary's actions are not limited to just issuing a press release issued the press  step but the nd step which also is stated in the record is that this is the secretary notified counties and informed counties and asked them to notify voters that their applications were incomplete in other is what the secretary did was to notify the voters themselves and the county officials that the applications were incomplete and notify the county officials that they specially had to reject those application and because of that she is directly connected to the enforcement of the web signature rule whether the web signature rule arises because of her instructions alone or whether it's mandated by texas law the reason this lawsuit came about is because the counties followed her directive and as we'll as they followed her directive and because of that voters had their applications rejected and this is not only part of the record on page five of the brief there secretary states that they did indeed advise counties that received a rd party app that included the image signatures to notify voters that they get the applications right complete obtain and maintain uniformity in the application and interpretation of election laws and statutes specifically says the secretary shall obtain and maintain uniformity in the application and interpretation of election law bettas and a mandate the court did not consider that is because the court rely on a different provision which is actually a pleasurable here the court relied on section thirty one point zero two which provided the secretary of state  delve into and explore the reach of section thirty one three and also it's also true here because this case doesn't actually require the court to test the limits of the boundaries of the ex parte young doctrine the secretary of state is under a similar duty to design voter registration application forms under section thirteen one thousand two hundred and eighteen of the texas election code and she's also under a do not just a design forms but to include over the age of sixty five the form itself doesn't indicate that voters are over the age of sixty five other than that checkbox and that the same thing can be true for whoever straight in application in other words  other than an instruction that the voter must print and sign the form or instruction that the that the voter must must send an original copy of the form or any similar instruction that suggests that the voter may  the not the side where the secretary's duty to obtain and maintain uniformity was sufficient by its way and that is didn't go back to judge paine's original question at the outset of your something else what is the kind of the origin of this web signature or who is the that is that is in dispute the secretary claims that the origin of the white signature rose action texas election code and that's why we have challenges to the provision of the election code that the secretary claims imposes this rule as an alternative so our lawsuit actually challenges that the election code  reject applications that lack what signatures and the and the reason that is a place is because of the secretary of state's direct as we have all left the counties followed it that the rector of and that's why the secretary sufficiently connected to the enforcement of this provision but even if even if we don't get to that the broader justification for important we still have complaints this is the motion to dismiss stage and and we haven't had an option to present our full d evidence that we would words case to proceed to try this in essence there are two potential avenues and even more that we've identified a brief that connects the secretary to d the enforcement of this with signature rule so in addition to the the the directive to counties in the press release and in direct form is not in the record and to be candid with the court the form is not on the record because the form is not up one of the bases for the district court's opinion nor was it nor was it at issue below but we would argue that this court does have the discretion at hand acknowledged the secretary's duty to to prepare a form just like the court in texas democratic abbott in that case i will note that the parties are not raise the argument under section thirty one dollars the parties are not site the secretary of design of the absentee ballot application form has a connection to enforcement the court however was able to rely on that provision and the reason the court was able to rely on that provision is because the argument the fundamental arguments that was saying the secretary has the authority to judge gray's question i believe assumes that the design of the form is not unfortunate so quick and this court held that an avid a design firm is important but to get a suit assuming that it wasn't for some reason the actual litigation by the attorney general is the last step in the unfortunate when the secretary of state is carrying out her duties under section thirty one point zero three to obtaining uniformity state it's not limited to the secretary of state but it is hard it is part of the express story given to the secretary of state in other words the secretary of state under thirty one point zero zero five  to to see commanding this relief in order to protect the voting rights of citizens of texas and that can take many different forms but the secretary has employed  used that for you like that provision in order to enforce the election code and the secretary has done that on on a number of occasions including recently and in the state the hollands which which is a case that alternate alternative basis specific with respect to the civil rights claim of the the materiality provision this court has already found that the voting rights act abrogates sovereign immunity the civil rights act accomplishes the same purposes specifically with respect to the jury out the provision accomplishes the same purposes indeed the provision itself is part of a series of of provisions that were meant to public statement alone cannot stablished authority to enforce d likelihood of the forstmann enemy familia vote this court held the power to promulgated a law is not the power to enforce and so the press release cannot establish before either step of the export a young analysis neither can the responsibility to design forms that's for two reasons st that argument is forfeit was not raise the nd it's not the right analysis in any case because here we have a specific official who's charged with enforcement and a different official whose names the defendant in t p versus abbott the challenge provision did not identify any  sources and so the court had to look further to determine whether there was an enforcement authority this case is like city of austin and the analysis and the st step the problem with their case here is very similar to the problem in mi familia vote an injunction against the secretary simply won't get them the relief they want because the voter registrars who enforce these rules will still be bound by the statute say the application must be submitted by personal delivery by mail or by telephonic facsimile machine but the nd point and really the more important one that's not on the merits is that application is going to the voter registrar it's go it's not going to the secretary and so it's still the voter registrar of responsibility to determine whether it complies with the statutes and whether that voters eligible  so i mean i think this just goes back a little bit more to the merits which i don't want to spend too much of the court's time on but there's no way this web signature rule that there are positive it's simply not the statute says what it says and the registrars enforce it i want to also address my friend's statement that there are a range of tools available here i think that really highlights the critical point assuming there are a range of tools available which i disagree with that there are enforcement tools none of them have been used here so even if they could meet the st step of ex parte young they can't establish demaris demonstrated willingness to exercise the duty to enforce and hollins doesn't help them because it only proves the point in hollins that's in force one of a different statute in different circumstances and city of austin holds that is no evidence of likely to enforce here and so the absence of any such activity in this case only underscores the fact that there is no enforcement activity no willingness to enforce and it demonstrates the secretaries of title sovereign immunity the district courts denial of her motion to dismiss should be reversed and the courts should instruct the district court to dismiss for lack of subject matters