may please the court good morning and good afternoon to you judge gibson my name's dennis mclachlan my principal assistant city attorney in the city of tucson i represent the city in this matter and i will also be speaking on behalf of the opportunities to speak to you i realize that under frank thirty four either this is discretionary with the court and i realize the court's time is valuable and i appreciate this to last thursday i was pretty clear what i was going to begin with i've since received mr cheney's motion and i would like to ask the court would you prefer that i address that motion first or my substantive points i mean this motion we have we were offered a stipulation after this motion when he and that would have effectively said the same and words and i would have signed off on it and i do not want to do that i don't believe we can tell this court  for getting panel initially under frappe thirty five c that was not followed here and so you get to your question i believe that uniter is a useful case for our side in that it talks about geographical distinctions and that the state can make geographical distinctions as to have in that case having land use decisions made by persons who are elected versus not elected in different areas but uter i have problems with saying that utor controls of this case and let me tell you specifically why first of all uter was a challenge to a federal statute under the fifth amendments equal protection proponent of the due process clause we have a challenge to a state statute under the fourteenth amendment as you're well aware in that case there was a compact which was being entered into by both the states with the consent of congress and there was a certain level of federal involvement specifically i believe the search  a culture was going to point at least one of these commission members who were not elected in our case so one point is that you have supremacy clause issues which i think judge schroeder addressed although i don't think anything was addressed a great length in that case when she said is there a problem with state and local rules being over rules and she said well yes there could be a problem except that the what i read the script is the clause the federal law would simply control here we have an issue that i think is much more historically left to the states is the creation of a state's own municipalities specifically in the four circuit with incorporation and i say sion we've given you other examples geographical distinctions were ok could i ask you this question i've been trying to formulate petition for direct but in this case it was a petition for a vote yet this with a side issue here so then the legislature imposed constraint on that by saying however if that group of folks who themselves as a potential new town with saying and they petition to have the vote on that whether that town should be incorporated and they get all the necessary  or a group of persons who wish to hold an incorporation of election and that those are the true groups you're distinguishing between depending on where they are located they both want to have an election yes  d what the the law says is that the state is allowed to rationally creates distinctions as to what they have to do before the state will said that in fact a petition does not have the same level of protection as a vote in its say because it's not really the same as a vote i think you make a good point about it being a vote to have a vote let me address because that's a that's an important case to to understand specifically as to why it doesn't apply here in hussien what was whatever you want to call them because they had a consensus both as voters and as property owners they treated them with the in the district do frankly depending on whether they can senator or not they got money if they can send it basically and this court and i think rightly so we have a great concern here about vote buying that that with the end this district they are burdening the right to vote where that's different from our face is that we're dealing with two separate groups of people one of whom in terms of the equal protection analysis one of that's six miles down and one of whom does not and they both want to hold an election in our hypothetical but they are not the same group and what the voting rights  it is perfectly ok for the state to say as the as they do here you people in the urbanized area need to feel have an additional requirement that you meet you have to get  the most direct case allowing the geographical is the adams case which was affirmed by the supreme court the the most direct cases on saying what a voting rights issue changed probably because of concern on voting rights but they never change the idea that geographically the state could say we rationally have a reason avoidance of fragmentation of  even though those people pretty incorporation are all part of the same county pima county in this case yes they were and by coming together they are self the finding themselves draw you draw your lines of your prospective town and everybody who's a qualified elector within those lines if you meet all these other requirements and we say you can hold an election if we like to call it everybody votes but not so not everyone in the county votes that's another thing that i think the appellant's of trying to confuse the issue is what the electorate is here and the electorate in incorporation election is the people within the proposed boundaries and then as you said they self define in terms of where they are when they ask the state for an election under the statutes so your argument is that the equal protection  is the voting rights analysis kicks in only once the unit is fined and then your examination is to the electoral unit that's been created and if everybody within process the voters are saying we want to vote to put this that is if you create a petition as a voter we want to put this on the ballot an entity in this case to say no but what we don't do is interfere with the people trying either to vote or to get the vote there's no nothing in the record you do the and there's there's no voting rights discrimination in the same election within the district correct as long as you're in and urbanized area now the other way you can do it this has no application here but if you had tried to be annexed and they had refused to annex you then that would be another way you would  you would have to go get the consent but fundamentally on our facts you're absolutely right you are if the court has no further questions we feel that the district court thoroughly and correctly analyze this and we've asked you to