exception is this court has repeatedly recognized that exception applies only when a plaintiff can show that a given defendant has both the particular duty to enforce the statute question the demonstrated willingness to and to exercise that eighty eight local officials do it well the secretary is empowered to send advice to and take questions from local officials or not advice is neither compulsion nor constraint and because only local officials can give plaintiffs the relief they the real world relief they want the injunction against the secretary cannot possibly provide places with that relief each of these three deficiencies independently requires reversal of st the secretary lacks the particular duty as to what i think you're implying your honor i expect that after the secretary issued an order and sort of use these informal requests and gave advice that we think you're violating the law she might very well ask that the attorney general file suit under th two points i heard your several questions judge graves regarding whether or not the attorney general would be intitled to say no from what i can tell you about other portions of texas law there are under certain circumstances mandatory shall represent statutes so for example for the public utility commission of texas there's a provision that says that the attorney general says shall represent the p c in a variety of cases given that i'm unaware of there being a comparable shall represent obligation of the election code and given that the  tourney generals are constitutionally independent elected state officer i understand that that would remain his discretion as to whether or not actually to file the suit but even given that even given that judge haynes as you pointed out this court has had about twelve of these kinds of cases and doesn't simply look to see who in the end by be able to sue which by the way of course the answer is the attorney general not the secretary the question is who actually in the real world implements  preemptively sue the attorney general or the secretary of state depending on the facts of the case in the given election go provision and instead that they have to resort to state court remedies to start with or they have to wait for a minimum again depending on the specific pro where we get the city of austin step two and it's not clear who enforces it it names no one and the sec and the attorney general has threatened to sue over it then perhaps the texas democratic party might be able to avail itself of expertise against the attorney general but the fact that the democratic texas democratic party strongly has ayers there to be one statewide official who's a server positively of all suits for statewide relief doesn't mean that state was structured that way and quite frankly that's exactly the argument the supporters rejected several times and my friend on the other side the previous case insinuated the texas democratic party didn't consider or didn't approach the question of whether the secretary's duty of uniformity under section thirty one three connected her to sort of paragraph on the part of it or to young and it would all turn on whether or not the secretary has demonstrated a willingness to force but of course that's not how again but i have two thousand of the use of i'm out and more to the point even if we put aside city of austin entirely and we know or that local officials are the officials name you still get to the fact that this particular question and answer booklet basically is the furthest thing imaginable from a threat of a lawsuit i mean the h p th circular that was put plaintiff is making but it seems to me that in the other case they were arguing that the secretary of state the predecessor invented this when signature were just there were in the statute in this case they seem to be arguing the different and yet both sides seem to be arguing that kind of these cases will come out the same way what is your answer david these two cases necessarily come out the same way i think that we're pointing out makes this an easier case your honor though obviously i believe the cases come out the same way for reasons for the city of boston the total lack of anything like the for example just to be to be colloquial a threat of a lawsuit but here even the plaintiff's complaint points out that it's h b eight hundred and eighty eight dollars that they really have a problem with a lot of its own force directs local officials if they choose in their discretion to have temporary polling places in you know their relevant election jurisdiction but they have to keep them open for eight hours work for very low it what it right on the assumption that there's no other collateral federal state law restriction on that particular depending on which voters are served by each one you can imagine there being other kinds of claims in play but i don't know of any reason that would be illegal just off nor nor do we need them to be the states of litigation so i have no reason to i have no reason to understand whether they're true or why they'd be true in nd because of the more important point which is the secretary at no point stands up these temporary polling places she doesn't have the numbers on them because she doesn't do that ever for any reason no injunction this court could issue could possibly give plaintiffs what they actually complain about which is you know putting it colloquially that they want tents on campus so that would be easier for ms gilby to vote and so that's just tents or it's not working well where they could just be a client yes that's precisely right your honor local officials have one hundred percent discretion as to whether or not they choose to exercise these in the st place indeed that's what makes this this case such a powerful comparison with the familia vota because my friends on the other side have tried to raise the argument effective well you know this law takes away their discretion and we've got this affidavit that says that that disproof they had the discretion they would be they would set these up again which program there perhaps some of them would choose to print paper ballots perhaps some of them might or might not but injunction against the secretary since the secretary on her own could not result in anyone issuing paper ballots and didn't guarantee any county was going to use them means that well not only that but it is not legal travis county clerk if i defer to your honor about how travis county's internal governance structure that sounds right to me but not only that paragraph sixteen and seventeen of the travis county can't create opposing sides and she hasn't threatened to enforce anything like you know a lawsuit or something out of order against them those litigation errors are fatal and the secretaries and title sovereign immunity is there stone is it in the stat that this court selection cases are some wide disharmonious when it comes to the question of the secretary of state community or standing well you're under the state's view is that we take this court's precedents of course as a given that having been said i wouldn't disagree that there are there is some tension among various lines of cases here and there how much how my the panel if they were inclined how  it's experts a young doctor which i don't think is necessary to decide this case frankly you start with that that city of austin test and look to see whether a given provision names someone to actually implement the real world thing and if it does then again it's not saying that it's not saying that groups like the texas democratic party can't sue it's in the cigarette official and this is in some sense this is this is much ado about a particular litigation mystic that's inherent in this case and b and to would have been repeated around or could have been tested in a different way so you start there i think a lot of the concerns about the edge cases about what happens when you have an election code imposes a restriction it doesn't actually name anyone to do it that's when i think this court has to get into sort of a you know it looks at a practical real world who actually really ends up imposing a word or threatening it you know the sort of twenty two parts asked who has a particular duty and who actually in the real world is doing the tours and i think that nd test of cities of city boston is where this court deals with those edge cases in sas to make some hard calls on one side of the line or the other but luckily enough for purposes of making a sort of free floating the secretary is always right argument this court already shut that this what's already precluded that's been decided that might be an easier rule indeed it obviously would be an easier rule but it's incorrect under x p young itself in the sports rejected it multiple times i think of this court hues to that test it's going you know there are going to be hard cases there always are between that that sort of particular duty filter and looking to see if anyone's actually done something with litigation i think that would serve this court well author no further questions want to start off by responding to a question that judge change raised about about the what seems to be about the redress ability of the relief that we see and i want to point out your honor that the declaration makes clear that this law if the eight hundred and eighty eight has resulted in county clerks not offering the same number of satellite early voting sites that they did before the law court give up more money and they could still do the chance that that certainly is a is a possibility however what we're required to demonstrate here is that the relief we seek  and that is not unprecedented and i also want to respond to mr stone's comments regarding sort of free flowing liability for the secretary of state that's not unheard of it's actually the law and in some instances because under this course decision o c a the court o c a general houston the court specifically stated that the secretary of state or the invalidity of a of an election is without question traceable to be open with this and at least eight hours i don't see that on its face it's causing problems it's only maybe the back to travis county versus some other county where maybe they're not having well on its own it faced a problem  causes if that it eliminates the discretion of county officials and the living the discretion of county officials to select satellite early voting sites for fewer hours than the eight hour maximum that is what  challenge when it impacts a significant number of voters but before i complete that point i also want to point out that you know a bit beyond that i want to get too far down the merits because the analysis here is is really driven by  secretary's the fence that she's protected by sovereign immunity and there are number of their number of cases that reject the secretary's position a frisson of the secretary suggestion that there is no that there is no minnesota attorney general was was enjoin from enforcing the law before the law even took effect the reason that the law went up to the supreme court was because he attempted to enforce the law after the injunction and it went to th petition in other words d even the supreme court did not believe that there had to be an actual enforcement action in itself to trigger ex parte young doctor nor does this court if you look at the  the attorney general's a letter to ny can a chemical when you look at the attorney general's letter the letter itself isn't isn't compulsory the letter itself doesn't impose any liability but the letter is this sign  that additional in force who is a foot and the letter constrains and that's the same thing that the secretary of state's advisory does here it visor is not a lawsuit they advise it is not impose any any legal consequences but this has not at any point helped that legal consequences is this the line of which law is that become sufficiently enforced to trigger ex parte hot why doesn't mean familiar vote control this case of the secretary has no connection to the establishment of temporary action occasions and the secretary has no connection to the days an three which imposes the duty to obtaining and meeting before me and that there was no discussion of any actual act of the secretary took that demonstrated a willingness to enforce and that's and that's a key difference from that declaration that they consider to be binding that advisory crosses from a cross is from general instruction to an act of enforcement and as as i mentioned the enforcement of these provisions occurs through various means it's not limited to just the last year and when the secretary begins to issue at five years and gets you issue instructions on how to argument that there are local officials who can force the provisions and and they are beyond your propre defendant because that's what it appeared that mr stone suggesting but that's not actually what the law of the circuit if you recall once again in texas democratic party v abbott the court noted that other officials were involved in force and specifically the local county officials and concords were responsible for reviewing absentee ballot applications nonetheless notwithstanding the fact that the one just as a practical matter lissa's on the determination is that the secretary is it connected and then you need to sue the county registrar's whoever these individuals are as a practical matter is is instructed to avoid under the text the action code for instance a letter gets messy to an individual count here to just to enforce the specific provision or to challenge specific provision in those counties and that would and that could lead to disinform need and the application of certain provisions unless the secretary were were step and you could also have a situation where if we if the court adopted the secretary's interpretation are too young and a just to ensure that an unconstitutional law is not implemented in texas meanwhile the texas secretary of state already has the affirmative duty and mandate to ensure that the l if there were a lawsuit that the pend it on on the facts as applied counties and perhaps you would have to see all two hundred and fifty four dollars but if it were a lawsuit that challenge of a law like for instance a voter id law which would be implemented and in every single county then what the secretary suggesting there's a law like bat could only be enforced in federal court by suing all two hundred and fifty four dollars townies and what in a single lawsuit or suing each and every county individual or perhaps even soon some counties a lot others resulting in an inconsistent application of the law that is the result that the secretary sovereign immunity argument is sitting here and that result is specifically what this court last i don't see on its face and i am not you know i realize i don't have all the briefing i'm not trying to rule out what the future might be but at least given what you all have lead here and assess it seems that your argument is based upon travis county and maybe some other counties that have been sending tents or whatever to the schools more than it is based on the ocean that this isn't saying somebody of a certain ethnicity or a certain i think that there is a additional aspects to the claim that may result from that additional aspect is actually the withdrawal of discretion and that's uniform across every county in the state in other words all two hundred and fifty locations to place for a certain number of days in order to best serve their communities and that loss of this question is is the target up the loss or is a target of this lawsuit and that's uniform across the county and that injures plainness because it makes it more difficult to to engage or to to carry out mobilization efforts if if counties cannot react to some of  their communities needs as they come up with counties have no discretion to react d as they did before and that also causes a burn on the right to vote and their number of other injuries that we've identified in our complaint and so without them into deep into the merits there is an aspect of this that is official challenge which is that the now of discretion across the board and so we're not simply asking the court below to place a polling place here are over the point place for a certain number of hours we're asking to restore our county discretion and that part of what makes this a facial challenge as well so in addition to the practical consequences of the of the art of it sovereign immunity claiming that the secretary has has left here there are a number of reasons why this court should be checked their argument when looking at all of the other cases and look at the spectrum of cases that ha acknowledged the fact that not only is a general duty potentially sufficient when a company by specific enforcement actions at the more specific than the general attorney general jury that has been ascribed to the attorney general and the governor to uphold election that is a more specific and that is a provision and a duty that actually ties the secretary to the enforcement of election laws in a way that the duty to uphold the law generally does not necessarily tie the attorney general to every single it's not necessar and overreach to suggest that the secretary does have the specific dewey to enforce the election code and whichever provision is is is at issue here and that has actually been recognized by by the supreme court and ex parte young the supreme court recognized that best duty can actually come from the general or it can also come from from from the overarching overarching responsibility with respect to a specific aspect of the law so there is no cid there is no reason to suggest that that this court cannot infer you cannot designate the secretary as the official stone suggestion that it may be the case that there is nobody to sue and that plaintiffs need to seek relief in state court that that argument again it is that war with precedent and secretary of state and what peter said done and seeking relief in federal court is similar to what point is have done throughout it throughout throughout the number of cases in federal court and under various federal laws and the federal constitution so the practical consequences of this would be to end that practice and to to create a situation where plaintiffs have to seek relief against individual counties or all two hundred and thank you your honor so i think my friend on the other side is actually sharpened up our disagreement to one key question which is whether or not this court is free to or should deem that under section thirty one point zero three the texas secretary of state is in fact the enforcer of the entire election well this court doesn't write a blank slate it's already rejected that argument multiple times st to turn to your question judge will it regarding  side is proposing here namely that the uniformity requirement of section thirty one of three specifically ties basically the secretary as in force or to the entire election so he's just mistaken texas democratic party rejects this as well an opinion by believe judge southwick specifically discussing that the texas election code by its nature divides some responsibilities between the secretary and some between local officials and that's why this court requires a quote provision by provision analysis in determining who the correct official if anyone directs r t m might be to sue so to the extent that my friend has teed this up as a dispute between whether or not this court is free to take it's that's already been foreclosed by precedents wearily and is yes well no it this early stage it's a little hard to tell your order but it doesn't seem to be it doesn't seem to be harmonious because the very nature of the claims they're raising are going to vary from county to county right it's by necessity of a particular of a particular voter particular student given where the plaintiffs in this case says on my particular facts and circumstances i need temporary voting places to be here or there or whatever might be relevant because otherwise it imposes an excessive burden to me that's by necessity of a burden that attaches to that person and maybe a handful of the similarly situated people you know to put it to sleep what might be burdensome and necessary in harris county and whims and county and uvalde are just not the same not the same and the justifications of those various counties might have for having temporary only places one place and not another are would be the same so it's a little hard for me to tell because their theory seems to simply be they want h b eight hundred and eighty eight dollars invalidated and sort of the rest of the procedural rigamarole them between two isn't of great concern so it's hard for me otherwise to answer your honor i can respect i can speak to one question of yours the judge approves regarding what sort of a practical difference i think as a practical matter just sort of describing what would happen if plaintiffs were required to sue individual counties is that when they sue the county that really sort of is adverse to them really believe that they're wrong as a matter of of policy and law you end up having a real lawsuit in front of a in front of a federal district or something on that order it go up and then the positions we tested before this court and if this court sustain an injunction sort of on the merits i'd be willing to bet very few counties are going to want to act in the teeth of an adverse th circuit ruling against one of their local county clerks that's just as a practical matter that's how a lot of this litigation proceeds its own as a test case the test cases eventually ruled on and never an x accordingly the fact that they're not allowed to sue the secretary because of section thirty one point zero zero three as a sort of free floating in force of election code well that's a fortune from this case from doesn't change experts a young law unnecessarily to hold these these plaintiffs to their carmen's the city of austin if there are no further questions of happiness i'm happy to see the few seconds back