brown for their problems good afternoon mr brown and mr henderson i before we begin i do want to assure you that the panel is prepared for the case today we just have the one case  good we have read your briefs and because we are prepared we would refer to it please spend your time arguing the most critical issues in the case we will assume that arguments that are not argued that are that are not made today that you c it must elect candidates or at least it must attempt to like canada so that is its premier object in order to of all in order to achieve that objective your honor on to fairly achieve that objective when the libertarian party isn't hostile to a level playing field and that's what this case is all about your honor a level playing field nothing more nothing less a litigation for some time in researched some time on historically ohio is one of the not the poster children if you will for a bad politics or keeping minor parties off the ballot  libertarian party is going to have a harder time attracting supporters because they are not going to have the opportunity to serve on the spot is that a fair assessment of how this nets out practically in your view and thereby have your on level as the republican party democratic party whoever finishes st and nd yes slots on the election commission i mean that's it's level is it not no more snow your honor than saying that african americans are on a level playing field with whites when they are prohibited from attending schools well the argument would be are we got a law that says you are a minority race you cannot go to school you can become a majority race has a much democratic party and then the democratic party in the weight party and then the republicans became more prominent than the whigs and i mean i think things change over the years and there's nothing to say th libertarian party will not become a major party they're not prohibited from it it's based upon the democracy that the vote was famous true with religion your honor speaking of one can change religions but that didn't change the fact in the supreme court so help a law that says a minor or a new religion is treated differently just as bond just that much violates the constitution as a law that singles practical grievance here is that you were members members of your party can't become members of this commission and therefore that's going to make people less excited i guess about joining the libertarian party am i past harm as well as what you've described i think which is future harm both exist in this case you have it your st amendment injury is not whatever the commission did in the past right i mean you're seeking prospective relief if i recall real and so that the harm that we're focused on in this case is prospective and the only thing i see is frankly what seems to be a highly attenuated argument that you can have a harder time encouraging people to join your corporate including nonprofit contributions on a non egalitarianism uses to candidates and parties well that was a huge that in my opinion of that's what cost us three percent of the vote in two thousand and eighteen if we had corrupted i'm ok i just want to understand like practically what worries you about this and that that answers it so thank you not that your honor we're in the midst of a very contentious election final now obviously some have not gubernatorial election but we still have is that's where you win and when you begin winning those races you can then when the top of the ticket well mr mr brown if if we were to adopt your argument and say that the requirement that the members of the commission be members of the two major political parties if we said that that requirement was unconstitutional how would members be appointed me right now they're appointed i think by the speaker of the house of the one party and the leader of the other party how would you how would you have us appoint the members i don't think this court has to do that right now your honor i were asking the court now is to say ohio's current they just can't do it that way the ohio election commission does understand why have the power to farm these cases out prosecutors they could have done that with our kids just chose not to so that would we could have the our elections commission just farming out the relevant cases prosecutors alternatively and ok i thought i thought it was the membership of the commission that was the problem so if we say that members membership is unconstitutional we have to reconstitute the the commission is unconstitutional no take no can even if national labor relations board so there just is no commission if if you if you will oh it would be the commission who just could not it would be structurally unconstitutional and it would be its actions would be void again if you if you look at noah cannon but international labor relations board that was the case with the supreme court invalidated president obama's recess appointments the national labor relations board and what the supreme court said what would what would make it constitutional we who posed to me would it be if the it's if the settlements member was  merits this court's press and u s supreme court precedent show there's not a st amendment problem with ohio choosing to structure this part of its government in a way to maintain partisan echo boys from this one corner of the state government libertarian chance don't have anything pending before the ohio elections commission and also not on the record but i think they have stopped their state appeal that would go up as a normal administer and repeal the state court system it could raise an issue like that so i think we're view on that and as the st amendment is the countermand ohio's choice to structure this one targets government as well briefly on the article three point libertarian party is not identified any member other than the other planets mr thomas who is willing and able to complaint when he has some office with the libertarian party he he could have chosen to resign that office where he chose you know selected for the commissions i don't really see how that's an in appeal so how would he be expected to garner evidentiary support the district court when he did not even know it was an issue well i guess just by looking at the statute and during the hearing going through the various things that could be barriers allow me because of that and i don't want to spend all the time in article three certainly would react to that and i could continue answering questions about it but if we do turn to the merits of this court's president especially peterson versus dean i think shows the way to go by thinking about this question and the answer so peterson go with tennessee election officials and they were really two rungs on the hierarchy from the election officials here and the court said this court held in one case that supreme court has said and held at least in summary opinion on this issue as well so in ranty the court said it would be obvious this were not mine obvious and having two election judges from the two most successful are used  judge the goings on of the polling place would not be a st memory problem and despite the rest of the case of course being an anti patronage decision the court said would be obvious to have the kind of balance that we have going on here one of rejected a challenge to the ohio board of election structure which back then as today in the gym made up of four members to harm each of the most successful parties in the most recent or elections so  to put some rush hold in place i don't think you would benefit libertarian party or the other minor parties that have been on the ballot from time to time in ohio well and i'm really just trying to see where how how far this  bo before it becomes a problem in the end if you have if the parties are split thirty five new just what if the parties hit i'm sorry for interrupting your honor you know that might raise interesting questions i don't think you would change the analysis but we're far afield from that here with you as my friend mentioned libertarian party didn't even have a three percent threshold members was on the true most successful parties of the ox and the chair of the commission switched back and forth every time the chair stepped down and that the general somebody decided that it really wasn't workable to have that constant back and forth and they really want others that i mentioned was in michigan in tennessee that have this balance and don't have a spot for a minor party it is a ballot box that determines the membership and that is true  actually comes before them but something like that just be a predisposition is not specifically in statute and i mean there would be a potential danger generally that if the composition o a commission that in some manner regulates election activity were limited to the two major parties that they could use that power to have parties like the libertarian party t keep them down and not allow them to become significant competitors and if they're you know keeping the libertarians off the debate stage it's it's it is a there's a bit of tension between on the one hand keeping them off the debate stage and on the other hand saying your honour's the commission has very much of a role ballot access primary is all sorts of things as my friend mentioned down ticket races all of that stuff is not in the realm of the commissions or been many other lawsuits about these topics the threshold to get on the ballot thresholds for holding a primary these are things that are outside whether you have one libertarian out of seven or one green party member out of seven on this commission and so on i think in terms of building harm from a particular situation i think there should be litigated coming out of that decision and this is not something that is in our brief just a call to mind a case you know supreme court decided by the texas optometry board there an optometrist was complaining about the makeup that is just a complaint about the structure of the border wall that's kind of in a different category so those summarized that point your honor the main thing is that when we went to the retiring party success are not things that come before the commission and particular decisions that thing at least in the marion county courts where i said you got to be pretty much major party in order you know a lot of mr brown i'm familiar with peterson versus dean and that tennessee case that's wrong and that's that concerted county election commissions it's my understanding that the county election commissions were for members of the majority party and three members of the minority party but isn't that pretty much what we have here and that's to see there are there are a couple of states in fact if you look and ok in peers and vs being both my majority opinion and judge clay's dissent we all we both fly l ron and we both concluded that being members of the time to see election commission or category fo employees or category four appointees and therefore the the st amendment challenge to do not survive how do you how do you argue against