good morning your honors me please the court my name is deborah archer and i represent the plaintiffs appellant in this case as this court has previously held it will be the unusual section two case in which the plaintiff can establish the three jingles preconditions but still fail to demonstrate vote dilution under the totality of the circumstances this is certainly not one of those unusual cases not only did the district court find and the defendants concede that the plaintiffs established the three jingles precondition but the district court also found that the plaintiffs established the two predominant senate factors the existence of highly racially polarized voting and that no black city council candidate has ever been elected in the challenge wards ha chose a city council war plan that was the least proportional of several available options rather than adopt a war plan that reflected the changing demographics of the city of hattiesburg which is now a majority black city there are problems with the other proposals there was the one proposal that would that even council a nailer opposed because it would carbon districts too much and then there was nailers plan that would carve up the university mississippi area which is sort of a considered kind of its own group and so i'm just i realize there's always another plan but if the idea in redistricting is also to try to keep groups of interest together you know not have the river go across the river and go there you know to try to keep sort of geographic and groups of interest to gather then are these other two plans really violin one of them liz i said councilman naylor didn't even support your other similar responses to your your question yes there a section two violation at that stage there would have been an opportunity to develop an approach a plan that the parties and the judge thought was appropriate but also here the defendants conceded the jingles factor that an appropriate majority black district could be created so we would argue that there were several plans that we thought we think respect traditional redistricting principles also important here to remember that in order that it's not only that they didn't pick the best option the district court and the city council here adopted the plan and that was the least proportional out of the valium billable options the only plan that allowed for the white minority hattiesburg to retain sixty percent of the seats on the city council it's also a plan that packs black voters at really high levels and into just trick seventy about seventy five percent voting age population in those two districts in order to create three safe majority white city council seats again in a city that is plagued with racially polarized voting and that has never elected a black candidate from a majority white city council to see have elected a black candidate from the city itself before the city became majority black so i realize that's not the city council but the mayor is the is on you know the city council and or is the head of it if you will and leave the city so while i realize it's exciting as it's not as exciting as to say voting for president obama or some very different election so how do we analyze that realizing that we're reviewing a district court not doing our own about you ation in the first instance and here we would say the conclusions reached by the district court the factual conclusions are clearly erroneous as to the election of the marriage is correct that  has a black mayor and he was first elected in two thousand and one his election in two thousand and one in two thousand and five although at that point black voters were not a majority in the city in two thousand when in two thousand and five there was a much higher but turnout rate for black voters than there was for white voters and i believe that the combination of the higher black and white voter turnout rate along with a very racially polarized voting is what was able to help elect the there is also we would argue that the election of the marriage has a limited relevance to whether or not the city council were playing violent section two and whether or not a black candidate could be elected from and majority white were stipulated to by both sides are not heavily contested maybe is a better way of putting it so you get the points and of course the fact of the mayor so what standard  factors dischord identify with the two are most important etc so underneath that my question is i take it there's no factual dispute that we should be honing in on it's accurate to say that the facts are largely not in dispute in this case and we would argue that even if we take all of the factual factual findings of the district court that the district court was still clearly erroneous in finding that the plaintiff had not established  violation of section two hundred the totality of the circumstances a very helpful case is this court's decision in clark versus calhoun county the second time this court heard that case and in that case there were very similar factual situation the plaintiffs have a stat had established the jingles preconditions the plaintiffs had established racially polarized voting and that no black candidate had been elected in the challenge districts also in that case the district court found that plaintiff had  socioeconomic factor because although there were disparities based on race on socio economic measures there was significant black turnout also in the district court found that the tenuousness factor in the plaintiff had failed to establish the tenuous factor in the plaintiff had also failed to establish a lack of responsiveness and in that case the circuit said that the district court was clearly erroneous in finding that the plaintiff had failed to establish intersection to given that factual pattern that's very similar to the case we have here where we it's not in dispute that the jingles preconditions have been established the district court found extreme racially polarized voting often in many election one hundred percent of black voters voting for the black candidate and one hundred percent of white voters were voting for the white candidate it was established that no black candidate for city council had ever been elected from a majority white city council district although we dispute in the end the district court's finding on the socioeconomic factors on responsiveness in tenuousness even if those factors are not weighed in favor of the plaintiff there is no basis on which to find that the to tell you the circumstances analysis was not met as to how we count the mare that is the district court found that the election of the mayor had very little probative value in determining whether or not a black candidate could be successful in a black ask you this if we are going to make this more of a legal question and i'm not sure i agree with that rubric but let's walk with that for a minute we're going to say the facts are largely undisputed we're going to make this a legal analysis at what percentage then you have only five city council districts and that makes us a little harder than if we had a hundred or so someone's going to end up on the short hand in a racially polarized voting town right so at what percentage of the population does do we swing to giving the sixty percent to the minority group when it was previously in the wipers unfortunately there this court and from the supreme court and from other courts so what we have here close here though in terms of the populations it's not as if it's you know seventy five percent black or something like that it's it's fairly close when we talk about the voting age and so that's what i think the rough proportionality we can debate what that means but i think that's what the court's trying to say is it's kind of hard because somebody is going to be on the short end of the sixty percent if we assume the racially polarized voting that you that you've asserted and so here you have i think it's forty seven percent of the voting age population is black or eight  proportionality i think the case might be different again assuming this no no real fact dispute argument and with all stipulation all at if you had a higher percentage and so at what point i mean if we're going to announce a rule kind of as a matter of law understand what the rule is the law their district courts can understand it in city councils frankly can understand it because they're very well aware of these cases as they sit there and try to do these maps so what is the rule that we would be announcing that you would feel would be appropriate in this kind of five person city council scenario and it is a difficult situation there when it's going to be the rare case where the proportion of seats is going to match exactly the breakdown in population but here there is no basis to justify the minority white population getting sixty percent the seats and the majority black population getting forty percent you did mention the relatively small deviance in voting age population the black voting age population is forty eight point five percent and the white voting age population is forty five point nine eight percent but what is even more significant is the difference in total population and blacks are fifty three point nine two percent of total population and has byrd and whites are forty point four eight percent of total population so when you focus on total population the deviation from proportionality becomes far more clear because you have a group that is forty percent of the population exercising control over sixty percent of the seats it's also important here to recognize in the district court did not is the difference in the voting age versus the just total population the fact there's a lot of children so i mean are they going to grow up to make the voting a population do they i would imagine that that is that the difference is folks who have not yet reached the age of majority and indeed grandy the supreme court did recognize that there's a dispute as to whether or not when you're looking at proportionality sid you look at voting age population or should you look at total population and they decline declined to resolve that dispute but again so if we're going to be looking i mean again we are as a federal court being asked to interfere in a in a duly elected city council's d constituted decision and to do so we have to do so under some basis which here is the the the voting rights act and so i guess i'm questioning if i'm going to do this is a matter of law i'm trying to make sure i'm understanding where this matter of law comes and since we can look at the voting age or rather the city council in an acting this can look at the voting age and the voting age numbers are very close can we really say as a matter of law equal opportunity to participate in the electoral process and elect candidates of their choice and i would argue that just looking at that two percent voting age population does not give you enough context to make the determination of whether or not you're providing an equal opportunity again here it's about a majority as well but people are a majority of the population in lulac versus perry the court there found that the adoption of a plane and their private prevented the new  majority latino majority from exercising political authority just as they were able to become a majority within not allowing them to have equal opportunity to participate in that trial process here that's exactly what we've seen just as a unusual case where the three shingles preconditions are stablished yet there is going to not be a violation of section two based on the totality of circumstances however this court also said in calhoun county that the district court must explain addressing simply the proportionality of the shore of the seats that are on the city council but there is much more the analysis when the rubric under which this court spoke to make its decision is a determination of whether or not the minorities are prevented from participating in the entire political process to the same extent that there are no minority counterparts can where there are any specific facts of facts supporting that other than the statistical a your honor there were several facts for example that voter turnout which i believe was one of the key issues that this court recently in v z versus abbott was looking at and of course this court found that there was a violation there and texas and so there is that distinction but to interject brown's claim it's question and try to address yours as well judge there was expert testimony showing not only that the voter turnout was greater numbers as matter of fact in some elections  expert testimony from the plaintiff's expert let me ask you this if you is there any of the three so called white districts where a greater turnout on the part of the black members of that district could in fact not totally without probative value ok so let me ask you this because this is what's really bothering me is if we were to send this back you all have stipulated that you could draw three african american voting age population that to me is different from answering whether those would be at all in keeping with sort of geographic groups groups of interest like eversley mississippi you know whatever and i don't frankly know very much about had  i've seen you know the word gerrymandering came from the fact that sometimes you draw these kind of crazy things where people from very different parts of town are suddenly being joined in whatever it is that what would be required to get this third shortly before she sat down was whether or not this plan was offered that did have a majority minority district and it was mr naylor one of the city councilman who's african american had requested that such a plan be created he had one for the plan that i've just addressed the did have a majority black and then there was one other for what's called the sea pack plan so there were there were three plans in one of them did achieve that and obviously that is one of the there as a discourse recently i think as early as this year maybe last year in gonzales versus harris county talked about the interests of maintaining communities of interest and traditional boundaries of course it was also citing as authority this cour earlier opinion in the fairly versus how these very case from eight years ago i think the schools where this case has been here before the manged major principal factual changes the population shift so mr naylor's plan would have in fact divided some that's a good question for the city council but i know that the two guiding factors the city council were looking at when making their decision to adopt the plan was honoring the one man one vote principle as it was referred to a trial by the city council president and at the least change in the record on page twenty two seventy seven and this is the pre clearance submission to the d o j from city of hattiesburg contains a chart which actually shows the deviations that would occur  only the total persons change in per ward but the number of voting precincts it impacted and whether or not there was a negative impact to historical different district the plan that was adopted resulted in six voting precincts impacted the fewest of any plan that was offered and three thousand five hundred fifty two persons changing wards mr naylor's plan there were there were alternate versions of it but the one ultimately given presented to the council the city council was that it would violate traditionally district in principles of the city with the district court and using this court's guidance was trying to be very careful to determine whether or not a section two violation occurred not which plan was the best plan well and well and that's a fair point too but if we've previously said don't split up the university of southern mississippi and the neighbors plan does put up university so the mississippi then is it fair to criticize the district court for not this morning about some of the other plans and that's that is one of the things i want to talk about this idea of maximizing the majority excuse me the minority vote question just before you get there i mean looking at them and how they're laid out got something else in this case and this map didn't at least appear to be any kind of extrinsic you know barriers per se so we're looking at just a typical subdivision population layout sort of where people lay more oil at where people live more or less not you know well we got to you know pull the river out the middle of a set or is that basically it's a when these experts thought looking at the layout of where people live they're not having to factor out you know some in you know some variant of middle it just looks like a way out in the city you said the major difference eight years which is what i guess population growth is what you're saying there are the principles actual change between this case me inside the minority population of the city and there was a decrease in the number of white voters in the city so when the and i think your honour's right some of the principles that the experts do want to own or do involve traditional boundaries of traditional historical had one of the incumbents would have been written out of her own ward and plan been adopted she would have been able to run for reelection so that was a obviously something that not only the experts for the city of harrisburg wanted to make she was owner but the plaintiffs did as well when they realize that they they wanted that corrected so preserving communities of interest not only in historic neighborhoods but also people know where they are where they're going to vote on election day where the precincts are going to be they know which where they there's going to be some shift obviously but you know i'm just wondering in terms of communities of interest when we're talking about a city versus congress for example united states congress there's a lot less regional there certainly regional interests in congress i'm not doubting that but the city council is inherently region regional the barn down the street from my house that i'm tired of looking at that's an eyesore that's really really slow coal and i want to be sure my city councilman understands about the barns i don't want him living you know twenty miles away somewhere else i have no idea about this barn does that so does the fact that it's a city alter the calculus a little bit versus congress or some other group where you know your street is sort of less relevant well i would agree with your honor that the that the communities of interest within a city probably do carry a little more significance when in the context of a city council for example one of the areas of testimony was concerning and this goes to the responsiveness factor underneath the senate factors of whether or not the twin forks project had been get which is located in a minority part of the city whether that project had been given responsibly the same level of attention the same level of tax  dollars how many of the city council votes actually phone racial lines three to two well the plane is probably on a stack of city minutes this big the district court analyzed four years of those minutes and found that out of two hundred five votes five of them fond of came down racial lines and or i scuse me five of them or three to two and of those only four came down racial lines that's two percent of the two hundred  that there has to be an intensely local appraisal of the sides and again this court in the gonzales versus harris county also says that you have to look at the local times this is something that where you have got to show a practical evaluation of past and present reality has been conducted and so and and i don't want to take you further off track but i think this is on that track and when we were talking earlier when judge stewart was asking about is this really kind of the facts or sort of undisputed so kind of this is more legal when we're talking about a district judge who lives in hattiesburg or at least works and had his work and therefore is much more aware of the intensely local aspect should we be more deferential to that even if there's not a whole lot of disputed facts when we're talking about like if we see the totality a little differently then the judge on the ground should we defer to the judge on the ground because of the intensely local nature or is it really more of a legal point once there's not a lot of disputed facts i think there's a difference given to the judge on the ground should really be bound to the record that was presented in for the the intensely local examination an appraisal that was conducted by expert witnesses as well as the lay witnesses themselves and presented to the judge that's of course the fact that the judge lives there may make him a little bit more well connected in his understanding of things but i believe the district court issued its opinion purely based on the relevant evidence as it was presented exogamous selections and i want to say this quickly and then i'll sit down because a judge change us to question about this earlier i want to make sure it's known that the plaintiff's own expert who submitted three is the comment that counsel opposite made early home about the difficulty of are the rare case where the jingles preconditions act like you know you got to really go that far back to you know to find to find issues either judge when we first tried to tend to the score some seven or eight years ago hi looking at this i mean sometimes you get these cases looks like there just is no solution you know they just got to be teed up and so how to clear a look at the way he's a lined up and in the in the population in look basically like you though in terms of eight years of population growth whether that eight years was occurring so in each one of the five or whether it was occurring you know in one particular area that was sort of doing things  asking you know whether the growth occurred throughout the five so even without it you kind of still get that same thing a whether the growth was in a particular area that made this sort of insight i think the re problem was born five just large geographically because it had the bays and the time it was created to get a zero african american majority ghostface there was an indication that african americans had overcome on the socio economic factors which had prevented them what relevance does any of this have to our consideration here beyond obviously it's a factor in we in we have the factors what are you trying to say that this change is about the discussion we've had today that as you case well well i mean if the interesting thing to me is this past pre clearance and that one did back when we had pre clearance i guess we shouldn't care because pre clearance is gone but does it matter does that alter the analysis the fact that you have a pretty active department of justice cutting down a lot of different rules under pre clearance did it cut this one down u that case there was a predetermination that the maximum number of african american serving districts possible should be f as i just have a few points i'd like to address first to begin with that the history that opposing counsel spoke of in that race is racism is no longer part of hattiesburg just took to point out the public schools in hattiesburg are ninety percent black and they're still under court order to desegregate the expert witness some have the plaintiffs and the district court discuss the extreme and deep socio economic disparities that exist between the black community white community in education in employment in housing on where exactly all of the growth happened but i do think it's important particularly in light of opposing counsel saying that we are seeking to maximize districts in fact what we would like is a fair district and i think a fair district in plan would recognize incredible growth in the black population having clearly articulated it but between one thousand nine hundred eighty and two thousand and ten the black population who by seventy four percent while the white population declined by twenty eight percent in order to accomplish think that point is that sometimes that happens by moving around people moving in people moving out and sometimes it happens by there's just people having babies and relatives moving in say with people and so on so where that would be growth let's just take my block if the person next door has five babies that the group the population has grown but we're all in the same place versus five different people moved in and out and so on i think that was the point that was being made is is how what are we talking about the kind of growth that maybe keeps neighborhoods the growth is happening sort of within the block or the group is just all over the place people moving across town and people coming in people moving out and all of that wherever the growth is happening first it's important to craft a plan that recognizes that growth growth in the way that they responded to the growth here was to play path of the black community into two districts it's seventy five percent which is extreme packing i think if in fact you you know i've seen these kinds of maps where they went over here to grab this street and pulled it over but where were the segregation if you will is just the nature of where people live i think it's harder to accuse the council of the packing there may be packing that it may just be the nature of hattiesburg and that maybe remnants so on are part of the segregation you spoke of earlier i'm not saying it happen for a good reason but nonetheless you have the problem of the breaking up of communities of interest in all of that that i still think matters regardless of all of the other considerations absolutely respecting traditionally destructing principles is important in that there's equal opportunity is also important and here i think it's important to separate two questions and one is a question of liability and whether or not the plan that was ultimately adopted violates section two and the second is a question of remedy and whether or not any of the plans that the plaintiffs proposed or the last two plans are appropriate remedies whether or not the plan that provides an opportunity district is an appropriate remedy or whether there's some other remedy all together the district court didn't make findings on appropriate plans and whether or not it was possible to what do you do with the argument that if if we basically tell the city council they have to you know if it's forty percent seven percent voting age after this but what do you do with the argument that that then becomes racial gerrymandering kind of in the other direction where's that balance because again i want to be sure whatever we do it gives guidelines for people who are acting honorably courses always be people act dishonorably i don't know that that happened here by anyone but i'm simply saying how do we give guidance that avoids overt racial gerrymandering and in an inappropriate fashion respects community interests and makes sure that there's as equal opportunity that it's so important to talk to me about that i think the courts have given that guidance when they said in the supreme court has said that the portion of the factor kid never itself be dispositive and we're not arguing here that proportionality should be dispositive that the sixty forty split is what this court should make its decision on we are arguing that there are many factors that the supreme court has said that we need to consider and when you consider all of the factors it demonstrates dilution not that proportionality standing on its own although we do believe the factor weighs in our favor  to be here or is it all above where just help i'm trying to ultimately are asking that the court enter judgment in favor of the plaintiffs and remand for appropriate remedy and we do believe that even if you take the facts as the district court has found that what  same maps same experts you know trying to visualize like you know well judge there it says here we are game gathered together you know with all our maps and so when i'm not trying to be facetious at all  trying to just factor in my head other than the fifth circuit three people you know say you know do some them trying to visualize what that is is it more expert is or another playing and see you know within finding on what an appropriate plan would be if there was a violation of section two so if this court was to find a violation of section two it would be remanded to the district court for a fresh evaluation hasn't it hasn't happened there was no sex lining on what what an appropriate pla as opposing counsel mentioned when you're looking at section two you're required to take a holistic look at the facts on the ground at that time and the facts are very different now than they were then as we've discussed in fairly one black people were less than fifty percent the population and they were about forty percent of the voting age population and today their majority of the population and and a plurality of the voting age population so this court would need to take a look at the facts given the changes since the court heard fairly one message or what the present status of the federal indictment against robber unfairly you are i don't know that the answer to that question but we're happy to look into it and provide you with a response thank recess and come right back