good morning ladies and gentlemen our first case for argument this morning is quinn against the chicago board of education electoral system that excludes that sets up an election process in the state which excludes far more of its black and latino citizens than its white citizens when it closes up that process deporting five percent of illinois black citizens thirty seven percent of latino citizens but only eleven percent of its white citizens and that section two should apply to illinois school boards state school boards that are creatures of state law and subject to intellectual russ's mandolin your view must the commissioner of police also be elected  impact on the citizens of the state if chicago has a law that says that the citizens of chicago would not have liked the place of her intent and it would apply equally to everyone in chicago would be a chicago law applying to equally to all of its voting rights act required pre clearance when states moved from a point of systems to elected citizen systems and we know that in irby versus virginia state board of elections the fourth circuit said looked and of course the sixth circuit has said there is no such need the fourth circuit is no there's no such meet i was just wondering whether there was any case that had ever come out your way the sixth circuit has next and more has come out the other way and we have submitted that that decision is wrong because it's based on a wrong interpretation of chosen versus wrong or the fourth circuit decision is consistent with the argument that we have made here because the movement to an appointed system was done without any racial impact and it provides at least implicit support for the argument that we're making here that when there is a movement to an appointed system with a racially disparate impact and there was none in the present your case then there would be a  of section two furthermore in the fourth circuit case you know durbin must take counsel i also don't understand this whole argument about racially disparate impact no there is no voting for the school board in chicago no blacks vote for it no spend x vote for it and no whites vote for it but every black every hispanic and every white votes for mayor or is entitled to vote for mayor and the mayor appoints the school board it's a classic case of indirect election you know how are blacks treated any differently from whites in the way in which the school board is appointed well and in respect to chicago everybody is excluded two requires that the courts look at the totality of the circumstances if the school board election process has been eliminated and if the city council is not even allowed to weigh in on who is going to be on the board as  had the city council way and to just the election of one single official at a city wide level to make these decisions and in a race that had many others where the mayor has many other responsibilities than just governing the school but this is an issue and the children and the voters of the city on the same basis that it exists throughout the state there are eight hundred fifty nine school districts your honor in the state has been all but running understand chicago is different but we've got actually quite a lot of cases saying that it is within the power of the state of illinois to have a different rule for chicago you know we would have to overrule quite a bunch of our cases to say that you're cargo has to be governed just like every other city but this is section two so of the voting rights act it's not a constitutional claim as in those other cases and that we have a very specific law that is set up here that says if you pass a voting procedure at a state level everybody's entitled to vote for the mayor people it's a change from direct election to indirect a way that i understand but i don't understand how there's any disparate impact because the desperate impact is with respect to impact on anybody in every other place you have election for mayor and school board in the case of chicago it's just the mayor where there is a much broader voting district that dilutes the boat your honor would only look at say chosen persons wrong or there is a classic case where the supreme court took down a procedure that had that expanded the district in which blacks could vote and found that that was a vote dilution of minority voting power i understand that many people don't like the voting rights act and they don't like its focus on limiting opportunity of african americans and latinos to elect representatives of their choice ever there was a case where this statute applies in its literal terms it's this case and if you would allow me just to read the statute here for a second section b of violation of such subsection any is establ stay on the totality of the circumstances this isn't a formalistic inquiry it is shown that the political processes leading to a nomination or election in the state or political subdivision that's either in the state or political subdivision are not equally open to participation by members of a class of citizens protected by section eight in that its members have less opportunity that other members of the electorate and that's the state electorate to participate in the political process and to elect representatives of their choice that is literally what is happening here and if this court disagrees with the policy of the voting act and thinks that indirect elections are just as good as direct elections fine but that's a poor molested decision that is it odds with what this statute requires which is a focus on the effect on the impact and what is clear here is that voters in illinois don't have the right to elect the same kind of representatives that everybody else in the state has the right to elect that's wrong that's racially disparate and that's what the voting rights access and if it were done by racial intent and the defendants say th statute doesn't even apply if it's if the city if the state of this with racial intent if it is done with racial intent the supreme court in chisholm versus romer says it has to violate section two well if the legislature set up the system with racial local board did not write this law it's not responsible for enforcing this law that's that is correct no remedy can be granted against the chicago school board well we felt we had to do it because if we had an election procedure we'd have to have them in that so that in terms of crafting the remedy it was important to us to have the chicago elected school board it but your honor is correct we could have brought the suit just against the state of illinois and it was only for procedural reasons that we felt that we had  it's the state of illinois it's primarily against the state law we're not challenging any local law we're not challenging anything that the city of chicago if it doesn't want the nepal elected board it's for perfectly free under the voting rights act to get rid of it the city of chicago can pass a law that says we don't want to have the city council perhaps god perhaps it has to be done by referendum but that would be a law that applies equally to everybody in the affected electorate there argument act only applies to a state law that affects state offices not local offices that's the crux of their argument as to why they aren't covered by the voting rights act of because it's it seems clear even to the defendants that there's a huge difference between voting for the school board and not voting for the school and their argument is that it only applies to state offices but if that were true first of all this these local boards are state offices they are created by local are created by state law the election procedure is all done by state law but if that argument were correct then the defendants then the state would have majority white boards can vote for a board of elections but not majority black boards because it only affects one locality well that's that's clearly a violation of the petite the moment and it's clearly a violation of section two of the voting rights and why do we know by some interpretations you could bring edmund burke in here for example to think well maybe it's better to have virtual representation and direct representation or representation of the higher level than a lower level but the point is that the voting rights that are being given to people are not equally distributed in the state and you can't make a comparison between election for mayor of chicago and the right of people in hinsdale and waukegan and every other place to vote for the specific people that they want to have governing the education of their children ask any parent as to whether or not there's a difference in these two voting procedures and they will tell you and that's the essence of this case where we also have a claim which i haven't really gotten to under section under the fifteenth amendment saying that the one nine hundred ninety five act was an act of race discrimination because it targeted in one nine hundred eighty eight act which specifically and i mean specifically talked about empowering black and latino citizens to determine who would run the school board at a time when the board was under a desegregation order and it replaced that system by turning up and dependents admit there was a racially tense atmosphere at the time with the system where the white mayor had all the power and i understand your honors point that maybe this case is just about the merits of power but it is about the merits of power when the mare is white and the people on this process were largely black and latino and the law was passed to make sure that the white america had much more power than they did and in the context of the desegregation order you turned the process by doing this and i'm referring to the state of illinois here you turn the process over to a white mayor who was expected to be there forever and look at the result this is what we were trying to get into into in the complaint in the district court look at the result this appointed board was less accountable than the board that existed when the desegregation de facto segregation i should say  indicate that there is a violation of that it is scarce not discriminatory necessarily is not discriminatory necessarily but it was here and that's why we needed to attempt to debate to present our case which was that all the schools were all black schools the kids were transferred other all black schools in more remote areas the gentrifying areas were freed up and we while the black student population has dropped dramatically the segregation of these schools has continued this in a sense not the end more as a complaint not to necessarily about desegregation or segregation but about how the school boards are run you know it's about how the school board w structured in a way that it wouldn't would continue this if this is official history of segregation you have to look at the court record about the segregation de facto segregation of the chicago schools to understand why the general assembly picked this mechanism which in place of the local school councils in the one nine hundred eighty eight act was tailor made to continue that segregation and to underfund the schools by keeping it unaccountable to the people whose children were attending the schools and who wanted those schools to be better and racially integrated and we didn't have a chance to present that case that was thrown out at the pleading stage the federal courts are supposed to be guardians of civil rights and it was exactly in the context of the history of segregation the segregation decree the changeover from a process that the harold washington people wanted in place to integrate the schools to one that ensure that wouldn't be integrated it's all of a piece you have to look upon that as part of the totality of the circumstances when you're making a to talladega of circumstances determination which is just what happens in arlington which is just what arlington heights calls for we alleged all five factors of the harlington heights case it's set out in the break all five can't we at least have a hearing you know it's just not what role the sexes set up to do no we didn't follow the rule thirty fifty six point one statement but we got the very respectable complaint quite a long one the detailed a lot of the racial segregation could we have done a better job sure i'm sure we could have done a better job and i'm sure in retrospect we could have outed a few more details here and there but we laid out a case that a federal judge in race discrimination should have allowed us to present at least present and that is really what is going about this decision it's ma'am please the court your honor plans are challenging articles thirty four of the illinois school called which by its express terms only applies to cities with populations of over five thousand dollars so five hundred thousand people so applies to chicago article thirty four states that cities with populations over five hundred thousand szell have one school district that the district shall be managed by a board of education and that the members of the board shall be appointed by the mayor in one thousand nine hundred five the legislature passed section thirty four three of article thirty four section thirty four three remove the requirement that the city council approve the mares appointments to the board it also limited the nominating commission that was first created in one nine eighty eight for the purpose of providing candidates from which the mayor was supposed to select a point to select new members of the board the plaintiffs claimed that article thirty four and section thirty four three there in is unconstitutional because it denies them the right to vote for members of the board on account of their race and because it deprives them of equal rights on account of the race plaintiffs also claim that section thirty four three violates the voting rights act for the same reason because it allegedly denies them the right to vote for members of the board on account of their race plainest claims fail for two simple reasons that your honest questions already indicate identify the reasons and then explain them the first reason plaintiff's claims fail is because plaintiffs don't have a right to vote for the members of the board the second reason it fails is because plaintiffs rights to equal protection are not violated by section thirty four three because there is no discrimination as your honour's indicated on the basis of race section thirty four three is race neutral all the citizens of should though black and white are treated the same nine have the right to vote so why don't plaintiffs have right to vote for members of the board the board of education of the city of chicago is an independent political subdivision of the state of illinois created by the state as a supreme court has said on numerous occasions when states create political subdivisions like the board they can give those subdivisions whatever powers and structures they deem appropriate in the case of the board the legislature determined that members of the board should be appointed by the mayor and ever since eight hundred seventy two when the board was created the mayor has in fact appointed the board's members thus chicagoan never have had a legislatively created right to vote for board members and they have no such right to vote for board members by the illinois constitution as held in people or verses deatherage chicago and also have no right to vote for members of school boards under the federal constitution not only is no such writing clue did in the federal constitution the supreme court has affirmatively recognized that the constitution does not guarantee said that they could use elective systems appoint of systems or designed systems where in some areas of a state school board members are elected and in other areas of state they are appointed in light of the i've just described establishing areas where there are no voting rights like the illinois legislature did for chicago is permissible and its permissibility is clearly demonstrate added by the six circuit cases of mix and more which plaintiffs attempt to distinguish just by calling them wrong well they are wrong in both of those cases the sixth circuit rejected equal protection challenges to the state legislature's decision to replace election systems used to pick school boards with a point of systems not only did the sixth circuit hold the establishment of an appointed system constitutionally permissible it did so despite the fact that in all other areas of the states and were michigan and ohio the elective system for picking school board members remained intact so mixon and more not only show that there is no constitutional right to vote for the local school boards they show the mixed systems of a point in some areas of the state and elective in others is fine and constitutional diminish the sailors holding our had lee and avery these cases are in apa said because both of those involve situations where the state legislatures had created a right to vote but they failed to adhere to the constitutional provision and requirement of one person one vote so in those cases some people's vote counted more than others and that's not constitutional in both of those cases the statutes that were being challenged were deemed unconstitutional more significantly or equally significantly both of those cases had me and avery cite to sailors for the proposition that and a point to system where there is no election at all would have been justified i'd also know that all of the plaintiffs attempt to diminish the sailors holding by reference to hadley and avery they don't mention sailors in their brief sailors is controlling precedent their failure to mention sailors and more importantly to distinguish it is grounds alone to call their appeal frivolous and subject to dismissal for that your argument limited to school board or would it apply the same way to local governments were in a council were not really making that administrative vs legislative distinction that they talk about that's another argument that the just misstates arguments the only argument we're making is that in this system where there is an a point of system and always has been a point of system you don't apply the voting rights act let alone the fifteenth amendment because those two grounds for their claims obviously require there to be a vote in the first place there's not the voting rights act doesn't apply when there's not a vote it's elected in districts because section article thirty four says that cities with populations over five hundred thousand have one district and that one district is governed by one board five because i was about to ask if there were pre clearance for that move yet maybe but that's not the case and earlier ok so it seems there's no constitutional or legislatively granted right to vote for the board plaintiffs can't challenge section thirty four three based on the voting rights act because to prove violation of the voting rights act like i said a plaintiff must prove that one racial group has less opportunity to elect representatives of its choice than another racial group and since there is no election relative to the board the voting rights act does not apply it also does not apply because plaintiffs are on able to show that there was any racial group that had less opportunity to elect the representatives of their choice because as your honor pointed out a couple of times all chicagoans are treated the same no one elects the board no one has been disenfranchised because no one was in franchise the first place that's exactly right and for those same reasons the fifteenth amendment doesn't apply because it only relates to voting rights and you have to show discrimination to show a violation of the fifteenth amendment and again there's no discrimination because section thirty four three is racial neutral and by definition does not distinguish between races so that leaves plaintiffs claims that section thirty four three violates their rights to protection because they're treated differently than white so they say this claim also fails because section thirty four three is race neutral there is simply no different treatment among the relevant constituent which are the city residents of the city of chicago players equal protection claims also were properly dismissed by the lower court because section thirty four three passes constitutional muster the district court found that section thirty four three did not violate the equal protection clause of the camp constitution when it dismissed both counts one and count four as your honors know in plaintiff's complaint they challenge section thirty four three on equal protection grounds in both counts one and count four and the district court did dismiss both counts and plaintiffs chose not to appeal the dismissal of count one therefore they chose not to appeal the determination by the lower court the section thirty four three is constitutional and we don't believe that in light of their choice not to appeal count one they should be allowed to make an end run around the determination that thirty four three is constitutional by arguing an equal protection claim account for but even if they could properly appeal the equal protection claim in count four it still fails because section thirty four three is in fact constitutional under the law statutes are presumed  be constitutional to overcome the presumption a plaintiff has to satisfy the requirements of the test by which a state statutes constitutionality is a bally way to the rational basis test used by the district court is the test that applies to section thirty four three it applies because section thirty four three is neutral section thirty four three does not apply to a suspect class which point it's admit and it does not involve a fundamental right as i've explained earlier therefore to prevail in equal protection claim plaintiffs had to show that section thirty four three fails the rational basis test which they could only do by showing that there was no conceivable legitimate state interest for which it could have been passed plaintiff's couldn't make that showing because there are legitimate reasons why it was passed as the legislature indicated article thirty four was passed due to the educational crisis in chicago public schools it was passed in furtherance of education it was passed to make sure board seats were filled as opposed to being left open as they had been and it was passed to make the mayor accountable for the board's actions so section thirty four three easily passes the low hurdle of the rational basis test right this is this is just the count one argument and moving on to the intentional that they purport to ok you know so we don't have a challenge on appeal to the dismissal of count one that's right we have a challenge to the dismissal of the race based equal protection claim that is correct not the generic equal protection clause correct so plaintiffs attempt to get around the conclusion that the rational basis test applies to section thirty four three and that section thirty four three passes that test by arguing just actually different kinds of claims that's not right not as an attempt to get around one well it is an attempt to show why the rational basis test doesn't apply to the valuation of section thirty four dashed three it's a race based discrimination claim and they do that by trying to satisfy the arlington heights requirements and it's to the two points you need to keep in mind with respect to that race based claim first because the players elected to stand on their complaint if this court finds the complaint deficient then the players still should not be permitted to amend because they their failure to seek leave to amend in the district  rt means that they waive their right to seek to amend their complaint in this court the second point to keep in mind regarding the race based claim is that to state a claim of intentional discrimination claims had to allege fact showing the legislature passed section thirty fourth many with an intent to discriminate in other words back showing that at least in part the legislature was motivated by an invidious purpose of discriminating discriminating against minorities and as plaintiffs admit in arlington heights the supreme court reiterated that showing a statute has a disparate impact on a particular racial group is not sufficient you have to show intent this court has previously to consider whether article thirty four was passed for such an intent in the herne case in one thousand nine hundred nine in the court determined that it wasn't then relative to the arlington heights factors plaintiff's claim that they have satisfied all the the time they relied on statements of a national public figure that has nothing to do with the legislative motive at the time they relied on the history of segregation in the schools thank you it's our position that the voting rights act doesn't apply because this is not a statewide office that the voting rights act would only apply if it with a slight election and that's not the case if the general assembly passes a law granting a right to vote for a local office than the voting rights act would apply to ensure section two would apply to ensure that there was no discrimination with respect to an election for that local office here the reason why i have a question about the state's position with respect equal protection claim ok the state has been named as a party in its own name and their official capacity claims against the state the equal protection claim is shown being brought under forty two u dismissed the members of the illinois state board of education and plaintiffs did not appeal that so they're out of the case ok who in state government enforces voting laws if this is a voting rights challenge who's the usual them and that claim as you mentioned that claim cannot be that they cannot sue the state under the fourteenth amendment right but i think if we were to decide that the plaintiffs should prevail here and the case should go back for a trial rights act challenge and the relief as requested is that the us j h be ordered to rewrite its laws with respect to the chicago school board selection process so who not entitled to that belief under the underdog i understand your argument on the merits i'm talking about who's the right defendant should your argument not prevail on the merits of the case go back for a trial and do we have the right defendant in this case ignore state law and implemented a system that does comply with section two given the supremacy clause a federal judge can order chicago to follow federal law despite conflicting state more i don't seem to follow the law and federal law takes precedence over state will not all that hard are i just want to emphasize that in this mix and in more cases we're not just saying they're wrong we explain in our briefs why they're wrong they rely upon chism of all cases to hold that you can move from an appointed system to an elect changed is that the city council used to confirm and pass the budgets and that city council role has been removed from the system so that it's only accountable to the mayor but our argument is not really vote dilution although we discuss that in our brief because we think this is going away oh form about dilution but it's really that the part of our argument is the disparity with other citizens of the state and i just wanted to emphasise our view of that