morning may please the court jeffrey harris on behalf of plaintiff appellant don henson under the california voting rights act race and race alone is the determinative consideration in assessing whether a municipality may continue to use large election systems the c v r a requires california cities to abandon at large election systems and move to buy district maps soley based on the existence of racially polarized voting that is when players you aren't are protected groups that are not based on race under the act yes but it's not so the act does not require movement from single district to the multi district solely on the basis of race it can record on other bases to  that's correct but i don't think there's any allegation with respect to power way or most of the other candidates but you but if you just made a statement that isn't true the act doesn't require redistricting solely on the basis of race the act may allow race as one of the bases for requiring you to redistribute but there are many others yes your honor but of course if there is racially polarized voting which means simply voters of different races tend to prefer different candidates that is the trigger that says you may now no longer use your question in this may have been resolved by our prior minister but it troubles me no one ordered poway to redistrict private lawyers send them a letter saying i'm thinking of suing you and they decided quite sensibly i think why go through the trouble of will redistrict how does that translate to your ability to challenge the act this your honor is precisely the issue that's already been resolved and is now law of the case a year and a half ago and i know i the case but it's the same case so we we have the ability to change the law of the case to tell me why it was right yes it was right your honor because the whole c v r a scheme including the fee shifting provision including the safe harbor it is designed to put a gun at the city and say once these things once you even get an allegation you have to switch or else they're going to be serious consequences which could include millions of dollars of feet is and so i think as we as we explain our brief in city after city after city the ones that defend then end up because it's virtually impossible to refute they end up with seven figure attorneys fees awards against them and so this whole mechanism especially again the fee shifting and the safe harbor are designed to achieve one dollar thing only which is to as soon as there's an allegation council members and now he is in a district that was drawn solely for racial reasons to address racially polarized voting and he can now only vote for one since he's a district racially gerrymandered yes absolutely why it is because that district would not even exist if not for the trigger in the c v r a of racially polarized voting so that's your only contention of why it's racial as we don't say if the line were here instead of here so and right if we were just looking at this district but assume they form four districts and you're just looking at the district you would not have know are you making a racial because you refer to racial gerrymandering throughout and i'm just trying to figure out and i wanted to ask you directly are you making a racial term ending claim here we are making an equal protection claim based on racial predominance and so we are drawing on the same principles in cases like shaw and miller and the cases those cases have a deliberate lie in on the same principles and so let me just ask can you point to any case that has held that premise seen  statutes a liability on the existence of this is racially polarized voting is a racial classification i think so i think cases like bartlett which talk about infusing race into every decision which the court the supreme court said would have serious constitutional concern so and i want to take a step back the reason the c v r a targets racially polarized voting the theory is that if racially polarized voting is happening if voters are divided up into districts it gives protected classes more influence and so that is both a racial purpose and a racial effect and i think the interveners and amicus morgan kooser are quite candid about this they say the purpose of the c v r a is to increase the influence of protected classes and now maybe that's good policy maybe it isn't but it's a racial classification that has not worked for me proposed the california statute for what it was intended to do california statute says i have a town in which the minority population let's make it all hispanic for purposes of discussion is forty nine percent the anglo population is fifty one percent they have an at large voting system and that means that the city council is always all anglo california this is a matter of policy we don't think that's a great thing so we don't want to have single district voting systems in there that we want to system then don't racially gerrymander the districts once you go to two multi districts just do them on on geographic bases we want to go to a system where that forty nine percent of the population has more of an opportunity to elect people on the council your position is that's percent unconstitutional a couple questions there let me sort of unpack those california as a matter of good government for race neutral reasons could have decided just to ban at large districts altogether but we but what it can't do the greater doesn't include the lesser here just because it could have done that people have asked my question why not why can't california say at large districts are a problem we're not to lean on people to do away with them where they don't result in the under representation of any protected group defining protected group broadly but in those cases where they do as a matter of public policy we want them to go to non racially gerrymander individual districts why is that wrong it's it's because it's still the trigger when a policy when a major policy change that that deprives voters of their ability to vote for city council members is yes to that was the st question as i understand it let's assume is one hundred people in the city before your guy got divorced he was one that he was one of one hundreds and now he's one of twenty five there's four why does he have less influence he did before slots because those are removed in a set aside he can't vote in those three districts anymore so he just lost his ability to support to elect three of the city council members so he has twenty five times more influence with respect to the one member that he did before right and i guess you could say the same to and i think you can make a similar analysis in most cases of racial gerrymandering where i think there are always this is my problem is you don't you're saying you're not bringing a racial gerrymandering case i understand if there's racial gerrymandering my argument is look my voting has been light light ability to do something has been reduced because i've been put into a district improperly but you're not arguing that you're arguing that the motivation for the gerrymandering was racial so i'm trying to figure out even if that's so how your client was it i here's the way i would say it again i want to measure yes or no no i have to find my terms st if i get if i gerrymandering you mean if i gerrymandering you mean we are a lot of arguing that this line is in the wrong place we're not bringing that but we are bringing a racial predominance claim based on the same cases that are considered chip traditionally considered the racially jeremy's and those cases avar it's supported what you just argued hearing absolutely they say when race predominates over all other nonracial factors you have the exe that exact argument and said that it's not going to if you don't have to show a bizarre shape you don't have to show failure to comport with traditional let's take there's five districts or four districts and therefore no four districts and are any of them drawn racially all of them are your honor i don't mean you're argument i take it is that in the aggregate to the decision to go to multi district is a racial determination yes you're not arguing that any of the four districts suffer from racial gerrymandering evaluated independently are you we have not studied those lines so i don't know the answer if you haven't studied it you can't be arguing ok so your argument is that the decision to go not the particular lines that were drawn your your to argument that that the situation to go for a multi district to from single this or to multi district is impermissible yes and here's a great way to choose a great way to get your argument yes ok and here's and here's a good would think of this runner  imagine the reverse imagine that powell and the poet had used by district systems and then switched to at large and said we're not going to do districts now everyone is elected citywide there's no question that a voter in that scenario that's a very common type of vote dilution claim people say un to at large to disadvantage minorities who are being too successful in the electoral process and so there's no question that these broader issues about the system of voting can absolutely give rise to an equal protection player that's why i'm going back to california's policy california says gee there are a lot of equal protection problems with with single single and large district election actions lots of mouth and so we want to avoid them so if you if you're perceive you're having those problems city we want you to go to the better system which is move to the district tell me again what's wrong with that your honor if there is racial predominance it doesn't matter if it's a benevolent purpose a malevolent purpose the affirmative action cases that adarand type case i mean even if they even if a state has a perfectly noble true a stick motive if it's using race as the determined a factor that has to satisfy strict scrutiny and so prophylactic motive we often been sued about single districts that large districts spend lots of money being sued about that we almost always lose so if you've got one dollar of those that looks like it's acceptable to challenge as po may have had just to move over to the to the legal ones quickly so we don't have that problem is that is that unconstitutional i think you have to look at cases like ricci v to stefano for that there has to be in order to use race in that context i think there has to at least be some strong basis in evidence which the state would have to show i think under potentially and maybe they could satisfy strict scrutiny in that circumstance if the state if the state says there's a history of discrimination in these specific ways and we've adopted a narrowly tailored remedy to address those types of things that may well survive strict scrutiny such as again the supreme court has said section two can require the drawing of majority minority districts when needed when when when it's a remedy in a direct type of harm but here racially polarized voting by itself is is is just a fact it's not a constitutional to me are you making a facial challenge or an as applied show we're doing both your honor so we're saying you didn't do it did the previous panel too since you're relying on them so heavily so you could only bring it as a blow job which yes well we're so against the attorney general we're we're challenging the statute facially and saying we're asking the court to enjoin it but as to as to p in your honor and this is why i think it's we do think we can bring a face we do think that in the vast we think we would satisfy the celebrities but here's what actually doesn't matter practically that much what happened here is what i would consider the benchmark scenario and so when you look in our brief of all the cities it's easy to get a demand letter and then they have to cave because of this very draconian remedy scheme and so if the court were to hold that what happened here has to meet strict scrutiny because the c v r embodies racial classifications that's going to cover the mind run of cases so great so you're making it as apply case see i don't i don't see how you can bring a facial challenge it once we once we agree with each other that there are situations in which the statute may be applied constitutionally yeah and i'm happy to rest  and they had other options they had other options they could have they could have done a very variety of things they could afford it there's no record of racially polarized voting here so how do i impute a racially racial motive to them simply because they said  i don't want to be involved because it all still flows back at all still flows back to the c b r a because they would have gotten that letter in the st place but when the c r a sunday times anytime someone makes an allegation based on the c v r a that's sufficient yes if when can a jurisdiction use race to address prophylactic lee potential racial harm and there's a whole document you know that's why we keep asking you about the racial gerrymandering they didn't use race to set up the districts you  you agree about that they only have the districts because of race yes the lines were nice but the lines were not right as far as i know the letters were not just the way they didn't use race to draw the lines i don't know the end may have been motivated by by concerns about being you set up non racially gerrymandered districts you are liable under the equal protection clause ricci v to stefano which is about the new haven firefighters test the state i think the city gave a test to  firefighters as a job qualification and then when it didn't like the racial results of how that test came out they abandon it and one of the arguments the city made was we needed to get rid of this to avoid disparate impact and the court looked at that very closely under the equal protection clause and said when you take a great case that was a state action the state gave the test and the city abandoned it here what the city did was simply redistricted motivation may have been to avoid a lawsuit but their actions are much more indirect district court held the group the distant were granted the attorney general's motion to dismiss and said we couldn't state an equal protection claim against the attorney general and then all we set is with respect to the city and the interveners if the district court appl that same reasoning to those parties we conceded that we would lose on those as well so we don't we don't concede we don't think was based on weaknesses in the complaint we just think the district court said we think incorrectly that we didn't state an equal protection claim that you c but you were bound by the allegations in the complaint of course please the court i'm joshua kline on behalf of attorney general basara i'll be taking twelve minutes for the attorney general then ms gomez will take six minutes for the intervenors and mr offense to mocker will take two minutes for the city and i expect to focus on why there is no equal protection violation here in this gomez's particularly focused on the remedies under the c v r a and comparisons to the federal statute the key thing is this that any person in how way has been treated differently than any other person in power a on account of either person's race he therefore fails to state a claim that the events in power they violated equal protection and the existence of a constitutional application of the statute in power is also fatal to the facial aspect of this claim the case is reflected in important distinction on the one hand strict scrutiny is appropriate where the government treats people of one race differently than people of another race either directly or through the use of a proxy for race that's what all the plaintiff's cases including bartlett including hill including the racial gerrymandering cases stand for in contrast but but he doesn't allege anything like that in power way and his election that the principle i think especially in bartlett supports his contention here right and what he's putting a lot of weight on two sentences from a three justice plurality but even even putting that aside the problem in bartlett the infused with race point what was infused with race was the question of giving one group of citizens a certain set of rights the right to vote in district two let's say that another group of citizens did not have those in district three and the reason is because the people were assigned to districts according to race or racial proxies to achieve a racial target right that was the that's what's happening in the influence and coalition district cases in contrast there is no similar allegation here and they are theatres in our case it goes like this and let's assume the c v r i only talked about racial racial polarization so leave all live off for a nd all the non l ways it might be applied and the state of california sued probably and said you need to abandon your single districts or large system and go to districts because we think you're racially polarized  poway did it in response to that lawsuit assuming there was no equal protection violation being remedied for the moment because of even he concedes that if there's an equal protection problem you can remedy so many there's no equal protection violation being readied would would that system violate the constitution those facts know and let me explain why because where the government recognizes a racial disparity and vote dilution and  when racially polarized voting rises to the level of vote dilution that is to say it results in the persistent inability of the numerical minority to fully participate in the political process that is a racial disparity and your  would say you can do that when the equal protection violation is established as a remedy but you can't on the basis of race go out and force redistricting simply on the fear that this might be occurring so parents involved in the texas housing department case make clear that the government can respond to a racial disparity through race neutral means and that does not get strict scrutiny parents involved is clear on that and texas housing department is if anything more clear on that and the key is has the government used a race neutral means in that instance and that's all he's alleging in power a and let me say in answer to your honor's several of the questions there's a reason why the plaintiff hasn't alleged that districts were drawn to make a have additional political power in one district versus another which is that they couldn't the clear allege that i suspect that the districts ended up being bluffly the same ratio percentages as the city as a whole now let me talk about both in hill and ricci because he did bring those up in bethune hill again we agree you don't need funny looking lines in order to show that people are being given rights to vote in one district versus another on account of race direct evidence can do that but the key point is has someone been given a right the right to vote in district one vs two and someone of another race given a different set of rights because of the people's race same thing as in johnson and in ricci vs distaff and no i think that's a straight up disparate treatment case because that's a case where the city of new haven had something like seven white applicants who were entitled to automatic promotion under the test results and maybe twelve for lieutenant seven and maybe twelve for sergeant and cancel the test to specifically take away those automatic promotion rights to then come up with a new system to redistribute them that was specifically treating people differently so it's part of your argument and i'm i'm not sure what to what extent we're bound by the prior decided it which was to the as applied challenge in power but here's the distinction suppose the police break down my door and go into my house in the middle of the night i'm going to have standing for that th amendment violation i have an injury for standing purposes but i have nots but it i won't necessarily have suffered the th the th amendment violation right i have to also prove no warrant no exception to the warrant requirement well here what he has to show in addition to the injury of having fewer races to vote  he has to show that he's been treated differently than another person on the basis race and he can't show that even in our way let alone state why which is fatal to his to his facial claim now it seems like i mean his core argument mr higginson's core argument argued here mr harris is that because liability under the c v are a is premised on the existence of racially polarized voting the statute makes race the predominant factor in drawing electoral districts and that that's unconstitutional because it fails to survive strict scrutiny so what's your direct response to that the point is what it doesn't do is treat people unequally and let me give another example i'm very worried about running into my colleagues time  unconstitutional in the fair sentencing act congress recognized that the sentencing statutes treatment of crack versus powder cocaine was resulting in a racial disparity right dorsy income bro say we noticed the racial disparity they addressed that  neutral means which was the change the sentences for everyone not unconstitutional if the state recognizes that latino and asian american voting is depressed because and therefore voting power diluted because of language difficulties it's not unconstitutional to let every voter take a person of their choice into the voting booth for translation assistance that there's no equal protection violation because and it's not even in the hard questions category when no one's being treated unequally either directly or through a proxy for race if there are no further questions for me i'd like to allow my colleagues to speak not perfectly mirror section two that that somehow unconstitutional and that's incorrect california derives its authority to create statutes that protect voting rights not from the federal voting rights act but from independent statutory law such as the us constitution and the california constitution the differences between the two statutes reflect not a constitutional defect with c b ari but it different approaches to vote one way in which the two such as differ is that the c v r a provides for of a broader cause of action for vote whereas section two is silent when it comes to certain types of because section two is silence as to influence dilution claims it does not mandate the creation of influence just fix a nd difference between the two statutes it's their approaches to compactness the california legislature recognize that there are and so the court set out the three jingles pong and says if you're arguing that you can't last then you need to be able to show that if we give you a remedy you'd actually be able to elect someone but the supreme court noted in footnote twelve that it was not considering whether or crossover districts is going to infuse race into every we just drifting but those are in the context of the remedy the remedy of single member districts that's moving voters within or without within or without it just direct the court has never expressed a concern with well i mean racially polarized voting he makes much of the fact that this is the quote kind of quote unquote racially racial classification here but what racially porous voting is really telling you is what are the voting behavior on the ground so it's it's telling a plaintiff proves st that there is a race based harm and then we'll give you a remedy and so if we were to accept their argument that evidence of a race based harm is in the racial classification or the differential treatment then it would really affect also to write statutes so let's assume there were a showing of racially polarized voting i take it then you could as a remedy go to a different district system legally correct  well i mean again appellant would have to allege that he's been treated differently because of his race and he hasn't he instead alleges that the word racist in the statute that resulted in the demand letter here but he doesn't allege anything about how he was treated differently because of this race we can't take the broader view that he's asking us to take well i mean not in particular not in this case because again he's not alleging he was treated differently or even that racially polarized voting  an analysis was conducted conducted but even in another case no i don't think you'd be able to there's no case law that says that evidence of a race based harmed what you need to prove to even get a remedy is what causes the racial because we're worrying through the supreme court's references to infusion and pervasiveness and things that are i don't know why they use those words but they did so really in this case the reason for the redistricting was redistricting to make sure that they adopt influence a strict just in case they violate section two they are going to have a lot more shot challenges something that opponents not bringing here and that's really the context the court has never in the court set out the racially polarized voting voting test and jingles the court and congress in section two and so to say that that is what makes the c v r even constitutional it's really turning supreme court jurisprudence on its head recognizes that there are instances where which illusion made her even outside those situations and just quickly to wrap up again we just really want to emphasize that the fact that california differs from that or all the federal voting rights a year from now correct your r and in terms of planning if you have to change your system right and when would you need to know what we were requesting is may two thousand and twenty and the reason for that is we have a number of external deadlines we don't have control over their state election code so if you're keeping the system than you and your right right yeah a later order keeping this ystem we're not we're not really be a problem but that being said there is someone certainty with  pending so in addition to the mandatory deadlines registrar elections code deadlines we do have to consider the fact that the electorate and potential candidates you know deserve to know what seats are on the ballot and who's eligible to run you know that's a deliberative process that we'd like to give you know our citizens a chance to participate and so again so right now you're set to do a district based like that's right so we are back in two thousand and sixteen i'm sorry two thousand and eighteen was the st implementation of the districts we had two districts run the final two will be run in two thousand and twenty and then will be complete so again i said you would like to express its sincere gratitude for this court so far expedited process and to believe would never ask for a certain time but may two thousand and twenty is what we're requesting and again the city has tried to avoid spending taxpayer resources debating the constitutionality of state law over which it has no control and simply must comply with and to that point the city really wants to emphasize the fact that there's been no allegation here by the plaintiffs or any of the defendants that the city took any specific unlawful or bad act and instead actually everyone here agrees that the city has complied with state law as as written as and as we're required to do as a general law city an organ of the state and again we will continue to comply with the law and with that i'd be happy to answer any questions the panel may have that would help you decide this act matter to just two quick points in rebuttal st my friend said that there can't be a racial discrimination that equal action clause unless people are treated quote an equally powers versus ohio quote it is axiomatic that racial classifications do not become legitimate on the assumptions that all persons suffer them and yes the racial classification here the racial classification is a facial race based triggered by westerners dealt with somebody who is classified differently given given powers a very different maybe and maybe citizens and certainly citizens of other races in the city would also have no issue do you really can tell me that your client was subjected to a race based classification yes he is in a in district two is he is yet he is in a district that would not exist but for a racially predominated process you know understand that argument but i have a hard time figuring out how your client was subject to a race based classification he was classified as a voter in district two because he happens to reside in district to it and i think the and i think the arguments my friends and the district have made country that seem to suggest that if if people of different races receive the same type of injury that that can state a claim and we think that's just not consistent with the way the supreme court has looked at these issues and i say i'm a fan thank you very much and thank you all for your arguments here today in the case of