first as the jingles one the district court relied on too narrow interpretation of the first jingles pre condition and second three incident factor seven the district court failed to consider evidence presented regarding non racial reasons that minority preferred candidates lost elections while discounting each and every minority preferred candidate win and the more probing probity of recent elections before i began i'd like to respect fillery minus court that the school districts current election system is mandated by state statute at large elections occur each april school board members serve three year staggered terms with two or three seats each auction and in fact yesterday was the first day of filing for the april auction turning now to the first that precondition whether african americans are sufficiently large and geographically compact to constitute a majority and a single member district who are sick of question please disappoint his or relates to it or the jungles construct frames to be mainly at home and i think was created and a situation where the remedy that was being i think that's an excellent excellent point judge arnold because it is not a one size fits all solution especially in a situation like ferguson florestan school district act i was not the romany that was showing me or that is correct it wasn't even i have the same concern as you do it is like i said it's not a one size fits all solution and it makes no sense in ferguson florestan school district where the african american population is evenly dispersed throughout the entire school district looking for whites or the forest well and as i was just about to state this is not a usual voting rights act section two case normally there's a much smaller minority population that's more compact and that's not the situation in i'd like to be clear first that that school district desires more not less minority representation in the school districts defense in this case was never an attempt to discourage that but the facts of this case as i just said do not fit the usual mold of v r a section two cases the african american voting population in the district is a plurality if not a majority currently three of the seven board members are african american all elected under the current at large system because this case is not a conventional voting rights case the court must carefully consider in the liability phase under jingles one was there are not a liability exists whether or were good enough at the liability phase the court said i'll consider it the remedy phase and at the remedy phase an entire new remedy was proposed that wasn't even discussed at the liability face and never was that new proposed system compared to the current system and in reality vote it's the same result as if you get your to vote for the same candidate so i'm not sure really all that the summer worn off site is florida or that i'm i just satisfied with the finding that the school district was liable under section two it was not liable  establish whether a workable solution is possible the supreme court at this stage requires only a simple majority of eligible voters and a single member district here the district court ignored the first half of the sentence and made no attempt to determine whether it workable solution was possible despite evidence provided by the school district that plaintiffs proposed remedies would actually harm the opportunities of minorities to elect their chosen candidates so the question is is the court required to analyze whether the proposed system helps or hurts the minority we believe it as the district court must when determining liability under tingles need to do a lot of at the liability stage and then just fine tune it in the remedy what does that mean i think it means that the plaintiffs present a loss of the plans and the district court compares while they are not their proposed plan is were not even presented well they were presented as the third choice of the plaintiffs in the remedy phase so we had no opportunity ever to discuss whether or not the proposed or preferred remedy of the pla an appropriate remedy at all it was so my point is it's the first of all there's no reason why plaintiffs cannot present something other than single member districts at the liability face  no there's no case law that says that they could not have proposed voting at that stage are you saying they were required to i'm not saying they're required to but they could have they could have proposed the best system that they believed would improve the current system at the liability phase and they didn't all they did was propose to a lesser plans one of the illustrative plans put to many more minority candidates in the same district and three white incumbents in the same district same's subdistrict meaning that one of those minority can't incumbents would no longer be on the board at their first election they would have to run against each other then to solve that problem they offered a that we currently have that we believe was the best anyway right answer question just it seems that the least according to the case law that the standard at the liability stage in determining this is fairly low it's a possibility that the kind of standard that you're applying that sort of is more attuned to the remedy part but your honor i would i would respectfully disagree and that like in bone plans were examined by the district court talked about the percentage of boating age populations in each of those five districts they were looked at in they were considered and then at the remedy  they picked the best one and there are they they created a new one based on the single member districts in stable at the same sort of thing happened they looked at the illustrative districts found that it was the voting a pop up voting its populations were too fragile  that it wouldn't work but that was all done at the liability phase it wasn't done at the at the remedy  majority single member districts despite arguing throughout the trial that african americans were not the majority of the voting age population the school district presented ample evidence during trial that single member districts were harming african american candidates and but rather indorsed cumulative voting another at large voting system in this case at no point did the district court determine whether single member districts the very system that the court formed the basis for liability was harmful or wh the system violated section two if no workable remedy exists there can be no liability the school district police the district court relied on too narrow of an interpretation of the first jingles precondition and should be reversed now turning to the third jingles pre condition whether the whites majority votes sufficiently act as a bloc to enable it in the absence of a special circumstances usually to defeat the minority for candidates to which minorities have been elected under the challenge it looked tauriel game under both jingles three and senate factor seven the district court conducted a straightforward tally of the minority candidates electorial losses the district courts fail to consider evidence presented regarding nonracial reasons that some minority preferred candidates lost elections while just counting each and every minority prefer to candidate win recent lections so are is is your complaint then that the district court simply considered those factors in a way that you disagree with or are you do you really think that the district court ignored some of the i do it would not ones which which would cause it in the state of the list that you've spoken it seemed to me that the district court did address a number of the special circumstances and circumstances surrounding the election consider or even mention the fact that in two thousand and eleven just prior to the election the school board voted to provide their former superintendent and his wife like tyne health insurance that resulted in significant voter anger and anti incumbent sentiment none of the three incumbents were reelected that year there were two white and one black dr graham who was the minority incumbent and a longtime board member and had previously been reelected several times was not elected there was a lot of testimony i believe that for lay witnesses some one expert witness testified to the voter anger about th fact was mentioned when considering i believe in a factor for but it was not mentioned at all in his consideration us in effect just seven it's simply he just simply tallied up no additional credit to the much more recent election he counted the two thousand election the same as if you thought it had the same weight as the two thousand and sixteen fifteen election it was not mentioned at all it was not mentioned that in twenty fourteen five african american candidates ran for circumstances to explain these results or i believe that the courts require that all of the circumstances are considered when determining who are kind of well but i mean that's certainly true with respect to is done and under jingles three are understood that factor seven our argument is that it should have been done in one of the two places and it wasn't done in either  good morning and may please the court after six day trial the district court performed the intensely fact based practical evaluation of local circumstances affecting the school district elections just as section two requires the court found that the school district's method for electing board members violates the voting rights act because it deprives plaintiffs and other african american residents of an equal opportunity to vote on an issue important to them the education their chance of to the  fact that this is required bash the law i'm sorry is there any significance to the fact that this voting scheme is required by state law you know your honor the federal voting rights act has to be complied with even if it's  not the same system and a remedy that's spelled out in state law although it doesn't violate state law the remedy that was proposed in this case the trial court made careful determinations on each aspect of the appellant presents a picture of the school district that's entirely inconsistent with the trial court's findings and seeks to relive a gate some of the factual issues that were already determined including a number of credibility determinations over bartlett is to propose a baseline bright bright line test a workable solution that would put the minority group of voters in a position better off than they currently are with the out large system so what we did propose at the remedy phase three different remedies solutions that we thought would all cure their section two violation the defendants declined their right to first proposed a solution that the court would have deferred to and we included a single member districts solution that we believe would have cured the the dilution in this case it's not the remedy in the end that the court went with but it would have been an option  required in jingles one and as it's been shown in every case i don't know of a single case where a cumulative voting proposal would have been sufficient to satisfy jingles one again just walking population one a simple majority the defendants don't argue with those facts that we produce such illustrate of plans and the jiggles one analysis and the moving to jingles to the trial court found that voting is racially polarized and that candidates preferred by black voters received a low or a minimal crossover support from white voters and were usually successful on the court did consider whether special circumstances were present that led to those successes but black voters white voters white voters voting as a bloc were usually successful and usually able to prevent black preferred candidates from being elected with or without the special circumstances determination we still saw seventy five percent of the black preferred candidates from two thousand and eleven up until tw unable to get elected to the board although the special circumstance determination is part of the jungle analysis what about the circumstances that posing council raises that  says that the district court did not even consider at all is doubt something within the range of discretion for the district court or is it an error to sue over to do not take into consideration the kinds of examples that you provided while your honor the court considered the actual electoral data and and outcomes when it looked at english three the three issues that defendant ra the alleged inefficiency of black voters the narrow margins of defeat in that and the insurance question the judge did consider that in the totality of the circumstances but he considered and did not think that that overrode the objective facts of the election returns for example when it comes to the insurance question black voters from what we see in the electoral returns that voters were actually not and i incumbent they preferred two candidates one was an incumbent one was not an incumbent it was right voters who preferred three new white candidates as opposed to incumbents so we really see a straightforward to most reapplication the black preferred candidates in the white preferred candidates supported  y the black preferred candidates were different than the white preferred candidates every single one of the white preferred candidates won both of the black preferred candidates lost when you look at that those results and dilution as a result focus test you can see why this reasoning this insurance reasoning is not relevant furthermore the defendants would call both the black preferred candidates lost in two thousand and eleven and a black preferred candidates lost in tw thirteen they would chalk both of those losses up to the sure this insurance vote they don't hold white candidates to the same standard so one of the white cat preferred can rates who voted for insurance in twenty eleven was successfully elected in and twelve and one of the white preferred candidate who voted for insurance was successfully about it elected in two thousand and thirteen so what we see here is really an attempt to impose a very different standard on those candidates preferred by some that could explain why the minority preferred candidate was was defeated for reasons that had nothing to do with race does there have to be some are under your case what would we have today remained it were further findings or are simply assume that the district court might have come to the same conclusion anyway and then test that result against the evidence i mean what w ould we do there are so many so you know it's possible that some of us might think that one or two things that the district court did was not quite in accordance with what it should have done to race is racially polarized voting which he found quite strongly i don't think that there was any point there was no evidence the court was very careful to consider all of the evidence presented and there was quite a bit of evidence i don't think that there were any exogamous circumstances that the court in any way refused to consider but i do think it's it's important to note that racial animus doesn't need to be a and if there were reasons other than other than race that could explain the defeat of the minority candidate and if those reasons should have been consulted by the district court and if the what were you do when you got this list of vague long list of so called non exclusive factors are supposed to be weighed your honor i think that's one of the difficulties with the jingle standard and one of the reasons that there's a strong deference to the district court who hears all the facts and considers all the facts in this decision to be clear jingles itself says that what's at issue  is the difference in choices that black and white voters make not the reason for those differences that jingles at sixty three so if there is another explanation that or if there are other factors which there will always be the fact intensive circumstances underlying elections that had some influence one way or the other that doesn't overcome this result this practical results focused inquiry into whether voters voted differently and whether the white bloc was able usually to defeat the black preferred candidates i also think remand would not be necessary simply by looking at the numbers in tw candidates won and in twenty four to fourteen there were two white preferred candidates you won along with one out of three black preferred candidate so when we're looking at what usually happened and the patterns there's always going to be underlying race or color so if you've got an election that might reasonably be characterized as one that although a minority prefer candidate waltzed was considers on account of race or color in part is looking at the senate factors which the court went through very carefully and determined way in favor of plaintiffs and that's because things like a history of discrimination a slating process that was more available to white candidates devices that continue to create impediments to black voters full equal voting strength all of those are the underlying facts which can can create among other things in inequality an opportunity to elect candidates of choice without racial animus which of course we've never claimed in this case but it's very much the totality determination and specifically the senate factors that show a history of racial discrimination remains relevant even after some of the official forms of discrimination are no longer on the books again the jingles tree analysis  the court performed used qualitative data as it should but was not a mechanical application of that data the court is always obligated to look at whether this totality of the circumstances support liability and it is a practical and results focused inquiry often shown by strong cohesion and racially polarized voting which the court found here just to speak to a few of the points that my colleague raised as far as inefficiency jingles three does not expect perfect cohesion among black voters and the large number of black candidates who are not black preferred is not relevant to the determination of how the black candidates for whom there was cohesive support were unsuccessful with regard to the special circumstances the court is obligated as part of its jingoes three determination to decide whether there were special circumstances in play that fourteen because it was not in keeping with the consistent pattern of defeat that special circumstances determination along with the determination of twenty fifteen was an obligation of the court but just to be clear plaintive satisfied  even without affording less probative weight to the twenty fourteen and twenty fifteen election when the court looked at the number of times or the percentage of the time that black preferred candidates were defeated by white block voting that was seventy differ that much there's no no statistical evidence or opinion that would would say that the black voting age population has an extremely slight majority is defendant's experts predictions or estimates which the court found not credible or reliable so this this court would have to find it was error to rely on either the census or the a c s and require the trial court to rely on figures that the trial court specifically found were not credible in order to determine that the black voting  population was not a minority as for the growing population that that defendants have claimed time lucian is a present time determination and it's not sufficient to say that there is but at some point in the future the population may change in a way or to a degree to alleviate the dilution at some point going forward if that were the case and there were changed circumstances we acknowledged that defense could make a will sixty be motion for change of circumstances but the present determination is that is that the current system is i looted of african americans vote we ask this court  make one quick correction the district court found the school district's trend analysis very able it says so in his in his in his opinion that the trend analysis by our expert was credible and i'd like to remind the court that it and the twenty turn census there were three hundred eighty six more white voters than african american voters and twenty ten and if you turn a page thirty five on our brief there's a very good chart that shows the trend analysis and it's difficult i believe to accept the fact that that those trends somepl what happens if you know you don't agree with it if the court considered all of the facts and i think it's clear that we don't know what facts the district court did consider under the totality of the circumstances because he didn't put that in his decision yet it was one hundred thirty pages long but we don't know what we don't know what evidence he considered under each one of those nine totality assen factors that he considered and under buchan aga it's clear that he must tell us in his decision all of the factors pro and con that he considered and that wasn't done so under that standard it should be remanded however we believe have come to the same conclusion or not we have to ask i believe you have to ask but i think you can take the district court's own words on this and when he granted our motion to stay his liability and his remedy order he stated on the record that he believed that a different justice could come to a different a different conclusion is especially on his analysis of the special circumstances of the more probate of recent election and yet he still refused to give dr thurman's a lox and the full credit that it deserved and nor did the court provide any explanation on how these special circumstances did not help the other two minority candidates to to win same thing in twenty fifteen the court was presented with no evidence of the special circumstance when dr graves was elected after your time's expired oh i'm sorry i would just ask the court to reverse the district