questions of legal version st the black community constitutes the total population majority in sumter county and maintains a registration advantage over the white community count why it should have been the planes burden to show below why a group that has registered at high rates in the past is prevented from voting at high rates in the future but the district court erroneous we place the burden on the county to prove that turn out rates are not caused by the effects of past script nation it's reliance for this rule on case law addressing majority white jurisdictions where a majority white voting bloc has been proven was erroneous and the case reversal nd the court found it to be guesswork whether the plaintiffs a loss for the plan was an improvement on the challenge it is not self evident that a proposal to replace the two at large seats with is what is it that were actually with us as i saw it we had a final judgment from the from the district court we had an appeal where we consolidated all three appeals we had a rema basis of the permanent injunction so the relief that we're requesting as reversal of the judgment bank the charter of the permanent injunction against that brings me to my question why am i reviewing only the liability judgment what i have both liability and remedy resolved by the district court i guess the essence of my question is how do i because the liability ruling is the predicate for the remedial phase without the liability ruling there would have been no remedial phase at all and similarly without the liability ruling specific issues and raise those on appeal we are not raising those issues on appeal we are not arguing that even if the liability ruling was correct then the remedial ruling was incorrect some cases in the particular context of a challenge so it seems to me the burden rested with the plaintiff to establish that it could come up with a plan that worked and if it front out on that drawing the line at the water's edge and you say look just of liability not it remedy when you concede as you lost that remedy is found off with the question of  liability what am i missing here your honor i think what we're saying is that all those cases that you've cited to support our position because they show that before that liability order was ever entered the court needed to find a remedy could be fashioned and it's finding in this regard is erroneous because place the burden in the wrong place to place it on the county and i'm holding this side of the i'm asking and there's no doubt the plaintiff there is that i'm asking a different question i'm asking whether when we determine whether they have met their burden we look simply after a record as a liability liability precisely because it's a liability in the plaintiff cannot make this showing on liability by moving into the future into the remedial say now is we've also argued we think that the record of the remedial phase also supports us because it actually under cost the plaintiffs liability showing us to look at the alternative position our primary position is that you shouldn't look at the report of dr grossmann at all because it doesn't help the plaintiff meet his liability burden and all that happened after the stronger if the district court had never recommissioned a new expert an expert that everybody agreed was st class in this area but once he did and once he performed the studies that he did and once he concluded that there was a pact he said there were a number of plans that solved the problem and the district court specifically selected the rd one mapped and entered a final judgment specifically including that remedy not the ritual mcbride remedy how do we know or all of that because of the threshold requirement that is very clear in this court's precedent as well as in the supreme court's precedent including most recently abbott versus press under that precedent this has to be brought up front it has to be dealt with as an initial matter and bringing in an expert after the fact charging the experts fees to the county is not a basis for the plaintiff to overcome this burden because remember even after  phase the plaintiff tried multiple multiple attempts to provide a remedy and the district court found them all wanting i'm curious did you say to the district court when he picked stuck with mcbride that's the beginning and end of this case you're not free to do that that you tell we did tell me precisely that what we did say is we didn't think that the math three or any of this special masters maps were out of remedies we said that we thought none of this should be happening we actually argued in the hearing that the court should reconsider its liability ruling and vacate that ruling because  the remedial phase undercut it we have preserved our challenges to the liability ruling i don't think a party an appellant should be required to to challenge the match because remember at that his showing on the liability phase it was for election administration purposes to make sure that the question november two thousand and twenty election was resolved before the end of the appeal and to allow those mechanisms to work themselves out for and against what i guess what i'm really asking is based on the remit and if the district judge was troubled with the the labor the point i'm just trying to figure out what's properly before me and it seems to me you do want to use brosnan's report for the purposes of undermining mcbride and i think it does but you don't  it to be used substantively even though the district court adopted the nd expert's map and made that part of its final judgment that's the only trouble i have with squaring what you're saying right and i and i appreciate the inconsistency is only and only seems inconsistent because we are making tiered alternative arguments precisely because we want to make sure we have all our bases covered i stopped our remedial brief even the special masters work supports the liability ruling but if i can i would like to turn to the argument lead argument on roman numeral one which concerns to the kurds and the question of turnout which is independent of the remedial issues that your honor has has raised here on that issue the court around easily failed to require the pla virtue of its numerical superiority and regularly defeat the choices of minority voters here there is no submergence the black community holds the advantage in every relevant demographic category total population voting age population and voter registration the th circuit salis decision describes this precise and there eowyn holds that a plaintiff bringing a section to claim for a racial group with a registration event faces an obvious difficult burden to prove that the group's inability to elect results from white block vote that burden should have applied here but the district court instead place the burden on the county this was a legal error in effect of the liability ruling and again it's unrelated to any of the issues at the remedial facts plain as responses to this argument are not persuasive st off the plaintiff contends that in this case the registration advantage is about a forty eight dollars and a half percent black registration to a forty six percent white than the black or the white communities are impacting elections is something count in fact we criticize the plainest expert but well for focusing solely on the black and white communities and we're messages that the other voters are too small to matter even too small to do analysis on and they're not turning out in any meaningful sense to vote in these elections and so they can safely be ignored if that is true as to depolarize voting elements that the plaintiff is required to show it is equally true here furthermore the district court actually made findings on this point that are  plaintiff thirty six of its opinion is that the problem for african americans is something county is not the number of voters but how often they turn out to vote the court did not think that the advantage here was a  furthermore the real question here which is really a jingle prong three question is one of the white majority voting block and we see this in this court's decision in meat against metropolitan dade county where the court took its time and carefully analyzed the record and found a majority voting bloc in a coalition although that case went the other way and the plaintiff was successful in that appeal that supports our position because none of the analysis in that case makes any sense under the plaintiff's reasoning the very base was in finding a relevant majority voting block and there's not depends in part your honor on when that decision comes out obviously if you're inclined to reverse we would favor a quick ruling to that effect there is not a record built  on exactly where we are in the process but we are many weeks out from the election and i don't think it's too late for the county to revert back to the map and place  even if it is what would happen your honor there would still be an automatic reversion to the challenge and that would very likely trigger a representatives of the district main continuous residence in the district once those lines change incumbents will end up not in their districts and under georgia law there would likely be some kind of a special election  the next redistricting so there is clearly a practical effect in at least two meaningful respects your honor of overruling and we would urge you particularly if you're inclined to reverse to issue an order to that effect even up as you know the two thousand and eighteen elections were cancelled this decade the two thousand and twelve elections were cancelled this decade that's a lot of not voting the school board elections we would like to move on in this county judge bar test of all of this and of them for and if it turns out that we look at sumter county voting and we see that as you suggested we don't have the records totally extrapolated from the state right last time or some three county went for state from but if we look at sumter county after this election and see that we can determine that black voters were did vote did use their majority clout and did vote for the candidate of their choice is that going to be a fact that really won with word on all this out gives us some insight into whether this extra little bit of handicapping and help they are perceived to need now may not be needed at all if we see in fact in this election that they actually do go out in the numbers that they're represented is bad approach the court should take should we wait and see what going to happen in the next election  your honor i don't think it would be a wise approach principally because again we're challenging a liability ruling that was issued over two years ago secondly because the court already has that information and i think your reference to the stacy abrams  countywide win in sumter is a good point to make on that there are lots of these alleged and that the district court simply disregarded and one of our arguments of course is that the should have been included in the mix i don't think that the court is going to be much differently situated after the november election and i think the cost to the county in sitting here for another several weeks waiting for another election to pas possibly having to undergo special elections if we alternately prevail it really outweighs the advantage that might in some cases be drawn from the accuracy of action so i respectfully submit that that wouldn't be the wise resolution of this case let me follow up on judge cards is a question that's right carol for a moment just explain to me where we are you just started to earlier there will be an election in the way it now stands is there are several single member districts and will that be what's voted on and some to carry a school board unless this court intervenes that's correct right so we will actually see the  result you would see the results from those races but the analysis here under section two isn't simply whether there can be if that are planned but whether there's an equal opportunity under the challenge though i i do understand that the presumption of legal validity which was enacted by the legislative body of the state of georgia offer an equal opportunity especially as two arguments number one and number but the thumb on the scale and give extra health care to a group that has shown when it wants to it can maybe it doesn't care about board of education elections but it wants to i'm surprised that your approach that i would think actually would be helpful  you your honor but my point is we already have that we have that in the stacy abrams when we have that in but there we don't know what those numbers aren't extrapolative we don't we can't we looking at it we think we probably know what it means but we haven't really had an expert well that's that's a fair point and i guess what your honor suggesting then is there would actually be another remand in this case which i think by my count would be the th or th to go back and happy new expert reports a new discovery and what we're saying is we we county can quickly pervert to the plan and hold the elections in the proper planning is their time to do that i don't think the record is clear on that it would be speculation for me to that we can this is a small county i'm not sure where the ballot printing is but we're well enough out where the i think the ballot printing could happen there could be truncated no notice requirements so i think that possibility very much completely new figures the remedy would probably have to be redrawn still again the irony is these folks could be without the opportunity to vote for a school board honor i think that if it were too late the county would proceed under the special master plan even if the court vacated and reversed and then it would be a question of whether special elections need to occur perhaps in december or if it were too late i'm quite positive that the county would conduct voting in november two thousand and twenty under that map i don't think the county would i can't be sure on this your honor again there's not a record i'm speaking off my personal knowledge and that's always dangerous for an appellate lawyer but my best understanding is there was still be voting in the school board the county wants there to be voting on the school board and it would be on the mcbride may have been deficient brockman number three saying we think it's not are you in any why challenging this ultimate remedial plan that the district court and that are you saying i haven't read anything your briefs where you're challenging that for any reason is being something that you think a vulnerable to an attack that i think you're right your honor let me just repeat what it is we are challenging so that we're  challenging but i'm saying if you get stuck with math if we go with the plaintiffs in the district court you now got mad three i just want to make sure you're not challenging anything about that particular map not as independent from the liability rowing that's correct we're not we're not raising we're not arguing that even the district court was right on liability and everything it said in that liability ruling that somehow the remedial decision was still wrong if you were to affirm the liability ruling then you wouldn't have to go in and reanalyze because that's not where we're challenging hopefully that i mean what i'm looking at is this map now seems to be a map three things to really have gone kind of the other direction judgment of the district court because the ultimate finding a vote to lucian on which that judgment rest is not clearly erroneous it is more than adequately supported by substantial evidence in the record and most of that evidence is either undisputed or uncontroverted it is undisputed for example that black voters are zero for three in the at large school board elections that this court has already held to be the most appropriate and that voting was highly polarized along racial lines in each one it is undisputed that african americans remain grossly under represented in other offices elected county in sumter county in fact no african american has ever won a contested election for county wide office in sumter county it is undisputed that something county has a long and extensive history of discrimination against african americans that touched directly on black political participation and it is undisputed that the effects of that discrimination still linger and  lack of success even when there was a black voter strength suggested the remnants of prior discrimination were present where thirty six years past that now i'm going to give you two questions my st question is at what point  can we we no longer indulge that presumption at what point can we say that the reason one black group of voters where a majority don't vote is simply attributable to voter d apathy not to the way or the other that's my two questions sure judge card for me let me say a couple of things in response to your question i think that there are are really two ways to respond st of course there is a law on the issue and this panel is bound by th circuit and before that in pre split th circuit law that touches on this and there's there is plenty of binding precedent on on this thornburgh versus jingles says that the essence of a section two claim is that a certain ultimately at some point this is going to get down to a factual question well ok so on the facts this is not a case where there is a shred of factual evidence that black voters have overcome the history of discrimination that lingers even today and the evidence is full of contemporaneous evidence of discrimination and i can point you to some of that evidence in the record a judge carnes i think the most important piece of evidence in this case is plaintiff trial exhibit thirty three which maps the turnout  among black people during that time period in the county we don't have the same time series of data in the record with respect to voter registration it's not there but but my point on th turnout your honor is that this is not a case where for example in two thousand and eight black voters came out and were able to elect candidates of their choice and then fell back there has never been a moment of parity in sumter county but also there's more discrimination in sumter county is not ancient history but present day reality the court found and it's not clearly go out and vote in force for her if we look at this next election and we can determine that black voters in this election did use their majority clout to stop her county went for hillary clinton last time  think that when they want to black voters can get to the polls and vote what do we do with that information do we have special rules then for elections that they're not as interested in if that happens isn't a big part of your stated that past discrimination means that black voters will not go out to vote if the next result of the election turnout prophesies no your honor i don't think that is accurate st of all the november elections are not the same as my elections well this is going to be another member election for the board to write well that's true but if you were to reverse the elections for school board were would be held in may and there is findings  interested like vote in iowa and one hundred percent of those who turn out vote in the presidential election of the gubernatorial election when they get down to the board of education it may be that they don't care do we have to suddenly them because of that back on that a little bit because those are all things that could have been established or attempted to be established by the counties expert and it chose not to and the county simply submitted these election  returns and the court made findings as to the program value of those election returns and the court's findings on on those election returns are not clearly erroneous but i think the court would have to take a very n d look at the voting patterns in the states the abrams race for example and and determine whether that that would mean that a school board could very well be that true that white voter polarization is less in elections for say a president or governor than for a school board where the elected officials  raise their taxes or you know that is that is an entirely possible outcome it would not mean that black voters are responsible for their victories in november it would it would mean simply that white voters and four right it would have to go back it would i would point out your honor that we actually asked the court to reopen the record to permit the very analysis that you're suggesting judge cons and the county this case in its briefing in the appellate court cited to those election returns that i looked the election returns prove our point and so we asked a district court to allow the very kind of analysis that you're that you're suggesting and so i don't think that the court should remain and now for the analysis of the county has opposed all along your  plaintiffs should have been subject to a heightened standard as a factual matter the record does not establish that african americans are the plurality of registered voters in sumter county and that's because there are significant number of voters in sumter county who did not provide their racial benefit cation when they registered according to the latest data available to the district court there were four hundred and  whose race is unknown to the secretary of state and that number is more than enough to make white voters the plurality on some three counties voter list and to the extent that the county believes that that a as a legal matter there is no alternative legal standard on the precondition that applies when i'm an already group constitutes a slight plurality or even a slight majority of white voters and the th circuit opinion in so is that the county relies on expressly rejects the idea of trying to fashion some alternative precondition and subsequent courts have interpreted solace in just that way i would point argument is that under salah the a different legal standard applies when a minority group makes up a plurality of the registered voters and and there is no law in fact to support persuasion on the defendant rather than on the plane to the district court to that so the district court  the district courts placing the burden of persuasion is in line with the court this court's decision in marengo county and other cases but that's under the th senate factor uses place the giggles burdens the plaintiff not the defendant did he place the burden in fact on the defendant here i don't think so i don't think so because even under the th senate factor right there's a law that says that once you come up with once a plaintiff's shows depressed political participation and socio economic disparities it doesn't need to prove any causal nexus but the district court made findings that there was a causal nexus it's very clear on page two of the court's opinion that the present day disparities that result from historical district discrimination affect political participation that is the causal nexus that that is presumed under the th senate factor but it was actually proven in this case with with testimony and what that does is it creates a robot of all presumption and the county could have produced evidence to counter based on what that is the finding of fact that because unfortunately black that this is a stump there can be continued to be poorer and less educated that discrimination is the cause of that versus something else i mean i'm not finding any facts here that make it just what essentially you're arguing is that sort of a permanent inclusion that we must all weigh it here to forty years later eighty years later that if in fact he says the way the nomic consequences a my argument your honor and i didn't get to finish answering your earlier question about what what other evidence is in the record there was testimony in the record in addition to the findings that that the  court made regarding present day racial and social segregation present day racial animus in the community present day socio economic disparities that result from the past lower socioeconomic status with lower political participation and there were a number of witnesses on day two of the trial all of whom had experience in local politics and they had dennis dennis slide the problems that education income and wealth presents to black pr to political participation in some three county the testimony was in essence that because black voters don't have the education because they were went to segregated schools because they don't have the wealth because of employment discrimination they don't have the the level of civic participation that the white community has testimony linking those things and i want to emphasize that just cons this is not ancient history that we're talking about here we're talking about present day discrimination and  know it's tempting i think to view what happened in the one thousand nine hundred and eighty s as as ancient history but i want to point out that the testimony of sam a home for example who graduated sumter county high school in one thousand nine hundred and sixty four he is if you read his testimony very clearly traumatized today based on the the experiences that he felt growing up in some county  the plaintiffs reverend wright graduated high school in sumter county and nine hundred and sixty nine he was eligible to vote in the election that was described in bell versus versus south well  as hardly racially motivated same thing for michael kohli edith green and alice doing their st jobs out of high school were teaching in segregated schools in and around sumter county these this is not ancient history your honor these people are not that old they're present members of the community and and their experiences with discrimination  seem like ancient history from them sitting in atlanta but that's not what the district court found in the district court's findings linking that to present day depressed political  participation is not something that this court should substitute its view for those findings are not clearly erroneous and they are entitled to substantial difference no question that question is there's a shame past and sumter county in many places in the south and there's no question it is shameful my question is what point we find a connection between that and a person's unwillingness to get these witnesses you talk about  rank and file voters if you will oftentimes have to prioritize the burdens of daily living because of the poverty and the abject poverty and sumter county or that they simply don't have the extra time in their day to read up on the candidates or to even know that an election is happening in some thirty in sumter county in may because the candidates don't have the the money to  for example to advertise the way that white candidates do these are effects that still linger and there may come a day when a judge finds that that the effects are not attributable but that's guess black voting age population and maybe also registration but it think racing with the black population is increasing relative to the y in sumter county suggesting that one might eventually take care of itself with the numbers you know get large enough is there anything in the record that helps is that supported by the record or is that just judge than kind of state of the pants knowledge of the situation your honor there is nothing in the record on that point  fans doesn't cite to anything in the record i searched the record to see if i could support that there is nothing about about trends in it in that would support that would support that that  issue i think my even with a little extra time i'm getting close to the end so i want to address some of the questions that that kind for mr riley specifically judge grants i think you asked kind of what happens now and mr that there's nothing in the record but i think there is information in the district court record on the remedial phase both at the hearing and in some of the briefing ballots have already gone out voting in the november election in georgia started on september th they went out to you okada voters as military and overseas voters last saturday and so voting is is well underway i can tell you that all seven seats are on the ballot in november there are black candidates up for all seven seats and this court could could certainly throw out the results of that think where it's only sixty point one percent of black voters is that the one that the long shot i don't have those numbers off the top of my head your honor but it is and professor election from may to november and i would point out that the county did not object to that it's not something that the the plaintiffs advocated it but but the county did not object to the that in order to answer that question we must determine whether there is a reasonable opportunity created by the new plan in so far as we make that  review we limited to the record that occurred before the district court when mcbride testified or we obliged to look at the subsequent findings in the remedial determination by the district court that occurred when he called the new expert sure you want to let me make two points in response to your question number one i want to push back a little bit on the premise that the discussion of  availability of a remedy comes under jingles one i think that under this court's on bond decision in nippur and under the supreme court's recent decision in abbott the discussion of the availability of remedy is something held for the totality of circumstances but setting that aside to answer you more directly this court is reviewing the district court's final judgment and the final judgment is based on the entire record including the remedial phase and i would also point out that the district court explicitly bifurcated that case without the county's objection  and so it was entirely reasonable for the court to delay entering its final judgment until after it had in fact entered a remedy the bifurcation ordered by the way is in question if you consider the entire record i think if you look at what the court found with respect to document brides illustrative plan that was offered for purposes of the st ingles factor his findings there are not clearly erroneous  there was one plan and the court found based on the increase in black population and the decrease in white population and rights testimony scuse me and i m testimony that based on statistical analysis that it would provide a meaningful opportunity to elect to make its remaining i think based on the evidence in the record in the court's findings even with respect to on the other hand based upon past elections and observed differences in turnout among black and white communities it is also implausible to expect a black candidate of choice of the african american community to have a realistic chance of election in the nonpartisan contest of the school board in a district that is only barely above fifty percent black the eighty at least if a minority candidate is not already  sitting in company or in a district where other factors of the sort identified a success based upon that the district court in his order of one hundred and twenty nine for me seems to have shifted gears and he references map three and he says makes reference to the fact that in math three to be a v p in the four majority be a presumably based on one district election data that sixty nine percent was necessary but professor grothman has clarified that a vote of sixty nine percent is not necessary for black voters here you had to have something perhaps as much as at least sixty percent so if all we were looking at is mcbride perhaps there is clear i'm not sure but in any event the subsequent findings brockman undermine the notion that it would be sufficient at fifty four dollars stone faced i don't think they do grafman doesn't address the viability of the plaintiffs a last sort of plan which was offered as the least change plan it was not offered as the best plan we could draw evaluating the performance of the various plans as we point out in our supplemental brief he analyzes a few different elections than dr mcbride did and so he comes up with with some slightly different numbers but but he uses the same methodology and i don't think anything and dr grossman's report indicates that the district court's finding white voting age population that's a substantial decrease it was a greater white voting age population decrease and it was a black voting age population increase and so the gap between mcbride's remedial district and that that the court concludes that that that gap in essence could result in different electoral outcomes and  that makes a lot of sense is certainly not erroneous thank you sure i am out of time unless the court has other questions we will respectfully affirm the judgment of the district court that the at large seat on some three counties election planned for members of the school board where black voters black children are eighty five rebuttal st of all there's definitely evidence in the record supporting judge sanders observation that there is a continuous trend upward black voting age population and black percentage is generally in the record there was a motion for and eighty nine judge stands who do think is a good judge even though we disagree with some of his conclusions in this case did not just say that with no evidence in the record nd the district court certainly place the burden on the county to demonstrate that the low voter turnout of the black community is not the effect of prior discrimination and that's clear on pages twenty five dollars twenty six cents of the decision the plaintiff i think correctly points to case law on the subject but the plaintiffs misread that law and part of the reason he does that is because he's ignoring the case from nine seventy nine that's binding on this court called cross vs baxter and that court made clear that as part of the initial burden that the plaintiffs bearers is to establish among other things a disproportion in registration and so we see why the dollars decision is consistent with them wrangle county decision is that when there is a registration advantage or even at any quality of registration there's definitely not a disproportion of registration and bear in mind that in the knowledge decision there was substantial evidence of the effects of prior discrimination that are actually more directly linked to voter participation and here among other things the mexican american voters in the solace case had a forty one percent illiteracy rate and yet the court said that the registration demonstrated that the plaintiff fails to meet the burden of a stat wishing a disproportion in voter registration then the burden is still on the plaintiffs and we agree with judge granted it's not a per se bar and we would follow the solace decision here as well as judge higginson's recent concurring opinion which we think is very thoughtful and commend of the court's attention to thomas versus bryant case that there is still a possibility but the evidence has to be directly linking this low turnout with because there they had an argument about migrant working conditions the plaintiffs contention that this is simply a rubber stamping the factual findings mis read of the scholars decision and again the higginson concurrence recently issued we think is very persuasive on this point misread the solace decision because the factual findings that are really at issue there are about the migrant working conditions and it is true that that the solace decision may have come out the other way if the district court is made different findings a stablish ing that the migrant working schedules provided an extra barrier that meet the plaintiff's burden but we have nothing like that here we don't have any contention that there is any bar to participation and we see that in the november elections and the plaintiff's close election don't tell us anything is mistaken at page seventeen of his brief from self contends that the democratic primary eighty one percent of the voters of sumter county are are african american which means that the democratic party in the county is controlled by the african american vote if there is an e quality of opportunity in november there's an equal opportunity in may there's no barrier with the plaintiff is talking about in this case are private choices the plaintiff wants equal opportunity for and eighteen election is that correct that's correct you are wrong and we we've submitted that the case should be decided based on the liability rolling and we didn't want to reopen the record and the point that we're making on this is that there's really two possibilities in this unique set of circumstances one is that there is polarized voting in the stacy abrams race and the black candidate won the other possibility is that there is a polarized voting and then that cuts against the plaintiff's case on cohesion we don't need experts to tell us that the only possibility where that election could help the plaintiff is if there were polarized voting and stacy abrams were the preferred candidate the white voters in sumter county that cuts against the evidence in the record that is mentioned on page seventeen of the plain sprees no one really thinks that that's happening and so the evidence stands on its own and again we want a prompt resolution of these issues unlike the argument that a lot on this complicated case