right our third case for this morning is mccoy against the chicago heights election commission mr jackson and i want to start with the wrong numbers this is a litigation that's been going on for a long time and i would submit to the court that one of the reasons it has been going on for a long time is that there is no liquidated damage provision there is nothing to encourage the defendants in this case to comport with the consent decree or any of the orders that are in it by the judges don't quite understand that since the course of a consent decree is in place it's routine for people to come back to the court the court normally retains jurisdiction over it and if something's not being complied with equitable relief it's possible that's true judge that's true which requires the offended party to now take an additional step as opposed to the court having on its own i liquidated provision well  but that's pretty normal though i mean we have a party driven system of evidence of advocacy in our country and yes i don't disagree with you that it does put the onus on whoever it is who thinks there's a problem to go back and tell the court for the court to set in advance some sort of i mean i can't imagine a liquidated damage provision and in a voting rights case but maybe there could be i don't know  something what i am interested in is where  where did the court where did the district court here go wrong in saying that even though these just tricks aren't you know down to the the last household districts that reflect the various groups in chicago hi say the three groups that were here the deviation isn't that it gets twelve point something percent and the court realizes that that's beyond the safe harbor it's beyond the ten percent the supreme court has looked at but it's considered how the maps were drawn there's geographic concha q and each of the new maps populations are shifting anyway the court decides that this does not represent a violation of the law it's a let me start where i initially started to start which is just wrong that the the court first off in response directly to your question done by the city and there are some parts of the consent for you to make it look as though it's all the parties consent or what the that is if one reads the consent decree and individual portions if you read individual lines of a paragraph or you can come up with different interpretations of what that individual like but if you read the it that individual line in conjunction with the paragraph itself decree if there's an election the election will be based upon the boundaries as we've already again there's the map right or step back after that election the city shall the city shall reapportion consisting of what we've agreed upon and that's the portion that i'm talking about it if it didn't leave any wiggle room for the city it said we've agreed upon this this is been twenty something almost thirty years of litigation we've reduced is down to disagreement these are the boundaries exhibit b exhibit c you shall implement your shell reapportion consistent with that with the agreed upon boundaries yeah that's what they were supposed to do but and this is where i get back to my my notes you know that the liquidated damages provision but there is no incentive for them to do that instead if you just ignore it which is what they did they simply ignored it they did not implement it consistent with the consent decree now what they did instead and this is why i say it was to sleight of hand legal permissive sleight of hand but it was it was one of advocacy where they persuaded the judge who was not t and you have now another judge who's not a party to suit that part of that was not a part of the all of the massive nations in the arguments in the back and forth to reach the contents provides and i would submit respectfully as clear the terms as is plausible you will implement you shall sell there's no discretion  well the court finds i mean just to cut to the chase the city does draw a new map and it the court finds despite as i said this failure to hit the ten percent mark to twelve point six five deviation that they find he finds that it's a product of chicago heights it's good faith effort to comply with the mandate of one person one vote he talks a little bit about the twelve point six five percent deviation he's taken evidence on it he thinks the to cross examine on the basis of that map though and use it as a way of illustrating that there might have been a better approach would be very well may have to let me answer that is yes well i wasn't  and i would assume that i'm sorry i think that matters you said that he didn't want to talk about the fact of a better plan at all and i think it was a limited use his feeling was that institutionally the drawing of the map is first and foremost the responsibility of the entity concerned in this case chicago heights and that strikes me is something that's well established because a consent decree doesn't say unambiguously that it's the joint job parties to the consent decree to do this i agree with your on the point with respect to the cross examination yet but the critic is the consent decree does say reapportion what we've agreed upon now if things change later if the numbers as you articulated if the numbers change people move then that's page twenty five that's the page twenty five says if that happens then the politics that's what we're talking about if things change if there's a shift in the numbers the parties sh seven thousand residents of which are white twelve thousand of which are black and i'm wrong grant rounding down in each case ten thousand which are hispanic seven awards now in the first  eighty percent eighty percent of the first war ok you're going to bring short on time but yes i mean we have the numbers of how this breaks down and i realize it's your view that three wards that are majority white is at least one board to many people of color into two wards primera predominantly in two wars and when you gerrymander from the from the fifth ward to take from a probably white ward the fifth ward to put those individuals in the six ward so that the numbers in the good morning i please the court austin zimmer on behalf of the defendant of penalties the at the outset the most important thing to note is a standard review for this court this is a consent decree this is the district court judges interpretation of a consent decree and this court has repeatedly said they will give a great deal of deference to the district court's decision when interpreted consent decree and hear the only issues properly before this court is whether the district court abused  discretion in determining that the city's proposed map was constitutionally valid and compliant with the consent decree and starting with the cut consent decree it supported note that the map at issue in this case was formed and created as a result of decades of litigation what a consent decree was entered into the decree approved the seven district form of government that sent the credo at page twenty two of page twenty five good contemplate that of twenty ten the census data was going to come smaller deviations than the one the city was looking at and the city didn't really even seem to be looking at the fact that you know it's a deviation from the smallest to the largest district that matters it's not like you get a freebie of of ten percent and then you can add on to to more and and this map does seem to be a map that you know that gives white voters if you believe in this whole system of the way voting rights cases go they then wind up with three wards even though their population is nowhere near three sevenths of the city that is correct your honor i guess the actual question why is a consent decree written that way well that's what the parties agreed on and also i think typically because re apportioning the word just typically the the job agreeing with you that maybe the basic question before us requirement that there has to be a certain number of majority minority districts that's not before this court at this point that wasn't before the judge got to that as well what is a requirement though as you know that the temper sent that's the number it was over ten percent it's twelve point six percent now but how judge gettleman handled this i think shows that was one of was consistent with the consent decree but also consistent under the constitution he has extensive briefing on the ships you and he did find that our map exceeded t percent or so they required us to submit justification for that going over the temper sent to show we didn't violate the voting rights act we submitted a brief the brief wasn't just sufficient form so we asked to have have a hearing and at that hearing we set forth evidence and i think it justified that why this map did not violate the voting rights act the deviation it's important summer testimony you're talking about yes your honor yeah i think it's important to note that the deviation was twenty six percent that deviation of twenty six percent came not as a map that the city created but as a map that was created as a result the consent decree and when the census data came out the city went about how do we reduce it down from twenty six percent we were to sit down from twenty six percent to twelve point six percent and we look at the factors that we use the factors were not discriminatory and they were factors that help with promoting legitimate governmental objections was the same using one of those computer programs that draw we see in a lot of voting rights cases because it just sort of lets move this street here and make it a little more compact so here's what the city they started with the the map that was the consent decree and that was our number one objective we weren't trying to use a computer program to do this you just looked at the two thousand and ten concentric remap that old round of the boundaries and came up with twenty fourteen map correcting the changes that were made your honor they were very very minor and they were done so to constitutional they were first to comply with consent decree maintain the seven word system and then also to change the configuration existing words as little as possible and the changes that we may were very very slight why because we wanted to comply with the consent decree and also wanted to respect historic or natural boundary lines and the movements were very small as we move in a couple blocks over a couple wards and now we have more natural boundaries hall stead road is one chicago avenue so the the districts are much more contiguous than they used to be and that increase toward compact in the sun so all of the court properly found that we comply with the mandate of one person one vote this wasn't a case where there was a twenty percent or thirty percent or forty percent deviation was very very minor on is consistent with other cases not where they found you know minor deviations of sixteen percent to be constitutional i therefore think it's very important that since this is a consent decree and interpretation of a consent decree judge government did not abuse of discretion they didn't cite to any cases in their brief that shows uses discretion they had an opportunity at the hearing to present witnesses to present evidence they didn't present any evidence  clearly that his decision was within his discretion it's clearly his decision was within the constitutional law so he's big point i mean i don't know maybe you could review for me what role the plaintiffs did  have they were told he wasn't going to sit there and just decide i like the plaintiffs in versus the city's mapi understood the consent to create a or perhaps maybe just the underlying law to say it's primarily the city's responsibility to perform this function or to the chicago heights election commission or the body the city intrusted to but they they did present did they not and in some form before the district judge a proposed plan yes your honor they filed a motion to essentially submit their own map and have their own map to be applied and it was attached to that motion correct yeah and the judge gettleman is ruling was based on the consent decree his discretion he found word six and everybody seems to be really worried about is it worth six is the one where the way it's drawn has just yet is north and bored forty one thousand four hundred twenty nine whites one thousand three hundred three blacks four hundred thirteen hispanics so with that closely balanced white black if you had flipped ward six  would have had three black boards and two white boards you could have i guessed there to your question judge you didn't have to do it because no one of the consent decree has the required to do it he has the discretion to interpret the to send a crew in the manner that he sees fit in appropriate and based on the plain language of the consent decree there is no where in there this is played it has a right to create their own map for their federal law does not require the creation of a majority minority districts so they did not abus discretion by not allowing them to present their own maps so that's the study found it was the city soledad i'm just saying it's not so much that he had to adapt their map i all let's let's all assume we agree with that it's how do you go about the job of saying that the city's map hasn't complied adequately with the voting rights act well one way you could do it is saying oh for example here's another map that would comply maybe there are other ways you could you could do it i don't know but then i think you're right but then you go back to the way you are back to your honor's the fact that our deviation was talking six percent it wasn't under temper say it was slightly over so then you have to look at the reasons for a member that ten percent is smallest to largest it's not you know that you've got it a it's not just anything can be over ten percent correct i think so what how do we know our map was appropriate could it have been lower it could have been but our goal was not to the city's goal was not to reduce the variance as little as possible its goal was to comply with the consent decree and the goal was to respect the natural balance grease historical boundaries and that was the city's goal on the judge found that was with discretion it was proper under the existing case law that allows you know deviations over te city to be first reapportion consistent with the agreed upon ballot which they never did that that's their in bally's of the consent three which makes gives the plaintiffs the right to hold it  second two thousand and ten changing the election of chicago heights council it goes on the final map of the automatic district boundaries submitted by the parties as exhibit b and the corresponding minutes and bounds of the seven automatic districts submitted by the parties exhibit c are hereby approved there was no room for changing it goes on just the further down it says that they're after after the special elections that offended shall we apportion consisting would be in c they were supposed to do that that's the only reference that's the only application of the shell a portion we agreed on these boundaries you shall a portion of now after the election after the publication of the two thousand census this is our pace twenty five the parties will with reasonable dispatch reapportion the voting rights that the voting districts could simply create as two operative vis consensus the the census of two thousand and ten that were it additional changes that we're talking about the additional changes then the parties shall the reason you're on it that the plaintiffs are allowed given the onus or the responsibility opportunity to submit the initial met because that becomes the foundation from which you then operate the judge was locked in to the result and exactly what the supreme court in our legislators were trying to prove that you have a city where seven percent were seven thousand residents effectively control thirty thousand supposed to not let that happen and we keep hearing this talk about tamper said in the ten percent or now that you need to wrap up now are excited to present this de minimis our objective is supposed to be