that according to district court it went against your position why do you think the district court was wrong to read the case that way because this is the situation here it was still open on direct review in heresy arizona  the districts are going through the pre clearance process and had been granted pre clearance in the cities case they received more information later then withdrew the decision which i think it's clear that  more information letters do not operate as judgments on the merits therefore because of the situation with the city was still open on direct review retroactivity doctrine does  apply secondly retroactivity doctrine is not implicated here because mr focus is only acting asking for prospective relief under state law the city became her is still under an affirmative duty would you like an opportunity to discuss the supplemental authority that was cited by the the city the whole versus virginia board of education and its effect on the prospective arse's the retroactive application of shelby county yes ma'am i i don't disagree with that it's going to be that that would that what happened is possible it could happen the defense i've actually raised a section two defense below when the defendant know the defendants say this is why we didn't speak pre clear clearance because they didn't want to give the department information because it would show a section two violation that's what they have stated to you i understand that but but if we grant the relief you seek  they could not be successfully shot so hypothetically were that case to be brought we fear are your argument is that nobody could back out of section two violation under the new plan  drawn prior to shelby county action shot apply here because we were not given the opportunity to discover that the actual reasons the city chose to withdraw all the klan we feel that they were not legitimate reasons yes ma'am they they were not a fan of it and they were given several opportunities not to mess up some people see we said we suspect that was the case we were not given the opportunity to go we have a sara lee would i mean you've got now two at large and his opportunity to conduct discovery into whether the city had legitimate issues are legitimate considerations to withdraw after the more information letter and or way given the opportunity to investigate the situation of political considerations would be shown to override any legitimate considerations he may have had so you also believe that if in effect shelby county requires a retroactive application and that is it applies retroactively that it would be mathematically possible for the city to have three single member districts with each district containing as nearly an equal number of people as possible that would not have a retrogressive an impact i mean that's basically what they what the council decided the city represented to the department of justice that that was the case that the districts are drawn to and within the plan submitted wouldn't retain the minority representative in that district one but you believe if given opportunity you would be able to show by way of the two thousand and ten cen a minority district could be drawn that would allow for the minority representative to be retained in one of the three districts not at large conclusion mr look at what i asked that this court reversed the district court below that allow implementation of the council manager act in the city of decatur alabama good morning may it please the court i'd like to talk about the important shelby county section five issue before this court missed of ok it fails to understand is that section five was about maintaining the status quo and preventing changes that is to say under if decatur as the law says was covered  this council manager change was enacted under section five it could not implement administer that change unless  got pre clearance either from the d c district court or the department of justice if it did not get pre clearance that change could not be enforced and because section five was not declared unconstitutional and still is in effect if if that change could not be enforced in two thousand and ten it cannot be in force today now first of all that was then and this is now let's have a different hypothetical right now the city council is not keen on this change for a variety of reasons perhaps but let's assume the city council had a different point of view let's assume the city council said you know what we were barred by enforcing what our citizenry wanted to do with this new manager plan because of the preclearance requirement but we'd like to follow the law we'd like to follow that ordinance and we'd like to follow alabama state law and we don't have to preclearance any more let's go forward if the city council decided to do that there's nobody that could stop them if the city council did that it would have to have a new authority to do it it would have to have a new referendum or a new local statute or something that said now we want we want to pay the question of state law i don't know what happens you know when you've ignored an ordinance for maybe good reasons and then you don't want to know but that's not what we're here for their ads no reason let's assume the city council could go forward that existing law had they had ignored it before for good reasons but now the obstacle that required it to be ignored is eliminated nobody could based on federal law section five stop the city council from doing that that is the obstacle has not been removed the section five obstacle has not been removed by shelby county and that's what i would like to discuss if the if the court would allow me but it work and there's nobody to go to there's no department to get preclearance anymore of that so there it's been removed has it not it has not your honor it is to say if i could explain this this way i would refer to question whether or not the plaintiffs had to pay attorney's fees because their position was frivolous i don't think that a threat addressed directly this is a choice first of all is there any question based on what the supreme court said in harris versus arizona but soon he'll versus virginia cooper versus harris that at the time before shelby county arizona virginia north carolina were subject were covered jurisdictions subject to section five and shelby county has not changed it which is to say it's not retroactive it operates prospect of lee which means that changes made after shelby county can no longer be have the city council wanted to go forward with the existing ordinance and say ok we don't have to worry shelby county so we don't have to go to preclearance anymore we've got this statute it's on the book we're going to go forward with it i don't because we don't want to do it we're going to use as an excuse or shield section five pre clearance you know you're correct if the decatur city council decided tomorrow that it would go ahead and in force call an election for three districts in appoint a city manager and there's a say attempt to implement the twenty ten change the black citizens of decatur cannot challenge it under section five of the voting rights act because decatur is not a covered jurisdictions anymore they would have to file it as judge joe flaherty have revoked selected a section to suit or it may be possible that they could issue that what really this case is about the section to challenge but what this case is about judge can't carnes is whether a citizen of the cator mr bouck kids can get a court this court or the district court to order to order to cater now to enforce the two thousand and ten change but again it's not i don't know about state law and but i'll it's before us is whether or not section five is an obstacle in the absence of preclearance that's all we can deal you might have a great argument that look things have happened things have changed we had an ordinance we've done some different things but that's us that's not a state law issue that's not for us right now no but under the removal clause city of decatur has indicated that it is not enforcing it is not enforcing the twenty ten change because it could not be enforced it would have violated se doesn't want it to be a law that's fine dandy as well today the only way section five issues could come up would be if a congress enacted a new coverage clause which is not likely or be decatur or some other political subdivision were bailed in because of a voting rights violation the district court and that and then section five would become applicable council if the question boiled down to this the  under the under the statute because of voting rights if you write that down the question now becomes does it not whether or not the council's decision been probably say is that if the council tomorrow said we're going to enforce the ordinance section five of the ply section five applies but it can't be enforced because we don't have a forum who can enforce it so it so well that's true i understand that the difference between whether section five is still valid and whether it can be enforced at separate question i understand that but the basic question is what prevents the city from enforcing the referendum on  going forward basis because you argued in your brief that of the voters passed the referendum today the city could administrate the referendum without regard to section five although understandably it would be second it would be subject to section two of the v r a but wh doesn't the same hold true to the voter referendum at issue well the best again is the station between where the section five is still valid and then justifies the city from not enforcing the two thousand and ten change and whether anybody if they decide to go ahead with it would have enforcement authority to enforce section five which they don't now and here's a good example in augusta richmond and augusta richmond in tw the georgia simply ordered the consolidated government of augusta richmond county to change its election from the ember to july when the primaries are held in july they justice department objected in tw therefore augusta went ahead with its city elections in november after shelby county came down  georgia assembly made another change they ordered that the elections be held in maine rather than july nevertheless mr howard and other black citizens brought a lawsuit seeking to have section five that section five objection to the two thousand and twelve change in forced now the district court threw it out for the wrong reasons but with the right result he problem and it and he was wrong about that but this is the citizens of augusta did not have a remedy at that point because there had been a subsequent change after shelby county and they couldn't find a form the district court was not a proper form no form exists for them to enforce a section five claim that's the opposite situation from we've got here we don't unlike augusta decatur is continuing case it would be a completely new ball game as judged over that says black citizens of became or would have to follow section two lawsuit or a constitutional claim of some sort but they could not in any way rely on section five after the county change was made a decision by the council now to enforce the twenty ten and change would itself be a change that we could not that is that black citizens could not challenge under section five but is long as the city is compliant with that twenty ten change that is its obligation under section not to enforce it mr bouck cats can't require a court whether it's state or federal order to order the city to go forward with that obligation that's the same as saying that that that that shelby county is retroactive it's the same result so that's the difference between augusta and indicator here a citizen is trying to force the city to disobey it exactly how it works because here we had the supreme court obviously unwilling to declare section five unconstitutional and create a chaos in which all of the changes that have not been changes after june twenty five twenty thirteen are free of section five obligations but there has to be a change there has to be a change now as you say decatur could create its own change but it can't be forced to do so without an independent change in state law that's all we're saying let us give you an opportunity to address mr katz argument with regard to discovery and challenging the legitimate considerations right well the the motives and under section five scheme the motives of the state actor of the political subdivision are absolutely irrelevant i mean it section five categorically said that you can't implement this change for any reason unless you get a pre clearance from the d c court or d o j so motives or it are not an issue or the merits of whether it would in fact have caused retrogression or not initiate the fact was it was never pre cleared because even though the city attorney went ahead and did the submission it was clear clearly redistricted mayor council districts and got pre cleared and i think it could be argued that that preclearance of their mayor council five districts in two thousand and twelve provided the the first like address that mr black church has conceded the fact that or a new referendum passed say that the city would have no obstacle under section five in implementing the referendum and to that point  i would just say that there's a state law question about whether or not they are remain under a duty to table meet the referendum and we would argue that they do but that's a decision to be made by a different court and  addressing the augusta richmond decision as mr boxer said in that case there was an objection entered that is not the situation with the city of decatur here they did they could have waited to receive an objection after receiving the more information later they did not do so they chose to withdraw without providing any additional information which we don't know whether they had or not and instead of simply i guess waiting it out to see what the department of justice would say which they possibly would have pre cleared the council manager plan in two thousand and twelve we simply don't know so for those reasons augusta richmond does not seem to be directly applicable here and the issue of retroactivity is still alive as the councilmen drag was still open on direct review for possible pre clearance at a later date and citizens of decatur would also be left without a riveting for the enforcement of the referendum that occurred in two thousand and ten they would have no venue to have the issues brought up by the city address in  and a change has occurred mr cook adds brought his lawsuit it is not up to the city council to decide whether or not it now wants to implement or change the can to the council manager act which market says has asked them to do so under state law and believes he would be successful in showing that they do have a duty continuing under state law to implement the council manager act in the city of decatur now the city  was asked by the department justice whether five districts could be retained under the council manager act you know what we feel that that's also a lot of question where are the issues were that this case to be returned purely issues of state law we would argue that the way the law is the way the council manager act is written potentially allows for the retention of five districts just with the council manager in place of the mayor so i think there are several different questions that have to be more questions that have to be judgment below for the reasons outlined today in briefs and allow us to proceed proceed with the litigation addressing these issues that need addressing at the lower court level