morning made through the court under the california voting rights act race and race alone is that permanent consideration in determining whether a municipality may keep its at large districts or has to move to another system app sought to challenge that law under the equal protection clause but the district court never reached the merits because it dismissed for lack of standing and we think that analysis was flawed for several reasons so starting with causation our causal chain unquestionably has more than one link but it's straightforward and completely plausible which is all that's required counsel it before you get into the you have to do that it seems to me there's a quite a separate analysis for the attorney general versus the city the city adopted a map it actually the adoption of that map affected your client's ability to vote for a certain number of people and i can kind of follow the chain of logic here with respect to the attorney general  i actually don't follow your logic because the attorney general had nothing to do with the development of the map that affected your client and hasn't done anything relevant with regard to this so if you start there sure and i think so starting right there i think the autobahn case which we say pretty extensively i think that's right on point because everything you just said could be applied to the autobahn case too so the federal government so just like our case autobahn involved a california state law and then another government in the middle and then the action that injured the plaintiff at the end and so the federal government in response to what the state did took some actions which entered the plaintiff and so the federal government didn't make those policies it didn't design them it didn't enforce them it just chose to comply with them and then that gave rise to the plaintiff's injuries i think that's on all fours with what what is the attorney general done to comply that's my question  seems to me that all that's happened is that the city adopted the map and there we are but i don't i still don't see the connection to the state rate so i think audubon also talks about sort of the order of operations and looking at these just disability issues so once you have a live right active controversy withstanding what ex parte young does is it answers the question of who you're supposed to sue and so as i read audubon are cases again the not the attorney general a private lawyer you know john doe jane smith over here so the attorney general had nothing to do with that either right although so a couple things so first of all i think i think because case we say several cases for the proposition that municipalities can't bring constitutional claims against the state and the reason for that is the city is seen as sort of an arm or a subdivision of the state and so i think if we had just sued the city and said your map is unconstitutional because you use these racial considerations under the sea the ira i actually think we could challenge the see the area that in that posture but you know it would have been i think i don't i don't disagree with you because it seems to me that once you have let us assuming for the sake of this question that you have standing your client has standing to sue the city and say this map is no good you can make any argument you want in support of that it's no good because you were asleep when you did it and that doesn't actually cover the whole city or it's because the statute is unconstitutional or because whatever so that's an argument in support of your claim but i still don't see what would happen is the attorney general then would have intervened to defend the statute so it's i think it's a little ironic you do that if they want but that's different than saying that you have standing to think that but i agree with you completely and if that's the way your honor approaches it i agree that we could litigate o challenge to the sea very with the city as a proper defendant and and i think the district court really viewed the city as just sort of an afterthought and just said even though the city didn't file a motion to dismiss the district court just to a spontaneous miss the city without doing  that that you just mention council i have to say the lie i agree with you national audubon society richard davis seems to be right on point and in that case the court did not require the plaintiffs to show that the official in this case the government would be likely to enforce the statute isn't that really the issue that my colleague has raised here right absolutely and so i think in audubon society i think there had been one totally unrelated enforcement action a long time ago and someone and it wasn't in any way related to the dispute there so so again i think i think we can because we have a live controversy i think between the having standing young does is it just addresses the choice of defense so for example i think i don't think we could have sued shank man or another attorney even though they are the ones that were technically trying to enforce the statute against us because they're not state actors they don't operate under color of state law so i think expert a young just tells us who the proper defendant is one that suit what role if any does the fact that the city would likely have made no change to its at large voting system but for the existence of the c v r a what what role does that play as opposed to the what the court decided which was the fear of large attorney fees because those attorney fees would not have had any genesis but by the existence of the c v r a of course and so a couple things about that so first of all as it is wrong to said the attorneys fees are fees for the c v r a action so i don't think you can just separate those out but the reason why the fia award is especially risky for the city is because it's so easy to win on the c v r a claims all you have to do is show people of different races vote for different candidates and then you basically ask the city for a check and i my california and i understand this issue and i guess my my point is simply that the court seemed to focus on the fact that the city very understandably was concerned about huge attorney fees but the there never would have been the issue in the first place but the existence of the c v r a i want to make sure we don't just take the c v r a out of this as the motivational is super helpful because that says in a case with multiple links in the causal chain it said one thing you can look at for the middle link is what is the middle link what are they saying what have they said about why they did what they did and here i think that's absolutely dispositive because council member mullen said i have no illusions this will lead to better government but quote we have a gun to our heads and we have no choice deputy mayor leonard i hate it but i get it it's just the deck is stacked and we roll over to these bullies  support this because we have no choice not because we're doing what's best for the city and then the last point is just quickly and redress ability i think i think the district's holding on addressability just ignores the fact that any discretionary government action might be done for an improper reason but the fact that the government could do the same thing again for a proper reason doesn't defeat redress ability and so especially in the administrative law context administrative agencies all the time get told you need to explain this better you need to  respond to this argument you need to consider these different factors and under the district court's theory of standing there would never be standing to challenge any mystery back a district court could enjoying the implementation of one thirty three in order of the city return  this court should reverse the district court's denial of my client's motion to intervene and should grant intervention cassel let me ask you if i understood correctly the district court basically said since there's no lawsuit there's nothing in which to intervene assume for the moment that we were to reverse because they were standing why shouldn't this issue go back to the district court for an initial exercise of its discretion because it never exercise discretion or my hypothetical is no good because there is a lot so that's what we would be reviewing but why would we go beyond that to consider discretionary factors that the district court has never looked at well your honor the intervention of right standard is not just pressure nary a permissive intervention is reviewed for abuse of discretion but intervention as of right is reviewed de novo it is but that there are facts that pertain to whether that's an appropriate exercise for example the positions of other parties let's say the attorney general were to take a different position than it's taken it just seems to me that that is not a court of appeals work in the first instance court decides against plaint it on the issue of standing and plaintiff decides to appeal to the supreme court my clients will be shut out of that proceeding but that proceeding will i understand that your honor i guess what i'm saying is that the decision that your that this panel reaches on the issue of standing itself impacts my client's interests and so deciding that plaintiff has standing and would in fact impair my client's interest do in particular under the c v r a and under powys district map to protect their district maps and to your motion to intervene right but you're right there at the beginning there standing move forward insert whatever you want i don't see how if we were to rule the other way and you want to goes from court to get your point but i don't understand your problem if we send this back to the district court and you have the right in the first instance to argue what you did when the court decided this case is over what's the point so this brings me to a point with plaintiff's argument that i would like to clarify and that is particularly what what will impair my client's interest a ruling that plaintiff has standing means that under his theory any time a local government converts from at large to by district elections a disgruntled resident could challenge that conversion without having to show that he was discriminated against on the basis of his race the supreme court has a limited the harms addressed in a voting rights act into two kinds of injuries one the injury to voters caused by the electoral system giving effect to racially polarized voting which is not the state's use of race and that is the injury that the c v r a in the federal voting rights  are designed to remedy and to the injury caused by including of voters in a particular district as opposed to another also on the basis of their race and that's known as a shot type injury and plaintiff has not alleged either harm so for the for this court to find that plaintiff in fact has suffered a race based injury would affect my clients is not a matter of whether it's race based or it isn't the injury is the change in my view is the change from the ability to vote for for people to the ability to vote for one person whatever the reason that's the injury that's allowed just and whether that's for a good reason or a bad reason a constitutional or not constitutional reason is separate from the standing inquiry and so it seems to me that you're sort of folding it into the merits which is why it seems to me more appropriate for the district court to be looking at it in the first advice by district system is not an injury that this circuit has said constitutes an injury in fact indeed we use districts all the time and governments have moved from at large by district elections all the time and people have not been injured in doing so well in tips and well they may or may not have brought a law suit but it doesn't mean there is not an injury sufficient for article three stand which is a very narrow question that has nothing to do with the merits of whether it's a good idea or a bad idea and we have in my judgment a very significant issue you oppose what higginson's doing and yet you you are we don't have anything from you nothing other than your right to intervene and yet you want to argue the merits for us to consider that in connection with a grant standing to higginson and not a little backwards i mean if you had argued if you were if you had had all the merits and everything and we considered all at the district court i get that but you're coming in at a point perhaps just because that's what the district court did but you're coming in at a point where we really can't take into account the underlying concerns you have without introducing a whole new element which was simply not before the district court of i understand it correctly and i'm missing something i do disagree i think this was before the district court and the district court erred in denying my client's their intervention but the court denied it for the sole reason that taken sunlight standing and so there was no lawsuit in which to intervene when that which you know that that's the only premises of the district that the district court on the merits might well agree with you  don't have any idea and neither do you because that the court didn't rule on that and that's i guess my concern and you're asking us really to perform the role of the district court in analyzing what you're saying it  respect well this court has done that in the past i mean that is sort of the essence of the nova review i mean in here where there is an outright denial of intervention whatever the basis here it was which violated or contradicted two cases at least of this court and we're back to the facts to look at we know lots of law but we don't have the facts how can we do that i'm sorry i don't i don't know you're asking us to do a noble reviewed novel review what there are no facts that you put in that we can consider here well we put our motion to intervene and under this court's precedent the court looks to and takes as true all of the allegations in the motion to intervene and it's supporting documents and construes them liberally in favor of intervention if there are no over the questionnaire i think we understand your position thank you very much good morning may please the court i'm alan fenster mocker here representing the city of power and as the court is aware of us far the city has taken a neutral position on this on the merits of this action and continues to do so the city has three main goals with respect to this action and that is a limit cost to its taxpayers follow the law and encourage to the extent possible expedient resolution of this action council can i just do this is there anything in the record that would confirm one way or another whether the city of poly would have changed its at large voting system to the new system had it not been for the existence of the c v r a i do think the record is clear that the c impetus for the change and i don't think this was on the city's radar at all and you know on that point you know a vote of the people was actually required for throughout the history of california are for many years to convert to district elections and it was only in twenty sixteen when california government code three four eight six was an act it and the reason that was an act it was to allow cities to easily move to district elections when faced with d v r a claim and that's and  if i understand it correctly it is the c v r a that gave the attorney basically the power to intimidate the city into making the change because as an attorney because in it so the attorney is kind of the middle person that the threat of it though went back to the c v r the c v r required a notice by the attorneys what forty five days or something like that to give voters before you initiate an action and that's what we used in california and  i guess i would say i believe you know we haven't opposed the motion for a new meaning to do it again where we're trying to limit our our cost and expense in this action but i would say i believe the state adequately represents interest because that's the one point i actually want to make your honor and i'm happy for your question because there's no allegation here that the city did anything unusual or violated the law but for the c v r of being unconstitutional right it's a facial challenge to the c v r of so well it's a challenge to map one thirty three or whatever the right number is on that man because it's the it's the cities had option of that map that's the problem i mean if  were just out there as an abstract thing then there'd be no lawsuit right i guess you're honor i don't understand that but there's no allegation that the city violated any state or federal law in its adoption of the map  california statute what would the city of paoli do well i think if it was say the issue was as in the sense remanded back to the city council i guess the answer is twofold first i can't opine now what the city council would do i think the record was clear that they didn't want to convert to by district elections i couldn't tell you how the city council as you know as constituted when this came back to them what their legislative decision would of court could order them to go back yes and that large let's say the let's take that hypothetical your honor if the court ordered a city to go back to at large and the c v r it was unconstitutional i actually don't know that the city has the power by ordinance to go back to districts because in government code three four eight eight six california government code you can only move by ordinance in the furtherance of the c v r a that's in the language there that has to be in your ordinance so would you continue with my district election even though we might possibly invalidate the california is that you i'm sorry your honor yes the city is currently proceeding with its by district elections right now and will follow our judgment would make a difference well if your judgment invalidated the c v r a and this i think that would give the city council a chance to reconsider potentially and rescind its ordinance i just don't know if it would do that if the court didn't specifically invalidate the ordinance code that you made reference to though as part of the c v r it right it actually is not in the california elections code but it but it wasn't acted if you look at the legislative history and the text as you know in response essentially to cities getting hit with huge attorneys fees bills because they had to put the question on the ballot and they would get sued in the interim so this was a way an easy way so to speak for cities to convert to districts this standing in this case you know again the city has not taken a position on standing we are our view is this should be a lawsuit between the state and the plaintiffs and the reason for that again is the plaint s challenge without the city wanted the defendant i'm sorry without the city being a that's right but it's only the city that's done something that harms the point of how legibly and that it has changed his ability to vote for for  people i do understand that argument your honor i i would still say that because it's a challenge to state law and as a general law city we have to follow state law and that's all we've ever wanted to do frankly is follow the law we shouldn't be put in a position of litigating whether or not the c v r is unconstitutional that's something the city doesn't want to taxpayers paying for and i think the state is the right and indeed to do that and thus far the train general has vigorously defended its constitutionality respecting your city's desires the out of this though and see that you are a fine legal scholar i'm interested in your legal opinion about whether you're you think the nation a lot of on society versus davis cases fours on the standing issue yeah again you know  that case there was no ability to enforce the statute privately by law soon and so there there wasn't really any other i mean it just all folded into itself right here there is not only the ability but the actuality of a private individual coming in and saying i'm suing the city brian under this statute and you know change your ways and give me my lawyer fees the sta having no part in it whatsoever i think that is somewhat of a difference but i would say that in this case the california legislature has chosen to enforce this law be a private lawyers that's right that's the distinction from audubon that i'm exactly saying there was no similar ability under the statute that was indeed there are so only the state could enforce it and here that is not the case that's factually accurate your honor can we treat mr i think this law somewhat similar to perhaps the a b a where it's in force by private attorneys rather than the government itself because of funding issues or you know what why ever the legislature does what it does and your honors i i would like to just say before i close that i'm not in the practice of asking courts to make decisions in a certain timeframe but i do have to respectfully request that the court continue its expedited ruling on on this case just with the practical issues of the upcoming election and the uncertainty that's causing in the city would like to express its gratitude at the fast pace the court has moved thus far and for the to that point when have when do people have to if you will put their papers in map one thirty  nomination period opens on july sixteenth and closes and in august per elections code and i would say it's not as simple as that because i can tell you you know being the city attorney the clerk's office is already busy working implementing the ma and you know there's been a lot of work already going into this and just more and more and more work it you know goes down the line as as we get closer and closer to the election and of course you know post election i don't think it would ever be appropriate to have some sort of post election injunction but at any rate a does not require any action by a political subdivision unless there is a violation of the c v r way that means unless racially polarized voting is occurring as counsel for the city of power i pointed out there's no allegation in this law was that a violation has occurred there's no allegation that racially polarized voting is occurring instead we have allegations that the city made this change to its election system in response to a letter from a private attorney threatening litigation under the  r right however absent a violation or factual allegations that the city believed there was a violation of the city wasn't required to take any action but it took some action because  not doesn't mean they'll be successful your honor my argument would be that for standing we're looking for a fairly traceable injury that is not the result of the actions of independent third parties but counsel with respect whatsoever to get this result and i mean you know you're handling this i don't know how many cities in california have had this thus far but it's at least twenty five thirty or so and every one of takes the same approach boy we don't want millions and millions of dollars worth of fees let's just settle that's what they're all doing that's what it was designed to do in the legislature it's very very clear so let's be clear if the scene acquired all of this action was t r right to tie it to a private citizen is ludicrous it's just ludicrous and i don't see how we can seriously take that argument into play your honor i understand  understand the point you're making there of course if the c v r didn't say c v r a did not exist private attorneys would not threaten litigation under it that is that is true the c v r i was in acted in two thousand and three and it wasn't until this past year that this letter was received and this change occurred let me let me move you to a different point if i may this city is steadfastly refusing to defend itself and i want you to assume for the sake of this question that we were to hold that there is standing to challenge the city's mayor because it has a direct effect on the individual plaintiffs ability to vote for candidates so it's concrete particularized all of those things and let's let's further suppose that we don't find audubon on all fours in terms of the attorney general would the attorney general intervene to defend the law in a situation in which there is a challenge to the validity of the statute and the defending city refuses to defend your honor i really cannot answer that question with regard to the specific case that would be it would be a case by case determination as to whether the attorney general would intervene in that situation isn't there an obligation to do that your honor i mean that's a trick question not a not meant to be a rhetorical question because i don't know the ins and outs of california law that regard your honor i don't believe i did not actually look into that specific question in preparation today but i'm not sure that it would be an obligation if the attorney general were not named in the suit i would of course have to have to look into that further is the various say it's not an obligation the attorney general refused to defend prop eight that whole thing for personal reasons and california attorney general have frequent le from time to time decided not to defend the law but in that circumstance others have been deputized to do so and most instances but somebody would defend the law yeah the do that if we let the attorney general off the hook but not the city you want to found why wouldn't we let the intervenor intervene your honor the attorney general has not opposed the motion for intervention at all and  allowing the intervention asked whether that would affect a decision if we do reach that point about the attorney general trying to intervene i simply cannot say that would be speculation that something that would happen at the higher levels of the department  the question of injury in fact for standing can't be completely and entirely divorced from the type of claim being made and mr higginson only brings an equal protection vote and if he suddenly can't vote as much as he used to that's a measure in fact i mean maybe simplistic but that's kind of my going in for want what's wrong with your i think there there's a flip side to that argument stract or if they have a personal stake in the question i guess i don't see why that isn't a personal story i understand your honor i was simply trying to point out that it's not necessary necessarily true that it is a harm i also  out this is a distinguishable from the other cases that taken some points to in which we weren't looking at equal protection challenges we were in fact looking at situations where the government was looking to enter into a consent decree that would move from at large elections to by district elections but there by they were avoiding the requirement to have a city wide election about whether  that change was whether that change should go through so it was a completely different posture in the other cases that have found this to be an enduring fact we would argue that it doesn't perform the same function here with an equal protection claim to think your honor just one final note on the question of private enforcement and autobahn so we think the fact that the state has essentially outsourced this to private attorneys makes the need for this courts or the discourse review even stronger because and whether that's against the city or the attorney general because when this is about fundamental public rights about how town the structures are to but can't you get complete relief with just the city as the defendant i don't understand why that right i mean that isn't the whole answer because if you have a claim against the state you're entitle to bring it but i'm just i just i don't understand the  traceability argument you know we continue to believe the attorney generals of property but we agree with you that we can get complete relief through the city and would be very happy with the ruling saying we can litigate our facial challenge the seabury with the city and so on and i want you to assume now for the sake of this question that there is standing to sue the city but not the attorney general and the city will not defend why shouldn't we allow the interveners to intervene you know i i think our primary issue with the interveners i mean i haven't spent a lot of time on this as you can tell but you know the we just think that they're making all the same arguments the attorney general is making and so on but if the attorney general's out of the law says but then the city makes no then i forget if it was the city or the attorney general but i do agree i think it was the city that said we aren't we don't have any unique objection to what the city did beyond the city implemented the race based mandates in the cvo race so we don't it's not as if we're saying that above and beyond the c v r a very unique deficiencies in one thirty three and in fact we think what happened here well illustrates the way the c v r as well use up my question is focused on the fact that if it goes the way my hypothetical goes there would be no defense from the defendant speaking as one of them would be out of the lawsuit and the other will remain mom and not do anything so if they intervene or would take the same arguments that the state were in the suit worsley would i think why would we allow it if if both of them were out it would seem that that might be appropriate but i still think if if the court only found standing for the city i would wager that the state will be filing intervene imminently maybe maybe we don't know that i just want to be sure of one thing it is your position that if the attorney general were not involved that lawsuit against the city would enable you to facial challenge basis have the c v r a declared unconstitutional i think so because we could say the city's action was motivated by a desire to implemented a law which has on its face and constitution so i think we could i think we could litigate that with just the city as a defendant if the city doesn't do anything in the attorney general doesn't do anything you go in intervene or you saw the same situation yes i think  you know and again and i think i think there are requirements to notify the state in district court when you're challenging the constitutionality of a state law so i guess we would then notify the attorney general that we're doing that and then the attorney general could decide whether participate but