this is a rare earth not unique case where the challenge election system in a section two case resulted in actual proportional representation in proponents of that unique factor or a factor  that's something that's important both on the probability of success on the merits and on the balance of equities and i propose to begin by talking very briefly about the balance of equities and then spend the bulk of my time on the probability of success on the merits but i want to hampton in pasadena pasadena has about fifty percent of its population citizen voting age population of sleeve out is hispanic forty two percent of the registered voters or hispanic and in the election system which has an eight member city council four b eight seats are fifty percent i'm sorry to interrupt you but do we use that forty two if you look at see back if you look at registered voters which is sort of what would tell you if you did a random analysis hundred twenty percent of representation but it's one hundred percent representation perceive that's the important number and because of that if a stay is granted and this system is required to be used in the twenty seventeen election it's not going in to the point of this is a system that resulted in four proportion rosenthal one she found the dilution to she found that the six to plan was enacted with discriminatory intent so that your position on the balance of the harms i think you assume for each side that they're going to end up prevailing and see which harm is greater won't you acknowledge that allowing a plan to go forward the judge rosenthal found and we may uphold as an act with discriminatory intent is a significant harm well judge rosenthal acknowledge at least in the argument when we were arguing it before her that if there is no discriminatory effect then you don't even get to the discriminatory intent question we disagree strongly with the discriminatory intent finding but we believe that it's very clear that there is no discriminatory effect but if there is you can see if that ends up getting appellate you can see that's a significant well i don't think if there is no discriminatory effect that there is any  assuming all assume her entire opinion gets a pelt eight months from now or whenever that happens and we're going to stay in means that we ended up having this election under this plan that ends up being a can affirm to be having discriminatory effect and intent that's a significant harm isn't it well certainly yes or no it may be a form to the plaintiffs if it in fact has a discriminatory effect we don't think that it does we think  count you have elections every two years there's at least ten i think it's eleven elections under the eight zero system that some something like that and during those eleven elections about half the time in resulted in having a it also said if you go through an election you're hoping like and different than the one of the state adopted you can't run court's recent decisions in this area is that it is concerned about confusion resulting from poor changes to election laws close in time to the election she carried the day and the supreme court is interview tuesday staying steady previously granted in recent times which the idea that the older system should prevail do you argue in this case that your two thousand and fifteen plan should remain in place because it would disrupt the status quo or are you only responding to opposing counsel's argument that the status quo is the two thousand thirteen plan or are you arguing yourself that it's that it would be disruptive to implement judge rosenthal's order  d disruption is not the main thing we're presenting it here is obviously it is disruptive to the status quo because the status quo weasley twenty fifteen plan we think that there is sufficient time to use the there is comparable to what the supreme court has said is appropriate in other cases also every one of the fall and you have a copy of the as in my reply i was given a letter from the city secretary explaining the status of the state the fact there was a stay what would happen if the state was granted the city would notify everybody and they should also look to these media to make sure they were the time to fashion its own plan as when there's needs to be a remedial plan it's my understanding is to go back to the government entity first to let them try to fashion a plan that would meet if there's been a finding you guess wrong we think  but we could do that in a few days we briefed that argument do you brief that argument we did not believe that we did not put that in we consider that is one of our reasons why we should grant a stay in your favor if we were so inclined under the law well i think the main reason the chief should land a state is that there is a great probability of success on the merits in that you hand in the system that resulted that it clearly is not that one did it resulted in this system and proportional representation and the district court in failing to find there before and before you get into that i could answer judge iran's question of whether we can grant a stay on an argument not raised in your application for a stay well i think we certainly did raise the argument we didn't specifically think brave the so it was raised it is an answer that is possible on this on the merits position that you are getting into as i understand it your argument is that in looking at proportion which is one of many circumstances considered in the final jingles analysis then judge rosenthal should have looked at the actual election results in two thousand and fifteen under the six two plan in which four latino preferred candidates won if you get your stay in the elections happen this year and only two latino preferred candidates win under the six two plan then under your analysis would there be a whole new  determination and that would constitute a vote dilution or at least not proportionality because only twenty five percent of latino preferred candidates would have actually won well the voting rights act doesn't guarantee success it guarantees opportunity and clearly there is opportunity under that plan i think that in this plan if you look at it the odds of only two hispanic or candidates winning are pretty remote you have a destr there in the district and in the predecessor district the hispanic preferred candidate has won two times the last time with fifty seven point five percent of the vote in a three person race he's running again another one for the which latino preferred candidate won so those results show proportionality that i am saying that and i'm not i don't think the supreme court say you don't look at results i'm saying the supreme court's asian look at opportunity there's no guarantee of success the fact that two would have won does not disprove the fact that there is opportunity and in proportionality the district court has had the idea based its opinion in part on the fact that proportionality is discussed in johnson versus randy applies only after you have majority minority districts and isn't that what footnote eleven says put him in the footnote johnson versus the gray meat they have majority minority systems before them they had zero election results there had never been an election under their plan and in fact that's almost be to correct that the opportunity is there and in district b three out of every five ridged of voters are hispanic that is one more hispanics clearly have the opportunity to turn out to vote and if they don't under sallust versus southwest texas junior college a district that the court said that's of his search it you know it's just a question mark taking advantage of the opportunity an you're talking about the forty seven percent or something that that's enough to make it an opportunity district to set your point it certainly is give them the background of their district and how they vote  factors that are the senate factors or the the bugles factors is it your position that that was error for the district court to rely on those other points that are not actual factors or is it your position that that's you're not complaining about that well i'm not complaining about the fact that she would lie about them i do think that the facts did not support her conclusions only and those are you know response to this is not something that is a major factor in determining proportionality or opportunity to elect and if you actually look at the record good morning the city's claim most of a substantial case on the merits or likelihood of success on appeal is that the outcome of two contests in twenty fifteen is dispositive of the vote analysis this argument doesn't rise to the level of even a substantial case on the merits and the balance of the harms tip sharply in favor of the player voters in this case the district court considered the city's argument at summary judgment and trial and the district court did weigh the evidence of those two contests in twenty fifteen along with the other contests in twenty fifty why shouldn't we stay the district court for the reason that d d may or may not have the opportunity strict as it's constituted and even if it's not it could be tweaked slightly to definitely being one and that that's a more astute a solution that's more respectful of the legislative intent rather than getting rid of those at large just because the district court correct solution that would be more respectful of the legislature because the district court didn't have information that was sufficient to allow it to conclude that the city court decision was on january sixth and this was within three weeks and briefing from the post office it was an extremely urgent schedule after the district court made its ruling on january sixth it not the most deferential thing it could do it was the most deferential thing the district court could do in light of the violation that it did find that district who was not an opportunity destroyed the city did not disclose a block assignment any information about only disclosed a map with some numbers and without a block the sign that we need to run and now says the court would have had to displace the election schedule for the city to give consideration of the facts state no your honor and we didn't know that the city was going to try to come up with a tweet plan until after the court had a rule and shortly before it imposed remedy which was to turn back to the twenty thirteen redistricting plan as i mentioned there was insufficient time to analyze the tweak in terms of how it would actually play out for opportunity to a life there would have been a way for example to reactor again past election results see if the districts only a picture of a man and a table that gave us spanish money voter registration and citizen voting age population without that information even under an expedited schedule wouldn't been able to engage on this question whether the twe districts so it would have been a greater analysis than just the fact that d for the temporary we could we have done it and moved the filing period by a week or two i don't know but because we didn't have the block assign files from the city it became a moot point there wasn't enough information for the court to determine that the tweak actually provided the opportunity to elect that the city claimed that it did do you believe that this opinion hinges on the use of race and party as proxies for each other or with the opinion stand without that oh absolutely there was considerable evidence in the district court that race was the motivating factor for the change there were a few stray references to participation and the court looked at those and found that the city is using those terms as prop guns when i don't know that but you but you're not saying that's an important finding it is not  important as someone saying pasadena is going to turn blue that doesn't sound like a proxy for race even if someone plot it in their mind that that i mean there was only really t references partisanship one was in a meeting and which everybody was a boeing seven from the hispanic witness who testified and then there was another reference to heart association which was that the city employee and instructed  pull democratic names with said i don't really know why resident that but that appears to be really the only real evidence of that point that one to mr scott did that one time and the mayor acquiesced or any kind of thing like that and there is no other evidence of partisanship at all in this case you know these are nonpartisan election well universally the witnesses testify that partisanship has nothing to do with the operations of the city and  this case because the city hasn't raised it as a justification likewise the gun references the court says it's some evidence albeit weak evidence it do you you don't rest on that do you believe that gun situation is important in this with it there's no evidence of that i don't understand why that's even pertinent whatsoever the district court found that it was not and heavily with the fact it was not an important fact but the testimony at trial in the district court was closer to the facts and  in which the city would take public testimony regarding the new redistricting plan under the six two system it was extremely controversial tensions were high and many of the people who came to speak in became threatening to him and the court took that as a small fact certainly the decision doesn't turn on that but that is what the revolution court took that what arlington heights as you can in determining intent one of various factors is whether procedures were violated it would show this was a particularly volatile issue perhaps one motivated by race but i want to move to the vote to lucian analysis in the city first they argue we should look at the result that four latino preferred candidates out of a one but they have a somewhat connected but somewhat distinct argument that even aside from looking at the election results a few of these districts including the two out large districts are if not they're not majority minority under the facts down by the district court but they're close to it and therefore they should count as crossover districts and crossover districts should be used in the proportionality analysis it's a little bit interesting because section two plaintiffs that you often represent are usually the ones pushing for courts to consider crossover districts at the first step of the section two analysis and the supreme court in bartlett said sorry we're not going to allow that in justice kennedy's opinion but what we're looking at proportion at the end of the day you're trying to figure out does this minority group have voting power that's not being diluted that's the true flecked of of their actual presence in the community why shouldn't we look at the fact that as the city points out here you can actually five of the districts there's a decent chance preferred candidates can win a majority of these districts well that is certainly not apparent from the record or the district court's findings the district court was  can dispose of the question of whether the district is an opportunity to change that is a claim of legal error by the city that the district court erred and there is not a single case to support the contention that on election in a minority latino district where all the candidates had anglo certain names disposes of the question of opportunity to allow the second legal error by the city is that when there and almost all of the challenge histories and the district court looked carefully at that one election and election results and the election of african american preferred candidates weighed in the totality of the circumstances and polluted that those results did not answer the question of vote dilution that's what the district court did here following very loyally to the instructions that are given to us and barbour versus jingles johnson  city have not a single case to support them and that is at this stage in stage there is no reason to grant a stay because of the likelihood success now maybe the city wants to forge on in the appeal and trying to make new law and that certainly their right to be able to do that but here and now there is no likelihood of success on appeal because there is no single case supporting these contention can you walk us through what the evidence is that it has the effect of the dilution and then also walk us through what the evidence is that it has the intent of the dilution and in doing so can you exclude anything that are  statements by other city council members as to what the motives were you know some of these statements are exactly the same they are the exact statements that were called into question one of the one of the legislator uniform your honor that lower hispanic registration internet rates are lower minority registration and turnout rates are often tied to a history of past discrimination and current facts as well as with the court found here which was continuing discrimination against hispanics in the city and the court connected them to a lower level of political engagement by hispanics in pasadena and a sense that i don't want to put this a long way your honor but a sense that not being able to be effective in city elections or being able to elect candidates who are more responsive to their needs tended to have more of a depressive effect on voter registration turnout than it had an enhanced effect and so you would contend that forty two percent voter registration from a citizen voting age population is in the upper forty's would be pretty typical and then a voter turnout below that would also be fairly typical in these types of cases i would like to turn to the courts functional analysis of out large elections in the court did look at what happened in twenty fifty with respect to the twenty fifteen a situation involving only all anglo candidates and concluded in the totality of circumstances considering demographics racially polarized only in the senate factors and the twenty fifteen election result that the city a large d whether what's been called the purcell principle this idea that court shouldn't make changes near in time to elections or one selection procedures are underway how does that play out in this case here because the election is underway reason that they're out there campaigning at this point is despite this it is characterization of this is manufactured is because lopez city voters in a low profile election with the kind of retail politics that occur pasadena candidates have to get out there early they have to meet multiple counts particularly with respect to the latino community latino voters who may know to vote in the number election but if they are low propensity voters they're going to have to consideration of stay there is typically extra record information that is considered for example mail ballots have gone out what types of injury would be incurred by the jurisdiction that this actually contains the the f e n s viewpoints on what the facts would be it's sort of their own speculation and has it been tested or seems like it's not very provocative or even if they are consider well it is the information that is available to the court right now that campaigning has begun that candidates have spoken to hundreds of voters at this point what evidence is there on the record that if we granted the stay there would be an orderly time to allow i guess people have to reapply the candidates have to reapply under the six to format and what evidence is there that that would be a smooth orderly process for which there would be enough time there is not evidence that it would be a smooth an orderly process and in fact it would create confusion in lower voter turnout and also creates a disparity in the treatment of voters here and the movement has the burden on states to the extent there's no evidence on what would happen to the election process that's already underway doesn't that hurt the movement it does in the city has not argued and you heard this today the city has not argued that it would have to retrain all workers change procedures as a result of the implementation of its twenty thirteen plan it would not have to print and kind of different materials the city will will not experience an injury to its procedures or its use of money or staff time but voters on the other side will experience an enormous impact and be treated differently some others will stay in their district and they will continue to be deciding to vote between a candidate that they understand that they have in of now a whole other set of many thousands of voters will be shifted into another district and they will have to then gain a new set of candidates and really learn what the positions are so the destruction i quite an event to voters depending on where they live and how close they are to the current district boundaries in the eight zero plan which is where they currently think they are going to be voting in council one significant part of the district court's opinion is the monitoring that's set up in the opinion but is that relevant at all to this analysis that we're conducting today no your honor i don't believe so i think that the status specifically aimed at whether or not to use the twenty thirty we district plan or the invalidated twenty fifty redistricting plan so whether or not that was an appropriate legal decision doesn't bear on whether we should grant a stay or not with respect to section three panel in your honor no one believe that the issues are quite separate the last thing i wanted to mention before either is that because proportionality is only one of nine factors in the totality of the circumstances analysis the city's claim error here is limited to push anality and thus it does not raise a substantial claim on the merits because even if the city is right on a portion ality it still has to be weighed within the totality of circumstances and there's no question that the district court did that way and the city raises no argument with the district court's findings under the other acts of tally the other nine senate factors and ten responsiveness which is mentioned in lucky perry and then finally respect to the question of maliki which has been discussed extensively first that's not our only argument in this case although i think it is our initial one because it is such a compelling and important most of the cases do look just at majority minority districts based on demographics because most of these cases are pre election there's never been an election in the plan and so it seems we're acknowledging no case says what you want and maybe it's because no case been out there but doesn't the fact that you're asking us to apply a new rule for what may well be a novel situation which may end up hearing today on appeal but doesn't that by definition make it hard for you to show a substantial likelihood of winning that argument w case law is ever adopted your position i disagree your honor in part of the reason for that is and already there is no case or appears to be no case because we're not a whole lot of proportionality cases out there the ones that do are in this short time frame but if you look at johnson versus grainy and you read the entire case of course all they were talking about is a situation that was before them which is a situation where all they could look at was majority minority districts because that's what they're worried they're having an election but they go along to say and talk about the fact for example that they don't want to  make proportionality a safe harbor for various reasons one of which is you might have all sorts of things where people were denied access to the polls or not able to register it said or all sorts of planes are not present here but also they said if we encourage people to draw a majority minority to make this the the be all and end all the people are going to go out and crawl majority minority districts to comply with section two and that's contrary to the purpose of section two none of the voting rights act and they spend of at least a paragraph or so about that saying that the act is designed so as not to require majority minority and the if you want to have a situation where you have coalitions and the minority groups are mob you mean from the obligation to pool all in trade to put together an effective majority electoral majority and so t granby itself talked about that something other than a majority minority districts ought to work now they didn't say it specifically and it was measurable portion ality by this but certainly that's what they may have been what they were same as the old one purpose of the act but footnote eleven in that opinion does exactly what judge rosenthal did of looking at majority minority districts under demographic standards so it seems to me even if you're right that maybe there's this other way to assess proportionality given that the supreme court is saying the approach judge rosenthal used how can that be legal error because if you read the entire supreme court end that he is looking at these districts they have on their face provide equal like pro opportunity we don't see how they're using canes and if you have cases or districts that show that and show it through majority minority percentages but also that show it through actual lexical results or a history of crossover voting against them talking to the sections of the third prong of jingles factor when they talk about coalition districts or ways to comply with section two and if you look at alabama black