applied a clearest proof standard to plaintiff's claims of intentional race discrimination the district court also completely failed to conduct the required analysis under arlington heights and instead wrongly asserted that plaintiff's detailed complaint contained and talk about the voting rights act section two climb first before we get to the equal protection claim which i think is the stronger claim just speaking for myself i'm having a hard time figuring out how you a e concrete particularize harm voting dilution because the claimed an address any harm related to a voting scheme or or a system or a boating can honor we are certainly alleging or an equal protection claim but we are also alleging a section two claim believe the categories you just named come from pressley and come from section five jurisprudence section five and section two play very different roles as the supreme court explained in the reno versus bush or parish case section two is really concerned with addressing practices that result in a denial or bridgeman of the right to vote and the senate report here which the supreme court has said is the authoritative document for understanding congress's intent makes clear that section two is intended to reach practices that operate to minimize or cancel out the voting strength and political effectiveness of minorities so here are what happened is that the state stripped of birmingham's elected officials of their power to take action to improve the economic condition of the city's citizens thereby denying the majority black citizens of birmingham equal access to the political process if that's the case when can a state legislature that is of a different race then a minority majority community an act a law a statewide application because your voting rights claim that the protection claim the voting rights claim suggests that going beyond minimum wage the state of alabama is in a difficult situation in trying to enact any law that prevents a local municipality from doing something which might create a piecemeal system of legislation and i think that's that's quite accurate your honor here the the state really was acting didn't i there are political effectiveness of the majority black city here and the but wouldn't that happen every time that birmingham decides to stake out an individual position on its own and the state of alabama decides we don't want cities and municipalities and counties doing things on their own we need the uniform legislation throughout not necessarily if the birmingham voters decided and i don't know alabama law so i can this does might be just completely off but humor me for a second in birmingham decided that it wanted to enact a law that an additional three percent tax on hotels and the state of alabama said no we don't really want mean it's apologies being able to enact that extra tax on hotels would your claim be the same that there are the voting rights act that had been violated in some way because they had been able to exert their they hadn't been able to exert their political will your honor the question really comes down to first whether there's a possibility that this is a practice that results in the abridgement of the right to vote and the ability of african americans to exercise their franchise and then the supreme court has really set out a standard for plaintiffs to meet and plaintiffs complaint meets that standard which is the jingles test which is a number of factors some of which are similar to those that you look at in the arlington heights but the jingles case the supreme court case takes the senate factors and adds and explains how  the court should go about looking at whether there's a section to claim we need those factors in the complaint that there's enough history of official discrimination the voting here is racially polarized there's been a lack of responsiveness from the state on the questions on which the black majority city has asked for there to be legislation and the states asserted policy interest here is tenuous there's been there was no need for the state to regulate on this matter up u a higher minimum wage or not that they've set a uniform baseline yes your honor most states do have a state minimum wage as well and alabama does not but the question really will turn for the section to analysis will turn on the jingles factors and point of should be given an opportunity to put forward evidence that they meet those factors again section two itself is intended to have a broad reach which means plaintiffs get in the door on section two and then it's up to the plaintiffs to actually set forth evidence that they meet the factors that the senate intended be met in order to show the the effect of this on voting with four minutes left or more  equal protection claim first the corps argued and the state continues to argue that the requisite clearance there needed to be the requisite clearance a proof of rate racial purpose in order for plaintiffs claim to survive  this standard as we set forth in the brief is taken from a case which is about statutory construction and about a sex offender read registration that violated the constitution's ex post facto clause and there concluded that the clearest proof is necessary and interpret in legislation to determine whether it transforms a still civil remedy into a criminal penalty it has no application here and applying a clear as proof standard would be contrary to this court's decision in randall versus scott which made clear that no heightened standard applies when you're making a claim of unconstitutional motive that case and out of context but the court did a very detailed analysis dick bolland to say that there's no heightened pleading standard in fact it would be improper to apply one where plaintiffs allege unconstitutional purpose the district court's holding also turned the law on its head by instead of asking whether plaintiff allegation of discrimination was a possible hold it held that an equal protection claim is quote not plausible where there is an obvious alternative explanation for the conduct other than intentional discrimination again this is contrary to both the eleventh circuit and supreme court law is contrary to the randall versus scott decision but also under word versus hunter the eleventh circuit decision that was then affirmed by the supreme court held that a permissible motive will not always defeat impermissible one i'll also note that the complaint here had allegations that the state's claimed interest in uniformity was not causal motivating purpose on that basis alone the the district court's ruling was has pointed out that we had no direct evidence of racist four speeches again and that sort of evidence and that sort of pleading at the pleading stage is not necessary that was made made clear in the united states supreme court case of hunter versus underwood iowa versus alabama briefly although i think it's clear from the complaint i want to outline why the allegations in the complaint on equal protection were clearly sufficient  state first of all concedes that the preemption act here was motivated by birmingham's decision to raise its minimum wage there's no serious dispute that the plaintiffs did not adequately allege the disproportionate impact and then we also have in the complaint numerous allegations going to the other arlington heights factors which is the framework that this court has to apply in addressing whether we've possibly pled the equal protection claim so we have a number of allegations going to be historical background here both recent as well as as further back we have details of recent incidents of state action to undermine blacks power at the local government level we also plaintiffs meet the other arlington heights factors regarding the specific series of events here in the departure from regular procedures one case i would point the court to is reitman versus mulkey which is cited actually in the shabby case as an example of the type of sequence of events that will decide will support a discriminatory motive they are the california california people amended their constitution  factors in alabama and so the information that they are the allegations that go back that far is certainly relevant but that we have additional allegations in the complaint about recent events about this state requiring birmingham to share political power with the majority white counties around it for example on the waterboard we have recent racist racial statements in the state legislature we have detailed allegations about how through redistricting the the only thing that this city did is after we saw the passage of the state's ag we just stopped completely everything and every note that even been done with even implementing our own city act there's a big difference between you know our opinion from implementing that point we didn't do anything after that point is this is i know the law of the sleet doesn't have legal effect given what the alabama legislature passed but is the law still technically on the books i would say it is but it's just not being enforced right of course it can't be enforced but but it's and it has that the alabama city council for example hasn't taken over to repeal not to mind the ordinance that had passed before to my knowledge ok that's all i right age rate is but they this consensus i think shows undeniably that they value uniformity in this policy and so the problem the problem is though that there are there is a huge body of law that says in the right circumstances you can have a facially neutral law that is passed with discriminatory motive and so your initial argument gets use to a point but it doesn't get you all the way there because there are a lot of cases that say you can pass something that on its face is neutral and perfectly fine but if you pass it for the wrong reasons you may have an issue right in this so going straight to the merits of the point of intentional discrimination equal protection claim i want to respond that kind of by starting with discriminatory impact prong as you may know  is no impact if birmingham is a majority african american city and it's the and it was at the time the only municipality that had passed this sort of minimum wage ordinance alleged purpose and the effects and i think we have to determine the purpose for this part of the ounces if the effect of the effect is that no other member you're at the pleading stage so it's one thing to say they may now be able to prevail at the end of the day or may not even survive summary judgment it's quite another thing to say that the complaint gets dismissed on its face so you think that although birmingham a majority african american city was the only one that had passed this sort of minimum wage ordinance there's no discriminatory impact because the law is on its face neutral and has complete state wide application the that's right to jordan i can i can see that the plaintiffs have adequately pleaded facts showing that the law would have a discriminatory impact within the city limits of birmingham isn't that enough i don't think so because the law is as a state wide scope and so we have to look well you know there might be other cities like  majority black cities which would pass these laws maybe cities would pass a law if you pass a law that is neutral on its face but when applied only applies to a limited slice of the state you can't have discriminatory impact reducing do sing their take home pay so there's a lot of speculation that it that's but that's not the stuff of a motion to dismiss or well if i might i would love to also turn to the big the plaintiffs don't have standing in this case i do think that they don't have standing primarily because  redress yes that's correct against the attorney general against the attorney you know if they got the role but that's no that's a different question of standing standing is not a party based issue that's a merits based issue that you've made you may have sued the wrong party so you lose but you don't you don't deal with merit issues on the standing side the supreme court has made clear that you don't mix the two up and that complete redress ability is not a prerequisite for article three standing i think there's i think you cite a case that says that or that a plaintive does not have standing because they they can't get complete relief against the defendant they've sued my argument is that they're they're not getting relief at all because the most that they could do is give an order against the attorney general saying attorney  general do not do not institute a civil proceeding against the city of birmingham are seeking to restrain it from forcing its ordinance right but that does not give any relief because the the minimum wage law is a preemption rule is simply declared a and there within the city of birmingham they may think it's better business to pay the higher minimum wage that the citizens and residents of birmingham are going to enjoy because otherwise and they may be on the outs this is all speculation on your part right and i think the more speculative we get the the less article three requires you know the speculations on your part not the plaintiffs part right well it's not speculation then to say that this preemption have to be able to identify an injury that can be caused by the attorney general and can be addressed by relief against it look for example at the request if the district court strikes down the statute as unconstitutional do they get relief no because we know this preemption rule is court that if if the district court judge strikes down the alabama statute as unconstitutional and declares it null and void do the plaintiffs get relief i still think the answer is no another way to look at this why not if there's no alabama law on the books that creates a uniform base that means that birmingham's ordinance rises again and it goes into a fact talk and then i get relief that well again because the the the only party we have is the attorney general it's not my question to you my question to you you and i disagree about the effect that suing the wrong defendant may have on standing so we just reasonably disagree on that point but my question to you is if the district court were to decide that the remedy the proper remedy is to strike down the statute completely do the plaintiffs get the relief they're looking for and i still have to say no judge because i think what other relief could  the one thing one point to throw into this if i might is that the if you look at the request request request a relief it's really unusual they asked for the attorney general it was a declaration they asked for it turns out to get public notice birmingham that they don't have to comply with the city of birmingham zordon that's actually just of the press release i think you're referring to came out before the minimum wage that act was passed so we would say that's not enforcing the law private civil foresman action this court said you can see the attorney general insofar as their criminal probation because the attorney general is going to have the authority to enforce those the civil private in force meant like a civil surprise or right of action that is something that's between private letter gets in state court and so there's no that in that case it was ex party young as they said no enforcement connection there i think there's ability as you overlap with but that's not this case because this case the attorney general consumer would force the alabama law can he not if if birmingham decided to be an outlier and say ok we're going to take a chance we're going to tell our people to do this and we're going to enforce our higher minimum wage ordinance the attorney general could stay steps under alabama law to stop that from happening right he could sue the mayor or the legal department of the city of birmingham and say stop here and force on actions and my only point that i come back to is that that does not give the plaintiffs the relief they need because these are what i'm talking about is the low wage earners they they're there in four years let's say let's say we stop the city or hymns and political actions the employer still perhaps at the twelve b sixty eight how do you know that would happen i mean that's a different question if you take discovery and you take the depositions of an assorted number of alabama of birmingham companies and all of their presidents say we wouldn't do this anyways because that alabama law is still on the books we wouldn't do this but it seems to me we were engaged in speculative analysis on your part as to what these companies would do but if you want to get to the merits would love to get to  acceptance or articulation of any particular evidence or a threshold but what i would say is that there is binding us supreme court precedent they come out of the ex post facto cases that talks about the clear pretty standard and i  into consideration first of all that the voting was racially polarized all of the african american legislature like towards voted against it and all of the white legislate towards an alabama code it in favor of it it's clear that the law is a disparate impact on african americans given the racial composition of the city of birmingham this was rushed through it unusual expedite it nature and and then again you know looking at and i know you make the argument that it's attenuated but there is evidence that alabama has use similar strategies in the past to suppress local black majorities and so when you take all those factors and the consideration in arlington heights you know we're this record to say that the clearest proof analysis what we have to do is look at the complaint and assume for purposes that standard that the allegations in the complaint are true and that is the proof and draw all reasonable inferences drawn from those facts right so in so that's that's that's right and i attempt to do that and not in all of our arguments but i say that when when you do that you do not get to the requisite whatever it the requisite was you don't get to a showing that the entire al case that says we can tell there's a scrimmage one motive here by the impact of what they did and i think if i think if i remember right they took the city of testy and for my for a boundary with for a way or where right and made it into a boundary of twenty eight different lines if i remember carling heights correctly they say that in the tuskegee was a pleading case that's why that i think you have you have the facts of tuskegee exactly right but the skit was a pleading case it wasn't a proof case did you make out a claim did you get the right relief it was dismissed on the pleading stage that's why i think it has some bearing here so what i would have to say that is that insofar as apart from race and is a classic example of that mad inion but this is the allegations or the there issue here even if the even if they establish disparate impact some disparate impact that qualifies on the disparate impact side of things it's not so  impact that it would that that that would give any i mean it's certainly i'm not saying it's considerate it's in it's in the police in the complaint we have to consider it but it's not doesn't get us over the line from a merely possible claim to a actually a plausible or first of all to get back to your question is was and i'll just leave it with this number one we have all the aspects of this case inside in the brief that point out the obvious next alternative explanations for this this law twenty two states that empirical research the fact that they passed in response to a pressing economic problem secondly from that i would be skeptical of any allegations from which the court would say that any law passed by the current legislature would be void or at least as you alluded to earlier judge during the any law regulating particular counties would be invalid as to the as to the very few comfortably few allegations that relates specifically to this this particular law they just don't get as they don't know the plaintiffs claim over the line from from possibly a possibility to possibility and so if there are no further questions i would say yeah all right thank you counsel  you first john i think it's clear that the clear is proof standard can't apply here that's a statutory construction argument that simply has no application and the court has guidance from arlington heights as to what should constitute a reasonable there's a discussion of arlington heights where the court says in arlington heights they didn't have to show that the disparate impact was felt throughout chicago or even in any throughout the state they only needed to show that as to the particular area that was claiming discrimination and that there was a disparate impact and as your honour's noted here the certainly the retroactive application of the state act only applied to birmingham so to suggest that it had statewide impacts is simply not not the case with respect to the redress ability point i want to make a few a few a few quick points first plaintiffs are asking both for the injunctive relief as well as a declar relief make it more likely that plaintiffs injuries will be abated certainly here we know that the attorney general has the authority to enforce the law the attorney general recently filed in response  notice regarding the attorney general's case against birmingham under the memorial's act and in that case while the attorney general sought fines he also sought  here well you know are in that the act carved out a particular role of either finds but it did not care about any further role for the attorney general in fact the attorney general cites his general authority under the alabama code for his ability to seek the killer terri judgment and the attorney general's counsel some just conceded that in fact the attorney general would have the right to go to court to seek an injunction against birmingham should it seek to administer that a failure to act on the part of a party can support standing and so i think we continue to contend that the city is a proper defendant here is also a necessary party for relief in short plaintiffs have alleged deficient facts to support their equal protection claim here as well as their voting rights claim and they should be given an opportunity to create a record and to readers and evidence showing that race was a motivating factor in the adoption  the of the preemption act and to show that the act operates to abridge their right to vote one way that african americans have sought to counteract past discrimination in alabama is by building power at the local level such as in the city of birmingham where african americans make up most of the population here the preemption act directly responded to and attempted to question those efforts for that reason we believe that we have adequately alleged both