be read in the context of its facts in which plaintiff's expert expressly disclaimed that there was a legal matter that could perform abit also uses the word performed but doesn't define it as anything in particular which of the district court did not address any other circumstances and if you would like to go on the current record we think that the defendant expert analysis doesn't fact show the opportunity to perform under a collect correct legal understanding of what it means to perform as well and there is other circumstantial evidence for example my cantrell's letter at the time was his district he his letter suggest that he believes the district could continue to perform for  jingles promise which we have proven in the alternative we would be happy to make our arguments about the possibility to perform again and find the district court along with the remainder of the holiday of the circumstances that the district court was willing to assume that we had met took issue with that but the point is it seems like performance now matters whereas perhaps it didn't matter before isn't that the new standard i don't believe it's a new standard the ultimate question has always been dilution which requires some cause ation analysis that was true before abbott remains true after abbott it's not the performance never matters the question is how does one go about proving it and we think that satisfying the bright line rules of jingle abbott i think if i read a little you know correctly you've got the three prongs but then you have a separate analysis of j you actually admitted that even though you might have established the three prongs you admitted that it you're not sure it's going to work anyway i  that that's the only thing that the district court should examine as part of their intensely local autonomy of the circumstances analysis and here we think that polity must include the fact that only two of three groups or even consider making it in  discussion of redistricting ok and you can see those are racial statements i'll concede that those are our racial statements but i will also add in that if the court has any concern at all about those statements it should watch the videos which are in the record the judge fitzwater watched in the trial of this case and what preceded those and i'm not trying to justify the comments but what preceded those was several of the individuals associated with these plaintiffs in fact called as witnesses by these plaintiffs at the trial gave speeches to the court and referred to commissioner price as a chief mullah on numerous occasions one dollar witness after another came before the open mike and referred to commissioner prices the cheap cheap cheap bolo repeatedly and ultimately he lost i would say he would probably conceded somewhat lost his cool and he responded well you're all white as a reaction to what he thought was a racial term at that point they county judge adjourned the meeting given the  tensions on all sides and as mr price and this is shown in the video as mr price is leaving the chamber and trying to exit the situation he has pursued after by the same individuals as i mentioned that testified in this case so there's a lot to unpack there but judge fitzwater it says in an innocence in a footnote that ultimately because there is no effect there's no discriminatory effect here that getting into that evidence was unnecessary to resolve the case and i want to i want to get at this point of  the continuance or the opportunity to rebut i want to answer a couple of the questions judge of that you propose you posit at the st is the trial in this case was in april abbott came out in june the judge fitz waters decision was in august that's the time line judge fitz waters decision addresses abbott and extensively over the course of about two pages pages twenty eight and twenty nine as i recall and so it is true that it was considered by the district court in this case but your honor asked should they be present opportunity to go back to the district court and present evidence right because the question is did plaintiffs have the opportunity to satisfy this new rule assuming that abbott is in fact salish going to rule and this is a point i'm going to agree with mr perry on abbott versus perez on this point was nothing new the court has on numerous occasions address this functionality and but i want to address it st with the start thinking fairness though cheap what you're saying is it's not it's not changing the senate at all and that therefore there is no satisfied the forget comes two dollars and three dollars for a moment once you've shown a fifty point one percent district it's it's obviously it's large and it's compact for the you can draw that district you've got the potential and potential is all you need only to guarantee that they have less opportunity to participate in the political process and to elect representatives of their choice jingles was an effort to come up with a test to meet the statutory language but the language has always been there in the plane to pass to show that something the to be enough to actually perform the plaintiffs will have to show they can construct a district that will allow them to elect a candidate of choice but not just the district but you have to actually show performance that fifty point one diner stand there are cases where it's fifty point one percent and i said even though you could assume that turnout may not meet it may not may never get it so maybe i'll address it this way maybe this would be helpful there's a continuum of districts you have influence districts right where you don't have the opportunity to elect but you can influence you have an opportunity districts and then you have guaranteed districts somewhere on that continuum i'll agree there are some gray lines but they don't exist in this case because the plaintiff put on no evidence whatsoever of performance and this court says a strickland there is no obligation to prove to under section two to create includes districts but you have to have opportunity destroyers and the plaintiff has to meet their burden to do so fitzwater says judge fitzwater says in his opinion it's not that there is competing evidence whether or not this district can be drawn there is no evidence from the plaintiffs that the district can be drawn and perform and it wasn't just on the election results as miss perry mentions the reconstituted elections it also had to do with the and it detailed analysis judge  water makes of each of the precincts that the plaintiffs moved around to construct their new district and what he identified was that the precincts that he included in that district were anglo but they were democratic leaning anglo districts and individuals they took out of the district were often anglo republicans that's why their nd district doesn't perform and neither does the st and as long as we're talking about this possibility of remaining feature of the census data that came out in two thousand and eleven shows that approximately two hundred thousand anglos had left the county the growth had been in the african american and latino community all of the a c s data since then shows a continued reduction both in percentage and real numbers in the anglo population if this court were to remain in this case the two thousand and eighteen evidence is going to show that every single democrat wrong on all four of these districts so there's no remedy the court can get to at that at this point even if they were able to have done so back in two thousand when i understand that you i'm not sure that's true your honor being the expert i saw that in the record i may be mistaken no my understanding from the testimony experts is they picked particular races that they usually pick to make these analysis and those that's the data that they presented but this gets at the point as to whether or not the plaintiffs eighteen and in there judge bridgewater deals with a motion by these plaintiffs complaining about the supplemental report of the defendants that deals with this brand new election data and he makes a series of rulings iolaus some of the data and doesn't allow some of the others but he specifically says in there this is without prejudice to plain of seeking a continuance for them to produce their own report but that at this point in march of two thousand and eighteen the elections had been in november of two thousand and seventeen this data had been available to both parties and if the plaintiffs had wanted to make a report of it they could have but my point for today's purposes is that judge fitzwater says i'll entertain a continuance if that's what you want and the plaintiff didn't come forth with it and this isn't the st time that the pla motion to dismiss and in the motion to dismiss we argued that it looked that there was a equal protection claim that was this was a vote dilution claims and then we say in there but to the extent they  cannot prevail under that so at least as of two thousand and sixteen the plaintiffs had noticed that defendants didn't believe they had pleaded a shocking but that's not the end of the story so then in march of two thousand and eighteen about a month and a week or so before decision about the lack of pleading requirement by the plaintiffs was within days of the judge saying but i'll entertain a continuance on your on your expert reports if you want to consider this new data so what are the plaintiffs do they don't respond to  rule fifteen or sixteen with a motion to amend their complaint they don't file a motion with the judge during the trial or or even orally ask the judge during the trial for a trial amendment to bring the show versus reno going and none of their expert reports up to that point had any of the things in it that you would expect in a show of a reno case i think that the reality is we i heard your earlier argument this case is a lot similar it has evolved over time and started as a section to challenge that section two wasn't available the anglo plain of so it must be unconstitutional then it turned into a run of the mill section to vote dilution redistricting case and now before this court it sounds like it's turned into well it should have been a shawl the reno case all along now any other plaintiffs that came to this court under under the under voting rights act protection talking about redistricting at this point in the game it's over you've pleaded the case that you pleaded it was tried you had many opportunities to ask for different claims and you didn't do it  district court the three judge district court case in san antonio addressed a very similar issue judge fitzwater cites that opinion quotes from him in his decision and says that shall be reno is a quote analytically distinct it will protection claim justice o'connor says that in shaw miller that case says that again it's an analytically distinct claim so what these plaintiffs are asking the court to decide is that is that claim number two in the complaint was actually point number two dollars and three  as this court has said and several opinions are like this one it's a number of puerto decision mclane food service judges are not pigs sweeping for truffles buried in complaints and that's exactly what was what is being asked of this court here that it doesn't say sha versus reno it doesn't say political gerrymandering it talks exclusively about dilution but in any event if there was simply gentlemen confusion about it a motion should have been filed long before now with the district court asking for an amendment and for it to be heard and again i don't want to belabor this point but we are so far down with american community survey do from two thousand and eleven that the possibility of a remained for a remedy much less another liability drought that this district is going to perform for anybody is next it's pretty slender reed isn't it to just focus on that what many people would be regarded as one the most unique election cycles in our country's history well i'm going to have to disagree with that the judge found that the three preconditions were met he said i'm going to assume for the purposes of the right the point is the point is fair enough but whatever language assumes stipulated the point is the pieces construct in a format where those three are presumed assumed to be satisfied and yet it's being  around based on this one unique cycle well i'll have to disagree with that as well there was there was election data submitted throughout the cycle about the performance of the district and plaintiffs had the burden and they offered no evidence and again evidence that the proposed map would perform there was i don't try to get the only evidence from you all that the proposed map would not reform are you saying that you actually presented other cycles the slide sixteen i think that  also still true the individual voting precincts that were moved in to make this so called new opportunity district are democratic precincts they may be majority white but they vote democrat and they have all through the decade and judge fitzwater has found and so decrease in the county over the course of the decade and there was a you know a supplement as long as we're talking about the potential of reopening the evidence the supplemental reports of the plane of show that continue to be true it was true in two thousand and eighteen every democrat we've looked at won all four  court even has to get to that point because the reality is that the plaintiffs carry the burden of proof i've either read or was involved in every section two redistricting cases this court has issued and i have never seen a plaintiffs come to court with this evidence and prevail it's not because these plaintiffs are white it's not because they're pursuing a republican districts it's because it's well established law since at least the one thousand nine hundred and eighty s require the proof of certain elements and they didn't have and i want to move on from the factual finding of performance which as i suggest isn't a new d test but talk about some of the other errors of the record here the st is that the plaintiffs expert used the wrong man he will read your ruin his own testimony the plaintiffs the counties map which have been provided to him into shape by instead of using the shape file he redrew it using whole precincts and then proceeded to posit that the counties map split all the cities but he had to conce that because he used the wrong map he had was incorrect about his list of what cities and then on top of that in the e mail traffic between point of expert and apparently some advisor at the rand corporation that was helping him they talk about let's draw a district were on the perimeter well decamped this is his word hispanic hispanic areas of white population to try to get a district it's majority white and he talks about let's not rely upon let's not worr about city splits let's don't worry about keeping whole voting precincts let's focus exclusively on drawing a racially drawn map if there is a racial gerrymander in this case it's the ones that the plaintiffs asked this court to impose that map and the pla own expert didn't comply with traditional redistricting principles in fact the plaintiff's expert testified that the man that he had drawing the map wasn't even provided the redistricting principles that the commissioner's court had adopted and in the harris county rodriguez case this court said that a even a remedy or even a liability level map has to comply with the principles that the commissioners court of dogs and so far as is possible there was no effort to do so at all here i want to say something finally about to tell you the circumstances and judge oh you correctly noted judge fitzwater didn't get into the to tell the circumstances so even if the court is to find that somehow that these plaintiffs don't have to prove a functional district  despite the clear language under section two the case would need to remain and in order for the district court to go through that to tell you the circumstances and determined in that local appraisal that the supreme court asked for whether or not a remedy it is justified the last point i want to hit map that shows opportunity again on the continuum there's influence opportunity and guarantee plan it doesn't have to shell guarantees but they do have to prove operative does the court have the option of saying i find liability but you're but at the remedy stage your map doesn't perform so but but i'm going to provide a new map that would perform and that's not really forgetting well that's not what the supreme court didn't have a versus perot's they said i was asking about just section two laws is that an option or is the court ballon to essentially either grant relief on the proposed map or sorry you lose and starts all over to do the court is bound to in the liability stage as a point if you must show opportunity to elect in your district now at the remedy stage they can construct a different district right but you have to prove it at the outset i want to also mention that there is no injury that has been played by these plaintiffs that are redress of all they are without standing in this case for all of the foregoing reasons judge for its waters decision was absolutely correct and it deserves and sixteen elections shows the democrats winning every state house race in texas so there is some uniqueness in that data secondly the plaintiff's map doesn't have to meet the intent standards of the government's  equal protection claim that one claim is analytically distinct does not create a heightened pleading standard there is no need to amend there's no exhaustion requirement here received an adverse judgment from the district court made a strategic decision to continue with the remaining claims as the district court saw the case and that judgment is not properly before this court on appeal and finally equal protection claims do not require the same showing of discriminant the discriminatory effect that section two claim does this supreme court has made clear that the harms that issue an equal protection claim are the racial sorting itself the stigma and the stereotyping that comes with that sorting as well as the inference that your representative might only be standing