required by state law that decision rests on fundamental legal errors st the district court held that it was not required to find that race was a cause of election results to find a no does not stand for that proposition guus we stand for the proposition that causation the reason why voters vote the way they vote is not to be considered in the rd jingles pre condition but it  purpose of the totality of the circumstances factors is to get to the question of causation to determine whether minorities are being excluded on account of race or because they're being excluded on account of something else that section two does not regulate  case is actually quite a good example because the it presented the court with the choice of our partisan politics motivating voters in this jurisdiction or is it race and the court concluded that it was race and not partisan politics because  there was an exclusive slating process isn't it sufficient if there's if there is an impact based on race in other words even assuming the intent is not because of race but  t there is an impact on the basis of race is it isn't that sufficient no it's not sufficient in fact the supreme court in the grandee expressly rejected that proposition the three jingles proposition the three jingles preconditions go to that question of whether there is a correlation between the race of voters and the way voters vote but the supreme court said that those three pre conditions by themselves are not sufficient the purpose of the factors is to to get to that key inquiry of whether minorities are excluded on account of race that's a but for cause ation requirement just under the plain language of the statute and every single court of appeal that has ever considered the question including this court has found that there is a causation requirement that race actually has to play a causal role in the way elections turn out mere acts and not be enough and their legislative history that says that congress used the war on account of race or color in the act to me with respect to race or color with respect to race and color and not to imply any require purpose of racial discrimination that's right out of the senate report legislative history is only helpful in construing ambiguous statutory terms there's nothing ambiguous about on account of race and fact that's what i mean we just heard senate thought they had to address that's ridiculous i'm sorry but i don't believe it's ridiculous the supreme court just in the boston kids just recently provided a very detailed plain language interpretation many things just to change the subject a little bit one of the things i find striking about genocide bell's opinion is her detailed credibility findings i mean she really did not need these when she found out they were trial judge i mean do those findings not matter well the credibility findings don't save the court from reversal because they don't cleanse the legal errors that in fact the opinion whatever the court may have thought about the credibility of witnesses it doesn't change the fact that the court was required to find racial causation to find a violation of section two and the court expressly did not find it said that there is no evidence that racial animus is motivating voters and it doesn't cleanse the court's legal errors in its misapplication of the senate factors and it doesn't cleanse the court's legal error in simply ignoring the fact that in this school district there is a long history of minorities consistently being slated on both sides of the political divide in the district minorities consistently being elected those two facts by the miss alice randall and disputed the trout court also considered their reasons for that and found many findings of fact that that those minority candidates those factual findings don't get to the problem that there was a legal error in fact in the court's analysis what the court did was it misapplied a legal doctrine the safe candidate doctrine to find that it could just ignore the election of every single minority candidate that has ever been elected to the school board but that's not what the safe candidate doctrine is for the safe candidate doctrine allows courts to disregard discount aberrational minority victories but there's nothing aberrational about minorities w win all the time this application of a legal doctrine is a legal or not a factual error and whatever factual determinations the court made based upon that misunderstanding of the legal standard that's to be applied are reversible under a clear air origin of a review it doesn't matter what the standard of review is misapplication of the law is reversible and the court did misapplied law here the court misapplied the law on the safe candidate doctrine has described the court completely misapplied the law on the senate factor that minorities are excluded from the slating process when the undisputed evidence was that minorities are slated on both the private school community slate and the public school community slate all the time there is no exclusion of minorities in the political court to consider whether minorities have been excluded members of the minority group have been excluded from the slating process and it is legally and factually erroneous to conclude that a slating process that produces minority candidates every for it doesn't matter if they're minority preferred candidates what matters is that they're members of the minority group and replacing minority preferred candidates with members of the minority group is a legal error it is a major change that changes the factors meaning if members of the minority group have access to the slating process that shows that minorities are not excluded on account of race if minority preferred candidates who may be of any race are excluded from misleading process that's because of politics and section two does not preclude want to touch on a crucial point that mr being was discussing just a few minutes ago which is you know he he says that we need to prove abridgement of the right to vote on account of race or color under subsection a statute he said that him buy for causation test i suggest the best argument is complete distraction all of the action in this case is that subsection b of the statute and subsection b congress set out a distinct causation test for proving a violation of subsection a an abridgement of the right to vote on account of race or color under that test a plaintiff can prove his section two claim by showing that under the salary of the circumstances minority voters have been deprived of an equal opportunity to in the political process and to elect representatives of their choice the district has completely neglected the text of subsection b because that text defeats the district's argument about racial animus subsection b says nothing about racial animus it merely requires plaintiffs to prove and shut out of the political process and deprived of the opportunity to collect representatives of their choice that's by design section b subsection b it results test it was adopted by congress precisely for the purpose of overruling the supreme court's decision bolden which required section two plaintiffs to prove their case through evidence of intentional discrimination congress rejects that requirement and subsection b bodies congress has term nation section two plaintiffs should be able to prove their case through objective rejected the the the argument that that district has race here at r g s court to review the briefing and to speak because the the district's brief in this case looks a lot like the defendant's brief and gus the goosby both the district court subsection be the ultimate inquiry in this case is whether minority voters members of the electorate are able to participate effectively in the political process and to elect representatives of their choice now it's certainly true that under senate factor seven we look to the race of the candidates who are who who win election but as as your honor so far he pointed out the district court engaged in extensive fact finding regarding the election of minority candidates in this particular community and applied a well established doctrine the safe candidate doctrine the special circumstances doctrine to find that that the election of the candidates was not evidence that minority voters have an in equal say in the political process an equal opportunity to participate in a political process and to elect representatives their choice i would i would focus this court's attention just on on the minority candidates the minority representatives to currently serve on the board in the circumstances under which they've been elected president of the board has referred to her privately and dismissively as having zero control or influence and suggest but that's the only reason she remains on the board and she was described by another member of the board as being an ideal candidate because she was quote not aggressive like another another member of the port so so i think that you know mistrust here is a good example of you know that the district is looking for what what congress  after council on the other side suggested that it would be good for the case to have to minorities running against one another the district described the findings of conspiracy theory and it in its briefing it still hasn't provided  those findings so i think overruling the the district court's decision below with respect to and the success of of several minority candidates would would give license to political actors to freely have a section two through those kinds of up st the district court found that white board members coordinate among themselves on important business to the exclusion of minority board members so if for example if a forty district court found that white or members coordinate among themselves exclusion of minority board members even state solution minority board members affiliated with the white slating organization that they coordinate among themselves regarding the filling of a board vacancy in picking a white candidate over black candidate the white board members coordinated among themselves even during the pendency of this case regarding settlement negotiations in this case that said essay sixty five the district court found what i think why and how do you respond to the argument that th appearance of coronation is because of disagreements over policy and they're not and not because of race your honor i think well i think that that that the example of the filling of this board vacancy choosing joe  among themselves the exclusion of minority board members affiliated with the public school the so called public school faction they were courting one themselves the exclusion of of black board members who'd been supported by the white slating organization and i think that that shows that race is doing a lot of work here it's not just about policy i would also point out that you know the the board that this report focused a lot on the boards public meetings those meetings  the board adopted was literally unresponsive and to to to minority voters and since that for bait org members adopted a policy forbidding board members from responding to public school parents and comments that these public meetings and the district court heard testimony from members of the community about the invidious racial dynamic of those meetings one black witness who grew up in the south testified that those meetings reminded her this is her quoting from her testimony  segregated south where you just don't have a say and if you say something you're treated she said that members or treated members of the community like dirt that's a trial transcript a twenty one discrete also noted the district's former superintendent made racially insensitive remarks about what you know students in the public schools those remarks contributed to distrust between the board unity or took no action to remedy the situation until state monitor stepped in that essay seventy so in addition to our statistical evidence of racial polarization in this community with which w honor i would just and summing up i would note that the district court has lived with this case for a long time it's presided over this case for nearly three years it heard from nearly thirty witnesses at a seventeen day trial on the merits earlier this year issued over seventy pages of fact finding those those findings are reviewed pre clear error in this court as well as the finding a solution there was no clear answer and and if there are no further questions i think the court  hour i think it's important to refocus that this case is about elections and mr damon doesn't have a lot to say about elections he has a lot to say about the court's findings about internal board matters that don't actually matter to section t election after election the undisputed data shows that majorities of white voters have supported black and latino candidates on the private school slate the same as white candidates with no variation according to the race of the candidates as the th circuit be agreed that pattern unmistakably shows that minorities are not excluded on account of race if the private school community candidates are winning elections by large margins that's because their slates popular their slates policies or are more popular with more voters it's not because of race we can control for the race variable by looking at the undisputed data if public school community candidates lose elections it isn't on account of race either it is because there were fewer public school community voters i also would just like to respond to the the discussion about on account of race the construction of the statute that the plaintiffs are urging on this court would bring this court into conflict with the st circuit the th circuit the th circuit the th circuit the th circuit no court of appeal has ever accepted the argument that the plaint are proposing every court of appeal has held that on account of race and imports it causes a requirement that requires race to be the cause of election results and that flows from the plain language of the statute and from the history of the statute where congress was readopt ing the standard for the supreme court's cases in which come versus chavis and white versus register in both of those cases the supreme court clearly was distinguishing between elections that were based upon built in bias which the court held was a violation or elections that were just the result of regular politics or a mere euphemism for defeat at the polls that distinction still holds today under section two and the