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tv   C-SPAN2 Weekend  CSPAN  January 21, 2012 7:00am-8:00am EST

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what if neither of those is fully acceptable? is it practicable to have the primary and dates that it agreed on? if not, would you just prefer to those two possibilities or would texas entertain the possibility of moving the primary back? >> if texas wants the court to have the opportunity to get this right we think the decision below is profoundly wrong. it is important for this court to send a clear signal to the courts that will provide relief not just in this case but future situations. >> one more question about pre clearance. assume that the three judge district court in columbia, finds problems with two or three district saying of the congressional plan, does it just say there are problems with
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these districts and we deny clearance or does it give guidance and say we would give free clearance if you made the following changes? does it give you a road map? how do these decisions work? >> i don't think there's a road map to the extent they give a road map. two things are crystal clear. one is when the d.c. authority, attorney general or the court denies pre clearance it denies pre clearance. the plan is not free cleared. there is no such thing as free clearance in part or personal free clearance. it is a line-item veto. the second point is not to save the court doesn't provide reasoning for its decision or the attorney general. that is why the court -- this court knew the objections were to particular district even though the effect was to not pre clear the old plan. that seems to be the mistake of the district court that effectively treats the non pre
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cleared plan. that is the exact word judge johnson used in the lower court in oppa and this court reversed. you don't ignore that. but on the other hand you take into account the judgment of the attorney general in that case. other than that you take the plan into account not withstanding the fact that it hasn't been free cleared. >> we said over and over that it is the attorney general and the district court in d.c. that has exclusive jurisdiction over this set of questions and we don't want court to another part of the country to make what that court and attorney general are supposed to do. you are essentials asking for the district court in the state of texas to predict what they're going to do and make what they're going to do. that is why justice alito suggests we said only the district court in d.c. and the attorney general should do is let's wait until they do it and go from there.
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>> we are not asking of the regional court to mimic the d.c. courts's function. we are asking it to perform correctly. one of the rules this court makes clear is the regional court retains and that is to provide temporary relief. if we look at the court's decision that has worn off a regional court from irrigating to itself the final pre clearance decision and thinking of conner against wallace, the same decisions say with this is not prejudiced your ability for temporary relief. opposition is simple. if we are in a situation where the regional court has to provide temporary relief then it should apply the same standards i would supply everywhere to courts issuing temporary relief. >> not taking into account the fact that as justice sotomayor said the justice 5 operate as an injunction against the use of a non free cleared plan. >> we're taking that into account. that is what is going on here.
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ask yourself a question. what is the remedy that the texas court in this case -- what is the violation the texas court is trying to remedy? i think your question proceed on the assumption that if the violation of section 5, that is not what motivated the court's opinion. look at page 96 of the joint appendix. texas was clear. they need to get pre clearance. this is not about joining them from implementing the plan. the constitutional violation being remedied here and the only thing that gave the texas courts and the authority was the one person one vote violation with the old plans. >> that is what they said they are doing. i counts eight times in the house plan, the state house plan, several times in the senate plan. it is fairly clear in the u.s. plan, they say things like the courts began by considering the and contested districts from the
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enacted plan that embrace districting principles although it wasn't required to give any difference. they are wrong about that. the court attempted to embrace as many uncontested districts as possible. after i got finished reading their opinions, there may be a difference between what you say and they say but i am not sure there's a difference reflected in the maps. it is january 9th. we have to have something in effect by february 1st. >> they said they're paying attention to what the legislature did and when i look at the maps as far as i can tell they include some more and some less and in the same senate but they include a lot of changes. what am i supposed to do? i can tell whether you are right or wrong parking district by district. what am i supposed to do on january 9th? >> on january 9th you should take another look at el paso
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county. if you look at el paso county in the congressional map or the house map if you look at el paso county, what you cannot conclude is the biggest >> what district? >> it depends. if we are looking at the congressional map i believe it is district 16 or 17. those maps -- >> el paso county in the or original plan, a guess -- >> number 16. >> they split it and it was split somewhat differently or not. >> you are understating it. [talking over each other] >> on the enacted plan with a difference straight line. >> what was it wrong? tell me why it is wrong. >> i want to say two reasons is wrong. first, it really does answer your premise which is that all the court was doing was remedying one person. >> i didn't say that.
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i said in their way of thinking they are taking the map into account. if i disagree with that i can't disagree with the level of principle. i have to disagree at the level of particular district. that is why i asked the question. >> you pointed to district 16 and i say very well. tell me what they did wrong and why. remember they are facing a challenge that is based on section 5, and the district court said in d.c. you don't survive, i can't give you a summary judgment on that. the purpose here may have been violated. you tell me what is wrong with district 16 which is your strongest case. >> i am not saying it is my strongest case. it is the problem. another thing --
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[talking over each other] >> tell me the problem. >> the problem is that the court lost sight of what it is supposed to be doing. they couldn't have lost sight at the level of generality because it is a level of generality they said were trying to take into account the map. i want to know what is wrong with the drawing of districts 16 and what they did given there is a section 5 challenge based on purpose and what is wrong with it is they neither started with the old benchmark plan and said we will solve the one person one vote problem nor did they start with the new legislative plan and say is there some violation that allows us to change that plan? as they told you, they said -- [talking over each other] >> finish your answer please. >> they told you they were drawing an independent map and what they told you is face-off that they were under an
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affirmative obligation not to defer to the legislative enactments because it hadn't been pre cleared. you are right. in certain places they then turn around and say we deferred where we could. the oddity of their position is the first premise which is the one thing they can't do in drawing these maps is look at that non pre cleared map. there is no explanation if that promise was right, even a good thing -- >> i am not sure i understand it. besides one of the el paso maps, the enacted map created battler type district. and two and connected on top. nothing tying them together. the district court was back to the benchmark and said this is the benchmark district.
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now i am going to draw the district around it. that is all naturally -- trying to stay with a neutral principle of not dividing up the city more than i have to and it came out with another district. i don't understand what principles, what legal principle the district was violating that makes what it did with that particular county wrong. you are saying they should have given deference to and oddly shaped district that changed a prior benchmark that has been challenged as having been created specifically to minimize the latino vote. all of the challenges that relate to el paso are very significant. the district court has denied summary judgment on that.
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tell me what legal principle they violated other than the principal you are relying upon. >> the basic principle they violated is they drew an interim order they thought wasn't remedial order without it being based on any finding of substantial likelihood of a violation. you may be right. there may be a problem with those maps. i would like to talk about that. if the district court had said there is a problem with this, the two -- the deer with two antlers violates the constitution. we are going to remedy that. if that is what they did it would be a different case. i want to talk about the deal with two antlers. what that ignores is in the benchmark plan the deer had won antler and an antenna. the district court -- it doesn't look anything like the benchmark. the matter legislature drew looked very much like the
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benchmark. i think that just shows that what was going on by the district court was something very different from remedying the one person one vote problem with the benchmark or from correcting specific identified problems -- >> one of your objections was that in deciding whether they are using the benchmark for the legislature's proposed new plan, whichever one they are using, in drawing up their own plan they assumed the validity of all the challenges. is that not the case? >> that is the case and one of the many problems with a the way the court proceeded. once you lose sight of the fact that we only have remedial authority if we are ready in substantial likelihood of violations that are identifiable in particular what do they do? what this district court did
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after he started word justice breyer suggested if district court judges said we want to avoid the challenges that are brought by the plaintiffs and what they mean by a void is basically take all the allegations that face value. >> you don't have any problem if i am a district judge and by think there's substantial likelihood that a particular challenge -- you don't have any problem with my drawing an interim plan to avoid that likelihood? >> no problem at all. the great thing is that is the district court, a familiar role and familiar standards and give this court -- >> in that scenario, suggesting what the b.c. court has exclusive authority going to do. that is why i find your petition troublesome, you are asking one court to make its best guess at what another court is likely to
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do and the other court has exclusive jurisdiction. >> can i respond to that? i had assumed justice kennedy's question was not specific to section 5 and would be section 2. >> equal protection under the constitution problem. all the court is doing is making a substantial likelihood determination of an issue that is going to -- >> with respect to section 2 in constitutional violation, those allegations would be not right in the prior to district court or the attorney general clearing a plan. >> absolutely. it is important to understand to be extended district court and remedial face should pick section 5 into account, in considering whether the remedial plan is consistent with section 5 principles, that is what the judges did in this case with respect to their own plan. do something with section 5 they
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otherwise wouldn't do. i think if you come back to the particular question of what are they trying to remedy, they're trying to remedy the one person one vote problem. if that is what they're trying to remedy why wouldn't they take into account legislative policy judgments reflected in the non pre cleared plan. if that is the state we are in, keep in mind this court -- >> section 5 says there's no presumption of regularity attached to the plan and indeed that it is unlawful to put the plan into effect without proper approval. >> two things. one, i beg to differ with section 5 says, no presumption of irregularities. i think what section 5 says, no presumption of regularity or presumption of good faith than section 5 is closer to the constitutional edge. what it says -- >> section 5 says somebody has to clear it before it can go
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into effect. >> but i don't think that means the assumption is the legislature did act in good faith in enacting the provision. my second point -- >> nobody said the opposite. wasn't cleared. >> if there's not a presumption of bad faith, why wouldn't the court take that legislative judgment into account and drying its remedy for the one person one vote violation in the remedial district? my second point is free clearance obligation is not driven by a professional judgment that these jurisdictions are particularly bad at remedying one person one vote problems. section 5 is driven by concerns -- in that sense it is particularly odd that what is at issue is our remedy for the one person one vote problem that you would assume you are not going to take into account the legislature's judgment as reflected --
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[talking over each other] >> i see two problems i'm not sure how to come at. you cannot assume the legislature's plan should be treated if it were pre cleared. district court in texas cannot assume or presume what the district court in d.c. is going to do but on the other hand it can't presume it the other way. it can't draw its interim plan assuming there will be section 5 violations because that is presuming what the court is going to do the other way. how do we decide between those two if two wrong choices, how do we end of? >> try to split the difference by trying to apply the preliminary injunction standard and i think if you do that, what you're going to do is to -- to ensure that the remedy the district court draws for an interim matter for a 1-person 1-vote problem which is not the same as pre clearance, that remedy is consistent with the legislative policy judgments but
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also with section 2 with the equal protection clause and it can say that for purposes of temporary relief looking at section 5 directly i would think the better answer is focus on section 2, equal protection clause and you ensure the judicial plan is consistent with section 5 principles because that is the test the court will apply. >> can you tell me with reference to the two district other than the senate district, congressional and state house district, justice smith defer or use the texas legislature's 2011 plan as a benchmark? >> i don't think judge smith -- i think it does. i don't think he did it the way we think we should or focus on the benchmark. if you look up the congressional plan he picked one of the proposals that was a bipartisan proposal. 216. with respect to the house plan i think -- texas houseplant he got
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closer to write but i don't think he applied the right standard and look at joint appendix 193 and consideration of house district 33. there are allegations and i find -- the state has persuasive responses. i am going to redraw the district. that doesn't seem right. of the state has persuasive responses that should be enough. >> is solution for giving insufficient deference to the state of texas 2011 plan? >> it certainly is a fair improvement over what the district court majority did. >> thank you, mr. clement. mr sri srinivasan. >> may it please the court, the fundamental flaw with texas's approach is it inverts the burden in section 5.
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section 5 places the burden on jurisdiction to show a proposed voting change is not discriminatory. the change can't go into effect unless and until states -- >> suppose all the fact are the same except this is an estate that is not subject to section 5? would there be a problem in your view with what the district -- what the district court did? what judge smith did? >> with what judge smith did in that context there wouldn't be an issue at all. the affection 2 -- >> there would be no problem using texas as a benchmark as a starting point. >> well -- >> as a starting point. >> what i would say is in the context that this court typically said the district court should do is start with a plan that is already in effect
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and modify it according to neutral district to remove the apportionment tissue. >> what about districting principles? anybody who draws a map faces at the outset certain legal constraints. constitutional constraints, restrictions imposed by voting rights and stable restrictions to the extent that they're not inconsistent with federal law. once you have gone beyond that point all you have left is districting policy. they are policy choices. many factors can be taken into account in drawing a map. .com packed with what the districts to be. to what extent the respect zones of the economic interest? to what extent are you going to try to preserve old district? what about incumbents? what about registration? try to have balance in or favor one party or the other? those are all questions of policy. the question is who makes those policy decisions?
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are they going to be the policy decisions made by the legislature? or the policy decisions made by the district court? to say they are applied neutral is a huge. >> a disagree and make two observations on what district court is supposed to do and walked to the principles. the first preliminary observation is what a district court is not supposed to do. what it is not supposed to do is take the non pre cleared land as a given because section 54 closed at. what district court is supposed is not contrary to the underpinning because it is the last legally enforceable thing which after all is the last manifestation of state policy and priority. you have that as a starting point and it has to modify that plan to deal with all issues and comply with section 2 and section 5. >> even if you start with the old plan and you modify it to
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the extent necessary to comply with the constitution and statutes there are still -- i am sure our computer could shoot out dozens of possible maps. somebody has to choose among them. what criteria does a district court in use in making that choice? >> i am not going to disagree with that. what it looks like is the district criteria applied by this jurisdiction in the past. >> not just discretion but political discretion that is troublesome about it. it seems to be the government takes an absolutist approach to the proposition that you cannot use an un prix cleared plan for any purpose. all the law says is you cannot apply a pre third plan. the plan being applied is not the texas legislature's plan. it is a remedial plan adopted by
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federal judges. to say that they cannot use in trying up that plan the legislature's last political decisions seems to me not required by the mere prohibition against implementing that plan as the plan of the legislature. what would you do if the district court in washington and the district court in texas and, neither one of them act in time and it is too late, is too late to have any primaries anymore? >> what would happen? >> you can't use the old plan. you have absolute rule against using the new plan. what happens? you disenfranchise every voter in texas? >> there may be some voters in
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texas, some who will be prejudiced by using the current plan. i suggest in that situation there is nothing to do but use the texas plan. >> not in the context of section 5. that is what option but the other option would be to use a malapportioned plan which is something the court could do. that is not -- we are not in that situation here because when you have is interim's, we are not in the emergency situation -- >> there are some situations in which you can use the very plan the texas legislature adopted even though it has not been pretty clear. >> no time to -- >> no longer an absolute rule. the question is whether this is another reasonable exceptions to a non absolute rule. >> there is an emergency exception as there's all sorts of legal rules but that is as far as we go. we would like to address the proposition that what the court would be doing is a standard application of substantial
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likelihood of success principle because it is not. it is decidedly different from standard operation of substantial likelihood of three fundamental respects. i think you alluded to this in your question. the burden in a preliminary injunction stays with the same party at a preliminary injunction stage so when a preliminary injunction comes up the court is asking has there been likelihood of success on the merit the same party make that showing. texas would turn that upside-down because at the merits they did -- >> texas has to make a showing. >> that would be better. that would improve things quite a bit but that is not the approach texas proposed today. in two other respects it is different from preliminary injunction as well and one is what justice ginsburg alluded to. you don't have a situation where the same court will show the adjudication and deciding -- >> exactly right. you see one side of a problem. you can treat it as if it has
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been pre cleared. prejudging what the court of d.c. will do. no trouble with them saying assuming they're going to be section 5 violations and drawing additional majority or minority districts which is just assuming the other way what the court in d.c. is going to do. i don't know how you lean one way and say what is horrible. it is all right in drawing in from plans to treat it as if pre clearance has been denied. >> i don't know. what the district court is supposed to do with free clearance pending is not accept all the challenges. it is supposed to apply traditional criteria to the benchmark. >> do you contest the view this district court did accept the challenge? we have to make sure we don't do anything that cuts against them. >> there is language to that
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effect. the district court opinion are not a model of clarity. in some respects they outlined the right hand. look at joint appendix 137 to 130 with the district court said was starting with the status quo which is the benchmark and modifying. >> with a joint appendix 146 to 147 it is the opposite. they are drawing minority coalition opportunity districts to draw them because they anticipated how they think they will come out. >> that is right and we point to that in our brief as an area in which the district court need further explanation. >> this is section 2 suit. and yet section 5 seems to be driving that. the problem with this. >> section 5 -- >> section 5 applies only to some states and not others. texas as an added disadvantage in defending in drawing --
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having judiciary to a disadvantage in framing a remedy for a likely section 2 violation of some of the district's. >> texas is in a different position because of coverage and when you have a section 5 case section 5 can't help in some respects precisely because proposed change can't go into effect until the jurisdiction shows it is in effect. >> i wonder if it should take precedence in a section 2 suit. all this court -- this is the primary obligation of the test this -- texas district court to address section 2 violations. >> that may be but if it can address this section 5 issue at all than the one thing that shouldn't happen is section 2 gives the non free cleared plan which is something that d.c. district court is supposed to do. >> it is giving effect to the legislative judgment as to what is workable for all the factors
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that justice alito referred to. we may have a few more questions. >> thank you. appreciate that. what i would say is if you use the non precluded plan as a starting point to what texas proposes you are arguing notwithstanding records requirements of section 5. that is something section 5 doesn't allow. i do think it is important to consider texas's 3 friends in the context of the other statewide pre clearance emission submitted in this election cycle. look of the government's brief, what that bears out is there's not a fundamental problem with section 5 or the way section 5 operates. the problem as far as it exists is with respect to the particular provision texas made because there were 20 submissions of statewide plans for administrative please parents. creek -- pre clearance. the attorney general pre cleared in the initial 60 day window.
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>> your position -- i understand your straddle in position which is why you're in the back rather than the front row between the two party. a little unsatisfying because we are all under the gun, very strict time limitations and we should send it back to the district court to give a greater explanation. is that going to be wasteful kind of an odd order from this court to send to district court saying tell us more. >> two responses in that respect. this goes to a question justice alito asked. what is the course of those to do? one thing that could happen is if there were a rematch the d.c. district court could complete frequent proceeding which would be very illuminating for the district court is supposed to do. >> what is that based on? >> d.c. district court scheduled trials on january 17th to last we days. closing arguments on february 3rd. if you look at what happened and a summary judgment stage they
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had summary judgment arguments -- [talking over each other] >> i read the opinion and what you said on the phone. seems to me it is a complicated case but suppose you are completely right on your time schedule. then they will decide something. how could any human being read from's in five days or ten days where you have six different positions? it is impossible. i don't see -- >> we won't have an issue. >> seemed to me from reading it that i didn't think the judge is ready to grant pre clearance. the other thing in sending it back, i read the brief and i read the opinions. i don't think -- i am not being too generous with the opinions but they were saying for a route that if we didn't try to draw extra coalition or opportunity they emerge. they say emerge seven times. they emerged as we tried to
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apply equal vote principles. it is hardly surprising that it would considering the population growth is primarily due to the minority expansion. they didn't seem to me -- why do you want to send it back to get more explanation when that seems to be the explanation? seems like a perfectly good explanation. >> as far as the coalition district's ability to emerge from national growth there's nothing suspect about them. one example i point to is district 33. 1 46-147 is not clear what the district court was doing in that regard. >> thank the council. mr. garza. >> mr chief judge and may it please the court. there seems to be general consensus on three points we have talked about today.
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first that the non pre cleared plan cannot take effect and second of the district court has foreclosed from entering and engage in an analysis of the issues that are pending before the pre judge court in washington d.c. and at this point court ordered plan must be implemented on an interim basis. >> excuse me for a second. i am not sure i have gone along on that. as you phrased it the way you phrased it you say they cannot even make the kind of preliminary inquiry that your friend suggests. >> we are dealing with a matter of semantics. the question is did the court give the state's plan difference? but it began as it should, as it has been directed by this court with the historical or benchmark
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configuration and then respected the state's plan. >> you know what i don't understand about your brief, mr. garza? if the states can't -- if the plan has not been precluded you should be saying the state can't look at the plan but on the one hand you're saying is it great because the court did look at the plant. on the other hand you say the court can't work at the plant. which is it? there's real tension. on one page isn't it great the court looked at the plan and then you say the court -- >> we don't say the court can't look at the texas plan. what we say is the court can't implement the texas plant and certain we can to implement the texas plant if there's any suspect of discrimination. it was exactly right measure. >> you are saying the court shouldn't. >> i think the court did the appropriate thing. >> let's go to something just
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this scalia asked. what does the court do with privilege claims? does it assume under your theory that those claims are valid? if you say no, it should assume that, at what level of inquiry should the court engage in before it accepts or deviates from the enacted plan? >> i think that the court first of all should not start with the state's plan. it should look at where there have been objections made and the role of the district court and the district of columbia is where the question whether there are frivolous claims and note motions to dismiss any of the claims in washington d.c. based on frivolity. >> so the texas court should
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automatically accept every district that the challenge has been raised? >> it should not accept any of the districts that have been challenged. but the difference in terms of -- >> i don't mean to interrupt but i didn't follow that. so long as the district has been challenged in d.c. the court in texas should not accept it. >> it should make a determination either way and it didn't. in those districts it didn't adopt the plan that were put forward by the plaintiffs or the challengers in washington d.c.. it looked at the benchmark plan. >> could it look at the difference and say it respects county line that follows the rivers and look at it for that reason? and rely on the legislative judgment of a sound judgment that the river runs through here and the county line and so forth? it seems to be the difficulty was saying you can't look at the plant. >> the problem with that is it
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would be assuming that the state is correct, the doesn't violate section 5. that is an inquiry reserve to the district court and district of columbia. >> it goes the other way. they can to prove something that was challenged aren't you assuming that the plaintiffs are right? that is an inquiry that lasted district court in d.c.. >> the court didn't accept as a remedy with the plaintiff's proposed. it reverted to state policy what is directed to by this court. it went back to policy and looked at the benchmark plan and started with the benchmark plan. even with the congressional plan weather four new district and there is no comparable district in the benchmark it looked to the legislatively enacted plan to determine where you place the district. >> that is not the current state policy. the benchmark plan is gone. it is old. the texas legislature now has a
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different policy and that, you say, should be ignored. >> that policy cannot be deferred to. it is inc. in a court's plan in the manner in which it did review the plan. [talking over each other] >> there's a presumption of its invalidity. you can't presume it invalid. >> what the court did. >> not be the way. you are assuming it invalid. >> you are suggesting that you are reverting to the policy. you are not incorporated it but you are not making any decisions. the way you walk that tightrope is you go to what the state policy was before the enacted. >> let's say legislature. we have a new policy and that is once you satisfy our constitutional obligations and obligations under the voting rights act the only thing we do is draw the districts that are the most compact possible.
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compaq this over everything else. they draw the plan that embodies that policy and it is challenged under section 5. can the district court say the same policy as compaq for everything else, but we don't agree with that. we have other neutral principles that advance the interests of the collective public good which is the term the words of this court use. can they do that? >> i don't believe they can and this court didn't. >> then you are saying they are constrained by state policy except to the extent the constitution or the voting rights act requires otherwise. >> part of the voting rights act is section 5 and in those areas and in those districts where there have been challenges the district court has in the district of columbia determine those challenges are substantial because they denied a pre
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clearance and -- [talking over each other] >> free clearance. they denied some judgments. >> but they went even further. they said texas has not disputed many of the intervenors specific allegations of discriminatory intent. under the summary judgment standard they have to find the challenges being made are substantial. district court in texas was not privy to incorporate discriminatory districts in its interim plan and it didn't. it first went to the state's plan, the benchmark plan to begin its process, it was drawing those districts. there is a good reason why texas is covered under the voting rights act. as this court indicated there's a terrible history of historical discrimination in texas including discrimination -- >> the constitutionality of the voting rights act -- maybe you could turn for a moment to the issue that i see on joint
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appendix 146 and 147. they don't say minority coalition opportunity district happened to emerge. it said district 33 was drawn has a minority coalition opportunity district. we never held that it is appropriate or permissible to draw district where you are putting together two minorities. kissel two different minority groups. that raises all sorts of concerns. it is one thing and the voting rights act to say this group vote as a block and has been discriminated against in its ability to elect representatives of its choice. it is another thing to say two different minority groups are put together because they share some particular view because one candidate will be each candidate of choice. that goes a step forward under the voting rights act. the district court creating that in the absence of any expression of a desire to create that type
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of district. >> the statement that the court made is a correct statement. did create a coalition district in dallas but that is not describing how it reached that district. it describes how it reached that district as an number of other places but discussed above the court has not intentionally created any minority district. >> district 33 was drawn as a minority coalition opportunity district. of don't see how it can be read any way other than saying we drew this one as a minority coalition opportunity district. >> it can be read differently than your interpretation of this because the court has said over and over again we did not attempt to create a coalition district leader and we did not attempt -- >> something can be read differently than that because they said something else. >> what i am suggesting is what he is saying is this is the
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result of what they did. the sentence can be interpreted as this is the result of what we have done. [talking over each other] >> drawn as the coalition? >> if i could help with the reader. district 33 was drawn in the dallas-fort worth to reflect population growth in that area. then goes on to say what justice scalia says. when you apply -- i read it consistent which is what they are doing is population grows. one person one vote. legislature did create minority whenever the opportunity is, sole we are taking of the population and it turns out we create it as very ambiguity here. >> there is no independent
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evidence than this was a racial gerrymander. what do courts look at? split voting precincts where you go out and carved and bring in minority voters. it is entirely within one county and the compact district especially when you compare to the district -- >> why do they care that was drawn as a minority coalition opportunity district? just follow precip lines and everything else. >> it is describing what the result of their drying is and that is perfectly legitimate. >> can we infer from the of the reading of the sentence, in the court's view it was desirable to have minority coalition? i draw that inference. >> it is desirable to have
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minority district. minority coalition district. moreover -- >> you would defend the plan on the grounds that this is a sound result? >> the plan drawn by the court is fair. is it the optimum plan the plaintiffs wanted? it is not. >> one of the basic rules that was followed in drawing up the court planned was not to divide any voting districts. >> that is one of the principles. >> that is not a principle the texas legislature agrees with. >> there two reason. >> the court just made it up. >> no. para two reasons they saw this as important. it was directed by this court in bush versus thata. we have an interim election or an impending election. it is important for
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administrators, and a legitimate election process to have all precincts. it makes a big difference in how it is administrative. the second reason is this court should adopt this plan without any inquiry into the standards. it was very deliberate. very cautious and very open. we had three days of hearings on what these plans should look like and what that did not to be including testimony from election administrators and the texas secretary of state. in every instance those administrators and the administrative secretary of state said the most important thing the court should consider if it is going to order us to start conducting elections under a different plan is maintain voting precincts because that is the most cumbersome part. >> texas says we don't care
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about maintaining a voting precincts. this is a matter of administrative burden and expense and we are willing to bear that. so disregard that. district court can say we disagree with you in order to make it more convenient to hold the election if it is convincing -- for texas. they can do that. >> the state didn't do that. >> could they do that? could district court do that? >> i think they could because there is the authority of this court that direct courts in trying interim plan for impending elections to be cautious about that. and number 2, if in fact in order to get an appropriate map you must split a number of precincts which means you can't conduct the election on april 3rd. we still have time as the government's attorney indicated. there are states that conduct
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primaries as late as june 26th. the drop dead deadline is not april 3rd. it is november 6th to. if this court disagrees with our position and is determined to send this back to district court it should consider this. district court and district of columbia is 30 days from rendering a complete decision in the section 5 case. that would place the court in texas in exactly the other circumstance. in that circumstance -- the court is poised to move. it can move with all due diligence. it had two weeks of trial in which it heard testimony on the plaintiff's claim. wants the district court and district of columbia tells us these other problems with the state's plan that the court in texas is primed to make its decision on the plaintiff's claims under section 2 and the constitution. >> what is the real drop dead
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date? that is the date of the general election. what is the latest primary election on june 26th? working backwards -- [talking over each other] >> i don't want to interrupt but is that the day of the last presidential primary? >> that is correct. so you talk is -- utah conducts the state primary and a presidential. there are states that conduct primaries as late as september that have no presidential primary. >> how many days before that election due be voting mechanisms or apparatus need to set off the voting booth success? >> the critical date is 45 days from the election in order to in short sending out of balance to overseas voters including the military. if you go back 45 days and give
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the jurisdictions sufficient time to develop a balance because you need a balance and to the soldiers then that is what the testimony was. that takes about 90 days. i believe that is what they testified. 45 days plus 90 days and that is the deadline. >> go back to june 26th. >> if you go back -- [talking over each other] >> at an end of march. >> you can develop a plan by the end of march and we could conduct an election in late june. >> when do you expect the d.c. court to finish? >> i would expect it to finish within 30 days of today because we have closing arguments on the third of february and if the court will act with the
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diligence it did on summary judgment which is a complicated record and a large record, six days later it made its determination. it didn't issue a memorandum opinion but gave us something we could run with a. >> when do you expect our decision on the appeals in district court? [laughter] >> later this afternoon. >> they did write a summary judgment opinion. they made it sound very complicated. >> yes. >> that is why i have -- going to render this decision after the trial will end february 3rd. >> that will be closing arguments. >> is there anything in the interim, pre judge court or district of columbia that indicates likely or potential
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violations that are section 2 violations as well as section 5 of violations? >> from the -- >> i can amend that to submission of the parties. >> in the district of columbia, i believe that the court has found the plaintiffs have made substantial claims with regard to retrogression and intentional discrimination and intentional -- >> the second section two violation as well. >> intentional discrimination is a component of section 2. it is important to note that judge smith in texas used in a manner of speaking preliminary injunction standard being advocated by the state and they would not be able to meet that standard because generally judge smith determined that plaintiffs presented claims of statutes
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stories or constitutional infirmities ruled that the plan was an extreme gerrymander, rules that elimination of district 149 presented section 5 problems. ruled that the legislature dismantled and minority district that presented -- >> do you have objections to the plan by judge smith in the house and congressional district? >> yes. we believe there are section 5 claims with regard to harris county. judge smith addressed -- >> do you have -- two objections. >> in harris county, the court did equalize population for
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failure of the -- to justify the deviations contained in that district but didn't provide in our opinion additional remedies. judge smith's proposed plan for the state house is very similar to the plan proposed by the majority. it differs by only one minority district. that is one additional minority district contained in the interim plan, than is contained in judge smith's plan. >> what would you think -- that the court could start with the texas plan and say there is a new texas plan and say anything that is consistent with statutes and the constitution can go forward but it is texas that has to show that consistency. flipping of the burden of proof in of the way that mr. sri srinivasan suggested. >> in a way that makes it more
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consistent with section 5. >> i think our position is section 5 is clear. this court should not start with the interim plan. but if the court disagrees with me that is a more reasonable approach than the 1 offered by the state. for the same reason argued by the united states. in the state's argument you really turn section 5 on its head because one of the principles -- benefits for the minority community in having section 5 is it alters the burden of proof and if you maintain the burden of proof on the state before it can implement any portion of this newly adopted but not pre cleared plan that is far more preferable than shifting the burden which would be inconsistent with section 5.
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i don't think i have anything else. >> thank you. mr. clement, you have three minutes remaining. >> thank you. a few points in rebuttal. as one of justice alito's questions highlighted, making one person one vote problem unique is an infinite number of ways to solve the problem. for that reason this court always looked wherever it could to legislative guidance. so much so that in light against wiser they looked to a plan that was declared unconstitutional for failing to accommodate one person one vote problem but this court still says the district court did not take that into account to the extent that it could. as to the heart shall is of using the legislative plan that reflects legislative will for the judicial plan that even the united states concedes is flawed this court case more difficult
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choices in the past. bloc against why there and would come, this court chose between an adjudicated lee unconstitutional state plan and a judicial remedy determined was flawed and in both cases it ordered the election to take place under the flawed constitutionally adjudicated imperfect plan. compared to that, simply say in an election should go forward under a plan that had not been precluded the less serious step. there was reference made to three days of hearings but three days of hearings with a non administrable standard is worse than one day of hearing with a non administrable standard. we ask for a preliminary injunction standard that is familiar to everybody and everybody and his stand and can apply. >> why shouldn't it be inverted the way your friend suggests? >> it is better than the worst alternative. better than the district court continuing but here's why it
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shouldn't. that further in froude's on the d.c. court because the question the remedial court should not be asking is do i really think -- what are the odds the d.c. court will pre clear? shouldn't ask that question. asked the questions before you. is there section 2 violation or equal protection violation? if there aren't those does that create a section 5 violation? that is different from the pre clearance question. on that section 5 questioned the burden is not logically on the state. the same section 5 questions the court considered on its own motion. doesn't understand that even when it takes a plan it has to be consistent with section 5 principles. justice kennedy, you asked what if you take section 5 out of this? that it is an easy case. then it is the preliminary injunction standard. how can you take section 5 out? there is not an interference with section 5 because texas still understand it needs to get pre clearance before it changes


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