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tv   Rucho v. Common Cause Oral Argument  CSPAN  June 28, 2019 3:01pm-4:13pm EDT

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amendment rights are going to prevail? these seven plaintiffs, it's not a class action or the 1.5 marylanders who approved this plan. that's the question that was even attempted for the answer to be provided by the court in this case. this test cannot be the answer to how do we protect the people and their ability to ensure that motions do not draw the districts to serve the politicians instead of the people. unless there are any further questions, thank you. >> thank you, counsel. the case is submitted. the supreme court ruled yesterday that partisan gerrymandering is a matter of politics and not a matter for the federal judiciary to decide. the decision covered both the maryland case we just heard and also a case from north carolina about partisan gerrymandering in that case.
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up next, oral argument from the north carolina gerrymandering case. >> this court has repeatedly failed to identify a standard r for partisan gerrymandering claims. the cause is not a lack of judicial imagination or a lack of claims that the particular map before the court was the most extreme ever. rather, the root cause of this failure is the basic decision of the framers to give responsibility for congressional districting to political actors. the framers consciously chose to give the primary authority to state
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>> i would submit that you don't have a one size fits all
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solution. i took the central lesson of baker v carr to be that the same claim essentially when presented as an equal protection claim was justiceable. >> mr. clement, does one person have one vote that counts equally, which i take it to be the message of those cases now well accepted. does one person have one vote that counts equally with others. is the impact of her vote reduced based on her party affiliation? >> the answer is yes, you still have an equal right to vote as an individual. what the parties are complaining of is not a purely individual injury. what they're complaining of is they're grouped in a district
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with either too many people who agree with them or too few people who agree with them. therefore their vote is sort of diluted in some. >> lots and lots of voters live in a district either because of geography or state action, they're not going to have their preferred candidate elected. indeed i'd go further and say most americans don't get their preferred candidate elected because they have to choose on the candidates before them and maybe based on the district they live in it tends to give them a relatively liberal democrat or a relatively conservative republican when really what they prefer is somewhere down the middle. >> mr. clement, would you position require us to overrule
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the case? >> i think -- >> if we decided in your favor, would it require us to overrule? >> it would still depend on standing grounds or justiceability grounds. if you decided on justiceability grounds, i think you would have to overrule the bandmere case. i think as justice scalia pointed out it is a case that has no reliance interests on it over than the potential reliance interest of litigants. it hasn't produced actual results. i think as justice scalia said it's a decision that sort of triply have strong claims. i think if you decided on standing ground you would really be deciding on grounds that are actually interior to anything
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the court decided in bandmere. >> mr. clement, if i understand the bottom line of your argument, you would answer the question that one of my -- i don't want to call him a former colleague. he's still a colleague but no longer on the bench with us. justice kennedy asked in one of these cases and it was if a state constitution had a provision that required redistricting to be based solely on partisan grounds. forget about whether they were meeting any other traditional grounds or not, you would say that was constitutional. >> well, actually, justice sotomayor, i think i might say to that particular hypo -- and i matters how you frame it.
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some requirement that's going to apply to every redistricting going forward, there's at least an argument there's an election clause with that argument to try to control subsequent redistricting efforts. >> you're basically saying yes, that would mean as occurred here that almost 50% of one party's vote is going to result in maybe less than one-third of their representation in congress. >> that's exactly right. i think you put your finger on what my friends on the other side perceive to be the problem, which is a lack of proportional representation. >> no. because all of the tests that they're proposing and that the district court looked at didn't talk about proportionate representation. it looked at only the opportunity to elect, an opportunity is different. the way this is structured there
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is absolutely no opportunity but virtually none for for maybe a majority party to elect more than or less than a third of the people they voted for. >> i think that that difference -- first of all, i think that difference is implicit in the idea of having districts rather than state-wide elections for the congress. keep in mind, the koconstitutio as originally enacted it is perfectly constitutional for a state to embrace the policy idea that proportional representation is a good thing and implement it by saying we're going to elect congress not by districts but by statewide votes. >> can i take you back to the justice kennedy question that
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justice sotomayor talked about? i'll say the question in a little bit of a different way. it seems to me this is kind of justice kennedy's hypothetical come to life in this sense, that there is a particular provision in the legislation here that says the partisan makeup of the congressional delegation is 10 republicans and 3 democrats and the committee shall make reasonable efforts to construct districts to maintain that current partisan makeup, 10-3. so it was specifically written into the law that whatever else you do -- and there were definitely other things that the lawmakers wanted done, but whatever else you do, don't come back with the same 10-3. i think that was the import of justice kennedy's question, is like can you write that into a law and say that's what we're trying to do here? >> justice kagan, two responses. i did notice every time justice kennedy asked that question, he
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did ask it the way that justice sotomayor did a. i do want to drop the footnote -- >> this seems pretty enshrined. go do it 10-3. that's the current, that's what we want to maintain. >> i think there's a difference. i'm happy to respond to your question about can you have it as an express criterion for a particular districting. i think the answer is absolutely yes that's not a problem, and by the way, i think actually being candid about it probably serves accountability principles in the long run, which is to say if you think, which i think almost everybody does, that implicitly that's what the republican legislature was doing in bandmere. they were explicit in their footnote testimony that the people who drew that map, the speaker of the republican house
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of indiana was expressed that his goal was to preserve as many republican incumbents as possible. >> can i take you to the way justice kennedy formed the question which hypothesized the state constitution. the elections clause says it is to be prescribe -- the times, places and manners are to be prescribed by the legislatures of the state. do the legislatures of the state typically control what is in the state constitution? >> they don't, justice alito. that's why i do think it's important to figure out. i think justice kennedy may have framed that question in a particular way. i don't want to go too far down the road of relitigating the arizona redistricting case here, but i do think there's a respectable argument that state legislature means state legislature and not the other parts of the state government. >> it can mean the people done
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by referendum. >> it well could, justice ginsburg. there are at least four people that agreed with you on that problem sigs. you can still say the claims are not justiceable. i don't think there is a constitutional problem when a state legislature makes explicit with respect to the redistricting they're undertaking at that moment. if they make explicit what's ultimately explicit what have the record was built nuup in bandmere. the way you read the criteria is exactly right with respect to partisan advantages. they said reasonable efforts will be made with respect to other items on their list of
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criteria like con ttiguousness. other things were negotiable but reasonable efforts would be made. >> along those lines, in terms of democratic accountability, one of the arguments we've heard is that the court must act because nobody else can as a practical matter. given arizona, is that true and to what extent have states through their initiatives, citizen initiatives or at the ballot box in elections through their legislatures amended their constitutions or otherwise provided for remedies in this area. i just happen to know my home state of colorado this last november had such a referendum on the ballot that passed overwhelmingly, as i recall. i believe there are others.
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i'm just wondering what's the scope of the problem here. i also know there are five states with only a single representative in congress so presumably this isn't a problem there. >> that's right. to the extent it's a problem at all the scope of the issue is roughly 30 states who don't have some kind of mechanism like you described or have multiple districts. >> my sense is there's a lot of movement in this area. i believe there were four or five states along with colorado just this last election that acted. >> michigan is another state that passed a ballot initiative. the other place where there can be a solution to this which is the most obvious one and is a solution no matter what you think of the arizona independent case is congress. if you look at hr-1, the very first bill that the new congress put on their agenda, it was an effort to essentially force states to have bipartisan commissions.
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now, query whether that's constitutional, but it certainly shows that congress is able to take action in this particular area. >> well, i suppose the members of congress are pretty happy with the way the districting has been done. >> you might think, mr. chief justice, but actually i don't think the majority of them are, because that was a bill that i think passed on party line votes. to the extent that the justices of this court in the past have been concerned about things like entrenchment and the like, it's a little odd here that we've had all of this supposedly partisan redistricting to benefit the composition of congress and yet the majority of congress thinks they should pass hr-1. so i just don't know that there really is that much of a problem. the particular context that arises here is the context of congressional redistricting. and one of the elements of the framers' structural solution was they didn't directly tell
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congress, why don't you district for yourself. they said in the first instance, let's have somebody else at the state level closer to the people do the districting and then we'll give congress a role to supervise that. they didn't have sort of the same fox guarding the same hen house in this particular context. >> you may not want to answer this question, which i understand. you might not have thought about it. but assume that absolutely this is illegal or unconstitutional. but there's no remedy. we can't figure out a remedy. that's where i want you to start. now, i tried one in veeth, you know. my guess is from the reaction there was none so probably there's something wrong with it. what i'm trying to do is to figure out if there's a way to catch real outliers.
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so which are the real outliers. if you look at history, there wasn't that much gerrymandering in the past compared to what there might be with computers in the future. i've tried to figure out something. simple. not going to get every judge in the country mixed up, not going to lead to every election contested and throw it all to the judges instead of the people. anybody can figure it out. this is what it is. that if there's a commission or something, forget it. you're out of court right away. but if there's no commission, one party controls it, then a gerrymander is unconstitutional. if a party that wins the majority of the vote in a state but the other party gets more than two-thirds of the seats,
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that would be pretty extreme. but your client might meet it. and the virtue of it, it's absolutely simple. they can try to justify it and then we can use something like those 5% things to test the justifications. but there won't be much can be justified. it could be a starting place. and that two-thirds number is not drawn out of thin air. the constitution, in fact, you can find serious matters, overriding vetoes, constitutional amendments and you can show how gerrymandering wrecks what they assumed for those. but that's a different story. it very rarely would operate, but it would be somewhere. now, have you thought about anything like that? do you have any reaction? your reaction would be, no, that's no good. aside from that, is there
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anything you want to contribute to thought on that? >> well, in all candor, there's so much in that that i disagree with that it's a little hard to know where to start. i'm going to resist at first the temptation to take issue with the premises, though if i have time i'll get back to that. first, the reason i think your test has to be a non-starter is the fact that, as you say, your test would basically give a pass to any state that doesn't use the method prescribed by the framers to engage in congressional districting. so it would be a strike against the state if they actually did what the framers envision. >> wait, wait, wait. one second. i'm just saying this is perhaps a start. i'm not saying anybody gets a pass. i'm saying you wouldn't have to go further than that in this case. >> i thought i heard you say that if you were a state that used bipartisan commission dot,
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dot, dot, you would get a pass. >> you're right. >> that seems to me itself to be remarkably revealing because you're saying it would be a good thing for the state if they chose to use a mechanism other than the one the framers picked. >> not if you say that for this purpose, the legislature is the people and that's what arizona held. >> well, in fairness, i think what arizona held is that the people are within that concept, but i certainly don't think arizona stands for the proposition that what the framers had in mind primarily was something other than the state legislatures. it seems to me it's a strike against your test that it identifies as a problem something that the framers would have associated with the primary mechanism they used for redistricting. >> if i could interrupt for one second, going down that road
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would suggest that justice gorsuch's attempt to say this is not so bad because the people can fix it is not so true because you're suggesting that really maybe the people can't fix it, you were wrong about the people being able to fix it, and if the people could fix it, well, it's not the constitutionally prescribed way because it's never been done before. justice gorsuch's attempts to save what's so dramatically wrong here, which is the court leaving this all to professional politicians who have an interest in districting according to their partisan interests, seems to fail. >> i would disagree, justice kagan. i took to the import of justice gorsuch's question being maybe we can allow the states to solve this problem for themselves. b when you get at the starting point of justice breyer's
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question -- >> what i'm trying to get you to focus on. i've read the briefs. this is the fourth time. the thing that i want you to focus on, if you can, if you want to, is the two-thirds majority idea. look, my party got a majority of the votes in the state, but we ended up with less than a third of the seats. you see my tone of voice meant, gee, this is really extraordinary but there is absolutely a workable standard. now the next question is all the constitutional arguments you're raising. i'm not pushing those under the rug, but for present purposes i want you to see if there's any reto reaction to the practicality of this standard. >> i think the way i would respond to that is that i'm not here to tell you that if a constitution included a one standard deviation from proportional representation clause or a one-third/two-thirds clause that judges somehow would
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be incapable of administering that clause. indeed you can't talk even generally about outliers or extremity unless you know what it is you're deviating from. i take it implicit in your question and implicit in justice sotomayor's question that what's bothering people is a deviation from representation of proportional representation. >> you're quite right that this court in the past has said this country does not run on proportional representation and this is a hang-up in our ability to solve this problem. but what's quite interesting about the statistical analysis in this case is that quite a lot of it does not run off a proportional representation benchmark. in other words, all the computer
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simulations, all the 25,000 maps, right, really do take the political geography of the state as a given. so if democrats are clustered and republicans aren't that's in the program. and all the other redistricting requirements or preferences like conty guty, like following natural boundaries -- the benchmark is not proportional representation. the benchmark is the natural political geography of the state, plus all the districting criteria except for partisanship.
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it's just not the way that anybody can district given the actual political geography on the ground unless you absolutely try to overrule that political geography. >> to justice kagan, two points. i mean, i'm happy to respond to the maps but do i think justice breyer did build in a proportional -- >> no, i don't think it does for this reason. the reason is all it says -- >> i want you to come back to justice breyer's question but i want you to answer mine. >> i hear one-third/two-third and i thought we were talking about proportional representation. what i find striking about the maps is, first of all, you can do this 24,000 different ways.
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this sounds like it's about as discretionary a government function as one could imagine. it is a purely discretionary function. you can do this 24,000 different ways. >> that's making lemonade out of lemons. you can do it 24,000 different ways and 23,999 produce an outcome that's less partisan than the one the legislature picked here. >> see, what i think is remarkable is that actually what the statistics show and this is on page 162 of the jsa is that if you run 24,000 maps with partisanship taken out entirely and you just used traditional principles, you get 162 definite m different maps that produce a 10-3 republican split. it's .7% just to be clear. that's 162 different ways to get to a 10-3 match thp that didn't
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politics into account at all. >> if you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don't you need a criterion or criteria for deciding which of the 24,000 maps you're going to choose? and implicit in justice kagan's comments is the idea, is it not, that you have to choose one that honors proportional representation? you have no other criteria for distinguishing among the 24,000 maps. >> i think that's right. at a bare minimum, it has to be -- >> mr. clement, let's go back to the why of that. you keep talking about proportional representation, but it's not. because what was shown is that 99% of the time you get a map that is more fair to both parties than the one that was chosen. so the issue is you can have
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162, 164, but what you can't do in picking that 1% of a map is discriminate against a group of people based on their political views. we have a legion of cases that say you can't treat political parties differently because it's an equal protection violation. and it's the same thing, whether it's because of their speech or their activities, what we're telling you is pick any other map you want, just don't split counties, as was done here based solely on your political views, because counties were split. don't pick or don't -- you may use saving an incumbent, but don't kick one out because by
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kicking one out, and there is a map that would keep all of the incumbents in place, don't kick one out because you're excluding people based on their political views. this is what this is about. you're driscriminating on the basis of a group's speech and diluting their vote accordingly. >> three points if i could get them out. the keyword in your question is fair. what makes this unfair i would submit at the end of the day is some principle of proportional representation. nobody thinks it's unfair, i don't think, that republicans in massachusetts under the current maps are never going to be able to elect somebody to congress even though there's something like 35% of the population. nobody thinks that's unfair because you really can't draw districts to do it because they're evenly distributed. it might be unfortunate for them, but i don't think it's
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unfair. what makes this fair is some conception of proportional representation and the ability to do it. >> that's true. but party a gets over and over and over 55% of the votes. party b every single time gets 90% of the seats. now, if you want to call that proportional representation problem, do it. but i'm limiting to that kind of thing. i mean, it's not proportional representation, it's a problem of seeing a legislature reflect to some degree, you know, the views of the majority of people that elect its members. >> so justice breyer, let me say why i don't think that's such a horrible problem and then we try to put what's on the other side of the ledger. even if it's as you described, what's going to happen in almost every state is the 55% majority
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will elect to statewide office governors, attorneys general and the like. and the next time around they're not going to be able to pass a map and the next time around it will probably end up in gridlock and a judicial line drawing. i don't think that's the happiest result in the world, but it means you're not going to be able to perpetuate this in the long run. here's what's on the other side of the ledger. >> let me give you a 49% state which is more like what north carolina is. so a 48 or 49% state might not find it so easy to do that. yet that 48 or 49% in this map is consistently being represented by 25%, give or take, of the legislature. >> and i don't think anybody has a solution. i think gerrymandering is sufficiently unpopular as proven by history that the 48% might get i lekelected.
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but if you're 35%, nobody's got a solution for you. i think justice o'connor had her finger on the pulse of state electoral politics said this problem is largely self-healing. on the other side of the weight, if you get in the business of adjudicating these cases, these cases will come. they will come in large numbers and they will come on your mandatory appellate jurisdiction. once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other -- >> mr. clement, you seriously -- >> i'm sorry? >> just what you said now, that was the exact same argument about don't go to one person/one vote. the courts will be flooded with cases and they'll never be able to get out of it. that's not what happened.
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>> sometimes an argument that's not a great argument in one context turns out to be pretty darn good in another context. if you tell state legislatures that are literally divided down the line in the middle with a physical aisle between democrats and republicans that they can't take partisanship into account u then you're really telling them to get out of the business of redistricting entirely or you're opening yourself up for case after case after case. >> can i ask a question, which is first isn't proportional representation a judicially manageable standard? >> well, it's a difficult standard that would require answering some elections about baseline but it could be manageable. >> the second is why can't the equal protection clause be interpreted to require something
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resembling proportional representation? >> because it's entirely ahistorical. they also gave them the choice to districts which is fundamentally inconsistent with that. thank you. >> thank you, counsel. mr. bondurant. >> mr. chief justice, may it please the court? this case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this court since the one person/one vote cases. the north carolina legislature's case is equally extreme. they take the nooposition that matter how predominant the intent, no matter how extreme the intent -- >> when you use the word
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extreme, that implies a baseline. extreme compared to what? >> in this case, it is extreme in comparison to any statistical application of neutral redistricting principles in the context of the political geography of north carolina. it was statistically impossible to come up with an 11-2 plan . as one of the authors said, we are proposing a 10-3 partisan gerrymander because it's not possible to do an 11-2 plan. the statistics bear that out. moreover, dr. chin's maps which took every possible criteria that they used that was legitimate, applied them to a thousand randomly drawn maps showed multiple things. first, that you cannot possibly explain the 10-3 advantage based
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on political geography, democratic clustering, the application of independent redistricting principles or pure chance. this is not the result of chance. you can only achieve it by making partisan advantage the predominant moetivation. >> i understood your brief as saying that any element of partisanship was bad. is that your position? >> no, your honor. our position is that partisanship has to be at least a material factor, as it is in arlington heights or mt. healthy. but in this case we proved that was a predominant factor and that is the ruling of the lower court. >> i guess it rephrases the question of what constitutes a material factor. >> well, the difference between material and immaterial having no consequence is a very real
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difference. >> just so i understand, any partisanship that has a consequence is impermissible under your view? >> we do not need to go that far in this case, because you have evidence of predominance. that is, this objective, partisan advantage superceded every other conceivable objection. >> i understand the reality that it's an extreme case. but to state a principle that we're going to be able to apply to other cases, your definition of material is that it has a partisan consequence? >> it is a material part of the decision as is, for example, firing in mt. healthy. if that was a material part of the decision of the school board to fire the schoolteacher, then he had made a prima facie case which could then be defended based on either there were intervening causes. that is the real reason why she
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didn't show up to teach. or you have legitimate state interests that are being served. in this case, the north carolina legislature before below did not advocate, contend in any way that there is any legitimate state interest of any kind served by partisan gerrymandering. so you have under any of your analyses a clear burden. you have clear vote dilution, carefully thought out, skillfully executed. >> if you make a list of the so-called neutral criteria, compactness, contiguity, respecting certain natural features of the geography and you have the computer program
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that includes all of those and weights them all. let's assume all of that is neutral. at the end what you get is a large number of maps that satisfy all this criteria. i think that's realistic that's what you will get and the legislature chooses from among those maps. how do you determine whether that choice is unconstitutional? >> the choice would be the standards that the court has traditionally applied. picking an example, the island trees school case in which the court said that a democratic school board could not use its discretionary choices to discriminate based on viewpoint by excluding republican authors and republican -- >> can you just answer that question? because it's a real puzzle to me. let's say you've got 100 maps or you might even have 25. i think you probably have thousands. but you have all of these maps and you have to choose among them. the legislature chooses among
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them. you've already programmed in all of the so-called neutral criteria. how does the legislature go about choosing among those maps? would anything other than just random choice be satisfactory? >> the legislature has wide discretion as long as it does not attempt to do two things, dictate electoral outcomes, favor or disfavor class of candidates. >> counsel, that first one, dictate electoral outcomes, i think, is going to turn on numbers, right? how much deviation from proportional representation is enough to dictate an outcome? so aren't we just back in the business of deciding what degree of tolerance we're willing to put up with from proportional representation? we might pluck a number out of the air or see that maybe
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two-thirds is used for veto overrides so we like that. where are we going to get the number at the business end of this? >> the business end of it is looking how this is done. this was done by looking at voting history is the best predictor of voting behavior, sorting voters among districts to achieve a particular outcome to guarantee that in ten districts there would be safe republican majorities in which the general election is essentially irrelevant and the primary election -- >> let me try one more time. let's say you have a range of outcomes with all of these neutral maps that satisfy the neutral criteria and they extend from 10-2 in favor of republicans to from 10-2 in favor of democrats. which one do you have to choose? >> 9-3 for republicans, 8-4,
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6-6? >> clearly it's an evidentiary matter in terms of intent. if the predom innocent intent is to favor one party, that goes too far. >> isn't that always going to be the case when you deviate too far from 6-6 in justice alito's hypothetical? >> it certainly is going to be a question of factual proof. >> the further you deviate from proportional representation, the more likely you are to be found guilty of that. >> it is purely an evidentiary question. this court itself said in
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reynolds that any case in which you look statewide and see proportional representation, it is less likely that you have -- >> as part of our mandatory jurisdiction in every single redistricting case, we're going to have to look at the evidence to see why there was a does he ha haveuation from the norm? >> you're going to have to look at the case and determine whether or not the plaintiffs proves intentional predominant partisan intent to discriminate. >> i would think that would always be present. >> the legislature in north carolina could have picked between hundreds of maps that would have produced a 6-7, maybe
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an 8-5 representation. but that is not this case. >> what do we do as well about the fact that about 20 states, as i understand it from your friend on the other side, have dealt with this problem through citizen initiatives as a remedy to deal with this including, i think, five of them just this last election and a bunch more on the ballot in the coming election. why should we wade into this when that alternative exists? >> the simple answer is this. the vast majority of states east of the mississippi including specifically north carolina do not have citizen initiative. >> can you amend your constitutions? that has happened in a lot of states too. >> you can only amend the constitution with the approval of the legislature. that is not an effective remedy.
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in the states in which you have independent redistricting commissions, are states in which those commissions were adopted over the dead bodies of the legislators by citizen initiative passed overwhelmingly by the citizens in face of legislative opposition. >> what do you do with the fact that partisan identification is not the only basis on which people vote? you see electoral results change dramatically depending, for example, on the particular appeal of individual candidates, turning on who's at the head of the difficult rather than down ticket. how do you deal with those factors that depart from the arguments about the inef tablt of electoral results? >> the social science and the experts in this field which included dr. hofler who designed
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this plan was the republican party's leading redistricting expert. he testified that based on social science in his 20 years of experience in redistricting north carolina he could demonstrate that how a small what are called voter tabulation districts had voted in past elections, whether democratic or republican, was the best pri predictor on how they would vote in future elections and all gerrymandering in the modern era is based on that social science. >> it turns out that a lot of the predictions in this area and i don't know if this applies to north carolina or not, prove to be very, very wrong very often. you have the famous example in the veeth case where the argument was the method under
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challenge would never allow the election of republican judges. and 15 days after the opinion came down, all the judges were republican. i mean, even as in the more recent cycle i understand a lot of things that were never supposed to happen happened. >> in this case on this undisputed record the way this was done was dr. hofler used a composite of seven statewide elections over four election cycles to come up with a calculation of partisan advantage and predictability. and it predicted ten republican districts and the republicans won all ten. it predicted three democratic districts. the democrats won all ten. in 2018 they did the same thing. he used the same methodology in 2011 to describe the districts
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in 2012. >> counsel, the reality is that with all statistical models, and we spend our lives based on them, insurance is paid on statistical models, health insurance premiums are based on statistical models. i'm given to understand by the amicus briefs in this case that n nuclear plants are built based on statistical models. the other thing about statistical models is there's always a possibility of an aberration, correct? >> there is a remote possibility sometimes. >> and sometimes happen,that's why they're a possibility. >> correct. >> so the fact that you have one exception doesn't disprove the rule. >> certainly not. 100 maps out of 24,000 maps. >> but the problem i think your side throughout this morning has to deal with, a problem, is from
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this side of the bench to some people looking at the prior cases there is a great concern that unless you have a very clear standard, you will turn many, many elections in the uni states over to the judges. there's always someone who wants to contest it. they will always find experts of all kinds, and what you'll discover is judges simply deciding too much. now, i'm -- i've written about why i don't take that position, et cetera, but i'm not -- i'm not speaking for myself here. i'm speaking as a reader. and an understander of what's on the other side. at least one thing. and think it's important for you and the others to deal square on with that question. >> my square-on answer to that
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question is in this case, we prove beyond a reasonable doubt a predominant partisan intent that was admitted on this record and demonstrated statistically beyond any possibility and dispute and we proved in extreme partisan effect not only on a statewide level but on a district-specific level, in dr. mattingly's charts, six of the districts are extreme statistical outliers that would not be achieved in even one in some instances of 24,000 plans. that is this case. moreover, this court has held that the elections clause is, number one, intended to provide limits on partisan gerrymanderi gerrymandering. justice scalia said that in veath and this court has said the elections clause was a
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limited delegation of power, through not procedural rules, for time, place, and manner, but was not to provide power to dictate electoral outcomes or favor or disfavor a class of t candidates. that is an understandable standard that legislators throughout this country can understand. they already have told that you can't discriminate based on political viewpoint. they already told in redistricting you can't discriminate predominantly based on race. >> suppose the legislature had said, we have all these maps we can choose from, but we don't want to be too greedy, so we're going to pick a map solely for the purpose of giving us an advantage. we're going to pick a map that builds in a 7-5 advantage for us. would there be a problem with that? >> it would be very difficult to
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prove partisan intent. >> what if they said it outright? the only reason why we're picking this map is we want to build in a 7-5 advantage. >> if -- take your hypothetical example, if in north carolina the legislature said we in our wisdom have decided the people in charlotte are going to be represented by a democrat, the people in asheville are going to be represented by a republican, that we're going to split gilford county and north carolina a.n.t. to ensure the students in that school are going to be represented by a republican in one district and a republican in another. they would be dictating electoral outcomes even if it were 7-6. the whole idea of the democratic process in a general election is the people elect a member of congress in a general election which everybody can vote. and when you rig the districts in that manner, you are making the general election irrelevant. you're making the primary election in which only some people can vote -- >> so even the map provides only
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a very small partisan advantage, that would be subject to challenge in litigation? >> if it the facts that i posited you had the legislature essentially deciding that the people in "x" part of the state were going to be represented by a democrat and people in "y" part of the state were going to be represented by a republic an that people in the respected states of other persuasions were not going to have a choice, were not going to have an opportunity. that would clearly violate every principle for which this quart has stood. >> when you say that, aren't you answering justice breyer's question? yes, all of these things are going to potentially end up in court. >> no. >> judges are going to have to decide. >> quite the contrary as is the one person/one vote rule. if the court says as this court said in term limits, that the
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elections clause means that the legislature can't put its thumb on the scale and pick winners and losers, zydictate electoral outcomes, favor or disfavor a class of candidates, that is a standard that can be understood. that is a standard that elect legislators will o cabey. and reduce and not increase litigation. >> thank you, counsel. >> mr. chief justice, and may it please the court, the north carolinians who are plaintiffs in the case come before the court seeking relief. when the general assembly enacted a remedial plan in 2016,
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its leadership eventually bragged to these voters and the public at large that by enacting a 10-3t was punishing voters who supported democratic candidates and was going to create districts that would not allow voters in those districts any meaningful ability to use normal democratic processes to redress infringements on their individual constitutional rights. this case is not the first north carolina voting case to reach this court this decade, but it represents the most extreme example of a nonresponsive legislature that believes that this court will implicitly endorse unfettered partisan manipulation in redistricting by declining to rein in this most egregious example. the vote dilution test presented to this court today is a limited and precise test designed only to pose liability on the worst of the worst cases, thus limiting the number of
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gerrymandering cases that this court will see. a lower-court will apply a three-pronged test where all three prongs must be satisfied, and under many of those prongs there are multiple screens to limit the number of plans subject to liability. first, partisan intent has to be proved on a district-specific basis. proving that district lines were drawn to subordinate the adherence of one political party and entrench the power of the party drawing the lines. second, partisan effect has to be shown at the district specific and plan-wide levels. the district-specific inquiry looks at potential tracking and packing of democratic clusters o republican clusters, as it will, and the statewide, the plan-wide inquiry, is whether the map as a whole creates a severe and durable effect on the disfavored party. then finally the court asks
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whether there's any justification at the district-specific level for the cracking and packing observed and whether plan-wide the map as a whole is more biased than you would expect given the state's political geography and use of legitimate nondiscriminatory criteria. >> indeed, built into this is the idea that we should at least have a proportional representation light. proportional representation is in a sense that it is in some way the baseline against which all of this is measured. >> not at all, justice alito. with the three prongs, there is plenty of room for nonproportional plans. >> a degree. i mean, you can -- you don't have to have strict proportional representation. that's the baseline. that's what you're measuring. was there a partisan effect? well, there's a partisan effect because it deviates from some notion of proportional r representati representation. >> the effects prong and justification prong do real work to prevent that situation from
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happening, from this being just a measurement from the deviation. >> how can that be? because i would have thought under the effects prong there has to be at least some effect. right? >> there has to be a district specific and severe and durable -- >> i got it. we have to measure effect from what? >> so -- >> so every test that's been presented to this court last year and this year, talked a lot about last year, the efficiency gap, which is how far a deviation from proportional representation -- we were told i think 6% or 7% of deviation would be okay and that would not be an untoward effect. but anything above 6% or 7%. today we're talking about two-thirds. as an effect. we need to have a number or some formula to determine what effect is enough to state a claim and what isn't. otherwise, every case is going to come to this court. and i'm still waiting to hear what that might -- what that number -- what that formula
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might be. other than proportional representation and we're not going to tell you today just how far deviation would be permissible because that would expose the problem. >> several points in response, justice gorsuch. the legal standard is -- all the science is an evidentiary tool, not a legal tool. two categories of social science evidence were brought to bear on this question of severe and durability effect. the simulations didn't set a w numerical baseline, you see a range of plans with democrat varying, democrat/republican splits, using these simulations and we're giving the legislature breathing room. >> with respect, counsel, i'm sorry to interrupt, but breathing room from what? >> breathing room to -- >> how much breathing room, what from standard? and isn't the -- isn't the answer you just -- i understand you don't want to give it, but
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isn't the real answer here breathing room from proportional representation up to maybe 7%? >> no. >> if it's not that, what is this breathing room and where does it exist? >> breathing room exists in the bell curve of expected and reasonable map allocations of ref zrepresentation. breathing room to employ some political consideration. >> why isn't the answer to justice gorsuch's question that what's not allowed deviation from whatever the state would have come up with absent -- the state can depart from proportional representation, however much it wants to, however much the natural features of the state would suggest and come up with something that's not proportional rep dresentation a all. what it can't do is deviate from
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that based on partisan considerations. isn't that what this test is essentially driving at? >> that gets at the effects prong. >> yes, that's what i was talking about. >> you would still potentially lack discriminatory effect and it really is a question of whether the line-drawing party is imposing upon a disfavored party a severe and durable effect. >> counsel, i get that, you know, you've wisely adopted a very fine answer. given for you. but i guess my question is, once we control for geography, once we control for all those things, we're going to have hundreds and hundreds of maps as justice alito pointed out. computers that spit them out infinitely now. and once we say, okay, all these other factors are controlled for, we can do a regression analysis, controlled for geography, on all these things, we're still going to have hundreds of maps. the legislature is going to
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choose one. at that point, we have to say, what's the range of permissible options? from that, we need a baseline. the baseline, i still think, if it's not proportional representation, what is the baseline that you would have us use? >> there is no -- >> controlling for geography and everything else. >> the geography is baked into the bell curve. >> i accept that. you and i actually agree on that. so after that, when we're left with -- we've thrown out millions of maps. we're only left with a mere few thousand. okay? what deviation from what to what? >> if what we are left with is no extreme statistical outlier or no grossly asymmetrical map, the legislature can choose from any of those plans. >> counsel, what is wrong with proportional representation? >> there are certainly states where the natural geography of
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the state doesn't lend itself to proportional representation. we live in a system with single -- >> if you were cracking or packing to get to proportional representation, would that, in your view, be unconstitutional? >> this court has endorsed that kind of activity in gaffney where a legislature is striving for a proportional representati representation. our test would not invalidate a plan like gaffney because it would not have a statewide severe and durable effect and it would be something that you would see within the simulations. >> do you agree with mr. clement that the constitution does not require proportional representation or require something close to proportional representation is. >> the constitution does not require it. but what we see here in this test that we've employed, justice roberts, to get to one
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of your earlier questions,s i i test -- technology that was not in existence in veath and vandemer and the republican judge's case in the 1990s and map drawers are using right now. if there is a plan where under any plausible shift of voter sentiment, the bias across the plandisappear. that plan would not be unconstitutional. again, this is an enormous screen to the kinds of plans that would be subject to liability. our proposed tests, the one adopted by the district court, is so exacting that it narrows dramatically the number of plans subject to scrutiny and leaves legislators lots of breathing room. >> am i right to understand that your test allows a greater degree of partisanship in redistricting than mr. m
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bondurant's? >> depending how you understand the constitutional harm. where we see the vote dilution tests based on the one person/one vote and the racial vote dilution frameworks, we see those tests as allowing room for some political situations, particularly the ones endorsed by this court. it's a different approach to the same problem. we do believe that our test does give -- is narrow and descriptive enough that it gives legislatures guidance on what to do to make sure they stay on the right side of the constitution and limits -- gives lower courts something very manageable to apply and to grapple with and the pleading standards are going to be very high. to prove a severe and durable effect is not to just allege it, it's to come forward with rigorous statistical evidence that supports this situation. >> i took some of your argument
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in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a problemdemocracy. the court, even though it might be a problem to get involved in all these cases should, in essence, recognize the emergency situation from your perspective. but what about, to pick up on something justice kgorsuch said earlier, there's a fair amount of activity going on in the states on redistricting and attention in congress and in state supreme courts. in other words, have we reached the moment even though it would be -- have we really reached the moment even though it would be a big lift for this court to get involved where the other actors can't do it? >> the north carolinian plaintiffs in front of you can do nothing to solve this problem, and -- >> i'm thinking about more nationally. your -- the amicus briefs are
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certainly referencing a problem in many states. the idea, i think, in it the bri briefs is this court and this court, alone, can step in. and there is a fair amount of activity going on in the states recognizing the same problem that you're recognizing. >> as mr. bondurant acknowledged, east of the mississippi there's a small number of states where this is a possibility. the court is -- >> that's not initiatives, right? and there there, i mean, there are, new jersey, michigan, ohio, have dealt with this in some way. just to pick a few that i've got in front of me. but you also have the state supreme court option as justice kennedy -- kavanaugh pointed out. we often overlook that possibility in our federal. what do about that. >> other options don't relieve
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this court -- certainly while the reputation of the court as an independent check is an important consideration, understand on facts of this case the reputational risk of the court of doing nothing -- when david lewis says i'm going to draw a 10-3 plan, if i could draw an 11-2 plan, i would. the retputational risk of doing something is much, much less than the reputational risk of doing nothing which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out. this is -- this is a situation wherewithal due respect, justice connor was not correct. this isn't self-correcting. voters in north carolina no matter what level they turn out, this was a swing election in 2018 for north carolina voters. and they were not able to eliminate the bias in the plans. the techniques are so
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sophisticated now that there's no room for self-correction and these voters -- >> if we look at the popular vote for the house of representatives nationally in the 2018 election and compare that to the percentage of seats won by the two parties, what -- to what degree do they diverge? >> i don't know the answer to that question off the top of my head. i know there was a five-point advantage for north carolina democrats in 2018. >> this is a great national problem, is is there -- would we see a great divergence there if we look at the statistics across the whole country? >> there's not gerrymandering in every state, in fact, our brief points out the fact that most plans are symmetrical. gerrymandering isn't in every state. and so i don't think that metric is particularly informative on that front. >> thank you, counsel. two minutes, mr. clement.
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>> thank you, your honor. a few points in it two minutes. first i do think at a very fundamental level my friends on the other side are the sight of their own technology because they have produced 24,000 maps that are permissible maps that don't take partisanship into account at all, and their submission is that a legislature organized on partisanship lines cannot take partisanship into account to any material degree in picking among the 24,000 maps. and that's just an argument ultimately to reassign this authority away from state legislatures into somebody else who doesn't have a partisanship interest or partisanship organization. >> all right. that's just not true because what they have shown is if you don't use partisanship as the predominant factor, then you can produce a lot of maps that are not this one. that's what they have shown. >> right, but you can also pick
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162 that are this map and how is a partisan legislature supposed to choose from among those maps if they can't -- >> don't use the one criteria that intentionally and invidiously looks to exclude the other party. that's their basic point. that was the basic point of the judge below. >> that's right. so you're basically asking state legislatures not to legislatures. let me finish with this, a lot of hard constitutional issues come before this court because you're dealing with something that was unknown to the framing generation. but the framing generation understood partisan gerrymandering firsthand. james madison was the intended target of a partisan gerrymander by patrick henry. he complained about it bitterly. so did george washington. neither of them contemplated suit. hamilton actually suggested to jon jay that the federalists ought


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