redistricting plan that garnered overwhelming bipartisan support and swift pre clearance by the justice department that plan has governed the first four election cycles of the decade and delivered on its promise to provide african american voters with the ability to elect their candidates of choice in twelve districts that everybody agreed should be majority minority districts the basic choice for this court will be whether that plan duly enacted by the people of virginia will govern this last election of the decade or if instead there will be a court imposed plan formulated by a special master from out of state now the virginia attorney general for his part would impose the court ordered plan on the people  virginia on the theory that the house of delegates lacks appellate standing to appeal that argument is deeply flawed and has enormous consequences that go well beyond this case but would be a particularly problematic feature in the all too often context where there is an impasse between the legislative branch and the executive branch and there has to be a court ordered plan and the legislative branch in the executive branch are often adverse in that litigation over the  one branch of the legislature one house of the legislature the house of delegates that that's exactly the right party to bring this particular case but it's not it's not a law that belongs to the one branch it's not to be approved by the senate and signed by the governor and survive a veto by the governor here says she chooses so it's really a law that doesn't belong to the house at best it belongs to live to sleep here as a whole or to the government the people of virginia just to sort of where it doesn't belong to the house alone but it does in the parts that are challenge here affect the house and the house leaders tell me why use it doesn't change the composition of the house it doesn't change any of the legislative process sees of the house in terms of how you do things the number of people involved in doing them the necessary votes accent or it may change the membership  of individuals but it doesn't change the processes of the legislature so i beg to differ which is to say i think that when you have the legislative districts those are not just about elections those are the basic way in which the house chooses to organize itself and they affect day to day operations within the house of delegates if you watch the house of delegates proceeding the first thing you notice is that every member of the house of delegates is a den fide by where they come from it's the gentleman from north folk or the gentlewoman from the city of richmond there still will be a shout it's a lady from norfork and a gentleman from wherever the identity may change in the next election but at least as currently constituted those people will not change and yes they may changed later but there's no guarantee that the legislature ever has the person they want so when an election in the house well i don't think it is guaranteed that there will be a gentleman from norfolk because if you read district in a way that essentially splits north folk for ways there may be no gentle person from norfolk and i think from the current representative to another that's a frequent occurrence it happens in every every time there's a new sense different line to draw on different people  constituency i think that's true i mean i think there may well be an injury for article three purposes with every dissenting census i don't think and again i think the principle that we're arguing for is not going to open up the house to and correct me if i'm wrong one is that you're representing the commonwealth the other is that you're representing the house as an institution now as to the first virginius says that that was not the basis on which you intervened below and that this is something new that has come up is that correct kind of why i don't think that it is correct i think that it is true that when we intervened we intervene to separately represent the house of delegates in the speaker in his institutional capacity and the state did not object to that intervention motion so one thing i think it's clear to understand is i don't take the state  o be corrected if i'm wrong but i don't think take the state to be objecting to the house of delegates ability to have a separate counsel or to be represented by somebody other than the attorney general now as the it's so that was the basis for the intervention as the litigation went on it became clear that essentially the house of delegates and their counsel representing the interests not just of the house of delegates but of the commonwealth has a whole and that's based on one on the arguments that were made the arguments that were made were arguments that represented that went to the represent the interests of the commonwealth yes and the fact that most poignantly and sort of i think impressively in front of this court there was no separate briefing at all there was no separate really appearance other than a letter that said that they were happy to let us carry the water and i don't think it's an accident that in this court's first opinion when it used to shorthand to refer to the house of delegates and the speaker in its institutional capacity this court used to shorthand the state we were the only party here defending the constitutionality of the statute we were doing that with the acquiescence of the attorney general and i think it's important one of the point i'd just like to make very clear is that if you look at the authorizing statute that the attorney general is relying on there's no separate provision for appeal so as a matter of state statute it's not like the federal statutes where there are very specific provisions separately addressing it and the solicitor general's role well i would be very uncomfortable trying to decide whether as a matter of virginia law anybody other than the attorney general can never represent the commonwealth or whether the house under some circumstances can also represent the commonwealth that's a question of virginia l if that issue were is before us there would be an argument for certifying that question to the supreme court of virginia for a determination because i think it's a hard one for us to make the supreme court of virginia has allowed the house to intervene under some circumstances when we don't know exactly what the theory was that true i think are all to meet our alternative argument allows you to avoid having to decide that and i do think it is a straightforward way to decide the standing question and it is one that is strongly suggested by the beans case of this court before you go to the alternative argument on the on the representing the state and even supposing that you're right actually it seems that you're right that throughout some part of this litigation the attorney general's office was very happy to have the legislature do most of the work are you saying that that affects a kind of permanent delegation to the legislature to continue in that capacity even if and when the attorney general's office decides you know actually it something has changed there now comes a point where we want to resume the head representative role the answer is yes i extreme statement on your part if i make the assumption that the junior doesn't permit you to represent the state it's only an assumption for the sake of argument to now claim that they're saying you can carry the water now but i can't fire you and carry my own water when i want to that's a pretty bold statement that we're going to permit that kind of forfeiture basically argument or acquiescence argument well at where we're at we're taking away from the people of the genii of their right to say who's going to speak on their behalf you know i think what you're doing is you're recognizing as a matter of matter of federal law in a certain point if in the federal courts the executive branch has allowed the house of delegates and its counsel to represent the interests of the commonwealth as a whole there are consequences to that choice and they can't pull the rug out from that defense at the last minute when it becomes politically expedient now circle meant i'd like to move to the merits at this point if that's all right and wouldn't i'd like your reaction to it seems to me the elephant in the room here is the fact that we have a standard that depends heavily on credibility determinations in terms of predominance and we have a situation the first time around where you know jones was found credible the experts were found not credible and then there's a shift and all the sudden jones was incredible in the experts are credible when we have a standard of review that asked whether the findings were clearly erroneous what are we supposed to do with that i mean if this if the way the case had come up was exactly flip we'd be deferring to questions the credibility that go one way and now we're referring to them that go to the other way they both can't be right and yet our review sort of depends on whoever gets here last well i think that's right mr chief justice and i'd say a couple of things first of all i think in reviewing this case i don't think you have to ignore the fact that there were contrary findings in the first go around i also think that in a way you can sidestep the elephant in the room if you find a legal error in the way that the district court committed its or conducted its credibility findings and here i think you do have that with the double standard that they applied in terms of well if you testified for the second time on behalf of the plan you are not credible because you should have been here the first time but if you testified for the first time in the second trial against the plan then it's perfectly excusable and will use your testimony not only will we credit it but will use you your testimony to discredit the other side i don't think you can have that kind of double standard i also think that it would be helpful for this court to provide some guidance on this broader question because i don't think that you can really simultaneously say that you are going to give good faith to the legislature it's a presumption of good faith a presumption of constitutionality and then say that all of the witnesses from the legislative branch and all of the people who have direct knowledge as to how the map was drawn and particularly how the t d s were split to then determine that they are going to be incredible as a blanket matter i just don't think you can have them both i think you end up not giving enough deference and i'm not saying you could never find the government witness is incredible but i think the standard has to be something far more than you see on this record and i think would be very helpful if this court could clarify that as a legal matter clarification the i'm not not so worried about this case but i mean there are hundreds of thousands of trials if not millions and a certain percentage of them are reversed on appeal and they go back for a second trial and what happens if the fact finder in the second row is declared credible or all of them the witnesses and a different judge may be or may be the same in the first one said no opposite right now there appellate courts all over the world in this country who want to know what to do so what is it we're supposed to do that's capable of being generalized i think that was the concern that was a concern anyway that i have so and so was i would say two things and i think one thing to do which is you forget about the first trial you go through here and you look at it and say is the determination of credibility within the power of the judge who made it so i would say two things both of which are different from what you said justice prior to one is i do think in this kind of second trial context i mean that think there's room for sort of a state farm fox principle that if you coming out diametrically opposed you should at least virt to the fact that you're doing that and have to come up with some slightly better than the normal reason to at least explain the change but the second thing that i think would be more limited to these redistricting cases and i think it's very important is when you have a context where the court is going out of its way to say that it's particularly important to credit the good faith of the legislatures in gauged in a very difficult task i think you need a heightened standard before you dismiss their testimony across the board and what you have in this case i think is a perfect illustration of it i mean the person who was the principal author of the map everybody agrees was delegate jones the only person who knows the details of why particular v t v splits was mr morgan now if you say you're going to deem their testimony not just incredible in certain particulars but across the board then you're left with hamlet without the prince i mean  you're left with the guys i see i see where you're going i have one other question i want to get an answer from you because suppose you do get standing i suppose you're right about no you're wrong about the first half which is that suppose that  find they're ok in saying that race was used predominantly then we get to the question of well was there a good reason for that and the reason they say was compliance with section five and the court here says no it isn't that isn't a good reason because what you did is you took a few fifty five percent black voters standard and used for old twelve districts elaborated on that but that isn't a very good it can be a little bit more tailored than some districts yes maybe some districts know but the house made no effort whatsoever ages uses fifty five percent standard for all that what you say in response to that so i want to be very responsive to what i take to be sort of a strict scrutiny question i'd like to take thirty seconds if i could on your premise which we're already past predominance i would say that before you get predominance and when you ask whether the district court committed a legal air you have to take a hard look at h d ninety two applied the same legal analysis to all the districts that came out with that same result as to every district and i don't really think that's what this court had in mind last time and reminding this because these districts look very different and h g ninety two is an awfully hard district to say that race predominated because it went from a b vapid sixty two point one to sixty point seventy so the fifty five percent floor really had no effect on the district it went from three split voting districts to zero split voting districts and it became more compact and entirely within the city of hampton but if you think nonetheless that race predominated even as to h d ninety two and you get to strict scrutiny then i think the problem with the idea that there was a legal error here in using the target developed principally in h d seventy five in the other districts the reason that can't be illegal error is it asks too much of the state legislature in context like this where you're dealing with districts that are all in the same put basic part of the state maybe that's in northern virginia perspective on this problem but these are all districts that are closely related to each other in southeastern virginia but even more importantly they all have the same basic problem  legislatures confronting this district these districts which is everybody i think it freeze that these districts perform very differently in off year house of delegate alexion zz than in presidential elections so you can you know you can have the district  specific information about how many people voted for president obama in these districts but i think everybody really agrees that would you really need is to look at the off year elections because there's much less turnout and that's where you have a problem with more racially polarized voting now in those off year elections the single most important data point would be a contested primary because especially in districts that are going to be relatively democratic where you really figure out whether or not the african american voters get to vote for their candidate of choice a contested primary because that's when you have an african american candidate of choice going head to head with a white democrat and if the and that's why there aren't that many of those there's only two or three of those in all of these districts over the decade that precedes the and the one that everybody was focused on and seemed to basically agree was the best indicator of that was in h d seventy five it was a contested primary election in two thousand and five and in that election they said they'd turn determined that you needed a fifty five percent i'm not sure i understand your answer mr comment because if there's one thing that we've made clear again and again it's that the analysis ought to be district by district and for sure as you say there might be things that many districts or some districts share and you would you would be prudent to look at those things that they share and to say they share them but there are also things that the districts to not share and and i thought that what we have asked of legislatures is that when they do this they look at a particular district and they do something they explain themselves with respect to that particular district so if what they do is they say well this shares a feature of h d seventy five and that would push one way but on the other hand it may not share another feature seventy five i mean that's the kind of analysis i would think that we've called for rather than just saying we've done it for eighty seventy five and gosh they're all in the same part of the state that's enough well justice kagan i don't think it was quite that cursory and their words there was some other information from other districts but i think the critical thing is there was a consideration that all these districts share similar problems  not having it's not like there was this rich robust data set that they ignored because they all share the problems of the same dynamic and you don't have voter registration information by race in any of the districts so that's another challenge and so they looked at what they had and what they could go by and then they extract elated and it's not like the record is bereft of evidence that the same principles applied in different disciplines that when you saw mr clement that you say they didn't have voting records because ninety five is next to ninety two and what the district court to there was to look at both individually and then there are their impact on each you said we should look at ninety two that stayed more concentrated but the district court said you can't look at that you can look at that but you have to look at it in combination of the purpose is served and the purpose ninety two sear was to impact directly ninety five because they took the blacks from ninety two to make more blacks and ninety five and they did it in a way that they drew lines in the middle of the street with black houses on one side and white houses on another side it's hard for me to imagine how race isn't predominant when they're getting down to the nitty gritty on the basis of what side of the street you live on i don't know what compact means when you use a line split of that nature i don't know how you can look at that and nothing race predominated so i think that if even if you have a concern with the way voting districts were split at the top of ninety five far removed from the border with ninety two that doesn't give you a basis for invalidating h d ninety two and just to finish my answer to justice kagan's question i think if you look at joint appendix page four fifty one you will see delegate dance the delegate from district sixty three and she's testifying on the house floor contemporaneously that the fifty five percent number are the right numbers for the richmond districts so it's not like they didn't have testimony at the time rattner mr chief justice and may it please the court i have two points on standing and two on the merits and standing the house as an institution isn't harmed by changes to individual district lines and while states can authorize legislatures to represent them in court for junior house and so on that first point injury in fact must be concrete but it doesn't have to be big that's something causes me the loss of five dollars or causes me to expend an hour that i would rather do it and use for some other purpose that's injuring in fact is it is it conceivable that this does not have even that kind of an administrative impact on the house of delegates i think so your honor because what we're talking about here is potentially in effect for current incumbents in their capacity as candidates for for reelection prospects and so we're not talking about the current house having any injury the house i would think is agnostic as to which individuals are so let me it's hard for me to believe that doesn't cost them one dog i mean maybe they have they published a map showing the current districts and they'd have to publish a different map and maybe they have to print new stationery maybe they have to print new labels for offices or for the desks of the delegates and injury in fact as i said does not require a lot of injury has to be concrete but it doesn't have to be big at a minimum though justice alito it requires evidence of that injury and all that we have from the house here is a statement of what this court described in whitman against person the person as a non obvious sort of injury that's not sufficient to support standing in less there's evidence or affidavit saying just those times when were they supposed to do that at what point was this was their standing challenge so that they would have  come forward with evidence you know it's a little bit unusual given that this standing issue first arises with respect to this appeal they could have introduced evidence when they intervened and i would think at the latest the standing issue was challenge with respect to seeking a stay and believe in july and so there could have been some evidence introduced at that point that you're right that the legislature has no interest in who is going to represent each district but i don't understand mr clement to be making another argument which is the legislature does have an interest in represents representation on process is working correctly and that what something like this stuff is it confuses the representation of process to centrally blurred lines of accountability because nobody knows who it is that they're supposed to be representing are they supposed to be representing their old constituents or are they supposed to be representing their new constituents so they're divided loyalties those blurred lines of accountability and all of that is actually integrity integral to the way a representative institution is supposed to work and  such an institution want to want to take an interest in those kinds of things so let me give you two responses just the first is that i don't think it's true that there are current account of the in fact under the virginia constitution article two section six it's clear that legislators represent their current district so there's no sense in which there's actually a divided constituency in less we're talking about a current legislator who represents one district and sort of has her mind on a future district in which all campaign i think the second point is that to the extent we're talking about just there may be generally a last responsiveness or concern about this as a procedural matter i do think that we're pushing more toward that type of generalized grievance it's not clear to me why the house as a body would have a particular interest in that beyond what voters and people in the state of virginia do i think another way to illustrate why this isn't really a house specific injury is by thinking of this not maybe not quite as a zero sum game but certainly sound current members are going to be benefited by line changes others are going to be harmed and it seems a little bit strange to say that the house has a dog in that fight how do you distinguish beings which seem to deal with a lot of these same issues well being is that it's hard to know exactly what to read into it because that decision just talks about standing as a quick point to intervention and we know that that's not appropriate but even putting that to the side we do think that type of injury that could have been addressed there is different in kind not degree and that's because why do you say in the current just because reduction in the size because i think when you change the size of an institution particularly when you've slashed it in half from sixty seven senators to thirty five senators there are going to be more of these intuitive types of harms of the sort that justice alito mentioned before there maybe changes to committee structures to rules for voting rules for a quorum and at least we can imagine some institutional specific harms there whereas here what we're really talking about are changes in the one hundred members who may sit in the houses seats and that's just not a harm that the institution itself suffers it's agnostic as to that question well what about the proposition that it does change the nature of the energy if you are moving away from compactness into to us was for example i guess the examples you may not have representatives who really are this is richmond that's what i represent but going to part of richmond going to part of somebody else and that changes the nature of the dynamic in the in the house mr chief justice i would give the same response that i gave to justice alito before which is to the extent that that's really what we're talking about there have to be some sort of evidentiary showing for those types of standing out again there's never been an affidavit put in there is any evidence it doesn't seem intuitive at all that the new plan is necessarily going to be less compact and there is necessarily going to be some sort of real world change in the day to day operation of the bodies and one could speculate they're trying to get back to the justice alito spoke about the cost of changing which seems to me that under any law that could be attacked a representative body could claim a financial harm election laws are passed by congress all the time and we wouldn't say that both houses in the vigil e could come in and challenge those election laws i don't think we would anyway i we were and yet those election laws could require publication of different things and all sorts of things that would change that's not a harm we would recognize so even if a particular legislate well the particular legislature  might have standing if he or she says i campaigned differently with this district as opposed to that district but i still don't see why that would give the house i don't want to answer and then move to the merits ok a couple things with respect to the first part of your question yes we that's why the united states is taking a position on standing here we worry that some of these theories and speculation could have far reaching unintended consequences and that's why at a minimum we would hope that the court would adopt a very cabined version of beans if it wants to find standing here as to your second point the court has left open the question in whitman against person whether an individual legislator could have standing here turning to the merits we think that the district court committed legal error here it applied across the board significance to a racial target that really had varying effects on these districts and we think that it didn't sufficiently discuss nonracial motives you know i think is being said in a very generalized wherry but i see the theory and carefully reasoned opinion every single district the judge addressed and it was an overall statement about this is this fifty five is the only thing i'm relying on he went through every single individual district and pointed to problems with that district i understand and with facts that they shouldn't say he it was a panel that they found convincing  not ask clear or so just a summary or we think there is a legal error here or not we haven't gone on to discuss the clear air question and i think that's most clear is seen pages eighty three to eighty four of the jurisdictional statement appendix is where the court says these are all inextricably intertwined they all apply a fifty five percent threshold and if you compare that to footnote twenty page thirty four that's where the court relegates the house's expert on traditional district and criteria and we think that that is that imbalance really was borne out with some of these districts like district ninety two which the house is already mentioned district sixty nine is another example i would put the point the court toward where there discussion i grant you there's just a question in the district court's decision of here are a few different precincts we could imagine racial motives for these but the opinion does not talk about that clear nonracial motives in that district moving the district up to align with the james river making it more compact making it more richmond centric and that's not the predominant analysis that this court has called for a dispute within the virginia state government about whether virginia should appeal that decision to this court but virginia law has been clear since before the civil war that the state's attorney general has the exclusive authority to make that sort of litigation decision we'll hear that in the beginning the state's attorney general was happy to have the house take over the litigation i would the state's attorney general did not oppose intervention i agree mr chief justice but i think that disposing of that is the trial brief that was filed by the state's attorney general this is that j a thirty eight sixty one where the attorney general made very clear that the house excuse me that the attorney general on behalf of the six named defendants and on behalf of the commonwealth was allowing the defendant intervenors to take the lead in the litigation but he did not say and has never said in this nine volume joint appendix you will find no statement by the house that they are purporting to represent the commonwealth of virginia much less the six named defendants and you will find no acquiescence with the attorney general that anyone other than the attorney general represents the commonwealth and the sixteen defense i have to why you might be right and there is this statute that you point out and say that it is the responsibility of the attorney general to represent the commonwealth in civil litigation but i don't know whether it's perfectly clear and the house has been permitted by the virginia supreme court to intervene we don't known on exactly what theory so if the issue whether the house is authorize under some circumstances and these circumstances to represent the commonwealth is if that's open i don't know why we shouldn't certify that to the virginia supreme court justice alito i understand that concern and i don't think the court has to get into it i think part two of this court's opinion and cartridge just resolves that because if you look at the house intervention motion if you look at their statements before the district court they never once purported to intervene to represent the state's interest so far as i can tell the very the first time in this entire litigation that this house that excuse me that the house ever suggested that they could represent the state's interest was after we challenge their standing to appeal and karcher in part two of its opinion says as clear as possibly can you're not allowed to shift grounds when someone challenges your standing to appeal and so i think the court does not need to get into that justice alito let me go to the that divided constituency is there was a question about that i have two quick responses on that i don't think that can be a viable theory of standing for two separate reasons reason number one if that were true then this court's decision in whitman was unanimously wrong because all three of the congress members in whitman could have said as a result of this remedial map i'm going to represent a new constituency and the court did not say they had standing on that through the court never even entertained the idea they ha standing on that very reason number two if you would drop that theory of standing it will have serious federalism implications because you will be taking away the states ability to decide for themselves do you  the way you want to know standing you have a democratic house a democratic governor and they don't like the plan they don't like the court decision will appeal it or republican same party same thing but you get a democratic house and a republican governor a republican house a democratic governor and it's could be the worst plan in the world could be the best plan in the world record could be wrong or the court could be right but one thing for sure nobody's going to be able to attack it's the house's plan if you say they can't attack what the court did then who can the governor won't because he likes politically so who will justice prior to my fundamental submission is that this is a who decides question this is a classic question who makes the decision on behalf of the state and virginia has made one choice now we're not suggesting that am i right in saying where the government is divided between the parties then in circumstances like this nobody will challenge it i doubt nobody can because we will have held nobody can but where the elections turn out that it's the same gov party in the house party it's all different now it is possible to challenge it now if there is no are you i would like you to say there is no way to challenge it or where there is the difference or if there is tell me what way short three thoughts i think on that justice bar first and foremost i think positing that elected officials who are empowered to exercise government power will make decisions that way is inconsistent with the presumption of good faith that this court for  government this court has repeated this court is real i just think this court should be very hesitant to adopt a theory of article three standing that turns on whether the challenger can allege that the decision was made for political reasons i think that's one for one well maybe you don't need an gerrymander because it was too favorable to democrats or vice versa but mr chief justice i think there could be a lot of finger pointing on every side in this case i mean we're not alleging anything i'm just saying nor the party's i'm just saying is there a way to challenge standing should what i say be truthful in fact whether it's an allegation not an allegation or not is there any way to maintain and somebody's challenge i don't think the court needs to decide in this case but i'd like to decide so show me who you think who you think john if it isn't one of the points here is that it's a matter of state law really there are many states that have responded to this exact circumstance by allowing the legislature to proceed north carolina and other states like virginia that have not and in some sense this the question of whether somebody should be able to get to court in this part individual legislate to or or candidate would have standing the reason you don't need to decide that is because no individual legislator or nor candidate ever tried to intervene in this case this court left that question open in whitman as the federal government points out in its brief that question is still open here so you don't need to decide this case you do not need to definitively decide that no one would have standing because this court has no occasion here to decide whether an individual lives suppose there were there was an affidavit by some administrative officer of the house that said this is going to cost us twenty six dollars in administrative expenses with the house have standing no why not that sort of injury in fact it is and it is an economic injury but this court has been clear that what you need is a judicial the sovereign whose law was declared unconstitutional and that sovereign is the commonwealth of virginia not one of the constituent parts of the state government that's our fundamental submission is that this is a matter of state law virginia house and your time then you're really not talking about injuring in fact you're talking about some other limitation and i can understand it is coming from someplace else but it doesn't have to do with the injury of fact will justice alito i've understood the judicially cognize of the injury to be part of the injury in fact it along with the united states versus scrap which was decided one year after being is the outermost limit of standing that this court has ever recognized and then it's reasoning the reasoning of being itself which is limited i admit has been squarely repudiated by this court subsequent decisions i'd say that thing one thing number two is to say that beans is fundamentally different because altering the size of the body affects the structure and nature of the body in a way that redrawing the lines doesn't let me give you a concrete example under the virginia house of delegates current rules all committees have twenty two members and only one in a person can only be the chair of one committee if you slash the body in half you would almost certainly have to revise both of those rules because otherwise you'd be in a situation where nearly fifty percent of the body was a member of every single committee but i would have thought that the response would be that the members of the house have or set up in that case have no more interest in that than they would in this that the people get to decide how big their house is and what lines are drawn  discourse that i think beings is at past the outermost limit of this court standing jurisprudence and our fundamental submission is you should not extend it from the very specific situation presented there to the much more common situation presented here mr lies mr chief justice and may please the court it is not in dispute in this case that the commonwealth of virginia adopted a one size fits all fifty five percent racial rule that had a direct and significant input impact on the drawing of district lines in each of the top of the eleven challenged districts voters were placed within and without of the district based on those lines what the error that they just looked at the court was wrong in reviewing it to simply look at that same statistical figure well i don't think you can fairly read the district court's lengthy decision and say that it didn't look on a district by district basis obviously to use a phrase that mr chief justice you the elephant in the room in this case has been the fifty five percent rule so it would be odd for the for the opinion not to address that rule at the outset but it did in fact do a district by district analysis i actually had a different elephant in mind with the fact that the prior judicial panel found you know a b and c credible and d e and f incredible and then the different panel found the exact opposite for the exact witnesses and that i understand is a basic element if you're looking at a case the clearly erroneous standard applies but it seems an awkward position for us to be in and saying well these directly one hundred eighty degree findings are clearly or are not clearly erroneous when we would have found the exact same thing the other way if that panel had been before us so i'd offer two answers to that mr chief justice the first is a factual matter in this case after bethune hill was when this court remanded the case back to the district court the question that the district court faced was what to do next it was at the insistence the record be reopened and that further testimony be heard and in fact if you look at e c f one forty six note for the reason they gave why the record needed to be wrote reopened was so that the new judge who had been assigned to the three judge panel could hear witnesses and make credibility determinations so it is an odd circumstance indeed for my friend to now these suggesting that having had having urged and successfully over objection i might add reopen so that the new member of the panel could hear a credibility a determination to now be complaining about right now but i understand but whether or not that's significant depends on how much weight you give to the new evidence but i mean the reality is that everything jones said was the truth the first time and now everything he says and the second time is not and it just seems to me that that you know life strikes me as a little awkward to apply the very differential clearly erroneous standard when you've got this other other findings that are the exact opposite so that brings me to the second point which is this court in cooper faced and more extreme version of that as you recall where or you had the state court had found one set of factual determination with respect to why the north carolina map had been drawn a certain way and you had the federal court using essentially the same in the same basic set of facts way the evidence the other and this court  had to decide what to do in that instance and applied what was the appropriate rule there in the appropriate rule here which is that the case before it is the is the case for which the crew deferential clear error or review is appropriate these three judges had the benefit not just of the evidence in the second trial but the evidence in the first trial so who was in a better position to to a judge whether jones was credible aid three judges who saw him  once or three judges who could compare his first testimony to second as well as the testimony of additional witnesses obviously the second panel had more information regarding delegate jones and the experts and the other witnesses everyone agrees here that there needed to be twelve majority minority districts right we agreed that there were twelve majority minority districts under the benchmark plan and under section five so i'll take that as  yes well they had to do a functional analysis your honor and what that meant is that they needed to prove that there was not retrogression whether retrogression would leave them at fifty point one or forty one point nine is part of the inquiry that would have been you have to have a majority minority district and i thought it was also widely agreed that a bare majority would not be good enough for any of these districts and then you consult and you consult with the black caucus and you consult with others and everyone agrees it has to be more than a bare majority i'm wondering why fifty five is such so problematic here given that the states have to have some flexibility and i'm pinpointing fifty three point five versus fifty four point two persons fifty five when they've done the kind of outreach and consulting everyone approves the attorney general proposed u s attorney general it's like your response to all of that short just having our i'd offer three responses the first is that i don't think it's i don't think the trial record is fairly read and the district court certainly did not find that  delegate jones consulted the entire black caucus his original testimony was he consulted everyone that it was consulted some that it is a correct that the black caucus was supportive of the plan i think that members of the black caucus testified in the second trial that they were told that the and this is their words the gospel according to jones was that every district had to be fifty five percent and they used it for a very compliance and they assumed that was correct but if you look at the testimony of the african american members in the second trial they will say that they did not believe that in fact they are in order for to have an ability to elect district it needed to be that high the second answer i give you is i think it would be very instructive for this court to look at two things the first is the senate plan which hasn't gotten a lot of play in the briefing but the senate plan was being adopted at the same time and the senate plan involved a number of african american districts as well five and all five of those which cover the same geographic regions were under fifty five percent diva so the idea that that delegate jones had no information available to him that suggests it could be below fifty five percent is contradicted by the fact that the senate plan which was in the same bill and involved the same geographic regions all were under fifty five percent the second thing that i think would be useful for the court to look at both on the question of predominance and on the question of strokes of strict scrutiny is h d seventy five so h d seventy five is the one of the twelve districts where they find predominance but strict scrutiny is is is met so let's look at the facts of h d seventy five h d seventy five was above fifty five percent before and after the two thousand and eleven redistricting so  it wasn't materially increased or decreased in fact the be vapid only change from fifty three fifty five point three to fifty five point four so many of the arguments my friend makes about how this district or that district didn't change very much well it didn't change very much in h d seventy five either and the court from predominance it retained seventy eight point eight percent of its core another argument that my friend makes about well look but it was cor seventy five was court tension and the court found predominance on its face the district appears relatively compact the trial court found but yet it found predominance and finally delegate jones offered a political explanation for why he did  draw again something that is offered here the facts of h d seventy five are not very different in terms of finding a predominance than the districts that  if a state faced with these facts said we're going to do fifty two percent to fifty three percent they would be hammered from the other side saying you're discriminating against african american voters because you're not giving the voters a sufficient opportunity to elect the candidate of their choice and so they they do more here by going with fifty five and i guess again on the seat flexibility point i'm just wondering how a state can try to comply with the demands of the voting rights act on the one hand and as you started with the demands of the equal protection clause on the other in this narrow band if he wanted fifty five so just as cavanagh let me let me  let me articulate it this way if the state creates a fifty five percent blanket rule because of how african americans in a rural area vote on the border of north carolina and then generalize that to urban centers throughout the commonwealth then it has engaged in racial stereotyping that triggers now in eighty seventy five they were able to meet that burden but it is simply not this court in alabama was clear its court in cooper was clear in this court in bethune hill one work here was clear if the state in gauges and that kind of of one size fits all mechanical floor or but mechanical trigger then strict scrutiny applies now could i make sure i understand what you're saying mr lies because what i've done when i've understood is that the flexibility that justice kavanagh is talking about is critical in alabama talked about this and cooper talked about this but it's crude critical at the it's not you it's it's critical at the point where you ask whether it's the voting rights act has provided a sufficient justification for this state to get over strict scrutiny and there you know we don't expect the state to actually have the exact number but it's not relevant to the point of whether race has predominated in the first place is that no your honor i've been assuming predominance so i'm sorry that i dissenters that someone should certainly look the truth is that all the state of virginia had to do was come in with a good reason and in this case they came in with no reason and it's really that it's really honestly doubt that the reasons complying with the voting rights act to a mechanical test to to meekly pre clearance misunderstood what was required under section five it was not consistent what do you are jake actis was not consistent with the o j guidelines were the state of virginia could not have believed if it had looked at section five guidance that it needed this fifty five percent rule statewide to comply and in fact the senate plan which was in the same bill will have a pretty clear to go j d o j preclear to put  was not charged with looking at whether it was a racial gerrymander known they were soley charged with looking at whether or not it it retrogressed the alabama plan had been pre cleared that was struck down by this court mr eyes if i can go back to the predominan of mr comments arguments i think is something like well if you have this fifty five percent non negotiable target you know that that might be evidence for on districts but it doesn't get you over the bar for on districts because there might be some districts there way over fifty five percent so that you can move people in and move people out and never really think about the fifty five percent target in anything that you're doing and that what the court got wrong here was not recognizing that fact so why isn't that right well for two reasons first of all i think the court addressed district by district that there were in fact black voters moved based on race on a district by district basis and that's part of the reason why justice kagan i pointed you to the facts of h d seventy five where predominance was found and b that went from fifty five point three to fifty five point four the quote the test is not whether bebop stayed the same the question is when you had to add population as a whole did you choose voters based on race and if you look at joint appendix twenty seven eighty two to eighty five you can see the be vapid moved in and the b that moved out each of these districts and the numbers frankly are fairly startling h d seventy one ninety six hundred seventy four black voters were moved in two thousand black voters were moved out and eighty eighty nine eight thousand black voters approved then thirty nine hundred black voters had moved out with this is in a context where you are required to consider race to comply with section five of the voting rights act correct and had your honor had the state of the commonwealth of virginia done even a modicum of district by district analysis this would be a very different case if it had done the same analysis that's the state senate did it would be we wouldn't be here if it had done the same thing that it that was done with respect to delegate tyler's district d seventy five we might have been here and i would have lost as i did as we did the last time when i challenged when we challenged the eighty's h d seventy five but in these districts it is virtually uncontested and it is certainly not clear error that way that in the words of the of the district court the legislature engaged in no analysis of any kind and that's j s app eighty eight no analysis thank you thank you counsel mr clemente you have three minutes remaining thank chief justice just a couple quick points on standing and on the merits first on standing i don't think you can underestimate the impact of this case and the decision below and the remedial order that follows on the house and the way it operates day to day the remedial order reconfigured twenty five of the one hundred seats that's fully twenty five percent of the house's seats that's much more than a peppercorn i don't think the solution is to get twenty five individual members here and i think it's a mistake to think of the districts that has standing we invite complete discord in the state over who represents the interests of that long i don't think there's any discourse so as my  house body can come in so can they are attorney general presumably and possibly some individual members i mean this is radical news that i don't think it is anything this case has anything to do with whether the members are going to come here i don't think having twenty five members with standing is better than having the house especially when these basic lines that determine how they're going to be organized are critical i also don't see how you could not recognize standing here without overruling your i don't think that decisions come with expiration dates the fact that you haven't cited it in the last thirty years doesn't mean that you wouldn't have to overrule it and i don't think you should and i think the important thing is that even if there's a difference in degree it's justice alit suggested even a five dollar injuries injury in fact there's much more than that and it goes to the heart of how this house organizes itself just on the merits two quick points first of all i don't think i think would be a huge mistake on predominance to just say this is clear air and be done with it the difference between the districts here in the districts in alabama are completely stark you look at a district in alabama and they moved out sixteen thousand people in only thirty or in sixteen thousand people only thirty six of whom were white here with h d sixty nine there's a one percent difference in the racial makeup of the people who went in and out of the district forty four versus forty three percent you cannot say that race predominated here faithfully with this court's precedents about what predominance means and then if you get to strict scrutiny just as kavanagh you asked about whether the african american caucus supported this law all but two members of the african american caucus supported this law one of the two members who didn't was the district an h d seventy five she didn't support the law because she thought that the be vapid fifty five percent was too low and that just shows you the dilemma that people face and this is not a case like alabama where the state picked a cartoonish figure and said in order to avoid retrogression they have to stay at seventy five percent this is a case where they picked fifty five percent which frankly is exactly the right number to avoid retrogression in contested primaries thank you no thank you