can violate the constitution the principle question presented in this case is whether this court has the article three authority to do anything about it we submit that it does under the first amendment according to this court's first amendment retaliation and ballot access cases government officials may not single out particular individuals for disfavored treatment on the basis of the views that they have expressed at the ballot box in prior election  relief in time for the twenty eight thousand election congress has enacted to statute that deals with these sorts of circumstances that this court addressed and bush again i'm sorry not push against farrah but the statute is to u similar anything in the record indicates that experts will tell you oh this is cool this is possible that it's possible to enact a new it's possible to comply with the injunction in time for the two thousand and eighteen electors there's nothing in the record about that you honor but that also isn't an issue that the district court has been and not given an opportunity to address yet well but you're asking us to them just to just assume well as a matter of fact john i think what we're asking for is just to remain for reconsideration of the preliminary injunction motion in light of what we take to be the proper legal standards and so if you want the principles involved injunction this is the way to do awfully long time to bring this from the change in two thousand and eleven and was it should that factor into our consideration of whether to uphold or not uphold your requests so i think there are two things to say about that you are not the first is we don't think that that is an issue that's really properly before this court unless this court concluded that it would be an abuse of discretion not to deny the preliminary injunction on that basis that is a function of the abuse of discretion standard of review and the fact that the lower court hasn't had an opportunity yet delay elections have been held under this district in two thousand and twelve two thousand and fourteen and two thousand and sixteen right well i think it is true that those elections have been held i would not say that it's attributable to our delay in bringing the  twenty eighteen you're not going to be irreparably harmed in a broader sense obviously you are you would be in this particular election but if you've been willing to accept that harm in three different cycles i don't know if we should get concerned about irreparable harm for one more well i guess i have a few things to say about that the first is this lawsuit was initially filed in two thousand and thirteen true after one election had taken place but district courts have entered injunctions against the enforcement of congressional district in maps after elections have taken place many times in the past so well if you look at twenty five you i did not file the suit presenting this particular theory of the case until twenty six now our position is that this theory of the case has been in the case from the beginning this was a premise of this court's reversal and remained of the fourth circuit back in two thousand and fifteen and shapiro against mcmanus that this claim was in the case that it was a claim that had not yet been foreclosed by any majority opinion of this court and therefore that it was a basis for convening a three judge district court it's true that it did not claim a majority of the attention of the original complaint but there is this court could not have reached the decision that it reached in shapiro against mcmanus if this claim had not been in the case from the get go because i still don't understand what you want to have take place for in practice practical terms you want this case remanded to the district court and you think that after the cases we remain on the case of the district court there will be time to adopt a new map but to be used in the twenty thousand election your honor i the short answer to that question is that that is an issue for the district court to decide it is as i say not something that we have conceded and i think it's conceivable that the case could get back down to the district court in time for some form of relief certainly the district court could conclude that there isn't enough time and allow  an election to take place under the map as it's drawn it it might look for some sort of interim solution under to us see to see what would that would be this kind of an order by this court  politics from the pendency of this suit all along i don't deny that your honor but i don't think this court has to actually take a position on the timing question one way or another what we're asking this court to do is evaluate the legal principles that the context you do not have to consider the merits if you think the equities and they were a propos harm questions cut against the grant of a preliminary injunction well that's true but again that would be a question i think for the district court in the first instance the question whether or not you're asking us to decide the merits and determine from that whether there's been an abuse of discretion i understand that right and what i'm suggesting most i guess the strongest case is the winter case from a few years ago where we said if the equities and the harm question cuts strongly in one direction we don't have to consider the merits at all without determining that there has or hasn't been an abuse of discretion well i don't recall what it is exactly the district court in the winter case with which i'm familiar before this court i don't recall what the district court in that case had done if if the district court had reached each of the individual issues surely the court can pick out among the issues that the district court resolved which  wants to base its decision on and i think that's exactly i think that's exactly right that the court can pick out of the different criteria which one it wants to base its decision on and i think it's part of your challenge today to explain to us why we should pick out the hardest one well and the short answer is because that's the one on which the district court based its decision if this court were instead to pick out a different factor from the preliminary injunction test and decide that it wants to affirm on that basis it would basically be taking the read we leave it the way it is what happens well i think what the concern that we have is if if the case is so imagine the district court does not enter summary judgment in the case proceeds to trial will proceed to trial on what we take to be a fundamentally misguided view of what we have to prove to establish a first amendment violent violation against partisan gerrymandering what the district court indicated at the plumber an injunction hearing is that it would be open to reopening discovery allowing us basically to conduct a massive district wide survey of voters to determine whether or not they would have voted one way or another all because the district court believed that the primary question on burden is whether all of the electoral outcomes in the district under the map are attributable is let me ask you about your legal theory then because i probably don't understand it but if i understand it i really don't see how any legislature will ever be able to redistrict so let's say that a legislature is drawing a particular map or particular district let's say it's a map and they say that and they have two possible plans that they're considering and they both have very low population deviations exactly the same the districts in both are compact the territory is contiguous but they say look i gives our party a more than de minimus advantage and plan b gives the other party more than the minimum advantage so let's pick the one that favors our party now in your view that's unconstitutional i gather well if if what the map drawers are doing is looking at the way that individuals have voted in the past and on that basis attempting to make it more difficult for them to achieve electoral success moving forward that is t specific intent and there is a burden imposed as a consequence you know it may well be the answer to my question is yes it may well be that that would be a violation of this court said time and again you can't take all consideration of parti it's different the first is there are a range of considerations that map drawers will take into account that bear on the question of partisan advantage i know you have your new compressed section of incumbents and preserving a district that has a concept into consequences that in two circumstances that wouldn't be the case of the first is we also take the position that strict scrutiny applies and so it certainly is the case that map drawers could consider this sort of if it's narrowly tailored to a polling governmental interest which might include for example pursuing a balanced map or pursuing competitive districts what would happen if you have the orange party in the green party the green party is in the minority or in the forty to have a congressionally balanced decoration the delegation changed changed the district in order to accommodate the new majority i think if we were to me that that would be used differently to retaliate against certain a certain voter who voted for the warrant for the orange party who used to be in the majority is now in the minority he's got a complaint under your view well unless as your honor suggested it's in pursuit of balanced map drawing i think in that circumstance we've taken a position throughout this litigation that is your theory that that would be a compelling interest that could defeat strict scrutiny in other words the way i understand your theory is that you would put the state in that position to the test of saying this is a compelling interest this is the only way we can achieve that interest and and sort of put it through the strict scrutiny hoops even when the state you know wants to achieve balanced districts or once to undo a former gerrymander so you would still put the state through a very strict scrutiny test in that case well i think the answer is yes your honor but i think in this circumstance strict scrutiny could do real work just as this court in the racial gerrymandering context has generally tolerated the idea of the consideration of race is a compelling it is a necessary  that the idea of saying this one way of achieving a particular result was the only possible way i don't i don't think under the strict scrutiny approach i don't think it's it's necessarily that that particular district as it's strong is what would have to be necessary i think for example in arizona the independent redistricting commission there is told to pursue competitive districts in order to pursue competitive districts it's it's likely i think that considering this kind of data is necessary so let it go but i mean your theory is that the legislature acts with a vengeful intent to punish people for the exercise of their first amendment rights right the way we put it it's disapproval of their past voting history yes and they're going to say that in some circumstances that's going to be ok even though it will apply strict scrutiny it's going to be ok for them to burden their first amendment rights well i think we would take the position just as in any other first amendment context that yes  the first is our focus on the immediately prior dissed the form of the immediately prior district was a reflection of what this court said in carter against about districts historically having a core around which changes are made that accurately describes the six congressional district which historically has comprised the northwest maryland and around which changes have been made but that historical court has been preserved i think probably analytically the more consistent way to think about it is the first precondition under the jingles framework for approaching racial vote dilution which is the question whether the targeted minority is capable of forming is sufficiently numerous and geographically compact to form a majority of a reasonably drawn district we knew in this case that that was true because of course between one thousand nine hundred and two thousand and ten republican voters had formed the majority of a reasonably drawn district that's why in this case we had focused on the way that had been drawn before but in a circumstance where the court is looking at whether there has been a maintenance of a prior gerrymander we think probably the more consistent way to look at it doc trying to leon analytically is is i just described under the first prong of the of the jingles pre conditions now i ask you this this is your it's the is yours the only test you're proposing in other political gerrymandering cases do you see other under a number of those other tests and we were concerned because the focus here really was on the sixth district and not the map as a whole that it just wasn't an apt way of thinking about what happened in maryland the second reason that we focused on it is because we were concerned about the notion that under these other tests that the injury that was inflicted upon republican voters in maryland six congressional district could be viewed as being offset by by effect it's true that moving republicans out of the six and into the eighth and democrats out of the eighth and into the sixth did in sort of a technical sense dilute democratic strength in the eighth district the d p i there went from seventy two to sixty both are extremely safe democratic seats as a practical matter it made no difference to the outcome of the election in the eighth district it was presumably it wouldn't satisfy the first part of your test that this would have been done the vengeful intent to get those democrats and that's exactly right that's the other way to look at it is it would just be an accepted political consequence and not the specific i know we have many briefs we have three cases one two were you know with wisconsin there's maryland and the one we're holding i think is north carolina and there are you've read those briefs probably yes and they all have slight variations on different themes and i think you're right when you when you if the same thing maybe but variations and obviously the problem is what you started with it seems like a pretty clear violation of the constitution in some form to have deliberate extreme gerrymandering the court said things like that but is there a practical remedy that won't get judges involved in every state or dozens and dozens and dozens of very important political decisions or what would you think of taking the three cases and setting them to reargue you meant on the question of standard and then we'd have all three variations in front of us and we would i but enable people who have an interest in this subject generally to file briefs and we'd see them all together and they could attack each other's standards or they could support each other standards or they could attack any standard but there we have right in front of us the possibilities as to as as thought through by lawyers and others who have an interest in this subject you are i'd obviously this court has before it those three cases i do think it makes sense to think about them all together because i think the consequences of not adopting one of the other theory is is alarming and ought to be alarming to anybody i the reason i raise it because i want to think if there is some harm in doing that that i haven't thought of is there some reason would it be harmful to somebody because i do see an advantage you could have a blackboard and  everyone's theory on it and then you'd have the pros and cons and then you'd be able to look at the mall and then you'd be able to see perhaps different ones for different variations and you know that's that maybe there are different parts of journeyman ring that rise in difference or you see the but you can't think of a reason not to do it well but i mean the immediate reason i suppose would be the intervening twenty eighteen elections but it's if the court is disinclined to think that there is time for remedy in any event then perhaps there won't be that certainly isn't an issue that we're willing to can eliminate that that claim under the intent prong i think you could also eliminated under the burden probably i'll give you a hypothetical that gets to justice ginsburg's question suppose you had a district and there was a reapportionment and we realized we have to add fifteen thousand votes voters to this district and they still looked at the numbers and they said you know what if this is a solid republican district but if we add fifteen thousand voters from a democratic area story it sounds like what's going to take in fifteen thousand of the bluest blue voters and where parking them in this district in order to convert the district from a safe republican district to a competitive district how do you analyze that i think and  just to be clear that i have it straight if the point is that lawmakers in we wanted on the democratic in annapolis exactly they say we we disapprove of these voters electing a republican in this district we're going to move these democrats in to prevent  doing it again in the future yes i think that that could be again depending on the strict scrutiny question and depending also on the burden question that could indeed be a violation of our theory counsel one question i have about causation for you before the district court it appeared that you conceded that you had to prove but for causation that blood for the alleged gerrymandered of the outcome would have been different in these last three elections and the district co expressly rejected a lower standard rejecting some metaphysical could be burden in favor of the plug for cause test in this court you seem to now be backing away from the but for cause requirements best i can tell i n favor of something with this court might have described differently and i wonder how could it be an abuse of discretion for the district court to proceed on the basis of a concession before it you're now backing away from to be clear we we believe that but for causation is an element of the claim we just don't think it's ours to prove we think under mt healthy burden shift i understand that but before the district court you took the position you had to prove it according to the district court's opinion i  our burden is to show right now that so that that is a line taken out of a brief that's really twisted to mean one hundred eighty degrees and so the district court twisted your misunderstanding your honor it misunderstood what we were saying we said we said very clearly in the context in which that sentence is taken that we did not have to prove that every election forevermore would be no what it said was he didn't say that so i think you're twisting perhaps what the district courts with the discord quoted he was saying as our burden is to show the purposeful dilution was a buck for cause of the losses in two thousand and twelve fourteen and sixteen and your honor that was a description of the factual arguments that we had made in that case about how it mean something other than what it meant but i think it's wrong to say that that is that that is the basis on which the district court based its decision it's based its decision on the view that in order to prove an actual burden in any partis gerrymandering case the plaintiffs have to come forward and show that electoral outcomes have been changed in the past and will continue to be changed until the map is altered and that is not what this court that is not a position that we took in the district when more along these lines for use in factual findings eleven and well the district court found that the plaintiffs had conducted no statistical sampling to show alternative cause might not have been responsible namely t people just prefer the candidate right and had nothing to do with gerrymandering how do we how do we address that factual finding and call it abuse of discretion the decision here when plaintiffs failed to rule out other potential causal factors for the result well there are two things to say about that the first the i think the easiest way to address it is through the legal question of whether mt healthy burden shifting applies here whether it's on the state when a  discrimination has been made to come forward with neutral justifications for the action that it took if we're right about that question then it wasn't our burden to put that evidence before the court and then you bend but i think the other way to think about it to call it abuse of a  discussion is frankly because it's clear error the court didn't take account of the strong evidence that we have about the reliability of the metrics that the map drives themselves used to work the gerrymander in this case that premise of partisan gerrymandering to begin with if they weren't reliable we wouldn't see partisan gerrymandering at all because it would be a fool's errand we know that not to be the case we have strong evidence in the case demonstrating that more likely than not the electoral outcomes and the dilution of votes in the district was attributable as common sense suggest to the way that the map drives through the lines and so i think you have the legal error under mount healthy burden shifting and as to the factual question it's simply a clear misreading of the record try to answer the perennial question of how much is too much politics in a redistricting process that this court is called inherently political oh i don't know he says not at all he says  too much if that's all you're doing well no it's basically as i read his argument well depends on if that's all you're doing then it's too much now under that test he might lose because you're claiming there were other reasons for this but that's an issue of fact for the jury i think you have some pretty damning evidence that it might not have been you have your own mayor saying your own governor's pardon me used to be my mayor your own governor say that he felt duty bound to ensure that his party won and there are basically statements to that a fact here so that's tells that gives you a standard you may not like it but that it does give you a standard well two things rather one is elsewhere in the brief plaintiff's disavow that they have to show how much is too much they actually say that in words to that kind of intend well how much is too much is when i think balled up in the question of which they are i grant you you're a little bit equivocal of who bears this burden but there's they are saying that we have to you have some form too much but the what they're really relying on and it's the intent which they would equate with retaliation but it's the same intent which the court recognized in banda is ever present well mr sullivan let's say you're right that they have not shown us how much is too lunch that they have suggested that in any form when there is partisan advantage the courts should be intervening but we don't have to say something you know from the governor from congressman hoyer people were very up front about what they were trying to do here which was to create another democratic district and they did that only ten thousand people had to be removed from this district as a result of one person one vote what would the maryland legislature did was to shuffle three hundred sixty thousand people out and bring in three hundred fifty thousand people the result of that is that the district went from forty seven rip percent republican and thirty six percent democratic to exactly the opposite forty five percent democratic and thirty four percent republican i mean how much more evidence of partisan intent could we need well you might want intent to create something other than a competitive district which is what maryland created it went from a safe republican plus thirteen republican to a plus two democrat and in  two you're referring to the single election is that what you're referring to well cooke evaluated the first election after the redistricting which is the most important one where you can judge the effectiveness i mean democrats have now prevailed in three straight elections including an election which was a wave republican election so the effects were exactly what the intent would suggest a long standing republican incumbent is unseated by a democratic newcomer who withstands a wave election who prevails three straight times i mean it appears that the maryland legislature got exactly what it intended which was you took a republican district like a safe republican district and made it into not the safest of democratic districts but a pretty safe one well no it's not safe it was judged competitive and in that first election two thousand and twelve the incumbent republican had seven count them set of seven opponents in the republican primary the total vote for those opponents exceeded the vote for the incumbent those seven candidates did not run for office presumably because they thought it was a waste of time to run for the seat as a republican in six district they considered it to be competitive and so they ran as we often do competitive the idea that being advanced is extreme gerrymandering ok one hundred percent is extreme no other reason for doing this other than partisanship that's an example of extreme gerrymandering and the election result changed that's an example of harm and there is nothing else put forward ok except you did put something forward there's been gerrymandering in the past we're trying to cure it something like that we've seen that in the cases ok say no the last reason is not good enough you have to start somewhere second there's an example of an effect and three it's  hundred percent partisan that's the reason that sixteen now it could we say that yes i think we could but problem is that's not going to solve all the cases and we'll never have such a record again i mean the people who do the gerrymandering are not stupid and they will never have such a record and therefore we will not do much to deal with a problem of serious dimensions that is national all right so what do we do just say goodbye forget it and as you know you read these briefs if you think what's happened now is something wait till you see those computers really working you've read that i've read it ok what do you think well i don't know if i'm smart enough to exceed all of the knowledge has been applied to this question by this court and with her generation but we do think that the equal protection law which is what baker the car looked to when it first embark on this project to have the courts oversee redistricting provides the best hope for a standard for to merge in for  first amendment there are cases outside of retallack retaliations never been used to evaluate a statute it's otherwise ok equal protection or you get to the same place you see because we have one hundred percent here or of that's the record could be read that way to get to the same place that's why i was thinking you got to get all these standards lined up together you know and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work and other cases and it depends on the type you have i mean that isn't squarely addressed by the lawyers because they're focused on their one case it's a lot what do you think well that there hasn't been one hundred percent showing of that was the only purpose here  eliminating the crossing of the chesapeake bay which had happened in the early ninety's caused the need to move to one hundred twenty five thousand people in the first district alone so as everyone who had all the experts who testified in this case in deposition acknowledged that if you move one line it affects the whole map suppose the maryland constitution had a provision that required that partisan advantage for one party be the predominant consideration in the district that would be viewpoint discrimination your honor which the court would evaluate on the face of the statute but here we have a facially valid statute that doesn't have any content you know you can have viewpoint discrimination without challenging something on  conclude that your answer is no that's not a constitution yes that on the face of the statute how is this case different well if we don't have a statute that establishes a preference for one party or the other  i mean the redistricting is a statute isn't it yes well it seems to be a statute that prefers one party over another but on his face it's a series of meets and bounce it's the longest most boring deed you've ever written it doesn't have any  a statute in said in the next round of reapportionment we're going to create seven democratic districts and one republican district i think it would have a similar result to the question from j from its traditional well developed standard of evaluating you point to scream a nation on the face of the statute as it's done in recent cases where it doesn't so if you hide the evidence of what you're doing then you're going to prevail well i don't think it's hiding by stating the statute for where the boundary lines are as if they've always been stated that's not hiding what's being done well let's talk about the boundary lines for a second people been talking about the statistics in the numbers is it appropriate in a case like this to look at what the district looks like in terms of the boundaries and the extent to which it complies with traditional redistricting criteria i mean part of the issue here is you have people from you know potomac joined with people from the far west panhandle and i mean they both have farms but the former hobby farms and others the others are real farms there's a lot in the records you'll find the census to consider is most of the people in that western maryland part of the state to actually live in not in the constitution is not in the governing statute but if you were going to look at that kind of traditional thing that just seems to me i've read a lot in the record of people worried about you know going over chesapeake bay and growing a district and that makes a lot of sense but it's not just water that separates people and part of the objection here in the way it was redrawn is that it's it doesn't seem to have any internal logic well it would be harder to justify the what the and the plants want to call the benchmark district which extended the six all the way across the state to far harford county which is far from western maryland if you can get without popping into the chesapeake bay so if you want to say let's judge it by geographic and traditional  you couldn't justify the benchmark district the plaintiffs want to point to which is the old six this new district looks much more traditional in fact it has montgomery county in it which was the traditional layout of the sixth district until that was say democratic be ok there's a couple reasons one is factual that in this record it is uncontested evidence in the record that the legislators could have without much difficulty drawn a map that would have resulted in eight democratic and zero republican congress persons so factually it's not a max dam plan secondly in the other case i believe you're concerned about racial gerrymandering which is drawn from a history of exclusion of african americans from our political process something that republicans can hardly claim is certainly not today where our federal government and our state government as it happens both controlled by republican party think i just i meant to ask it before a factual question you said the state was sixty forty democrat yes you're on but that's just a identify party what's the percentage of independen well i've not sure in this particular district it's about twenty percent in the six district and you know that twenty percent is that pertinent consideration in deciding whether something's been a partisan gerrymander well i think it's important because here both major parties are in the minority as far as registration in that district neither is the majority they could have made it that way but they didn't so they the independent vote is it is critical because in the election that the first election the democrats won more of the independent vote than the republican the redistricting lines couldn't have caused that to happen that happened because of the views of those voters and the strength of that candidate it was a general matter in a partisan gerrymandering cases you have a theory about how you're supposed to take independent voters into account well i think they have rights too and i think what gets lost in certainly in plaintiff's theory perhaps in some of the others is what about all the people that aren't part of a major party if they don't enter into the calculus for this first i'm in retaliation presumably they're retaliated it in every act true mr sullivan just as a matter of fact that most people who are independents tend to lean pretty strongly one way or the other over many election cycles well i've heard some analysts call them is as  angry white vote but i don't know if that's true i don't know it was a way to look at that way or anything in particular just you know people who call themselves independents and in fact are not members of a political party that you know tend to  all of them but many of them tend to vote pretty consistently one way and this is why when map makers do their mapmaking they look not only to party registration they look to the way people vote and what they find is that  more members than just the members of the political party more voters vote pretty consistently well i don't know if our record would support that you and you may be correct but the record we have statements from experts in  lichtman testified that independent voters to be a transitional period for voters who are unhappy with their former political party and and they may or may not move to the other one so we don't know which direction they're moving are they moving away from the democrats and parking themselves as independents for a few years before becoming a republican or vice versa or they're just disenchanted with republican along the lines of things we don't know we've been talking about the intent of the legislature but what effect does the does the fact that this map was subsequently approved by the people themselves have what we're trying to determine intent this one up for voter referendum decide or stand it and said it was sixty four so per yes and some of our players were active in getting that referendum on the ballot well in the shoe it case justice kennedy wrote how that raises first amendment issues of its own because the people have spoken and they've expressed themselves and they did so overwhelmingly to support this plan including in ten out of twelve counties where the majority of voters are republican so for this is not is a many resisting case might be presented to you as a blow for democracy this would be a studies are more elaborate statement my point is you're relying on what the response of the referendum and certainly i think your friends on the other side suggest that the question the the phrasing of the question on the referendum was  e yes you're on that issue was litigated by the proponents of the referendum in state court and they lost both that trial and the appellate court in a case called parrot versus me donna that is cited in the judicial watch brief the court found that the language of the referendum was sufficient on its face to apprise voters especially when viewed in conjunction with the individual notice that voters received from the board of elections were fully explaining the issue and the map as it existed so here is the here it is i think if i put got it right are you for or are you against the following text establishes the boundaries for the state's eight united states congressional districts based on recent maybe notice what they were doing the paper and that the point of some selves rely on in their second in a complaint if you look at the fine print at the bottom of some of their maps drawn from the extensive press coverage in the run up to the referendum many of them have but i have not thought of the answer to this question let's suppose that you do have one hundred percent district drawn to help a democrat and suppose also in the next election the democrat was elected not the republican now if you said that was on unconstitutional and there's no other reason given are now in other words extreme if that of the cold ing of the court i'm not saying it would be i'm just saying assume and how would that hurt independence is there a way that would hurt independent voters not holding well if the independent voters had supported that democratic candidate on the merits of that candidate because they thought that candidate was the better candidate as happened in the six district we're going to go to voted very heavily for the democratic candidate then it would be harming them if you were if you were i don't know if you're going to think about invalidating election which the court has hasn't tended to do but it would it would be hurting them as well and blaming them for a problem that they didn't we have standards and things like how many what's the burden of treating different political parties to a requirement of signatures to get on the ballot and we've said in those situations we look to the nature of the burden we look to the expense we look to a variety of different factors to inform the seriousness of the bird the first amendment has worked well in those cases are you just merely suggesting you can't work well here because the region restricting may one is if we're looking at retaliation which is never been used as a means of testing a statute it's been used in the executive part of the government when it's employing people when it's retracting where speech where  governments consideration of protected speech and political affiliation is generally restricted whereas when government next to redistricting statute it's legislating which always involves consideration of speech including of course political speech but if you're talking about more generally first amendment law as it affects alexion just the right of association the right to proselytize to organize to get on the ballot but not to discriminate is to cast a right by saying you don't have a right to describe but those cases go up to the point of voting but as far as i know they don't address the results of the election which is what partisan germander in claimants care about they're not claiming they didn't get to vote they're not claiming their candidate didn't get on the ballot they're not claiming any of those things that have been addressed to hold the whole purpose of germ injury attack is that i be discriminated against or at least the theory of their case because of the views i have expressed over time and those views want to be silenced by the south but those are the same types of things that come up any time you're on the losing si legislation and this court has repeatedly said denied that opportunity to to try to turn into a legal issue and a way to get redress the fact that one's views did not prevail in the legislature are you essentially saying  you agreeing that gerrymandering is not just a simple well we're arguing that on this claim that plaintiffs are bringing the first image retaliation that it would not be a manageable standard we're not so maybe back to my question why would you do you agree with the court below that it can be made manageable if you introduce the test that it suggests plaintiff has to undertake no no majority of the majority is basically saying it could be it could be though but you have to prove these other things it's starts with a specific intent that retaliation requires as the court recognizing o'brian the intent when it comes to legislation is so nice use many people are involved counsel that given their evidence they certainly have enough to go to the jury on that question whether there really was any legislative intent outside of tree they don't have anywhere near the number of affidavits they would need from the legislators that actually voted or from the more than one point five million marylanders who approved the plan in a referendum that's the kind of fuse intent that comes into play when you're talking about legislation and here legislation that's been taking the referendum in so far different from the kind of cases that the district court was citing where you have an employer and you know you know i fired this employee it's not very complex to figure out what the intent was and who did what to who that's not what you're talking about with legislation because i don't quite understand that mr sullivan in the racial gerrymander cases this is exactly what we do in much harder circumstances actually i mean it's the same in the sense that we look to what legislators say we look to what mapmakers say we look to a variety of pieces of circumstantial evidence about how the district in turn down about what was done and the reason i say it's harder they are than it is here is because there we have to deal with the kind of confluence of race and politics but here when you look at this kind of maneuvering and it's all about what else is it except about politics and we would look to the exact same things that we look to in our consistent line of racial gerrymandering cases well i would refer you to if you want to say that this is not involving the interplay between race and politics you should look at the expert report in the record from plaintiffs like for dr morrison who talks about one of the reasons that the plaintiffs are grieved is because of the makeup of the prior district was much less than vers racially and ethnically the in the new district and they are being forced to be part of a district with a more diverse population in income recounting so i don't know if you can say we just we do this we we do it when we deal with racial gerrymandering cases even if you want to say to me that this is no easier than that i would say that i guess i would argue with that but but my main point was even if it's no easier we do it all the time but you do it under the equal protection clause and not the first amendment that's where your your case is will tell you what we would be looking at the same things we would be looking at the same kind of direct evidence the same kind of statements we would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn so it's it's it's all the same kind of evidence isn't it now when you get to the end of the process you need to be showing a totality of circumstances with historical social logical evidence of exclusion of that minority which simply is not the case when you're talking about republicans  they have their major party they've been in control of government oftentimes and as they are now i guess what i was suggesting was that we're looking to the same things to discover intent in each circumstance  you may be looking at similar types of evidence but as far as i know you have not applied the first i'm in a retaliation rubric to that analysis as plaintiffs want you to do here is your difference between one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable we've never recognized that a purse a certain degree of racial discrimination is acceptable that's true your honor and it would be very hard if in the racial segregation law where the court says you need to remove all vestiges root and branch this court said in beith that redistricting is root and branch political how are you going to give it the same approach  eliminate all evidence of partisanship and if you can live in eliminate all of it how do you judge where the line is and again we get back to help plaintiffs have not presented the court with the test that gives you that law we've had briefs in all of the cases that do try to answer that question pretty directly you know you're look to see what the reason is why is there partisanship pass the defendant and then given that reason is there you know no real explanation that just doesn't work and you can you know these experts you can run it through computers you can get somebody who will look at this and they'll say well this is if this was the reason why is it this is in the top five percent of doesn't satisfy the reason without the partisanship you've read those briefs yes ok and the problem is they're complicated but not impossible right so so we're back that's why i'm back to you where i start i'm not saying it's impossible and we're not taking the position that it's not possible for this court to come up with a manageable standard we're just trying to explain why this one isn't manageable in the court is looked for so long i would hate for it to settle on i'd like to come back to something that justice kagan raised about intent the fact is when it comes to legislative intent this court does it when it comes to the question of burdens imposed on vital voting rights  in the ballot access cases this court does that as well our position is that the the burden properly understood under the first amendment and applied in this context is the same burden that this court has recognized in the ballot access cases it's it's making it more difficult deliberately making it more difficult for particular citizens to achieve electoral success because their views are disapproved by those in power in this case in annapolis  the court having postponed jurisdiction i think the question of just disability is squarely presented to it i understand that the court has some concerns about the posture of the case coming up as a preliminary injunction the same time i think the lower court is looking for this court's guidance on whether the sort of approach that we proposed here is just issue and it's one that the court should proceed on we would take the position that justice schism that judge niemeyer took below that the appropriate approach is to think about whether citizens have been deliberately burdened because of the views that have been expressed in their prior voting histories and i guess what i would say is if that if that approach isn't going it is going to work in any case it's going to work in this one because here the evidence is unequivocal that this was the intent and point in fact the political composition of the district turned one hundred eighty degrees it went from republican to democrat just as the map drawers intended and if i could just quickly come back to a point concern that the chief justice raised of the argument and bill against woodford i think the average person on the street understands what partisan gerrymandering is about it's about map drawers singling out individuals because of the way that they have voted and making it more difficult for them to achieve electoral success when plaintiffs may have to finish my thought when when plaintive succeed in proving that map doors have succeeded in rigging an election they ought to be entitled to relieve the average person on the street will understand that for those reasons we asked the court to reverse that thank you counsel the case is submitted