person one vote principle of the equal protection clause requires in a portion minute forty to make a good faith effort to equally apportion the population as as practically as possible and while deviations are tolerated they only minor deviations made for legitimate purposes of a rational state policy intended not to be discriminatory or arbitrary here the arizona redistricting commission malle apportioned arizona state legislature by almost ten percent eight point eight percent in the district court below found it did so for two reasons the first reason was to obtain a parti advantage for the democrat party the second reason was a perceived belief that mal apportioned districts were necessary to obtain justice department pre clearance approved neither of these reasons justifies a deviation from the constitutional principle of one person one vote and that mark you want to do you want to overturn the factual finding that compliance with the voting rights act the pre clearance procedures was the reason the real reason for the deviation you want to overturn that is a factual find no i don't as a factual find a but when you say justice kennedy the pre clearance obtaining legislature but the end result was that the albert hours on the plan gave republicans more than their proportionate share of seats in the state legislature i think the numbers are in total republicans won fifty six point six percent of the state senate seats sixty percent of the state houses and then exceeded the republican party statewide registrations here of fifty four point four  gerrymander that obtain the partisan objective i think the objective that we are trying to achieve here is the one person one vote standard and that's why whatever the ultimate political outcome i don't think that vindicates the fact that these  it's still not clear to me what you want to say about the commission's rationale for compliance and voting rights act one that was wrong as a matter of law because if you don't overturn the factual finding them you can depopulate districts up to ten percent and in fact you should do that because you need to create these under populated minority districts to obtain pre clearance that is wrong the voting rights act does not command does not compel or require underpopulated districts to obtain preclears the solicitor general's noted that as well in their briefing and the justice department guidelines well that's how confident are you of them i mean the preclearance process at the department of justice is famously opaque and usually the states and municipalities have to go through or had to go through several layers of back and forth years a proposal and sort of a bargaining process i don't know how confident you can be that it wasn't necessary we certainly agree that the pre clearance process was very opaque as you said mr chief justice i mean we said it was like reading chicken in trails because no one really knows what you do or don't need to do populate these ten districts in order to obtain pre cleared was flawed as a matter of illegal advice that doesn't justify malice fortune so they could have achieved as in fact their own expert dr king said in the further to get eight point eight percent deviation so they were mistaken i mean you say they could have done it without without this disproportionate but they thought they thought that that was ok they thought that they were doing this in order to comply with the justice department what's the test is the test what they intended or is it an object objective test well i think you have to look at actually it's allowed in deed may require you to do that so that doesn't show a bad motive on their part doesn't know but i don't think this court's ever held that bad legal advice justifies a constitutional violation which in this case that's what the burden of proof was is a mixed motive case where you have one assumed illegitimate motive partisan advantage and you have a no other motive which is oh it's ok because we needed to do this because there advisor said that was necessary for pre clearance then i think it the task falls to the commission to justify under this court's decisions and mount healthy in arlington heights standard of a mixed mode of case to justify oh this was necessary in fact to comply with that and that was not one the next morning it was the finding of dominance of the dominant purple samples went to attempt to meet and two of the judges judge clifton and judge silver did find that that was a predominant motive or point one of the fact finding you want to burden one of the curious but they also found that there was another illegitimate motive that they assume judge silver didn't necessarily agree but she assumed for purposes of decision that this partisan advantage was a illegitimate motive so you have a case where this body is unconstitutionally departing from one person one vote they come forward with two explanations one illegitimate one supposedly legitimate this pre clearance based on eroni it's legal advice and on the basis of that the court split on what the burden of proof was we would just  little bit mr hearne if you did you are not the contestant the factual finding at the predominant motive was to comply with the voting rights act is that right we take the factual findings from the district what we don't protest those but what we do believe is that the court applied the wrong burden shifting standard in that in their analysis of those facts when they have a mixed motive the proper response would have been to say ok you shown we found one illegitimate motive well you keep on saying mixed motive and i guess people keep on coming back to you and just trying to figure out whether you are in fact or are not in fact contesting that that the predominant motive was the voting rights act the when we say the voting rights act again i want to make my position was the attempts to comply with the voting rights act this interest and then in the court found and it is a factual finding that that's the predominant moment of and i don't mean to harangue you on this i just want to understand what your argument is no we we to be very clear yes we accept the factual finding of the two judges that that was what they said was the primary motive but they erred when they did not shift the burden in a mixed mode of case under or lincoln heights i think footnote twenty one or mt healthy kind of standard secondly they erred when they gave a justification and found it legitimate when there really was not a legal need to do what they did there was no need you know the voting rights act can't compel vote dilution and that justification even if it was heading to good faith does not excuse a constitutional violation of one person one vote so at minimum they would need to be remanded for an opportunity for them to somehow the commission explain why they can justify these population deviations and that's that is our position justice  that's absolutely correct as americans now i understand there's one case you're relying on that was summer summarily affirmed but is there any other case from this court that has ever said that  deviation of this amount is significant i think we've always called it i think below nine percent de minimus correct what the court has said is i read the jurisprudence is that a deviation of over ten percent is prime a facia usual in the state justify it if it's a deviation of less than ten percent the obligation is on the party challenging it to come forward and present some evidence showing that it is done for an arbitrary or discriminatory for us that's what we understand that standard to big out of brown v thompson and again that was a plurality opinion but under that stand i don't actually understand i don't know of any case where  say that there is not this magic bright line and then other decisions of this court have always disavowed creating some it's a simple bright line test where deviations from the constitutional standard below that are tolerated so for example in karcher that decision said we specifically don't want to set some line because the minute we do that legislator words are redistricting authorities will immediately use that as the new standard well in fact they have they've pretty much used ten percent if not discourage them from doing that it is certainly it is certainly appeared in some of the district court  that that they have looked at that and again we see that as the burden shifts what it is that the in in brown v thompson it says our decisions have established as a general matter that in a portion plan with a maximum population deviation under ten percent falls within this category of minor deviations and what we held previously was that minor deviations from mathematically quality among state legislatures are insufficient to make out  would have to do if it were marred larger than ten percent what do you think at the do well i think we have to do justice by what we did which is to come to the court to come to a district court and to present to them evidence which the district court found of you have a deviation that you know minor is done for an illegitimate purpose and yes there was this other pretext of the pre clearance issue that satisfied the burden of requiring judicial scrutiny i think that you would have to still have a showing of an illegitimate purpose behind the deviation is to show that you didn't just establish it by the fact of the deviation what kind of evidence did you present to the district court well i think in this case that this case is a very unique case because as judge wake found in his dissent the chart shows statistically that there was systematic partisan  r her in that you were saying that the that the thing that you had presented had to do with an impermissible motive and the interest of a motive was that they didn't have to do all of this for voting rights act compliance is that right i say there's two the first in permissible motive or illegitimate justification is partisanship to gain an advantage right but that's the very thing that you said you weren't challenging the factual finding that that was a subsidiary part of the redistricting it was the dominant part was the voting rights compliance and i take it you want to undermine the voting rights compliance ration now but then i'm stuck on the same question the justice stuck on is what evidence did you present that that there was an impermissible motive with respect to that as opposed to a different view is as to what the voting rights act compelled to quick answers to that first is legally the just as the voting rights act couldn't compel them to do what they did so that justification legally is invalid secondly we bring up that point about the burden shift with or lincoln heights in healthy where we will be shown an illegitimate mo partisanship then the burden task force of the commission to justify that and i would reserve the balance of my time thank you counsel that the independent redistricting commission did indeed draw in districts of unequal population all sides agreed that these deviations were not random or that they were not incidental we also know that in the record shows no one disagrees that this pattern to under populated minority districts was done to help create or further ability to light districts and we also know that the direct evidence is they did it intentionally so why are we here today in the background versus reynolds v sems this court has always held that equal protection is not a criteria another factor when it comes to redistricting but it is essentially the background which all redistricting much take place the state of arizona the secretary did not dispute the compliance with voting rights act was a legitimate or is a legitimate state interest and we don't dispute that maybe there was an a good motive on the part of drawing these districts the problem is those motives don't matter when what you have is undermining of the fundamental principle of one person one vote so in this case what we have is a violation of equal protection clause because by intentionally and systematically under populating those minority ability to like districts the i r c violating equal protection clause and that principle of one person one vote so essentially what happen overpopulating the other districts the voters in the overpopulated districts had their votes diluted and by doing by diluting those votes it violated the constitution it sounds fundamental that the statute can't authorize a constitutional violation so that even attempt to comply with the voting rights act is not sufficient if it but the equal protection have we ever said that i mean it's obvious but if we  in the context of what the voting rights your honor this this court has consistently for reynolds v sims has always held that the concept in the principle of one person one vote any attempts to undermine that outside no we have said that whichever way it's read can't be read in a way that would violate the one person one and that's what judges wake that in this dissent and that's exactly what judge makes that it's dissent and that is the state's position is that we don't dispute or we're not saying that complying with voting rights  interest what we're saying is is that when it's done in the systematic way where you have a one way ratchet where you have consistently minority ability to elect districts essentially using folks based on racial ethnic classifications and under popularity leading those districts in the overpopulated other districts what you have done is essential undervalue were violated the one person one vote would you would you say it's correct that compliance with the voting rights act and desire to obtain pre clearance is at least like other traditional all districts in considerations like respecting county lines respecting municipal lines having contiguous districts would you agree with that yes justice  so if if that is the case then is this what you were asking us to say with respect to the voting rights act that the things that were really necessary to obtain pre clearance are legitimate but you can't go but they went further they went beyond what was really necessary to obtain pre clearance so we would have to determine whether that was true or not or some court would have to determine whether that was true or not in this instance because of the systematic way the deviations the underpopulation occurred as well as the intention we know from the independent redistrict commission that they intentionally underpopulated those districts so we have all that evidence  however i we do believe that the voting rights act is like any other criteria so if you get these population deviations in there instead dental not intentional and that is the key i believe is when you intentionally underpopulated systematically under populated these districts that's what causes the cons what if the only way that you that a state could obtain free clarence when section five was still in force was to underpopulated some districts is in the draft baps seven of the ten minority billet each to elect district underpopulated however when the independent redistribute commission went from the draft maps to the final maps there was a one way ratchet they intentionally and systematically  is permissible yes or yes justice kennedy if it's incidental and not intentional if i'm not sure what that means i mean i had thought you i thought i thought you were saying that it doesn't matter whether you are doing it to obtain justice department clearance you cannot do something that is unconstitutional that is if in fact you don't have equally apportioned districts it goes beyond what is tolerable it's a violation regardless of whether your you're actually trying to comply with the justice department is not what you were saying yes justice scalia but i think that it's important to note that we look at this is a qualitative not a quantitative analysis so there isn't like some magic number three say at this point this becomes unconstitutional or doesn't the state's position is that compliance with the vote the rights act was like other neutral or traditional criteria like protecting is just on communities of interests geographical boundaries and so in that in considering that you may have incidences where you get somebody some districts above or below the line so the fact that a district may be below the line in another itself is not a the harm occurs when the independent redistricting commission systematically under populates those districts of those ability let districts and overpopulate other districts thereby you looks like alluding the votes of those people i guess i'm just not really sure let's let's say that there is a policy that says we want to respect county lines and we also know that we want to do it one person one vote but we think we have basically some leeway up to ten percent  and there's a policy we want to respect county lines even though that's going to cause a little bit more deviation on the one person one vote metric are you saying that that's impermissible just  policy i mean it's an intentional policy it i guess you know but the road to hell is paved with good intentions and so our position is regardless of their intention if they are doing it in a systematic way we're intending to overpopulate certain districts underpopulated other districts that is unconstitutional the voting rights act and then even though it just say thanks you from four to five percent or from seven to eight percent you're not crossing the ten percent threshold but as long as you're going up and you're doing it purposefully us in the sense of we have a policy to maintain county lines that's impermissible yes justice kagan the position of the state is that when it's done in a systematic an intentional manner when you create  ially barrios of barrels excuse me of certain folks and then you overpopulate other districts out violates this court's one person one vote principle general brinton the church just isn't mary's curiosity how do you end up being on the side of the case you ultimately the number this is not a line drawing case this is an overpopulation underpopulation case so how lines are drawn in what the republican or democratic representation is in the state house or the state senate  mr chief justice and may please court there's no basis for concluding that the minor modest population variances among the districts in the arizona map violate the equal protection clause except to the fact find speaking of accepting fact findings do you accept the fact finding that at least part of the motive was partisan i don't think that's a fair characterization of what the district court found your other oh really want this record found that the predominant motive for the under for the population nominati it said that there may have been two of the five commissioners who as two one district district eight had some mixed motives in in urging that that district be made more competitive but did not find that the commission as a whole acted even in that one instance with partisan motivations and it that district is not one of the ones to succeed underpopulated the decision to move population around to make that district somewhat more competitive even if it was motivated by partisanship has nothing to do with what we're really talking about here is that which is the eight point eight does deviation when i read you know i would be very upset if there was any motivation of partnership because i wish this case had come up before the case we had last year which which approved your commission  despite the text of the constitution because this commission was going to end partisanship get politics out of redistricting and here are the very next term we have this case which which asserts that there has been a lot of partisanship on the part of this with respect to some of those in lee divine commission not a fair characterization of what happened and not a fair characterization of what the district court found after a full trial what it found after giving them a full opportunity to try to prove their claim that there was some invidious discrimination here is that simply not what happened instead what happened is that they had these population deviations emerged in the final part of the process as they work to make sure that their map would pass pre clearance on the first try something that the state of arizona had failed to achieve in each of the three previous decades in this district court found in this is on seventy nine a the appendix to the jurisdiction that partisanship played some role so  if you want us to interpret that to mean that if there was no partisanship everything would have come exactly the same way had no effect whatsoever on the district what the court said was with respect to the changes to district eight which by the way remember the larger republican leaning competitive districts that two of the commissioners may have had mixed motives both thinking about eating the pre clearance arguments and also thinking about bringing the democratic party up sql oser to parity and still didn't get the pair and i think that to say that's a that's a that's a red herring we don't need to discuss is the issue of parity if you have a system of proportional representation and you get fifty five percent of the vote you'll get fifty five percent of the rest of the of the representatives but in the kind of  electoral system we have in the united states with single member districts and winner take all a neutral a neutral district unplanned will never produce exactly the same breakdown of legislators as the breakdown of the votes in the election but that's and that's a side issue what do we do with this statement partisanship played some role here on earth partisanship by itself cannot violate the constitution you have if you have even if it even if you inflate that to far beyond what was intended by the judges who wrote that opinion the case of gaffney vs cummings was a case where you had partisanship being the dominant controlling factor in every single i was th what interests me about the case if we assume as the district court did that partisanship is not a legitimate consideration it's not like respecting county lines and if we interpret the district court's opinion as finding that partisanship was part of the reason for the plan that was adopted then is the tast the mount healthy tast which in my understanding is what we normally apply in a constitution mixed motive situation so that if an illegitimate unconstitutional consideration is one of the reasons the burden shifts to the defendant to show that things would have come out the same way even if that factor had not been in the case or is it what the court sad in bush versus vera and a few other cases that in this particular context that's not the test the test is whether the illegitimate factor their race was the predominate consideration well i would that is it seems to me if it turns on the choice between the two of them it's accepting of that wrong accepting a lot of the premises of the question which i think are counterfactual about the opinion and what was found here at all of that it does seem to me the chief even if you're going to make partisanship something illegitimate in redistricting which seems kind of like a fool's errand for a cli it ought to at least have to be predominate i mean in a situation where you wouldn't you wouldn't want to say that th are some other factors that are also in play that it's permissible to use and you know legal standard in part if that were you want to write and it's been no your honor nobody thinks that it's illegal unless it or that's one of the issues in the case we'll talk about that later bipartisanship if you if you want to say the does make a difference partisanship is a valid consideration fine that's your point but my question is it sounds to me respond to your answer to justice alito but you're saying that it is all right to use an illegal standard in part to reduce equal equal representation for all the same reasons that the court has many times said we're not going to say any racial consciousness isn't enough to unless it predominates i would think you'd want to follow the same approach even if you're going to adopt the parity between racial considerations and partisan because the ration is which makes no sense your entire show if you read a lot of cases about trying to decide whether it's race or party and when you come to the conclusion that usually that is not already done it's ok and i put in my notice that you're arguing that partisanship is a valid consideration in redistricting so if you want and you certainly can you run you said it last year in the alabama case you said political affiliation is one of the legitimate two areas that are difficult to write one is i know there's this ten percent rule but it doesn't say we don't look at it at all we institutionally can't review thousands of pages of records in every redistricting case so what are the words there that described a standard we should bring to this in the second which is the direct application of the first if you're quite right how can we say that partisanship can't reconcile how do we reconcile our institutional ability with the need to have some policing here and how do we reconcile what we say in this case with what we've held in the line drawing area ok those those are two questions in the back of my money and i'd like to have you're going to answer the second question first there are fifty words or less it seems to be like it would be it would be not not defensible to adopt a rule that says partisanship in creating minor population deviations some effect in terms of biasing the map whereas in the in the line drawing area the vif situation you have always insisted that there not only be a bias effect but at the very large that i didn't ask you what we shouldn't say i ask you what we should say what you should say is what you should apply is the rule that is a bit applied in all of these cases about minor population deviations is there a rational or legitimate policy that the state can articulate which is the reason why they arrived at this difference and here we have the voting rights act is the rational and legitimate statement to talk about that for a second if action in redistricting over population would constitute illegitimate racial discrimination can the answer that we're doing that to comply to get preclearance from the honor this court has said the number of times that complying with the voting rights act is a compelling state interest it is assumed that just last minute my question is if the action that is taken would otherwise constitute illegitimate racial discrimination i'm trying to find out if the justice department's procedures can trump the requirements of the constitution in other words it's an issue of you know we said in ricci versus  that it's not an excuse and not a complete excuse for intentional discrimination that you're trying to avoid liability under title seven right for discrimination on the basis of the facts for i'm wondering if it's somehow different if the justice department is insisting on conduct that would constitute a violation if they're insisting on more than they should be is that a defense for the for the redistricting we run of the one thing that is clear mr chief justice is that the voting rights act does require people drawing lines to consider race section five required to avoid record but progression section two requires it right now i understand that so it doesn't say that all bets are off no your honor that what the line this court has drawn is between maps which go too far and maps which don't in which the racial considerations predominate and subordinate all other traditional districting principles here and what you have in this case is the quintessential map where that's not true where you know it seems to me you're avoiding my question what if the requirements that the justice department asks for for pre clearance go too far well i think if the justice department reads the voting rights act in a manner that requires them to do something that would go too far in the predominant sense that might be a constitutional problem there's no indication here that that's what happens you know he said so whether or not pre clearance is a defense depends upon whether the justice department is insisting on too much it could be your honor there's but there's no indication of anything of that like that here this is a case where they simply said no retrogression this is not like the ninety's where they were saying you have to create a new district no matter how ugly to comply with it look at the finding to support what the chief justice it was while partisanship played a role in the increased population deviation associated with changing district so too did the preclearance role goal play a role in motivating the change it's the first half of the sentence which is raising the issue that i think people are trying to get you to say how we write that you see because it says it played a role and so we're going to be asked here by the other side to expand on what that means play a role and we have to write an opinion and if you win this case they'll have to be words that support you and so how do we take this thing what would you say about the word play a role i would say two things your honor first of all it's a tiny role in this case but second of all even if it were the only reason why you have a population deviations under ten percent i think it would be not defensible for this court to say that by itself is unconstitutional that they're so de minimus effect on any interest in terms of representation from this difference of population absent some bias in the way that the districts elect candidates that is simply not a constitutional problem that you want to recognize where that even if the pure motive was was partisanship it's simply not something that ought to be taken seriously as a constitutional problem but here where the predominant motive is to try to make sure these districts will pass pre clearance and less than fifty fifty percent of the commissioners may have had for one district where they increase the the deviation slightly like point two percent may have had some partisanship as well as the voting rights act in mind for district eight not one of the ten there were offered to the justice department is ability to elect as tricks that's a tiny tiny tiny sliver of partisanship for less than the full commission what was never there were a case where the commission or whoever was responsible for producing the plan produced chose between two plans plan a as a deviation zero point one percent plan b has a deviation of nine point nine percent and they write a report and they say well we it came down to these two plans and we chose b because we want to maximize representation in the legislature of republicans or democrats and you would say that would be constitutional i think if that's the only thing that the that was problematic about the map you might well say that's constitutional but that's that's not this case obviously no it's not and it is in it and you know you've got us far as larry oh s don't know that i would even say that that's because there is no constitutional criterion for where you draw the district lines there is a constitutional criterion for how you how you w voters district by district varies if you're on it person one vote there's there's no no such criterion for where the location of a district line has to be that this court has said over and over again we want to give states leeway in this area because representation is often better if you give them some chance to make districts within the ten percent band and if you allow them to do with what's being suggested here to accuse to bring partisanship in and they can get a federal court and they can get to just by that that exactly what you said is going to happen in your dissent to larry oh so everything everybody that with a with a political motivation to try to do something to undercut a map is going to come in it's easy enough to elect to allege partisanship here the real all the only evidence they have  partisanship leaving aside the little story of district eight is simply the pattern that that the hispanic districts they underpopulated and the native american district happened to vote democratic so you have this pattern the chart on that they point to one twelve a but that's not evidence it's equally consistent with what the court found happened which is they wanted to make these districts more persuasive as ability to elect districts so they could get pre clearance and while they got pre clearance that this is this is a case where you wonder where is to be what exactly are we here for there's no problem with this map it's not a partisan gerrymander it's not a racial gerrymandering it's within the ten percent boundary that they did everything in open everything that that's being complained about here all of this underpopulation of these districts that was done was done you now know mislead by all five commissioners who adopted the goal of getting pre clearance who adopted the record the idea that they had to get ten districts not eight districts that every single change those ten districts to increase their underpopulation was unanimously voted by all five commissioners this is a case where there is simply nothing seriously being argued here that could possibly about two o'clock situational eilish and it seems to me that we can talk about whether a pure partisan case ought to by itself if the only if the only problem was deviation of the unconstitutional i would recommend that you not do that for the reasons that you said in your dissent to lariats but spoil this with this case is so far from that i mean the a republican commission appointed commissioners are voting for everything that they're complaining about because they too want to get preclearance that the state of arizona want to very much to have its map go into effect for the first time since the one nine hundred sixty s when it became covered by the voting rights act rather than having a federal court have to put the map into effect because pre clearance was denied and they they they hire lawyers who work in the justice department told them how many districts they needed told them that if necessary and we bring these lines they could go down to up to the ten percent limit they then tried very hard to minimize that and one of the things that's important to recognize here is you could have probably equalized the population here and still gotten districts to the same level of hispanic population but you would have had to draw tentacles of the kind that the court has many times a criticize there's lots and lots of other hispanic people in the state of arizona we're not in these districts but that's because they're spread out all over the places so if you're going to draw a compact districts if you're going to draw districts that respect county boundaries if you census track acts and communities of interest something has to give and what gave here was the this modest tiny small amount a population variation that seems to me just not a serious candidate for any kind of constitutional invalidation on the facts of this case which aren't even challenge here is clearly erroneous the court has no further questions thank you thank you coun please the court the question in this case is not whether section five can compel deviations from a perfect population standard the question is whether its minimal de minimus deviations are permitted by the constitution this court has made very clear that when state destructing plans are within a ten percent deviation total deviation from a perfect population equality standard those plans are presumed to be constitutional that presumption is a substantive rule that serves three important principles just if i can briefly take them off the first is that such de minimus deviations do not by themselves violate equal protection the second is that giving states a ten percent leeway actually enhances citizens fair and equal representation by allowing states to pursue other important destruct principles and the third is that limiting federal court intervention in de minimus deviation cases protect states sovereign right to draw districts from their own legislature ten percent really the minimum i mean i think you can say it's minor but the minimum means if you haven't made a promise case it means you have to bring in other evidence it doesn't mean you're out of cool but you have to be the prime minister case that means that the state doesn't have to justify its reasons for the deviations and so in this context in order to make it in really any cont case what you have to do is put it put in enough evidence from which an inference of invidious discrimination can be made but that generally requires that the challenger has to put in enough evidence to rebut the presumed reasons for the challenge action in this case there isn't a quick arizona constitution sets forth the redistricting criteria that the commission is to use in drawing district lines and so at a minimum the plaintiff should have come in and demonstrated that that the deviations that they observed were not explainable as in service song that the the opinion of the district court found that hardison chip was a consideration so are you saying that that finding can't be sustained because it wasn't  sufficient evidence brought forward by the plaintiffs when i said first just a point of clarification the part of the opinion that you read was just talking about district eight and so it wasn't a finding that part of the played any role with respect to the rest of the map and if you read on in the paragraph from which the recording  partisanship just irrelevant they played no role everything would have come out the same way they discovered partisanship according to the district court's finding the district and every respect to one district two of the five commissioners were motivated in part by part is by partisanship motives but again our base our first position position is that the dish that this court doesn't need to get to what the actual findings were asked of the motive because what the plaintiffs needed to do was come in and demonstrate at the front end that the lines on the mat couldn't be explained as an effort to comply with legitimate this shooting criteria is that what is the position of the united states on the question of whether it's permissible to intentionally partisanship use partisanship as a guiding principle in redistricting is that permissible or not we haven't taken a position on that that i know you haven't it seems very unfortunate it's a little difficult for us to address and so that's one of the main questions in the case well the united states has never participated in the political gerrymander ing cases certainly you know there are lessons that can be drawn from this court's cases in gaffney the court indicated that certainly consideration of politics and partisanship does not necessarily make a plan unconstitutional but again in this case i think in order before you even get to the question of what the state's actual motives were there has to be some demonstration that the motives were not the announced motives that are in the arizona constitution so your son you're unwilling to tell me whether intentional use of united states is at least since many commissions are nonpartisan because they have two people who are more partisan on one side two people on the other side and one neutral so at the least where the commission's commissioners don't account for a majority the partisan vote is not held by a majority of the commission and it is constitution that where some members of the commission should take partisan considerations into account where there are not a majority and where the result is under ten percent and that is the district court's conclusion our prisons your conclusion  case so that what the plaintiffs had to do is come into this come into court and say here's a map it can't be explained by the criteria that are identified in the constitution that the commission is supposed to go by the very first criterion within the constitution is compliant kids compliance with the voting rights act justices of this court voted a certain way in a case because they were racists the opinion would still be valid because after all five of us weren't would you even consider that  and why is it any different for a commission like this the mere fact that two of them or if partisanship is indeed bad well again i think you know we don't have a position on how one would analyze that but on that one i think one this isn't racist number two it's not this court number three i don't know any court like that a number who are with you if you're going to say if you're going to say if you're going to say that new members of the redistricting commission can ever have bipartisan ever have partisan views i don't know where you're going to get your membership from i mean but that is that many of these commissions i would think would balance people who know about this rick thing and who are also republicans really white pure right and if that person deep down is partisanship one side or the other the whole the whole thing goes with this court and that is the allegation here by the way sorry to interrupt this court has repeatedly said that politics is always going to be part of  page please it's on sixty two i'm sorry sixty three and a running over into sixty four and and in the the pair the final paragraph that begins at the bottom of the page for decision purposes a majority of the p made up of judge clifton and judge silver have concluded that plaintiffs have not demonstrated partisanship predominated over with redistricting considerations doesn't that mean that they found that there were some  not and the portion i would quote was not limited just to district eight partition ship was ranked in this redistricting process and has demonstrated objective lee not just with judge wakes chart but it's also demonstrated by the fact then i would quote from the appendix that one of seven eight which is where the statements made judge clifton correctly finds that the i o c was actually motivated by both partisan advantage and hope for voting rights pre clearance so we have a majority for that finding of fact so that is two members of the court specifically found that partisanship was one of the two motives to explain these deviations from one person one vote so clearly it was a motive at that point as even judge silver noted this is a mixed mode to what extent i mean the other side's going to say yes that's true but it's only true as to that one district discussed in footnote well if that's so then they would have stopped in adopted the initial map and not continue to deviate from four percent to eight percent for the final map that initial map the draft map was a four percent deviation dr king their own expert said that this map complied with the voting rights act and yet they went after that and continued deviating in under populating districts to get to the eight point eight percent that included the machinations with district so if the only legitimate reason think that's why they said they kept going with the explanation that was made is that they're quote strengthening these districts by continuing to under populate districts because their consultant said oh that does help us get voting rights act preclearance approved that's with the explanation mitt but if their own experts said the original map they draft maps satisfy the voting rights act and the only reason to additionally depopulate these districts was to achieve a  further partisan skew which judge wakes chart demonstrates then that shows that partisanship was a very and i understand two of the members said that was not the primary motive but it certainly was a pervasive motive in the process by which these districts were drawn and our position is a very narrow one that we asked the court to hold is that partisanship does not justify deviating from one person one vote and that a mistaken belief that preclearance was necessary to under populate his certain districts also does not justify deviating from one person one vote where is the district in which or the state in which partisanship does not play a role in just what we think partisanship is always going to play  we we would say but there's an outer limit as certainly as is justice scalia noted a articulated will just issue will standard of one person one vote that's a rule that we can cabin the partisanship you can be partisan and we don't fault the commission for having partisan interests republican members democrat members even if this fifth member ended up being partisan interest for the democrats that's fine the problem here isn't that they had partisan motives as that they deviated from the ten percent you know to go from one percent to two percent or from two percent to three percent and then somebody can come in and say that's partisanship it means that every single plan will be up for grabs in every single place doesn't it i don't think it does in  eight answer would be it doesn't because in this case there were no other legitimate reasons to explain it if that is the reason and the only reason to deviate the only other legitimate reason to deviate from part from one person one vote