hear argument next this morning in case fourteen nine forty even well versus abbott mr concert mr chief justice and may it please the court this appeal present a fundamental question that question is whether the one person one vote will affords eligible voters any reasonable protection we submit that the answer must be us under this court's decisions and as a consequence appellant have stated a claim under the equal protection clause the district at issue here district wanted district for had deviations as measured by eligible voters approaching fifty percent under any metric of eligible voters no decision of this court has ever sustained both allusion of that magnitude under a one person one vote case equal representation of the population and we have now a half a century population that the population is the the legitimate standard we have never h to the contrary so we have the states overwhelmingly by have a century using population as shown in the census and now you're saying they can't do that and  question in three different ways first with respect to the phrase equal representation for equal numbers of people that sentence originated in westbury but that's only half the sentence there's a death and it continues therefore for us to hold that within the state legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a congressman than others would be unconstitutional and in fact in every time the court uses that phrase which is the only one i believe my friends rely on it is either within the same sentence or bracketed on one side or the other by protection of voters now as to tradition to actually to the word population we don't we see that as asking the question not answering it burns explains that reynolds use population without distinguishing burns itself reserved on the question hadley confirms that burns reserved on it and here we are today i thought i thought burns said it approved a deviation of from population but it with a tremendous military kemper a nation i rebrand as reserving on a completely to not choose one way or the other it certainly did say that you do not have to use the census to draw districts that supports our position it certainly says that you can protect eligible voters that supports our position and further back to your honest question about tradition if tradition were the rule maker would have come out the other way before baker for centuries geography was the basis and the court said and baker as a matter of jurisdiction and then in reynolds as a matter of of equal protection law that tradition doesn't trump the individual rights of a voter to be protected and we don't have to guess about that because we know from standing in all of those cases standing was predicated on the right of the voter it would be unusual if someone who couldn't vote came to this court and says said my one child for instance my one person one vote rights have been violated the problem is that what you're forgetting is the dual interest there is a voting interest but there's also a representation interest and it's that which has led us  to accept the total population base because states have to have some discretion to figure out who should be having the representational voice urns made it very clear that we were deferring to the state because it had a legitimate reason for its need and but burns was in the one nine hundred sixty s when we picked total population as a perfectly legitimate way because there's a representation will need at issue as well not just voting state has to be able to say i think just as the federal government did we're pretty the legislature is protecting not just voters it's protecting its citizens or non citizens the people who live there so i think it is clarify it's not really a representational interest that's being claimed on the other side they nonvoter will be thirty one senate districts in texas and nonvoter will have one representative under our rule and they will be one representative under there's it's an access claim that's being made that's what the guards opinion from the ninth circuit said and it's not even really an access claim it's a diminishing access claim that's how far from voting the interest on the other side goes is that if we have districts that are over populated with nonvoters we will have diminishing access to our representative we don't deny that access is an interest along with county lines along with other interests that the state can take into consideration and the ten percent framework allows for that this is not a situation where we are here complaining about a deviation of fifteen percent or ten point one percent we're complaining about a deviation of nearly fifty percent no interest such as diminishing access  raised by your position is why it would be the case that the constitution requires something with respect to want to portion meant that it prohibits with respect to another apportionment and intrastate district thing are fundamentally different concerned apportionment at the time of article one framing was focused on taxation issues on giving states autonomy with respect to voter qualifications and it was a real concern that's why was a cut the great compromise what the court held in reynolds as a matter of equal protection is that that compromise does not justify this kind of injury and we don't have to guess about this either and in reynolds alabama came to the court and said semi we surrender how about a plan that mirrors the house precisely every county gets one representative and the rest is done on a population basis not only on a population basis the precise formula used for the house of representatives reynolds has nothing using total population as permissive there's no doubt that reynolds thought in that case total population the court reynolds thought is permissible of course baker the tennessee constitution apportion unqualified voters and there was no suggestion in baker that that was an additional problem with the tennessee constitution but the fundamental issue has always been individual right and i think gray is the best case to show that great is about election for statewide offices so it can't be a representational issue there's going to be one governor that governors everyone is going to have the same access to that governor or not there are no districts and it gray is the case that establishes this will raise the case and says voters are entitle to an equal vote you can't marry up the representational interest of the sort on the other side with great doesn't it doesn't make any  sense we also know from with respect to a congressional district being as late as one nine hundred sixty nine in kirkpatrick the court assumed for purposes that case that missouri could district at the congressional level on the basis of eligible voters so i don't think it would be fair to say that this issue has somehow been clouded over decided by uses of the words population or using the census in prior cases and i'm sorry did i just understand you to say that you think that the house apportion congressional district inc and my point they may rely solely on westbrook as you know westbury for the proposition my point is the one nine hundred sixty nine the court flatly rejected westbury having the side of an issue there is no decision of the court that resolves this question is it is completely open and the only way to make sense of the one person one vote rule is to make it about eligible voters they're the ones who have standing they are the ones who can bring a claim they're the ones who are injured and not only is that our view in the case last year that was that was congress  for these purposes women they were not eligible voters anyway there was no question that was a problem there was there was an issue in the sixty's with minorities as well who were who were disenfranchised the court in reynolds at the time was representation in the state legislature for purposes of the of the equal protection clause the one person one vote will protect voters if disenfranchisement of women or minorities is an issue those cases could have been brought benchley that issue was resolved  by this country as was minority representation but the put the warren court and reynolds was accomplishing several things and equal weight for voters has to matter a non citizen or any other disenfranchised person would not have the ability the reynolds v syms does deal with equal protection and it didn't deal with instances in which voters and everything else were mallet portion i don't think the court really considered this but if you step back from the equal protection clause and say there are other parts of the constitution that in fact are relevant here maybe it's a republican form of government clause but the words the justice  are words about what kind of democracy people want and those words say if you look to other parts of the constitution such as those or republican form of government that what we actually want is the kind of democracy where people whether they choose to vote or whether they don't choose to vote are going to receive a proportionate representation in congress and if you take that as a constitutional principle that shows an objective of some of the clauses of the constitution then you have to retreat from the idea that the equal protection clause as interpreted in reynolds v sims solves this case and indeed it argues against you so to answer one is to argue that this is just on the other side is a guarantee clause claim i think shows just how far the logic has to go to come up with something on the other side of the ledger here this court has never in fact and baker and the court rejected the guarantee clause as a basis for hearing these cases to turn around now and turn one hundred eighty degrees so that a a somewhat abstract guarantee c and i'm not making it i meant i make it putting up her she didn't quote the guarantee clause maybe i shouldn't have thrown that in but it's the same point if i could but reynolds i think does speak to this because that exact theory would be the one that would  sustained the model that alabama brought to the court that that followed the house of representatives which does take account of these issues and even if just as even if you're correct that theory is correct that doesn't solve this case we have alleged in our complaint that texas could have done much more to to manage both representational equality as it's called and voting equality to get both within twenty percent to say that we have not say it that you don't have an extra to prove the court or ourselves to write this not for texas we want the texas legislature to do its job texas by state law was precluded from taking voter equality in id this practical possibility play into this discussion at all i mean the a c s which you posit is the way that you can find to the eligible voters are as if it has been i think almost decisively been proven as being inadequate  it only measure cities with populations or places with populations over sixty five thousand just on that ground alone there are going to be districts or can't rely on it i  it's flawed on many levels so we could take my assumption it's flawed practicality have any play in our decision i will take you something and then i will try to argue against it if you'll allow me but  practicality if the court were to hold that two different questions as the court explained in in kennett just recently to our burden to bring in evidence showing that total population the census didn't protect individual rights we believe at this stage we have alleged it so it has to be taken as true if we can't prove it then we have failed to meet our burden it would be a different question the court held yes the evidence you brought in is sufficient to show that your rights have been violated through the a c s data but not sufficient to draw a new map then i think the court is in a very unusual place where i think the answer is we're back to baker which would then become be the argument of the dissent in baker which is you have a violation but no traditionally manageable way to solve it so now we're back to political question but if i the only group it doesn't have is individual block group data and that it is rarely used for just routine that we're talking about here moreover we know the a c s date is good because it used in section two every day and not just for a vague and general purpose under stric under bartlet again strickland to bring a successful section to claim you have to show that you have a majority of the citizen voting age population in your district to get through the first factor for section two that means if there is fifty point one percent minority eligible voters in your district you can proceed if it's forty nine point nine percent you cannot this data is used to determine that question if it can do that in every circuit court in the country and in this cour opinions and and lulac and strickland supported using this data for that purpose if it can do that it can bring a deviation of forty seven percent to somewhere between ten and twenty and i want to leave this abstract if you look at the supplemental appendix the date is actually in the return to page box on supplemental appendix there's a column called seed and it lists all of the see that numbers for every texas senate district i would point out that sexist asked for these numbers to draw this map a you see that to draw this map if you pull those numbers and you look at district one it has five hundred fifty seven thousand people right next to that is the plus or minus with numbers it says six thousand seven hundred two that's the margin of  that's the margin of error for see about data so if you took all of those margins of error and used them against our position at every turn so for underpopulated district assume up for over populated district assume down assume at every turn against us and you ran the numbers it would move t deviation from forty seven percent to forty five percent this is not an issue about margin of error about data this is not an issue about the availability of data this data is used by every demographer to draw a statewide district court every t considered this issue and you know made a decision so senator howard who introduces the amendment on behalf of the joint committee that drafts it talks about these deliberations and he says the committee adopted numbers as the most just and satisfactory basis and that's the principle upon which the constitution itself was originally framed referring back to the original drafting and then he says numbers not voters numbers not property this is the theory of the constitution now this is the theory of the constitution as to one thing which is not the thing that you are talking about this is the theory of the constitution as to house a portion meant but again i go back to this question this is such a clear explicit choice that was made about what it meant to have equal representation with respect to that area and how you go from that being mandated to it being prohibited in the state context is something that i still can't quite work myself around just as harlan agree with you he did that's a good person to side but  was rejected eight one in reynolds because that exact argument was brought forth by alabama they presented a plan that was not only somewhat generally modeled on abortion in the standard it mirrored it exactly so i think there are reasons why that's not correct as a legal matter because a portion it was concerned with many other things they wanted the states to have taxation bases they wanted there was an issue with suffered for sure there was an issue with voter qualifications it was a complex federalis based sovereignty compromise that does not apply within a state i can't do any better i apologize than say it right over here you as to it does not apply i mean i guess i can i can understand i might not agree with but i can understand the position that says that the requirement might not apply but you are suggesting that we go beyond that and to say not only does the requirement not apply but that states have to do it the exact opposite way so enters we take our cue on that from the right that is supposed to be protected it all falls from the right and it starts with voting we start with the proposition that one person can't be given two votes while their neighbor be given one vote and from there the court moved in gray to say well you can't do it by calling it waiting under some sort of electoral college kind of model that's the same thing then the third step was you can accomplish that same invidious voter discrimination by drawing lines now if you accept all of that is true that i can't be given five votes in my neighbor be given one then it even if it follows from the apportionment model and you and you defend it on that basis if it causes that injury i have a claim and to say that i don't have a claim because  different constitutional provision protect the different right in a different way i hope we find that you know and not a statute satisfactory response beyond which reynolds itself rejects rejects the argument and turning back to section two for a moment congress agreed with our position congress relied on reynolds being a vote lucian case to an acceptance by not only in the center report that's been so widely used in those cases but in this court's opinions as well and perkins and in later cases the court has held that and in bold in both the plurality and justice marshall dissent said reynolds is about vote dilution and section two the same argument could be made just as kagan about section to section two only counts eligible voters no one argues that we're discriminating against nonvoters by not taking them into consideration if the court were to proceed with that kind of representational model we would have one rule that minorities get the benefit i think she's made the benefit of under section t age population or if they couldn't be registered voters in line with what we start with the proposition that burns said it's not the method by which you distribute legislators that count it's the distribution of legislators that count therefore as burns explains the state can really truly use any metric that adequately and fairly distributes legislators we think registered voters is not ordinarily going to be the right one for two reasons gray says those who hold the one person one vote right are those who meet the basic qualifications of voting so they are registered voters went to the trouble and then burns essentially doubles down on that argument by saying it depends upon political activity and we're drawing lines at essentially the beginning of the game we shouldn't make the right depending on who end up deciding to enter the fray and choose to vote so we think the data that we principally rely on the a c s measure of citizen voting age population is ordinarily going to be the fairest and most accurate measure but that's for the legislature decide when and when it reviews all this information and the texas legislature i think it's important to keep in mind when they drew this map they did everything that we're asking to be done here they took all of this data the total census data the citizenship data of the registered voter data the precinct data and they put it all into a computer and they drew their districts and they used our data to draw districts in this map they just used it to comply with section two and went and then closed their eyes and didn't want to look at the see what kind of deviation the cost for one person one vote or asking the legislature to do is open it did then it is sleep that they do it purposely well under one person one vote a deviation over ten percent as the court just recently we knew that and they intentionally decided to have deviations greater than ten percent that's what you're saying i don't think we can know will ever know because they were handcuffed by a state law there was an attorney general interpretation have we have plenty of case law that says you can have deviations greater than ten percent hawaii if you have a legitimate reason and so why would rep the great representational need that justice kagan was talking about now be an adequate reason we think it is a reason to go over ten percent that's we do not want the perfect to be the enemy of the good on this issue we understand that there's the latitude we are asking for nothing more than to bring them within the ten cues from those supposed texas and here we want children to be represented that's all children do they're not voters so if you take children out of it what's a deviation we haven't examined  children who are citizens when their parents are not which is fairly common in many areas and and when they become eligible voters they will move into this base so they're not counted for section two and i don't haven't heard any argument that section two discriminates against children  to reapportion the answer is no texas validly used federal census data to equalize total population states have done for decades and the framers of the equal protection clause excepted total population as a permissible a portion  of the fourteenth amendment as justice kagan said earlier why don't they use that under section two then in section two of the voting revoting rights as section two of the voting rights texas voters in our position unlike the united states his position is that only voters are protected under the voting rights act so in considering whether there is an opportunity to elect candidate of one's choice only voters would count for that inquiry indeed i'd willis is it is called one person one vote that seems to be designed to protect voters it does protect voters but there are multiple legitimate bases here on which a state can redistrict electoral equality as one of the representational equality is another if i can back out what we're dealing with here is the general equal protection clause test which it guards against invidious discrimination in the court  as noted before a mere disparate impact does not violate the constitution and so really the claim that's being alleged here is one of invidious vote dilution but texas by using total population as states have done for decades and no state today uses voter population did not invidiously target groups to cancel out their voting power or reduce their ability to elect representatives of their choice rather what texas was doing was making the legitimate choice to use representational equality which as this court cases have noted is a legitimate interest that the state can the count for in addition what the state cannot do is some merge the population principle and the words as reynolds held we can base a portion on geography we have to take account of population and we have done that there is no allegation here there are eight point zero four percent deviation of total population would not satisfy the courts one person one vote last we are required to use voter population there are at least two arguments that could support your position one is that it's one person one vote and what counts is giving each person an equal chance of affecting the outcome of the election but total population figures are a good enough proxy for eligible voters that's one possible argument and that's that's what the census measures and that's close enough another argument is that representation only quality is the real basis and therefore that's why you use population them so which argument are you making i don't believe we're making either of those arguments justice alito total population is not permissible because it tracks voter population at the same time while the court doesn't have to reach this question representational quality is not the only basis on which a state can redistrict it's our position that we could choose a reliable measure of voting eligible population without running afoul of the protection clauses guarantee against invidious discrimination and it seems to me that the two interests are not always consistent they can be in great conflict you can have a situation if you if you want to equalize population you may have a situation where you c great inequality in that the chances of any of voters affecting how come in the election on the other hand if you choose eligible voters only then you may have a situation where every person within two districts does not have an equal representation to find in some way in the legislature i don't think you can just say well it's you know we serve both what do you do when they come into conflict i believe with this court said in burns is you allow the states to choose the theory of representation and indeed the decision to include or exclude nonvoters burns said was left to the states because part of what this court's doctrine is recognize that states need leeway and that this is a core sovereign function it is part of the dignity of state sovereignty to be able to structure elections and want to when the state is choosing either representational or equality when the two are in tension that's not an illegitimate basis upon which to reapportion voter population is a permissible basis under the constitution i assume that is because there is is an ethical a good government of liberty interest in protecting these voters that that the valid interest correct correct well if in a case like this where there's a forty five percent deviation something of that order then why isn't texas require at that point to recognize that these interests that are legitimate under the constitution which are voter based should not be accommodated in so that you should at least give some consideration to this disparity that you have among voters well first off the court in gaffney upheld the use of total population while recognizing that there could there was in new york at least a different state a twenty nine percent deviation of voter population yet the court there said it was quite sure that a prime a face of case an invidious discrimination had not been made out and so while a state can and legitimately does consider both representational equality and electoral equality the equal protection clause is general language doesn't mandate that either must take precedence over the other so of course it would be legitimate for the state to look at that data at the same time and we have federal census data which is the most robust think justice leaders question is important is a table on page nine of the blue brief just looking at that table by inspection i don't know whether the truth whether this is true or and i thought the major difference between the two here is probably that some areas of the state there are a lot of people who are working and they have children i mean it can't all be explained on the basis of illegal immigration or something  just can't be given those numbers i don't think so and if we accept the principle that it's voter equality we are saying that the family to a certain age that has eight children or whatever is getting no representation for those other people are human beings and if we accept the opposite we have to put up with inequality of power of voters you have to you have to say the one or the other and you can take your position it's up to the state but i mean that seems to me to be what's actually behind the numbers that he's that are being quoted but i'm not sure so i'd like your justice prior i believe there's a difference between diminishing access to representatives and actually having representation the united states has said that if texas or another state reapportioned on the basis of overpopulation that nonvoters would be invisible to the system that's not right they would still be represented the issue is the state does a state have to have the same amount of constituents periphery senate and a state can do so it's a legitimate he sounds an awful lot with they had in seventeen fifty or something where the british parliament said well don't worry america you are represented by the people in england because after all they represent everybody in the british empire which is in those a simple are not being represented through somebody else's a little bit tof well for instance a child in my congressional district would still be represented by that member of congress so the issue is really diminishing access to the representative and while that's a legitimate basis for a state to reapportion on there's no equal protection principle that would elevate that as a rule of constitutional law that would say that the state of texas invidiously discriminated but why was submitted to the texas legislature which has a notice and comment procedure on this or to the district court that both of these could have been equalized within ten percent indeed there demographer didn't specify the extent of the deviations or demographer simply said well the deviations could be reduced if the court were to try to go down the road of requiring states to equalize within ten percent of a deviation both total and voter population states would inevitably have to disregard many other traditional redistricting factors like compactness continuity keeping communities together and that would be the opposite of what the court has said that states have in this context which is the leeway to structure their elections as part of a core function of their anyone written on this or any studies on this i don't know in the context of texas i don't believe so we're not aware of any and we're also not aware that this would be practically feasible and indeed if they had a plausible allegation that this was possible we would have expected to see a demonstrative map at this phase of the litigation and you have any idea how often this is a problem i mean it is a case of course run the country people use the total population and it it seems to me that there will be a lot of areas where in terms of the actual numbers it's not going to make a difference do you have any idea i believe new york amec its brief suggests that in places such as california alaska possibly new york certainly new york city the issue will absolutely come up however even only in only in those particular handful of there's a few more examine the hospitality when they're not in it by no means with this necessarily be a problem everywhere however if there were a rule that is state had to consider voter population that would change the nature of redistricting but what if it were you have the same minor or de minimus deviation allowed there in other words if you're within the deviation total population and boomer population was within under ten percent does that take care of many of the areas where it's a problem well mr chief justice for the for the reasons i just suggested to justice kennedy i believe that would be quite an  burden and change the nature of redistricting could there possibly be a situation out there in which a plan might be able to get within a ten percent deviation of total population and a ten percent deviation of the five year rolling average sampling in the american community survey maybe i'm not aware of any such scenario and to back out to first principles i don't believe that would be a test of invidious discrimination that would be moving much further in the direction of a disparate impact like test that the court has never fashioned to determine whether someone's voting power is being cancelled out or is fenced out of the political process if you explain why the a c s your adversary says a c s is fine it's used in section two and section five why would it be inappropriate to use it in in deciding the impact on an equal footing analysis well our position is that if the a c s data is reliable enough to hold the state liable under section two of the voting rights act it would also be reliable enough to use an apportionment and there could be issues about the granularity of the data for instance the five year averages we do get census block level which is about five to six hundred to three thousand people the smaller you would get for district levels depending on if you are a city plan as opposed to our state senate plan there may be issues where you couldn't use the data to get within the ten percent deviation but certainly in larger districts like the texas state senate plan you could use the five year see that data and you could do that to get within the ten percent deviation of course we're not constitutionally compelled to because as the court recognized in burns that is up to the states in choosing a legitimate population basis if i can briefly address the united states as argument on section two of the voting rights act we disagree on this point section two the voting rights act does not protect nonvoters and earlier when we discussed section two i'd like to return to that site to the court the personally amakosa proof of page twenty six because i believe this cuts against the united states as theory  section two personally brief says if the minority group has very low rates of citizenship then the redistricting plan is not to blame for their lack of representation rather their lack of sufficient voters is so the united states suggestion that there could be packing were cracking claims of communities that have nothing to do with packing or cracking voting blocks that is an incorrect interpretation of section two it is not consonant with the tax and would render section two unconstitutional is not can ruin proportional with the right to vote that is being protected the court has no further questions thank you mr chief justice thank you general  mr chief justice and may it please the court redistricting on the basis of total population as texas did here vindicates the principle of equal representation for equal numbers of people that is at the heart of reynolds and westbury we must agree that texas was not required to redistrict on the basis of some as yet undefined measure of voter population however we disagree that the court should go on to decide that texas is free in the future to redistrict on the basis of some measure of population population if it so chooses there are in our view at least four reasons why voter population cannot be required first is the one mentioned by justice kagan we think it would be a very odd interpretation to say that the constitution for bids for state legislative redistricting what it requires for congressional redistricting second is the very long history of states work states redistricting on a basis other than other than voter population at the time of the framing of the fourteenth amendment there were the vast majority of states  redistricted on other than voter population in the wake of the fourteenth amendment congress and the apportionment acts are required district thing on the basis of inhabitants and of course over the last fifty years states have unanimously districted on the basis of total population not voter population third is this it is are the data problems and they are real the a c s data has a number of limitations first of all it is not constitutionally required unlike the census it would be very odd we think for the court to demand as a constitutional standard data that does not even have to be collected second it does not measure what the appellate the plaintiffs suggest is required it is not a measure of  citizen voting age population data for example does not include felons it does not include overseas voters it does not include the mentally ill that kind of data just doesn't exist and third with respect to the data pay going up on justice sotomayor is a point the timely basis the census data comes out for example in april twenty twenty one the a c s data the five year average comes out in december and it has data from two thousand and sixteen going forward and yes it's often used for section two your honor it's used for a very different purpose with respect to section two in section two it is used as one factor among many to determine whether electoral opportunity has been good has been given that so it's used along with with population data voting data turnout data a whole variety of socioeconomic factors that's very different than this court saying every state and thousands of local jurisdictions to out the country have to use that data as the sole measure for redistricting i'd like to then pick up on justice kennedy's question can i ask you this who has standing to bring reynolds versus some schooling is it anybody who is counted in the census so your honor that's a question this court noted unreserved in baker v current put no twenty three and it's a question that this court has never had to resolve in the context of westbury which of going to tell me who are standing or not yes your honor we think that it is we think that the the better understanding is that nonvoter would have standing but i here's why i don't think it matters because you can view our position as through either l representational rand lens in which what's happening is that the reynolds we sin is right is a way to ensure that all persons covered by the equal protection clause who can't even those who cannot cast a ballot still have a voice in representation that includes everybody who  counted in the census yes your honor but let me say it includes aliens and includes prisoners and you include undocumented let me explain why i don't think it's necessary or doesn't include all those groups i'm sorry or does it include members of all of those groups so we think it might but we don't think that you have to agree with that to rule in our way because we do think that the right at reynolds is also viewed as we said on page fourteen of our brief and we think this is important as a voter right the way to think about this as reynolds did was to view this as a right consistent with the way reynolds thought about it was to say that when you have twice the representatives in twice the the inhabitants in a district you get half the vote what randall said picking up on plaintiff councils position was that of course it would violate the constitution to count somebody vote as two or five or ten times but then what it said in the next sentence of course the effect of state legislative districts in schemes which give the same number of representatives to an equal number of constituents is identical that is exactly the point we're making here and if i could pick up then on justice kennedy's in the chief justice is point about why can't you do both the reason is very much and we agree with general kelly that the problem with doing both is that it largely eliminates a state's flexibility to deal with the traditional redistricting factors what you are forced to do is take a large for example anglo population in one part of the state that has high citizenship rates and parent with the situation where it has  with with populations that have low citizenship rates in another part of the state or to take an example from the amicus briefs manhattan has nine percent children brooklyn has thirty percent if you have to do both what you're doing is pairing people from the front part of manhattan and pairing them with part of the voters in brooklyn what ends up happening is to do both at the level of ten percent is to eliminate a state's ability to take into account things like political subdivisions to take into account compactness and all of the other things that this court has said is critical in redistricting as to the chief justice's question about whether this is a big deal or not but whether it's a big deal and really whether would have a large practical effect soon that's a big deal that's why we're here as to whether it would have a large practical effect i think the answer to that is yes what we're talking about is not just fifty states but thousands of jurisdictions around the country local jurisdictions none of whom use voter population as a measure for redistricting what the amicus brief show is this is not just a situation in which things are affected states are affected where there are citizen ship differences between citizens and non citizens but the children actually are a critical part of it it's not just that manhattan is nine percent in brooklyn it's thirty percent children in texas the counties range the amicus briefs suggest from nine percent in some counties to thirty five percent in other counties in alaska the difference between rural and urban is twenty percent children in some and thirty percent seven percent in another this is an issue that is going to affect states and local jurisdictions throughout the country and local jurisdictions to be clear don't have the data at the level and at the level in which this court would now be requiring as a constitutional matter now i'd like to pick up on one other point that plaintiffs counsel raise which is that in his view it's quite unclear as to what westbury actually holds we think that that is really a fundamental misreading of west ry what westbury said was the whole point of westbury was that that the method of apportioning or allocating representatives to the states had to be the same as the met that for allocating within districts in a state that was the reason said was that the great compromise had to be reflected into into redistricting that principle in westbury was exactly the principle that then the court adopted in reynolds what what the court s reynolds it was wesbury clearly established the fundamental principle of representative government this country is one of equal representation for equal numbers of people without regard to race sex economic status or place of residence within the state so is precisely that same principle from westbury which looked at the looked at the looked at the framing and looked at the discussion of calculation of representatives at the framing which looked at the drafting of the fourteenth amendment and took that history translated meant that voters are irrelevant so your honor i don't think our argument is that voters are relevant and first of all so a couple of points in that first of course the question here is when texas has chosen to use total population is that permissible and we think that clearly is second we don't think voters are relevant for the reasons that i've said the represent what reynolds did was and the reynolds line of cases was to use total population to vindicate the voters right it is a voter's right because reynolds understood that when you have the inhabitants in the district you have half the vote you have to voice before your representative and what would you say you have a stream case on your time is going to expire an extreme case and maybe this would never come up but what if it did suppose you have a district with a you have a rural district  and suppose it's a state where the total number of the total population per district is is fairly small ever world district with a huge prison and very few other inhabitants so you and you have a neighboring district that has no prison so in one district you have that ten percent of the population are eligible voters and the other district ninety percent of the population are eligible voters that would be ok so you're under two points in response first this court has recognized and we don't dispute that census data isn't the sole data a state can and this court approved it in mohan make adjustments to census data to more accurately capture actual residence in the state we think that's what has been happening in hawaii and that's what mohan said remember in mohan what the state had done with virginia had done was count all of the navy personnel as home ported which is what the census had done and the court said you have to make an adjustment to that thank you your honor thank you council on mr constable you have four minutes remaining thank you just prior to your question about representation of children if that were the principal or reynolds again since in a statewide election a state could give five votes to a family of five and one vote to an individual that was i'm just thinking that i'd like to know before knowing with this is mandatory or not your position i'd like to know an awful lot more than i know about who these people are who are being represented on the representational theory and who are not being represented on the voter theory in each and i don't know who they are from the briefs and therefore it's pretty tough for me that the data shows that it's a mix of non citizens children all the categories disenfranchised now and it's a mix there are children involved of course but our point is more fundamental if we go immigrants some who have not the state has chosen not to allow to vote the state can solve the problem themselves the states can enfranchise these people and give them the vote the states come here to say we do not want them to vote but we want them to count for district and that should be rejected by this court second quite accurate for  for most states that too many they disenfranchise people prisoners except for those who come from that look out which is quite rational most states disenfranchise the mentally ill  so how are they going to decide who else are they going to disenfranchise i'm not suggesting we're not suggesting this we should choose for the state who they allow to vote we are we are arguing that we should not allow the states to come to this court and argue that they should get the benefit of them counting when they make the choice that is their right to disenfranchise them you cannot disconnect this war from voting and allow to stand up the whole thing collapses westbury has the famous sentence now that says all other rights are a loser e if the right to vote is taken away that's the authors of that sentence would be surprised to learn that the one person one vote rule has literally nothing to do with voting that you could have a system that crowds in thirty one senate districts all eligible voters but thirty thirty of them into one and give each other person their own district that plan would be sustainable absent some evidence of racial or political discrimination the state comes in to say we know we can't do it but we'll never try that's not how one person one vote works the state by state law may force themselves not to try this by saying they weren't allowed to if they were told by this court that they could at least to your point justice kennedy do both they would go back to the drawing board and try if they failed they may win that case we suspect and we have alleged it must be taken as true that they can do both i just can't it will not be traditional interest like district ng or county lines or anything like that will be that one hit them it is political and racial gerrymandering that they want to do and that our will and especially a will balancing both will stop them and we don't know that abstractly we know that from the case the court heard just before us district the the actual deviations in arizona it's a hypothetical case they are claiming it's an eight percent deviation on page twenty six of their own jurisdictional statement they can see that the see that deviations are fifty four percent and in district eight the district mostly at issue is under populated by twenty two percent if arizona had to go back to the drawing board with their district commission and accommodate at least voter but at least or maybe both there would be no opportunity to engage in the political and racial gerrymandering that has come to dominate the redistricting process that would not involve the court in those issues anymore they would be solved legislatively as they should section two does not baseline is equal voting power of voters absent discrimination it completely unravels thank you counsel the case is submitted