your argument first this morning in case fifteen six eighty but soon hill versus the project a state board of elections mr elias mr chief justice and may please the court the district court created out of whole cloth a new legal standard that permitted virginia to apply a one size fits all fifty five percent racial floor to all twelve of its predominantly black districts virginia applied this fifty five percent rule to move voters in move out of districts on the basis of race were guard lists of the differences in voting patterns geography demographics or the actual interests of black voters in each of those districts this actual conflict test which the d c which i'm sorry which the district court invented for predominance has no basis in this court's jurisprudence instead it confers a sort of judicial immunity to visually appealing districts that nevertheless we're drawn with the predominant purpose of placing voters within and without based solely on the color of their skin i'm not quite sure i understand assess predominance which i think is the challenge here and to take a hypothetical let's say you're trying to select people for a particular board or something and you say they have to come from  city with more than five hundred thousand people absolutely and then you say and they have to come from such a city in california can't be anywhere else now which is the predominant factor population center and you would look at the state of california as the predominant factor because it is the criteria to which all others must yield and in this well how do you know that i mean it seems to me that the five hundred thousand is the criteria which to which all others might yield in in in that hypothetical each of them might be an unyielding criteria in this case there was only one well no i know that's why i'm looking and that's why this is called a hypothetical because it's not about the particular case but i obviously what i'm trying to highlight is predominant means one that dominates over all the others and it's easy to imagine situations where you cannot say that one dominates over all the others i think so what do you do in a situation like that i think i understand your question in that case neither criterion would predominate because in fact neither one controls the other and in that case we would not have met our burden of predominance and as a result we would we wouldn't get to the second or strict scrutiny where you have one criterion oh then you can fairly say there was predominant speak well if you're still you're trying to figure out which which predominates and i think this is where the inquiry or the test that you challenge comes from one way to tell which is the predominant is to see if they conflict and if they conflict then how do you resolve it and whatever trumps the other that's the predominant one that there are that is one way that evidences a deuced to get home and predominance but it is not the only way if in fact you use your hypothetical the legislature of california let's assume that they are the one setting these criteria sets are predominant factor the can the dominant and controlling factor is that it has to come from the state of california the fact that it may also come from a the members may also come from a city with more than five hundred thousand members doesn't mean that the first criteria didn't predominate we know it because the legislature told us this is the dominant this is the dominant criteria and what if the i'm sorry finish and that's what this is that's what happened that's the what if the legislature says look we want to follow all the traditional district to apply all the traditional district in factors however one thing that we absolutely do not want is to be held to a violated section five or section two of the voting rights act so we have these twelve majority african american districts and we don't want to do anything to them that results in liability under the voting rights act is that predominance it is predominant if race was the it was the controlling factor in that could not yield in the drawing of the districts now it may very well be that when the court then completes its inquiry there would be a strong basis in evidence  that drawing the districts that way was to comply with a good faith the understanding of the voting rights act and then the state with in this case though what the state did is it started with and i don't really understand the answer to the question of the courts if the state says the one thing we absolutely do not want is to be found to violate the voting rights act that is not pretty that can that is not necessarily predominance in your view that is not necessarily predominance it is when that is taught because there are any number of ways to comply with the voting rights act that do not require race to be the dominant and controlling factor a factor for example you can you have any number of districts i would hazard to guess and it is only a guess a majority of the districts in this country that are drawn by legislatures that are majority minority where they start with traditional reduced from criteria and the district is over fifty percent or over whatever the applicable threshold is and they never need t which i had hoped would in these cases in this cord which it certainly doesn't seem to have done but if you make the comparison it isn't enough i don't think for you to say that they just saw some traditional factors and they didn't take into account other evidence that they were using race predominately well if you look at the other evidence on page twelve seventy one you know the west thing it was pretty strong evidence they had fifteen thousand seven hundred eighty five new voters and of those precisely twelve were white right now is there and when you looked at their use of the factors of the traditional factors they were pretty irrelevant right now makes a point of that in the opinion and that's meant to guide the district judges and so what what's the equivalent here what's the equivalent if zooming he didn't say exactly the right words no one can say exactly the right words what's his mistake his mistake is setting an arbitrary threshold at fifty five percent you know what is the evidence that you say would show that in fact they did use race what's your strongest one or two pieces of evidence i think you saw the seventy fifteen thousand seven hundred eighty five that's pretty strong i think if you look at district seventy one what you find if this is an inner city just to orient to the court this is an inner city district at the core of which and this is a district that had a forty six point three percent to be them and because of the fifty five percent rule that had been set out and there's really no dispute the tribe the district court agrees that it that that was a rule that guided the drawing of districts all of the districts as a result of that rule we what you see is a racial gerrymander you see that that district went from forty six point three to fifty five point three by a sensually rating every other district around the essentially the suburbs in the ex urbs raiding those districts and bringing black voters in notwithstanding the fact that it was a classic crossover district it was in district in which essentially white liberals in who had moved to the city were voting in harmony what was the number roughly of the new people in the district how many are black how many white of the people who were moved out of the district how many were black how many were white approximate they they i don't have the precise number that were moved in and out but there were a significant number in there in the many thousands of voters who were moved in and many thousands who were moved out significant a number matters because after all the that was the key factor in swan right and i think how do i find that i think it's on and it's in the joint appendix on sixty nine has the has the movements i just as i stand here i don't know that but it's for all told districts but it is a significant number it's not it's not two we're ten or even a hundred it's several thousand in a district that is only i found what i wanted to know i just want to know where to look mr eyes can i make sure i understand what's your view let's let's the policy here says fifty five percent  and it says that across the board as to each of these twelve distress and it says effectively this is the most important criteria in the sense that it will trump other things all right  so but as i understand your argument you're not resting your case on that fact alone is that correct that is correct and why is that when would such when would such a policy not have the requisite impact on a voting district right justice kagan i think this gets actually to justice briar's exact point if if you had a district where it had no impact it actually didn't cause voters to be moved in significant numbers then  then we agree with with the sister general's office and this court in alabama that if a significant number of voters are not moved as a result of that racial threshold then then structurally is not triggered so we really are looking to what justice pryor suggested which is where we're looking to the movement of voters in an alley of a particular district yes and i don't think that that is at it in dispute we will hear from my colleague and maybe i'll be surprised but i don't think that's the i think that the issue here is the legal error that was that was committed by the district court in saying that if we find a district that looks like it abided by traditional district criteria that's the end of the under the trial court's test a the legislature of virginia could say say we want to corral all of the african americans we can because we think they all voted alike and we don't want them infecting the neighboring districts and so we want to get seventy percent of them into a district and if lo and behold they then draw a circle right a visually the most compact district you can under judge paine's opinion below they're quoting on page eight of their brief in the vast majority of cases a conflict may be necessary evidence to establish established racial predominance i think that that overstates it slightly i'm not sure that i would say in the vast majority of cases in many cases you're going to have a correlation i agree with the solicitor general what even if you're saying not in the vast majority but in the majority or why is that based on your answer justice kagan why is it that you're almost almost always or vast majority for the s g or something less than that in your i think the reason is because in the real world the way in which population distributes you're going to need to create bizarre districts in many instances in many parts of the country you're going to need to have this really unappealing districts in order to conduct what is essentially a shock violation but that's the reason i put you to richmond is that richmond is exactly the instance of a place where that's not going to be necessary because you do have a crossover district you have a district where you have white college students and white young professionals moving into an urban prior urban center voting in harmony and reinforcing with the african american population in that  area so it won't necessarily be visually bizarre but it is nevertheless the destruction of the crossover district to create a fifty five percent for the sake of fifty five percent is is not going to be even  said that for a reason we haven't said just the use of race is wrong we've said it has to predominate correct you know and my problem with your argument here if you want to go on the what the district court said there which you may be right but this is such a complicated area that it's the easiest thing in the world to go through a district court lengthy opinion and to find a sentence that's not exactly right i think that's why it seems to me if we're going to have  ever have to strip thing done back in the legislatures rather than in the courts you've got to prove your case that not only did what he say was wrong but it mattered with pretty strong evidence i agree i agree justice pryor i b but i make two points in response number one this was not a stray sentence this is the in every one of those hundred plus pages this is the test he applies over and over and over again you look at the page one o fifteen and he there is a just which is a discussion of this just the same richmond district and read that analysis and he says well it's visually appealing therefore we don't need to we don't need to address it and by the way district courts we should be in the business of assessing credibility between witnesses we should be in the business of as us incredibly between between two legislators because after all it's visually appealing and why would we want to do that this was right through the opinion not an isolated statement it was his holding that where traditional were district principles can explain can explain then we don't need to actually look at other evidence of what the real motive was and that error is not something that comes up over and over and over again not genuinely in dispute as to what was going on in that district but i think it can be reversed but it's kind of because it's kind of hard to do it just with respect to one isn't it because that means ok you can't pull these voters in so you know push them back and now it's in the other district  an issue i think mr chief justice that's a that's a fair point i think if you look at the map what you'll see is we're actually talking about four geographic pockets there is a richmond pocket of districts there is a south side virginia which is up against the border of north carolina there are two districts then there is a lower hampton roads and an upper hampton roads and each of those pockets really don't impact the other so yes i agree with you in general that would and really the district next to it's a but i but i understand the point and it's and it's a fair one and in that sense remand would not be an unreasonable step to take to apply it correctly just because i can understand your sense of the relative strength of your arguments if we did remain and say this is the wrong standard go apply the right standard and and that was done fairly where do you think he would have to change his view where do you think that there would be a question and where do you think the same result would probably up to and so i'd like to say that with the there would be new result everywhere but to answer your question fairly as i try to always do i think in the richmond area there is no question that a fair application of the standard with the would lead to a new district and in i'm sorry in the richmond area which are district seventy one sixty nine seventy and seventy four i think there is no question that it would lead to a new it would lead to a different map a different result i think in the south side of virginia which is two districts seventy five and sixty three this was a curious one because he actually found race did predominate in seventy five by splitting didn't we didn't county didn't we didn't county being a border county of north carolina on a validly racial grounds but yet did not find race predominated with respect to sixty three it's difficult to understand how race could have predominated in the racial division of voters on one side of the line but not predominate in the racial division of voters but the other has to seventy five did he not say that strict scrutiny was met because other legitimate and and conventional factors were considered and were present he did find years to be that seventy five years this is the strongest case for the district where i think seventy five is the strongest case in the sense that the application of the wrong legal test he still found that we met that we met our burden of predominance i think it is a weak finding on the part of the district court in this regard your honor if you look at what the actual evidence was to meet the strong base that evidence because once once we found once predominance was found and strict scrutiny applied now the burden shifted to the government to explain why that a strong base in evidence in doing what they did their strong base of evidence was the following number one that the elected official felt like she would want more she needed more african american their district while with all due respect to delegate tyler most incumbents feel like they would like more voters in their district  who who are going to support them and that's not a that's not that that can't be a strong base in other words the second is they alluded to the fact that there were prisons in the district and this is interesting because this was your honor exactly the kind of racial stereotyping that the voting rights act is intended to avoid there is nothing in the record as to the racial demographics of those persons there is nothing to believe that those persons included or excluded raise or lower the overall black voting age population of the district they assumed that if a person had eight thousand people it had a thousand black people and that is that is exactly the kind of racial stereotyping that cannot form the basis wasn't there a primary in two thousand and five in that district where representative tyler won over a weight candidate by less than three hundred votes yes your honor i'm glad you raised because that's the third one and that is the most important one let us take a step back because it's interesting they say he won by more than she won by more than by by only three hundred votes the districts were drawn in two thousand and in in truth following a two thousand in two thousand one primary and in that open primary delegate taylor won by five percentage points now what's interesting is that three hundred votes is five percentage points this was a six thousand vote primary half percentage points in the general in the general so what happened next is that the incumbent who had retired whose son had run against her in the primary who she had beaten he then endorses the republican opponent so you have this longtime incumbent who endorses the republican opponent and she wins by one point three percent of the vote but these are these districts are going to last for a decade are they not correct and there's no guarantee that the same candidates are going to be running throughout that decade i agree so you think they have to take into account this very complicated analysis well that was that person is an incumbent and therefore is going to have the incumbents advantage and you know you're i'm saying the complete opposite i'm saying that it two thousand one two thousand three two thousand and seven two thousand and nine this was this performed without a close election in two thousand and five the primary was not close it was a five point election so that leaves us one election which was the two thousand five general where she won by one point three percent of the vote which you're saying essentially is idiosyncratic it's an idiosyncratic one election but also this court has never said that it is a guarantee that they will win it is in fact in jingles itself there a statement that it is not a guarantee that no one election control i mean that gets to an interesting point what to what what degree of confidence that it will remain a mage are at a majority minority districts is necessary to have a strong basis  mr chief justice and may have pleased the court that the district court was right to hold that the use of a racial target is not sufficient to trigger a stricter but it was wrong to hold that a conflict with traditional or district in princip is an essential element of a racial gerrymandering claim on the use of racial target their court cases have drawn a distinction between the use of race as a factor and the predominant use of race in drawing district lines and the use of a racial target shows that race was used but as the court explained in alabama the when the  question is whether it was predominantly used and as to that evidence that a racial target is used is evidence but not conclusive proof to take one example that i think you asked for  e if a district starts out seventy five percent black voting age population before it's redistricted and that's based on the general demographic patterns and then the target a set don't drop below fifty percent then it's just not the case that district lines that are then drawn to bring the district into compliance with one person one vote are necessarily going to be based predominantly on race rather than traditional destructing principles and if a racial target was alone sufficient to trigger strict scrutiny it would deprive the states of the flexibility that they need to comply with the voting rights act still i mean maybe i missed your you're saying if it was seventy five and it's down to fifty that does not necessarily mean you know i did not say that i said if the target was that it shouldn't go below fifty not that the target was it had to get to fifty so it's at seventy five and they say what we're going to do we draw this is not get below fifty right and so they could end up anywhere between seventy and fifty so it's just they could end up right at seventy or sixty five or sixty or at wherever there is in between so it's just not necessarily the case that the use of a target may have had little or nothing to do i target that that's that's so low at fifty percent when you started up here at seventy five that most of the lines that you're drawing are  probably likely to be drawn based predominantly on traditional districting factors it's just not necessarily the case that you're going to have to predominantly race because no matter what you do so you're going to end up above fifty percent are those the only kind of districts where you would say that a target would not have an impact on district lines in other words where the district has a population that's so far above the target that nothing that they're doing on the margins is affected by the target are those the only kind no i would not say that because i would say districts for example like in this case where you start at sixty on there is rose no reason necessarily to think that race is going to predominate in order to bring the districts in into compliance with the voting rights act they started out at sixty and let's assume based on traditional redistricting factors and not on race there's no reason that it couldn't end up on at sixty for the same reasons well if you started it fifty three and you brought it up to fifty five i guess i'm with you on there it doesn't necessarily you would need more evidence than that now the one that race is the biggest or evidence of what that well so so the most important alito would be a conflict with traditional redistricting principles and if you could establish that and and that it went up to that degree and it affected a substantial number of voters then i think you could make out what if they said well we're at fifty three we have a fifty five percent floor we want to bring this up to fifty five and we can do that by drawing a district that's even more compact in the district that we had before so it would merely speaking it's going to be very difficult to show that race predominated without showing a conflict with traditional redistricting principles but there's no hard and fast rule that says that prevents a plaintiff when ryan can you what would be a case in which that might be  possible and i don't see a radically possible but you can imagine it happening so i can we have two examples in our brief and most of the cases i can think on of are variations of those so the first relies on direct evidence from the mapmaker himself and the second is where the state's non rational racial explanation is discredited by the evidence to be more concrete if you have ten to tens of thousands of predominately white voters moved out tens of thousands of example that i would get from the brief is that the state says politics is what explains that and then you look at the evidence and they used racial data rather than political data then a finding of racial predominance could be made even if politics is also playing a role and there's no conflict with politics in the drawing of there's no way lines and maybe there's no way around this but this is all as you as you lay it out very very complicated and the state legislature there has to  redistrict a huge a large number of districts in a short amount of time using a very multi factor vague predominant standard and if it turns out that there is predominance what when they will be deemed to have had a strong basis in evidence that there would be a voting rights act claim is also quite unclear so it's just maybe there's no way around it but it isn't this just an invitation for litigation in every one of these instances so we're very sympathetic to the interests of the state and being able to comply with the voting rights act while simultaneously pursuing its traditional redistricting policies and in fact we proposed a version of the conflict case test to the court in miller but we read miller and shaw too to have rejected this conflict requirement and instead to replace it to what as you said is a complicated to house about weight whether race predominated in the drawing of district lines even if traditional factors also played a role is it still the offices position that it would be preferable to have the task that was adopted by the district court here requiring conflict before you find that race predominated so putting aside the question of whether it would you would overruling the court's decisions yes except that we wouldn't want that to bleed over into racial vote dilution claims so so your objection of the court below is that it required a conflict correct and in your brief you say in the vast majority of your words of cases you will need to show a conflict correct and you think showing a show in the alabama case certainly what i tried to do changing what my position had been previously in order to get a court that would have a clear set of standards on page twelve seventy one there are two paragraphs that address the issue you're talking about and big should virtually say what you said and then at the end to deal with the problem you are you're raising we say that it has to be a strong basis in evidence that's because you don't want to put the district court in a position in the legislature to do the impossible right so he tries to do that that is the decision of the court i had thought that having done that there would be lots of lower courts that would rely on that decision is it a good idea now suddenly to change and go to some different test no i'm i'm not saying you should go to a different cast i think that the star decisis considerations are what they are on the court's alabama approach is the right approach but under that approach our justice prior you did not say that it's an essential to show a conflict was a correct exactly the dominant and then it has the two paragraphs i talked about which are meant to illustrate what that predominance means and they're pretty much what i think pretty much what you said yes we would agree with that pretty much what is it what is it what is it that you said i think that what we said but i think what we said are two things one that there  simply because you use a racial target you're not in strict scrutiny and that's from alabama into a conflict is not essential to prove a claim but three there has to be some pretty strong evidence besides just the use of the racial target to put you in strict scrutiny and so yes mr mr going to in the same question that i asked mr elias if we did vacate this on the grounds that that's the correct standard what you just said and that is not the standard that the district court used what do you think would happen you know if if the standard that you just stated was fairly applied would anything change so we have only done our close three districts as you can see from our brief and in in two of those three districts we thought there was a pretty strong case but not one where we could say it definitely would come out one one way or the other but a strong case that it would change it which wouldn't and those districts are those are seventy one and ninety five thank you coun mr clement mr chief justice in may it please the court the two thousand and eleven redistricting of the virginia house of delegates was a bipartisan success story there was wide agreement that the twelve majority minority districts that existed in the benchmark plan should be preserved and there was a consensus on the bipartisan privileges in elections committee that a fifty five percent be vapid level was the appropriate level to ensure that african american candidates in those twelve districts had an opportunity to elect the candidates to let the candidates of their choice how with the fifty five percent arrived in fifty five percent the testimony in the record justice ginsburg shows that was arrived at by the members of the bipartisan privileges in election committee it was principally done by the principal architect of the play and delegate chris jones by talking to members of the public and members of particularly the african american caucus and they  testified that based on their knowledge of their districts that african american voters did not vote in the same numbers as that as as as white voters therefore to simply have fifty percent mr clement that the the fifty five percent was based on a single district seventy five and that they said ok we've looked at seventy five you need fifty five percent there and then it was applied across the board to every other majority minority district without any granular analysis i don't think the record would support that characterization of the evidence justice kagan i think it was certainly based predominantly on h d seventy five but it was also based on the testimony of delegate dance who is from three from district sixty three she testified as well that it has to be north of fifty percent it was also done in consultation with delegates rule who's to delegate from district seventy seven and it was based on not just the demographics in h d seventy five that was essentially the starting point but also based on the characterizations of the districts and the voting tend to isn't there something a bit strange about this kind of rule and it's not to say that this kind of rule is the end on beale you might be that you can have this rule and still be absolutely fine in the way that mr grinstein suggested but the idea that you would look at twelve districts and say that every single one of them wants to meet the same standard without looking at the characteristics of those districts who's in them how they vote  i mean it just sort of defies belief that you could pick a number and say that applies with respect to every minority a minority district well just as kagan i think that maybe if you were picking one number for every district in th state from big stone gap to arlington maybe that would be the case and if you're trying to apply one number to latino districts in one part of the state and african american districts in another part of the state you might have a point but although these are twelve districts and there are four sub regions these are all pretty much in the same part of the state they all started on a benchmark map as somewhere between forty six and about sixty two percent for starting so it's not like this number comes out of thin air with respect to nine of the twelve districts there but already north of fifty five percent and between like fifty five and sixty two two of the other ones are very close to fifty four in fifty three and then one is a little bit lower like forty six which is district seventy one which i hope will get a chance to talk about because there there is very strong evidence that the redrawing was not done solely on the let's talk about the one sure no i have a particular question and so they won't remember what i was trying to do sure these in alabama the court cases at that moment pre alabama i am one of the problems ok so i am trying to reflect what is actually there in miller for better or for worse and to make it clear or the column i've referred to talks really about evidence showing predominance does it or doesn't it and there are two things there that are crucial in that i think in those two paragraphs one there was direct evidence that they moved seventy or fifty thousand fifteen thousand people are all black ok too when you look at the three districts in traditional criteria they're pretty weak as applicable to that case  c not have a trial and to what they're talking about right now let's look at seventy one same kind of thing they're arguing same kind of thing they moved i don't know you have it in yesterday's brief too they moved eleven thousand to ninety three people out and seventeen thousand in so let's look at those people the ones they moved outward three quarters or something white and the ones they moved in were three quarters or something black so that's pretty similar it seems to me they paid a lot of attention to race then they say let's look at the traditional criteria the one they mentioned which is this horn thing they said that they they did it to keep it preserved richmond centered but it already changed it so it wasn't richmond centered at all and there changes had nothing to do with it so what they're saying is in that case look at that specificity and you will see that the mistake of the judge in listing the criteria you know his statement overly broad or whatever made a difference send it back get him to do it right now that's a long question but that's designed to focus and i'm glad to be focused on district seventy one because what the district court did is not apply any sort of cartoonish analysis he looked at the district it's drawn the first thing he noticed is that it preserves seventy eight percent of the poor of the district which is higher than the statewide average of seventy percent so you have the core of the district  being preserved which is a traditional district in principle he then looks at those horns and he looks at them and he doesn't just look at them and say well they look a little funny he has direct testimony from delegate jones who drew the district and he realizes that the horns were drawn in order to preserve an incumbent in the neighboring district so that that incumbent could stay in her district he then looks at precinct two zero seven where he says he doesn't want to get into conflicting testimony between two to two delegates and what he says i think absolutely correctly is this is a contiguous precinct it's two zero seven it's right on the border so whether it's in or out it conforms with traditional district and suppose you have two districts or two possible districts each of them will convention each of them are conventional in the same sense that you've been describing these multiple factors but the stated reason the stipulated reason for choosing district over district b is because it has more voters of a certain race black latino white whatever is that a predominant motive based on race but i would say that the right answer to that in win for predominan within the meaning of your court's cases is no and i think there too he said that's what the district court said and i have a have problem with that because predominance is designed to measure intent when there are multiple causes and mice and my hypothetical hypothetical is the the tipping point the principle movie villian factor was race and you say that because the district would think that because the districts are conventional  respects strict scrutiny doesn't apply i have a problem ok just kennedy and i thought you might but i'd like to say three things to try to convince you in defense of the district court first of all i mean when this court says predominan i assume they mean predominant over something else and i think the something else is traditional district in principles so when race predominates over those principles those principles are sacrificed their subordinate i think that's the way to make sense of this court's cases second of all i think that if you apply the test that way what you are doing is you are mapping on the test to the theory of a shock claim now you may disagree with me on this but i think the what makes a sharp claim a shock claim is not that somebody is kept in a perfectly formed district in a community of interest based on race it's the particular injury in a shot claim is that people from different parts of the state who would share nothing in common except the color of their skin are grouped together in the same district that's what makes the shot claim different from other kinds of claims and i completely agree with the solicitor general office that in thinking about this question you should be thinking about shar claims and thinking about them separately from vote dilution claims and i think there's a real problem in this area of the law is what's happened is that shaw which started as a doctrine for outlying districts in outlying claims has become the weapon of choice in redistricting litigation and people see shaw everywhere and that's just not the way that shot was originally constructed ignores that there is a separate vote dilution claim that can be prot that has a much higher standard of proof and people are essentially trying to evade that the miss i bring in junior varsity i'm sorry no please people are bringing junior varsity dilution claims under this guise of calling them shock claims i think it's really distorted the law the third point just to put it on the table is that at some point then you have to ask the question is if you disagree with me on those first two points and you actually think you have a different conception of what a shock lane is there still has to be the question of is the game worth the candle given the stated need to defer to state legislatures and eighty members of the house of delegates voted in favor of this plan because they it comported with traditional district principles and everybody wanted to preserve majority minority districts i'm sorry just notice going back to justice kennedy's question it seems pretty clear to me that in the cases after shaw because sure you could have looked at it as this is all about the way the district is an element of a claim and i think you know nobody i think thinks that's the writing answer if you look at shaw and sure to and you look at miller and then you think about the hypothetical that justice kennedy gave you which is essentially maybe i'll change it a little bit it's essentially a map maker who says look we really want to do race based district and here we can manage to do this in a way where the maps look kind of continuous and kind of regularly shaped but what we're doing is race based decision making now it seems pretty clear to me that if you look at shore too if you look at miller that's for bet and and and and that's exactly the opposite of what the district court said here i don't think that you have to read those decisions in that way i think if you're going to read those decisions in that way it's appropriate to pause and reflect where it's gotten us and i think that every one of those decisions starts out by saying this is a very difficult task for state legislatures it's hard enough to draw district without the voting rights act but to draw in compliance with the voting rights act it's exquisitely difficult and we want to have deference to state legislators then i'm with justice pryor who suggested that a few years ago we took those concerns into account and we tried to figure out a test that was responsive to those concerns and that is not the test that the district court used here i beg to differ i think you have to as justice pryor was suggesting at least in the first twenty five minutes give the district court a little more credit than that in the district court had alabama in front of him he also had the arguments of the parties and i think if you go back and look i mean with all due respect to my friends on the other side they did not argue this in terms of let's look at all the people moving in and out that was not the thrust of their case they really argued that this was a direct evidence case based on the fact that because that's what i have to do after this argument isn't it i mean you gave me exactly what i needed you gave me the things to look up you gave me the things on the other side and they didn't use exactly the right test but does it matter and and and i think the reason i approach it that way is because this is such a good reasons you said ok you have to give leeway here leeway leeway  the government makes a pretty good point here that they really was important evidence he didn't look at and that that's my job is not to go back and read these things and figure out how they didn't say absolutely but i think you should i think you should look at the evidence in this case and you shouldn't look yet the evidence that could have been mounted you should look at the evidence as it actually came in the way it was argued to the district court i think if you go and look for example at the closing arguments of this case you will see that the other side did not say this is a case about moving too many people in and out of a particular district they said this is a direct evidence case they told you what the problem was they told you they were going to apply a fifty five percent be that floor and that and so really they tried to get not just some tailwind from the fact that there was a b that floor they tried to make essentially rest their case below on that proposition and as a result of that it left them with a vacuum in the evidence because we have extraordinarily good evidence on our side of this case because the principle map drawer delegate jones testified for hours and hours about why particular lines were drawn and in every case he provided explanations for why they comported with traditional principles but not just that he told why the lines were there the lines weren't there because we had this fifty five percent target and everything had to go out the window he said well you know down here in south hampton roads we have three incumbents that are all close together because this part of the said he wanted to reunite the old city of south norfolk so we did that and that required us to move a couple of districts around and there it is there's there's reams of evidence of that and there's really a vacuum of evidence on the other side of this and i d to sort of rewind the tape a little bit to here which is the reason it's so problematic i think to think that just because they apply to be that floor you're like already three fourths of the way to applying strict scrutiny is what else is a state legislature supposed to do i don't think in this context floor is inherently sinister and i mean one way of thinking about this justice kagan is the voting rights act itself is a floor i mean in those situations where it apply it requires a majority minority district that's a quantitative floor of at least fifty point plus point zero one percent but everywhere it's a qualitative floor that you have to preserve the ability to  and so there's nothing in this context and i think that's exactly why this court has gotten where it's gotten and i'm not so sure that you can even further refine what you said in alabama to make it a little bit closer to where i think the law should be in this area but here's the point i mean the reason that in this era uniquely the court allows race to be considered is in part because the voting rights act makes the consideration of race absolutely necessary and i don't want think you want to send the  signal i mean unless you want to take the first steps towards declaring the voting rights act unconstitutional you don't want to send the signal that when legislatures approach this in a way that i think is perfectly appropriate to what's going on i mean for juniors got twelve you salute we don't mr clements but it's one thing for a legislature to say we view it is that core priority up there with one person one vote to comply with the voting rights act that's a terrific thing it's another thing for the legislature to do what it did for example in the alabama case which is to just say something about there can't be any retrogression from what ever there is not withstanding that that's just not section five law and similarly it's another thing for the legislature to just pick a number out of one district apply it to all twelve districts and say that that's compliance with the voting rights act now i agree with you and with mr elias and with mr grant stamp that does not get you all the way there but there's something about this is that this was evidence when when a state says across the board we're going to do something that just on its face you know is not required by the voting rights act that's a problem well with a lot of what you had to say justice kagan i think where i'm not with you is that there is something particularly problematic about picking a fifty five percent number and applying it in it's in richmond and south in the hampton roads area and i think i mean i would say two things about that i mean in the universe of possible numbers fifty five percent about the best number you could come up with because if i mean my friends on the other side agree these all need to be majority minority districts so if the whole debate is it's got to be somewhere north of fifty percent i mean fifty five percent which gives you a little bit of margin for the fact that there may be differentials in turnout and where the rubber is going to meet the road remember these are the cases where i mean you know the incumbents are now is when and most of these districts are majority minority but they're way majority democrat so where the rubber is going to meet the road about opportunity to elect is going to be in the open primaries that's when you're really going to tell whether the african american has community has the opportunity to elect the candidate of their choice now those are relatively rare and so the idea that you know it's somehow presumptively unconstitutional for the state to look at one of the most recent open primaries in h d seventy five and say well you have five percentage points to five percentage points in a badly splinter primary it's only three hundred votes and delegate tyler herself is saying you know these need to be north of fifty percent everybody's basically saying that you know i don't think it's fair to put this and i guess this is where i really take issue i don't think it's i think it's a mistake to put this in the same basket as alabama the idea that you can't go from eighty to seventy nine a cent is a cartoonish version of the voting rights act to say that in an area where nine of the twelve districts are already north of fifty five percent to say that fifty five percent is a pretty darn good threshold for compliance with the voting rights act just isn't in the same category at all and i know they try to get a lot of that sort of mileage out of the idea what was one size fits all but the two things i would say about that one i've sort of already said which is we're talking about the same part of the state and there's no reason to think there's a different dynamic in this and all of these districts are majority minority districts african american districts it's not like they're applying one rule and trying to say that it fits you know through the complicated districts in northern virginia with multiracial groups and those districts down in the south they're all very similar districts that's one thing the second thing is i mean keep in mind whatever rule you adopt here is not just for a relatively sophisticated state legislature it's going to apply to all sorts of school boards and sewer districts so there has to be i mean i you know i just don't think the analysis is that you have to go district by district with regression analysis in order to comply with the voting rights act i don't think that's the rule you want to lay down and i also think and this is i think responsive to justice kennedy's earlier question i mean the the idea that they have on the other side is that they're not against racial targets they agree these need to be majority minority districts here they agree they need to be north of fifty percent their real beef is with the legislature making a sort of common sense judgment based on the evidence in front of them that it should be fifty five percent what they want is more use of race in more minute detail where you go district by district and say all right it's a seventy five it's going to be fifty five as to sixty three it's going to be seventy four has to seventy seven it's go fifty six i don't think that gets us further along the lines of compliance with the equal protection clause i also don't even think it's practically pos i think that the real difference between your standard and g standard is that in your standard the shape of a district functions as a threshold inquiry such that if the shape is ok we don't look at anything else and particularly we don't look even if the district in was completely race based and motive and that's just what that three part test does it sets up a threshold inquiry about about how the district is shaped in a way that some people thought shore was when she was first announced and that this court in one to three subsequent cases made clear it wasn't well justice kagan first of all i think the real difference between our position and the s s position is a difference in the real world which is they admit it's not going to make a difference in ninety nine percent of the cases made it something else in my vast majority but a lot of these cases it won't make any difference but given the stakes it's going to mean that lots more state legislatures get sued over districts that don't even look particularly suspicious and this case is the perfect example these districts existed for four years into complete election cycles before anybody perceived there was a racial gerrymander lurking here and what changed in two thousand and fourteen was the resident of the governor's mansion enrichment and what happened is these guys realize that if we can get these districts thrown out and they have to redraw the district will now have a veto power that we didn't have before that explains why lines that looked perfectly square relatively and were approved eighty to the like nine with a majority of democrats supporting them all but two members of the african american caucus supporting him with one of the two members of that caucus opposing them because the numbers weren't high enough i mean that's that i need that was two thousand and eleven you go from a bipartisan success story where everybody points to the house and says these guys did it right the senate not so much the house these guys did it exactly right they did everything that they were supposed to do four years later they can still draw a racial gerrymandering charge and have to  based on this theoretical possibility that maybe just maybe in drawing these square lines some of these and i theoretical possibility and mr go instead says and he seems to be pretty sensitive to the idea of giving states latitude but he looks at this and says this standard actually did make a difference on the ground that there were districts that were kicked out and said oh this isn't race based because it looks good even though it was race based well i would put representing the state legislature of virginia my bona fide isn't looking out for the states even ahead of mr going stevens and it's easy in the solicitor general's office to throw out a standard that's theoretically pure and it's going to force lots of other people to litigate for years these districts were good enough for everybody for four years they were good enough to be precleared by the justice department having this detailed inquiry out there to have been validated years later does not seem to me to have a lot to recommend it thank you ron thank you counsel  have two minutes left chief justice may please the court i want to clarify a few factual points and obviously answer any questions you have the first is the timing of this case followed the page decision it was the page th that that ruled on the congressional map that then was it had nothing to do with that case was filed when there was a republican in the governor's mansion it had nothing to do with who was in the governor's mansion it was a factual matter just this prior to account of this rule and if you look at j a six seventy two you will see there is a fifty point eight different percent differential between the white voters moved out and the black voters moved  number one point number two very quickly this court in shaw versus versus hunt specifically dealt with justice stevens is dissent saying there should be an actual conflict test and what this court said is in his dissent justice stevens argues that strict scrutiny does not apply where the state respects or complies with traditional district and principles that however is not the standard rule out announced and applied in miller shot to resolved  for this three judge court well before alabama that eight actual conflict test was not the law and the district court here simply simply ignored thank you council cases submitted