gerrymandering claims the cause of that failure is not a lack of judicial imagination or a lack of claims that the particular map before the court was the most extreme ever rather the root cause of this failure is the basic decision of the framers to give responsibility for congressional district ing to political actors the framers consciously chose to keep the process give the primary authority to state legislatures and then to police the possibility that state legislatures which the framers knew to be partisan institutions would engage in too much partisanship the framers chose a structural solution by getting clear better with congress supervisory authority mr coleman that ship has the baker car but once we decided the one person one vote concept we meant pretty much in all of our jurisprudence saying that certain acts by the legislature unconstitutional including race a scrimmage nation and others it can't be that simply because the constitution says that in a particular act this in the hands of one one branch of government that that deprives the courts of reviewing whether that action is constitutional or not well just to sort of my or i suppose the question of whether that ship sailed in baker carr is one way of presenting the question before the court today and i would submit that you don't have a one size fits all solution for just disability and i don't think baker v carr supports that proposition indeed i took the central lesson of baker v car if the impact of her vote if we do based on her party affiliation the answer to that question just askins berg is yes you still have an equal right to vote as an individual and what the parties on the other side are really complaining of here is not a purely individual injury what they're complaining of is that they are grouped in a district with either too many people who agree with them or too few people who agree with them and therefore their vote is sort of diluted in some way and i don't think that is in the first place in individual legally cognize simple interest so i think they have a standing problem but even if they get over the standing problem that i don't think that's just injury and i would say more broadly you know lots and lots of voters live in a district where either because of geography or because of state action they're not going to have their preferred candidate elected indeed i'd go further and say most americans don't get their preferred candidate elected because they have to choose from the candidates or before and maybe based on the district they live in it tends to give them a relatively liberal democrat or relatively conservative republican when really what they prefer is somebody down the middle and none of those things i think are things that you are constitutionally entitled to mr clemente would your position requires to overrule davis worse is beyond mere i think mr chief justice it would decide it would depend on which way you decided the case i think if you decided the case and if we decided in your favor would require a statement and it would still depend your honor on whether you decide it in our favor on standing grounds or on just disability grounds if you decided in our favor on just disability grounds i think you would have to overrule the pain to your case i think the band in your case is a case that well deserves overruling and i'm happy to discuss why that is the case i certainly think is justice scalia pointed out for four justices in v a three to six case that uniquely has no reliance interests on it other than the potential reliance interests of litigants but it hasn't produced actual results and i think is just as justice scalia said it's a decision that sort of tripoli doesn't have a strong claim to star but i also think if you decided the case on standing grounds you would really be deciding the grant the case on grounds that are actually interior to anything the court decided definitively unbanned amir so i really think it does depend on how you decide the case in our favor as to whether you need to overrule mr alterman if i understand the bottom line of your argument you would answer the question that one of my i don't want to call him a former colleague he's still a colleague but no longer on the on the bench with us justice kennedy asked in one of these cases and it was if the state constitution had a provision that required redistricting to be based solely on partisan arounds forget about whether they were they were meeting any other traditional grounds or not you would say that was constitution well actually just a sort of my or i think i might say to that particular hypo and i think it matters how you frame it i mean i do think that if you took a state constitutional provision and tried to have it impose some requirement that's going to apply to every redistricting going forward there's at least an argument that there's actually an election clause problem with that effort to try to control sort of subsequent redistricting efforts and you may or may not accept federal saying but you're basically saying yes that would mean as occurred here that almost fifty percent of one party's vote is going to result in maybe less than one third of their representation in congress that's exactly right just to sort of me or and i think you put your finger on what my friends on the other side perceive to be the problem which is a lack of proportional representation that that no because all of the tests that they're proposing in the district court look that didn't talk about proportionate representation it looked at only the opportunity to elect an opportunity is different the way this is more than or less than a third the people they floated for well i think that that difference first of all i think that difference is implicit in the idea of having districts rather than statewide elections for the congress and keep in mind that the constitution as originally acted there's no statute that changes this but as for constitutional purposes it is perfectly constitutional for a state to embrace the policy idea that proportional talked about i wasn't quite sure i understood your answer and i'll say the question in a little bit of a different way sure because it's seems to me that this is kind of justice kennedy's hypothetical come to life in this sense that there is a particular provision in the legislation here that says the partisan makeup of the congressional delegation is ten republicans and three democrats and the committee shall make reasonable efforts to construct districts to maintain that current partisan makeup ten and three so it was specifically written into the law that whatever else you do and there were definitely other things that the law makers wanted done but whatever else you do go come back with the same ten and three and i think that that was the import of justice kennedy's question is like can you write that into a law and say that's what we're trying to do here so i'm just asking two responses one is i did notice every time justice kennedy asked that question he did ask it the way that justice sort of my or did in built in this notion that you were going to permanently in shrine that preference for future elections so i do just want to drop the footnote that i think there may be something distinct t current that's what we want to maintain with but no but i think there's a difference and but i'm happy to respond to your your question about can you have it as an express criterion for a particular district thing and i think the answer sort of obviously given who i'm representing is absolutely yes that's not a problem and by the way i think actually being candid about it probably serves accountability principles in the long run which is to say if you think which i think almost everybody does that implicitly that's what the republican legislature was doing in banda meir in fact they were explicit in their deposition testimony if you look at footnote five of justice white's opinion that the people who drew that map the speaker of the republican house of indian express that his goal was to preserve as many republican incumbents as possible could i take us back to the way justice kennedy formulated the question which hypothesised the provision of the state constitution and you made reference to the elections clause the elections clause says that it is to be prescribed by the times places and manners are to be prescribed by the each side by the legislatures of the state are to the legislatures of the state typically control what is in the state constitution they don't just a silly you know and that's why i do think it is important to figure out i mean i think justice kennedy may have framed that question in a particular way i mean i don't want to go too far down the road of related gating the arizona independent redistricting case here but you know i do think there is a certainly respectable argument that state legislature means state legislature and not the other parts of the state government and that's why i do think there are separate issues in seeing the people  it done by referendum it well could justice ginsburg and indeed there are at least four people that agreed with you on that proposition and i and i don't want to relive it kate that here because i don't think the result in that case i think that case can be taken as a given alone you can still say that the claims here are not just a simple and to be as rich sponsors that can do justice kagan's question i don't think there is a constitutional problem when a state legislature makes explicit with respect to undertaking at that moment if they make explicit what was ultimately explicit after the record was built up in banda mirin vith which is it just didn't happen that they got a map that was favorable to republicans that they actually intended to do that along with traditional redistricting principles and i think justice kagan the way you read the criteria is exactly right with respect to partisan advantage as they called it they said reasonable efforts will be made with respect to other items on their list of lines in terms of democratic accountability on this one of the arguments that we've heard is that the court must act because nobody else can as a practical matter but but given arizona  and that is the holding of the court is that true and to what extent have states through their initiative citizen initiatives or at the ballot box in the elections through their legislature amended their constitutions or otherwise provided for remedies in this area i just happen to know my home state of colorado this last november had such a referendum on the ballot that passed overwhelmingly as i recall so  i believe there are others and i'm just wondering what's the scope of the problem here i also know there are five states with only a single representative right so in congress so presumably this isn't a problem there that's right and to the extent it's a problem at all the scope of the issue shall we say is you know roughly thirty states that don't have some kind of mechanism like you describe or have multiple districts and you know i think but how many get to my senses there's a lot of movement in this area i believe there were four or five states along with colorado just this last election that acted that that's exactly right michigan is another state that passed a ballot initiative in of course the other sort of place where there can be a solution to this which is the most obvious one and i solution no matter what you think of the arizona independent case is congress and if you look at h r one the very first bill that the new congress put on their agenda it was an effort to essentially for states to have bipartisan commissions now agree whether that's constitutional but it certainly shows that congress is able to take action in this particular area well i suppose the i suppose the members of congress are pretty happy with the way the district has been going you might think mr chief justice but actually i don't think the majority of them are because that was a bill that i think passed on party line votes and so i mean to the extent that  people are justices of this court in the past it can be concerned about things like entrenchment in the like i mean it's a little odd here that we've had all of this supposedly partisan redistricting to benefit the composition of congress and yet a majority of congress thinks that they should pass h r one so i just don't know that there really is that much of a problem and i do think it's the particular context that arises here is the context of congressional redistricting and one of the elements of the framers structural solution was they didn't directly tell congress one of the districts for yourself they said in the process in the first instance let's have somebody else at the state level closer to the people do the district ng and then we'll give congress a role to supervise that so they didn't have sort of the same fox guarding the same hen house in this particular context imagine you may not want to answer this question which i don't understand you don't have thought about it now i tried one in v you know in and my guess is from the reaction there was none and so probably there's something wrong with it but what i'm trying to do is to figure out if there's a way to catch real  you can't go beyond that i mean at the moment i'm assuming the real outliers so which are the real outliers if we look at history there wasn't that much gerrymandering in the past compared to what there might be with computers in the future ok so i've tried to figure out something simple not going to get all day every judge in the country mixed up not going to lead to every election contest and throw it all to the judges instead of the people ok anybody can figure it out now this is what it is that if a jury mander dog is uncovered if there is a city commission or something forget it you're out of court right away ok but if there is no commission one party controls it then a jury manders unconstitutional if a party that wins a majority of the vote in a state they won a majority of the vote but the other party gets more than two thirds of the seats you say that would be pretty extreme but your client might need it and the view virtue of it it's absolutely simple by the way they can try to justify it and then we can use you know the landers is there are you know something like those five percent things to test the justifications but there won't be much can be justified you could be a starting place and that two thirds number is not drawn out of thin air the constitution in fact you can find serious matters overriding vetoes constitutional amendments and you can show house just gerrymander ing rexx what they assumed for goes but that's a different story you can find and it very rarely would operate but it would be somewhere you know have you thought about anything like that do you have any reaction your reaction be no that's no good but suck from aside from that it is there anything you want to contribute to thought on that well just as prior in in all candor there's so much in that that i disagree with that it's a little hard to know where to start  i'm going to resist at first the temptation to take issue with the premises though if i have time i'll get back to that let me take issue with the two basic prongs of your test so first the reason i think your test has to be a nonstarter is the fact that as you say your test would basically give a pass to any state that doesn't use the method prescribed by the framers to engage in congressional district thing so it would be a strike against the thought i heard you say that if you were a state that used to bipartisan you would get a pass and that seems to me itself to be remarkably revealing because you're basically saying that would be a good thing for the state if they chose so well justice ginsburg in fairness i think what arizona held is that the people are within that concept but i certainly don't think arizona stands for the proposition that what the framers had in mind primarily was something other than the state legislatures so it seems to me it's a strike against your test that it a den of five as a problem something that the framers would have associated with the primary mechanism they used for redistricting maybe can't fix it you were wrong about the people being able to fix it and if the people could fix it well it's not the constitutionally prescribed way because it's done for been done before so just discourse it is attempts to save what so dramatically wrong here which is the court leaving the sort of professional politicians who have an interest in district in according to their own partisan interest seems to fail well i would disagree  the import of justice course which is question being that you know maybe we can allow the states to solve this problem for themselves but i think then when you get at the starting point of justice briar's question which is of certain you know the federal government through it justices and judges are going to intervene and put limits on what the state does or i've got this point but what i'm trying to get you to focus on because i've read the briefs you know i've this is the fourth time and i and i think a but the thing that i want you to fo on if you can if you want to is the two thirds majority idea look my party got a majority of the votes in the state but we ended up with less than a third of the seat you see i said my tone of voice is meant be this is really extraordinary but there is absolutely a workable standard now the next question is all the constitutional arguments you're raising i'm not pushing those under the rug but for present purposes i want you to see if there's any reaction to the practicality of the standard well i think the way i would respond to that justice prior is i am not here to tell you that if the constitution included a one standard deviation from proportional representation clause or a one third two thirds clause the judges somehow would be incapable of it ministering that clause so i think the fundamental problem is there is no swan standard deviation from proportional representation clause in the constitution and indeed you can't talk even generally about outliers or extremity in less you know what it is your deviating from and i take it implicit in your question and implicit of my horse question that what's bothering people is a deviation from a principle of proportional representation mr clement actually saying that but i don't quite think that that's right given the statistical analysis in this case i mean you're quite right that this court in the past has said this country does not run on proportional representation and this is a hang up in our ability to solve this problem but what's what's what's quite interesting about the statistical analysis in this case is that quite a lot of it does not run off a proportional representation benchmark another words all the same computer simulations all of the twenty five thousand maps right really do take the political geography of the state as a given so so if democrats are clustered and republicans aren't that's in the program and all the other redistricting requirements or preferences like continuity like following natural boundaries that's all in the program so there's the benchmark is not proportional representation the benchmark is the natural political geography of the state plus all the district in criteria except for partisanship and if you run those maps right what did you get you've got twenty four thousand maps and this and ninety nine percent of them ninety nine plus percent of them were on one side of the map that was picked here all of those maps show that it ten three configuration is not the natural one and it's not the natural one not because it's not proportional representation it's just not the way anybody can district given the actual political geography on the ground unless you absolutely try to overrule that political geography all you can do this twenty four thousand different ways so that seems like this is about as discretionary a government function as one could imagine and if you go all the way back to marbury vs madison and what makes something a political question it is a purely partisan than the one the legislature picked here but see what i think is remarkable is actually the what the statistics show and this is on page one sixty two of the g s a is that if you run twenty four thousand maps with part an ship taken out entirely and you just use traditional jurist traditional principles you get one hundred sixty two different maps that produce a ten three republican split so yeah it's one percent point seven percent i mean point seven percent just to be clear that's one hundred sixty two different ways to get to a ten three map they didn't take politics into account at all you have twenty four thousand maps that  satisfy all of the so called neutral criteria that you put in your computer program to but you need a criterion or criteria for deciding which of the twenty four thousand maps you're going to choose and implicit and justice comments is the idea is it not that you have to choose one that honors proportional representation you have no other criteria for distinguishing among the twenty four thousand maps i think that's right  ninety nine percent of the time you get a map that is more fair to both parties than the one that was chosen and so the issue is you can't you can have a hundred and sixty to one hundred sixty four but what you can't do in picking one percent of america is discriminate against a group of people based on their political views we have a we have cases that say you can't treat political parties differently because it's an equal protection violation and it's the same thing whether it's because of their speech or their activities what we're telling you is pick any other map you want just don't split counties as was done here so based soley on your political views because counties were split don't pick or  don't you may use saving an incumbent but don't kick one out because by kicking one out and there is a map that would keep all of the incumbents in place don't kick one out because you're excluding people based on their political views this is what this is about you're discriminating on the basis of a group's speech and diluting their vote accordingly so just a sort of i or i would have three points if i could get them out me one is the key word in your question is fair and what makes this unfair i would submit at the end of the day is some principle of proportional representation nobody thinks it's unfair i don't think that republicans in massachusetts under the current maps are never going to be able to elect somebody to congress even though there's something like thirty five percent of the population nobody thinks that's unfair because you really can't draw districts to do it because they're evenly distributed it might be unfortunate for them but i don't think it's unfair and what makes this unfair is some conception of proportional representation in the ability to do is that true but look party a get over and over and over fifty five percent of the vote party b every single time gets ninety percent of the seats now if you want to call that proportional representation problem do it but i limiting to that kind of thing i mean if it's not proportional representation it's a problem seeing a legislator legislature reflect to some  degree the views of the majority of people that elected members so just prior let me say why i don't think that's such a horrible problem and then we try to put what's on the other side of the ledger so why i don't think that's a horrible problem even if it's as describe what's going to happen in almost every state in the union if that happens is the fifty five percent majority will elect to statewide office governors attorneys general and the like and the next time around they're not going to be able to pass a map and the next time around it'll probably end up in gridlock and a judicial line drawing and i don't think that's the happiest result in the world but it means that you're not going to be able to perpetuate this in the long run and here's what's on the other side of the ledger and then i'll try to sit down to a limited difference you know for a forty nine percent state which is more like what north carolina is so a forty eight or forty nine percent state might not find it so easy to do that and yet that forty eight or forty nine percent in this map is consistently being represented by twenty five percent give or take of the legislature well and i don't think anybody has a solution i don't know if forty eight percent i think durham enduring sufficiently unpopular as proven by history that the forty eight percent might get elected but if you're thirty five percent nobody's got a solution for you see here's what's on the other side of the ledger which is all right i think these problems as justice o'connor who probably more than anybody who sat on this court recently had her finger on the pulse of state electoral politics said this problem is largely self healing but on the other side of the lens on the other side of the way rather if you get in the business of adjudicating these cases these and here's the thing state legislatures can deal perfectly well within one person one vote requirement but if you tell state legislators slater's that are literally divided down the line in the middle with an aisle of physical aisle between democrats and republicans that they can't take partisanship into account then you really either telling them to get out of the business of redistricting entirely or you're opening yourself up for case after case after case on a good portion of the representation c s question which is first isn't proportional representation a judicially manageable standard and well if it's a difficult standard it would require ass answering some questions about where to baseline what elections to get the baselines from but it could be manageable and the second is why can't the equal protection clause be interpreted to require something resembling proportional representation because it's entirely a historical and keep in mind the framers gave state legislatures the choice of ensuring proportional representation by having statewide elections but they also gave them the choice to districts which spawned a mentally inconsistent with that thank you  mistress just as made please the court this case involves the most extreme partisan germander to rig congressional elections it's been presented to this court since the one person one vote cases the north carolina legislature is defense is equally extreme they take the position that no matter how predominant the intent no matter how extreme the effects they're absolutely no constitutional limitations when you start a word or term and when you use the word extreme that implies a baseline extreme compared to what in this case it is extreme in comparison to any statistical application of neutral redistricting principles in the context of the political geography of north carolina it was statistically impossible to come up with an eleven two plan which took every possible criteria that they use that was legitimate applied them to a thousand randomly drawn maps showed multiple things first that you cannot possibly explain the ten three advantage based on political geography democratic clustering the application of independent we dished in country principles or pure chance this is not the result of chance you can only achieve it by making partisan advantage the predominant motivation destruction or dominant i i understood your brief and your friends on the other side characterized to be for saying that any element of partisanship was banned is that your position no your honor of our position is that partisanship has to be at least immaterial factor as it is in arlington heights or mt healthy but in this case we proved that was a predominant factor and that is the ruling of the lower court well i guess it just rephrases the question of what constitutes a material factor well the difference between would carry on being immaterial having no consequence is a very real difference so that showed it to so i understand any partisanship that has a consequence is impermissible under your view we do not need to go that far in this case because an for example firing in my mouth helped if that was a with tiriel part of the decision of the school board to fire the school teacher then he had made a promise facia case which could then be defended based on either there were intervening causes that is the real reason why you didn't show up to teach or you have legitimate state interests that are being served in this case the north carolina legislature before the low did not advocate contend in any way that there is any legitimate state interest of any kind served by partisan chairman or so take you back to questions that were asked before if you if you make a list of the so called neutral criteria compact this content you would be protecting incumbents if that's really troll respecting certain natural features of the geography and you have a computer program that includes all of those and weights them all fine let's assume all that is neutral and at the end what you get is a large number of maps that satisfy all those criteria and i think that's realistic that's what you will get then and the legislature chooses from among those maps how do you determine whether that choice is unconstitutional choice would be the standards that the court has traditionally applied picking an example allen trees school cases in which the court said that a democratic school board could not use its discretionary choices to discriminate based on viewpoint by excluding republican authors and republican nominees to can you just answer that question because it's a real puzzle to me so you've got let's say you've got one hundred baps or you might even have twenty five i think you probably have thousands if you have all of these maps and you have to choose among them a bill that the legislature chooses among them and you've already programmed in all of this so called neutral criteria how do you how  legislature go about choosing among those maps would anything other than just random choice be sufficient be satisfactory the legislature his wide discretion is long since does not on numbers right how much deviation from proportional representation is enough to dictate an outcome so are we just back in the business of deciding what degree of tolerance we're willing to put up with from proportional representation in my pluck a number out of the air or sea that you know maybe two thirds is used for a veto override so we like that what are we going to get the number of the business end of this the business end of it is looking how this is not this was done by looking at voting history is the best predictor voting behavior sorting voters among districts to achieve a particular outcome to guarantee that intended scripts there would be safe republican majorities in which the general election is essentially irrelevant in the primary election is that one let me try one more time so we've got let's say that you have a range of outcomes with all of these neutral maps that satisfy the neutral criteria and they extend from ten to two in favor of republicans to ten to two in favor of democrats so which one do you choose do you have to choose nine to three for republicans eight to four six to six the clearly it's than ever dench area matter in terms of and yet if the predominant can't is to favor one party to penalize a novel based on their voting history that goes too far but isn't that always going to be the case when you deviate too far from six to six and justice alito is hypothetical it certainly is going to be a question of factual proof the closer you comb to proportional representation the harder it's going to be for the plaintiff to prove well there we go i think that's the answer the question right is that we're going to you're you would like us to mandate proportional representation not at all opposition is you cannot discriminate intentionally against political parties and voters based on their political further you deviate insupportable representation the more likely you are to be found guilty of that it is surely an evidentiary question this court itself said you know reynolds it said again in lulac that in a case in which you look statewide and see proportional representation it is less likely case so if you have charges you change what we're going to have to as part of our mandatory jurisdiction in every single redistricting case look at the evidence to see why there was a deviation from the norm a proportional representation that states that's the ask you're going to have to look at the case and determine whether or not the plaintiffs proved tensional predominant partisan intent to discriminate based on i would think that would always be present as so long as you're deviating from proportional representation what good reason could there be but partisanship not at all if the legislature in north carolina could have picked any among hundreds of maps that would have produced either the seven six six seven maybe eight and they have representation but here that is not case what we do as well about the the fact that about twenty states as i understand it from from your friend on the other side have dealt with this problem through citizen initiatives as a remedy to deal with this  including i think five of them just this last election and a bunch more on the ballot in the coming election what why should we wade into this the some that alternative exists the simple answer justice  the vast majority of states east of the mississippi including specifically north carolina do not have citizen initiative can you mend your constitutions that that has happened in a lot of states to can only amend the constitution with the approval of the legislature in proposing an amendment that gets to the ballot and is then ratified and that is not an effective remedy and the states in which you have independent redistricting commissions  in which those commissions were adopted over the dead bodies of the legislature was citizen initiative passed overwhelmingly by a citizens in the face of legislative opposition mr bondra what do you do with the fact that partisan identification is not the only basis on which people vote you see electoral results change dramatically depending for example on the particular appeal of individual candidates turning on at the head of the ticket rather than down ticket and how do you deal with that those factors that depart from the arguments about the inevitability of electoral results based on partisan testified that based on social science and his twenty years of experience in redistricting north carolina he could demonstrate that how a small what are called voter tabulation district voted in past elections whether democratic or republican was the best predictor of how they were vote in future elections and that all partisan jeremy mannering in the modern era is based on that kind of but the one thing that i do to forget with the which brief it is but it turns out that a lot of the predictions in this area and i don't know if this applies to north carolina or not proved to be very very wrong very often i mean you have the famous example in the vith case where the argument was this this change would or the method under challenge would never allow the election of republican judges and fifteen days after the opinion came down all the judges were republican i mean it in even as in the more recent cycle i understand a lot of things that were never supposed to happen happened in this case on this undisputed record the way this was done was talked to harfleur used a composite of seven statewide elections over four election cycles to come up w calculation of partisan advantage and pretty predictable it and it predicted ten republican districts and the republicans won all ten it predicted three democratic districts the democrats won all ten in two eighteen they did the same thing he used the same methodology in two eleven to design the districts that were checked into twelve counts so the reality is that with all sis's to call models and we spend our lives based on insurances paid on cities tickle models health insurance premiums are based on statistical models i'm given to understand by the amicus briefs in this case that nuclear plants are built based on statistical models the one thing about statistical models is there's always the possibility of an operation correct there is a remote possibility sometimes and sometimes happen that's why there are probability right a possibility correct so the fact that you have one exception doesn't disprove the rule it's certainly not one hundred maps to have a twenty four thousand maps but the the problem i think your side throughout this morning house to deal with a problem is from this saw it on the bench just some people looking at the prior cases there is a great concern about unless you have a very clear standard you will turn many many elections in the united states over to the judges there's always someone who wants to contest they will always find experts of all kinds and what you'll discover is judges simply deciding too much i'm that i've written about why i don't take up position at souter but i'm not i'm not speaking for myself here i'm speaking as a reader and an understanding of what's on the other side at least one thing and i and i think it's important for you and the others to deal square on with that question in our square own answer that question is in this case have proved an extreme partisan effect not only on a statewide level but on a district specific level in dr mattingly chart six of the disks are extreme statistical outliers that would not be achieved in even one in some instances of twenty four thousand plants that is this case moreover this court has held that the elections clause is number one intended to provide limits on partisan gerrymandering justice scalia said that in v and this court has said the elections clause was a limited delegation of power to dot procedural rules for time place and manner but was not to provide power to dictate electoral outcomes or favor or disfavor a class of candidates that is an understandable standard that legislate tours throughout this country can understand they already have told that you can't discriminate based on political viewpoint they're already told in redistricting you can't discriminate predominantly based on race your had said we have all these maps we can choose from but we don't we don't want to be too greedy so we're going to pick a map solely for the purpose of giving us an advantage we're going to pick a that builds on a seven to five and vanish for us would there be a problem with that it would be very difficult to prove predominant partisan intent what if they set it out right the only reason why we're picking this map is we want to build in a seven to five advantage if to take your hypothetical example if in north carolina the legislature said we in our wisdom have decided that the people in charlotte are going to be represented by a democrat the people in asheville ago me represented by a republican that we're going to split guilford county and north carolina a and t to ensure that the students in that school are going to be represented by a republican in one district and a republican or another they would be dictating electoral outcomes even if it were seven six the whole idea of the democratic process and the general election is the people elected a member of congress in a general election which everybody can vote and when you rig the districts in that manner you are making the general election irrelevant you're making the primary election in which only some people can vote so even if it's at an even if the map provides only a very small partisan advantage that would be subject to challenge in litigation if in the facts that op posited you had the legislature essentially deciding that the people in x part of the state were going to be represented by a democrat and the people in my part of the state were going to be represented by a republican that the people in those respective districts of the other persuasions were not going to have a choice we're not going to have an opportunity that would clearly violate every principle for which this court has stood and when you say that aren't you answering justice briar's question yes all of these things are going to potentially and up in court that the election's clause means that the legislature can't put it on the scale and pick winners and losers dictate electoral outcomes favor or disfavor the class of candidates that is a standard that can be understood that is a standard that legislators will pay and that is a standard that will reduce not increase litigation thank you counsel mr chief justice and may it please the court the north can carolinians who are plaintiffs in this case come before this court today seeking relief because when the general assembly and acted in allegedly remedial plan in tw leadership essentially bragged to these voters and the public at large that by enacting a ten three plan it was punishing voters who supported democratic candidates and it was going to create districts that would not allow voters in those districts any meaningful ability to use normal democratic processes to redress infringements on their individual constitutional rights this case is not the first north carolina voting case to reach this court this decade but it represents the most extreme example of a non responsive legislature that believes that this court will implicitly indoors unfettered partisan manipulation in redistricting by declining to rein in this most egregious example the vote presented to this court today is a limited and precise test designed only to impose liability on the worst of the worst cases thus limiting the number of partisan gerrymandering cases that this court will see and under this very limited and persuasive vote dilution test a lower court will apply a three prong test where all three prongs must be satisfied and that in and under many of those problems there are multiple screens to limit the number of planned subject to liability first partisan intent has to be proven on a district specific basis that is proving that district lines were drawn to subordinate the adherence of one political party and entrenched the power of the party drawing the lines second partisan effect has to be shown at the district specific and planned wide levels the district specific effect inquiry looks at intentional cracking cracking and packing of demo credit clusters or republican clusters as it will and the state why the plan would inquiry is whether the map as a whole creates a severe and durable effect to on the disfavored party then finally the court asks whether there's any justification at the district specific level for the cracking and packing observed and whether planned wide the map as a whole is more biased than you would expect given the state's political geography and use of legitimate nondiscriminatory criteria but to deny that built into this is the idea that we should at least have proportional representation of light proportional representation is sense that is in some way the baseline against which all of this is measured not at all justice alito with the three prongs there is plenty of room for non proportional plan a degree you can you don't have to have strict proportional representation but that's that's the baseline so that's what you're measuring what was there a part of some effect well there's a partisan effect because it deviates from some notion of proportional representation the effects and the justification prong do real work to prevent that situation from happening from this being just a measurement from the deviation of the party because i would have thought out of the effects probably or has to be at least some effect right and there has to talked a lot about last of the efficiency gap which is how far a deviation from proportional representation and we were told i think six or seven percent of deviation would be ok and that would not be and untoward effect but anything above six or seven percent today we're talking about two thirds is in effect we need to have a number or some formula to determine what effect is enough to state a claim and what isn't otherwise every case is going to come to this court and i'm still waiting to hear what that might what that number what that formula might be other than proportional representation and we're not going to tell you today just how far up deviation be permissible because that would expose the problem are several points in response to this course that the legal standard in question is severe and durable effect all of the social science is just an evidentiary tool not only tool two categories of social science evidence were brought to bear on this question of severe and durable effect the simulations didn't set a numerical threshold baseline because you see a range of produced plans with democrat varying democrat republican splits from what standard and isn't the isn't the answer you just i understand i want to give it but isn't the real answer here breathing room from proportional representation up to maybe seven percent just if in this not that then what is this breathing room and what where does it exist breathing room exists in in the bell curve of expected and reasonable map allocations of representation it's a breathing room to employ some political consideration why why isn't the answer to just discourse such as question that what's not allowed is deviation from what ever the state would have come up with absent these partisan considerations in other words the state can do whatever it want it can depart from proportional representation however much at once too however much the natural features of the state would suggest it can come up with something that's not proportional representation at all but it can't do is deviate from that based on partisan considerations isn't that what this test is essentially driving at that gets the effects wrong i think ye all those things we're going to have hundreds and hundreds of maps it's justice alito has pointed out computers spit them out infinitely now and once we say ok all these other factors are controlled for we can we can do a regression  control for geography but all these things are still going to hundreds of maps the legislature's going to choose one and at that point we have to say what's the range of permissible options and from that we need a baseline in the baseline i still think if it's not proportional representation what is the baseline that you would have us use there is controlling for geography and everything else well the geography is baked into that bell was very thin i accept that we agree on that you and i actually agree on that so after that when we're left with we've thrown out millions of of maps we're only left with a mere few thousand ok what is what deviation from what to what if what we're left with is no extreme statistical outlier or no grossly asymmetrical map the legislature can choose from any of those plants so what is what is wrong with proportional representation there are certainly states where those natural geography of the state doesn't lend itself to proportional representation we live in a system with a single member like you if you were cracking the packing to get to proportional representation with that in your view be unconstitutional this court has endorsed that kind of activity and gaffney where a legislature is striving for proportional representation our test would not invalidate a plan require proportional representation or require something close to proportional representation the constitution does not require but what we see here in this test that we've  and the republican judges case in the one nine hundred ninety s and that matter hours are using right now if there is a plan where under any plausible shift of voter sentiment the bias across the plan would disappear that plan would not be unconstitutional again this is an enormous screen to the kinds of plans that would be subject to live our proposed test you want to doctor by the district court is so exacting that it narrows dramatically the number of plans subject to scrutiny and leaves legislatures lots of breathing room and my right to understand that your your trash allows a greater degree of  partisanship in redistricting than mister i think there there are complementary tests depending on how you understand the constitutional harm where we see vote the voter lucian tests and based on the one person one vote in the racial voter lucian's frameworks we see those test as allowing room for some political considerations particularly the ones and dorst by this court but it's just a different approach to the same problem we do believe that our test does give it is narrow and descriptive enough that it gives legislatures guidance on what to do to make sure that they stay on the right side of the constitution  and limits gives gives lower courts something very manageable to apply and to grapple with and that the pleadings standards are going to be very high to prove a severe and durable effect is that extreme partisan gerrymandering is a real problem for our democracy and i'm not going to dispute that and that the court even though it might be a problem to get involved in all these cases should in essence recognize the emergency situation from your perspective but what about to pick up on something just discourse which said earlier that there is a fair amount of activity going on in the states on redistricting in attention in congress and in state supreme courts in other words that will reach the moment even though it would be a really reach the moment even though it would be a big lift for this court to get involved where the other actors can't do it the north carolinian plaintiffs in front of you can do nothing to solve this problem and what i'm thinking about more national you're you're the amicus briefs are certainly referencing a problem in many states and the idea i think in the briefs is this court in this court alone can step in and there is a fair amount of activity going on in the states recognizing the same problem that you're recognizing acknowledged east of the mississippi there's a very small number of states where this is a possibility this court has rightfully been concerned about the burden on the court and the reputation of the court on a that that's not an issue tips right and even even there i mean there are i mean new jersey michigan ohio have have dealt with this in some way just to pick a few that i've got in front of me but also the state supreme court option as as justice kennedy capital pointed out  we often overlook that possibility in our in our federal system what we do we do about that other options don't relieve this court of its duty to vindicate constitutional rights and certainly while the reputation of the court as an independent check is an important consideration understand that on the facts of this case reputational risk to the court of doing nothing when when david lewis says i'm going to draw ten three plan and if i could draw out an eleven to plan i would on the reputational risk of doing something is much much less than the reputational risk of doing nothing which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out this is this is a situation where with all due respect justice connor was not corrected this isn't self correcting voters in north carolina no matter how hard no matter what level they turn out this was a swing election and twenty eight hundred for north carolina voters and they were not able to eliminate the bias in the plans the techniques are so sophisticated now that there's no room for self correction and these voters if we look at the popular vote for the house of representatives nationally in the twenty thousand election and compare that to the percentage of seats won by the two parties what to what degree do they diverged i don't know the answer to that question of the top of my head i know there was a five point advantage for north carolina democrats and in twenty eight cities this is a great national problem is there when we see a great divergence there we look at the statistics across the whole country there's not gerrymandering in every state in fact our brief points out the fact that most plans are symmetrical gerrymandering isn't in every state and so i don't think that metric is particularly informative on that front thank you counsel two minutes mr clement i think you're honored to stick to a few points in two minutes first i do think at a very fundamental level my friends on the other side of the victim of their own technology because they have produced twenty four thousand maps that are permissible maps that don't take partisanship into account at all and there submission is that a legislature organized on partisanship winds cannot take partisanship into account to any material degree in picking among the twenty four thousand maps and that's just an argument oatley to reassign th use partisanship as to promote a dominant factor then you can produce a lot of man that are not this one that's what they have shown right but you can also pick one hundred sixty two that are this map and how is a partisan legislature supposed to choose from among those maps if they can't don't art is the one criteria that intentionally and invidiously looks to exclude the other party that's their basic point that was the basic point of the judge blew that's right so you're basically asking state legislatures not to act as state legislatures and let me just finish with this observation which is a lot of hard constitutional issues come before this court because you're dealing with something that was unknown to the framing generation but the framing generation understood partisan gerrymandering first hand james madison was the intended target of a partisan gerrymander by patrick henry he complained about it bitterly so did george washington neither of them contemplated suit hamilton actually suggested to john jay that the federalists ought to partisanly gerrymander the electoral college for the eight hundred presidential election john j said it wasn't such a good idea all three authors of the federalist papers knew about this and didn't think there was a judicial solution thank you thank you count so the case was submitted