should be familiar to the court because they've been before the court on multiple prior occasions even though there are two congressional districts here and they're both north carolina congressional districts the issues presented by the two districts are actually quite distinct with respect to congressional district twelve it is different from both the house of delegate districts in the previous case and congressional district one because this was not a district that was drawn with an avowed intent to create a majority minority district to comply with the voting rights act rather with respect to congressional district twelve this was a valid lee a political draw now if that all sounds familiar it's because it's the exact same dynamic that was before this court in  to this court in reversing a district court on the clear error standard concluded that when the state actually said that this was a political draw that race did not predominate over politics in the drawing of this district and that is essentially the exact same dynamic that is before this court now with one major difference this is a much easier case for this court to reverse than crim r t two was because this before even before this court gets to the clear air standard review of review there is a clear legal error here that was created by my friends on the other side's and the district courts failure to abide by the teaching of cromartie two i think cromartie two was about as clear as it could have been that in a case where you have a majority minority district or something approximating it and you have race and politics highly correlated and you have somebody challenging the state's suggestion that this is a political and not a racial draw what the plaintiffs must show not can show not may show not it would be nice that they show must show is that there are alternative ways that the following off analysis in a case with purely circumstantial evidence rather than direct evidence of race based district then i think you would have heard it and it would have sounded different if the court had really meant that in every case where the question was is this politics or is this race there was a requirement to present maps that passage just would have read a lot differently i respectfully disagree justice kagan for at least two reasons one is there was direct evidence in chrome already too and indeed the direct evidence is eerily similar incrementally to you had evidence that the map drawn her drawer himself had taken a race into account with the treatment of the african american community in greensboro which is guilford county talking about it i guess that's why i say i was the problem when i wrote it was in a case such as this one and then people can argue what does that mean in a case such as this one by the time we reach the alabama case there is a need seen by a majority of the court to try to bring clarity we're speaking as a court not every individual gets his own way or should and so if we go back into an area and try to reconcile the case and try to come up with in a complicated area a set of standards that will prevent us from being turning into the nineteenth court of evidence to consider some highly detailed matters and so forth you know all the problems here i would take that or at least i'd start taking that last case the alabama case as at least trying to set the way in which a district court should go about deciding a case such as this one will just as i not do that no in the following respect which is you have a state that says why do we do it the voting rights act made us do it we did it we wanted to draw a majority minority district because to is this court's last and best word on cases like this where the state says why do we do it politics we don't want it we looked at the benchmark map the benchmark map had congressional district one over here which was a majority minority district or at least close and we wanted to preserve that as majority minority district we know how to tell you when we're taking race into account we we said we're doing it we're not playing hide the ball here we did it with respect to cd one and when it comes to cd twelve we look at the benchmark map that's a political draw well the question to be is is it right i mean that's the question that the district court was trying to answer is a politics or is it race of it's politics it's fine if it's race it's not and and so let's just take a hypothetical not this case but let's take a hypothetical which is a state really does decide to do race based district and says we want to segregate all the african american voters this is the way we want to do it but then they said well will will will justify it based on politics because that sounds better right  so and but but there's lots of direct evidence that in fact the justification is politics but the true reason is race now are you suggesting when you stood when when in in your in your first statements there suggesting that even if up and of comes in and has all this direct evidence that they're really trying to do race that the plaintiff has to present its own maps and i would say yes and i would say why not i mean we're talking about a situation where the plaintiffs going in asking a federal court in this case after they've already asked state court last i'll get into that later maybe but we're asking a federal court to say and hold that a sovereign state legislature that says it's politics was dissembling and it's actually race now that's a big thing to ask of a federal court it's a unique thing in these two cases which is different from what you're asking a federal court to do when the state is forthright that we took race into account to comply with the voting rights act but it's also a big thing to ask plaintiffs to come in with their own maps if they have direct evidence that the state is dylan race based rather than politics based district and  t i guess i'm a little less troubled by being demanding of plaintiffs than i am of putting sovereign state legislatures in a difficult position and if there's all that direct evidence because i think the alternative  breeze i mean if you know if there really all this direct evidence that this was really about race and the idea that this was about politics is just a pretext i think it's going to be easy as pie to show well actually right here you could draw on this map differently and you would not have taken race into account not so easy because we know that race and politics correlate and the question is it's not that i mean that's just a fact of the matter but we've said notwithstanding that if race is your motive you get one result and of politics as your motive you got another result so these maps are actually hard to do given the extent of correlation there is but the wrecked evidence of race based which i have to say there really is in this case because the principle line to our says they told me to get above fifty percent believe that direct evidence that basically makes the case for somebody you're on just to be clear that that hit the direct evidence are actually is incredibly helpful for my clients as to cd twelve because the same guy who had no problem saying as to cd one it's above fifty point one percent also testified that he had exactly the opposite instructions for drawing cd twelve and that when he drew the map he didn't even look at racial data he looked at the two thousand and eight presidential election and the political results from that and drew the map in order to bring in democratic voters and exclude republican piece of this discussion no that's not what he said he didn't say he basically was said look do it as a political draw and then you're going to have to essentially check what you did in guilford county with the african american community because guilford county is a cover jurisdiction you can go back again he never says oh well actually when it came to guilford county i turned off the political screen on my map drawing software and picked up the race strong screen what he did is the whole time he drew the maps he had political data up there precisely because race and politics are highly correlated he drew the map to draw the democrats in and the republicans out that he checked his work specifically with respect to guilford county and he did treat guilford county differently and he should have because guilford county is the only covered jurisdiction in cd twelve and he looked and he said aren't the african american community together i don't have a problem now my friends on the other side want to take whatever quibble there is about guilford county it's essentially uncon overted here that with respect to everything other part of the map race wasn't taken into account at all it's essentially uncontroverted because nobody says he turned the political stuff off for guilford county so all he did as he did a cross check is to  ford county to make sure that there wasn't a retrogression problem with guilford county which is exactly what he should do by the way but talk about eerie similarities i mean it was guilford county and it was greensboro and  and what this court said in giving that direct evidence relatively minimal weight was to say well you know if you look at the rest of that e mail the map there are was very candid about taking race into account and drawing cd one and was much there's much less race involved in cd twelve so it didn't predominate again the the similarities could not be more dead on with this case of the most you can get out of guilford county is that race was taken into account in some way that did not make it predominate and the same evidence here as incrementally to that if you contrast the way the legislature proceeded with respect to cd one in cd twelve it's virtually impossible to think that this was all a pretext i mean you know i understand why you want to search a little bit more when you have a legislature who comes up with these racial maps and they say yes to all of it race had nothing to do with it but when the legislature repeatedly says we treated cd twelve differently from cd one i would think that you would want some pretty substantial evidence before you second guess that conclusion it overrode it and i would think that they would want the maps is would want the maps if i could to substantial evidence that congressman watt comes in and he sits on the witness stand and he says i had a conversation with the map drawer and the matter is said that my bosses told me i have to get up over fifty point one percent black votes so substantial evidence a congressman says reports on a direct conversation he's had and who says he has received orders from on high and well no he says that's the thing i mean there's a dispute whether that conversation ever took place in the in the record in this case you have senator r multiple public statements that say that cd twelve is not a racial draw it's a political draw you look at all the other evidence here and let me get back to the maps because here's the thing i mean you didn't just make that straight comment incrementally to you did it after you were now lists in the opinion where you looked at the maps because they it wasn't like the problem for marty two is they didn't have alternative maps the problem was an increment of two as they had the alternative maps and they showed that they're very very useful just because and politics are so highly correlated so when you try to draw an alternative map as incrementally to and it's like oh guess what you can get a better racial balance only if you pair to incumbents and i understand the problem of cromartie too i understand believe me and i think that the problem in crew marty too is it doesn't say in all cases i mean it's pretty care it's i write that for a purpose you know the court writes when it says in a case like this one it's a little ambiguous but it means that we have by the time as time progresses as time progresses we face what you see and i see is the problem right now which is a set of standards that district courts can apply which will try to separate sheep from goats without us spending the entire term reviewing five thousand page records right that is a problem you have by the time we pretty clear by the time we get to the later cases so i don't know i understand your argument i understand your argument go back and look at it you think it's absolutely determinative cromarty two i'm not so sure i think it's determinative because you didn't just say in a case such as this when you said in a case such as this one where it's a majority minority district or a close approximation and race and politics are closely correlate and i'll even give you a third criteria which is in the cases where the legislature stated goal was politics not rates and so it's absolutely set it but you were also absolutely right and before you decide whether it's sheep or goats i think it's perfectly fair to say that there are two breeds here but can really there are the cases where there are more common ones the alabama case is the shock cases those are all cases where the state comes in and cd one which i'll talk about in a minute those are all cases where the state comes in and says yeah it was race it was race because of the voting rights act we don't think race predominated and if it did we survive strict scrutiny but there's a whole separate class of cases the smaller cases where the state comes in and says it wasn't race at all it was politics and sure they're highly correlated but it was politics and they're very sensitive cases for the state because if the state does that as this case shows if they're if they lose because they were found  have dissembled they don't even get to the second half of the case because i can come up here and argue that it was politics not race but if you think we're lying by the way it was we narrowly tailored i mean you don't have that opportunity and so there has to be a very high and say that's the test for those kind of cases and it's not the world's up you know biggest burden to come up with an alternative map and if the alternative map shows that the way that you take race and do look at rather politics into account to the same extent without better races by pairing incumbents are making a district that looks like this look like this which is exactly what you found in from r t to you looked at those alternative maps and they weren't you know i mean you know that it was not beyond the ken of man to come up with alternative ma that case the problem with the alternative maps in that case is that they actually showed that the legislature was exactly what i mean to say is even though the district court listened to them outdoor and believed him and his statements are pretty much against you and then they heard two of the state senators and they were pretty much against you and it's up to the district court to evaluate the strength of witnesses and came to the conclusion on the basis of thought that in fact it was race was really the explanation despite that everyone who comes in has to have an alternative map and of course if we have five intervenors and so forth we're going to have five or six different alternatives now going four hundred i don't know hundred state legislatures and so forth that's what i'm supposed to say well first of all i don't think that the direct evidence here is of a character that is materially different from incrementally to itself and i would say that look you're trying to give district courts directions for a whole bunch of cases everybody's going to be able to say i have direct evidence i was going to be some direct evidence the quality in character of it is going to differ from case to case but what i think you should do is in this class of cases where the state's defenses politics not race is all five interveners can get together pool the costs which are going to be minimal give me at least one alternative map that shows that you can do the same political thing without a comparable effect on race i don't think that's too much to ask i think it would make your jurisprudence much more administer bowl it would also have the virtue of applying starry decisis because you did say it in two and again you know every one of this court's cases says that this is an extremely difficult business that it's an inherently legislative business that it is humbling and big thing to have a court second guess these decisions so i think in a world like that especially when you've already set it to say that there is an alternative map requirement as a gate keeping function to guide a district court to give the district court the same tools you used in crime are the two to say ah you know it's easy to say that that was a pretext but when i actually look at this you know i'm going to i'm going to at the end of the day i mean i'm going to look at that alternative map in conjunction with the direct evidence the circumstantial evidence but i'm at least going to be guided by something that says you know there was another way to do this and that really does make me think that this direct evidence is a lot more probative than it might otherwise because i see there was an easy alternative if they really just wanted to help the democrats hurt the republicans or vice versa this it could have done it with a to use of race does it create dominate that's the evil the constitution is intended to avoid seeing my way is to say state legislatures go out and always say it's where you'll come up and say on their map this takes care of this problem but there's another political reason for not doing it that way there's another political reason for not doing it this way it's impossible race you do alternately have to have a mechanism for determining which one it was and our humble point is everybody agrees that they're highly correlated that certainly creates the possibility for abuse so we're not saying there shouldn't be any test but we're saying is that you know this is a difficult thing it is a particularly damning thing to say that state legislature especially when they're being candid about their use of race and cd one to say that they were dissembling is a pretty big thing and it's going to be the only issue in the case because there isn't going to be any strict scrutiny to fix it on the back end because they're going to say we don't take race into account at all to simply say it is certainly not beyond the ken of man or woman or anyone else to come up with an alternative map and it's not just because you're doing it to be mean or imposing costs they're actually extremely useful for the analysis and you only have to look at the commodity to opinion to show how they can really show well yeah if you do that and you can get along great and that's not going to be the case in every case in some cases you were going to be able to come up with a perfectly functional alternative matt if i could turn my attention now to cd one which is an issue which is a case that is more like the virginia districts in the sense that here it is it is a valid use of race in order to preserve a majority minority district now as to this one in particular we think that the district court erred in applying strict scrutiny simply based on a centrally the adoption of be that floor fifty point one percent but the easiest way to affirm is probably to do what the north carolina supreme court did in the parallel state litigation which it also confronted a district court that it plied strict scrutiny because of the that floor was applied but the lower court there had said but applying strict scrutiny we think this is merely tailored the north carolina supreme court said you know the district court screwed up on finding strict scrutiny triggered but nonetheless we agree this is an early tail and i think you could do the same thing here see if you reverse in the district court on the legal judgment about merrill tailoring but it may be the easiest way to decide cd one because here the map drawers of course they admitted they took race into account but they were dealing with a difficult problem which is they had a benchmark map that had cd one as a majority minority district now it was to be sure it was a coalition district was about forty eight a little bit north of forty eight percent be valid but it also lost ninety seven thousand votes and so they want to preserve it as a majority minority district based on their reading of strickland and some other things they say you know the safest way for us to do this is to get it over fifty point zero one percent so we're going to tell them after our that we want this over fifty point one percent the map drawn gets that instruction and draws a district that ends up at about fifty two point six percent now the very fact that it's at fifty two and not fifty point one shows that it's not like this ratio was preserved over everything else but also i think it's worth in this case in particular to understand it's not like there was a myriad ways to do what the map there are did in this situation there were really two opportunities you could either draw the district to get part of wake county and that would get you over fifty percent or you could go into the city of durham and get over fifty percent that way the first time the map roared through the map drew in wa county got to fifty percent that way there was some back and forth with representative butterfield and the like and they decided you know ok will do the durham county what extent and what circumstances sex like that require the contiguous district redrawn in order to comply with assume that you're using race and then you have to come by with strict scrutiny to what extent do you think the v or a requires a compact or contiguous district i think it requires a reasonably contiguous district and i think i mean this is a situation where you know this was you had to get a more compact district and in order to get either wake county or durham you know essentially have to extend the district to capture those territories the one thing i'd say before i sit down additional thing i'd say before it sit down about cd one is i think it is very telling to look at representative butterfield testimony in the record here because what the lower court found is that the reason that we lost on strict scrutiny was there was not racially polarized voting in cd one or more particularly the state hadn't done enough to show that now nobody thinks that there isn't racially polarized voting in cd one they don't think that they think we didn't do enough to prove it but they don't think that representative butterfield doesn't think that he was the incumbent in that district the dispute is not over whether there's racially polarized voting it's whether well you know as better as representative butterfield testified it's got to be at least forty five percent forty six or forty seven it's probably better it could go south the forty five percent represented butterfield says that fully two thirds of white voters will never vote for an african american candidate in cd one so he admits there's racially polarizing voting so all this case comes down to it's not about whether we like racial targets or we don't like racial targets it's whether you're going to give the legislature the flexibility to choose between forty seven forty eight on the one hand or fifty point one or fifty one the other and if deference to legislature means anything that has to be within the deference and just go through district twelve as my colleague did and then talk about cd one the problem that the state has in cd twelve is that the finding of predominance was more than amply supported by the record that the trial court found and we are under a question as justice prior you you pointed out is whether race was a dominant and controlling factor in moving a significant number of voters in or out and it seems that the primary defense that the that the state has in trying to overturn the decision of the lower court is that an alternative map was not introduced while certainly an alternative map is a way to reduce evidence it can't be that it is the only way to do so there are all manner of ways to prove that race predominate and i would point out that we offered no alternative map in the last case i would point out that we offered no alternative which was the case that you heard earlier this year well why not because in each of these cases and in alabama they offered no alternative map in each of these cases there was no need to provide an alternative map to prove it circumstantially what amply existed directly it is not true that the state of alabama in that case or the state of virginia in this case did not assert political motives as a defense of some of the districts i actually want to do they did they in respect to this district district twelve because when i go back to crow marty two i think he's right it does say that at least where the evidence is close where it's a close question where one side is saying it's racial the other side saying it's political and it says that party attacking the legislature boundaries has to show that the legislature could have achieved its legitimate political objectives in alternative ways that are equally consistent with traditional principles now it does say that it does your art so what what is it that you suggest my having been quite strong for following the story decisis in the house but what do you suggest about that if you're going to say less reliance on rice that's what it seems to say i think your honor because it doesn't really say that you could say i mean there are many things you might say i'm not suggesting you answer i want to know what you do say or you could say it doesn't matter because we have  a giving weight to the district court doesn't matter isn't that important but i don't want to suggest something i'm not sure i want to hear what you think that's what justin's eyes there are i think that cromartie the language and commodity that is being focused on is discussing the case the that take the case in which as you say there were lots of maps that was a fundamentally a map's case where there were each side is proving their case through maps princip through circumstantial evidence of what was in various versions or maps in that case we're offering a lot of maps on both sides you at least have to offer one that shows you if you achieve the goals of the political goals without without  without race predominating i would point out as a as an important footnote the stay on remand the state of north carolina actually did draw a remedial map in this case so it's not a hypothetical whether they could draw a map that achieved their political goals that did not gerrymander based on rights because in fact the state of north carolina after this drew a map of validly on political data not using race data and in fact drew this district at a know if they didn't say that then i'm not sure if they were able to draw another map doesn't does it really prove anything if the legislature says this was done on pop based on politics and there's no way we could have achieved our political objective without doing this they can't prove a negative so it makes sense to turn to the other side and say prove that that's wrong prove that that the political and skewed be served without taking without drawing the map that was that was before  that that was drawn your honor i think the problem with the read a reading and the reading that's being offered is it puts the constitutional kark before the horse the the harm is in using  race as the predominant factor there is no constitutional right to political gerrymandering that has to be protected what has to be protected is a voter is not the question is what was the basis for it was the politics as they say or was it race precisely so if there isn't if no one can point to a way of achieving a political objective other than through the map that was drawn and that's evidence that politics was the reason for it your honor it may be evidence of it it may also be evidence of race serving as a proxy for partisanship which is not permissible but even if it's not that your honor may be evidence but that doesn't mean there can't be other evidence ok what we do is would you accept that a map is necessary except in the case where there is quite strong evidence i don't buy that race was the base i don't think that this court needs to define out the strength of the evidence i think it's evidence i think the map is evidence i think direct testimony is evidence i think like most trials it's a mosaic it's not us it's not a smoking gun  of evidence in this case well how much weight you think the absence of a map is entitle to i think the absence of a map is intitled to no wait i think that the fact that there is a that there is a map that is was an acted is obviously is obviously and the evidence that they do such a trial that race and party correlate it to a large degree is obviously evidence that it was that it was political but in this case look at what it is that roots show and lewis said we before we get to hot for the map for let's talk about what they said what the sponsors said quote because of the presence of guilford county this is not descriptive this is  costs but for the cost of the presence of guilford county in the twelfth district we have drawn our proposed twelfth district at a block voting age level that is above the percentage of black voting age population found in the current twelfth district a statement from the sponsors that it was rakes what did you what did the experts the experts said in his expert report and this is j eleven zero three the general assembly mindful that guilford county e by the department just under section five this extension of new twelfth district further to the northeast into guilford county cost caused the circumscribed circle around the district to increase  in diameter and lower the react i think the evidence with respect to guilford county is your strongest evidence but beyond that the rest of it is not very strong your honor but that is where the race predomina race predominated you it is a district justice prior to a question you asked in the last in the last case this was a district that was over populated by twenty eight hundred people twenty eight hundred people this was this was almost spot on one person one vote and yet they moved seventy five thousand african americans into the district so to say well guilford county isn't my strongest case yes that is in fact where they moved to just state ever put on any evidence that that was necessary to avoid a retrogression problem undersell now they offered no evidence that it was to comply with the voting rights act and why is that i mean it seems like is though that's what they would say wasn't that at issue whether it was a strategic litigation decision made by the trial lawyers that they wanted to put all of their eggs in the so to speak in the politics not race basket or whether their expert wouldn't support that this was actually necessary to comply with the voting rights act i don't know but they but that was not their argument it's also important your honor though to realize that the evidence doesn't stop there you have mel walk who with this who by the time he testifies before the district court he's out of congress he has no stake in this district one way or the other for himself he has moved on to the administration and after had a life after electoral politics and he says he's told that the reason and we want to get all the democratic voters in one district so there are fifteen that are republican but just what the democrats did last time i mean that's the kind of argument that they make what what about that what mel watt was told is that he is a respected african american was going to be expected to sell to the african american community so he's that he's going to be expected to sell to the african american community that this needed to be over fifty percent to comply with that we are it and you know what mel watt said in his testimony you should read it he laughed and he said it's not possible because the people in this district will know that there isn't a reason why this has to go above fifty percent to comply with the voting rights act the trial court also discounted the testimony that you that that my my good friend and colleague has has suggested was offered by the map to our mr hoffler about what he was told in that he only used that he turned off race and he only used partisanship that whole that congressman watts testimony now you referred to something other than what i thought she highlighted in your brief what you highlight in your brief is double hearsay congressman watt said groucho told him that somebody else told him something and none of those people is actually the person who drew them up and i don't even know whether any of that's admissible to prove the truth of the matter but if it is it's pretty weak evidence but your honor it was admitted there was no objection to the evidence and it is evidence that the trial court in viewing the witnesses and weighing all of the evidence from it credited as important evidence so i understand obviously the supreme court you can you can do whatever he want but i think that the role of an appellate court is to look at the look you waive the credibility of this and whether it sounded like attenuated double hearsay or whether it sounded against all of the rest of the evidence it sounded like something that is believable when judging demeanor and the and and the like the other thing that i think is here that is often that is overlooked is look at what the actual number came in at right isn't it coincidence that politics drove the map and yet and it just so happened that it came in a fifty point sixty six that's not a coincidence and the trial court was entitle to not find it to be a coincidence that the fact that the number that ultimately came in was was just a hair above case before where there's a finding of fact by the trier of fact and that's the that's the rules of procedure that's what this court has done for many many years and it is what my clients are entitled to this is their case they brought this case they're entitled to have the second point i would make i said there are two points second point i'd make justice kennedy is that the state case was really quite a different case in several respects first of all the state case was predominantly to use a word that's come up a  lot was predominantly about the state lines that yes they were challenging the congressional district but most of the testimony in that case actually didn't relate to these two congressional districts that actually related to the state districts number one number two is there are not the findings of fact in the dixon case the case the state case there were not the specific findings of fact about the credibility of witnesses that are found in this opinion so this this this trial court was very meticulous in laying out what facts they found most credible what they were lying upon the state court action was much more conclusory in that regard in part because frankly it was dealing with a mountain of evidence around the state legislative the state senate the state senate districts and then finally i would say your honor there are other judicial mechanisms available to this court and two district courts generally to control to handle the question of of multiple cases moving through the system congress made a decision that in the cases of statewide redistricting there would be a expedited process case is to move up through the federal system to the supreme court whether that was good policy on the part of congress or bad policy on the part of congress it was a policy decision on the part of congress that those that cases that come up out of the federal courts come from a three judge panel on direct appeal to this court and the other the other cases the other case goes through the normal circuit channel and this court might choose to hear it might not to choose to hear it but that's not an accident that's not fortune that is actually a deliberate decision that congress made in structuring structuring the review and then finally i'd say is that this is a question of the application of federal law and the federal constitution are our claims are in fact federal constitutional claims the defenses are largely under the voting rights act and it there is no reason why this court wouldn't give the same normal weight to a federal three judge panel in the finding of fa in those kinds of case cases and somehow defer to defer to not a question of deferring it's a recognition of the state courts have an obligation to construe the federal constitution to the same extent the federal courts do that i would have thought there was a pretty well established principle they do because of chief justice but it is also an equally well established principle that this court judge's findings of fact by lower courts under clear are whatever the state of north carolina but that doesn't seem responsive to the point you just made which i understood to be that we ought to give greater deference to the federal court findings and rulings than we would with respect to a decision from the state court that i misspoke your honor i'm not saying we should give greater government i'm saying we should follow the rules we should follow the ordinary rules the ordinary course which is the case that is before you is the is the case before you and the finding of fact by the trial court in this case are the finding of fact that are entitled to clear error what i was what i think i was trying to address is there are circumstances for example in the in the gro situation where you have a deadlock where there is no map before a state court i'm sorry there's no map because the maps either have been deadlocked or it's been thrown out there th has said well let's let the state courts go first because they're exercising a policy judgment the state that's not present here here it's the federal constitution and it's the federal federal voting rights act so there really is no unique of a state perspective that ought cause you to overturn one hundred plus two hundred plus years of jurisprudence about plaintiffs having a right to have their case heard do you think we should give any consideration to the state court decision or should we proceed as if it never occurred i think you can read that decision in the way in which you would read any other decision of a lower court that may be of interest to the court so i don't think it is entitled to any more or less  thinking of the of of the case but i don't think the findings of fact are entitled to any weight in this case i think that clear error standard applies with respect to congressional district one i just because my time is about to expire want to make the point that this was just a clear error of law the court found the court relied on an incorrect reading of bartlett that led it to believe that it needed to destroy a crossover district which is which is what it there was no evidence of racially polarized voting actually preventing african americans from electing kind of their choice i appreciate your indulgence thank you thank you  chief justice and may have please the court i'd like to start with congressional district twelve this is the serpentina district the one that basically everyone agrees looks terrible and the question is whether race was the predominant motive or whether it was politics now this determination the court has said on numerous occasions is one that's reviewed for clear air and the district court had a lot of evidence before it went through a three day trial and i just want to highlight some of the key evidence that it relied upon in making credibility determinations and in finding that race was the predominant motive and that starts with congressman watts testimony that route show was one of the architects of the plan told him that they had to ramp up the minority voting percentage in the district to over fifty percent so that's the racial target at the starting point in order to comply with the voting rights act and then as counsel mentioned we have that target being hit on the nose fifty point six six percent and then we have evidence direct evidence of the way that the state did it and that came from the mapmaker and he said although he did also say first that he did not use he only used politics did not use race he made contradictory statements and said that he did use race with respect to guilford county that he pulled the black population from guilford county in order to comply  voting rights act and i think if you looked at the record justice prior you would see exactly what you anticipated which is that the state was pulling in concentrations of the black voting age population and the concentrations were so high that that supported this inference that they really were using race and there's a chart in the plaintiff's briefs and there's evidence cited in our brief that shows that you really had that concentrated polling in that's how it was done with respect to go for county and then the last thing and i think that this is important is that the district court made credibility findings that the political motive had been discredited mr coleman is right there is evidence that was there about a political motive but the district court found that it just wasn't credible in light of congressman watts testimony which the court credited about the target and in light of the fact that the political testimony which is mostly put on by the mapmaker had been contradicted by the mapmaker himself when he said that he used race and also contradicted by the two architects of the plan who kept trying to downplay politics in their statements and so when we look at this and particularly in light of a clear air standard you have a judge a three judge panel that went through three days worth of evidence made credibility findings went through volumes evidence and even the one judge that disagreed with respect to this particular holding recognized that what the majority did was reasonable referred to it is eminently reasonable the well reasoned opinion of the my jordi and in those cases i just don't think that you can find clear air once you know do you have to say about the voting rights i mean the clear air standard with respect to the state court decision as well i mean it is certainly something of a for two or three that we have the federal case before us are not the state case and if it were the state case we'd be reviewing their factual findings on the same question for clear error and now you're saying well this was years so we should likely or it seems to me that that response is not terribly helpful in addressing the conflict that's before while a couple of responses first of all the way that the court deals with potential two bites at the apple problems is through the rest judicata claim preclusion issue preclusion doctrine so to the extent that you're trying to figure out what weight if any the state court decision has we think that that is the appropriate lens because it literally is that mean which everyone was decided first or whichever one arrives here first well i think you would have to ask whether the rest judicata principles had it would it would have been the state court being decided first but you have to ask whether rested a kind of well the application of rest judicata would depend on north carolina law in this instance because it was a case out of the north carolina courts and we don't have a position on the application of north carolina law i'm just saying that the way that you deal with this question is through application of the rescue to cut a framework as opposed to doing something different like saying now we won't use clear air anymore we'll go to dyno review or something like that we want us to apply to decide this question and we don't have a position on what the answer is well i think if the court is worried about the state court having some effect that it would ask there whether there was a rescue to cut a bar and there would be three hurdles i think that the state would have to overcome in order to prove or in order to show that there was arrested a kind of bar first of all whether the argument was waived that's addressed in the briefs second of all whether the factual predicate for privity that the state claims is there there's also substantial question on that and then third whether north carolina law uses a concept of privity that is very expansive really beyond where this court was in the taylor versus st decision my point is not that you need to resolve that or that you need to decided a certain way it's just that if you're asking about how do i what do i do with the state court decision the way you figure out what to do is by using those principles what you don't do is simply defer to the state court findings i don't see how you would do that because this case is here on appellate jurisdiction you need to decide the case that's before you and we don't think you would do something like used in novo review because after all rule fifty two which mandates clear air of factual findings applies to fails because because the state didn't give any reason to pass strict scrutiny the only potential read would be section five that the state had i think suggests suggested and that that wouldn't make sense because section five is to prevent  retrogression and here they increase the black voting age population by seven percent so it wasn't a matter of preventing retrogression what is your view of when maps should be required so we don't read the court's decision in chrome r t two to require a map any time a political motive is asserted we take the court at its word in a case like this one and that was a case of circumstantial evidence of race there really was very little direct evidence of race the court even put direct in quotes because i thought the direct evidence was so insubstantial but there was strong evidence of politics in a correlation between race and politics so when you have the strong evidence of politics little evidence of race and the correlation then we think it made sense in the context of that particular case for the court to say particularly since the maps were put in like give us give us an alternative that really shows this but when you have a case conversely which is a strong direct evidence of a racially predominant motive it just doesn't make sense to require the map because what the equal protection clause gives you is is not having race being used for an unjustified reason it's not the map isn't a per se it's just the map is just an evidentiary thing that you could have or not habits one type of evidence with the response strong direct evidence with a mapping us sir well we think that this court has tried to give flexibility in terms of proving racial predominance so we see cromartie is a strong direct evidence of politics case and maybe one of the thing that i might say is that we just don't think that the court we think the court if it were adopting a map requirement for some clear set of cases that it would have explained it in its opinion and it would have done something with its prior what i think going on in part is a very tough matter and years go back years ago yes there were many states that had many black citizens and no black representation and there was a thing  called majority minority districts and the problem is how does the law permit the creation of the out and at the same time prevent the kind of packing the might appear in other cases which is gerrymandering and no one i think has a good answer to that question they're just sort of the better slightly worse so if you're too tough in this case in rejecting the notion that it was politics which is correlated with race then what's going to happen out there to a successful effort to create majority minority districts where matters change times change oceans rise you know how do we keep how you see the problem yes i mean we're very sympathetic to the state's interests and we think that the court has tried to be sympathetic to the state's interest and we think the court has done it in decisions like alabama and there's two things in particular that the courts not just the state's interest it's a constitutional interest in seeing that minorities have representation in reality in the legislatures right and so what this court has done first of all is to ask about racial predominance the first question being was race really the predominant motive not just one factor but the predominant motive show us your evidence and here that this report had that evidence but then the second thing is when we get to strict scrutiny the state has said give us your justification and that's really i think the problem with the first congressional district in this case is that the state was operating on an air of water first of all and second that it just did not provide the justification and that's what the voting and section five focus on is not just as you said in alabama for the court not just picking a number out of thin air but showing us there's a problem here with potentially with respect to russia or aggression there's a problem here with respect to vote dilution and with respect to the first congressional district in this case there just wasn't evidence of a potential problem of vote dilution because that the lower percentage not being a majority minority district the african american community was able to elect its candidate of choice really is on a sustained basis over a period of many years and by wide margins so in this is on page forty nine eight of the district's opinion it said look the state just didn't make the case it also said the state was operating on a mistake of law and so just getting back to your question you know we understand that this is a somewhat delicate balance and we think that the court has attempted to balance the important interests protected by the equal protection clause against the concern that states have and the flexibility that states need by adopting these two different parts of the standard racial predominance and then the strong basis in evidence for strict scrutiny thank you counsel mr clemente you have four minutes remaining thank you mr chief justice a few points in rebuttal first of all it is worth recognizing that six trial court judges looked at congressional district twelve and four out of the six said that politics not race prevailed so it's a funny sort of law that's going to defer to the minority if two i don't think you can just ignore the state court decision on the grounds that well they weren't specific enough or something i would point you to appendix b one sixty one through one sixty three which are the relevant facts findings of the state trial court where they were unanimous in finding among other things quote dr who fell or constructed the two thousand and eleven twelve congressional district based on a whole voter tabulation districts in which president obama received the highest voter totals during the two thousand and eight election the only information on the computer screen used by dr who fell are in selecting the v t s for inclusion in the twelfth district was the percentage by which president obama won or lost a particular fifty and of course that gets to the need for an alternative map and the difficulty here because it's all well and good to say well we looked at it afterwards and they polled in all these african americans but guess what they polled in all these democrats too because the african americans are democrats in the future and what they could have done which would have been simple enough if it were true is to draw a map that shows actually feller's a liar he wasn't using the two thousand and eight presidential election results because if you'd used those he would come up with a different map that would've been easy to do they didn't do that any alternative map would have been easy to do here and they didn't do it now they say they didn't do it in other cases as well and i think there are two reasons that explain that neither of which reflect particularly well on the idea was to get rid of the map requirement one reason they didn't do it is because in all of these cases they thought that as long as they could get the state to say we had to be that floor fifty one or fifty five point percent we're off to strict scrutiny land so we don't need a map on predominance that's actually wrong and i think this court will say that's wrong the second reason is most of these challenges are brought by people who are at least as concerned about democratic political prospects as they are about avoiding race and the problem with putting an alternative map together is should you actually prevail there is no good dirty republicans on the other side could use the map and then say well look you can't really complain about that being a partisan gerrymander because it was your map so if you really want people to bring race claims and not dressed up partisan claims make them put them to their proof make them put together an alternative map that works now as to guilford county there's several responses here first of all it's all well and good to say they pulled in seventy five thousand african americans were hauled in all these african americans they were all democrats as well and that's why even there if you had an alternative map that show now there's a different way to do guilford county and that would prove to bring in democrats and not the bring in african americans then you'd have something but just the fact that they brought in a bunch of african americans because they were trying to bring in democrats is about as interesting as the sun coming up in north carolina because everybody agrees there's about a ninety percent correlation between race and per partisan identity the second thing is there's a very good reason justice kagan that we didn't make a section five defense because this wasn't a case about guilford county their theory is not that we did something nefarious in guilford county to overly comply with section five their theory is that c t twelve was drawn as a majority minority district county in cd twelve the intentional placement of a significant number of black voters within cd twelve establishes racial for don if i may respond to get them to fifty percent and here's the thing if they focused on guilford county they would have had two problems one we would have had a section five defense if that's the way they actually get upset but the other was senator root shell apparently believed doing so was necessary to avoid retrogression for section five purposes exactly enron or exactly or if you look at a majority minority district he said and we avoided any problem by making sure that we had at least a higher be that percentage than in the benchmark map and that avoids any potential section five concerned with splitting that county and putting the african americans in guilford county in the neighboring city six which is a republican leaning district and they'd be the first to complain about that thank you thank you counsel the case was submitted