we'll hear argument next in case eighteen seven twenty six limone versus bennett sic mr sullivan mr chief justice from a please the court i like quickly to try to reorient the court to maryland's case and then  if i can address some of the concerns that i heard in the argument that you just had in this case the court should reverse and vacate for three reasons the first amendment retaliation test that was adopted a single test was used here fails to provide a management standard because it does not give courts in legislators the means to distinguish between excessive political considerations and those that have been deemed constitutionally acceptable was was this in excess political consideration i don't think it was your honor whether you the court may like it or not this is the norm for states where one party receives more than sixty percent of the vote in congressional elections those states have a line of well if that's right then your defense is not really that we can't tell the difference between excessive and not excessive because under any measure this is success of his and that i mean you know only need ten thousand votes to do the  population measure that that baker requires and instead mapmakers move sixty six thousand republicans out of the district twenty four thousand democrats into the district flips the composition of the district from forty seven percent republicans and thirty six percent democrats to instead forty five percent democrats and thirty four percent republicans effectively ensuring that republicans will never win this seat again and that report and that maryland which has about thirty five percent republicans is going to have one republican house member for the forseeable future how is that not excessive there's a number of things wrong with that your honor respectfully one is it starts from the perspective that we take one district and we assume it's the whole universe like the famous new yorker cartoon all you see is new york buildings and not the rest of the country maps or form piecing together parts of the entire state this one is six district was heavily influenced by the decision that had nothing to do with partisan politics and that was to remove a crossing across the chesapeake bay that that would the stated goal was seven one for some it was but it was a goal of honor another  i mean i don't think you should run away from the obvious i mean the cross in the the bay thing is not very persuasive when all the evidence of this was just seven one and you know you got eastern grouped in with carrol you should run away from the obvious i don't think it's running away to say that there were a lot of other factors that that had to do with this the change in the first district that resulted from the crossing change to competitive district that democrats have actually been able to win a heavily leaning republican district in a shirt big to make the others all the other way to get from six to seven one or from five three or six to seven one you won't get the six governor o'malley statement that given the population growth in the western part of the central part of the state montgomery county primarily had the largest growth you're going to see the most changes out the eye to seventy corridor he also said that so you'd have to say you seventy corridors a community of interest it is that was established in this record it's from independent sources that have nothing to do with they should have put it in the district so if the idea was to unify the i two seventy corridor or they could i look at the map and it's very simple put it in the eighth district well that would be an injury according to plaintiff's own complaint because they say packing is an injury that's remediable and that would be packing the democrats in not that that's a heavily democratic area that had more growth than any of the surrounding areas in the entire state the most growth right there and so it had to go somewhere and north was a reasonable direction for to go than a few street noise suppose hypothetically to get away from these what we had to use the three part test that you just heard one there are forty two bishops before whom they swear that they did this just to help democrats and we look at the map they used in the map by the way showed in statewide elections governor the republicans won that forty two bishops a base for another words it's indisputable second that this will in fact make a difference of who how many republicans there are and third that it's absolutely durable and there we get the greatest to titian's statisticians in the universe in there ok now imagine this is i've exaggerated enormously but if that were true then would you say this court should intervene and i'm not sure i understand all that and they haven't it's absolutely indisputed that there was a clear and absolute intent to do this just so the democrats could up district number two it is indisputed this will have an effect of giving this district to the democrats a number three it's a big effect and number three it will happen for the next twenty years ok so we've got all three parts i think if i understand it correctly on that assumption would you say this court should intervene i don't know that i can because justice breyer you express the need to limit it to the extreme circumstance i just pictured if you have that circumstance then you're going to have to intervene in arkansas kansas massachusetts oklahoma alabama kentucky and utah all states where it's more than sixty percent of the votes are cast for one party that's in the record eight seventy one in ten twelve was establishing was an rebutted that in states that have a similar political makeup to maryland you end up with a congressional delegation that looks very similar to maryland so if you're concerned about limiting the court's intervention to the extreme circumstance at least under the current state of affairs in these united states you would not be limiting it to extreme you would be saying get ready arkansas kansas massachusetts oklahoma alabama close are and why should we assume mr sullivan that everything would stay the same if the court said that something was unconstitutional don't we usually assume that people change their behavior when the stone a constitutional rule i mean the reason why in this case and in the case just before you all these politicians are bragging about the amount of partisanship they can put into the maps is because they think it's perfectly legal to do so if the court said it's not legal to do so presumably some actors would change their behavior no yes your honor and we certainly would in maryland because every time there's a redistricting before the redistricting the legislators and the governor are briefed on all the legal requirements as happened here and there that would happen in maryland i'm sure in other states as well would be an example of a situation where the the drawing of the district would be impermissible would constitute an permissible political gerrymandering in your opinion well we've said in our brief certainly as indicated in the prior argument where the minority vote getters dictate the results for the majority that would be a situation hundred sixty to a democratic governor the legislature both houses controlled by democrats adopted a distinct plan and it was taken referendum and the people of maryland rejected it at referendum and that's in our record and  a new map was drawn presumably the people were happy with that here in this case this map was also taken a referendum and the people overwhelmingly approved it one point five million voters including in counties where republicans outnumber democrats  notices that each voter received before the election explaining the referendum question and in the washington state grange case this court said that such notices eliminate any threat of voter confusion so that's this but also this court has has not presumed that voters don't understand in the andersen case on which point us rely the courts and the people the court's going to presume that people are informed that they read the paper and here you find at page seventy of joining appendix unrebutted testimony that the washington post ran three lead editorials urging the people of maryland to reject this plan so it was not a secret ballot if it was  issue in the state and the people overwhelmingly approved it and we've heard what i read there and it's the exact words of the thing they voted for or against this referendum petition establishes the boundaries for the state eight united states congressional districts based on the recent census figures as required by the united states constitution and quote right right now is that sufficient if that were the only thing the voters knew but this court presumes that they read the paper they watch t v they talk to each other they have forums as were held here but it was here in the only thing if i thought that it leads to a large number of them but this was the only thing they knew which is what you just mentioned then is it sufficient now it's not sufficient for this court to conclude that there was a problem because its president says you have to have proof that there was actual confusion and we have no proof in this  just this one's not quite sure what your your your position is they may be but we in our case we've only had a chance to litigate and have an experience with the one test that our court used so we don't really have that benefit of being able to tell you with the informed level of analysis that counsel did in the prior argument well put you know you had time to yes and assuming you would have are you ok with any of th i i'm not going to take position your honor it's not in our case and typically what the court has said in beat it's the plaintiff's obligation to come up with the standard plaintiff came up with the standard that they wanted to use in our case and it was used by the district court just we're here to argue that that was and that standard did not manage you start your brief by saying that you agree partisan gerrymandering poses a threat to democracy yes this court has said that what should we what should the test be that well i again i can't speak beyond what's in our record i believe there are tests that can be can be adopted and this court can come up with them it your position that this what what was done in maryland would be ok under any test but you're not going to tell us which of the possible tests is the right test are you just saying the walk test was done was used here so we should send it back and in this very case we wouldn't still be here if the court hadn't found in the first go around that some form of first amendment standard is not foreclosed by this court's precedent otherwise the court would have had to reform dismissal all i ask you the question  i asked mr coleman which is why can't the constitution be interpreted to require something close to a proportional representation in your view or my personal view of it could be but i don't think you need to get that far to say that you could use proportionality you're saying the constitution could be interpreted to require something close to proportional representation just as the new would lose when you  if proportionality is interpreted in light of the reality that as both experts testified in this case or written at least when one party gets a super majority of votes they tend to get a higher percentage of seats than they would get from the straight vote count and as dr mcdonnell points expert has written if there is any correspondence between those two it's really accidental because typically it's going to be higher s taking retaliatory action against republicans who were in that district and had a more effective vote and penalizing them for exercising their right to vote by moving them out to a different district what what's wrong with that argument well as we've explained our brief retaliation that colin alice's has never been used in the legislative realm and to say that but displacing results because the party that had the more votes was retaliating against the other part change in how redistricting has been done and i guess i don't understand i mean if you have i don't know any other kind of a state employee and you don't like her exercise of first amendment rights and you fire there's a pretty well established analysis for approaching that case and i don't know why the same wouldn't reply apply here well in the employment context you can't really unless it's a policy making employee you can't take into account the employees political views pretty much at all but in legislating political views have to be taken into account people have to speak and have to express their political views in whenever there's a legislature and acting it or when the people of the state and acted as it happened here so you're in two different contexts one where where speech is prohibited to be a basis for action in the employment contest and legislation were speech is inherent and necessary in order to resolve that speech against other legislators or against voters i mean you think it's all right to retaliate against the republicans from the district that were moved out because of how they voted i don't think that's a fair characterization of what legislative to do and here it's a question about who are you telling any against washington county before they reject this or going voted for the republican mr bartlett overwhelmingly the first election held after rejects treating the same county totally intact presumably the same voters that have voted in two thousand and ten voted for the democratic candidate so drawing those kind of distinctions in maryland is very difficult the evidence in the record of crossed across the aisle voting was very strong are you suggesting that the redistricting here was  successful well if you if you say the intent was was a partisan tent yes it was except successful except you still have a district that's capable of voting republican six district voted overwhelmingly for  republican governor larry hogan so it's not a district that's locked in for democrats what i mean i don't use that i not say that would be the defense but but what you can't do is if a party uses a map for its district which is a statewide map used to statewide map the republicans won two statewide elections for governor and so even a party was sixty percent of the vote cannot intentionally i have to prove it you know intentionally draw all these maps just so they increased their huge majority beyond two thirds of the seats i mean i pick those numbers out you can use other numbers if you want but you get the idea  yeah he is looking into the minds of the legislators which is difficult not impossible and then applying it to extreme situations and i just use numbers like two thirds and so forth and majorities in order to show it's not impossible to generate and now it gets numbers from the constitution your honor the problem with using the intent as your guide as here intent was the dominant factor that the court relied on is  because in davis vs bam bam the court pointed out how easy it is to show partisan intent because that's the air that politicians breathe it's how they get where they are and in seats a majority of justices agree that some partisan effort to affect the vote through the achieve that for us i mean is there any genuine gas out of it that with the aim from the beginning to shrink the public district by way i think there is doubt i think if you read the entire record including what governor o'malley said elsewhere than places not quoted by plaintiffs or the district court where he said that what he wanted was for the constitution the statute and all case law to be complied with and after all of that he would hope that a democrat would we elected in that district you may be able to prove that i'm just saying what you have to prove but it's not the case in my mind that every put politician considers politics and so forth up in the air of course you're right they do but there's a classical reason that they should and the classical reason is to produce stability in a legislature so th wall shifts of voting behavior don't make big shifts in legislatures but there's no if that's the reason that doesn't apply in the case where one party already controls sixty of the seats we do have a fair amount of stability in maryland yes i know that's a problem because i'm not saying it's a solution you have the stability so your response was well politicians will consider to consider politics you know of course but our problem is to say when that too much and why isn't it too much but i think in other areas of your first amendment law that plaintiffs have cited for you for example crawford versus marion county board of elections didn't really care very much the court didn't about the intent its let's look at let's look at the burdens that are alleged identify then measure them how much of a burden is on how many people and then make the call whether the state's justification overcomes that we didn't have that analysis here there was no measuring any practical difference is what the court said is sufficient to trigger invalidating the man and any practical difference is going to happen to voters in every single registering that somebody is going to have a difference because the lines that you say that partisan gerrymandering is just a shabelle under which provision of the constitution first amendment equal protection clause the what's on both of them your answer is both of them both of them are potentially sources for a standard and what is the test under let's go to the first amendment what's your test on the first amendment i don't have a specific test to propose but say indicated in my answer to justice pryor i think anything the court can do to get away from an intent based standard where you have a realm politics where political aims are just  you think the first amendment and the equal protection dictate the same standards or different standards i'd i would imagine they would have to be different in some because you have completely different bodies of case law that the court has developed in those two so i would imagine there would have to be some difference between the two ok i don't and what's the test under the you can't tell me what the test is under the first amendment what is the test under the equal protection clause its intent effects and injury you know intent and effects one of the other are used to make is help given that plaintiff's delay which this court found last time puts us in the category of cases that we've cited where courts have determined that where there is delay and you're this close to the census it's not equitable it's no longer in the public interest to redraw the map because the same kind of disruption the plaintiffs compared complain about you read to all the mines you change our associational interest you affect our representation with that's going to happen with redrawing the map and then you can have to redraw the map begin within a two year their political views with the express goal of making it harder for those and for that group of voters to win elections and when that goal is achieved so that group of voters is ordinarily doomed to usual electoral  defeat under the map and when the state cannot come forward with a legitimate governmental interest to justify the burdens imposed the map has to be new truly redrawn that in a nutshell is our claim and all of the evidence in our case proves that the two thousand and eleven redistricting in maryland violated that theory it's a task that would be met in every particular except for the one about durability that you  mentioned in every redistricting partisanship is going to play a significant role and because you can always do it to one degree or another it is always going to have an effect it seems to me that your focus is entirely on durability well i'd i do think all that the court needs to say in this case is that doing the targeted voters to elect toral failure is enough to state a claim i think what's helpful your honor is that that burden with intent makes sense because that is the intent that all mapped drives who set out to gerrymander harbor they'd gerrymander is don't set out to fiddle at the margins they set out to fix electoral outcomes and that is exactly what the evidence in this case shows they don't set out to make it slightly easier for their candidates to win or slightly more difficult for their opponents to win they set out to change the electoral outcomes and using metrics like the democratic performance index in this case and the partisan voter index under the cook political report all of the evidence is that as of the time that the map was in acted the map for drawers understood that this previously safe republican district would become a safe democratic district how do you see your chess you've introduced the google factors which the district court didn't rely on here you say actually don't see a whole lot of daylight between our test and the tests that are presented in those cases they said that your test doesn't look at durability at all well it doesn't look at dura billet he as such  but the focus last term was on the difference between vote dilution that would make a practical difference versus vote dilution that would result in a de minimus impact and i think what would be more helpful to focus on rather than what counts as de minimus is to what is to focus on what counts as a practical burden and we think the great range of cases in which practical burdens that would be actionable arise it's going to be the situation that i was just explaining to the chief justice that it's where the  out to doom the targeted voters because of their politics to usual electoral failure under the map as drawn that is i think in in essence the range of cases in which a practical difference will be made and i think it overlaps substantively with the league of women voters approach towards their ability and if you're if your claim is based on the first amendment doesn't that necessarily mean that partisanship cannot be taken into account at all not one iota no i don't think so your honor why is that the law is that that not so have we ever said that there's such a thing is benign viewpoint discrimination under the first amendment all right then you can discriminate on the basis of viewpoint but it just has a small i think most of this work is done at the at the justification stage and this might mirror something like anderson anderson burdick balancing it doesn't have to but our view is as long as consideration of of the way that people have voted in the past an intent to make it more difficult for those voters to achieve electoral success is in service of a legitimate government interest then it would be professor what would be a potentially legitimate  the sense that i mean it is proportion a proportional map so in this case it might be a six to delegation or a five three delegation but if you if you set out to draw five three here say we want to be proportional we want to be fair so we five democratic districts and three republicans districts the democrats individual democrats so you sort of the republican districts are going to be able to say we're being deprived of our ability to be treated without reference to our partisan affiliation or political affiliation well yes and i think that's how the so doesn't that show your test but you said doing a five three would be ok no that's right so they would despite the fact it would still treat individual voters who would penalize them because of their political affiliation but your honor that is exactly the pro choice this court takes in it in its ballot access cases as long as so in this in the hypothetical that you've described i think democratic voters may well have stated a prima facia case under the first two prongs but under the justification problem the state comes back and says although true maybe the minute maybe they don't but although true we were considering that iraq that shows what the driver i think of your tests though the overwhelming driver is proportional representation and i guess i'll ask you the question i've asked others do you think the constitution  requires proportional representation or something close to proportional i don't think it does require your honor and i do not think it drives why don't you think it requires a well i don't see a textual indication in the constitution itself equal protection clause does not suggest to something where political groups are treated roughly equal your honor if that's the way that you're inclined to think about it and so i'm just as bad i'm asking why the rule that way i'm asking everyone seems to be running away from what i want in the mass but running away from proportional representation even though if you tell from the questions there's a suggestion that really it all comes back to proportional representation in some respects  guess i'll answer the question this way i want i think i think the first amendment is probably the better approach for explaining why it might favor rep proportional representation but of course there are a range of factors having nothing to do with discriminat discrimination against groups of voters on the basis of their political views that might yield a non proportional map and you think that first amendment might require or even tolerate the regulation of speech and in this instance the speech votes for the purpose of propriety providing a proportional representation of viewpoints so as i was about to say i think not i don't think it requires it i do think tolerate it i think sure we have equal speakers on both sides of this question so we're going to you know we're going to we're going to balance the speakers they can do that your honor i don't think ruling in our favor requires the court to say that in the least what we're saying what you're saying this is a this is a free speech case right and you're saying it's ok to regulate speech for the purpose of providing proportionality in some sense no your honor what i'm suggesting is after this court's decision in gaffney against cummings we accept as given that it is a legitimate state interest to pursue proportional representation in redistricting if you take that as a given then the sort of claim that justice kavanagh was describing would in fact be justified under the third prong but let me emphasize our claim is not an ins oriented claim it is a process oriented claim our view is under under the facts as we've proven them we are entitled to a neutrally redrawn map in which the in which the legislature does not use this kind of data with an intent to burden particular groups of voters because it looks a little you would think it would be you'd agree that if you had a partisan free map which that is required now would be the first time in history right neutrally drawn up you mean yes neutrally drawn without risk without regard to partisan partisanship at all i can't say for certain whether as a matter of fact it would be the first time in history i would accept that today the accepted approach does not require neutrality but i think that's precisely the problem so it just just does i think just to finish the point we don't our position is not have improved our claim we're entitled to a redrawing of the six congressional districts so that it favors republicans our point is that we are entitled to a redrawing of the six congressional district in a manner that does not select a map that disfavors them because of their political views it may be that look there is a classical political science view it's very easy to draw state districts and imagine populations such as the states forty two percent of fifty forty eight percent republican fifty two percent democrat all right now suddenly three percent change two point one percent change now if there's no politics involved whatsoever i think you can show that that means one hundred percent change in the legislature depending now that cannot be a recipe for american government i mean if you believe it can fine but you'd have to show that to me and therefore people resist to a degree your statement that well no consideration call it a stability consideration but it's still the same consideration so i think many people's problems and what we're certain of but i'm searching for any way is for you to say ok i see a stability interest there but how much is too much and now we've heard from one sod that said here's how you find out you find out by looking at the intent of the legislature about what the effect is and about whether it's durable you you want to just say that's it and it's the same argument that might work i think it is effectively the same argument your honor and just to draw a counter distinction the vote dilution in degree that took place in the  congressional district was roughly the same as the vote dilution in degree that took place in the six congressional district the vote dilution in the six congressional district resulted in a map drawn such that republicans were in the six congressional district were doomed to usual electoral failure not so in the in the inverse it's democrats in the eighth congressional district not so in the eight congressional districts and yes i think i think as a practical matter this the distinction that the district court below drew between vote the deliberate vote dilution that makes a practical difference and doesn't is in effect the same and we would be perfectly comfortable with the court saying that the way that we know it's too much is if it results in a durable partisan gerrymander that will resist changes in politics over the coming decade that is of course exactly what is borne out in the evidence in this case what we do about the  referendum the whole of the people had a chance to speak now i understand that there are questions about how good a referendum that was but would your test require this court to declare unconstitutional juri manders that have been approved by the people through referendum themselves and could this referendum process be used otherwise too i don't think so your honor i have in my view the referendum is a red herring this could not if this had been a racial gerrymander and it had been put to popular vote in the popular vote had approved this map is drawn it would still be a racial i completely accept that answer right so so in effect you are asking the court  matter how good the referendum might be no matter how much the people themselves might approve these lines this court has to tell them that it's unconstitutional on the facts of this case yes i think that's correct  want to come back to the question of just issue billeted what interests you the facts of this case what makes it so here well for one it was the intent that led to the adoption of this map in particular is undisputed th is not a circumstance where you have you know a menu of maps put to the public vote in the public are being asked to exercise their independent discretion on which map to choose it isn't the public in the place of the legislature the legislature has acted it is done so in an unconstitutional way that rip that of democrats because of the uniqueness of this yes no that's right i'm just saying on the facts of this case that the facts of this case whatever the public maps might have been in an open situation were different than what happened here that's right so i would be that would be a very different case your honor but but but just to clarify i'm just one make sure understand your position i'm supposing that the people understood the gerrymander that took place and fully understood that there was no alternative pure proportional representation and it would be great right and they rejected in favor of  you may say that it's outlandish and that that isn't what happened in maryland but let's just suppose it is you'd still be incumbent in your view on a court to declare that the jury men are unconstitutional i want to be clear that i understand the hypothetical the electorate are being presented with an option you get a proportional representation or you get this map which do you choose and a majority of democrats who do better under this map choose this map right i think that's unconstitutional and we must say so  i don't think the court should should feel especially troubled about that for exactly the reason that the map itself here i think is unconstitutional i want to come back to the question of just disability just disability i think the question here is not just whether there is a potential political solution that doesn't answer the question whether this court it will bear is an obligation to enforce the first amendment in these circumstances the question here is whether the theory that we have put forward before the court as applied in these circumstances entirely defies judicial judgment so that it cannot be called a legal question at all and with respect to my friends on the other side i just don't think there's any basis for saying that we have this court's opinions in its racial gerrymandering cases in its racial vote dilution cases and it's ballot access cases it's first amendment retaliation cases and it's political patronage cases in all of those contexts this court finds consistently reliable just fishable standards for deciding exactly the kinds of burdens that are being imposed here and if they are manageable in that context they are manageable in this context to smear test apply only to districts that are drawn for a part of some reeds to favor one political party over another or could it apply to retaliation for some other  example suppose the objection of the mapmakers mac makers is not that of protect that this district had voted republican but it was that the particular person a district representative in that district was a pain in the rear and so they wanted to get rid of that person would that would that be prohibited by the first amendment not under the theory that we've put forward how could you square that with your retaliation theory well i want to be so you want to i vote for this person because th sky is this is the person that i want and the map makers say we want this person out of the house so we're going to draw the map so that person is excluded there were t want to vote for this for my representative and their diluting my vote or taking away my opportunity to elect the person i want and so to begin with the first amendment retaliation framework that we've referenced in our briefing is just that it's a framework we don't think there's any particular magic in the word retaliation itself the question presented in this context by the first amendment is whether the state officials are deliberately burdening particular groups of voters because of the way those voters have expressed themselves that does not to me sound like the scenario that you're describing where the the concern in the case is the behavior of a particular  individual and i might add in addition that drawing an individual out of a district does not prevent that individual from continuing to run as a candidate in that district so i'm i'm just not sure that how much tension can really some wondering how easy it would be for plaintiffs to prevail under your standard in the future suppose we accepted your test and we made clear that this kind of behavior was unconstitutional  so you didn't have all these people bragging about how much partisan gerrymandering they were doing right what makes your case so easy is that everybody was completely upfront about what they were doing as they were in the north carolina case as well because they think it's legal so let's say what we're doing but if we say it's not legal and that kind of intent evidence just disappears because you don't find so for bullets like that very often then what kind of affects evidence would you need to prove your claim well you know you have all that intent evidence don't worry this is not affecting your case but you know suppose people act like normal people and they just stop saying all these things and the next case comes along what would you need to show intent and the facts and causation well i think to show intent it would be the same sort of evidence that you would need and racial gerrymandering cases this court deals with that question all the time i think that that part of that i mean it would really raise the bar wouldn't it would your honor i mean you would have to show really dramatic effects to be able to infer intent wouldn't you yes i think that's right so in fact this would be the outlier cases i think it's actually not in every case in the universe every district in the universe not not at all your  just why would you have to show dramatic evidence of the facts before you can infer intent well i think as a general matter showing intent when you're talking about specific content rather than general intent which is the standard that the district court below applied we think is the correct standard i think raises the bar very high when you don't have direct evidence such as the admissions that we have on our record here you've got to show so you think if you have the redistricting controlled by one political party and it comes out that the districts reflect the significant benefit for that particular party that's not enough to win for an intent to draw the districts with an  well i think your your honor that that may or may not be so i think here though the question of intent dovetails with the question of justification if in any of those if in a circumstance where you have a single party control of the government and you have a badly imbalanced map that might sorts of political considerations in and that drawing are myriad and malleable and they involve a delicate balancing of all of these factors all the state has to come forward with is some explanation for the map as it's drawn and the burden is imposed identified by the plaintiffs so if you have the same view of the record here with no intent evidence to pick up on justice kagan is question and it was five three and the chance of prevailing on that we don't have evidence of intent and it's a five three map i think that's a very difficult how at sixty two i think that's also very difficult how about seven one i think seven one it becomes easier to prove intent there's no question that the that the the results are because it deviates from proportional deviates from from from proportional but i think the question also as i was saying about the third prong is whether there are neutral justifications and they might be things like geography here obviously maryland's ja graphy had that's to justify it but it would be a problem the seven one's a problem the five three almost certainly not a problem which i think has got to be right well i think that's right but to be clear that isn't to say that our test tends towards proportionality it's joe i think if it's justice to play out prove certain ones easy to prove well that sounds like something where something that's balanced to use your words which is a word you used five three would be ok because it's close to the proportion of democrats and republicans in the state something that's really extreme views justice kagan's words would not be ok seven one because it deviates so far from the proportion of a democrat right it's just to say that where there's smoke you're probably going to find fire and if you don't see smoke you're probably not going to see another way of putting the test i know it when i see certainly not your honor well you know it sounds like you might be comfortable with justice briar's two thirds limit five three is probably ok seven one is not i mean that suggests some sort of you know rough mathematical threshold your honor i don't think a mathematical threshold is is probably the way to go about it in large part because every state is different and you know how the geography plays out in every state is different and what other sorts of justifications there may be i'm sure will vary as i said the court has recognized if what you just seems mr campbell it and what you're saying is that once people stop putting these statements on the record which they will that what your test will deliver is a way of going after the worst of the worst and this happens to be one of them i think that's right your honor and if i may also come back to to a point that you raised earlier i think we have to give legislators due credit if this court says that this kind of discrimination against groups of voters is unlawful i have faith certainly that most legislators will listen and abide this court's teachings and so there's not enough time in between now and the tw twenty census to litigate any new cases and so the next round of litigation that this court sees after adopting a standard in this case or in north carolina will be after the two thousand and twenty redistricting and presuming that state legislators abide this court's teachings there's every reason to think that the incidence of extreme partisan gerrymandering will be significantly reduced the only reason we see it as often as we do today in what is extreme seems let's extreme is only because this court has not identified a standard to reign in the practice crisil a jihad the role of geography with this question suppose you have a crazy one drawing something someone knows what is in maryland but it ends up in five  three destructs any problem there no partisan intent on the record but it's the lines are really miss shaped but it's five three well wouldn't be a first amendment problem would be a problem under our test and indeed what the evidence shows is there are a lot of reasons to think you might still see that ok and if it ends up seven one i think the way i'm just trying to understand your test that ends up seven won the states in trouble unless the state could show actually this fits with county boundaries and town boundaries and and actually the geography makes sense and we don't want to divide the day and all kinds of things like that right yeah i mean i had to be clear i don't think there actually any such justification and in this case right under i take your point on that they also made  that's helpful in the geography they made a point i just want to give you a chance to respond on the sixth district not being durable because governor hogan one can you respond to that yes it's a difference between and what experts call endemic alexion and in this elections garza look at is the way that voters vote in congressional elections when they're looking to rig congressional elections there on a number of occasions there have been suggestions that legislatures are going to act as legislatures and the framers of the constitution haven't committed to the elections clause to legislatures we have to expect they will act that way that would be a reason to overturn this court's ballot access cases in in devising access to ballots and how ballots are comprised there's no reason to think that that those in power wouldn't be expected to use that authority to regulate elections to their own partisan and yet we do not accept that they may that is the upshot of this court's ballot access cases well i mean history is a little bit of perhaps significance there gerrymandering has been part of american history from the beginning this was pointed out in the previous case i'm not sure that libby has been i don't know that interference with ballot access is the same level of the air they breathe as as your friend on the other side put it yar that may be true but since the beginning of the republic gerrymandering has been recognized also as a constitutional offense indeed the eight hundred twelve editorial coining the term gerrymander called it a constitutional offense i think everybody has understood that it is a constitutional violation  editorial well certainly certainly not your honor that the legal tools for this court to would this court in article three courts generally to address this problem haven't emerged until modern times the incorporation of the first amendment of the states happened incorporation have to do with congressional districts well congressional district ing is an act by state legislatures if state legislatures are cabined by the first amendment and how they exercise that authority the first amendment has to be a limit on their authority and that wasn't recognized this court until the one nine hundred forty s you said gerrymandering has been recognized as unconstitutional but are you defining it if jerry meringues to find as deviation from what you would otherwise get with proportional justice o'connor and justice kennedy have made very clear in various opinions that the constitution contains no such guarantee your honor what we take to be partisan gerrymandering is the singling out of groups of voters for disfavored treatment in redistricting and using redistricting in turn to make it to do in those voters to usual electoral defeat that is the original understanding of what a jury mandarin was in eight hundred twelve and in the eighteenth century before that and we think that is a clear violation of the first amendment i'll just say very briefly the other explanations that general sullivan has put before the court explaining for the shape of the six districts all slightly disapprove viral turnit of map which is reproduced a j a seven eight seven that map robert respects all of the political considerations elsewhere throughout the state and does not result in flipping the district to democratic control thank you thank you that can tell us when the redistricting has gone too far in and why not when you have intent which lists of the the all the lead he said yeah that's what we want to do the this will continue into the future why is it that well there's a number of things wrong with that the into the future is not proven at all the map that was developed in the expert testimony agreed that it was a competitive map independent sources said it was a plus two democratic in two thousand and ten the last election before the redistricting democrats across the country won fifty two congressional seats in districts that work more democratic than the sixth district in maryland so what these legislators were looking at was not a map that was a lock for a future domination by democrats and six district it was a very vulnerable map if you look at the results of the two thousand and ten elections where republicans swept a victory in justice kagan in her deal concurrence have identified is a central evil of gerrymandering which is the politicians getting one over on the people and not letting the people's will control what the map is going to be in this case the people's will was deciding where their district lines are going to be and not the people deciding who they get to vote for you mean there's if there's a referendum on a map that is that heavily favors one party and the campaign and this is a state in which that party is the majority party and the campaign shaver of the referendum is approved this map because this will really favor the party that you like and the people majority votes for that that would not be that would be different from the legislature so when the legislature does it and the legislature and the members which are elected by the people that's one thing but when people do it directly it's a different thing it is a different thing now i'm not saying that the result can always be constitutional court has held that for example the people could not approve a map with an equal population that's one of this court's precedents but when the where the debate is whose first amendment rights are going to prevail these seven plaintiffs signed a class action or the one point five million maryland she voted to approve this plan i think that's a much more difficult question that was even even attempted for an answer to be provided in this case there was no attempt by the court below to consider the referendum or its impact whatsoever and so this test cannot be the answer to how do we protect the people and their ability to ensure that politicians do not draw the districts to serve the politicians instead of the people was there any further questions thank you counsel the case is submitted