her argument first this morning in case fourteen fifteen zero four with men versus person who is a carbon mr chief justice and may please the court the sum total of the alleged violation here is that the legislature treated doing redistricting knows that simply because there are sixty three thousand short that doesn't mean you're going to move anywhere near sixty three thousand if i may explain for example district eleven in virginia was sixty four thousand short they moved four hundred and eighty thousand people to fill that up the district it directly adjacent to district three was district two that was the most were put through any holding then that these are the core yes i mean obviously they said that core preservation was the most important  taishan the district court found that incumbency protection and politics were in arguably motivating the district they way they were protecting incumbents was through core preservation and the key problem here is they never found that race that that is our objective that is what we say we seek to do to preserve incumbency or whatever may we then use race to move people from one district to another simply because that's the easiest way to do it we know that this  is a race that vote strongly for a particular party so we can use race for this ultimate neutral purpose you can't use race as a proxy justice kennedy and it's very important to note that i didn't think conceded by the plaintiff that everything we did made perfect sense if everybody in district three was white we know that they wouldn't have led to a dramatic exodus of democratic voters into the four adjacent districts all of which had republican incumbents if all of those people were white and therefore since they were pursuing exactly the same incumbency protection and political motivation with respect to district three they are not somehow disabled from doing that simply because the predominately democratic voters happened to be black how do you want cromartie to insisted that plaintiffs show meet the demand the burden of showing that race traditional districts in principles were subordinated to race r politics how do you show what the motive of the legislature was is let's say you have ten percent of the legislators say this is because of race that's their motive ten percent say it's because of partisanship and eighty percent say nothing at all what i what is the motive of that legislature right i think it's very difficult to discern motive in a multi member legislative body which is why this court has always looked for example in commodity to what are the effects if for example there was a way of achieving the political objectives without respect to the racial composition of the inactive district and it should be simple as pipe for plaintiffs to come in with an alternative that doesn't rely on a real race that it cheese their legitimate political objectives and yet plaintiffs in the district courts here approve that any alteration of district three which results in a diminishing of the black voting age population would be absolutely contrary to the normal political agenda that would be motivating the legislature of everybody involved was what the plaintiffs alternative only reduced the beat that by three percent to fifty percent and yet that converted district to with a brand new republican incumbent from a toss up district to what plaintiffs themselves characterized as a heavily democratic district the courts when it demonstrates that the reduction was to forty five percent and what did that do it dismantled entirely district three and four took away about half the districts in a district three more compact the only way to make it more compact is to split the district in half that was the point we're made of this district was never compact to start with well i mean it's contiguous only by water not by land and it runs a very unusual route it's certainly reasonably compact within the meaning of the supreme court virginia's supreme court's definition of compact where you have to look at whether or not the preserving the core of the existing district was that a new plant passively it's less districts it and all of these plans have their flaws but the new one at least splits less districts and is more compact under traditional criteria that is only have factor just the sort of it splits just as many political boundaries county lines as ours does fourteen that's what special percent democratic district then he loses half of his incumbency advantage we're still be valid purpose of splitting them in half was to create two black opportunity districts so it's actually more race conscious then what the legislature a few minutes on whether this case is moot or not as i understand it the vast majority of the districts of the representatives who are parties to this action have not been changed in any meaningful way forbes is the only one who had it who had perhaps a life claim but he's decided to run in another district so how do we have a live claim or controversy oh because what they did to do is to represent forbes was to severely hampering the make impossible is what he says sided not to run right and that means the injury is so severe that it forced him out of the district let's assume you had paired two republican inc senate it go back and run in the in the old district but for the remedial order he would obviously be running in district four that's where he lives that's resists sixteen year incumbent and that's why he's got a huge incumbency advantage the fact that the injury that they imposed on him district fo not the new one that he will run in his old district absolutely he will run in the district that he lives in that he's been reelected in for sixteen years and that he has a huge incumbency advantage rather than going to a new district one hundred percent of the voters will not be voted for can because they're asserting the constitutional right is this court held in hayes certainly these people in adjacent districts are injured they're just not intrude in a way that's cognize a bill under the fourteenth amendment because their personal right to discrimination has not been invalidate but we are defendants appealing an adverse one defendants appealing in adverse warder never argue that the adverse order violates their constitutional rights they're arguing that it disrupts the status quo by changing the rules and the status quo is what they are defending th court has made it clear repeatedly in a circle swan electronic fittings that obviously if the remedial order puts the defendants in a worse position than they were they have a direct stake in the outcome of the appeal and they can appeal if the rule rather was justice ginsburg  no defendant could ever appeal an adverse order because the adverse orders virtually never are alleged to violate their rights so it's precisely the same sort of injury suffered by representative force as we would be suffered by an incumbent who lived in district three let's assume the incumbent in district three to intervene and they drop the b that to thirty percent and made a sixty percent republican district is anyone arguing that that incumbent couldn't challenge the order that severely hampers his or her chances for reelection the answer is clearly yes since representative ford's in the adjacent district has suffered precisely the same kind of injury as i hypothesized for the incumbent in district three by analogy to hayes obviously he has standing to appeal what about  rap what about graf i could argue your honor if i wanted to that brad and whitman who are in seven and one also had their districts changed in a way but i must admit the palpable negative political consequences are normally the defendant is the state in a voting rights case they're the ones that have the plan so if someone attacks the plant these are interveners because they were affected the courts and you could intervene now the state's gone i'm looking for some kind of a of rule or some kind of workable standard such that a new plan that the court puts in would allow some people in other districts to remain to can defend it but not everybody or do you think everybody i mean after all a plan in a smaller state that effects one district and makes changes likely affects people in every district at least some of them some people will election context which is do you suffer a threat to your current injuries because of the lower court opinion and the best case is actually nice for rich versus keen in applying that injury to your chances for reelection  versus team where the court found that because they had attached a propaganda label to this california democratic legislators acid rain documentary that hurt his chances for reelection if he has standing who doesn't well the standard is me first as king and this was the argument that this california democratic legislature running an acid rain documentary said he said he'd hurt for reelection because ed meese and the reagan justice department labeled it propaganda that's not a severe on a bit but i mean in the boating context the standard for saying that a person in another district is hurt enough to be able to maintain a standing here and these people are with which words are and which ones are misused the formulation harm his chances for election you can attack armed his chances  why this is the simple sponsor use whatever adjective you want before harm substantial significant they turned a district that he had easily won for sixteen straight years into a sixty percent democratic this so we  sotomayor we announce a rule that every change that affects an incumbent gives the incumbent the right to challenge the line i think cheney do you have a right to claim it's one thing to say i will voter and i've been racially discriminated against what is the incumbent claiming it's not racial discrimination against that the remedial other requirement in the law which we talk about a lot last but it seems to be quite well established which is that there needs to be a kind of legally recognized and trust so it's not just that you have to have an injury in fact although you have to have that but th there needs to be an injury to a legally recognized interest so what is the legally recognized interest here that the legislators are banking on that he wants to be alive that know that it's that's that's you know he wants to be elected he's been injured in fact in the kind of practical ways we can all understand the injury but this other part of the test really suggests that you need a kind of legal recognition of your claim and that's what i'm searching for here well two points you don't you surely don't need to show any pugno a civil right nobody's arguing that they have a right to these districts if again the appealing defendants had to show a legally cognizable right and nobody would be able to appeal because they're never arguing that the adverse judgment deprive them of a legal right to use market that that part of our standing doctrine which does look as to whether there's a legally cognizable right is only good for plaintiffs in that once the inquiry strips to the defendant it just completely drops out of the picture and just recognize the reality of a difference between a plane of filing a complaint challenging the state law and a defendant who's defending the state law who's obviously not going to argue that his legal rights have been violated he has the same interest as the people who are supposed to be defending the state law which is he was well benefited under the status quo ante and he has suffered direct injury in fact because of the alteration caused by the remedial order and the notion that kagan can ask her own question but a legally recognized interest in being reelected without improper interference or something like not having a state entity in this case a federal entity affirmatively intervene override the saga sovereign the state and create an electoral system which substantially diminishes indeed eliminates his chances for election why is that not injury in fact it was injury in fact every time this court so i wasn't i wasn't i wasn't contesting the injury in fact requirement i think i was i was asking about and it really is a question of how this other separate a clot requirement which is that invasion of has to be to a legally protected interest applies in the context of the defendant interest is just finish the sentence for me that he's been injured in fact and is a direct stake in the outcome because he wants to be religious that just makes the legally cognizable interest the same as the injury in fact requirement standing is to keep the federal judiciary in its properly wrote limited role in democracy if to want to let the judges have falsely altered the state sovereigns views of redistricting that would be the situation we would want to find the injury most interference you have to accept is true for standing purposes the improper interference of the federal judiciary into that political thicket which harms him and we arranges the entire district is obviously injury in fact it is just the kind of interest that this court would want to cognizable because after all it's most concerned about the federal judiciary hijacking the political process much more than any other they hear here is the basic problem i can't get the right now alice look normally he's suing because somebody did something him so the defendant is the person who did it and normally we're looking for the standing of a plaintive and there are all kinds of rules there the person who did this to the point is the state that they're not in it anymore so what course this the difficulty comes in the fact that the congressmen aren't the people who did it i mean these particular people aren't the ones who did it but they're still in the case it's rather like smith sues jones for a nuisance there's an order and here it is an injunction jones's neighbor brown says this injunction is hurting me now does brown have standing and at that point we're into a new kind of a case and i'm sure there is law on it well and i just injury is a classic tool of political gerrymandering is it conceivable that paired incumbents would have no standing to challenge the fact that a court has put them in the same district your honor is recognize that incumbency protection is one of the neutral districts in principles no different than compactness or anything else which gives incumbents special factual distinctions from the run of the mill people in term limits versus thorton this court held it was unconstitutional to make it more difficult for incumbents to be reelected because they had to engage in mailing campaigns rather than be on the ballot so we are talking about a well recognized constitutional right were incumbents do are not similarly situated to average voters and do have very different  is undisputed as it is that the soil reason that representative forbes is now facing dunedin district four is because of this water i can't understand any reason why the court would sit back and allow the federal judiciary to hijack the most intensely partisan kind of litigation we have mr carvin can i can i take you back to the merits and let me give you a hypothetical it's not this case it's a different case ok let's say that there are some racist matter ours and and they say here's what we're going to do we're going to set districts and we really want to segregate african americans and so they said that's the that's our first am but we also have a second dam it turns out that african americans vote in a particular way and so our second am is that we are going to achieve some kind of partisan advantage as a result of the segregation now what should be the right answer to that question is there strict scrutiny in such a case a give precisely the answer this court gave in alabama where they had an absolute b that for which you could argue was trying to segregate the race this court didn't say that ipso facto invalidated all thirty then this is one district we're just going to segregate all the african american voters in this district we're doing that primarily because of racial reasons we don't like african american voters and we're just going to keep them all in one district and secondarily that has politically beneficial consequences for us and and so the question is is that unconstitutional because you know if i look at that i say ok that's the  race was your primary motivation that trigger strict scrutiny you fail strict scrutiny you're out of the ball game would you suggest that you're not out of the ball game because you have this secondary interest which coincides with the clearly racist conduct and that's the question that i want you to answer if it coincides and if it is a motivating factor like it was here then obviously you need to show that race was the but for cause of any alteration of district lines you need to show that it's a board meeting the neutral principle and you need to show to quote alabama that it had in effect when they said language then your student then it seems to me you're changing your argument because in my hypothetical both of these things run together they're not in conflict with each other so you're saying that the critical question is not conflict i had thought that you thought that the critical question was conflict rather the critical question is which is the primary motivation or which is the but for purpose and which is the secondary motivation even if both run in line with each other that's a different kind of test no no and i'm happy to clarify justice kagan if they're completely coextensive if as here the only way to have a list of criteria and number one on the list is race and then we have a lot of direct evidence and my hypothetical that this is for the most heinous racial purposes a matter and the question is does the fact that it also has  political benefits does that insulate these line draw us from what you would think is the obvious conclusion which is this is unconstitutional conduct in every contact when healthy gro even outside of the showcases where plaintiffs have a special burden to show is race rather than popped even in those cases you need to show that the impermissible fact was the but for cause of the challenge back when he says this is our first priority yes assume that he picked fifth five percent b vamp out of the air just wanted to make that is top priority does that have an effect on any district lines if it is undisputed and clear as it is here that they would have drawn the district precisely the same way to protect inc need to show but for causation or effect as they said in alabama komarr to hell as a matter of law the fact that there was racial percentages lack of compactness and breaking of county lines is insufficient as a matter of law to find a normally we're not for the voting rights act there would be a very simple answer to all of these questions and that is that you cannot take race into account at all it's invidious discrimination to take governmental action on the basis of  race does shelby county have any relevance to this case is this the type of case that will never come up again in the future but if the voting rights act is not amended right you need not worry about this in two thousand and twenty two but the issue here justice alito is what was the reality confronting the legislature in two thousand and twelve and they had to get preclearance by the justice department in record time so they needed to get very quick pre clearance which is why i made eminently good sense not to go go below the benchmark be that but even if we assume to get back to justice kagan's question that they just put fifty three percent out of the air it's bill doesn't establish a violation because this court has said countless times race is always a factor in redistricting so it's not like employment in other contexts and here's what the court said and from marty too and the lower court completely defied it said in a case such as this one we're majority minority districts are at issue and where racial identification correlates highly with political affiliation filiation the particularly attacking the legislative  boundaries must show at the lead least that the legislature could have accomplished its legitimate political objective well the first seven words of that quote are in a case such as this one yes and the question is what do they mean by that and one understanding  meant when they said in a case such as this one is in a case in which there was no direct evidence of racial motivation but only circumstantial evidence and and the and that and the absence or the presence of a map wasn't jihad relevant to the question of whether that circumstantial evidence added up to the conclusion that race was the motivator i must respectfully disagree that that's a remote be plausible interpretation this l one the case before us no it is the beginning so why didn't we ask for a map in alabama except why didn't we the courts said remained to find out which districts were affected by the b vote floor under this theory all thirty five districts in alabama are all majority black districts are ipso facto violations of shaw and by the way every majority minority district in the country is ipso facto violative of shaw because every legislature and every court that has created one has invoked the supremacy of the voting rights act but that's not what the court did the court said go back and figure out if way said some significant effect on the lines it didn't say go turn all majority black districts into forty five percent black districts and that would be the great tautological rule that is why the court has been so insistent on showing that race wilder than politics that it particularly in states were just like virginia where race and politics are so coextensive with out of washington thank you finding that there was a fifty five percent beat up floor that was used to move more than forty four thousand african american voters into city three it didn't commit clear error but you thought it committed their right to vote prior position our office yeah you're right you're our office defended this district a trial we thought that there was conflicting evidence about whether race or politics predominated and the district court resolve those factual actual issues against us and because of the clear standard we've chosen i understand what your position if you were taking a considered position in the trial is that that the district court was wrong because that was you presented the facts and you defended those facts under your view and then on appeal they overturned it and you say ok they were wrong but not clearly wrong that's  ok i mean there's nothing wrong with that i just want to make that's exactly that's exactly right and we did and that's why we didn't appeal but the evidence supporting the district court's finding was was amply sufficient under the clear standard it included the sworn expert report frankly by our own expert that can but conceded that there was a fifty five percent floor that's page five eighteen of the joint appendix and anything else happened between the time when your office took the prior position at your appearance here today you may be referring to just judge paine's surmise that because of a change  there anything relevant that happened your honor our administration came into power our in january twenty fourth teen the case was pending on summary judgment we defended the district on summary judgment we defended it at trial the same career took attorney argued at the trial  when the district court ruled against virginia we had to evaluate whether we could win on a clear area standard and concluded we could not in addition to this to our own experts sworn report that said that there was a fifty five percent floor virginia's section five submission referred to a fifty five percent threshold as well that's a page seventy seven to seventy nine of the joint appendix which expert are you talking about john morton your honor at page five eighteen of the joint appendix you'll see his sworn report where he refers to a fifty five percent floor that was used in the house of delegates redistricting he actually served as a consultant to the republicans in the house of delegates and served as an expert here with one it was also one your experts that said that if every person involved in these swaps were white the results would still be exhibit fifty seven which showed that there were five that's page four thirty nine of the joint appendix and it showed that there were five voting districts that were dropped from the benchmark district which had above fifty five percent before me democratic performance but they were very low and be that and i think that that evidence supports his his argument but there would there be a violation here if the district that were drawn could be explained on the basis of partisanship rather than race if  only evidence were statistical just like any of the verses cromarty and it could equally be explained based on partisanship you're right i think we would have won the case and we'd be defending that position here but i think what really killed us was the morgan our own expert report that said that there was  five percent floor there was other evidence that there was a floor the district court did not commit clear error and in in the spine of that that was the driving factor here it's a question i asked mr carvin who you're talking about the motive of the legislature right what do you do when it's ten percent race ten percent partisanship and is often the case i suspect eighty percent of them don't say anything at all right maybe a lot harder if you had that kind of case here but in this case there was one sponsor he said that the be that had to be at least the same in the new district as in the benchmark history said that twice and then he said in order to have certainly a pre clearance we need to bump it up to fifty five percent before the legislature and you say ok i understand that you say but i suspect most of them looked at the map and said you know how my doing here how much percentage of republican what percentage of democrat what's the change i mean out of here and what the sponsor thought about it yeah i think i think there may be two ways to look at the evidence in this case there's a way that the district court did which was to say that there  was a fifty five percent floor did did politics trump that no because as justice ginsburg pointed out the sponsor said i didn't do a partisan analysis that wasn't a factor and so on that scenario the district where didn't commit clear error and saying there was a floor triggered strict scrutiny politics didn't didn't control that's a simple case the harder case is the one that you're describing where you know people might look at this fifty five percent floor and think you know this is actually pretty good for republicans so i'm going to quietly go along with it but in that instance race will be used as the proxy for justifying a the plan and i don't think race can be used as a proxy to justice kennedy's point nor can it be used as the excuse and that's how it was it was used here the other evidence included statements by the members of the house senate in the house of delegates redistricting at page five thirty three and five twenty seven there were there really appears to have been a montra this has to be at least fifty five percent performing senator vocal said that and she's an election where she said the lowest the d o j in fact the record shows that this exact history was pre cleared previously at fifty three percent and that fifty percent of the senate virginia senate districts were precluded fifty percent over their districts in other states or in other cases where the south carolina and we had were agree with mr carvin that it's not enough to say that we're complying with the v r a and that triggered strict scrutiny don't think it does but when you say we've got to comply with the v r a and the way we do that is by having a fifty five percent floor then i think the trial court got that right and that does put your strict scrutiny once we lost to the issue of race predominating that was the end of the case for us because we didn't put any evidence mr and mr carvin put no evidence in to justify narrow tailoring as to where that number comes from it simply wasn't there  the congressman scott had been elected by a huge margin seventy percent before this plan was altered after it he was elected by a margin of eighty one percent and our own defense witness said he wasn't offering evidence on their own tailoring that was the end of the case on the i would like to address the end of the standing issue briefly it's not in virginia's interest or in any state's interest for an officious intermeddler to prolong litigation like what's happening here but we looked at the law in this resist kean and we read that standing for the proposition that where a and a and intervene or can argue an injury to his election opportunity that is adequate for a standing and in this case it's true for congressman forbes the fact that he had to switch from cd for to cd to really does the injury that now the plan will make it harder for me to be elected that should give rise to a claim by virtually every member of the west state legislature and indeed if it gives rise to their claim in their hands why not in the voters hands yeah you have in a state like virginia several million people who could attack any redistricting plan and any variation on any redistricting plan that's quite a lot to read into means just right don't think it means that forbes has a special justification because he clearly goes from a safe seat to a seat he's probably going to lose and that's why it's witched with national because it's more severe in degree the s i think normal article three jurisprudence explains this other one justice dissented from the holding it means for sustain that injury that to candidacy was an adequate article three injury and as i mentioned earlier justice alito as opinion for the court in clapper referred to mesa standing for the proposition that it was an impairment of political career so we read that case we looked at what the government said we think it gives them standing are we happy about it or not you know we don't want an officious intermeddler is to prolong litigation and maybe they'll be responsible for the state's attorney's fees if we the we have to pay the plaintiff attorneys fees but they we think they do have standing to maintain that do you think it's fair to characterize forbes as an officious intermeddler well i don't mean to disparage him in a way you obviously if you true of his political career that he's had for sixteen years that's exactly right and that's why i think he has mr chief justice and made things the court of the state of virginia has twice decided not to appeal the decision below this court has said in several occasions most recently in hollingsworth that it has never upheld standing of a private party to defend the constitutionality of a state statute where the state itself has not chosen to do so this is not the first time that the court should wrencher into this new ground the fact is that in under the system voters choose candidates they choose their elected officials it is not the other way around i listened intently to the arguments of counsel and the fact is this is not a question of what they did to mr forbes to question of what state of virginia did to the voters throughout the commonwealth including in the third congressional district the second and the fourth candidates win lose elections for all types of reasons impugn in any respect the motives of the commonwealth of virginia but if it were the case that a state decided not to defend the constitution not to defend the galaxy of a district in plan that was adopted by the legislature and that decision was made purely for partisan reasons you would say that a member of the that that an elected official or  e who was severely adversely affected by that should not be able to challenge it that is that is correct your honor not every injury in our society opens up the courthouse door there are as the colloquy earlier discussed there has to be a legally protected interest and members of congress do not have a legally protected interest to choose their voters what if the the decision and again this is not i'm not saying this about virginia in this case but what if it were the case that that decision was made for a racist reason i'm sorry i'm not but if it were made for a racist reason what if the reason for not defending the legality of this of the district unplanned was a racist reason on the part of the state executive you would say that and adversely affected member of congress or a candidate would not have standing that is correct your honor because members of congress simply don't have a legal interest in choosing their voters it's it's worth looking at the supplemental briefing and the briefing on standing in this case to illustrate why the injury here is not just not legally protected but is entirely speculative the state of virginia in the of brief when we were asked to brief the question of standing said that there was no particular congressman that had standing at that time but that one may soon reveal themselves seven days later they filed a brief saying they've now revealed themselves and that's the member withstanding is congressman rich because it looks like congressman riddle's districts going to get a month later the state of virginia said ok it's not congressman rich it's congressman forbes this court has interest on the part of the legislature but that the if the fact that the plan fails to accomplish that no one no one can object well it is interesting that in this case neither the virginia state house nor the virginia state senate both of whom are controlled by the same party as the members of congress affected neither body nor the legislature as a whole has chosen to intervene in this case which is quite different than for example in the arizona case that this court handled  d where it found that under your view could the legislature the whole intervene i think that the legislature could have intervened and would and would have a better claim to standing again under the arizona were district in case that this court decided  e legislature who passes the law has greater standing in the individual who is affected by the well we are all affected by the law i say we because i live in the commonwealth all virgin voters are affected by the law and members of congress have to do appellant's in this case have to do better than that they can't just say they're affected by the law they have to show why they have a legally protected interest as justice kagan sounds to me like it's incumbency which is the very thing you say that this one individual cannot protect well  nor the underlying facts of the case that the virginia legislature endeavored to protect incumbents what mr janice said was quite specific he did not want to parrot its he did not want to draw them their houses out of their districts that is quite different than saying that the virginia legislature had a policy of protecting incumbents in fact the only way to protect incumbents would have been to use partisan data or race as a proxy for partisan data the second of which would be unconstitutional you say race is a proxy if and this is why easily i think it's so important the way you check is to come up with a district that would achieve the same evidence the direct evidence that race predominated was quite weak in fact arguably the direct evidence went the other way suggests that politics was what drove what drove the map and the court was was evaluating what do you do in a circumstance where there is no direct evidence that race predominated but you have circumstantial evidence that maybe it did maybe it didn't and in that case one way to tease out that whether it was partisanship or race is to say ok show me the map that is that out in this case we have no need to tease it out it coming out i mean it makes it i guess you have a greater degree of confidence if you have an alternative that said look if they wanted partisanship which is usually a pretty high priority  for politicians if they wanted partisanship they would have done this but instead they did this but if you're not if you're not forced to show that then you have reliance on you know however many quotes you can find and i get back to the question i asked before what do you how do you analyze it if it's ten percent raise ten percent partisanship and eighty percent who say nothing at all so in this case your honor just as a factual matter it was the person who sponsored the bill the person who drew the map is that he wasn't in the legislature when this took was approved it wasn't i believe he i believe he was at that at the time that that the that the map was approved he was the sponsor of the bill but i thought the the person who drafted the plan maybe i've got that mixed up it wasn't janice was it was not in the legislature well janice says that he that he in fact i believe said that he in fact drafted  maybe talk about the charter of the house the state house plan versus the congressional plan but in any event the fact is that if you look at exhibit fifty seven which mr efile pointed to what you see is a professor did a very important calculation what he looked at is the the voters that were added and the voters that were that were taken out and what he found is that the voters being added were much higher propensity had a higher percentage of black voters then they were democrat so in fact he found to use a cloak religion he found the blackest parts of the voters drawn a map under commodity that would show if you wanted to protect incumbency and republican or democratic advantage you would have done this and instead you did this i don't think that that that the question is whether we could a map the question is whether or not cromartie requires in a case where where or why isn't the question where you could have gone up another way are you saying if you can draw me up only by using race then you can draw then is that your position we could've potentially drawn after that analysis a district that made very few changes but i don't think that that's what her marty had in mind i think or marty had in mind a circumstance where you are not using race as a proxy and you are drawing a significantly different district that shows that race and that race predominate over partisanship whereas in this case the use of these d t s was to try to get at something different which was the intent of what mr janice and the legislature had in mind let's not forget that there was counsel i'm over here you're skipping over it and i'll bet the map might have been slightly different to suit was going to be different yes it would if you had not use race yet that's the whole purpose of the correct correct if you're race neutral you move people not on the basis of the their skin color put on some some neutral principle and you have shown that in that these five precincts we moved where it wasn't on the basis of partisanship it was on the basis of race yes your honor well but if you moved those districts then you'd have to move other districts to make up for for it and again i think that's what marty does it says we don't have to speculate about ten percent ten percent in percent what you have to show is that partisanship could not have been the factor because you couldn't have done it any differently without affecting partisanship i think that our burden was to show that race predomina and i don't think the current marty puts a straight jacket on miller and rivera to say that the only way or shaw that the only way you can do that is through the alternative that if race and partisanship  extensive which one predominates well in a case where the legislature tells you no no race and partisanship arc coextensive then which one that you may say it's an abstract question that isn't the same but doesn't fit making it right on to you agree with the solicitor general that a simple statement from the line drawings that they were trying the best they can to comply with the voting rights act that that is not sufficient to percent yes no i got that i'm saying and assume a different a different set of facts where they weren't just saying we have to stick at fifty three point one or we have to go to fifty five point fifty five percent so in the different state of facts where he simply say of course our first priority is to comply with the law you think that that itself triggers strict scrutiny of course and that's the supremacy clause so the fact that the the fact that the state of virginia understood it the why with the voting rights act does not in and of itself trigger so think trigger strict scrutiny is essentially the use of the mechanical target here correct course not related to the ability to elect correct and in fact if you look at what professor grantham and did as the court  as a core special master you can see he did a very thoughtful analysis of all of the traditional redistricting criteria and then looked at the impact that it would have on the ability of african americans to elect counted choice and that is a model of the kind of analysis that that the state of virginia should have engaged in but didn't instead it started with a fifty it said the district was fifty three point one if we go under fifty three point one we're breaking the law let's go to fifty five because that gives us certainty rather than a lot of certainty so fifty five percent it is thank you counsel gerson mr chief justice it may please the court i'd like to make two points on the merits but i'd like to start where this court is going to start with standing we believe that appellant's lack standing to appeal appellants allege that the district court's judgment may cause them harm by adding voters to the district of a different political party who may vote against them but candidates have no legally cognizable interest in the particular composition of the voters in their district and therefore is that true in the legislature specifically has what's at interest here and if i could say your honor what's what's at what's at what's at issue here is whether a candidate has an interest in a particular composition of his voters and we think actually your honour's own opinion in lulac is quite york opinion for the court said there was that that kind of voter protection which is for the candidate and not for not for the individual voter is fine for the realm of politics but it did not justify the you could not justify the action there to save for section as you and mary does the same district five and state which is heavily african american and madge and races legislatures change the whole district so they couldn't possibly elect an african american there's the african american member of congress have standing to contest so a voter would have standing contested a candidate would have standing to contest it if he or she were a voter in the district i think under hayes that  congressman not as a congressman i think not at least this court has not said but remember what we have here is the quite different situation where you have a candidate you know i know it's different what i'm looking for out is i understand that there has been no case which but i've been able to follow you they have a nice case which is in a different context but why is that different and what's bothering me about it which i don't want you to just say i'm right i want you to explain why if i am or why i'm wrong  is that there are potentially dozens of remedial plans and there are hundreds of possible plans for a state and every plan will hurt someone and if one district in a state is changed suddenly you open the door to every legislature and every congressman from every district challenging the plan that strikes me as a big shift in the direction of taking power from the legislature and turning it over to the judges as to what kind of district king plan you're going to have and a mess to boot you're out of what's worrying me and i think you're right to be worried about it and i knew you thought i would be even given to tell you why but i but i do think it there are a couple of responses that i really do normally rely in that instance on the state to be the principal defender but when the state's not there what this court recognized in hollingsworth is often that means that the old the legist the bill goes  defended and that's not something that concerns the court now the reason why we have to be very careful about legislators why choosing their own i think as plaintiffs counsel said we don't usually let legislators choose their own choose their own voters and there's good reason for that that's not the way the system supposed to work and i do think it would have quite expansive effects and it's not clear to us there's a huge difference between this kind of line drawing and a challenge for example that a legislator might seek to appeal the relocation of a base or a university in his or her district on the grounds that that would radically change the number of republican or democratic voters in the district do you think that he says i'm sorry i was just going to say that we think mrs very different because ms is not about choosing the voters in the district it's about we're not saying that you don't have an injury article three harm from harm to reelection we're saying that you don't have an interest in vindicating that right through a through choosing the voters in your district i'm sorry because i find this a little bit harder than you just suggested because this is not representative forbes say and i want to choose exactly the set of voters that's going to increase my own electoral chances this is represent to forbes saying look there's been an act of the legislature and the the act of the legislature has given me a certain set of voters and why don't i have a legally cognizable interest in relying on that legislative judgment when some court has taken it away your honor i think it's for the same reason that this court rejected that idea in the in hayes itself i think there isn't a a cognize will interest among the voters among the candidates in just seeing that a a lawfully legislative district in plan is in acted otherwise i think every voter in the state would have standing because the legislature said you should be in this district you should have a fair opportunity to vote but that's not the direction the court has gone and i do think that the combination of viewing the office as one that the office holder gets to choose the constituents and the potentially broad impact of that is one that should give this court some pause and particularly again just to pick up on what plaintiffs plaintiff counsel mr elias was saying i think particularly in a situation where you have a state statute and this court's observation hollingsworth it would be quite unusual i think to find standing here if i could switch over to the merits very quickly a couple of a couple of points i wanted to start with  the observations of justice kennedy and justice kagan on the could have would have standard that mr carvin has produced has has put forth which as i understand it is basically the district is ok even if based on race as long as it could have been drawn on the basis of politics it would have been we think that really flies in the face of the shaw and miller line of cases that what those cases are about at core are two principle things that you can't use race as a proxy and you can't sort voters on the basis of race and when you do that it is not a defense to say well i could have done the same thing on the basis of politics you can send it back if the legislature in fact does the same thing taking race out of the equation then five by the injury that the shoreline of cases was designed to get at is eliminated it is precisely the sorting and so i think the would have could have tests that mr carver has put forward is really quite at odds with with the with this court's jurisprudence but i mean people objected to some extent that  marty cut back on shaw in miller as well and again i just i at least would feel on much more solid ground if the plaintiffs had been put to the test of saying show us they say this isn't about partisanship this is about race ok show us you draw the district that would protect the partisanship interests that's going to be different and yet at the lower court did not subject them to that inquiry so here are we think marty is a very important case but it actually is quite the  opposite of the situation here we think remark is the situation in which the legislator there was direct and substantial evidence that the legislature acted on the basis of politics and statistics were put forward that said it's equally explained by race and what this court said and we think it was sensible this  basically a thumb on the scale for politics at that point to give the state legislatures their room but in a situation like this where there's direct and substantial evidence that race was at issue that same evidence that it's equally consistent with politics just doesn't cut it that may well ok you know if there's evidence that race was an issue i will give you a chance to answer the question i asked each of the others i wouldn't want to deprive you of that opportunity but you're looking to see whether race was the motive what do you do if as i said you know ten say yes ten say something else and eighty don't see anything how can you say that the motive of the legislature was was this or that so your honor i think it is obviously a difficult question but i would say two things on that first is this court's cases have been  fairly unanimous in looking to the to the intent of the drafter that's what they look to for example in bush and in alabama this court had a policy and it didn't look to see whether each of the legislators individual he had embraced that policy that was something that the court accepted so i think there's a long line of of case law going that way and second of course it's not soley the intent of the drafter here there are objective indicators which this court heads has indicated in both shaw and miller are extremely important things the court looks to the traditionally district factors such as concert beauty compactness are counties being split that reinforce that kind of intent and those are things that are open that are are part of the plan that was enacted by all the legislature in whether you're a drafter or other members of the legislature say race was our first consideration and by that what we mean is that we have to take race into account under the voting rights act and that's what we've done with that what would be the situ what would be the result there so your honor i don't think that that necessarily results in strict scrutiny with this court has said over and over is that the that race must predominate the mere intentionally or consciousness of race or even the intentional use of race is not sufficient and we think that makes sense because as the court has said the district there is are always conscious of race and always aware of race and that these state legislatures need room and need room to maneuver and so the mere the mere fact that you're conscious of race or even that race you intentionally use race is not sufficient biased itself to have strict scrutiny thank you counsel mr carville you have four minutes remaining and i'd like to begin with justice kagan's question we've heard a constant theme that if we've done because of race a postop political explanation doesn't justify the fully agree with that we have a mixed motive case here that's what the district court said race politics and inc protection and the only reason that race was quote ranked higher was because he said that it was a federal mandate under the supremacy clause so if that's not a justification then than they committed legal there you turn a thirty three  was politics in incumbency subordinate they told you because that quote goal was permissive and subordinate to the mandatory criteria of compliance with the v r a now they said that they implemented it by not reducing the benchmark be that but that had nothing to do with the rank ordering the v r a over these other things to get to your question if two i take the point mr carvin but isn't that really exactly what we've confronted in alabama which is you know the number one priority was the v a but then it turned out that they had misunderstood the v i i so it turned out that the number one priority was a racial quota which had nothing to do with the way the v r a is really supposed to operate that's fine and that goes to now tell me but what we're trying to figure out here is whether or not there's a prime aphasia case now assume with me that in thirty of the districts in alabama race was completely coextensive they didn't assert politics but with county lines would you ever say that race predominated over something or subordinated something when they entirely co extensive let's take it out of the racial context compactness is number two county lines or number three you draw a nice compact district that complies with county lines no one in their right mind would say compactness predominated over county lines because the same result was ordained by these two modes and you can search this opinion for any finding that race was inconsistent with or subordinate incumbency protection or politics and you won't find it therefore they haven't made their basic burden of showing that traditional districts in principles were subordinated norther specifical martie to burden of showing you who are subordinated to race rather than politics the only evidence that they've even tried to come up with at the last minute is join appendix four thirty nine this is the v he made a big deal about the fact that there was a sixteen point five percent gap between the v t d s in district three and those outside of district three in terms of race but what his own index shows on j a four thirty nine is there was cromartie to this case needs to be reversed as to your direct evidence point justice kagan what was the direct evidence in marty to partisan and racial balance the court said as clear as possible since he said partisanship in race it says little or nothing about the relative predominant what do we have here incumbency protection politics and race therefore the direct evidence says little or nothing about the relative predominance what you need to do is to show that they could have accomplished their legitimate political objectives in some other way as to standing i've heard the slogan repeated by all of my opponents voters choose representatives not vice versa that's a lovely slogan but the relevant point here is that state legislatures choose which districts those voters go into not the federal judiciary if as you must assume the federal judiciary exceeded its proper role and created a system which dramatically hurts the incumbents who were designed to be protected by this law how can they not have a legally cognize of all injury in fact thank you brown so the case is submitted