you'll hear arguments first this morning in case sixteen eleven sixty one guild versus woodford mr chief justice in may please the court this court has never on coverage just really manageable standards for determining where politicians have acted too politically and drawing district lines plenty of social science metrics composed of statewide vote to see ratios and hypothetical projections to not solve any of these problems instead they were merely shift district ing from strong argument that suppose the court to do so have to assume we won't see the parameters of it decided that this is a first amendment issue not an equal protection issue would that change the calculus so that if you're in one part of the state you have a first amendment interest in having your party strong where the other party we know wouldn't iran and i think the reason for that is even if it's a first amendment issue it's still grounded in the right to vote in our country's single district election system folks only vote in their own district for example you might have some big interest in the part of the you associate with having more members in congress for example like a wisconsin republican might want more texas republicans in congress but no one would say that you have a first amendment or first fourteenth amendment right in that sort of circumstance to challenge some texas law that you would for example argue lead to less republicans from tex coming to the well i think the argument is pretty straightforward which you in your district have a right of association and you want to exercise that right of association with other people elsewhere in the state and if you can't challenge the district in throughout the state then your claim seems to be there's no way for you to raise your claim and that's of course confined to the state and eliminates the problem of  score should be very careful about and acting that kind of doctrine as we know what race and politics are often correlated in this country so political gerrymandering claims and racially gerrymandering claims even if they're ultimately grounded a  raised together and it cannot be possibly be the case that if there is a showing that the map dark turned on the racial screen the person is limited to a single district claim but if that same map drawer turned on the political screen maps bipartisan draw maps including the middle east prior wisconsin drawn back up and i think the court should learn to lessons from this list of seventeen ten of which were neutral the first lesson symmetry is simply not a neutral district criteria it's not a neutral method of drawing districts for if it were all of these commissions would not be drawing  second lesson that the score should learn from the from that list is that police are asking this court to launch a redistricting revolution based upon the social science much before you get too deeply into the merits which which i assume you will want to do in a minute can i just ask you a question about standing along the lines of those asked by my colleagues suppose that it was alleged that town officials in someplace in northern wisconsin where the republicans predominate were discriminating against the democratic candidate for legislative district by let's say not allowing that candidate signs to be put up along the road sides but allowing the republican signs to be put up along the road sides or they were pressuring towel let's just leave it at that they're discriminating with respect to these signs now who would have standing to raise a first amendment challenge to that would it be just the candidate in that district or maybe voters in that district or could a democratic voter in let's say milwaukee have standing to raise that first amendment argument i would certainly think you're out of the candidate of standing i'm not so sure about the voters in the district probably but certainly voters in milwaukee who don't vote for that candidate they're eligible to vote for that candidate testified in this case he was asked during his testimony what harm does ak forty three put on you given that you live in a democratic dominated district and that a son under any possible not well he said i want to be able to campaign for a majority in the sample which shows that his injury has nothing to do with him as a voter it's just a generalized interest in more wisconsinites what was causing democrats being elected which someone in wisconsin can our someone outside of get with america one more thing on the sly and suppose the sun and the southern part of the state had to talk about an issue which was very important to the people in milwaukee i think one could frame a hypothetical where if it was some sort of a home rule thing where milwaukee's or right to have certain height buildings was affected you could have no longer generalized interest but we don't have anything like that here or so can i do this because i think the hard issue in this case is are the standards manageable by a court not by some group of social science political x you know computer experts i understand that and i'm quite sympathetic to that so let me spend exactly thirty seconds if i can giving you as you've read all these briefs i have to this is this is where i'm at the moment not that i'm for this react to this as you wish and if you wish to say nothing say nothing and it's for everybody because it's a little complicated when i read all that social science stuff in the computer stuff i said well what is your way of reducing it to something that's manageable so i'd have step one the judge says was there one party control political parties differently and a good evidence of that is the party that got forty eight percent of the vote got a majority of the legislature other evidence of that is what they call the e g which is not quite so complicated as the opposition makes it ok you know the words you look to see question three is is there going to be persistent asymmetry over a range of votes that is to say a gets forty eight percent forty nine percent fifty percent fifty one that's sort of the s curve shows you that you know whether there is or is not and there has to be some and if there is you say is this an extreme out like in respect to asymmetry and there we have eric landers bre ok you know that one and and we looked through thousands and thousands of maps and somebody did it with real maps and said how bad is this compared to you know the worst in the country and then if those the the the test all those things you say is there any justification was there any other motive was there any other justification i think suspect that that's manageable i'm not positive and so i threw it out there as my effort to take the technicalities and turn them into possibly manageable questions for response from anyone in so far as you wish to respond and if you wish to say i wish to say nothing it's ok with me i think your honor i'd like to talk about the third and fourth as i think those are just talk of the second a little bit but with regard to the third which is persistence that is exactly the kind of conjectural hypothetical state of affairs in corrie that was submitted to the score to lulac in professor king because of course as your suggestion suggested steps recognize a single election doesn't mean much a single election you could have an e g for any particular reason so you would have federal courts in gauging in battles of the hypothetical experts deciding well what would it be under this map or that map so i think that's a nonstarter for that reason now with regard to extremity this was a lark i just stop you there for a second because i was under the impression that legislators are capable of doing this actually easily now you know the world of voting technology has changed a great deal and when legislatures think about drawing these maps they're not only thinking about the next election they're thinking often not always but often about the election after that and the election after that and the election after that and they do sensitivity testing and they use other methods in order to ensure that certain results will  obtain not only in the next one but eight years down the road and it seems to me that just as legislate jurors do that in order to entrench majorities who are minorities as the case may be in order to entrench a party in power so to those same techniques which have become extremely sophisticated can be used to evaluate what they're doing well your honor legislatures don't have to worry about  poke holes but every single song science metric points in the same direction so there are five of them your map drawer is one of them by the way the person who actually drew these maps and what we know is that they started out with the court when they created three or four different maps they weren't partisan enough they created three or four more maps they weren't partisan enough and they finally got to the final nap after maybe ten different tries of making it more partisan and they achieved a map that was the most partisan on the s curve and it worked it worked better than the even expected so the estimate was wrong the estimate was pretty right so if it's the which is what you were discussing are significantly less troubling than the facts in the case of that this court has previously faced for example benderman v and that's for two reasons one complied the studiously with traditional interesting principles which was not true and vandermeer and b but they kept going back to fix the back to make it more gerrymandering that's undisputed even when in the process had traditional maps that complied with traditional criteria and then went back and threw out those maps and created some that were more partisan that's correct rather and of course they were computer why do things take one of the techniques are all the techniques that are used by politicians in order to try to maximize their chances of electoral success scientific i think they rely a lot on polls don't they are how mr murphy mr chief justice and may it please the court plaintiffs have not identified a workable standard for determining when the inherently political task of destructing becomes too political for the constitution to tolerate indeed the only thing plaintiffs have added to the mix since lulac is a wasted votes test that identifies court drawn maps as enduring partisan gerrymander and conveniently favors their own political party you probably consider the many times suppose the state constitution or state statute says all districts should be designed as close as possible to conform with traditional principles but the overriding concern is to increase  maximum number of votes for party x or party line result i think if if you have something that says the ultimate principle that we're going to follow is abandon all other criteria in favor of partisan advantage at least you're point i don't think that was the question was it satisfies all of the traditional criteria contiguous and but it was a deliberate attempt to maximize the number of seats that republicans would hold mandated by the state constitution i don't think that in a world where the legislature is required to and is in fact complying with a number of other metrics and is one of those things taking into account partisan advantage that you've proven a constitutional violation that's not a manageable standard it's not a man of manageable standard that you cannot have a law that says draw maps to favor one party or the other like a perfectly manageable standard if it's under my you have statute i think you have a different scenario because at least at that point you know the intent you know there's no debate to have about the intent of what the legislature is doing and if they are intentionally drawing for one purpose there are plenty of areas of law ms murphy where we look at intent beyond the face of a statute and you know sometimes that's harder than other times we understand it can be difficult we understand in other cases it can be easy but we do it all over the place in our law we don't we don't say oh if it's not on the face of the statute we're never going to look at it so if your answer to justice alito is well on the face of the statute that's certainly a manageable standard i guess i would ask why not if it's not on the face of the statute but you absolute you know but you have good evidence that there was the intent here and you have good evidence that the intent lead to a certain kind of effect question and be helpful to get an answer from me on that what criteria would the state need to know in order to avoid having every district in every case in every election subject to litigation because the standards given in  need how much data would we have to gather walk us through just as briers question and provide some answers if you would sure so i think some of the problems with the criteria that have been suggested in particular with the test that focus on these is that so far the metrics that we have i mean they identify false positives roughly fifty percent of the time and i don't know how a legislature is supposed to comply with criteria that can't differentiate between a court drawn map and a map drawn for partisan advantage so when you start with this partisan symmetry concept you automatically have the basic problem that you have to have some way to decide what is the appropriate partisan a sim it's ok but one of the questions you know i need two years or two cycles worth of data i need and ask her of a certain shape and size i need an efficiency gap of seven one of the numbers what are the criteria we'd have to fill in as a constitutional matter in order for a state people administer this well i mean with all due respect i am not convinced that there are manageable criteria for the courts to be putting on legislatures for how to go about this process and i certainly don't think that we're going to comply with everything that we're supposed to do not only as a legal matter but also all of these practical constraints we're going to draw districts that every law is it because the time is running at i would like to ask you what behind all of this the precious right to vote if you think that a legislature in this way what incentive is there for a voter to exercise his whether it's a democratic district or a republican district the result using this map the result is pretty good dane in most of the districts isn't that what becomes of the precious right to well a couple of responses to that your honor first of all it's inherent in our district and scheme that there are plenty of people who are always going to be voting in districts where they know what the result is going to be and that has nothing to do with partisan gerrymandering it has to do with the geography of politics and the fact that some of us just live in districts where we know that our vote will come out one way or another in wisconsin before this plan was it the case that what it was something like draw that conclusion from the factors of uncontested races i mean the reality is that political parties have to make decisions about where to put their resources and they're going to have to do that for reasons that again have nothing to do with destructing for partisan advantage they have to do with the fact that drawing districts is always going to reflect political calculations and it's always going to be driven by communities of interest and communities of interest sometimes feel very strongly about one political party rather than another i have to say that i don't think you ever answer the question if the state has a law or constitutional amendment that saying or the gentleman factors must be used in a way to favor party x or party why is that lawful  on the face of the constitution as a requirement the district must the legislature must comply with then that could be your instance of a problem that can be actually solved by the constitution but it's quite different to me when you have a well it's a little hard to say at this point because you know it really just hasn't been fully explored this concept of how you would come at all of this from a first amendment perspective i think this come back to really protection i think the question i mean it would be you who has standing to bring their assumed standing i'd like an answer to the question yes it would be an unconstitutional that was on the face of it and i think that that would be better thought of probably as an equal protection violation but you could think of it just as well i think as a first amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to would you almost concede that it doesn't when you say if the state has a constitutional amendment or has a law that says you must comply with traditional criteria but you must also politically cherry manager you're saying that might be unconstitutional it might be but i don't think that necessarily means that distracting for partisan advantage has no positive values i would point you to for instance justice briar's dissenting opinion indeed which has an extensive discussion of how it can actually do good things for our system to have districts drawn in a way that makes it easier for voters to understand who they are account who the legislature is it produces values in terms of accountability that are valuable so that the people understand who really understand how any of that what that means i mean it's ok to stack the deck so that for ten years or an indefinite period of time one party even though it gets a minority of bullets can't get it gets a minority of votes can get the majority of seats with all due respect you know i would certainly dispute the premise that the here at the end of the day what matters is how people vote in elections and that's what's going to determine the outcomes as it has in wisconsin where the republicans have won majorities because they've actually won the majority of the a vote in most of the elections over the past four years th smith mr chief justice and me please the court what the state is asking for here is a free pass to continue using an assemblyman up that is so extreme that it effectively notifies democracy as this case illustrates it's now possible even  a fifty fifty state like wisconsin to draw a district map that is so reliably and extremely biased that in effect would effectively decides in advance who's going to control the legislative body for the entire decade maybe we can just talk briefly about the standing issue it is a little arresting to have a rule that we establish that when your claim is racial germy entering it has to be limited to your district you can't complain about racial gerrymandering elsewhere in the state but here if the cla is going to be political gerrymandering you can raise claims about whole state wide issues even if there is no argument that your gerrymandered like the first plaintiff whose votes in madison  is included in any way and yet he is able to complain about voting anywhere in the state where mr chief justice i think that standing has to follow from the nature of the injury and that follows from the nature of the close to show violation a racial gerrymander reno claim is an attack on a particular district for being drawn with excessive focus on race in that situation the injury has to be localized to the place where that district is partially partisan gerrymandering has the same word it but it's an entirely different  kind of injury because it involves dilution of votes racial gerrymandering is analytically distinct from any dilution what about and what about the sign hypothetical you know you're up in the far north of wisconsin and somebody is is taking down the signs for the one candidate in the far south that the facts that individual's the strength of his vote for the state wide purposes if he really have standing t complain about that well your honor i think you could decide that while it might have some de minimus effect on the interest of any democrat hope tempting to carry out that group's political agenda that it's officially de minimis that it wouldn't want to give standing to people outside the directly affected area wh animists it seems to me it's exactly the same thing if you have a system you let's extend it to many towns that are controlled by the republicans and they're taking down all the democratic side and if that's an effective strategy it will mean fewer members of the legislature are democrats and therefore the interests of the democratic voter and no walkie madison will be impaired it seems like exactly the same thing where you are if you had a systematic effort in a lot of places by the members of one party to prevent the other party from campaigning state who wants to complain that districts in another part of the state are are packed or cracked and as a result of that they're going to be fewer african americans in the legislature than there should be and that's going to one pair that person's interests including i would suppose their right of association what is the difference between those two situations we're out of the that's a section to both dilution claim and i think that the law appropriately limit standing in that situation to people  live in the region of the state where there's an absence of a minority district and you wouldn't want to assume that some african american from a different part of the state has a collective interest with people over here in this part of the state just because of race that's just area type thing but with party people join the party to work together to achieve a collective end that's equally stereotype sometimes people vote for wide variety of reasons maybe the candidate although is of a different party is a is a friend is a neighbor maybe they think it's a good idea to have representatives from their district to balance out what they view would be necessary likely candidates from other districts maybe they think it's any more sturdy and less stereotypical to say put people are going to vote for parties because they support everything the party does statewide will put to have standing i think you'd want to find plaintiffs who do that your honor and certainly the plaintiffs we have here are thoroughgoing supporters of the disfavored party their party has been punished by the law of the state of wisconsin and i think that the standing issue ought to beast satisfied by the description of what our claim is which comes right out of justice kennedy's concurrence in vith where it's on page eighty six a of the jurisdictional statement the white appendix it's just a two sentence description of our claim first amendment concerns arise where a state annex a law that has the purpose in effect of subjecting a group of voters or their party to disfavor treatment by reason of their views in the context of partisan gerrymandering that means that first amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters representational rights so the group is is the targeted people those are the people who have the injury the injury to their first amendment interests and one person an overpopulated district have standing to challenge not only that district those district lines but the entire state map that is truly that is the way this been handled ever since the reynolds case and why is that and is it an analogy to this case well it's certainly helpful analogy it's not exactly the same because they have to live in an overpopulated district rather under populated district but those are the people in who suffer vote aleutian because they're living in the in the overpopulated districts in the court is that not only does that person have standing to challenge their own district but also to challenge the entire map and make all of the districts closer in population that's just the way that's been handled since the sixty's mr smith i'm going to follow an example of where my colleagues and lay out for you as concisely know what it what is the main problem for me and give you an opportunity to address it i would think if the if the claim is allowed to proceed there will naturally be a lot of these claims raised around the country politics is a very important driving force and those claims will be raised and every one of them will come here for a decision on the merits of these cases are not within our discretionary jurisdiction they're in the mandatory jurisdiction we will have to decide in every case  democrats win or the republicans win so it's going to be a problem here across the board and if you're the intelligent man on the street and the court issues a decision and the say or the democrats win and that person say why did the democrats win and the answer is going to be because e g was greater than seven percent where e g is the sigma of party x wasted votes minus the sigma party why wasted votes over the sigma of party x votes plus party y votes and the intelligent man on the street is going to see that's a bunch of baloney it must be because the supreme court preferred the democrats over the republicans and that's going to come out one case after another as these cases are brought in every state and that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the know it is just not it seems a palatable answer to say the ruling was based on the fact that e g was greater than seven percent that doesn't sound like language in the constitution your honor first thing i would say in response to that is that those challenges are already being brought partisan gerrymandered maps could challenge they get challenged in other ways under the one person one vote doctrine under the racial gerrymandering doctrine under section two and so you're getting those cases most of the statewide district maps in this country are challenged every ten years in some way or another what would make the system work better is if people could bring a challenge to what they actually think is wrong with the map which is that it's anti democratic it decides in advance that one party is going to control the state government for ten years and maybe for twenty years because they can replicate it at the end of the ten years and do it again that is the real problem and i think what the court needs to know is it's this is the cusp of a really serious more serious problem as gerrymandering becomes more sophisticated with computers and data analytics and it benteke an electorate that is very polarized and more predictable than it's ever been before if you let this go if you say this is we're not going to have a judicial remedy for this problem in two thousand and twenty you're going to have a festival of copycat gerrymandering the likes of which this country has never seen and it may be that you can protect the court from seeming political but the country is going to lose fa democracy big time because voters are going to be like everywhere to be like the voters in wisconsin and know it really doesn't matter whether i vote for mr sharon absolutely the whole point is you're taking these issues away from democracy and you're throwing them into the courts this look look i don't agree with me just because it sounds favorable because he won't in two minutes when you go and to the chief justices question and say the reason they lost is because a party a wins a majority of  party controls the legislature that seems fair and if party loses a majority of votes it still controls the legislature that doesn't seem fair that can we say that without going into what i agree is pretty good gobbledygook and if you need a convenient label for that approach you can call it proportional representation which has never been accepted as a political principle in the history of this country your honor we're not arguing for proportional representation we're arguing for partisan symmetry a map which within rough bounds at least treats the two parties relatively equal in terms of their ability to translate votes into seats thank you very likely to react like proportional representation to be not proportional representation is that when you give the same percentage of seats as they have a percentage of votes that's what proportional representation means and our claim simply doesn't remotely do that it says if party a at fifty four percent gets fifty eight percent of the seats party b what it gets fifty four percent ought to get fifty eight percent of the seats that's symmetry that's what the political scientists say is the right way to think about a map that does not distort the outcome and put a thumb on the scale mr smith can i just say something ask you a question about the political science i mean i journeyman during these distasteful but if we're going to impose a standard on the courts it has to be something that's manageable and has to be something that sufficiently concrete so that the public reaction to decisions is not going to be the one that the chief justice mentioned that this three judge court decided this that this way because to  three were appointed by a republican president or two with the three were appointed by democratic president now it's been thirty years since a band tomorrow and before than and since then judges scholar legal scholars political scientists ha been looking for a manageable standard all right in two thousand and fourteen and a young researcher publishes a paper erik mcgee publishes a paper in which he says that the measures that were previously the leading measures previously symmetry and respond of this are inadequate but i have discovered the key i have discovered the rosetta stone and it's it is the efficiency gap and then a year later you bring this suit and you say there it is that is the constitutional standard it's been finally after two hundred years it's been finally discovered in this paper by a young researcher who concludes in the end this is the end of his paper after saying symmetry and responsiveness have shown to be looked to be inappropriate the measure i have offered here relative wasted votes is arguably arguably more valid and flexible measure of of of partisan partisan gerrymandering now is the time for us to jump into this has there been a great body of scholarship that has tested this efficiency gap it's full of questions mr mcgee's own amicus brief outlines numerous on the answered questions with with this theory what do you do in elections that are not contested well then you have to you have to make two guesses how many people would have voted for the winning candidate if it had been a contested election how many people would have voted for the losing candidate if it had been a contested election one of the judges on the court the los asks why do you calculate matt by subtracting from the votes obtained by the winner fifty percent of the votes instead of the votes obtained by the runner up and mr mcgee says well i have an answer to this and i have a forthcoming lis if i might justice alito in vith the court appropriately laid down a challenge and said if you want to do this you've got to give us a lot more than you've given us you've got to give us two things a subset of definition of fairness and a way to measure it so we can limit judicial intervention to the really serious cases and so we won't have the court entering into the political fray all the time but will have standards that say you go this far we're going to go we're going to go it go after you but in the meantime anything less serious than that we're going to leave to the political branches and so the social sciences stepped up and said we have three different ways to calculate this asymmetry not just one the median mean measure measure the partisan biased measure we're equalizing the fifty fifty and elect the efficiency gap and in this case they all come to the exact same conclusion that this is one of the most extreme gerrymandered ever drawn in the in living memory of the united states one of the five worst of the two hundred thirty maps that professor jacqueline studied and so there is no choice there's no question here about this being the maximizing one party control as far as they intuitive and a trap principle so if the first question was do you have a substantive principle i actually think you do the second question is or is there ways are there ways to make sure that not every district is subject to challenge as violating that principle and so i'd like to hear you talk about that how is it that we are not going to create a world in which in every district somebody can come in and say there's been a violation of partisan symmetry wearing tight ons to a redrawn map what's the threshold where do you draw the line because this this it seems to me that good job is that they each allow you to assign a number to each gerrymander and that allows you to compare them across the country and back in history and therefore it is possible to draw a line now in addition to just measuring the degree of asymmetry the other thing that's important to do is to measure the likelihood of durability of any symmetry and you do that with the sensitivity testing so you make sure you don't have the kind of map that with a small swing of voting over the next decade is going to split over is the map in pennsylvania and vive actually did with that we had the right tests that the ones that are now presenting to you we would have won that case in two thousand and four but this map is never going to flip over the evidence is unequivocal that the democrats would have to have an earthquake of unprecedented proportions to even have a chance to get up to fifty votes out of ninety nine all of those predictions i mean band to me are predicted the democrats would never be able to attain a majority it was fifty fifty the next election and they got a majority they want to after that you already mentioned vif was five days right after the district court said only forget it was republicans are never going to get elected and i won every single race predicting on the basis of statistics that are before us has been a very hazardous enterprise the technique of sensitivity testing which was done by the defendants expert in the in the process of drawing the man up to make sure that they were drawing a  permanent non flexible gerrymander and then done again by the experts for the plaintiffs in this case in court and tested by the court isn't a method by which you identify what one thing about the map doesn't have a lot of swing districts in it a lot of competitive districts in it because if it does you can have a map that looks very biased in one year when all those districts go one way but it might flip over that was banned for that was beith that is not this case they spent their entire time in that those four months in that locked room doing two things trying to maximize the amount of bias and eliminating systematically competitive districts reducing it down to something less than ten when it had been up around twenty and then the even of those ten they tinkered with it in ticker with it to make sure that even that ten they thought they could get at least seven they ended up getting eight and then eventually all ten missiles are you suggesting that we should be looking for outliers or are you suggesting that we should be trying to filter out all manner of part unconstitutional what you need is a method by which the extreme gerrymander the one it is fundamentally anti democratic and it's going to last for the full decade can be identified and it held unconstitutional that and that's the only thing we're asking mr smith what is the achieves that because the court below didn't rely on efficiency gap entirely and also the partisan symmetry test reminds me a little bit my steak rob i like some  america i like a few other little ingredients and i'm not going to tell you how much of each and so what's this court supposed to do a pinch of this a pinch of that or are we supposed to actually specify it's going to be the chief  formula of the efficiency gap of seven percent for the country is that what you're asking us to what is it that you want us to constitutional eyes well you are the first thing i want to make clear is is that symmetry is what's being measured by the efficiency gap by the other two tests that i mentioned symmetry is the underlying substance but there are different tests for measuring symmetry there is the test you previously proposed and now there is the efficiency gap test the court relied on both and said a little bit of the pinch of this in a pinch of that are not telling you how much of each so i think there doesn't seem very fair to the states to me to know how to what they're supposed to do to avoid the kind of litigation we're talking about as i understand efficiency gap test itself and tell me if i'm wrong that it would yield about a third of all the districts in the country winding up in a core and i know that's what the other side says would tell me where that's wrong and tell me what test you'd have this court adopt well first of all i would go with the screens that justice prior mention the first one being it has to be a one party state that one third figure they keep throwing around ignores the fact that the number of those maps were drawn other by commissions or by courts or by divided legislatures and so that those all get taken off the table from the very beginning if you have a one party state you then have to measure whether it's unusually asymmetrical pretty extreme and we i mean we don't know what any of those three tests that were all apply any of them and yes any of the three if they don't i would suggest you apply all of them and if they disagree that would  high levels of very high e g based on factors that have nothing to do with gerrymandering that the political geography can lead to it protection of incumbents which has been said to be a legitimate factor can lead to a high intense to a requirement that effects requirement in the justification requirement all of those problems are taken care of either with the intent stage or at the just if it comes to taking care of at the justification stage the proposal is to run many manda at you know millions  of alternative maps to see whether using some traditional destructing requirements you can produce a map that has a lower a lower e g but my understanding is that when that's done those maps do not take into account either  incumbent protection or compliance with the voting rights act both of which can have a very big effect it's just one of the dozens of uncertainties about this whole process actually they do they do take into account the voting rights act of the chien study that was discussed in one of the amicus briefs that is discussed somewhat in the merits briefs here where they he produced two hundred randomly generated maps of wisconsin using all the state's traditional criteria he started with the minority districts that were already drawn by the state in ak forty three and kept those in place and so then he generated randomly generated maps and he found that the degree of bias created by the political geography of wisconsin is minute modest a little bit something just like what the district court found maybe one or two percent not even remotely like what they have in the map and would it be fair to require plaintiffs to provide those maps many many of them so that one can tell wh their actual map is an outlier well i think in the cases going forward after this these technologies are there they will be in the record in almost every case it has become the state of the art whether it ought to be something that the plaintiffs have to produce as part of their initial teach you a lot of lessons about the effects of of neutral criteria of where people live and allow you to say that has nothing to do with the degree of bias that we have here and i think it will become a part of how these cases are decided at the geography from the effects of partisan advantage yes your honor i would say that at the remedy stage if they if they come back with a remedy map that matches the sort of neutral geography even if it's somewhat favorable to the to the party that's in charge that should be ok they don't have to go to zero just the remedy stage but they have to come up with something much less extreme than their intentional gerrymandering one that basically makes democracy no longer function because basically the gerrymandered now are not your father's gerrymandered these are going to be really serious incursions on democracy if this court doesn't do something in this is really the last opportunity before we see this huge festival of new extreme gerrymander it's all done along the model of wisconsin but probably even more serious i thought i would commend the political scientists brief which talk about the revolution in data analytics that has happened since this map was drawn you're going to see people coming in and slicing and dicing a very polarized electorate to the point where one one party control will be guaranteed that's going to become the norm indeed in any one party state if you don't do it that way they're going to say what  me do you count that as one party i do your honor i think if there's a majority one party has a majority in both houses of the legislature and the governorship the fact that there are there are some representatives of the other party in  minority status would not negate the possibility the thing was mr smith is that it is not a republican form of government claim i think it's a first amendment claim it protection claim and i'm not going to try to revive the republican form of government clause at this late stage is not is not exactly what you're trying to do though you're saying it's a one party rule and that would violate a republican form of government guarantee would that be the more specific constitutional provision to look to rather than the generic equal protection clause well that matter on state state legislative matters it's pretty clear like you look at the fifteenth amendment you look at the nineteenth amendment the twenty sixth amendment and even the fourteenth amendment section two says congress has the power when state legislators don't provide the right to vote equally to dilute congressional representation are those all textual indications in the constitution itself that maybe we ought to be cautious about stepping in here i don't think there's anything unusual about cases that have followed along since and the fact that congress could conceivably regulate this problem under the fourteenth amendment does not mean that the court should not there's a number of cases of the term limits case cook versus gray like where congress could have used the elections clause to to fix a problem but the court said well in the absence of congressional action we're we're go to regulate an abusive misuse of the power to run federal elections in this in this case of state elections you have to rely on congress would have to rely on section five of the fourteenth amendment maybe they could in theory but this is a problem when you see any impediment to congress acting in the serri other than the fact that politicians are never going to fix gerrymandering they like gerrymandering this is the problem in this area is if you don't do it it's locked up the voters of wisconsin can't get it on the ballot without the legislatures consent and that's true in most of the states that don't have commissions now and so you have we're here to tell you you are the only institution in the united states that can in this seminal article by your expert mr mcgee and he says there i show that the effects of party control on bias are small and decay rapidly suggesting that redistricting is at best a blunt tool for promoting partisan interests so he was wrong in that he's right with e g that's the result of stone but he's wrong on that your honor and have to see what is saying in context i'm quite confident mr mcgee does not think that reid just  in a state would violate the first amendment because it would stigmatize that part in this case this course cases cannot be clear that when you have the question is not a partisan attack because there will always be partisan then the question is have the plaintiffs presented a a burden on representational rights based upon a limited precise judicially had minimal strength standard there has been nothing new  second we've heard something about the various tests that they're now proposing there was only one test that was subjected to adversarial scrutiny in this case a four day trial that officials to gap test proved so fa flawed that the district court rejected it as the test and plaintiffs abandoned it as the primary trust on appeal and then my final point about the scare tactics about what will happen next plaintiff's expert did a comprehensive study from disk or properly criticized participates from the tree as not a neutral standard that has uniform acceptance and we are asked for those reasons for this court to reverse the district court think your honour's thank you counsel case is submitted