GOLDEN BETHUNE-HILL, ET AL., Appellants v. VIRGINIA STATE BOARD OF ELECTIONS, ET AL., Appellees
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg
Interviewee(s): Irving L. Gornstein, Marc E. Elias, Paul D. Clement

John G. Roberts, Jr.: We will hear argument first this morning in Case 15-680, Bethune-Hill v. The Virginia State Board of Elections. Mr. Elias.

Marc E. Elias: Mr. Chief Justice, and may it please the Court: The district court created out of whole cloth a new legal standard that permitted Virginia to apply a one-size-fits-all, 55 percent racial floor to all 12 of its predominantly black districts.

Virginia applied this 55 percent rule to move voters in and move voters out of districts on the basis of race, regardless of the differences in voting patterns, geography, demographics, or the actual interests of black voters in each of those districts. This actual conflict test, which the D.C. -- which -- I'm sorry -- which the district court invented for predominance has no basis in this Court's jurisprudence.

Instead, it confers a sort of judicial immunity to visually appealing districts that nevertheless were drawn with the predominant purpose of placing voters within and without based solely on the color of their skin.

John G. Roberts, Jr.: I'm -- I'm not quite sure I understand how you assess predominance, which I think is the challenge here. And to take a hypothetical, let's say you're trying to select people for a particular board or something; and you say they have to come from a city with more than 500,000 people, absolutely.

And then you say, and they have to come from such a city in California.

Can't be anywhere else. Now, which is the predominant factor? The 500,000 or California?

Marc E. Elias: Well, in this case, under the jurisprudence of -- of --

John G. Roberts, Jr.: I don't really care -- I'm not talking about this case.

It's a hypothetical.

Marc E. Elias: I think that you -- you can set aside the -- the population center, and you would look at the State of California as the predominant factor because it is the criteria to which all others must yield, and in this --

John G. Roberts, Jr.: Well, how do you know that? I mean, it seems to me that the 500,000 is the criteria which -- to which all others might yield.

Marc E. Elias: In -- in -- in that hypothetical, each of them might be an unyielding criteria.

John G. Roberts, Jr.: Right.

Marc E. Elias: In this case, there is only one.

John G. Roberts, Jr.: Well, no, I know. That's why I'm looking -- that's why this is called a hypothetical, because it's not about the particular case. But I -- I -- obviously, what I'm trying to highlight is, "predominant" means one that dominates over all the others.

Marc E. Elias: Right.

John G. Roberts, Jr.: And it's easy to imagine situations where you cannot say that one dominates over all the others.

Marc E. Elias: I think --

John G. Roberts, Jr.: So what do you do in a situation like that?

Marc E. Elias: I think I now understand your -- your question. In that case, neither criteria would predominate, because, in fact, neither one controls the other.

And in that case, we would not have met our burden of predominance; and as a result, we wouldn't -- we -- we wouldn't get to the second step of strict scrutiny. Where you have one criteria, though, then you can fairly say there was predominance, because --

John G. Roberts, Jr.: Well, if you're still -- you're trying to figure out which -- which predominates.

And I think this is where the inquiry or the test that you challenge comes from. One way to tell which is the predominant is to see if they conflict.

And if they conflict, then how do you resolve it? And whatever trumps the other, that's the predominant one.

Marc E. Elias: That -- that --

John G. Roberts, Jr.: Right?

Marc E. Elias: Your Honor, that is one way that evidence is adduced to determine predominance.

John G. Roberts, Jr.: Uh-huh.

Marc E. Elias: But it is not the only way.

If, in fact, to use your hypothetical, the legislature of California -- let's assume that they're the ones setting these criteria -- says, our predominant factor, the -- the dominant and controlling factor, is that it has to come from the State of California, the fact that it may also come from a -- the members may also come from a city with more than 500,000 members doesn't mean that the first criteria didn't predominate.

We know it because the legislature told us, this is the dominant -- this is the dominant criteria.

And that --

Samuel A. Alito, Jr.: What if the -- I'm sorry. Finish.

Marc E. Elias: I -- and that's what this -- that's what happened in this instance.

Samuel A. Alito, Jr.: What if the legislature says, look, we want to follow all the traditional districting, applying all the traditional districting factors.

However, one thing we absolutely do not want is to be held to have violated Section 5 or Section 2 of the Voting Rights Act.

So we have these 12 majority-African-American districts, and we don't want to do anything to them that results in liability under the Voting Rights Act. Is that predominance?

Marc E. Elias: It is predominance if race was the -- was the controlling factor in -- that could not yield in the drawing of the districts. Now, it may very well be that when the Court then completes its inquiry, there will be a strong basis in evidence that -- that drawing the districts that way was to comply with a good faith understanding of the Voting Rights Act, and then the -- the State wins. In this case, though, what the State did is it started with an --

Samuel A. Alito, Jr.: I didn't really understand the answer to the question. If the court says -- if the State says, the one thing we absolutely do not want is to be found to violate the -- the Voting Rights Act, that is not -- that -- that is not necessarily predominance, in your view?

Marc E. Elias: That is not necessarily predominance.

It is when that is -- because there are any number of ways to comply with the Voting Rights Act that do not require race to be the dominant and controlling factor. For example, you -- you have any number of districts -- I would hazard to guess -- and it is only a guess -- a majority of the districts in this country -- that are drawn by legislatures that are majority-minority, where they start with traditional redistricting criteria and the district is over 50 percent or over whatever the -- the applicable threshold is, and they never need to trump the traditional redistricting criteria with race. In this instance, they trumped -- and I use that word --

Stephen G. Breyer: What -- what is your evidence of that? I mean, look, which I'm sure you've read, in -- in the Alabama Legislative Black Caucus, which I had hopped would end these cases in this Court, which it certainly doesn't seem to have done -- all right? But if you make the comparison, it isn't enough, I don't think, for you to say that they just saw some traditional factors; and they didn't take into account other evidence that they were using race predominantly. Well, if you look at the other evidence on page 1271, you know, the west thing, it was pretty strong evidence.

They added 15,785 new voters; and of those, precisely 12 were white.

Right?

Marc E. Elias: Right.

Stephen G. Breyer: Now, is there -- and when you looked at their use of the factors, of the traditional factors, they were pretty irrelevant.

Marc E. Elias: Right.

Stephen G. Breyer: It makes a point of that in the opinion, and that -- that that's meant to guide the district judges.

And so what -- what's the equivalent here? What's the equivalent if -- assuming he didn't say exactly the right words, no one can say exactly the right words, what's his mistake?

Marc E. Elias: His mistake is setting an arbitrary threshold at 55 percent.

Stephen G. Breyer: No.

What is the evidence that you say would show that, in fact, they did use race? What's your strongest one or two pieces of evidence?

Marc E. Elias: I think --

Stephen G. Breyer: You saw the 17 -- 15,785. That's pretty strong.

Marc E. Elias: I think if you look at District 71 --

Stephen G. Breyer: Okay.

Marc E. Elias: Okay.

What you find is this is an inner city -- just to orient to the Court, this is an inner city district at the core of Richmond. And this is a district that had a 46.3 percent BVAP, and because of the 55 percent rule that had been set out, and there's really no dispute, the -- the district court agrees that that was a rule that guided the drawing of districts, all of the districts, as a result of that rule, we -- what you see is a racial gerrymandering.

You see that that district went from 46.3 to 55.3 by essentially raiding every other district around it, essentially the suburbs and the exurbs, raiding those districts and bringing black voters in, notwithstanding the fact that it was a classic crossover district.

It was a district in which, essentially, white liberals in -- who had moved to the city were voting in harmony --

Stephen G. Breyer: What was the number, roughly, of the new people in the district? How many are black? How many white? Of the people who were moved out of the district, how many were black, how many were white, approximately?

Marc E. Elias: They -- they -- the -- I don't have the precise number that were moved in and out, but there were a significant number, in the -- in the many thousands of voters who were moved in and many thousands who were moved out.

Stephen G. Breyer: But giving a number matters, because, after all, the -- the -- that was the key factor in Swann.

Marc E. Elias: Right, and I think that --

Stephen G. Breyer: How do I find that?

Marc E. Elias: I think it's on -- it's in the Joint Appendix on 669.

It has the -- has the movements. I just -- as I stand here, I don't know them, but it's for all 12 districts.

But it is a significant number. It's not -- it's not two or ten or even a hundred.

It's several thousand in a district that is only --

Stephen G. Breyer: I found what I wanted to know.

Marc E. Elias: Okay.

Stephen G. Breyer: I just wanted to know where to look.

Elena Kagan: Mr. Elias, could I make sure I understand: What's your view of -- let's -- let's -- the policy here says 55 percent, and it says that across the board as to each of these 12 districts, and it says, effectively, this is the most important criteria, in the sense that it will trump other things.

All right? So -- but -- but as I understand your argument, you're not resting your case on that fact alone; is that correct?

Marc E. Elias: That is correct.

Elena Kagan: And why is that? When would such -- when would such a policy not have the requisite impact on a voting district?

Marc E. Elias: Right.

Justice Kagan, I think this gets, actually, to Justice Breyer's exact point. If -- if you had a district where it had no impact, it actually didn't cause voters to be moved in significant numbers, then -- then we agree with -- with the Solicitor General's office and this court in Alabama that, if a significant number of voters are not moved as a result of that racial threshold, then -- then strict scrutiny is not triggered.

Elena Kagan: So we really are looking to what Justice Breyer suggested, which is, we're -- we're looking to the movement of voters in and out of a particular district?

Marc E. Elias: Yes, and I don't think that that is at -- at -- in dispute.

We will hear from my colleague, and maybe I'll be surprised, but I don't think that's the dispute.

I think that the issue here is the legal error that was -- that was committed by the district court in saying that, if we find a district that looks like it's abided by traditional districting criteria, that's the end of the inquiry.

That's the --

Elena Kagan: Even -- even if we concede that there were -- you know, essentially, all the African-Americans were moved in and all the -- the -- the whites were moved out.

It's --

Marc E. Elias: And even if it was done by an -- for an avowedly racial reason.

But under the -- under the trial court's test, a -- a -- the legislature of Virginia could say, we want to corral all of the African-Americans we can because we think they all vote alike and we don't want them infecting the neighboring districts, and so we want to get 70 percent of them into a district.

And if, lo and behold, they then draw a circle, right, and visually, the most compact district you can, under Judge Payne's opinion below, we don't ask the question about race.

We never get to the evidence of --

John G. Roberts, Jr.: So you're saying -- yeah.

So you're saying you do not need a conflict between traditional criteria and race?

Marc E. Elias: Correct.

John G. Roberts, Jr.: But do you agree with the Solicitor General that say -- who says, nonetheless, that -- that -- quoting on page 8 of their brief -- in the vast majority of cases, a conflict may be necessary evidence to establish racial predominance?

Marc E. Elias: I think that that overstates it slightly.

I'm not sure that I'd say "in the vast majority of cases." In many cases, you're going to have a correlation; I agree with the Solicitor General.

John G. Roberts, Jr.: Well, even if you're saying not in the vast majority, but in the majority, or -- why is that? Based on -- on your answer to Justice Kagan, why is it that you're almost -- almost always or vast majority for the SG, or something less than that in your --

Marc E. Elias: I -- I -- I think the reason is because in the real world, the way in which population distributes, you're going to need to create bizarre districts in many instances, in many parts of the country.

You're going to need to have visually unappealing districts in order to conduct what is essentially a Shaw violation. But that's -- the reason why I pointed to Richmond is that Richmond is exactly the instance of a place where that's not going to be necessary, because you do have a crossover district.

You have a district where you have white college students and white young professionals moving into an urban -- a prior urban center, voting in harmony and reinforcing with the African-American population in that area.

So it won't necessarily be visually bizarre, but it is nevertheless the destruction of that crossover district to create a 55 percent for the sake of 55 percent is -- is not going to be -- even be a --

Stephen G. Breyer: We haven't said that for a reason.

We haven't said just the use of race is wrong. We've said it has to predominate, as you know.

Marc E. Elias: Correct.

Stephen G. Breyer: And -- and my problem with your argument here, if you want to go on the -- what the district court said there, which you may be right, but this is such a complicated area that it's the easiest thing in the world to go through a district court lengthy opinion and to find a sentence that's not exactly right.

Stephen G. Breyer: And that's why it seems to me, if we're going to have a -- ever have districting done back in the legislatures, rather than in the courts, you've got to prove your case that, not only did what he say was wrong, but it mattered, with pretty strong evidence.

Marc E. Elias: I -- I agree, Justice Breyer. I -- but -- but I'd make two points in response. Number one, this was not a stray sentence. This is the -- the -- in every one of those hundred-plus pages, this is the test he applies, over and over and over again.

You look at the -- page 111 to 115, and he -- there is a -- which is a discussion of this -- this -- this same Richmond district, and read that analysis.

And he says, well, it's visually appealing; therefore we don't need to -- we don't need to address it, and, by the way, district courts, we shouldn't be in the business of assessing credibility between witnesses. We shouldn't be in the business of assessing credibility between -- between two legislators, because after all, it's visually appealing, and why would we want to do that? This was rife through the opinion, not an isolated statement.

It was his holding that where traditional redistricting principles can explain, can explain, then we don't need to actually look at other evidence of what the real motive was, and that error is not something that comes up over and over and over again.

That is a unique error in this case.

Ruth Bader Ginsburg: So are you proposing that we remand, we tell the district court, you applied the wrong standard, and that the right standard is race can predominate, even if there's no distortion of the shape of the district? Is that -- is that the relief you're --

Marc E. Elias: I think that -- I think that that is -- that is an appropriate relief, Justice Ginsburg.

I think with respect to some of these districts, the Court can simply reverse. I think with respect to that Richmond district, the analysis is the -- the facts are not genuinely in dispute as to what was going on in that district that I think it can be reversed.

John G. Roberts, Jr.: It's kind of --

Ruth Bader Ginsburg: I'm sorry.

John G. Roberts, Jr.: I was going to say: It's kind of hard to do it just with respect to one, isn't it? Because that means, okay, you can't pull these voters in, so you've got to push them back, and now all of a sudden that other district has an issue.

Marc E. Elias: I -- I -- I think, Mr. Chief Justice, that's a -- that's a fair point.

I think if you look at the map, what you'll see is, we're actually talking about four geographic pockets. There is a Richmond pocket of districts; there is a south side Virginia, which is up against the -- the border of North Carolina, there are two districts; then there is a Lower Hampton Roads and an Upper Hampton Roads.

And each of those pockets really don't impact the other. So, yes, I -- I -- I agree with you, in general, it would cause redistricting around the Richmond area, but if -- if you recall the -- in the -- in the Personhuballah case, which this Court heard last -- last term, we dealt with a single district, Bobby Scott's congressional district, which had been racially gerrymandered by the same legislature using the same 55 percent floor, and when they did the redistricting it only affected the two neighboring districts. That -- I'm sorry -- that district and the -- and the -- really, the district next to it, so -- but I -- but I understand the point, and it's -- and it's a fair one.

And in that sense, remand would not be an unreasonable step to take to apply it correctly.

Elena Kagan: Just if I -- so I can understand your sense of the relative strengths of your arguments, if we did remand, say, this is the wrong standard, go apply the right standard, and -- and that was done fairly, where do you think he would have to change his view, where do you think that there would be a question, and where do you think the same result would probably obtain?

Marc E. Elias: So I'd like to say there would be new results everywhere.

But to answer your question fairly, as I try to always do, I think in the Richmond area, there is no question that a fair application of the standard would lead to a new districting in -- I'm sorry. In the Richmond area, which are Districts 71, 69, 70, and 74, I think there is no question that it would lead to a -- a new -- it would lead to a -- a different map, a different result. I think in the south side of -- of Virginia, which is two districts, 75 and 63, this was a curious one, because he actually found race did predominate in 75 by splitting Dinwiddie County -- Dinwiddie County being a border county of North Carolina -- on a validly racial grounds, but yet did not find race predominated with respect to 63. It's difficult to understand how race could have predominated in the racial division of voters on one side of the line, but not predominate in the racial division of voters on the other.

Anthony M. Kennedy: But -- but as to 75, did he not say that strict scrutiny was met, because other legitimate and -- and conventional factors were considered and were present?

Marc E. Elias: He did find --

Anthony M. Kennedy: It seems to me that 75 is the -- is the strongest case for the district court.

Marc E. Elias: I think 75 is the strongest case in the sense that the application of the wrong legal test, he still found that we met -- that we met our burden of -- of -- of predominance. I think it is a weak finding on the part of the district court in this regard, Your Honor.

If you look at what the actual evidence was to meet the strong base of evidence -- because once -- once we found -- once predominance was found and strict scrutiny applied, now the burden shifted to the government to explain why they had a strong basis of evidence in doing what they did. Their strong basis of evidence was the following: Number 1, that the elected official felt like she would want more -- she -- she needed more African-Americans in her district.

Well, with all due respect to Delegate Tyler, most incumbents feel like they would like more voters in their district who -- who are going to support them.

And that's not a -- that's not a -- that -- that -- it can't be a strong basis in evidence. The second is they alluded to the fact that there were prisons in the district.

And this is interesting, because this is, Your Honor, exactly the kind of racial stereotyping that the Voting Rights Act is intended to avoid.

There is nothing in the record as to the racial demographics of those prisons.

There is nothing to believe that those prisons included or excluded, raise or lower, the overall black voting age population of the district.

They assumed that if a prison had 8,000 people, it had 8,000 black people.

And that is -- that is exactly the kind of racial stereotyping that cannot form the basis.

Samuel A. Alito, Jr.: Wasn't there a primary in 2005 in that district where Representative Tyler won over a white candidate by less than 300 votes?

Marc E. Elias: Yes, Your Honor.

And I'm glad you raise that, because that's the third one, and that is the most important one. Let us take a step back, because it's -- it's interesting that he -- that he -- he won by more -- she won by more than -- by -- by only 300 votes. The districts were drawn in two thousand -- in -- in two -- following 2000.

In 2001, there was an incumbent who had been there 30-some-odd years who was a -- a candidate of choice of the African-American community who won.

That candidate won again in a landslide in 2003.

That candidate then retired, and it was then an open primary.

And in that open primary, Delegate Tyler won by five percentage points. Now, what's interesting is that 300 votes is five percentage points.

This was a 6,000-vote primary. Five-way.

So to say she won by 300 votes and that proves predominance, well, she won in a landslide.

She won five -- by five percentage points as a non-incumbent in a multiple-primary field.

Elena Kagan: I thought she won by only, like, 1 1/2 percentage points in the general.

Marc E. Elias: In the general. So what happened next is that the incumbent, who had retired, whose son had run against her in the primary, who she had beaten, he then endorses the Republican opponent.

So you have this long-time incumbent who endorses the Republican opponent, and she wins by 1.3 percent of the vote in the general.

Samuel A. Alito, Jr.: But these -- these districts are going to last for a decade, are they not?

Marc E. Elias: Correct.

Samuel A. Alito, Jr.: And -- and there's no guarantee that these same candidates are going to be running throughout that decade.

Marc E. Elias: I agree.

Samuel A. Alito, Jr.: So you think they have to take into account this very complicated analysis: Well, it was the -- the person is an incumbent, and therefore is going to have the incumbent's advantage, and --

Marc E. Elias: No, Your Honor, I'm saying the complete opposite. I'm saying that in 2001, 2003, 2007, 2009, this was -- this performed without a close election.

In 2005 the primary was not close; it was a five-point election.

So that leaves us one election, which was the 2005 general where she won by 1.3 percent of the vote.

Elena Kagan: Which you're saying, essentially, is idiosyncratic.

Marc E. Elias: It's -- it's an idiosyncratic one election.

But also, this Court has never said that it is a guarantee that they will win.

It -- in fact, in Gingles itself, there was a statement that it is not a guarantee -- that no one election controls.

Samuel A. Alito, Jr.: Well, I mean, that gets to an interesting point.

What -- to what -- what degree of confidence that it will remain a -- a majority-minority district is necessary to have a strong basis in evidence?

Marc E. Elias: I think it -- yeah, I --

Samuel A. Alito, Jr.: I don't want to take up your response.

Marc E. Elias: I think it is likely. If there are no other questions, I'd like to reserve the remainder of my time.

John G. Roberts, Jr.: Thank you, counsel. Mr. Gornstein.

Irving L. Gornstein: Mr. Chief Justice, and may it please the Court: The district court was right to hold that the use of a racial target is not sufficient to trigger strict scrutiny, but it was wrong to hold that a conflict with traditional redistricting principles is an essential element of a racial gerrymandering claim. On the use of a racial target, the Court's cases have drawn a distinction between the use of race as a factor and the predominant use of race in drawing district lines, and the use of a racial target shows that race was used.

But as the Court explained in Alabama, the -- when -- the critical question is whether it was predominantly used.

And as to that, evidence that a racial target is used is evidence, but not conclusive proof. To take one example that I think you asked for, if a district starts out 75 percent black voting age population before it's redistricted, and that's based on general demographic patterns, and then the target is set at "don't drop below 50 percent," then it's just not the case that district lines that are then drawn to bring the district into compliance with one-person, one-vote are necessarily going to be based predominantly on race rather than traditional districting principles. And if a racial target was alone sufficient to trigger strict scrutiny, it would deprive the States of the flexibility that they need to comply with the Voting Rights Act.

So it's --

John G. Roberts, Jr.: Maybe I missed your -- you're saying, if it was 75, and it's down to 50, that does not necessarily mean --

Irving L. Gornstein: No, I -- I -- I did not say that.

I -- I said if the target was that it shouldn't go below 50, not that the target was it had to get to 50.

John G. Roberts, Jr.: Okay.

So it's at 75.

And they say, what we're going to do, we draw this as not yet below 50 --

Irving L. Gornstein: Right.

John G. Roberts, Jr.: And then they --

Irving L. Gornstein: And so they could end up anywhere between 70 and 50.

So it's just -- they could end up right at 70, or at 65, or at 60, or at wherever there is in between. So it's just not necessarily the case that the use of a target may have had little or nothing to -- a target that that's -- that's so low at 50 percent when you started up here at 75, then this -- the lines that you're drawing are probably likely to be drawn based predominantly on traditional districting factors.

It's just not necessarily the case that you're going to have to predominantly use race, because no matter what you do --

Elena Kagan: So are those --

Irving L. Gornstein: -- you're going to end up above 50 percent.

Elena Kagan: Are these the only kind of districts where you would say that a target would not have an impact on district lines? In other words, where the district has a population that's so far above the target that nothing that they're doing on the margins is affected by the target, are those the only kind?

Irving L. Gornstein: No, I would not say that, because I -- I would say districts, for example, like in this case where you start at 60, there's no -- no reason, necessarily, to think that race is going to predominate in order to bring the districts into compliance with the Voting Rights Act.

They started out at 60.

And let's assume, based on traditional redistricting factors and not on race, there's no reason that it couldn't end up on -- at 60 for the same reasons.

Samuel A. Alito, Jr.: What if you started at 53 and you brought it up to 55?

Irving L. Gornstein: Again, I -- I'm -- I'm with you on there.

It doesn't necessarily -- you would need more evidence than that. Now, the one that raises the biggest --

Samuel A. Alito, Jr.: More evidence of what? That --

Irving L. Gornstein: Well, so -- so the most important evidence, Justice Alito, would be a conflict with traditional redistricting principles.

And if you could establish that and -- and that it went up to that degree and it affected a substantial number of voters, then I think you could make out a case.

Samuel A. Alito, Jr.: What if they said, well, we're at 53; we have a 55 percent floor.

We want to bring this up to 55, and we can do that by drawing a district that's even more compact than the district that we had before?

Irving L. Gornstein: So, ordinarily speaking, it's going to be very difficult to show that race predominated without showing a conflict with traditional redistricting principles.

But there's no hard-and-fast rule that says -- that -- that prevents a plaintiff from trying.

Elena Kagan: When, then, can you? What would be a case in which that might be possible? Not theoretically possible, but you can imagine it happening?

Irving L. Gornstein: So I -- I we have two examples in our brief, and -- and most of the cases I can think of are -- are -- are but variations of those. So the first relies on direct evidence from the mapmaker himself, and the second is where the State's nonracial explanation is discredited by the evidence to be more concrete.

If you have ten -- tens of thousands of predominantly white voters moved out, tens of thousands of predominantly minority voters moved in, and the mapmaker says, I did that to hit the target, then a finding of racial predominance could be made even if, Justice Alito, the -- the district was reasonably compact. And the -- the second example that I -- I would -- from the brief is, if the State says politics is what explains that, and then you look at the evidence and they used racial data rather than political data, then a finding of racial predominance could be made even if politics is also playing a role; and there's no conflict with politics in the drawing of the district --

Samuel A. Alito, Jr.: There's no way --

Irving L. Gornstein: -- lines.

Samuel A. Alito, Jr.: And -- and maybe there's no way around this; but this is all, as you -- as you lay it out, very, very complicated.

And the State legislature has to redistrict a huge -- a large number of districts in a short amount of time using a very -- a -- a multifactor, vague predominance standard.

And if it turns out that there is predominance, what -- when they will be deemed to have had a strong basis in evidence to -- to -- that there would be a Voting Rights Act claim is also quite unclear. So it's just -- maybe there's no way around it, but it -- isn't this just an invitation for litigation --

Irving L. Gornstein: So --

Samuel A. Alito, Jr.: -- in every one of these instances?

Irving L. Gornstein: So we're very sympathetic to the interest of the State in being able to comply with the Voting Rights Act while simultaneously pursuing its traditional redistricting policies.

And, in fact, we proposed a version of the conflict case test to the Court in Miller. But we read Miller and Shaw to -- to have rejected this conflict requirement and -- and, instead, to replace it to what a -- as you said, is a complicated test about whether race predominated in the drawing of district lines, even if traditional factors also played a role.

John G. Roberts, Jr.: Is it still the office's position that it would preferable to have the test that was adopted by the district court here, requiring a conflict before you find that race predominated?

Irving L. Gornstein: So putting aside the question of whether it would -- you would -- overruling the Court's --

Irving L. Gornstein: -- decisions, yes, except that we wouldn't want that to bleed over into racial vote dilution claims.

John G. Roberts, Jr.: So -- so your objection to the court below is that it required a conflict?

Irving L. Gornstein: Correct.

John G. Roberts, Jr.: And in your brief, you say, in the vast majority, your words, of cases, you will need to show a conflict?

Irving L. Gornstein: Correct.

John G. Roberts, Jr.: And you think showing a conflict should be the correct legal standard, putting aside the decisions?

Irving L. Gornstein: Well, I wouldn't want to urge the Court to overrule its decisions in --

John G. Roberts, Jr.: No, I know.

Putting those cases --

Irving L. Gornstein: -- those cases -- for that -- but putting aside, that is the position that we advocated in -- in -- or a version of it in Miller.

Stephen G. Breyer: But in -- in -- in the Alabama case, certainly what I tried to do, changing what my position had been previously, in order to get a court that would have a clear set of standards, on page 1271 there are two paragraphs that address the issue you're talking about, and they virtually say what you say.

And then at the end, to deal with the problem you're -- you're -- you're raising, we say that it has to be a strong basis in evidence.

That's because you don't want to put the district court in a position, and the legislature, to do the impossible, right? So it tries to do that.

That is the decision of the Court.

I had thought, that having done that, there would be lots of lower courts that would rely on that decision. Is it a good idea now suddenly to change and go to some different test?

Irving L. Gornstein: No.

I'm -- I'm not saying you should go to a different test.

I think that the stare decisis considerations are what they are.

The Court's Alabama approach is the right approach, but under that approach, Justice Breyer, you did not say that it's an essential to show a conflict --

Stephen G. Breyer: Right, correct, exactly. It's predominant.

And then it has the two paragraphs that I've talked about, which are meant to illustrate what that predominance means.

And they are pretty much what -- I think pretty much what you said.

Irving L. Gornstein: Yes.

We would agree with that.

Stephen G. Breyer: Pretty much.

John G. Roberts, Jr.: What is it -- what is it -- what is it that you said?

Irving L. Gornstein: I think that what we said -- (Laughter.)

Irving L. Gornstein: I think what we said are two things. One, that there -- that simply because you use a racial target, you're not in strict scrutiny, and that's from Alabama; and, two, a conflict is not essential to prove a claim; but, three, there has to be pretty strong evidence besides just the use of the racial target to put you in strict scrutiny.

And so --

Elena Kagan: May I ask, Mr. -- Mr. Gornstein, the -- the same question I asked Mr. Elias.

If we did vacate this on the grounds that that's the correct standard, what you just said, and that is not the standard that the district court used, what do you think would happen? You know, if -- if the standard that you just stated was fairly applied, would anything change?

Irving L. Gornstein: So we've only done a close analysis of three districts, as you can see from our brief.

And in -- in two of those three districts, we thought there was a pretty strong case, but not one where we could say it definitely would come out one -- one way or the other.

Elena Kagan: But a strong case that it would change?

Irving L. Gornstein: It would change.

Elena Kagan: And those districts are?

Irving L. Gornstein: Those are 71 and 95.

John G. Roberts, Jr.: Thank you, counsel. Mr. Clement.

Paul D. Clement: Mr. Chief Justice, and may it please the Court: The 2011 redistricting of the Virginia House of Delegates was a bipartisan success story.

There was wide agreement that the 12 majority-minority districts that existed in the benchmark plan should be preserved, and there was a consensus on the Bipartisan Privileges and Elections Committee that a 55 percent BVAP level was the appropriate level to assure that African-American candidates in those 12 districts had an opportunity to elect the candidates -- elect the candidates of their choice.

Ruth Bader Ginsburg: How was the 55 percent arrived at?

Paul D. Clement: 55 percent, the testimony in the record, Justice Ginsburg, shows that was arrived at by the members of the bipartisan Privileges and Election Committee.

It was principally done by the principal architect of the plan, Delegate Chris Jones, by talking to members of the public and members of, particularly, the African-American Caucus.

And they told Delegate Jones -- and then they reinforced this on the floor, and the floor debates in the House of Delegates are something that's on the CD in the Joint Appendix, Volume 1 of the Joint Appendix.

And it is worth a look because the African-American members of the House of Delegates testified that -- based on their knowledge of their districts, that African-American voters did not vote in the same numbers as -- as -- as white voters. Therefore, to simply have 50 percent --

Elena Kagan: I thought, Mr. Clement, that the -- the 55 percent was based on a single district, 75; and that they said, okay, we've looked at 75.

You need 55 percent there.

And then it was applied across the board to every other majority-minority district without any granular analysis.

Paul D. Clement: I don't think the record would support that characterization of the evidence, Justice Kagan.

I think it was certainly based predominantly on HD75, but it was also based on the testimony of Delegate Dance, who's from -- from District 63.

She testified, as well, that it has to be north of 50 percent. It was also done in consultation with Delegate Spruill, who's the delegate from District 77. And it was based on not just the demographics in HD75, though that was essentially the starting point, but also based on the characterizations of the districts and the voting tendencies --

Elena Kagan: Isn't there something a bit strange about this kind of rule? And it's not to say that this kind of rule is the end all and be all. You -- it might be that you can have this rule and still be absolutely fine in the way that Mr. Gornstein suggested.

But the idea that you would look at 12 districts and say that every single one of them ought to meet the same BVAP standard without looking at the characteristics of those districts, who's in them, how they vote, I mean, it just -- it sort of defies belief you could pick a number and say that applies with respect to every majority-minority district.

Paul D. Clement: Well, Justice Kagan, I think that maybe if you were picking one number for every district in the state, from Big Stone Gap to Arlington, maybe that would be the case.

And if you're trying to apply one number to Latino districts in one part of the State and African-American districts in another part of the State, you might have a point.

But although these are 12 districts, and there are four subregions, these are all pretty much in the same part of the State.

They all started on a benchmark map as somewhere between 46 and about 62 percent for starting.

So it's not like this number comes out of thin air. With respect to nine of the 12 districts, they are already north of 55 percent and between, like, 55 and 62.

Two of the other ones are very close.

They are at, like, 54 and 53.

And then one is a little bit lower, like 46, which is District 71, which I hope I'll get a chance to talk about, because there, there is very strong evidence that the redrawing was not done solely on the basis of race.

Stephen G. Breyer: Let's talk about 71.

Paul D. Clement: Sure.

Stephen G. Breyer: Now, I have a particular question on 71.

Remember what I was trying do.

Paul D. Clement: Sure.

Stephen G. Breyer: At least in Alabama. The -- the Court's cases, at that moment, pre-Alabama, I -- I'm one of the problems.

Okay? So I am trying to reflect what is actually there in Miller, for better or for worse, and to make it clear. The column I've referred to talks really about evidence showing predominance.

Does it or doesn't it? And there are two things there that are crucial in that -- I think, in those two paragraphs.

One, there was direct evidence that they moved 70 -- or 50,000 -- 15,000 people are all black.

Okay? Two, when you look at the three districting traditional criteria, they are pretty weak as applicable to that case.

They just seem not to have much relevance to what they are talking about.

Paul D. Clement: Right.

Stephen G. Breyer: Now, let's look at 71. Same kind of thing they are arguing.

Same kind of thing.

They moved -- I don't know, you have it in the SG's brief too.

They moved 11,293 people out and 17,000 in.

So let's look at those people.

The ones they moved out were three-quarters or something white, and the ones they moved in were three-quarters or something black. So that's pretty similar.

It seems to me they paid a lot of attention to race. Then they say, let's look at the traditional criteria.

The one they mentioned, which is this horn thing, they said that they -- they did it to keep it preserved Richmond centered.

But it already changed it so it wasn't Richmond centered at all, and the changes had nothing do with it. So what they are saying is in that case, look at that specificity, and you will see that the mistake of the judge in listing the criteria, you know, his statement, overly broad or whatever, made a difference, send it back, get him to do it right. Now, that's a long question, but that's designed to focus you.

Paul D. Clement: And I'm -- I'm glad to be focused on District 71, because what the district court did is not apply any sort of cartoonish analysis.

He looked at the district as drawn.

The first thing he noticed is that it preserves 78 percent of the core of the district, which is higher than the statewide average of 70 percent.

So you have the core of the district is being preserved, which is a traditional districting principle. He then looks at those horns, and he looks at them, and he doesn't just look at them and say, well, they look a little funny.

He has direct testimony from Delegate Jones, who drew the district, and he realizes that the horns were drawn in order to preserve an incumbent in the neighboring district so that that incumbent could stay in her district. He then looks at Precinct 207, where he says he doesn't want to get into conflicting testimony between two -- two -- two delegates, and what he says, I think absolutely correctly, is, this is a contiguous precinct.

It's 207; it's right on the border.

So whether it's in or out, it conforms with traditional districting principles.

Anthony M. Kennedy: Suppose you have two district -- or two possible districts.

Each of them look conventional.

Each of them are conventional in the same sense that you've been describing these multiple factors. But the stated reason, the stipulated reason for choosing District A over District B is because it has more voters of a certain race, black, Latino, white, whatever.

Is that a predominant motive based on race?

Paul D. Clement: I would say that the right answer to that in -- when -- for predominance within the meaning of your Court's cases is no.

And I think there are two reasons --

Anthony M. Kennedy: That -- and that's what the district court says, and I have -- I have problems with that, because predominance is designed to measure intent when there are multiple causes, and in my -- in my hypothetical, the hypothetical is, the -- the -- the tipping point, the principal motivating factor was race. And you say that because -- and the district court I think said because the districts are conventional in all other respects, strict scrutiny doesn't apply.

I have a problem with that.

Paul D. Clement: Okay.

Justice Kennedy, I -- I thought you might, but I'd like to say three things to try to convince you in defense of the district court. First of all, the -- when this Court says "predominance," I assume they mean predominant over something else.

And I think the "something else" is traditional districting principles.

So when race predominates over those principles, those principles are sacrificed.

They are subordinated.

I think that's the way to make sense of this Court's cases. Second of all, I think that if you apply the test that way, what you are doing is you are mapping on the test to the theory of a Shaw claim.

Now, you may disagree with me on this, but I think the -- what makes a Shaw claim a Shaw claim is not that somebody is kept in a perfectly formed district in a community of interest based on race.

It's the particular injury in a Shaw claim is that people from different parts of the State who would share nothing in common except the color of their skin are grouped together in the same district. That's what makes a Shaw claim different from other kinds of claims. And I completely agree with the Solicitor General's office that in thinking about this question, you should be thinking about Shaw claims and thinking about them separately from vote dilution claims. And I think there's a real problem in this area of the law is what's happened is that Shaw, which started as a doctrine for outlying districts in outlying claims, has become the weapon of choice in redistricting litigation, and people see Shaw violations everywhere. And that's just not the way that Shaw was originally constructed.

It ignores that there is a separate vote dilution claim that can be brought that has a much higher standard of proof, and people are essentially trying to evade that --

Elena Kagan: But, Mr. Clement --

Paul D. Clement: -- by bringing junior varsity -- I'm sorry.

Elena Kagan: No, please.

Paul D. Clement: People are bringing junior varsity dilution claims under the guise of calling them Shaw claims, and I think it's really distorted the law. The third point, just to put it on the table, is that at some point then you have to ask the question -- if -- if you disagree with me on those first two points and you actually think you have a different conception of what a Shaw claim is, there still has to be the question of is the game worth the candle given the stated need to defer to State legislatures.

And 80 members of the House of Delegates voted in favor of this plan because they -- it comported with traditional districting principles and everybody wanted to preserve majority-minority districts. I'm sorry, Justice Kagan.

Elena Kagan: Just -- yeah, no, just going back to Justice Kennedy's question, it seems pretty clear to me that in the cases after Shaw -- because Shaw, you could have looked at it as, this is all about the way the district looks, and then in the cases after Shaw, in Shaw II, and in Miller, the Court makes very clear that it's not all about the way the district looks, and indeed --

Paul D. Clement: But can I -- can I stop you there, though, and say: In Miller, what this Court confronted was an argument that bizarreness is an element of the claim.

And I think, you know -- and nobody, I think, thinks that's the right answer.

Elena Kagan: If you look at Shaw and Shaw II and you look at Miller, and then you think about the -- the hypothetical that Justice Kennedy gave you, which is essentially -- maybe I'll change it a little bit -- it's essentially a mapmaker who says, look, we really want to do race-based districting here.

We can manage to do this in a way where the maps look kind of contiguous and kind of regularly shaped, but what we're doing is race-based decision making. Now, it seems pretty clear to me that if you look at Shaw II, if you look at Miller, that's forbidden.

And -- and -- and that's exactly the opposite of what the district court said here.

Paul D. Clement: I don't think that you have to read those decisions in that way.

I think if you're going to read those decisions in that way, it's appropriate to pause and reflect where it's gotten us. And I think that every one of those decisions starts out by saying this is a very difficult task for State legislatures.

It's hard enough to draw districting -- districts without the Voting Rights Act, but to draw them in compliance with the Voting Rights Act is exquisitely difficult.

And we want to have deference to State legislatures.

Elena Kagan: Well, then I'm with Justice Breyer, who suggested that a few years ago we took those concerns into account and we tried to figure out a test that was responsive to those concerns, and that is not the test that the district court used here.

Paul D. Clement: I -- I beg to differ.

I think you have to, as Justice Breyer was suggesting, at least in the first 25 minutes, give the district court a little more credit than that. The district court had Alabama in front of him.

He also had the arguments of the parties, and I think if you go back and look -- I mean, with all due respect to my friends on the other side, they did not argue this in terms of, let's look at all the people moving in and out.

That was not the thrust of their case.

They really argued that this was a direct evidence case based on the fact that --

Stephen G. Breyer: That's -- that's what I have to do after this argument, isn't it? I mean, you gave me exactly what I needed.

You -- you gave me the things to look up.

He gave me the things on the other side, and -- and they -- they didn't use exactly the right test, but does it matter? And -- and -- and I -- I think the -- the reason I approach it that way is because this is such a -- the reasons you said.

Okay.

You have to give leeway here; leeway, leeway. But the government makes a pretty good point here that it -- that really was important evidence he didn't look at.

And -- and that's -- that's my job, isn't it, to go back and read these things and figure out how they -- the -- the evidence.

Paul D. Clement: Absolutely.

But I think you should -- I think you should look at the evidence in this case, and you shouldn't look at the evidence that could have been mounted.

You should look at the evidence as it actually came in, the way it was argued to the district court. I think if you go and look, for example, at the closing arguments of this case, you will see that the other side did not say, this is a case about moving too many people in and out of a particular district. They said, this is a direct evidence case.

They told you what the problem was.

They told you they were going to apply a 55 percent BVAP floor. And that -- and so really, they tried to get not just some tailwind from the fact that there was a BVAP floor; they tried to make -- essentially rest their case below on that proposition.

And as a result of that, it left them with a vacuum in the evidence, because we had extraordinarily good evidence on our side of this case, because the principal map drawer, Delegate Jones, testified for hours and hours about why particular lines were drawn.

And in every case, he provided explanations for why they comported with traditional principles. But not just that, he told you why the lines were there.

The lines weren't there because, oh, we have this 55 percent BVAP target and everything had to go out the window.

He said, well, you know, down here in Southampton Roads, we have three incumbents that are all close together because this part of the state lost a lot of population.

So I drew some zigs and zags here to keep the three incumbents separate, which I think is a perfectly nonracial explanation for it. Now, down in Delegate 77 -- in District 77, that looks a little funny, but I got together with Delegate Spruill, and Delegate Spruill said he wanted to reunite the old city of South Norfolk, so we did that. And that required to us move a couple of districts around, and there it is. There's -- there's reams of evidence of that.

And there's really a vacuum of evidence on the other side of this. And I do want to sort of rewind the tape a little bit, too, here, which is the reason it's so problematic, I think, to think that just because they applied a BVAP floor, you're, like, already three-fourths of the way to applying strict scrutiny is, what else is a State legislature supposed to do? I don't think in this context a BVAP floor is inherently sinister. And, I mean, one way of thinking about this, Justice Kagan, is the Voting Rights Act itself is a BVAP floor.

I mean, in those situations where it -- it requires a majority-minority district, that's a quantitative floor of at least 50 point -- plus .01 percent.

But everywhere, it's a qualitative floor, that you have to preserve the ability -- ability to elect. And so there's nothing in this context -- and I think that's exactly why this Court has gotten where it's gotten.

And I'm not so sure that you couldn't even further refine what you said in Alabama to make it a little bit closer to where I think the law should be in this area. But here's the point: I mean, the reason that, in this area uniquely, the Court allows race to be considered is in part because the Voting Rights Act makes the consideration of race absolutely necessary. And I don't want -- think you want to send the signal -- I mean, unless you want to take the first steps towards declaring the Voting Rights Act unconstitutional, you don't want to send the signal that when legislatures approach this in a way that I think is perfectly appropriate to what's going on.

I mean, Virginia's got 12 --

Elena Kagan: You absolutely don't, Mr. Clement.

But it's one thing for a legislature to say, we view it as a core priority up there with one-person, one-vote to comply with the Voting Rights Act.

That's a terrific thing.

It's another thing for the legislature to do what it did, for example, in the Alabama case, which is to just say something about there can't be any retrogression from whatever there is, notwithstanding that that's just not Section 5 law, and, similarly, it's another thing for the legislature to just pick a number out of one district, apply it to all 12 districts, and say that that's compliance with the Voting Rights Act. Now, I agree with you and with Mr. Elias and with Mr. Gornstein: That does not get you all the way there.

But there's something about -- this is -- Alabama suggested this was evidence.

When a State says across the board we're going to do something that just on its face you know is not required by the Voting Rights Act, that's a problem.

Paul D. Clement: Well, I'm with a lot of what you had to say, Justice Kagan.

I think where I'm not with you is that there is something particularly problematic about picking a 55 percent number and applying it in Richmond and south and in the Hampton Roads area.

And I think -- I mean, I'd say two things about that. I mean, in the universe of possible numbers, 55 percent's about the best number you could come up with, because -- I mean, my friends on the other side agree these all need to be majority-minority districts. So if the whole debate is it's got to be somewhere north of 50 percent, I mean, 55 percent, which gives you a little bit of margin for the fact that there may be differentials in -- in -- in turnout.

And where the rubber's going to meet the road, remember, is on the cases where -- I mean, you know, the incumbents are going to always win.

And most of these districts are majority-minority, but they're way majority Democrat. So where the rubber is going to meet the road about opportunity to elect is going to be in the open primaries.

That's when you're really going to tell whether the African-American has -- community has the opportunity to elect the candidate of their choice. Now, those are relatively rare.

And so the idea that, you know, it's -- it's somehow presumptively unconstitutional for the State to look at one of the most recent open primaries in HD75 and say, well, yeah, 5 percentage points, but 5 percentage points in a badly splintered primary, it's only 300 votes.

And Delegate Tyler herself is saying, you know, these need to be north of 50 percent.

Everybody is basically saying that. You know, I don't think it's fair to put this -- and I guess this is where I really take issue. I don't think it's -- I think it's a mistake to put this in the same basket as Alabama.

The idea that you can't go from 80 to 79 percent is a cartoonish version of the Voting Rights Act.

To say that in an area where 9 of the 12 districts are already north of 55 percent, to say that 55 percent is a pretty darn good threshold for compliance with the Voting Rights Act just isn't in the same category at all. And I know they try to get a lot of sort of mileage out of the idea of, well, it was one-size-fits-all.

But the two things I would say about that -- what I sort of already said -- which is we're talking about the same part of the State, and there's no reason to think there's a different dynamic in this -- and all of these districts are majority-minority districts, African-American districts.

It's not like they're applying one rule and trying to say that it fits, you know, for the -- for the complicated districts in Northern Virginia with multiracial groups and those districts down in the South.

They're all very similar districts.

That's one thing. The second thing is -- I mean, keep in mind, whatever rule you adopt here is not just for relatively sophisticated State legislatures.

It's going to apply to all sorts of school boards and sewer districts. There has to be -- I mean, I -- you know, I just don't think the analysis is that you have to go district by district with regression analysis in order to comply with the Voting Rights Act.

I don't think that's the rule you want to lay down. And I also think -- and this is, I think, responsive to Justice Kennedy's earlier question -- I mean, the -- the -- the idea that they have on the other side, it's -- they're not against racial targets.

They agree these need to be majority-minority districts. Here, they agree they need to be north of 50 percent. The real beef is with the legislature making a sort of commonsense judgment based on the evidence in front of them that it should be 55 percent.

What they want is more use of race in more minute detail where you go district by district and say, all right.

As to 75, it's going to be 55.

As to 63, it's going to be 74.

As to 77, it's going to be 56.

I don't think that gets us further along the lines of compliance with the Equal Protection Clause.

I also don't even think it's practically possible.

Elena Kagan: I think the -- the real difference between your standard and the SG's standard is that in your standard, the shape of a district functions as a threshold inquiry such that if the shape is okay, we don't look at anything else, and particularly we don't look even if the districting was completely race-based in motive.

And that's just what the -- that three-part test does.

It sets up a threshold inquiry about -- about how the district is shaped in a way that some people thought Shaw was when Shaw was first announced and that this Court in one, two, three subsequent cases made clear it wasn't.

Paul D. Clement: Well, Justice Kagan, first of all, I think the real difference between our position and the SG's position is a difference in the real world, which is, they admit it's not going to make a difference in 99 percent of the cases.

All right.

Maybe they had something else in mind by vast majority.

But in a lot of these cases, it won't make any differences. But given the stakes, it's going to mean that lots more State legislatures get sued over districts that don't even look particularly suspicious. And this case is the perfect example.

These districts existed for four years and two complete election cycles before anybody perceived there was a racial gerrymander lurking here.

And what changed in 2014 was the resident of the Governor's Mansion in Richmond.

And what happened is these guys realized that if we can get these districts thrown out and they have to redraw the district, we'll now have a veto power that we didn't have before.

That explains why lines that looked perfectly square relatively and were approved 80 to, like, 9, with a majority of Democrats supporting them, all but two members of the African-American Caucus supporting them, with one of the two members of that caucus opposing because the numbers weren't high enough. That's the dynamic that was 2011. You go from a bipartisan success story where everybody points to the House and said, these guys did it right; the Senate, not so much.

The House, these guys did it exactly right.

They did everything they were supposed to do. Four years later, they can still draw a racial gerrymandering charge and have to litigate for years based on this theoretical possibility that maybe, just maybe, in drawing these square lines, someone took --

Elena Kagan: Well, it's more than a theoretical possibility.

And Mr. Gornstein says -- and he seems to be pretty sensitive to the idea of giving States latitude.

But he looks at this and says, this standard actually did make a difference on the ground, that there were districts kicked out and said, oh, this isn't race-based because it looks good, even though it was race-based.

Paul D. Clement: Well, I would put, representing the State Legislature of Virginia, my bona fides in looking out for the State's even ahead of Mr. Gornstein's.

And it's easy in the Solicitor General's Office to throw out a standard that's theoretically pure and that's going to force lots of other people to litigate for years. These districts were good enough for everybody for four years.

They were good enough to be pre-cleared by the Justice Department.

Having this detailed inquiry out there to have them invalidated years later does not seem to me to have a lot to recommend it.

John G. Roberts, Jr.: Thank you, counsel. Mr. Elias, you have two minutes left.

Marc E. Elias: Mr. Chief Justice, and may it please the Court: I want to clarify a few factual points and obviously answer any questions you have. The first is, the timing of this case followed the Page decision.

It was the Page III court that -- that ruled on the congressional map that then was the -- it had nothing to do -- that case was filed when there was a Republican in the Governor's Mansion. It had nothing to do with who was in the Governor's Mansion, that just as a factual matter. Justice Breyer, to your -- the question that you posed to me earlier, and which is at the heart of this, we completely agree with the analysis in Alabama that -- that there needs to be a -- that you need to show voters moved in and out on account of this rule. And if you look at JA672, you will see there is a 50.8 percent differential between the white voters moved out and the black voters moved in.

As you point out, three-quarters of the -- of the -- of the voters moved in were black, and --

Stephen G. Breyer: You make a point of that.

Marc E. Elias: Yes.

That --

Stephen G. Breyer: I mean, I think I heard the -- Mr. Clement say that, well, no, this has all been brought up after the case was over, and --

Marc E. Elias: Your Honor, it's in our expert's report from trial.

It's just not true.

You can find it in the JA, because --

Stephen G. Breyer: You called it to the attention --

Marc E. Elias: -- we called it -- it was in our expert's report at -- at trial.

Point number one. Point number two, very quickly, this Court in Shaw v. Hunt specifically dealt with Justice Stevens' dissent, saying there should be an actual conflict test. And what this Court said is, in his dissent, Justice Stevens argues that strict scrutiny does not apply where the State respects or complies with traditional districting principles. That, however, is not the standard allowed -- announced and applied in Miller.

Shaw II resolved for -- for this three-judge court well before Alabama that an actual conflict test was not the law, and the district courts here simply -- simply ignored it.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.