Alexander v. South Carolina State Conference of the NAACP
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Ketanji Brown Jackson, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): John M. Gore, Leah C. Aden, Caroline A. Flynn

John G. Roberts, Jr.: We will hear argument this morning in Case 22-807, Alexander versus the South Carolina State Conference of the NAACP.

Mr. Gore.

John M. Gore: Mr. Chief Justice, and may it please the Court: 

District 1 is not a racial gerrymander. Rather, the General Assembly largely preserved District 1 from the constitutional benchmark plan and made changes based on traditional criteria and politics. The panel acknowledged that the General Assembly pursued a political goal of increasing District 1's Republican vote share. It achieved that goal by moving Republicans into the district and Democrats out of the district. All of the direct evidence confirms that it used political data, not racial data, to identify Republicans and Democrats. 

The panel declared District 1 a racial gerrymander only by departing from this Court's precedents and adopting sua sponte an erroneous racial target theory.

First, the panel failed to enforce the alternative map requirement. In a circumstantial case like this, only such an alternative can disentangle race and politics.

Second, the panel's racial target theory hyper-entangled race and politics and simply makes no sense. The panel believed the General Assembly needed a racial target in Charleston County to achieve its political goal district-wide. But a 17 percent racial target says nothing about voter turnout, says nothing whatsoever about the predominant majority of voters in predominantly white Charleston County, and also is irreconcilable with District 1's recent electoral history. 

Moreover, even the panel agreed that the General Assembly made political changes in other parts of District 1 without using a racial target. The General Assembly had no reason to and did not use a racial target. It used political data to pursue its political goals. 

If left uncorrected, the decision below will undermine this Court's holding that partisan gerrymandering claims are not justiciable. Partisan gerrymandering claims can always be repackaged as racial gerrymandering claims if all plaintiffs in lower courts have to do is ignore direct evidence of intent, infer a racial target from the correlation between race and politics, and point to malleable expert analysis. 

This Court should reverse and not allow its exacting precedents to be so easily subverted. 

I welcome the Court's questions.

Clarence Thomas: Mr. Gore, we review this for clear error. And the district court credited the plaintiffs' expert and found your experts non-credible. So how does that meet the clear error standard?

John M. Gore: The Court will proceed to clear error if it rejects our legal arguments, but let me turn to Dr. Ragusa first. All three of Dr. Ragusa's opinions raised in this appeal contradict his own data and conclusions in his initial report, which actually demonstrated that race did not predominate in the enacted plan's changes to District 1.

His own data showed that politics was a stronger predictor than race of whether a VTD was moved out of District 1. He also concluded that there was no statistically significant correlation between race and whether VTDs were moved into District 1. That's at page 187 of the Joint Appendix and page 514 of our jurisdictional appendix. 

So those facts alone establish that Dr. Ragusa's three opinions at issue in this appeal are unreliable and unprobative. 

But there's even more. For each of those three opinions, Dr. Ragusa committed other errors. He did not control for VTD location or proximity to the district line. He also did not control for where in the district voters lived.

John G. Roberts, Jr.: Well, I thought -- I thought he said that as far as geographic contiguity, that the -- the size of the different districts was a adequate proxy for that.

John M. Gore: He did say that traditional principles were embedded in his analysis, but whatever he meant by that, he did also admit on cross-examination that he didn't test or control for those principles and whether they explained the decisions the General Assembly actually made.

That's the same error that the experts made in Allen that this Court set aside just last term. His failure to consider the location of VTDs and voters within the district is the same error that was committed by the expert in Cromartie II, where this Court reversed a finding of racial gerrymandering under the clear error standard.

Elena Kagan: Did your expert present an alternative study which did control for geography and reached a different result?

John M. Gore: He did not try to mirror Dr. Ragusa's study --

Elena Kagan: Because that would have been the easiest way to undermine the theory. I mean, as I understand it, this was hardly touched upon by -- by -- by -- by the state below. And, certainly, the state did not do what would seem to be the -- the normal thing if you were really concerned about this, which is to say: Look at our study. We controlled for geography. The results are entirely different.

John M. Gore: We did raise objections to Dr. Ragusa's methodology, and as I was explaining, it is a flawed methodology and not reliable.

Moreover, the state presented direct testimony from the map drawer to explain which VTDs were chosen and why. That direct evidence showed, like all the other direct evidence, that decisions were made based on politics and traditional principles and not using race at all.

Sonia Sotomayor: I think you end up in a very poor starting point under clear error arguing the substance of believability of one expert over another, because credibility findings under clear error standard must be deferred to to the district court. 

I understand your points about -- your point about Dr. Ragusa, but I just point out that other experts before the court and he himself said that geography was very much embedded as part of the structure of his analysis. 

You may disagree with that. It's going to be very hard for you to show that no fact finder could credit that understanding of his testimony.

But I think what I'm really troubled by is, going back to Justice Thomas's question, what's the legal error and what's the clear error? Just tick them off for me.

John M. Gore: There are several legal errors, Justice Sotomayor.

Sonia Sotomayor: Not facts. I want legal errors or clear errors beyond -- under our standard.

John M. Gore: The first legal error is a failure to enforce the alternative map requirement.

Elena Kagan: Okay. I'm going to butt in. And I'm sorry, Justice Sotomayor.

Sonia Sotomayor: Yes, you can -- you can start there.

Elena Kagan: The alternative map requirement, I mean, doesn't exist. You know, sometimes this Court, I think, holds things, and then I go back to the opinion and I think: Well, maybe we weren't as clear as we might have been. Not here.

I'm just going to read from -- from Cooper"

A plaintiff's task is simply to persuade the trial court, without any special evidentiary prerequisite, that race, not politics, was the predominant consideration. In no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail, nor would it make sense to do so here. An alternative map is merely an evidentiary tool. Neither its presence nor its absence can itself resolve a racial gerrymandering claim. 

I don't know how to more clearly say that there is no alternative map requirement in these kinds of cases.

John M. Gore: Cooper was directed -- was addressing a case where there was direct evidence of racial predominance. It also said on page 322 in the majority opinion: In a case like Cromartie II -- that is, one in which the plaintiffs had meager direct evidence of a racial gerrymander and needed to rely on evidence of forgone alternatives -- only maps of that kind could carry the day.

Elena Kagan: All we were saying there, Mr. Gore, is that in a case with no other evidence, you needed some evidence. So that is not this case. Cromartie II was making a very case-specific point, look at this case, there's none -- none of this kind of evidence, there's none of that kind of evidence, there's none of the other kind of evidence. So, my gosh, in that case, you needed a map. 

But this is case by case, all we were saying is that when you have no other evidence, you better present a map. But that's not to say that there's anything like an alternative map requirement. If you make your case some other way, that's good enough. 

And, here, the Court found, again, on a clear error standard, that the plaintiffs made their case some other way.

John M. Gore: But even if that's the correct reading of Cooper, Justice Kagan, there were still other legal errors in how the panel conducted its analysis.

Samuel A. Alito, Jr.: Well, Mr. Gore --

John M. Gore: One --

Samuel A. Alito, Jr.: -- I thought your argument was that at least as a practical matter, in a case in which there is no direct evidence or virtually no direct evidence, there is no way in which a plaintiff can disentangle race and politics, except by providing an alternative map. I thought that was your legal argument.

John M. Gore: That is.

Elena Kagan: And that's exactly what Cooper says is not the case.

Samuel A. Alito, Jr.: Well, one may read Cooper a different way. Cooper was a case in which there was a lot of direct evidence, was there not?

John M. Gore: Yes.

Ketanji Brown Jackson: Well, let me ask you, how could there be direct evidence really in this kind of case? So this is what I'm a little concerned about because, to the extent that this distinction's turning on whether or not there is direct evidence, I wonder if it is reasonable to require such evidence or -- or say that such evidence would exist in a situation that is not a majority/majority -- a majority/minority district scenario. 

You can see how there would be direct evidence when the state's goal is to try to, in its view, comply with the VRA, they're trying to make a majority/minority district, so we're going to have some evidence of people saying that.

But, in a situation like this, where that is not the case, where the state is saying instead, we are trying to, you know, achieve a partisan tilt, I guess I don't understand -- and, excuse me, we've also said that its, you know, intent to use race is a very hard thing to prove just on its own. 

Are you asking that we have the smoking gun in a situation like this?

John M. Gore: Not at all, Justice Jackson. As you pointed out, of course, in majority/minority district contexts, there's often direct evidence of a use of race and even of race predominating. 

You could also have that in another context if the map-drawer or some key legislator admitted to using race as a proxy for politics because they didn't have adequate election data or --

Ketanji Brown Jackson: But are you requiring that? Could we ever -- could we ever make this showing on circumstantial evidence alone? There were some amicus briefs related to computer drawings and that sort of thing that they thought would be particularly helpful in this context.

John M. Gore: The -- the alternative map itself would perform that requirement because, if race predominated over politics, then any alternative map can be drawn that preserves the political outcome the General Assembly was seeking while removing the alleged racial effect.

Sonia Sotomayor: Putting that aside, there were alternative maps here that showed that if race wasn't used, the map would not look like this. So it didn't show what you're saying. But we go back, let's assume, let's move back past the map because I think Cooper was petulantly clear that you don't need a smoking gun, and if you don't need a smoking gun, you don't need direct evidence. 

What are the other legal errors?

John M. Gore: Another legal error was the panel's misconstruction of the Sell -- Shelby County decision. It also failed to disentangle race and politics, as this Court has directed it to do. It ignored volumes of direct evidence on the politics-versus-race question. It didn't even --

Sonia Sotomayor: It didn't --

John M. Gore: -- discuss that evidence --

Sonia Sotomayor: -- it -- it --

John M. Gore: -- in its opinion.

Sonia Sotomayor: -- it rejected -- the person who drew it was Mr. Roberts? Mr. -- and it disclaimed his credibility. So whatever the legislature said in terms of their intent is irrelevant. It's what he did, and the Court did not believe that he didn't use race. It said so.

John M. Gore: The Court did not accept his version of events but didn't make a credibility finding based on his demeanor or testimony at trial. It simply credited other evidence. 

But, in conducting the sensitive inquiry that Cooper requires, the Court was required to look at all the evidence, direct and circumstantial, of intent, and it simply didn't do that here. Senator Campsen testified --

Elena Kagan: That's the legal error, is that they didn't correctly weigh the evidence?

John M. Gore: They didn't correctly conduct the inquiry.

Elena Kagan: Because that sounds like a factual error to me. I mean, your brief basically, you know, says we have legal errors, and then it says, well, the evidence didn't show. 

Those are factual errors. That's subject to the clear error standard, going back to Justice Thomas's question.

John M. Gore: To the extent we've also made a clear error argument, I agree, but we've pointed out that the district court failed to properly apply the standards the district court required in Cooper. 

Cooper could not have been clearer on that point that the district court is required to weigh all the direct and circumstantial evidence of intent to ensure that plaintiffs have disentangled race and politics. 

They also were required to presume the good faith of the General Assembly and its explanation for what it did in the lines that it drew. But the panel failed to do both of those things. There was mountains of direct and circumstantial --

Elena Kagan: And that just sounds to me as though you have a different view of the evidence, that you think, well, the evidence showed that we were just doing politics. And the court said no, the evidence showed that you were doing race as a proxy for politics. 

And, surely, there were good reasons to do race as a proxy for politics here. I mean, if you look at what information the map-drawers had on their computer, the information the map-drawers had on their computer was a single presidential election year voting data and then lots of race data. 

And everybody can tell you that if you really want to draw a stable partisan gerrymander, you do not rely on a single presidential year election data. I mean, they had not only the opportunity, it was sitting there on their computers, but the clear incentive to be looking at this race data, which is certainly more predictive of future voting behavior than a single presidential year election in which President Trump was the candidate, which further distorts voting behavior.

John M. Gore: We -- we totally disagree with that reading of the record. The panel itself did not call into question the reliability of the General Assembly's election data. It, in fact, used that election -- very election data to support its racial target theory. 

So, if that election data is unreliable, the panel's entire line of reasoning is unreliable. All of the unrebutted direct evidence established that the map-drawing team thought that that evidence was reliable and actually used it to draw lines. 

Now, on the question of whether racial data --

Elena Kagan: There was evidence that they looked at it. There was evidence that it went into their analysis. But, I mean -- I mean, look at it -- there was -- what the -- what the panel said was that there was also plenty of evidence that they looked at the voting record and not just as a legal check on the back end. Nobody needs to have the voting records on your computer as you draw the maps in order to make a legal check.

What they were basically doing was to make sure that the population of Blacks in each precinct, in each district, you know, did not rise above the -- the -- the -- the number which would make the Republican gerrymander less stable.

John M. Gore: That -- that's not what the evidence was at trial. The evidence was that the racial data is embedded in the software but that the map-drawer would have to scroll over to a different screen or down to the bottom in order to be able to see it. 

I'd also --

Samuel A. Alito, Jr.: Mr. Gore, is there -- is there anything suspicious about the fact that a map-drawer knows the racial demographics of the state or has available the racial demographics of the state? Haven't we spoken about that?

John M. Gore: Yes. Many times, this Court has said that mere awareness or consideration of race doesn't prove racial predominance. And that would be particularly true in a state like South Carolina --

Elena Kagan: Your defense --

John M. Gore: -- which has Voting Rights Act issues.

Elena Kagan: -- was not something along the lines of we looked at the racial data, but it still -- we -- it -- it -- it didn't rise to the level of predominance. Actually, your defense was we didn't look to the racial data for this purpose. And what the court --

John M. Gore: That's correct.

Elena Kagan: -- said was, I don't believe that, made a credibility judgment, you know, basically said your -- your map-maker gets up on the stand and knows this racial data like the back of his hand, and the court says, I just don't believe that they were not looking at the racial data that was right there in front of them for the purpose of making their gerrymander more secure.

John M. Gore: And that underscores the district court's error in failing to look at all the evidence. It's true the map-drawer knew the racial composition of one precinct, one VTD. He didn't know the racial composition of other VTDs the district court asked him about, but he did know the political composition of those VTDs and testified to that at trial.

Moreover, racial data is not a good predictor of partisan outcomes because racial data doesn't measure turnout or voting behavior

Elena Kagan: You know --

John M. Gore: -- correlations.

Elena Kagan: -- to the contrary. A presidential election is what doesn't measure turnout in a non-presidential year correctly. I mean, I'll just ask you this. There are two maps, let's -- let's say you have before you, that -- that -- where the election data says these districts favored President Trump. One has a 20 percent BVAP, and the other has a 17 percent BVAP. 

Now doesn't any map-maker look and say, you know, I would rather have the 17 percent BVAP in order to make sure that going forward this continues to be a Republican district?

John M. Gore: I don't believe that's true at all, Justice Kagan. I think they'd look at how much the areas favored President Trump by. And in this particular hypothetical, if we use Beaufort -- Berkeley County --

Elena Kagan: Holding that, you know, constant --

John M. Gore: It would depend --

Elena Kagan: -- would you rather have the 20 percent BVAP or the 17 percent BVAP?

John M. Gore: It would depend on other factors, such as compliance with traditional districting principles and other objectives the map-drawer was trying to accomplish.

Elena Kagan: See, what this trial court found on the facts, on the evidence, was that the map-makers made a judgment that they would rather have the 17 percent BVAP because that -- you know, along with the election data, they might -- they were -- they -- they looked at this one year of the election data, but that the 17 percent BVAP was what was, hey, if we go above that, we're not sure we can hold this when another election comes.

John M. Gore: The record did not support that finding --

Ketanji Brown Jackson: Well, let me ask you, what's the --

John M. Gore: -- and it was infected by legal error.

Ketanji Brown Jackson: How do you explain the consistency? 

I mean, my understanding is that thousands of people were moved in and out of this district, and yet that line, the line concerning the amount of, you know, Black voter -- adult voter participation remained the same. So, if that was not -- if -- if what the court found here was not happening, how do you explain the consistency of that line?

John M. Gore: We have a few explanations for that, Justice Jackson. 

So the first, to address Justice Kagan's hypothetical, is that the BVAP in draft plans -- through the drafting process actually changed. In the Milk Plan, it was 

15.48 percent. In the Staff Plan, it was 16 percent. The enacted plan is 16.72 percent. 

The Staff Plan actually has a higher Republican vote share than the Milk Plan. So it did change

Ketanji Brown Jackson: Was it ever higher than --

John M. Gore: -- over time.

Ketanji Brown Jackson: -- was it ever higher than the 17? People were being moved around, and you would assume --

John M. Gore: They were.

Ketanji Brown Jackson: -- that if it was -- if it was varying, it would do so in both directions.

John M. Gore: People were being moved around but not very many people. Remember that District 1 retained 93 percent, almost 93 percent, of the district core, which explains why the demographic --

Ketanji Brown Jackson: But 80 percent of the Black people were moved out. Am I wrong about that?

John M. Gore: That -- that's not true 

district-wide.

Ketanji Brown Jackson: That's not right?

John M. Gore: That's not right district-wide.

Sonia Sotomayor: I'm sorry, you said 93 percent? I thought it was 82.8 percent.

John M. Gore: It's -- it depends on the method you use to measure, but the method that was actually used by the General Assembly was over 92 percent district-wide.

Sonia Sotomayor: Well, that's not what the district court found. I thought it was 82.8, which was the lowest core retention of any other district.

John M. Gore: But it was the highest --

Sonia Sotomayor: And so how do you account for the fact that 68.9 percent of whites go to CD1, but only 50.65 percent of Blacks do that are Democrats? So you're controlling for partisanship, and the numbers are that disparate.

John M. Gore: Because, again, you have to consider where in the district those voters happen to live and where the lines are drawn.

Sonia Sotomayor: So it's okay --

John M. Gore: It was --

Sonia Sotomayor: -- for the legislature to say, I was looking at partisanship, but I'm not looking at whether someone was white or Black, but I'm going to separate CD1 so that it's a hundred miles apart in one county and the only commonality is that they live along I-26 a hundred miles apart? And I'm going to join those two Black sections or get rid of them and keep whites there, even though they've got -- they're -- they're -- even though the Democrats could have been moved?

John M. Gore: So this Court has been clear that mere racial effects do not prove racial predominance. 

Moreover, the district court's analysis --

Sonia Sotomayor: No, but the numbers are -- the numbers are incredible.

Ketanji Brown Jackson: We're trying -- we're looking at intent here. So don't those effects say something about the intent and whether or not the court -- it was plausible -- I thought, you know, clear error standard was plausible -- it was plausible for the district court to believe or disbelieve the "we're not looking at race" statement made by the person who was putting this together?

John M. Gore: But the racial effects in this plan are far less stark than the racial effects in the Cromartie and Cromartie II plan, where this Court reversed a finding of racial gerrymandering. So, for example, in Cromartie II, the line split a county and created a 72 percent BVAP area in one county and a 10 percent BVAP area in the other district.

Neil Gorsuch: Counsel --

John M. Gore: And, here --

Neil Gorsuch: -- counsel, I'm sorry to interrupt, but we've been kind of dancing around the -- the big question, which I think is, to my mind, the district court's finding that -- that your -- your clients had to have looked at race data rather than politics data because the politics data wasn't robust enough. 

Now you've given part of an answer. I'd just like the full answer as to why you think that is clearly erroneous. Tick it off for me.

John M. Gore: Sure. So, as I said, the panel itself relied on that data. The direct evidence is that everyone relied on that data. 

Racial data does not predict election outcomes particularly effectively. The correlation between race and politics only affects election outcomes to the extent people turn out and vote. But racial data doesn't measure that; only election data measures that.

Their own expert, Dr. Duchin, agreed with that. Dr. Duchin said that racial data could not be used to predict election outcomes because you have to know about turnout, you have to know about crossover voting and other factors. 

Their own brief at page 10 concedes that racial data would not predict voting behavior turnout among white voters in the area covered by District 1. The reason for that is that white voters in that area split between Trump and Biden in 2020, and that district and even Charleston County are predominantly white. So using a racial target in that area wouldn't have told you about what the vast majority of voters were going to do. 

So it's not an effective way to predict election outcomes there. The reason they used the 2020 presidential election data is that the absentee votes had been properly allocated back to precincts --

Neil Gorsuch: Well, there's some expert that said -- and I'm sorry to interrupt -- but there's some expert that said the absentee -- a consultant said, I believe it was, that the absentee ballots in the presidential data weren't properly allocated. What's the response to that?

John M. Gore: That that's completely incorrect. They're citing testimony from Mr. Oldham, who was involved in drawing the Senate plan, not the congressional plan. He said that, hypothetically, election data would be flawed if it didn't do that, but he didn't know one way or the other whether the General Assembly's election data did do that. 

And, in fact, the testimony, unrebutted at trial, on the data itself shows that the absent -- that the election data the General Assembly used did properly allocate both the absentee ballots back to the precincts and other votes down to the census block level. So it was reliable data. It was the best data available because of the absentee ballot issue from prior year data.

Moreover, even though 2020 is a presidential election year, it's also a congressional election year, and it was the most recent congressional election that was available to the map-drawer. It's not uncommon for map-drawers to use one year's worth of election data and to have it be the most recent year.

Elena Kagan: If I could just, you know, summarize what you just said, you think it's clear error on the court's part that it did not accept the view -- clear error that it did not accept the view that racial data would have helped the mapmakers draw a more secure Republican gerrymander?

John M. Gore: Yes, that is clear error on this record for the reasons I've just explained. Moreover, it demonstrates the panel's legal error in failing to apply the correct standard

Elena Kagan: Thank you.

John M. Gore: -- which included its failure to conduct a --

Elena Kagan: Thank you.

John M. Gore: -- predominance analysis.

John G. Roberts, Jr.: Thank you, Mr. Gore. If I could move to a 30,000-foot perspective, how do you understand what we're supposed to do in evaluating clear error?

I mean, we have just an appendices in this case that is like that, and let's say there are a hundred different factual determinations. If we think 15 of them are wrong, do we reverse for clear error in that -- in that situation?

John M. Gore: Well, we --

John G. Roberts, Jr.: Or -- or does it take more? We don't normally review -- other than in these cases, we don't normally review a record for factual findings, and I'm just wondering how you think we should do that.

John M. Gore: Even one clear error can be sufficient if it leaves the Court with a definite and firm conviction that an error was made below. And, here, we've pointed to many errors in the district court's analysis, both legal and factual, that establish the standard has been met. 

This Court did exactly this in Cromartie II. In Cromartie II, the Court reviewed the record and determined that clear error had been committed and therefore reversed a finding of a three-judge panel of racial predominance.

John G. Roberts, Jr.: So we just give different degrees of the importance of particular facts and weigh those --

John M. Gore: We --

John G. Roberts, Jr.: -- in reviewing the entire record?

John M. Gore: Yes, and we've -- we've tried in our brief to show what we think are the most important factual errors made by the district court. There's no direct evidence of any racial target. In fact, all the direct evidence points the other way. And the panel didn't even mention any of that. 

There's also their own alternative plans. Even if there's no alternative map requirement in this particular case, their own alternative maps fail to disentangle race and politics because they all turn District 1 into a majority Democratic district. That's actually evidence that supports our case because it shows that -- that race and politics can't be disentangled and that they failed to carry their burden.

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

Justice Thomas?

Justice Alito?

Samuel A. Alito, Jr.: Well, the clear error standard, if that's the standard that we are required to apply, is a very demanding standard, but it is not an impossible standard, and it doesn't mean that we simply rubber-stamp findings by a district court, particularly in a case like this, where we are the only court that is going to be reviewing those findings and particularly in a case in which the -- the basis for a judgment in favor of the prevailing party relies very heavily, if not entirely, on expert reports, the methodology of which can be examined. 

So, in light of that, I want to ask you about a -- an alleged flaw in Dr. Ragusa's analysis that you mention on page 21 of your reply brief, and Dr. Ragusa's expert report may turn out to be crucial in this case because is it not correct that all of the other experts failed to control for partisanship?

John M. Gore: That is -- that is correct.

Samuel A. Alito, Jr.: All right. So you say on page 31 that Dr. Ragusa's analysis is flawed because it "used total numbers instead of percentages for VTDs' racial and political compositions."

That's what I understand you're saying, is that in determining whether a VTD was moved out or moved in for a political reason, as opposed to -- for a racial reason, as opposed to a political reason, Dr. Ragusa looked only to the number of votes cast for President Biden in those districts. 

Is that -- is that the problem, rather than the net Biden vote over the Trump vote?

John M. Gore: That -- that's one of the problems, yes.

Samuel A. Alito, Jr.: Could you just explain that problem?

John M. Gore: Yes. It was clear at trial -- and the panel even relied upon this in its discussion of Mr. Roberts' testimony -- that the total number is not as relevant as the percentage in determining the effect of moving a VTD because VTDs are of different sizes. And so, when you move a total number, it doesn't tell you as much as the percent composition either racially or politically in terms of how that affects the total composition of a district.

The other problem that we pointed out in our brief with that particular analysis is it contradicts Dr. Ragusa's own data from his initial report. His own data in the initial report showed that politics was a stronger predictor than race as to whether VTDs were moved out, and he also concluded that there was no statistically significant correlation to race in terms of VTDs being moved into District 1. 

So he arrived at this contrary conclusion only by jerry-rigging his analysis. He didn't consider traditional districting principles, he didn't consider VTD or voter location, he committed this error about percentages, and he also didn't consider VT -- he lumped these VTDs together in very broad categories, and so they were dissimilar -- it was a dissimilar apples-to-oranges comparison.

Samuel A. Alito, Jr.: Okay. Can I ask you one more question, and that concerns Mr. Roberts and his job and his background.

Am I correct that he is -- he is employed by the legislature?

John M. Gore: That's correct.

Samuel A. Alito, Jr.: And has been employed by the legislature for some period of time?

John M. Gore: That's correct.

Samuel A. Alito, Jr.: And he draws maps for both Republicans and Democrats?

John M. Gore: Yes, he did.

Samuel A. Alito, Jr.: Thank you.

John M. Gore: And let me correct one thing that I said. I believe Dr. Liu also claimed to be controlling for partisanship. But Dr. Liu used a flawed VTD data set in his analysis, so his analysis of the enacted plan's VTD moves is also flawed. 

The -- the Joint Appendix at 142 to 144 illustrates the magnitude of that flaw. He thought there were -- his data set told him there were 91 split VTDs in the enacted plan. That's seven times more than there actually were, which is 13.

Samuel A. Alito, Jr.: All right. Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: You know, on each expert, you take potshots and say they failed to do this, they failed to do that. But we've never required one perfect expert to testify to all aspects of a case, but I worry that your methodology is going to suggest that what we do now is do exactly that and instead of looking at the gestalt, which is what the district court did, not the gestalt, but the whole picture. 

So you discount all four of the plaintiffs' experts, Dr. Ragusa, but there were three others. Two of the experts accounted for partisanship but not geography, and two others accounted for geography but not partisanship. There's no rule that requires one expert to do all of it. 

And even with Dr. Ragusa, his purpose for his choices were not your purposes. His purposes for his choices were to show that VTDs with a particular percentage of Blacks were going to be selected over white districts, and that proof he made. 

So I'm wondering, where would the clear error standard come in for us to be doing what Justice Alito did in picking one factor and saying this is a critical flaw that can't be made up by the circumstantial evidence around it from all other three experts?

John M. Gore: Two responses on that. Actually, three maybe, Justice Sotomayor.

The first is that this is supposed to be a demanding burden for plaintiffs, and so this kind of analysis of the evidence they actually put forward is exactly what this Court did in Cromartie II when it recognized that the clear error standard is informed by the demanding burden of proof that the plaintiffs bore below. 

And in Cromartie II, the Court rejected an --

Sonia Sotomayor: But that doesn't change the clear -- clear error standard. That doesn't make it harsher.

John M. Gore: Under -- under any proper formulation of the clear error standard, however, the Court has to ensure that what the district court relied on was actually reliable evidence. And this Court's already did that in Cromartie II when it rejected an expert analysis

Sonia Sotomayor: So, if I come away from this looking at all four experts and looking at other cases where we accepted that expert testimony even with the pointed-out flaws, does that defeat your argument?

John M. Gore: No, I don't think it does because what I think you'll find is that in Allen, the Court rejected the analysis of two of the four experts that they put forward in this case. That's Dr. Duchin and Dr. Imai.

Sonia Sotomayor: But it didn't in others?

John M. Gore: Don't know that those particular experts came before the Court, but they made exactly the same error -- committed exactly the same errors in this case that they committed in Allen that led this Court to set aside their analyses, in particular and -- and even more so here because they failed to consider politics in their simulation and ensemble analyses, so they say nothing on the disentanglement question.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: And just to continue in Justice Sotomayor's line of questioning, you have two experts here, Ragusa and Liu, who answer the exact question that is supposed to be answered in such a case. In other words, is this gerrymander based on politics, or is it a way to get to an ultimate goal, an ultimate political goal, but the gerrymandering is based on race?

And what the two of them do is that they show that Black Democrats are excluded from District 1 at a far greater percentage than white Democrats are. 

So, you know, Liu says, what is it, 61 percent -- now I'm going to lose it -- 69 percent of white Democrats were -- were -- remained in the district, whereas only 51 percent of Black Democrats did. Ragusa's analysis, similarly clear, a little bit harder to state in one sentence. 

But -- but both experts essentially said: Look, we've done these regressions, and we can show you that Black Democrats and white Democrats are not being treated the same way, that Black Democrats are being excluded for the district at a far greater proportion. 

So, you know, every regression analysis has things that you can poke holes in, but you didn't give anything in response to that. It's not like you said: We have a better regression analysis. We controlled for more things and we can show you that the -- that the effect disappears. 

You're saying that it was clear error to credit the plaintiffs' experts dealing with the exact question under review and finding statistically significant results, to credit those experts over your nothing.

John M. Gore: Over our direct evidence, which the panel didn't even mention. Those experts had flawed methodology. I already talked about Dr. Liu's VTD data set. The panel didn't even cite to Dr. Liu in its opinion because the glaring error and glaring flaw in his VTD set became so clear on cross-examination. So Dr. Liu's completely out of the case because his VTD data set was worthless. And the district court knew that and didn't even cite to Dr. Liu in the opinion. 

Dr. Ragusa's regression analysis at one point also used an inapt political number because he used an average Democratic vote number rather than the actual number, and he compared that to the actual African American number. That's at pages 506 and 509 of the Joint Appendix. 

So, yes, it was clear error to rely on clearly erroneous and unreliable expert testimony and to use that to override a mountain of direct evidence, both looking at Charleston County and district-wide, that established that the plan achieved the General Assembly's political goal uniquely among all the plans presented at trial and that it complied with traditional districting principles both in Charleston County and in District 1 district-wide, again, uniquely among all the alternatives presented at trial. 

That -- that's the -- if that's not the definition of clear error, then I don't know what is. And if that's not the definition of departing from the presumption of good faith and the requirement of extraordinary caution, then plaintiffs no longer face a demanding burden in these cases.

John G. Roberts, Jr.: Justice Gorsuch?

Justice Kavanaugh?

Brett M. Kavanaugh: I want to make sure you have a chance to summarize the evidence as you see it of why Charleston County was split the way it was split.

John M. Gore: Thank -- thank you, Justice Kavanaugh. 

So, first of all, it was done for political reasons because, of course, it was part and parcel of achieving the district -- the goal, the political goal, district-wide. The big -- the most significant move that the enacted plan made was in Charleston County. It moved the West Ashley neighborhood from District 1 to District 6. 

That was over 80,000 of the 140,000 people that were moved from District 1 to District 6. West Ashley is a close-in suburb of Charleston. It is majority Democratic but also predominantly white. We've given the figures in our brief that show that that move in particular had a much greater impact on the political composition of District 1 than its racial composition. So that move, which is over half of the people involved, is itself more easily explained by politics than by race.

The line in Charleston County actually improved compliance with traditional districting principles compared to the benchmark plan. The benchmark plan had five split VTDs in Charleston County. The enacted plan fixed all of those. The enacted plan also followed natural geographic boundaries in Charleston County, such as rivers, which are very significant methods of transportation and commerce in a -- in a county like Charleston that's coastal. 

It also achieved Senator Campsen's policy goal, which was to keep two representatives in Charleston County to represent the county's interests here in Washington, D.C.

Brett M. Kavanaugh: And why don't you explain that a little more.

John M. Gore: So Senator Campsen testified on direct that he loves having Jim Clyburn represent Charles -- a portion of Charleston County because Congressman Clyburn is one of the most powerful Democrats in the Congress, and what Senator Campsen explained is that Joe Biden wouldn't be president if it weren't for Congressman Clyburn. So, of course, he wants Congressman Clyburn representing the interests of his home county of Charleston. But he also wanted to keep a Republican representative there too in case there's a change in administration here in Washington.

Congressman Clyburn's own draft map kept a split in Charleston County because he wanted to keep a portion of Charleston County in his district as well.

Brett M. Kavanaugh: What was the Black voting population in District 1 in that map?

John M. Gore: It was only 15.48 percent, which is lower than where it ended up under the enacted plan by more than a point.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: I have a question about Dr. Ragusa's expert report. I just want to make sure that I understand, because the circumstantial evidence is what the plaintiffs relied on, and the whole issue is disentangling race and partisanship. 

I understood your brief to say, but you haven't said this yet that I heard, so I want to make sure I understand it correctly, that he did not take into account factors like contiguousness and compactness, and so he was assuming that you could have essentially kind of an island cut off in the middle of the district that would have more Black voters, which would obviously then not be contiguous.

Am I misunderstanding that?

John M. Gore: That -- that's correct for his county envelope analysis, yes.

Amy Coney Barrett: Okay.

John M. Gore: And what he also didn't do is the other piece of that, is control or test for traditional principles. That's on page 197 of the Joint Appendix. 

And what we mean by that is it would be possible to draw different lines for District 1 in a county, take Charleston County or Dorchester, which are both split. But, if you want to go out and grab that other VTD, you have to make tradeoffs elsewhere because, if you're changing the shape of the district or picking up additional population from other VTDs, you have to offset that somewhere else. 

And so what a properly done analysis does, as this Court recognized in Allen, would test whether the decisions that were made are more or less consistent with traditional principles than the decisions the expert is proposing. And Dr. Ragusa doesn't do that here because he doesn't control for traditional principles like contiguity.

And his analysis is different than the analysis that was done and this Court credited in Cooper because of the thing I mentioned before about his regression analysis using only an average political number rather than the actual political number in each VTD.

Amy Coney Barrett: And how much of a point did you make of that in the district court?

John M. Gore: We -- we raised many -- we raised a lot of objections to Dr. Ragusa and his methodology in the district court.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: Yeah, can I drill down on that a little bit? Because I think that's at the heart of one of my concerns about the burdens and some of the questions that we've heard.

So you put on Mr. Trende at the district court, and my understanding was that Mr. Trende did not really, as an expert, undercut the methodologies of Ragusa and the other experts. Is that -- is that correct? I mean, he didn't put forward an alternative or do a kind of methodological analysis of Ragusa, did he?

John M. Gore: He did point out some of the flaws in -- in his expert reports, including this use of total numbers instead of percentages. He also talked about the contiguity issue in the county envelope analysis I was just discussing with Justice Barrett.

Ketanji Brown Jackson: But you --

John M. Gore: He did --

Ketanji Brown Jackson: Oh, sorry. So he did?

John M. Gore: He did point out some of these methodological flaws. And we pointed them out also to the district court.

Ketanji Brown Jackson: And what if the district court disagreed? I mean, the district court ultimately relies on Ragusa's expert -- expertise, and you say that you challenged, although you did not really bring an expert report that met Ragusa at the same level, but you -- you raised the objections, and the district court disagreed apparently, right?

John M. Gore: That's correct.

Ketanji Brown Jackson: Okay. So I guess what I'm concerned about is that I kind of hear you wanting us to do a de novo review, as opposed to a clear error review, because, to the extent that you're now asking us to look at the flaws in Ragusa's testimony and I guess disagree with the district court's crediting that -- that -- that report, that sounds to me like de novo. 

I understood from Cooper that the clear error standard -- and I had it here a second ago -- is a highly deferential standard, that the Court may not reverse just because it would have decided the matter differently. A finding that is plausible in light of the full record, even if another is equally or more so, must govern. 

So to what extent do we have to credit the district court's disagreement with your objections to Ragusa's report?

John M. Gore: That's a great question. Let me give a couple of responses.

First of all, as you just read from Cooper, the court has to consider whether it's plausible in light of the entire record and all of the evidence. And, here, the district court just ignored other evidence that was put forward. 

What we are asking the Court to do is exactly what it did in Cromartie II. In Cromartie II, there was a plaintiff's expert who did an analysis of VTDs moved in or moved out or potentially available to the district. The state also put forward an expert to give the contradictory interpretation of that evidence, but the district court excluded that expert.

Ketanji Brown Jackson: Yes --

John M. Gore: Once the case --

Ketanji Brown Jackson: -- but wasn't there other -- I'm sorry. Wasn't Cromartie II a majority/minority district scenario?

John M. Gore: Sure, which, again, is all the more reason why the racial target theory in this case just makes no sense, because there's no motive -- clear motivation to --

Ketanji Brown Jackson: No, I understand. You're sort of shifting. I guess I'm just trying -- so keep going.

John M. Gore: But -- but -- yes.

Ketanji Brown Jackson: Cromartie II --

John M. Gore: So Cromartie II --

Ketanji Brown Jackson: -- you're asking us to do the same thing?

John M. Gore: -- we had exactly the same situation with the experts. The district court had excluded the defense expert, so that expert wasn't really considered by this Court on review, but this Court went through as part of clear error to ensure that the district court had not relied on -- relied on clearly erroneous expert testimony and a bad methodology. That's what most of Cromartie II found.

Ketanji Brown Jackson: But how does clear error work in that? Like, I understood the standard now, post-Cooper, to be is it plausible that the district court could have relied on Ragusa's testimony and could have found it to be reliable. And in the absence of a defense expert that's actually poking methodological holes in it, I think you have a hard time, you know, if our burden is just to say was it plausible that the district court got it right in terms of the -- of the crediting of Ragusa's report?

John M. Gore: I don't think that's what the -- exactly what the clear error standard requires.

Ketanji Brown Jackson: All right. So tell me what it requires.

John M. Gore: It says: Is the district court's finding of predominance as -- as a finding plausible in light of the whole record?

Ketanji Brown Jackson: And that --

John M. Gore: It doesn't mean --

Ketanji Brown Jackson: -- includes both the expertise and also the district court's credibility findings? Which is another sort of aspect of this that I really wanted to pin down. 

You say the district court ignored other evidence. But it did have a trial, and it had the actual person who drew the maps come in, and there's testimony in the record where the court itself is questioning directly, not relying on the attorneys, but actually putting questions to that -- that map-drawer. And I'm just wondering how we are to assess the court's determination that it disagreed with or didn't believe the expert when he said, I was looking at -- at partisanship and not race.

John M. Gore: There was -- it was not a credibility determination because the court never based that on his demeanor on the witness stand or at trial. The court credited other evidence, but there was also other evidence the court didn't even discuss, such as the direct --

Ketanji Brown Jackson: So are you saying the court could not have disagreed -- I mean, they asked him the question, moving that line up into the African American areas of North Charleston you would say was for a partisan lean, correct? And the witness says yes. And they ultimately find that that's not so. 

So why isn't that a -- a -- a finding, I disagree, I don't believe you?

John M. Gore: A credibility determination, as we pointed out in our reply brief, requires a determination about the demeanor of the witness on the stand. 

Otherwise, district courts could always wrap their fact findings in credibility determinations in an -- in an attempt to avoid review. They didn't even do that here. There isn't that kind of classic credibility determination.

But even setting that aside, there was all kinds of direct testimony from Senator Campsen, who was the sponsor of the bill, from Senator Massey, who was the Senate Majority Leader, from Representative Jordan, who also testified about text messages in the record.

Ketanji Brown Jackson: So what would a plaintiff have needed -- and this is my final question. I'm short on time. What would a plaintiff have need -- have needed in your view, direct evidence, a statement that says we are using race and not partisanship in this particular area?

John M. Gore: That, or an alternative map that disentangled the two, or, if you think the alternative map's not required, a full evidentiary picture that showed that traditional principles actually were subordinated to race. And, here, there's been no showing for the reasons I just discussed with Justice Kavanaugh

Ketanji Brown Jackson: Thank you.

John M. Gore: -- a line in Charleston County complies with traditional principles.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Ms. Aden.

In the colloquy with Mr. Roberts, the court asked: What would happen if you bring in VTDs or counties that maybe are not majority Black but are below majority Black? Would that affect the overall BVAP of your district? And he acknowledged that it would. So --

Samuel A. Alito, Jr.: Well, when race and -- when race and partisanship are so closely aligned, as they are in fact, why is it surprising that a legislature that is pursuing a partisan goal would favor a map that turns out consistently to have the same BVAP?

Leah C. Aden: Because, if they're using race as the means to get there, this Court last term said that a legitimate interest cannot be achieved --

Samuel A. Alito, Jr.: Yeah.

Leah C. Aden: -- with illegitimate ends.

Samuel A. Alito, Jr.: Yeah, if they're -- if that's what they're using. But, if they are disregarding race entirely and looking only at politics, where race and politics are so closely aligned, it isn't surprising that when you want to get a district that has a certain Republican percentage, you're going to get a district that has a -- a -- a steady BVAP.

Leah C. Aden: Two responses to that. Even if the map-maker wasn't just looking at race in the actual documents, the court credited that it was in his mind and that all the evidence reflects that they were looking at race. The fact that they were trying to keep it at 17 percent reflects that it had worked at 17 percent prior to 2018. It worked at 17 percent after 2018. They were defending this map as being least change, a map that had pre-cleared the Department of Justice, that had survived a constitutional challenge. And, again, the lead sponsor said we only wanted to make this a little bit more Republican-leaning at trial.

So they served their purpose, but at the heart of this, they served their purpose by focusing on the -- the precincts with the highest BVAPs, leaving alone white precincts with -- in -- in Charleston and moving out Black precincts and pushing them --

Brett M. Kavanaugh: What about West Ashley? Your opposing counsel mentioned West Ash -- West Ashley was moved out. So just give you a chance to respond to that.

Leah C. Aden: West Ashley is cited by the court. This is a historic community that has a lot of mixed precincts, but what we see is that the entirety of --

Brett M. Kavanaugh: It's predominantly white, isn't it?

Leah C. Aden: It's predominantly white, but the precincts with the highest and most significant Black populations, those were targeted for movement. And the court recognized that, yes, white voters may be overall impacted by this map, but because this is a White versus Regester reality on the ground look by this three-judge panel, they recognized that there were some mixed precincts. There were white voters impacted. 

But the unrebutted expert evidence is that race was a better predictor for movement and that Black Democrat -- Black voters were significantly and disproportionately targeted for movement. 

And that is unrebutted by the state. The district court says they cannot explain the 30,000 Charlestonians moved out of CD1. They've never been able to explain that --

Samuel A. Alito, Jr.: Well, this -- I'm sorry. Did you want to finish your sentence?

Leah C. Aden: They've never been able to explain that significant sorting, which complies with the question in Shaw.

Samuel A. Alito, Jr.: Yeah, I think this goes to what Mr. Gore claims is a very serious flaw in Dr. Ragusa's methodology, and I want you to talk about that. Maybe you have a good answer to his argument.

So let's say the Republican legislature is intent on ensuring that District 1 has a Republican lead. Then, all else being equal, which of the following two precincts would they rather include in District 1

a district with -- a precinct with 3,000 residents that went 900 to 800 for Trump, 900 votes for President Trump, 800 votes for President Biden, or a precinct with the same number of residents, 3,000, that went 700 to 600 for Biden, 700, okay, 700 votes for President Biden, 600 for Trump? Which one would you rather include if you're a Republican legislature that wants to produce a Republican-leaning district?

Leah C. Aden: I would like to know two things with respect to the racial makeup of those precincts because, here, we know that the legislature knew not only the partisan performance based upon the 2020 data, but they knew the racial makeup that they --

Samuel A. Alito, Jr.: Well, suppose you don't know anything -- you don't know anything about race, which is what they claim, not that they know -- they didn't take race into account at all. All you had before you were those statistics: 900 to 800 for Trump, 700 to 600 for Biden. You want to make it a Republican district. Which one do you want to keep in?

Leah C. Aden: The former. But, if it -- this case would be more like Cromartie if they were actually looking at pure partisan data and they were looking at partisan data voting behavior over time to make predictions.

Ketanji Brown Jackson: Ms. -- Ms. Aden --

Samuel A. Alito, Jr.: Yeah. But that's the problem with --

Leah C. Aden: But that's not this case.

Samuel A. Alito, Jr.: If I could just follow up. 

That is the problem they claim with Dr. Ragusa's methodology, because he says no, you're going to -- the one you want to keep is the one with the greater number of votes for President Biden. 

So you'd rather keep the -- the district that went 900 to 800 for Trump because there are 800 Biden votes there, as opposed to the one that went 600 -- 700 to 600 for Biden 

because there are fewer Biden votes there.

Leah C. Aden: But Dr. Ragusa --

Samuel A. Alito, Jr.: I'm sorry -- yeah?

Leah C. Aden: -- in his rebuttal report, I think pages 3 through 4, controls for the precinct size and, notwithstanding controlling for that, in his analysis determines that Black voters were moved out, white voters were kept in or moved in. And that is unrebutted data. So he controlled for this.

Samuel A. Alito, Jr.: But what I just said is his methodology, is it not? He looked at the absolute number of votes for President Biden, not the percentage, not the net votes.

Leah C. Aden: And Dr. Ragusa testified about why looking at the total net was the better methodology than the percentages, and this was tested below, and the district court did not accept these arguments. 

And so this goes to, are we retrying expert testimony on appeal? Or do three judges, consistent with White v. Regester, consistent with Cooper, do -- are their findings of fact and credibility determines given the deference that an appellate court is to give a unanimous opinion, where, in light of the total record, it reflects that there was a racial target. It reflects that there was a significant sorting of Black people. It reflects unrebutted expert evidence of race rather than party explaining the assignment of voters. It reflects a disregard of traditional redistricting principles. 

And all of that evidence in total is more than plausible in the record for the using race as a means to harm individual plaintiffs, Mr. Tai Scott and members of the --

John G. Roberts, Jr.: Thank you.

Leah C. Aden: -- South Carolina NAACP.

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

Leah C. Aden: Thank you, Your Honor.

John G. Roberts, Jr.: Justice Thomas? 

Justice Alito?

Samuel A. Alito, Jr.: Yeah, I -- I'm concerned about what has been said here earlier about Mr. Roberts. And as I -- I asked Mr. Gore about that. Is it not true that he has a long record working for the legislature and he's drawn maps for both Republicans and Democrats?

Leah C. Aden: The panel -- yes. The panel acknowledged he has two decades of experience in which he used race every time he was drawing maps in the past but denied doing so in this case.

Samuel A. Alito, Jr.: I mean, at trial, Judge Gergel -- is that the correct pronunciation of his name, Gergel?

Leah C. Aden: It is Judge Gergel, yes.

Samuel A. Alito, Jr.: Yeah. Judge Gergel had complimentary things to say about him. He said, I mean, I know Mr. Roberts. He's a very precise guy. What I want is -- is, if that report -- he's talking about a particular report -- isn't accurate, and I'm persuaded, if he tells me it's not, that's good enough for me.

Leah C. Aden: The -- and that --

Samuel A. Alito, Jr.: He's complimentary of his -- of his honesty, right?

Leah C. Aden: Yes, and also his honesty in Footnote 9, I believe, where he recognized that a year after trial, Mr. Roberts was able to cite with specificity the racial makeup of VTDs, which was completely inconsistent with his non-credible denials that he did not look at race.

Samuel A. Alito, Jr.: Okay. So then the district court turns around in its opinion and says that his testimony rings hollow. So that's a nice way of saying that he lied, right?

Leah C. Aden: Yes. And that's what this Court acknowledged was the case --

Samuel A. Alito, Jr.: Okay.

Leah C. Aden: -- in Cooper with the --

Samuel A. Alito, Jr.: It -- it gave three reasons for it, and I want you to tell me which one of these is defensible. 

The third one is what you just mentioned, his in-depth knowledge of the racial demographics of South Carolina. Is that damning?

Leah C. Aden: No, not in and of itself, because race consciousness is not the problem. It's the incredible denial, despite all of the evidence, including his testimony, but also what the experts demonstrate and also what the movement of so many people and just the coincidence that they land on the exact same provide the court with any plausible explanation for the abandonment of his least change approach in drawing the Charleston County portions of Congressional District Numbers 1 and 6 or the subordination of traditional districting principles, including maintenance of constituencies, minimizing divisions of counties, and avoidance of racial gerrymandering. 

BVAP.

Samuel A. Alito, Jr.: All right. That's 

one. 

The second one is Roberts failed to 

So they say he gave no plausible explanation for that?

Leah C. Aden: That's correct. In fact, Mr. Roberts admitted he abandoned the core priority of least change in CD1.

Samuel A. Alito, Jr.: Didn't -- didn't he say that his -- he was aiming to produce a Republican district?

Leah C. Aden: They -- the Court ultimately accepted that legitimate goal, Your Honor, but the Court recognized in Cooper that using race as a means to get there is constitutionally suspect.

Samuel A. Alito, Jr.: Yeah. But -- but isn't that a plausible explanation for all of those things?

Leah C. Aden: The court heard the testimony, and that testimony was not as persuasive as the racial movements, as the expert testimony that, again, they had the opportunity --

Samuel A. Alito, Jr.: No, but the question is --

Leah C. Aden: -- to rebut.

Samuel A. Alito, Jr.: -- is it a -- is it a plausible reason? I mean, did they say, we don't believe Mr. Roberts because, you know, he had a shifty look on the stand and this is a guy with a partisan background? Did they say anything like that? They gave three reasons.

Leah C. Aden: No, Your Honor. It's -- it's plausible, but this Court is not asked to look anew at the record but to look at whether or not in no circumstance would it be plausible that the -- the outcome be what it is, and as a finding of fact, the court was correct.

Samuel A. Alito, Jr.: All right. So, in -- and the last one is he admitted that his movement of nearly 17,000 African Americans was inconsistent with the Clyburn staff plan for Charleston County that he claimed to be faithfully following, right?

Did he ever say, we followed exactly what -- what Congressman Clyburn asked us to do? Did he ever say that?

Leah C. Aden: The state makes a big defense that their map is consistent with what Senator Clyburn or Representative Clyburn was seeking. The amicus brief shows that that is not what the record actually reflects. 

And, more importantly, what the Court found was that Representative Clyburn's partial map did not treat the area of West Ashley, which was so critical to the VTDs that were moved out that sorted voters on the basis of race -- the partial map that Representative Clyburn put forward did not harm West Ashley in the same way.

Samuel A. Alito, Jr.: Let me come back to the question I asked about why your experts did not produce an alternative map. 

Dr. Imai produced 10,000 maps, right?

Leah C. Aden: Correct, for one simulation.

Samuel A. Alito, Jr.: Yeah, he ran a simulation with 10,000 maps. He never considered politics?

Leah C. Aden: As Dr. Imai's testimony reflects, that he tested for the criteria that the state was saying they were using in their guidelines, the objective criteria, and Dr. Imai and Dr. Duchin's methods are merely useful in this case as further support, as the district court recognized, to show that race was a significant factor in the design.

Samuel A. Alito, Jr.: Well, in a -- in a case that's all about disentangling race and politics, how can we possibly give any weight to an expert report that did not take politics into account at all purportedly?

Leah C. Aden: The district court was confronted with that question and relied upon Dr. Imai's testimony for the findings that it thought were probative or not of the issue, but we do have the Dr. Ragusa and the Dr. Liu unrebutted testimony that did disentangle race. 

And that served the purpose of an alternative map because we can look at Figure 1 in the rebuttal report that Dr. Ragusa includes and look at the VTDs that were available to be moved in in a white -- heavily white precincts that were available to be moved in and those simply were not moved in.

So they served the same purpose as an alternative --

Samuel A. Alito, Jr.: The defense expert, Sean Trende or Trende, evaluated Dr. Ragusa's maps and found that Democrats would win District 1 in over 90 percent of the maps that Dr. Ragusa produced. 

Did Dr. Imai run a simulation using the political data as well but then decide to shelve it when the results were not favorable to your client?

Leah C. Aden: That is not what I believe the record reflects, Your Honor.

Samuel A. Alito, Jr.: It just never occurred to him that politics might have something to do with this?

Leah C. Aden: Every expert, as I believe Justice Kagan said, is being tasked with particular questions. Not every -- I do not believe that there's any requirement that every expert look at every decision that one might go into a map. 

Each expert looks at different things. Dr. Ragusa and Dr. Imai -- I mean Dr. Ragusa and Dr. Liu served the purpose of disentangling and showing that race was more predictive than party affiliation.

Dr. Imai and Dr. Duchin helped counter this narrative that this was a race-blind draw when all of the evidence demonstrates otherwise. And, frankly, Dr. Duchin's testimony looked at all of the traditional redistricting principles. 

And I would submit that these were all raised pre-trial, and this is the type of -- this is what trial courts are given the authority to do, not to have what is happening here, but as relitigating the validity of expert testimony that the court accepted.

Samuel A. Alito, Jr.: All right. Dr. Imai did not control for politics. Did the district court rely on Dr. Liu?

Leah C. Aden: The court did not specifically rely upon Dr. Liu, but his analyses, as the amici of the political scientists who did the work in Cooper, corroborate that he used the same methods that were faithful to Cooper, and his analyses substantiate Dr. Ragusa's and point in the same direction --

Samuel A. Alito, Jr.: Did Doctor --

Leah C. Aden: -- that race was a better predictor than partisanship.

Samuel A. Alito, Jr.: I'm sorry. Did Dr. Duchin control for politics?

Leah C. Aden: She did in some of her analyses. If you look at one of her supplemental reports, she looked at how the maps were fair when you put particularly the candidates of choice of Black voters on the map, and she determined that Black candidates performed worse in the enacted map than generic partisan races, which were essentially white-on.white races. So that is one way that she looked at partisanship. 

But she did not do a disentangling method if that is what you're getting at.

Samuel A. Alito, Jr.: Okay. Last question. I'm sorry to go on for so long. Did Dr. Liu and Dr. Ragusa use the county envelope method?

Leah C. Aden: They both did, correct.

Samuel A. Alito, Jr.: Is that -- is that a sound method?

Leah C. Aden: It is. It's what Dr. Ansolabehere and Dr. Max Palmer used in Cooper and Bethune-Hill, respectively.

Samuel A. Alito, Jr.: Under that method, if there are two people who live in the same apartment building, under the county envelope method, could one -- does the analysis take into -- presume that one can be moved and the other can't?

Leah C. Aden: I believe --

Samuel A. Alito, Jr.: One could stay in -- in -- in a district and the other could move?

Leah C. Aden: I do not believe that's the case because he's looking -- the county envelope method is relying upon precincts, and so it would not be at that level of detail.

Samuel A. Alito, Jr.: Does it assume that a -- that all precincts could be moved, regardless of their location?

Leah C. Aden: Only those within the county envelope, which is reflective of the fact that a county like Berkeley or a county like Beaufort was wholly moved into CD1, so it was fair for Dr. Ragusa and Dr. Imai to assume that any VTD in those counties could have been moved into CD1. And where we saw that they were not is where Black voters were at issue.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor?

Sonia Sotomayor: I understood the record the way you did, but I understood that Dr. Liu was asked to produce maps that were consistent with the traditional criteria that the state indicated it had used, correct?

Leah C. Aden: That is correct, Your Honor.

Sonia Sotomayor: So he never looked at partisanship because that wasn't one of the criteria that it at first said it had used, correct?

Leah C. Aden: That is correct, Your Honor.

Sonia Sotomayor: So I know it seems strange, but as I understood the record -- and I know Justice Alito thinks that it should have been assumed that partisanship would be the defense -- do you know if the answer in this case raised partisanship as a defense?

Leah C. Aden: I do not believe so. Again, the legislature almost entirely predicated their line drawing during the legislative process on traditional redistricting principles.

Sonia Sotomayor: So you were relying on what they said during the process?

Leah C. Aden: What they said. And this Court has been skeptical when legislatures have come up with post-hoc justifications. But what's important here is that the legislature -- the court -- the panel accepted their justification, presumed that they would not admit it and then still allow plaintiffs to test whether that was the true reason behind the line drawing and found that it was not. It was less of a predictable case.

Sonia Sotomayor: So what your experts showed was that everything they said during the legislative process had to be race-based in some way because that's what the evidence showed. They couldn't explain the large movement of Blacks as opposed to whites, Blacks as opposed to -- or Democrat -- Democratic whites and Black. So they had to come up with a different reason for why they did what they did, correct?

Leah C. Aden: There were indeed shifting reasons, and race as a means for a political goal is constitutionally suspect.

Sonia Sotomayor: Thank you.

John G. Roberts, Jr.: Justice Kagan? 

Justice Gorsuch? 

Justice Kavanaugh?

Brett M. Kavanaugh: On the least change point that you mentioned, my understanding, but I want to get your understanding of the record, was that Senator Campsen wanted Beaufort and Berkeley Counties to be kept whole, he wanted a stronger Republican tilt, and he wanted Representative Clyburn to represent some of Charleston County because of Representative Clyburn's clout in the -- in the Congress and with the administration. 

So, if you -- if those things are accurate -- and I just want your understanding of the record -- then doesn't that mean you couldn't draw the first district without some significant changes?

Leah C. Aden: Those are generally the findings of the court, but the court recognized and detailed in its opinion that when Beaufort, when Berkeley, when Dorchester were brought in, they had Black neighbors, and those Black neighbors increased the BVAP in CD1 to a politically risky 20 percent and Black Charlestonians were offset. 

Black people were treated one-to-one, traded one in, one out. White voters, the Republican-leaning ones, were individualized and allowed to come into CD1, and white Democrats were even kept in or individualized and allowed to remain in CD1. 

It's only Black people in the design of this district that were treated with racial stereotyping, which is offensive to this -- the Constitution.

Brett M. Kavanaugh: Right. I understand that principle, of course. But West Ashley was predominantly white and predominantly Democratic and then was moved out, right?

Leah C. Aden: Yes, but there were significant, still heavily Black precincts --

Brett M. Kavanaugh: Right.

Leah C. Aden: -- that were moved out alongside of it. And the court addressed this matter --

Brett M. Kavanaugh: Your point is there's a higher percentage then of Blacks than whites moved out?

Leah C. Aden: And -- and that the court

Brett M. Kavanaugh: Is that right?

Leah C. Aden: That is correct.

Brett M. Kavanaugh: Because there were a lot of white people moved out of District 1 in West --

Leah C. Aden: That is correct. And the court confronted the net effect argument in its opinion. And when you look at the paragraph about Deer Park, it talks about how you may have a precinct that has 10,000 white people in it and another precinct that has 8500 Black people in it, still a minority but still substantial, and the movement of those precincts would notwithstanding affect the overall BVAP of a district. 

And that's exactly what the court considered and confronted. This is not a new argument being raised. It was considered by the court and it was rejected in its racial gerrymandering finding.

Brett M. Kavanaugh: The other side makes a point that the original plan that came from Representative Clyburn's office actually had a lower Black voting population for District 1 than what ultimately emerged. I just want to get your response to that, the relevance of that in the overall record.

Leah C. Aden: I think it's irrelevant because I don't think that his map determined the -- the sorting that was actually done by the key decisionmakers that the court acknowledged. 

But even more, if you look to the amici brief that Representative Clyburn's office offers in this case, they provided a partial map, and then, from there, the state drew out the -- a partial map of one district and, from there, drew out the other six districts. 

So we have no idea what the BVAP of CD1 would be based upon what the record reflects Representative Clyburn was seeking in CD6. And that is detailed in the amici brief that he submitted.

Brett M. Kavanaugh: Yeah. Thank you.

John G. Roberts, Jr.: Justice Barrett?

Justice Jackson?

Ketanji Brown Jackson: So I guess I'm still struggling with this clear error standard and the application in this context. Justice Alito asked a number of questions about the reasons that the district court highlighted for why it did not credit Mr. Roberts' testimony. 

And I guess, consistent with what I understood the clear error standard to require of us, I didn't know that we were to evaluate whether we agreed or disagreed with each of their findings, whether we would have found -- you know, had a different takeaway from the fact that, you know, his testimony, the district court said it -- it rang hollow. If we thought it didn't rang -- ring hollow, would that be a basis for clear error? Do I not understand what the clear error standard is?

Leah C. Aden: I don't believe that you do. I believe that the credibility determinations, the ability for the court, as in White v. Regester, as in Cooper, to have listened to the witnesses, is clearly given much deference by this Court, that the racial gerrymandering finding is a clear error finding and the subsidiary findings --

Ketanji Brown Jackson: Right, but -- and the subsidiary findings --

Leah C. Aden: -- are also --

Ketanji Brown Jackson: -- as well so that if the district court said we don't believe he gave a plausible explanation and we look at it and we think the explanation is plausible, that distinction, the fact that we disagree with that particular subsidiary finding, is not the basis for clear error, is that right?

Leah C. Aden: That is my understanding. It's the total record.

Ketanji Brown Jackson: So it -- so maybe -- maybe you would have clear error if, for example, the district court didn't have any subsidiary findings, if they didn't say anything about Dr. Roberts; they just say, you know, nothing maybe. But, in this case, they did have three reasons, right, why they didn't agree with him? So I guess I just want to be clear as to what we're looking at from -- from the standpoint of clear error.

Leah C. Aden: I think it's at least three reasons, and I think -- for why the court did not credit all of his reasons for why the map was drawn the way that they did. And it wasn't just that he -- the court just listened to his testimony and said I disagree with you but that that testimony did not align with the other facts in the record, which reflected that race predominance was occurring in this map, and that is overall a finding that's backed up not only by the unrebutted disentangling method but is borne out by the state's own data.

Ketanji Brown Jackson: All right. Let me ask about the hypothetical that Justice Alito put forward with respect to moving in 900 Trump voters versus -- you know, a district with 900 Trump voters and 600 Biden voters versus a district with 700 Biden voters and 600 Trump voters. 

I may have gotten that wrong, but I think if -- I think his point was that if politics is at play, then, clearly, you'd want to bring in the district with more Trump voters if you are trying to get a Republican tilt.

And I think that's -- I think that's right, but I guess what I am trying to understand is how the BVAP stays the same unless you're looking at race so that if you bring in the district with more Trump voters, the assumption, I think, that everybody seems to be operating under is that you would -- that district would likely have more white voters in it because race is correlating with -- with -- with politics. 

And if that's the case, then I would expect bringing that district in, the BVAP would drop. And yet, here, it stayed the same, and I understood your argument to be, because Black voters elsewhere were moved out, that race was used to move out Black voters in a -- when you brought in the 900 Trump voter district. 

Is that the point that you're making?

Leah C. Aden: That is the point that I'm making, that's correct.

Ketanji Brown Jackson: And you're saying that that is the unlawful application of racial gerrymandering. So even though, as Justice Kavanaugh pointed out, the sort of overall BVAP remains the same, in a situation in which you're bringing in more white voters and moving out Black voters, in -- in this kind of circumstance, you're still relying on race in a way that is, you say, improper?

Leah C. Aden: Yes. Correct. And I would only detail that not only are you moving in white voters, you're moving in Black voters, and you're not just -- and then, for those Black voters moved in, you're offsetting them by kicking out the Black Charlestonians. And that's exactly what the court details in its opinion happened here, the race as the means to achieve this political goal. 

And I just want to acknowledge also that this is not -- I mentioned at the onset this is not the case of Cromartie, where this Court said the plaintiffs failed to prove racial predominance because we see in the record that they were actually looking at voting behavior data. 

The record does not reflect -- this is the inverse of that case, where the record reflects they were looking at racial data for its predictive purpose and they were every once in a while looking at partisan data to see its connection, but they were relying upon race data and they had no good reason to do that.

Ketanji Brown Jackson: And as Justice Kagan said, we -- we kind of think that racial -- your argument is that racial data was really kind of driving this because they didn't have a robust set of political data that they were drawing from in order to do this?

Leah C. Aden: Because, in their mind, they were using race as a proxy for -- to predict partisan behavior.

Ketanji Brown Jackson: Thank you.

Leah C. Aden: That's what the record reflects.

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

Leah C. Aden: Thank you, Your Honors.

John G. Roberts, Jr.: Ms. Flynn.

Caroline A. Flynn: Mr. Chief Justice, and may it please the Court: This Court has recognized that cases 

like these, where state defendants disclaim the use of race in line drawing and argue that any racial disparities are simply the result of a correlation between race and political affiliation, present special challenges for trial courts and require an especially sensitive inquiry. 

As part of that inquiry, plaintiffs bear the burden to disentangle race and politics and show that race drove the map-makers' decisions about where to place a significant number of voters. The district court found that plaintiffs had done that here. 

But this Court has also been clear that on appeal, this Court's job is more straightforward. Racial predominance is a factual finding subject to clear error review even when there's a politics defense. 

The Court has also repeatedly rejected attempts to impose unjustified evidentiary hurdles as a matter of law on redistrict -- redistricting plaintiffs. 

Defendants' arguments for reversal in this case contradict those settled principles. 

I welcome the Court's questions.

Clarence Thomas: If we find no intent to discriminate or to -- that there was vote -- on the vote dilution claim, that's what I'm more interested in, you seem to want us to send it back on that. But, if you find -- we find no intent, should we, or should we just simply resolve it here?

Caroline A. Flynn: So our position on the second claim is that if this Court were not to affirm on the first racial gerrymandering claim --

Clarence Thomas: Yeah.

Caroline A. Flynn: -- and not find racial predominance there, that this Court should remand on the second claim because we believe the district court used the wrong legal standards to evaluate that claim.

Clarence Thomas: And what should that standard be?

Caroline A. Flynn: So, first, we -- the district court simply sort of took the findings it had made on racial predominance and the Shaw standard and carried them over, but the intent standard is different for an intentional vote dilution claim. It's the Arlington Heights inquiry that this Court --

Clarence Thomas: And that is -- it's the -- again, the vote dilution claim. It seems as though those were collapsed into one another, the redistribute -- the redistricting and the vote dilution, and dealt with on -- on the same standard.

So I'm wondering, if the standard is intent with respect to the dilution claim, if you don't see that intent here, why should we remand it?

Caroline A. Flynn: Well, I don't think the court -- the district court made the findings under the correct intent standard for you to evaluate that. I mean, as I mentioned, the district court just asked about racial predominance, but they are different intent inquiries. 

For intentional vote dilution, you're asking about a specific intent to dilute the voting strength of the minority population, not just whether race predominated in the line-drawing decisions.

Clarence Thomas: And you're saying we couldn't determine that on the record that's here?

Caroline A. Flynn: I think this Court should follow its usual practice and instruct the lower court about the correct legal standards and then send it back for that decision, determination to be made in the first instance by the court looking at the full record if the Court were to have occasion to reach that second claim.

Sonia Sotomayor: I guess my --

John G. Roberts, Jr.: Ms. --

Sonia Sotomayor: -- question is -- I'm sorry, Chief.

John G. Roberts, Jr.: Ms. Flynn, your office reviews a lot of these voting cases, right?

Caroline A. Flynn: Well, our enforcement work is typically in vote dilution, not in racial gerrymandering per se, but, yes, of course, we've been involved in these cases before the Court.

John G. Roberts, Jr.: Put -- yeah. Putting that aside, have you ever supported the plaintiffs in a case in which there was no evidence of any direct discrimination, no alternative map, no oddly shaped districts, and a -- volume and volume of political data?

Can you think of one where your office has done that before?

Caroline A. Flynn: Well, I -- you know, this might be the first case where there hasn't been sort of direct evidence of an attempt at VRA compliance or the like, but I do think that -- when you brought up the alternative map, I do think that the -- the plaintiffs offered expert evidence to answer that same question about was it race or was it politics that were driving the line-drawing decisions.

John G. Roberts, Jr.: Yeah, that's one of the things I brought up. I also brought up the absence of direct discrimination, the absence of oddly shaped districts, the lack of -- I mean the great volume of political evidence, and throw in another one, anything that all of that has been done, it is alleged on racial basis, to change the population in the district of the desired voters by 1.3 percent? I mean -- I mean, my point is -- is a clear one. 

Have you ever seen anything like this?

Caroline A. Flynn: Well, this Court has affirmed, I believe, on a circumstantial record I think in North Carolina versus Covington. The Court said that there, the state was completely denying using race. The legislature told its map-maker not to look at race. And this Court still said it was permissible for the district court to find based on demographic information and information about the shape of the district that race was, in fact, relied upon.

I'd also say that here, the district court did look at traditional redistricting principles and find that they were subordinated in this instance. For instance, this new district is not contiguous when the previous district was. 

Of course, there was previously a Charleston County divide, but this is I don't think the case that the traditional districting principles wholly supported the state's story here. 

And I will sort of go back to the expert evidence in this case. In our view, we think the Ragusa expert and Liu were the most probative on the question we've been talking about today, which is was it race or was it politics that were driving the district lines. 

And Dr. Ragusa took the methodology in Cooper, arguably improved upon it by looking at VTDs at precincts rather than voter by voter, which is what the Cooper expert did, and then he also ran a regression analysis to further isolate out the effect of race from politics.

Neil Gorsuch: Counsel, I -- I -- I want to just explore the alternative map non-requirement requirement thing for a minute.

Caroline A. Flynn: Sure.

Neil Gorsuch: Everybody seems to take as given that the legislature here did seek to pursue a partisan gerrymander, if you will, or a partisan tilt, I think, is their preferred term, and that that's permissible under this Court's precedents. We start with that as a given.

Caroline A. Flynn: Mm-hmm.

Neil Gorsuch: Right?

Caroline A. Flynn: Yes.

Neil Gorsuch: Okay. And that the plaintiff bears the burden of -- of -- of -- of -- of overcoming a good-faith presumption that -- that the legislature is doing just what it says, right?

Caroline A. Flynn: Mm-hmm.

Neil Gorsuch: How do you prove that they are acting in bad faith without showing that they could achieve their objective some different way?

Caroline A. Flynn: I agree that that could be a probative piece of evidence in some cases, and I think that's what the Court said in Cooper. What we're pushing back on is the idea that you need to have, as a matter of law, for the plaintiffs' case to even get off the ground, an alternative map that checks all the boxes.

Neil Gorsuch: I -- I get that, and I'm wondering why. I mean, normally, if a plaintiff bears a burden of proof, you have to show that it would have happened but for, you know, this change in the world. 

And I think the -- here, the analogy would be -- and I'm just exploring this. I don't know. All right? I could be wrong. Probably am. But, in a but-for world, the legislature could have achieved its partisan purposes, nefarious, happy, whatever you think they are, in some other way without -- without doing what it did that you're objecting to. 

And, here, there's no -- no evidence that the legislature could have achieved its partisan tilt, which everyone says is permissible, in any other way.

Caroline A. Flynn: So I --

Neil Gorsuch: What do we do with that when -- when -- with the presumption of good faith?

Caroline A. Flynn: So I have a couple responses to that. First, I do think the expert evidence answer the same question. An alternative map says, if you were really relying on the thing you said you were relying, wouldn't you have done -- maybe you would have done this other thing instead.

Neil Gorsuch: I could have achieved the same partisan objective 15 different ways, and with map-drawing technology and computers, you know, they spit out maps by the thousands these days. I would have thought that would have been a relatively modest burden.

Caroline A. Flynn: But it's still --

Neil Gorsuch: What am I missing?

Caroline A. Flynn: -- it's still just a way to answer the question what better explains how lines were drawn. And we think the expert evidence does that.

The other thing I would say about creating this kind of requirement as a legal rule, rather than something that can be a piece of evidence that both sides can make arguments about, is that I think it's going to add even more complication to these even very, very complicated cases. 

So my understanding is that defendants want their alternative map requirement to be limited to circumstances where there is no or meager direct evidence. So I think, first, you're going to have a mini-trial on is this a case where there's sufficient direct evidence or not to bring this rule into play. 

And then I think you're going to have to have litigation and probably appeals on what the alternative map has to do.

Neil Gorsuch: No, I'm not even asking about -- I'm -- I'm -- I'm -- I'm really not interested in whether it's a requirement or not. I'm just -- just as a factual matter, wouldn't it have been the simplest thing to do? If I'm plaintiff and I want to show the defendant can achieve its permissible ends in some other way, I think, in most other scenarios, in a tort case or an antitrust case, is what I'm thinking about, I would show that there were 15 other ways to achieve that which you said you wanted to achieve.

And that would -- that would be really strong probative evidence -- whether it's required or not, put -- put that aside -- that, hey, you're not telling the truth about what you were up to here.

Caroline A. Flynn: I agree it can be very probative evidence. I can't really speak --

Neil Gorsuch: Should its absence

Caroline A. Flynn: -- to why it would be easier --

Neil Gorsuch: -- should its absence here tell us something?

Caroline A. Flynn: I don't think so, because I think the plaintiffs offered two experts that went unrebutted to answer the same question. 

I will also just point out that I believe there are maps that are in the record that did have a higher BVAP that stayed based on the 2020 election data as a Republican-leaning district. So, you know, I don't -- I believe those maps are the first House staff plan and I think there was one from a Senator Sabb that also had that.

So, you know, whether -- what's easier, easiest for a plaintiff to do to prove their case, I'm not really in a position to sort of speak to their litigation choices, but --

Sonia Sotomayor: That's the point, isn't it? There were maps that remained Republican-leaning that were rejected, and, instead, there was this unusual movement in and out based on race. That's what the experts showed, that you can't explain the movements based on partisanship, that they can only be explained on the basis of race. That's the burden the plaintiff meets, correct?

Caroline A. Flynn: Yes.

Sonia Sotomayor: I had this question as I was going through: If you can't get to where you want to go without using race, do you think our law permits that?

Caroline A. Flynn: No, Your Honor. I think that the --

Sonia Sotomayor: That's the whole point, isn't it? If you can't reach a goal, no matter how laudatory it is, if the only way that you can satisfy yourself for whatever your political reasons are is by using race, that's illegal.

Caroline A. Flynn: Right. This Court said that in Cooper, and the plurality opinion said that in Bush v. Vera as well.

Sonia Sotomayor: Right.

Caroline A. Flynn: You can't use race as a proxy for a political goal.

Sonia Sotomayor: So the bottom line is they had maps that were created that reached -- that kept them Republican-leaning and they chose not to use them. For whatever other political reasons, what they went back to was race to make the map they made, correct?

Caroline A. Flynn: That's what the district court found, yes.

Sonia Sotomayor: All right. Thank you.

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

Justice Thomas?

Clarence Thomas: This is just a matter of curiosity. If you can't -- your answer was you couldn't use race to draw the districts, right?

Caroline A. Flynn: Right. Well, or you would be in strict scrutiny land and perhaps VRA compliance would be a reason, but -- right.

Clarence Thomas: But you used -- you can use race to draw a majority/minority district?

Caroline A. Flynn: Right. So, if race predominates, and in that circumstance, where the overriding consideration is to draw a majority/minority district and that racial target actually dictates how lines are being drawn on the ground, I agree the first half of the Shaw test would be met, and then you would be -- in the second half, you would ask the strict scrutiny question of whether or not there was a strong basis in evidence to believe the other requirement.

Clarence Thomas: Outside of this context, do we use the predominant standard in -- in our Fourteenth Amendment analysis?

Caroline A. Flynn: I'm not aware of another context besides gerrymandering.

John G. Roberts, Jr.: Justice Alito? No?

Justice -- anything further?

Justice Kagan?

Elena Kagan: Ms. Flynn, so it's a funny case because it's our first post-Rucho case of this kind. So, before Rucho, right, you could understand completely why it was that map-makers started doing race in order to achieve partisan gerrymanders, because they couldn't do partisan gerrymanders directly. They were afraid that that was going to be found unlawful. 

But now that Rucho has come about and -- and all these partisan gerrymandering claims have been held to be non-justiciable, you know, some people might sort of say, well, I don't get it. Like, why do people keep using race when they can just do it directly? Just do -- use the election data, do the partisan gerrymandering. 

You know, doesn't the fact that they can do it directly suggest that they're not -- why would you need race as a proxy? So that's my question to you.

Why would map-makers in general and in this case use race as a proxy to do partisan gerrymandering now that you could just, like, do partisan gerrymandering?

Caroline A. Flynn: So I don't know that I'm in a position to speak to in general, but in this case, as has been discussed earlier today, there was evidence in the record that the political data the map-makers had available was sort of limited and imperfect. It was a single election that wasn't congressional, and it was not looking at the durability of voting across multiple elections. 

So, given the evidence that voting is racially polarized in South Carolina, it was plausible for the district court to find that the map-makers would have relied on race as a more durable proxy in the hopes of achieving their political end.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Your brief also makes the point that it would have been plausible for the district court to have come to the exact opposite conclusion it came to here and that it would have been just as plausible for them to find, as Justice Kagan alluded to, that the simplest explanation was they wanted to do politics and they did politics.

How does that -- how should we think about that under our clear error standard?

Caroline A. Flynn: So we've made that point in previous cases before this Court as well. We think that the clear error standard doesn't ask what is the most plausible reading of the record or whether, on the whole, more evidence supports one outcome than the other. It asks just whether the district court's is plausible based on the entirety of the evidence, and so --

Neil Gorsuch: And how does that fit with the presumption of good faith that we -- because we're reviewing state legislative actions here, that we ask people, lower courts, to make sure that they're -- they're not overstepping their bounds and -- and getting too involved in state and local politics?

Caroline A. Flynn: We think the -- the presumption of good faith is sort of baked into how the burdens work here and also that in this particular case, the plaintiffs did have the obligation to disentangle race and politics. And we also think that the predominant standard is a very high standard that also accounts -- that doesn't, you know, find predominance met based just on racial awareness or race consciousness. And so we think setting the bar that high is what affords respect to legislatures' districting choices in this area.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: Just to follow up on Justice Gorsuch's question, how would a district court look at this exact same evidentiary record and come to the opposite conclusion in your view?

Caroline A. Flynn: I think the expert evidence played a very big role here. You know, I think the district court is in a very good position to make the kind of assessments about methodology that we've been discussing here today.

Brett M. Kavanaugh: But you've looked at this record and you obviously concluded that the district court could have said no, that expert evidence is not sufficiently reliable or probative in light of the overall record to support the plaintiffs' case?

Caroline A. Flynn: Well, we think that the expert evidence is a big part of it. We think that there were credibility findings here that might have come out differently with a different three-judge panel possibly. It's kind of hard to tell because we weren't there seeing the witnesses firsthand. 

And, you know, we -- we take the point that these are just difficult cases, as this Court said in Cooper, when there is a political defense being raised and so you can often describe or attribute certain oddities in district lines to being politics or race. 

And so, given that, we recognize that district courts have a -- a tough job here to sort of just look at the entirety of the evidence and figure out whether or not the plaintiffs can carry their burden.

Brett M. Kavanaugh: To -- to pick up on Justice Kagan's question and I think a big theme of the other side's briefing is, why would we do this when we have the political data? Justice Kagan mentioned that. And that's all over the briefs and the amicus briefs on their side.

And then I think the main response is the political data is not good enough to achieve the end they want to achieve of a greater Republican tilt.

Do you agree with that?

Caroline A. Flynn: Yes. We agree there's evidence in the record for the district court to -- to find that, yes.

Brett M. Kavanaugh: Right. What if we disagree on that point about the strength of the political data? I think an earlier question Justice Kagan mentioned that that asked about the reliability of that data or how probative that data is. 

Suppose we think that data is fairly probative. Does the whole case that -- that plaintiffs had, the district court's conclusion then all fall because that's really the linchpin of the response to the main argument that the state's giving, which is we relied on this political data, the response is that political data is no good, so you couldn't have been.

If that data is good, should we reverse?

Caroline A. Flynn: No, I don't think so. I think there is also the fact that the BVAP in CD1 stayed basically frozen even after about 190,000 people were being moved in and out of the district. I think there's the --

Brett M. Kavanaugh: Can't that show correlation?

Caroline A. Flynn: I'm not sure it can. I mean, I -- it's -- I'm not sure that defendants have shown that inevitably you would have arrived at that exact same BVAP given those line drawings. 

I mean, the line-drawing decision in Charleston County are what we're talking about, how people were moved in that area to achieve what the district court found was a racial target. So there's that. 

There's the -- the disparities in white voters -- or Black voters being taken out and white voters being left in, even of the same political party. The district court did have credibility findings here. And there was also the expert evidence that isolated out race from political affiliation and said race explains the lines here.

Brett M. Kavanaugh: Why do you think 2020 presidential election data is not reliable, probative, or whatever term you want to use there, or sufficiently reliable or probative that it would have made sense to rely on that?

Caroline A. Flynn: I think looking at just one, and there's evidence in the record about all of this, but looking to just one election and not an election for the race that you're actually studying, my understanding is that when we do functional analyses of voting patterns, we look at multiple elections and, you know, hope to be able to look at voting patterns in races that are actually at issue with the districts we're talking about. 

I think there's also --

Brett M. Kavanaugh: Would you think looking at 2020 and figuring out were you a Trump voter or were you a Biden voter is not probative to whether you're going to vote for Nancy Mace or not in the next election?

Caroline A. Flynn: I think there is evidence discussing about how voters are more likely to -- at least I believe that white voters are more likely to switch over and vote for a candidate in a presidential race and not, you know, switch across party lines to do that.

And given that evidence, I think it was plausible for the district court to reason that there would be a reason to rely on race in order to achieve the political goal.

Brett M. Kavanaugh: Okay. Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: So I think the difficult thing about this case is that clear error review, we owe a lot of deference to the district court's findings. But we're also reviewing it in light of the legal standards, and I'm not -- I'm talking about factual, I'm not talking about the arguments that there was legal error here, but we're reviewing it in light of the fact that the plaintiffs bear an exceedingly heavy burden when they're trying to disentangle race and politics and that we give the legislature a presumption of good faith. 

So we're asking whether the district court made a clear error in light of the fact that it was judging the factual record with those things into account.

And the Chief Justice has outlined, you know, kind of the sum I think in a -- in a pretty concise way of the evidence which was all circumstantial here.

I think there's a reason why Dr. Ragusa's report keeps coming up, is because it was the best of the expert reports that actually did try to disentangle race and politics, which was the key question here. 

And you pointed out, and -- and so did -- so did the Respondent, that they didn't point out an alternative map, but they had expert evidence that was just as good because it made similar points. But this is my question about Dr. Ragusa's evidence. 

Did it control for factors like contiguousness and compactness? Because Respondent pointed out in trying to address this problem, which I think is why, you know, that we've all been asking about and struggling with, that, you know, Respondents said, well, some of the experts testified about traditional districting criteria and some testified about attempts to disentangle race and politics, and they were all showing different things, but did anybody consider all of them?

Because it seems to me like that would be really relevant evidence. And I want to be sure that I'm understanding Dr. Ragusa's testimony and its assumptions accurately.

So what's -- what's your view on that?

Caroline A. Flynn: So the county envelope methodology essentially looks at the area from which voters or, in this case, precincts, can be drawn by looking at the counties that previously constituted or overlapped with CD1, and he -- so that, I think, has these considerations built into the analysis because he's looking at, as the expert did in Cooper, which this Court credited, looking at basically what is the available area from which the -- the map-makers had to draw. 

And I will also say that, you know, my friend has made the point that, you know, it's -- your -- theoretically possible that you can go pretty deep into a county under that analysis, but that is what the map-makers did. 

They took in the entirety of two counties and went to their furthest reaches when they drew the map, and so I think it was reasonable for Dr. Ragusa's analysis to do the same thing in figuring out the area from which he could draw.

Amy Coney Barrett: And last question: How do you think we should think about clear error review in the kind of situation that I outlined where the plaintiffs' burden was so heavy below because of the good-faith standard and because of the heavy burden that a plaintiff bears in trying to disentangle race and politics? 

How do you think that should affect our review of the facts?

Caroline A. Flynn: I think Cooper spoke to this and said that it doesn't affect how clear error works. It doesn't affect -- it doesn't create some kind of a pro -- a pro-defendant presumption on review. It's still factual findings. It's still this Court's usual Anderson standards for looking at those.

Amy Coney Barrett: Okay. Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: Yeah, I just wanted to ask about the question that Justice Kavanaugh asked with respect to our own assessment of the presidential election data and whether or not it's reliable.

Is that a finding of fact or that we would owe sort of clear error review deference to the district court's determination, or is that something we are apt to or allowed to take into account ourselves?

Caroline A. Flynn: I think that's evidence that's in the record that renders the district court's finding of a racial target and the legislature's use of race plausible. So, no, I don't think you have to --

Ketanji Brown Jackson: So, in other words, are we looking at a de novo? So what -- what result from the fact that we might disagree about the fact that the district -- about the reliability of the presidential election? 

Do we owe the district court deference with respect to their determination that having that data, you know, was -- was not enough and that race was actually at issue here? Do we owe them any deference with respect to that?

Caroline A. Flynn: So I do want to be careful. I'm not sure there was a specific finding in the district court opinion about this question of the 2020 data.

Ketanji Brown Jackson: I see.

Caroline A. Flynn: And so I think this is -- because this Court's looking at the -- all the evidence in the record to determine whether the findings the district court made were plausible, that's why I think this is coming up.

Ketanji Brown Jackson: Okay. And -- and with respect to this question about maps and alternative map, I'm just wondering whether or not an alternative map is helpful with respect to the contention that the district was being oddly manufactured with respect to who was being moved in or out. 

This is similar to the question that I asked plaintiffs' counsel. My understanding is that politics is driving it at a sort of meta level, and the map-maker identifies a Republican-leaning district that he would like to include. That Republican-leaning district has both white and Black voters in it. And so one would assume that just by that move, the BVAP goes up. I don't know if that's right, but I'm just -- I'm walk -- I'm walking it through.

But, in this situation, the BVAP stays the same at the end of the day and we have evidence that the map-maker went into the rest of the district and moved out a certain number of Democratic-leaning voters who happened to be Black or plaintiffs say because they were Black, but that's what makes the BVAP remain the same. It's that we've now moved out Black Democrats to account for, I guess, the Republican-leaning district that we have included. 

Is the use of race in that way, you know, I have now got a higher BVAP than I want, and I'm moving out Black voters, not white Democrats, Black Democrats, in order to bring the BVAP down, is that a violation in -- in this world?

Caroline A. Flynn: Yes. And we think that was a very probative piece of evidence that contributed to the district court's finding.

Ketanji Brown Jackson: And what would a map do? If that's the kind of violation that I am trying to establish as the plaintiff, I guess what I don't understand is why having an alternative map is going to illuminate that in any way.

Caroline A. Flynn: Right. I think an alternative map could show a different way the lines could have been drawn and show whether or not there are different ways to do it that it could accomplish some or all of the defendants' goals, but I don't think it's the only way to answer this core question of what was driving the decisionmaking. And --

Ketanji Brown Jackson: And, in fact, if this dynamic is what is really bothering me, for example, as the plaintiff -- I'm putting myself in their shoes -- it doesn't necessarily even make sense to me that you would produce a map to prove that dynamic is happening. You would have expert testimony in the way that you have, you would, you know, explain it all through, but I don't -- I guess I just don't see how a map would be helpful if -- if that's the dynamic that I'm trying to focus on.

Caroline A. Flynn: I think that it was very reasonable for plaintiffs to offer expert testimony to that. I think the other evidence speaks to it as well. I do think that cases have sort of a different mix of circumstantial, sometimes with direct, and you just kind of have to take the record and see what persuasive conclusions can be drawn for it without any --

Ketanji Brown Jackson: So the government's position is that you don't necessarily have to have a map and you don't necessarily have to have direct evidence. We've been hearing a lot about the lack of direct evidence in this case. 

Is there a world in which you can put together a case that demonstrates that race is actually operative in this environment without direct evidence and without a map?

Caroline A. Flynn: Yes.

Ketanji Brown Jackson: Thank you.

Caroline A. Flynn: Thank you, Your Honor.

John G. Roberts, Jr.: Thank you, counsel. Rebuttal, Mr. Gore? REBUTTAL ARGUMENT OF JOHN M. GORE ON BEHALF OF THE APPELLANTS

John M. Gore: Today's argument underscores why the alternative map requirement is so vital. It ensures that racial gerrymandering cases remain focused on racial discrimination and not partisan disputes. It also ensures that the grave finding of racial gerrymandering rests on actual evidence of racial predominance and not malleable expert analysis.

If Dr. Ragusa were correct that race better explains the enacted plan than politics, it should have been very easy to draw an alternative map that disentangled the two and preserved the Republican political lean in District 1. Appellees failed that requirement. They did put alternative maps into the record, so they obviously had the capacity to do that, and all the alternative maps turned District 1 into a majority Democratic district. 

We've heard from counsel for the United States about two plans in the record, the House Staff Plan and the Sabb Plan. Neither of those increased the Republican tilt like the enacted plan did, and neither was as compliant with traditional districting principles, so neither of those plans would have been enacted. In fact, Senator Campsen became involved in drawing the enacted plan and sponsoring it precisely because the House Staff Plan imperiled District 1 and threatened to turn it into a majority Democratic district.

Counsel for the other side mentioned Gomillion. But, in Gomillion, there was an alternative map because there had been prior municipal boundaries of Tuskegee that were perfectly square before the redrawing that was done in an intentionally discriminatory way. So that map also underscored that there was intentional discrimination in Gomillion, which is a totally different case from this for -- for a host of reasons otherwise. 

Let me address the point about election data. The district court did not find that the 2020 presidential election data was unreliable. The district court actually itself relied on that data. It used that data to illustrate the correlation between race and politics. It thought that data was reliable. And all the direct evidence showed that it was reliable and far more reliable than racial data that doesn't address white voters and doesn't address voting and turnout. 

The reason that the General Assembly used only one year of election data is A very simple one in the record that 2020 was the first year that the Election Commission allocated absentee votes down to the precinct where the voter lives instead of at the county level. So it was more accurate and finely tuned data, political data, than any election data that had come before in the history of South Carolina. 

This is a circumstantial case with very weak circumstantial evidence. There's no direct evidence. There's no alternative map. Here, we have a plan that complied with traditional districting principles in Charleston County and in District 1 and did so better than all of the alternatives that were presented at trial. 

There was a mention of contiguity. The district court also made no finding about contiguity. The enacted District 1 is contiguous. It's contiguous by water. Every plan drawn in Charleston County is contiguous by water because Charleston County contains islands and rivers. So there's nothing suspect about the contiguity of this particular plan. 

We heard about the Covington case. That was a remedial case. That was a remedial case where the panel had already found racial gerrymandering, sent it back to the legislature, and then determined that the legislature had not adequately fixed the problem. It's not a case in which there was only weak circumstantial evidence to support a finding of racial gerrymandering. 

We heard today that the legislative record gave no indication that the General Assembly was drawing lines based on politics. That's completely incorrect. The guidelines from both the House and the Senate permitted the General Assembly to draw based on politics, to draw communities of interest based on politics. And the House guidelines went even further. They allowed the General Assembly to draw around communities of interest defined by voting behavior, which is exactly what the General Assembly did here. 

Senator Margie Bright Matthews, who was a Democrat who opposed the enacted plan, said on the floor of the Senate that it was about politics. She even disclaimed the allegation that it was about race. She said that Senator Campsen had drawn based on how people voted, including in West Ashley.

This also -- this political goal also was made clear in discovery. Mr. Roberts testified to it in his deposition. Senator Campsen, Senator Massey, and also Representative Jordan. There were production of emails and documents and text messages, including from Representative Jordan, establishing that the General Assembly had pursued a political goal. 

We've heard a lot of discussion today that Mr. Roberts or others were aware of race. But mere awareness of race does not prove racial predominance. The question here is whether race was actually used to draw lines in a predominantly way -- in a -- in predominant manner. 

That did not happen on this record, and the district court's own description of what the General Assembly did disproves it. It said that the first move was to move in Berkeley and Beaufort Counties whole. Once you do that, you end up --

John G. Roberts, Jr.: You can finish your sentence.

John M. Gore: -- you could -- you could -- you end with a district with a 20 percent BVAP that's also majority Republican.

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