Warren E. Burger: Mr. Evans, you may proceed whenever you are ready.
William M. Evans: Mr. Chief Justice, and may it please the Court, in 1981 the Indiana legislature passed a Reapportionment Act following the 1980 census and this Act was modified and amended in certain minor respects in 1982. The defendants, the Democrats in this case, did not apparently, according to the record, pursue their legislative remedies any further and there's no evidence that in 1983, the 1983 General Session of the Indiana General Assembly, that they introduced any bill in the legislature to try to change the Reapportionment Act in any way. So, instead of pursuing a legislative remedy before the Indiana voters, they chose to attempt a judicial remedy in the federal court and filed their lawsuit in federal court in 1982. This case is before the Court, and it is what appears to me to be a high visibility case, and a lot of articles in the newspaper about this case. I think the reason for that is because of the strange alignment of parties on both sides of this appeal. But, I don't believe that the issues in this case are all that novel, and I believe that this Court in past opinions has in fact considered many of the issuers that are before the Court today. So, I will start my argument with a discussion of the Whitcomb v. Chavis case decided by this Court in 1971, which I feel deals with many of the issues that the Court has in our briefs this morning. In Whitcomb v. Chavis was a case that came from Indiana, involved the same state, involved the same county, Marion County, and involved the same city, of Indianapolis, and even involved on the three-judge panel a District Court Judge on that panel in 1969, who is also on the panel of this appeal today. In Whitcomb v. Chavis, this Court first of all carefully considered the question of racial discrimination in the electoral rules and laws in Indiana involving particularly multi-member districts in 1969. And what this Court says is a matter of racial discrimination, they said there is no evidence that the multi-member districts which had existed in Indiana for many, many years were created, designed or maintained to further racial discrimination. In making that statement, in the opinion by Justice White, be mentioned the Sims v. Baggett case as an example of what he meant. That was a District Court case where the blacks were gaining political power under a single-member district system, and all of a sudden, for the sole reason of defeating black voting strength in that case, the issue the Court found, they went to multi-member district system. And obviously, the Court said in Whitcomb v. Chavis, that is a discriminatory use of multi-member districts, and the Court struck it down in Sims v. Baggett. But in the Whitcomb v. Chavis case, this Court said it found no evidence in Indiana of racial discrimination at all. The Court commented on the fact that there had been multi-member districts for many years, and there had been a mix in the House of Representatives of multi-member and single-member districts, again for many, many years. So, the Court considered this racial question first of all, which obviously is of great concern to this Court, to protect the rights of the minority of black citizens of Indiana. Then it went on and it looked at the kind of people that were raising a question, the plaintiffs in that case who were ghetto question poor in the center of Indianapolis. And, this Court in Whitcomb v. Chavis said that those voters were overwhelmingly Democrat voters. So the Court, then, was dealing with a racial question put aside with a question of outvoted Democrats in the center of Indianapolis and what their constitutional rights were.
Sandra Day O'Connor: Mr. Evans, did the court below consider the effect of this plan under Section 2 of the Voting Rights Act as amended?
William M. Evans: Justice O'Connor, in this case the lower court did, and this makes this case so different from other cases because in this case the lower court said, there has been no violation by this Reapportionment Act in Indiana of Section 2 of the Voting Rights Act. There has been no violation of the right of black citizens under the fourteenth or fifteenth amendment. There is absolutely nothing in this record that would justify any relief on the part of black voters, and there was some plaintiffs where the NAACF filed an action, a companion action and the Court denied their claim and they have not cross-appealed at all. So, it is fair to say, in Whitcomb v. Chavis there was no racial discrimination in Indiana, from the record, nor is there any in this case before the Court today. So, we have to put race to one side. And then in Whitcomb v. Chavis, decision by Justice White, he said, what constitutional rights do outvoted Democrats have as a political group in the center of Indianapolis, and he very carefully looked to the question, are they able to participate in the political process. Did these ghetto poor citizens have a right to vote? Did they have a right to participate in the party, their party, the Democratic party? Were they hurt? Were they an effective force? And, the Court said, yes, they were and perhaps anticipating the Court's decision later in White v. Regester, the Court found that not to be true with blacks around Dallas, Texas. But here the Court said all political processes had been met in the Whitcomb v. Chavis case and therefore these outvoted Democrats have no constitutional right to a remedy. And the Court said, in Whitcomb v. Chavis again, this is true whether we're dealing with multi-member districts or single-member districts. In our system of government, the Court said, where you have a majority rule some people win; some people lose. We don't have a proportional representation system. The Court could find no need to give constitutional remedies where in any particular district, single-member or multi-member, you have a situation where one... adherents of one party lose, even if they might be in what the Court said was a safe district, and that might be true year after year after year. That was the political system set forth by the Indiana Legislature and the Court found no constitutional wrong with that. So, the Court went on and finally said, perhaps the idea of cancelling the vote is a euphemism for political defeat at the polls, so in the Whitcomb v. Chavis case this Court was considering a claim of a political group, namely the outvoted Democrats in the city of Indianapolis. Now, in dissent... the opinion was written by Justice White and joined by the Chief Justice and Justice Blackmun, but in dissent Justice Brennan and Justice Marshall did not argue with that point. They said that an ideological political interest group does not the constitutional protections as is true of black citizens, because they mention the fifteenth amendment and they mention the Civil War amendments which were designed to help black citizens in their constitutional rights. So, we have... these Justices, I feel, in Whitcomb v. Chavis have taken a strong stand that what the Indiana General Assembly did in 1981-'82 is not unconstitutional.
Byron R. White: Well, I thought one of your major points was that we shouldn't review this case at all, or the merits; we should say it is not justiciable.
William M. Evans: That is true, Your Honor.
Byron R. White: It does not sound to me like if you are citing the multi-member district case, and I suppose you are going to talk about Gaffney--
William M. Evans: We had thought of Gaffney, yes.
Byron R. White: --Well, are you still pressing us to say that this issue is not justiciable?
William M. Evans: I am, Your Honor, but we are here.
Byron R. White: It doesn't sound much like--
William M. Evans: We are here today, so the Court must be interested in the question, But I do believe that the issue is not justiciable, and in the briefs we went into that at great length and the Court, I assume, is familiar with the legal arguments. I am trying to say it is a practical matter.
Byron R. White: --So, you are making an argument, assuming it is justiciable, you do not think there was an unconstitutional gerrymander here?
William M. Evans: Yes, Your Honor, that is my position. I do not believe it was justiciable at all. I believe, if the Court were to think about it, who in this room could say how many Republicans and how many Democrats should serve in the Indiana General Assembly? Those kind of judgments are inherently political and it would be almost impossible for a court to come up with in acceptable standard.
William H. Rehnquist: But if you say it's not justiciable, that means that even the most extreme example of gerrymandering would not be subject to any judicial review?
William M. Evans: Your Honor, I believe particularly where we're dealing with two major parties, I believe that is true. I believe that ever since the Carrollton Province case where this Court showed special concern for discrete and isolated minorities, the Court has some duty and as Justice Marshall said in his dissent in the Mobile v. Bolden case, you take a group that has been discriminated against for a long time, decades and decades, and cannot because of that past discrimination and the effect of the Civil Rights Amendment, can't have their views presented through the political process, that might give rise to a need for some sort of judicial relief. But, when you are dealing with two major political parties, I would say under no conditions--
William J. Brennan, Jr.: Well, no, Mr. Evans, the line you are drawing is one between partisan gerrymandering and racial gerrymandering, are you?
William M. Evans: --I believe the Court made that distinction in Whitcomb v. Chavis, Your Honor, and I was in my argument making that distinction. I think that is an important distinction, because I think this Court is--
William J. Brennan, Jr.: Well, on the question of justiciability.
William M. Evans: --Oh, yes.
William J. Brennan, Jr.: Partisan gerrymandering, you say, is non-justiciable?
William M. Evans: But racial is.
William J. Brennan, Jr.: But racial gerrymandering is justiciable?
William M. Evans: And has been, yes, sir.
Byron R. White: What about Gaffney? That was not a racial gerrymander. That was a partisan gerrymander.
William M. Evans: That is right.
Byron R. White: And, we reviewed it.
William M. Evans: Yes, and in the Gaffney case the Court did review and approved the reapportionment plans in the Gaffney case. And that case is interesting, speaking of the question of seat vote ratios which were so important to the lower court here, it said in Indiana that 51.9 percent of the votes were for the Democrats in the House of Representatives and they only got 43 seats in the 1982 election. That was one of the main, perhaps the single most important point in the minds of the two-to-one majority in our case. But in Gaffney v. Cummings we have a situation where the seat vote differential was greater than even that differential, and the Court upheld the 1972 election which was part of the record in Gaffney v. Cummings. But, I am only now speaking of the justiciability or non-justiciability of partisan gerrymandering.
Lewis F. Powell, Jr.: Mr. Evans, may I ask you this question. Putting the racial issue aside, is it your position, if the one-man, one-vote rule is satisfactorily met, that that's the end of the case and nothing else is to be considered by us.
William M. Evans: That is our position.
Lewis F. Powell, Jr.: Putting the racial issue aside.
William M. Evans: Racial issue aside, Your Honor, I believe that when the Court in Wells v. Sims and other cases in the early '60s established a one-vote, one-person rule based upon residence of, everybody's vote is the same, has equal weight, I think that was a rule that was well accepted in the nation.
Lewis F. Powell, Jr.: If that rule is met, is that the end of this case?
William M. Evans: Yes, that is the end of this case.
Lewis F. Powell, Jr.: Your position then is that the equal protection clause has no application to the case at all?
William M. Evans: That is my position, Your Honor. I believe that what this court should do, when it gets a case by someone who is not a discrete and insular minority, particularly somebody represented by the powerful... one of the major political parties in this country, that the Court should not get involved in that particular political thicket. I believe that is correct, your Honor.
Lewis F. Powell, Jr.: Excuse me. I just wanted to be clear, in your view the Equal Protection clause has no applicability absent discrimination against race, or some other minority?
William M. Evans: I believe, Your Honor, that that is correct, where you have, as I say, two major political parties as we have in this case. I do not believe that the equal protection clause is intended or designed to give protection to one major party in this context.
Lewis F. Powell, Jr.: So, by gerrymandering, one party could put the other party entirely out of business, entirely, if you were using the computer, without discriminating against the voters in the other party?
William M. Evans: Well, Your Honor, I believe that that question has been raised, perhaps by Justice Powell in some of your arguments. I believe that that is true. I believe that where you have two major parties, either party may have the use of a computer. I don't believe the computer in itself is unconstitutional, and I believe that where you have a situation where this question is presented, and in this case we have a situation where the Democrats did not present their point, apparently again to the voters of Indiana to try to get some relief, we had a situation, remember... I believe Justice Stevens when he was still in Chicago commented that the original gerrymandering was reversed by the Massachusetts Legislature and the next year or so through the normal political process. I have great confidence in the political process, and I believe in Indiana that in due time it changes. These things do change.
Lewis F. Powell, Jr.: Did the Republican majority consider any purpose in adopting this plan other than maximize the Republican vote and minimize the Democratic vote? Did it have any other purpose?
William M. Evans: Absolutely, Your Honor. In fact, there is no evidence that that was even their purpose.
Lewis F. Powell, Jr.: Did I read the record that the Speaker of the House said the only purpose was political, just to maximize the Republican vote?
William M. Evans: The Speaker of the House was quoted as saving words to that effect, Your Honor. You are correct about that. He did say that. But that's not a finding by the Court at all. That's a statement of the House leader. And, what you have, frankly, is a political statement. You are dealing with a very political subject. I ask the Court whether it would be better to have candor or, as Justice Stevens said, litigation oriented silence. Of course, when you are dealing with this subject you are going to have partisan comments made on both sides. One can hardly expect the leader of a party to say, "I am going to help my opponents. " It is a political statement. I think the thing the Court should do is look at, as we say, the bottom line. What was the effect of the reapportionment on the Democrats? What was actually done? We know, for example, that the Republicans saved a seat for the Democrats in the House in Marion County where there was a vast movement out of blacks, which were Democrats.
Lewis F. Powell, Jr.: What other purposes were considered by the Legislature that are effected in the record or by findings of the District Court?
William M. Evans: One-man, one-vote was met. That the first criterion.
Lewis F. Powell, Jr.: Yes.
William M. Evans: Then the record is clear that the rights of black citizens, black vote, was absolutely--
Lewis F. Powell, Jr.: Apart from that, what other things?
William M. Evans: --The Legislature then followed the tests under the state law which were emphasized by this Court in Karcher. For example, they avoided contests between incumbents; they preserved the core of previous districts, were two state guidelines that were followed. I think before the Court can make a judgment on... that you might be interested, you must recognize that no other alternative plan was ever presented in the Indiana General Assembly.
Lewis F. Powell, Jr.: They did not have very much time, did they, in view of the schedule followed by the Republican majority?
William M. Evans: Well, Your Honor, they had about as much time as the Republicans did. The census tapes were made available in early or middle of April of 1981, and they did not hire a computer, that is true. But, after the case was over, I mean, after the Legislature was over, we had a trial in the fall of 1983, there were no alternative plans presented to the three-judge panel. No alternative plans have ever been presented, nor to this Court, that follow the guidelines recognized by this Court.
Lewis F. Powell, Jr.: But in the Legislature the plan was adopted, as I recall, on either the last or the next to the last day of the session.
William M. Evans: Your Honor, you are right. It is a very complicated piece of legislation and as necessary as all very difficult legislation is in the state legislature, it sometimes takes the last day to get these things done. It was done on the last day, but I don't believe--
Lewis F. Powell, Jr.: No Democrats on the conference committee, were there?
William M. Evans: --No Democrats were on the conference committee, Your Honor, but I wonder if this Court wants to draw great weight on that. Again, I think if you look at the bottom line, what was the effect, what happened, and we know one thing. We know the Democrat leader himself maid that Republicans were piggish. They had so many Republican elected in the Reagan landslide of 1980 that they only had so many votes to go around, so meeting all these guidelines, there were so many marginal districts that as a matter of fact the Democrats could win in a good Democrat year. We know based upon their own exhibits, their own statistics, there were 67 seats in the House in the 1982 election that were either safe Democrat seats or competitive seats within a 45 to 55 percent range, 67 out of 100 seats in the Indiana House. That is the result of the reapportionment. Now, if we have candidates that can't move with that kind of a chance, I think that's not a problem this Court need address. As I say, there are some Justices who would perhaps look at this question, on the question of rationality. Is it rational? Was the plan entirely motivated by a desire to severely damage the other party? That question has been raised by some of the Justices, and I would like to say a word or two about that. Amplifying on what I said to Justice Powell, we have a situation where the Indiana Legislature, consistently throughout the state, without question, all over the state followed these guidelines. Now, in the Karcher case we have just the opposite. In the Karcher case there was a justification offered of not diluting the black voting strength. But the district court said, that is not true because in the Fourth District in Karcher where I think there was a 17 percent black majority vote, the Court said... they just ignored that. They did not adjust that. They did not take any effect to protect the black voting strength in the Fourth District. Just the opposite here. The Court found in Indiana that the General Assembly did in fact protect the black vote, so we have a fact. It is rational, and no one has to re-invent the wheel. The Legislature has districts that are multi-member. They didn't have to go to single-member districts. They had a right to take what they had before them in the background of the Whitcomb v. Chavis case. They knew multi-member districts were proper. So, they used multi-member districts in the new plan and they went ahead with what they had, took care of the blacks, took care of the one-man, one-vote. Those were their top priorities.
Warren E. Burger: We will resume there at 1:00 o'clock. Mr. Evans, you may resume your argument.
William M. Evans: Mr. Chief Justice, and may it please the Court, I would like to reserve the balance of my time for rebuttal.
Warren E. Burger: Mr. Boehm.
Theodore R. Boehm: Mr. Chief Justice, may it please the Court, I should like to begin by correcting what we believe to be a few factual misapprehensions that the Court may have gained in the course of the presentation this morning. There were indeed alternative maps presented to the General Assembly, both in the session during which these laws were enacted and in subsequent sessions. However, the Court will not be startled to learn that they never saw the light of day. An example appears as Exhibit 48 in the record. I simply want to point out that what this underlines is that there is no remedy within the legislature for the wrong of which we are complaining, and that it is and was a useless act to present to the fox a correction of the chicken coop guardian situation. The competitive districts to which Mr. Evans referred are by his measure competitive in the sense that if an additional 15 or so percent of the statewide candidates on the Democratic ticket had run an additional ten percent ahead of the top of the Democratic ticket, it would have been possible to gain control of the state legislature. That's what the bottom line of that "competitive" as he uses it is.
Warren E. Burger: How does that come to be? Is that done by computers?
Theodore R. Boehm: Mr. Evans' statistics are done manually, Your Honor. What he did is, took the top of the Democratic statewide ticket and created a chart that was not an exhibit in the case, was not introduced in evidence, and is a summary, though, of data that is in the record. It is, we submit, a manipulation of the data but even on that manipulated data it demonstrates that the high-waters mark for the Democrats doesn't do the job on this map, and that even if the Democrats have a substantial majority of the votes they cannot gain a majority of the seats under foreseeable election returns. Finally, on the comment about multi-member districts, it is correct in one sense that Indiana has historically had multi-member districts. However, from the Constitution of 1851 forward through the districts involved in Whitcomb against Chavis with which this Court dealt, those multi-member districts were counties. The legislature was apportioned among the counties, which is the basic unit of government in Indiana, and by 1971 fifteen, for example, were apportioned to Marion County which is the City of Indianapolis. That scheme is not what is involved here. Those were multi-member districts, but there was no showing and there was no contention, and it was not true that those multi-member districts were done for invidious discriminatory purposes. They simply were an effort to allocate representation among the counties and they respected the historical practice of attempting to give counties representation within the state government, a perfectly legitimate objective of state government. The multi-member districts that we are attacking here today bear no relationship to anything other than the objective of maximizing the preservation of the transient majority's control of the state legislature. They are fundamentally, qualitatively different types of districts.
William H. Rehnquist: And they conform perfectly to one-man, one-vote or one-person, one-vote?
Theodore R. Boehm: Well, within two percent, Your Honor.
William H. Rehnquist: Which is satisfactory for state districts?
Theodore R. Boehm: We submit it is satisfactory if justified. The whole theory of permitting greater deviations from perfect populations stemming from the early cases, Mahan versus Howell if that is how you pronounce it, in '64 and forward in Virginia allows the greater population deviations because the state may properly conclude that it wishes to recognize, for example, cities, towns, counties, other legitimate objectives. Here they took the population deviation but didn't carry with it the burden of honoring all these other proper objectives. They discarded all the proper objectives and just took an arbitrary two percent benchmark. The point is simply, the justification for population deviations is wholly lacking in this map, so we submit it analytically should fail under the population test as well because the reasons for the population--
William H. Rehnquist: But you would be no happier, however, if it were zero percent deviation and still came out with this sort of gerrymander?
Theodore R. Boehm: --That is correct.
Byron R. White: Under your theory, it seems to me that almost any time a reapportionment or redistricting by a state legislature occurred and the result was not close to perfect proportional representation, that there would be a violation?
Theodore R. Boehm: No, sir, we want to be absolutely--
Byron R. White: Now, everybody knows who is districting, knows exactly what the political consequences are going to be of any set of districts that are drawn.
Theodore R. Boehm: --That's correct.
Byron R. White: And so, they know that if this particular set of districts downgrades the Democrats or downgrades the Republicans, that that is going to be the result, and they thoroughly intend it?
Theodore R. Boehm: That is correct Your. Honor.
Byron R. White: Well, how much of a deviation would you allow?
Theodore R. Boehm: There are several ways you can have a perfectly constitutional, plan, Justice White.
Byron R. White: That ends up with the Democrats not getting what, arguably, what they desire, what they are entitled to vote-wise.
Theodore R. Boehm: We do not claim that we are entitled to any specific number of seats in the General Assembly. We do claim that we are entitled to be free from a statute that arbitrarily, that is to say without justification in any proper governmental purpose, harms us. That is a fundamental equal protection doctrine, any classification of citizens.
Byron R. White: Well, what justification could there be to give the Democrats fewer seats than they are entitled to in terms of their voting population?
Theodore R. Boehm: Several things could do it, and they have been iterated in the opinions of this Court. Adherence to county lines, recognition--
Byron R. White: Well, were they articulated by the Court of Appeals or not?
Theodore R. Boehm: --They were, by the District Court, Your Honor. Yes, and the District Court uniformly found that none of these proper justifications was present in this case including specifically a finding that the claim that these maps were somehow designed to preserve the integrity of the black vote, was fanciful. There is simply no showing in this record that this map was required by any desire to prevent a degradation of the black vote, and the district court specifically rejected that contention.
William H. Rehnquist: What if we were to uphold your claim in this case and say there has to be some kind of neutral objective, and so it goes back to the Indiana legislature, and this time they say, the Republican majority says, we can still get the Democrats and that is what we intend to do, but we will kind of preserve county lines in most of them. Now, would that eliminate your claim, or would you still have the claim even though there was some neutral factor they could point to, if their intent was simply to get as much for the Republicans as they could, and that preserving county lines was just a kind of a gimmick?
Theodore R. Boehm: Preserving county lines is one restriction, Your honor, just like population equality is a restriction, just like the requirement that if they're going to have different sized districts, in other words some multi, some single different sized multis, there has to be a reason for it, a proper governmental reason which there was in Whitcomb against Chavis, but they decided Marion County ought to get 15 seats. Now, the effect of that scheme, of course, was not to discriminate against one party or another, because whichever party then carried Marion County carried all 15 seats and had reasonable access to the control of the Legislature. Here they took the very same body politic, Marion County which previously had 15 seats under the '70 census, discovered that it had only 14... and by the way, coincidentally, a perfect 14... it could have been carved up into 14 single member districts perfectly. But, in order to preserve its 15 seats in the Legislature they took Marion County, patched on areas from three continguous counties, to create five three-member districts out of an area that is essentially 47-53 Republican. Now, having done that, they took the hole of that doughnut and gave it three seats. The hole in that doughnut is approximately 90 percent Democratic. The rest of the Democratic vote is by and large on the periphery of the hole, and it was carved up into four separate parts, each of which was then subjected to additional votes from suburban and exurban areas. Result, twelve to three cut of an area that is 57 to three, with no legitimate governmental purpose being served by this scheme. In Ft. Wayne, Indiana, something very similar happened but with even more effect. There the city is a city consisting of 170,000-odd people. It is entitled on any sort of a proportional representation to three-plus seats in the Indiana House. It has a Democratic mayor. Yet, neither the City of Ft. Wayne nor Allen County in which it resides became a district or an area that was carved up into districts. Rather, they went out into the surrounding areas, took farmland and patched it on to Allen County to create two three-member districts, a total of six people elected from this area, split the city of Ft. Wayne right down the middle, and produced a six-zero Republican majority cut of a city that has a Democratic mayor and is entitled to over three seats itself.
Byron R. White: Well, suppose the prior districting in Indiana had been done by a Democratic legislature and they had gerrymandered it in their favor, and now comes along a Republican legislature and they decide to do exactly what was done in Gaffney, try to get proportional representation, so their purpose has to be... is to cut down the Democrats. Now, would that be a legitimate reason?
Theodore R. Boehm: Yes, it would be a legitimate reason. If their purpose is to achieve a fair plan, it's perfectly constitutional. That is what Gaffney holds, and we embrace it.
Byron R. White: Would you say, then, that the first step in attacking a plan like this is, you have got to prove intent, or do you prove intent from just the consequences, or both:
Theodore R. Boehm: I think in this case we have got an easy case because on the question of... there are two questions presented by this case. The first is--
Byron R. White: --It may be, but in theory do you think you have to prove intent first?
Theodore R. Boehm: --I think you can talk about it as intent if you wish. However, I think intent normally should be proved by objective criteria. You normally judge what a person intends to do by what he does and what the consequences of his acts are. That's the test that we would apply here. Now, in this case we have the remarkable gift of a confession. They essentially said, "We did it". Now, that is pretty good evidence that they did it.
William J. Brennan, Jr.: Mr. Boehm, if this were a non-justiciable... that is, if partisan gerrymandering is non-justiciable, I guess we do not have to address some of these questions, do we?
Theodore R. Boehm: That is the threshold question, Your Honor. There are two questions. One of them is, is it justiciable, and the other one is, did they do it.
William J. Brennan, Jr.: Are you going to address justiciability?
Theodore R. Boehm: I certainly am, Your Honor.
Warren E. Burger: Before you come to that, is there any evidence in this record about the impact of the mobility of population in periods of one year or two years?
Theodore R. Boehm: None, other than, we have the census of 1980 which is obviously different from the '70 census that was the predicate of the previous plan.
Warren E. Burger: Well, there are cases which have shown conclusively that between the time the plan is enacted and the time it is carried cut in an election, the mobility of people has altered the validity of the plan. Would you suggest there is nothing like that here?
Theodore R. Boehm: There is nothing in this record, Your Honor, and we would agree that it may be a validation of a deviation from a legitimate plan if there were a showing that for perfectly good reasons we have identified that this area is likely to be bigger in 1982 than it was in 1980 so we're going to tip it a little bit, and besides it is a city. There is nothing in this record of that sort, and we submit that if the state is going to come up with what is on its face, and what the district court found to be a totally arbitrary plan, then the state has to come forward with that evidence. The burden shifts to the state to say, oh, we took into account population shifts. There is not a shred of evidence in this record on that point, and if there were we would have a different case, but we do not. To return to the intent point, though, Justice White, we submit that on this record we proved that they intended it because they said that is what they intended to do, but we also proved it by a separate set of evidence that is of more general interest. There is no point in having an intent test that is satisfied only by the sort of subjective evidence we have here. There is no point in having state legislators jump through all the proper hoops, say all the proper things, and then come up with an arbitrary, capricious and discriminatory map. That is not what we are contending. We contend that you judge a map not by hindsight, and in this respect we respectfully disagree with the district court that the primary test is not now many seats were in fact elected, but what does the map look like on the basis of the data that is available as of the time this map was drawn, and that data is in the Court, before the Court, in the form of Exhibit 36 in the joint appendix. It shows how on data that was agreed by every expert to be the most reliable measure of a party's strength, how these districts actually shape up, and it shows that 62 percent of the House districts are weighted in favor of the Republicans and 38 percent are weighted in favor of the Democrats on a 50 percent vote. In other words, if you have a 50-50 statewide vote, which we happen to have as a result of the anonymous races statewide, things like the Clerk of the Courts are elected in Indiana and as everybody can see, nobody really runs as an individual for offices like that.
Byron R. White: Clerks of Court are always anonymous. [Laughter] What would you say about a state that consistently has two Senators of one party but a two-to-one minority or balance the other way on the House members? Would you say that is objective evidence that somebody has been playing games with the lines of the Congressional districts?
Theodore R. Boehm: No, sir, I would not, on the face of it, draw any conclusion from that. I need to look at other baseline data to have any opinion on that subject. It could well happen that the Senators are just great Senators and as everybody in this courtroom knows, the higher profile the office, the more possible it is for an individual to run well ahead or well behind his or her party's baseline vote.
Warren E. Burger: In a Congressional district, do you suggest that a House member doesn't have as much profile as a Senator?
Theodore R. Boehm: I think it is correct, that he does not have as much.
Speaker: Does not have?
Theodore R. Boehm: That is correct, at least in Indiana.
Warren E. Burger: I am not so sure the House members would agree with you. [Laughter]
Theodore R. Boehm: I am sure they would not, they are a coequal branch. But even if they are of equal profile--
Warren E. Burger: But seriously, the Senators have fallen quite far away. The House members are down there dealing with local problems, whether it is a farm district or a manufacturing district or whatever.
Theodore R. Boehm: --Assuming that is true, Mr. Chief Justice, for our purposes the point is that a difference between the Congressional representative seats and the Senate, U.S. Senate seats, we could reflect the profile of both players. In other words both the representatives and the U.S. Senators, could run well ahead or behind of their respective party's strengths for reasons that are unique to them, and without regard to whether... as between the two of them they are stronger or weaker. It is just that each of them are able to carve out for themselves a distinctive position and do not necessarily run along party lines.
Warren E. Burger: Is it possible that perhaps inadvertently you would have put your finger on the problem in this kind of a case, that the voters will vote one way in the House and vote another way in the Senate and vice versa, in the different elections--
Theodore R. Boehm: In the state map there is very little basis for that, but again the test is not, does a given candidate win or lose. That candidate may win or lose, and there is evidence in this record that it does indeed happen, by running significantly ahead of his party's strength. But the point is, you have got a statute of a state that is designed to and does handicap a group severely. The fact that the horse with the 50-pound weight might actually end up winning the race, versus the unhandicapped horse, doesn't mean it's a fair race. It simply means that that horse was that much stronger, and that does happen. The point is, there is a significant... not just significant but virtually insuperable handicap imposed by this map on Democrats as a group to no legitimate governmental end whatever, and part of it, of course, is simply the classification of districts. Here we have something that does not occur at all in the Congressional map, and that is, multi-member districts are used in conjunction with single member districts for the sole and explicit reason of coming up with more Republicans, and the proof of that pudding is in the eating. Look at those three-member districts. Ft. Wayne has two of them. Indianapolis has five of them. Together they elect 18 Republicans and three Democrats cut of an area that is 54 percent one party, 46 and a fraction another. On any reasonable map, those 21 percent of the legislature should be something like eight-seven one way or the other, nine-six at the worst, but they are 12 to three, and the way it is done is purely, simply and arbitrarily classifying one group of voters at the expense of another. That, of course--
William H. Rehnquist: --You said, in response to Justice Brennan's question, you were going to say something about... I would be interested to hear what you were going to say.
Theodore R. Boehm: --Yes, sir. On the justiciability point, first and foremost our proposition is that justiciability of this case is evident from Baker and Carr itself, that this case is capable of being analyzed in traditional equal protection terms. There is nothing in the Equal Protection Clause that limits its application to a group defined by race. Indeed, our brief and that filed by Common Cause, submit a series of cases in which other definitions of a target group are held to be equal protection violations.
Byron R. White: Well, what does Gaffney say about it? Wasn't that a political gerrymander?
Theodore R. Boehm: Yes. Gaffney came out that it was constitutional because it was not a discriminatory plan. It does not mean it is not justiciable. It simply means it is okay, what they did in Connecticut in 1970.
Byron R. White: Is justiciability at issue in that case?
Theodore R. Boehm: Implicitly. I always hesitate to tell the person who wrote the opinion what it means. [Laughter]
Byron R. White: That is not what I asked you. Did you read the briefs in the case?
Theodore R. Boehm: I have not recently, Your Honor.
Byron R. White: My question was, was justiciability put at issue in the briefs?
Theodore R. Boehm: I do not know the answer to that. It certainly was at least implicitly put at issue in the fact that the Court dealt with the question and resolved it.
Byron R. White: That is not always the case.
Theodore R. Boehm: In any event, Baker and Carr, we submit, does deal with the question at length and says what is and is not justiciable, and it holds that a matter is justiciable unless it falls into the area reserved to another co-equal branch of the federal government, which this plainly does not. You are simply adjudicating the validity of a statute of a state, the sort of thing this Court does all the time, and it is analyzable in very traditional equal protection terms. Is the statute a classification of citizens? The answer is plainly yes. It puts people in different parts of the state in different categories. It is aimed at a category of citizens, in this case those aligned with the Democratic Party and it does in fact very severely harm them. That is what the Equal Protection Clause says cannot be done.
William H. Rehnquist: But it is certainly different from the holding in Baker against Carr in that each of these people's vote is going to be counted the same way in the ballot box?
Theodore R. Boehm: Well, that's correct, and I think you need to realize, you need to focus on the impact of the plan as a whole here. Does the plan as a whole disadvantage one group or another? Any individual, of course, gets his or her vote counted and that happens in a map that is population erratic or a map that has districts like we have. The question, though, ultimately boils down to--
William H. Rehnquist: But, in the population erratic districts, the votes counted for less in the districts.
Theodore R. Boehm: --The votes of Democrats count for less in Indiana in general.
William H. Rehnquist: Not in the same way as in the one-person, one-vote cases.
Theodore R. Boehm: Qualitatively identical, quantitatively, technically, mechanically different. The result is identical. The equal population gerrymander, as it has come to be called, is a well-known phenomenon and anybody with the time and the computer technology in 1980 can draw a map, and a good example is presented in the briefs submitted by the Republican National Committee in which they took the very same election results for Marion County, Indiana that produced 12 to 3 Republican and drew a map that shows 11 to 4 Democrat within a Republican unit.
William H. Rehnquist: Should that encourage us to push the doctrine of Baker against Carr beyond where it is now applicable?
Theodore R. Boehm: On the question of justiciability, Baker and Carr, we submit, does not require any pushing. It already gives you the doctrinal framework that leads inevitably to the conclusion that this is justiciable. It does not involve another co-equal branch of government. It is resolvable in equal protection terms, and indeed this Court has repeatedly, at least with respect to the multi-member district aspect of it, said that racial or political groups, if the subject is invidious discrimination, may present constitutional claims. So, there is nothing novel about that, at least in the context of multi-member groups. Now, the question whether it is justiciable, once you are there, then the question is what is the standards. How do you identify whether this matter is or isn't constitutional? I submit that Justice Stevens in Karcher has given us a framework within which to analyze that, and you can go at it either way. You can attack it along the subjective intent lines. I submit that the objective evidence of intent is the proper way for the Court to analyze it, because it then gives the map-makers themselves confidence that they can draw a constitutional map. They have the data available to them at the time they draw it, and there are several ways you can do that. One of them is what was done in Gaffney, a procedural remedy whereby you place the drawing of a map in the hands of somebody whose motives are not inherently suspect, and unless somebody comes up with something that is really bad about it, it is presumptively valid and I would submit should be upheld. The other way to go about it is to do what we attempted to demonstrate in the district court and that is to demonstrate that the maps are susceptible of analysis in terms of the districts. You can look at them and determine exactly whether the map is or isn't fair, in round terms, and then you look at whether it's justified.
William H. Rehnquist: What would be the most fair thing in your view? Is it straight proportional representation?
Theodore R. Boehm: No. Again, we are not advocating proportional representation.
William H. Rehnquist: When you say something is unfair, it suggests a standard of fairness. Now, just what would be the most fair thing to have done here?
Theodore R. Boehm: The simplest... well, the most fair thing to do, we submit, is to have an arbitrary checklist of objective criteria, that you go down until you come to the map that meets most of them. For example, you initially look at the equal population requirement within your population deviation, whatever the legislature sets. Second, how few county lines does it break? Third, how few city lines does it break? Fourth, how compact are they?
William H. Rehnquist: Maybe the Indiana Legislature decides, we want to break city lines. We want to break county lines.
Theodore R. Boehm: Then let it say so, and why. If it has a legitimate objective, it can say so in its preamble or in its legislative history. The legislative history of this is, it is designed to disadvantage Democrats. Now, if somebody says, we want to have a map that gives representation to farmers because we think they are a group that has interests, or we want to have a map that recognizes any other legitimate proffer--
Byron R. White: And by the way, it also discriminates against Democrats, but that is just incidental.
Theodore R. Boehm: --If they can do it for legitimate reasons, I submit they can do it. If they can draw a map within the proper lines and relying on recognizable, legitimate governmental objectives, then they also can play a few games within those parameters. But you have accomplished a very great deal. On the map here in Indiana, you would at a minimum gain several seats for the Democrats simply by breaking up these multi-member districts which are the most egregious abuse in this thing. The other egregious abuses require a familiarity that the district court had with the map of Indiana. When you look at the maps they don't look particularly odd because Indiana is, after all, laid out in township and range. Everything is square in Indiana, and the minimal voting unit in some parts of the state is the township. So, you end up with something that doesn't on its face look too strange, but if you look at Senate District 39 that pairs downtown Terre Haute with coal mines three counties south, that is very peculiar from any reasonable objective, and the district court went through this analysis, made its findings of fact which are not clearly erroneous. They are clearly correct. This map enjoys no rational basis whatever. It is purely and simply an effort to perpetuate a transient majority.
Lewis F. Powell, Jr.: You would apply the rational basis standard in your equal protection analysis?
Theodore R. Boehm: Yes, we would.
Lewis F. Powell, Jr.: Perhaps not with respect to discrimination against the blacks?
Theodore R. Boehm: With respect to the blacks, of course there is the Voting Rights aspect that Justice O'Connor's question raised. There was a Voting Rights Act claim raised in the parallel case filed by the NAACP. My clients did not assert a Voting Rights Act claim for the obvious reason that a majority of them are white, and some parts of the state that are horribly gerrymandered do not have a great Voting Rights Act case. Other parts do. The District Court held that it didn't find the requisite intent that it believed under the 382 version of the Voting Rights Act was required, and therefore didn't reach that issue, but I submit you would find under the '82 Act, a Voting Rights Act violation if you looked at the facts and the law as it now sits, but that is not an issue in this case by reason of our not having presented it and then NAACP's not having appealed it. That is explained in the NAACP--
William J. Brennan, Jr.: Mr. Boehm, if your view prevails, do you suppose it will make much work for the judiciary?
Theodore R. Boehm: --Your Honor, you are well familiar with flood-of-litigation arguments. We submit that Baker and Carr is to the first wave of reapportionment what this may well be to the second. There will no doubt be a time of adjustment, but by and large the state legislatures were very capable of adapting to the one-man, one-vote rule.
William J. Brennan, Jr.: I'm just wondering, at least in cases where the redistricting is done by a partisan majority, whether Republican or Democrat, whether the other party isn't going to run right to court and challenge the redistricting, and with all that that entails.
Theodore R. Boehm: Well, there will undoubtedly be some of that, Justice Brennan, but I submit that if you follow the proper analysis which is firmly rooted in the fourteenth amendment itself, and under well established doctrines within the fourteenth amendment, the state if it is going to classify has to come up with a rational explanation for its classification, and that there are objective quantifiable ways to look at these maps including simply mechanical tests, equal population, number of districts divided, number of cities and towns divided. And, if the state wants to deviate from those, that's fine but it needs to explain why it's doing that, particularly, of course, if you have a one-party plan as you have here where the legislature in both houses and the governor who signs it are all in the same party. It's inherently suspect.
Byron R. White: Would you insist that the legislature leave those kind of tracks behind them, or would you take... accept an argument by the attorney general of the state as to what is a defensible reason for this plan?
Theodore R. Boehm: How you prove it is the question that we haven't thought through fully. If I were drawing a map, Justice White, I would put in the preamble why we've done what we've done. I'm not accorded that privilege in Indiana and won't be unless this Court affirms the district court's decision, but in... you could, of course prove it any way you could legitimately prove it, I would think. By the way... I'm sorry.
Warren E. Burger: What time is it? Do you have anything further?
William M. Evans: Thank you, Your Honor. Mr. Chief Justice and Members of the Court, I believe it is unfair to say that this plan was an arbitrary plan adopted by the Indiana General Assembly, because no plan was presented to the legislature or to the courts that followed the guidelines that were followed in Indiana with a different result so far as the Democrats are concerned. There is no alternate plan that follows these guidelines, and particularly the guideline of black voters, because... and that is a constitutional requirement which was met by the Indiana Legislature. When my colleague mentioned the guidelines to the Court today, he didn't mention anything about not diluting the black vote. He mentioned crossing county lines, and if you read his brief you wouldn't know that there are two parties in Indiana. When he uses the term "minority", he means Democrats in his brief, but the legislature is faced with a real problem. We must deal with black voters fairly, and within that context we developed a plan, and no plan has ever been presented to show any different alternative plan with the same guidelines would produce a different and more beneficial--
Byron R. White: What about the multi-member districts? How do you defend them?
William M. Evans: --I defend them the same way that they were defended successfully in Whitcomb v. Chavis, Your Honor, because they don't have anything to do with the fact that you've got people that lose in some multi-member districts or single-member districts. It doesn't make any difference. These multi-member districts have been in Indiana for centuries, I mean, for hundreds of years.
Byron R. White: Not these same ones?
William M. Evans: Pardon?
Byron R. White: Not these same ones?
William M. Evans: No, but the only reason those were changed was because of the one-man, one-vote restrictions. You see, if the Democrats had put on a plan that followed the one-man, one-vote and followed the protected black vote, and had less... and were county-wide, you'd have a different situation. But they don't--
Byron R. White: Is your only answer to the multi-member districts, is it, well, we've always had multi-member districts somehow, someplace in Indiana? Is that your--
William M. Evans: --I would say that there are a lot of--
Byron R. White: --Let's get right around the specific reason. Take one of your multi-member districts and give me your... what your justification is for it.
William M. Evans: --Well, I will say on the record, there is no particular justification for a particular district, Justice White. The fact is, it was there and there were constitutional--
Byron R. White: Well, it really wasn't... it's not the same multi-member district, was it?
William M. Evans: --No, it wasn't the same but it was the same in the sense that they'd been there and they had 15 members at the time.
Byron R. White: Are you saying you can't find in the record any justification for any specific multi-member district?
William M. Evans: I'd say there is some testimony of governmental purpose, but I think, being frank, what happened--
Byron R. White: What is it for a multi-member district?
William M. Evans: --Well, there's some evidence in the record that it's easier in urban areas to have it because of media, of one media source to have the voters vote for several different representatives in the same district in the House. But I don't think that's the point. I think it's quite true that these districts were there. The record does show, when it came time to do the redistricting there were multi-member districts. There were single-member districts. And the legislature left those districts in accordance with the wishes of the voters or the representatives unless there was a requirement for a specific change. I don't think the record is any more specific. I know in Whitcomb v. Chavis there are notes as to some of the rationale for multi-member districts, but why these particular districts were retained, I don't think the record is specific on that.
John Paul Stevens: Well, Mr. Evans, is it correct, if you look at Marion County, the history was as multi-member district for the entire county, and then with the population change 14 representatives would have satisfied that county. What is the reason for it making a 15th member in Marion County? Does the record give any indication?
William M. Evans: Well, it depends on where you start. As a matter of redistricting process, Justice Stevens, if you start in Marion County that's probably true. But in this case the legislators started in a different part of the state and as they got down to Marion County with the changes back and forth, it just doesn't fit in that neat a package. Also, in a sense it's helpful to the Democrats because it gives Marion County, the urban area, 15 seats where they might otherwise only have had 14. I think that's a matter within the discretion of the legislature, Your Honor. I don't think that--
John Paul Stevens: If you get over the hurdle of justiciability, if your opponent does, would you agree that there must be a rational basis for the plan?
William M. Evans: --I would say so, Your Honor, and I think, following the guidelines of this Court as were done would justify it, yes.
John Paul Stevens: If you say there must be a rational basis, would you say that the desire to maximize the political strength of the majority party is a rational basis within that standard?
William M. Evans: No, I wouldn't think that that would be, in and of itself, a rational basis. But as I said--
John Paul Stevens: You would say there would have to be some other basis?
William M. Evans: --That isn't before the Court in this case. As I say, there's no plan that does everything the legislature wanted to do and gives the Democrats more seats. There is no such plan. They had plenty of time to develop such a plan based upon the facts, and that hasn't been done.
John Paul Stevens: Well, would the case be different if the majority of the legislature adopted a statute saying, we will not entertain any Democratic plan and we will refer the districting job to the Republican State Committee which apparently hired the computer firm here, would there be a different case?
William M. Evans: Yes, there would be, Your Honor, because this wasn't just a plan worked out just by the Republicans. They went through the legislative process. All the rules were followed. This argument about due process, I suggest, is a make-weight argument and as presented, perhaps is justification--
John Paul Stevens: But why would the suggestion I made to you, what would be wrong with that suggestion, if your view of the law is correct?
William M. Evans: --Because the plan should be made by the representatives... the citizens through their representatives. That hasn't been done in this case, Your Honor. The fact that a computer was used certainly can't be of concern to the Court because the Democrats had every opportunity to develop another plan with the same criteria with less impact in their party if they cared to do so, and this was done in accordance with all the procedures and processes of the Indiana General Assembly.
John Paul Stevens: I don't understand why it would be wrong for the Republican Party to prepare the plan and the legislators say, well, we've taken a lock at it and it looks okay to us, and adopt it. What would be wrong with that?
William M. Evans: Well, I don't think it would be right to have it done outside of the normal electoral process.
Byron R. White: Well, didn't the District Court find that the only reason for this plan was to minimize the Democratic representation?
William M. Evans: No, Your Honor. I think there's a statement that--
Byron R. White: What did they... on what ground did they invalidate this?
William M. Evans: --The plan? They said... they made a statement that some of the leaders intended to try to continue their control but they didn't say as a finding if that was done. They invalidated the plan, basically upon a seat vote ratio, and what they said was that there are so many percent of votes that were Democrat votes in the House and so many seats. That, I think, is the main basis for their doing it. But, I think a proper test in that regard, you should only consider... the Court should only consider contested seats. There are a lot of unopposed seats in their ratio, which is an improper assumption. As a matter of fact, on this record if you take the vote for the contested races for the House of 1982, you find Republicans had a majority in the House, Democrats had a majority in the Senate, and in both cases the party that got a majority of the votes for contested races won a majority of the seats, which meets one of the tests that was in the mind of the lower court.
Lewis F. Powell, Jr.: Is community of interest a factor that properly may be considered in determining whether there is a rational basis for the plan?
William M. Evans: It is a consideration, Your Honor, but I think it's a minor consideration. I believe the statement was made in the record that if the numbers fit, they would consider that point. But the key questions are one-man, one-vote, preserving the black vote, and... were the two main considerations. No dispute that those governed the Indiana General Assembly when it passed--
Lewis F. Powell, Jr.: The district court thought community of interest was fairly important?
William M. Evans: --Well... I don't know, Your Honor. It's a factor but it also said, it must give way to other considerations. It realized it wasn't top priority?
Lewis F. Powell, Jr.: Yes.
William M. Evans: It mentioned it, though.
Lewis F. Powell, Jr.: I think one could agree with that. But it did say that little attention was given to community of interest in a number of districts.
William M. Evans: It said that, but what are you comparing that with, Your Honor? Again, you see there is no plan that gives more weight to community of interest and meets the guidelines which are accepted and approved by this Court as carried out in the plan itself. We're comparing apples and--
Lewis F. Powell, Jr.: You have no other plan to compare it with?
William M. Evans: --That's my point. There are no other plans presented to compare with the Legislative Reapportionment Acts themselves. That, I think, is a fatal defect in the case. Before you get into this quagmire of political... political thicket, at least they should have put something before the Court, to see clearly that there was some other way to do it with less damage to the Democrats. Thank you very much.
Warren E. Burger: Thank you, gentlemen. The case is submitted.