Vieth v. Jubelirer - Oral Argument

Argument of Paul M. Smith

Chief Justice Rehnquist: We'll hear argument next in No. 02-1580, Richard Vieth, et al. v. Robert Jubelirer.

Mr. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court:

This Court held 17 years ago in Davis v. Bandemer that a claim of partisan gerrymandering is actionable under the Federal Constitution.

But the lower courts have since effectively overruled Bandemer by requiring factual showings of plaintiffs in these cases that are both impossible and, I submit, irrational.

As a result, the state--

Chief Justice Rehnquist: Well, do you... do you... do you think the lower courts then didn't follow Bandemer?

I mean, Bandemer set a very, very high standard.

Mr. Smith: --Well, the standard that I think was... the proper reading of Bandemer does not require that you show that your members of your party have been completely disenfranchised, to the extent that African-Americans once were in the South, or that... that your party has effectively been banned.

The standard that was applied here required that you show that you're being prevented from registering to vote, from raising money, from campaigning, from showing up at the polls.

Those kinds of constitutional violations don't make sense as an element of a partisan gerrymandering claim, because they're not about gerrymandering, and of course, they never occur.

So if you're going to say the claim is justiciable, it doesn't make sense simultaneously to require people to establish those kinds of independent violations.

Chief Justice Rehnquist: Three of us in Bandemer thought the claim was not justiciable.

Mr. Smith: Yes, Your Honor, and I would submit to you that... that... that history suggests that... that it... the Court should not go that direction, because--

Justice O'Connor: I was thinking history showed that was the way to go.

Mr. Smith: --Well, what... what we've seen, Your Honor, because of the... the fact that the lower courts have effectively read... rendered--

Justice O'Connor: They couldn't... they can't reach a decision under that Bandemer standard.

It's impossible.

So maybe the way to go is to just stay hands off these things.

Mr. Smith: --Well, we've never had a... an opportunity for the lower courts to actually apply a standard that says when does the map become so unfair that it's anti-democratic?

What they have done instead is apply this shut-out standard, which doesn't allow any real scrutiny of the map.

Justice Kennedy: Let... let me tell you my concern with... with fairness.

If... if you look at British parliamentary history, begin with Walpole and go to Disraeli and Gladstone and Pitt and Churchill, and then if you come to this country and you think about Dirksen and Cannon and Webster and Clay, I don't recall any of them ever talking about this issue from a standpoint of fairness.

I don't know what I'm supposed to look to.

Legislate... there's just no sources on which we could... from... from which we can draw.

I would concede that what happens here is unfair in some common... common parlance.

It... it... it looks pretty raw.

But I don't recall legislators talking about what neutral standards ought to be.

Now, we have in our own juris... people talk about contiguity, geographical compactness, but I just don't think we have a... a large source on which to draw.

We know about numbers, one... one person, one vote.

But beyond that, I... it... it seems to me that we're at sea.

Mr. Smith: Well, Your Honor, what we... what we try to do is articulate a standard which is tied to the basic democratic values that are at stake and to the... and to the article I standard that says the people should ultimately be deciding who's going to be representing them in Congress, not the states.

The one thing that's clear from the constitutional--

Justice Scalia: Well, since we're talking about article I, it also says that the times, place, and manners of holding elections for Senators and Representatives shall be prescribed in each state by the legislature, but the Congress may, at any time, by law, make or alter such regulations.

That suggests to me it's none of our business.

Mr. Smith: --Well, Your Honor, this Court held in Wesberry v. Sanders, and has since twice done... applied that again, both in Cook v. Gralike and the... and in the Term Limits case, that there are judicially enforceable limits on the extent to which a state, in exercising the procedural power to establish the times, places, and manners of congressional elections, can create an uneven playing field and attempt to try to dictate the outcome of an election.

Justice Breyer: All right. But then the problem is that I think I have and others is, what are these standards?

Now, you propose, one, look to the mind of the legislature.

We'll do that.

They'll always want party advantage, always.

Look to the extent to which they depart from historically drawn lines.

Well, the historically drawn lines themselves are random.

Third, history.

Why is history the key?

Third, look to see whether or not the minority party might get the majority of votes, but the minority of seats.

Whether they might in the future, that depends how people vote in the future.

There's no set of lines where you couldn't imagine results that could come out that way.

So how do we do it?

Mr. Smith: Your Honor, that's... with... with all respect, I... I... first of all, we don't suggest that you should somehow look at the departure from historical lines.

That's not part of our--

Justice Breyer: You said look to see whether the traditional criteria are predominantly ignored.

Mr. Smith: --That's--

Justice Breyer: That's what I'm referring to.

Mr. Smith: --Okay.

That's part of the intent... yes.

Justice Breyer: I've read it.

I understand it.

Mr. Smith: Our... our standard on effects is that... does not suggest that politics should be taken out of this process.

As this Court recognized in Gaffney--

Justice Breyer: No, no.

I... my question is, how do your standards possibly work?

Mr. Smith: --The standard would be, under our... under our submission, can you demonstrate that it is absolute... that it is very clear that you could get more than half the votes and have no chance.

Justice Breyer: Always can.

Mr. Smith: No.

Justice Breyer: You can't draw a set of lines such that I couldn't imagine a voting pattern such that that wouldn't happen.

Mr. Smith: But, you see, our standard is precisely the opposite.

You have to show that it would... under any voting pattern, it would happen.

There is no possibility that with more than half the votes you could get anywhere near half the seats.

Chief Justice Rehnquist: You're... you're just pulling this... you're just pulling this thing out of a hat, so to speak.

I mean, you've got phrases in the Constitution that Congress may do it or the states may do it.

You've got the Equal Protection Clause, which was... came into being, you know, in 1868, not in the original Constitution.

And they... they just don't intimate anything like what you're talking about.

Mr. Smith: Well, Your Honor, we... we focus on this 50/50 point, this majoritarian standard for two main reasons.

Chief Justice Rehnquist: What... what--

Mr. Smith: One is a... is a matter of principle, which is to say, when does consideration of politics go too far?

It goes too far when we're no longer operating a democracy--

Chief Justice Rehnquist: --Well... well--

Mr. Smith: --we're having a minority party control the majority of seats.

Chief Justice Rehnquist: --Well, when you say, you know, the... the Constitution doesn't ever use the word democracy.

Mr. Smith: Yes, but we... but we have a... we have a--

Justice Scalia: Not to mention party.

Chief Justice Rehnquist: Yeah.

Mr. Smith: --We have a commitment though to the... to the fact that the House of Representatives is supposed to mirror the people and is supposed to be--

Chief Justice Rehnquist: Well--

Mr. Smith: --representative of the people.

Chief Justice Rehnquist: --Well, you... but--

Mr. Smith: And we--

Chief Justice Rehnquist: --The... the... the Constitution originally provided that the... the standard for the state vote would be the standard for the Representatives in Congress.

And in other... it... it was simply left up to the states.

And there were property qualifications for many years, so it didn't represent the people in that sense.

Mr. Smith: --The reason we are focusing on the majority standard, the 50/50 standard, is in part because, as this Court has recognized in Wesberry and it's recognized in... in... in Cook and it's recognized in Thornton, the states are not supposed to be deciding for themselves who's going to be representing the people.

The people are supposed to decide.

The second reason is that 50/50 you don't have these problems of distortions, which, as an empirical matter, happen in a winner-take-all, single-member district system.

When you get to 60/40, the party that has 60 percent of the vote ordinarily would expect to get more than 60 percent of the districts.

That's why you don't... you don't ever want to have a rule of proportional representation.

Justice Scalia: It happens under a system of presidential electors too, as we recently saw.

Is that unconstitutional also?

Mr. Smith: No, Your Honor.

The electoral college is not a majoritarian standard in the same way that we... we have here.

Because of the Great Compromise, it includes two Senators are counted, two votes for the Senators in every state across the board, so there... that... that is the disparity between the popular vote and the electoral college.

But in the... but the House of Representatives was supposed to be the mirror of the people and the... this Court has constantly policed the efforts by the states to encroach from procedure into substance, to try to decide in advance, as Pennsylvania did here.

We would rather have two out of three of our Representatives be Republicans, even though we're a 50/50 state, and regardless of how people vote, we're going to determine--

Justice Breyer: Yeah, but it's not... let... let me... you've got me up to the point of this 50/50 business.

Now I'm thinking.

Let's use party names.

It helps for clarity.

Suppose the Democrats have, under the districting, they're... they're the ones who are the victims.

Now, let's suppose that they did get 55 percent of the state vote for Congress in the next election.

Now, you're saying that if it were true by this map that they're getting that vote, 55 percent, meant that nonetheless, they had to get fewer than half the Congressmen, then it's bad.

And my problem with that is, I don't see how we're going to know in advance, unless this is going to be done by some experts coming in and measuring prior votes and getting into an argument.

And if that's what's going to happen, I keep thinking of Ken... John Kenneth Galbraith, who says, I'd rather be governed by 400 people chosen at random from the telephone book than the Harvard faculty.

All right, now--

Unknown Speaker: [Laughter]

Justice Breyer: That's a joke, but nonetheless, is a serious point.

Chief Justice Rehnquist: William... Will... William F. Buckley, Jr., not... not... not Galbraith.

Justice Breyer: Now, do you see my--

Unknown Speaker: [Laughter]

Mr. Smith: --Other side of the aisle.

Your Honor--

Justice Breyer: Now, I've exposed the entire problem.

I want you to respond to it.

Mr. Smith: --Your Honor, experts will in all likelihood be involved as we... we have an example of the kind of expert testimony that can be given here.

But this is not, to use another expression, rocket science.

Experts testify in voting rights cases about how districts will behave.

They use prior election returns plugged into those districts to make estimates about how they will behave, and it'll be the burden on the plaintiffs to establish... they have the burden of proof... that, in fact, it is true that if you get... that... that the... this favored party, with more than 50 percent of the vote, will have essentially no chance of getting half the districts.

That is--

Chief Justice Rehnquist: Were the experts on which you rely, were they presented as witnesses in the district court?

Mr. Smith: --We had a trial on the one person, one vote claim, Your Honor, after the partisan gerrymandering claim was defeated, was dismissed.

And the... the state tried to justify the deviation by talking about neutral principles that governed this map, and so we had the opportunity to put a kind of preview of our partisan gerrymandering evidence on--

Justice Stevens: Yes, but Mr. Smith, isn't it true that what the issue is sufficiency of your complaint?

Mr. Smith: --That's... that's correct, Your Honor.

At this point--

Justice Stevens: And may I ask you a question that... that troubles me about the complaint?

It seems to me your complaint was drafted on the theory that you agreed with Justice Powell's position in Bandemer, but the position you've come up with in this Court is entirely different and not the one that I read into the complaint.

Your majority analysis theory is... is really quite different from... from that theory.

You... you seem to have abandoned Justice Powell.

And I... what I wanted to ask you is, under the theory of the complaint, as opposed to the theory on which you're arguing in this Court, if you were... you allege that there were no neutral justifications whatsoever for any district line.

And if you put in proof to that effect and the... and the other side prove there were neutral justifications for half the districts, say, but the... that there were a half that did fit your allegations, would... would... in your view, would the district court have the authority to review the districts that were totally unjustified without meeting your majority analysis claim?

Mr. Smith: --I think the court does have to look at the effects of the deviate... departures from traditional district criteria--

Justice Stevens: Assume the effects, say you've got two plaintiffs, one from district 6 and one from 16, I think.

Mr. Smith: --Yes.

Justice Stevens: If, for example, the... the court thought that district 6 had absolutely no justification, it's wildly, you know, the shape is so terrible and so forth, but the rest of the map was okay.

Under your complaint, could the judge do anything about that?

Mr. Smith: I... I think it... the... certainly under our complaint and under the... our conception of the case, you don't look at one district in isolation and say, this district is too ugly or too much of a departure--

Justice Stevens: I know your complaint is drafted as a all-or-nothing, but I'm just wondering, within the... within the allegations, would... would it be open to the judge to say, well, they lose on the total picture, the majority theory is... is just too... too novel for me, but what they've said about district 6 pans out 100 percent.

Is that--

Mr. Smith: --That... that's not our case, Your Honor, and... and the reason for it is, I don't think that this Court is going to come in and start imposing, particularly districting criteria, when an ugly-looking district--

Justice Stevens: --In particular districts?

Mr. Smith: --an ugly-looking and odd--

Justice Stevens: They did that in the racial gerrymandering context... situation.

Mr. Smith: --Only when... only when it's talking about race on either side of the line, and... and it could be that the Court would ultimately get to the point of saying a district that's too ugly and... and divides Democrats from Republicans ought to be viewed in the same way.

But our submission is more like the racial vote dilution case, that not only are there departures would show partisan intent, but you have to look, as the Court said in Bandemer, statewide and see whether, in fact, the... the... the legislature has created a situation where a Republican votes counts twice as much as a Democratic vote in this state because--

Justice Scalia: Race does not change.

You... you are the race you are, and you're not going to change it next year.

Political party doesn't work that way.

How do... how... how... how do you decide what, you know, what... what is the Republican vote?

Is it just registered Republicans--

Mr. Smith: --No, Your Honor--

Justice Scalia: --and is everybody that's registered a Republican now have to stay... maybe we should make them stay registered Republicans so that we can have good districts, right?

I mean, it... it... I just don't understand how you run this scheme.

You cannot really tell until after the election is done how many Republicans and how many Democrats there are in each district.

Mr. Smith: --Well--

Justice Scalia: Are... are you going to--

Mr. Smith: --the way you identify--

Justice Scalia: --count on party registration?

Is that the basis for divvying it up?

Mr. Smith: --No, Your Honor.

It's how people have voted and how--

Justice Scalia: In the last election.

Mr. Smith: --Yes.

And it... it would again be the burden of the plaintiff to show that there are predictable voting patterns, that there's a large chunk of people who are consistent Democratic or Republican supporters who are being injured in their voting rights by means of a... of a deliberate scheme by the legislature.

Now, the idea that these people are hard to identify is a little hard to square with a map, in which you have these incredibly complicated peninsulas going out to find--

Justice Scalia: Any particular election, they are very hard to identify in any particular election, which is why the parties go about selecting their candidates very carefully.

If it didn't make any different, they'd pick any old body--

Mr. Smith: --What the evidence--

Justice Scalia: --and run them and... and you'd get all of the same Republican and the same Democrat votes.

That's not the way the world works.

Mr. Smith: --Well, what the plaintiff would have to show in such a case is that there's a sufficiently consistent pattern of voting in the state that a racial... that a political gerrymander is possible and it has occurred and it... and that it will... and that, in fact, in the future there will be an injury to one class of voters who have been packed into a small number of 90 percent Democratic districts, while there's a much larger number of relatively safe Republican districts.

Now, you can say that's not true or we can't know it, but we all sit here knowing... know that's what they did.

Justice Ginsburg: Mr. Smith--

Chief Justice Rehnquist: --Well, what is it--

--To... to what extent... what... to what extent, Mr. Smith, does your... does your theory depend on the registration of the voters?

Mr. Smith: Registration might be an indication of voting patterns, but our theory is... is you look at voting patterns and decide in advance of the next election, will there in fact be a... a situation where it's impossible for... if the Democrats got half the votes or the Republicans got half the votes, it would be impossible for them to get close to half the seats.

Justice Kennedy: Well, what is the--

Justice Scalia: --The point is it--

Justice Kennedy: --particular vice of... of redistricting, just on the basis of politics?

Suppose you did it on the basis of isolating or... or fracturing union votes, or... or the gay vote or the environmentalist vote or farm subsidies?

Mr. Smith: Well--

Justice Kennedy: Where... where... where does your... your... your principle particularly elect political parties?

In... in... in fact, it seems to me that parties might... might well conclude... include some of these groups that I've mentioned.

Mr. Smith: --This Court has... has made clear in a number of cases that the Government has no business discriminating against people based on their partisan affiliation or their political viewpoint, in contracting, in jobs.

And it seems to us it would... it should be clear that at some point, a level of discrimination in designing the machinery of democracy, the electoral process itself, a... a form of discrimination that's equivalent to saying, in two-thirds of the district we're going to count all the Republican votes twice, in one-third of the districts we're going to count all the Democratic votes twice.

Chief Justice Rehnquist: But certainly you allow for some discrimination?

I mean, that... that's the way legislatures go at it.

Mr. Smith: Well, as this... this Court has made clear, both in the race area and the politics area, redistricting is a little different from other areas.

It doesn't make any sense to demand purity and a complete non-consideration of these factors, but there has to be an outer boundary.

If there's no outer boundary, then--

Justice Ginsburg: Mr.... Mr. Smith, you're... you're essentially asking how much is too much.

You say you have this decision that said people have this claim that they can bring, Bandemer.

But that was a case where the bottom line was, and you have no claim on the merits.

Now, if a judge, a district judge, in... in one of these cases said, well, here's the Indiana plan and the court said that that was okay, and this one doesn't look any worse to me.

Is there a difference between the Pennsylvania plan and the... a significant difference between those two?

Mr. Smith: --There's a--

Justice Ginsburg: With our precedent, I mean, you have to take the whole of it, not just half.

The half standing to sue you like, the bottom line, but the Indiana plan, egregious as it may look, is okay.

Mr. Smith: --Well, the facts shown in the Indiana case, in the Bandemer case, were much less severe than those we alleged here, in terms of... here we had allegations which were ultimately supported by expert testimony in the one person, one vote trial, that they would get a large super-majority of the districts with only half the... with half the votes or less.

And in... in Bandemer, the facts as they were presented, there was no such expert analysis.

Instead, they relied on the results of one election in which one of the bodies actually came out the right way and one of them came out slightly the wrong way.

They had not supplied the Court with the same kind of evidence that we would propose to supply, and... and did not meet, at least as an evidentiary matter, the standard that we propose here.

It might be that, in fact, if somebody looked at that Indiana map, it might have met that, but nobody studied it in that way.

They were simply saying, look, it's really ugly, they've got these unfair, multi-member districts in certain cities, and, in fact, the way the vote came out in the House, the Democrats got more than half the votes and got only 43 percent of the seats.

That I... that, I submit, is not a sufficient basis to establish the outer boundary that we would suggest you have to meet.

Justice Breyer: But if you're going to say it's not fair, fairness in what sense?

If we say it's not fair to draw lines that will pack and crack one party or another, you're going to end up with no geographical boundaries, because all geographical boundaries do that.

A random system in Pennsylvania would give the Democrats no Representatives--

Mr. Smith: What--

Justice Breyer: --purely random.

Mr. Smith: --Well, that's--

Justice Breyer: So... so it's, I mean, my point is that politicians and the public, in fact, in form has one idea of what's fair and it's very hard for a judge to turn that idea into judicially administrable rules.

Mr. Smith: --Your Honor, with... with respect, I... I think that it is perfectly possible for somebody to look at a map and decide whether or not it does or does not unfairly discriminate against one of the political parties.

Courts draw maps themselves fairly... fairly frequently.

They collect testimony from experts, the map in Pennsylvania that was--

Justice Scalia: You... you can tell whether it discriminates against one political party, I guess on the basis of... of... of projections that may turn out to be wrong.

You... nobody can say for sure.

But what... what you can say, what you can guess about, is simply that it will favor one party over another, yes.

But... but is it so easy to tell that it will unfairly favor one party over another?

And that's what you're arguing here.

How unfair is unfair?

I don't know.

What is it, 60/40?

Mr. Smith: --If it gets to the point where one party's getting two-thirds of the seats with less than half the votes, in a democracy, I submit that's the place where it crosses the line.

Justice Souter: Okay.

Mr. Smith, you... is... is that the... the... the force of your argument, I take it, is not that this happens in one electoral year, because there may be all sorts of reasons.

It's something, your argument is, it happens over time.

Mr. Smith: It--

Justice Souter: Let's... let's... let me start with that assumption.

Let's assume that we come up with a rule in which we... we come up with a wait-and-see rule, and we say, it's not enough for you to prove a... a violation to predict in advance.

You've in fact got to prove a violation by looking back and establishing through the course of three or four elections that... that this pattern is emerging.

And let's assume we say, if you can do that, you win.

My question, which then goes to the substance of what you're going to win, and ultimately the substance of what your claim must be is, what is the principle that the district court must apply in a case like that to reform or... or redraw the districts?

Does he... does he come up with a principle that says anything that follows traditional redistricting principles, you know, compactness, et cetera, is okay?

That won't necessarily solve your problem.

Has he got to come up with a scheme that says there's a presumption that all districts have got to be competitive?

If he does that, there's going to be a clear break with tradition because there are loads of places where you can't have competitive districts.

What is the principle on which he's going to reform it?

Mr. Smith: --Well, let... let... I will... let me directly answer that question in a moment, but let me just comment.

I think the idea of a rule that says you have to wait three or four election cycles to... to prove your case, it would essentially be... mean that the claim is worthless, because you're going to redraw the districts every 10 years, and there's an enormous amount of irreparable harm, as you suggest.

Justice Souter: Two elections.

Mr. Smith: As you suggest, there's already irreparable harm.

Once you've thrown out all the incumbents of the disfavored party, they have new incumbents that have come in now.

It doesn't mean that you can't have a remedy, and it would seem to me the very first thing you'd want to do, just as you do in a race case under section II is... is have a map which does not inherently pack and crack the disfavored group to the point where they don't have the opportunity to--

Justice Souter: The... the trouble is, in the race case, you have a relatively simple objective in mind.

And that is, the relatively simple objective is that once you identify the political party of the racial voter, the minority voter, that minority voter ought to have, in effect, the same opportunity as a non-minority voter of that political party.

Here, we have a different problem.

What is the force or power that a member of a given political party ought to have?

It's not as simple as the race case.

Mr. Smith: --Well, I think the inquiry would essentially be the same though.

They... the parties would have to come with the remedial map, the... presuming the legislature would have an opportunity to draw on in the usual situation, in which they could show that it is no longer the case that there is such packing and cracking of Democrats that... that at 50 percent, they would have no chance of getting 50 percent of the seats.

Justice Scalia: What... what if you have more than two parties?

I mean, like Minnesota, where you have besides the Republicans and the Democrats a very strong farmer labor party?

Mr. Smith: I assume that the experts could deal with that.

In... in reality, in this country--

Justice Scalia: I... well, I... I'm sure they can.

What... what... what test do you want them to apply?

Mr. Smith: --Well, the--

Justice Scalia: Each proportional representation for each of the parties?

Mr. Smith: --No, Your Honor.

The... the... the test we're talking about here is... is if one of the parties would get to 50 percent, would they have an opportunity to... to have a majority of the delegation?

Justice Ginsburg: Do you take into account at all in... in this picture, this is not something that could have been adopted by the Republicans in the state legislature alone.

It took quite a number of Democratic votes to put it through.

Mr. Smith: Well, Your Honor--

Justice Ginsburg: Is that... is that relevant?

Mr. Smith: --It... it might be relevant at trial if we ever get to trial.

Our claim was dismissed.

What we would attempt to show at trial, and I think we would show at trial, is first of all, not a single Democratic Senator voted for it.

There were some Democratic House Members who voted for it, and the reason for that is because there are five Members of Congress who are Democrats in the State of Pennsylvania who are real, real happy with the districts they got.

And the General Assembly, the Republican leadership said, well, if you guys want these districts, you know what... you know what the price you have to pay for, you need to get us some votes.

So that... there are dynamics that take place, and in any partisan gerrymander there's going to be some really good districts for the disfavored party, just not enough, not... not a fair... fair allocation, not one that would allow the party to have a majority control.

Justice O'Connor: Mr. Smith, over a period of years, can you identify any state where your test of partisan gerrymandering has persisted over a period of time, five years or more?

Can you give us examples of states where it's persisted over a period of years?

Mr. Smith: I'm not sure that I... that I have enough knowledge of political history going back decades to be able to tell you whether that's the case or not.

It certainly will persist through a decade as long as the whole leadership of the state doesn't shift over to the other party, as long as the party that committed the... the crime, so to speak, maintains either the governorship or one house of the legislature to be able to--

Justice O'Connor: Because in how many states do we have a situation currently where both houses of the legislature and the Governor are of one political party?

Mr. Smith: --There's quite a number of states, including, as it happened in... in this round, a number of very competitive states, the... which caused quite a... had quite a consequential impact on the Congress, Florida, Michigan, Ohio, Pennsylvania, and now more recently, Texas has come into play and decided to--

Justice O'Connor: I suppose typically we would expect that over any period of time that condition wouldn't remain.

You'd... one branch would be in the hands of the other party in time.

Certainly if... if you had something like 50 percent of the voters--

Mr. Smith: --Which, in order to fix the problem, once it already exists, you have to get both houses and the governorship back to... to pass a second bill.

Otherwise, it's in place for the 10 years and then what also happens in most states is the state legislatures, of course, gerrymander themselves as well as the... the congressional seats, in order to keep themselves in a position where 10... 10 years hence they'll still be around and in control of the process again.

So there is a... a fundamental... fundamentally anti-democratic part of this, which means in... in the long run, you are... you do have very competitive states with extremely skewed congressional delegations.

The... the delegation from Florida is 18 to 7 in a state that has a robust two-party democracy.

Now, that... that ultimately is not democracy.

That's our submission.

I'd like to save the balance of my time, Your Honor.

Argument of John P. Krill, Jr.

Chief Justice Rehnquist: --Very well, Mr. Smith.

Mr. Krill, we'll hear from you.

Mr. Krill: Mr. Chief Justice, and may it please the Court:

Because politics is inherent in redistricting, any test, including the appellants' proposed test in their reply brief, requires inherent political choices to be made, choices that we submit are inappropriate for the judiciary to make.

Appellants' latest test, for example, has hidden political choices in it that are outcome determinative.

For example, they use 10 years of statewide races rather than using a single base race, as recommended by the source they cite in footnote 5 of the--

Justice Stevens: May I ask you kind of a preliminary question?

Let's assume that them... that their theory won't fly, this majority theory is just too impractical and so forth.

But what about the theory advanced in their complaint that the... some of the districts, and perhaps all... they allege all... were... were drafted by relying exclusively on a principle of maximum partisan advantage?

And supposing the evidence shows that no neutral criteria at all were used except let's do the best we can to help our own party get as many seats as we can.

Would that raise a question at all in your mind?

Mr. Krill: --No, Your Honor.

First, because I don't think that that's a question that should ever come to trial.

The legislative process is so complex.

Every legislator--

Justice Stevens: Well, what if... what if they narrowed the allegation, said just district 6 or district 16 was clearly drawn for this purpose and no other, no neutral, no effort to be compact or contiguous or follow boundary lines or rivers or anything, we just want to get the maximum vote for one particular party here.

Would you say that was permissible?

Mr. Krill: --It... yes, I would, Your Honor.

And... and I would also say that it... it is not only impossible to prove at trial, but improper to even attempt to prove at trial, because... and we'll... let's take district 6 in Pennsylvania as an example.

Because it would require inquiring into the legislative process in violation of legislative privilege.

Justice Stevens: No, it would just--

Mr. Krill: Legislators are pulled in a million directions.

Justice Stevens: --It would just say to the... when you have a... a really strangely distorted district, the burden is on you to point out one neutral justification for it, and we'll assume that if you... you won't have to go into the minds of the legislature, just assume there is something we can point to, such as a boundary line or if it's fairly compact or it's... but you can't point to anything.

You don't have to go into anybody's mind.

You just say... you give them the opportunity to explain, and they... they say, well, we have no explanation.

We did it just because we want to get that to be a democratic district.

Mr. Krill: If... if the entire legislature en masse came forward and admitted that--

Justice Stevens: Yes.

Mr. Krill: --every legislator said, that's why I voted for it, Justice Stevens, I would still say it's a permissible legislative choice.

James Madison, after all, in the Constitutional Convention, acknowledged that they were giving to state legislators the power under article I, section 4, quote, to so mold their regulations as to favor certain candidates, closed quote.

Justice Stevens: Is there any duty at all to... any duty at all in drawing districts to try to do it impartially?

Your answer is no?

Mr. Krill: Not constitutionally, Your Honor, but there are--

Justice Stevens: Yeah.

Mr. Krill: --political forces that pull them in--

Justice Stevens: I understand that.

Mr. Krill: --in a multitude of directions.

Justice Stevens: But then on the Constitution, what about if the legislature decided that the salaries of the majority legislature should be 10 percent higher than the minority legislators?

Mr. Krill: I--

Justice Stevens: There'd be a good reason for it, because they have more work to do.

They have to vote and they... they get statutes adopted and programs enacted, so would that satisfy the constitutional duty?

If there is a duty to govern impartially, do you think it would?

Mr. Krill: --I'm not sure that would prevent a... present a Federal question, Your Honor, but I'm... I'm certain that our supreme court in Pennsylvania would address it.

Our... my... my individual clients, the legislative leaders, in fact do have higher salaries, precisely for that reason.

Justice Stevens: But that the... all the members of the majority party?

Mr. Krill: No.

I... I don't think so, Your Honor.

I... I can't imagine that even happening.

Justice Breyer: Suppose I have in my--

Justice Stevens: --Why not?

Justice Breyer: Oh, sorry.

In... in my mind the, which I don't... I want you to assume for the sake of argument... that... that one thing the Constitution aims at, one thing though, it wants to leave all this up to the legislature as much as possible, et cetera.

But one thing it aims at is majority rule.

Therefore, if, over a period of time, we have a districting system where the minority... the majority who get the... the majority of votes end up with a minority of seats in a serious way, that undercuts the democracy that the Constitution foresees.

And with computers, that might happen.

Now, suppose I start with that assumption, and I'm looking for a standard.

So suppose I combine Justice Stevens' standard with the requirement to keep judges out of it, that this has really to have happened.

It's not the Harvard faculty.

It really happened.

And in fact, after really happening once, then we also have the experts who tell us it has to happen in the future.

Now, we have three things... three requirements there that really are designed to police the outer fringe.

And if I start with that assumption of what the Constitution wants, why don't I say it imposes those three requirements?

Mr. Krill: All right.

Accepting your assumption, Justice Breyer, I... first of all, I... I think that one would have to look at a lot of different things.

The appellants' test, for example, assumes that Democrats are evenly disbursed across the state--

Justice Breyer: Oh, I've rejected their test.

Mr. Krill: --Right.

Justice Breyer: I've rejected their test.

I've borrowed from it, but rejected it.

Mr. Krill: But because--

Justice Breyer: All right.

So the test has the three elements that I said.

One, they're experts.

Two, it really happened.

And three, Justice Stevens' objective version of there-is-no-other-explanation requirement.

Mr. Krill: --All right.

It... it really did happen in Pennsylvania in 2000.

The... and this was under a judicially-drawn map.

All right.

The party that had a majority of the popular vote got a minority of the congressional seats.

The same thing happened again in a... in another... in a subsequent election, but it was exactly the reverse.

You know, the Democrats and Republicans flipped.

So it... it can, in fact, happen, Your Honor.

But if you allow the experts to control over the voters, then you'll never know the truth of what would really happen.

And let me give you an example in Bandemer itself.

The aftermath of... of the Bandemer case in Indiana is instructive, because two years after this Court handed down its decision in Bandemer, the Democrats, who would have had the Court believe that they were consigned to an eternity of Republican tyranny, actually won 50 percent of the state House seats in Indiana.

And only two years after that, in 1990, they won control, and control has flipped back and forth ever since in Indiana.

So, I believe that Justice O'Connor's concurring opinion in Bandemer was... was quite on point.

The system is self-correcting.

Now, the appellants test in using 10 years, instead of a base race as their own academic source recommends, actually gives a lot of weight to the past preferences of voters, dead voters, voters who have moved.

Naturally, this is a political choice, because any party that perceives this influence as waning over time will ask you to adopt a test that gives weight to past choices.

They also use high profile offices in choosing their races instead of low-profile statewide races, non-charismatic races as their... as their academic source recommends.

And, of course, we have such non-charismatic races in Pennsylvania.

We call them statewide appellate judicial races.

Nothing could be more non-charismatic.

Justice Scalia: Unkind of you to say it, sir, unkind of you.

Unknown Speaker: [Laughter]

Mr. Krill: And, of course, it... they've made a political choice in not using those races either, because in 2001, the year that our legislature was considering this plan, the Republicans took seven out of seven statewide appellate races.

They also, as... as... as I mentioned, in their test assumed dispersion of Democrats uniformly, when, in fact, Democrats, as we all know, are compacted, self-compacted, into urban areas.

So, the... the test is very tilted.

A curious thing that they do in their test is turn real races into hypothetical races by normalizing them so as to remove the popularity factor from those races.

Well, that's curious, since politics is all about trying to achieve that popular edge.

What they did not do, and this is another political choice in constructing the test, is to a use a very... a... a race that was practically 50/50 in Pennsylvania in 2000, a race, by the way, that's cited in their complaint.

It's... it's the Al Gore race for President.

Mr. Gore won 50.6 percent of the popular vote in Pennsylvania.

Now, the statistics show that he also would have won a majority of the congressional districts under the plan that's before this Court if he had been packaged as a congressional candidate.

Actually, he would have won a majority, 10 out of 19 districts.

The statistics are in the joint appendix, page 273.

Justice Stevens: May... may I again ask you just one question about the complaint?

Do you think it states a cause of action under the theory espoused by Justice Powell in his Davis against Bandemer concurrence in the judgment?

And if not, why not?

And then the final question is, and if it does meet that standard, why isn't that adequate judicially manageable standards?

Mr. Krill: Yeah, I... I confess that I don't clearly remember Justice Powell's standard for justiciability in... in his concurrence, Justice Stevens.

I do disagree, however, with... with his standard for... for remedial action.

He called for a searching and sensitive inquiry.

And I submit there really are no neutral--

Justice Stevens: Well, but the first question--

Mr. Krill: --principles.

Justice Stevens: --before you reach remedy is whether there's a violation.

Mr. Krill: Yes.

Justice Stevens: And his theory basically was, there's a violation if there are certain wildly... wildly-defined districts that have no neutral justification except to give partisan advantage to the people who had the power to draft them and who did not even consult the adversary party in drafting them.

That was his standard.

Mr. Krill: Well, that's impossible to prove and improper to prove.

For example--

Justice Stevens: It's a matter of burden-shifting, and if they can't come up with any explanation whatsoever other than partisan advantage, that that's a violation of the... of the duty to govern impartially.

And either there is no such duty or it is a violation.

Mr. Krill: --Justice Powell's standard would require individual legislators to come in and say, here's why I voted.

Here's... here's the... here's the--

Justice Stevens: Well, do you think... do you think it's impossible to prove that race was the predominant motive in a particular redistricting plan?

Mr. Krill: --There are standards this Court has adopted, the Gingles standards for... for making... making that case, Your Honor.

However, I... I think--

Justice Stevens: Well, I mean, do you have to be a really tricky, astute, very clever fact-finder to figure out what was going on here?

Mr. Krill: --Well, yes you would, in fact.

In fact, I don't think... see how you could.

In... in this case, for example, it's impossible for the appellants' counsel to even say whether their clients were Santorum Democrats or Gore Democrats.

Both won Pennsylvania in 2000.

Justice Stevens: But again, under Justice Powell's standard, they wouldn't have to do that.

Mr. Krill: No.

Justice Stevens: They would just have to say, this is totally irrational unless you can come up with an explanation.

Mr. Krill: That... that's correct.

Now, voters... they would have to believe--

Justice Scalia: Of course, it doesn't... it doesn't make much sense to find something justiciable that you can't possibly devise a remedy for, does it?

I mean, to separate the question of... of whether there's a violation from the question of remedy, as though, you know, we'll... we'll... we'll cross that bridge when we get to it, doesn't seem to me very realistic.

Mr. Krill: --Oh, if, in fact, I agree, Justice Scalia.

If the court ignores the remedial phase that would necessarily follow--

Justice Stevens: But, of course, the remedy would be that redraw district using some neutral criteria.

Mr. Krill: --There are no--

Justice Stevens: That's certainly not an impossible standard.

Mr. Krill: --It is, Your Honor.

There are no neutral criteria.

Name a criterion and I'll show you why it represents a political choice.

Justice Stevens: Historical boundaries, contiguity, compactness, maintaining incumbents of both parties.

There are lots of neutral criteria available, and any one of them might justify an other... what seemed on its face to be a very wild district.

Mr. Krill: Respectfully, Justice Stevens, patterns of development over the last two generations, if you... if you put them on a... on a map, they look like splatters of paint on a canvas.

They're not pretty.

Justice Stevens: Not as much as some--

Mr. Krill: But--

Justice Stevens: --Not as much as the one in Karcher or the one in this case do.

Mr. Krill: --Well, I would point out that--

Justice Scalia: Of course, I guess if there are five different criteria: compactness, past practice, or whatever, it's very much a political call which of the five criteria you decide to... to use.

Justice Stevens: That's a... that's true, and the only judicial call is you've got to use at least one.

Mr. Krill: --Well, but... but by saying that... by designating them as neutral criteria, the judiciary itself makes a choice and takes that choice away from the state legislatures.

Voters are not automatons in a matrix controlled by supercomputers.

Voters continue to matter, and they continue to prove it in election after election.

In fact, they proved it in Pennsylvania in 2002 under this plan.

The 17th congressional district, which the experts predicted would go Republican did not.

Voters and good candidates and good issues and good party organization continue to make the difference, just as they did in--

Justice Souter: How about the rest of their predictions?

They got the others right, didn't they?

Mr. Krill: --Not quite right.

Justice Souter: Nobody has to bat a thousand, do they?

Mr. Krill: Well, but we... if... if the plan had been enjoined, we'd never know how right or wrong they were.

And... and--

Justice Souter: But we do... we do now know, which does tell us something at least about their predictive criterion--

Mr. Krill: --Well--

Justice Souter: --and... and it is that it... it gets it wrong in one time out of 19, was that it?

Mr. Krill: --Yes.

Justice Souter: One instance out of 19?

Mr. Krill: Yeah.

Justice Souter: That's not bad.

Mr. Krill: And in... in... in the 6th district, it was very close.

It was a razor-edge race.

But voters continue to pull the candidates towards themselves.

It's... voters are not disenfranchised.

For example, in our 4th district in western Pennsylvania, the incumbent Congresswoman is... is a fairly conservative Republican--

Chief Justice Rehnquist: Thank you, Mr. Krill.

Ms. DeLone--

Mr. Krill: --Thank you.

Argument of J. Bart DeLone

Chief Justice Rehnquist: --We'll hear from you.

Mr. DeLone.

Mr. Delone: That's all right, Mr. Chief Justice.

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

The Court should hold that political gerrymandering, if it is justiciable at all, violates the Constitution if and only if the disadvantaged group has been shut out of a political process as a whole.

This is the standard applied by the Court's unconstitutional vote dilution cases, and it is consistent with our system of electing Members of Congress from individual districts.

In a district system such as ours, there are no statewide elections for a slate of candidates.

Rather, individual congressional elections are defined by the unique characteristics of each race.

That is why statewide election results offer no meaningful standard for judging congressional outcomes.

It is also why a proportionality, the idea that some statewide level of support should entitle a political party to capture some specified number of seats, is incompatible with the very idea of districting, and it is why the Court has repeatedly--

Chief Justice Rehnquist: But Mr. DeLone, I... I think our rules say we frown on people simply reading their arguments.

Mr. Delone: --Yes, Your Honor, I'm sorry.

And the point, Your Honor, is that Mr. Smith and appellants' plan will lead the Court to proportionality if... if the Court does not consistently apply the... the vote dilution standard that has... has applied in the past.

And that standard is that you have to be shut out of the political process--

Justice Breyer: Well, the... the... tell... answer... I'll ask you a question and then you will get away from your prepared argument.

Mr. Delone: --Thank you.

Justice Breyer: But the... the... the... in... in my own view, not... not the Court's... in... in my own view in the positive discrimination race cases, I believed--

Mr. Delone: The... the Whitcomb v. Chavis--

Justice Breyer: --The positive discrimination cases, the cases that say you cannot draw a racial district, racial, minority district--

Mr. Delone: --The Shaw Line... the Shaw Line cases?

Justice Breyer: --Yes, correct.

Mr. Delone: Yes, Your Honor.

Justice Breyer: I said you could, I thought that the legislature could do that, primarily because if they could do that in political party cases, why couldn't they do it in race cases where it's meant to help the minority?

Well, I lost that.

So believing what I thought, doesn't the reverse hold true?

If this Court has found manageable standards to use to control positive discrimination in favor of racial minorities for drawing boundaries, then my goodness, why can't it find standards to prevent the Republicans from doing the same thing to the Democrats or the Democrats from doing the same thing to the Republicans?

Mr. Delone: Because, Your Honor, in the Shaw Line of cases, what they were doing is they were trying to isolate race from all other factors, including politics.

Justice Breyer: And in here, we're trying to... to isolate being a Democrat or being a Republican--

Mr. Delone: Yes, Your--

Justice Breyer: --from all other factors, because after all, as Justice Stevens pointed out, they've been able to come up with no explanation other than we did it because they're Democrats.

Mr. Delone: --Well, Your Honor--

Justice Breyer: That's what the word predominate means--

Mr. Delone: --Right.

Justice Breyer: --and you'd insist on that showing--

Mr. Delone: But, but Your--

Justice Breyer: --just as you do insist on the predominant showing in the race case.

Mr. Delone: --But, Your Honor, assuming that to be correct, there's nothing wrong with them saying, we did it just because they're Democrats.

Justice Breyer: Ah, yes, there is, because what's wrong with it is if you carry it to an extreme with computers, you prevent the majority of voters from securing the majority of seats.

And that simple principle that the majority should govern is the basic principle of democracy.

So if you find that in the Constitution, it's just as wrong.

Mr. Delone: Well, I think you have to... you have to look at what majority you're talking about, Your Honor.

If... in a districting system, you're talking about the majority in a particular district at a particular time.

Justice Breyer: Correct.

What we would do is look at the state and we would look to see if in the... we could even give a margin of error.

The party that got 53 percent of the votes ended up with 45 percent of the seats, okay?

Objective, contrary to majority rule, and produced simply by intentional gerrymandering for no other purpose.

Mr. Delone: But, Your Honor, if you're doing that, you're... you're... you're going into proportionality.

You're saying, if you're entitled to a... to a sum--

Justice Breyer: No, no proportionality.

Forget the proportionality.

I agree with you a perfectly random system will produce 100 Republican delegation, so I agree with you about that.

I'm only sticking to the majority rule.

Justice Scalia: Do... do people always vote for a particular candidate because he's a Republican or... or... or she's a Democrat?

Mr. Delone: --Absolutely not, Your Honor, and that--

Justice Scalia: Of course not.

So you can't tell from the Republican votes how many of those are Republican votes and how many of them are, you know, Smith votes or--

Mr. Delone: --Exactly right, Your Honor, and that's why the idea of comparing any sort of statewide vote with the districting votes that you actually have is inconsistent with--

Justice Stevens: --Even if that's true, is it not obvious from the configuration of some of the districts, that those who drafted the districts thought they could predict what they were going to do?

Mr. Delone: --Again, Your Honor, assuming that that's correct, there's nothing wrong with it.

Justice Stevens: Oh, okay.

Mr. Delone: And as far as the... the... what level you come to in a... in a majority/minority consignment, Justice Breyer, I think the way that the Bandemer plurality did it, again, applying what this Court has consistently applied in vote... in the vote dilution cases, by which I mean the Whitcomb v. Chavis line of cases, is to say, all right, let's look at this and see if it's like a diagnostic test, like a threshold.

Have we got a problem here where, over time, and I'm not sure how much time, but over a significant amount of time, it looks like the majority overall is being consigned in some way.

But, once you do that, you must look elsewhere, which is what Rogers says, Whitcomb says, all of the... the vote dilution cases say.

You can't ever look at electoral results alone.

That's never sufficient.

What you must look to is whether or not there's been something else that has caused a self-perpetuating breakdown in the democratic process, because as soon as you... and--

Justice Stevens: Do you agree with your colleague that there is no need for any neutral justification when you're drawing districts?

That it can be done solely for the purpose... granted it be an attempt that might not succeed, nobody knows for sure how people are going to vote, but is it permissible for a legislative body not even to consult... I mean, the majority of a legislative body not even to consult another party, not even to take anything into consideration except trying to get the maximum results at the... the election?

Mr. Delone: --Yes, Your Honor.

That's permissible, and we think that was the whole point of what we call the racial gerrymandering line of cases, that is, the Shaw Line of cases, where they were saying, okay, we have a special category here that relates to race, and what we're trying to do is define the difference between race, which is inherently suspect, and which requires special scrutiny, and politics, which the Court repeatedly said--

Justice Stevens: But if you take that position, then you must be taking the position, I guess you are, that the... the holding in Bandemer that this was a just... justiciable issue is just erroneous?

Mr. Delone: --Your Honor, we think that--

Justice Stevens: That's your basic position?

Mr. Delone: --We certainly think that the Court should take this opportunity to find that... that... that political gerrymandering is non-justiciable.

We think that would be the simplest and the cleanest way to frankly get out of the political thicket.

But... but even if you don't do that, what... what the Bandemer plurality was doing was simply applying what this Court has... has always applied with respect to vote dilution.

And we think it would be kind of strange if the... excuse me, Your Honor.

Justice Stevens: May I ask you this?

Do you think the complaint states a cause of action under Justice Powell's opinion in Bandemer?

Mr. Delone: I heard you ask that before, Your Honor.

Justice Stevens: That's why I thought I'd ask you.

You had fair warning of the question.

Unknown Speaker: [Laughter]

Justice Stevens: Don't tell me you didn't read the opinion.

Mr. Delone: No, no.

Yes, Your Honor, I... I... I think it would, because Justice Powell thought in terms of neutral districting criteria and thought there was some objective reality out there.

And frankly, we don't think there is one, and if you start down the road of electoral results, we submit that--

Justice Stevens: No, no.

He doesn't start down the road of electoral results.

He... he focuses on intent, that it's an intent to use nothing except a non-neutral criterion in drafting the regulations.

And you're suggesting that's permissible.

That would not require counting votes after the election.

Mr. Delone: --With respect to intent, Your Honor, we... we think it... it's... you certainly can assume that there was political intent in a... in a political gerrymander--

Justice Stevens: And nothing else.

Mr. Delone: --It... it certainly could be nothing else, Your Honor.

Justice Scalia: So is this a... an intent of a bare majority or all of them?

What... what... what if--

Mr. Delone: Well, I think you can presume that as... as Justice Ginsburg pointed out, 42 of 98 in the Democratic caucus voted for the plan.

I think you can presume that they were in some way--

Justice Stevens: --You can only... that's a matter of defense.

You can't presume that based on the allegations at the complaint.

Mr. Delone: --No, I... I was trying to address Justice Scalia's question about--

Justice Scalia: I'm trying to get to how you... how you determine intent.

Mr. Delone: --Well, I... I--

Justice Scalia: Or whether it's based on the majority or--

Mr. Delone: --I... I think you can presume that whatever the voting, there was some political motivation, and I think you can presume that the political motivation might be different for different groups, different parties.

And... and frankly, we... we don't... we don't have a problem with the intent--

Justice Scalia: --Belling the cat.

I mean, it's wonderful to use intent.

How do you find intent?

That's... legislative intent is very hard to determine.

Mr. Delone: --And... and... and I think the intent would be... would different.

But it's... you can even assume that it's political--

Justice Stevens: Well, how did you find it in the... in the first racial gerrymandering case?

Didn't you find it partly by looking at the shape of that district in North Carolina?

Mr. Delone: --Yes, Your Honor.

Justice Stevens: Didn't that shift the burden?

Mr. Delone: Yes, Your Honor, you did.

But in the... in the racial gerrymandering cases, you were looking for something that was race-neutral.

Justice Scalia: You were also looking for predominant motive, not what the exclusive motive is, which is the test that Justice Stevens is... is proposing.

Mr. Delone: That... that's correct, Your Honor.

Justice Stevens: The... the exclusive motive just is easier to respond to, because all you got to do is come up with one neutral justification and you use the neutral justifications that the Court identified itself in the racial gerrymandering cases, such as contiguity and compactness and so forth.

Mr. Delone: But again, Your Honor, your... your... the premise of your question is that there's something wrong with political motivation.

Justice Stevens: Correct.

That's exactly right.

No, no, the premise of the... what the question is that there's a duty to govern impartially, and that if you have no duty except partisan advantage, the case is just like saying, we're going to pay the majority legislatures a higher salary than the minority legislatures.

Mr. Delone: Well, Your Honor, I... I think that when you're... when you're dealing with a... a political question like districting, you're... you're... I think no political party worth its salt is going to be... not think it's... it's doing what's in the public interest to give itself as much advantage as possible.

Justice Stevens: It can do that as long as it has some other basis for doing it, and that's history what we did over years and years and years, states have followed an attempt to get compact districts, your neighbors are in the same voting area as you are and so forth, not these fancy designs that are really a recent product of politics.

Mr. Delone: But, Your Honor, in... in all of these traditional districting criteria, they're basically used as tools by the political parties to seek what kind of political advantage they can.

And again, we submit that that is... is... there's nothing wrong with that.

And the question is whether or not you've been shut out of the process, whether something else is happening that suggests that the... the process itself is broken.

And if you--

Justice Ginsburg: For example, what would that be?

Mr. Delone: --Well, Your Honor, it's... it's happened in the past.

It's... it's... it's happened with Reynolds and Baker, and it's happened with--

Justice Souter: But that isn't gerrymandering.

Mr. Delone: --No, it isn't, but it's the kind of breakdown--

Justice Souter: You're saying there's no gerrymandering unless there's something else.

Mr. Delone: --Yes.

Justice Souter: Which is to say there's no such thing as cognizable political gerrymandering, period.

Mr. Delone: I... I think what the Bandemer plurality was trying to do was to leave the door slightly ajar for something that, frankly, in our political system is too resilient to... to allow to happen, but it's conceivable that it could happen.

And frankly, we think that it's strange to try and change the... the standard, which is well established in this Court's jurisprudence, just because the political system doesn't allow it to occur.

And we think that once you go down the road of electoral results, you go down the road of proportionality.

And the... the references that... that appellants' counsel keep making to majorities are statewide majorities, and that is proportionality.

That is a political judgement, and we believe that the Court has properly rejected that and the Court should continue to apply the unconstitutional vote dilution standard and that that... if... if they find that it's justiciable at all, and that the easiest and simplest thing for the Court to do is to find that political gerrymandering is in fact unconstitutional... excuse me, non-justiciable as a matter of law.

Rebuttal of Paul M. Smith

Chief Justice Rehnquist: Thank you, Mr. DeLone.

Mr. Smith, you have two minutes remaining.

Mr. Smith: Thank you, Mr. Chief Justice.

Let me start off by saying I do think that our complaint satisfies the standards of the Powell opinion in... in Bandemer that it alleges that partisan maximization was the sole driving force behind this map.

And indeed, we had the opportunity in the district court, because of the one person, one vote problem, for the state to come in and try to come up with some justification for their line-drawing other than partisan maximization, and the district court found as a fact in that trial that the map jettisoned every criterion that this Court ever identified in Karcher, other than partisan maximization.

Justice Kennedy: I take it the results you're urging on us would require us to supervise local entities, city councils, boards of supervisors--

Mr. Smith: They--

Justice Kennedy: --water districts.

Mr. Smith: --They... they... they as well can violate the constitutional rights of the people who live in those jurisdictions, Your Honor.

And let me just address the... the question of whether it makes sense to wait and see how the elections come out and see whether there is, in fact, this anti-majoritarian effect from the line-drawing.

One of the real practical problems with that is that the lines themselves in a... in an extreme gerrymander like this, can... can effect the statewide aggregate vote totals themselves.

You saw that right here where, in... with the history of votes very evenly divided in a... in a balanced map through the '90s, a court-drawn map.

Suddenly with this gerrymander you had five Republicans running unopposed, you had a number of the Democratic incumbents defeated in the primaries because they squared off--

Justice Breyer: I guess if it were the constitutional rule, the party could adjust and try to run strong candidates, even in overwhelmingly Republican districts.

Mr. Smith: --Well, I suppose that that is in fact the case, but you can't assume that the... the vote totals under a gerrymander are independent of the effects of that.

First of all, if they pair the incumbents, they're just not there to run anymore, and there's a substantial distortion caused by the map.

There was some discussion by Mr. Krill of judicial races as the... the test of... of partisan balance in the map because the... the supposition was that judges, when they run, don't have any great personal magnetism, I guess.

But he didn't mention the... the race that was cited in our reply brief, which... this was 2003... where Mr. Bayer ran as a Democrat, got 52 percent of the votes statewide, and carried six out of the 19 districts.

That is an indication of the basic fundamental packing and cracking that's in the map, and is in fact a form of severe discrimination, making some voters' votes count much more forcefully than others.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Smith The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at 10 o'clock.