Bartlett v. Strickland - Oral Argument

ORAL ARGUMENT OF CHRISTOPHER G. BROWNING, JR. ON BEHALF OF THE PETITIONERS

Chief Justice Roberts: We will hear argument first this morning in Case 07-689, Bartlett v. Strickland.

Mr. Browning.

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

The Voting Rights Act should be interpreted in such a way as to encourage a transition to a society where race no longer matters. In North Carolina, coalition districts have been crucial in moving towards Congress's ultimate goal. Coalition districts bring races together by fostering political alliances across racial lines. As a result they serve to diminish racial polarization over time. Coalition districts help us in reaching the point where race will no longer matter in drawing district lines. These districts bring us one step closer to fulfilling our Nation's moral and ethical obligation to create an integrated society.

Chief Justice Roberts: How can you say that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?

Mr. Browning: Well, Your Honor, Mr. Chief Justice, it will require somewhat an increase in the number of districts that would be drawn, there is no question about that, but that increase is not substantial. But it does cause race to be much less of a factor in the redistricting process. Currently, if a General Assembly has a choice between drawing a coalition district or a majority-minority district, the 50 percent rule that the North Carolina Supreme Court adopted encourages States to draw a majority-minority district, and when you do that it causes race to re- dominate in the process.

Chief Justice Roberts: It seems to me to be a criticism of the majority-minority district approach in the first place.

Mr. Browning: Well, Your Honor, it is a recognition of the fact that coalition districts allow us to move away from majority-minority districts and create districts where races are working together.

Chief Justice Roberts: What about influence districts?

Mr. Browning: Your Honor --

Chief Justice Roberts: Do you move -- you've moved from majority-minority to crossover districts. Should you continue to move to so-called influence districts?

Mr. Browning: Your Honor, the decision in LULAC makes clear that influence districts are not protected under section 2 of the Voting Rights Act.

Justice Kennedy: But under your definition of coalition district, race is the key factor.

Mr. Browning: Your Honor -

Justice Kennedy: And you are telling us if we have a rule that makes race the key factor then race doesn't matter.

Mr. Browning: Your Honor, it is a matter of -- under the Voting Rights Act, Congress has made clear that districts should be drawn to protect minority voting rights. When there are areas of the country where there is racial polarization, districts -- race has to be considered in drawing districts that will give minorities equal opportunity, just as majority --

Justice Kennedy: I thought you were proposing a brave new world of coalition districts.

Mr. Browning: Your Honor, and race --

Justice Kennedy: Based on race.

Mr. Browning: Justice Kennedy, you have to consider race in drawing these districts. There's no question about that. That's the very thing that section of the Voting Rights Act requires us to do. And you do that because there is racial polarization.

Justice Kennedy: What's the authority that says you must consider race in drawing the districts, assuming that you don't have an existing majority -- minority-majority district? What's the -- what authority do you cite for the fact that you must consider race in drawing districts? What do I read to find that?

Mr. Browning: Well, Your Honor, that's certainly the decision in Thornburg v. Gingles. Under

Justice Kennedy: No, that's -- that's a majority -- majority district.

Mr. Browning: Yes, Your Honor. That was a majority district. This Court --

Justice Kennedy: Okay. So then what other case do you have?

Mr. Browning: Your Honor, this Court, of course, has left open the issue of whether the Voting Rights Act would protect minority --

Justice Kennedy: Well, then your statement that you must always consider race in drawing districts is not -- is not supported, or at least it's a new proposition that you are arguing for us here.

Mr. Browning: Your Honor, my point is when you are drawing districts under section 2, of course race has to be considered, but it's considered because the process is not equally open to minorities.

Unfortunately, North Carolina has a long history of discrimination, and that discrimination has resulted in current effects in the voting place. There is racially polarized voting, as has been stipulated to in this case. There has been --

Chief Justice Roberts: Well, I would have thought the possibility of coalition districts would be evidence that the Voting Rights Act has succeeded, rather than evidence that you need to apply it more broadly.

Mr. Browning: Mr. Chief Justice, the coalition districts are certainly evidence that we have made progress towards Congress's ultimate goal under the Voting Rights Act, but we are not there yet. In this district, the expert testimony is that only 15 to 30 percent of whites will vote for a black candidate, and that is still very racially polarized. But coalition districts help us to move away. It -- they help to diminish the amount of racial polarization over time, so that eventually we won't need to be looking at race at all in drawing district lines, but where --

Chief Justice Roberts: Well, I mean, the obvious question when you say 15 to 30 percent is what number of crossover voters would you say demonstrates that you no longer need to consider race in shifting a coalition district?

Mr. Browning: Your Honor, in the Gingles case, this Court stated that it was a district-by- district determination. There's no bright-line rule as to where crossover voting is so great that it doesn't satisfy the third Gingles prong. Here, however, the district was --

Chief Justice Roberts: Of course, it could be 70 percent that don't vote for a particular candidate. At some point you have to conclude that it's based on the candidate rather than on race.

Mr. Browning: Your Honor, at some point that's true, that it would be issues beyond race, but here, the expert report and as stipulated to by Respondents, this voting is racially polarized. There is some crossover voting, but not enough to say that the effects of past discrimination have been eliminated.

That crossover voting is sufficient for this district to work.

Justice Alito: You can't say where -- how much crossover voting would be so large as to make a difference? You can't say where the line is statistically?

Mr. Browning: Your Honor, this Court's, again, decision in Gingles makes clear that that is a district-by-district determination.

Justice Ginsburg: And that -- that has been stipulated here, right, that you meet the third Gingles factor? So it's not at issue in this case, but the point was made that, in one of the cases that you rely on, in Metts, that reliance on crossovers to prove the ability to elect the candidate of a racial minority's choosing undercuts the argument that the majority votes as a bloc against the minority preferred candidates. So there's tension between the crossovers on the one hand and showing that the dominant race votes as a bloc.

Mr. Browning: Justice Ginsburg, I completely agree that, at some point, the crossover voting becomes so great that you no longer have to take into account district lines. Unfortunately --

Justice Alito: If that's the case, then --

Mr. Browning: -- we're not there yet.

Justice Alito: If that's the case, then your test imposes a statistical standard just as your opponent's test does, doesn't it? It's just a different one.

Mr. Browning: Yes, Your Honor. What we're proposing and what we think is required by the text of section 2 is you simply take the existing Gingles factors and you look at the amount of racially polarized voting, and from that you are able to readily calculate the size of the minority group that would be sufficiently large to elect a minority -- a minority candidate.

Justice Alito: Suppose there is 40 percent crossover voting, and that's a little bit -- that's not quite enough for the minority candidate to win.

Mr. Browning: Your Honor, again, whether the third Gingles prong is satisfied obviously is a district-by-district determination. Here, however --

Justice Alito: We can't even say that 40 percent would be sufficient in every instance, that that might be -- you know, that might not be enough?

Mr. Browning: I'm hesitant since this Court has not set a specific limit, and that's, again, an issue that has been stipulated to in this case. The --

Justice Souter: Well, you don't suggest that if there were 40 percent white crossover voting, we would find white bloc voting within the Gingles condition, do you? Do you think that is a serious possibility?

Mr. Browning: No, I think it would be very, very unrealistic that you'd have 40 percent --

Justice Souter: No, but I mean you really do have an answer to Justice Alito's question.

Mr. Browning: Yes, Your Honor.

Chief Justice Roberts: What is the answer? What percentage of crossover voting would make this not actionable under section 2?

Mr. Browning: Again, the third prong is not an aspect of this case.

Chief Justice Roberts: So you don't have an answer to Justice Alito's question? (Laughter.)

Mr. Browning: If you are saying that 40 percent is a very high amount of crossover voting, that, of course, is not our case, where the crossover voting that is necessary to make this coalition district work is 18 percent crossover voting.

Justice Scalia: Do you have racially polarized voting when you have as high a crossover vote as 40 percent? I mean, you say, we apply the normal Gingles factors, but it seems to me 40 percent crossover is fairly high.

Mr. Browning: 40 percent is a high number, and particularly --

Justice Scalia: But you still think that we can confidently say this is racially polarized?

Mr. Browning: Your Honor, here, however, under this case, there's not 40 percent crossover --

Justice Ginsburg: But you're opening yourself to this line of questioning about the third factor, which is conceded by both sides, so it's not in issue. But you are opening it by having a test that looks to the second and third factor and leaves the first factor out of it. I mean, whether you agree with it or not, the 50 percent line is bright if you know what's in and what's out. You don't have any test for the first factor that's comparable, that would give district courts and attorneys some degree of security about how you determine the first factor.

Mr. Browning: Well, Your Honor, as the language the Court used in the De Grandy decision is whether the minority group is sufficiently large to elect a minority-preferred candidate. There are, of course, limiting factors on the side of the coalition district which could be drawn. There are practical limiting factors and there are legal limitations.

The practical limitation, of course, is in North Carolina, given what has happened in past elections, the North Carolina General Assembly appropriately concluded that a minority group of less than 40 percent would simply not work, that it would not be effective to give rise to a minority -- a district in which minorities elect a minority-preferred candidate.

There's also a legal limitation. In the Court's decision in LULAC, the Court made clear that influence districts are not protected by section 2. So as a result, the minority group will by necessity have to control its coalition partner; otherwise it would simply be an influence district. And here at a minority group of 40 percent, the minority group in the area is substantially larger than the crossover voting that is needed to have an ability to elect.

Chief Justice Roberts: Under your theory, it would be possible to challenge a majority-minority district on the ground that you could draw a different coalition district, maybe more than one coalition district. Let's put it that way.

If you could draw a majority-minority district and you could draw two crossover districts, does the Voting Rights Act impose a limit on the choice?

Mr. Browning: Your Honor, our position is that the -- assuming all of the factors under Gingles to be met, that if you have a minority group that was packed in to a -- one district, and in its place two coalition districts could be effectively drawn, and those districts would actually work and you could meet all of the other standards under Gingles -- the district was geographically compact, there is --

Chief Justice Roberts: That's an easy -- I suspect that's a common hypothetical. You could draw a district with 80 percent minority voters or you could have, as you have here, two 40 percent districts. And the Voting Rights Act requires what?

Mr. Browning: In that situation, assuming you could meet all of the Gingles factors, that, yes, that 80 percent district should be drawn as two 40 percent districts.

Justice Souter: Aren't you adopting the principle of maximization?

Mr. Browning: No, Your Honor.

Justice Souter: Let me ask you this, and correct me if I am wrong, because it has been a long time since Gingles came along and I may be forgetting things. But I -- I thought when you are given the alternatives you were just giving, one 80 percent and two 40 percents, that because there is not a principle of maximization there simply is not an abstract or bright-line answer to the question; and that in order to get an answer to the question, you look at all of the other things that districting authorities look to, and you see how they add up, whether we are talking about compactness, congruency with -- with -- with other political lines, and so on. And unless you look to all the other things that reasonably can and should be take into consideration when districting is done, you simply cannot answer the question, should there be two 40's or one 80.

Am I wrong?

Mr. Browning: Well, Justice Souter, certainly the -- the criteria that you have referred to have to be part of the districting process.

Justice Souter: But they weren't part of your answer to the Chief Justice.

Mr. Browning: Well, my point is that when minorities are basically put in an enclave, in a separate district but yet it is possible to draw two districts, two coalition districts, and the other prongs of Gingles have not been met, so that there is not rough proportionality throughout the State, yes, the districting body needs to consider drawing two districts --

Justice Souter: It needs to consider it, but I thought your answer was it needs to do it. Is that your answer?

Mr. Browning: Yes, Your Honor, it would be -- it is our answer that if a district -- if there is not rough proportionality in a State, there is a district that is a super-majority and there is no reason for that super-majority to be in place.

Justice Souter: Okay if there is no reason for the super-majority. My point is that you cannot answer the question in the abstract. And when you start to answer it, as you are doing now, you are going beyond the abstract and you are getting into facts outside the mere choice between two 40's and one 80. And that seems to me to be correct. At least, if it's not correct, you and I are making the same mistake.

Mr. Browning: No, Justice Souter, your point is well taken and I agree that with a hypothetical like that it's very difficult, unless you are actually considering the specific situation of the district.

Justice Scalia: Well, we -- what you propose is going to inject courts into the drawing of districts much more frequently than they -- than they already are injected. The reality is that one of the factors -- you mentioned contiguousness and county lines and so forth, but one of the factors that legislators always take into account is incumbent protection and the incumbent is always going to rather be in an 80 percent district than in a so-called 40 percent coalition district.

I think you are unrealistic to expect State legislatures to draw districts that way, where everybody will have a chance. The whole object of it is that nobody will have a chance, just the incumbents. That's what is going on.

Mr. Browning: Your Honor, I think what Congress has required courts to do is to look at the overall picture of the district. The Congress, in connection with the section 2 of the Voting Rights Act, used very broad language, phrases like "totality of circumstances" and "opportunity to participate and elect." So clearly, Congress intended for a broad approach to be taken and a functional one.

Justice Scalia: Well, that's fine, but you just can't wave a magic wand. It -- Congress also intended primarily to leave it up to the legislatures under guidelines, to be sure. And when you have a choice of one 80 percent or two or even three 40 percent, it's clear to me what the legislature is going to -- going to choose.

Mr. Browning: Well, Your Honor, and that's the very point of the section 2 of the Voting Rights Act, is when minorities do not have equal opportunity to elect their candidate of choice, where they are packed in to districts --

Justice Scalia: We will be injected into this very political game much more frequently than we now are. I have always regarded the 50 percent Gingles thing as simply a self-protection prescription for the courts, where you can look, you can be clear and say, you know, close enough for government work.

But if you want us to figure out whether there could be three districts, two districts instead of just one district, you are just, it seems to me, tossing the whole -- the whole project of drawing districts into the courts. And that is -- that is not something that I, for one, favor.

Justice Stevens: In this case which way does the presumption favoring what the legislature did cut? Here the court set aside what the legislature did; is that not right?

Mr. Browning: Yes, Your Honor, the North Carolina Supreme Court determined that this district should not cut county lines. Ironically, that county line was a county line that was originally created to segregate blacks in Wilmington, in the southern portion of the county, from whites in the northern portion of the county.

So that original discriminatory act is now being used to keep a district from -- from being a place that is a district that has a proven ability to elect a minority --

Justice Kennedy: That's something new. I thought we took the case -- at least I have been thinking about the case -- on the assumption that there is a valid State law that is being superseded. Now, if you are questioning the validity of the State law, that's something -- that hasn't been raised here, has it?

Mr. Browning: Your Honor, the government has asserted that there should be a near-50 percent test which includes as part of it a -- either the district is close to 50 percent or there is an element of discrimination.

Justice Kennedy: I'm talking about, you're indicating to us that the county line standard that the State court invoked as a matter of State law is itself questionable because it was based on a prohibited racial animus. And I -- I indicated that that's very new to me. I thought we were taking the case on the proposition that the county line rule is a neutral, valid State law principle.

Now, it may or may not be superseded by the -- by the requirement of section 2. That's what we are arguing about. But this is the first time I have heard that we have to somehow question the underlying State rule under the Fourteenth Amendment.

I thought we took the case on the assumption that the State rule is valid.

Mr. Browning: Justice Kennedy, the decision of the North Carolina Supreme Court is to adopt an inflexible 50 percent rule. That -- that was the issue that was resolved on summary judgment by the --

Justice Kennedy: I'm talking about the county line rule.

Mr. Browning: Yes, Your Honor, that the county line rule -- the North Carolina Supreme Court concluded that this district could not cut county lines because this should not be treated as a section 2 district.

Chief Justice Roberts: We are fighting over -- the district that you want to draw, the crossover district, would have 39 percent African-American voters. The district that complied with State law of the county line would have 35 percent.

Where the assumption is that you have a significant degree of crossover voting, is that really a difference worth changing the Voting Rights Act jurisprudence for?

Mr. Browning: Your Honor, the plaintiffs have and the Respondent and the government have referred to an alternative district that would not cut those county lines and would have a black voting age population of 35 percent. The problem with that is there is absolutely no testimony that that -- their alternative district would be in any way workable. As a matter of fact, the undisputed testimony of the joint appendix at page 73-74 is to the contrary.

Chief Justice Roberts: What do you mean by "workable"?

Mr. Browning: That this -- that the district they propose was simply prepared by their attorney, looking at a map. There is absolutely no testimony that this would be an effective minority district, that there would be an equal opportunity for minorities --

Chief Justice Roberts: Because it's 4 percent less than the district you propose?

Mr. Browning: Well, it is a matter of the percentage of voting age population, but more importantly, the district they drew would have put a black incumbent, a black Democrat incumbent, in the same district with a white Republican incumbent. If they were serious about --

Chief Justice Roberts: So it gets back to the Justice Scalia's point --

Mr. Browning: Yes.

Chief Justice Roberts: -- that this is designed to protect incumbents.

Mr. Browning: Well, Your Honor, incumbency certainly has to be considered in the context of what the Voting Rights Act requires us to do, which is to look at the total picture. Is it a functional approach? It is a matter of looking -- undertaking a searching evaluation of the past and present political realities.

Justice Ginsburg: Mr. Browning, I thought there was something in the record that said never in North Carolina's history have you had African Americans able to choose the -- able to elect the candidate of their choice where the minority population was less than 38.37 percent.

Mr. Browning: Justice Ginsburg, there are districts such as Wake County, the seat of government, where a minority has been elected with less than 38 percent. But in areas of the State where there is highly racially polarized voting, 38 percent roughly is the effective floor that the General Assembly recognized as being workable for creating a district such as this.

I will also note that this issue was not presented to the North Carolina Supreme Court, the issue of whether there is an alternative district that would somehow be feasible and workable.

Justice Ginsburg: Well, does that mean a proposal if you succeed, we should remand on that question?

Mr. Browning: Your Honor, that would certainly be one possibility, but the North Carolina Supreme Court resolved this straight legal question as to whether the 50 percent rule is in place and is an -- is an inflexible rule, and not only did they -- they imposed this rule with respect to this district, they essentially had a mandatory injunction on the North Carolina General Assembly to never draw a district at less than 50 percent if it cuts too many county lines; and that is even inconsistent with the United States' view of section 2. For that reason, alone the decision should be reversed.

If there are no other questions I would like to reserve the remainder of my time for rebuttal.

ORAL ARGUMENT OF CARL W. THURMAN, III, ON BEHALF OF THE RESPONDENTS

Chief Justice Roberts: Thank you, Mr.

Browning.

Mr. Thurman.

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

The rule proposed by Petitioners in this case would effectively require maximization resulting in, as the Court has recognized, judicial involvement in many, many more situations.

Justice Souter: I don't know why it would require maximization. It would -- it would certainly open the door to -- to more districts required by section 2 than if we have a 50 percent rule. But I -- I think your brother conceded that when -- when you draw a district, you are bound by our case law as well as tradition to look to something more than maximization, and maximization is in fact not the law. So I don't see why it would be required.

Mr. Thurman: Your Honor, in this situation, we take the position that the people of North Carolina and their ultimate authority, their State Constitution, have spoken and said that county lines should be kept whole to the extent practical. And the State's position is the legislators disregarded that and, based on the cases, based on LULAC, at 25 percent --

Justice Souter: What's that got to do with maximization?

Mr. Thurman: Well, Your Honor, that would be the position they would take of every district that could be drawn regardless of the --

Justice Souter: There is no question that if they are -- if they win this case, I think there is no question there will be more claims requiring -- or potentially more claims requiring adjustment of lines based on avoiding section 2 violation. I would almost think that was common ground. But that is a different thing from saying that the result of those claims is going to be a required maximization. And that's -- that's the only point that I -- that I meant to pick -- pick up on.

Mr. Thurman: Your Honor, it seems that if there are going to be more potential claims, and as every legislative body, school board, city council, whatever it is, has to follow section 2, they will have to take this into account. They will be facing potential claims and they will have to run the risk of do we look to try to maximize a district that might not otherwise be required, that might violate a neutral criteria --

Justice Souter: You are saying they will tend to maximization in order to avoid litigation.

Mr. Thurman: Your Honor, I think that is absolutely true.

Justice Souter: Okay.

Chief Justice Roberts: Why in the -- why in the world would you stipulate to bloc voting in a situation where you have nearly 20 percent crossover voting?

Mr. Thurman: Your Honor, the answer to that question is we were 20 months into the litigation, we had just received a partial ruling on cross motions for summary judgment, we were already at the midpoint of the decade. If this Court should affirm the North Carolina Supreme Court, my client will have one election in which they have a district that complies with the North Carolina Constitution. We quite simply wanted to move the case along.

Chief Justice Roberts: Well, but it seems to me you have complicated situations on a rather critical point, what seems to me a basic conundrum, how can you have bloc voting and at the same time have significant crossover voting? You take one of those off the table, it's kind of hard to address the basic issue in the case.

Mr. Thurman: I agree, Your Honor. The other point that I would point out is, it is not a stipulation that there was sufficient bloc voting within either of the districts that were drawn. The stipulation was with reference to bloc voting within the two counties. The district that could be drawn -- there is no stipulation that the alternative district does not comply and would -- and therefore would require the creation of the 39 percent district.

Justice Souter: Well, since the district is drawn from the counties and there's a stipulation with respect to the counties, doesn't it follow in the absence of some surprising fact that there would be bloc voting or the stipulation would cover bloc voting in the district?

Mr. Thurman: Your Honor, there are very different populations in these two counties, and that is referenced in the record with regards to the growth in population; and there is very different minority populations in the two counties because of the influx --

Justice Souter: But regardless, regardless of the -- the variations in mix, if you are stipulating that there's bloc voting in county A, bloc voting in county B, and you have got a district made up part of A, part of B, doesn't it follow in -- in the absence of some pretty specific evidence to the contrary, that in the district there is probably going to be bloc voting?

Mr. Thurman: Your Honor, I would respectfully submit that it does not follow within a particular section of a district. I think we all --

Justice Souter: Do you have evidence in the record -- did you put evidence in the record that this particular district is carved from some peculiar section of county A and county B, so that the general bloc voting pattern does not apply in the district?

Mr. Thurman: Your Honor, there is evidence in the record, and it is cited in the brief, that minority candidates, black candidates for judicial office and for State auditor received between 59 percent and 62 percent of the vote in the proposed district. We would respectfully submit that that comprises evidence that there is not sufficient bloc voting.

Justice Souter: Well --

Justice Ginsburg: But you stipulated. You didn't want to argue the third factor. You wanted -- you just started out by saying you were tired of this litigation, we wanted to concentrate on one issue and one issue only, and that was the 50 percent rule. And now you are suggesting that, well, no, the stipulation really didn't stipulate away the third factor. I thought you were giving in on that issue so that you could get the first issue decided.

Mr. Thurman: Your Honor, we did make a stipulation that there was evidence sufficient to support a finding and that we would stand by. There was evidence they had an expert who was willing to so testify. I was responding to Justice Souter's question of was there was evidence in the record to support the contention that there might not be bloc voting within the alternative district, and that was -- that meant that black candidates can receive in excess of 60 percent of the vote in the 35 percent district.

Justice Souter: But just help me on the facts, because I may have misunderstood the facts.

You're saying you did not stipulate that there was bloc voting; you stipulated that there was sufficient evidence for a factfinder to find that there was bloc voting. Is that your position?

Mr. Thurman: Your Honor, on page 130a of the -- I believe this is their submission, the --

Justice Scalia: I'm sorry, what -- what's the color of the brief -- of the cover on this? Is it the brown one or the white one?

Mr. Thurman: I believe this is the white one, Your Honor.

Justice Souter: Okay, and you're at 130?

Justice Scalia: 130a?

Mr. Thurman: Yes, Your Honor.

Justice Souter: Yes.

Mr. Thurman: And it starts out that, in terms of the bloc voting, between the -- and the evidence presented by the defendant is sufficient to support a finding of fact that the racial difference in the presence of those results in the white majority voting is sufficient as a bloc to defeat the minority's preferred candidate. And, again, that comes down to -- the court that it was Pender and New Hanover County that started the action on 29a, and that was the stipulation.

And --

Justice Souter: But what do you make of the -- the beginning of the next paragraph? "Plaintiffs hereby advise the court that they do not wish to be heard further or to present evidence regarding the remaining issues." Doesn't -- I'm not sure what that's getting at, but when I looked at it, I thought it meant that the stipulation can control, i.e., it may be found without objection that there is bloc voting or assumed without objection that there is bloc voting.

Mr. Thurman: Your Honor --

Justice Souter: If you don't wish to present evidence.

Mr. Thurman: Your Honor, first of all, we were not stipulating that it did exist. We stipulated that it was in evidence, that the court defined --

Justice Souter: Yes, I realize, but when you then say "And we don't wish to present any evidence on it," it sounds to me as though you are conceding the issue.

Mr. Thurman: Your Honor, we do -- we let it stand on its own, we not wish to be heard further, we do not wish to take additional time on that, given the circumstances of the case.

The other factor that I think is perhaps most important in considering this is touched on briefly earlier. Section 2 clearly applies to all jurisdictions. And without the guidance of the 50 percent rule, the bodies that are drafting are left with an uncertain standard and a standard -- in this case, so far as we know, the State had retroactive -- this Court -- had been used previously, are every local government body requires paying such an expert to proceed simply to redistrict? That, if you don't have a clear rule to follow, presents a problem for the many government bodies that have to redistrict on a regular basis.

Justice Ginsburg: What was wrong with the clear rule that Justice Souter suggested in the LULAC case?

Mr. Thurman: I'm sorry, ma'am.

Justice Ginsburg: Justice Souter, in his opinion in the LULAC case --

Mr. Thurman: Yes, Your Honor.

Justice Ginsburg: -- he suggested what he called a hard-edged -- a clear, hard-edged rule which is not going to be an exclusive rule, but, anyway, if you met that standard, you're okay.

Mr. Thurman: Your Honor, I certainly am not criticizing the rule proposed by Justice Souter, but --

Justice Souter: It's okay.

(Laughter.)

Mr. Thurman: Your Honor, I think -- the perspective -- and I can't help -- that it is not as clear-edged as it seemed to the Court, at least to Justice Souter, that the 50 percent rule does provide a very clear, very limited sort of a rule that can be followed without getting involved in -- I do believe that -- race becomes very likely the predominant factor in the redistricting decision, because based on the cases that have come before you already, there have been claims that 26 percent, 25 percent --

Justice Breyer: I don't see how those claims could possibly succeed, but I thought -- let's go back to sort of step 1. My mind turns a little confused when I start thinking of these cases. Are we talking about a case of -- where the claim is normally vote dilution? Is that yes or no?

Mr. Thurman: Yes, Your Honor.

Justice Breyer: Section 2 -- does vote dilution mean we who are a minority group, let's say a black group, could have elected a candidate of our choice more likely than the white group, but because you are engaged in vote dilution, that isn't going to happen anymore? Is that the form of the claim?

Mr. Thurman: Yes, Your Honor, that is --

Justice Breyer: That's the form of the claim.

Then, it's our problem here that to see whether that's so, you have to see whether the black group did really vote as a group. Did they used to have a good chance to elect the person they want, and does the white group tend to also vote as a group and swamp them? Is that what we are trying to find out?

Mr. Thurman: Your Honor, I'm not sure that is entirely what we are trying to find out, because certainly districts are created where there was no minority incumbent, and that can happen because of changes in demographics or a variety --

Justice Breyer: There are a lot of reasons that can happen. But is the evil we are trying to get at, the evil of a black group, when they stick together in polarized voting, having less of a chance of getting their candidate elected than when the white group does the same?

Mr. Thurman: Your Honor, I believe the answer is, yes, we are trying to prevent that from happening.

Justice Breyer: That's what we are trying to prevent? Okay. If that's what we are trying to prevent, then haven't we learned that putting a threshold, because you can't even get in the door -- you can't even get in the door -- unless the black group accounted for 50 percent of something, the voters or the people who turn out, that that doesn't make much sense for the reason that Justice Scalia started with. It doesn't make much sense because sometimes they account for 51 percent, but they can't elect anybody, because they all divide on four different people, or maybe they didn't turn out. On the other hand, sometimes if they account for 43 percent, they could elect the candidate of their choice. So it looks as if that 50 percent is pretty arbitrary and we're looking for a better criterion. Is there anything wrong with what I've said so far?

Mr. Thurman: Respectfully, Your Honor, I believe there is, because you said you look to see if there is vote dilution. Well, there needs to be something to measure that by. Section 5 is about retrogression.

Justice Breyer: Here what we've -- could we look to see whether the three Gingles factors, whatever they are -- one was, is the black group numerous enough to elect the candidates of their choice? Reasonably compact, politically cohesive? And then you look to see, does the white group tend to vote as a bloc to stop them?

Mr. Thurman: Yes, Your Honor.

Justice Breyer: That's what we should do?

Mr. Thurman: Your Honor --

Justice Breyer: Then I'm back to my problem, that sometimes the 50 percent criteria just doesn't measure that first part. And so you say, well, any other matter would be worse, but I bet we could invent some that were actually better. Suppose you wouldn't have to go to 20 percent; suppose, for example, you started looking in the 40 percents, and you said, you know, if the black group is going to elect their candidate with 40 percent, or 45 percent even, they're going to need a lot of crossovers, because they may only vote -- you know, only 80 percent may turn out. They are going to need a lot of crossovers. And the more crossovers you have to have, the harder it is to say that that white group is out there trying to beat them.

So there's a kind of natural stopping place.

When I worked out the numbers, it seemed that natural stopping place fell around 42-43 percent. It sort of fell -- as you said, that the black group -- you insist that the black group had to be twice as many as the white group that crossed over. A little arbitrary, but at least we were getting to the same -- to the right thing. I mean -- respond as you wish.

Mr. Thurman: Thank you, Your Honor. It may take me a second to take it all in. It seems to me that the reason the 50 percent rule does work is, at 50 percent, there is a claim that there is the opportunity and there is voter registration, voter turnout, a lot of factors that can influence at that point, but that doesn't prevent there from being opportunity. That's the choice of whatever group is involved. You start dropping below 50 percent, and then they're not being denied an equal opportunity. They have the same opportunity any other group does. This would require trying to -- because what -- basically the Petitioner's position is -- the State in its -- position is, it takes a minority group, and then you find presumably another majority group that shares political and partisan goals with them, and you combine those two together. So you look not only to the race of one group -- that predominates first. Then you go find like-minded members of the majority group to join with them. And so that is what is being required. At that point you are not talking about them being treated less equal than anyone else.

Justice Stevens: Mr. Thurman, can I ask you this question? It seems to me that a rigid 51 percent rule assumes that the minority communities throughout the country are all alike, and that there is enough variety in every district and every part of the country where we have this problem. There are variations.

Maybe 51 percent would not be enough. The minority group might, itself, be divided as is often the case.

I -- I think the underlying premise -- the underlying -- the premise underlying your argument is that all minorities are exactly alike. That's why we can have this mathematical figure, and that answers the question.

Mr. Thurman: Your Honor, I categorically reject that as a human-rights basis for our argument.

That is handled by the third Gingles prong and the second Gingles prong. And when you look at what the coalition is, what it is, and you look at how politically cohesive it is. So it could be that 50 percent is arguably not enough under the second Gingles provision.

But that until you get to 50 percent, you are -- again, it is the way it has been described as a gate-keeping function for us to keep the Court out of it. And it is going to -- if this happens, you start looking at combining a combination of race or other minority status and partisan politics and combining them together for the purpose of electing particular candidates. And I do not believe it's ever been something that this Court has endorsed for the purpose of the Voting Rights Act. And if that is the position it takes, it starts to run into the issue: Is such supportable under the Solomon case, under equal protection?

Justice Ginsburg: What -- what Justice Breyer proposed a rule at the end of his question. He said: Suppose you make it, the threshold, instead of 50 percent, it would be twice as many in the African-American population as in the crossover group.

That would be the threshold.

Mr. Thurman: But, Your Honor, first, I believe as he said, as Justice Breyer said, that's an arbitrary number that he picked up on, the 50 percent.

The reason we would submit that is not simply an arbitrary number is that it does deal with them. At that point there is an opportunity, regardless of whether there is the -- what it certainly does not exist --

Justice Souter: But -- but you are saying it's an opportunity, and what you mean is it is sufficient to provide an opportunity. And Justice Breyer's question is: Isn't the two-to-one ratio something that we should consider as also being sufficient to provide an opportunity?

Mr. Thurman: Your Honor, I would say that that would not be appropriate, because at that point you are looking on -- at the basis of race to give one group a greater opportunity than another, and the Voting Rights Act is the one group being given less opportunity than another. And so if you are hinting to draw a district that bases itself on race, that attempts to give one group --

Justice Souter: Well, it's -- it's a greater opportunity than -- than would be given to them in -- in the district or a pair of districts that splits the minority population in half. But how is it in some abstract sense a greater opportunity?

Mr. Thurman: Your Honor --

Justice Souter: The opportunities are -- are measured on the ground, not in the abstract.

Mr. Thurman: Your Honor, my answer to that would be that the -- what would be proposed is it is required. It is no longer left up to the legislature to decide whether that is appropriate. And that since it is a requirement, that is not part of the political process; and it goes to whether that is -- they are no longer looking to what they have left, but whether they are, in fact, given more.

ORAL ARGUMENT OF DARYL JOSEFFER ON BEHALF OF THE UNITED STATES, AS AMICUS CURAE, SUPPORTING THE RESPONDENTS

Chief Justice Roberts: Thank you, counsel.

Mr. Joseffer?

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

Petitioner has proposed expansion of section 2's traditional coverage because of three serious problems. The first is to provide State and local legislatures, as well as the courts, with a baseline against which to when a section 2 District must be drawn in the first place, when to engage in this race- conscious exercise in the first place.

Second, it raises the serious Constitutional concerns identified in LULAC, especially because it combines not only racial gerrymandering but with political-party gerrymandering all at the same time.

And third, it requires difficult predictive judgments about how people would react, how people would vote in a future proposed district, something that is not required under the traditional Gingles analysis.

And these problems would exist nationwide because section 2 applies to every districting done in every jurisdiction and every -- nationwide, be it a county, city, or locality or down to the school-board or city-council level.

Now, under the first of those points, under the traditional Gingles test, the scope of consideration of race and other things, as well as the majority limit of the districts -- and that provides an -- an easy focal point that anyone drawing a district knows.

Justice Ginsburg: I thought you were conceding that it isn't a rigid rule, and that the North Carolina Supreme Court should have to be -- I mean they could be 48 percent, I think you said.

Mr. Joseffer: We have identified two narrow exceptions, neither of which the Court really needs to reach in this case. The first is an inference of intentional discrimination. And the important thing there is, first, that's academic. Because if you can prove intentional discrimination, you can proceed with a constitutional claim under section 2 and not add anything anyway.

Justice Kennedy: Intentional by those who draw the district?

Mr. Joseffer: Yes, exactly. And there -- the point here is because it's not an actualization statute, one needs a baseline to determine if there is the denial of an equal opportunity to elect. And if, in fact, what the people drawing the district were trying to do was to deprive the minority group of that opportunity, that is a perfectly good alternative baseline.

Our other proposed narrow exception, which also is not even close to being implicated here, is basically an evidentiary one: That there are those cases where, when you are trying to figure out whether the majority population is above 50 percent, you may not be sure because these are estimates. They are very reliable, but we would impose about a two percent cushion there to adjust -- to account for the possibility that if there is that much evidentiary uncertainty, it makes sense to have a -- for purposes of that test. However --

Justice Souter: I don't know if you litigate whether you are -- whether you are really talking about a -- a possible two percent variation. So that I mean, I -- I think you have to concede under your -- under your test that there's going to be more litigation. There is going to be more claims than there are under a 50 percent rule.

Mr. Joseffer: Well, because -- I say actually the opposite because -- well, I think that trying to determine 48percent raises no more difficulty than trying to determine 50 percent.

Justice Souter: Except that you have a better chance so you are more likely to do it.

Mr. Joseffer: There is -- there is a slight narrowing of the -- of the --

Justice Souter: Two percent is pretty big in an election.

Mr. Joseffer: Well, in -- in practice -- I mean, remember, the majority-minority rule has been followed in almost every jurisdiction nationwide for more than two decades, and so far I have seen one 48 percent case. There may have been others, but there -- there don't seem to have been very many.

Justice Breyer: If you want an absolute, arbitrary rule, which is what you were heading toward which will just -- - the question is whether they get in the door. If they are in the door, they have to prove the three factors. And you want to keep certain people out.

Okay. Suppose you say, well, 42 percent.

That gives you down to 40, with your two back, instead of 50. But you are out anyway if the crossover vote from the white majority is more than half of what the whole vote is with the black and white together on that side. So you have a two-to-one ratio.

Now, the only virtue of that is that there was an effort to try to get an arbitrary rule, which you have with your 50 percent, even -- only a little bit more difficult than that to -- to administer, and is likely to get in more cases that are justified. But they still have to prove their three factors.

Mr. Joseffer: Well, there -- there are a couple of things. The first is that, textually speaking, what the statute refers to is an equal opportunity to elect the -- the representative of their choice. And at least the most principal blind is the majority-minority rule. Because if you have by yourselves the majority of the electorate, you have at least in theory the opportunity to elect the representative of your choice. When you go beyond that, there really is at that point --

Justice Breyer: It takes into account the realistic fact that in every group, including lots of African-American groups, there is -- it is not 100 percent African American at all. There are -- there are a few others who will come along, and -- and that's still the candidate of that community's choice.

Mr. Joseffer: Right. But that's --

Justice Breyer: So we want -- a little flexibility here is all that I'm suggesting.

Mr. Joseffer: Yes. The problem is once you go below what is at least in principle a 50 percent line, it's not clear where -- where one would ever stop.

And under your approach, I think two exceptions: One, you definitely open the door down to potentially below 42, especially -- in this case, especially --

Justice Breyer: You can't get below 42.

I'm not going to get below 40 no matter what, even with your thumb on the scale.

Mr. Joseffer: I mean --

Justice Breyer: They are -- they are finished at 40, and they are not even in at 40, if they have to depend more than two-to-one on the crossovers.

Mr. Joseffer: One problem with what you are looking for is a principle rule that can be justified.

I understand 50, and I understand the slight evidentiary cushion. Forty-two really does -- from what you're trying to determine is now the equal opportunity to be coming out of nowhere.

The other advantage the 50 percent rule has is the advantages of incumbency. In effect, it has been a case that has been litigated for more than two decades. And that has shown that, first, that it's workable; and second, that it does not appear to have left some gaping hole of section 2's coverage. If it had, Congress likely would have -- statute over the past two decades.

And the other thing -- I'm sorry.

Justice Kennedy: I won -- I'd hoped that you could have a brief time to discuss your third rationale because it's going to require determination of how people would vote.

Mr. Joseffer: Under Gingles one typically looks at what actually happened in the past. The third Gingles factor looks, for example, looks to whether white bloc voting in actual elections has generally been sufficient to prevent the election of minority group's candidate of choice in the past. So, it's a straightforward historic-based inquiry.

Here, however, the state or local legislature at the outset looking to trade a new district based on the prediction that it will elect the minority group's candidate of choice.

So, as a practical matter, you start with the racial makeup of some people and the political partisanship of others. But you can't stop there, because you have to predict turnout by each group, crossover voting by each group.

As a practical matter, those things will vary based on who the candidates are, whether there is an incumbent, whether the incumbent is the minority group's candidate of choice. And especially in local elections, the -- may not even be available, which was a point that was made in the topside amicus brief filed by the Lawyers' Committee for Civil Rights, the NAACP Legal Defense Fund and others.

If I could turn to the Constitutional -- point. In that perspective, this proposal is really the worst of all worlds, because the way you construct a district is to take some people based on race, others based on political party affiliation, and the race can't dominate and the majority of courts have also held purely partisan gerrymandering, at least -- aside is also unconstitutional.

But this is both. What you have is nationwide in every jurisdiction, every districting a mandate that requires consideration for both race and partisanship that goes far beyond what has traditionally been required under section 2 and I suspected far beyond what normally happens at the local level.

Chief Justice Roberts: Do you have a view on how we should approach the stipulation adopted below?

Mr. Joseffer: I think the easy way to cut through is that a state Supreme Court respond and remand all arguments other than the first Gingles factor. So, the first Gingles factor, based on what happened in the state Supreme Court is the only thing that is before the Court.

What would remain potentially unremand is if this Court were to would ban the traditional understanding of the first Gingles factor and impose a new understanding. Then the adjudication of that might be open on remand. But Respondents have remanded everything else in the state Supreme Court.

Finally, I also can't help but mention that there is a great irony here in that Petitioners' essential position is that back when race relations were worse and back when there's much more racial bloc voting, minority-majority districts worked okay.

But now that race relations have improved and there is much more crossover voting, we should now require greater consideration of race as well as partisanship than had ever been done before under the same unamended statute.

And if I could turn -- Justice's -- at the outset, a state or local legislature as well as the court really doesn't know where to start. State and local legislatures are the ones who are supposed to be drawing these lines. That means they need to be clear administrable rules to follow. And the simpler they are, the better the chance we will have to do it, and if they can figure it out at the outset, the less consideration of race and partisanship becomes necessary.

And the 50 percent rule, as a practical matter, has worked for a couple of decades in this respect. And if one goes beyond that, there is also no principle stopping point. Here's 39 percent, which doesn't seem close to me or under Justice Breyer's rationale --

Justice Stevens: You mention how well it worked. Did you see the graphs -- one of Amicus briefs have the graph showing what the 50 percent rule did for one gerrymander and how the lesser percentage worked out -- remember which were much more -- not using the 50 percent rule produced much more compact districts?

Mr. Joseffer: There are two things about the graphs. The first is that less compact maps -- those were the districts that would determine the unconstitutional.

Justice Stevens: But they were designed to produce 50 percent, and that's why they got so -- so -- so grotesque.

Mr. Joseffer: Right. Another thing there seems to be a common misconception that our view of section 2 prohibits the drafting of crossover districts, which is not case of all.

The question here is what if it is required.

If a district -- if a jurisdiction wants to draw a crossover district, then at least in principle nothing is stopping it from doing so. However, if what you were to do was require the drawing these crossover districts, that could create some funny maps of its own, because if you have to reach out to grab jurisdiction wide, look at every significant pocket of minority voters, look at whatever you could put together that would vote alike, which as a practical matter is the same political party, then you are going to be requiring the same dynamics that led to those very strange maps in the -- in the first place.

REBUTTAL ARGUMENT OF CHRISTOPHER G. BROWNING ON BEHALF OF THE PETITIONERS

Chief Justice Roberts: Thank you Mr.

Joseffer.

Mr. Browning, you have four minutes remaining.

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

Let me start first of all with Justice Breyer's question about the arbitrary nature of the 50 percent rule. The 50 percent rule, let there be no doubt, is extremely arbitrary, even under the government's 2 percent cushion.

What would happen is you have a district that is 40 percent -- 46 percent African American, that district could be freely carved off into two districts of 23 percent each, neither of which would provide an equal opportunity to elect. Even when you are in a situation like this case, where the district is actually functioning and has a proven ability to elect a minority preferred candidate. Moreover --

Justice Alito: Wouldn't Justice Breyer's 40 percent rule be just as arbitrary?

Mr. Browning: Justice Alito, it is important to recognize that there are significant districts that are out there that would not be protected under the 50 percent rule. And I understand the Court's desire to have some sort of limitation on the size of the district. We believe it is already in there, in place as a result of the LULAC decision.

It's in place because in North Carolina, as a practical matter, you can't go much below 40 percent and have a district that will actually work.

Justice Ginsburg: But this -- but yours is below? Just slightly below.

Mr. Browning: The voting age population is 39.36 percent based upon the census data. The government wants to use a 2 percent cushion as their threshold. But there is some significant problems with that, because when you look at the overcount of white voters, the Census Bureau recognizes the lower count is basically 2 percent there in and of itself, then there are some undercounted black voters is a 1 percent undercount. So even a 48 percent doesn't even get anywhere close.

Moreover, you have districts where there are a number of eligible -- number of people that are counted in the census that are not truly eligible to vote. That is reflected in the brief by the States at page 28 in footnote 2. The States make the point that there are many districts where we have military bases, we have colleges that cause this to be an extremely arbitrary rule.

And in North Carolina there are districts where once you remove the military base where most of the population will not be voting in that district, there is a shift of even 12 percent in the minority voting age population increasing by 12 percent once you just remove the military bases from the equation.

Justice Breyer: The rule I suggested, though there are arbitrary aspects is a better targeted, more administrable -- or equally administrable or not much worse administrable arbitrary rule.

Mr. Browning: Justice Breyer, in our view the rule that should be applied is consistent with the rule of LULAC, that the minority group is substantially larger than its coalition partner.

Here the minority group is 39.36 percent African American. It only requires an additional roughly 11 percent white crossover voting. So the white crossover voting that is needed is only a third of the size of the minority group.

Justice Breyer: There must be somebody there to get you over 50 percent.

Mr. Browning: I'm sorry?

Justice Breyer: Thirty-three plus 11 is 44.

So where does the rest come from?

Mr. Browning: Your Honor, this district is 39.36 percent African American.

Justice Breyer: That's 40, and then -- oh, I see, 39 plus 11.

Mr. Browning: And you need 11 percent crossover voting, 11 percent of the electorate --

Justice Breyer: If they vote cohesively.

Mr. Browning: Yes, Your Honor. Here the minority group, the expert's testimony is that they do vote cohesively.

Chief Justice Roberts: But it's a necessary predicate to his very question that the majority group, the white group does not vote cohesively. Under your hypothetical at least 11 percent have to swing over.

Mr. Browning: The -- the white vote does not vote 100 percent cohesively. But it is still at such high levels, there is only a limited amount of crossover voting. It is still very racially polarized.

And if district lines are not taken into account, the -- the votes of black voters in the district will be drowned out by the white voters that are voting against that minority candidate simply because that candidate is a minority.

There is some crossover voting, but not enough to make the -- for us to lose on the third Gingles prong.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

(Whereupon, at 11:07 a.m., the case in the above-entitled matter was submitted.)