Cases by Issue - Reapportionment

The Texas legislature passed a new congressional districting map in 2003 for only one reason, maximizing the number of Republicans who would represent the State of Texas in Congress.

Even though the existing lawful map already had 20 of 32 districts which strongly favored the Republicans, lawmakers went to extraordinary lengths to lock in control of 22 districts, moving around 8 million people into new districts, abandoning concerns about compactness, wherever necessary, and most importantly, segregating the population by race and by politics into 32 districts which are extremely noncompetitive.

Chief Justice Roberts: So your... your statement that it was for one reason only means it wasn't for any discriminatory reason on the grounds of race or ethnicity?

Mr. Smith: Your Honor, the finding of the district court, which we're relying on here, was that it was purely for discrimination based on partisanship rather than on the basis of race.

Now, they started out by trying to engineer the defeat in the... in the legislative process, engineer the defeat of the six Democratic Congressmen who had managed to be elected in Republican leaning districts because they were moderate to conservative and they were, as the district court put it, able to appeal to voters to split their tickets and vote for them in 2002.

By the end of the legislative process, they went further and decided to take the risk of eliminating one of only four districts in the State in which African Americans had an opportunity to elect candidates of their choice and also to eliminate one of the Hispanic opportunity districts in south Texas.

Now, in the latter case, they did try to replace that with another Hispanic opportunity district, but that was the one that we've called the land bridge district, District 25, which spans 300 miles, linking up urban concentrations of Latinos in Austin and in McAllen down on the Mexican border.

Justice Scalia: You think that's no good.

Mr. Smith: Your Honor, we--

Justice Scalia: Not... not even to prevent retrogression, which would violate section 5.

Mr. Smith: --Your Honor, the retrogression problem was created by the fact that they had gotten rid of a much more natural... naturally occurring--

Justice Scalia: But that was done for political reasons, not racial reasons.

Mr. Smith: --Exactly, Your Honor, and that's the argument that was made and rejected expressly by this Court in Bush v. Vera, that we had to make an ugly minority district rather than a compact minority district because if we did it the other way, a nearby incumbent would lose his seat.

That was precisely the argument that was made there, that it was really incumbency protection, and we had to make it this ugly district to send that excessive racial message in order to protect other nearby incumbents, an argument which is mirrored here exactly and... and as to which I notice the... the State of Texas offers no response.

Justice Scalia: But what... what is your proposal?

What... what is... what is a State to do if... assuming there is a political motivation in drawing its districts, perfectly valid political motivation let's assume, and the result of that redrawing is that it would eliminate a majority minority district, what... what is the State supposed to do?

Mr. Smith: I think the State has to stay within the constitutional confines of the Shaw v. Reno doctrine which would require it not to go so far in the pursuit of its political agenda that it creates a district... has to... has to create a minority opportunity district somewhere that would otherwise violate Shaw.

Now--

Justice Kennedy: But what's the... I'm... as Justice Scalia, I'm interested in the section 25 problem.

The briefs--

Mr. Smith: --District.

Justice Kennedy: --for your cocounsel don't talk much about it, and it's... it's a problem for me.

Justice Scalia's point was let's assume... and I have some doubt about it.

Let's assume that there's a valid reason for redoing section 23.

That means you need another district to avoid retrogression.

What is... what is your position as to district 25 on that assumption, based on that assumption?

Mr. Smith: I don't think that it makes a constitutional difference under this Court's cases whether or not the reason they decided to place the district there and give it that configuration was because they had a political agenda somewhere else.

The... the fact of the matter is they... they were deliberately trying to create an Hispanic majority district there, and to do it, they had to go all the way up to Austin and grab 300,000 Latinos and link them up with--

Justice Scalia: Surely, that's not what makes it bad.

Even if they created a compact district but with the... with the intent of creating a majority minority district, that would be a district created for a racial reason.

The mere fact that this one happens to be not compact doesn't eliminate the motivation, and... and I don't see how you can avoid that motivation unless you're going to abandon the... the prohibition against regression.

Mr. Smith: --Our point, Your Honor, is that in this situation, doing it this way, the... the motivation predominates over the other legitimate districting criteria, which I think under Bush and under--

Chief Justice Roberts: Which... which motivation?

Mr. Smith: --Well, the... the racial motivation to create a district... to... to reach out as far as they did to capture--

Justice Kennedy: Well, can the... can the State by its action with one district, i.e., 23, in effect bootstrap itself in a position where it's entitled to use race where... in a... in a predominant and I... I think insulting way and... and then have a defense?

Mr. Smith: --Our submission is that they cannot, Your Honor.

Now, if I could turn to the partisanship issue, our--

Justice Breyer: May I just clarify one thing on that?

Mr. Smith: --Sure.

Justice Breyer: I take it your reason was that in Bush v. Vera, the Court said, of course, they can use race to prevent retrogression.

Of course, they can, but if they do, they have to create a compact majority minority district, not an elongated majority--

Mr. Smith: Yes.

Justice Breyer: --That's the... that's the argument.

I have to go back and look at Bush v. Vera.

Mr. Smith: Yes, Your Honor, and that they can't say we have to create it in a noncompact way where the race predominates over the other values because we have a political agenda of protecting some other incumbent in a nonminority district.

Chief Justice Roberts: How... how does that make any sense to say that what you're objecting to is the consideration of race in one situation, but if it's compact and the predominant motive was the consideration of race, that doesn't bother you?

That seems to me to be a back door way to get into a more extensive judicial review of the compactness and based on racial considerations that are, under your view, the predominant factor in each case.

Mr. Smith: Well, Your Honor, I think there's a question of what you mean by the word predominance.

And I as understand the Court's cases, there are times when the shape and the extra efforts that are made to... to kind of gather up minority voters as, for example, in Miller v. Johnson where we had a very similar district, where race is said to predominate in a different sense than it does when you simply are creating a minority district to avoid retrogression or to... to stay in compliance with the Voting Rights Act.

Clearly, the Voting Rights Act requires you to create minority districts.

It should require that it makes sense that people make efforts to do that.

We're not saying you shouldn't do any of those things.

We're just saying in this instance, under this Court's cases, you shouldn't be able to use your political agenda to allow you and justify you to do it in a different way which sends this extra message of excessive racial consideration.

Justice Kennedy: And that's a--

Chief Justice Roberts: So you can take race into account if it's compact as a predominant motive.

You can't take race into account if it's not compact.

Mr. Smith: I think, Your Honor, you certainly can--

Chief Justice Roberts: As a dominant motive.

Mr. Smith: --You certainly can intentionally create a minority district under section 2 of the Voting Rights Act.

I don't know how you could comply with section 2 of the Voting Rights Act if you don't do that in situations where, under the Gingles criteria, that's what you're supposed to do.

Justice Stevens: May I ask?

I'm a little puzzled by the... the questioning.

Doesn't everyone agree that the predominant motive in all the districts was political?

You agree to that, don't you?

Mr. Smith: Yes, Your Honor.

Justice Stevens: And you don't agree that that necessarily makes it valid, that that's necessarily a defense to section 2.

Mr. Smith: No, I actually don't agree with that, Your Honor, and you're right.

Justice Stevens: And... and the problem with section... with district 23, under section 2 of the Voting Rights Act, is not the motivation.

It's the results that have changed.

Isn't that correct?

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

Justice Stevens: And the question under the district court's opinion is whether the political motive was an adequate defense to what would otherwise be a violation of section 2.

Is that correct?

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

Chief Justice Roberts: Well, isn't it correct, though, that a result is... focus on results is not sufficient if the challenge is an equal protection one and not a section 2 one?

Mr. Smith: Right, but... but our challenge under the Equal Protection Clause--

Chief Justice Roberts: I'm talking about district 25.

Mr. Smith: --It's a little hard to keep all the different arguments straight, but yes.

Our argument is based on intent there, yes, Your Honor.

And... and the argument is that the intent went too far because they had to--

Chief Justice Roberts: Well, that's why I asked earlier that your... your statement that all of this was done with a political motive... I wondered how that satisfied the equal protection requirement, not the section 2 requirement.

Mr. Smith: --Well, I think there are situations in which you have a political motive overarching the entire map, and that... but at the same time, that pushes you to do some things which could violate the Fourteenth Amendment in terms of racial conduct.

And that's what this... that's what our argument is--

Justice Kennedy: --But you don't think that's a defense.

It seems to me the State creates the very problem that it claims that it must use race to settle.

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

We don't think it's a defense in this instance.

Justice Souter: Now, with respect to section 2, what is... what is your position on the relationship between the predominant political motivation and the existence and nonexistence of a section 2 violation?

Mr. Smith: Your Honor, if I understand the question, I... if the question is is it permissible to have--

Justice Souter: Let me put it another way.

If... if you otherwise demonstrate a section 2 violation, is the political motivation a defense?

Mr. Smith: --No, Your Honor.

Justice Souter: No.

Mr. Smith: Certainly not.

Now, we have a... an argument about that too, which has to do with the district in the Dallas Fort Worth area, and I think the political defense there doesn't have anything to do with it.

Now, if... if I could, I think that the whole map... the decision to redraw the whole map violates the Equal Protection Clause for a wholly different reason, which was that it was wholly lacking in any rational, legitimate public purpose.

At the time, there was a lawful map in place that had the right number of districts, and the district court found as fact that the only reason that this law was even considered, let alone passed, was to help one political party gain more seats in the Congress at the expense of the other.

Justice Ginsburg: What about having a--

Justice Scalia: Wow.

That's a surprise.

[Laughter]

Justice Ginsburg: --What about having a... a plan that was put in place by the legislature instead of a temporary plan put in effect by a court?

Mr. Smith: The--

Justice Ginsburg: Isn't there... isn't it... you... you seem to treat this as a redone redistricting instead of as the very first redistricting done by a legislature.

Mr. Smith: --It was the first one done by the legislature because they violated the constitutional intentionally when they had an obligation to... to draw a map 2 years earlier.

Our submission is that the existence of some power that the legislature may have to... to alter the remedial map... and they may well have that power.

We don't... we don't question that... doesn't justify the map.

They still have to, in exercising that power, point to some constitutional basis for which they're acting.

Justice Scalia: Which... but it's a perfectly constitutional basis to alter the map because we don't think it allocates the seats in the fashion that our political power enables us to... to provide for.

Legislatures redraw the maps all the time for political reasons.

I mean, to say that this is, you know, something horrible is ridiculous.

You acknowledge that political motivation is fine.

Mr. Smith: Your Honor, we--

Justice Scalia: Don't you?

Mr. Smith: --we acknowledge that we tolerate political motivation in the context of map drawing when there's other legitimate public purposes being served, which is to say at the beginning of the decade when they have to redraw the map anyway.

Justice Scalia: I see.

Mr. Smith: But our position is when it's purely for partisan motivation, which is... only occurs in mid decade--

Justice Scalia: Even... even when the map is so... you... you acknowledge that the map that came out, after this... this realignment of districts, had less of a divergence between the voting strength of the Republican Party and the number of Republican seats than had existed under the previous allocation by the Democrats.

Mr. Smith: --That... that is not, we believe, a justification for two reasons, Your Honor.

This notion that you can have compensatory gerrymandering and that that can be your justification... I think it's wrong as a matter of law because all it amounts to is another way of saying we like... we don't like the partisan composition of a delegation that the people voted for and we're going to change it.

Justice Scalia: But I'm saying less.

Less.

It... there's less of a divergence under the new map than there was under the old one.

The only difference is this divergence is in favor of the majority.

Mr. Smith: Well, Your Honor, as the district court found... and this is on page 85 of our jurisdictional statement appendix... it wasn't that there was bias in the map that the court drew.

It was that there were 20 of 32 districts that strongly favored the Republicans in the court drawn map.

It just so happened that the voters in those districts, in six of those Republican leaning districts, happened to like voting for moderate to conservative Democrats who they were comfortable with.

Now, if you tell me... I... I find difficulty... I find it difficult to understand how anyone could say the legislature can, as a matter of... use the machinery of government to decide that those voters should not have that opportunity to do that again, that that was a mistake.

Chief Justice Roberts: Well, counsel, just take it in... in an abstract way.

If you think that the prior system has been gerrymandered by the party in power, are you saying that when that shift in power in the statewide offices changes, that the new party in power cannot redress the gerrymandering of its predecessor?

Mr. Smith: My... my answers to that are twofold.

I think as a matter of law that the Court should hold that... if that's the only justification, you ought to wait until you have other public purposes for redrawing the lines.

But even if that were... even if the Court is going allow that kind of justification for middecade redistricting, it shouldn't allow it here because it was just factually untrue, as the district court found.

Justice Kennedy: Well, but let's get back to the... to the principle without just talking about these... these fact findings.

It... it seems to me very odd for you to be telling us that partisan gerrymandering is... is improper when that's the sole or substantial, predominant motivation, but then saying that we can't correct it when it's happened.

Let's assume that the 1990 legislative plan was one that was done with... without a wholly partisan intent, but over the years, it... it now freezes in the Democrats or party X to having a much greater advantage than the general registration would give it.

And if it leaves it in for a particularly partisan purpose, why... why can't it be redone?

Mr. Smith: Well, Your Honor, I think that if the Court--

Justice Kennedy: I just don't understand that argument.

Mr. Smith: --I think it's a dangerous thing to do, to say to the legislatures of the country you can't redistrict for partisan gain, but if you can recouch it as partisan compensation, that's okay.

Chief Justice Roberts: Let me give you another parallel.

Let's suppose that districts have been gerrymandered for racially discriminatory purposes for years.

Can you take race into account in drawing new districts to remedy that racial discrimination?

Mr. Smith: I think if a map is illegal, Your Honor, then... then certainly it is within the power of... of the legislature to--

Justice Breyer: Oh, well, that's... but now, in fairness, I think to the red brief argument... you've read the red briefs.

Mr. Smith: --I have, Your Honor.

Justice Breyer: Yes.

They are filled with factual information that in their opinion shows that previously the Democrats had gerrymandered this much worse, and that what... this was an effort to create a balance.

That's what their view is.

Now, I want to know really precisely what is your response to that argument.

Mr. Smith: My response is... is... factual response is that by the time we got to 2002, the district court's drawn map had 20 of 32 districts, which voted overwhelmingly Republican for every other office, in the range of 60 to 70 percent, so that whatever bias was introduced into the map in 1991, if there was one, had been eradicated because all of these Democrats in those districts had become more Republican.

And so the map was not biased.

There was nothing wrong with the lines.

Justice Breyer: Now, what do I look to in the record to verify what you just said?

Mr. Smith: You look to the court's finding on page 85 which said that 20 of 32 districts favored the Republicans.

And you look at the expert reports filed by both sides at the trial that preceded that finding, and the experts for both sides said that the court drawn map was a proRepublican map that favored the Republicans or, at minimum, was fair, and that with the kind of voting patterns that existed in Texas at the time, one would expect the Republicans to carry 20 districts in most of the elections.

Now, they also said... and... and this is a reason why the State didn't actually put their expert on the stand... that the map that the legislature had drawn instead was wildly biased in favor of the Republicans in that at 52 percent of the vote, they would still get 22 districts, and at 50 percent of the vote, they'd still get 20 districts.

Justice Scalia: Yes, but what percentage did they have?

I... I thought that... you say that they should have gotten 20 districts, and how many districts did the plan give them?

Mr. Smith: The plan gave them 20 districts in which they had a strong Republican majority.

Now, what that means is that--

Justice Scalia: But you say that's what they should have had, given... given the voting in the State.

Mr. Smith: --I say they... that given that opportunity to have 20 districts elect Congressmen, that's... that's all that anybody could reasonably ask for.

That's the only kind of justification that I can even imagine justifying purely partisan redistricting in middecade.

The fact of the matter is the large majority of the Members of Congress who went to Washington after the 2002 election were elected by Republicans in Republican districts.

That's what the facts are.

Now, they say, well, vestiges of the past gerrymander are still around, but what does that mean?

The fact is the districts are by now overwhelmingly Republican in the large majority of cases.

Justice Scalia: Do you have any... any authority either in the text of the Constitution or in a... a case for the proposition that the only reason a legislature can reapportion its districts is because there's been a census?

Mr. Smith: Our... our position is slightly different.

Justice Scalia: Well, but that's your position when you said middecade redistricting is bad because your... your position is the only reason is the census is... has... has caused there to be less than... than one man/one vote.

Mr. Smith: There may be cases where you could do middecade redistricting for neutral, legitimate public purposes.

I submit they'll be quite rare in... in practice, but there certainly could be.

Our position is you can't redraw the lines purely for partisan gain, and the case I would point to that I think most strongly speaks to that is Cox v. Larios.

In that case, the district court found that population deviations, sufficiently small that they weren't even usually requiring justifications, didn't pass the rational basis test because the only explanation you could offer for those deviations was that they were systematically attempting to help the Democrats at the expense of the Republicans.

Justice Souter: But... but are you saying--

Justice Kennedy: Well, if you say that middecennial districting is suspect or subject to some special rules, then it seems to me that you're... you're taking away a very important deterrent that works on legislatures when they do decennial districting.

If you know as a legislature, when you do a decennial districting, that your program is going to be presumptively valid or not subject to partisan gerrymandering, then... then you're... then you're liable to overreach.

And it... it seems to me very dangerous for this Court to take away that control mechanism that exists so that legislatures know that there's a possibility that if they overreach, they can be corrected.

Mr. Smith: That... that might be a concern, Your Honor.

I don't think the... the historical practice supports it because the fact is that while there's been a fair amount of partisan redistricting, whatever one wants to call it, in the last several decades, there have been precious few, if any, examples of anybody trying to convene the legislature before the next census to try to fix it.

It is extraordinarily rare.

And the reason for it is we... there's a general tradition we've established in this country that whatever happens when those lines get drawn, even if it's done by a court, you leave it alone until the next time--

Chief Justice Roberts: Well, now, counsel--

Justice Scalia: That... that little... even if it's done by the court.

I like the way you slipped that in.

I mean, even if you had a general rule that you cannot redistrict except after a decennial census, surely there ought to be an exception unless... which... which would read, unless the districting you're living under was never decreed by the legislature, but was decreed by a court.

And that was the situation here.

Surely, that's a good reason, even if you adopted your general proposition.

Mr. Smith: --The... the reason I... I slipped it in is that in my description of what I think is the current tradition, Your Honor, is we went and looked and found how many court drawn congressional district maps have there been in this country in the last 40 years, and how many times were they redrawn by the legislature.

And the answer is that if you go back between 1970 and 2000, there were 36 of them, and only two of them were redrawn in very small, technical ways, one in Hawaii where they only have two districts and then the one in Texas, which was changed in Dallas.

It's not--

Justice Scalia: Well, I'd say that's a shame for the democratic process.

I... I don't like the idea that... that there are a lot of districts out there that have never been drawn by the people, which is what the Constitution envisions.

Mr. Smith: --Well, Your Honor, the other thing I think about this... this argument about that we have this... this need to have a legislative plan is you invite an abuse of a different kind.

If you... if you say to the legislature, you can sit on your hands at the time when you have an undisputed constitutional obligation to redraw the lines at the beginning of... of the decade, as long... and you'll know that what that will do is it will give you the right to come along anytime you feel like it when you get your political ducks--

Chief Justice Roberts: --Is that the reason these lines were not redrawn at the beginning of the decade, because the majority party sat on its hands?

Mr. Smith: --That's absolutely what happened here, Your Honor.

They didn't make any serious efforts to redo it.

The only person--

Justice Ginsburg: I thought there was--

Chief Justice Roberts: I thought--

Justice Ginsburg: --I thought there... the houses were divided.

One party, one... had one house; the other, the other.

And so they were at loggerheads and they--

Mr. Smith: --The reality is... and the record... there was discussion of this at trial by Senator Ratliffe... there was not very serious effort to do this at the time.

The only person who can call a special session... and it does take special sessions in Texas to get these lines drawn historically... is the Governor.

He declined to call any special sessions when they... when they had a divided legislature.

Of course, 2 years later, when they had unilateral control of the whole legislature, we were calling special sessions like mad to get the job done.

So--

Justice Ginsburg: --But the court... even from the court's perspective, was it the same three judges that did the... that did the plan, the court ordered plan?

And I thought that the... the judge who presided told us in his latest opinion that they never anticipated that as being a permanent plan, and indeed, they tried to stay as close as they could to the then existing plan.

Mr. Smith: --Well, Your Honor, there was some language to that effect.

If you go back, though, and read the opinion that the... the judges wrote in... in 2001 when they actually were describing in meticulous detail their process of drawing the map, he specifically said then that they didn't follow the old lines, that they used neutral criteria like compactness and following political subdivisions, and that they... this was not an effort to... to come up with a map that matched the old map.

The only thing that I think really fairly can be said about the court drawn map is it did give a separate district to all of the incumbents, which is what you'd expect a court to do.

They're not going to sit around and decide mutual incumbents ought to have to run against each other.

And so it did have that effect, I think, of allowing some incumbency advantage to continue on.

But it is... it is not true that the... that the court tried to keep some pattern in the map beyond that.

The court specifically said otherwise in 2001 when it drew the map, and then it said in--

Justice Kennedy: Well, we're not... we're not trying the court for a bad intent.

We're looking at the effect of what it's done, and if the effect of what it's done is to leave in place something that's slanted based on... on statewide registration in favor of the Democrats, then... then, it seems to me, there's... there's a ground for the new legislature to act.

And... and one... one reason legislatures may not have redrawn plans often is because they always protect incumbents.

Mr. Smith: --But, Your Honor, the facts are that it wasn't slanted.

The facts are the experts both testified from both sides at the trial that the map was fair to both parties and that it contained 20 Republican districts.

And that's what the court found too in 2004.

Then we have an appeal and we go back down on remand, and suddenly we're starting to hear about vestiges of gerrymanders.

But the court didn't withdraw its finding of fact that there were 20 Republican districts in its own map.

That's true.

I mean, look at the way the votes were cast in 2002.

There were 20 Republican districts in the map.

The six districts that these Democrats represented who they... who they... the moderate Democrats that they were targeting... the average vote for statewide office in that district was something like 65 percent... 55 to 65 percent for the Republican candidate.

I... I looked, for example, yesterday at the... there was an election for the Attorney General in Texas in 2002.

It was an open seat, two... two nonincumbents running against each other, two people from Austin.

And the average vote for the Republican Attorney General candidate, Mr. Cruz's boss, in that election in those six districts was 62 percent for him and 38 percent for the... the Democrat.

So these were not Democratic districts.

This was not a gerrymander in any rational use of the word.

Justice Souter: --Mr. Smith, may... may I ask you to comment on... on one problem that I have with your position that has nothing whatever to do with the... with the fact that there was a... a judicial redrawing in the first place here?

If I understand your argument, you're saying that a... a districting that takes place prior to the report of a new decennial census, which is done for purely political reasons, maximizing political advantage, is invalid for that reason, I guess under the Equal Protection Clause.

Mr. Smith: Yes, Your Honor.

Justice Souter: And yet, I take it it's also your position that if the districting is done in response to the new decennial figures so that there's a need to do something to conform to one person/one vote, that there is nothing illegitimate about political motivation, at least up to some point--

Mr. Smith: Right.

Justice Souter: --in... in drawing the lines at that time.

How can we in principle say that the motivation which is legitimate in 1991 is somehow constitutionally illegitimate and dispositive in 1995?

Mr. Smith: It seems to me that one is not saying that it's legitimate in 1991.

One is saying that in redistricting, which is a messy process, we tolerate a lot of mixed motives.

We tolerate some consideration of race.

We... we ask for some consideration of race.

We tolerate some consideration of politics.

But that is dramatically different under the rational basis test from a law that is passed solely for political reasons because it doesn't have the other kinds of interests that are being promoted and protected in... at the beginning of the decade.

And so there's a drastic difference, it seems to me, under the rational basis analysis between a law which serves a lot of purposes, some governmental and public, some of them private, and... and not legitimate bases for governmental action.

Justice Kennedy: But you're making the assumption that a mid decennial districting is not interested in compactness, it's not interested in counties, it's not interested in keeping a university within one... within one district.

That's... that's just simply not true.

Mr. Smith: Well, Your Honor, the... the fact here is that the only reason they decided to change was for partisanship.

That's what the district court found as a matter of fact.

Now, the other legal requirements of... of the map that are... give you the... the legitimate bases for redrawing the lines at the beginning of the decade were already satisfied because such a map already existed.

And as this Court said in... in Growe, the... the court drawn map, in some sense, changes the status quo.

You have to say what are the additional governmental interests that are... that exist and justify going through this process again and changing that map, which already is fully lawful, has been affirmed by this... this Court as lawful.

Justice Souter: But your answer, both to the Justice Kennedy and... and to me, ultimately comes down, I guess, to saying that political partisanship alone, undiluted, unadulterated by any other motivations, is per se wrong.

Mr. Smith: It's... it's not a basis that can justify public conduct, State action.

If... if it was, then it would be perfectly okay, I suppose, to have government subsidies for some parties and not for others, or to have... let some people use public facilities and not others.

Justice Souter: All right.

Let's... let's assume that the... that the partisans who do the mid term redistricting candidly say, we are doing this for partisan reasons, but we recognize limits on what we can do.

And the limits are the traditional ones, compactness, et cetera.

Let us assume that there is, in fact, evidence of a good faith effort at least to conform to those districting principles.

Under those circumstances, is the midterm redistricting equally illegitimate?

Mr. Smith: The question I think you need to pose is what is the justification for doing anything, not... not for any particular line--

Justice Souter: Well, that may be, but how about the question that I posed?

[Laughter]

Mr. Smith: --Well, it seems to me, Your Honor, that if... if the... I was trying to get to the answer.

I really was.

Justice Souter: Okay.

Mr. Smith: It seems to me that if... if you can... if they can legitimately and... and plausibly say, we are... we... we decided to redraw the old map because it was so departed... it's so departed from these important principles and values like compactness and respect for subdivision... so if that's our reason--

Justice Souter: No.

I'm... in a way, I'm making it easy for you.

I'm saying, look, they're... they're saying we think we can get a better deal for our party, but we are respecting these districting principles.

Equally illegitimate?

Mr. Smith: --I think so, Your Honor.

If all they're saying is we... we didn't go as crazy as we could have, but the only reason we did anything is because we want more seats, but we could have done even worse, that seems to me not a... not a justification for action, but merely a... a decision not to... to be more political than purely political.

Justice Souter: The difficulty I have with that is that it is... it is impossible... I think you would agree.

It is impossible... and may, indeed... let's assume undesirable... to take partisanship out of a political process.

And... and if partisanship pure and simple, even though subject to the discipline of districting principles, is... is illegitimate, then I don't see why that does not imply the illegitimacy of any districting at any time.

Mr. Smith: Well, Your Honor, our... our submission is it makes a difference when it's pure rather than merely one of the many things that is going on.

If I could take a few minutes just to talk about our section 2 argument with respect to the African American--

Justice Stevens: Before you do that, may I just ask one short question?

Mr. Smith: --Sure.

Justice Stevens: You've mainly attacked the plan as a whole in your briefs.

And I'm wondering.

I often look at particular districts, as you may know.

Are there residents of districts 23, district 24 that are plaintiffs?

Mr. Smith: We have plaintiffs in every district, I think, on the whole map, certainly any district that would raise a concern under--

Justice Stevens: But they're not identified easily--

Mr. Smith: --Yes, Your Honor, but... but I think that there... there was a... in the complaint there's allegations about where each of these people live, and I think that... that we were very careful to make sure anything we were talking about specifically, such as, for example, district 24 in Dallas, we had... we had plaintiffs.

The... the list is quite long.

So there is standing, I think, for all of those arguments.

Now, on... on district 24, our submission is that under section 2, there ought to be protection for districts where the minority group does not have an absolute majority but where the evidence shows that it can effectively elect a candidate of its choice in... in concert with a... a predictable group of Anglo or sometimes Hispanic crossover voters, and that we think on the facts of this case, this was such a district because the African Americans in every case were a large majority of the voters in the Democratic primary and the Democratic nominee, in virtually every case, is elected in this district regardless of what... what race that person may be.

Chief Justice Roberts: --What was the percentage of the African American voters in the district as a whole?

Mr. Smith: Citizen voting age population is 26 percent, Your Honor.

The--

Justice Kennedy: But... but if... if your... if your test is that section 2 ought to be opened up to any racial group that could influence an... an election, I don't see the limits on your principle.

Mr. Smith: --That's not our... our test, Your Honor.

Our test is they... they have to control the election, and--

Chief Justice Roberts: So that if you had a situation where it's 40 percent one group, 40 percent another group, and 20 percent where the 20 percent controlled who was elected by siding with one group or the other group, then you would say that that was an influence district for that small... the smallest group in the district?

Mr. Smith: --Your Honor, I don't think that would work because I think the way we... we view what you have... you... the group has to be able to decide who's going to be on the ballot, and then you want to see whether there's enough crossover voting to--

Justice Kennedy: No.

Suppose there's a primary where it works that they can get on the ballot.

Suppose we're looking at the general election.

Mr. Smith: --If... if that group gets to decide who--

Justice Kennedy: Accept the hypothetical.

Mr. Smith: --Yes.

If that group has... has picked who gets on the ballot and their choice always wins the general election, I think that's not an influence district.

That's... that's--

Justice Breyer: What is the answer?

I mean, you've read the briefs.

The obvious reply to that is there are many, many districts in the United States where African American voters have a big influence on the Democratic primary.

Mr. Smith: --Yes.

Justice Breyer: A lot.

And there are a lot where the Democrat wins.

So if your principle is accepted, says the other side, that means that any district that's drawn here to favor the Democrats can't be changed, but all the ones that favor the Republicans can be changed.

Now, if that argument is right, it's hard for me to accept, but that's a neutral principle of constitutional law.

So I want to see what... what your response is to that.

Mr. Smith: I think there are a number of limiting principles that apply here that... that suggest we're not just coming in here and asking for the Voting Rights Act to become the... the proDemocratic act--

Justice Breyer: Obviously you're not.

That's why I would like--

Mr. Smith: --And... and--

Justice Breyer: --you to say what specifically the answer to that argument is.

Mr. Smith: --The... the... first of all, there are not that many districts in which African Americans control the Democratic primary and then have predictable ability to see that person elected in... in the general election.

Where that is the truth, they then have representation of the kind that I think is valuable under section 2 of the Voting Rights Act.

Now, of course, there are going to be limits.

One of them is De Grandy.

They... they only have rights up to a proportional level of their proportion of the population.

And by not respecting... not protecting this kind of district, what you do is, in fact, condemn the people, the African Americans in Texas, to less than proportional representation because there is no other way to give them a district in which they have any possibility of... of participation in the process and electing a candidate of their choice.

This is the only place in Texas where it can be done.

They're... they are more than an eighth of the population, citizen voting age population, and they're only getting 3 districts out of 32 because the State of Texas chose to eliminate this district.

Justice Souter: This would be at... least your criterion, whether we accept it or not, would... would be more administrable if we're dealing with the elimination of a district than if we were dealing with the question of creating one.

Do you take the position that the NAAC brief does that there really should be distinct criteria, depending on whether you're asking to create something new or preserve something which has been in place?

Mr. Smith: I... I perhaps more faith in the ability of courts to predict the future than... than that brief does, but... but I certainly can imagine a rule where the court says, we're going to require that there be experience, not simply predictions by experts, in order to create a district below the majority level.

That would be an administrable rule which would give... at least give some protection in situations of the kind that we... we face here.

If I could reserve the balance of my time, Your Honor.

Argument of Nina Perales

Chief Justice Roberts: Thank you, Mr. Smith.

Ms. Perales.

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

I will begin by arguing that Texas violated the Equal Protection Clause by making excessive use of race in its changes to district 23.

After removing 100,000 Latinos from district 23, the State used race to craft a razor-thin Latino majority.

Abandoning political data, the State used census block redistricting to achieve 50.9 percent Latino voting age population.

Justice Kennedy: In 23.

Mr. Perales: In district 23, Your Honor.

Thus, the State used race, as we contend, not only to protect an incumbent, but to give the false impression of Latino support for that incumbent.

Justice Kennedy: Focus for a minute just on the... what we can call the removal, the drawing of the lines to exclude some Latino voters.

Just focus on that, not the later justification.

The district court found that this was for political reasons, not racial reasons, even though it was a largely racial group that was removed.

Do you attack that finding as clearly erroneous?

Mr. Perales: Yes, Justice Kennedy, we do attack that finding as clearly erroneous.

This case is really the flip side of Easley v. Cromartie because in this case Latino voters supported Republican and Democratic candidates.

As the State asserts vigorously, Latino voters voted significantly and substantially--

Justice Stevens: May I interrupt you just with one... one question on district 23?

Regardless of what the intent of the parties was, I'm just wondering why is the district court's finding on intent relevant to the section 2 issue when the test under section 2 is results?

Mr. Perales: --Yes, Justice Stevens.

The... the test under section 2 is results, and that goes--

Justice Stevens: So that even if the intent was primarily political, it would still violate section 2.

Mr. Perales: --Yes, and we argue in our brief exactly that.

But we hope today to focus in oral argument at least first on the Fourteenth Amendment violation, which is the intentional use of race both as intentional vote dilution, as well as the analytically distinct claim under Shaw v. Miller.

With respect to the question whether Latino voters voted with such a high correlation... and that's the phrase used from Easley v. Cromartie... whether there was such a high correlation between Latino voters and Democratic voters, particularly in district 23, to justify removing them because of their race and then saying that they were Democrats, that nexus simply doesn't exist under the facts of this case.

Besides the State's arguments and... and the many assertions that it makes with respect to Latino voting support for Republican candidates and especially Congressman Bonilla, we also have Latino voting for Bonilla that rises and falls.

If Latinos were close adherents to the Democratic ticket, you wouldn't see fluctuating support for Congressman Bonilla.

You would see low and steady support if Latinos were Democratic voters.

Instead, we see something very different, which is Congressman Bonilla gaining support in the Latino community within his district up until 1996 where the peak is 30 percent Latino support and then a steady decline over a series of elections, ending in 2002 with only 8 percent, as the district court found, Latino support for Congressman Bonilla.

This is not--

Chief Justice Roberts: Does that undermine the assumption that there's... they're voting as a bloc?

30 percent of the group is voting for one candidate.

Is that sufficient to establish a voting bloc?

Mr. Perales: --Yes, Mr. Chief Justice.

Under section 2's question with respect to racially polarized voting, we would contend that voting as a bloc 70 percent or subsequently higher than 70 percent to 90-92 percent is enough under section 2 to satisfy the test whether Latinos are voting cohesively.

Congressman Bonilla has never been able to garner a majority of Latino support, not more than 30 percent.

But with respect to a somewhat different question, which is whether partisanship and race correlate so highly in district 23, that you can remove Latinos and in the hopes of being able to take the Democratic index down, we say that that kind of voting is not tight enough.

In Easley v. Cromartie, of course, the Court found that African American voters voted 95 to 97 percent for Democratic candidates across elections.

Justice Scalia: I don't understand.

Does this go to motive or result?

I mean, what if I'm... I'm stupid and I think there's the correlation and I remove it for that reason?

I'm not removing them for racial reasons.

I'm removing them because I want to remove Democrats.

And you're saying that if I have made a mistake about how solidly they vote Democratic, that turns my validly non-racial decision into a racial decision?

Mr. Perales: This Court made clear in Bush v. Vera that the State may not make exactly the kind of assumption, Justice Scalia, that you described.

The... the Court held in Bush v. Vera that you cannot use race as a proxy for partisanship.

You cannot make that assumption.

So if the State--

Justice Kennedy: Well, but... but that was because it was deliberate in that case, and that's not the hypothetical that Justice Scalia has posed.

Mr. Perales: --In this case, we contend that the State removed Latino voters from district 23 because they were Latino and that--

Justice Kennedy: But that's not the hypothetical that was posed to you by the Justice.

Mr. Perales: --That if the State--

Justice Scalia: I'm assuming--

Justice Kennedy: As I... as I understood it.

Justice Scalia: --they're removing them because they're Democrats, but I'm wrong about that.

Mr. Perales: --Then it is still wrong to take out 100,000 Latinos using that assumption.

I mean, the... the act that was done was to slice through the most Latino county in the United States, 95 percent Latino.

The people were not removed anywhere else.

Clearly, the State removed Latinos from this district and then said, well, we did it because we were aiming for Democrats.

Justice Souter: But is it... is it wrong under the Equal Protection Clause or is it wrong under section 2?

Mr. Perales: It's wrong under both, we would argue in our brief.

Justice Souter: No.

But on Justice... Justice Scalia's hypothesis, there is no intention to remove Latinos as Latinos.

And maybe the answer to that is if you're removing Latinos, it does not matter whether your motivation is invidious or not.

I don't know whether that's your position.

But it... if that's not your position, then I think there's got to be a difference between the... the Equal Protection Clause analysis and the section 2 analysis.

Mr. Perales: We contend that in this case the removal is invidious because it was Latinos that were identified and taken out and then... for incumbency protection, similar to what--

Justice Souter: Well, is that because there were no other Democrats who could have been identified and taken out?

Mr. Perales: --There's no testimony that the State considered ever taking out anybody else but the people in Webb County.

Justice Scalia: I thought you said that the county was 92 percent Latino or something like that.

Mr. Perales: Yes, Justice Scalia.

Justice Scalia: Well, how can you... how can you possibly take out any substantial number of Democrats without taking out Latinos?

Mr. Perales: That's exactly our point, that the State removed--

Justice Scalia: Well, that's my point too.

[Laughter]

Mr. Perales: --Moving to what I... the point--

Chief Justice Roberts: Can I... can I... I don't understand... I think your argument is at cross purposes.

I mean, the one point... and you're making the point that the Democrats do not vote overwhelmingly for the Democratic candidate.

They voted as much as 30 percent for Bonilla.

But the Voting Rights Act is concerned with whether or not a group voting ethnically as a bloc can vote for candidates of its choice.

Well, if they're 30/70, it's not... it's hard to think of them as having a clear candidate of choice.

So what does it matter whether they're in or out?

Mr. Perales: --I agree, Mr. Chief Justice, but under the facts of this case, what had happened by 2002 was something very, very different.

After 1996, when Mr. Bonilla garnered the high of 30 percent among Latino voters, not... not in his district but among that group--

Chief Justice Roberts: Yes, the percentage goes up, the percentage goes down.

Mr. Perales: --Yes.

Chief Justice Roberts: It depends on who's running against him.

At the low point, there was a popular Hispanic candidate running against him in some of those elections.

But it seems to me that the predicate for coverage under the Voting Rights Act that a particular group is being denied the opportunity to elect a candidate of its choice doesn't even come into play if you're right that the... the vote is split over time, depending on the circumstances in a particular election.

Mr. Perales: No, Mr. Chief Justice, because this is bloc voting at rates of 70 percent or higher, and after 1996, that 70 percent bloc went to 80 percent and then it went to 90 percent.

And as the voters became increasingly disenchanted, I suppose, with the incumbent, that decline was steady.

It didn't fluctuate up and down.

It was going down and it went down even farther.

Mr. Bonilla was always opposed by a Latino candidate in each of his general elections that he's had since he's been elected.

So that hasn't really been a factor for the voters.

But as they became more cohesive and they reached 55 percent of the... the registration in the district, they were poised to elect their candidate of choice.

Chief Justice Roberts: Well, then... well, but then... and this is why I say it's an argument at cross purposes.

If you're right about that, then the assumption that the Hispanic voters are going to be voting Democratic is not one that was unfounded, which I thought was your... your first point.

Mr. Perales: We would contend, Mr. Chief Justice, that voting against Congressman Bonilla doesn't make you a Democrat.

And it, in fact, highlights that the State was seeking voters, Latino voters, who had withdrawn their support for Congressman Bonilla as opposed to just seeking Democrats because you can vote against Congressman Bonilla and still vote Republican in other races, as Latinos did.

And you could have been a former supporter of Congressman Bonilla.

It doesn't make you a Democrat in that sense that race and partisanship are completely interchangeable so that the State can scoop in and grab 100,000 people of the same race and then say later, well, we were taking out Democrats.

Chief Justice Roberts: It's not just the State that's saying it, though.

You have a district court finding that ethnicity was not the predominant factor, that politics was the predominant factor.

Maybe... as Justice Scalia suggests, maybe they were right, maybe they were wrong, but the point was that it was being done for political purposes not for ethnic purposes.

Mr. Perales: We agree, Mr. Chief Justice, that the end goal was political in the sense of incumbency protection, but a State may not use race as the means to the end of protecting an incumbent.

What happened here was that the only group of voters who had shifted their support away from Congressman Bonilla were Latino.

Democrats had never voted for Congressman Bonilla.

The problem inside this district was not a problem of Democratic voters.

It was Latino voters who had supported him and withdrawn.

Justice Kennedy: Well, can... can the State use race as the means to an end of electing a new candidate that the race wants?

And what should be the difference?

Mr. Perales: It should turn on the candidate of choice--

Justice Kennedy: I mean, it sounds like you're going to say race cannot be used as this basis, but how can race be used not to protect an incumbent but to allow the group to choose the representative of its choice and then reelect him every year?

Mr. Perales: --Well, district 23 was created by the Balderas court pursuant to a finding under section 2.

So it was a remedial district under section 2 when it was created in 2001.

And in 2002, when it was used as a remedial district, it... it elected a Latino-preferred candidate in 13 out of 15 elections, according to the State's expert, and came very close to unseating Congressman Bonilla.

The State's response was essentially to punish Latino voters for voting against Congressman Bonilla by slicing them out of the district.

So the State used race to achieve its end of... of incumbency protection.

Justice Alito: Well, if... if the objective is just to get rid of the voters who vote against Congressman Bonilla, why is that an equal protection violation?

It's not done for... for race or ethnicity, but just to get rid of voters who vote against him.

Mr. Perales: Because the group of voters who had withdrawn their support were Latino voters.

The district court discusses the... the interrelationship of these phenomenon in its opinion at jurisdictional statement appendix 128 when it says, the State acted to shore up the incumbency of Congressman Bonilla, and the next sentence is, his support among Latino voters had dropped to 8 percent.

It was, in fact, the... the voting behavior of Latinos as opposed to anybody else who had caused the incumbency crisis, and it was Latinos as Latinos who were removed from the district.

At the same time, however, the redistricters sat down and figured out exactly how many Latinos they wanted to leave inside this district to achieve a bare, razor-thin Latino voting age majority population, and that was done to give the impression of Latino support for the incumbent.

The chief redistricter--

Chief Justice Roberts: Is that... and what relevance does that have?

What provision of the Constitution prevents you from leaving a majority of one group in a district to create the impression that the district supports a particular candidate?

Mr. Perales: --The Fourteenth Amendment, Mr. Chief Justice--

Chief Justice Roberts: That's what the Fourteenth Amendment was passed for, to avoid creating the impression that a particular group supports a particular candidate?

Mr. Perales: --This Court has held that race may not be used for its own sake in redistricting, and here race was used most gratuitously and cynically to make sure that the State could say a majority of Latinos in district 23 support Congressman Bonilla.

The chief redistricter in the House, Representative Phil King, testified... and this is express motivation... that they sought to maintain a 50 percent Latino voting age majority in the district while making it safer for Congressman Bonilla, which involved pulling 100,000 Latinos out.

Similarly--

Chief Justice Roberts: And how many... what percentage would they have shifted from making it look like a Hispanic opportunity district with about 51 percent to when it would actually be one?

What percentage does it shift from being looking like one to being one, both above a majority?

Mr. Perales: --Oh, yes, Mr. Chief Justice, but... but quite a distance.

The... as the Balderas court--

Chief Justice Roberts: But what's the number?

Mr. Perales: --The voting age population for district 23, as created by the Balderas court, Your Honor, was a great deal higher.

It was 63 percent, and that was what was able to give the 55 percent voter registration--

Chief Justice Roberts: Is that your number?

It has to... anything short of 63, it's just looking like it?

I mean, really, you're asking us to draw a very fine line between a... in each case a majority Hispanic voting age district, but in one case, it's a constitutional violation and in the other case, it's... it's required by the Voting Rights Act.

So what is the magic number between 51 and 63?

Mr. Perales: --We would argue that race cannot be used for its own sake, that if you're going to put people together into a Latino majority district, it should be to meet a purpose, for example, to create an opportunity district under the Voting Rights Act.

Chief Justice Roberts: What's the number?

Mr. Perales: That would be... well, depending on how many people it takes in that particular district to elect a candidate of choice.

In this case it was 63 percent.

It might be a different number for a different district.

But your--

Chief Justice Roberts: So if this district were drawn with 60 percent, you would say that's just to make it look like a Hispanic district?

Mr. Perales: --No, Your Honor.

Chief Justice Roberts: No.

So what's the number?

It's... it's somewhat more than 51 percent because you're saying that's a constitutional violation, and I want to know how many more it takes before it becomes what's required under the Voting Rights Act.

Mr. Perales: Maybe I can answer the question by going around to the court's finding, which was that district 23 was created not as a Latino opportunity district, that it would not operate to offer the opportunity to elect a Latino for a candidate.

And the... and the district court found this on page 145-146 of our appendix to the jurisdictional statement.

And in that same paragraph, they said, but it has a political nuance that Congressman Bonilla will be elected from a Latino majority district.

Chief Justice Roberts: I'm just trying to get the number.

If you're asking us to rule on a constitutional violation, I'm asking to find out what the number is that changes it from a political nuance to a Hispanic opportunity.

Mr. Perales: That number would be the number that shows Latinos have the opportunity to elect their candidate of choice.

It will be a different number for each district, but it would always be in the evidence of the case because the analysis is done on different districts.

Here, all of the experts agreed that district 23 had been created so that it would not elect a Latino candidate of choice, but that the State testified that it wanted to keep it voting age majority, that they did so because they wanted Henry Bonilla to run from a Latino majority district.

The State abandoned traditional redistricting criteria to do so, redistricting at the bloc level and splitting 6 election precincts out of 51 in Webb County, which is wholly unnecessary even to equalize population in either district.

There is no reason for the State--

Chief Justice Roberts: Would it have been better--

Mr. Perales: --to have done that.

Chief Justice Roberts: --would it have been better in your view if they had excluded more Hispanics so it didn't look like a Hispanic opportunity district?

Mr. Perales: Well, the State certainly could have moved Webb County whole out of the district.

It depends on how they would have done the overall--

Chief Justice Roberts: And... and that would have been preferable.

It would have been preferable to you if it was, say, 45 percent Hispanic rather than 50.8, or whatever it was.

Mr. Perales: --Mr. Chief Justice, it... it just doesn't hang on a particular number.

It... it turns on whether or not the district is an opportunity district, and if it isn't an opportunity district, why is the State sitting down and using race for its own sake to be able to say we got 50.9 percent Latino voting age population?

We managed to zigzag that boundary through the streets and... and through the neighborhoods of the City of Laredo so that we could say it was a Latino majority district.

Justice Souter: Well, isn't... isn't one answer that we were doing it, number one, because we wanted to protect the incumbent and we also had to use race to avoid a section 5 problem and a section 2 claim?

You've got to use race for those purposes.

Mr. Perales: Well, under section 5, the State went ahead and created district 25 as the offset because it seemed fairly clear that district 23 had been dismantled to such a degree it was no longer going to be able to be used for section 5 purposes.

Similarly, under section 2, the State saw that it was terribly vulnerable and so again tried to make an offset district which caused its own problems.

So the use of race here to achieve the 50.9 percent voting age majority was not to satisfy the Voting Rights Act, either section 5 or section 2.

Justice Souter: So you could have used that reasoning to create a district in the first place, but you cannot use that reasoning to create an offset district in the second place at the same time that you're trying to protect an incumbent.

I think that's what you're saying.

Mr. Perales: To create a district with 50.9 percent voting age population here in this part of the State, it would be obvious that you weren't going to yield an opportunity district.

Justice Souter: In other words, you're saying that would be implausible as a section 2/section 5 justification, regardless of when you're doing it.

Is that--

Mr. Perales: Yes.

Justice Souter: --Yes.

Mr. Perales: Yes, most certainly.

This case represents an egregious use of race in redistricting.

Without the Equal Protection Clause to protect minority voters, States will have free rein to use race to manipulate not only electoral outcomes, as it did here, but also the complexion of a district in order to be able to express some kind of symbolic--

Justice Scalia: But, of course, you want them to use race to manipulate outcomes.

It's just sometimes.

Chief Justice Roberts: You may answer.

Mr. Perales: --Thank you, Mr. Chief Justice.

To serve a compelling State interest, to comply with the Voting Rights Act, yes, Justice Scalia, it is appropriate.

It was not appropriate here.

Argument of R. Edward Cruz

Chief Justice Roberts: Thank you, Ms. Perales.

Mr. Cruz.

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

The central issue in resolving these various challenges to mid-decade redistricting is determining which institution is constitutionally vested with the primary responsibility for redistricting.

Elected legislatures or Federal courts.

In Texas, for the first time in 12 years, the legislature acted to adopt a congressional redistricting map.

That map, in turn, replaced one of the most profoundly anti-majoritarian congressional maps in the country with a map that reflects the demonstrated preferences--

Justice Stevens: But may I ask, General Cruz, are you talking about replacing the court-ordered map or the preceding Democrat gerrymandered map?

Mr. Cruz: --The legislature replaced the court-ordered map, but the court found as a factual matter that the court-ordered map, in the court's words, quote, perpetuated the 1991 Democratic Party gerrymander, and that was the court characterizing its own map with the same judges.

Justice Stevens: Yes, but you don't think it really perpetuated the same degree of gerrymandering that was present in the earlier map, do you?

Mr. Cruz: Well, the court's map, under the--

Justice Stevens: I'm asking you.

Mr. Cruz: --Yes.

Justice Stevens: Do you think it did?

Do you think--

Mr. Cruz: Yes, we do.

Justice Stevens: --the court-ordered map is just as bad as the Democratic map?

Mr. Cruz: The district court found that it had blunted some of the most egregious lines, but under the district court's map, 28 of 28 incumbents were reelected.

So the identical outcome was yielded.

Justice Stevens: But is your opponent correct in saying that in six of those districts, the Democrat won even though the district was majority Republican?

Mr. Cruz: That... that is correct, and then the district court--

Justice Stevens: Does that sound like a gerrymander?

Mr. Cruz: --It... it depends.

The districts were drawn such that the Democrats who were running were incumbency.

And the reality of congressional elections is that incumbency is a tremendous advantage, and in the face of incumbency--

Justice Scalia: No.

I was going to say I... if I were gerrymandering, I would absolutely want to leave majority other party districts in which the people from the other party were voting for a candidate from my party with some regularity.

I'd want to do that.

That's exactly what I'd want a gerrymander to do.

Mr. Cruz: --And that's exactly right.

These districts were drawn to protect incumbents.

It is notable that if one looks on a national level, the 2001 map drawn by the court led to the most anti-majoritarian results of any of the 50 States in the Union.

There were only two other States with more than five Members of Congress that saw a minority of voters electing a majority of the delegation, and those were Illinois and Tennessee.

In each of those, 49 percent in Illinois elected one extra seat to Congress; in Tennessee, 48 percent.

In Texas, by contrast, 45 percent of the two-party vote and 41 percent of the overall State vote elected not just a one-seat majority, but a two-seat majority.

So on any national level, the prior map was the most profoundly anti-majoritarian.

Now, this Court resolved in... in Vieth that majoritarianism is not a constitutional mandate, but that being said, as Mr. Smith characterized in Vieth, he characterized the fundamental principle of democracy... and this is Mr. Smith's characterization... is the principle that a majority can elect a majority of the delegation.

And as this Court concluded in Gaffney v. Cummings, achieving political fairness, achieving a rough sense of proportionality, such that a majority can elect a majority of the delegation, is not only legitimate, it is salutary.

It is--

Justice Breyer: All right.

So I... I wrote an opinion, as you know, where I was agreeing with you on that, and I wonder if... if then the thing to do would be to say, yes, indeed, a legislature can redraw a map to prevent a minority of the voters electing a majority of the congressional delegation.

But when they do that, there has to be some reasonable assurance that it works the same way for both parties.

I mean as a standard.

I thought my standard worked before.

I guess there wasn't that much agreement, but... but--

[Laughter]

--from the point of view of... of taking that standard, which you agree with, I'm glad to say, apparently, and modifying it to be sure it works out the same way for both.

Mr. Cruz: --Justice Breyer, under the standard articulated in your opinion in Vieth, in our judgment the result would be a straightforward affirmance here because the map that was adopted is precisely what was advocated in Vieth of a majority of the population electing a majority of the delegation.

That being said, the question here is not whether that is required.

Indeed, it is ironic.

In 1992 the Republicans in Texas brought a political gerrymandering challenge to the predecessor map here, and that map was rejected... that challenge was rejected under Bandemer, and the district court in 1992 told the Republican plaintiffs... said even though this may be tilted against you, there is nothing to prevent you, over the ensuing decade, from running candidates, from building support, and from eventually taking control by electing your candidates to the machinery of government and adopting a map you deem fair.

That... those words of the district court prove prescient because that is precisely what happened over the ensuing decade, and it is equally true today.

There is nothing in Texas to prevent the Democratic Party from doing the exact same thing over the ensuing decade if they can command a majority of votes at the polls.

Justice Stevens: May I ask you this question?

Assume you're correct that as a whole the plan is well-justified and makes gains and so forth.

Does that necessarily mean that every district within the... the plan is immune from constitutional attack?

Mr. Cruz: Of course, it does not, and there are a variety of district-specific attacks.

The plaintiffs have framed their partisan gerrymandering attack as one that focuses on the map as a whole.

And... and the--

Justice Stevens: I understand.

Mr. Cruz: --and the reason for that is that in the Vieth decision, Justice Kennedy's concurrence was the controlling concurrence, and it set out a standard for subsequent partisan gerrymandering cases that litigants should find a, quote, substantive definition of fairness in districting that commands general assent.

Rather than attempt to meet that challenge, the plaintiffs have refused to discuss effects at all, and that's not by accident because any assessment of effects would yield that the current plan is more fair than the predecessor.

Justice Stevens: And the... the next question I wanted to ask you is that if it is possible there can be a single-district challenge, what is the justification for the... the cracking of district 24, which was a majority Democratic district before, into five different districts, none of which would elect a Democrat.

Mr. Cruz: The legislature made a policy judgment, and under the decision--

Justice Stevens: But is it... is it defended by anything other than political motivation?

Mr. Cruz: --There were a host of--

Justice Stevens: I mean in district 24.

Mr. Cruz: --There were a host of judgments about the multiple districts that district 24 was broken into, and the district court found, for example, that Representative Grusendorf wanted the City of Arlington contained in one single district.

There were a whole host of specific motivations about the surrounding districts that were drawn.

Indeed, the district court said on remand that appellants' argument ignores, as it must, the reality that the lines are infused with the myriad mixtures of local politics and accommodations, often inconsistent with overall objectives of partisan gains.

That was the district court's finding on remand, that there are a host of decisions here that have nothing to do with partisan gain, that have to do with drawing a map that are the constitutional responsibility of a legislature in drawing a redistricting map.

Appellants frame their basic challenge on partisan gerrymandering because they cannot look at effects, because any examination of substantive effects yields the conclusion that the current map is much more fair than the prior.

They disavow any examination of effects.

Instead, they frame it as solely partisan intent, which has never been the standard under this Court's precedents.

But even under that standard, they base it on a simple syllogism that is found nowhere in the Court's precedents, a syllogism that says because there was an extant legal map in place, the redistricting was unnecessary.

And so anytime there is a court map, it is unnecessary redistricting.

The problem is appellants raise a false dichotomy because every legislative redistricting is voluntary.

Whether it is Texas in 2003 or Pennsylvania in 2001, the legislatures face a binary choice.

They can act and adopt their legislative policy preferences, or they can not act, in which case they know with an absolute certainty that a court-drawn map will govern the election that follows.

In Pennsylvania, to be sure, it was a map that would be drawn subsequently, but the decision is the same.

Does the legislature act to embody its preferences or does it allow a court-drawn map to govern the elections in the States?

And I would note the consequence of the rule that appellants are urging is that it would create an enormous incentive for the minority party in every State to attempt to deadlock the system, to shut down at the beginning of the decade any effort to adopt a map because if they're able to deadlock the system, if they are able, as happened in Texas, to flee the State and no map passes, the consequence of that... they would know for certain under appellants' rule... is a court will draw the map.

And under the Upham standard, the court map will reflect the preexisting policy judgments of the predecessor legislature.

So any minority party has an incentive.

If they can stop it from happening at the beginning of the decade, they have an incentive to seek a better map.

Justice Scalia: A... a minority who was a majority.

Mr. Cruz: Indeed, yes.

That... that is predicated upon a preference for a decade ago rather than what would be adopted now.

The Framers chose political checks for the problem of partisan gerrymandering.

They assigned principal responsibility to elected State legislatures whom they certainly knew would care a great deal about politics, and they assigned supervisory authority to another elected legislature, Congress.

The appellants point to a host of perceived policy problems about the specter of seriatim redistricting of legislatures coming back every 2 years and tweaking the line here and tweaking the line there.

To the extent that is a problem, Congress is the institution constitutionally authorized to address it, and there is no indication that there is a looming threat of seriatim redistricting.

It didn't happen here.

It was the first time in 12 years the legislature had acted.

Justice Stevens: General Cruz, could I ask you another district-specific question?

Because I want to get it on the table and let you explain it to me.

Focusing on district 23 for a moment, assuming for the moment... and I... I know you probably disagree with this but... that the results of the redrawing of district 23 violated section 2, would you say that it would be a defense to that violation that the motivation was actually non-racial but purely political?

Mr. Cruz: As the hypothetical is... is asked, the answer would be no.

But... but the difficulty is if the motivation... if there's a violation of section 2, a political motivation does not excuse it.

Justice Stevens: Not a defense.

And the second question for me is that if there were a violation in district 23 of section 2, could it be cured by creating a district... the district farther to the east.

I forget the number.

25 I guess it was.

Would that be a cure in your... in your judgment?

Mr. Cruz: The Court has concluded before--

Justice Stevens: Given what the Court said in Shaw II.

Mr. Cruz: --Right, right, that... that a... a section 2 violation in one area cannot be corrected with a discrete change in a different area.

Justice Stevens: Right.

Mr. Cruz: However, in De Grandy, the Court also said that the assessment is the totality of circumstances in the region under-assessed.

And in the totality of circumstances, the district court made factual findings against the plaintiffs that they cannot demonstrate were clearly erroneous.

Indeed, that... that is the problem with all of the district-specific claims that all of the sets of plaintiffs have brought is that this was tried in a full trial.

The district court took testimony, made credibility determinations--

Justice Stevens: Except for the fact the district court really didn't find a violation in section 2.

They didn't quite, as I'm suggesting, say, well, given a violation on section 2, can we cure it and have a defense by what we do in... in district 25.

And I don't think De Grandy is an answer to that, and I'm not quite sure whether you said yes or no on my question.

Mr. Cruz: --If they are wholly different areas--

Justice Stevens: Yes.

Mr. Cruz: --the Court has concluded no.

Justice Stevens: Yes.

Mr. Cruz: If they are--

Justice Stevens: So the argument... the question then would be whether district 25 is a wholly different area from district 23.

Mr. Cruz: --That's correct.

Chief Justice Roberts: And what do we look at to determine that?

I know what we said in De Grandy, but I mean how... I mean, you talk about the south and west Texas.

I mean, on the other hand, 23 and 25 are actually not that close together.

So how do we know that we should be looking at all the way from El Paso to the Gulf, as opposed to a narrower area?

Mr. Cruz: They are not that relatively close together, but... but that is because this region of Texas is... is vast and... and relatively lightly populated.

And so district 23, for example, runs 800 miles in length because you've got miles and miles of... of desert land and open ranch land with very low population.

The way the Court did it in De Grandy, which is also the way the Court should do so here, is to look at what the parties agreed to and how they litigated the case.

In this case, everyone litigated the district 23 section 2 claim with a focus on south and west Texas.

Indeed, what speaks volumes is that if one examines the demonstration map that the GI Forum appellants introduced, which is at their... their appendix to their jurisdictional statement, page 241, that map only covered south and west Texas.

They proposed no districts for the rest of the State.

They were focused--

Chief Justice Roberts: But I didn't understand Ms. Perales' argument to concern section... district 25 at all.

Mr. Cruz: --It did not, and... and, indeed, she has never joined in the racial gerrymandering claim that has been brought by the... by the Jackson plaintiffs.

Her claim has focused on... as... as it concerns racial gerrymandering, not that the legislature did too much of it, but... but in a sense that it should have done more.

It should have been more aggressive in seeking to create majority minority districts.

And... and the district court has factual findings that rule against those claims.

Justice Breyer: Would a... I'd like you to elaborate a little because, as I understood your claim, particularly in response to Justice Stevens, you agree that if 23 violated section 2, they can't make up for it somewhere else.

You agree they can't make up for it particularly when their only way is for political reasons.

But your argument is they never violated... that 23 as redrawn didn't violate section 2.

Mr. Cruz: That's correct.

Justice Breyer: And the reason that it didn't violate section 2, I want to know, is what?

Because you have the three preconditions which seem to be met, and then you have some kind of... it doesn't violate section 2 from De Grandy if, despite the preconditions, there is some kind of overall proportionality.

But all that is rather unclear in my mind, and I want to know what your view of it is.

Mr. Cruz: There are multiple reasons, Justice Breyer.

As an initial matter, the district court found on page 131a of the Jackson appendix to their jurisdictional statement that CD 23 was not an effective minority opportunity district.

So that's a direct finding that the... that the old CD 23 was not an effective minority opportunity district.

Chief Justice Roberts: And why was that?

Mr. Cruz: Because the... the data demonstrated that a majority of Hispanic voters were not able to elect their candidate of choice.

Although Congressman Bonilla consistently commanded a significant percentage of Hispanic votes, he did not command a majority, and the candidate for whom a majority voted did not prevail in the congressional election.

Justice Stevens: But isn't that somewhat inconsistent with the decision to reshape the district?

Why did they do it then?

Mr. Cruz: What the legislature did... the legislature's express intention was to shore up Congressman Bonilla's electoral chances, and... and it was explicitly because Congressman Bonilla is a valued member of the delegation and the legislature made a judgment that they wanted to increase his margin of victory.

One--

Justice Kennedy: And... and in your view, that justification allows the creation of district 25, which has, as far as Latino population, people of quite different economic backgrounds and so forth, you know, the... the two-ended... the district on the two ends.

Mr. Cruz: --We did not--

Justice Kennedy: That... that to me was... was not discussed much in your brief, but it's a serious Shaw violation.

And... and the two are really linked, 23 and 25, in this respect because it was by virtue of what it did in 23, that the State claims a right to do what it did in 25.

Mr. Cruz: --We did not place our principal emphasis, with respect to 25, on the Voting Rights Act's concerns potentially raised by the alterations in 23.

That was a motivation, but it's not our principal motivation.

Our principal argument on 25 is that there are a series of factual findings the district court made that are not clearly erroneous and, indeed, we would submit, are... are completely supported by the record to--

Chief Justice Roberts: Do you have a... a section 5 argument with respect to district 25 as opposed to a section 2 argument involving district 23?

Mr. Cruz: --The legislature was certainly concerned about section 5, and with respect to the adjustment in... in district 23, it was possible that the Department of Justice might deem the alteration of district 23 to be something that would be retrogressive and, accordingly, having a district that was... a performing Hispanic opportunity district would increase the chances of preclearance.

So... so that was a factor in the consideration, was a desire to comply with section 5 and also to comply with section 2, although section 5 was the... the principal focus of the legislative discussion.

Chief Justice Roberts: Is it permissible for a legislature concerned with section 5 to take race and ethnicity in account... into account in drawing a district?

Mr. Cruz: This Court has never squarely resolved that.

This Court has assumed in the racial gerrymandering cases, assumed without deciding, that compliance with the Voting Rights Act is a compelling interest.

And the... the districts that have struck down have been struck down as not being narrowly tailored.

Although we advance that argument, we don't have to prevail on that argument for district 25 to survive the racial gerrymandering claim.

Justice Kennedy: And as to 23, do you want this Court to say that it's constitutionally permissible to take away a number of minority voters from the district, but leave just enough so that it looks like a minority?

Is that a permissible use of race?

It... it seems to me that's an affront and an insult.

Mr. Cruz: Except the district court found as a factual matter that what happened in district 23 was wholly political.

It was not racial, so that the voters were not removed because of race.

They were removed because of politics.

Justice Kennedy: Well, but... but the additional finding is that 50 percent were kept to make it... to make it look good.

Mr. Cruz: The... the legislature was aware of... as this Court has said, the legislature will always be aware of the racial composition of a district.

But the legislature specifically... for example, unlike Bush v. Vera, there are no bloc-level cuts based on race.

Indeed, in district 23, what the legislature did, by and large, is go straight down Interstate 35 which cuts right in the middle of Webb County.

Now, if one considers Webb County, there... there are two halves of it.

There is the half that moved into new district 28.

Now, those voters presumably cannot complain about being disenfranchised in that.

At least the Hispanic voters there are now in a unquestionably performing Hispanic opportunity district that elects an Hispanic Democrat to Congress.

The remaining voters in Webb County... in 2004, Congressman Bonilla carried a majority of Webb County, and so it is difficult to see who is being disenfranchised, given that both halves of Webb County are electing a Congressman for whom a majority of their voters are voting.

Justice Souter: Why... in... in--

Chief Justice Roberts: Go ahead.

I'm sorry.

Justice Souter: --In... in contrast to that, however, you could not make that argument or... or that response with respect to... to district 24, the district in which the... the black vote was... was cracked.

And in response to earlier questions from Justice Stevens, you... you mentioned there were a number of motivations for dividing it up the way it did, and... and yet, as you also acknowledge, those differing motivations don't answer a... a section 2 argument.

What is your answer to the section 2 claim?

Mr. Cruz: Well, as you know, Justice Souter, purpose under the '82 amendment is irrelevant to section 2.

It is an effects-only test, and... and the district court had a series of factual findings, most of which appellants did not even challenge until their reply brief, each of which is independently sufficient to defeat their claim.

The... the district court found against them on all three prongs of Gingles, and those findings were fully supported by the record.

As an initial matter, the appellants attempted to frame this as debating the legal question over whether 50 percent is an absolute barrier.

The district court concluded that it needn't resolve that question because the facts here presented no opportunity to determine if there might be some tolerable deviation below 50 percent.

In this case, African American voters in old district 24 comprise less than 22 percent of the voting age population.

Justice Souter: But... but following Georgia and Ashcroft, isn't... isn't that a possibility that we should consider as a satisfaction of what has come to be known as the... you know, the first of... of the Gingles factors?

Mr. Cruz: In our judgment, Georgia against Ashcroft expanded the flexibility for States to determine how to comply with the Voting Rights Act.

Georgia against Ashcroft obviously was a section 5 case, and it determined that in considering retrogression, that opportunity districts and influence districts should both be considered.

It surely did not mean that there was a cause of action now for any plaintiff to argue that any conceivable influence district must be drawn.

That goes entirely against the central theme of Georgia against Ashcroft, which is that States have flexibility in choosing a representational model for voters in that State.

Justice Souter: But it... it is not inconsistent with Georgia and Ashcroft to say that for... for much the same reason, States have less flexibility in cracking influence districts once they have been established.

Mr. Cruz: That might perhaps be true if the plaintiffs could demonstrate the other Gingles prongs, but on the second and third prong, the district court found that African American voter cohesion was far from clear and there was absolutely no cohesion between African Americans and Hispanics in district 24.

Indeed, they voted in an almost completely polar manner in Democratic primaries.

And third, the district court found that there was not Anglo bloc voting.

And so all three of the prongs... what the district court found as a factual matter is that district 24 functioned as an Anglo Democratic district.

And indeed, this case is unusual in that there were some extraordinary direct testimony that the way district 24 operates is not accidental, that in 1991, it was explicitly drawn by Anglo Democrats for the specific purpose of electing Anglo Democrats and only Anglo Democrats.

And that was testimony not from a State witness but from Congresswoman Eddie Bernice Johnson, a Democratic African American incumbent from the adjoining district who was in the State legislature in 1991, and she said the African American population there was deliberately split up to create a district that would be... elect white Democrats.

That direct testimony is extraordinary and it shows that what the data demonstrate, which is that white Democrats control the district... and that's what the district court found as a factual matter... is not an accident.

It was precisely the intended effect of the map-drawers.

Indeed, if one looks to the three races that the appellants' experts examined that were African American versus Anglo in the primaries, of those three races, an African American candidate of choice who was black prevailed in only one.

Of the 20 races appellants' experts examined, of those 20, only one black candidate prevailed, and that case, the district court found, was aberrational because that candidate was Ron Kirk.

He was a former mayor of the City of Dallas.

He was a very popular, local politician with a strong friends and neighbors effect.

If you take that aberrational case out, the two other cases appellants' experts looked to both showed that the African American candidate, one of whom was supported by 76 percent of African American voters, lost.

And indeed, what happened was the Anglos and the Hispanics voted in virtual unison against the African American candidate.

That data... if one looks to the endogenous races, there had never been an African American opponent to Martin Frost, or the exogenous races, those three we talked about... the data demonstrate quite persuasively that African Americans were drawn into a district where they did not have an equal opportunity to elect their candidate of choice because they lacked the ability to elect a black candidate.

Now, they could choose to do otherwise, but in this district, they could not choose to elect a black candidate.

And that was the district court's finding and that's what the data demonstrated.

Chief Justice Roberts: Counsel, can I move you south and west again, back to district 23?

How do we tell... as redrawn, it had what?

50.8 percent.

And I gather that that's not considered a Hispanic opportunity district because of lower voting turnout, registration, participation?

How do we tell when something is being done to make it look like a Hispanic district and, instead, when it's being done for the opportunity of providing a Hispanic opportunity district if voter turnout and registration are increased?

Mr. Cruz: The district court made a finding that the reason district 23 was altered was to increase the chances of Congressman Bonilla prevailing.

And in particular, if one looks to Webb County, which is the county that was split, Webb County centers on the City of Laredo.

And in 2002... the race that the GI Forum appellants focus on principally... the candidate that ran against Congressman Bonilla was Henry Cuellar, a popular, local politician from Laredo, and he had a very strong following in Laredo.

And as a consequence, Mr. Cuellar did very well in that election, came within slightly under 4 points of beating Mr. Bonilla and Mr. Bonilla's percentage of the... of the Latino vote dropped to its lowest historic point.

That, as the district court found, was also aberrational because of Mr. Cuellar's very strong local support, and the clearest evidence of that is under the new map, when half of Webb County was placed in the adjoining district, district 28, Mr. Cuellar ran against the incumbent Democratic Congressman, Ciro Rodriguez, and beat him in the primary, which demonstrates that his success was because the... the voters in Laredo are supporters of Mr. Cuellar and, accordingly, voted for him against either opponent, Henry Bonilla or Mr. Rodriguez.

And so, when the legislature was determining which section of voters to remove for political reasons, the region that voted heavily against Mr. Bonilla in the preceding election, Laredo, Webb County, was a natural place to move voters who had in the last election demonstrated they would vote for his opponent.

Under any assessment of 23, the prior map had five districts that were indisputably Hispanic opportunity districts, plus district 23 that elected Congressman Bonilla, an Hispanic Republican.

The current map has six districts that are indisputably Hispanic opportunity districts, plus district 23 which elects Henry Bonilla.

So the result is the same in district 23, and there is an additional Hispanic opportunity district in district 25.

If I may turn to district 25 and return to Justice Kennedy's questions earlier about racial gerrymandering with respect to that district.

The first indicium this Court has looked to in racial gerrymandering case... cases is unusual or bizarre shape, and on that indicium, this district does not fall anywhere near the districts this Court has struck down as racial gerrymanders.

Justice Kennedy: Well, of course, the reason the lines are straight is nobody is there.

[Laughter]

Mr. Cruz: But those counties have to be placed in some district.

And... and so the appellants call a series of seven whole contiguous counties a land bridge, but those are very sparsely populated counties.

In whatever district they're in, they're going to have to connect with a population zone.

And what the district court found as a factual matter is that the elongated nature... the relatively elongated nature of district 25 was a function of the geography and the fact that you have population along the border and then you have a large space of relatively low population, and then you have to get back up to population.

So Texas historically has run north-south districts to get enough population to form a congressional district under this Court's one person/one vote precedents.

District 25, if one examines... the district court expressly found that the plaintiffs failed to prove purposeful discrimination.

The State defendants introduced at trial a Cromartie analysis that was precisely drawn from this Court's first Cromartie decision, Hunt v. Cromartie, and it's found on pages 331 and 332 of the joint appendix.

And what that analysis did is precisely what this Court found in Cromartie I was sufficient on summary judgment to defeat a claim of racial gerrymandering.

It assessed the lines in Travis County, the northern part of district 25, and it asked are the cuts the legislature made driven by politics or driven by race.

And so what the State's expert did is drew a map that would be based on race that would maximize the Hispanics in district 25 on the northern end of Travis County.

He then compared that map to the map that the legislature had drawn and said what are the differences between what it would look like if the legislature was attempting to maximize race as compared to what it would look like if it was attempting to maximize party.

And what the State's expert found is there was on the order of a 1 percent differential which is you're talking between 24 and 25 percent.

So it was about 4 percent differential of fewer Hispanics in the State's map and more Democrats in the State's map.

And so what the State's expert found is precisely along the lines as the evidence in Cromartie I that the legislature had drawn the map looking for Democrats rather than looking for Hispanics.

In addition, if one examines the two numerical measures of compactness, smallest circle and perimeter to area, smallest circle this map measured 8.5, which is smaller than North Carolina's reconfigured district 12 upheld in Cromartie, which was 8.6 Its perimeter-to-area score, 9.5, is terribly low.

As a... as a means of comparison, districts 18, 29, and 30 that this Court struck down in Vera had perimeter-to-area scores of 106, 144, and 69, as compared to district 25's score of 9.5.

Justice Stevens: General Cruz, if you've finished your answer... I didn't want to interrupt you, but that makes... reminds me of a question I wanted to answer you because... ask you, rather, because you make a very persuasive argument in your brief, which I found very helpful, that the... a State should be able to correct a prior gerrymander by... for... with political motivations.

I would like you to comment on this suggestion.

Supposing we said they have an absolute right to do that with one caveat, that any new district has to be more compact... no more... no less compact than its predecessor, wouldn't that avoid all sorts of problems?

Mr. Cruz: That could be a salutary policy goal, and... and Congress could certainly enact that.

But I... I see no... no source in the Constitution placing that requirement upon States particularly--

Justice Stevens: We have... we have quite a history, as you just identified in your response to Justice Kennedy, of being concerned about particularly grotesque shapes, and that's why they developed these tests of compactness for use in this very litigation.

And the fact that the lawyers have come up with this approach to it makes me think maybe it does have some relevance to the whole problem we're trying to confront.

Mr. Cruz: --At an extreme level, lack of compactness can indicate something was going on.

If one looks at the districts this Court has struck down, if you look at Bush v. Vera... and we have in the joint appendix the silhouettes of those districts that were... you know, had fingers going out in every direction.

There's plainly something questionable going on.

These districts are nothing like that.

Justice Stevens: When I... when I was thinking about this problem, I looked at district 24.

The thing that was interesting to me is that most of the neutral justifications that you describe... and they're certainly in the... in the five new districts that replaced it, but in the key part of the population that was moved, it becomes much less compact than it was before.

Mr. Cruz: The... the new map--

Justice Stevens: Which it seems to me quite significant.

Mr. Cruz: --The... the new map was somewhat less compact than the prior map, but it does--

Justice Stevens: And its particularly... particular reference to the targeted group that was moved out of the district.

Mr. Cruz: --But lack of compactness does not... no one has brought a racial gerrymandering claim with respect to districts other than 25 and, to some extent, 23, although the 23 challenge is not a typical racial gerrymandering claim.

Justice Stevens: No, but I'm suggesting the challenge to 24 should be a political gerrymandering challenge.

Mr. Cruz: I understand that, although a majority of the Court in Vieth concluded that in order for a political gerrymandering claim to succeed, that there must be a substantive standard for fairness to measure the map against some baseline.

Justice Kennedy: Well, Justice Stevens--

Justice Stevens: And that's the standard I'm suggesting.

Right.

That's exactly the point.

Mr. Cruz: But--

Justice Kennedy: --The compactness standard.

Justice Stevens: Yes.

Mr. Cruz: --But the Court had before it... appellants urged in Vieth compactness, principles of cracking, principles of packing.

One of the dissenting Justices advocated that standard, and yet, a majority of the Court... the plurality explicitly rejected it.

And Justice Kennedy's concurrence explicitly rejected the standards discussed in the dissents, including a standard looking to compactness.

Justice Scalia: I'm not sure that Justice Stevens is suggesting that as a standard.

He's suggesting it as a disqualifier.

If it's not as compact, it's no good, but if it is as compact, he's... I... I don't think he's suggesting it's okay.

So we still don't have a standard.

Justice Stevens: No.

I was suggesting that would be a safe harbor, and... and it would just--

Justice Scalia: A safe harbor from an unknown standard.

[Laughter]

Chief Justice Roberts: Jump in whenever you want.

[Laughter]

Mr. Cruz: Under any standard that looks to the substantive lines on the map, anything that... and we have spent hours racking our brains trying to think of a standard for litigation purposes that would yield the old map being more fair than the new one.

We're not aware of any coherent standard that looks to substance.

Justice Kennedy: Let... let me ask you this.

Suppose you have a court that's required to redistrict, and the court has two experts.

Expert number one says, here is a plan.

It's totally partisan in its orientation, but it balances the Democratic and the Republican registration.

It gives them exactly proportional representation.

Plan number two gives minimal consideration to this, but it's compact.

It takes into account geography, communities of interest, and so forth.

Would the district court be in error if it adopted the first plan?

Mr. Cruz: Well, that... that question actually was litigated in this case, the first time in 2001, as part of the litigation over how to draw the new map.

One of the arguments that was presented to the district court was that the old map was no longer consistent with how Texas voters were voting.

And the district court concluded that under the Upham case, it lacked the authority to take that into account and to change the demonstrated policy preferences of the last legislative map.

And that's why, on remand in this case, the district court found although it didn't intend to work partisan bias, that that was the effect of its map.

Justice Kennedy: Well, but my hypothetical is designed to suggest that partisanship, political lines should be certainly a secondary consideration to a valid principled scheme and that perhaps in the hypothetical case, you could reverse a district court for abuse of discretion in... in overemphasizing political considerations.

And then if that's true, it means that there is some standard lurking out there indicating that political considerations should be of at least secondary importance.

Mr. Cruz: In this case, the district court was presented with maps that would be more fair on... on pretty much any measure of partisanship, and what the district court concluded is it didn't have the ability... that making that judgment was a political judgment, and it was the legislature's job to do it.

And so it drew in the districts it was required to draw because Texas had two new districts.

It drew in what it believed the Voting Rights Act required, and beyond that, it made as few changes as possible.

And so the district court recognized that the consequence of that map-drawing technique is whatever partisan bias was there before is reflected in its own map that just neutrally carries over the preexisting bias.

And that's why the district court found it was perpetuating the prior bias, not because it intended to do so, but because it was consciously restraining itself from doing anything to alter the partisan composition other than to carry over what was already there.

Justice Breyer: What... district 24.

I take it... it's a long walking stick is what it looks like.

And the... I take it you're saying when I go back to the record here, I'll discover a finding that the district court made.

They said this was not an effort to use race to district.

Is that right?

And one of the reasons that you think that is because, although it's not a circle, it's not absolutely terrible.

That... that is a supporter of the ultimate conclusion they did not use race.

Is that right?

Mr. Cruz: Justice Breyer, that's... that's exactly correct--

Justice Breyer: Then... then if I... if I... so I have to go back, look at the record, and see what it says.

Now, suppose I came to a different conclusion.

Then you might still win on this point if the rationale for using race to district was because we want to avoid a section 2 violation.

And there, you would lose, however, because you can't use that rationale unless, according to Bush v. Vera, the district that you draw is, in their words, reasonably compact.

So, again, you'd have to say that this district that looks like a walking stick is reasonably compact for that other purpose.

Is that right?

Mr. Cruz: --Well, although we would submit this district is reasonably compact.

Justice Breyer: Yes, so I understand that.

But... but if... if I... you have two bites at this apple with your reasonably compactness.

One, you want to say it wasn't... you think this proves it wasn't to use race in the first place, but if I'm wrong on that, it's still a legitimate use of race because it's a reasonably compact effort to conform with section 2.

Mr. Cruz: Justice Breyer, you're correct that if the Court concludes this district is not reasonably compact, then under its precedents, it wouldn't be a narrowly tailored way to satisfy a voting rights violation, but--

Justice Breyer: And is there anything I can look to to decide what reasonably compact means in that second--

Mr. Cruz: --Well, the district court's finding was that Texas geography and population dispersion limit the availability of district compactness in southern and western regions of the State, and that was at the Jackson jurisdictional statement, page 154a.

So that's... there's... there's a challenge in Texas because you've got these--

Chief Justice Roberts: You're talking about district 25.

Right?

Mr. Cruz: --25, yes.

Yes, we're talking about 25.

Justice Breyer: --Yes, 25.

Mr. Cruz: 25 has seven whole counties and only two county splits, which is unusual.

Most of the cases that this Court has struck down what it's perceived to be racial gerrymanders have been a number of county splits.

In this case, the county splits... those were mandated to... because we have achieve perfect equipopulosity, so we had to get exactly, within one person, precise lines.

But within... in between the two, they are whole contiguous counties that are longstanding geographic units.

The testimony is clear that the... the legislature made no effort to avoid Anglo voters.

It's not like they snaked around.

And even the lean of it is a simple fact that the Gulf of Mexico leans like this, and it follows the geographic boundaries of the State, so that if one examines this district next to the other districts, it follows historic lines that have been used in Texas.

Justice Stevens: --General Cruz, why wouldn't it be a... at least a helpful guide to what is reasonably compact to compare with the preceding districts?

Now, that fits 24 but not necessarily 25 I understand.

Wouldn't that make... make sense if the reasonable compactness is... is one of the tests?

Mr. Cruz: One could certainly compare the preceding district, and with respect to the preceding district, the differential is... is not great.

It is somewhat more compact.

But there were other policy agendas the district court--

Justice Scalia: When you're carved out of a couple of preceding districts, which is the preceding district?

I mean, isn't... isn't that a problem with that test?

Mr. Cruz: --That... that is a certainly a challenge.

Justice Stevens: I suppose if you have a plaintiff suing, it would be the one he lives in.

Mr. Cruz: You know, if you compare, for example, district 25's perimeter-to-area score is 9.6.

You know, if... if one looks at, for example, the plan 1385 submitted by GI Forum, that has one plan, district... one district, district 28, with a higher perimeter-to-area score of... of 10.0.

And indeed, the district court found as a factual matter that the demonstration plan submitted by the GI Forum appellants was... was less compact and critically would not perform.

Going back to the section 2 question about district 23, the district court found that one district in the demonstration plan, district 28, had only a bare majority of citizen voting population, 50.3 percent, and there was undisputed testimony that for a district to perform in this region, it had to have--

Chief Justice Roberts: Why did they have... why did have just 50.3 percent?

Mr. Cruz: --Because the Hispanic population is dispersed enough that one can't... one can't draw--

Chief Justice Roberts: They're doing that to make it look like whoever was elected had Hispanic support in that district?

Is that--

Mr. Cruz: --We did not ascribe motives to them.

They... they drew it to demonstrate that... that you could draw a district with a bare majority citizen voting population, although their experts also testified that a bare majority will not elect in this region because of lower voter... voter turnouts.

Justice Breyer: On the... either it is reasonably compact or it isn't.

If it is reasonably compact, we never get into Bush v. Vera, whatever, the Vera case in the first place.

And if it isn't, you can't get out of it by saying it's an effort to cure a section 2 violation.

Mr. Cruz: Correct, but with respect to the question of racial gerrymandering, this Court's question is, is race the predominant motivation?

There's a direct factual finding by the district court that it was not.

Indeed, the district court said that the... that the measures of compactness, examined in relationship to the geography and population, reflect the sheer size and population distribution of this area, rather than a calculated stretch to find voters of a particular ethnic makeup.

Justice Kennedy: You mean 25... the... the Latino makeup of 25 is accidental?

Mr. Cruz: It is a function of the population in south and west Texas.

Justice Kennedy: It's accidental.

Mr. Cruz: The... it is not accidental in the sense that the legislature was unaware, and as this Court has said, whenever a legislature is districting, it is aware of the... the racial distribution.

But it was drawing an additional district there, and the district court found that in drawing those lines, it did not reach out to segregate voters on either side based on race, that that was not its intent and that was not the effect of what it in fact drew.

Justice Souter: What... what do you say to Ms. Perales' argument that the... the numbers are just too precise to have been reflective of anything but a racial motivation, and that, therefore, the... the district court's finding was clearly erroneous?

Mr. Cruz: Well, that... that concerns district 23, and... and--

Justice Souter: Aren't they equally precise here?

Mr. Cruz: --No.

District 25 is... has a... a large majority on Hispanic voting age population and also citizen voting age population.

Justice Souter: I... I misspoke.

Okay.

Mr. Cruz: With respect to district 23, there's an unusual aspect to the GI Forum appellants' arguments in that it's unlike a typical racial gerrymandering claim where they say you're... you're seeking to draw lines based on race.

She's arguing they should have been more aggressive drawing lines on... based on race, which is... which is not an argument that sounds in the Shaw line of cases.

What the district court found is that it was purely a political motivation that drew that decision, and if one is looking to the Voting Rights Act, under any assessment, the district is performing identically as it did before.

And on the totality of circumstances, either based on the region, in which case their argument... argument is one for maximization... they have six of seven districts.

They're arguing they're entitled to seven of seven districts... or on a statewide basis, the district court found totality of the circumstances was met.

With respect to district 24, the findings... the... two of the three findings, with respect to Anglo bloc voting and cohesion, the appellants have made no attempt to get around other than in their reply brief, they have... have briefly challenged them.

But it was their own expert who provided the information that the district court found credible, that there was no cohesion, that African Americans couldn't elect their candidate of choice.

And it is undisputed that in new district 9, African Americans can elect their candidate of choice.

And so from a statewide... from a totality of circumstances perspective, the ability to elect a candidate of choice for African Americans in the State is higher under this map than it was in the preceding map.

In sum, the basic question here is whether courts or legislatures are the principal decision-makers.

If appellants' proffered rule is adopted, it removes the safety valve that the Constitution provided.

It is rarely employed because it is rare that one finds a plan so out of step with the demonstrated preferences of voters for a decade.

We are aware of no other plan that allowed a minority of voters who never crossed the 44 percent threshold to control the majority of the delegation.

We're aware of no other map in the country.

And so if there is a standard that this is impermissible, that consequence would either elevate courts above legislatures, contrary to the constitutional text and to 4 decades of this Court's precedents, or that looks to substance, it would call into question the districts and a hosts of other districts because on any objective measure, the districts in Texas are fair as a partisan matter, compared to the other States, compared to the predecessor map, compared to any metric that one applies.

Indeed, the social scientists say, based on the seats/votes curve, that given that Republican voters are currently voting at roughly 60 percent for Republican candidates, one would expect a higher percentage of Republican candidates elected than... than what this map is yielding.

And so on any coherent measure of a substantive measure of fairness, this map should survive.

If there are no further questions.

Argument of Gregory G. Garre

Chief Justice Roberts: --Thank you, Mr. Cruz.

Mr. Garre.

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

The United States' participation in this case is addressed to the Voting Rights Act issues, and our position is that the district court properly concluded that the 2003 plan does not unlawfully dilute minority voting strength in either the Dallas/Fort Worth area or the south and west region of the State.

The district court based that conclusion on factual findings that are entitled to great respect on appeal and that preclude appellants' section 2 claims under this Court's decisions.

Justice Stevens: May I ask you if you agree with General Cruz, that if the results of the 20... section... district 23 violated section 2, it would not be a defense that was politically motivated?

Mr. Garre: I... I think that's right, Justice Stevens, insofar as--

Justice Stevens: And would you also agree with the second question I asked as to whether if it were a violation... I understand you don't think it was... it would not be a defense that they were able to create a district... a Hispanic district in another part of the State.

Mr. Garre: --Well, that's true in the context that the Court said it in the Shaw II case, but we don't think that the principle of Shaw II would apply to the section 2 claim in the south and west part of Texas in this case.

And that's because in Shaw II, the Court found a violation in the southern part of the State and considered the question as to whether a creation of a district in a completely different part of the State, the middle of the State with no connection, would remedy the section 2 violation, and the Court said no.

This case deals with a section 2 claim which is addressed to a particular region of the State, a region that's marked by its high concentration of Hispanic citizen voting age population, as well as common geography and other factors.

And we know that the claim is addressed to that particular region of the State because that... that region is the focus of the plaintiffs' demonstration plan.

Mr. Cruz referred to it.

It's at page 241 of the GI Forum jurisdictional statement.

That's the plan that they claim they're entitled to under section 2 of the Voting Rights Act, and it's addressed to the entire part of the State.

So in that situation where you've got a claim where you have a... a Voting Rights Act section 2 claim addressed to a particular region of the State, we don't think that the Shaw II principle would come into play.

Here, we don't think there's any section 2 violation with respect to the elimination of--

Justice Stevens: Is that based on the premise that section... that district 25 and district 23 are in the same part of the State?

Mr. Garre: --Yes, not just the same part of the State, but a part of the State that falls within the section 2... within the focus of the plaintiffs' section 2 claim, and a part of the State that's marked by its high concentration of minority citizen voting age population.

In... in the De Grandy case, this Court confronted a very similar problem where you had one part of the State, the Miami-Dade area of Florida, which had a high concentration of Hispanic citizen voting age population, and the State was drawing various districts in that part of the State.

And the Court looked to those districts and considered whether there was a proportional representation of the minority group in that area and... and found that, under the totality of the circumstances, there was, and therefore, there was no violation of section 2.

Here, you have a situation where the district court found that the citizen voting age population in the south and west part of the State was 58 percent, and that under the State's plan, Hispanics enjoyed 85 percent majority minority districts in that area, which is to say, six of the seven districts under the State's plans were districts in which Hispanics enjoyed a majority of the citizen voting age population.

The decision within that area of where to draw district lines is a decision that section 2 and this Court's precedents leave up to the States.

And, in fact, in the De Grandy case, this Court in... in particular considered the situation where a district line ran through a minority neighborhood and split up that neighborhood.

The Court discussed it on page 1015 of its decision.

And it said that the fact that the district line went through that neighborhood and had an effect on minority voters, in terms of which district they went into, didn't in itself establish a section 2 violation.

And we think the same principle would apply here, where the fact that the district lines separating district 23 and 28 in the southern part of the State near Laredo splits a Hispanic neighborhood, which is, after all, not... not surprising given that the large percentage of the population in that part of the State is Hispanic, doesn't in itself establish a section 2 violation.

The plaintiffs' section 2 claim in that part of the State really sounds very much in a section 5 retrogression or dismantling claim, and this Court made clear in the Holder v. Hall case that retrogression principles of section 5 are not applicable in section 2 cases.

And we certainly think that that principle holds here and that--

Justice Kennedy: Are there cases that... that we've issued from this Court that address what happens in a case like this where the economic circumstances and many other circumstances of the two Latino populations are very different?

The border Hispanics and the Hispanics in Austin have very... very little in common other than... than the Latino background.

Are there... are there cases that address whether or not these populations can be combined in... in order to satisfy the... the Voting Rights Act requirements?

Mr. Garre: --Well, I don't know of a--

Justice Kennedy: Have we talked about that?

Mr. Garre: --specific case that has addressed that concern.

I suppose it would go perhaps to the cohesiveness analysis under the Gingles factors.

I mean, what... what is clear under this Court's cases and the text of section 2(b) is that the Court has to take into account the totality of the circumstances in the area, not just the rough proportion... the existence of proportionality between the Hispanic population and the number of districts in which they enjoy a majority, but all the circumstances that could bear on the region.

And the district court in this case conducted that analysis and it found, under the totality of the circumstances, that there was an... that there was not a section 2 violation in the south and west region of the State.

And we certainly think that that finding is entitled to respect under the clearly erroneous standard that this Court applies in reviewing findings... ultimate findings of vote dilution.

The Court has... has said repeatedly that it will not disturb such a factual finding unless it is left with the definite and firm conviction that a mistake has been made, and we don't think the record in this case would support such a conclusion with respect to either the section 2 claim in the south and west or the section 2 claim in the Dallas/Fort Worth area.

As we have explained in our brief, that claim... and I'm now turning to the Dallas/Fort Worth claim... fails because of the district court's finding that African American voters in old congressional district 24 lacked the ability to elect candidates of choice in that district in the sense that they would be unable, in a contested election, to put their candidate, the African American candidate, into office.

That finding too is supported by ample record evidence and we think could not be set aside under the standard that this Court applies.

Justice Breyer: Is it possible it violates section 2, the following?

We look at the map as it's drawn.

We ask the question, is there a way to redraw this map so that, say, the minority group has a more significant influence for their bloc voting, et cetera, et cetera?

Gingles.

Answer: Of course, there is.

It's the old way.

And you say, well, why didn't you do it the old way?

Well, the only reason you didn't do it the old way was pure politics and that that isn't a sufficient justification.

Mr. Garre: Well, I don't think that would bear on the typical section 2 analysis that this Court would apply.

The... the plaintiffs bear the burden of coming in in a section 2 case, which is, after all, a claim that the State is forced to draw a district in a particular way, to show the demonstration district in which the three Gingles factors can be met.

And this case is a little bit unusual in that instead of coming up with a... a new district, they've just pointed to the old district, which in itself is... is similar to more of a section 5 claim.

But with respect to that district, the district court failed... failed to... the district court found that plaintiffs failed to meet the first Gingles precondition, which is that they could not show in that district that they had the ability to elect the candidate of their choice because African Americans were 22 percent of the population in that district, the third largest racial group, and because other evidence, including the past elections in that district and direct testimony of politicians with intimate familiarity of that district, supported the logical conclusion that a group that comprises only 22 percent of the electorate--

Justice Breyer: I was thinking of district 23.

Mr. Garre: --Oh, I'm sorry.

With respect to district 23, again I... I think the... the framework for the plaintiffs' challenge to section 23 is the south and west region of the State in a claim that they were entitled to a seventh... a seventh effective majority district in that part of the State.

The State's plan, 2003 plan, gives them six majority minority districts.

The plaintiffs, GI Forum--

Chief Justice Roberts: That's not... not including 23.

Mr. Garre: --Not including 23.

That's right, Mr. Chief Justice.

They claim that they're entitled to a seventh majority minority district.

The district court rejected that claim because it found that they had failed to show that the seventh district that they drew would be an effective district because it only had 50.3 percent citizen voting age population--

Chief Justice Roberts: When you say they drew, you mean GI Forum proposal?

Mr. Garre: --The GI Forum drew.

That's right.

And again, that's at page 241 of the GI Forum jurisdictional statement.

It found that that district was not effective because it only had a 50.3 percent citizen voting age population, and the district court found, based on the testimony that showed that Hispanics have a comparatively low turnout rate in elections, that a 50.3 percentage wouldn't do the trick to give them the potential to elect.

Chief Justice Roberts: Thank you, Mr. Garre.

Mr. Garre: Thank you.

Rebuttal of Paul M. Smith

Chief Justice Roberts: Mr. Smith, you have 4 minutes remaining.

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

As I understand the State's argument, it is that the rational, legitimate governmental purpose that was served in passing a new map in 2003 was to eliminate an anti-majoritarian map drawn by the Federal district court in 2001.

I submit to you that's an odd use of the word in a couple of different senses.

First of all, as the experts for both sides found and as the court itself found, that... the court-drawn map was not unfair or biased in any way.

It did not in any way maldistribute voters in a way that... that hurt... hurt Republicans' chances to elect Members of Congress.

So when Mr. Cruz says that the problem with the old map was that a minority of voters were controlling the delegation, that is factually untrue.

What happened was that Republican districts chose to elect moderate to conservative Members of Congress who happened to be affiliated with the Democratic Party rather than the Republican Party, but that does not mean that Democrats were controlling the delegation.

The anti-majoritarian name is odd in another way because the map that replaced it, of course, is terribly anti-majoritarian, as the experts for both sides agreed.

It totally flunks any... any kind of standard analysis about bias in the map to the point where it locks in 22 to 10 regardless, essentially, of how anybody votes in the State of Texas, and it's going to produce majorities that are going to average about... margins of victory that are about 40 percent in... for the rest of the decade, even if the Democrats gain votes over time.

Now, it's a dangerous road we're going down, I submit to you, if we start authorizing this kind of partisan festival every couple of years adjusting the lines.

Now, we've had three States redo their congressional districts already in this decade, and if this Court were to uphold this one, I think we'll start seeing lots and lots of other ones tit for tat around the country.

There's another particular aspect of this that I think is potentially dangerous, which is as you get further into the decade, the census numbers get older and older and more and more out-of-date.

And what the line-drawers then do is they've got the census numbers over here, they know where the real people are over here, and they can exploit that differential using the old census numbers.

So it seems to me that even if you're going to say there's a legitimate public purpose for redrawing the lines through the decade, we ought to require the States to come up with fresh numbers.

The population... one person/one vote requirements are so incredibly strict in the congressional area.

Simply to sort of assume that these people can use the old numbers when they're redrawing the lines 5 years after the census seems... seems mistaken to me and it does invite terrible abuse.

There... and there are mechanisms for getting new census numbers if the States really feel it's important to do so.

Let me then turn, if I might, quickly to respond, I think, to Justice Stevens' question about what the record shows about the intent for taking the... the African American community in Fort Worth and sending it up to Oklahoma, so to speak.

That intent is set forth in pages 87 to 88 of the jurisdictional statement appendix where the map-drawer himself... his testimony is quoted, and he explained that we had to find a Republican district in the... in the neighborhood that we could... we could tack them onto that could sort... that could, quote, handle that particular component of the current county population, which is to say a district sufficiently Republican that they would be completely disempowered for the rest of the decade.

Now, there was... there was a comment from Mr. Cruz about how the district 24 was created for a Anglo... Anglo Democrat to win.

The district that... that was talked about in the testimony was the district drawn in 1991.

What Mr. Cruz didn't point out was that in 1996, that district was completely changed by a Federal district court in Bush v. Vera.

The old district went way down into the southeast into the countryside.

The new district, which is the one you see in the maps before you, was drawn by the Federal district court.

It wasn't drawn by anybody seeking to uphold any Anglo Democrats' opportunities.

Chief Justice Roberts: Who was the... who was the... the candidate in that district after the district court plan?

Mr. Smith: Mr. Frost continued to run in that district, Your Honor.

Chief Justice Roberts: Well, didn't the district court say one of its criteria was preserving incumbency?

Mr. Smith: That's a different Federal district court.

I was talking about the... the Bush v. Vera court was the one that redrew it, Your Honor, not the... not the one that's in 2001.

Thank you, Your Honor.

Chief Justice Roberts: Thank you, Mr. Smith.

Attribution:

The Oyez Project

Featured:

Branch v. Smith - Oral Argument

Fri, 09 Jan 2009 14:50:37 +0000

Case:

Branch v. Smith

Media File:

01-1437_20021210-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Robert B. McDuff

Justice Stevens: The Court will hear argument in Number 01-1437, Branch against Smith, and the cross-appeal of Smith against Branch.

Mr. McDuff, you may proceed.

Mr. McDuff: Justice Stevens, may it please the Court:

For 40 years, ever since the decision in Baker versus Carr, State court judges, like Federal judges, have played a role in addressing constitutional problems stemming from malapportionment.

This was reflected in Scott versus Germano in 1965, and again in Growe versus Emison in 1993 when the Court said not only that State judges play a role, but they are preferred to Federal judges as agents of reapportionment.

In this congressional redistricting case from Mississippi, the Chancery Court of Hinds County, acting with the blessing of the Mississippi Supreme Court, stepped into the breach and adopted a plan when the legislature defaulted.

That plan has been enjoined by the Federal district court, and the United States Department of Justice has said not once, but twice that it was postponing the statutory time period for preclearance under section 5 of the Voting Rights Act so that even now, nearly 1 year after the plan was adopted and submitted, no preclearance decision has been made.

A Federal court order is in place telling State courts they may not hear congressional redistricting cases.

Justice O'Connor: Now, did... did Mississippi appeal from the injunction?

Mr. McDuff: They did not, Your Honor, but we did.

And we were allowed to intervene in this case to defend the State court judgment, which my clients had a right to seek, and which they did secure redistricting the State of Mississippi.

Justice Scalia: But... but the issue is whether the State was still pursuing the... the redistricting that was the subject of the application to the Attorney General, and whether it was doing so or not depended upon whether the State was appealing from the Federal injunction.

If the State accepted the Federal injunction, it no longer was pursuing the... the reapportionment.

Mr. McDuff: I don't... I don't know... I respectfully disagree, Justice Scalia.

This is a State court order, and the Attorney General of Mississippi has no right to refuse it or not, and he certainly has no right to undo it.

Justice Scalia: Well, and he also has no right to ignore a Federal injunction--

Mr. McDuff: That's correct.

Justice Scalia: --unless he... unless he appeals it.

He has every right to appeal it.

He represents the State, and he chose not to appeal it.

Mr. McDuff: That's correct, but... but unlike the situation... but we... I guess my first answer is, we did appeal it, and so the injunction is--

Justice Scalia: But you're not the State.

Mr. McDuff: --is subject to being overruled.

Justice Scalia: The problem with that is that you're not the State.

Mr. McDuff: That's correct.

But unlike a situation where, for example, an injunction is issued against a criminal law, or regulatory provision that the Attorney General, or the State defendants have some discretionary authority to enforce, and where it makes sense that if they do not want to appeal, no one else should be allowed to appeal if they're not... if they don't care enough about enforcement, this is an order that the Attorney General, and the State defendants are required to obey, assuming Federal obstacles are eliminated.

Now, if the Attorney General doesn't appeal for whatever reason, it makes sense to allow the people who secured the judgment in State court to intervene and defend that.

Otherwise--

Justice Souter: Why does it make sense under a statute in which the action of the State is by... by definition crucial?

Mr. McDuff: --Because the action of the... the action of the State here is the action of the State courts, and they have issued an injunction.

The Attorney General cannot undo that.

Justice Ginsburg: But if we're talking about section 5, the language of section 5 is whenever a State shall enact or seek to administer any voting qualification, et cetera.

And because the State is not currently seeking to administer anything, enact, I take it means legislation.

Seek to administer could be the executive, but the executive, since it's not appealing the injunction, isn't currently seeking to administer anything.

Mr. McDuff: I think... I think the executive is seeking to administer it just as much as he was back when the plan was first submitted.

If the Federal obstacles are removed... the constitutional injunction, and the preclearance obstacle... the State defendants are going to abide by the order of the chancery court, and submit this plan--

Justice Scalia: But we would... we would not require the... the State or the... the Federal courts to do a vain... or the Attorney... the Federal Attorney General to perform a vain act.

What use would it be for him to approve the reapportionment when the State Attorney General is still subject to a Federal court injunction which he has not appealed and therefore cannot ignore?

What possible good would it be for the Attorney General to... to approve the... the apportionment?

Mr. McDuff: --To remove the section 5 obstacle as quickly as possible, consistent with the 60-day deadline in the statute, so that once the constitutional obstacle is removed, the plan can be in force.

Justice Scalia: But the constitutional obstacle won't be removed as long as the Attorney General doesn't... doesn't appeal the Federal court injunction.

Mr. McDuff: Well, that... that is assuming that... that my clients don't have standing, and I think we clearly do as parties who secured the State court judgment.

Otherwise, you would be in a situation where the Attorney General could unilaterally nullify the State court injunction simply by not defending it.

That's one reason my clients were allowed in this case, was to defend the State court injunction they secured.

Justice Stevens: Mr. McDuff, can I ask you what is the status of the State court litigation?

Is there an appeal pending there?

Mr. McDuff: There is an appeal pending filed by the State court intervenors challenging the chancery court's plan.

Justice Stevens: And how do you explain the failure of the Mississippi Supreme Court to rule on that appeal?

Mr. McDuff: That... the briefs have been filed.

No oral argument is scheduled.

I think... I... I don't know, but I think the Mississippi Supreme Court is waiting to hear from this Court what it should do because it is looking at a Federal court order telling it it has no business in congressional redistricting.

And the... the--

Justice Scalia: Well, excuse me.

Is our decision going to affect that Federal court order?

Mr. McDuff: --I'm sorry?

Justice Scalia: Is our decision going to affect that Federal court order?

Mr. McDuff: Well, we... we are certainly asking this Court to... to vacate the Federal court order.

And--

Justice Breyer: It's a... that's the problem I have trying to figure this out.

Suppose... suppose we looked at the preclearance, and suppose I thought that it hasn't been precleared and it should have been.

And the reason it hasn't been precleared is the reason that's been discussed, that... that they haven't tried to administer it yet and when... and they... and the Department has 60 days from the time that the State tries to administer it.

I mean, I thought that's what the statute says, doesn't it, that they have--

Mr. McDuff: --It says 60 days after it's submitted, it's--

Justice Breyer: --Yes, enacts or seeks to administer.

Mr. McDuff: --That is correct.

Justice Breyer: They have to enact, and this doesn't sound like an enactment.

It sounds like something... seek to administer, and they haven't sought to administer it.

All right.

So then we'd send it back.

Then the Department would have to decide whether to preclear it.

Well, they may well preclear it.

Or what happens next?

That's where I'm a little confused.

I mean, it... the... the real constitutional issue here... or one of them anyway... is assuming there is the preclearance, then has the Mississippi court acted unconstitutionally in assuming authority to issue a plan, whereas previously, the Mississippi court had said you lack... we lack that authority.

And all of a sudden, we have an order here which seems to overrule in earlier cases, and it doesn't even have an opinion.

In other words, can you help clarify what we should say in this case on the assumption that we ended up thinking it should be precleared?

Mr. McDuff: I think... I think there are two things we want you to say.

First is that the Federal court's constitutional basis for the injunction is wrong, and that Mississippi courts, like courts... like courts throughout the country, do have a right to adjudicate congressional redistricting cases, at least where the legislature defaults.

And then, second, we are asking you to rule that as a result of the passage of the 60-day period, the plan has been precleared.

If you agree with us on the first issue, disagree on the second, then the... then the matter will be remanded to the district court and the preclearance process--

Justice Ginsburg: But Mr. McDuff, the--

Mr. McDuff: --will go forward in the Justice Department.

Justice Ginsburg: --Mr. McDuff, on your first point, which you would like us to decide first, I thought the district court expressly made that a contingent ruling.

Didn't it say if we're wrong on that this plan hasn't been precleared, if we're wrong, then we have this alternate constitutional point.

They phrased it that way as if to say, we would like the court to understand that our principle ruling is that this plan hasn't been precleared.

Mr. McDuff: That's correct.

Justice Ginsburg: But if we're reversed on that, then we have something else we want the court to know about.

So, it seems to me that it was a highly conditional ruling, the kind of ruling, let's say, that a... that a trial court would make under rule 50, when it conditionally rules on a new trial motion.

Mr. McDuff: I don't know if it was a conditional ruling, Justice Ginsburg.

It was an alternative ruling, and we are appealing both grounds.

And I think it makes perfect sense to deal with them both in one appeal rather than--

Justice Scalia: Why?

It makes perfect sense to reach the constitutional issue when there's no need to do so?

I mean, if... if we agree... if... if we disagree with you on the second point, there's no need for us to... to rule on... on the first point.

Unknown Speaker: Is there?

Mr. McDuff: --Well--

Justice Scalia: By the same token--

--Whether... whether or not the... the Federal district court used it as a makeweight, there's just no need for us to reach it.

Justice Stevens: Well, there are two questions I had.

First of all, was it proper for the district court to decide a constitutional issue which was totally unnecessary to support its judgment?

Mr. McDuff: --The... I... I think it was, and I do think it is necessary to reach that issue because otherwise, we're going to go... if... however you rule on the section 5 issue, the case goes back down.

Hopefully the plan is either declared precleared by this Court or later precleared by the Attorney General.

The... the district court is simply going to reinstate that constitutional ruling.

This case will come back up here on appeal, and we'll be into the 2004 election cycle.

Justice Breyer: All right.

That's... that's true, but look, there's a case, Wise v. Lipscomb--

Mr. McDuff: Yes, sir.

Justice Breyer: --which you've seen, and in that case, this Court says, in those circumstances... which are these... until clearance has been obtained, a court should not address the constitutionality of the new measure.

So, we said specifically, don't address it.

Now, what... what are we supposed to do about that?

Mr. McDuff: That... that's correct, Your Honor, but the cases from which that statement emanates, and the only cases in which this Court has been called upon to apply that principle are Connor versus Waller, and United States versus Board of Supervisors of Warren County, which we discuss at the beginning of our reply brief.

But those are cases that are very different from this one.

In those cases, the Federal district courts substituted constitutional analysis for the preclearance process and... and ordered the use of un-precleared plans.

Here the Federal district court enjoined the use of a... an allegedly un-precleared plan and gave an alternative ruling the same way courts do... the... in the same fashion that courts do all the time.

And in these circumstances, I think it makes sense to go ahead and deal with both issues on the appeal so we don't have this case bouncing up and down the appellate ladder while, number one, the Mississippi Supreme Court is trying to figure out what to do, and number two, we've got a March 1, 2004 deadline approaching.

Justice Breyer: Is there any chance the legislature... which is its job, I take it... will, in fact, enact a plan during that period of time?

Mr. McDuff: I... there's certainly no indication that the legislature will, Your Honor.

And... and that's why it is important for... as... as the Court said in Growe v. Emison, for State courts to be able to step into the breach, and deal with the problem without the sort of obstacles that the Federal court has imposed here, first on the constitutional grounds, and then second, on the section 2 grounds because we contend the plan has been precleared.

And let me respond to one other thing--

Justice Stevens: So I... I take it--

Mr. McDuff: --I'm sorry.

Justice Stevens: --the State court would have to make the same constitutional determination, or the State court isn't free from making constitutional determinations.

Mr. McDuff: That... that's right.

The--

Justice Stevens: In fact, just the opposite.

It has to.

Mr. McDuff: --That's right.

But if this Court resolves the issue on the... in... in reviewing the Federal district court's injunction, then the State court will not be in the position of having to do that.

And the... the... I want to go back to the question of seeks to administer because I think it is very clear that the Mississippi court... the Mississippi courts adopted a plan to be used in elections as long as the section 5 obstacle is used... is removed, and any other Federal constitutional obstacles are removed.

And as... as the opinion says... Justice O'Connor said in the opinion for the Court in Lopez versus Monterey County... the second Lopez decision... seeks to administer is simply... it... it's not necessarily a term of discretion.

You can either seek to administer or not, but is a... it is a... the seek is a temporal phrase showing that the... the plan should be submitted prior to its administration.

And here, the Attorney General doesn't have any discretionary authority, and I think it would be contrary to section 5 if he were able to undo the chancery court's order simply by the fact that he didn't appeal this case when he knew we were appealing.

The... in fact, there's... we've referred frequently to the North Carolina preclearance of the plan adopted there by a State court regarding legislative districts.

And if you look in the appendix to the NAACP amicus brief, there is the letter of submission sent by the trial judge in North Carolina to the Justice Department where he submitted the plan.

The Attorney General didn't submit it.

In fact, the Attorney General had opposed imposition of the State court plan during the State court proceedings.

That plan was precleared, and it certainly seems to me that if the Justice Department can preclear a plan submitted by a State court judge, it cannot come here in this case, and say that a State court judge... a State court plan from a Mississippi judge is... has been withdrawn, or has been suspended simply by the simple act of... simply by the simple fact that the Attorney General did not take an appeal in this case.

That was taken by us.

Justice Souter: But that was... that was never an issue in... in the North Carolina case, was it?

Mr. McDuff: I'm sorry?

Justice Souter: That was never an issue in the North Carolina case.

Mr. McDuff: Oh, no, there was not an issue, but I'm just pointing out that... I mean... I mean--

Justice Souter: Maybe... maybe Justice shouldn't have taken the... the request.

Mr. McDuff: --The... the... oh, I think Justice should... Justice definitely should consider a submission from a State court judge.

Section... section 5 says--

Justice Souter: Sure.

But you were making the argument a moment ago that if, in fact, they took the request from the State court judge in North Carolina, they can hardly object here.

Mr. McDuff: --That's correct.

Justice Souter: And that's a different kind of argument.

And... and since that was not an issue, I... I don't know that they are precluded, or would be precluded from changing their mind now.

Mr. McDuff: Oh, all I'm... all I'm saying, Justice Souter, is I don't think they can come in here and say that the fact that the Attorney General did not appeal here--

Justice Scalia: No, that's... that's not what they're saying.

Mr. McDuff: --means that the submission was withdrawn or suspended.

Justice Scalia: They... what they did not... what they did not object to is the fact that it was not the Attorney General who had to submit the request here.

That's all.

Unknown Speaker: I mean, in... in the North Carolina case, they were not violating any--

Justice Scalia: provision of the statute which required, before it could be precleared, that the State be about to administer it.

The statute doesn't say that the person, or the... the entity of the State that is seeking to administer it must be the one who applies for clearance.

That's not what the statute says.

So, all that was at issue in North Carolina is whether the... the administering person has to be the one to seek clearance.

And at most, the case stands for no answer to that question.

It certainly doesn't answer the question of whether, when the State has no intention of administering it, which is the situation here, and was not the situation in North Carolina, the... the Attorney General, nonetheless, has to reply.

Mr. McDuff: Justice Scalia, I respectfully disagree with the premise that the State in Mississippi has no intention of administering this plan.

Once the constitutional obstacle is removed, if it is, and once preclearance is declared, if it is, the State defendants are going to administer their plan... that plan.

They are under a State court order to do so.

And it seems to me to say that the Mississippi situation is somehow different from the North Carolina situation is to... is to exalt the form over the substance.

Certainly in Mississippi the State court judge could have submitted that plan.

The State court judge, I guess, could have intervened in the case, in the Federal case, and appealed if the Attorney General didn't.

But that would be quite unusual, instead--

Justice Scalia: Could he have administered the plan?

That's--

Mr. McDuff: --I'm sorry?

Justice Scalia: --That's the crucial question.

Yes, he could do all that, but could he have administered the plan?

If not, his intention to go forward is no indication that the State is... is seeking to administer the plan.

Mr. McDuff: But... but, Justice Scalia, the... the failure of the Attorney General to take an appeal is no indication that he will not administer the plan once the Federal obstacles are removed.

I think we have to assume that he will obey the State court order.

Justice Breyer: But does it remove the Federal obstacle if... instead of passing on the hypothetical of whether the Federal ground, which is a alternative ground, et cetera is good or bad... if we just repeated the language from Wise versus Lipscomb, said it's premature to decide this constitutional issue, our cases say not to, but there's an alternative ground here?

That would make it clear to everybody, wouldn't it, that the ground on which the Federal injunction rests is the preclearance ground?

And then, would the State say, okay, if it's the preclearance ground, we're going to administer it.

And then, the 60 days would begin to run, and then you're out from under this strange stalemate.

Mr. McDuff: The... the 60 days, in our view, Justice Breyer, has already run.

Justice Breyer: I know that, but if I don't agree with you about that, then would it satisfy what you're really after which is to get out of the stalemate?

You see, we would just simply point out that this is an alternative ground and... and it has no real... we're not reaching it because it's... there's this other ground.

In other words, I'm repeating what I've said.

Mr. McDuff: Then I... I think... I think--

Justice Breyer: I'm trying to get you out of the stalemate.

I'm trying--

Mr. McDuff: --I... I think that gets us exactly nowhere because the Department has said it is not going to resume the preclearance process as long as the constitutional injunction is in place.

So unless it's vacated, the preclearance process--

Justice Breyer: --Are there two injunctions?

I thought there was just one injunction and--

Mr. McDuff: --I'm sorry.

There's one injunction.

Two grounds.

Justice Breyer: --two grounds.

So if we suggest that one of the grounds was premature, then doesn't that do the trick?

Mr. McDuff: Well, I think it does... it does get the process ticking again.

But the problem is at that point, once it is declared precleared, the Federal district court will impose its constitutional injunction, we'll be back up here.

The Mississippi Supreme Court will still be facing that injunction.

Justice Breyer: Meanwhile, the legislature will act.

Mr. McDuff: Well, that's... that's wishful thinking.

And it--

[Laughter]

If it were true, we wouldn't be here I think.

Justice Ginsburg: Is there any clue, by the way, why in all this time--

Mr. McDuff: I'm sorry?

Justice Ginsburg: --Is there any clue why, in all this time, the legislature has not acted?

Mr. McDuff: No.

I think it was the difficulty of pairing two incumbents, and they couldn't agree.

They couldn't agree on how to do it because we lost a seat in Mississippi.

Let me make one--

Justice Souter: They... they won't have that problem now, will they?

Mr. McDuff: --No, they won't have that problem now.

Unknown Speaker: So--

Mr. McDuff: But I still think there's... there's been no indication thus far that any action is going to be taken in that respect.

I reserve the remainder of my time for rebuttal.

Unknown Speaker: --Mr. Feldman.

Argument of James A. Feldman

Mr. Feldman: Justice Stevens, and may it please the Court:

It's our position that the State court redistricting plan was not precleared on either of the two occasions that appellants--

Unknown Speaker: Mr. Feldman, let's assume that we agree with everything you say in your brief, and we agree it's not been precleared.

Isn't the... will the injunction that's now in place prevent further preclearance?

One of the reasons for not preclearing before was there's this injunction standing--

Mr. Feldman: --It's--

Unknown Speaker: --and that's still an obstacle, isn't it?

Mr. Feldman: --If it's clear that this injunction is... rests only on section 5 grounds, and not constitutional grounds, that certainly would--

Unknown Speaker: The only way to make that clear would be to vacate the--

Mr. Feldman: --Well--

Unknown Speaker: --the other ground.

Is that right?

Mr. Feldman: --The... what the injunction actually says is something like the injunction will last until, and unless there is a constitutional plan that's precleared.

And insofar as it uses the word constitutional, and we know the views of the district court about that, I think that as long as that... that word, constitutional, is there, that... that that remains an obstacle to administering the plan.

Unknown Speaker: So unless that injunction is vacated, we're at a stalemate.

Mr. Feldman: At least that part... at least the injunction has to be modified to remove the word constitutional.

Justice Scalia: Well, but that's... that's dictum.

I mean, what the district court said about that is... is dictum.

Justice Stevens: No, it's part of the injunction itself.

Mr. Feldman: It isn't--

It--

Justice Scalia: --It says until a constitutional plan is... is precleared, but what is a constitutional plan was not before the court.

Now you may well know how the district court is going... going to rule on it, but you don't know that the district court will be affirmed in that ruling, or... I don't... I don't see how the... the constitutional ruling is embodied in the injunction.

Mr. Feldman: --If the Court made clear, I think, that... that the... that this injunction couldn't rest on the ground that Article I, section 4 of the Constitution was violated by the... by the State court plan, then I think it would be ripe for a preclearance.

Justice Souter: Wouldn't... wouldn't it also be ripe... wouldn't the time run simply if... if the State moved to vacate the injunction?

Mr. Feldman: Yes.

If a State moved to vacate the Federal court injunction?

Justice Souter: Yes.

Mr. Feldman: In the--

Justice Souter: Because at that point wouldn't it have signified that it was, indeed, attempting to administer the plan?

Mr. Feldman: --There... well, there's really two grounds on which we think the injunction is... is relevant.

There's a narrower ground, which I think it... primarily the... the argument so far has been concerned with, which is that the State was no longer seeking to enforce the plan because it didn't appeal it.

And that--

Justice Souter: If it now seeks to vacate--

Mr. Feldman: --if the State took action, they're still not appealing it, but I suppose, after this Court's order, if they went back to the district court, and said, in light of this Court's order, we're trying to seek to enforce it again, and if they had the ability to do that, then that... then that would be eliminated.

Justice Souter: --Yes.

Mr. Feldman: There is a broader ground, however, because the... insofar as the injunction is a injunction that's based... rests on constitutional grounds, it's the Department's position that... that the preclearance... the section 5 uses the terms seek to... seek to administer.

It says it may be enforced once the Attorney General acts, and it talks about voting changes that are in force and effect.

And all of those things point to a contemplation by the statute of a change going to the Attorney General when it's ready to be... ready... ready to go into effect, when there's no present legal obstacle.

As long as there's a present legal obstacle other than a section 5 injunction to its current administration, then the Attorney General... it's too early... it's too early to go to the Attorney General.

Justice Souter: Okay.

Then that goes back, I guess, to the earlier suggestion.

If... if this Court indicated that, in fact, the alternative ground was prematurely raised, wouldn't that respond to the... to the second--

Mr. Feldman: I think... as I said, I think it's clear that if the... if the Court made clear that this... this injunction rests on section 5 and doesn't rest on the proposition that it violates Article I, section 4 for the... for the plan to go into effect, then it would be ripe for a preclearance at that point.

Justice Stevens: --Of course, we have a doctrine that we don't decide constitutional issues unless we have to.

Do you think that doctrine should have applied to the district court in this case because the section 5 ground, as I read the opinion, was... was self... was sufficient to sustain the objections?

Mr. Feldman: I think... I do think the section 5 ground was sufficient to sustain it.

Unknown Speaker: And therefore it was really wrong for the district court to reach out and unnecessarily decide a constitutional question.

Mr. Feldman: I... you certainly... the... the only reason I would hesitate for that, before I'd quite go that far, is district court was faced... if you put yourself in the situation that the court was, with very tight deadlines... and there are... even... although courts should avoid deciding constitutional questions when possible, there may be some extreme circumstances where--

Justice Stevens: But those deadlines... you've demonstrated in your brief that the... the clearance hadn't occurred.

I mean, if... if we agree with your position on the preclearance, the deadlines were not a real obstacle.

Mr. Feldman: --I... I agree.

And actually I... I do think the district court certainly could have said and... and perhaps should have said, this is a constitutional issue.

Especially, it's a novel constitutional issue that raises novel questions that haven't been addressed before, and the section 5 ground was sufficient to sustain the injunction.

Justice Ginsburg: But the district court... didn't... isn't that what the district court said when it said this is our alternative holding in the event that on appeal, it is determined that we erred in our February 19 ruling?

It seems to me that that's a contingent ruling.

If we're right about that it hasn't been precleared, then this doesn't come into play.

Mr. Feldman: I... I guess only insofar as when you read the actual order of the court, it says a... this... this shall go into... the State may not enforce the State court plan until the State... there's a constitutional plan that's precleared.

And if you read that word--

Justice Ginsburg: But one... one could agree with the court, what it was intending to do and give effect to what it was intending to do, and if we should hold, if we should agree with the court, that there's no precleared plan, then it would be appropriate to vacate the decision to the extent that it rests on the constitutional ground.

Mr. Feldman: --I... I think that may... that may well be right.

I... I don't disagree with that.

I'd like to go to, actually the first... the first alleged preclearance which is supposed to have occurred 60 days after the plan was initially submitted to the district court, and that preclearance did not occur... was initially submitted to the Attorney General.

Excuse me.

That preclearance did not occur because on February 14th, before the 60-day period had expired, the Attorney General sent the State a letter saying, I need more information before I can preclear this plan.

That procedure, under which the Attorney General did that, was specifically held valid by this Court in Georgia against the United States, and the Court in Georgia specifically held that that stopped the 60-day clock from running.

Later, in Morris against Gressette, the Court held that the Attorney General's substantive determinations under section 5 are not subject to... are not subject to judicial review at all.

And therefore, the Attorney General's determination that more information is needed, that the information before him was not sufficient to permit preclearance... to permit him to make the determinations he had to make... also is not subject to judicial review.

And therefore, because that whole process was... was approved by the Court in Georgia against the United States, because more information was sought, that that terminated the 60-day clock then, and it did not... the plan was not precleared some days later when... when the 60-day period would have expired.

I think for the reasons I said earlier, it also was not precleared at the later period both because the State didn't... on the narrower ground that the State did not appeal the injunction, and on the broader ground that the injunction was there.

And the section 5 process is designed so that something that's ready to go... the Attorney General should reach his decision on an act that's ready to take effect.

Finally, I'd like to just briefly go to the statutory question of the interaction of sections 2c and 2a(c).

With respect to that question, it's our position that the district court, as a remedy here, correctly ordered the districting of Mississippi's congressional delegation, and did not order that they be elected at-large.

And that was required by Federal law, specifically by 2 U.S.C., section 2c, which provides that there shall be established by law single-member districts in each State, and that Representatives shall be elected only from districts so established.

That command, it seems to us, is unequivocal, and required the district court, when it was faced with the problem of what to do about Mississippi, to create single-member districts.

It would... did not have the power--

Justice O'Connor: But you could... you could view it, I guess, if you had to look at it at all... and I'm not sure we do... you could say that 2a(c) applies before a plan has been redistricted in the manner provided by State law, and that 2c applies afterwards.

I mean, you could harmonize them.

They've been in... in existence, these two provisions, for a very long time, and we normally don't see repealed by implication, or hold that there is such a thing--

Mr. Feldman: --I--

Justice O'Connor: --that you can harmonize them.

Mr. Feldman: --I think generally, but I do not think in general these can be harmonized, or at least within the scope of where it's possible for 2c to... to operate.

For... one reason is that the language, Representatives shall be elected only from districts so established, is unequivocal, and, in fact, it shows that the earlier portion of 2c that says, there shall be established by law congressional districts in each State, has to mean established either by a court, or by a legislature, or by anyone who acts.

Justice Scalia: What if it meant just by a court?

It would really put a lot of pressure on the legislatures to... to do what they're supposed to, and to enact these districts by law.

It would take a lot of... a lot of these cases that... that place the burden upon the district judge to reapportion a whole State would go away.

He'd say, if the legislature doesn't ask, all of you guys are going to run at large.

Boy, that would... you know--

Unknown Speaker: [Laughter]

Justice Scalia: That would not happen.

The legislature would, indeed, do the job it's supposed to.

Justice Stevens: Isn't that--

Justice Scalia: --It... it would make a lot of sense to interpret it that way.

Justice Stevens: Isn't that Mississippi's own default rule?

Doesn't Mississippi have that same statute?

Mr. Feldman: They do have the same statute, which we would view as pre-empted by section 2c.

But that was the... the scheme that was in effect in... from 1941 to 1967.

The reason why 2c was enacted, and the way to give 2c some effect is that Congress at that time was faced with a situation where there were at least six courts that had threatened to order at-large election of entire congressional delegations in the aftermath of Baker against Carr.

And Congress responded to that.

The concern specifically was that courts would order at-large elections, and the response was the enactment of section 2c.

Justice Stevens: Thank you, Mr. Feldman.

Mr. Wallace.

Argument of Michael B. Wallace

Mr. Wallace: Justice Stevens, and may it please the Court:

It seems that the Court is focusing on the question of preclearance here, and the real problem with the question of preclearance is that the Justice Department has stopped the preclearance process because of the injunction.

Now, we believe that the Justice Department acted properly in so doing.

They have a regulation that says, we will not consider premature submissions, and this Court said in Georgia that any reasonable regulation will be enforced.

Their position is that whenever the State has been told it cannot administer a change, then it cannot be seeking to administer a change within the meaning of section 5, and therefore, this was premature.

So they stopped.

Now, the question is what can be done about that, and I think, in all probability, the only thing that can be done about that is for the Attorney General of Mississippi to go down the street to the district court and ask them to preclear the change under section 5 because there does not seem to be any other mechanism whereby anybody can force the Justice Department to get moving on a section 5 preclearance.

Justice Stevens: But, Mr. Wallace, don't you agree that with the injunction outstanding, the Justice Department would have the same reason for refusing to preclear that it's already given?

Mr. Wallace: I think not, Your Honor, and I think that's because of the very strange system of divided jurisdiction that Congress consciously created back in 1965 when it said, we will let the District of Columbia deal with statutory questions.

We will let the court back home deal with constitutional questions.

That's been in the act from day one, and it's given this Court trouble from day one.

Justice Ginsburg: How long does it take if you take the... if you said derail the preclearance procedure before the Attorney General, switch to the D.C. District Court track?

How long do those proceedings... section 5 proceedings... in the district court ordinarily take?

Mr. Wallace: I've never been in one, Your Honor.

I don't know that I could tell you, but I would think it would take close to a year anyway.

Now--

Justice Breyer: Well, then why can't we just do what we'd... I'd suggested anyway... I think others did too... that... that you... you... we'd simply say, look, here's an injunction.

It rests on two grounds.

Ground one, this plan hasn't been precleared, the Mississippi plan, the court plan.

Ground two, it's unconstitutional.

You'd say ground two is, A, premature, doesn't really support the issue, it's an injunction... because it's premature, et cetera.

And now you'd have a decision that, I guess, from a legal point of view insofar as we were right about that, would just rest on the ground that it hasn't been precleared.

And since that's the only reason for issuing the injunction, then the Department, if the State of Mississippi wants to put the plan in effect, would preclear it.

If the State doesn't want to put it in effect, well, that's their business.

But... but if they are going to put it in effect, then the Department would have to get busy.

Mr. Wallace: --As a practical matter, Justice Breyer, that might get the process moving, because I think I've understood the United States to indicate that they would get moving if that's what the Court did.

But under the usual rules of this Court's jurisdiction, it sits to review judgments and not opinions.

And the judgment is that... that the... that the district court plan shall stay into effect... shall stay in effect until preclearance of a constitutional plan takes effect.

That's true--

Justice Scalia: Yes, but in affirming that, we certainly can say why we're affirming it.

And... and if we say, yes, the injunction is valid for one reason, and one reason only, we do not reach the other... the other reason, and there is no basis for reaching the other reason.

Certainly we can say that.

Mr. Wallace: --And if... and if the Court does say that, and if the Justice Department does get moving as a result of that opinion, then that will move the process along.

Justice Breyer: So we're in an unusual... I mean, this is unusual because I guess we would be reviewing a reason for the judgment.

It's unusual because there's a legislature that doesn't want to reapportion.

And the third aspect in which it's unusual is that the Supreme Court of Mississippi, according to some of the parties, has overturned previous cases of that court which said the chancery court lacks the power to enter the plan, and it did it without writing an opinion.

It's normal that a court writes an opinion.

Now, is there any likelihood or chance that the Mississippi Supreme Court, before this issue comes back to us, if it does, would explain what the reason is for departing from what seems to be a long precedent?

Mr. Wallace: I suspect the Mississippi Supreme Court can take a hint as well as the Justice Department, Justice Breyer.

There was no error in this injunction, and ordinarily, the Court would not edit opinions on valid judgments.

But if the Court does that, then certainly the Justice Department may move.

I think the Supreme Court of Mississippi may move.

We moved for a stay at the Supreme Court of Mississippi.

That stay was denied.

The briefing is finished.

There has been no stay order.

I presume they will set the case for oral argument in due course.

But if they get an opinion from this Court that says, we'd certainly like to know what you have to say, I think I can say with confidence that they will set the case with... for... for argument in due course.

So as... as Justice Breyer says, it is a strange case.

We think it is a case in which the judgment is absolutely correct, and the... and what the Justice Department has done is absolutely correct under its regulations.

Justice Stevens: But would you say it's absolutely correct if the constitutional reasoning were wrong, and if they say we won't approve a... a Mississippi plan that is in violation of our constitutional holding?

Mr. Wallace: The... as... as Justice Ginsburg has observed, I think that is an alternative ground in the opinion.

I do not think that it affects... infects the judgment, but it makes a problem, as Mr. McDuff has noted, because even if there is section 5 preclearance down the road, this district court would enjoin it again.

Justice Stevens: Is it your view that the section 5 ground of decision is sufficient to... to uphold the... the injunction below?

Mr. Wallace: We believe that it is sufficient to uphold the judgment below because there is no error in the judgment, and there is no error--

Justice Stevens: But if... if that's true, did not the district court violate our rule against deciding constitutional issues unnecessarily?

Mr. Wallace: --I think they did not, although it's a close call.

In Ashwander--

Justice Stevens: Why is it a close call if... if the judgment is clearly correct on the section 5 ground?

Mr. Wallace: --The... the district court--

Justice Stevens: It seems to me it's only a close call if you think there's doubt about the section 5 ground.

Mr. Wallace: --And that's why the district court set the alternative judgments.

I think they thought they were making it easier for this Court.

Ashwander doesn't say never decide a constitutional question.

Justice Stevens: It doesn't... says you don't do it if it's not necessary, and it clearly was not necessary if they're right on the section 5 ground, which everybody seems to agree they were.

Mr. Wallace: We certainly agree that they were, and if they're... and if--

Justice Scalia: The other side doesn't agree they were.

Would... would you bet your life that they're... that they're right about that?

Unknown Speaker: [Laughter]

Mr. Wallace: --I would be... let me turn to that, if I may, Justice Scalia, because we believe that they are... that the Justice Department and the district court were correct on the section 5 ground.

And that goes back to the February 14th letter for more information.

As the Assistant Solicitor General has said, that's a standard application of Georgia versus United States.

When you have... when you need more information to decide a section 5 issue, then the Justice Department is entitled to stop the clock and ask for more information, and the clock won't move again until they get more information.

This is a... a straightforward application of a regulation that this Court has already approved.

The district court so found, believed that the request for more information was absolutely valid, and therefore said, there has been no approval, there is no plan in place, and for that reason, we must put in a plan of our own.

Justice Ginsburg: Mr. Wallace, there is something unusual about that request for information.

It seems to have been triggered by the district court.

I'm looking at page 100a of the appendix to the jurisdictional statement where the district court is commenting on this opinion, this opaque opinion, of the Mississippi Supreme Court that says the chancery court has authority, and then says... this is the end of the first paragraph on the page... that at the very least, the Attorney General of the United States will consider the implications very carefully and might perhaps request more information.

I'm not aware of the... of district courts telling the Attorney General how the preclearance process should run.

Is this standard operating procedure?

Mr. Wallace: By no means is it standard, Justice Ginsburg.

But what the district court was doing in this case was deciding whether or not there would be enough time for the preclearance to be completed before the qualifying date.

The intervenors were suggesting we did not need a Federal trial, we should wait for the Justice Department to finish its work.

The Justice Department already had before it a complicated submission from the... from the Attorney General of Mississippi, which begins on page 228... 221a of the appendix to the jurisdictional statement, and that presented not only the... not only the congressional redistricting plan itself, but also the decision of the Supreme Court of Mississippi to overrule 70 years of precedent and allow trial courts to do redistricting.

So those two issues were already before the Justice Department when the district court wrote.

But all the district court wrote... said is, we think we better get busy and try this case because this looks like a real hard submission to us, and we're not sure that they're going to be able to decide this case before our qualifying date.

So it's unusual, but it's certainly well within the... the scope of what the district court was being asked to do.

And I think they properly pointed out problems.

And... and with the help of the district court... the help, indeed, of the submission that Attorney General Moore had already made, I think the Justice Department properly saw that there were questions that needed to be asked.

They asked those questions, and that stopped the 60 days from running.

Justice Breyer: We also have to reach your issue, don't we?

Even if we agree with you on that, we still have to reach the cross-appeal issue, don't we?

Mr. Wallace: I... I think you do.

Justice Breyer: Or do we?

Mr. Wallace: I think you do because in... because once it is conceded that the... the district court had to impose a remedy in 2002, then the question arises of what that remedy should be.

And it was our position in the district court, and it is our position here that the district court should have enforced the law of the State of Mississippi, as Justice Stevens has observed, says that you must have at-large elections, and an act of Congress dating back to 1941 that says you must have at-large elections in these circumstances.

That's section 2a(c)(5) of Title II.

We ask for that to be enforced, and that's an issue that I think must be reached in this case regardless.

I think the United States has the only argument for not enforcing the 1941 act.

They claim that it is absolutely incontrovertibly inconsistent on its face.

For the reasons that Justice O'Connor has stated, we think it is not inconsistent on its face.

We also point back--

Justice Scalia: No court has ever done it before--

Mr. Wallace: --No court--

Justice Scalia: --in all of the years that courts have been operating under this act.

Mr. Wallace: --This Court did it under almost identical statutes 70 years ago in Smiley and Carroll and Koenig.

Justice Scalia: 2c didn't exist then.

Mr. Wallace: There was a 1911 act that said basically the same thing.

The 1911 act says you shall elect Representatives by districts, but at the same time it says, but if districts have not be redistricted, then any new Representatives will be elected at large.

And that's--

Justice Breyer: To get your... to get your result, you have to read, there shall be established by State law a number of districts, et cetera.

And... and, in fact, it's pretty hard to read it that way, for me it seems, because this thing, there shall be established by law a number of districts, i.e., not at-large, was enacted by Congress in response to courts that had threatened... courts, not legislatures... that had threatened at-large elections.

And so they were quite unhappy about that in Congress, and they passed this law saying there shall be established by law a number districts.

It seems to me their object was certainly court districting, wasn't it, as well as legislative districting?

Mr. Wallace: --As difficult as it is to read the mind of Congress, Justice Breyer, I think that while they were clearly unhappy, they were unable to agree in any detail on what ought to be done.

And even on section 2c, there was... there were people who stood up in both houses of Congress and suggested that this law would not be enforced in States... in court proceedings, that it was being... that it was addressing itself to legislatures.

Justice Scalia: It was repeating the 1911 law that you just mentioned?

Mr. Wallace: There it--

Justice Scalia: Why... why did they... why did they pass it if it didn't do anything but... but say what the... what the 1911 law already said?

Mr. Wallace: --I think it's... I think it is difficult to know why they passed it, there being no reports--

Justice Scalia: Well, you've got to give me some plausible reason.

I mean--

--Legislative history helps, by the way.

Unknown Speaker: [Laughter]

Justice Scalia: I gather the legislative history you've just told us is, as usual, on both sides of this thing.

Is that right?

Unknown Speaker: [Laughter]

Mr. Wallace: --We believe it is, Your Honor.

As... as was noted in the Hanson decision in the D.C. Circuit, I think there was gamesmanship on both sides in both houses.

Gamesmanship is a word that comes from the Hanson case.

Justice Ginsburg: But, Mr. Wallace, one thing isn't, I think, debatable and that is since 2c is on the books, no court has ever resorted to whatever... was 2a, whatever.

Since 2c is there, that's the one that the courts have used, is that not so?

Mr. Wallace: It is... I don't know that they have enforced 2c.

I think most of them have believed that they were acting under this Court's oversight which tells courts always to read... always to do single-member districts when they can.

But it's certainly true, Justice Ginsburg, no court since 1967 has ordered at-large elections in... in redistricting cases.

But we believe what... if you look at the rules of construction, and at what Congress actually did, without trying to speculate on what they were trying to do, they enacted language that had been before this Court in 1911 and was... and was construed in 1932 to allow at-large elections.

Justice Scalia: I assume--

Justice Souter: --Except--

Justice Scalia: --Go on.

Justice Souter: No.

Except for one fact, and that is now we have a districting statute which... which is the later one in time.

The... the districting command and the at-large command are no longer of... of even weight.

The districting command is later in time and therefore, to the extent that there's any conflict, that's got to get some precedence.

Mr. Wallace: That would... and that is a difference in 1911 because those two parts of the act were enacted at the same time.

Justice Souter: Yes, yes.

Mr. Wallace: But if they could be construed consistently in 1911, then I think they can be construed consistently in 2002.

And if they can be construed consistently, it doesn't matter which one was enacted first.

Justice Scalia: Except that there would be no possible reason for reenacting it if they're... if they're going to be construed consistently, just as they were when they were both enacted simultaneously.

Mr. Wallace: The... the difficulty of figuring out what Congress thought it was doing on this single piece of legislation tacked onto a private immigration bill is very difficult, Justice Scalia.

I recognize it.

But as we noted in our brief, which did discuss the legislative history, they had thought about this for 2 years and specifically considered repealing the 1941 act, and they didn't do it.

They came back and did something else.

And we think under standard rules of... of construction, that means the 1941 act--

Justice Stevens: Mr. Wallace, do you agree with the... with Mr. Feldman that in any event the Mississippi statute is out of the picture because that's pre-empted no matter which way we go on this issue?

Mr. Wallace: --I think it would be hard to argue that Congress impliedly repealed a 1941 act and didn't intend to pre-empt a State law that said the same thing.

I've tried to come up with that argument, Justice Stevens, but I don't think I can make it.

[Laughter]

So--

Justice Scalia: What do you... what do you answer to the... the fear that one has to have that redistricting by having all the elections at large is precisely what those who were interested in diluting minority vote would like?

Mr. Wallace: --Well, first of all, Your Honor, the... the answer that I have is that an act of Congress is not subject to the Voting Rights Act, and would be enforced on its face.

But the other answer I have is this.

We have a long history over the last 20 and 30 years in Mississippi of coming up with remedies which will protect the rights of minority voters.

The most common remedy since Gingles is to do single-member districts, but it's not the only remedy.

And there are remedies where you can elect people at large and because of the way the election is held, all people running together, not requiring majority votes, not having... not having anti-single-shot requirements, those have worked in Mississippi.

Minorities have been elected in white jurisdictions in multi-member races by using those sorts of procedures.

Congress didn't tell us what sort of procedure to use in an at-large election, and in Young v. Fordice, this Court made clear that whatever procedures you use would have to be precleared.

I don't think the legislature will act for all of the reasons we've seen, but the district court would certainly use those remedies.

They've used them before.

Minorities will be protected.

Justice Stevens: Mr. Wallace, can I go back to the constitutional issue that the district court decided in this case?

Your... your adversaries say that you do not defend the reasoning employed by the district court, even though you defend their judgment.

Do you think that's a fair comment on your position?

Mr. Wallace: I think I defend the reasoning of the district court as far as it went.

I draw a distinction between this case and Growe that they... they simply said that in Growe, the Supreme Court did not consider this issue, which is true, and therefore we look at the chancery court.

It's not the legislature.

It can't act.

There is a distinction... another distinction between Growe and this case, which... which the district court did not dwell on and we dwell on in our briefs.

In Growe, there was a Federal claim before the district court... before the State court.

And under the Supremacy Clause, ordinarily a State court must litigate Federal claims, and this Court recognized their authority to do so in Growe.

Here, for whatever reason, the plaintiffs in the... in the chancery court who are intervenors in this Court did not assert a Federal claim.

They made it quite plain, we are proceeding only under State law.

We do not want to proceed under Federal law, and that under U.S. v. Term Limits simply doesn't exist.

There is no Federal... there is no State law claim for congressional redistricting.

So that's the difference between Growe and this case, and this is... that's the grounds on which we defend it.

Justice Stevens: You mean there is no State law requiring redistricting at all?

Mr. Wallace: There is... there is no State law... first of all, there is no State law requiring redistricting.

There are statutes that talk about how the legislature proceeds, but there is no substantive law that says redistricting shall take place.

Justice Stevens: So as a matter of State law, the Mississippi legislature is under no duty to... to redistrict?

Mr. Wallace: It is under no duty to redistrict, and could be under no duty to redistrict because the redistricting requirement comes only from the United States Constitution.

The authority to redistrict comes from the Elections Clause, and the State of Mississippi cannot impose on their legislators any requirement having to do with congressional redistricting.

A decision was made by the Framers over 200 years ago that legislators are the people to regulate congressional elections, and if they fail to do it in their job of representing the people, then Congress will do it in its job of representing the people.

Justice Breyer: Why can't a State just say we require our legislature under State law to conform to the Federal requirements by having a plan by January 15th by going to the chancery court if you don't have a plan, et cetera?

Mr. Wallace: Because at that point, Your Honor, it... it... the... perhaps the legislature could do that.

Justice Breyer: And if the State of Mississippi says, well, that in effect is what they did, don't we have to take their word for it?

Mr. Wallace: No, I don't think you do, Your Honor.

First of all, perhaps they could delegate authority.

If the legislature said this problem is too hard for us, we want to delegate it to State courts, then that... that issue would be tested like any other delegation.

Justice Breyer: In a State court, and here we have an unexplained judgment without an opinion of the Mississippi Supreme Court which seems to say that's what it is.

It doesn't say, but that's the holding of it.

Mr. Wallace: But it... but when you are dealing with Federal constitutional guarantees and provisions, you do not always take the State courts as... as gospel even on State law.

The district court here said there is no delegation, and as Your Honor knows, there was no explanation of why the writ of prohibition was denied.

It really doesn't set much of a precedent for anything, but the district court, which is familiar with Mississippi law, says there is no delegation in this case.

We have looked at Mississippi law, and nothing has been delegated.

So the question of whether a legislature could delegate power to the courts is not here.

What we have before us is a case where the legislature has not delegated power to the courts.

It has simply done nothing and when it does nothing, the States in that circumstance are powerless to act if we go back to the acts of Congress, and we think we enforce the at-large statute from 1941 as the district court should have done.

If there are no questions, I thank the Court.

Justice Stevens: Thank you, Mr. Wallace.

Mr. McDuff, you have 5 minutes left.

Rebuttal of Robert B. McDuff

Mr. McDuff: Thank you, Your Honor.

Justice Breyer, the State of Mississippi does want to put the plan into effect.

That was the order of the Mississippi Supreme Court, however brief it was, saying the chancery court's plan will remain in effect until... unless superseded by a timely plan of the State legislature.

The Attorney General submitted the plan for preclearance under order by the chancery court.

He has done... he has not withdrawn the preclearance submission.

Unknown Speaker: The statutory language is not... is not whether it's in effect or not.

It's whether he's seeking to administer it.

That's the problem.

Mr. McDuff: And... and there's nothing about the absence of the appeal here, particularly where we are taking the appeal, that suggests he's not seeking to administer it, Justice Scalia.

And let me mention one other thing along those lines.

The language is enact or seek to administer.

Now, the lesson of Growe v. Emison, at least we think, is that a State court stands in the shoes of the legislature when the legislature defaults on redistricting, and certainly if the legislature had enacted this plan, and the... it had been enjoined by the Federal court for whatever reasons, and the Attorney General had not taken an appeal, but legislative leaders had or intervenors had, I don't think we would say that the preclearance submission was thereby withdrawn.

It seems to me the State court is in no different position, and we shouldn't say that the Attorney General's failure to appeal here would withdraw the submission where it wouldn't in the legislative context.

The... and... and the plan has been precleared in our view, if not the... by the first 60 days, certainly by the time of the second 60 days, where the Justice Department said, we're not going to continue to review this plan because of the constitutional injunction.

Well, there's no language in section 5 that stops the 60-day period from running on that ground.

That... it is a statute that admits of no exceptions.

There is no regulation that allow... by which the Justice Department says, we will not continue to... to consider a... a plan that has been enjoined on constitutional grounds.

And in fact, the Solicitor General has not even said in his brief that that is the regular practice of the Department.

Here there are compelling reasons why it is important for the 60-day period to be removed even if there's a constitutional injunction.

Often these cases are decided under severe time constraints.

If a constitutional injunction is imposed, State officials may try to remove it as quickly as possible and restore the plan in time for the election.

If the section 5 obstacle is delayed in the meantime, the... it... it, in effect, prolongs itself by feeding off the constitutional injunction, and even if the constitutional injunction is vacated, the State still has to deal with this now-postponed section 5 obstacle that will not be removed in some situations in time for the election.

Let me say one other thing about the constitutional ruling, the fact that it was an alternative ground.

We think there is doubt about the section 5 ground, as we've suggested here, and particularly given the importance of resolving these cases so that elections can go forward without continued Federal court interference, I think it is crucial for this Court to rule on the constitutional ground, as well as the preclearance ground here.

The rule of Connor, and the rule of the Warren County case are not jurisdictional rules.

They're supervisory rules imposed by this Court to ensure the orderly processing of the section 5 issue when it's... when it's in a case in which other issues are involved.

Here the orderly processing of this litigation, and the creation of the situation where Mississippi can conduct its elections in 2004 without continued confusion of the type that we had at the last election, that interest favors resolving the constitutional issue now, at the same time the section 5 issue is resolved.

And so for all of these reasons and the reasons set forth in our brief, we respectfully urge that the Court vacate the injunction of the district court on all grounds.

Justice Stevens: Thank you, Mr. McDuff.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Utah v. Evans - Oral Argument

Fri, 09 Jan 2009 14:50:23 +0000

Case:

Utah v. Evans

Media File:

01-714_20020327-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF THOMAS R. LEE, ESQ. ON BEHALF OF THE APPELLANTS

Chief Justice Rehnquist: We'll hear argument now in number 01-714, Utah vs. Donald L. Evans, Secretary of Commerce.

Mr. Lee.

Mr. Lee: Mr. Chief Justice and may it please the Court: for most of the history of the census of the American population, that census has been conducted by means of an actual count unaltered by any methods of statistical estimation.

At the time of the first census of 1790, James Madison noted that this was the way required by the Constitution and ever since then, that requirement has been implemented by Congress in the Census Act.

The question presented in this case is whether the Census Bureau acted unlawfully in departing from that longstanding historical tradition by using the method of estimation called hot-deck imputation in the 2000 apportionment count.

99.6 percent of the 2000 apportionment count was comprised of actual data compiled by census enumerators in two phases.

First, a mailing sent to all addresses on a master address file, and second, as many as six follow-up visits.

Imputation added an additional.4 percent to that count, 1.2 million statistically generated persons were added to the apportionment count by means of a statistical estimate.

The basic essence of the estimate was to say the 620,000 addresses that the Census Bureau was unable to enumerate are assumed to have estimated to have the same number of occupants as their next door neighbors.

Mr. Dellinger: Mr. Lee, I would like to ask you to address early on whether this injury that Utah alleges to have suffered is redressable in any fashion.

Things have happened since the census was taken.

North Carolina presumably has drawn districts and has gone quite far down the road in reliance on the census.

The President has turned over the numbers and so forth.

How can this be redressed, do you think, now?

Mr. Lee: I suppose, Justice O'Connor, that there are two aspects of your question if I'm understanding it.

One of them would be a redressability standing question.

That's a question as the Solicitor General notes that has already been decided by this Court both in Franklin and in Montana with regard to--

Mr. Dellinger: Well, there is jurisdiction, but I don't know that we have really addressed the redressability issue fully in prior cases.

When could Utah have made its challenge?

When is the earliest time Utah could have challenged this imputation business?

Mr. Lee: --It would have been impossible, Justice O'Connor, for Utah to have brought a challenge prior to the census.

As North Carolina indicated--

Mr. Dellinger: Well, why is that?

I mean, you knew, did you, that the Census Bureau planned to use it?

Mr. Lee: --Yes.

We certainly had constructive knowledge.

Mr. Dellinger: But you wouldn't have had an injury.

Mr. Lee: We wouldn't have had an injury, and in fact as the Census Bureau itself indicates, there would have been no way even to have anticipated that imputation would have had this effect.

Mr. Dellinger: Well, you have no incentive to bring a challenge until you know that you are losing a congressional seat, I suppose.

Mr. Lee: That's exactly right.

And that was one of the problems.

It took us some time to get the numbers from the Census Bureau, specific state by state numbers, in order to be able to determine whether in fact this was a method that impacted Utah, and as soon as we got those numbers, we brought this suit within a few days.

Mr. Dellinger: Well, was there a window of time between completion of the census and the submission of the numbers to the President where you could have sued?

How long was that period of time?

Mr. Lee: That was, the time line is that the Secretary must submit the numbers by the end of the calendar year to the President, and then the President must submit those numbers within seven days after the first day of the Congress.

The problem, Justice Kennedy, was that we didn't have those numbers at that time.

The Census Bureau had not released again state by state imputation numbers until well into March of 2001, and it was within a few days after that that we brought this suit.

Mr. Dellinger: Well, if you prevail, what's supposed to happen?

Mr. Lee: The remedy that we are asking for, Justice Kennedy, is simply a declaration and an injunction to the Secretary of Commerce directing the Secretary to issue a new apportionment count free of the statistical estimates that we believe are unlawful under the Census Act and under the Census Clause of the Constitution.

Mr. Dellinger: Well, what's supposed to happen under the Act?

I mean, I went back and read the Act last night.

And that's geared to certain automatic apportionment, and that in turn is geared to the delivery of the numbers by the date specified.

So let's assume the Secretary and then the President comes with different numbers.

The Act doesn't have any provision in effect for self-adjustment, does it?

Mr. Lee: And I think, Justice Souter, that's effectively North Carolina's argument.

That there are time deadlines set forth in the Census Act that somehow stand in the way of reviewability here.

That is an argument that was raised and rejected in Franklin.

The Franklin opinions, Justice O'Connor's opinion for a four justice plurality on that point, says that if this Court agrees with the Plaintiffs in this case, we may presume that the President of the United States will conform to our decision and will in fact issue a new apportionment count that is consistent with the law as we clarify it.

By the same token--

Mr. Dellinger: I will presume that, too, but that was four justices, and there wasn't a specific discussion of what is supposed to happen under the statute, even assuming the President sort of takes counsel from our opinion.

Mr. Lee: --And the other opinion in that case, Justice Souter, that also addresses this issue was Justice Stevens' concurring opinion, for a separate four-justice concurrence on this issue, and his analysis was in fact that the statute would require the President to conform to a revised count that the Secretary might present in conformity to a decision of this Court.

Mr. Dellinger: Well, that's what he said and as you know, I joined his opinion.

But that didn't have a majority, either.

So isn't it incumbent upon you to tell us whether in fact the position that some of us took that first time is in fact correct?

Why will they, I mean, it seemed so to me at the time but it's a real issue in this case, as to whether the statute which is geared to delivery of information at certain times can in effect reverse itself.

Mr. Lee: The other point that Justice Stevens made in his concurring opinion, Justice Souter, which I think is critical on this issue, is that the time lines under the statute can be understood only to trigger, only with regard to the issue of ripeness.

In other words, it makes no sense to think that a time deadline for executive action under a statute means that you, you must... it makes no sense to think that those deadlines are a bar to judicial review.

In fact, what we usually think of when we look at a statute that has deadlines is that once those deadlines have passed, then executive action is at an end, there is a ripe claim that may be brought and then it's appropriate for the federal courts to step in.

Mr. Dellinger: But those are not cases where after, after the deadline provisions, you have a, a basic change in, in the court's role, that after the deadline in this case, you are going to have to, the court is going to have to issue an opinion that purports to bind the President.

Which is, you know, a significant step.

Mr. Lee: Yes.

I think that the opinion does not need to purport to bind the President, and as the Court indicated in Franklin, there is no need for the order to go to that point.

Mr. Dellinger: Well, but I mean that's, that's even worse.

You want us to decide something on the ground that some good may come out of it.

But I just don't know what your closest case is for the proposition that this satisfies the redressability requirement.

Let's assume that the President, were interested in implementing our orders.

We send something to Congress, and maybe that's the end of it there.

Can we force the Congress to act?

Mr. Lee: Well, the, the order would go to the Secretary.

The Secretary would submit a new apportionment count to the President that would be free of the estimations and the question then is what would the President do.

And the President under two alternative, but not necessarily inconsistent theories, of eight justices in the Franklin case would certainly conform and would present those same numbers, that same revised apportionment count.

Mr. Dellinger: Mr. Lee--

--Let me just... what's your closest case to show that a declaration of this kind satisfies the requirement of redressability?

Mr. Lee: Well, I believe it's Franklin, Justice Kennedy.

Mr. Dellinger: Excuse me.

Other than Franklin.

Because Franklin was a fractured opinion.

Mr. Lee: Well, one understanding consistent with Justice O'Connor's opinion in Franklin would be that of a declaratory judgment.

It does not in and of itself bind the parties.

It rather declares the law.

It is not a, it is not a, a binding order in the sense of ordering parties to do anything.

Mr. Dellinger: Well, it does bind the parties in a certain extent.

It's just, there is no action required as a result of it.

There is no mandate saying you must do this.

Mr. Lee: That's right, Mr. Chief Justice, and I think that that's consistent again with Justice O'Connor's plurality opinion in Franklin.

Mr. Dellinger: We have never held that a declaratory judgment will issue where the Court has no power to compel the action that the declaratory judgment describes.

I mean, you cannot get jurisdiction by saying well, you know, we have no power to, over this person to compel any action, but we are just going to declare what the law is because this person, you know, might follow it.

I don't think that's a basis for jurisdiction.

Mr. Lee: Well, Justice Scalia, but I think there are two alternative theories.

One is Justice O'Connor's approach and the other is Justice Stevens' approach in Franklin, and Justice Stevens' approach in Franklin in fact, is in fact that the President is required to conform with revised numbers.

But the Secretary might represent--

Mr. Dellinger: But you are actually taking a position also that whether or not the President would respond, at least the Secretary would have a duty to do something in response to our order.

Mr. Lee: --That's exactly right.

Mr. Dellinger: Is it quite common that in suits the President is not named, and the Secretary is.

But I wanted to go back to a question... the President has acted, but Congress has not.

Am I correct?

Congress is waiting on what this court does?

Mr. Lee: The final step, Justice Ginsburg, in this process, is for the clerk of the House of Representatives to forward to the states a certificate that shows how many seats in the House of Representatives they are entitled to after clerk receives the revised numbers from the President.

And this Court in Franklin indicated clearly that that duty is a ministerial duty and that we can absolutely expect that the clerk of the House will follow suit.

So the only question is with regard to the President, and either under Justice O'Connor's approach or under Justice Stevens' approach in the Franklin opinions, we can and should expect that the President will in fact conform to this Court's order.

Mr. Dellinger: You only have a certain amount of time, Mr. Lee.

I want to ask you a question about the merits of the case.

Are you saying in effect that there has to be a specific, something more than just a little bit of educated guesswork with respect to every house in the country?

Mr. Lee: Well, the actual enumeration clause of the Constitution would require an actual count, and--

Mr. Dellinger: Okay.

But what, supposing that the census people have, they see a house, and they see a car in the driveway, but they can never find anybody home, and then someone sees lights on late at night.

They do their best.

Do they have to say nobody lives there?

Mr. Lee: --Yes, they do, Mr. Chief Justice, and one of the reasons is that the mere fact that there are lights on and cars there doesn't tell us that this is anyone's usual place of residence.

It may be a seasonal vacation home.

Mr. Dellinger: It doesn't confirm it, but isn't it a permissible inference for the census takers?

Mr. Lee: Well, at some point a census taker may make a conclusion, if it's based on information specific to an individual household, may make a conclusion that a household is in fact occupied.

Our position is that what the Census Act requires, Section 195, is... what the Census Act prohibits, rather, is the use of information specific not to that individual household but specific to an entirely different household for the purpose of drawing an inference.

Mr. Dellinger: Okay.

Would you, on that theory, would you agree that although they may not impute a number beyond one, it would be fair for them at least to count it as one?

Because they start out as I understand it with a, in effect a report from the post office saying, you know, this is a house at which somebody lives.

So isn't that kind of hearsay just as good as, let's say, the next door neighbor's hearsay at least to the extent of saying somebody lives there and they can count one person?

Mr. Lee: Justice Souter, they don't start out with the proposition that this is a house and somebody lives there.

They start out with the proposition that this is an address.

Mr. Dellinger: Well, doesn't an address usually mean somebody lives there, at least if we can establish that it's a residential neighborhood?

Mr. Lee: Not necessarily, for a number of reasons.

Number one, you have got the seasonal home problem.

It may be no one's personal, no one's usual place of residence.

Number two, you have got the problem that some things that look like homes and that are in residential areas actually turn out to be businesses.

Mr. Dellinger: What percentage of homes in the United States when they take the census turn out to be vacation or second homes?

Mr. Lee: I don't have that number handy off the top of my head, Justice O'Connor.

I believe that it is in the record, but I'm not aware of that.

The total number of imputations was with regard to 620,000 unrelated--

Mr. Dellinger: But the imputation techniques apparently treat all the dwellings that are identified as residences to be counted?

They don't discount for a percentage that are vacation homes?

Mr. Lee: --No.

They do not.

And that's part of the problem.

Part of the problem here is that imputation assigns occupancy not only to units, Justice Souter, that are known to be houses.

Mr. Dellinger: That's saying that they are doing it bad.

We have to assume they are doing it good.

I mean, suppose they have learned with experience that an old age home that has two bedrooms in each apartment and that has a sign out in front that says "full", has two people.

One in each bedroom.

And now they learn something about this house.

It's an old age home.

It has two bedrooms.

And the sign in front says full.

Now, can they make the assumption that this too has two people in it?

Mr. Lee: I think not.

Mr. Dellinger: Not.

Now, why not?

Can they make an assumption that if the pizza man delivers pizza to the place and people eat the pizza, i.e., at least it disappears, that there is someone in the house?

Can they make that assumption?

Mr. Lee: They cannot, Justice Breyer.

Mr. Dellinger: They cannot make the assumption about the pizza man.

They deliver it to the door and the food disappears and the lights are on and off.

They can't make that assumption?

Mr. Lee: No.

People in businesses eat pizza and people who are living, staying temporarily in a vacation home eat pizza.

Mr. Dellinger: And by the way, there is a sign in front that says this is not a vacation home.

[Laughter]

Mr. Lee: Then I suppose... I suppose under those circumstances, then we'd have information.

But--

Mr. Dellinger: Fine.

Once you are down, once you are down that road, then you are then... then I can easily construct examples where the imputation is absolutely as strong.

I mean, I just did that with my old age home.

So you are not against imputations, you are against weak imputations.

Mr. Lee: --No.

I'm against sampling because that's what the statute prohibits.

Mr. Dellinger: You have to take that position.

Mr. Lee: I think it's important, though, to answer your question, Justice Breyer, to go back to the baseline of the House of Representatives decision.

It holds that a method proposed by the Census Bureau in 1997 is a method of sampling.

We know that much, and so there is really a narrow statutory question presented here and it is, is this particular method meaningfully different?

And the answer is that it is not.

It is not under the statistical understanding of the term sampling.

It also is not because the definition that the appellees are proposing here is a definition that would nullify this Court's decision in the House of Representatives because the two methods simply are not distinguishable.

Let me talk about the appelees' definitions and explain why that's true.

The definitions that they propose say that sampling is limited to methods that are employed as a last resort, only after an initial effort to enumerate the whole population.

Under that definition, in fact, both, neither one of the methods that's at issue here would follow sampling, and so that effectively is an argument that the Court got it wrong in House of Representatives and that that case ought to effectively be nullified.

And here's why.

Mr. Dellinger: Are you suggesting, Mr. Lee, that the Census Bureau goes about this thing in a way, say, supposing you have a lake in northern Wisconsin where the temperatures get down to about 40 below in the winter.

So you know it's not a year-round, you see a bunch of houses around the lake.

The census people come along and do you think if they could find somebody there, they would just automatically say yes, that person counts?

Without inquiring as to whether it's a vacation home or not?

Mr. Lee: Well, if they know that there is somebody who is living there, they have to find out whether the somebody who is living there lives there as his usual place of residence, or that person doesn't count in the apportionment count.

But what's going on--

Mr. Dellinger: But under the imputation method as I understand it, the assumption is made that if a house is there, that it is a residence, and a second assumption is made that the number of occupants will be that in a general geographic area of other homes.

Is that right?

Mr. Lee: --That's right.

And that's exactly the sense in which this particular method of imputation is a method of sampling.

The Census Bureau took a sample of 620,000 addresses.

They called them donor housing units in the 2000 census.

It used that sample of 620,000 addresses or housing units as a representative sample of the 620,000 addresses that they never were able to count on the theory that they were representative, knowing that next door neighbors are not always the same, but that generally across the board, if you take the 620,000 sample or donor units and use them to estimate the 620,000 addresses about which we know nothing, generally across the board it will average out and it will be representative.

And that's sampling.

Sampling is taking information about the parts to make an inference about the whole.

Mr. Dellinger: I'm curious both in your argument here this morning and in the brief, I think both parties seem to assume that the key question is whether or not this is sampling.

Do you take the position that other statistical methods of adjustment are permitted just so long as they are not called sampling?

Mr. Lee: Our position is, Justice Kennedy, that any method that takes information from a part of the population to make an inference about the whole is a method of sampling and is prohibited.

Now, there are methods, statistical methods that the Bureau uses that don't amount to sampling that are permitted.

Let me give you one example.

Mr. Dellinger: Go ahead.

Mr. Lee: It's called the method of quality assurance, and the quality assurance phase, what the Bureau does is to randomly send out enumerators to given census tracts to try to find the tracts where there are a large number of errors, where the enumerators may have made a lot of mistakes.

But the response to that is to send out an additional army of enumerators to those problematic tracts to sort out the problem to get the new information.

Now, that's an actual count.

That's not sampling but it's a statistical method.

And so that's an example.

Mr. Dellinger: What about a house where they have not been able to find anybody to talk to, no returns sent back, so they go to the people next door and they say is there anybody living in that house and the person next door says yes, there are two people.

Now, is that permissible under your theory?

Mr. Lee: That is permissible under our theory.

That's the use of proxy data that the Bureau currently engages in and Mr. Chief Justice, that would be permissible.

Mr. Dellinger: But the Act refers both to sampling and to other methods of statistical adjustment.

It seems to me sampling is a way to gather the data, and what we are talking about here are statistical assumptions made to evaluate the data, and I'm not sure why you have to concede that you lose if we say this isn't sampling.

Mr. Lee: Well, there may be another way to get there, Justice Kennedy, but my understanding under the statute is that Section 195 prohibits the statistical method known as sampling.

That may suggest that there are other statistical methods that are not, that don't amount to sampling, and the quality assurance example that I gave I think is one of those examples that would be permitted under the statute.

But all methods that take information from a part, from these 620,000 addresses that are occupied, to make an inference about the rest of the population, the 620,000 addresses that we don't know anything about, those are methods of sampling and again you really cannot distinguish this method in any meaningful way from the method that was struck down in 1997.

The principal difference is that instead of 620,000 addresses about which we know nothing, under the 1997 plan, the Bureau anticipated that there may be many more.

Mr. Dellinger: Yes.

But there is one significant difference and that is in the technique that was struck down before, a number of inferences are being drawn from the so-called sample.

In this case, only one inference is being drawn from a sample of one, and that is at least a tremendous difference in degree, and I suppose it's a difference in degree that would be likely to have an effect on accuracy.

Mr. Lee: In fact, Justice Souter, that is not a distinction.

The fact that there is an imputation being made one individual housing unit at a time, again, does not distinguish this method from the method struck down in the House of Representatives case.

Mr. Dellinger: Well, it wouldn't in a literal sense if you were simply making one imputation at a time, but you were making a long series of imputations from the one sample, in this case, the one house.

But this is simply one imputation made one time, and it involves not so much a, a principle of selection, or let's put it this way.

You can characterize it not only as based on a principle of selection, but you can, you can characterize it on, on a rule of probability, like birds of a feather flock together.

People who live next door tend to be much alike.

So it seems to me that there is a qualitative difference and a quantitative difference.

Mr. Lee: But Justice Souter, once you pool all of the individual housing units together, the 627... 620,000, rather, of these housing units that were used to estimate the 620,000 addresses that we know nothing about after six follow-up visits, that's your sample.

That's your group.

Mr. Dellinger: No.

Your sample isn't 620 to tell you about just any random 620.

It's, it's a selection of one to tell you about one more which is right next to it.

So it seems to me that it sort of masks the issue to talk about 620 and 620 as opposed to one and one.

Mr. Lee: Mathematically it seems to me, though, Justice Souter, we get to the same end.

This is an intermediate step, even though it happens on a household by household basis.

It's an intermediate step for the clear purpose of making an ultimate inference about the population as a whole.

If, for example, there are three--

Mr. Dellinger: Yes, but that, I mean that would be true about any inferential conclusion.

I mean, strictly it would be true I suppose even if accepting the hearsay conclusion is true.

And there is an awful lot of inference that does not fall within anyone's notion of what is a sample or what is in a technical sense a statistical method.

Mr. Lee: --It is also true, however, Justice Souter, of the method struck down by this Court in the House of Representatives case.

And I probably didn't make this clear enough the first time I mentioned it so let me just make it one more quick time.

Under the 1997 plan, it's clear that the Census Bureau proposed to estimate the roughly 10 percent of the population that it was not going to enumerate one individual housing unit at a time.

As is indicated in the administrative record in this case at page 1647, it was precisely the nearest neighbor assumption that the Bureau had in mind under the 1997 plan.

So that truly is not a distinction between this particular method and the method at issue in the House of Representatives case, and thus the argument that's being proposed here really is an argument that would effect an end run around the House of Representatives decision.

Mr. Dellinger: Mr. Lee, as I understand it, the imputation method that was actually used after the 2000 census has the effect of counting non-households as households in some instances?

Mr. Lee: That's correct, Justice O'Connor.

Mr. Dellinger: And it counts one household several times in some instances.

Mr. Lee: That's correct, because some of these are different--

Mr. Dellinger: And, all right.

And the imputation is not based on the nearest neighbor.

I mean, there is a big block of homes, and the assumption about who lives on it is not based on a nearest neighbor.

Mr. Lee: --Ordinarily, as I understand it, it is the nearest neighbor address that's used to estimate or impute the address about which we know nothing.

Mr. Dellinger: That's not my understanding, but we can explore that with the other side.

But I was concerned because it seems to be a method that does amount to what we said couldn't be done, in House of Representatives, on a much smaller scale.

Mr. Lee: That's exactly right and of course the scale of the practice is beside the point.

Mr. Dellinger: Well, they say it isn't beside the point.

I take it that their argument is basically in House of Representatives, what the census was trying to do was to use a special kind of inferential method to determine the population of an entire area.

Well, here they are using an inferential method to determine the population of an individual house.

Now, if you don't make that distinction, and you say that distinction is irrelevant, we are left with your distinction which seems as Justice Souter just pointed out to be the same as all inference.

In other words, I infer that when you deliver pizza and it disappears, someone is in the house, because of the set of similar to pizza type cases that I have seen in the past.

Or, you know, that's I think what Justice Souter was bringing out, they have a different distinction.

Now how do I deal with the problem?

Mr. Lee: Well, Justice Breyer, let me mention two reasons why that distinction doesn't get them anywhere.

It doesn't get them anywhere number one because it simply isn't borne out in the statistical understanding of methods of sampling, in two senses.

Number one, the statistical understanding of sampling says generally, what statisticians understand to be encompassed within the general category of sampling is taking information from a part to make a statistical definition.

Mr. Dellinger: You have the statistical definition, but my question was directed at a particular problem that, if I take your approach I can't get myself out of.

That is, that your definition applies to all inference.

Their definition distinguishes among kinds of inference and they have their statistical support.

Mr. Lee: The problem with the distinction is, another problem with the distinction is that it's clear that it would permit the Census Bureau to replicate the 1997 plan.

If you buy that distinction, the Bureau can get back exactly to where it wanted to go in 1997 merely by scaling back its nonresponse follow-up efforts.

Mr. Dellinger: I don't understand the pizza man.

Does the pizza man, does that inference consist of imputing something from the part to the whole?

I mean, I would think that's your answer to the pizza man example.

It is an inference.

No, no.

It goes from the whole to the parts.

But it's not the same kind of inference that is done by what you say is sampling, mainly, imputing information that belongs to a part to the whole.

That's not what's going on in the pizza man case.

Mr. Lee: Maybe, Justice Scalia and Justice Breyer, maybe I missed the pizza man example, but that may well, that may well be a distinction.

Mr. Dellinger: I didn't think the imputation involved any actual things like looking at, when pizza was delivered.

It involves looking at what houses returned, take a big block in the district they are serving.

It involves looking at the houses that returned the form, looking at the houses where they reach people in a follow-up visit, and there are some they may might still be missing and so they impute the map.

They don't go see if there is a car in the garage or look at the pizza delivery.

They arbitrarily say we are going to impute from the data we have that there are X number of additional houses and that X number of houses are occupied at a certain level of occupancy.

That's what's going on.

Mr. Lee: That's exactly right.

That's precisely right, Justice O'Connor.

The pizza man knows how many people live there.

He is a proxy and he can give that information to a census enumerator.

But the end run problem is illustrated by this distinction; if the Census Bureau can use any methods that fall within the definition that's now being proposed, the Bureau can simply scale back slightly its nonresponse follow-up effort and estimate increasing percentages of the population, up to and even exceeding the 10 percent that was proposed in 1997.

Mr. Dellinger: Mr. Lee, didn't it prove out that, after, that in the majority of these cases, something like 75 percent, that they know for sure that these were houses where people lived?

Mr. Lee: Actually not, Justice Ginsburg.

The 75 percent figure is misleading and completely unhelpful.

At page 445 of the joint appendix the memorandum that's at issue there simply says that in 75 percent of the status imputed cases, status imputation was done with regard to enumerator returns or respondent returns.

In other words, these were not mail-back returns.

Mr. Dellinger: But you don't have a negative showing, either, that it wasn't accurate?

And there was something Justice O'Connor said, and I'm not sure whether I fully understand it.

I thought that this imputation was made for people who didn't respond to the mailing, that the like comparison was with the group of people that were eventually counted, but that they were nonrespondents the first time around.

Mr. Lee: That's right.

I think if understand your question, Justice Ginsburg, I think that's right.

They took information from initial nonresponding households, used those as a sample of those who never responded, and some of those may well not have been homes, Justice O'Connor, some of those may well have been duplicates, etcetera.

If there are no further questions, Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Mr. Dellinger: Very well, Mr. Lee.

Mr. Dellinger, we'll hear from you.

ORAL ARGUMENT OF WALTER E. DELLINGER ON BEHALF OF THE NORTH CAROLINA APPELLEES.

Mr. Dellinger: May it please the Court, because North Carolina believes very strongly that the right time to challenge the Census Bureau's planned use of a statistical method is before rather than after the census is completed, let me begin by--

Mr. Dellinger: Well, how could the challenge have been brought before Utah knew that the imputation figures caused this problem?

Mr. Dellinger: --Under your decision in House of Representatives, I think on page 332, you note that citizens of Utah, you didn't specify the state, but citizens who anticipate that the use of a method like imputation, as suburbanites might, would dilute their in intrastate districting representation, are specifically said in House of Representatives to have authority to bring that suit.

So I think that there would have been parties able to litigate it.

In response--

Mr. Dellinger: Well, you can't bring a suit before you know about what's going on.

Mr. Dellinger: --Yes, you can, Mr. Chief Justice.

It is true, as you noted, that there might not be a special incentive on Utah's part, but they don't know they are going to be the loser.

They might have come out better or worse with or without imputation.

But every governor, attorney general, states and cities are carefully watching this.

Many as you know sued in 1997.

So the suit could have been brought that, by any resident of a suburb could have had an expert allege that they are going to be diluted if you impute households because it's rural areas where the files are often damaged or--

Mr. Dellinger: But Mr. Dellinger, a state can't, you suggest there are suburban people, city people, a state can't, until it knows what the result is going to be, and Congress used the words any aggrieved person.

The state, you are saying is the state can never bring such a suit, because it is not aggrieved before.

It can't predict that it's going to be aggrieved.

It will know only when the returns are in, so in effect, you are saying this is not a question that the state has come too late.

It's not sooner or later, it's a never question for the state.

You're saying Congress simply did not authorize the states to bring this kind of case.

Mr. Dellinger: --Justice Ginsburg, that is correct, if a state is unable to show, does not have the experts about a forthcoming census that is unable to demonstrate that it will be aggrieved.

How much we should worry about a nonaggrieved party not being able to obtain judicial review is--

Mr. Dellinger: They are aggrieved at the end of the line.

Mr. Dellinger: --They are now, but my point is that if Utah had been watching this carefully, and as you know, many states were involved in the '97 litigation as amici and otherwise.

Surely the Governor could have found many citizens of the State of Utah who, and this suit itself includes individual voters, some of whom may very well, the plaintiffs--

Mr. Dellinger: The governor had no incentive to do so.

Mr. Dellinger: --I understand that.

Mr. Dellinger: He could have gotten a stalking horse to, some suburbanite to bring the suit but he had no notion that there was any reason to do that.

Mr. Dellinger: It seems to me that that is exactly correct, but that it's exactly why any governor, major city mayor or others, these citizens, those who brought suit in 1997 and did not include this, suburbanites are going to hurt, would want to sue, could bring the suit, but in any event, they could also participate in the Bureau's process.

Utah never made this objection.

Now, here's why that's so unfair.

It's simply this.

The, it is, we don't know who would have gained this seat if Utah had bought its objections to the Census Bureau before the census was conducted.

Mr. Dellinger: Is there a statutory time period for people to challenge the Census Bureau proposed techniques before the census is taken?

Is there some provision whereby that challenge can be made?

Mr. Dellinger: Yes.

The public law which was the basis for the suit in 1997 is a permanent law, and that suit allows aggrieved parties to bring suit when the census produces its plan.

So it's certainly at least--

Mr. Dellinger: But is it a fact that somebody is aggrieved when you are at the stage of the Census Bureau just saying this is what I plan to do?

Mr. Dellinger: --Yes.

The law involved, the public law, that was a basis of the '97 suit makes it clear that if you could say if they do that plan, that's exactly how it works in House of Representatives, if you do that plan, we expect that our district will be diluted.

Mr. Dellinger: Well, does the law provide for some sort of administrative hearing before the Census Bureau, some sort of an exhaustion requirement?

I thought that's what you were suggesting.

If Utah had just brought this to the attention of the Census Bureau.

Is there some structure for doing that?

Mr. Dellinger: Yes.

The Census Bureau does have a structure for doing this.

I'm not saying that they are foreclosed because they didn't participate in the administrative process, but the Bureau was open to hear these objections and the courts were open to hear them.

Mr. Dellinger: But, you say now the Bureau, is that well publicized?

Is there some person you can go to in the Bureau and say I don't like what you are doing?

Mr. Dellinger: Yes.

And that is the exact process that is followed with every... that's why they publish the plan for the census.

Now, if--

Mr. Dellinger: It seems unfair to Utah, though, to say that they are supposed to bring a suit before they know they have been hurt and why.

How... what are they supposed to do?

Of course they wouldn't come in ahead of time.

For all they know, the system would benefit them.

Mr. Dellinger: --Justice Breyer, those who sued in the House of Representatives litigation had a very thin basis for knowing that they would be adversely affected.

Indiana maybe wrong in thinking that--

Mr. Dellinger: Well, of course, sometimes you could guess in advance, but a lot of times you couldn't, and it's important that there be a fair method that treats states fairly.

So why, why would it be fair, any way, to cut off those states that don't know they have been treated unfairly and hurt, until they find out later?

Mr. Dellinger: --And here's why.

Here's why it's not unfair.

Because the unfairness is so great for the disruption on the other side.

If it had been determined by the Bureau itself or through litigation that imputation could not be used in 2000, the Census Bureau absolutely would have used some means other than imputation to ascertain the enumeration of those established residential addresses whose records were damaged, missing or incomplete.

There are in North Carolina approximately 16,000 households that are established residential addresses on the carefully pruned master address list.

Those houses often were visited by an enumerator in the, often the houses were added where it was status imputation by a field enumerator during the enumeration process.

But the new form, because it wasn't on the master address list before being added, never caught up with the master address list.

So you have no residential addresses, and, and the Bureau absolutely would have had another method.

I mean, even now theoretically they could go back and start again and say what are we going to do about 620,000 established residential addresses for which we don't have input numbers, because at the end of this massive process, now, this is a process that involves 500,000 enumerators, 120 million households, one and a half billion pieces of paper, imputation occurs at the end of that process when all the records are centralized.

It began in 1960, five censuses ago because that's when computers were able to process these cards.

Damaged cards, now forms, can't be read.

The data is discrepant or missing.

It doesn't mean that these are households that were visited six times.

Mr. Dellinger: Mr. Dellinger, you have recognized that your argument is, as stated, that the position of Utah that can't project what the returns will be, does not have, does not qualify as an aggrieved person at the only moment in time when it can say that it's aggrieved.

I think you had another justiciability issue, did you not?

Because time is running and I think we grasp your position that it's too bad they are not aggrieved because they have to come in in the beginning and not at the end.

Mr. Dellinger: Yes.

Justice Ginsburg, we are not suggesting that these issues are immune from judicial review.

I believe someone could challenge imputation and would.

Mr. Dellinger: Are you sure they were not aggrieved at the beginning?

I'm surprised that you... I mean, is it not an aggrievement for the State of Utah or for any state that its districts are distorted?

Even if it doesn't lose, you know, congressmen to another state, isn't the distortation of the districts within that state a grievance of that state?

Mr. Dellinger: That is a very helpful answer, and that is not... a very helpful suggestion.

And that has not been by any means ruled out, nor has it been ruled out in my view that a state could say we believe we are entitled to have a fair process determine our representation.

This process isn't fair.

We don't know how it's going to come out.

But this process is loony.

Now, you would also see there's just a matter on the merits.

Congress has said in Title II, Section 2 that the President's determination shall be final and the states are entitled to that for the next period of time until the next apportionment unless Congress itself acts, which they specifically provide for.

That's surely constitutional because the Constitution itself in providing that the census need be done only every 10 years puts a great stake in permanency.

Now, turning to the merits, it's striking the extent to which the issues in this case are anticipated by the Court's decision in the Wisconsin case.

At page 22 in Wisconsin--

Mr. Dellinger: Before you go on to the merits, you have nothing else to say then about justiciability?

I mean, let's suppose they can file a suit.

What's the remedy going to be at the end of the day at this stage?

Mr. Dellinger: --Oh, at this stage?

Mr. Dellinger: Yes.

Mr. Dellinger: Justice O'Connor, that is a very good question.

Utah seems to assume that if the case went back to the District Court, overturning the District Court's ruling that imputation is satisfactory on the statute and the Constitution, that you would simply take out those occupancy figures for 620,000 households nationwide.

It seems to me that the, that what ought to be done is you return that to the Bureau and say now there may be time to match up the missing forms that were added late in the enumeration process.

There may be other ways to recover that data.

Ways that certainly would have been done if it were brought before the census might still be brought now.

So that we don't, it seems utterly unfair to treat all of those as zero when some of them are houses that, an enumerator comes to 212 Elm Street, it's not on his list, he goes in, interviews Ozzie, Harriet, the kids, sends in the form and it was corrupted or it didn't get matched up at the time, faced with that time deadline.

It may now be available.

We don't know who would prevail on that.

On the statutory issue I think if you look at page 22, the Court itself creates statistical adjustments as done in '70 and '80, and as they were done here--

Mr. Dellinger: Page 22 of what?

Mr. Dellinger: --I'm sorry, Justice Rehnquist.

I referred earlier to the decision of Wisconsin vs. the City of New York, the unanimous opinion.

On the statutory issue, the Court says that the statistical adjustments in 1970 and 1980 which were imputation, hot-deck imputation, were an entirely different type than the adjustment considered here, and they took place on a dramatically smaller scale.

The Court also treats actual enumeration in the Wisconsin case and speaks of actual enumeration at page 6 in the Wisconsin case as having been something that the Bureau has never, or the country has never actually achieved actual enumeration.

It's never been wholly successful.

Treating it clearly as the end result of the process, the right number and not as a method.

Now, let me go right to one point.

We do not believe that there are no constitutional limits on how Congress can conduct the census.

Wisconsin says that there is virtually unlimited deference to Congress, but they also set a standard that the congressional goal must be related to representation according to the respective numbers.

The way I read that is this.

A proposed census as designed is not reasonably calculated to produce distributive accuracy among the states is constitutionally suspect, because it will not produce an apportionment according to the respective numbers.

And that would be a fatal flaw.

Here, every imputed occupant and household is to an established residential address with a precise geographical location.

It was an effort to enumerate every household in the country by using the best information available on known household addresses.

This is historically consistent with what we did when the neighbors are asked for their opinion, the postal worker is asked for his opinion.

You use proxy information.

Here you take--

Mr. Dellinger: Mr. Dellinger, this isn't really a use of proxy information.

This isn't going to a neighbor who lives next door, this is using a statistical method to make assumptions, isn't it?

Mr. Dellinger: --Yes, it is.

Mr. Dellinger: I think you have to be realistic about that.

Mr. Dellinger: Yes, it is a statistical method by which you take, when you have a known established household address, the information from that, basically the next door neighbor, somewhat refined, Justice O'Connor, the next door neighbor that was a nonresponding household of a similar type and they found over the years that that information is more reliable than zero.

Utah's position is that the Constitution requires when you have an address known to be occupied, if you put down that it's occupied by zero people, that's not an actual enumeration, that is literally a counterfactual enumeration from what one knows to be the case.

This is a process where you use one unit's characteristics to supply to another.

Mr. Dellinger: That's just part of it.

It also, it also imputes nonhouseholds as households.

I mean, it does a lot of things.

Mr. Dellinger: It imputes only to known addresses.

Thank you.

Mr. Dellinger: Thank you, Mr. Dellinger.

General Olson, we'll hear from you.

ORAL ARGUMENT OF THEODORE B. OLSON SOLICITOR GENERAL, DEPARTMENT OF JUSTICE ON BEHALF OF THE FEDERAL APPELLEES

Mr. Olson: Mr. Chief Justice and may it please the Court: The Census Bureau has consistently utilized the imputation technique for drawing inferences about a tiny fraction of damaged, discrepant or missing population data for the past five censuses.

Mr. Dellinger: Do you agree that that's a statistical methodology or is it just a method of making deductions from circumstantial evidence?

Mr. Olson: We agree that it is a statistical methodology, Justice Kennedy, and it's very important in that context to focus on the words of the statute.

The words of the statute are that the statistical method known as sampling is the one that's prohibited with respect to the apportionment.

That statement in the statute suggests that other statistical methods are not prohibited by the statuted, and that one particular statistical method, that is the one that is known as sampling, which is in quotes in the statute, which imports that it's a term of art that was known by Congress to be a term of art.

It was a phrase that was suggested by the Secretary himself in 1957, when that statute was added, that exact phrase came from the Secretary.

The Secretary was presumed to know what that phrase meant.

It is a term of art that statisticians know what it is.

Furthermore--

Mr. Dellinger: Well, I thought the statute also said that statistical adjustments pose a risk.

Mr. Olson: --It does not say that.

In fact, the import of the statute, Justice Kennedy, is that statistical adjustments, and I will refer to what my colleague Mr. Dellinger just referred to, at page 22 in the Wisconsin decision which was unanimous decision by this Court just six years ago, distinguishing the sampling method that the Court was talking about in that case from statistical adjustments known as imputation, which is described on pages 4 and 5 of the Respondent's brief, referred to on those pages of the Supreme Court, this Court's unanimous decision just six years ago as being an entirely different thing.

We would go back also to the fact that this Court unanimously held in that case that the Constitution vests virtually unlimited discretion in Congress respecting the manner in which the census shall be conducted, and that Congress has delegated its broad authority to the Secretary to take the census in such form and content as he shall direct.

Now, the Congress has exercised that discretion by passing it on to the Secretary with the one limitation with respect, with respect to one statistical method known as sampling.

Now, at the same time, the Secretary was proposing the prohibition of the sampling method; with respect to the apportionment of the census in 1957, the Secretary was planning the 1960 census, which was the first computerized census and the first time that the imputation method which we are talking about today was used.

So it's obvious that the Secretary did not believe that hot-deck imputation was sampling, because the very next census three years later imputation was being used in that census.

And it was used again in 1970, 1980, 1990, and 2000.

And with respect to 1970, and 1980, it was actually considered by this Court in connection with the Wisconsin case.

It is widely understood in the industry that sampling is a collection of, a collection technique whereby a sample, a fraction of the whole population is used to deduct... deduce the actual whole population.

It seemed to me that a metaphor that might be considered outside the context of population gathering would be if the Court asked the library of this Court to ascertain the number of books, to conduct the number of books in the Court's library, and the, but sampling was not permitted to do that, so that the librarian could not go to every third shelf, multiply, count the books, multiply by three and get the census.

But if the librarian went to those shelves and counted every particular volume and found that there was a space here on that shelf, a space this big on the next shelf, and a space this big on another shelf, for example, the imputation would be saying well, all the books or the books right next to this are this size, and therefore that space a book is missing, so we know we have a book, and we will impute one book to that space or two books to this space.

So that the sampling technique is completely discrete from the imputation technique.

We know that because the Secretary has always regarded it that way.

The Congress has given the authority to this expert agency which has been conducting the census for years and years and has drawn various different types of inferences which is what imputations are.

Mr. Dellinger: Why, just out of curiosity.

I mean, I'd like to understand this better.

In the library, you look and see that everything around the book is a history book and so then you impute the characteristic of being a history book to the one that's missing.

That's your analogy of what goes on here, is that right?

Mr. Olson: Well, yes, I think that's an extension of it.

In the example that I was giving you look at the space and impute the size of the space by the book that is immediately next to it.

Mr. Dellinger: Okay.

Why is it called statistical?

Why isn't that just ordinary inference?

Why... you said we do it statistically?

What's statistical about it?

Mr. Olson: Well, I'm not sure.

That's a good question.

I don't know the answer to why it should be called statistics, because in my thinking of it, it is drawing logical inferences from the data available.

Now Justice O'Connor, it is not creating phantom homes.

Most of these cases in, the statistics indicated that with respect to one of the forms of the imputation, and this is in the record at the joint appendix, the information may be found in pages 445 through 448 of the joint appendix, that 98 percent of the household size imputation forms were enumerator forms with the status of occupied homes.

Now, the problem is that with respect to any, and the statistics are different, but in 93 percent with respect to occupancy imputation, 75 percent with respect to status imputation.

Each of these are attempting to find actual people drawing from the closest comparable unit and it's one unit for each inference.

It's not extrapolating from one unit to the whole population.

The problem with the census is that there are billions of pieces of paper as Mr. Dellinger indicated.

Some people refuse to return the forms and their known addresses.

Some people fill out the forms incorrectly.

They may say occupied but zero.

The enumerators might get bad information.

In 1850, a substantial portion of the entire State of California the returns were actually burned, and the Census Bureau in 1850 actually used a process to replace the 70,000 people that were not there.

And one of the questions indicated, neighbors have been used as proxies.

Heads of households have been used as proxies.

Postal service has been used as proxies.

These are all means by which the postal, the Census Bureau attempts to develop the most accurate count it possibly can.

Mr. Dellinger: When you say heads of households have been used as proxies.

Does that mean you go to the head of the household who appears at the door and ask him how many other people live in the house?

Mr. Olson: That's correct, Mr. Chief Justice, and that was the way it was done in 1790.

Mr. Dellinger: That doesn't seem too statistical.

Mr. Olson: Well, it's not necessarily statistical.

And I guess that, the fact is that as far as the statute is concerned, there is only one technique that's prohibited.

The technique of drawing inferences through sampling is prohibited.

It's prohibited probably because Congress feels that it might be subject to manipulation.

Mr. Dellinger: Yes.

On the merits, I think we have to know whether this so-called hot-deck imputation is a form of sampling.

Which it appears that it might well be.

I think that's the--

Mr. Olson: Well, Justice O'Connor, the expert agency to which Congress delegated this broad authority doesn't believe so.

That seems to me that there should be a substantial deference to the expertise of the agency.

Not only that, but Congress with full awareness that hot-deck imputation has been used over the past--

Mr. Dellinger: --Why do we call it hot-deck?

Mr. Olson: --Hot-deck imputation is distinguishable from cold-deck imputation in the sense that information from the most current census and the actual neighborhood, the most current available information for the actual census that's being developed is being used.

Now where that term came from, I don't know.

But that's what it means.

But this methodology has been used with the knowledge of Congress, with the full knowledge of Congress, for the past five censuses.

There was litigation over this matter, it's referred to as the Orr case in the briefs, where a seat may have been allocated to Indiana or Florida, depending upon how the imputation process came out.

So that litigation took place.

Congress actually changed the terminology, Section 141, which provides the Secretary with the authority to conduct the census in a manner that the Secretary thinks appropriate, in 1976.

After imputation had been used in two censuses already.

Mr. Dellinger: Of course, against all of that, and I'm not sure why we should give deference to the agency here.

They didn't conduct a rulemaking.

They didn't have any adjudication on this subject.

That's just what they happened to do, right?

Mr. Olson: Well, as a matter of fact, in the unanimous decision of this Court in the Wisconsin case six years ago, the court said substantial deference should be owed to the agency.

Mr. Dellinger: There's a lot of water over the dam since six years ago.

Mr. Olson: But the reasoning of the Court, I would submit, is--

Mr. Dellinger: I refer to Meade in particular.

And, but wouldn't the deference to the agency, even if there is to be some, potentially be outweighed by a constitutional doubt?

If we thought that even if this isn't sampling, it may well be not enumeration within the meaning of the constitutional requirement, and given, given that constitutional doubt, we think the wise course is to interpret the word sampling as including, including this?

Mr. Olson: --Justice Scalia, not only the Wisconsin case, but the other decisions of this Court which have considered census have suggested that the framers of the Constitution by using the word enumeration didn't mean a particular method by which the census would be conducted, nor did it wish to constrain both the Congress and whomever the Congress may delegate to--

Mr. Dellinger: Even sampling, presumably.

Mr. Olson: --Presumably.

Possibly.

Mr. Dellinger: Pretty accurate sampling, you know?

Mr. Olson: Possibly, Justice Scalia.

But that's nowhere close to that and this is not remotely sampling.

Mr. Dellinger: Is this remotely estimation?

Mr. Olson: This is not remotely estimation.

This is drawing an inference with respect to one particular piece of data.

We would agree that the gross estimation--

Mr. Dellinger: Why isn't it estimation?

Why isn't it estimation?

You estimate that there are so many people in this house because the house next door to it has that many people.

You don't call that estimation?

Mr. Olson: --In each of these cases, Justice Scalia, the words can be changed and added to, but the process by which the framers analyzed this in framing the Constitution, the very first House of Representatives was assigned according to an estimation, and the words actual enumeration were used to compare an actual count, an effort to find the actual number of people by indulging in a process--

Mr. Dellinger: That's why I asked about estimation.

You say there is a difference in an estimation and a deduction, I suppose.

Mr. Olson: --What I think the Constitution and courts with respect to the term actual enumeration, is an effort to go out and find a count.

We, we pointed out that the, the enumeration can mean listing by particular items as used in the Ninth Amendment, the enumerated powers.

It may be a process by which a count might be taken or it might simply refer to a census, find the population.

We submit that the Capitation Clause as we have referred to in our brief, which uses the word census and enumeration indistinguishably as synonyms, and in fact the Appellants in their brief, in their reply brief at page 15 acknowledge that the words enumeration and census are used in the Constitution interchangeably.

Justice Scalia, it didn't seem, it does not seem that the framers of the Constitution actually specified a method.

And in fact, what the Appellants were saying here today and are saying in their briefs, every census conducted by asking people who may have lived next door or drawing inferences from other pieces of information would not have been the individual by individual count that--

Mr. Dellinger: You think sampling--

--Sampling would have been okay as far as the Constitution is concerned?

Real, real sampling?

Mr. Olson: --I think--

Mr. Dellinger: We are going to do two-thirds of the state and just guess that the other third is pretty much like that.

Mr. Olson: --Well, we are not remotely close to that here.

But with respect--

Mr. Dellinger: I understand.

But your argument is that since enumeration doesn't mean anything except census, sampling would be okay.

Mr. Olson: --From the standpoint of the Constitution, I think a reasonably good argument could be made and the Government has in the past made it, that sampling if it is consistent with the process of an attempt to find an actual count utilizing sophisticated accurate and nonmanipulatable techniques--

Mr. Dellinger: Surely the term actual, though, before the word enumeration, narrows the idea that, what might otherwise be an enumeration.

Mr. Olson: --I believe it does and I think, Chief Justice, the District Court in this case distinguished actual enumeration from the conjectural apportionment that actually occurred in the Constitution itself with respect to the first House of Representatives.

What we are talking about here today, though, is an effort to, an effort to produce extremely conscientious and meticulous, to count all of the households in the United States starting with a meticulously prepared master address list.

All of those people were submitted post office forms which has been authorized by Congress for a certain--

Mr. Dellinger: That's not the issue.

Can I ask you a question about the standing issue?

I know that you in your brief do not, do not contest the standing.

You say that Franklin has decided it, because four justices thought that there was standing on one basis, and four thought there was standing on another basis.

Which of those two bases do you agree with?

Mr. Olson: --Well, we--

Mr. Dellinger: Do, do, do, is it your position that the President will have to do whatever, whatever, accept whatever revised census figures are submitted to him by, by the Secretary?

Mr. Olson: --If this Court is to, determines that the process by which the 2000 census was conducted was inconsistent with the statute or inconsistent with the Constitution and orders the Secretary to take out the imputed numbers--

Mr. Dellinger: Right.

Mr. Olson: --and deliver a different piece of information to the President--

Mr. Dellinger: Right.

Mr. Olson: --the President will transmit that certificate or that certified, those certified results to Congress for the process.

In other words, in answer to your question, the President will do what this Court assumed in those cases that the President would do.

Mr. Dellinger: He has told you that that's what he will do?

Mr. Olson: The President will--

Mr. Dellinger: You see, because, I sort of wouldn't want to make the people of North Carolina mad by taking away one of their representatives.

And were I President, I might well say, look at this judgment of the Court, doesn't run against me.

It runs against my Secretary, everybody agrees, you know, that it's not binding upon me.

It's sort of like a declaratory judgment.

And I just think too much time has passed and it would upset things too much and I don't want to take away a representative.

Mr. Olson: --The President is willing to accept the import, not only of the Franklin and the other decision that we referred to, but also if this Court decides that the process was unconstitutional or inconsistent with the statute, the President will accept that, this Court's judgment in that respect.

Mr. Dellinger: So if another, if the next President comes along, we get another case like this, and the next President tells his Solicitor General, I will not accept it, then we come out differently.

Mr. Olson: Well, if, for that reason, if Mr. Chief Justice, the Court decides that that is not the kind of result that this Court can issue, because of that possibility, we'll accept that result as well.

[Laughter]

But we think... we think it is very unlikely for that to occur, because it is quite clear that the Constitution intended to give considerable flexibility, did not want to freeze in a system the ability of the Government.

Mr. Dellinger: Mr. Olson, you are saying we can presume the President will obey the law?

Mr. Olson: Yes, Justice Stevens.

Mr. Dellinger: What happens after that?

He transmits to the Congress, I take it the clerk of the Congress says not certified, the House has not certified the results yet?

Mr. Olson: I'm not sure of the answer to that question.

I guess the answer is that is correct.

Or no.

That it has been certified and I would gather that it would have to be a revised certification if that should occur.

Mr. Dellinger: You say you assume the President will obey the law.

So you are accepting the... you are accepting the position that the President must, even if he didn't want to, that the law requires him to transmit whatever the Secretary gives him, is that right?

Mr. Olson: What we are saying--

Mr. Dellinger: Just answer that question yes or no.

Do you take the position that the President must transmit what the Secretary gives it to him, and he has no, no objection?

Mr. Olson: --I only can answer it this way, Justice Scalia.

If this Court determines that the process before was unconstitutional or in violation of the statute and the Secretary must redo it and if that information is transmitted to the Secretary, he will transmit that.

Mr. Dellinger: That is not the question I asked.

Mr. Olson: Then I misunderstood your question.

Mr. Dellinger: The question I asked is whether, you say the President will obey the law.

I take that to mean that you feel the President is bound by law to transmit whatever revised figures the Secretary takes, is that correct?

Mr. Olson: If it is based upon a decision by this Court that the Court has the power to issue--

Mr. Dellinger: To tell the Secretary.

Let's assume we have the power to tell the Secretary.

Does the President acknowledge that he is bound by law to transmit whatever figures the Secretary gives him?

Mr. Olson: --I think that that would only occur in the context of this Court's decision.

Mr. Dellinger: If not, he is not bound by law and I don't think you are going to give that away.

Mr. Olson: I don't think we need to give anything away, Justice Scalia.

We would be talking about a context in which this Court came to the conclusion it could render a jurisprudentially binding decision in a case in which there was redressability in that context.

Mr. Dellinger: Fine.

But that's a far cry by saying he is bound by law.

You seem to be accepting Marbury and Madison.

[Laughter]

Mr. Olson: Let me just summarize because my time is about up.

This Court's words again, that the Constitution gave virtually unlimited discretion to the Congress with respect to the manner in which the census would be--

Mr. Dellinger: Extend your time by two minutes.

I'll extend Mr. Lee's time by two minutes.

Mr. Olson: --Thank you, Mr. Chief Justice.

There is no evidence that the framers of the Constitution wanted to bind themselves to a particular method of counting people.

All of the evidence suggested that what the framers wanted to do was to have a reasonably reliable accurate, reasonably accurate count of the citizens in the manner that the, that Congress would determine.

Congress in the words of this Court has delegated all of that broad authority to the Census Bureau.

The Census Bureau, conscientiously using a technique that they have been using consistently for 50 years with the awareness of Congress, the General Accounting Office, oversight committees and the actual awareness of this Court, as reflected in this 1996 decision, has demonstrated, developed a method that is reasonably accurate, uses statistical methods other than those known as sampling to get an accurate court.

We urge the Court to sustain that outcome.

Mr. Dellinger: Thank you, General Olson.

Mr. Lee, you have five minutes remaining.

REBUTTAL ARGUMENT OF THOMAS R. LEE ON BEHALF OF THE APPELLANTS.

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

I have just two or three quick points.

The first is to clarify briefly the record on an important issue.

With all due respect to the Solicitor General, the record does not indicate that the majority of the imputations here were in units known to be occupied.

The Bureau's memo at page 445 of the joint appendix indicates that fully 69 percent of the units subjected to imputation were the kinds of units that Justice O'Connor's questions directed us to be concerned about, units where after as many as six visits, census enumerators were not able to determine whether the unit in question was a valid occupied housing unit and not a duplicate, not a seasonal home, not a home that happens not to be occupied.

Second, I would point the Court to another unanimous decision that this Court has handed down with regard to the census, and it's the Montana decision, and I'd like to read a brief quote from Montana and explain how important I think it is here.

This is from 503 U.S. at 465.

"To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served."

That is precisely the goal of both the Census Act and the Census Clause.

To give us rules that can be consistently applied year after year, not rules that will ebb and flow with debates among statisticians, and that's where the Census Bureau is heading us here.

The variable standard that will be produced by a debate as to whether a particular method of sampling is sufficiently premeditated or follows a sufficiently premeditated intent to--

Mr. Dellinger: What about what we said in the Wisconsin vs. New York case by your opponent, Mr. Dellinger, where we referred to this very kind of action, this imputation, and indicated that that was vastly different from the broader statistical?

Mr. Lee: --I don't believe that was an issue in that case, first of all, Justice O'Connor.

Secondly, there isn't any reason to give either deference to the Secretary here or much less to congressional inaction for a very important reason.

Imputation simply has not been on anyone's radar screen.

It's been a nonentity because it's undisputed that it impacted apportionment only once prior to this case, in 1980.

In 1960, in 1970, in 1990, it had no impact.

Congress reenacted the statute, amended the statute in 1976.

At that point in time, imputation had never affected apportionment to any degree whatsoever.

There was no reason for anyone even to be focusing on it and therefore no reason to give any deference here.

I'd like to just close by saying a few brief words about the constitutional question here.

Mr. Chief Justice, to go back to your question about the word actual.

The word actual is important, and it's important because it's not just that the word enumeration is defined to mean an actual count and not an estimate.

It's that this was a term of art.

This phrase actual enumeration was used consistently in the founding era, both in colonial assessments of population when they reported their populations to boards of trade, and also in Great Britain throughout the 18th century.

James Madison himself referred to a distinction between an actual enumeration and a mere estimate.

John Adams similarly said there is a difference between an authentic enumeration and a mere estimate.

Not only that, but the framers of the Constitution thought they were giving us a permanent, fixed standard.

That's what they said they were doing and James Madison said not only is it permanent and fixed, it is the way required by the Constitution and

"which we are obliged to perform."

It was a methodology; they understood it as such; and they understood also that it had its shortcomings.

They knew that it would result in an undercount, that when you require a count, you are going to leave some people out.

George Washington himself said look, we understand at the time of the first census that the real numbers will exceed greatly the official returns.

Thomas Jefferson similarly said we know that the omissions in the census will be great.

If they understood those limitations, then why did they do it?

The answer is clear.

They understood that that was a necessary price of a permanent, fixed, precise standard that would not be subject to manipulation, that would not be subject to the vicissitudes of debates among not only politicians, but statisticians from year to year.

And the impulse, the proper impulse of this Court's unanimous decision in Montana--

Chief Justice Rehnquist: Thank you, Mr. Lee.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Hunt v. Cromartie - Oral Argument

Fri, 09 Jan 2009 14:50:33 +0000

Case:

Hunt v. Cromartie

Media File:

99-1864_20001127-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Walter E. Dellinger, III

Chief Justice Rehnquist: We'll hear argument first this morning in number 99-1864, James B. Hunt versus Martin Cromartie, Alfred Smallwood versus Martin Cromartie.

Mr. Dellinger.

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

In the Shaw versus Reno line of cases this Court established two important propositions.

The first is that the Constitution does not tolerate using race as the predominant factor in drawing legislative districts.

When a district is drawn predominantly on racial lines, the state reinforces harmful racial stereotypes.

It sends a message to elected officials that they represent only a particular racial group.

Those cases stand also for a second proposition.

As this Court said in Miller, Federal court review of districting legislation represents a serious intrusion on the most vital of local functions.

For this reason, the important second principle is that Federal courts adjudicating Shaw claims must exercise extraordinary caution.

The decision below would severely compromise this second principle.

That ruling is inconsistent with this Court's admonition.

Chief Justice Rehnquist: Mr. Dellinger, are you suggesting that there is some different standard of proof of facts in these cases or that we should not review a factual determination of a clearly erroneous rule?

Mr. Dellinger: Mr. Chief Justice, I believe that the decision below was clearly erroneous, and we're perfectly happy to meet the standard that the conclusions were clearly erroneous.

Because the court did not separate out findings of fact from conclusions of law, it is possible to read the opinion as if the court did not actually apply the standard, but requiring a predominance of race to be shown, in which case it would have applied the wrong legal standard, but taking them to have found that race predominated here, in our view that is clearly erroneous.

I only mean to suggest, as this Court has said in Bush v. Vera, and in Miller that because redistricting is such an exceedingly sensitive matter that the Court should be awfully cautious before they conclude that a state legislature...

Justice O'Connor: That could be true, but to continue the question that the Chief Justice asked, do we at bottom have to apply a clearly erroneous test here to the determination of the facts?

Mr. Dellinger: Not if you find that when you read the District Court's opinion that the court simply wasn't applying a standard that required the court to conclude that race predominated and subordinated other conclusions.

You can say, well, it did refer to the predominance test, but that's not what it was applying.

The evidence that it adduced at best was evidence that was probative only of whether race was one of the factors that was considered here.

Justice O'Connor: I frankly have some difficulty with your position in the case because it is possible that as a fact finder I would not have found the facts as the court below did, and yet the court below appears to have believed one expert over another and made findings that may have been within its power to make, and how are we to upset that?

Mr. Dellinger: Justice O'Connor, it takes a careful review because there is simply nothing probative underlying the conclusions of the District Court.

We set out at pages 25 to 33 of our brief, we really have to go through the trial transcript citations, the court says, for example, that where splits occur in District 12 in the six counties between District 12 and the other districts, the splits invariably occur along racial rather than political lines, if that's a fact it will certainly tend to show predominance.

It's simply not true.

Neither the District Court nor the appellees point to a single instance of a split in which race trumps politics.

For example, in the plurality opinion in Bush v. Vera, you find that in that case the Texas redistricters, faced with precincts that were minorities, Hispanic or African-American, but where the precinct itself was majority Republican, went out and took that in, in order to bring in the minority group, even though that was contrary to the asserted goal.

That's set out at page 917 of Bush v. Vera.

There is simply no instance of that.

The two big items of proof... I am quite confident that reversing the court below and sustaining the North Carolina plan will not in any way impair the vitality of this Court's antiracial gerrymandering principle either on...

Chief Justice Rehnquist: You can say that about any number, no one single decision would affect a stream of decisions, but, you know, you've got factual findings here, and if they're supported by some evidence, even though, as Justice O'Connor said, perhaps we would not have made those findings, they're not clearly erroneous.

Mr. Dellinger: Let me go to explain why those findings are clearly erroneous.

Let me give you one example.

The court says that... or the appellees say, the courts say that this is completely consistent with race and not with politics, the appellees walk away from that and say that the lines are more precisely correlated with race than with politics.

What do they cite for that?

They cite for that the proposition that of the six counties, these six counties take in... District 12 takes in 90 percent of the 40 percent or more African-American precincts in the six counties, 90 percent, whereas if you look at the Democratic counties, even as measured by reliable voting day Democrats, only about half of the Democratic counties... I'm sorry, only about half of the Democratic precincts in the six counties are taken in.

That was their proof that the lines follow race more precisely than politics.

But look at those figures.

They're set out in Exhibit 309 on page 515.

There are 429 precincts in these six counties.

Of those 429 precincts, 79 of them are 40 percent or more African-American.

Understandably, those are the most reliable Democratic voting precincts, and therefore they form the core of a difficult attempt to create a Democratic congressional district in this Republican area.

So 76 of the 79 African-American precincts which are the most reliable Democratic precincts are included in this.

Now, there are another 300... another 290... there 290 precincts, including those that are Democratic, about half of those are included within the district, but there's no need for any more.

The ones that aren't included would, A, blow this district way past the equal population point and, B, they are less reliable Democratic than the 76 African-American precincts included.

Justice Kennedy: Dr. Weber was asked was there any majority black district or precinct, precinct, that conceivably could be included in this district that was not included, and he said, rather astonishingly, no.

Mr. Dellinger: That is correct, and he also gave the following answer.

He talked about how there were... and Justice Kennedy, the reason that makes sense, that all the African-American precincts that could reasonably have been included are included is that those are the core Democratic precincts in what is basically a Republican area of North Carolina in the Piedmont Carolinas, so that is naturally the core that is the overlap, and that is the correlation.

There are other Democratic precincts, Dr. Weber noted, that are not included, and he was asked the following question at page 140 of the Joint Appendix.

Question: Are the white precincts as heavily Democratic

Answer: No

So that...

Justice Kennedy: You're basically saying that race can be used as a proxy for partisan affiliation.

And if you say that then it seems to me that we're on collision course with Shaw and Miller, and it seems to me that's the heart of your argument.

Mr. Dellinger: No, I am so glad you asked that.

Justice Kennedy: And it's just contrary to those cases.

Mr. Dellinger: I have to say that I'm so glad you asked that because that is a misconception I most want to correct.

We are absolutely not saying that you can use race as a proxy for Democratic voting behavior.

Justice Kennedy: But I thought that was the whole basis that you've just given in your answer to justify what happened here.

Mr. Dellinger: No.

With all due respect, Justice Kennedy, that is exactly not the case.

This is a districting process in which the state used voting statistics of how people actually voted, not the color of their skin, how did they vote, in constructing this district, unlike the districts in Miller and Bush v. Vera.

Instead of using racially encoded census blocks, they used precinct voting day election patterns.

This precinct... these precincts were used to make up the heart of... these Democratic precincts made up the heart of the Democratic-leaning district.

It is the appellees and the court below which point out to you that those districts are African-American.

Our response is, but the legislature and its leadership told you that the reason they were selected is that they were creating a Democratic precinct, and they use... it's absolutely critical because we do not believe and do not contend that you can sort voters into congressional districts by using race as the criteria on the assumption that that is correlated with political behavior.

What we are saying is what this Court said in...

Justice Kennedy: And are you're saying that a legislature can always defend a racial gerrymander post hoc by saying that it accords with partisan voting patterns?

Mr. Dellinger: Yes, where the plaintiffs are unable to disprove that...

Justice Kennedy: So if it's easier to use race, we'll just use race, just save ourselves all the trouble.

Mr. Dellinger: No, no, because there is a very great difference between using race and using politics.

This is Washington against Davis.

To use something which correlates with race, for example, in Batt and Hernandez, the Texas case involving, requiring English speakers on the jury, it may correlate with race, but you can't use race itself.

You can't use being Hispanic as a proxy, but you can use English.

Chief Justice Rehnquist: Did the court below make any findings as to the intent of the legislature?

Mr. Dellinger: Its overall conclusion was that the legislature intended to use race as a district, and that is correct.

Justice Souter: Supported by the statement that was referred to in your opponent's brief, if I remember it correctly, the red brief pointed out the statement of Senator Cooper's on the floor of the legislature to the effect that the plan that was being proposed was not an incumbency protection plan, which lends obvious weight to the interpretation that it was a racial protection.

Mr. Dellinger: All right, Justice Souter, I believe that was a matter of his objecting to the labeling of the incumbency protection.

He goes on to say in the same sentence that the... literally in the next sentence, that the purpose of the plan is to protect the state's existing 6-6 Republican-Democratic split.

This was a bipartisan state legislature, a Republican House, a Democratic Senate.

Neither side could agree to reduce.

I think Senator Cooper was only objecting to the terminology and not to the fact that to maintain a 6-6 balance you had to have a district here, but if I may respond, again, to Justice Kennedy's very important point, I understand the thought that, well, look, if it turns out if a legislature does undertake to create a Democratic district, for example, in a Republican seat like this, in order to keep that 6-6 balance, and it turns out that those precincts that are at the core of it also happen to be African-American, won't they simply have accomplished the objective that we, you know, tried to stop in Shaw v. Reno.

The answer is no.

That was the use of race, and it is also the case that when in most all instances, perhaps not every, that a state undertakes to make race drive the process, there will be plenty of evidence of it.

For example, you will find areas where, as in Bush v. Vera, if you have a, say, a Republican district that has a significant number of minorities in it, you put it in a supposedly Democratic district, so that shows it following race.

That's how you prove it.

Moreover...

Justice Scalia: Mr. Dellinger, there is some evidence here, I mean, besides Senator Cooper's statement, which, you know, you offer an alternate explanation for, but you have to explain it, and once it becomes debatable, it's hard for us to say that the finding of the court below was clearly erroneous.

Another thing that has to be explained away is, is the E-mail, Cohen to Cooper, as part of the legislative exchange which refers to Greensboro black, that portion of Greensboro at one of the two ends of this salamander, and referring to those districts from Greensboro as simply Greensboro black.

Now, you say that's just shorthand for those portions of Greensboro that were reliably Democratic.

Maybe.

But certainly the other interpretation is a reasonable one as well, in which case it becomes evidence that predominantly they were trying to put together a district that had predominantly black voters in it.

Mr. Dellinger: Let me suggest why I think that is really utterly insufficient as being really probative, to set aside a fundamental act of political self-definition by a state legislature.

This is a sentence in an E-mail from a staffer to members that says that in the districting context where they have to talk about race because of the Voting Rights Act, he notes that the change he has been making is that they're now going to for very good nonracial reasons include Greensboro in District 12, the Democratic parts of Greensboro, and refers to that by saying, I have moved the Greensboro black community into the 12th.

Now, I am not going to tell you that that is without any probative value, but in order for it to play any significant role in invalidating a state law, you have to conclude first of all that it's not merely descriptive, it's not like saying what are these new precincts the legislature has, so this is a working class Italian neighborhood and the other new precinct in your district is a Jewish retirement community.

No, it is... you have to read it as being an explanation of the motive for the move, and you would have to assume that you attributed that to the whole legislature, not to the staff or to the two recipients, and you have to assume that that would be evidence of the predominance of race.

I simply don't think it will bear that kind of weight.

A stray remark like this, to use a stray remark like this would be akin to a stringent speech code where legislators who engage in the sensitive redistricting process find state law brought into jeopardy, and that's why there's very good reason for predominance.

The other way to prove a Shaw violation, if I may turn just for a moment to Justice Kennedy's question, the other way to prove a Shaw violation is quite simple.

When the state says we're using politics, not race, it turns out that there are a lot of high proportion of African-Americans, that's because they're reliable Democrats.

You can often come in and show, now, wait a minute, there would be a very easy way, more sensible district that you could have created here that would have been reliably Democratic, and this 1 that runs through 6 counties is completely unnecessary to accomplish that goal.

The different district has to be more central.

There is no showing here of a different district that would in any way suggest that it was pretextual for the state to utilize politics.

I'll reserve the remainder of my time.

Argument of Adam Stein

Chief Justice Rehnquist: Very well, Mr. Dellinger.

Mr. Stein, we'll hear from you.

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

I would like to turn first to a couple of instances of erroneous fact findings, clearly erroneous fact findings.

The court below made the following finding.

Of particular note is Dr. Weber's contention that a much more compact solidly Democratic twelfth district could have been created had race not predominated.

As Mr. Dellinger has just pointed out, no such evidence is in the record that plaintiffs have pointed to.

Another one is the statement by the...

Justice Kennedy: Are you reading from the District Court's opinion or from the...

Mr. Stein: Yes, District Court's opinion, I'm sorry.

And that was at 26A.

The Court also found that...

Justice O'Connor: This witness, Weber, that was his testimony?

Mr. Stein: That was his testimony that the court was crediting in its fact findings.

Justice O'Connor: And you're saying that the court could not have credited his testimony as a so-called expert witness?

Mr. Stein: Well, he may have been an expert witness, Your Honor, but there was no showing in the record anywhere that such a district that he described existed.

Justice Breyer: You're showing...

Justice Scalia: But he did make that assertion, you're not saying that the court...

Mr. Stein: He did make that assertion, Your Honor.

Justice O'Connor: I just am trying to find out why the court couldn't have relied on his opinion if he was somehow knowledgeable about legislative districting.

Mr. Stein: Well, he... Justice O'Connor, he was asked about that, and he did not produce, he didn't describe a district that would be... that would meet that statement.

Justice Souter: When you say he was asked about it, was he asked a question saying, point out the configuration of precincts that would have produced this less racially correlated and more Democratically correlated district, and he was unable to do so?

Mr. Stein: That's my memory, Justice Souter.

Justice Ginsburg: There are some examples in the briefs of this, is it footnote 25, districts that might have been made, Mr. Stein.

Mr. Stein: Yes, Justice Ginsburg, and the state and the first... and those are examples that the plaintiffs have put forward in their briefs but were not before the trial court, and there is no evidence that they were before the General Assembly.

Justice Scalia: But you're trying to discredit the expert witness by showing that some of his factual statements were unsupportable, and I don't think it's up to the trial judge when he has an expert witness to, in effect, do all of the scientific evaluation himself.

He's relying on... that's why you have an expert witness, to some extent, upon the credibility of the expert witness.

It especially seems improper to me when you're attacking the validity of the expert witness on appeal in this fashion to try to exclude the districts mentioned in the footnote on the grounds that, well, that was never brought up at the trial.

But you're trying to say that this expert was not really an expert.

That's really what you're trying to say, and it seems to me perfectly valid to bring in some examples whether they were brought in at the trial or not, unless you think that the district judge cannot rely upon the generalization of the expert when he says this could have been done, you could have had a more compact district without including just the black precincts.

Mr. Stein: I would respond, Your Honor, that the examples that are pointed out in the plaintiff's brief simply prove the fact that no such district can exist.

They pointed out the swap of some precincts, Republican precincts in High Point that they say should have been made or could have been made with two Democratic precincts that weren't in the district and Greensboro some 15 miles apart.

If you look at the map that was attached to the State's reply brief, you see that that would be an unreasonable swap, and it was a swap that nobody had ever proposed before the state filed its reply brief... its brief.

I would point out that there are other fact findings of the District Court that are clearly erroneous.

The court said at page 29A, more heavily Democratic precincts were bypassed in favor of precincts with a higher African-American population, and this has been explored, and as Mr. Dellinger has pointed out, that's just simply not true.

It would be good evidence if it were true, but it's not true.

The court also...

Justice Kennedy: Is there a difference there in registration and voting record?

Mr. Stein: No, Your Honor.

Even if you...

Justice Kennedy: I take it that's sometimes a question.

Mr. Stein: That is a question, in that registration is not as reliable as the voting record.

But if you look only at voting registration statistics, that statement still isn't true.

And the maps and the records show that's not true.

The District Court also found, and I quote, Dr. Weber showed that, not just in his opinion, showed that without fail Democratic districts adjacent to District 12 yielded their minority areas to that district, retaining quite Democratic precincts.

And of course this would be an important finding if it were true.

It would be very much like Vera where there was exchanging of Hispanic and African-American communities by census block back and forth, but that didn't happen here.

There's no evidence of that.

In fact, there's only one Democratic precinct of the five that surround District 12.

That's District 8, which is separated from District 12 by the county line between Cabarrus and Mecklenburg County.

The maps show there are no African-American areas even near that county line.

So that is an important finding, we submit, that the court made which is simply not supported by the record and is clearly erroneous.

I would point out that in choosing between Dr. Weber and Dr. Peterson, it said that Dr. Peterson's evidence was unreliable because it ignored the core, but this Court said in Vera that the difference between areas just inside and just outside the district is particularly probative in this sort of case, and that's exactly what Dr. Peterson did, but that's what Dr. Weber criticized him for.

I would like to address an argument advanced by appellees that was relied on by the court below, but they offer it here in support of the judgment below.

They say that the district, 12th District in 1997 plan is an inadequate remedy because it overlaps too much with the population and geography of the former 1992 district in that it gives Congressman Mel Watt a good chance for reelection.

We urge the Court to reject this submission because it's inconsistent with our understanding of basic Shaw doctrine.

We understand the Shaw doctrine that the ultimate question for this case would be, did the General Assembly in 1997 act with a dominant and controlling racial motivation overriding all political and other legitimate considerations?

Justice Scalia: Well, that's true, but I must say when your response to the... one of your responses to the allegation of racial districting is, no, this was incumbent protection, and when the incumbent you're trying to protect is an incumbent who was elected from an unconstitutionally constituted district, that is the prior district which was held to be unconstitutional, I think that the defense of incumbent protection just washes out to say you're going to protect this incumbent means you're going to make sure that the person who was elected by racial gerrymandering will continue to be elected.

I find that not a valid defense.

Mr. Stein: Well, in this case, the district was different from the district that he had originally been elected in, and in any event it's never been the law in any of the redistricting cases that an incumbent for instance in a one-person, one-vote case can't be protected by the use of the core in those districts.

If this doctrine were to apply, it would only apply to those minorities who were elected in districts that were ultimately found to be unconstitutional.

This incumbent now has been elected five times in three different versions of the district.

It's not only his rights but the voters' rights to continue to be able to have an opportunity to vote for him.

I would like to point out that the... in looking at the basic Shaw doctrine of the decision... it turns on motivation, that the decision-maker in 1997, the General Assembly is a different decision-maker from the body that created the unconstitutional district in 1992.

By 1997 there had been a good deal of turnover.

For the first time in nearly a century, Republicans controlled the House, it was divided, they were not under Federal pressure to...

Argument of Robinson O. Everett

Chief Justice Rehnquist: Thank you, Mr. Stein.

Mr. Everett, we'll hear from you.

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

At the outset, let me suggest this, in the last arguments, I heard some description of what was said by the court, and I would request that the Court at a later time look at the argument of opposing counsel and match it up with the opinion of the court below, and I would suggest there was very little resemblance between the two.

So that... that needs to be taken into account.

Secondly, I think it's very important that near the end of the opinion of the court in the previous appeal of this case, it was pointed out that this case was to be remanded to a court which was familiar with the circumstances and would be in a better position to assess the motives of the General Assembly than would be true of a Court of Appeals.

Now, this Court set... the District Court sat there for two-and-a-half days and heard testimony, they heard testimony from experts, they heard other testimony.

Pursuant to the authority that they have under Rule 52A, they assessed credibility, and unfortunately for the appellants, they didn't believe the appellants' witness, and fortunately for us, they believed our witnesses.

Justice Ginsburg: Mr. Everett, there were whole parts of the opinion after the hearing that were identical to the opinion on summary judgment, were there not?

Mr. Everett: Oh, absolutely, Your Honor.

I think they may have been very identical, and given the circumstance they were dealing with undisputed facts, concerning such things as percentage of racial breakdown, that need very little reason to vary them.

The facts were the same, they were undisputed.

And the opinion in many regards is the same.

The court below each time recognized that this Court does not wish it to be interfering unduly with legislative matters.

Justice Stevens: Mr. Everett, can I ask kind of a basic question, prompted by Justice Scalia's question.

Do you think that incumbency protection is a permissible justification for a gerrymander?

Mr. Everett: I don't think it's permissible justification for a racial gerrymander.

Justice Stevens: No, no, someone who is just totally incumbency protection.

Do you think that's a permissible political activity for the legislature to get involved in?

Mr. Everett: Your Honor, I think it has been held it is permissible, not unconstitutional.

On the other hand, my recollection of Vera v. Bush is that one of the persons involved there was a lady who was in Congress who was utilizing race as incumbency protection, and there was held unconstitutional, so I think to whatever extent incumbency protection is involved in this context, it would be unconstitutional for many of the reasons that Justice Scalia has stated, the derivation, but also because in deciding to protect the incumbent, that was really subsidiary to the primary purpose of creating a racially predominant...

Justice Stevens: I understand that, but assuming there was no racial aspect at all, you would not challenge incumbency protection itself as somehow politically suspect?

Mr. Everett: If John Smith, a person who had...

Justice Stevens: If people in power want to draft the lines to keep themselves in power, that's perfectly okay with you?

Mr. Everett: Your Honor, I think if it was simply a matter of incumbency and nothing more, we would not be here.

If there were no racial aspect...

Chief Justice Rehnquist: We so held in Karcher, the Karcher case from New Jersey, didn't we?

Mr. Everett: Certainly, certainly.

So there doesn't seem to be any question in that regard, but the real problem is that in this instance, as the facts demonstrate and the statistics are part of the facts, what was done by the legislature was to take away more of the geographic area of the 12th District than any of the other prior districts, but to retain the racial core.

Now, you find that of the people who are in the 12th District in the 1997 plan as compared to the '92 plan, 90 percent of the African-Americans were there before.

On the other hand, with respect to the white portion of the population, less than 50 percent.

It's pretty clear what was happening.

If you look at... there are two maps here.

If you look at them you'll find that although they are parallel, there has been some change of territory with respect to precincts that are predominantly white.

There was none with respect to the core, the racial core.

We find the legislature was using phrases, the leaders of the legislature were using phrases like racial balance and core, which in this context was a clever way of trying to say we have reserved a district where it is almost certain that an African-American...

Justice Stevens: May I ask you one other general question, and then I will be through.

Proving the racial motivation was predominant, then you've got to have strict scrutiny to see if it was justifiable and all the rest.

Now, why is it, I just have been a little puzzled about the case, this was proved with respect to both the 1st and the 12th Districts.

With respect to the 1st, which was even more racially dominated, as I understand it, than the 12th, the court said that's okay, but not with respect to the 12th.

Why could there be a difference between the two?

Mr. Everett: I might note two circumstances in that regard.

First, the court did find that both in the 1992 and the 1997 1st District, race had predominated.

Secondly, they gave statistics as to the 12th District which recognizes that it is one of the I think five least compact districts in America, while on the other hand, in terms of geographical compactness, the 1st District had been remedied.

Then frankly, as I understand it, Your Honor, it was not a matter of the motive, it was a matter of strict scrutiny that save the 1st District, they found there had been a compelling interest primarily I believe to get preclearance.

So under those circumstances...

Justice Stevens: The compelling interest that applied to the 1st District did not apply to the 12th District.

I just never quite understood the difference.

Mr. Everett: Well, we frankly think the 1st District might be unconstitutional but we did not raise that issue on appeal.

We chose not to appeal it.

But by the same token, there is much more logic as to the 1st District in terms of the area involved.

A lot of counties there are over 40 percent African-American in population in the northeastern part of the state.

That is all rural, virtually all rural, although there are some smaller towns there.

Here, on the other hand, you're dealing with a district where less than 30 percent of the population in any of the six counties is African-American.

We're unlike any other district in America.

They split six counties, and every county was split.

There is no other district in America where that was done.

Justice Ginsburg: Mr. Everett, the one thing that puzzles me about that argument is in this footnote 25 in your brief, when you try to answer the question, what swaps could be made, and you give a few examples, and in every example the result would be a more bizarre shape, not a more compact shape.

You concede that by saying each substitution affects the compactness and appearance.

But the legislature has already ignored both of those rules to such a degree that further distortion appears immaterial.

So the only answers that you could come up with would run right into this bizarre shape, you would make it more bizarre shape.

Mr. Everett: Your Honor, as I remember, that footnote we said something to the effect that since the State didn't bother with compactness anyway, we didn't feel that constrained in suggesting...

Justice Ginsburg: But you didn't come up with one example of a swap that would work to make it more compact.

Mr. Everett: Your Honor, let me come up with several.

Let me point out that in the...

Justice Ginsburg: They're not in that footnote.

Mr. Everett: There were in the plans and the maps that were shown.

The history of the drawing of the maps was before Dr. Weber and also the maps were before the court.

There were alternatives which were more compact and still would have preserved the Democratic aspect of it, and it would have been less racially gerrymandered.

The best example of all, Your Honor, is the plan that was adopted in 1998 as a remedial plan, which was only 35 percent African-American, which had one whole county and involved only five counties.

Now, that one was much better than this one.

Justice Ginsburg: Was it good enough?

Mr. Everett: Was it what?

Justice Ginsburg: Was it good enough?

Mr. Everett: Your Honor, that would be an interesting question.

We did not think it was at the time, but let me put it this way, we're gradually moving toward improvement and the thing that bothers us about this is you've got it down from 55 to 47, invalidated the 47 down to 35, and now back up to 47 percent African-American concentrated.

What's the message there?

Well, the message is a pretty sad one, but anyway, even before the Greensboro black community was moved into the 12th District, and they didn't say Democratic, they didn't mention Democratic anywhere in that E-mail, even before that there were alternatives such as not having Greensboro in there at all, not having High Point, not having Guilford County, the sort of plan that ultimately emerged in 1998.

They had a really good fall-back position, so that there were alternatives.

But the alternatives did not yield the result that was being sought by the leaders of the House and... by the leaders of the legislature.

One point deserves emphasis.

There were different people in the legislature, but there was a continuity of some of the people who devised the 1992 plan.

For example, Mr. Jerry Cohen was the draftsman of the '91 plan, the '92 plan, the '97 plan, and the '98 plan, who defended all of them as being... or at least the last three as not being racial.

Justice O'Connor: Do we start with a presumption that the legislature acted in good faith and for proper motives in drawing these plans?

Mr. Everett: Your Honor, I'm sorry, I didn't hear the...

Justice O'Connor: Do we start with the presumption that the legislature drawing a district plan acted in good faith and with proper motives?

Mr. Everett: Your Honor, we start with that, but after hearing testimony... well, two things in that regard.

After hearing testimony...

Justice O'Connor: Your answer is yes.

Now, does it totally drop out after there is evidence put in or what happens to that presumption?

Mr. Everett: Your Honor, two things in that regard.

First, is there a presumption when you start from an unconstitutional base and say that that is your starting point?

Secondly, after hearing testimony not only from the legislators who were called on the other side, but the legislators who we called, and the other people who we called, and after studying the legislative record which inevitably points to particular conclusions in this case when it's considered in context, and when considering points like that made in Arlington Heights where one of the important ingredients is to look at the history of what has happened.

When you take all that together, you can say all the presumption in the world about good faith, but in this instance, regardless of what presumption you want to give, the facts as found by that court after hearing witnesses and determining the credibility is that the predominant motive was racial.

Now, back in 19... on the '92 plan, they were saying it wasn't racial.

To say something is political or incumbent protection is very convenient.

It's a nice dodge that has been developed, and it's a dodge that has been developed because...

Justice O'Connor: Well, it isn't usually a dodge.

Legislatures constantly have... are faced with drawing legislative districts, and my own experience is that the motive in most cases is political in drawing those boundaries.

Mr. Everett: Your Honor, it is political in many instances, but on the other hand if you have a strong racial minority well-positioned in a particular political party, they can say, as we think the evidence indicates was said in this case, and remember that the 1st and the 12th Districts were really the first two that they started with.

Then they began worrying about some other things.

They can say, we want a district where we can be assured that a minority candidate will be nominated and will be elected.

Now, in North Carolina, given the legal constraints and given the primary situation, you need to have really about 40, 45 percent to be perfectly sure.

On the other hand, with 35 percent, Congressman Watt has been readily reelected by huge majorities, but in any event if you put it in context, there was a primary purpose with respect to the 1st and the 12th to create for a racial motive and to draw lines on racial grounds and give the message that was condemned in Shaw v. Reno.

This is a message where if you look at statistics and you are resident of those areas and know anything about them, you come to the conclusions that we had six witnesses come to, to the effect it was predominantly racially motivated, so that putting it all in context...

Chief Justice Rehnquist: Mr. Everett, when you're over there, would you point out to us where on the map District 12 is.

Mr. Everett: All right.

Here is the old '92 map, and let me just show you here's Guilford County.

Guilford County has the Greensboro black community.

The Greensboro black community would be up at this... I'm sorry if you can't all see it, and by the way, there is a map... these maps are in the... right at the beginning, near the beginning of Volume 2 of the Joint Appendix.

You have Guilford, which was added on out of the whole county, Greensboro was the second stage, the Greensboro black community.

Before this they had the High Point black community.

Now, meanwhile, there were alternative proposals similar to those...

Chief Justice Rehnquist: Could you just tell us, is it the yellow district?

Mr. Everett: It's the yellow, I beg your pardon, Your Honor.

There is yellow running here from Mecklenburg down near the South Carolina line.

Chief Justice Rehnquist: And Mecklenburg is the county that Charlotte is in?

Mr. Everett: Mecklenburg is where Charlotte is, and this is viewed as the hub for these particular purposes.

Justice Kennedy: Your expert, Mr. Weber, said that the defendant's expert, Mr. Peterson, used an unconventional, untried theory.

Because as I understood it, the criticism was that he concentrated only on the fringe districts and not the core, but I thought it was the fringe districts that were the problem here.

Could you help me with that?

Mr. Everett: Your Honor, when you read the affidavit... I would suggest apropos of Weber's criticism of Peterson's analysis and the segment analysis, if you read, I think it's 302 to 307 or 8 in the Joint Appendix, you will find, I think, a devastating criticism by Weber of Peterson.

He shows why this boundary segment analysis is totally unreliable because it places emphasis on almost infinitesimal differentiations between adjacent precincts, ignoring the number of people that are involved of African-American or white race.

Secondly, he points out, that it ignores the entire core.

Justice Kennedy: But I thought that's what you wanted to ignore?

Mr. Everett: I'm sorry Your Honor?

Justice Kennedy: I thought that's what you wanted to ignore.

Or am I missing something?

Mr. Everett: We think in the analysis, that you look at the core, and then you determine if they were trying to get the racial core, why it is that they drew it in a particular manner, and that is what Dr. Weber stressed.

I think if you look at his report, look at his responses under cross-examination, look at his background as someone who has done a large number of redistricting cases, and then look at the curriculum vitae of Dr. Peterson, who has done no redistricting cases, look at the circumstances in his boundary analysis has received no peer review, has not been utilized in any other case, you will understand readily why the court, even apart from credibility, which was a better witness, decided to believe the analysis by Dr. Weber and to reject the analysis by Dr. Peterson.

Justice Kennedy: One other point.

The appellants say that the court's just wrong or the expert's just wrong to say there were more heavily Democratic precincts with white populations, with heavier white populations that were excluded.

In oral argument this morning they said there is just no basis for that.

Mr. Everett: Well, the basis... they make the point that there's no basis for it.

If you read the report, read the examination, you understand quite readily that there's adequate basis for saying that the primary consideration in drawing these districts was to group these African-American precincts, that was the primary purpose, and the circumstances...

Justice Kennedy: No, but they say that the proof for that purpose, according to your expert, is that there were some we'll call them mixed districts that were heavily Democratic that were excluded, and they say that is just not so.

Mr. Everett: Well, we disagree.

We would submit that...

Justice Kennedy: Where do I look to find if that's so or not?

Mr. Everett: We would submit that from exhibits we've submitted including maps that showed precincts that could have been readily added in, that their statement...

Justice Ginsburg: Are those other than the ones in the footnote 25?

Mr. Everett: Your Honor, I think there are other... I think there are maps there in addition.

If you look at the maps beginning in Volume 2, you'll see several maps that we think tend to support the position...

Justice Breyer: I wanted to ask you about the maps.

Mr. Everett: In the footnote there is a reference to other...

Justice Ginsburg: I'm just awed that you would think you would pick your best cases to give to supply the missing link in the experts' testimony, and yet the ones that you pick as your presumably best cases all make this district even odder shape than it's ever been.

Mr. Everett: Your Honor, my recollection is that the expert, Dr. Weber, testified that he had looked at a number of maps and there were alternatives.

I do not recall... apparently opposing counsel does... his being asked to identify particular maps that would be usable.

We know from the history that there were maps that were in existence that were used in evolving the plan that ultimately was used.

Plans that were in existence before the Greensboro black community was created that could have achieved purposes of a Democratic district...

Justice Ginsburg: But none of them were brought to our attention, and none of them were in the District Court's...

Mr. Everett: I'm sorry, Your Honor, I can't hear.

Justice Ginsburg: There is one traditional criterion that you don't mention, and that at least some people in the Senate gave credence to, and that is linking together the cities that had commonality of interest, a community of interest in problems like health care and housing and deteriorating public schools.

They may have been distant from each other, but they're all cities with those problems that are common to the urban poor.

Mr. Everett: Your Honor, you really have raised a point that I think is significant from our standpoint.

In terms of community of interest, what was done was take cities like Greensboro, High Point, Winston-Salem, and Charlotte, among the largest cities in North Carolina, Charlotte is the largest, and divided the population between white and black.

Now, the white citizens on one side of that line have the same interests, they listen to the same TV shows, they read the same newspapers.

They have a much more commonality than the African-American in Charlotte has with the African-American in, let's say, Greensboro.

If you look at it in terms of community of interest, then this splitting, the splitting of cities is irreconcilable with that concept of community of interest.

Moreover...

Justice Ginsburg: I'm not a hundred percent sure that's true.

I can think of some areas of this city that might have more in common with areas of, say, Boston than with each other.

Take the difference between Anacostia and Northwest in Washington, D.C. in the same city but perhaps it's a greater commonality of interest with other cities, with similar populations in other cities.

Mr. Everett: Well, Your Honor, given the circumstance of different standard metropolitan areas, you've got large concentration up at the north of African-Americans, a large concentration down toward the south in Charlotte.

Justice Scalia: You know any other state, Mr. Robinson, that has chosen to divide its electorate into urban dwellers and rural dwellers?

Mr. Everett: I'm not aware of anything which in this context could define similarity, community of interest among urban dwellers.

Justice Scalia: And this wouldn't be an unusual district if other states linked their major cities with a ribbon in between to make it contiguous?

Mr. Everett: Well, here what they've done is link portions of urban areas with rural connectives, and the rural connectives are basically white fillers.

And I don't know of any other situation at the present time that corresponds to that in other districts.

I think this is still a unique district, unique in so many ways and unique in sending a very clear message that race is predominating.

Justice Breyer: One of your arguments the first time was that race was predominant because they kept heavily Democratic districts out but they put less Democratic African-American district precincts in, right?

That was the first time you argued, when you were here before, one of your arguments was...

Mr. Everett: Referring to when I was here in Hunt v. Cromartie, not...

Justice Breyer: Yeah, I mean this side, this side.

Mr. Everett: Okay, I just wanted to be sure.

Justice Breyer: And then in response... am I right so far that one of the main arguments was, look, this is not Democrats, this is race, and you can show it by looking at the heavily Democratic districts that they left out and the heavily less Democratic, but the heavily African-Americans that they put in.

That's the argument.

And what this Court said in response is, wait a minute, if you're going to argue that, don't measure it by registration, measure it by how people vote because a lot of registered Democrats vote Republican.

That's what this Court said in its opinion.

Is that fair?

Mr. Everett: I think that was certainly one of the points raised.

Justice Breyer: And now when I look at the district judge's opinion, one of his points, one of them was not just the war of experts.

One of them was... and he says it, he says it, one of them, like 21 or where is it here?

He says it specifically.

He says that additionally, the evidence shows that the more heavily Democratic precincts are bypassed, i.e. they're out, in favor of the more heavily African-American, which are in.

When I look to what he based that on on page 13A and 14, it is two pages... registration, registration, registration.

Just what we said he shouldn't use.

And then I looked at your maps, which very honestly, are not registration, they are how people really vote, and the yellows are the Democrats and the yellows are in, in, in, and there are just a handful of the hundred precincts that are out.

So what am I supposed to do about that finding?

It looks as that finding is a finding that's based on the very thing we said not to use... registration.

Mr. Everett: Your Honor...

Justice Breyer: I think it's all right when it seems to work the other way.

I wanted to get your response if there's a chance.

Mr. Everett: Your Honor, I think you said... you're there to look at other considerations.

I don't think you said registration was totally out.

Justice Breyer: No, no, it's not out, but they said don't do registration alone, and so when I looked at pages 13A and 14, it looked to me in that appendix that for that point the judge is using registration alone, and when I looked at your maps, which are not registration alone, it looked to me as if all the Democratic precincts are in except for a handful.

Mr. Everett: Well, it depends what you mean by handful, particularly in the context of large cities where they're glued together.

In Charlotte, in Winston-Salem, and in Greensboro.

I believe there was testimony by Dr. Weber that he had looked at all three aspects... he looked at the three elections which had been considered by the General Assembly and were before them, and came to the same conclusion.

This was all grouped under party affiliation.

So he certainly came to that conclusion.

The Court may have pointed out simply a few that were left out, and maybe there were only a few.

But there was a lot of evidence that was generated by Dr. Weber that concerned the primacy of race as a motive over politics.

So I think, if you look at it in context, Your Honor, and look at the other things, look at some of the statements in the record, look at what we termed the smoking gun, the E-mail, look at the testimony of the legislators whom we called and other persons whom we called, when you take all that together, it seems to us just unmistakably clear that this Court which was familiar with the circumstances and which was familiar with the motives of the workings of the General Assembly came to a permissible conclusion.

One other thing that deserves note.

Given the use of pretext, and the Court found that one of the persons on one aspect of testimony was simply not credible, you have a very significant circumstantial evidence, maybe it's more than that, the use of pretext, as I recall from the Reeves case that was decided this summer can itself be positive evidence of a particular state of mind, and we would submit that the pattern followed by the State in terms of concealment, excuses, and it's a pattern that continues from the past in respect to the 1992 plan, that this in itself is evidence.

You take the whole thing, you look at what they were doing with the 1st District where they were concentrating on percentages, you look at the district here, District 12, where it was announced to the Senate by Senator Cooper that as long as they were under 50 percent they were home free, and then look at the way they increased the percentages.

Rebuttal of Walter E. Dellinger, III

Chief Justice Rehnquist: Thank you, Mr. Everett.

Mr. Dellinger, you have three minutes remaining.

Mr. Dellinger: Mr. Chief Justice, if you look at the map and with some understanding of the demographics of North Carolina, you can see that the bipartisan legislature faced a difficult task in attempting to create a sixth Democratic-leaning congressional district in this part of the state.

One of the joys of North Carolina is that we don't have a big metropolitan area like Atlanta.

We have a nice string of more medium-sized cities, from Charlotte running through.

So you simply take North Carolina's Atlanta...

Chief Justice Rehnquist: Charlotte is about a million, isn't it?

Mr. Dellinger: It's getting too big for my taste, but it's... but the... they accomplish this in every instance by creating districts, one for the Republican Sue Myrick in Mecklenburg county and one for the Democrat Mel Watt, each a rising star.

Their expert thought Mecklenburg should be entirely within one district, but Charlotte is very happy to have rising stars in each party represent Charlotte, and neither of the political parties wanted to cede Charlotte to the other.

So you really have an expert who is making political judgments.

This case may be your final opportunity to address redistricting before the 2000... post-2000 redistricting occurs, and I think it's worth asking again why is predominance the standard.

The Court has consistently rejected the idea that any consideration of race, however small, should trigger strict scrutiny.

That's properly because of the nature of the Shaw harm.

The Shaw harm is not hostility towards individuals.

It is communication of a message that people are defined by their race, and when race predominates, you have the Shaw harm.

To move to a more extreme exclusion of race would create a hair trigger in which legislatures would be completely uncertain of their ability to legislate.

We'll have judges creating election districts and rather than state legislatures doing this critically important task that involves political judgment, we usually say plans that do not cause expressive harms should not be declared unlawful.

Thank you.

Mr. Dellinger: Thank you, Mr. Dellinger.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Hunt v. Cromartie - Oral Argument

Fri, 09 Jan 2009 14:50:15 +0000

Case:

Hunt v. Cromartie

Media File:

98-85_19990120-argument.mp3

Related Transcript:

1998_98_85_argument.xml

Transcript:

Argument of Walter E. Dellinger

Chief Justice Rehnquist: We'll hear argument next in No. 98-85, James B. Hunt v. Martin Cromartie.

Mr. Dellinger.

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

When the North Carolina General Assembly enacted its 1997 congressional districting plan, compliance with this Court's decision in Shaw v. Hunt was its number one goal.

It met that goal.

The line-drawing decisions contested here were not driven predominantly by race either for its own sake or as a proxy, but they were made on the basis of actual election data.

They were designed to accomplish the constitutionally legitimate goal of maintaining partisan balance in the State's congressional delegation.

We had a Republican-led House and a Democratic Senate who determined not to gridlock and leave this vital function to Federal courts.

They came together on a bipartisan, bicameral agreement that retained six districts leaning to each party, a goal that was accomplished by having a Democratic-leaning district created in the midst of the Republican sea that is the Piedmont Carolina.

Let me put on the table a half dozen ways this plan differs from those that this Court invalidated in Miller and Shaw and Bush v. Vera.

This plan was not adopted under Federal pressure for maximization of black districts.

It was not adopted by a process that manipulated district lines to exploit unprecedentedly detailed racial data.

There was no use of computer programs more sophisticated with respect to race than to other Democratic districts' precincts.

Existing political units that are about a hundred times larger than the... than the racially encoded census blocks used in Texas, precincts with the building blocks of the districts in this plan... they were not adopted for the express purpose of creating a majority-minority district.

They did not, in fact, create a majority-minority district.

Justice Kennedy: Was there any allegation that the... the precinct numbers were used as a surrogate for race; that is to say, precinct numbers were used in order to include people of a certain race in the district?

Was there any allegation of that here?

Mr. Dellinger: I take it, Justice Kennedy, that is the... the heart of the case, that there is this... this overlap, and so given the fact that this... that the precincts included in district 12 are more Democratic and that there is a correlation... it's more African-Americans adhere to the Democratic Party and registration at the present time... that one could have done that as a pretext.

But I believe and I think that Mr. Everett would concur that there's simply no evidence that that was the case.

I mean, I think what you have here is the precise question that the Court answered in Bush v. Vera.

In the plurality opinion by Justice O'Connor, the Court said that if a State's goal is the otherwise constitutional political gerrymandering, it is free to use precinct general elections, voting patterns, precinct primary voting patterns to achieve that goal regardless of its awareness of its racial implication and that if district lines merely correlate with race, because they're drawn on the basis of political affiliation which correlates with race, there is no racial classification to justify.

Justice Scalia: Mr. Dellinger, you say that there's no evidence, but I... some of the districts that... that were carved up in order to create this unusually shaped district or some of the... some of the counties were indeed overwhelmingly Democratic, and it would have been easy to put in more Democrats without putting in more black Democrats.

And... and part of the allegation is that the... what was done shows that there was an intentional effort not only to get in Democrats, but to get in black Democrats.

And that... and that circumstantial evidence is... is affirmed by the... the affidavits put in by your side which say that one of the purposes of the legislature was to... was to retain the election of incumbents.

And here you had an incumbent who had been elected by a district that had been unconstitutionally established on a racial basis, and to simply come in and say, well, we want to make sure that he'll get reelected is, it seems to me, more circumstantial evidence.

I mean...

Mr. Dellinger: Well, you make...

Justice Scalia: there may not be enough evidence, but it seems to me to go too far to say that there's no evidence that... that there was any racial gerrymander here.

Mr. Dellinger: Well, to be precise, Justice Kennedy's question was whether there was any evidence that they... that they made a pretextual use of creating a Democratic district, of using Democratic precincts in order to create a district that was more African-American.

And one could imagine counter-examples.

First of all, the State has direct evidence of the... Senator Cooper and Representative McMahan that... that partisan election results were what... were the building blocks for the creation of this district.

That was their predominant concern.

The examples that are given that there are Democratic registration precincts adjacent to but outside district 12, Representative Watt's district, is virtually a non sequitur because there's a very simple answer.

The precincts that adjoin district 12 that are not included aren't less Democratic by any measure than the included precincts.

89 percent of the precincts outside the boundary but adjacent to, that have a majority Democratic registration actually voted Republican on election day in either one or two or all three of the elections that the legislature has been consulting this decade in doing districting.

You have to understand that North Carolina is basically Democratic in registration.

There's not a single one of the 12 congressional districts that has a majority of registered Republicans.

So their only suggestion is, but the State had some districts outside district 12 that were majority Democratic, to which our answer is, they were not excluded.

We were already at the equal population limit with this district, and they were less Democratic either in terms of voting registration.

There are in the entire 12th district only 2 precincts... they're both in Guilford County; they're noted in red on one of the maps... only 2 precincts that are inside the district that have a Democratic registration that is less than one or more of the neighboring precincts outside the district.

And in that case, if the Court... the legislature followed the basic township line, Elm Street, then Lee Street that has traditionally divided Greensboro.

So that I... I think what the question leads to in terms of the incumbency, I don't think you can have a bill of attainder that... that Congressmen want, the interest in preserving someone of rising seniority may never be a... may never be at interest because of what this Court held about the original plan.

The State gains a great deal by having from Charlotte a member of each political party, each of whom is rising in influence within their respective political districts.

This is not... the chain of causation from the prior district I think is broken in a number of ways.

Justice Souter: Mr. Dellinger, may I just interrupt for a second?

Mr. Dellinger: Sure.

Justice Souter: Let's assume, for the sake of argument, that there's a... there's a question whether the chain of causation is broken or not.

Isn't it your position that you still win here?

I mean, you're arguing summary judgment.

And the question is whether there is a genuine issue, not who ultimately wins.

Chief Justice Rehnquist: Am I right?

Justice Souter: I mean, that's... that's really the structure of your argument.

Mr. Dellinger: Well, we're making two points.

One, we believe that it is obvious that the court below erred in granting...

Justice Scalia: Okay, but...

Mr. Dellinger: in granting summary judgment.

Justice Souter: the only thing we've got from... in... in front of us is... is an appeal from a grant of summary judgment.

Mr. Dellinger: Well, we would hope that the Court, having before it the permanent injunction against the legislature's '97 plan, would clearly indicate that the State on facts like these was entitled to prevail, it's entitled to summary judgment, because what the State puts on is both direct and supporting evidence demonstrating that the shape of the district reflected a...

Justice Scalia: Well, that... that's true, but...

Did you move for summary judgment?

Did you move for summary judgment below?

Mr. Dellinger: Yes.

The State moved for summary judgment and it was denied.

Justice Scalia: Did you cross-appeal?

Did you-cross appeal?

Mr. Dellinger: No.

Justice Scalia: Well, we... we...

Mr. Dellinger: I understand that...

Justice Scalia: can't give you a judgment here that is... that goes beyond what... what you've asked for.

Mr. Dellinger: In the course... it would not be beyond the course of an opinion of the Court holding that the district court was, of course, wrong in granting summary judgment against the direct evidence of the... of the State that politics was used, to make it clear to the district court that the State's explanation, both direct and supported, that it created a Democratic leading district in a sea of Republicans, and that that is a fully explanatory answer and which was contradicted...

Justice Souter: Well, it may be a fully explanatory answer if we assume there is nothing else in the world that might come in as an evidentiary matter here.

Can we assume that?

Mr. Dellinger: No, you can't assume that, but... but... but I think the State would be... the State would feel vindicated if it were known that on this kind of record where there are really just three things that were said to impeach the State's direct case.

One was the shape of the district, to which I will come.

The other is that the... that there are some Democrats outside the district in precincts that are less Democratic that... that are not included.

And the third is basically a racial imbalance argument, that if you look at the districts, the heavily Republican... southeastern Mecklenburg and otherwise heavily Republican district of Representative Sue Myrick as more proportionate whites than the heavily Democratic leading district of... of... of Congressman Watt, that is evidence only that it does not in any way contradict the State's assertion that it was the desire to... and the difficulty of creating a political district.

What you have here is the complete absence of counter-examples.

Justice Souter: Yes, but it sounds to me very much like a cross-appeal.

I mean, it's... it's one thing to say that they have not put in sufficient evidence, given this total record, upon which one could say there was no genuine issue and they were entitled to judgment as a matter of law.

But I... it sounds to me as though what you're arguing is... is something that strikes me like... like a cross-appeal, which you didn't take.

Mr. Dellinger: I... I understand...

Justice Breyer: Or the State didn't take.

Mr. Dellinger: that the... the... what the State is... wishes to establish is that the preliminary injunction... the permanent injunction was in error.

They clearly did not make their case for summary judgment.

But moreover...

Justice Ginsburg: Well, if the summary judgment case wasn't right, you could have the injunction vacated, and then it goes back presumably for further development.

And on that score, I wanted to ask, having had a preview of what's going on in the summary judgment submissions, what would the State... what additional, if anything, would the State put in were this case to go to trial?

Mr. Dellinger: I do not believe that the State... I am not aware... we haven't thought through to that point, Justice Ginsburg.

But I'm not aware that the State has or indeed would need any other information.

The... the challengers have appropriately a very heavy burden under this Court's decisions in Miller and others, and here the State puts on the only evidence it has, that... that...

Justice Souter: It's the other side.

Mr. Dellinger: that it needs to put on.

Justice Breyer: It's the other side that... the other side, if they're denied summary judgment, that I guess would have a right to put in some evidence.

I mean, if we deny... if we said you're wrong to give them summary judgment, you're wrong...

Mr. Dellinger: I think that's right.

I don't...

Justice Breyer: wouldn't that automatically say to you, well, if the law doesn't permit them to win, if this evidence doesn't permit them as a matter to law... of law to win, it must permit somebody to win?

So, I guess they'd have to... they'd have to put in some more evidence if they should have that opportunity.

Mr. Dellinger: Well, it would be interesting to me to know what other evidence they could have.

You have...

Justice Breyer: Well, that's their problem.

Mr. Dellinger: That's right.

You have the statement, and I think the Court...

Justice Scalia: What evidence... what evidence do you have?

I mean, I don't think we're about to send it back and give summary judgment in the other direction when you haven't asked for it.

Let's talk about the summary judgment that you're seeking to overturn.

Mr. Dellinger: Well, anyway, we have both direct and circumstantial evidence.

Justice Scalia: And now, it... it has to be evidence showing that there is a controverted issue of fact.

Suppose the evidence showing the controversion is so weak in light of the evidence on the other side, that no rational person would believe it.

Is... is that enough?

Can you bring in a 10-times felon who has perjured himself in so many cases testifying to a fact that is inherently incredible, and so long as you get on the record somebody controverting that fact, is that enough to get you by summary judgment?

Mr. Dellinger: No, I certainly wouldn't think so.

Justice Scalia: So, despite these statements by the legislatures... legislators that, oh, no...

Mr. Dellinger: I believe the record doesn't need...

Justice Scalia: this was just politics, it is conceivable that the district court looked at those statements, looked at the... looked at the district that had been drawn, looked at other statements, and said these things are inherently incredible.

That... that's at least up for grabs, that argument.

Mr. Dellinger: Yes.

Now, unlike the hypothetical you gave, neither Representative McMahan or Senator Cooper is a convicted felon, not even...

Justice Scalia: Well, I didn't mean to imply that.

Mr. Dellinger: I understand that.

[Laughter]

Justice Scalia: It was what is known as a hypothetical felon.

Mr. Dellinger: [Laughter]

Mr. Dellinger: someone who is a 10-times convicted felon.

Representative McMahan said under oath in a sworn statement that in negotiating the eventually enacted plan, partisan election data, not race, was the predominant basis.

And indeed, that... there's no reason to go beyond that.

The Court understood in Bush v. Vera that if you're going to create a Democratic district... and here the... to get a partisan balance, you need a Democratic district in this part of the Carolinas.

And to anticipate the map show that my colleague will put on, what you will see is I think a... a very sensible district, by no means inexplicably bizarre.

It is the third shortest district of the 12 in North Carolina, and it's thin only because it's a densely populated area.

Justice Kennedy: You don't contend that the Shaw line of cases and Miller apply only to majority-minority districts, do you?

Mr. Dellinger: We... we do not.

It is not, as Judge Ervin said below, Justice Kennedy, a dispositive factor, but it certainly makes the plaintiffs' burden, which was already quite high, even more onerous to prove, Justice Kennedy.

And...

Justice Kennedy: Well, it seems to me that it was somewhat troubling for some of those who drew the district to say, good news, this isn't majority-minority.

That seems to me that's a misunderstanding...

Mr. Dellinger: Right.

Justice Scalia: of Shaw v. Miller.

Mr. Dellinger: It... it...

Justice Kennedy: in itself circumstantial evidence that impermissible fact...

Mr. Dellinger: It is circumstantial evidence in the sense that it doesn't communicate the message that this is a district whose representative is supposed to only care about the interest of one racial group.

I'll reserve my time to discuss Judge Everett's maps.

Thank you.

Argument of James A. Feldman

Chief Justice Rehnquist: Very well, Mr. Dellinger.

Mr. Feldman, we'll hear from you.

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

The summary judgment record in this case was inefficient to... was insufficient to establish, as a matter of undisputed fact, that the State's predominant motive in drawing district 12 was race.

Justice Scalia: What does a predominant motive mean?

I'm... I'm a little unclear about that.

Mr. Feldman: I think the...

Justice Scalia: Suppose... suppose the district would have been drawn almost this way, but... but a few curves in it were put there just for racial reasons.

Does that make it not... not a predominant motive?

Mr. Feldman: I think that that... I think the... the fact that there were substantial parts of the district that may have been put there for racial reasons would be evidentiarily very significant, but I don't think the fact that there were a few isolated pockets would be sufficient to establish a predominant motive.

In Shaw against Hunt, the Court explained a predominant motive as being that that couldn't be compromised in drawing the district.

It was really the basis of the district, the one thing that couldn't be... couldn't be eliminated.

Once... and I think that that's what you have to show.

Now, the...

Justice Scalia: Why is... why is that the test?

I don't... is that the test in any... any other civil rights areas that we know of?

I mean, do we say if somebody fires somebody and, you know, well, yes, race was what finally tipped the scales, but I can't say it was the predominant factor?

This was a person who didn't really work very well.

Race was just the last factor.

That... that was the straw that broke the camel's back, but it wasn't the predominant factor.

We certainly wouldn't say, well, that's okay, would we?

Mr. Feldman: I agree with you.

In that... that area, the Court wouldn't and I think it would be correct.

Justice Scalia: So, don't... don't you think predominant maybe just... just means ultimately determinative?

Mr. Feldman: No, I don't think so.

The Court has...

Justice Scalia: It can be the ultimately determinative factor in how you drew this... this district.

Mr. Feldman: It can be in how you drew a...

Justice Scalia: But if it's not the predominant one, it's okay.

Mr. Feldman: It can... it can be a... it can be a determinative factor in how some isolated portion of a district was drawn, along with many other factors, like going to putting a plan together.

Justice Kennedy: Well, do you have to look at the whole district?

Are you saying that it's lawful for us to say we know the basic lines of the district; now we're going to add 10 percent more just to come up with our... and we'll put all of one racial minority in that just to help them out.

Justice Scalia: Is... is that lawful?

Mr. Feldman: I'm not sure that the hypothetical... I'm not sure it's sketched out enough for me to give a yes or no answer, but I think the main point is...

Justice Kennedy: The hypothetical, as I understand it, can you... can you ever use race specifically in designing part of a district?

Mr. Feldman: I... I take... first of all, I...

Justice Kennedy: If your only motive is to use race for part of a district, can you do that?

Mr. Feldman: I take the Court's decisions where it's repeatedly talked about the predominant motive, not just any motive or not just something that was a factor...

Justice Kennedy: But it didn't say as to the whole district.

Mr. Feldman: I think that in the Miller case the Court talked about a predominant motive for a substantial number of people.

So, already there, that I think excludes the case where there was some small portion of the district that... that may have had race as a factor in considering a community of interests or what ties together people in a particular area.

Justice Kennedy: Well, what would be the rationale which would allow you to use... to use race only as the sole factor in... in comprising part of a district?

What... what conceivable rationale would allow that under the Equal Protection Clause?

Mr. Feldman: Well, I... I think the rationale would be that the Court has... when it's discussed the issue, has talked... has mentioned the fact that race... legislators commonly are aware of race when they draw a district, as they are aware of many of the other demographic factors of the district they're drawing.

And the Court has...

Justice Kennedy: I'm not talking about awareness.

I'm talking about specific purpose.

Mr. Feldman: Right, but I think given that awareness, the Court has also said, or at least the plurality said, in Bush that the mere desire to draw even a majority-minority district, which this isn't, that even that doesn't... doesn't render it automatically subject to strict scrutiny.

I think you have to look and see what was the... I think you have to go back to the Shaw line of cases and the kinds of harms that the Court identified as underlying the Shaw doctrine, and those harms don't necessarily occur, the kinds of beliefs that one... people... a Congressperson may believe that he or she is only there to represent one race or the balkanization of the electorate.

I don't think those harms are necessarily there if they're some small part of a district where a State has taken race into account in saying that in order to have... there's a community of interest here that isn't...

Justice Kennedy: So, the position of the Justice Department is that in drawing districts, race and race only can be taken into account for some neighborhoods.

That's your position.

Mr. Feldman: For... for a small... I believe that's the position that the Court has taken when it has talked about the predominant motive of drawing districts.

I want to add one other...

Justice Souter: Aren't you saying, Mr. Feldman, that the... that whatever predominant means, it at least does not include cases in which the governing motive is to avoid a section 2 or a section 5 violation?

You're saying that at least, aren't you?

Mr. Feldman: You know, I... I'm not sure I'm saying that because it may be that the question of avoiding a section 2 or section 5 violation may be relevant.

It may or may not be.

It may be relevant at the later stage of determining whether something is subject to strict scrutiny.

Justice Scalia: Let me get the Justice Department's position correct.

If... if you have some legislators who want to... want to exclude some blacks from a district that has been, for many years, represented by a white Congressman, and they're worried that too many blacks in that district might make it difficult for him to get reelected because his policies have generally not been favored by blacks, it can take those blacks and chop them out of his district and put them into this new gerrymandered district so long as that's not a big part of that district.

Mr. Feldman: No, I don't...

Justice Scalia: So long as it's only a... less than half?

Mr. Feldman: I think that what you're describing is a case where someone is trying to dilute either the white, black, or the black vote.

I don't really... I'm not sure which, but I don't think that would be okay.

But I do think when the Court has recognized repeatedly that... that a legislature can take race into consideration and even can determine that it wants to draw a majority-minority district...

Justice Scalia: But they're not going to say we did it for dilution.

They're... we're protecting incumbents, the same argument that's being made here.

We're protecting incumbents.

That's why we drew the district.

Mr. Feldman: But... but...

Justice Scalia: To protect the incumbents, we took race into account for a little... for a little bit of the district.

Mr. Feldman: And I... I think that... as I said before, where that would be... it may be very powerful evidence that the predominant motive in drawing the district is race, but I don't think that it's... as the case...

Justice Scalia: So, it can be the predominant motive for just a little part of the district.

That will be enough.

Mr. Feldman: When the Court has said that a motive for drawing a district can be race, I think it necessarily means that there can be some portion of a district where that is a motive in drawing one part of a district line.

Justice Breyer: When you say a motive, I thought this was a case in which, in respect to all groups of minority voters, the State was saying, look, we put all of them in there because they're Democrats.

So, our predominant motive is to every significant group was that they were Democrats.

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

Justice Breyer: We may have also thought, well, fine.

They're minorities too.

We like that idea in this case.

But I mean, that's not the only motive for even those people.

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

I was going to get to that point.

Chief Justice Rehnquist: All right.

Justice Scalia: Then I don't know why we're going into this.

Mr. Feldman: But I don't think on this point, on a summary judgment record, you can conclude that any line in this district was drawn in order... was drawn predominantly or even motivated by race.

All you have in the record...

Justice Breyer: Dominantly it was never only motivated by race.

Mr. Feldman: Right.

I don't think you could even... yes, I don't think you could conclude that on the summary judgment motion in this case.

All you have is the legislators admitting that they took racial fairness into account, which means... may well mean that they drew the districts as they said, in accordance with partisan political considerations, looking at the actual voting of the people on... of various precincts on election day...

Justice Scalia: What in the world does that mean?

Mr. Feldman: and the after that...

Justice Scalia: What does... they took racial fairness into account.

What in the world does that mean?

Mr. Feldman: I... I take that to mean, if you read the affidavit, to mean they were conscious of their obligations under sections 2 and 5...

Justice Scalia: To use race in drawing the districts.

Mr. Feldman: And... no, I don't think so.

And under this Court's decision in Shaw, that they drew the districts, as they said, in order to achieve certain partisan goals to get those election-day Democrats in the district.

Having done that, they looked at their results as Federal... as Federal law requires and to see whether it complies with sections 2 and 5.

It's completely consistent with this record that every line in this district was drawn for partisan political reasons, and there was no line that was motivated for race.

Justice Ginsburg: You had a statistician who said that it was... if you had to pick between the two, was more likely political.

Mr. Feldman: That's right, and... and yes, that's correct.

Justice Ginsburg: The district court didn't seem to do anything but say, well, we're talking about registered Democrats here.

Mr. Feldman: That's correct, and I... I think that was where the district court went wrong, because it was completely consistent with the State's evidence to say, well, there are some registered Democrats who are left out, to say what the legislature claimed it did was not trying to draw districts that had a lot of registered Democrats, it was trying to draw a district that had precincts that include those who would reliably vote Democratic on election day.

And I think the experts' evidence and the maps and, indeed, even the maps that the plaintiffs put in make quite clear that at least that explanation is very consistent with all of the facts.

Therefore, summary judgment couldn't have been granted on this record.

Justice Scalia: Mr. Feldman, don't you think it's appropriate for the district court to take into account that this is not some brand-new legislature that's walked up here creating a brand-new district, but it's a legislature that has been told to redistrict precisely this district because the last time they clearly did it on... on a racial basis, which was invalidated by the courts and upheld up here?

Mr. Feldman: I...

Justice Scalia: Do... do they have to pretend that this is not a legislature that has been pulled kicking and dragging into... into drawing a fair district?

Mr. Feldman: No.

Justice Scalia: And then when they're given another district that looks pretty much like the... like the old one, they cannot take that into account?

Mr. Feldman: No.

I don't... I don't think the district court has to... has to... has to do that, but there's no reason to think that the district court in this case did do that.

And once the legislature draws a new district that is substantially different, as this one was, from the old district, I think any causal connection between the old one and the new one is broken and...

Chief Justice Rehnquist: Thank you, Mr. Feldman.

Mr. Feldman: Thank you.

Argument of Robinson O. Everett

Chief Justice Rehnquist: Mr. Everett, we'll hear from you.

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

I am back again with a map show and that's because the maps are a very important part of the history.

There are two maps that we're going to show...

Justice O'Connor: Well, certainly they are, but I think, at least speaking for myself, my concern is that there may well have been sufficient evidence here to preclude the court from granting summary judgment on this question.

So, I would be most interested in how you justify that.

Mr. Everett: Your Honor, we... I think the maps are a key to that.

Starting first with the 1992 map, which is over here, which is part of the history and which was part of the Court's opinion in Shaw v. Reno...

Justice Kennedy: Do we have it in front of us?

It's not the one at 61a?

Mr. Everett: They... this is the one I believe on 61a, the 1992...

Justice Kennedy: This is 61a of the petition... or the jurisdictional statement.

Mr. Everett: Jurisdictional statement.

And the other one, the '97 plan, is I believe on 59a.

In any event, they are juxtaposed.

They are in the jurisdictional statement.

And I think the... the reason why there's... why there's a basis for summary judgment is this.

This particular map was used in three elections.

This is the '92 map.

It gave a result in 1996 which was six Democratic Congressmen and six Republicans, six Democratic members, of whom two were African-Americans, one elected from the 12th district, the other from the 1st district, the other four were... were white.

Then, on the other hand, there were six Republicans.

Now, at that point, there was a balance.

It was perfectly proper, according to the State's logic, to simply say, we are now going to reenact this for political purposes.

We like the result.

It is a perfect balance.

We have a legislature in which the House is Republican, the Senate is Democratic, and we'll just balance it off.

Therefore, we will reenact exactly what we had before.

Now, that would be perfectly consistent with their logic because they could say this is for partisan reasons.

There's not a predominant racial motive.

We like the results.

We think on its face that seems ridiculous.

Justice Souter: Well, is it because they're taking the wrong point in time to determine the incumbency to protect?

In other words, are you saying they had to go back, say, to 1989... and I don't know what the situation was in '89... and... and they might consider trying to preserve something close to the incumbency at that time, but they can't look at it at the... at the most recent period?

Mr. Everett: Your Honor, I'm saying they're perfectly free to say, yes, we like this balance, but they're not... they're not free to say we like this balance and we're going to replicate it by having six Democratic districts of whom two will be racially constructed, and particularly...

Justice Souter: But they are entitled to say, we're going to have six Democratic districts, all six of which are democratically constructed.

Mr. Everett: They... that would be...

Justice Souter: The problem that I have and I think the problem that Justice O'Connor tried to raise is... is this.

I... I see the maps and I... I don't... I don't mean by my question to discount the evidentiary value of the map for you...

Mr. Everett: Sure.

Justice Souter: because I can see that it has some.

But the summary judgment record upon which you rely is a record, in fact, in which the... the district is no longer majority-minority, the building blocks of it are no longer the... the tiny little census blocks.

They're... I forget whether they're precincts or census tracts, but they're... they're larger units.

The district, as I understand it, is at least consistent with the goal of incumbency protection, and you've got at least a couple of affidavits on the record against you to the effect that that was the motive.

And the problem that I have, even giving... giving the sort of evidentiary consideration to your map, is I don't see how on that record it could be found that you were entitled to judgment as a matter of law because there was no dispute as to a genuine fact, the genuine fact being the predominant motive.

That's my problem.

Mr. Everett: Your Honor, we... we would maintain this, that their statements as to predominant motive are purely legally... legal conclusions in the present context, that as far as the material issues of fact, there are none that are in dispute.

Justice Breyer: But let's take one thing about...

Justice Stevens: May I ask you a question please?

May I just ask this?

Justice Souter didn't mention the thing I find most troubling about the whole case.

As I understand it, your affirmative case relied entirely on registration rather than on actual voting results.

And if I... if I understand the situation in North Carolina correctly, there are many, many more registered Democrats who vote Republican.

There are a lot of registered Democrats who regularly vote Republican.

And how... if that is the truth... and I assume you don't deny that that's true... how can evidence about registration possibly prove that... how the elections will turn out?

Mr. Everett: Well, Your Honor, there a couple of things that seem very important in that context.

One is to recall that, according to undisputed evidence, 95 to 97 percent of the African-Americans in North Carolina register as Democrat and they tend to vote Democrat.

So, therefore, you start with that premise.

If you want a partisan core...

Justice Stevens: But... but explain why the registration of white Democrats is probative of how they'll vote.

Mr. Everett: Well, certainly a registration indicates a preference.

And one of the problems...

Justice Stevens: Is it not true that there... that maybe a third of the registered Democrats vote Republican in Federal elections?

Mr. Everett: Certainly, that is quite true, Your Honor.

On the other hand...

Justice Stevens: And is it also true... just I want to ask you... that your case relied entirely on registration rather than voting results?

Mr. Everett: No, Your Honor, that is not the fact.

It relies on other things as well.

It relies in part on voting results, as for example, there were three different races that they relied on that they had in the computer base.

There were two 1998... two 1988 elections, one for the court of appeals, one for Lieutenant Governor, and there was a Senate race in which an African-American, Harvey Gantt, ran against an incumbent, Jesse Helms.

If you will note the margin of victory with respect to Gantt over Helms in this particular district, it's significantly above that...

Justice Stevens: It was 66.49 percent and the other two were 62.8 percent and 61.5 percent.

Mr. Everett: It was... it was about a...

Justice Stevens: That's right?

Mr. Everett: 4 and a half percent in one instance and a...

Justice Stevens: But each of the three you described won by over 60 percent.

Mr. Everett: Each... that's correct, Your Honor.

But on the other hand, there was a spread.

Justice Ginsburg: But regardless of what might have been in the evidence, as I read the district court's decision, they are relying exclusively on registered voters.

It comes up again and again and again.

And in fact, the Peterson affidavit is written off with one sentence, and we are given a whole page with the registration.

If we think that's wrong, if we think that the legislature could legitimately use actual results... I mean, that's what the affidavits of the legislators said.

We didn't use registration.

We thought actual results were reliable.

Was that wrong to use actual results?

Mr. Everett: It certainly was permissible to look at the actual results.

The actual results we think corroborate the point that we make, that it were racially... it was racially based.

But the significant thing, Your Honor, is the way in which this is constructed.

It winds up with two large concentrations of African-Americans in the Triad area... that's Greensboro, High Point, Winston-Salem, approximately 110,000... and another concentration in Mecklenburg County, 110,000.

This is the partisan core.

90 percent of the African-Americans who are in the district, as it was reconstituted, had been in the old 12th district.

The... the manner of structure was such as to keep a partisan core.

Justice Ginsburg: But the question of the districts that were excluded and what their composition was... for that you used, and the district court accepted, registration figures to determine how Democratic they were and whether they were excluded because they had white voters but who were Democratic.

And that's what was criticized by the legislators who said, no, you can't tell that those white voters are, in fact, going to vote Democratic.

Mr. Everett: Well, the thing that was significant was that they wanted to put the African-American voters there because they could tell that would be a firm partisan core.

They also in the... the section 5 submission pointed out the possible effect on Congressman Watt of removing African-Americans from the district.

They made it perfectly clear there they were concerned with him not only as an incumbent Democrat, but as an incumbent African-American Democrat.

So, all of that goes into the... into the...

Justice Ginsburg: So, are you telling us essentially it doesn't matter, that maybe the district court was wrong to use the registration instead of the actual results, but it doesn't matter, we should win anyway?

Mr. Everett: I would say in this particular instance it doesn't matter, that you...

Justice Ginsburg: But the district judge relied... the district... two of the district judges relied on... on the registration figures.

Mr. Everett: But in addition, the actual result figures point out the same thing.

For example, if you look at Guilford County, you'll find districts which were excluded which gave victories to the Democrats, but they were predominantly white.

Mr. Dellinger... General Dellinger points to Elm Street...

Justice Ginsburg: Yes, but we're not going to reconstruct the record and we're not... another question was about looking at only 32 precincts when there are 120 surrounding that might have given a different picture.

You're not asking us to say, well, if the district... the district court could have found that and therefore summary judgment is appropriate even though they didn't find it.

Mr. Everett: What I'm asking you to find, Your Honor, is this, that these judges, who were very familiar with the situation, particularly Judge Voorhees who had been on the Shaw panel, looked at this evidence, considered it in the context, and realized there was nothing in the post hoc affidavits of the legislators... of Cooper and McMahan.

They were not felons, but they were giving ex post facto rationalizations, designed cleverly to... to cover the... the true motive, the predominant motive.

Now...

Chief Justice Rehnquist: Mr. Everett, can... can one say that on summary judgment, that it's a post hoc rationalization?

You know, if you're... if you're sitting as a finder of fact, you could decide that about an affidavit, but on a summary judgment motion, I question whether you can characterize it that way.

Mr. Everett: Well, Your Honor, we... we would... we point out in our brief that there are some decisions of this Court which would certainly suggest that post hoc affidavits by legislators are not competent to show what the intent was at the time.

We think in this instance they actually confirm that which we have suggested, as for example, there's a portion of Senator Cooper's affidavit which makes it clear they were concerned about... and this is specifically in there... concerned about whether the removal of some of the African-American voters, particularly those in Durham and that area, and Gastonia, from the district would place him at a disadvantage because of race.

And therefore, they make it clear that they have concentrations of voters in Charlotte, Winston-Salem, and Greensboro.

Now, those concentrations of voters, if you look at the statistics, are overwhelmingly African-American.

So, the... they use code in that situation.

They say Democratic.

Democratic.

But these are particular Democrats.

They are Democrats who are Democrats who are African-Americans.

Justice Souter: What do you do with the conclusion of the State statistician?

I mean, I presume he was not...

Mr. Everett: I'm sorry, Your Honor.

Justice Souter: What... what do you do with the evidence of the State statistician that says that the... the facts statistically analyzed are just as consistent with the incumbency protection as with the predominant racial motive?

Mr. Everett: Well, it's a little hard for me, Your Honor, to see how incumbent protection of someone who has been elected pursuant to a race-skewed, race-based plan is permissible in this particular context.

I recall...

Justice Souter: So, do you think as a matter of law then... I take... is it your position that as a matter of law, his conclusion should be discounted to... to nothing for summary judgment purposes?

Mr. Everett: I think... I think basically that it could be discounted.

I think in a situation where there's a reliance...

Justice Souter: But isn't... isn't that what we... I mean, isn't that what we do at trials, if we do it at all, is... is... I... I'm... I'm just having difficulty in seeing what the theory is on... on which you discount it to nothing as a matter of law for summary judgment purposes.

Mr. Everett: Well, Your Honor, my impression is that when affidavits are conclusory and do not bear on...

Justice Souter: Well, but this is not conclusory.

This is... this is an affidavit that says either of two conclusions is possible, and it's very relevant at the summary judgment stage because the question is, as a matter of law, is... is only one conclusion possible?

So... so, sure, it's conclusory but it's a conclusion about a conclusion, and I assume that the expert is competent to offer it.

Mr. Everett: Well, the... what you have here is a situation where the legislators are saying that, yes, we had this desire to create six and six.

That doesn't bear on whether in this particular...

Justice Souter: Yes, but how about the statistician's conclusion?

Why isn't that a good reason for saying... not the only reason, but a good reason for saying that there certainly may indeed be a genuine issue here?

Mr. Everett: Well, the... the use of that which was impermissible, used as a base... as a benchmark of a plan which was determined to be unconstitutional, creates a situation where reliance on that... on that plan, even an indirect reliance as here...

Justice Souter: So... so, you're saying his conclusion is really beside the point, and the reason it's beside the point is you can... if I understand you correctly, that you cannot justify by incumbency protection the preservation of an incumbency which itself resulted from... from the scheme which has been knocked out on constitutional grounds.

Mr. Everett: I... I am saying that you can't justify by use, continuing use, of a plan that's... which is race-based.

Now, 19...

Justice O'Connor: Well...

Justice Scalia: Mr. Everett, before you get... I had thought that the statistician was not testifying as to any facts to establish facts that are controverted.

I thought that he was just drawing different conclusions from the agreed-upon facts than other people.

Now, is... is that enough to establish the existence of controverted facts?

Mr. Everett: No, Your Honor.

Justice Scalia: There's no doubt that there's controversion as to what the conclusions might be here.

Mr. Everett: No, Your Honor.

We...

Justice Scalia: What fact did the... did the statistician controvert that hadn't been controverted before?

I don't...

Mr. Everett: We are unaware of any, Your Honor.

As a matter, all of the data was furnished by the State.

Justice Kennedy: Is racial motivation a fact?

Justice Souter: Is racial motivation a fact?

Mr. Everett: Racial motivation was a fact originally.

It's... it's very apparent in this particular...

Justice Souter: Well, it's... isn't it the nub of what we're... we're litigating now?

Mr. Everett: Well...

Justice Souter: And doesn't the statistician's conclusion bear on that?

Mr. Everett: Well, the racial motivation is apparent from all the circumstances here.

There's nothing that undercuts that.

Justice O'Connor: Mr. Everett, the original plan that this Court looked at in Shaw v. Reno is reflected in your 1992 base plan map.

Is that correct?

Mr. Everett: Yes, Your Honor.

Justice O'Connor: And the plan with which we are now concerned is represented by the '97 plan?

Mr. Everett: Yes, Your Honor.

That... this...

Justice O'Connor: And... and how long are the terms of legislators in North Carolina?

Mr. Everett: Well, the legislative term is a 2-year term.

Justice O'Connor: So, we are not dealing with the same legislature in...

Mr. Everett: You're dealing with a different legislature, but they're...

Justice O'Connor: 1997 plan.

It's a different legislature.

Mr. Everett: They're acting with the same advice from the Attorney General's office.

Justice O'Connor: But different people.

Mr. Everett: There are some...

Justice O'Connor: Different legislature.

Mr. Everett: some different people.

That's correct, Your Honor.

Justice Kennedy: That gets back to the... your original statement.

I think you were establishing a hypothetical something like this.

A plan is invalidated by the courts as being based on a racial gerrymander.

Race was the predominant motive in drawing the whole district, let's say.

Mr. Everett: Correct.

Justice Kennedy: Then legislators get together and say, you know, that plan was really a pretty good plan because it had a partisan balance.

We don't care about race, but we want to keep it for a partisan balance.

And you said something to the effect, oh, that's ridiculous or absurd or wrong.

Why is that so?

If... if it is ridiculous or absurd or wrong, does that just show that the predominant motive test is... is not adequate?

Mr. Everett: Well, we would say that where you're dealing with something which is remedial, there's a special consideration of showing that the original predominant motive has been eliminated.

Justice Kennedy: No, no.

This is a... we're... we're assuming that the legislators say their new motive... and they're in good faith about this... is to keep partisan balance, so they just keep the old district.

Is that permissible?

Mr. Everett: We think that is not permissible.

Justice O'Connor: Why?

Mr. Everett: We believe that in that situation it is tainted by the past, that it still carries forward the message.

If you say...

Justice Kennedy: But if what were driving at is... is preventing districting based on an impermissible motive, how is that furthered by your... by your conclusion here?

Mr. Everett: Well, in a situation where the boundaries are so similar to those of a clearly unconstitutional plan, even though it's no longer majority-minority, we would submit to the Court that the same message is being conveyed that was found impermissible in Shaw v. Reno.

Indeed, it is almost a reinforcement of that message to say, well, they've done virtually the same thing, or even in your hypothetical, Your Honor, done the same thing.

Justice Kennedy: But isn't that just a show of perhaps a flaw in... in the reasoning of our cases, that you can't use race at all is... I guess is what you're saying.

Mr. Everett: We're saying that you cannot use race to the extent where it is clearly determinative, where as, for example, in Shaw v. Reno there is a reference to... to persons in disparate areas who are placed in the same district because of the stereotype of race.

Clearly that stereotype governed in the composition of these... of this particular...

Justice Breyer: What in your basic view, to go back to basics for a second, in your own mind... what is it in the Fourteenth Amendment?

Why do you think it's somehow basically fair to gerrymander a district to have more Democratic faces in the legislature, but you couldn't Democrat a district... gerrymander a district because in part you were pleased if there were more elections of, say, African-Americans who haven't been overly represented in the legislature?

Why, in other words, is the one somehow basically fair and the other is somehow fundamentally unfair in your opinion?

Mr. Everett: Well, we think, again, it's a matter of the purpose, that if it is done to... if it's targeted to elect an African-American as such, whether Democrat or Republican, that is a violation of the Fourteenth Amendment...

Justice Scalia: Suppose race is just a surrogate for something else, Mr. Everett.

Suppose, given the facts that nationwide blacks vote... I don't know... 90... 90-some percent Democratic, suppose the legislature just says, ah, we're not going to look at all these statistics.

We're... we're going to put all these blacks into this one district because we think they're going to vote Democratic.

Is that okay?

Mr. Everett: We would say no, Your Honor.

We'd say that is the use of race as a proxy.

We'd say that...

Justice Scalia: And... and I suppose it's also use of race as a proxy if you say, well, there are Democrats and there are Democrats, but black Democrats are really strong Democrats.

So, since we want really strong Democrats in this district, we're going to put more black Democrats in this district.

That's also a proxy, I assume.

Mr. Everett: That would be a proxy and that is again a use of racial statistics.

Justice Stevens: Would it be a proxy if you looked at those who had regularly voted Democratic without knowing their race but just look at what happened in the ballots and use that as a proxy?

Mr. Everett: If that were a starting point, Your Honor, without any prior history, where it was not a treatment of race as a proxy, where a voter was not just a statistic because of race.

Justice Stevens: Then let me ask you this question.

If you were in the legislature and had to start out fresh without trying to be bothered by what happened in the past, would you think it more appropriate to look at election results or registration as the best basis for deciding how people will vote?

Mr. Everett: Well, I think it would be... either would be very helpful.

Justice Stevens: Which do you think would be the... which do you think would be the more reliable?

Mr. Everett: I think in a situation where it was... in North Carolina I think the... the registration insofar as it revealed race would be the more important.

The voting results would be more important in other contexts.

But...

Justice Stevens: Why would their registration be... be the better choice?

Mr. Everett: The... why would the... in that particular instance, where it is identified and you're knowing whom you are targeting on the grounds of race, that would be a better choice if you were trying to get a particular result predicated on race, which in...

Justice Stevens: But if you're trying to avoid a choice.

That's what I was trying to suggest.

If you're trying to avoid a choice predicated on race, would it not be better to look at election results rather than registration?

Mr. Everett: If you were trying... if you were totally trying to avoid any... any use of race, certainly you could say I will forget all about it.

You will do as was...

Justice Kennedy: Well, if you were trying to district on a basis of race, I guess registration... I guess voting patterns would be better then too.

Mr. Everett: Well, what they... what they did here...

Justice Kennedy: In some... in some instances and under some hypotheses.

Mr. Everett: Right.

What they did here in some of these instances, they took the racial hypothesis and verified it from the results where the districts were voting in a certain way.

But on the other hand, in some of the instances, even though the results would have been favorable, they did not include them, so that you have a... you have a clear use of race as such in this particular district.

And it is a carryover.

It's a pretty clear carryover.

It's a carryover that was predicated on a misunderstanding that's reflected in one of the comments by Senator Cooper on the floor to the effect, guess what, this is no longer a majority-minority district.

Therefore, it's our opinion... we've been informed... that shape is not important.

In effect, we've got a Magna Carta to do whatever we want to so long as it is not a majority-minority district.

And I think the... neither the State appellants nor the... the Solicitor General at this point have argued for any position of that sort.

We think it's clearly wrong.

Justice Ginsburg: Mr. Everett, in terms of summary judgment, one procedural feature of this case is... is disconcerting.

That is, you keep talking about they haven't remedied the wrong or... as though this were the original Shaw v. Reno case, but it's not.

That case, for whatever reason, was dismissed.

One of the things that was said was that the plaintiffs are no longer in the district, but now it turns up two of those very same people start a brand-new lawsuit.

And in a brand-new lawsuit, usually the plaintiff carries the burden, and it is extraordinary to give summary judgment to the party who has the proof burden.

Mr. Everett: Well, in a situation like this, Your Honor, where the statistics are forthcoming from the State itself... there's no controversy about it... we would say that the granting of a summary judgment was entirely appropriate.

There's no new evidence...

Justice Kennedy: Well, on burden... on burden of proof, after a district has been invalidated as a racial gerrymander, perhaps the burden of proof should shift to the State to show that the district was not dominated by race.

Mr. Everett: We have argued that.

We've argued that the... that the burden of proof should be on the State to show that.

We've argued also that a sort of litmus test would be the adoption of some of the traditional districting principles to show there had been a... a departure from... from that which preceded it.

So, we think a remedial district like this, regardless of who the parties are, is still subject to some special responsibility on the State's part with respect to showing the... the vestiges of the past no longer exist.

So, we think there is a continuation of motive...

Justice Ginsburg: Was there a reason for starting over when you had two plaintiffs who qualified so that you could have carried on the old?

Was there reason for bringing a... a whole new lawsuit?

Mr. Everett: Well, Your Honor, there was a suit that they had filed.

They were added as additional plaintiffs.

They were from the 1st district.

None of the parties in the 12th district, which had been declared unconstitutional, had any standing at that point.

So, there had to be some additional action, and that was handled by an amendment which added some additional 1st district plaintiffs and also brought in persons from the reconstituted 12th district.

Justice Ginsburg: So, there are none... none of the people who are now in the... in the plaintiffs' lineup from the 12th district were plaintiffs in Shaw v. Reno.

Mr. Everett: There are two that were amended plaintiffs.

They were in at the time of the... after the...

Justice Ginsburg: But not in the original.

Mr. Everett: Not in the original.

Those were five people from Durham, and none of them had any standing after the... after the redrafting of the districts.

Justice Ginsburg: What is the status of the 1st district?

That one didn't go up on summary judgment.

Mr. Everett: That one didn't go up.

We would maintain the defendants were fortunate in that regard because it seemed it was pretty clearly a racial purpose.

But in that one, there would have been issues, to be sure, of strict scrutiny which we would maintain are not involved...

Justice Ginsburg: No, but where... what is the posture of that litigation right now?

Mr. Everett: The posture of that litigation is that it's in a holding pattern awaiting the disposition of this case.

Interestingly enough, if in this case the decision of the Court is to overturn the lower court, this plan will then supersede the plan that was used for the elections in 1998.

There's a plan under which Members of Congress have been elected and which is, incidentally, substantially less race-based than this.

We would still contend not free of the taint, but it's about 35 percent instead of 45 percent or 47 percent.

And there again, the partisan results of maintaining incumbency and so forth were maintained, which is a pretty good indication that there were alternatives available to the State which they didn't use, that instead, as exhibited by their own... the submission under section 5, by portions of the affidavits when strictly... when properly construed, they had a racial motive.

They were concerned that because of the removal of the African-Americans in Durham and Gastonia from Congressman Watt's district, there would be a problem.

And so they tried to assure that this would be racially of a sort that would assure his reelection, which of course occurred under the 1998 plan, but... even a less race-based plan.

But there was a specific purpose which is revealed even in the affidavit of... of Senator Cooper...

So, they had a purpose and they had a purpose which is reflected in their own documents and it's reflected throughout.

And it's reflected in results.

It's reflected in the circumstances that the experienced judges sitting there in Charlotte, or sitting in North Carolina, that they found and looked at.

They understood quite well that even though there was a recital of a... of maintaining a partisan balance, a recital of racial fairness, that as far as the 12th district was concerned, there was a target, and that was to assure that there would be an African-American reelected and stated in terms of reelecting an incumbent.

But in this particular instance, we would say that it was significant that that incumbent was an African-American.

Now, it's perfectly fine to have him reelected, but our contention is that it should be done from districts which are not predicated primarily on race, where race is not the predominant motive.

And we would suggest, Your Honors, that if you look at these two maps together, you come only to the conclusion that there is such a violation of the ordinary precepts of traditional districting that this has to be viewed as based on race.

And that is unconstitutional.

Justice Kennedy: Thank you, Mr. Everett.

Justice Stevens: Mr. Dellinger, you have about 4 minutes.

Rebuttal of Walter E. Dellinger

Mr. Dellinger: Justice Scalia said in the first argument this morning that the Court has a responsibility not just to look at the particular case but to look to the future, and what we're most concerned with when you do that is to think how important it is to make clear that there's a heavy burden on those who would challenge a State legislature in the exercise of one of its most sovereign functions of... of State self-definition as a political entity.

Here...

Justice Kennedy: In... in the hypothetical that we were working with where they keep exactly the same districts, would the voters still have that same heavy burden after a district had been previously declared invalid?

Mr. Dellinger: I think that the... that the same district would mean that you had not, nearly to this extent, eradicated the message harms of the... of the 1st district, Justice Kennedy.

The changed process might make a difference.

But here, if you look at this map, what is clear is that three-fifths of the district is different.

The lint is reduced in half.

The whole hundred-mile corridor to pick up Durham is gone.

There's only one split precinct, no use of crossovers, double crossovers, continuity.

It is a Democratic district that... that makes sense, and its stated purpose was to do so.

This is...

Justice Scalia: Mr.... Mr. Dellinger...

Mr. Dellinger: Yes.

Justice Scalia: I'm not sure from your... from your prior presentation what your answer to these questions are.

Would... would you think it is okay to use race as a determinant of what voters are likely to vote for the incumbent representative?

Mr. Dellinger: No.

We do not believe that race...

Justice Scalia: Could you race as a determinant of who are yellow-dog Democrats, so-called?

Mr. Dellinger: No.

Justice Scalia: Those who will vote for a yellow dog that's a Democrat.

Rebuttal of Robinson O. Everett

Mr. Everett: No.

Chief Justice Rehnquist: Right?

Mr. Everett: Race can not only be used not only for its own sake, but as this Court has taught, it shouldn't be used as a proxy or a surrogate for other things.

I'm quite clear on that.

This is a case where we used the thing itself, and it's really turning Washington against Davis upside down to say that because the thing itself, political affiliation, happens to correlate, that now we have to treat it as if it were suspect.

It was stated most precisely I think in... in an opinion by Justice O'Connor that you joined in... in Hernandez where two Hispanics were struck from a jury because of their difficulty relying on the translation.

And the Court said that was appropriate.

And... and the strongest statement was in the concurring opinion that said, no matter how closely tied or significantly correlated to race the explanation may be, the strike does not implicate the Equal Protection Clause unless it is based on race.

That is the distinction between disproportionate effect and intentional discrimination.

That is the heart of our jurisprudence which we turned upside down.

I don't think the State can be forever barred from putting a Democratic district in the Piedmont Crescent that makes as much sense as this one does as if it were some convicted felon or... or bungling constable that had to be held under scrutiny.

The '98 plan may look better, but I would just close by saying it's significantly less desirable from legitimate political purposes.

It includes an entire rural county and takes out Greensboro, which has much more in common with the banking and commercial and urban centers.

Thank you.

Justice Stevens: The case is submitted.

Thank you.

Chief Justice Rehnquist: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The Oyez Project

Featured:

Lawyer v. Department of Justice - Oral Argument

Fri, 09 Jan 2009 14:50:06 +0000

Case:

Lawyer v. Department of Justice

Media File:

95-2024_19970219-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Robert J. Shapiro

Chief Justice Rehnquist: We'll hear argument next in Number 95-2024, C. Martin Lawyer, III, v. the Department of Justice.

Mr. Shapiro.

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

In this case, the district court used an unconstitutional process to achieve an unconstitutional result in the form of plan 386.

Before commencing my argument, I would like to make a correction in my reply brief which is important in that it's a reference to the record.

On page 14 of the reply brief I referred to the preclearance denial letter of the Justice Department as R. 18... I'm sorry, as R. 13, and it's actually in the record at R. 18, and the full text is at R. 18.

I also would like to just briefly refer to the maps which are attached to the briefs.

If I may, the first map we have is Appendix A to the reply brief.

This is the legislatively adopted plan which was approved by the Florida supreme court in 1992.

It's called SJR 2G.

This is District 21 in yellow, which is all encompassed within Tampa, Hillsborough County, Florida.

The next map we have was the court-ordered plan as a result of the Justice Department's preclearance denial letter.

They objected to it.

Although there was absolutely no history of Voting Rights Act violations against black voters in Hillsborough County they were covered under section 5 because in Hillsborough County they did not print ballots in Spanish as well as English.

So there was no congressional finding whatsoever of any Voting Rights Act violations against blacks in Hillsborough County, and this is in the record at... let's see, if I may.

Okay, it's at record at R. 104, which I didn't put in my brief.

R. 104, page 3, specifically states that.

You can see that this district extends into Pinellas County.

This is Hillsborough County.

It goes into Polk County.

It's called the Polk County finger, and we have the--

Unknown Speaker: Mr. Shapiro, is this the district that the Florida supreme court approved, that we're looking at now?

Mr. Shapiro: --This... what you're looking at is the district that the Florida supreme court approved under the duress of the Justice Department's letter.

Unknown Speaker: That's 4A of the brief?

Mr. Shapiro: The--

Unknown Speaker: Of the blue brief?

Mr. Shapiro: --This is Appendix B to the brief on the merits for appellant.

Unknown Speaker: Yes, and this is the one that was superseded by the district that is now in question?

Mr. Shapiro: That's correct.

This was the one that was challenged by the plaintiff in his lawsuit, so this is the one that was the result of the preclearance denial letter by the Justice Department.

Unknown Speaker: Mr. Shapiro, I had a question about the challenge and the choice of forum.

You are attacking a decision of the Florida supreme court, and you come into a Federal court to do that.

Was there not a means by which you could have fought out your challenge to a district created by the Florida supreme court in the Florida State system so you wouldn't have the embarrassment of a Federal court being faced with a decision of the Florida supreme court that it was impelled to reject?

Could you have gotten a remedy by appealing to the State system rather than running to the Federal courts?

Mr. Shapiro: No, Your Honor, because this was a challenge based on what the Justice Department had forced the Florida supreme court--

Unknown Speaker: But that doesn't tell me why you couldn't say... I mean, the Equal Protection Clause governs the State of Florida, as it does the Nation.

Why couldn't you then go into the State court system, make precisely the argument made in the Federal court?

Mr. Shapiro: --First of all, the Florida supreme court did not reserve jurisdiction over this issue.

It reserved jurisdiction when it approved this district in 597 So.2d.

If you read the opinion of the Florida supreme court it says, we reserve jurisdiction.

But when it approved 330 at the insistence of the Justice Department it did not reserve jurisdiction.

Unknown Speaker: I don't mean in that case.

Bring the case... bring another case, in which you're saying, Florida supreme court, we know you've got precedent, but you were acting under the gun of the Department of Justice, so we want to free you from that thrall.

Mr. Shapiro: Well, Your Honor, the only thing I can say is that the plaintiff had the right to contest this district in U.S. district court, and under the Voting Rights Act.

Unknown Speaker: Mr. Shapiro, I appreciate that you did, but there was a certain anomaly in you coming to a Federal court to in effect override a decision of the State court and then say that the Federal court has not been sufficiently respectful of the State authorities.

Maybe you haven't in coming to the Federal court rather than a State court for the solution to your problem.

Mr. Shapiro: Well, that issue was resolved in the trial court.

There were motions... there were actually motions to dismiss filed by the Attorney General in the State of Florida asserting that position.

Those were denied by the district court, and that was not appealed.

Unknown Speaker: Do you think you would have had much of a chance had you gone into a Florida trial court and said that what the Florida supreme court did was a mistake?

Mr. Shapiro: I don't know that a Florida trial court would have jurisdiction in the Voting Rights Act case, Your Honor.

I just don't know.

I don't think so.

I think this would be exclusive jurisdiction in the Federal district court, and Mr. Lawyer had a right to make a Shaw claim in the U.S. district court, and again, there was a motion filed by the Attorney General to abstain, to transfer because of the DeGrandy litigation, which was in progress at the time.

This district... this plan was in U.S. district court in the Northern District.

Unknown Speaker: Mr. Shapiro, may I just clarify, is anybody now claiming that plan should be defended?

Mr. Shapiro: Well, yes.

The... in fact, and that's a critical aspect of this case, is that the... at no time in this litigation did... was there ever an adjudication that this plan was unconstitutional.

Unknown Speaker: I understand, but is anybody now claiming that it is constitutional?

Mr. Shapiro: Yes, because what they're saying, they reserve--

Unknown Speaker: And if so, who?

Mr. Shapiro: --The Attorney General... I'm sorry.

The State appellants at the least, specifically in their settlement agreement said, we do not acknowledge that 330 is unconstitutional, and we have a right... if their settlement plan was rejected, they retained the right to contest that 330 was unconstitutional, and that's a key aspect of this case, in that there was never an adjudication of liability that that 330--

Unknown Speaker: Well, I thought in this Court though they don't contest that it's unconstitutional.

Mr. Shapiro: --I believe they do.

They do not concede that 330 was unconstitutional.

Unknown Speaker: But how does that bear on the arguments you're trying to make?

Mr. Shapiro: It doesn't bear on the arguments.

I do not... they do not admit that 330 is unconstitutional.

Unknown Speaker: But then, why don't we go to the district which basically we're talking about here, I take it.

Mr. Shapiro: That's correct.

This is 386.

This was the settlement plan that was approved by the Federal court.

Now, you can see what happened with the map that was produced at the "fairness hearing".

There's no political subdivisions that are even included in this, when you talk about disrespect for political subdivisions.

Here's Tampa Bay.

It's a huge body of water.

Although there's the shoreline which is depicted, it doesn't really reflect which portion of Pinellas County... Pinellas County is over here.

You don't know that because it's not on here.

Unknown Speaker: We can't tell where Tampa Bay is on that map.

Mr. Shapiro: Well, that's the whole purpose of our map.

We have enhanced the map.

Unknown Speaker: We now know where Tampa Bay is.

Mr. Shapiro: This is a rather large body of water.

Now, if... I'm sorry everybody can't see it, but this is... you can now see the contours, for the first time, of the district.

The district is a tiny portion of Pinellas County over here.

I'm referring now to Appendix B of the brief on the merits for the appellants.

This is in--

Unknown Speaker: That's where St. Petersburg is, right?

Mr. Shapiro: --Yes, sir.

Yes sir.

St. Petersburg is over here, and that is a portion of Pinellas County, but this is all Pinellas County.

They chose this portion of Pinellas County.

Now, what they did was, they eliminated that part that went over to Polk County, but they retained this at the insistence of the Justice Department.

Now, if you look at this little spit of land here, this was included as well, so it goes all the way across, and if you look back at the plan that was presented to the court, it looks like one contiguous compact piece of land.

Unknown Speaker: But much of that is the lake, is what you're saying.

Mr. Shapiro: Yes, sir.

Unknown Speaker: And you're suggesting that the judges down there didn't know where Tampa Bay was.

[Laughter]

Mr. Shapiro: Well, I don't know.

Judge Tjoflat said, well, we assume there's no houseboats there.

That's what he said in... at the fairness hearing.

Well, there are no... they have a lot of fish there, and they don't vote.

[Laughter]

But as we... as Mr. Lawyer made clear this is only part of the picture though, the shape of the map and irregular aspect of it.

Unknown Speaker: Is that unusual in Florida, to have a district separated by a body of water?

Mr. Shapiro: Well, it is not unusual to be separated by a body of water, but it's a totally different proposition when there... when a district has to be... a piece of land has to be in some district, say in an island and the Florida supreme court stated this in their original decision.

They said, look, in Florida there's a lot of water, so just because a district encompasses water doesn't necessarily make it noncontiguous.

It's another proposition for the district to artificially reach over this huge body of water for the specific exclusive purpose of including black voters in order to boost the population of the entire district, and that was the exact purpose of the designers of this plan, was to go across at this highly dense black community in Pinellas, where they had been in their own district.

In fact, it's truly emblematic of this case that if you look at 21, whereas under their plan they presented to the court, the number 21 was in yellow, now the two is submerged in water, so it's... so they have jumped across Tampa Bay and taken these counties, which used to be in other districts.

They were in other districts.

Unknown Speaker: But you're not claiming now, as I think was the case in the earlier district, that they put together rural areas with urban areas on both sides of the rivers, or the bay?

Mr. Shapiro: No.

As a matter of fact, that was eliminated, this finger, but when you create a monster, you can cut the fingers off, it's still a monster.

This finger was cut off that led to Polk County, which was rural, but the NAACP opposed the plan of joining Pinellas County over here, because they said there's not even a cohesive black community in the Tampa-Hillsborough area, much less the Pinellas area.

They opposed it.

But what the Justice Department did was, it insisted that in order to create an additional majority district, that they must join the populations.

Unknown Speaker: I thought this wasn't a majority--

Mr. Shapiro: It is not a majority, but the purpose was to create a majority--

Unknown Speaker: --Why did the NAACP oppose it?

What was... why did they think that would harm the interests of the black voters?

Mr. Shapiro: --Because they... they were correct.

This plan... this is striking.

Sixty-four percent of all Pinellas County's blacks are now in plan 386.

Even more, 74 percent of Manatee County's blacks are in the plan, so they bleach... and the NAACP said, look, you re bleaching the surrounding areas of their influence, because you're taking a pocket of black voters, and you're forcing them into that plan where they don't belong.

Now, the Justice Department--

Unknown Speaker: Before you leave that, may I just ask, does the NAACP... are they a party to the appeal?

They don't challenge it now, do they?

Mr. Shapiro: --No.

They are not a party to this appeal, and they were not involved in this litigation.

But when the... here's the point.

When the Florida supreme court considered the idea, at the insistence of the Justice Department, that they cross Tampa Bay to pick up this pocket of black voters, the Florida supreme court in the 601 So.2d copy said, but these... this is not a compact group of black voters.

Unknown Speaker: Mr. Shapiro, let me understand.

I think--

Mr. Shapiro: Yes.

Unknown Speaker: --You're talking about the NAACP opposition to the plan that the Florida supreme court adopted, the one that we saw before with the finger--

Mr. Shapiro: That's correct.

Unknown Speaker: --and that was a concern with packing into that district, right?

Mr. Shapiro: This plan, that's correct.

Unknown Speaker: But we have nothing to say that the NAACP opposes the plan that the--

Mr. Shapiro: No.

Unknown Speaker: --court approved, that the Federal court approved.

Mr. Shapiro: No, we don't.

But those comments that they made before the Florida supreme court are directly relevant to this case, because they said... they said to the court they objected to any plan... any plan which would cross Tampa Bay and join these populations.

Unknown Speaker: But they objected because to do so was packing.

Mr. Shapiro: That's correct.

Unknown Speaker: And if the packing is now less, I don't know that it follows that they still find it objectionable.

You've only got... your district is what, 30-some-odd percent black now?

Mr. Shapiro: It's 36-percent black.

Unknown Speaker: So I don't know that there... I don't know that we can infer that there's... that they would still object, when in fact they have not done so.

Or that it makes any difference whether they object or not.

Mr. Shapiro: I'm just pointing that out to say that there was a substantial... that the Florida supreme court was saying, we do not believe that we're obeying our traditional neutral districting principles by doing this, but we're doing it because under duress of the Justice Department--

Unknown Speaker: I'm sorry to get you into this, Mr. Shapiro.

Mr. Shapiro: --Yes, sir.

Unknown Speaker: I was just curious.

You shouldn't waste a whole lot of your time on it.

I was just curious as to--

Mr. Shapiro: No, of course.

Unknown Speaker: --why the NAACP would seem to be on the other side of this.

Mr. Shapiro: Okay.

Unknown Speaker: I understand it now.

Well, could you explain what your position here is?

You say you never consented to this final plan--

Mr. Shapiro: That's correct.

Unknown Speaker: --386, and--

Mr. Shapiro: We never consented to it.

Unknown Speaker: --that you've never agreed with it, and that you did not get relief at the State level, and you assert that the plan, 386, violates this Court's constitutional standards.

Mr. Shapiro: That's correct, and it does so for several reasons.

Number 1, this was called a hybrid consent decree.

That's what the majority of the court called this.

The notion of the consent decree, however, is you have to have consent.

Unknown Speaker: And your client did not consent.

Mr. Shapiro: That's correct.

Unknown Speaker: Although was a party below.

Mr. Shapiro: That's correct, and he objected to it.

He objected ad nauseam to 386, and he insisted upon an adjudication that 330 be declared unconstitutional.

What the court did was, instead it made a conscious decision that instead of actually adjudicating 330 unconstitutional, that it would submit the matter to mediation, and the purpose of the mediation was to allow the parties to come up with a remedy or a substitute plan.

The problem is, that does an end run around the Florida legislature, which in the traditional cases that this Court has said over and over and over, including Miller, this Court has said it's the province of the State legislature--

Unknown Speaker: But is it not true that if there had been a finding of violation, and then after hearings the court had imposed this plan, you would still make precisely the same objections you're making now?

Mr. Shapiro: --Absolutely.

Unknown Speaker: But... so if you win... well, you started by saying this is not a good plan, the new plan.

You win or you lose.

All right.

So if you win that's--

Mr. Shapiro: If I--

Unknown Speaker: --So if you win that's--

Mr. Shapiro: --in the way it was done.

Unknown Speaker: --I under... let's... suppose--

Mr. Shapiro: I'm sorry.

Unknown Speaker: --Suppose we were to say that this new plan violated the Constitution... you know, the cases we've held... you'd win and that would be the end of it, right?

Mr. Shapiro: Yes, sir.

Unknown Speaker: All right.

Now suppose we were to say the opposite, that you lose if this plan's okay constitutionally.

Now, is that the end of this case as far as you're concerned?

Mr. Shapiro: I would take the position that Mr. Lawyer... that's a complicated question, because in a usual consent--

Unknown Speaker: No, I mean, because you could say now that this is what you really wanted.

You wanted an adjudication of whether this plan is good or bad.

Mr. Shapiro: --That's right.

Unknown Speaker: And that would eliminate a whole set of complex procedural issues.

Mr. Shapiro: It--

Unknown Speaker: So what I think you're going to say is no, that isn't the end.

Mr. Shapiro: --No.

Unknown Speaker: Okay.

Now, if that isn't the end of it, why not precisely, because now what you're doing is, you're attacking the procedure, so even if this is a good result, the procedure was wrong.

Mr. Shapiro: That's... it's wrong on both counts.

The procedure was wrong because the footprint of the Federal judiciary, in this case the district court, was put on the process and a coercive order was entered without any adjudication.

Unknown Speaker: All right.

Now, my question on that is this.

Suppose the four people, Mr. Scott, Mr. Hargrett, Mrs. Simms, and Mr. James, and your client, five people... now an imaginary case... an imaginary case.

Those five people sue somebody for something.

Mr. Shapiro: Yes, Your Honor.

Unknown Speaker: And they want an injunction, and now--

Mr. Shapiro: From the court?

Unknown Speaker: --Yes.

They want... I'm just making up a case.

Mr. Shapiro: Okay.

Unknown Speaker: They sue somebody.

Mr. White they sue, okay, and they say, Mr. White, you're doing a bad thing here, and he says no I'm not, and now they say, four of the five, not your client but the other four say, we'll settle.

White says, I won't settle if I have to admit I was wrong.

We won't make you admit it.

Okay.

So four of them settle with Mr. White, and the judge then simply enters a decree embodying their settlement which doesn't admit liability.

Mr. Shapiro: Yes.

Unknown Speaker: Common, garden variety, every day of the week.

The fifth person doesn't agree.

Mr. Shapiro: Yes, Your Honor.

Unknown Speaker: Well, I can understand why the fifth person can attack the merits.

He can say, Mr. White, you're doing a bad thing still.

But I don't understand how that fifth person could object to the fact that the other four have settled with Mr. White.

Mr. Shapiro: The answer to your question is that a nonconsenting plaintiff cannot have substantive issues resolved against them in the context of a consent decree.

Unknown Speaker: Well, doesn't it happen every day of the week that people are in cases where they have 10 plaintiffs, 9 of them settle, the judge looks it over, he says, this is fine.

The tenth one doesn't agree, so the judge says, okay, tenth one, you don't have to agree.

You can maintain your suit, but I'm entering the decree as to the other nine.

That's fair.

Mr. Shapiro: As to the other nine, but Mr. Lawyer lives in 386, and in fact he's the only plaintiff in this case who had standing to challenge 330.

Unknown Speaker: But didn't the district court rule against him on the merits?

Mr. Shapiro: Exactly.

It's a coercive order.

Unknown Speaker: Yes, well--

Mr. Shapiro: They couched it in terms of a consent decree.

Unknown Speaker: --But you've been arguing now for 20 minutes.

You've only got 10 minutes left, and you challenged the decree on the merits, I take it.

Mr. Shapiro: Yes, Your Honor.

Unknown Speaker: Why don't you get to that part of your case?

Mr. Shapiro: I will.

The... 330 itself... 386 was approved by the court.

Now, what our position is on this case is that, as I said, the original district, 330, was never declared unconstitutional, but it was a product of coercion by the Justice Department.

Now, what happened here is--

Unknown Speaker: Why does that bear at all on the validity of the most recent plan, the court-ordered plan?

Mr. Shapiro: --Because... it absolutely does, because the coercive order of a Federal court is based upon adjudication.

A Federal court can only order a remedy where there has been an adjudication, or there has been some admission of liability.

Here, there was never an admission of liability.

Unknown Speaker: Mr. Shapiro, since you are making much of this point, Mr. Lawyer submitted a statement together with Plaintiff Scott and others, a statement of the case, representing to the district court as a result of this Court's decision in the Miller case there are no issues of law to be decided by the court in this matter.

Accordingly, the only issue which would remain for the court to decide at the trial on this matter is the issue of the appropriate remedy.

Now, it seems to me that your first point about how the court has to declare the old district unconstitutional, this is a stipulation that your client joined and said, court, we all agree there's nothing for you to decide but the remedy for this constitutional violation.

Mr. Shapiro: By the remedy he meant how much time... this... how much time the court should give the legislature to decide what the replacement plan would be.

He did not specify that the court should actually decide what the plan should be, so he didn't... he said the remedy, meaning how much time to give the court, how much time to give the legislature.

Unknown Speaker: Accordingly, the only issue for the court to decide at the trial... at the trial... is the issue of the appropriate remedy.

Do you have a trial on how much time to give the--

Mr. Shapiro: There was never a trial period in this case.

Unknown Speaker: --But I'm just reading the stipulation, trying to find out what that means.

One thing it says, there's no issue of law dividing the parties.

There's only the question of the appropriate remedy, and that's for trial.

Mr. Shapiro: What he meant by that was that he... the remedy meaning the court should determine... assuming that there's an unconstitutional district, the court should then determine how it's supposed to act, and it's supposed to act by referring it back to the legislature.

Unknown Speaker: Well, I'm still so confused by your position here.

Do you want this Court to just focus on the fact that--

Mr. Shapiro: No.

Unknown Speaker: --Wait a minute.

You didn't even hear the question, and you've already answered it.

Do you want to hear the question and then answer it?

You appear to be here arguing that the procedure followed by the Federal district court was erroneous because it didn't first find unconstitutionality of plan 330, and furthermore it did not then await an opportunity for the legislature to adopt its own plan, so much of the argument centers on that.

On the other hand, do you have an argument here at all to the effect that, irrespective of that, what the court ended up with by virtue of the agreement of the other parties, other than Lawyer, is itself unconstitutional.

Mr. Shapiro: Yes, I get to that.

Unknown Speaker: Do you get to both of those arguments or not?

Mr. Shapiro: Yes, we do.

Unknown Speaker: I'm just so confused.

Mr. Shapiro: Yes, we do.

What happened in this case, the Court in approving plan 386 did not adequately apply the Miller standards.

They held... instead of determining and applying those... that case very carefully they said, well, 386 is better than 330, so we're going to approve it.

They said that it was benign and statute satisfactorily tidy, because it was better than 330.

That's not an accurate... an adequate application of Miller.

Instead of using the community of interest analysis in Miller in looking at the actual objective evidence in terms of what these communities are, they held... they used a fairness hearing as a referendum and said, well, we're... because we have a fairness hearing and we've put a notice in the newspaper that anybody who wants to contest 386 could come to the court and do that, the court in this case, the district court said, well, nobody showed up and objected to plan 386, so therefore there must be a community of interest.

The statistics of the case are also important.

The statistics are that although 330 had 45 percent black voters of V.A.P., this plan had 36 percent, so that a significant number of black voters were moved from their place over here in Pinellas County into District 21 when they normally would not be there.

There was no... and one of the key aspects is... I know I've harped on this, but in adopting the procedure that the court used of using mediation in a secret sessions to design this plan, in effect there is no report or any evidence of the exact factors that the designers of the plan used.

Miller absolutely mandates--

Unknown Speaker: Wasn't there one point that you had an opportunity to examine the designer of the plan?

Am I right that it was the State Senate's expert that was the designer?

Mr. Shapiro: --Correct.

He... his report went into the record, and I will tell you that Mr. Lawyer was threatened with sanctions in this case if he divulged the contents of the negotiation.

Unknown Speaker: Was he... did he have an opportunity to examine this witness and say--

Mr. Shapiro: Yes.

Yes, he did.

Unknown Speaker: --no, I don't choose to--

Mr. Shapiro: Yes, he did.

He did, but there was... he was permitted to cross-examine the witness, but there was no oral testimony at that... there was no one under oath, there was no oral testimony whatsoever at the fairness hearing, and there were no findings of fact, which is the most critical aspect of this case, really.

Unknown Speaker: --Did Mr. Lawyer have an opportunity to say, I want to call witness X, Y, and Z, I want to cross-examine, and was denied that opportunity?

Mr. Shapiro: He wasn't denied the right to call witnesses, but there... this was not... the judge was asked at the pre-trial conference, is this going to be an evidentiary hearing?

He said, I suppose you could find a judge somewhere who liked to hear evidence, but no, this is not an evidentiary hearing.

So he specifically ruled that this would not be an evidentiary hearing, so to say that Mr. Lawyer had a burden at that hearing to prove the district unconstitutional, or that he failed to--

Unknown Speaker: He was the plaintiff in the case.

Mr. Shapiro: --Yes, but the plan was never properly before the court.

Unknown Speaker: Where was it that he had the opportunity to cross-examine?

Mr. Shapiro: At the fairness hearing.

Unknown Speaker: So there was testimony taken there?

Mr. Shapiro: There was no testimony.

It was a hearing, and it was not an evidentiary hearing, and it's clear that Judge Merryday stated at the pretrial conference this will not be an evidentiary hearing.

Unknown Speaker: Well then, how would he have had a chance to cross-examine him?

Mr. Shapiro: That's the point.

Unknown Speaker: But I thought you said he did have a chance.

Mr. Shapiro: Well, he was given a chance by the judge.

Guthrie, the person for the State, he didn't testify.

He put his affidavit in the record and Judge Tjoflat said, we'll consider that his direct testimony.

If you want to cross-examine him, go ahead.

Unknown Speaker: And your client declined.

Mr. Shapiro: Declined, but that was not an evidentiary hearing, so to say--

Unknown Speaker: Well, it was certainly the next best thing.

Mr. Shapiro: --The next best thing, but he had no burden to prove plan 386 was unconstitutional, because plan 386 was never properly before the court.

Because they did an end run around the legislature, it was never referred to the legislature.

Therefore, to say that he had a duty or a burden at all at that hearing is incorrect.

He had no burden under Miller or anywhere else to prove that that district was unconstitutional.

Unknown Speaker: Was the judge not told by the representatives of the legislature that the legislature just wasn't going to do anything about this?

Mr. Shapiro: Well--

Unknown Speaker: That it had done its thing in the decennial whatever, and that the article of the Constitution that you cite didn't apply except at the 10-year redistricting?

Mr. Shapiro: --Everybody, including the Attorney General of the State of Florida, expected, and stated to the district court, that the State legislature had the right to convene.

In fact, the district court was asking for status reports.

But the fact is that the State legislature never had to... it was never triggered, a special session, because there was no adjudication that the original district was unconstitutional.

Unknown Speaker: I took what went on as simply an indication that at least unless and until the extant district was declared unconstitutional, the legislature, simply because of the existence of a lawsuit, had no intention of creating a new district.

Mr. Shapiro: Exactly.

What the court was saying was, because of Miller v. Johnson for the U.S. Supreme Court, we note that the Florida legislature has not spontaneously convened itself to rectify the situation.

Unknown Speaker: But aren't those matters of State law?

I mean, whether or not the State--

Mr. Shapiro: No.

Unknown Speaker: --Whether or not the State of Florida has the legal power to agree with the court to change its district with these representatives present or not would seem a question of State law.

I don't see what's the question of Federal law.

Mr. Shapiro: Because this Court has made clear repeatedly that this is a matter that is to be reserved for the States in the first instance.

Unknown Speaker: If, in fact, the court introduces a decree agreed upon by our four plaintiffs and their defendant, Mr. White, whether Mr. White has the power to make that agreement to the decree is a matter of Mr. White, a matter of the State.

Why is it Federal?

Mr. Shapiro: It's Federal because the Court has made clear that this is a matter which is to be resolved first by the State.

It's a U.S. constitutional issue of Federalism.

It's a Federalism issue that Mr. Lawyer had a right to have his State legislature make that decision in the first instance as a matter of Federalism, but also--

Unknown Speaker: I think you've answered the question, Mr. Shapiro.

Mr. Shapiro: --Thank you.

Unknown Speaker: Thank you.

Mr. Taranto.

Argument of Richard G. Taranto

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

The equal protection holding of the district court should be affirmed, we suggest, because there's ample evidence to find, under this Court's recent decisions, that race did not predominate over, did not subordinate other districting principles in the design of plan 386, and the Court should find no Federalism problem here because the district court, acting only after giving the legislature an opportunity to convene, then properly allowed authorized State officials to resolve the serious Federal claim here by proposing a lawful districting plan, giving appellant an opportunity to challenge the lawfulness of that plan--

Unknown Speaker: Did the court below ever enter an order saying, and I hereby give 60 days or 90 days or something in which the legislature can act, or did he just accept somebody's statement that the legislature wasn't going to be called into special session?

Mr. Taranto: --I think it's a combination of those.

In July of 1995, after this Court decided Miller, there was a status conference at which everyone recognized this claim had now become substantially more risky than it had been before.

Part of what the district court did was to enter an order directing the State parties every 30 days to file a piece of paper in the court saying whether the State legislature would be convened to address what was now recognized to be a serious Federal claim.

That--

Unknown Speaker: What had not yet been adjudicated to be an unconstitutional district.

Mr. Taranto: --That's right.

Unknown Speaker: It's uncontested, is it not, that the legislature had no opportunity, after this Court had determined that the district was unconstitutional and therefore could not be used, to adopt on its own a new district?

Mr. Taranto: This Court... the court did not determine that plan 330 was unconstitutional.

Unknown Speaker: So why should the legislature adopt a new district--

Mr. Taranto: Because--

Unknown Speaker: --unless and until the court does that?

Mr. Taranto: --Because I think the legislature, represented by the Speaker here and the President of the Senate and the Attorney General, was fully aware that there was a serious risk of invalidation.

Unknown Speaker: But legislatures don't enact new legislation just because there's a serious risk, and some of the members of the legislature did not think that these individuals had the authority to commit the legislature to a whole new districting plan.

Mr. Taranto: Well, I don't think there's any thing in the record--

Unknown Speaker: There's a letter in the record from one Senator, isn't there?

Mr. Taranto: --That letter was not in the record.

It was rejected because it was improperly filed, and had that issue ever been joined, which it has never been joined, there is plenty of evidence that we would have submitted had the issue ever been raised, to support the authority.

Unknown Speaker: No, I think--

Mr. Taranto: That authority has not been questioned.

Unknown Speaker: --I think there is a serious burden on whoever is taking the word of a couple of members of a State legislature that the State legislature as a body concedes to redistricting for the State.

I think there's an enormous burden to show that that representation that they can speak on behalf of the legislature is true, and even if there is nothing else in the record, I cannot imagine approving a Federal judge's acceptance of the Majority Leader's statement just on its face.

Mr. Taranto: It was not simply submitted on its face.

Exactly the same statements were made to the Florida supreme court after preclearance was denied to the original plan that the legislature would not convene, and therefore judicial action was going to be required.

Unknown Speaker: I'm not talking about the statement that it would not convene.

I accept that.

I'm not surprised that it would not convene.

Its prior plan was still constitutional as far as it knew.

I'm talking about the assertion that I and one other person have the authority on behalf of the entire legislature of Florida to agree to redistricting of the State.

That's an extraordinary assertion.

Mr. Taranto: Your Honor, I don't think it's extraordinary.

I think State parties are defendants in Federal courts all of the time.

It is a matter of State law what authority they have through whoever the party is to settle litigation.

We've cited in our brief a number of authorities to show that the Florida authorities, including the Attorney General and the State parties, the State legislative parties, did have that authority, and that has never been contested here.

The district court here took great care to assure itself that it was not allowing itself to be used to usurp authority.

Unknown Speaker: Well, I think it is one thing to settle litigation.

That is, to agree on behalf of the legislature that the State will not oppose the judicially... the judicially imposed districting.

That's one thing.

But what is being asserted here is that this is not judicially imposed districting, that this is districting that was, in fact, expressing the will of the Florida legislature, which to my mind is an important thing if the prior district was never declared unconstitutional.

Mr. Taranto: I think what's going on here is that there is... by the time the summer of 1995 comes around there is a very serious Federal challenge.

Authorized State officials I don't think are required or should be stripped of the authority to resolve that litigation voluntarily as other defendants can resolve their Federal claims.

That seems to me to turn Federalism principles upside down.

Consent decrees are routinely... customarily, as this Court said in Maher v. Gagne, entered without liability findings against State defendants and it would, I think, strip them of an important authority--

Unknown Speaker: Would the State parties, as you understand State laws, have had authority to concede that the Senate-approved plan... that the legislatively approved plan was unconstitutional?

Mr. Taranto: --Would have had authority, yes, as... litigating authority, absolutely.

Unknown Speaker: They did not make that concession, however.

Mr. Taranto: They did not make that concession.

That's right.

And the issue--

Unknown Speaker: You--

Mr. Taranto: --The issue in the district court was never pressed whether, had Judge Tjoflat's view prevailed that the court had agreed that a liability judgment had to be entered, whether we would have accepted that as a condition to the entry of the remedy.

That issue was simply never presented.

Unknown Speaker: --Well, frankly, looking at the series of maps, it didn't strike me as terribly important if we were to say the district judge should have found the plan 330 unconstitutional before deciding which plan to adopt, and if it went back, the court could probably make that finding.

It is a most unusual-looking district--

Mr. Taranto: When I--

Unknown Speaker: --and chances are the court would say plan 330 was unconstitutional, therefore I have to adopt a plan, and the plan I'm going to adopt is 386.

Mr. Taranto: --When I say that the issue was not joined, the State appellees are prepared to accept and were prepared to accept back in November 20... November 20, a judgment entering a finding of liability without conceding the constitutional issue.

It was not pressed at the point, and not necessary, so we would accept an affirmance under Judge Tjoflat's route.

What we do think is that this district, the 1995 district, is constitutional under this Court's standards, and all of what I think this Court said last term in the Bush case and the Shaw case indicates that there is a variety of evidence that bears on that question.

Here, the evidence is partly what there is, and partly what there isn't.

What there isn't is any block-by-block separation of races.

What there isn't--

Unknown Speaker: Well, if there were a party, as there appears to be here, to the proceedings below who didn't consent, is that party entitled to an evidentiary hearing before the district court says yes, I'm going to go with 386?

Mr. Taranto: --Absolutely, and he got it.

He was invited to put on evidence.

The reference to--

Unknown Speaker: Did the court say this is not an evidentiary hearing?

Mr. Taranto: --Absolutely not.

He's taking one quote--

Unknown Speaker: That's wrong?

Mr. Taranto: --That's wrong.

Unknown Speaker: That's not in the record?

Mr. Taranto: That is not in the record.

He's referring to a statement at the end of the November 2 status conference in which the Justice Department attorney said, I'm a little confused, Your Honor, about how you want to handle the hearing that's coming up.

Do you want us to put on oral evidence?

And the judge said, I suppose somebody, some judge here wants to hear oral evidence, and what happened was of course that all of the affirmative evidence of the State was put on in writing.

What happened then was that Mr. Lawyer was invited several times, put him on the stand and cross-examine him.

Ask him what his instructions were.

Ask--

Unknown Speaker: And the court never said this will not be an evidentiary hearing?

Mr. Taranto: --Never said this will not be an evidentiary hearing, and at the hearing--

Unknown Speaker: Counsel here has just misrepresented flatly that the statement--

Mr. Taranto: --He's taking one quote that was addressed to the Justice Department lawyer--

Unknown Speaker: --Did the quote say this will not be an evidentiary hearing?

Mr. Taranto: --No, and I don't even think that the quote as he quotes it says it.

Unknown Speaker: Well, in any event his client was offered a chance to cross-examine.

You know, most people would think of that as an evidentiary hearing, I gather.

Mr. Taranto: Absolutely.

He said that... the man who sat down with the computer, he has said in writing what he did.

Put him on the stand.

Ask him what his instructions were, what your data were, did you use race as a proxy for, or disproportionately... do you have more racial data than nonracial data, as in the Texas case?

Did you try to draw things block-by-block?

What's your information about what's inside the district and what's outside the district?

Do the people who live along the coast own boats?

Are they the same socioeconomically as the people who live between the freeways here?

Unknown Speaker: Did the court indicate--

Mr. Taranto: None of that was done.

Unknown Speaker: --Did the court indicate in this hearing that there would be any restrictions on the matters as to which Mr.... the appellant could inquire?

Mr. Taranto: Yes.

The one restriction that was pressed by Judge... Chief Judge Tjoflat was a restriction about asking... about putting the Justice Department attorney on the stand and that, I think, is actually a perfectly proper discretionary evidentiary ruling.

There is a general rule that says you don't make a lawyer a witness in the case absent compelling need.

Before you've examined the man who drew the district, before you've examined the State officials who actually negotiated, you couldn't possibly show a compelling need, and there was no showing of that sort by appellant.

Appellant was allowed to submit statistics, allowed to submit a different plan, allowed to submit his own maps, some of these maps... he was invited to put on any evidence he had and under, I think, this Court's decision in Local 93, it is very clear that once the other parties to the case agreed on a decree, that couldn't... that by itself couldn't adjudicate his rights, but he had an opportunity to adjudicate his claim that this district was unlawful.

And I think this district cannot be found unlawful.

It is not a safe minority district.

It is... geographically and economically shares a real community of interest.

There's plenty of evidence to that effect.

There... this is not a district that had the kind of process flaws of either being dictated by the Justice Department... this was negotiated in a wideranging discussion, including appellant's coplaintiffs who after the fact came in and said, this is not a district that is race-based.

Unknown Speaker: Mr. Taranto, I'm prepared to accept your analysis as far as whether the district, had it been adopted by the legislature, would be unconstitutional.

My problem with this case is, I think it's a serious matter to say that when the Florida legislature as a whole has not been put on notice that its existing districting is unconstitutional, and has not been given an opportunity after that notice to itself draw a district... which might have been like this, but then again it might not have... it isn't enough for me that this district be constitutional.

I also would like it to be the district that the voters of Florida wanted to the extent that the Federal court could have given them an opportunity to select it.

Mr. Taranto: Your Honor, I don't agree with that rule, because I think that the proper Federalism rule in this context is one that leaves it to State law what officials have the authority to engage in what kind of settlement of litigation, and that's what is undisputed here.

These State officials--

Unknown Speaker: Mr. Taranto, is there anything in the decree that would prevent the Florida legislature today from redefining the district?

Mr. Taranto: --No, not at all.

Appellant is free to contact any Senator or--

Unknown Speaker: Is there anything in the record indicating objections on the part of legislators to this action?

Mr. Taranto: --The following is either in or was attempted to be gotten in the record.

There was this one letter that Justice Scalia referred to from one Senator who sent a letter ex parte to each of the three judges, one of which was returned under the order of the court, and he said I don't think the Senate can represent... can speak this way in litigation.

Otherwise, there is nothing on that issue.

There is a public comment from the former Senator at this hearing, the former Senator of this district, objecting to the plan.

Unknown Speaker: Was there an inquiry by the court?

Did the court... on what did the court base its assurance that it had the authority to accept this as the will of the Florida legislature?

Mr. Taranto: Well, several things.

The briefing that was submitted in support of the plan, the particular... I think the fullest brief was by the United States... cited the State statutory authority as interpreted in various decisions giving the Attorney General the authority to resolve litigation.

There's an affidavit in the joint appendix from the Speaker of the House citing the House rule that specific--

Unknown Speaker: So you didn't even need the Senators.

It would have been enough to have the Attorney General?

The Attorney General could redistrict the State, or could agree to it?

Mr. Taranto: --I think as a matter of Florida law that is probably correct.

I think as a district court is being asked to enter a decree that resolves a serious claim, and puts in place a new plan subject to any change that the legislature wants to make, it needs to inquire into all the circumstances.

It's a harder case if the House and the Senate both came in and said, we disagree about what should be done.

That's not this case.

Here, all relevant State authorities are speaking with the same--

Unknown Speaker: No... there was that statute.

Now, what else was there besides the statute that gave the Attorney General authority?

Mr. Taranto: --Florida... a Florida decision, in particular the Abramson decision, which we cited in our brief, that says State agencies can violate their State statutes when necessary to settle a serious claim against them.

There is the--

Unknown Speaker: I don't see the relevance of that.

There was no State agency here, was there?

Mr. Taranto: --Well, the State as a party itself is... I think the form of the question is, could it change its State statute by voluntarily settling through the Attorney General a serious piece of Federal litigation?

I think the Abramson decision under Florida law is supportive of that.

There is the affidavit of the Speaker citing and attesting to the authority under the House rule, and then there was a series of representations I think two or three times in which the attorney for the Senate was asked by the court, are you sure that you really have authority to be representing the Senate here and he said, yes, I'm absolutely sure.

I'm absolutely sure.

And had there been a contest about that, there would have been still more evidence in the form of petitions.

Unknown Speaker: Well, is this a matter, though, perhaps of Federal law?

This Court seems to have indicated its position that a district court, before drawing its own plan to replace one that appears to be invalid, or has been found to be invalid, should give the State legislature an opportunity to address it.

Now, could we mean, as a matter of Federal law, that the full legislature should have an opportunity to draw up a plan--

Mr. Taranto: I--

Unknown Speaker: --and that we don't accept the notion that, pursuant to settlement authority, the Attorney General can come in and say, speaking on behalf of the State, we accept this?

Mr. Taranto: --I think that the legislative opportunity was given over the course of several months.

I don't think there was any doubt about--

Unknown Speaker: But it was not given within the context of a finding that plan 330 was invalid.

Mr. Taranto: --That's right, but the price of that rule would be to be... to insist that States in voting rights cases may never voluntarily resolve their claims.

In fact, they do on a number of occasions.

There's a consent decree in the Johnson v. DeGrandy case in--

Unknown Speaker: Well, I can certainly understand that a State and this Court might be willing to accept the notion that the attorneys on behalf of the State could agree that the former plan was unconstitutional.

Now let's go from there.

Is it nevertheless a matter of Federal law that the full legislature be given an opportunity, following that, to adopt a plan?

Mr. Taranto: --Well, I think it is a matter of Federal law that an... a proper opportunity to be given.

I think it's also a matter of Federal law whether there should be a rigid rule saying, you have to have, in this one class of cases, an adjudicated violation.

I think that that, in fact, strips States of an important authority that all other litigants have and doesn't--

Unknown Speaker: Well, of course, the concern expressed by this Court in saying there should be such was a concern on behalf of the States that the Federal court shouldn't intrude and take upon itself the job of drawing a legislative district without finding a good reason for it, to wit, invalidity of what the legislature had put its task--

Mr. Taranto: --But I think--

Unknown Speaker: --its hand to.

Mr. Taranto: --I think it is also a good reason that the Federal claim is very serious, that there is a real... a real risk of the litigation.

It's the same good reason that supports consent decrees without liability in all kinds of other cases against States, including--

Unknown Speaker: Well, this wasn't a consent decree, of course, because we have a petitioner here who didn't consent.

Mr. Taranto: --Insofar--

Unknown Speaker: I mean, it wasn't a consent decree.

Mr. Taranto: --Insofar as the State is concerned, though, it is a consent decree.

It's a consent decree between the four other plaintiffs and the State appellees and the other defendants, and by the way, the reason that is plain in this record for why the legislature was not going to convene has nothing to do with whether there had been an adjudicated violation.

It has to do with a series of political problems in the State that I think Judge Merryday referred to in the October 26 hearing that a whole series of important, contentious vetoes are triggered for override the minute the legislature convenes, and that was not going to happen.

I don't think there was any... that it would have made any difference had there been an adjudication.

The same thing would have happened: thank you for the opportunity; we're not going to do it; we think that this ought to be resolved here.

The only difference, therefore, that we're talking about in this regard is whether this declaratory judgment that plan 330, the predecessor, is invalid, a different... a declaratory judgment that can't possibly make a difference to appellant, who's already had that plan eliminated by court order.

Unknown Speaker: So your position is that, as far as the State legislature and the State itself is concerned, that counsel had a right to waive any finding of unconstitutionality, and they did so, and the State had a right to waive any opportunity to redraw a district, and they did so.

Is that your position, in essence?

Mr. Taranto: Yes, Your Honor.

Yes.

Thank you.

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Thank you, Mr. Taranto.

Mr. Gornstein, we'll hear from you.

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

Our position is that the settlement plan is constitutional, and that the district court did not violate any principles of Federalism in approving it.

On the constitutional question, I wanted to make three points.

The first is that the district court applied the correct legal standard in judging the constitutionality of the proposed plan, that it correctly drew from Miller the principle that a plan is subject to strict scrutiny only when a challenger can show that race predominated in the design of the district.

The second point I wanted to make is that district court findings of predominant motive are governed by the clearly erroneous standard of review, so that the district court's finding in this case that District 21 was not predominantly motivated by racial considerations is subject to review in this Court only for clear error.

The final point I wanted to make on the constitutional question is that the district court's subsidiary findings show that its ultimate finding on predominant motive is not clearly erroneous, and those findings are that the district is sufficiently regular by Florida standards to avoid any suggestion that race predominated, that the district includes a genuine community of interest, and that the district affords to any candidate, without regard to race, the opportunity to be elected.

Now, those findings are all supported by the record and are together sufficient to support the district court's ultimate finding that race did not predominate.

On the Federalism question, we think it was entirely appropriate for the district court to resolve the litigation without making a formal adjudication based on the State's consent.

It would... it is one of the principle reasons that parties enter into settlements, is to avoid a formal adjudication, to avoid findings of liability.

Unknown Speaker: Well, but how can it do so as against somebody who didn't consent, to wit, the petitioner here?

How can it avoid some opportunity to have evidence put on and conduct a full inquiry into the validity of plan 386?

Mr. Gornstein: It certainly can have... is required for there to be an inquiry into the validity of 386.

What there was not required was an inquiry into the validity of 330.

Unknown Speaker: Well, but the appellant is in the position of suggesting that there be redistricting, or that the old district be approved, and faces, as the court faces, a difficult task in determining what are legitimate criteria for districting?

What are community interests?

What are legislative preferences?

And it seems to me that the court must exercise its discretion to have before it and to have available to the parties the legislative policies, the legislative determinations as to what legitimate district criteria are, and by not referring this to the legislature and accepting too quickly, perhaps, the representations of State officials, the court and the appellant were deprived of that data, that body of guidelines that are necessary to make appropriate and legitimate districting determinations.

Mr. Gornstein: Well, I think that the legislature did... had ample opportunity to convene, and to legislate a plan if it had wanted to.

It was faced with more than a very serious claim under Miller, and I think everybody in the legislature must have been aware that the Florida supreme court's plan was extremely vulnerable, and still it did not convene in legislative session, and instead what it did is, its authorized representatives, the Speaker of the House and the President of the Senate, are authorized to conduct litigation, and they negotiated a settlement.

Now, the... that settlement says that it shall only--

Unknown Speaker: Your basis for that is?

You can give me no citation of Florida law, at least as far as the Senate is concerned.

Mr. Gornstein: --That's correct.

That was strictly on the basis of a representation made.

That was the determination made.

Unknown Speaker: And on the basis of a representation of one person, the--

Mr. Gornstein: Well, it was--

Unknown Speaker: --The ability of the Senate to participate in redistricting of the State is disregarded by the court.

I'm... I'm worried about that.

I--

Mr. Gornstein: --I... to go on to what the legislative opportunity was here, there were then negotiations.

Nothing prevented the legislature during that entire time that negotiations were ongoing to intervene, convene, and submit a plan.

Then there was a settlement agreement presented to the district court, and that settlement agreement says that this shall only remain into... in effect unless and until the legislature formally enacts a different plan in compliance with Federal and State law, still.

Now, there was remedial hearing held in November.

The district court did not approve this until March.

There was a long period of time in which the legislature knew that if it did nothing there... the district court had before it a proposal that it could resolve at any time to resolve this litigation.

Still the district court did nothing, and it has done nothing since to change the plan even though the settlement itself says that it only remains in effect unless and until the legislature formally adopts a different plan in compliance with State and Federal law.

Unknown Speaker: --Do you agree that Mr. Shapiro erred in stating that the court below at its hearing on 386 said it would not be an evidentiary hearing?

Mr. Gornstein: Let me break that down into two parts.

There is the prehearing before the remedial hearing, and then there is the remedial hearing.

Let me address the prehearing first.

An inquiry was made by the Department of Justice, do we have to submit live evidence or can we introduce it in other ways, and I will quote from that.

Unknown Speaker: This is all people sitting around in the judge's chambers, perhaps, or in open court?

Mr. Gornstein: It's a pretrial conference, and I'm not sure whether it was an open court or not, but I think it probably was.

Unknown Speaker: Are you going to read from the record?

Mr. Gornstein: I am reading, and this is page 31 of the hearing from November 2, 1995, and I don't have the record cite to that.

I apologize for that.

But the presentation that the proponents of the settlement agreement are to lead off with:

Is it the court's contemplation that it be evidentiary in nature?

Should we be prepared to put witnesses under oath?

I think Mr. Hill might have mentioned that he thought it might suffice simply to have lawyers present the plan, but if a full evidentiary presentation is preferred, we would be prepared to do that.

It is a matter of figuring out what the court's preference is so that we can prepare accordingly.

The answer comes, I assume there are some judges somewhere who simply enjoy hearing evidence.

No.

Now, I take that to be a response that the proponents did not have to put on live evidence, that they could rely on the attachments.

I don't take that to be a preclusion of the appellant or anyone else who would have wanted an opportunity to present evidence at that hearing to do that, and I think when we get to the evidence... now, this is in the joint appendix at page 185, at the remedial hearing.

The bottom of the page, Judge Tjoflat says, at the very bottom, Mr. Hill has summarized in effect what is in the record.

There are affidavits in the record.

If you want to examine Mr. Guthrie you're free to do so, or call any witness you want.

I think it was quite clear at the remedial hearing that there was a full chance to put on evidence for the appellant.

Now, if the appellant didn't think... had misunderstood that he was... and thought he didn't have that chance before, he could have said something about that.

He could have said, look, I didn't think that I was going to get that chance.

I need more time.

He didn't say anything like that.

Unknown Speaker: Mr. Gornstein, maybe you can explain something to me about this record, because it does seem that in the beginning the plaintiffs, everybody was trying to settle this.

Everybody agreed that the plan was vulnerable under... the old plan under Miller, and there was the stipulation that I read, and then there seemed at some point there was... this harmony that prevailed about, let's stipulate, let's mediate, broke down, but it's not clear to me how that happened.

Mr. Gornstein: Well, I think Mr.... the appellant in this case was not satisfied with the results of mediation, and--

Unknown Speaker: But going into mediation, everybody was on board.

Mr. Gornstein: --Yes, with the idea that it would be a good idea to mediate.

Yes.

I think that the rule that there should be no precondition, that there... it will always have to be a liability finding is extremely important in facilitating settlements, and it would disserve the principles of Federalism, we would suggest, to make the States the only parties who could not settle cases without either a formal adjudication or an admission of liability, because when an admission of liability is required, that is going to discourage in many cases voluntary compliance in... with the law.

It is going to discourage States from entering into settlements, because there are consequences to admissions of liability, so that the value of voluntary--

Unknown Speaker: Attorney's fees, I suppose, for one.

Mr. Gornstein: --I think that that would certainly dictate the result of attorney's fees, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Wisconsin v. New York - Oral Argument

Fri, 09 Jan 2009 14:49:45 +0000

Case:

Wisconsin v. New York

Media File:

94-1614_19960110-argument.mp3

Related Transcript:

1995_94_1614_argument.xml

Transcript:

Argument of Drew S. Days, III

Chief Justice Rehnquist: We'll hear argument first in No. 94-1614, Wisconsin v. the City of New York, Oklahoma v. the City of New York, Department of Commerce v. the City of New York.

General Days.

Mr. Days, III: Thank you, Mr. Chief Justice, and may it please the Court--

The true total population of the United States is unknown and perhaps unknowable.

At every 10 years for the last 200, the United States Government has been making the best effort possible to count every person it could in compliance with Article I, section 2, clause 3 of the Constitution.

The 1990 census was no exception.

By all accounts, it was the most well organized and most thorough census in history, accounting for 98.4 percent of the population.

Since at least 1790, people informed about the census taking process--

Unknown Speaker: If the true population is unknown, how can one be sure that the most recent census accounted for 98.4 percent?

[Laughter]

Mr. Days, III: --Well, it's an estimation, Mr. Chief Justice.

It's the best we can.

I think everybody has recognized that there's no such thing as a 100 percent accurate census, and that's very much bound up in this case.

Since at least 1790, people familiar with the census taking process have realized that the process does not locate everyone in the country.

In fact, in 1790 George Washington and Thomas Jefferson were convinced that the population of the new nation would be 4 million, and they were not persuaded otherwise when the census came in at 3,890,000.

But since at least 1940, the Census Bureau has recognized that there's something called a differential undercount, that is, that certain minority groups, certain racial groups are undercounted, not captured by the census to the same degree as non minority groups.

In this case the responses... the respondents contend that a statistically adjusted alternative to the actual count should have been adopted by the Secretary of the Commerce because of its alleged superior ability to correct for this differential undercount.

The Secretary, however, declined to do that, relying upon the actual count because he believed that it provided a more reliable basis for apportioning Representatives among the States, which after all is the primary purpose of the census, and he did not believe it promised to cure the differential undercount in any event.

The district court upheld the Secretary's decision.

On appeal, however, the court of appeals determined that the Secretary, by failing to adopt the statistically adjusted alternative, did not make... and I quote... a good faith effort to achieve the objective of equal representation for equal population and remanded the case to the district court where the Secretary was going to be required to show that his decision was essential to the achievement of a legitimate governmental objective in order to avoid a declaration of unconstitutionality.

We're here seeking reversal of the judgment of the court of appeals on remand with directions of entry of judgment for the petitioners because we submit that the Secretary's decision, following a 200-year tradition, was within the range of options afforded by the Constitution to the Secretary and that what the court of appeals did was failed to show the proper level of deference to the Secretary's decision that he is entitled to in carrying out his responsibilities with respect to the census.

One of the first things that the court of appeals failed to do was recognize the broad delegation that the Constitution gives to Congress and Congress in turn gives to the Secretary of Commerce in carrying out the census process.

Article I, section 2, clause 3 says that the Congress shall conduct the census in such a manner as they shall, by law, direct.

And Congress by statute says that the Secretary may conduct the census in such form and content as he may determine.

These are very broad delegations to both the Congress and to the Secretary.

In conformity with his powers under statute and under the Constitution, the Secretary of Commerce made three decisions.

The first was to put distributive accuracy, that is, the ability to allocate population among the States so that apportionment of Representatives among the States can be carried out in a responsible fashion.

He was going to use that as the principal focus of his analysis in comparing the actual count and the statistically adjusted count.

His second determination was that the statistical adjustment had to be shown to be superior with respect to distributive accuracy if he were going to use that instead of the actual count.

And the third was, after great deliberation and analysis, the Secretary decided that the adjusted count was not superior to the actual count and, therefore, he went with the tradition of 200 years and made the actual count the official census of the United States.

Unknown Speaker: General Days, is it clear or does the Government concede that the use of statistical estimates is permissible, let alone that it's mandatory?

I mean, the--

Mr. Days, III: Yes.

Unknown Speaker: --text of the Constitution, as I read it, doesn't... does not say, you know, that there will be an estimate of the number of citizens.

It talks about actual enumeration.

It doesn't even use the word "census".

It says actual enumeration.

Do you think that that could be complied with by Congress saying, well, we think the population of the country overall has increased 5 percent and, therefore, we think every State... chances are every State has increased more or less 5 percent?

Close enough for Government work.

Could they do that?

[Laughter]

Mr. Days, III: Well, Justice Scalia, I think the approach that you were just describing was in fact what the Framers engaged in when they came up with Article I, section 2, clause 3.

It was an estimate.

And the interpretation of actual enumeration--

Unknown Speaker: Because they didn't have an actual enumeration, but what they called for was an actual enumeration.

Mr. Days, III: --That's true, but I think that what the term actual enumeration really suggests is that the Framers wanted to leave open to the Congress and later to the Secretary of Commerce the ability to rely upon developments with respect to nose counting or head counting.

But I think one can say about the term "actual enumeration" that there has to be a good faith effort by the Congress and by now the Secretary of Commerce to count bodies, to find people.

And, therefore, a totally synthetic census I think would be contrary to the constitutional objective.

Unknown Speaker: But going further, General Days, and using this PES adjustment, at least the district judge, McLaughlin, was confident that that was an appropriate way.

He said, if I were free to decide on my own, that's what I would use.

And he had a footnote, and I wanted to ask you particularly about that.

He said, in light of recent improvements in statistical tools, that the use of the adjustment in the next census is probably inevitable.

So, my question is, has the Government... it's now 1996.

There must be some planning for the next census.

Mr. Days, III: Yes, there is, Justice Ginsburg.

Unknown Speaker: So, what is the Government's current view on that, the propriety of such an adjustment?

Mr. Days, III: Justice Ginsburg, I don't think any definitive decision has been made, but I don't think that there's any plan to conduct a synthetic census, that is, not going out, as has been the case for 200 years.

Unknown Speaker: That wasn't my question.

My question was after you do that.

Mr. Days, III: After you do that.

Well, I think that the plan is to use some sampling, but I don't think that there is any plan to use a PES approach at this point.

I don't think there have been any final determinations.

Unknown Speaker: But there was no sampling in 1990.

There was no sampling that was used.

It was the enumeration that was used and then any adjustment was considered not sufficiently reliable.

Mr. Days, III: That's correct.

There is ongoing experimentation and study of various statistical forms of adjustment.

In fact, Secretary Mosbacher encouraged the Census Bureau, after he decided in July of 1991, to continue to experiment and do research on the whole idea of statistically adjusted censuses.

But as I was saying, I don't think there's any determination at this point to do a PES in the way that was suggested in this lawsuit and is the subject of the debate between the respondents and us.

Unknown Speaker: Do you know what was the source of the trial judge's confidence that the use of an adjustment after the enumeration would be inevitable?

Mr. Days, III: Well, I'm not certain, Justice Ginsburg, but I think that after he heard 13 days of testimony from experts of the highest caliber--

Unknown Speaker: He was punchy.

[Laughter]

Mr. Days, III: --He may have been punchy, but I think he also got the sense that the statistical science was moving forward and there would probably be the ability of the Census Bureau to rely more heavily than in the past on this.

After all, we have seen a progression in 1980 that was an effort by the Census Bureau to look at what was called a post enumeration program, not a PES but a PEP, and it was decided that that was not sufficiently robust or reliable to use.

In 1990 we've moved another step, and I think he was simply suggesting that science and time move on without any definitive understanding of exactly what might happen.

Unknown Speaker: You know that's another lawsuit, though.

Right?

I mean, this one will decide whether you must use statistical estimates and the next one will decide whether you may use it.

I assume somebody will have an interest in saying that you can't do it next time around, if you do it.

Mr. Days, III: Well, that may well be but, Justice Scalia, if we are successful to the extent that we would like to be in this suit, we think there would be a cutting back on challenges to determinations made by the Secretary of Commerce in this regard.

If appropriate deference is shown to the Secretary in making these decisions, which are myriad, in coming to a conclusion as to what should be done with respect to the census, what types of adjustments should be made, then I don't think that we have to experience what was the case after the 1980 census in which there were 50 lawsuits that... over 50 lawsuits that weren't concluded until 1987.

Our principal point is that there are some types of challenges that deserve to be in court when there's an indication of intentional racial discrimination, when the Secretary of Commerce wants to hold a decennial census every 15 years rather than every 10 years, or where it's clear that the Secretary is not trying to count anybody.

Those may well be appropriate matters for courts to consider.

But what the respondents have really invited the courts to do in this case... and certainly the court of appeals seems to have accepted the invitation... was for the courts to take sides in a statistical dispute among statisticians and demographers about the propriety of a statistical adjustment.

We do not think that that's the type of dispute that properly belongs in Federal court.

Unknown Speaker: What--

--Would you go--

--What do you say is the applicable standard that we should employ in determining whether the Secretary's decision is consistent with the constitutional goal of equal representation?

Mr. Days, III: Justice O'Connor, certainly that's the way that we would describe the standard.

We think that applying it in this particular case, looking at the three decisions that I just mentioned, insofar as the Secretary is relying upon distributive accuracy as the principal objective, it seems to us that that's consistent with the constitutional language and the goal of equal representation, that that's what the Constitution has in mind how does the Congress and the Secretary of Commerce go about figuring out how Representatives should be allocated among the States, apportioned among the States.

That's perfectly consistent with the constitutional language.

And when we talk about the need for the statistical adjustment to be superior to the actual count, we think that that is consonant with but not dictated by the text and history of the Constitution.

After all, what the Secretary of Commerce is doing or was doing in 1990 was relying upon experience that the Census Bureau had gained ever since marshals went around in 1790 from door to door asking people who lived in their households.

That's what the Secretary was doing.

It may not be that the Secretary has to do precisely what was done in 1790 or 1980, but there has to be some approximation and that's exactly what was going on here.

Unknown Speaker: You're saying in response to Justice O'Connor's question that the Secretary gave an accurate interpretation of the Constitution.

I took it the thrust of her question was what standard should the Court use in assessing the adequacy of his determination.

Mr. Days, III: Well, I--

Unknown Speaker: I assume your answer would be that there would be rational basis--

Mr. Days, III: --That's right.

Reasonableness, and although the district court here used arbitrary and capricious, we think that that's about as far as the Court should go, but we would argue for a more deferential standard, one that apparently eluded the court of appeals in this case.

Unknown Speaker: --Would you take the position that it would satisfy the standard, at least in the absence of the kind of extraordinary circumstances like evidence of intentional undercounting, discrimination, and so on... would you take the position that it would satisfy the standard for the Secretary to take the position as a matter of principle that because all of these adjustment techniques ultimately involve kinds of value choices and are therefore politically manipulable, that it would simply be safer to go with the kind of garden variety actual enumeration, to the exclusion of adjustments as a matter of principle, to avoid the risk of political manipulation?

Would you go so far as to say--

Mr. Days, III: Yes, yes.

I think the--

Unknown Speaker: --if he bases his decision on that principled reasoning, that satisfy rational basis regardless of what arguments might be made that this technique would be helpful and that technique might not be?

Mr. Days, III: --Yes, I think the Secretary could do that.

That's consistent with the constitutional tradition, the history.

It's rational.

Of course, the Secretary could balance off those considerations, as he did here and went through a list of eight considerations, and decided, after looking at all of those, that adjusting was not the right thing to do.

Unknown Speaker: I think he may come regret being so open to the various options for estimation--

Mr. Days, III: Well, Justice--

Unknown Speaker: --which he hasn't been in the past.

Mr. Days, III: --Well, Justice Scalia, I think that a new Secretary of Commerce came in and found himself faced with a lawsuit and felt that he would make a good faith effort to try to sort through this and hear what the experts had to say and evaluate it.

And after going through an administrative process that produced 18,000 pages of administrative record and had 650 comments from outsiders and spent a great deal of time looking at this, he came to the conclusion that he did.

One of the most troubling things for us about the court of appeals decision is that it seems to want to assimilate wholesale the rigid standards of the Karcher decision into an evaluation of disputes over the census.

Unknown Speaker: Of the what?

Mr. Days, III: The Karcher.

Unknown Speaker: Karcher?

Mr. Days, III: Karcher v. Daggett where, in effect, there has to be mathematical equality.

And as this Court mentioned in Montana, although it may be common sensical in some ways to seek a precise mathematical test within each State, when you try to apply that same standard to the Nation as a whole, the common sense force of that becomes quite illusory.

The court of appeals certainly recognized that there were differences between the problems that the Federal Government faces with respect to the census and those that States confront, but did not give, in our estimation, a proper weight to those considerations.

After all, unlike a State, when we're talking about the reapportionment of Congress, there are certain constraints, three major ones.

There has to be at least one Representative per State.

There has to be not exceeding one Representative for every 30,000 people, and the district boundaries may not cross State lines.

These in and of themselves make it very hard to imagine that there is any ability to achieve mathematical equality.

But the court of appeals, nevertheless, said that the Secretary had to make a good faith effort and found that the Secretary had not made a good faith effort under these circumstances.

Unknown Speaker: Is there a way if in fact you did an actual enumeration, i.e., you went out and counted people, and you also thought that the inner cities were being undercounted because people couldn't find everyone... it's hard for the--

Mr. Days, III: Yes.

Unknown Speaker: --Is there a way in a system of actual enumeration to do better at counting the people in the inner cities that's a practical way?

Mr. Days, III: Yes.

Well, I think that this 1990 census reflects probably the most forceful and dedicated effort to do that in history.

There was an effort before the census was started to identify households.

Municipalities and States were given an opportunity to challenge the list.

They were able to do that afterwards.

There were special get out the census count campaigns specifically targeted to hard to count populations around the country.

That's why I think the ultimate census, although, Mr. Chief Justice, we don't know whether it's exactly 98.4, by all estimates it's 98.4.

We're talking about missing 4 million people approximately in a population of 248 to 253 million, which is a pretty good record.

But let me say in closing something about this differential undercount because it has really driven this lawsuit, and I think the Secretary reflected his concern about this, as well he should have been concerned.

And I think all of us are concerned.

But what he established was that the statistical adjustment could not show that there would be reliable distributive accuracy.

What that means is, if there's not distributive accuracy at the State level, one doesn't know where to place the minorities who are presumably undercounted.

It's not clear whether one puts the so called undercount groups in New York or South L.A. or other parts of the country, and that can produce great distortions.

If one looks at the adjusted count's impact on New York City, for example, New York State gained population under the adjustment.

May I finish this comment, Mr. Chief Justice?

Unknown Speaker: Yes.

Mr. Days, III: Gained population but it lost share.

That is, it lost its ranking relative to the other States in the Union.

We think for these reasons the court of appeals judgment should be reversed and the case remanded for the entry of judgment in favor of petitioners.

Thank you very much.

Unknown Speaker: Thank you, General Days.

General Doyle, we'll hear from you.

Argument of James E. Doyle

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

The people of the State of Wisconsin stand to lose a seat in Congress to the State of California, which is no longer even pursuing its claim because the City of New York and the other respondents seek to engraft on the Constitution certain statistical procedures about how to take the census over which even statisticians disagree.

Unknown Speaker: Do you agree that the individual voters who claim their districts have been undercounted have standing to bring this suit?

Mr. Doyle: We do not agree with standing in the... in apportionment.

We believe that that standing belongs to the State, not the individual voters, as it does in the Karcher case in which you can actually assess what your proportional share of the voting statistic is.

But in the case of apportionment to the State, we believe that belongs to the State.

As in Montana and in Franklin v. Massachusetts, both of those claims were pursued by the States that stood to lose a seat in Congress if it had been... if the procedure had been adopted.

In this case, California pursued its claim in the district court, was... did not appeal the district court's ruling against it, and we believe the State of California is bound by that judgment.

Unknown Speaker: Do individual voters then not have the standing because the States necessarily supersede their interests?

Mr. Doyle: In our view, it is in this case the States' interest and the individual voter does not have the standing.

But let me emphasize in this case California's case was brought State ex rel. for the people of the State of California by the Attorney General of the State.

That's how the case was brought.

So the Attorney General was bringing it not on behalf of the corporate entity of the State of California, but was bringing it on behalf of the people of the State of California.

And he... and California did not appeal the judgment of the district court.

Unknown Speaker: Why doesn't an individual voter have standing on the theory that if there are more Representatives for that voter's States, the ratio of Representative to voters will be more favorable and, therefore, the voter, as well as the State, has a stake?

Mr. Doyle: The apportion... in my view the apportionment right, the right to a certain number of seats in Congress does not convert into the same kind of statistical how many Representatives do I have, what share of a Representative do I have in Congress.

And there is always going to be wide--

Unknown Speaker: Well, they are conceptually different but they are related because the ratio will depend on the apportionment.

So, it may be that the voter is not bringing in a technical sense an apportionment claim.

The voter is bringing a variety of person to vote claim.

But why doesn't the voter have standing to do that?

Mr. Doyle: --Well, because as I said, I believe it's the State's right.

But let me emphasize this case.

The voters have... the Attorney General was representing the people of the State of California, and certainly the voters of New York do not have any standing to claim that Wisconsin should transfer a seat in Congress from Wisconsin to California.

The only practical result of this statistical adjustment, as it was later corrected... the only practical result of this statistical adjustment, as it was later corrected is that one seat in Congress will be transferred from Wisconsin to California.

There is--

Unknown Speaker: What about Federal funding that's based on population and so forth?

Isn't that an injury?

Mr. Doyle: --Federal funding is not a constitutional issue.

There is no... the question before this Court is whether there is a constitutional violation.

You have no... no individual has--

Unknown Speaker: Well, doesn't that show injury?

Mr. Doyle: --Not if there is not any showing of purposeful, intentional discrimination.

There is no constitutional right to per capita receipt of Government largesse.

There's no right that a citizen in Wisconsin has to get equal number of dollars from the Federal Government that a citizen in Illinois gets.

It is... it may be a statutory claim, perhaps reviewable under the APA, but it is not a constitutional claim.

The only constitutional--

Unknown Speaker: Well, it's not a claim, but does it suffice to have the nexus of injury for him to bring the claim?

Mr. Doyle: --It may have the nexus for injury to bring a claim, not the constitutional claim having to do with apportionment, which is the claim before this Court, but a statutory claim.

It may have the nexus of injury for standing.

I don't think it would be a successful lawsuit, but it may be the nexus for standing of a non constitutional claim.

Unknown Speaker: But would you have a different basis for challenging the census as it is used under some of these statutes than you would have for challenging it in this lawsuit which does not relate to a statute but to the constitutional prescription?

Mr. Doyle: I think you may well have a different basis.

You may well have... even under the Franklin case, you may have a Administrative Procedures Act lawsuit.

I don't know--

Unknown Speaker: So, you could come out with different results?

You'd have a census, and you'd have two different censuses, one of which would be valid for apportionment purposes and the other one of which would be valid for all of the statutory apportionments?

Mr. Doyle: --That is true currently, Your Honor.

There are various census numbers that are used for the distribution of Federal funds.

There's a mid decennial census that is taken that is not a constitutional census that is used for purposes of various Government programs.

Unknown Speaker: No, but assume the statute just says according to the census figures.

Is it possible that that would mean one thing for statutory distribution purposes and something else for purposes of apportionment?

What is the census?

Mr. Doyle: If the statute said the official census--

Unknown Speaker: That's what it says.

Mr. Doyle: --then we believe that you could conceivably have two different results, although I think it's unlikely.

But the issue before the Court is one of whether or not in this case there has been--

Unknown Speaker: Oh, okay.

So, we could have another lawsuit about it.

We can do all this over again when somebody comes up with a statutory apportionment that requires it to be apportioned according to the census.

And you say they can distinguish whatever we say in today's case because this only related to the official census.

Mr. Doyle: --My understanding of the statutes having to do with disbursal of Federal funds is you would not have that lawsuit, but perhaps under a hypothetical statute, you might well.

You will have many, many lawsuits coming before you constantly if... before the courts if the Second Circuit's decision is adopted.

If in the year 2000 the census is harmful to the State of... the statistical estimation is done and the statute is harmful... the census is harmful to the State of Wisconsin, we may well be before the Court if the Second Circuit decision is there, arguing that if you use different post strata, if you had grouped Wisconsin with different States, if you had had a different way of imputing the people who you can't match, that we would be... have a seat in Congress.

And under the Second Circuit's decision, not only would we have a claim, but by simply coming forward with a claim that we can do the census better than the Census Bureau did, count more people, we would have heightened scrutiny applied to that claim as well.

And if I might address the question about whether the adjustment of the census itself would be constitutional, the statistical estimation, whether it could constitutionally be done.

There is a significant constitutional problem with that.

The Fourteenth Amendment, section 2, requires that the census be done by a counting of the people in the States.

The way the Wisconsin number would be arrived at, if you accepted this statistical estimation, is that our count would not only be because of counts in our State, but through this post strata system by which people are counted in Ohio and Indiana and Illinois and Michigan, our numbers are adjusted basis... based on counts that are made in the post strata in other States.

In fact, in the post... in the PES only I believe 169 blocks of Wisconsin, about 5,000 people, were included in the post enumeration survey.

And our numbers were being estimated based on that.

Unknown Speaker: General Doyle, then are you disagreeing with General Days who said, in answer to the question might the sampling technique or some statistical adjustment be used, yes, it might?

That's the Secretary is considering.

And there was also the prediction, the forecast, that we wouldn't get a lot of lawsuits because if we gave proper deference to the Secretary, then that would be that, as long as it met a reasonableness test.

But I think you are now suggesting that the Secretary doesn't have discretion.

Mr. Doyle: I am suggesting that the Secretary does not have discretion to do the kind of statistical sampling that was done in this case.

There--

Unknown Speaker: Any kind of statistical sampling?

Mr. Doyle: --No.

There may well be other kinds of statistical sampling that... I'm not a statistician... that may serve the purpose, but I do not believe that you can arrive at the census of Wisconsin based on counts of people that you have made in Illinois, Indiana, and Michigan, which is what--

Unknown Speaker: Because that is inconsistent with the term "actual enumeration".

No.

Counting the whole number.

Mr. Doyle: --It's inconsistent with actual enumeration, but particularly it is inconsistent with the Fourteenth Amendment, section 2, which says counting the whole number of people--

Unknown Speaker: I see.

Mr. Doyle: --in the States.

You count people in Illinois.

You say, oh, there has been an undercount in Illinois.

You group Wisconsin with Illinois, and our undercount's percentage is based on counts of people that are made in other States.

Unknown Speaker: And I take it, you have a... sort of a footnote to that argument too because I gather Wisconsin claims that it made unusual efforts to get out the census so that the very fact that you tried to do a good job would be a further reason, in fact as well as in principle, to say you shouldn't compare us with another State that might not have made that effort.

Mr. Doyle: Well, that's correct, Your Honor.

Wisconsin worked very hard.

And let me say that there's a suggestion that the majority States... that there's a majoritarianism issue here.

Every State has an interest in seeing that everybody in that State is counted, minority and non minority citizens alike.

When a minority citizen in Wisconsin is not counted, my vote... my representation is as depreciated as that minority student... that minority citizen who is not counted.

So, every State has an interest in seeing a full count made.

Unknown Speaker: Thank you, General Doyle.

Mr. Doyle: Thank you, Your Honor.

Unknown Speaker: Mr. Rifkind, we'll hear from you.

Argument of Robert S. Rifkind

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

Let me say at the beginning that the court of appeals did not hold that Secretary Mosbacher's decision was unconstitutional.

It only held, as I understand it, that the district court had employed an inappropriate standard when it found that the Secretary's decision, though mistaken, must be sustained because not so far beyond the pale of reason as to be arbitrary and capricious.

There should be no question about it.

The district court found that the Secretary's decision was wrong, but not beyond the pale of reason.

Unknown Speaker: Well, on what basis did the district court go about finding that the Secretary's decision was wrong, as you put it?

Mr. Rifkind: The basis was, first of all, 13 days of trial and the consideration of the evidence submitted there, but I think very largely on the basis made of concessions made by the Secretary.

The Secretary never found... never found... that the adjustment was less accurate than the original count.

Unknown Speaker: Perhaps we should refine what you mean by saying that the district court found the Secretary's decision was, quote, wrong, close quote.

Mr. Rifkind: What the district court said... and this is in the Wisconsin appendix at page 77... the Secretary has conceded that the objective criteria used to measure the adjusted counts show a greater numeric accuracy at the national level and that the Census Bureau estimates of distributive accuracy marginally favored the adjusted counts.

Unknown Speaker: How does that add up to being wrong?

Mr. Rifkind: It found... it adds up to being wrong if the standard is, is the corrected count more accurate than the original count, and--

Unknown Speaker: So, you say it's simply a factual inquiry that's up to the district court to decide whether one count was more accurate than the other, regardless of what the Secretary chose to do.

Mr. Rifkind: --I believe, as I believe the Second Circuit did, that where fundamental constitutional rights are impacted, the court must conduct a more searching inquiry than merely beyond the pale of reason.

Unknown Speaker: How could that be the test?

I mean, if in fact the true cause is that people who live in inner cities and are hard to get to are undercounted, people who live in inner cities and are hard to get to also have more diseases and also eat less well.

So, in fact, a census system that adjusted upwards by 1 percent according to diet would be more accurate.

Yet, a system like that couldn't possibly be a more lawful system because you'd produce bizarre results in trying to apportion Representatives among the States.

So, I don't see how that could be the test as opposed to the test being are we going to do our apportionment business of Representatives in Congress better.

Mr. Rifkind: Absolutely.

Unknown Speaker: Well, then as soon as you say that, you run into their argument about, you know, who gets the extra Representative, and there are a thousand different ways to do it, and it's undercounted here and overcounted there, and we don't know the true causes of the undercount, et cetera.

Mr. Rifkind: Well, the... I think the key factors here are that the Census Bureau, the expert agency, to which normally I would suppose considerable deference was due, had spent a great deal of time trying to figure out the solution to the problem, after an enormous amount of effort and a very professional effort had decided that it had figured out the solution, or at least a significant amelioration of the problem, and I must say, Justice Breyer, repeatedly advised the Department of Commerce that there was no other way.

Unknown Speaker: You said to whom a great deference is due, and as soon as we get into a great deference is due, they win.

Mr. Rifkind: Well, what I'm... I guess what I'm saying is a decision that overthrows, as the Secretary did twice... overthrows the recommendation of the expert agency, when the Secretary himself obviously claims--

Unknown Speaker: Well--

Mr. Rifkind: --expressly claims no expertise, it raises a question about who--

Unknown Speaker: --Are you saying, Mr. Rifkind, that a political appointee Secretary, who is authorized by Congress to take a particular action, if he rejects the recommendations of his permanent staff, is therefore very likely of being held arbitrary and capricious?

Mr. Rifkind: --I do not believe that arbitrary and capricious is the appropriate standard.

Unknown Speaker: Well, what--

Mr. Rifkind: What I... I guess what I'm trying to say is where you have... where the Court has decided... and I thought this Court had decided... that it would look searchingly at Government action that undermines fundamental constitutional rights, that under those circumstances, when one considers the whole matrix of factors, the fact that an expert agency had made a recommendation and that the Secretary of Commerce had overturned it would lead a court to at least inquire did he have very good reasons to overturn it.

Unknown Speaker: --And what is the Government action here which you say undermines fundamental rights?

Mr. Rifkind: The promulgation by the Secretary of counts, in which persons are in very large numbers omitted not uniformly across the country but, as we have known since 1940, in those places in which minorities reside... those minorities and the people who live next door to them, as the General said, are undercounted when it comes to drawing districts.

That was established by Professor Kohl at Princeton in 1955 and is conceded.

Unknown Speaker: But that assumes that they're entitled to some different form of count than they got.

Mr. Rifkind: They are entitled to a different form of count if there is an available count that doesn't have that consequence.

Unknown Speaker: I don't think you're right on that.

I think the Secretaries and... the Congress is given great discretion by the Constitution.

Congress in turn confers great discretion on the Secretary, and the idea that you simply decide all over again in the district court whether the Secretary was right or wrong I think is quite unsupported by any case.

Mr. Rifkind: The... there is a tradition that goes back to the beginning of the century of Bureau autonomy.

The remarkable thing about the 1990 census is it is the first occasion on which the Secretary of Commerce has undelegated to the Director of the Bureau the authority that the Director of the Bureau has always had in this respect.

Unknown Speaker: Do you claim that the Secretary did not act in good faith in putting out the actual count census and relying on that?

Mr. Rifkind: I believe that the Secretary did not pursue in good faith the zealous pursuit of equality and accuracy which should be the overriding command.

Unknown Speaker: Is it clear that some kind of statistical substitute for an actual count is permissible under the Constitution?

Mr. Rifkind: I think... let me be clear.

No one has suggested, not the Census Bureau and not we... no one has suggested a substitute... that is, disregarding the enumeration entirely.

The only question is whether it can be improved by statistical means.

I don't hear the Government, the Solicitor General, or anyone else suggest that, except for Wisconsin perhaps, that one could never use a correction of statistical nature to improve the quality.

And, of course--

Unknown Speaker: Well, the Attorney General of Wisconsin is here saying the Constitution doesn't permit any statistical adjustment.

Why do we think it does?

Mr. Rifkind: --I think Wisconsin in that respect is wrong.

I think--

Unknown Speaker: Why?

Mr. Rifkind: --the Solicitor General agrees with me on that, and I will say why.

I think that when the Constitution uses the word "enumeration", it means to render in numbers.

Unknown Speaker: It doesn't just say enumerate.

It says actual enumeration.

Mr. Rifkind: I take the word--

Unknown Speaker: Actual enumeration.

And you want to say that since you cannot do a perfect actual enumeration, you will take the actual enumeration and adjust it upward or downward by statistical means.

I don't think that that... it isn't clear to me at least that that constitutes an actual enumeration.

Mr. Rifkind: --I take it the word "actual enumeration" in context there differentiates it from the attribution--

Unknown Speaker: The imaginary enumeration.

[Laughter]

Mr. Rifkind: --contained in the... well, in the proceedings clause of the Constitution which says for the first 3 years we'll allocate Congress the following way.

But the fact of the matter is--

Unknown Speaker: That was not... Mr. Rifkind, that was not an issue that was aired below since it was accepted by the Government--

Mr. Rifkind: --It was.

Unknown Speaker: --that the Secretary spent all the time considering this.

So, that isn't an issue.

But I was interested in your answer about this fundamental right, and we know the result.

It was also known that an absolute veterans' preference in Massachusetts would mean that of... the upper echelon jobs, and the vast majority would be reserved to a group overwhelmingly male.

And we have Washington v. Davis.

How can you argue that even though you know that the undercount will disproportionately affect minority members, that for that reason you get this highest level of scrutiny when this Court has rejected that over and over again?

Mr. Rifkind: I'm not sure that one gets it because it disproportionately affects minorities.

I would have thought one got it under the line of cases following Baker v. Carr.

One gets it because when we require of States that they proportion quite precisely equal numbers for equal... equal representation for equal numbers, we don't inquire about their intent, and we don't listen to 200 years of history as an explanation for why they got there because--

Unknown Speaker: But then General Days has told us that you can't compare the national census with apportionment one person/one vote within a State, and General Doyle tells us that what we have to concentrate on, the only thing at the constitutional level before us, is taking away from Wisconsin one seat, adding to California one seat.

That's what he said is before us, nothing else.

Mr. Rifkind: --I don't think that's all that's before us, although that is before us.

Unknown Speaker: Why... explain then.

The Secretary said I'm concentration... concentrating on distributional accuracy within the United States.

The result of doing this PES will mean that California gets another seat, Wisconsin gets one seat less.

Now, why is anything more than that involved?

Mr. Rifkind: Well, we all know... and the Congress has commanded... that the census also be available for the States to use in drawing congressional districts.

Unknown Speaker: If they so will.

If they so will.

They're not required to.

Mr. Rifkind: I think it would be a temeritous State that declined to use the census counts to draw its congressional districts.

After Karcher at least, I think there's a grave doubt whether they're free to do that, but assuming they are, they will certainly be exposed to an array of litigation much larger than has been suggested.

And as a practical matter, this is fairly traceable to what the Secretary does.

As a practical matter, we know the Secretary is commanded by section 141 to give to each of the States the most accurate data they can so that they can draw their congressional districts, State districts, State legislative districts.

And since 1962, this Court has required the States to do just that, to draw equal populace districts.

Unknown Speaker: Mr. Rifkind, why couldn't the State say, we take the enumeration and then for our own purposes of apportioning, we will take this adjustment?

Mr. Rifkind: No State in fact is equipped to do that.

Unknown Speaker: But... because they don't have the numbers to do it?

Mr. Rifkind: Only... in this case we have the numbers because we forced the Government to give them the numbers.

Unknown Speaker: Yes.

Mr. Rifkind: But even so, most States have constitutional requirements of their own and statutes of their own that say you use what the Secretary of Commerce delegates... sends to you pursuant to section 141 of the code.

And--

Unknown Speaker: Well, then maybe each State should redecide how that statute should be and say that we want to have the enumeration plus the statistical adjustment.

And then it's a question for the State's political process.

Mr. Rifkind: --Well, that may be.

As a... in this decade that doesn't solve the problem.

We have a set of data and we have an alternate set of data.

The Secretary chose the data that the experts in the agency, that the Bureau told them were the less reliable, that missed 4 million or 5 million people nationally, that undercounted blacks, Hispanics, Asians, and so on.

Unknown Speaker: And you told me the practical result on the State level, but I'm looking for the constitutional infirmity.

Mr. Rifkind: Well, I think there's at least a suggestion in Karcher that the States are required to use the census counts unless they can prove... prove... that they have something better, at the very least.

Unknown Speaker: Mr. Rifkind, your whole argument seems to rest on the assumption that we're dealing with two sets of figures which are alike in every respect except one is more accurate than the other, and that in fact is not so, is it?

We are, in fact, dealing with a set of figures which are derived, one of them by actual count, the other one by estimate, which depends upon a series of value judgments in order to determine how to make the estimate.

So, we are not comparing a big apple against a little apple.

We are comparing two different kinds of vegetables, aren't we?

Mr. Rifkind: Justice Souter--

Unknown Speaker: I mean, isn't that so?

Mr. Rifkind: --With respect, it is fundamentally wrong.

Unknown Speaker: All right.

Mr. Rifkind: And I'd like to address that.

The census is full of estimation.

The original enumeration, the enumeration, is full of estimation.

Every Director of the Bureau that I have known of... and we quote several of them at page 9 of our brief... has said the notion that there's no estimation in the enumeration doesn't understand what the actual way we count people is.

Unknown Speaker: Would it be fair then to say that the difference between these two figures is a difference on the... a difference depending on the amount of estimation versus actual enumeration which in fact is involved in reaching the number?

Mr. Rifkind: There is--

Unknown Speaker: By definition, there's... I presume there's more estimation in the method that you want used or you wouldn't want it used.

Mr. Rifkind: --There is more estimation involved, although in 1980--

Unknown Speaker: Okay.

Mr. Rifkind: --the explanation involved which involved imputing the existence of people and their numbers by a very crude device was challenged in Orr v. Baldrige in a dispute between Florida and Oklahoma because it shifted a Congressman, and the Census Bureau prevailed.

Unknown Speaker: Okay, but we have a different--

--What was the estimation?

I'm not sure.

What was that imputation?

Mr. Rifkind: My recollection is that in... that the process there involved is when a house was seen to be... you couldn't find the people in the house and the neighbors didn't know how many people were there and the postman didn't know how many people were there, they said, we know it's not vacant, so we'll attribute the numbers in this house to be equal to the numbers of people in the adjacent house.

And with that device, which I describe as crude, but better than nothing, they added, as I recall, 790,000 people to the census which shifted a Congressman from Indiana to Florida.

Unknown Speaker: Okay.

Mr. Rifkind: And in previous decades, they've added millions of people by similar estimating processes.

Unknown Speaker: Now, may I go back to the comparisons of these two estimations, one of which is more ambitious than the other?

If we assume that the two figures are properly comparable so that we can say one is better than the other, we have to assume something about the judgments that are made in deciding how to make the preferable estimate.

We have to say, yes, those value choices were good value choices.

Isn't it the case then that you have a problem in your argument, just taking it on its own terms, by virtue of the fact that, if I recall correctly, the head of the Census Bureau said, I wouldn't have done it this way, but the Secretary's choice is within the realm of reason?

In other words, it could... a reasonable person could make a different set of value choices from the ones which I personally prefer.

It would still be within the realm of reason.

Isn't that a difficulty for your case?

Mr. Rifkind: I can see it.

Dr. Bryant said, reasonable men can differ, reasonable persons can differ.

Unknown Speaker: And that's why you have to insist on the heightened scrutiny standard because otherwise you lose.

Mr. Rifkind: Well, I think there's a risk of that.

I did--

Unknown Speaker: And a high risk.

Maybe a high risk, yes.

Mr. Rifkind: --I must say I don't envy the position Dr. Bryant was in when she had to utter that statement.

She was standing next to her boss, and it's a common thing for non lawyers to say when they're standing next to their bosses.

[Laughter]

Unknown Speaker: Okay, but we don't have any finding from the people... the judge who heard the testimony that in fact it's not to be believed.

Mr. Rifkind: I agree with that, but I think if you read the report... and it's in the joint appendix of Dr. Bryant... you read the report of the Census Committee, you read those sorts of materials, you come away with the feel that she felt very emphatically that they had solved the problem.

And with good reason because--

Unknown Speaker: Well, she felt very emphatically that they had come to one, and indeed in her view preferable obviously, solution to an assumed problem of undercounting.

But to say that they had solved the problem is truly to say they had come up with one solution to a problem and there were other solutions, and it was within the realm of reason to say that in fact the cure might be worse than the disease.

Mr. Rifkind: --No one at the trial and not the Secretary said that the enumeration was better, whatever that means, than the correction.

What the Secretary said in effect was because sampling is involved, because sampling always brings in an element of what the statisticians call sampling error, random error, there's an element I don't know quite as much about, and because I don't know, I'm going to prefer what is on its face the worst mechanism.

That's essentially the ground rules for decision that the Secretary put out.

And I think whether that's an appropriate ground rule for decision where constitutional rights are involved is an appropriate inquiry for a court.

Unknown Speaker: Mr. Rifkind, isn't that quite an exaggeration to say I'm going to stay with the worst method?

He said, I'm going to stay with the method we have unless I am convinced that something is better.

And even Judge McLaughlin didn't say the Secretary was wrong.

What he said was if I were the decision maker, I would probably... not certainly... I would probably have ordered the adjustment.

That's the furthest he goes.

Mr. Rifkind: No.

I think he goes further actually, Justice Ginsburg.

He says the court is satisfied that for most purposes... that is appendix 59... for most purposes the PES resulted in a more accurate count than the original census.

And he says, the Secretary has conceded that the objective criteria used to measure the adjusted counts show a greater numeric accuracy at the national level and that the Census Bureau's estimates of distributive accuracy marginally favor the adjusted--

Unknown Speaker: For most purposes, but that's the crucial phrase there.

What the Secretary did not concede was that this adjusted method was more accurate for the central purpose of distributing Representatives among the States more accurately.

Mr. Rifkind: --That's just--

Unknown Speaker: For that purpose, he thought that the actual enumeration was better without statistical adjustment.

Isn't that... wasn't that in essence what he said?

Mr. Rifkind: --My understanding of what he said is that he never actually says that the adjustment is not better, or to put it differently, that the enumeration is better for that purpose too, Justice Scalia, than the adjusted counts.

What he says is, since I can't tell--

Unknown Speaker: That the other one is better.

Mr. Rifkind: --then my rule of decision tells me I rule that way.

Unknown Speaker: Is that unreasonable?

That's... I mean, suppose there are two things causing undercount, A and B, and California has all A and New York has all B. And what we do is we adjust on A and we don't adjust on B. We might discover all the seats go to California, New York loses.

But the reality is that they shouldn't shift at all.

And so, obviously, the simple fact that you get a more accurate count doesn't solve the apportionment problem.

Indeed, all statistics has that problem, doesn't it?

You have to figure out how to draw the boxes and what your causal theory is before you do the sampling.

And as soon as you get into that, you know it or you don't know it.

If you know it, why not just send out the census takers?

If you don't know it, it can be manipulated.

Mr. Rifkind: I think it's unreasonable for at least three or four reasons.

First... and I think this is something that courts are quite as capable of addressing as the Secretary of Commerce.

Everyone knew going into this that what was going to go on was the substitution to some extent of random error, the error derived from sampling, as against what the statisticians call but we also call bias.

And the Secretary has decided here, among other things, that he prefers bias to random error.

And I think the courts are entitled to say that's something one ought to look at very closely because the bias that the Secretary preferred over random error is consistently, persistently decade after decade falling in the same places.

It doesn't float around and it has a very distinct sense of unfairness.

There are a lot of respects in which we use random methods.

When we pick a jury or when we pick a draft, we use random methods because there is a heightened sense of equity in it, and I think that's a relative consideration.

But secondly, the Secretary had agreed with us in the stipulation which this case produced on a mechanism that was going to be employed as part of the census.

At the time he did that, he had before him the machinery that the Census Bureau had prepared.

The decision he finally came to, after... and everyone agrees that the post enumeration survey was excellently conducted.

The Secretary doesn't dispute that.

So, the decision he finally came to was a decision he could have come to before he started because he knew that a measurable, foreseeable amount of random error was going to be interjected into the affair.

I think that's inconsistent with, if you like, it's not in good faith with, the stipulation that he entered into at the beginning saying we're going to conduct this post enumeration survey and we're going to conduct it as part of the census under the ground rules, under the tests, under the standards that the Bureau has set forth.

At the end of the day, it met all those tests.

Suddenly there was a change of grounds of decision, a change of the rules of decision, if you like, and I think that is suspect and requires further attention from a court, or at least I think that's what the Second Circuit was saying.

Unknown Speaker: Mr. Rifkind, are you... you are relying at bottom on a constitutional claim.

Mr. Rifkind: Absolutely.

Unknown Speaker: Under the census clauses of the Constitution or the Fifth Amendment as well?

It's not clear to me.

Mr. Rifkind: Well, maybe that's because it's not clear to me, but I think the answer is both, Your Honor.

I think we rely on what underpins the line of decisions, Wesberry and everything since Baker v. Carr, and I think those come both from the... according to their respective numbers--

Unknown Speaker: What is the specific harm claimed?

The change in congressional reapportionment?

Mr. Rifkind: --It certainly includes that.

There was... I should be clear because the Solicitor General questioned this in his brief.

There's extensive testimony in the record uncontested that congressional district by congressional district... and we used the example of California... the number of people uncounted varied directly with the number of minority in the congressional district and, to be frank, varied directly with the number of Democrats registered in the district.

So, there is a close... and the regression analyses that were done on it were very meticulous... a very close and overwhelming--

Unknown Speaker: Is there some claim of harm because of the intrastate districting that results ultimately?

Mr. Rifkind: --Absolutely.

Unknown Speaker: You claim that as well.

Mr. Rifkind: I who live in New York say that whether or not New York is entitled to an additional Congressman, New York City is entitled to a larger share of the electoral power of the State of New York both in Congress and in Albany.

And the same thing is said by my colleagues from Los Angeles who are here, although California--

Unknown Speaker: But, Mr. Rifkind, then we get back to the point that I made before.

That's not because the Federal authorities are compelling that.

That's because the States, so far as this record shows, have chosen that that's the way they're going to do their interstate.

There's nothing that shows that the States could not one by one have picked what you say is the better way of doing it.

They have the numbers.

They could do it.

Mr. Rifkind: --I think in my view in principle that ought to be right.

I think in practice, with all respect, I think it's wholly unrealistic.

Unknown Speaker: But practice... how does the practice rise to the level of a constitutional decision?

We're saying we know that States could do this, but they won't.

Politically they won't.

So--

Mr. Rifkind: No, it's not only politically.

They're not equipped to do it as a general matter, and Congress has required--

Unknown Speaker: --Well, thought you agreed that you got the numbers for them and those numbers, I take it, are not going to be any less available in the future.

Mr. Rifkind: --But they are numbers that until this day had been under the great cloud that the Secretary of Commerce put them under, and that's why I say it would be a courageous State Attorney General in California or New York who said, well, we're going to... the Secretary of Commerce rejected that, but that's what we're going to use in New York.

I think that takes a temerity--

Unknown Speaker: Because New York would violate one person/one vote if it used those?

Do you think that anyone could mount such a challenge?

Mr. Rifkind: --The New York Constitution requires.

Now, you say the New York Constitution could be amended, and I agree with that.

All I'm saying is as a practical matter... and I can't get further than that... it's unrealistic.

I think to put it differently, the claim of the New York City dweller or the Los Angeles... or of Los Angeles or of the Los Angeles dweller is fairly traceable to the action taken by the Secretary of Commerce.

Chief Justice Rehnquist: Thank you, Mr. Rifkind.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Shaw v. Hunt - Oral Argument

Fri, 09 Jan 2009 14:49:46 +0000

Case:

Shaw v. Hunt

Media File:

94-923_19951205-argument.mp3

Related Transcript:

1995_94_923_argument.xml

Transcript:

Argument of Robinson O. Everett

Chief Justice Rehnquist: We'll hear argument next in Number 94 923, Ruth Shaw v. James B. Hunt; Number 94 924, James Pope v. James B. Hunt.

Mr. Everett, you may proceed.

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

I suppose I better do one thing at the outset to maintain the honor of North Carolina.

There was a question about two of the districts in Texas being, I believe, the least compact in the country, and I have here perfect evidence that we have four of the least compact.

Justice O'Connor will remember this map, because it was appended to her opinion in Shaw v. Reno, and the twelfth, I think... the snake... leads the country.

Unknown Speaker: The Court's opinion, Mr. Everett.

Mr. Everett: I'm sorry, Your Honor.

Unknown Speaker: The Court's opinion, not my opinion.

Mr. Everett: The Court's opinion, one which you authored.

I apologize, Your Honor.

But in any event, the Court became aware of the absence of compactness, which leads into another point.

There was a discussion of the difference between narrow tailoring and broad tailoring.

I think we have here the exhibit of no tailoring.

And I'd like to make one other point, just to explain why we are here, and perhaps it reflects a rather naive understanding of the Constitution, of the Equal Protection Clause, but my impression has been that if there were two water fountains over there, one of which said African American, and another of which said, women, and another over here which said male, and said white, and if that in effect was here, with the signs, that I would be perfectly entitled to go to any one of those four fountains and drink the water.

The water would be the same everywhere, but the Court nor other public body, no State, no Federal body could approve racial classifications.

And the reason we're here is because this map reflects a redistricting plan which, in effect, is a racial classification.

That's what this is about.

That map says there are two black districts and there are ten white districts.

Unknown Speaker: Does it say that the people in those districts can drink at either water fountain?

Can they vote both either Democratic or Republican, as they choose?

Mr. Everett: They can vote as they please, Justice Stevens, but on the other hand they are preconditioned in their behavior by the fact that these districts carry a message.

They carry a message for the voters--

Unknown Speaker: The same message your signs carry.

Mr. Everett: --Your Honor?

Unknown Speaker: The same message that your signs carry, I guess, but they actually didn't inhibit.

Mr. Everett: Exactly.

Unknown Speaker: You pick the fountain you wanted to pick.

Mr. Everett: We are saying that these, though, carry a message, and the signs would be impermissible.

This Court did that.

It had these labels... I would certainly be entitled to make a motion and get an injunction and have those signs taken down.

We would maintain by the same token--

Unknown Speaker: I don't know who you'd get it from.

[Laughter]

Mr. Everett: --I would hope at least we could get a majority, but in any event, it would seem to me what we are saying is these signs, these labels should be removed.

Now, in order that there's no question about the status and the standing of the plaintiffs and the plaintiff intervenors, I should note that according to the Court's determination the plaintiffs and the plaintiff intervenors have established... this is on page 110a... have established that they are registered to vote in North Carolina congressional elections and that the challenged redistricting plan assigns them to vote in particular electoral districts, at least in part because of their race.

Which is to say that Professor Shimm is assigned to the 12th District at least in part because of the racial determination.

He is a white fill a person, and on the other hand there are three of us who are plaintiffs who are assigned to the 2nd District because of our race.

We... because our district was bleached.

Now, interestingly enough, and Justice Scalia called attention in the Texas case to an example of what we might refer to as Orwellian doublespeak.

The minority opportunity district I think was the phrase.

Unknown Speaker: Mr. Everett, there is some difference, isn't there, with respect to the standing of the plaintiffs in this case with respect to one district and the other?

Mr. Everett: We would maintain, Your Honor, that due to the ripple effect all these plaintiffs have standing as to all the districts.

Unknown Speaker: Well, but supposing we don't accept the ripple effect, there is some difference, isn't there?

Mr. Everett: Oh, Professor Shimm and Mrs. Shaw are in the 12th District.

The rest of us are in different districts.

None of us is in the 1st District, but the 1st District was constructed by taking the... what would have been the 2nd District and playing around with it and changing the boundaries, so that our position would be that all those... and this is really the rationale, I think, of the court below, that all of us were affected because of the seamless web--

Unknown Speaker: Suppose--

--What about our decision in Hays?

I mean, couldn't the plaintiffs there have made the same argument about Louisiana, that it's a seamless web, and we didn't accept that.

Mr. Everett: --I don't believe they made it, as I recall... I was here at the argument... and I don't think it was articulated in that particular fashion, but our position would be this, Your Honor, as a practical matter.

The 12th District, because of its inner penetration, is essential to the plan.

If you knock out the 12th District there is no plan, and as a consequence, and since Professor Shimm and Mrs. Shaw clearly have standing, it really doesn't make much difference.

The question is before you, is this plan a violation of the Equal Protection--

Unknown Speaker: You're saying that a person who has a right to challenge one district by reason of residence in that district has a right to challenge the entire plan.

Mr. Everett: --I would say, Your Honor--

Unknown Speaker: That's a different argument from the ripple effect.

Mr. Everett: --It's... I would say that in this particular situation, given the inner penetration of the plan, that would be true.

Now--

Unknown Speaker: Including the aspects of the plan that you claim are invalid with respect to other districts.

Mr. Everett: --We would think across the board in this situation, and we would note this, Your Honor, that the... well, I will admit, Cherokee County, over here, up into Tennessee, I'm not really saying that I'd have much standing perhaps to challenge that, but as a practical matter, everything in the middle and the eastern part of North Carolina is so tied together as a practical matter it is one plan.

It is like the unitary school system in the Hays case, which was promulgated from one source.

It's a unitary plan, and we would maintain we have standing.

One thing I would like to call to the Court's attention, and we stress it in our brief because we think it's important.

That is, what was said 2 1/2 years ago when we were here, and what's happened in between.

When I argued the case 2 1/2 years ago the counsel for the State appellee, and this is pointed out in our brief on page 4, said this case is about the legal significance of two facts.

First, the North Carolina General Assembly intentionally created two majority minority congressional districts.

Second, the General Assembly did so for the purpose of complying with section 5 of the Voting Rights Act and of securing preclearance of its congressional reapportionment plan from the Attorney General of the United States.

In response to a question from the Court, the same counsel stated... he's not here this time.

There's a different counsel for the State, but he presumably spoke with authority... there's no dispute here over what the State's purpose is.

There's a dispute over how to characterize it legally, but we're not in disagreement about what the State legislature was trying to do.

Then again, and this is quoted on page 27 of our brief in the footnote, counsel for the State defendant stated to the Court the determining factor in this case is that North Carolina is subject to section 5 preclearance, and then later, section 2 may, depending upon the particular demographics and the situation of the State, require majority minority districting, but once again, that's not this case.

So we were here 2 1/2 years ago thinking the case had to do with whether or not section 5 was involved, and the State put forth what we characterized as the Nuremberg defense.

The Department of Justice made us do it.

The Civil Rights Division made us do it.

They wouldn't give us preclearance.

And I was also here during the argument when the Solicitor General was asked back in April this year about the policy of the Department of Justice, and it seems very clear from the findings made in the Hays case, the original Hays case, from the findings in the Georgia case which you're well familiar with, from everything about it, that just as was said here to this very Court 2 1/2 years ago and just as was admitted in the defendant's answer, they did it in order to get preclearance.

What did they do?

They enacted this constitutional monstrosity, which replaced another constitutional monstrosity but a less aggravated monstrosity.

They did it in order to get preclearance.

So when we left here, or when we got the decision, actually, in summer of 1993, and we read about the gerrymander, what the Court said, racial gerrymander, strict scrutiny, we thought it was a fairly simple case.

Go back... can we prove there's a racial gerrymander?

Of course we can.

This map almost speaks for itself.

Everything else spoke for itself.

The record, the submission in Chapter 7 says the overriding purpose of the State, the State of North Carolina, is to create these districts and to obtain preclearance.

How could it be clearer?

So... but there are some very ingenious counsel on the other side, and then we learned that it wasn't really a racial gerrymander, oh, no, and it wasn't just section 2, oh, no, and it wasn't... I mean, it wasn't just section 5, pardon me.

It was also section 2, and it was also remedying past discrimination.

Very innovative, and moreover, we didn't have... none of us had standing.

Everything, we had all of it.

The State appropriated half a million dollars to put up this defense.

Various people came in to battle us along the way.

Unknown Speaker: Mr. Everett, may I ask you this question?

Do you find something legally or constitutionally inconsistent with the position the last time around, or at least the assumption the last time around that the reason for the configuration was to obtain section 5 preclearance and the reason found here... strike the word reason... and the fact found here that in fact the configuration was a means to comply with section 2?

Are those two inconsistent?

Mr. Everett: Your Honor, I used to teach evidence a couple of times.

We have prior inconsistent statements that are admissible because they intend to impeach.

If that isn't a--

Unknown Speaker: I'm asking you whether they're inconsistent.

Mr. Everett: --Well, I'd say--

Unknown Speaker: One says the motive... the motive the first time was to obtain section 5 preclearance, period.

Assume that.

I'm assuming that.

Mr. Everett: --That's the only question, they say.

Unknown Speaker: And the finding now is that that configuration was necessary and hence justifiable to avoid a section 2 violation.

Are those two propositions inconsistent legally?

Mr. Everett: They are in this context, Justice Souter.

They are inconsistent when it's a question of what the North Carolina General Assembly intended in January--

Unknown Speaker: Well, that may be, but that wasn't my question.

My question wasn't whether they had two different intents.

My question was, if we assume that the intent was in fact to get a section 5 preclearance, and we know from Shaw that that is not adequate, is there anything inconsistent with saying it is nonetheless justifiable now, because in fact it was necessary to avoid a section 2 violation and hence--

Mr. Everett: --Your Honor, let me--

Unknown Speaker: --can be upheld.

Are those two propositions inconsistent?

Mr. Everett: --Let me say in this context they are very inconsistent.

Unknown Speaker: No, they're not.

I mean, the one goes to intent and the other goes to the pure fact of whether it was necessary, not whether it was intended.

Mr. Everett: Well--

Unknown Speaker: So they're not inconsistent.

Mr. Everett: --If--

Unknown Speaker: If they can prove that it was indeed necessary, that there's no other thing you could have done... I think that's a hard thing to prove, but... that no other configuration could possibly have been adopted which would comply with section 2, I suppose if they can prove that, it's certainly not inconsistent--

Mr. Everett: --Justice Scalia--

Unknown Speaker: --with the fact that they intended to do section 5.

Mr. Everett: --Justice Scalia, if they didn't intend to do it, they didn't intend to do it, they can't justify it.

In other words, as I understand it--

Unknown Speaker: That's a different argument, though.

But you're... so you're saying that the only justification at this stage is the justification of their original intent, and we've now... this Court has found that that intent, i.e. conform to... get section 5 preclearance is inadequate, so that's the end of the case.

Is that your position?

Mr. Everett: --That is part of our position, Your Honor.

We think that is--

Unknown Speaker: Well, let me must pursue that for a moment.

Assume... I'm not asking you to assume it's true in this case, but just assume that it is, in fact, reasonably necessary to conform to section 2, are we supposed to ignore, or is a three judge district court supposed to ignore that fact?

Mr. Everett: --Your Honor, if it is a matter of justifying something under strict scrutiny something that is a racial gerrymander, and if the legislature that adopted the racial gerrymander didn't even think about it, then we would maintain that in order to have the integrity of equal protection and to protect the constitutional rights of us voters, yes, that should be disregarded.

Unknown Speaker: Okay.

The case goes back.

The court says, unconstitutional.

Go back and come up with a new plan.

They go back, and they conclude, we'll assume again not necessarily in this case, but we'll assume in the hypo that it is necessary to avoid a section 2 violation.

So they redraw the map, and it looks like the last map.

New case.

May the section 2 violation be considered by the three judge... may the claim that it is reasonably necessary to avoid a section 2 violation be considered by the three judge court?

Mr. Everett: Your Honor, I would not say they are estopped from considering it, or anything of that sort.

What I would suggest is, on the facts of this case, since they said section 5--

Unknown Speaker: No, but I want you to answer my hypo.

Mr. Everett: --Fine.

Unknown Speaker: And I'm not suggesting to you that my hypo is this case--

Mr. Everett: Sure.

Unknown Speaker: --and I'm not asking you to concede that, but on my hypo, may the three judge district court consider the defense, if you want to put it that way, that this is reasonably necessary to avoid a section 2 violation?

Mr. Everett: Two aspects to that.

In the first place, they'd have to be sure there is no fruits of the poisonous tree, there is no carryover from the alleged--

Unknown Speaker: That goes to the, sort of to the facts of the particular case.

May they, just as a general proposition, consider it as a defensive matter that it is reasonably necessary to avoid a section 2 violation?

Mr. Everett: --Your Honor, we're going to take an outlandish position.

We don't believe that under section 2 that's enough to protect it from constitutional--

Unknown Speaker: Maybe it isn't, but maybe... and that then may lead you to claim that section 2 is unconstitutional, or whatever, but is it relevant as a defense?

May the court consider it?

Mr. Everett: --We would maintain that, given the purposes of section 2 as we understand it, that it would not be permissible to use it as a vehicle for imposing two majority minority districts in a--

Unknown Speaker: That wasn't my question.

May the court consider it as an appropriate defense?

Mr. Everett: --We would say no, Your Honor.

Unknown Speaker: So are you saying, then, that a... that the object to avoid a section 2 violation as a matter of law may not be considered as a justification under strict scrutiny?

Mr. Everett: We do not believe, Your Honor, that it constitutes a compelling interest, given the purposes of section 2 and its process orientation, and by the way, there's an excellent discussion of that by Professor Blumstein in his recent Rutgers Law Review paper.

Unknown Speaker: Is the reason for your answer essentially that section 2 is unconstitutional?

Mr. Everett: Our position would be that section 2 as properly construed and narrowed is probably constitutional, but that certainly to use it as a vehicle for compelling majority minority districts is unconstitutional.

Unknown Speaker: How about a voluntary majority minority district?

I think you said you were about to say something some people would consider outlandish.

Are you saying that, that if the avowed purpose is to create a majority minority district no matter how compact it is, if people are honest about that's what they're trying to accomplish, that that's unconstitutional?

Mr. Everett: Your Honor, we say this.

If it is a label of race, they say we want a black district, we want a Hispanic district, and that's the purpose, and that's the label, then that in our view at least, right or wrong, is a violation of the Equal Protection... now, obviously--

Unknown Speaker: Am I right that there are many congressional districts, many State districts across the country where people said exactly that, we want a majority minority district, so on your reasoning, a good deal of the redistricting was unconstitutional.

Mr. Everett: --On our reasoning a good deal of the redistricting that followed the 1990 census was unconstitutional because it is result oriented in a manner of labeling just like labeling the water fountains in my example.

Unknown Speaker: Well, that... would you take that position even in circumstances in which to accomplish the goal, the legislature did not resort to drawing the lines on the basis of race, but rather on the basis of voter registration?

Mr. Everett: If it's a matter of, say, Democrat Republican, that's certainly... if it--

Unknown Speaker: Their goal was admittedly to get a majority minority district, but to achieve it they put in the computer program data about voter registration, Democrat, Republican, Independent, and they drew the districts on that basis.

Mr. Everett: --If the goal is defined by race, then our position is it's impermissible, as, for example, in the case--

Unknown Speaker: You say that cannot be done even if the boundaries are drawn on the basis of voter registration?

Mr. Everett: --If it's voter... I'm not sure I understand exactly, Your Honor, but if--

Unknown Speaker: You get a computer program to draw the boundaries, and you plug into the computer how the voters are registered, Democrat, Republican, independent, Dixiecrat, whatever it might be, and the lines are drawn on that basis.

Mr. Everett: --There's no race there, as I understand it.

Unknown Speaker: The goal was to create a majority minority district, but it is accomplished by using nonracial data.

Mr. Everett: Your Honor, we think the goal is impermissible.

Let me analogize this.

I can see the... well, if you want to have Democrats control or Republicans, or whatever it is, look at the registration of those, you may know that there's a heavy Democratic registration, say in North Carolina where 95 percent of the African Americans are registered as black.

You may know that where there's a 95... a heavy Democratic registration there probably is a very substantial African American population.

So what?

But what I am concerned about, and perhaps this is because of my reading or misreading of the peremptory challenges cases, my understanding is that if I look at a juror, I have a peremptory challenge, and I say, that juror is black, therefore I don't want him in this particular case, or that juror is a woman and I don't want her in that particular case, and I use a stereotype, and I use a classification, that is wrong.

If, on the other hand, as in the Hernandez case where you were dealing, as I recall, with peremptory challenges, I say, this Hispanic may be interpreting for himself or herself the testimony being given, rather than going through an interpreter, then I can challenge him off.

It's... as we view it, and we perhaps take Hirabayashi and the later cases too seriously, but we really take it very seriously that racial classifications are odious and are subject to stricture.

Unknown Speaker: So then you would say the same principle applies to every, whether it's a city council, whether it's any of the hundreds of thousands of elections that if people draw boundaries to a significant extent on the basis of race, I take it, of religion, of ethnic background, of sex, of anything of that nature, that that then will come into Federal court and they will then look and see if significant boundaries in this local city council race, or whatever, a significant number of those boundaries was drawn with religion in mind or ethnicity.

Is that actually what you're thinking?

Mr. Everett: Your Honor, that may sound extreme.

If I take that position--

Unknown Speaker: No, no, that maybe preferable to--

Mr. Everett: --Well--

Unknown Speaker: --saying that you can't do this in the case of a black effort but you can do it in the case of any other effort.

I don't see how you can make a distinction between--

Mr. Everett: --Well, we--

Unknown Speaker: --I agree with you on that failure and difficulty of distinguishing, if that is your position.

Mr. Everett: --Well, Justice Breyer, we do view race as having a special significance.

Unknown Speaker: You mean, you could in fact say they cannot gerrymander or draw boundaries on the basis of race, but you can draw... if the person is... to benefit African Americans, but you can do exactly the same thing for the purpose of benefiting the Jews or the Catholics or any other group in society?

Mr. Everett: No.

We would say that if there is, let's say, a Jewish district, and if Professor Shimm, who is Jewish, is put there because he is Jewish--

Unknown Speaker: Well, I mean, are you distinguishing whether it's a whole district, or part of a district, or what is... I'm trying... what are you distinguishing?

Mr. Everett: --Our distinction is in terms of purpose, very much like the Batson situation, where, if there is a purpose to do it on a racial basis or an ethnic basis or a religious basis or a gender basis, then that is impermissible.

Now, hopefully... hopefully, when this Court makes that message loud and clear that this is impermissible unless it can survive strict scrutiny, hopefully people will get the message and it's not going to happen in that city council, just like now you don't have problems about equipopulousness to the same extent.

Unknown Speaker: Classification on the basis of gender has not been subject to strict scrutiny in the past.

It's been subject to a kind of intermediate or quasi strict scrutiny.

Mr. Everett: Your Honor, Mr. Chief Justice, I leaped over in my enthusiasm into another area of gender, and that is certainly a different--

Unknown Speaker: May I ask you, Mr. Everett, supposing you have a case in which it's perfectly clear that the legislature decided to create two majority minority districts, is there any way in the world in which the plan could survive strict scrutiny?

What factors would enable it ever to survive?

Mr. Everett: --Well, Your Honor, we would think that there would have to be so many circumstances totally different from those in North Carolina--

Unknown Speaker: No, but just hypothetically, what are the kind of factors that would enable... is there any set of facts... your argument is pretty firm, it seems to me--

Mr. Everett: --Well--

Unknown Speaker: --that if we know they wanted two minority majority districts, that's the end of the ball game.

Mr. Everett: --Well, one thing that would be very important is the sort of consideration that was outlined of totality of circumstances in Johnson--

Unknown Speaker: Mr. Everett, I haven't understood everything you've been saying... if your answer to that isn't a clear yes, I don't know what you've been saying.

Mr. Everett: --I--

Unknown Speaker: I thought you've been saying the motivation cannot be racial.

Mr. Everett: --That's it.

Unknown Speaker: And if I set out to create two majority minority districts--

Mr. Everett: That's exactly--

Unknown Speaker: --that's the end of it, right?

Mr. Everett: --I think--

Unknown Speaker: There is no way to get by the strict scrutiny hurdle if that original intent is established, and I don't think there's much doubt about it in this case.

I don't think you need all this funny map.

They wanted to comply with what they thought was necessary to satisfy the Department of Justice, and they created two majority minority districts.

Why do we have to have a trial?

That's really your position, isn't it?

Mr. Everett: --Yes.

Our position is that--

Unknown Speaker: Yes.

Mr. Everett: --race is impermissible.

You can't use it for a purpose... we cannot really think of any situation where it could be--

Unknown Speaker: And really the shape merely confirms the other evidence of intent.

Mr. Everett: --The evidence--

Unknown Speaker: So you take the position that if strict scrutiny is applied, it's fatal in fact, necessarily, that nothing survives strict scrutiny.

Mr. Everett: --As to majority minority districts in almost anything, any situation we can conceive of, if they are created for a racial purpose per se, we believe they cannot survive.

Unknown Speaker: I had--

--What about a case where... I'm sorry.

I had thought that we had indicated that it is possible to survive strict scrutiny if there is a compelling State interest and if the plan is narrowly tailored.

I had thought that's what this Court had said, but you're arguing for something else, it sounds like.

Mr. Everett: Well, Your Honor, I suppose I'm descending from the theoretical to the practical in that we have been unable to conceive of anything, at least in our limited experience, which--

Unknown Speaker: Compliance with section 2 could not be a compelling State interest, or it could?

Mr. Everett: --We would consider that it could not be, for the creation of majority minority districts.

Unknown Speaker: Do you have to take that position to prevail in this case?

Mr. Everett: Absolutely not.

Unknown Speaker: What is you secondary position with respect to this case?

Mr. Everett: Our secondary position is that it is clear there was not a reevaluation of section 2, that the section 5 denial of preclearance tainted everything, that just as the State represented when it came up here the first time, it was a matter of fulfilling the mandate of the Justice Department just as it was in Miller, and therefore this should fall, just as the Georgia redistricting fell.

Moreover, there was no totality of circumstances analysis.

There is no ability to satisfy the Gingles preconditions to whatever extent they still are preconditions.

There is an actual, very overt, mathematically demonstrable error in the opinion of the court that there can be created two geographically compact majority minority districts.

You can tell from this map and from the maps that show the concentrations of black population that it is simply impossible.

The court completely misconstrued the numerical facts, including one of the tables, and when you take all of that together, the section 2 compliance argument is an afterthought.

Unknown Speaker: I have a map here that says plan NEC Shaw II type TGB, Shaw II, map 2--

Mr. Everett: Oh, Your Honor--

Unknown Speaker: --Isn't that the compact one?

Do you know what I'm talking about?

Mr. Everett: --I know what you're talking about.

Unknown Speaker: Why wasn't that the compact, with two?

Mr. Everett: Well, Your Honor, majority black is 50 percent.

The very table that was relied on by the majority below shows 44 percent.

Forty four percent is less than 50 percent, and therefore as a matter of mathematically demonstrable fact, the court was wrong.

They also refer to other examples of geographically compact districts.

Those other districts contain the equivalent of section 12.

Now, if anyone here... some things you can see, and I'm sure all of you all have 20/20 vision jurisdically and otherwise.

You can see that that is not geographically compact.

So they create new concepts, functional... I'm sorry, Your Honor.

Unknown Speaker: Thank you, Mr. Everett.

Mr. Farr, we'll... I think we'll recess and resume at 1:00 p.m.--

Mr. Farr, we'll hear from you.

Argument of Thomas A. Farr

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

Speaking for the plaintiff intervenors, I would like to state what we think is at issue in this case, and what is not at issue.

We do not believe that the constitutionality of the Voting Rights Act is at issue.

We believe that it is constitutional.

Nor do we think that whether compliance with section 2 might, under the right case, serve some compelling governmental interest, that is not an issue in this case.

We think under the right case it may be a compelling governmental interest, so you create a district that would satisfy section 2.

Unknown Speaker: If it can be a compelling State interest in some cases, why isn't it in this?

Mr. Farr: It is not a compelling State interest in this case, Your Honor, for two reasons.

First, there is no evidence in this record that would show that the district adopted... met the Gingles preconditions.

There would be no plaintiff, I think, in the United States would walk into a district court with this map and say these are two geographically compact districts that entitle us to remedial relief under section 2 of the Voting Rights Act.

The other reason, Your Honor, why that is not an issue in this case is because no one in the North Carolina General Assembly believed that they were creating these districts to remedy violations under section 2 of the Voting Rights Act, and it's very clear that what North Carolina believed it was doing, because they said so, they made this statement in their submission in support of Chapter 7 to the Justice Department pursuant to section 5, was that they were creating these districts to respond to the dictates of the Justice Department for--

Unknown Speaker: May I go back to your first reason?

Why does that map bear on the question of whether it was possible to create a compact district, majority minority compact district?

That map doesn't tell us anything about where people live.

Mr. Farr: --Your Honor, I think that there's evidence in this case from which it might be concluded that a majority black district could be created in northeastern North Carolina--

Unknown Speaker: Right.

Mr. Farr: --and that a majority minority district could be created running from Charlotte to the southeastern part of the State.

There's no evidence in this case that two majority black districts that are reasonably geographically compact could be created in this case.

It's not been presented by anyone.

Now, we believe, Your Honor, aside from the fact that the State did not comply with what is stated in Croson and Wygant, that they have to have substantial racism evidence at the time that they adopt a racial based remedy, assuming that they had done that, Your Honor.

The only defense that they have in this case is if the Court adopts the notion that you may place a remedial district somewhere else in North Carolina besides the part of the State where the violation has been proven, and we think that's a very novel concept under every other area of law, and it ought to be a novel concept under section 2 of the Voting Rights Act.

Unknown Speaker: Well, would you--

--Why--

--No, please.

I don't know why that would be.

I mean, if you buy the proposition of racial entitlement, that is, it doesn't matter whether a particular black man has been discriminated against, that the object is the race as a whole has to be made good, why wouldn't that follow?

It doesn't really matter what part of the State you're not properly creating the black district in, so long as you create a black district somewhere.

Mr. Farr: Your Honor--

Unknown Speaker: It's sort of a racial entitlement theory.

It has nothing to do with particular individuals who are being disadvantaged.

Mr. Farr: --Your Honor, we think that this right under the Voting Rights Act is not a right that is enjoyed by any minority in the State of North Carolina.

It is the right to be free from vote dilution, and I believe that Justice O'Connor's concurring opinion in the Gingles case makes it very clear that these cases are very district specific, that you've got to prove the Gingles conditions in the district in which you're trying to show the violation.

And if I might explain a little bit what happened in North Carolina, there is an argument that you could make a reasonably compact majority minority district running from Charlotte to the southeastern part of the State.

This was not done for incumbency protection reasons.

That's undisputed that that's why this was not adopted.

It's the only district that the Justice Department pointed out in its objection letter, and again, as stated earlier, there's no evidence... Justice certainly did not suggest a majority black district.

They suggested a majority minority district.

In running this district up I 85, the district took in the black population in Charlotte, which constituted approximately a third of the total minority population that would have been in existence if we had adopted a majority minority district.

Unknown Speaker: The reason, I take it, is that the specific argument would be that section 2 requires the creation of two districts in North Carolina because, just as you pointed out, one could be done in that part of the State and the other in the other part of the State, and the only reason that they're in a different place is for incumbency protection reasons, and that latter reason has nothing to do with race, and if you say that you can't do that, then you're saying that you can't do it when black districts are involved but you could do it when white districts are involved, and so the latter proposition is an impossible one to maintain.

Mr. Farr: Your Honor, we--

Unknown Speaker: Legally.

Mr. Farr: --We would--

Unknown Speaker: And so I mean, that's the specific argument, so I'd appreciate your addressing that.

Mr. Farr: --Well, we respectfully disagree with Your Honor's position on that.

Unknown Speaker: I'm not taking that as a position.

I'm simply asking you to address it because I think that's the specific argument.

Mr. Farr: Your Honor, we don't think that there's evidence, nor was there ever any intention to say that the State legislature should look at the State of North Carolina and conclude that minorities are entitled to proportional representation in the State of North Carolina.

We believe what--

Unknown Speaker: So the first possibility is, it isn't true that they'd be in violation of the Voting Rights Act.

That would be, I guess, an issue.

But if it turns out that they would have been, is there anything wrong with their having drawn the boundaries solely for incumbency protection, which--

Mr. Farr: --Yes, Your Honor.

Unknown Speaker: --And what's that?

Mr. Farr: We believe, Your Honor, that that would fail the narrow tailoring requirement of strict scrutiny, and specifically, Your Honor, it's these people in this part of North Carolina that had their votes diluted.

They're the ones that have been subject to an injury.

Unknown Speaker: But I thought the point would be that they would not be drawing it solely on the basis of incumbency protection.

They'd be... still be drawing the boundaries on the basis of race, although in order to protect incumbents.

Mr. Farr: That's very true, Your Honor.

Unknown Speaker: But it would still be racial boundary drawing, and your position is that's okay when you're doing it in order to comply with section 2, but it's not okay when you're doing it to protect incumbents, I suppose.

Mr. Farr: Yes, I don't think incumbency protection is a compelling governmental interest, Your Honor, and in fact--

Unknown Speaker: Well, it may not be a... and no, I don't think anybody is claiming that it's a compelling governmental interest, but it is a relevant consideration, as I understand it, under Miller, in determining the extent to which race predominates, because one of the things you ask, the principal question you asked, I guess, is, has race subordinated traditional districting principles?

Now, if one districting principle is incumbency protection, if that as a matter of historical fact is true, that that has been an object pursued over the years, and if that can be pursued, let's say with political data as opposed to racial data which may or may not be a good surrogate for political data, if it's pursued with political data alone, then do you not concede that the boundary can vary from the compact boundary that would satisfy Gingles without flunking the narrow tailoring test?

Don't you concede that?

Mr. Farr: --No, Your Honor, I don't concede that.

Unknown Speaker: Then tell me why not.

Mr. Farr: Well, if I understood your question, you were saying, and Justice Scalia, we believe it's a very difficult case to prove a section 2 violation, and I hope I have a chance to explain that before I sit down, but Justice Souter, we again believe that the remedy must go to the people who have been injured, and if--

Unknown Speaker: No, but you are saying not that the remedy must go to the people who have been injured, but that the remedy must go to all and only the people injured, and no other consideration may play a role--

Mr. Farr: --I think--

Unknown Speaker: --and if you are saying that, I think, you are asking the Court to depart at least in one respect from Miller, because Miller says a consideration as to whether race has subordinated, whether race is predominant, is, has race subordinated traditional districting principles, and if a traditional districting principle is incumbency protection, you are saying, well, you've got to modify Miller to the extent that incumbency protection will never be cognizable here, so I think you're asking for a change in Miller.

Mr. Farr: --Well, I don't believe we are, Your Honor.

Unknown Speaker: Well, why not?

If... and my assumption is incumbency protection can be shown historically to have been a districting objective.

It's one of the things that's considered.

If that is true, that historically that has been an objective pursued, and you're now saying no, you can't pursue it--

Mr. Farr: Yes, Your Honor.

Unknown Speaker: --because that would modify the boundary--

Mr. Farr: Yes.

Unknown Speaker: --then to that extent you're modifying Miller.

Mr. Farr: Well, Your Honor, first you're assuming that incumbency protection is the type of traditional districting principle that the Court was referring to in the Miller case.

Unknown Speaker: Well, is it legitimate or not?

Well, why isn't it?

Mr. Farr: Your Honor, I think there's a great distinction, because when you're talking about political subdivisions or county lines, you're talking about neutral criteria, and I believe that the Court discussed those issues as a frame of reference to show in a case involving circumstantial evidence whether or not you could prove the intent element of the Miller claim.

With incumbency protection that is a far more subjective factor, and Justice Souter, drawing a majority minority district has to be done for a compelling governmental interest, and we would suggest that doing it to protect an incumbent is not compelling.

Doing it to possibly comply with a section 2 violation is, and if you are doing that, you must draw the district where the section 2 violation exists.

Unknown Speaker: Thank you, Mr. Farr.

Mr. Speas, we'll hear from you.

Argument of Edwin M. Speas, Jr.

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

This matter first came to this Court on the granting of defendant's Rule 12(b)(6) motion, and all of the facts of the complaint, of course, were presumed to be true.

The matter was remanded to court for trial, to the district court for trial, and at the trial, extensive evidence was taken by the court.

Among that evidence were specific statements by legislators and the drafters of the map that they intended to draw the 12th District as an urban district.

Demographers told us without any question the 12th District is an urban district.

It is the most urban district created in North Carolina.

Historians told us also that the 12th District is located within the Piedmont Urban Crescent.

Unknown Speaker: What color is the 12th District on the map?

Mr. Speas: The 12th district is orange, Your Honor.

Unknown Speaker: Oh, okay.

Mr. Speas: It is located entirely within the 10 counties that make up the Piedmont Urban Crescent, an area that the historians tell us has historic integrity.

The historians also... excuse me.

The demographers also told us that this area is laced together by interstate highways, that the district is accessible both for voters and their representatives.

All of these factors combined to lead the district court to conclude that this district and all districts provided fair and effective representation for North Carolina citizens, and we think that's very important in this case, because, as this Court has said, the ultimate purpose of redistricting is to provide fair and effective representation for all of North Carolina's citizens, both black and white.

Unknown Speaker: That's what a district court is supposed to sit in judgment of, of whether a particular redistricting scheme provides fair and effective representation?

Mr. Speas: It would seem to us, Your Honor, that those are very pertinent issues for... the issues for the Court to consider in regard to the issues in front of you.

We think--

Unknown Speaker: I mean, it's a nice thing, who could be against it, but I wouldn't want to have to... this is the kind of thing that judges and lawyers are good at doing?

Mr. Speas: --In this case, the evidence was presented that the district does provide fair and effective representation, and the district court found that it does, in fact, do that, so we think it is important, Your Honor.

Unknown Speaker: Is that a test that every redistricting plan and every State must meet, that the particular district provides fair and effective representation?

Mr. Speas: No, Your Honor, but we think in this case that the issue of whether the district provides fair and effective representation is relevant to the issue of standing, is relevant to the issue of whether race was the predominant motive... if race was the predominant motive, you would assume that the district might not provide fair and effective representation for white citizens, and in fact--

Unknown Speaker: Maybe so, maybe not.

I'm not sure there's any correlation between the two.

I... you know, I suppose if we wanted to go to a system in which everybody is represented by his race, I guess that might be fair and effective representation.

I--

Mr. Speas: --But it was fair and effective--

Unknown Speaker: --Where do you get this test?

I mean, I don't see it in any of our cases.

Mr. Speas: --We get it, Your Honor, from your statements that the purpose, the ultimate purpose, the fundamental purpose of redistricting is to provide fair and effective representation.

Unknown Speaker: Well, of course it is, and there are certain subrules that we follow and apply to determine whether that's been done, but we just don't sit in the abstract and decide whether there's fair and effective representation.

Mr. Speas: This wasn't done in the abstract, Your Honor.

Specific evidence was presented that it does provide fair and effective representation.

Unknown Speaker: But I thought it was remanded to apply strict scrutiny, and I'm not sure how that's relevant.

I thought the court below had to decide whether there was a compelling State interest and whether it was narrowly tailored, and I'm surprised you're not talking about that.

Mr. Speas: Well, certainly we do believe that this particular plan meets strict scrutiny.

We also believe that the district court applied a too lenient test to determine whether this was a racial gerrymander subject to strict scrutiny in the first instance.

Unknown Speaker: What was the compelling interest that the district court found?

Was it to comply with the requirements of section 2?

Mr. Speas: With section 2 and section 5, Your Honor.

Unknown Speaker: All right.

Now, with respect to section 2, in District 12, I take it that the westernmost part is Gaston County, am I correct in that?

Mr. Speas: That's correct, Your Honor.

Unknown Speaker: Before this district was drawn, would the black voters in western... that western part in Gaston County have had standing to bring a section 2 vote dilution claim?

Mr. Speas: Yes, I believe a black voter would have had standing to bring--

Unknown Speaker: Oh, you think that there was... that they were then in a district which was compact--

Mr. Speas: --Oh, I'm sorry.

Unknown Speaker: --and contiguous under the Gingles test?

Mr. Speas: I believe that a black voter in North Carolina would have had standing--

Unknown Speaker: No, no, I'm talking about--

Mr. Speas: --to bring a section 2 claim asserting a violation of section 2.

Unknown Speaker: --No, no, based on... based on the voters in Gaston County being unrepresented in a black district.

How would the Gingles requirements comply with, with reference to those voters, just assuming initially a section 2 case?

Mr. Speas: The question under a section 2 case, would there been, have been the potential for the State of North Carolina to created, to have created a geographically compact district to... that would have--

Unknown Speaker: But they necessarily fail that, don't they?

Mr. Speas: --No, Your Honor.

We think that the issue for the State is whether such a district can be drawn.

If it is established, and there is strong evidence for believing that a district can be drawn, then principles of federalism and the discretion the States must have in this area give to the States discretion as to where they will place that district--

Unknown Speaker: So--

Mr. Speas: --so long as it provides fair and effective representation.

Unknown Speaker: --So then the remedy has nothing to do with the initial violation.

That's a very strange doctrine of law.

Mr. Speas: Well, Your Honor, we believe that in this case the evidence is, and certainly the district court found, that there was racially polarized voting within this particular area, or these areas where these districts were created, so it is our position that there is a fit between these particular districts and the section 2--

Unknown Speaker: You must also find, under Gingles at least, that the other factors are present.

Mr. Speas: --Yes.

Unknown Speaker: And you can't just talk about racial polarizing.

You have to talk about compact and cohesive districts.

Mr. Speas: And certainly there's no question, it's unrefuted in this case, that black citizens vote together cohesively.

Unknown Speaker: Two districts... is there not just unrefuted evidence, is there any evidence that two compact black districts, black majority, not minority majority, but black majority districts could have been created?

Mr. Speas: Many different districts were presented to the North Carolina General Assembly.

Some were here, in the southeast, where there's some concentration of black citizens, some were here, in the northeast, where there is a concentration of black citizens--

Unknown Speaker: Could two--

Mr. Speas: --and some were here.

Unknown Speaker: --Could two have been created?

Is there testimony and evidence, and I'd like you to cite it to me, because your opponent contends not, that you could have had a justification for creating one majority black and one majority minority, but that there is no justification on the Gingles standards, even if you're not going to use the Gingles standards in the districts where you apply them, for two black majority districts.

Now, what would you cite me as refuting that?

Mr. Speas: I would cite you Shaw I, Shaw I, II, and III, to begin with.

That is a district where, if you add blacks and Indians, you do have a majority minority district.

I would cite to you--

Unknown Speaker: I want two black majority, not majority minority.

I want two majority black districts, compact.

Mr. Speas: --I would cite to you the plan prepared and presented by Representative Larry Justus, which was labeled Compact 2, which I believe creates, and was presented in January of 1992 to the General Assembly, which is contained... a map of which is contained in the maps lodged with the court, and I will obtain those.

I would cite to you a district running from Winston Salem to Halifax County that was before the General Assembly that was a majority black district, and that was described in the State's response to the Department of Justice as a reasonably compact--

Unknown Speaker: And these plans had two black districts.

I mean, obviously a lot of different plans can have one majority black district, but these plans you're referring me to had two majority black districts, compact majority black districts.

Mr. Speas: --I don't believe that any individual put before the General Assembly at a time--

Unknown Speaker: But that's the whole point.

Mr. Speas: --a plan that had two districts--

Unknown Speaker: Can you create two?

Mr. Speas: --Yes.

Unknown Speaker: I know you could create one here, or you could create one somewhere else, but is there any evidence that you could create two simultaneously majority black, which is what your remedy proposes to do.

Mr. Speas: I believe, Your Honor, that the legislators believed that could be done.

There is in the record of this case--

Unknown Speaker: Well, they have to be right.

Is there any evidence in this case that they were right about that?

Mr. Speas: --Well, yes, Your Honor.

At page 155 of the joint appendix is an article which recounts a private meeting of North Carolina Democratic legislative leaders at which... and Congressmen, at which they conclude that yes, two districts can be drawn.

This was, of course, just 2 days... or 2 weeks before the plan itself was enacted.

Unknown Speaker: Well, two districts can be drawn in the sense of, we can legislate them, or two districts can be drawn under the Gingles test?

Mr. Speas: Two districts that can be drawn, I believe is the thrust of their statements, that some people--

Unknown Speaker: We know that.

Mr. Speas: --would perceive to be--

Unknown Speaker: It's been done.

It's been done.

The issue is whether two compact districts can be created, which is what would create... which would... what would produce an alleged section 2 violation if you didn't create two black districts, but you... it seems to me you have to do step one, which is, under Gingles... Gingles, whatever you want to say it, that there have to be two creatable, compact black majority districts.

Mr. Speas: --Of course, Your Honor, to a large extent, compactness is in the eye of the beholder.

Unknown Speaker: Can you create two or not?

What about this map 1, map 2, and map 3?

Does that show it, or not?

Well, I mean, if you don't know, don't bother answering that.

Mr. Speas: I'm sorry, Your Honor.

Unknown Speaker: Just... I mean, has anybody sat down and done it, so that you could show that you could create two compact majority minority districts in the State, or majority black districts?

Mr. Speas: There are... there were numerous plans presented to the General Assembly--

Unknown Speaker: Compact.

Mr. Speas: --Fact.

Unknown Speaker: Compact.

Mr. Speas: Which included two majority minority districts.

Unknown Speaker: That were compact.

Mr. Speas: In several of the plans, one of the districts was compact to the eye, and the others, the district might not have been compact to the eye, but all together--

Unknown Speaker: Majority black is what we're talking about, not just majority minority... majority black.

Mr. Speas: --I understand... I understand.

Unknown Speaker: The last time you said majority minority.

I don't think you meant that.

Mr. Speas: I understand the distinction you're making.

Unknown Speaker: Let me ask... oh, I'm sorry, are you still answering Justice Breyer's question?

Mr. Speas: No.

Unknown Speaker: Okay.

Let me ask you a different question.

Do you take the position that if a given majority minority district can be created so that the Gingles... subject to the Gingles criteria, that then, in pursuit of other districting objectives, a majority minority district can be created somewhere else in the State that is in no way coincident with the compact Gingles district?

Do you take that position?

Mr. Speas: Yes, we do.

Unknown Speaker: No overlap at all.

Mr. Speas: We take that position--

Unknown Speaker: It's not merely the case that you can modify around the edges, move to the right, move to the left a bit here and there, in order to obtain other objectives.

You can go to an entirely different part of the State and have a district which is in no way geographically coincident with the one that would... you use to satisfy the Gingles condition.

Mr. Speas: --Charlotte, of course, was coincident.

Unknown Speaker: That's... that's... your answer is yes.

Mr. Speas: Virtually all of these districts in Charlotte and Gastonia are a large part of--

Unknown Speaker: But your answer is yes to my question, is that--

Mr. Speas: --My answer is that it is within the State's discretion once it has a basis to believe that a section 2 violation could be established, to determine where to place the district.

That discretion is not without limits.

Unknown Speaker: --How does that comport with narrow tailoring?

I thought narrow tailoring meant, and correct me if I'm wrong because we've used it in slightly different formulations in different cases.

Mr. Speas: Yes.

Unknown Speaker: But I thought that narrow tailoring meant that there is a wrong, and that the remedy has to be as closely designed to cure that evil as possible, and what you're telling me now is that once you find that there's a violation, you can adopt any remedy you want--

Mr. Speas: No.

Unknown Speaker: --and that seems to me quite the polar opposite of narrow tailoring.

Mr. Speas: No, Your Honor.

There are, obviously, limits on the State's discretion in determining where to place the district.

The two most obvious are first, Your Honor, that there must be some racially polarized voting within the area in which you locate the district, and I believe the evidence in this case is that there is racially polarized voting throughout North Carolina, including the area encompassed within the 12th District, and because, Your Honor, I believe narrow tailoring includes, and perhaps most importantly includes, a requirement that the harm to innocent third parties be minimized, I believe that fair and effective representation is a limit on the discretion of the State.

You must--

Unknown Speaker: What is the harm to innocent third parties?

Mr. Speas: --My understanding of your prior decisions is that the existence of harm, of some harm to innocent third parties as a consequence of the action taken to remedy a discrimination is an important element of narrow tailoring.

Unknown Speaker: That would comprehend exclusion of whites from a district because of their race.

That's harm to an innocent third party, I take it.

Mr. Speas: Well, Your Honor, the evidence in this case establishes that the 12th District provides, and the court found, fair and effective representation for all citizens.

Unknown Speaker: I'm asking what harm, an example of harm to an innocent third party is in the context of redistricting.

I take it, it's the exclusion of some people by reason of their race from a different... from a district that they otherwise would be in.

Mr. Speas: A harm--

Unknown Speaker: That has ties to their community and to their former district.

Mr. Speas: --A harm to an innocent third party could be denial of accessibility between them and their representatives.

Unknown Speaker: Yes.

Mr. Speas: This district doesn't do that.

Unknown Speaker: Well now, wait.

You would say there's no harm to a racial group if they're made to ride in a separate railroad car, so long as it's just as nice as the railroad car in which other people are made to ride?

Mr. Speas: No, Your Honor.

Unknown Speaker: No harm to fair and effective transportation, or schooling, if they're made to go to a separate school?

No harm to fair and effective legislation?

It seems to me you're making the same argument.

There's no harm to fair and effective representation.

But I've been excluded from my district because of my race, the individual says, and that shouldn't happen.

Mr. Speas: I don't think that's what I'm saying, Your Honor.

What I'm saying is this 12th District, for example, provides fair and effective representation for black voters, obviously.

It also provides fair and effective representation for all voters, both black and white, because it's an urban district.

It provides fair and effective representation for all voters, both black and white, because it's located within an area of the State that geography--

Unknown Speaker: Well, now we're back to that same peculiar test, and I don't know what it has to do with narrow tailoring.

Mr. Speas: --It was certainly our understanding, and the district court found, that an element of narrow tailoring is whether there's harm to innocent third parties.

Unknown Speaker: Then why shouldn't it also be an element of narrow tailoring whether there is any amelioration to the black voters who were the subject of the Gingles qualifying analysis in the first place?

Apparently, they are ignored.

Mr. Speas: This district--

Unknown Speaker: No, but on your theory, they can be ignored, because you said you can put the district anywhere else in the State, and it need not in any way be coincident with, we'll call it the Gingles qualifying district, which allows you to do this in the first place.

Mr. Speas: --The harm to black citizens, Your Honor, is the dilution of their votes, the racially polarized voting.

Unknown Speaker: And those whose votes were diluted and subject to a Gingles remedy on your analysis can be ignored entirely.

Mr. Speas: I don't believe that's the consequence of--

Unknown Speaker: Then why don't you take the position that there's at least got to be some coincidence between the ultimate majority minority district and the Gingles district, which allows you to do this in the first place?

Mr. Speas: --Your Honor, there... you... I believe there is coincidence between the harms and North--

Unknown Speaker: Then I don't understand your answer.

There's no coincidence of the actual voters in what I will call the Gingles district and the ultimate resulting district on your theory.

There need not be any coincidence on your theory.

Mr. Speas: --All North Carolina black citizens have been the victims of racially polarized voting.

I believe that's the evidence in this case, and the State cannot--

Unknown Speaker: So your position is a kind of racial entitlement theory, as opposed to individual group of voters entitlement theory.

Mr. Speas: --It would... the group of voters within the district where the racially polarized voting exists would be--

Unknown Speaker: Any district in which racially--

Mr. Speas: --Would be... receive the benefit of the Ameliorative black vot--

Unknown Speaker: --Mr. Speas--

--Wait a minute, is racially polarized voting a constitutional violation?

Does somebody who votes on the basis of--

Mr. Speas: --It is--

Unknown Speaker: --race commit a constitutional violation?

I didn't realize that.

Mr. Speas: --Vote dilution through racially polarized voting is--

Unknown Speaker: Ah.

So the constitutional harm is having a concentrated number of persons of a certain race which has been denied... which has been denied representation.

It seems to me the harm assumed by Gingles Gingles is within the district that could have been made a voting district but has not been.

That's the harm.

It's not the fact that somebody engages in racial voting.

That's regrettable, but it's not unconstitutional.

Mr. Speas: --The evidence in this case, Your Honor, is that there are significant concentrations of black citizens in this district.

They reside within each of--

Unknown Speaker: Mr. Speas, your answers to the questions that is part 2 of your argument seem to be colored by what is your main position, which you haven't had an opportunity to state.

I think you said that despite Shaw I the district court did not have to go right into the strict scrutiny compelling State interest mold.

Your first argument seemed to be that race didn't predominate, and my question to you is, if it didn't, what did?

Your main argument is not this section 2, so maybe in the time remaining you have an opportunity to say what is your main position in this case.

Mr. Speas: --Our first position is, the district is not subject to strict scrutiny.

Unknown Speaker: And why not?

Mr. Speas: The district court did not have the benefit of this decision, of this Court's decision in Miller when it decided this case.

It applied a test that's too lenient.

It said, the test is whether race was one of several substantial and motivating factors in the local redistricting process.

The evidence in this case, and the district court found, that race was used in combination with five other factors.

The district court found in this case that the desire to create a homogeneous district was one factor given primacy, and I think it's important the Court examine--

Unknown Speaker: I think you've finished the answer to the question, Mr. Speas.

Mr. Speas: --Thank you.

Unknown Speaker: Mr. Chambers, we'll hear from you.

Argument of Julius LeVonne Chambers

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

I would first begin pointing out that this case is not Gomillion v. Lightfoot.

Nobody has excluded any citizen of North Carolina from participating in the electoral process.

Black and white citizens are, through this legislation, provided for the first time in over 90 years an opportunity to now have a voice... an opportunity to have a voice in the election of Congresspeople in North Carolina.

We have gone through a period in North Carolina where we have purposely discriminated against black people.

We've then moved, only through the urging of legislation and this Court, to periods where we have permitted blacks to register and vote.

We've moved to the Voting Rights Act.

We now for the first time have gotten to a point where black people will have a voice, or an opportunity to have a voice in the election of Congresspeople, and I hope in the Court's review of this case it appreciates that we're operating not in a vacuum, but in a situation where we've had a history of purposely excluding black people.

And now we're trying to devise a remedy, and that remedy is one, I submit, this Court has approved, where we say it is necessary to have a majority black district in order to give black people an opportunity to have a choice in who represents them in the legislature.

Nobody is guaranteeing any black representative.

We are only giving people a voice, and we know from the decision in Gingles that this Court, and that the Congress in enacting section 2, felt it imperative that we create districts where people would have a real voice and not a farce.

Unknown Speaker: Mr. Chambers, many people think that black people can have a greater voice when they are close to a majority, or at least a substantial minority in a lot of districts, rather than a majority in one or two districts.

Indeed, the charge is made that it is very much in the political interests of some people to aggregate all blacks into one or two districts so that the rest of the districts can ignore their interests.

I don't... you know, I am in total sympathy with the objective that you're urging upon us, but it certainly isn't clear as a matter of principle or logic that this is the only way to achieve that objective.

Indeed, there are many who think that this is moving in precisely the wrong direction, that its net effect is to reduce the opportunity of blacks to have their interests taken into account.

I frankly don't know what the answer is, but I certainly can't agree with you that this is the only way to achieve it.

Mr. Chambers: I understand that, Your Honor.

We had a district in North Carolina that provided, we thought, an opportunity, with 42 percent black votes.

Because of racially polarized voting we couldn't elect a candidate of choice.

Unknown Speaker: What does that mean, you couldn't elect a candidate of choice?

is it clear that the candidate you elected ignored the interests of black people, or is it just that he was not black?

Mr. Chambers: It's because the candidate was not the representative of choice for African Americans in North Carolina.

Unknown Speaker: I don't know what that means.

I don't know what that means.

Mr. Chambers: It means, Your Honor, the same thing it would mean for you if you didn't have a voice in the election of your representative.

We've gone through periods where we know, through the legislation that's been passed in Congress, where the interests of black people haven't been represented.

Congress sought through the legislation in 1982 to ensure for at least once we would move beyond that, and now we have this chance and this opportunity through section 2 of the Voting Rights Act to ensure that black people... and we know through experiences in North Carolina, and this Court found this in Gingles, that simply providing an opportunity district would not ensure the kind of opportunity that African Americans needed.

Unknown Speaker: Well, let me ask you this.

Assuming that it can be shown that the Gingles factors are met to establish a section 2 violation, and that there is an area in the State where there is a reasonably compact block of black voters that could be combined in a district and where there is evidence of racially polarized voting, or block voting, so that you could create a district there, then Gingles would suggest that's what you look at to see if there's a section 2 violation.

Now, if you establish that, can the remedy be to create a district in a different part of the State, not where the evidence showed at all that would satisfy Gingles, but go to a completely different part of the State and create something there?

Is that a narrowly tailored remedy?

Mr. Chambers: Your Honor, in this case, in this State--

Unknown Speaker: Well could--

Mr. Chambers: --Yes.

Unknown Speaker: --Just in general could you answer?

Mr. Chambers: Well, in general, I would say that if we're looking at a congressional district, and we're looking at a State, I would submit that it would permit the State, using its discretion, which is the second point I wanted to raise with you, to decide how to locate that particular district in that State in order to accommodate that injury.

The injury, I submit, is to all the people in North Carolina who, because of the way we structured the system, are suffering from dilution of their votes and not having a voice in the election of representatives.

Now, in this district here, we had two plans... the Court asked about this... that assured that blacks would be able to elect a representative of choice.

These plans are in the record.

They are Exhibit 10, and they're filed with the Court, and they're maps that were run through the legislature.

What the State saw was it could draw a district running from Charlotte or Gastonia down through, either to Wilmington or up back through, near Raleigh.

These were, in your words, compact districts, which is the third point that I wanted to raise with you, and they saw the potential violation of section 2.

And Justice Kennedy, you asked about whether Gastonia residents could file a lawsuit.

I submit to you, they could.

You're not confining this to Gastonia.

You could begin in Gastonia.

Unknown Speaker: Well, don't they have to show the Gingles factors?

Mr. Chambers: They would show it.

Unknown Speaker: Well, I--

Mr. Chambers: We're talking about--

Unknown Speaker: --We can examine that later, but let me ask you, are you trying to suggest, or are you suggesting that perhaps the Gingles factors have been overemphasized--

Mr. Chambers: --Yes.

Unknown Speaker: --or unimportant?

Mr. Chambers: I would submit, the way we have proceeded with the Gingles factors... and this is the compactness that the Court has talked about here today.

Compactness ought to be viewed in terms of what's meaningful, functional, what works.

Unknown Speaker: But you see, what... where we are, Mr. Chambers... as you know this as well or better than I, two very volatile areas, race and politics, in which there has been no long tradition or settled juridical principles about what are neutral, fair, adequate districting considerations.

It's been the law of the jungle.

And the point of Gingles was to try to introduce some neutral, controlled factors that could be the beginning point for building a principles jurisprudence, and I'm somewhat concerned that you suggest that we somehow now sweep those under the rug and put us back in the anything goes area.

Mr. Chambers: That's not what I said, Your Honor.

Remember, too, in Gingles we were dealing with a State legislature, State Houses, State Senate seats, not with a congressional district, and second, as we talked about compactness and contiguity, we were assuming that that was what was necessary in order to ensure that we bring people together with a community of interest.

We now see from the findings in this Court, now before this Court, that we can look at things that, of the way the State develops, and that's the peculiarity of North Carolina, to help ensure the same kind of community of interest, the same kind of opportunity of people working together, not just because they're black, but--

Unknown Speaker: But that leads us just to proportional representation--

Mr. Chambers: --No, it doesn't.

Unknown Speaker: --and quite apart from the section 2, which points in these different directions, quite apart from there, it seems to me proportional representation is the last thing that you should argue for--

Mr. Chambers: I'm not arguing for proportional representation.

Unknown Speaker: --that it's ultimately very, very dangerous and divisive.

Mr. Chambers: Your Honor, I'm not arguing for proportional representation.

Even if we... if the Court sustains the plan here, we will not have proportional representation.

We make up 22 percent of the population.

The plans would guarantee about 2 percent, or may guarantee at least an opportunity for 18 percent.

We're not talking about proportional representation.

What we're talking about is ensuring at once, at least for once, a chance now to have a chance to have a voice in the election of your representatives.

Unknown Speaker: Thank you, Mr. Chambers.

Mr. Chambers: Thank you, Your Honor.

Unknown Speaker: Mr. Bender, we'll hear from you.

Argument of Paul Bender

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

Let me start with the question that has occupied the Court during much of this argument, and that is the question of whether, if the Gingles factors are satisfied so that there's a compelling interest in satisfying section 2 by drawing minority majority districts, whether the State can then locate those districts anywhere in the State.

It is not our position that the State can locate them anywhere in the State, and in this case the State did not locate them anywhere in the State.

The District 12 which was ultimately drawn here contains two areas, the Charlotte area here, and the Durham area here, which are... contain a substantial part of the black population.

In this district Charlotte alone contains a little over 30 percent of the black population in this district.

Durham contains some more.

Both of those areas were in a compact district in the Shaw II plan that's in the joint appendix.

It's this plan here.

Charlotte was in this district, and Durham was in this district, so there's a substantial overlap between those people.

And in addition, another limiting criterion, Justice Kennedy, is that the district must be placed in an area so that the majority of the black population in the district has been a victim of the polarized voting that invoked section 2, and a majority of that population is politically cohesive with other minorities in the State who have been the victims of that, and the findings of fact in this case, which are amply supported by the evidence, are that that was exactly true here.

Unknown Speaker: Is it the case that if, in fact, those criteria are met... you see, what... I find it quite difficult, because there's a constitutional principle that you're permitted to do this when there's a compelling need, and then it has to be narrowly tailored.

And by itself, narrowly tailored might suggest compactness, but is there a principle involved that, if it is compact, and you insist on it, then only black related districts would have the requirement of not taking into account protecting incumbencies, while white districts would not have such a requirement, and can the Constitution permit such a result, if that's right?

And what I want you to address, if you can, is if that's right, there's a constitutional principle each way.

Narrow tailoring cuts in favor of compactness, but the basic principle of equal protection of the law would seem to cut in the opposite direction, so how can those be reconciled?

Mr. Bender: Well, I think that's exactly right.

If North Carolina had wanted to create a district in which farmers were a majority, there's no constitutional principle which would stop it from creating a noncompact district like that.

Unknown Speaker: Well, Justice Breyer's question asked you about the creation of a white district.

Would that be constitutional?

Mr. Bender: No, not a district based on race.

Section 2 only would justify a district for minority's interests.

But I was saying, there are other... take the desire of a State to create the district that has a majority of farmers in it.

I take it that that's a legitimate interest that a State could have, and that a State in vindicating that interest could design a noncompact district.

In this case, the district court found that the State acted not to satisfy a desire of the States, but to satisfy an obligation of the States, an obligation to comply with Federal law, an obligation to comply with section 2 of the Voting Rights Act.

I can't believe that when the State acts to satisfy a statutory and perhaps even a constitutional obligation xx has less discretion in doing that, in employing its other--

Unknown Speaker: Well, the problem... the problem, of course, is the Fourteen Amendment and its prohibition that the State not act on the basis of race alone in handing out public benefits, or in drawing district lines, or whatever it is.

I mean, that's why we're into this, and that's... it doesn't talk about farmers, it talks about race, doesn't it?

Mr. Bender: --Well, I think in this area, Justice O'Connor, the State can act on the basis of race in order to create a majority minority district in order to counteract the effects of past voting discrimination, which was present in North Carolina for a long time, and the legacy of that discrimination, which is the polarized voting.

It's unusual that a State can do that, and it--

Unknown Speaker: Mr. Bender, what are the two districts, the two Gingles Gingles concentrated districts that you rely on for this compulsion?

Two at the same time.

Mr. Bender: --There are not--

Unknown Speaker: Not two in different programs.

Mr. Bender: --As far as we can tell, there were not two majority black districts.

Unknown Speaker: Yet that is what this strange configuration--

Mr. Bender: This is the majority--

Unknown Speaker: --was intended to create, right?

Mr. Bender: --But the obligation under Gingles is to create a minority opportunity district.

That is what the statute says.

Unknown Speaker: But this degree of departure from normal districting principles was not necessary to comply with what you say section 2 required.

Mr. Bender: That's right, but that would have forced the State--

Unknown Speaker: You could have had a much more concentrated second district if you were only going for majority minority, but instead, the State chose to go for two majority black districts in spite of the fact that no one has given us any indication of why the failure to have a second majority black district could possibly have been a section 2 violation.

Mr. Bender: --Two points there.

One, they chose to do that because if they had done this district, this would be a district that had almost no coherence except that it was a minority majority district.

This district mixed rural and urban people together, there was no community of interest there, and a second reason they didn't--

Unknown Speaker: Whereas the community of interest here is what, that they're all black?

Mr. Bender: --No, that 80 percent of them are urban, and the State deliberately decided to create an 80 percent urban district here, and an 80 percent rural district here, as a purpose.

Unknown Speaker: In figuring it out--

Mr. Bender: Yes.

Unknown Speaker: --did they take into account minority, or did they punch into the computer just black?

Mr. Bender: In doing this--

Unknown Speaker: Yes, in figuring out this strange scheme.

Mr. Bender: --I don't know what they punched into the computer, but they--

Unknown Speaker: My impression is that they punched in... that they punched in black, that they were looking specifically for two majority black districts, and there is no justification that anyone has asserted under section 2 for punching that into the computer.

Mr. Bender: --No, there is.

Section 2 says that if minorities are denied a fair opportunity to participate in the political process because of racial polarization in voting and because the minorities... and when the minorities are cohesive, then you have to create a majority minority district for them.

Now, it's true that in this case, as you pointed out a number of times, the second district that was compact was not a majority minority district, it was a 49 point something percent minority district, and of that 49 percent, I think about 42 percent were black, and about 7 percent were Native Americans.

The statute, section 2, which is what we're applying here, doesn't require a majority minority district.

Gingles said that, but I think it said that as an approximation.

What the statute requires is to give the minorities a fair opportunity to participate in the political process, and how much of a percentage of minorities you need to do that depends upon the extent of polarized voting.

Unknown Speaker: What about the other minorities that form the almost majority in the concentrated district that was identified but not used?

What about them?

They were what, Hispanic and Indian?

Mr. Bender: You're talking about the district--

Unknown Speaker: Yes.

You said you formed, you know, 49 point some odd percent.

Mr. Bender: --Yes.

Unknown Speaker: Almost a majority, though not even a majority, much less a majority black, but you formed that out of a district in which only 42 percent were black.

Mr. Bender: That district would have had about 42 percent black.

Unknown Speaker: Well, what xx--

Mr. Bender: But that would have been a district in which minorities would have had a fair opportunity to have candidates of choice elected, because they would have had a sizeable enough population so that with a right cross over voting--

Unknown Speaker: --And the theory is that Hispanics and Indians in that concentrated district, their interests will be well enough taken care of by the all black district in the northern part of the city.

Mr. Bender: --There was evidence, I believe, that the two groups voted as a cohesive minority, and all of those factors are perfectly relevant, completely relevant, necessarily relevant under section 2.

So you shouldn't have... if it's 49.9 percent it's no good, and if it's 50.1 it is.

That doesn't make any sense.

The sense here is to give minorities a chance to participate fairly in the political process and North Carolina has done that.

You can't force North Carolina to abandon other nonracial redistricting principles like keeping communities of interest, urban and rural, together, or like satisfying incumbency protection.

Unknown Speaker: Do those principles--

Mr. Bender: You can't force them to give those up.

Unknown Speaker: --Do those principles have to be historically justified?

Mr. Bender: Those nonracial principles?

Unknown Speaker: Yes, urban with urban, rural with rural?

Mr. Bender: I don't think they have to be historically justified.

They have to be nonracial, and principles that the State wishes to use for nonracial reasons.

Unknown Speaker: Didn't you refer to traditional principles, and wasn't... I assume the reason we did so was that we assume the... if there is tradition behind the principles, they are less manipulable--

Mr. Bender: I agree.

Unknown Speaker: --to come out... yes.

Mr. Bender: Tradition is a very good way of showing that they weren't done here for racial reasons, but if you are convinced, as the court was in this case, that they are not done for racial reasons, I don't think the fact that this is the first time they decided that they needed to have an urban district because of urban problems that had recently arisen and they think that it's important for those people to vote together, I don't think the fact that that's just happened in the last 10 years should disqualify them from doing it.

Unknown Speaker: Suppose a State passed a law, and the law said, we can use incumbency protection as a principle except in one instance.

Anyone who's elected out of section 2 districts and who is black can't use that principle.

Would that law survive constitutional challenge?

Mr. Bender: I think it would be unconstitutional.

Chief Justice Rehnquist: Thank you, Mr. Bender.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Bush v. Vera - Oral Argument

Fri, 09 Jan 2009 14:49:46 +0000

Case:

Bush v. Vera

Media File:

94-805_19951205-argument.mp3

Related Transcript:

1995_94_805_argument.xml

Transcript:

Argument of Javier Aguilar

Chief Justice Rehnquist: We'll hear argument now in Number 94 805, George W. Bush v. Al Vera, William Lawson v. Al Vera, and United States v. Al Vera.

Mr. Aguilar.

Mr. Aguilar: Mr. Chief Justice and may it please the Court--

At issue in this direct appeal is the constitutionality of three congressional districts that the court below erroneously ruled were racially gerrymandered.

These districts are localized in two metropolitan areas of the State of Texas, two counties, Harris County and Dallas County.

The districts involved are Congressional Districts 18, which is a black opportunity district that was created originally in the 1970's in Harris County, Congressional District 29, which is a brand new congressional district, which is now a Hispanic opportunity district in Harris County, and Congressional District 30, which is a black opportunity district in Dallas County, a brand new black opportunity district.

Justice Scalia: Mr. Aguilar, what is this opportunity district?

This is new terminology.

Mr. Aguilar: Well, it's a majority minority district that was created under--

Justice Scalia: Why don't we just call them majority minority districts?

I mean, you're entitled to use whatever terminology... you can call them, you know, motherhood apple pie districts if you like, but you will be insulting my intelligence every time you say it.

Can't we give it some, you know, unemotive terminology that we can use in the argument?

Mr. Aguilar: --Yes, Your Honor.

Justice Scalia: Thank you.

Mr. Aguilar: I'll refer to them as majority minority districts.

The district court we believe legally erred in its finding below that the three districts were racially gerrymandered for two reasons.

First, it held that race predominated in the drawing of the districts, but it did so because it refused to recognize the State's customary and traditional redistricting principle of incumbency protection, as well as other principles that it utilized, including the equal population rule that it always follows and it must follow--

Chief Justice Rehnquist: That's pretty much a question of fact, isn't it, Mr. Aguilar, whether it was basically a desire to preserve incumbency or whether it was the desire to create majority minority districts?

Mr. Aguilar: --Well, yes, sir, it is a question of fact, Your Honor, but in this case... they decided this case before Miller v. Johnson, and I think their opinion is clear that they did not believe that incumbency protection should be considered a traditional districting principle because it was not among those listed in the Shaw v. Reno case to begin with.

It is our contention that the determination of what is a customary and traditional districting principle is something that is determined by the State and its practices, its historical practices, and there was no doubt that in this case there's plenty of evidence to show that Texas has followed the traditional practice of incumbency protection to decide where it's going to draw its districts, and incumbency protection as applied by the Texas legislature, certainly in the 1990's, really has four aspects, Mr. Chief Justice.

First, it is not pairing incumbents.

It will not vote for a plan that does not pair incumbents, simply because they want to preserve the State's congressional seniority.

Second, it means that if you're going to have to redraw districts, which they had to because of the fact that the population had increased so greatly in Texas that we had been reapportioned three different districts, that you try to maintain the constituency of each of the Congresspeople.

Chief Justice Rehnquist: Okay, but Mr. Aguilar, you made this argument, I take it, to the district court, and you can see it's a question of fact as to what the motivation for drawing... and the district court rejected those findings.

Are you contending here that they're clearly erroneous?

Mr. Aguilar: No, Your Honor.

We're saying that their decision is legally wrong because it did not properly apply the rule of Miller v. Johnson.

Now, in fact, quite frankly they didn't have it to apply because it wasn't decided until sometime after the opinion.

What we're saying is, they recognized--

Justice O'Connor: Well, but Mr. Aguilar, the district court did make findings that the districts were formed in utter disregard for traditional redistricting criteria, and were unexplainable on other than racial grounds.

Now, are those findings... do you say either of those are clearly erroneous?

Mr. Aguilar: --Those findings are tainted, Your Honor, by the legal error in not recognizing that the State of Texas has a long tradition of protecting incumbents, and that--

Justice O'Connor: Well, do you argue that protection of incumbents is a compelling State interest?

Mr. Aguilar: --No, Your Honor.

We're saying that that is--

Justice O'Connor: You're just saying it's a traditional State interest that is followed in Texas--

Mr. Aguilar: --It is something--

Justice O'Connor: --in drawing districts.

Mr. Aguilar: --That is correct, Justice O'Connor.

What we're saying is, you... if you're going to try to determine whether there has been a racial motivation, you look at all the different objectives--

Justice O'Connor: Well--

Mr. Aguilar: --that the State utilized.

Justice O'Connor: --all right, but you did present evidence to the district court of protection of incumbency.

I mean, that evidence was apparently before the district court, and it nevertheless found that that may well be so, but it was overshadowed here by the decision in drawing the district boundaries to totally draw them along racial lines.

Mr. Aguilar: Yes, Your Honor, and if I may, they certainly considered that, and they even acknowledged in their opinion that incumbency protection was a major objective in the State, all over the State.

Justice O'Connor: Right.

Mr. Aguilar: And they didn't particularly like it, and they said as much, but despite the fact that 24 out of the 30 districts, Justice O'Connor, were challenged on these grounds, only these three districts were found to be racially gerrymandered, and I'd like to point to the Court... refer to the Court to Joint Appendix at page 192.

I'd like to use that as an example, trying to flesh out what I'm trying to say.

Justice Ginsburg: Mr. Aguilar, before you do that, remind me... I think you mentioned it just a moment ago.

Didn't this Court not credit incumbency on the same line as the traditional factors that were mentioned in the Shaw opinion?

As you pointed out, Miller had not yet been decided, and I... can you be precise about how this Court treated incumbency?

Did it consider it a traditional districting factor?

Mr. Aguilar: Are you asking in the Shaw opinion, Your Honor?

Justice Ginsburg: No, in this opinion.

Mr. Aguilar: I think it recognized that it was a motivation of the legislature all over the State.

I think it certainly recognized and accepted that.

I think that in the process of accepting that--

Justice Ginsburg: Did it treat it as something that could dominate?

My question is, did the Court recognize that incumbency should be treated as a legitimate factor?

Mr. Aguilar: --No, Your Honor.

They believed that incumbency protection was not something that this Court referred to in the Shaw decision and, consequently, since it didn't fall within the... those factors that this Court referenced in Shaw, therefore it wasn't something that they could pay attention to, and I think--

Justice Souter: Let me... may I ask you to go one step further?

I take it, of course, because they were deciding before Miller came down, I take it that what the court was doing was saying that predominant racial motive is an alternative to incumbency protection as a factor, whereas your argument is after... I think, after Miller, we judge what is a predominant racial motive by asking, among other things, whether it was done in disregard of traditional districting practices, and your final step is, incumbency protection is one of the objects of traditional districting practices.

So that I think what you're saying is the court made an either or choice when there wasn't an either or choice.

The two alternatives that it was opposing to each other are not really opposing alternatives.

It should have considered incumbency protection in deciding whether the motive was predominantly racial.

Mr. Aguilar: --That is--

Justice Souter: Is that fair?

Mr. Aguilar: --That is exactly correct, Justice Souter.

Justice Kennedy: Counsel, I want you to get to section... to page 192, but let me ask you one question before you do that.

If incumbency protection is the motive, but the means used to effect it is racial gerrymandering, is that constitutional?

Does that comply with Miller?

Mr. Aguilar: Well, no, Your Honor.

We are saying that you can... the legislature can apply its traditional motivation of incumbency protection, and just because it's applying it in an area where there are blacks or Hispanics living, that doesn't necessarily mean that the end result is a racial gerrymander.

Justice Kennedy: Well, suppose I say I want to protect incumbents and, incidentally, I take it this means any incumbent who is an officeholder can protect his or her interests by running for some other office.

A State Senator can be a Congressman, and that's incumbency protection in Texas.

Let's assume that that is the goal, and we say, in order to do this we're going to have racial gerrymanders.

Does this... is this consistent with the Court's holding in Miller?

Mr. Aguilar: Well, if the predominant motivation is just collecting as many minorities that you can within one district, and you don't care whether it protects your incumbents, you don't care about--

Justice Kennedy: No, no, that's not my hypothetical.

My hypothetical is, we want to protect incumbents, and the way we're going to do this, the principal way, the principal mechanism we're going to use is assigning voters to districts on account... by race.

Does that comport with the command of Miller?

Mr. Aguilar: --I think it would, Your Honor.

You have to find out why race is considered.

We're not saying that we cannot consider race, but in our case, Your Honor--

Justice Kennedy: Well, that's one of the things we're going to ask.

Mr. Aguilar: --Well, in our... for instance, if we had a case where there was no reason to create this district... in other words, there was very little reason to create a majority minority district under the Voting Rights Act, then I would say we would be running afoul of this Court's ruling in Miller, but when you have a situation where--

Justice O'Connor: Well now, Mr. Aguilar, was there evidence here that majority minority districts could have been drawn in 18, 29, and 30 that would have been more compact, and that would not have presented this racial gerrymander problem, and nevertheless have satisfied some of the incumbents?

Mr. Aguilar: --Let me--

Justice O'Connor: I mean, there were proposals made--

Mr. Aguilar: --That's correct, there were.

Justice O'Connor: --were there not--

Mr. Aguilar: Yes, Your Honor.

Justice O'Connor: --That still would have provided majority minority districts for--

Mr. Aguilar: Yes.

Justice O'Connor: --blacks and Hispanics.

Mr. Aguilar: Yes, Your Honor.

Justice O'Connor: But wouldn't have been drawn, you know, house to house to pick up certain particular voters in the racial base.

Mr. Aguilar: Well, they weren't drawn house to house, Your Honor, but yes, there was in the evidence... in fact, the State itself presented alternative districts in these three areas that were geographically more compact.

The plaintiffs presented alternative plans.

Their expert, Mr. Weber, Dr. Weber, they had another plan, the Owens Pate plan.

All of their plans that they presented were more geographically compact.

The problem with the--

Justice O'Connor: Yes, so this case doesn't present, does it, a situation where Texas had no means of assuring a racial composition and balance, even if these peculiar districts are tossed out?

Mr. Aguilar: --Well, that's right.

We could draw other alternative districts, there was no question about that.

The reason we didn't--

Justice O'Connor: Does that go to narrow tailoring, do you suppose?

Mr. Aguilar: --No, Your Honor.

Justice O'Connor: No.

Mr. Aguilar: Our position--

Justice O'Connor: I would have thought it might.

Mr. Aguilar: --Well, our position on narrow tailoring is that once there is a reason to draw the districts under the Voting Rights Act, the narrow tailoring means you just draw the district that's necessary that affords that group an opportunity to elect someone of their choosing.

Chief Justice Rehnquist: You mean, the number of districts?

Mr. Aguilar: The number of districts, that's correct, Your Honor.

Chief Justice Rehnquist: What would be an example of broad tailoring, then, once you find that the... you want to draw those kinds of... are there any kind of boundary lines you can't have?

Mr. Aguilar: Well, I think that... I guess the best example would be in the Miller case.

The boundaries there were much... we're talking about a totally different district that spanned some 200, 250 miles, that linked together different cities, different disparate black populations that had very little in common with them, where the district boundaries themselves, the black population was located in the outer ridges of the district.

That's not what we have here.

We believe narrow--

Chief Justice Rehnquist: So you do recognize that narrow tailoring would outlaw some kinds of districts drawn after a decision to draw majority minority... but you say this is narrowly tailored in your case.

Mr. Aguilar: --It's narrowly tailored because we first of all realized that there was a sufficiently large minority population in a geographically compact area, and there was racially polarized voting.

Having made that determination, we then drew a district in that location.

Now, I agree with the suggestion of Justice O'Connor that there were different alternatives.

We could have drawn all kinds of different boundaries, but it was... you know, politics is a contact sport--

Chief Justice Rehnquist: Do you--

Mr. Aguilar: --and people don't want to... sorry, Your Honor.

Justice Breyer: --If, in fact... suppose for the sake of argument that it was accepted that under Miller you could use race as a basis for creating a section 2 required district of the Voting Rights Act, a reasonably compact one.

Suppose you also thought that insofar as a district departs from a compact shape, that's okay if the motive for the departure from the compact shape has nothing to do with race, such as protecting incumbents.

If you thought both of those things, then would you have to remand this case in order to decide if the reason that these districts depart from the compact shape is incumbency protection?

Mr. Aguilar: No, Your Honor.

I think the evidence is sufficient here to be able to reverse, Your Honor, and render.

I think that the error is one of law.

I think that--

Justice O'Connor: But Mr. Aguilar, in answer to Justice O'Connor you said that they could have... perhaps I misunderstood your answer, but I thought you said that they could have satisfied the minority majority district composition with a more compact... that they could have satisfied both incumbency and race.

Perhaps you didn't complete your answer.

Mr. Aguilar: --I did not complete my answer.

The reason why they didn't, they would not have, the legislature I'm talking about, would not have accepted the proposed plans that the plaintiffs proposed and even the State plans... the districts that we drew for litigation purposes show that we could, in fact, draw more geographically compact districts... was because they would pair incumbents.

It's because we would lose some of our Congressmen in Congress, and we did not want to do that.

Justice Scalia: Mr. Aguilar, let me understand what you're saying about the incumbency justification.

Is it that if... let's say you have a black or Hispanic Congressman.

It is okay to use race as a criterion in drawing a district so long as its purpose is to protect the seat of that Congressman.

That is, I draw a majority black district or a majority Hispanic district because the incumbent happens to be a black or a Hispanic.

Is that... would that be constitutional?

Mr. Aguilar: If the question ignores the requirements of the Voting Rights Act, I would say there would be a problem, if that's your only goal, but that's--

Justice Scalia: I don't--

Mr. Aguilar: --What I'm saying, we have... the Texas legislature has the obligation to satisfy Federal requirements, and the Voting Rights Act is a Federal requirement, but in doing so, the State legislature ought to have, under our federalism, the right to use the same districting objectives as it uses for all the districts.

Justice Scalia: --But you say that's a valid objective even though race is the means of achieving that objective, is that your position?

Mr. Aguilar: Well--

Justice Scalia: Or do you say that race was not used here?

I--

Mr. Aguilar: --Race was used.

It had to be, because our prime... because one of our objectives was to create a majority minority district--

Justice Scalia: --So your question--

Mr. Aguilar: --pursuant to the Voting Rights Act.

Justice Scalia: --But your answer to my question must be yes, then.

If I have a black Congressman, I can say, I want to protect that Congressman's seat and therefore, simply because I want to protect that Congressman's seat, it is okay to draw a black district.

Mr. Aguilar: Well, I didn't finish the four different aspects of incumbency.

It's just not protecting the incumbent's, black incumbent's seat, but rather, it's also protecting those around them, the Congressmen around them, and in this--

Justice O'Connor: Well, let me ask you this.

Suppose you have a district that's a majority white district, and the incumbent says, look, we have to redistrict, and don't put any blacks in my district.

They won't vote for me, and I won't have it.

You have to protect me.

Now, is that okay?

Mr. Aguilar: --Well, it's--

Justice O'Connor: Can the legislature then say, fine, we're concerned about you, Mr. Incumbent, and so we'll exclude all blacks from your district.

Is that constitutional?

Mr. Aguilar: --Well, no, Your Honor, not in the hypothetical that you just posed to me, but that was not what we did here, Your Honor.

What we did here was, we made a determination that we--

Justice O'Connor: Well, you may have... it may have been done in reverse.

Mr. Aguilar: --Well, in fact, many blacks that could have been in a more compact jurisdiction, or a more compact district, in fact didn't go into the majority minority district.

They remained in other districts, and in fact they became impact districts, if you will.

Justice Stevens: May I ask, is this what you're saying in substance, that incumbency protection had nothing to do with the number of majority minority districts.

It merely explains the shape of the districts, because after you decided the number you had to satisfy the incumbents and draw all these squiggly lines.

Mr. Aguilar: Absolutely, Your Honor.

In fact, and if I may before my time expires, if you look at page 192, that's the map of the Dallas area, District 6 and District 12 were not impacted by the drawing of District 30, and yet the shape of both 6 and 12 look rather strange.

In fact--

Justice Stevens: Were they challenged?

Did anybody file suit to challenge 6?

Mr. Aguilar: --They were challenged, Your Honor, but the court held there was no racial gerrymandering.

These are predominantly and overwhelmingly white districts.

The reason the districts look like this has nothing to do with race.

It has to do with the fact that the legislature was trying to draw districts that those incumbents could be elected from, trying to not only keep as many constituents there, but also they're going to have to bring in constituents, bring in constituents that would be supportive of that Congressman.

Chief Justice Rehnquist: Thank you, Mr. Aguilar.

Mr. Bender, we'll hear from you.

Argument of Paul Bender

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

Even if strict scrutiny is applicable to the districts in this case, the district court decision invalidating those districts was legally incorrect and it must be reversed.

The district court held that although Texas might have a compelling interest in creating majority minority, or minority opportunity districts in Dallas and Houston in order to protect the rights of minorities in those communities, who are the victims of polarized voting, to protect their right to participate in the process in a fair way, that even if Texas had those compelling interests, the districts that Texas actually created were not narrowly tailored.

The court held that because it found that Texas could have created three districts that were more compact than the ones that it actually created, and that in departing from compactness, the court flunked the narrow tailoring test.

Justice Souter: Do you agree with Mr. Aguilar that that is basically a confusion of categories, that narrow tailoring goes basically to number of districts, and the niceness of the lines with which they are drawn is essentially the question, or is essentially an issue that you look at when you're deciding whether, in fact, the motive was predominantly racial as distinct from a motive consistent with customary districting practices?

Mr. Bender: I think the niceness of the lines is relevant probably to both aspects of it.

One of the ways that you can depart from narrow tailoring would be to draw racial lines gratuitously.

Justice Souter: Well, I suppose if you... there's a point at which the line is crossed between protecting an incumbent who draws votes predominantly from one race, on the one hand, and packing on the other hand, but that is an inquiry, I take it, that you would make at the point where you're saying, what is the predominant motive here in order to determine whether strict scrutiny applies at all?

Is that fair to say?

Mr. Bender: Well, I think it's fair to say, but I think a State could have a compelling interest to create a majority minority district and then put many more minorities in that district than were necessary.

Justice Souter: That would be packing.

Mr. Bender: That would be packing, and that would be a violation of the narrow tailoring test.

Justice Souter: But not the shape of the district.

Mr. Bender: The shape of the district might be a violation of the narrow tailoring.

Justice Scalia: Yes.

I thought that narrow tailoring applied to kicking over any more of the normal criteria for district drawing than is necessary to achieve the objective.

Mr. Bender: Right, and--

Justice Scalia: One of which would be compactness and contiguity.

Mr. Bender: --And another would be incumbency protection.

Justice Souter: Yes.

Mr. Bender--

--No, but you don't have... excuse me.

Well, go on.

I was going to--

--Let me just follow up on one of Justice Scalia's questions.

But if you cannot draw a majority minority district without jettisoning your traditional districting principles, you don't have to do it.

In other words, section 2 does not require you to throw out the tradition of districting in order to create a majority minority district, and if that were the case, then you wouldn't have the compelling interest of complying with section 2.

Mr. Bender: Right, and so here, the fact that the State could have drawn three compact districts, two in Houston and one in Dallas... it could have drawn a compact district in Dallas to provide black minorities there with an opportunity to participate fairly in the process.

It didn't do that, and the record is absolutely clear on this.

The district court was absolutely clear on it.

It didn't do that because of the interests of the incumbents who were surrounding that district.

They did not want that compact district because it took too many Democratic voters away from them, and so they pulled Democratic voters out of that compact district, which required the minority district to get voters from some place else in order to both satisfy the one person one vote requirement and remain a majority minority district.

Justice Scalia: Mr. Bender, is your answer the same... well, let me ask this first.

The appellees' brief cites a law review article in the Michigan Law Review which rates districts in the country for irregularity, and according to that law review article, districts 18 and 29 are tied for first with one other district in the country, as the district with the least regular borders in the country.

Is that accurate or not?

Mr. Bender: I wouldn't say that they were necessarily tied for first, but they are certainly--

Justice Scalia: They're up there... yes.

Mr. Bender: --among the most irregular districts in the country, yes.

I think everybody concedes that.

In Dallas, that irregularity occurred, I think nobody doubts this, because of the interest in protecting incumbents, and Texas' amazingly strong interest in protecting incumbents.

That is a very strong interest that Texas traditionally has had and continues to have in districting.

They used--

Justice O'Connor: Well, it's no different than in any other State, is it?

I used to serve in a State legislature, and I can well remember scrambling around to protect incumbents.

That's a typical thing, isn't it.

Mr. Bender: --I think... but the strength of it must vary from place to place.

Justice O'Connor: But do you think that that overrides the need to avoid deciding boundaries on purely racial grounds?

Is that your position?

Mr. Bender: No, it doesn't override the need.

The question is, if a State could draw a compact minority district and it has a compelling interest in doing that to satisfy the Voting Rights Act and perhaps even the Constitution, and it also has a very strong interest in protecting incumbents, does the State have to choose between those two interests and jettison one in order to do the other?

Justice O'Connor: Or does the State have to follow the constitutional requirement not to draw lines on primarily a racial basis?

Mr. Bender: That's not a constitutional requirement, Justice O'Connor.

I think you said in Shaw and Reno in writing for the Court, and Justice Kennedy repeated for the Court in Miller and Johnson, that that's not an absolute prohibition.

It's just something that requires strict scrutiny, and that strict scrutiny is satisfied if there's a compelling interest.

Here, the district court did not deny that there was a compelling interest, but said, you've got to choose between your compelling interest in Dallas in having a majority district and protecting incumbents.

And in Houston the situation was a little more complicated.

There was incumbent protection interest there, but there was also the fact that the State had a compelling interest in creating a Hispanic majority district in Houston, which could have been compact, and in creating a black majority, or in keeping a black majority district in Houston.

Justice O'Connor: Well, and there are also degrees of incumbent interest.

Some incumbent officeholder might say, I want a certain type of voter in my district.

It wouldn't double up officeholders, but nonetheless I want you to draw this along racial lines because I think I can pick up voters that are going to go to the polls more often than would be the case if it were compact.

Mr. Bender: That would require strict scrutiny.

In this case I think the evidence shows that the incumbents did not say, give us black voters just because they're black voters.

They were looking for Democratic voters to keep their incumbency safe, and in looking for Democratic voters there is a large correlation in that part of Dallas.

Justice Kennedy: If we disagreed with that characterization of what happened, would we have to find that there was an illegality that occurred here?

Mr. Bender: I think if you found that their motivation was to get black voters just because they're black voters, that would be unconstitutional.

Justice Kennedy: But it's all right to get black voters just to protect incumbents.

Mr. Bender: It's all right to get Democratic voters.

Justice Kennedy: That's not my question.

Mr. Bender: And if in getting Democratic voters one of the ways they try to determine whether voters are likely to be Democratic or not was to look at their race, I don't think--

Justice Kennedy: So race can be used as a surrogate.

Mr. Bender: --In that sense the motive is a nonracial one, namely to protect incumbency.

Justice Scalia: Do you know of any other area where we allow this, where we allow race to be used as a surrogate for some other desirable policy?

I thought that what our Constitution requires is that no matter how accurate the generalization may be, you can't use race.

Mr. Bender: I think in this situation, if the political reality is that if you're looking for incumbent--

Justice Scalia: I'm not asking about this situation.

Do you know any other situation in the law in which we allow race to be used as a surrogate for anything?

Mr. Bender: --I can't think of one off hand.

Justice Scalia: I can't, either.

Mr. Bender: But I think that--

Justice Scalia: But if race is, in fact, as you suggest, a real surrogate, then you don't have to use race.

Mr. Bender: --Well, I don't think--

Justice Scalia: You just look for Democrats.

Mr. Bender: --I think you look for Democrats, and there are a lot of things you look for when you're looking for Democrats, and I think one of the things you... if all they did was say, we want Democrats, therefore we want black voters, Justice Scalia, I agree with you that would be unconstitutional.

That kind of mindless racism would be unconstitutional, but to use it as a--

Justice Scalia: This was a more thoughtful racism?

How was this done?

I thought that's why you said this was done.

Mr. Bender: --No, this wasn't done... no.

Justice Scalia: We wanted Democrats.

We know, you know, blacks are Democrats, and therefore we ended up with these--

Mr. Bender: I think they used it as one of a number of factors in deciding who would be Democratic voters to put in that district.

Justice Breyer: --Didn't they have actual computer printouts of how people had voted?

Mr. Bender: Yes.

Justice Scalia: And so was there any need at all to consider their race if they wanted Democrats?

They knew how people voted in certain areas, and they knew that people in certain areas both voted Democrat and were black.

Mr. Bender: Right.

Justice Scalia: Is there anything in the record that suggests that they went beyond looking at the precinct lists to see that they were Democrats when they did this--

Mr. Bender: No.

I think, however, the record shows that in doing that what they ended up doing was bringing black voters into their districts, but the motive was, what they were doing was looking for Democrats.

Justice Scalia, in that area of Dallas there are a lot of black voters, and so that's what you're going to do if you look for Democrats.

Thank you.

Chief Justice Rehnquist: --Thank you, Mr. Bender.

Ms. Hair, we'll hear from you.

Argument of Penda D. Hair

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

I think I'll just pick up with the last point, which is whether race was being used as a surrogate, and let me use the Dallas area as an example.

Representative Frost and Bryant, Congresspeople Frost and Bryant were the two white Democrats that bordered on the new opportunity district that was being squeezed in between them in Dallas County.

They took about 483,000 people out of Dallas County and of those 53... roughly 53,000 were African American.

Those two Democrats were looking for Democratic voters of any race, and they were looking for voters that they had previously represented.

The district court erred because the district court said that... and it's a legal error.

The district court said that protection of incumbents is the equivalent of a racial factor, so all of the district court's findings of fact that race predominated in the construction of these districts is tainted by the legal error that protecting incumbents constituted a part of the racial gerrymander.

Justice Ginsburg: Ms. Hair--

--Did it say--

--Justice Kennedy asked a question earlier, and he said, if one would concede that incumbency protection is a legitimate traditional factor, still, how can you justify giving effect to incumbency by using race?

I think that was his question, and I'd like to get your response to that.

The position is, you got this strange shape because in satisfying the incumbents' desire to protect their turf, you used race.

Ms Hair: Your Honor, I would say that race was used to decide whether a majority minority district can be created, and again I'll use Dallas as the example.

In Dallas what you see is, you see the compact part of the minority opportunity district, District 30, is South Dallas.

It's a neighborhood with a community of interest that is 69 percent African American.

It shows up nice and almost oval on the district map.

The arms of that district that go to the north are majority white, and what happened is that when Congressmen Frost and Bryant came into Dallas County and peeled off, as I said, almost half a million white voters, the district had to go north to pick up population.

In going north, race was one of the factors that was considered, but it certainly was not the only factor.

The irregular arm to the west goes out to Grand Prairie and picks up white voters.

Congressman... Senator, then Senator Johnson was eager to represent those white voters in Grand Prairie because they had been in her Senate district.

That was not on the basis of race.

Another arm to the left goes out and picks up the airport, and the main northern arm goes up through the center of Dallas County, picks up about 20 percent African American voters and 80 percent non African American voters.

Justice Scalia: Well, I doubt that we ever assume that in any case there would ever be a situation in which nothing but race is considered.

Of course, there are always other factors, but that doesn't prove anything.

Ms Hair: Yes, Your Honor.

Our position is that a minority community of interest existed in South Dallas that could be recognized.

It could have been recognized, as Justice O'Connor points out, in a nice compact district that would have been similar to the districts that this Court upheld summarily in the California case, DeWitt.

Instead, what happened is that that minority community of interest, like all other communities of interest across the State, saw its district become irregular not because of race... there was a nice district there that would have satisfied the Voting Rights Act... but because of protection of incumbents.

Justice Souter: May I go back to an earlier statement that you made on that point?

Did the court say in so many words that we identify the protection of incumbents with racial gerrymandering?

Ms Hair: Yes, Your Honor.

Justice Souter: Did it put it neatly somewhere?

Ms Hair: Your Honor, on page 65a of the jurisdictional statement appendix--

Justice Souter: Okay.

Ms Hair: --The court said that incumbency protection is part of the racial gerrymander, and the court did that because it confused the fact that some African Americans were taken out of the area that normally would have been the most compact version of District 30 in Dallas, for example, but a lot more whites were taken out, and that was error.

Justice Stevens: May I ask you a question about your... may I finish my question, please?

May I ask you a question about your understanding of the district court's holding?

If the district court... if the districts did not have all these strange appendices, they had precisely the same number of majority minority black districts, but they would be nicely shaped instead, assuming that they were given a bad shape because of incumbency protection, under your view, would that be an adequate remedy under the district court's holding?

Ms Hair: Your Honor, it would not be, and let me tell you why.

That's a very important question, because there is no Federal constitutional requirement of compactness.

Justice Stevens: No, I'm not... really didn't... I want... what I'm really asking is, what is your interpretation of what the district court would do with those facts?

Ms Hair: Oh, if a minority opportunity district were compact?

Justice Stevens: Yes.

Ms Hair: I think the district court would uphold it, but the problem--

Justice Stevens: So what is at issue is not the number of minority majority districts, but their shape.

Ms Hair: --But how they look, and I want to make the point that that is very important, because my clients who live in these districts need to be able to bargain and compromise in the political process just like all other communities of interest across the State, and to single out minority opportunity districts and say that they have to have a special Federal rule of compactness that does not apply to majority white districts or any other districts in Texas we believe disadvantages them in the process.

Justice O'Connor: Well, do you suppose the same rule applies in reverse, that it would not be constitutional for the legislature to protect a white incumbent in a majority white district by fencing out all black voters?

Ms Hair: I think, Your Honor, that would not be constitutional, and that would be race as predominant, but that's not what happened here.

These are integrated districts that were drawn with bare populations sufficient to satisfy the Voting Rights Act, and then for other reasons they became noncompact.

Chief Justice Rehnquist: What if the district that Justice O'Connor hypothesized were drawn the same way, not all whites but just enough whites to guarantee the election of the white incumbent?

Ms Hair: Intentionally to--

Unknown Speaker: Yes.

Yes.

Ms Hair: --To guarantee the election of a white--

Chief Justice Rehnquist: An intentional adjustment of just the right amount of whites.

Ms Hair: --Your Honor, I believe that that would be subject to strict scrutiny under the Voting Rights Act.

I'm sorry, under the Constitution, and the difference is that where you have the Voting Rights Act, the Voting Rights Act does provide a justification for taking race into account, because we do have racially polarized--

Chief Justice Rehnquist: We've never held that, have we?

Ms Hair: --Well, the Court has not explicitly--

Chief Justice Rehnquist: No.

Ms Hair: --upheld the Constitution... the constitutionality of the Gingles standard, but it has not been--

Chief Justice Rehnquist: No, we've never held that the Voting Rights Act is a basis that survives strict scrutiny, I don't believe.

Ms Hair: --Yes, Your Honor, that's correct.

We would submit that it does.

Justice Scalia: Ms. Hair, would you help me out?

I looked at page 65a of the appendix.

What is the precise language you rely on in the opinion on 65a?

I find the court saying, we conclude that the policy of incumbent protection to the extent it motivated the legislature--

--Where you are reading from?

Page 65a of the joint... of the appendix to the jurisdictional statement, which is what counsel cited.

Maybe I got the wrong one.

Ms Hair: Okay.

With regard to District 30... it's at the top... we conclude that the policy of incumbent protection--

Justice Scalia: Right.

Ms Hair: --to the extent it motivated the legislature was not a countervailing force against racial gerrymandering.

Instead, racial gerrymandering was an essential part of incumbency protection.

Justice Scalia: Right.

I take that to mean that the court says you can't... you can protect incumbents, but not by using race as the basis.

Ms Hair: And our position is that the court was legally in error when it said that the fact that Congressmen Frost and Bryant came in and took a huge amount of population, that that was part of a racial gerrymander.

That was solely to get Democratic voters that they had previously represented and black voters, just like a bunch of white voters, got caught up in there.

Justice Scalia: They took them as blacks, that's what this sentence says, that to the extent incumbent protection motivated the legislature, it was incumbent protection achieved by race.

Ms Hair: Your Honor, our position is that--

Justice Scalia: That's how I read it.

Ms Hair: --That... no, if you... the district court committed legal error because it confused taking people... taking Democratic voters with taking people on the basis of race, and that caused it to reach that conclusion.

Justice Souter: If we find the statement is more ambiguous than you say, should we simply remand this case?

Ms Hair: I think the record is clear, Your Honor, that Congressmen Frost and Bryant came in and took voters of all races that they had previously--

Justice Souter: All right, but let's assume that we've read that and we still find the court's statement ambiguous.

Should we remand?

Ms Hair: --Your Honor, yes.

If you cannot find that incumbent protection was not equivalent to race, then I think it should be remanded so that we can establish that in the district court.

Chief Justice Rehnquist: Thank you, Ms. Hair.

Mr. Troy, we'll hear from you.

Argument of Daniel E. Troy

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

With regard to the point that was just being made, at page 19 of our brief we cite to what the district court says.

What the district court found exactly was that Texas, quote, repeatedly segregated African American, Hispanic, and Anglo populations by race 1) to further the prospects of incumbent officeholders... I'm adding the one... or 2) to create majority minority congressional districts.

These districts were conceived for the purpose of providing safe seats in Congress for two African American representatives and Hispanic representatives.

Your Honors, the indirect and direct evidence overwhelmingly supports the district court's finding that race was the predominant factor in the drawing of these bizarre, single race majority districts.

Justice Breyer: Why did anyone care from a racial point of view, the interest being to elect a minority Congressman or woman?

That can be achieved with a compact district, so why, from that point of view, would anyone care whether the district is noncompact?

What human motive could there be for these irregular shapes other than incumbency protection?

Mr. Troy: Your Honor, what the district court found was that they pursued a maximization policy basically constructing these majority minority single... actually single race majority districts essentially for their own sake, and then race was used as a tool for partisan advantage.

That--

Justice Breyer: Sorry, I don't understand.

I'm just trying to get clear on a person who is interested in having a black Congressman or a black Congresswoman would be interested, I assume, many, in having a majority minority district which could be achieved with a compact district.

Now, given that fact, what possible reason could a person who has that interest have--

Mr. Troy: --Well--

Justice Breyer: --in seeing that it's an odd shape?

In other words, what would the reasoning be?

I can understand why you might want an odd shape for the purpose of incumbency protection, but I don't understand what the reasoning would be to want an odd shape for racial reasons.

Mr. Troy: --First of all, Your Honor--

Justice Breyer: Unless, of course, you think a lot of black people happen to be Democrats, but you have the voting record, and so you can look at the voting records and not worry about race.

Mr. Troy: --First of all, in Harris County what they did was, they were separating the races, Hispanics and blacks, because the communities were demanding their own districts for their own sake.

But with respect to Dallas County what the record shows, Your Honor, is that the architect of the district, Eddie Bernice Johnson, went... tried to create a performing single race majority black district, and the reason why... one of the main reasons why it was not compact, in fact the court found the predominant reason why it was not compact was she testified in the Terrazas v. Slagle litigation that she shed black voters in the South Dallas area, and she testified because they tend to be more transient, they tend to not turn out as well, and so then, in order to preserve the single raceness of the district she went north into Colin County, west into Tarrant County, hither and yon in order to gather as many blacks as possible in order to preserve that as a single race majority district.

That was the overall goal.

Justice Breyer: In your view, if it were proved... I'm not saying this is this case, but if it were proved beyond any doubt that the only reason that the districts were not compact in shape was to protect incumbents, and that that had nothing to do with race, under those circumstances would these... would such districts be constitutional, even under Miller?

Mr. Troy: Not necessarily, Your Honor, because--

Justice Breyer: Why not?

Mr. Troy: --Miller says that if the predominant motivation in drawing the district was race, then it's subject to strict scrutiny, so the only--

Justice O'Connor: Mr. Troy, can we go back to, then, stage 1.

We have a very compact district.

It has no arms or elbows, but it was created to be a minority... a majority minority district.

Race was the consideration, but it's got wonderfully compact bounds, but race was why that district was created.

Mr. Troy: --I think--

Justice O'Connor: Would that be unconstitutional?

Mr. Troy: --I think, Your Honor, that that is, in essence, a hypothetical that would not really arise in part because by definition, if you're taking into account compactness, contiguity, traditional political subdivisions, you are... race is not the predominant motivation.

It may be an important motivation, but it is one of a number of motivations.

Justice Souter: Why isn't it the predominant motivation?

The motivation is to create a majority minority district.

That means race.

Mr. Troy: If you're creating a compact majority minority district, then you are necessarily taking into account other factors, i.e., compactness, contiguity, traditional subdivisions, and the fact that you've got a naturally occurring community of people.

Justice Souter: So what you're saying is, it's okay to do it for racial purposes, and I... and you and I are both assuming that the racial purpose is justified by the Voting Rights Act, I take it, or at least by the... by correcting the Fourteenth Amendment violation.

It's okay to do that if you do it consistently with normal districting practices.

Mr. Troy: I would say that it is... it is permissible to take race into account in districting so long as it is not the predominant factor.

That is what Miller says.

Justice Souter: But what... aren't you assuming that what determines whether it's the predominant factor or not, what determines whether that factor is treated as predominant for purposes of Miller and Shaw, is a function of whether it is created consistently with districting practices as traditionally understood, and if the answer is yes, then it's not predominant, race is not predominant for Miller purposes.

If the answer is no, it is.

I understood that to be the thrust of your answer.

Mr. Troy: I think if you create it consistent with... with, again, looking for naturally occurring communities, so it is clear that what you're not trying to do is achieve a certain racial goal, and that's not your primary... that's not your predominant--

Justice Ginsburg: It is.

Of course it is.

Just in saying, we are going to create three minority majority districts, race is what we are after.

We want three racially determined districts.

We are willing to give up the incumbency and everything else.

We're willing to subordinate everything to race, and we will have a nice compact district.

Race is so important that we'll subordinate everything to it, and it will look just fine.

That's okay under your analysis.

Mr. Troy: --I think that's... that, if... again, I think if someone swears on a stack of Bibles the only reason I tried to do this was race, and that was... then under Miller it would be subject to strict scrutiny.

Then--

Justice Ginsburg: Well, wasn't that in effect... Texas is candid.

It says, we have a census.

We have additional seats.

We want three minority majority... majority minority districts.

That's our objective, and we're not going to disguise it and say, compactness was our objective, but we're going to achieve our objective consistent with compactness.

Mr. Troy: --But Your Honor, they did not achieve their objective consistent with compactness.

Justice Ginsburg: But I'm just asking you, if race is the driving factor--

Mr. Troy: I think--

Justice Ginsburg: --is that okay?

Mr. Troy: --If race is the driving factor, it seems to me that under Miller, then it's subject to strict scrutiny.

Justice Souter: Then I don't see why you're not changing the Miller definition, because the Miller definition of what was predominant was a definition that considered whether the racial motivation subordinated the application of traditional districting principles, and it seems to me that your definition is rejecting the Miller definition.

Mr. Troy: I don't--

Justice Souter: In other words, we all recognize that sometimes... that race is going to be used, and sometimes it's good, and sometimes it's bad, and we've got to have some way to figure out, as a threshold matter, which it is, and Miller says it's predominant, and it's going to trigger strict scrutiny, if it subordinates traditional districting practices.

Mr. Troy: --Well--

Justice Souter: Isn't that... do you understand Miller to hold that?

Mr. Troy: --Yes.

Justice Souter: All right.

Then--

Mr. Troy: And I think that's... it's... sorry.

Justice Souter: --let me ask you the next question.

If it can be shown, as a matter of historical fact, that a traditional districting practice includes incumbency protection, then it has to follow, if we're going to follow Miller, that if the court finds that incumbency protection was the reason for the arms and the squiggles, then it cannot follow from the fact of arms and squiggles that the motivation was predominantly racial within the meaning of Miller.

Is that correct?

Mr. Troy: I don't think so, Your Honor.

I think--

Justice Souter: Then where did I go wrong?

Mr. Troy: --It seems to me that--

Justice Scalia: Perhaps in assuming that it's okay to do incumbent protection not by deciding who are Democrats, but by deciding who are blacks.

Mr. Troy: --I totally agree with that.

Justice Scalia: That is not--

--So--

--That is making one of the traditional criteria itself depend upon race.

Mr. Troy: I think that--

Justice Souter: Is that your answer?

Mr. Troy: --I think whatever label you--

[Laughter]

Justice Souter: No, I want to know.

Is--

Mr. Troy: Yes, that is--

Justice Souter: --That was a good answer.

[Laughter]

Is that your answer?

All right.

Mr. Troy: --That is my answer.

Justice Souter: Now, let me ask you a good question.

[Laughter]

If, in fact, the incumbency protection is achieved by knowing who is a Democrat, and by drawing the lines according to which neighborhood is Democratic and which neighborhood isn't, then the fact that those neighborhoods are Democratic happen to be black, and therefore the arms and the squiggles end up including black voters and not white ones, that's not wrong on your view.

Mr. Troy: Your Honor--

Justice Souter: Yes or no.

Mr. Troy: --Miller explicitly--

Justice Souter: Yes or no.

Mr. Troy: --If--

Justice Souter: Wrong or not wrong?

Mr. Troy: --If it so happens--

Justice Souter: If the lines are drawn because you're getting in Democrats, the fact that the Democrats happen to be black is not going to disqualify that as an application of districting practices, and it won't result in a conclusion that the racial motive was... that the motive was predominantly racial within Miller.

Isn't that true?

Mr. Troy: --If it... if there is a confluence and a coincidence, and race was not the reason why, race was not the tool for finding out who are Democrats, then certainly, if it just so happens that the district is more black than not and more Democratic than not, that's okay, but--

Justice Souter: All right, then why shouldn't we then send this case back and say to the district court, tell us exactly, based on the evidence, whether, in fact, the discriminations that were made here were made based on political data which happened to disclose a racial composition, or whether it was made on data which was purely racial, and used merely as an unthinking surrogate for a political determination.

Why shouldn't we ask them to make that discrimination for us, and on which the case would turn?

Mr. Troy: --With respect, Your Honor, I think they have made that determination.

The only data that was put on the computer that was on a block by block level was racial data.

Chris Sharman, who drew... the computer operator sat at the computer and inevitably racial numbers came up no matter what.

Justice O'Connor: In this case, is the evidence that the computer program design used to draw the lines such that race became a surrogate for whatever was desired in the incumbency protection?

Mr. Troy: I think the record does show that, Your Honor.

The record clearly shows that race was used as a tool for protecting incumbents, and Miller explicitly rejects use of race as a proxy.

Justice Scalia: I thought that page 65a, which we just read before, said that.

I thought that's exactly what it said, that instead, racial gerrymandering was an essential part of incumbency protection, it was the tool for incumbency protection.

Mr. Troy: I agree with that, Your Honor.

Justice O'Connor: Now, the State didn't have to do that.

It could have drawn districts in your view that could have majority minority figures for Democratic voters that would enable a black to be elected and an Hispanic to be elected in the two adjacent districts.

Mr. Troy: That's exactly right, Your Honor.

You can't use race for mere administrative convenience.

Simply because it's easier to use race to determine who's a Democrat does not justify the use of race.

Justice Breyer: Didn't it say on the... there must have been a computer printout, and it must have shown, let's say block by block, who the voters are, and didn't it have in that computer printout, or whatever they were looking at, the registration of a voter?

Mr. Troy: No, Your Honor.

Justice Breyer: It didn't?

Mr. Troy: It did not.

Registration data was not available on that computer.

What was available on that computer below the block level... below the precinct level was only racial data.

At the precinct--

Justice Breyer: At the block level... at the level of each block they had--

Mr. Troy: --At the level of each block, of each census block they had racial data, and racial data only.

Justice Breyer: --And--

Mr. Troy: And that was the primary tool that was used for dividing up these districts.

Justice Breyer: --But what's the smallest level that they had political party affiliation.

Mr. Troy: The precinct level, and they could only bring up--

Justice Breyer: Precinct level.

Mr. Troy: --On this computer they could only bring up a single election, and the district court found that that is really not what they used.

In fact, what the district court found was that to the extent that partisan data was used in the process, it was only known to the congressional incumbents and to their staffers, and they might occasionally call up Chris Sharman and tell him some stuff, but by and large he used race as the tool, and the partisan data was not systematically available.

Justice Breyer: All right, so in your view, if the legislature was trying to create a district to comply with Voting Right Act section 2, and in doing that they used race, and I don't know how else they would do it, that would be constitutional.

In your view, if, after doing that, they created an odd shape, and the oddness of that shape had nothing to do with race, it was pure... that would be constitutional, but you think that's not what happened here.

Mr. Troy: That is not... that is exactly xx what happened here.

Justice Breyer: But are the two principles right?

Are the two principles correct, in your view?

Mr. Troy: The two principles are right, but that is by no means what happened here.

What happened--

Justice Breyer: All right, the two principles are correct, and then we'd have to argue about what happens here.

Mr. Troy: --In Harris County, they were--

Justice Breyer: But that is correct, isn't it, that's your view?

Mr. Troy: --If there's absolutely no link between the shape and the racial demographics, then... then race was not the motivating factor.

Justice Breyer: But a mere correlation is not the kind of link that you're condemning.

Mr. Troy: Your Honor--

Justice Souter: I mean, if this case... let's assume that this judgment stands, and they have the same objective, and for the sake of incumbency protection this time they use whatever data they've got, let's say precinct level data, so that the lines are not going to be quite so fine but you still get a funny looking shape for purposes of incumbency protection, and your incumbency protection data is entirely political Democratic data or Republican data as opposed to race, and it ends up looking something like this, there will still be a factual correlation.

You can say, well, gee, the Democrats seem to be black, and most blacks seem to be Democrats, but you would not find that a violation of the Shaw rule.

Mr. Troy: --If the State accomplished its asserted goal of partisan gerrymandering through the use of nonracial data, then that is permissible, but... but, here they used racial data to accomplish that goal, and that is we think completely forclosed by... for example, if, in Gomillion, someone had said, well, we didn't fence out the blacks in order to... in order merely for discriminatory reasons, we fenced out the blacks because we wanted to be sure that we could be reelected because we know blacks won't vote for us, that is completely impermissible.

Justice Souter: Okay.

Mr. Troy: Similarly, in... this Court has never permitted a township to say, well, we want to maintain property values, and the best way that we could do that is by using... is by using something that is discriminatory in purpose, but our real goal... our real goal is to preserve--

Justice Souter: Right, it's going to be bona fide, sure.

Mr. Troy: --Okay.

That's--

Justice Souter: May I ask you a different... I guess the next step question.

Let's assume that the political correlation... let's assume that the political data in the computer about prior voting patterns is going to be a basis for drawing funny lines, for making these adjustments, and the purpose is incumbency protection.

Assume, secondly, that you've got two essentially adjoining Democratic districts.

No matter how you draw the lines, 1 and 2 are both going to be Democratic districts, and they've got a choice between drawing the lines in such a way that puts a lot of blacks in a white district and a lot of whites in a black district.

And somebody says, traditionally, if we were worried about the feelings between the French and the Irish, we draw the line in such a way so that the... most of the French could be in a predominantly French ward, and most of the Irish could be in a predominantly Irish ward.

Now we've got a situation in which instead of French and Irish it's black and Hispanic, black and white.

Can they do the same thing for the blacks who want to be in a black district that they could do for the Irish in the old days who wanted to be in an Irish district?

Mr. Troy: --I think if you have two compact, contiguous, naturally occurring--

Justice Souter: No, it's not compact in the sense that the lines are nice.

They're protecting incumbents.

They can protect Democratic incumbents either way, and they've got a choice between doing what they used to do for the French and the Irish or the Poles and the Jews or whatever, and the choice is now doing it for blacks and whites.

Can they do the same thing, if, in fact, there is such a tradition?

Mr. Troy: --No, Your Honor, I think it would be impermissible for a State to go block by block dividing up an integrated Polish or Jewish community.

Justice Souter: Okay.

Can they still do it for the French and the Irish, then?

Mr. Troy: I don't think so.

I do not think you can go block by block, house by house--

Justice Souter: So it's one rule for everybody.

No more of this kind of--

Mr. Troy: --Absolutely.

A religious gerrymander is as impermissible as a racial gerrymander.

Justice Breyer: --Yes, but--

Mr. Troy: If you're going--

Justice Breyer: --if they're just interested... I mean, a Democratic legislator or city councilman who wants to be reelected I take it is interested only in one thing, people who will vote for him, and he doesn't care what their color.

So if he sees St. Mary's Church on the corner, and thinks there must be a lot of Catholics in that neighborhood, and they usually vote for me because they're a certain political party affiliation, or a State legislator who thinks, I know the synagogue of a certain kind is over there, and he really knows it, and happens by accident to tell somebody that's what he's thinking, is that now all contrary to the Constitution?

Mr. Troy: --I think if at a certain point the predominant goal is the separation of races or religions or ethnicities, if that is the tool that is used to accomplish incumbency protection, then that is constitutionally--

Justice Souter: Yes, but Justice Breyer's example is different from mine.

In mine, I'm talking about making the Irish or the Poles or the Jews or the Wasps or what not happy to be together.

In his, the sole motivation is incumbency protection.

Why isn't your answer different from him from what it was for me?

Mr. Troy: --Well, I think I gave the answer on... the motivation... the motivation does not matter if the means is race or ethnicity.

This Court has said it doesn't matter what your ultimate goal is, you cannot use certain forbidden tools.

Race is forbidden by the Fourteenth Amendment to be used as a tool--

Justice Souter: But in his example the people... St. Mary's gets in not because they're Catholics but because they're Democrats.

Mr. Troy: --Well, that's in essence--

Justice Souter: He knows that.

Mr. Troy: --a question of fact--

Justice Souter: He knows that.

Mr. Troy: --for the district court as to whether or not the predominant motivation was whether they were Democrats or whether they were blacks.

Justice Souter: So if, in fact, the Court says they only wanted the St. Mary's Parish in there because they were Democrats, no problem on your theory.

Mr. Troy: Again, it's a question of fact as to what--

Justice Souter: Yes, but I mean, if that's what the fact finding is, that's not... that is not suspect on your theory, right?

Mr. Troy: --It is not suspect to get Democrats.

It is suspect to use race as a tool or religion as a tool to tell who is of one party affiliation or another because race is immutable and politics are not, and the use of race is so dangerous that this Court has said that it should not be used unless there is a compelling governmental interest and it is being used in a narrowly tailored way.

Justice Ginsburg: But Mr. Troy, this is the part of your argument that I have great difficulty grasping.

If race were used alone and nothing else, that would have been all right.

If the districts had been created so that they would be majority minority districts, and then the white incumbents were not part of the picture, so we had a district determined solely by race and not by incumbency, and not by anything else, that would be all right.

But once you intrude something that's nonrace, then it's unconstitutional.

That's the part that I don't understand, the logic of that, but you conceded, because that was the first step in the argument, that if... that the State has a goal, wants three majority minority districts, a racial goal, that's okay.

Mr. Troy: Well, Your Honor--

Justice O'Connor: Counsel, did you concede that--

Mr. Troy: --I don't really think I conceded that.

Justice O'Connor: --or did you say it would require strict scrutiny if that were the case?

I thought that was what I understood your response to be.

Mr. Troy: Thank you, Your Honor.

That's what I thought I said.

Justice O'Connor: Have you made some other response to Justice Ginsburg that I missed?

Mr. Troy: No, I don't think I did.

I think--

Justice Stevens: No, I thought you said in the hypothetical that it would be compactness and other factors that would be in addition to race, and that's why you say that--

Mr. Troy: --Your Honor, I think if you start out and race is your only goal, then maybe the Voting Rights Act--

Justice Stevens: --You said if the district were compact, the fact that they might have been motivated by an interest in getting two or three majority minority districts would not have invalidated the plan.

You did say that, didn't you?

Mr. Troy: --Let me explain.

Justice Stevens: I thought that's--

--Did you say that or not?

Let me find out, did you say that or not?

If they were compact districts, contiguous, nicely square in every case, but it was perfectly clear that there was a motive to get two or three majority minority districts, did you not say that would be okay?

Mr. Troy: I don't think so.

Justice Stevens: Okay.

Mr. Troy: And if I did, perhaps I misspoke.

Justice Stevens: You did, then.

Mr. Troy: Okay, I misspoke.

[Laughter]

I apologize.

If your goal, your dominant goal is racial, then strict scrutiny applies, okay.

Now, it may well be--

Justice Scalia: So that in--

--What does the statute require, then?

I mean, I certainly agree with you, I had understood our Constitution to prevent the use of race as a surrogate for... however good the objective may be, you can't use it, but then what does the... doesn't the Voting Rights Act, or our interpretation of it make the opposite assumption?

How am I to reconcile the two?

Doesn't it assume that in order to have what is being called here minority opportunity you need to herd minority voters together because they will all vote the same way?

Isn't that the assumption of our interpretation of the act, or of the act itself?

Mr. Troy: --I don't think so, Your Honor.

Justice Scalia: It isn't.

Well, then, I don't--

Mr. Troy: I think the Voting Rights Act prohibits--

Justice Scalia: --Why are they worried about creating minority... majority minority districts in order to comply with the act, then?

Mr. Troy: --I think the Department of Justice's maximization policy was hanging like a Sword of Damocles over this entire process.

They went in with the assumption... and this case is sort of Miller but without the Department of Justice playing its heavy hand.

They went in with the assumption that so long as they maximized they would be okay with the Department of Justice, and therefore they could do anything else they want, use race as a tool for purposes of incumbency protection, and that they did not have to narrowly tailor these districts to make them comport to requirements of section 2, if, indeed, section 2 is implicated.

But section 2 only requires geographically compact districts.

These are not geographically compact districts.

Justice Souter: All right, but why, then--

--But what if they were?

--isn't your answer to Justice Stevens--

--Yes, but what if they were?

Would that make any difference?

Mr. Troy: It seems to me if the Voting Rights Act requires you to draw these districts--

Justice Stevens: I'm just asking you, if they were compact, would that make any difference?

Mr. Troy: --If the Voting Rights Act required you to draw--

Justice Stevens: No, no, no.

No, I'm just saying, in this case, if we had compact districts such as they started out with before they got into all the incumbency protection, would the case be any different in your view, and I'll give you a second question.

You can give me the answer to both.

Under the district court's reasoning, if they did create the same number of majority minority districts but they had gone back to where they had a few more Republican districts and a few less Democrat districts, as I think would make the difference, would that have been all right?

Mr. Troy: --I don't think I follow your second question.

Justice Stevens: Well--

Mr. Troy: Sorry.

Justice Stevens: --What is the remedy that the district court is requiring?

They have to redraw the districts.

Mr. Troy: They have to redraw the districts.

Justice Stevens: In redrawing them, can they continue to have the same number of majority minority districts but differently shaped?

Mr. Troy: Your Honor, we do not think that under the Voting Rights Act they can create single race majority districts here because the communities in question do not live in a sufficiently geographically compact area to require drawing of single race majority districts, and that is what they tried to do here.

They set out to draw single race majority districts.

Justice Breyer: Can you answer the first question that Justice Stevens asked?

Mr. Troy: I'm sorry.

Justice Breyer: And the reason... the reason is, at least I break this question into two parts, or maybe three, and to get to an answer I have to have your opinion on just his first question, which was, if these were compact, and drawn to comply with section 2, and race was used... of course, section 2 is about race... wouldn't that be a compelling interest?

I agree that Justice O'Connor says under Miller it's a compelling interest.

Would that not be a compelling interest?

Mr. Troy: Oh, yes.

Justice Breyer: Yes.

Mr. Troy: We believe that if section 2--

Justice Breyer: All right.

So you then do concede--

Mr. Troy: --Absolutely.

Justice Breyer: --which is what I thought at the beginning--

Mr. Troy: If section 2 required these districts to be--

Justice Breyer: --All right.

Mr. Troy: --Yes.

Justice Breyer: So if they're drawing them now in order to comply with section 2--

--Why do you concede that, counsel?

[Laughter]

The Court has never held that compliance with the Voting Rights Act is a compelling State interest.

Mr. Troy: That is true, the Court has never held that, but--

Justice Breyer: May I ask you an alternative--

--I think he's finishing answering my question.

Oh, I'm sorry.

Mr. Troy: --We believe that in trying to have the State avoid the horns of a dilemma, a dilemma which, by the way, we think they falsely posit because they overinterpret the Voting Rights Act in far too broad a way, but we think that if you interpret the Voting Rights Act in a constitutional way to say that it simply prohibits discriminatory packing and cracking, then avoiding discriminatory packing and cracking can be a compelling governmental interest.

But it turns upon, Your Honor, how you interpret the Voting Rights Act, and we think that certainly if the State sought to comply with their interpretation, or with the Department of Justice's maximization policy, then it would never be... it could not be a compelling governmental interest, so it depends upon how you interpret the Voting Rights Act.

Justice Souter: All right, may I go back to the Miller definition.

I understood you to say a moment ago that if the motive was simply to create a majority minority district, and we didn't know anything more than that, that that would, in fact, be unconstitutional.

Now let me add something to what we know.

Let us assume that in creating that majority minority district, number 1, the motive was to comply with the Voting Rights Act, and number 2, that in fact the district shape that came out of that process was a shape which was consistent with the shape that traditionally gets arrived at in districts when traditional districting practices are followed, as, for example, in Justice Stevens' case, it is a compact district.

Mr. Troy: It--

Justice Souter: If that is... if those three facts are what we know, is it fair to say under the Miller definition of what is a subordination of districting to race, that we would not have an apparent case of subordinated districting to race?

That would be okay under the Miller definition, and it would not trigger strict scrutiny.

Is that correct?

Mr. Troy: --If you start out and your goal is to create... it seems to me that you can't really have it both ways.

If you want to say, we are going to draw remedial districts to comply with the Voting Rights Act, then you're almost by definition, I believe, going to be in strict scrutiny, because you are using race for a remedial purpose.

Then the question--

Justice Souter: Then what happens if... let's assume... all right, if I take that example, then it seems to me I am varying Miller, because Miller didn't say that any use of race, whether for compliance of section 2 or any other, is wrong.

Miller says it's only wrong when it is subordinated to traditional districting practices.

Miller puts a limitation on it, and it seems to me that your answers to us do not recognize that limitation, so that if we were to agree with you, the Court would have to expand Miller.

Mr. Troy: --I think, Your Honor, that if you set out to create a racial goal, and your goal is to comply with the Voting Rights Act, and that is a remedial statute, and your purpose in complying with it is remedial, then it seems to me that your overwhelming purpose, because we're talking about the use of race here, must be remedial, and that--

Justice Scalia: All right--

--It depends on what Miller means by subordinated.

I suppose one could say that if you start out with objection number 1 to create a majority minority district, that is your primary goal.

Everything else, even though you follow other criteria, could be regarded as subordinated to that.

Mr. Troy: --That--

Justice Scalia: So that's your starting point.

Mr. Troy: --I think that's right, that is your starting point.

Justice Souter: All right, but that's not what Miller says, is it?

Miller says that it's predominant if it subordinates traditional districting practices to race, and I think what you're saying is, whenever you start out with the motive of creating a majority minority district, you in fact trigger strict scrutiny, and by definition you have always... you have subordinated every other consideration to race.

Is that your answer?

Mr. Troy: If you start out with--

Justice Souter: I think that's what you're saying.

Mr. Troy: --Yes.

Justice Souter: Okay.

Mr. Troy: If you start out with the goal--

Justice Souter: So isn't it--

Mr. Troy: --of accomplishing race, and you use race as... at all times to make sure... abandoning compactness, abandoning requirements of the Voting Rights Act--

Justice Souter: --No, no, no, let's assume you don't abandon them.

You end up with a compact... we get into court.

The redistricting is done.

You've got a compact district.

It goes back to Justice Stevens' question.

You've got a compact district.

The traditional districting principles have, in fact, apparently been honored here.

Strict scrutiny or not?

Mr. Troy: --Strict scrutiny.

Justice Souter: So I think... is it fair to say, then--

Mr. Troy: If race was the predominant factor in drawing--

Justice Souter: --Oh, I grant you that.

Mr. Troy: --strict scrutiny.

Justice Souter: Is it fair to say, then, that you are in fact asking us to recognize a cause of action which is broader than Miller recognized, because otherwise that language in Miller did not mean what it said.

It was in fact a misspeaking by the Court.

Mr. Troy: I think, Your Honor, if race is the predominant motivation, and you look--

Justice Souter: No, but that's the question.

Mr. Troy: --Right.

Justice Souter: Miller says, in deciding whether it is predominant or not, you look to whether it has excluded the application of traditional districting principles.

If it hasn't excluded it, then either it isn't predominant, or you've got a pretty tough row to hoe to show that it is, and you're saying, never mind whether the result is consistent with traditional districting principles or not, and that's why I say I think you're asking us to expand on Miller.

Mr. Troy: I don't think so, Your Honor, because Miller talks about the indirect and the direct evidence, and in this case--

Justice O'Connor: Well, I guess you don't have that here, do you?

I thought the finding was these districts did not follow normal compactness and, indeed, are quite irregular, so you don't have the hypothetical here, I assume.

Mr. Troy: --That is certainly true, Your Honor.

Texas tries to say that their only districting principle ever has been incumbency protection, and the district court found as a matter of fact that Texas had traditionally adhered to and followed other traditional districting principles and it had, in fact, abandoned compactness.

Chief Justice Rehnquist: The three judges of the district court were all Texas judges here?

Mr. Troy: They were all Texas judges.

Justice Breyer: The thing I wonder about the particular finding on page 65a is, I've got the point that if these were compact maybe you apply strict scrutiny, that section 2 perhaps we'd agree would justify it.

If they depart from the compactness solely for nonracial reasons, I think we agree, but I'm not certain, that solely for nonracial reasons it would be okay, and then the question is, what did they do here, and what he says is, in order to protect incumbents other African American voters were deliberately fenced out.

But what it doesn't say is whether those African American voters were fenced out because they were African Americans or because there was an inference about their voting behavior in respect to one incumbent or another--

Mr. Troy: If I--

Justice Breyer: --and wouldn't that be key as to why they were fenced out, just as you've said you might have Jews in a district knowing that they're Jews and likely to vote Democrat, and you say okay, that's all right, if the reason is that they're likely to vote Democrat, and isn't this silent as to what the reason that the African American voters were or were not fenced out?

Mr. Troy: --Your Honor, in this case the African American and the Hispanic communities in Harris County were simply pulled apart for their own sake.

That is what the district court found.

They were pulled apart because the Hispanic community said, we want our own district, and we don't care about Gingles, we don't care about compactness, we want our own district.

Justice Scalia: Mr. Troy, I didn't understand you to say what Justice Breyer just said.

Maybe you agree with him.

I didn't understand you to say that you could include, let's say Jews in a district because you know that Jews will vote Democratic.

Mr. Troy: In fact, I did not say that.

I said you cannot--

Justice Scalia: I thought you said just the opposite.

Mr. Troy: --In fact, I did.

I said that neither race nor religion may be used as a proxy for determining political affiliation.

Justice Breyer: So then that means you do favor, or somebody could bring a lawsuit in any kind of city council election, any of the thousands of elections in the United States and try to show that what the council had in mind was, it... all it knew was, this is an Irish neighborhood, this is a Catholic neighborhood, this is a some other neighborhood, and we're only interested in whether they vote Democrat or Republican, but if you could show that's in the councilman's mind at the time and he's making that inference, all this would become unconstitutional, thrown into the Federal courts, et cetera.

Mr. Troy: The reason why I don't think that's going to happen, Your Honor, is because of compactness, contiguity, respect for political subdivision.

What I understand what happens in city councils throughout the country is they take a look at particular neighborhoods, particular areas of interest, where people have things in common like the schools they go to, the places they shop, the water supply, the potholes in the streets.

What they did in this case was, they abandoned that and they said we are going to, particularly in Harris County, we're going to separate the races.

We're going to take someone who lived in the northwest corner of the city and who's always voted in District 18, who's Hispanic, we're going to take Al Vera and we're going to lump him with the Hispanics in the southwest... in the southeastern part of the city because he is Hispanic.

That seems to me to not respect traditional principles and to be affirmatively unconstitutional.

And Your Honors, in Texas what the court found, in Dallas what the court found is that simply, there was capitulation to a demand by the Dallas black community that... I'm quoting the Department of Justice's narrative, the narrative to the Department of Justice.

This is what Texas told the Department of Justice, that

"the Dallas black community insisted that a safe black district be drawn that had a total black population of at least 50 percent. "

That's at the joint appendix at 106.

Your Honors, we've gotten off on the... because we've been entertaining hypotheticals we've gotten far away from what happened in this case, and what happened in this case was that race was used as a tool for incumbency protection only secondarily.

Primarily, there was this maximization policy of the Department of Justice that everybody knew about.

They... Eddie Bernice Johnson specifically said, my policy was, if it could be drawn it must be drawn, and all other concerns were subordinated to that, and so that is what happened here, and that, we submit, is unconstitutional.

If there are no further questions--

Justice Stevens: I have one if you do have a minute left.

Supposing you started out with three compact districts that were contiguous, and race was one of the reasons for drawing them that way, but if you drew them that way, the Democrats were in control, they found they would create a few more Republican seats than they wanted to, so they redrew them with squiggles to get more Democrat seats... forget about incumbents, just party politics, simply... would that be a permissible reason to do it, in your view?

Mr. Troy: --I'm sorry.

Justice Stevens: Would that be a permissible reason to redraw and get unattractive districts in order to protect the number of Democrats, as opposed to the number of incumbents?

Mr. Troy: I'm not quite sure I caught your first hypothetical, and my time is up, but I'd be happy if the Chief Justice will permit me to--

Chief Justice Rehnquist: Just go ahead and answer.

Mr. Troy: --The first part--

Justice Stevens: The hypothetical is that you start with compact districts that you would say would barely pass muster, even though race was an important factor in picking them up, but you get into noncompactness and gerrymandering in districts like this not to protect incumbents as such, but to make sure that the Republicans, who do not control the legislature, won't get too many seats.

Mr. Troy: --I think if your motivations are political, then your motivations are political.

If your motivations are racial, your motivations are racial, and if your motivations are--

Justice Stevens: The question is whether a political motivation would be a justification.

Mr. Troy: --Political... for noncompactness?

Unknown Speaker: Yes.

Mr. Troy: It can be, yes.

Justice Scalia: I think he's asking for noncompactness on the basis of race.

Mr. Troy: Noncompactness on the basis of race, no.

If it's noncompactness... if--

Chief Justice Rehnquist: Well, look, your time is up.

Mr. Troy: --If there are just whites, and it's just a Democrat, and you jiggle the lines, that's okay.

Chief Justice Rehnquist: I think you've answered the question, Mr. Troy.

The case is submitted.

Attribution:

The Oyez Project

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