Cases by Issue - Voting Rights Act of 1965

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:

Georgia v. Ashcroft - Oral Argument

Fri, 09 Jan 2009 14:50:36 +0000

Case:

Georgia v. Ashcroft

Media File:

02-182_20030429-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of David F. Walbert

Chief Justice Rehnquist: We'll hear argument now in Number 02-182, Georgia versus John Ashcroft.

Mr. Walbert.

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

For some 6 decades now, the policy of the United States has been to embrace integration, reject segregation and separation of people.

We stand... really, the Nation of the United States of America stands pretty much as the beacon in the world to the notion that balkanization is not the way to go.

Particularly in public affairs and in public life, integration, working together, not separating people on the basis of race is our goal.

This Court started that trend, that great trend, in the early... in the 1940s with the original decisions of Smith versus Allright, putting aside segregation, the past history of that in this country, the ICC, Interstate Commerce Commission desegregation decisions, Brown versus Board of Education, voting rights cases, jury cases, and so on.

And the policy of the United States, as this Court was the leader on that at all times, has always been... has been for integration, for treating people the same independent of their color.

Congress followed behind this Court, started adopting some of the early Civil Rights Act in the early 1950s, the more moderate ones, if you will, under... under President Eisenhower's administration, and of course, the great Civil Rights Act of 1964 was enacted.

1965, Voting Rights was enacted; and the 1968 Open Housing Act.

Throughout that entire time, the policy of integration has been the policy that this Nation has embraced and espoused and advocated.

And I would submit to Your Honors respectfully that the State of Georgia... the position the State of Georgia puts before this Court in this case today stands four square in the center of that tradition.

Georgia comes here to this Court today advocating that politics should be open and integrated.

Politics should not have allocations unnecessarily, in particular, of seats based on race.

I would submit to this Court that what we say is totally consistent with everything this Court has said that touches upon this matter and in this particular regard.

Unknown Speaker: Could we bring it down to what we have to decide here, which is whether there was retrogression or not?

Mr. Walbert: Yes, Justice O'Connor, and I was going... excuse me.

Justice O'Connor: And on that, do we look at the whole State and what would happen overall, or do we just focus on individual legislative senatorial districts?

Mr. Walbert: Well, I think you look at both, and when you look at the whole plan of redistricting, then you go down to look at the district.

You can't do one without the other.

One looks at, first of all, the whole plan and sees if opportunities are the same in terms of majority and minority seats, for example, or opportunities where minorities have a real opportunity get election, and sees whether that, under the whole plan, is the same and whether that's been maintained.

And to do that, though, one has to look--

Justice O'Connor: Well, what... what ended up deciding this case apparently was the fact that in three of the districts that were drawn for the Senate, the number of black voters decreased under the new plan from what it had been, and they had been very safe districts--

Mr. Walbert: --Yes, Your Honor.

Justice O'Connor: --assured of electing black officials before, and it was reduced to around 50 percent.

Is that right?

Mr. Walbert: That's correct.

The... the likelihood of winning... the... the black voter age population was reduced to about 50 percent--

Justice O'Connor: Yes.

Mr. Walbert: --which according to the evidence, would give about a 75 percent chance of a minority candidate of choice winning in that particular district.

Justice O'Connor: And was that the finding of the court below?

Mr. Walbert: The finding was that safe seats... the rule of law was that safe seats must be maintained.

To get a safe seat here, one had to raise these 4 to 5 percent.

Justice Souter: Is--

--So that's the--

--Is... is that one of the ways, at least, that you think we ought to view this case?

As I understand it, no one on the other side is claiming that the percentage of safety has got to be maintained in order to avoid retrogression.

But one difference between you and them, at least as I am reading what you're saying, is you, I think, are saying they maintain the same opportunity to elect.

Minorities maintain the same opportunity to elect if they use their best efforts and their good politicians in doing it.

Whereas, the other side seems to be saying, there's got to be more of a margin of safety for maintaining... or avoiding retrogression than merely best efforts.

There should be some margin of safety, even if it's not as great as it used to be under the old districts.

Is that a fair way of looking at the disagreement?

Mr. Walbert: I... I think it understates it a little bit, in all due respect, Justice Souter, because I think the district court came squarely down.

If you look at the majority opinions... and both Judge Sullivan and Judge Edwards wrote ones that were concurred in about each other... and Judge Oberdorfer's decision, the line is safe seats.

One must maintain safe seats.

And I think the only way that those can be looked at in this case is that all of the evidence is... when you get to that level, no one has ever... on an open seat in Georgia, no one's ever lost a 54 percent BVAP seat.

Justice Ginsburg: Mr. Walbert, I didn't get that impression from Judge Edwards' opinion or Judge Sullivan's.

They both say we are dealing with a narrow section 5.

It has a concept, retrogression, backsliding.

And I assume that they would say if you start out, you start with the status quo.

Everyone agrees with that.

If you start out with, say, 30 percent and you end up with 30 percent, it's okay.

You don't have to have a safe district because the starting point may not be safe.

Mr. Walbert: I... I agree entirely with that, Your Honor.

I didn't mean to suggest that they are requiring more than that.

The fact is that these districts that evolved demographically from the 1990 Census, when two more districts under the old districting plan became majority minority, became high BVAP... let's take Senate District 26, for example.

Justice Ginsburg: Well, is it... are you saying that when you get up over a certain number of black voters, say, 50 percent, then retrogression or backsliding is really out of the picture because it's good enough?

Mr. Walbert: Well, I would say this.

Where you have a real equal opportunity at winning the seat, that is enough.

Justice Souter: Yes, but that's the... that's the conclusion, and we're... we're looking for some kind of indication at this point of whether that is true.

And the only indication that at least I have and I think that Justice Ginsburg is... is looking at right now are... are the percentage figures, the BVAP percentage figures.

Mr. Walbert: Well, I think this, Your Honor.

I mean, the... the court accepted Dr. Epstein's probability curve all over... any number of times.

I think it was on page 36 the first time.

Dr. Epstein's evidence is... his study is reliable and relevant is what the court says in that regard.

And I guess the critical thing is that was the only evidence in this case, plus the legislators who testified, and... and Congressman Lewis who testified about the likelihood of winning at a 50 percent BVAP level.

Justice Kennedy: Let... let me ask you this because some of what you say might be explained as just a difference of... of... a conclusion of facts, which we have to accept.

Were there legal premises that the majority opinions adopted below that were wrong?

Was it wrong to talk about robust campaigning?

Was it wrong to consider polarized voting?

Were there... did the controlling opinions make reference to any impermissible legal standards?

Mr. Walbert: Well, I think the bottom line standard of safe seat is the problem that we have.

I'm not sure that... they didn't speak of robust campaigning, with all due respect, Justice Kennedy.

It was robust districts, meaning... they equated that with safe.

And the... the point... that is the legal issue.

That is the fundamental legal flaw in the opinion of the majority below that we take issue with, the fact that one must maintain safe seats and--

Justice Breyer: What's... what's the legal issue?

Mr. Walbert: --That--

Justice Breyer: That is, I... I thought there's a statute, and the statute here says that you cannot have a new plan which will have the effect of abridging the right to vote on account of race.

Mr. Walbert: --Yes, sir.

Justice Breyer: And Judge Edwards says that that statute has been interpreted to mean you cannot backslide, and he adds that if you go from a safe seat to a seat where there's only a fair opportunity, that is clearly backsliding unless it's made up for in other districts.

Let's call it frontsliding.

And here there is no evidence of frontsliding, and here there are two experts who disagree as to the backsliding.

One is Epstein who thinks there isn't, and the other is Engstrom--

Mr. Walbert: Well--

Justice Breyer: --who thinks there is.

And two judges below agreed with Engstrom and one judge below agreed with Epstein.

Mr. Walbert: --I--

Justice Breyer: Now, are we supposed to do... to go back and redo the work of those three judges and say, well, we happen to think Epstein was better or the other one thinks Engstrom was better?

Is that this... what this case is about?

And if it isn't about this, I don't know what it's about.

Mr. Walbert: --Well, first, that's not what happened in the record.

Professor Engstrom gave no testimony.

There was no testimony but from our side of the case about the likelihood of winning.

Professor Engstrom came in and said there is racially polarized voting, and he criticized that and the Department criticized it, and it was relied upon.

But the African American candidates were winning in election after election after election in which he said there is a problematic racially polarized voting.

Justice Breyer: I... I'm overstating what I say for purposes of clarity, because you're giving a view of Engstrom, and I'm sure the other side will give a somewhat different view, but nonetheless, I want to know what it is I'm supposed to do as a judge in this Court.

After reading it, I thought what you're asking me to do is to go back, look at what Judge Edwards and the other majority judge cite as convincing, factual, detailed statistical evidence, look at the evidence of the political figures who are very distinguished whom Judge Oberdorfer cites the other way, and remake that evaluation that three judges of... of a three-judge district court did.

Now, my question is, is that right?

Have it got it right what you think we should do in this case?

Mr. Walbert: No, you do not.

Justice Breyer: All right.

Good.

Then what is it I'm supposed to do?

Mr. Walbert: The rule of law that was established here by the majority of having to maintain... having to maintain a safe seat.

There's no question they're not saying you have to create one if there wasn't one, but the question is, do you have to maintain a seat that's safe?

Justice Breyer: All right.

Why... if that's the issue, assuming that the safe seat, going down to only a probable seat, is nowhere made up for by countervailing factors elsewhere in the State, assuming that, why isn't going from a safe seat to a fair probability seat... why is that not backsliding, retrogression, other things being equal, an abridgement, a... the effect of abridging the right to vote because of race?

Mr. Walbert: Well--

Justice Breyer: Why isn't it?

It if that's the issue, why isn't it?

Mr. Walbert: --There's two reasons.

And... and first of all, no one disagrees that lowering the percentage and the likelihood down... the... we're not... no one in this case, including the district court, says you can't lower the probabilities.

So what Your Honor is saying is a position more extreme than what the majority says below.

Justice Breyer: I'm reading... I'll say it again because I'm reading from Judge Edwards.

Going from a safe district--

Mr. Walbert: Yes, sir.

Justice Breyer: --into one where there is only a fair opportunity, that... that, he says, other things being equal in the State, will constitute retrogression in effect, not necessarily in purpose, but in effect.

And now, why isn't that so?

Mr. Walbert: And... and my point is that he is conceding that dropping down from a certain seat to a safe seat is okay.

Now, how does that... how can that possibly square to the notion of retrogression?

Everybody agrees in this courtroom, including the majority below, that there can be decreases in the likelihood of success.

The only question in this Court... in this case is where do you draw the line?

Safe or equal seats?

Safe is just out of the air.

Never before in the history of this Court has anyone ever said safe is the... is the Plimsoll line or the water line beyond which you cannot drop.

Justice Scalia: You're drawing a distinction between safe and certain.

Now, did--

Mr. Walbert: Well, safe is--

Justice Scalia: --Did Judge Edwards--

Mr. Walbert: --And that's what the... and the court is acknowledging that there is a drop for sure.

The court said--

Justice Scalia: --A drop that makes no difference.

That's... that's how I understood their opinion.

Mr. Walbert: --I don't think that could be, because--

Justice Scalia: A safe seat is a safe seat.

It means a certain seat.

Mr. Walbert: --No, it doesn't in this case, Your Honor, because when you get to the levels they're talking about, there is still a possibility for sure, whether it's 20 percent or whatever, but that's a real possibility.

Justice Breyer: But I didn't think we're dealing with safe versus certain in this case.

I thought what we're dealing in this case is two judges decided that dropping from safe to whatever you want to characterize this level... Edwards characterizes it as fair probability, but characterize it as you wish... dropping from safe to this level, however you want to characterize this, is a retrogression.

And one judge thought it wasn't given the circumstances.

So what is it that you, aside from re-evaluating the evidence, believe that we should say?

Mr. Walbert: They used different legal standards, with all due respect, Justice Breyer.

Justice Breyer: And what is that difference?

Mr. Walbert: Safe versus equal.

That is the difference in the legal standards between the majority and... and the decision below.

Justice Breyer: Or why is Edwards' standard in your opinion wrong?

Mr. Walbert: Because I think it's inconsistent with what this Court has said on section 5 before.

And if I might read several of the... just a sentence.

And I'm going to start with Justice Marshall, who was the most aggressive interpreter and advocate of what section 5 would mean.

And in his dissent, in the case of United States versus Mississippi in 1980, he three times addressed what section 5 requires in a retrogression context.

And he said in the first thing, it requires a reasonable opportunity to elect a candidate of their choice.

That is what a district had to be maintained like under Justice Marshall's interpretation of section 5.

That's on page 1055 of that decision.

Again, on the next... on page 1057, Justice Marshall says, the numbers must be sufficient to provide, quote, a fair opportunity to elect candidates, unquote.

Justice Ginsburg: That sounds very much like section 2 language.

Mr. Walbert: And... and that's in section 5 under Justice Marshall is all I'm saying, Your Honor, because this issue that is in this case today has never been squarely put before this Court.

But all the prior language of the Court interpreting, where does section 5 kick in when there is still fair, equal districts.

Justice Ginsburg: I thought that the Bossier, the two cases, clarified the difference between section 2 and section 5, and what you just read from Justice Marshall sounds to me like the section 2 standard.

Mr. Walbert: Well--

Justice Ginsburg: Section 5 standard is you start with what you have, you look to see if there's backsliding.

Mr. Walbert: --I think the problem, though, Judge... and... and certainly you start with backsliding and retrogression, but the question is, where does inquiry stop?

Truly, you could say at a 100 percent district goes down to 80 percent, the chances clearly change on electoral success, without a doubt.

That is inevitable.

Goes from 100 to 60, 100 to 55.

That is a real and palpable change.

That is okay, according to the district court, because at least we stopped at safe.

That's our problem.

We don't think safe is where you arbitrarily draw the line to stop.

No decision of this Court ever has suggested that before.

So is--

Justice Ginsburg: Well, you start with, say, 55.

Where does backsliding start in your view of section 5?

Mr. Walbert: --In our view of section 5, so long as... if you have a district that is... that it has at least an equal opportunity, it must be maintained in that fashion.

If you have a... a district where minorities have an equal opportunity or better, to prevail and to control.

Justice Ginsburg: Well, then how do you fit backsliding, retrogression--

Mr. Walbert: If you go... excuse me.

Justice Ginsburg: --If... if you go, say, from 55 to what?

44?

That's okay because you... you would have a fair opportunity?

Mr. Walbert: If the evidence in a particular case would show that, that... you know, we never went below 50 on anything, so that's not here in this case.

Justice Ginsburg: Although it would seem an unusual definition of backslide.

Mr. Walbert: Well, I think the problem is this, though, Your Honor.

Where... what would be the policy reason where a section of the Voting Rights Act, section 5, could be construed to mandate a State to maintain something more than what Federal law could possibly compel it to under section 2?

Justice Ginsburg: It doesn't contain--

Justice Souter: --So... so what you're saying is--

Justice Scalia: --It doesn't contain the word backsliding, does it?

What... what's--

Mr. Walbert: Section 5 does not, Your Honor.

Justice Scalia: --What's the text that... that we're interpreting and... and--

Mr. Walbert: It's abridge--

Justice Scalia: --interpreting to mean backsliding?

Mr. Walbert: --It's abridge or deny the right to vote--

Justice Scalia: Abridge or deny the right to vote.

Mr. Walbert: --Yes, sir.

Justice Scalia: And... and that has been interpreted by some of our opinions to mean that once a certain level is reached, you're abridging or denying the right to vote if it goes below that level of... of safety.

Is that it?

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

Justice Breyer: And you--

--And the reason for that is because, I gather, historically there were quite a few instances where, indeed, in the South, you could elect... a black representative was elected by a black community in, let's say, one district.

And then, lo and behold, what happens is that the district boundaries are changed so that there happened to be a lot fewer black representatives elected out of districts that were predominantly black.

I take it that's why Congress passed this statute.

Mr. Walbert: Section 5?

Justice Breyer: Yes.

Mr. Walbert: No.

Congress passed the statute... section 5 in 1965 because they were concerned about voter registration laws changing after--

Justice Breyer: And backsliding so that you had fewer people who were--

Mr. Walbert: --It was... it was passed to dovetail with the literacy test.

That's why it was passed.

Justice Breyer: --So it doesn't really have to do with retrogression in your view?

Mr. Walbert: Sure, it does, as been interpreted by this Court since then, but the original reason why it was passed was to fit in with the literacy test.

Justice Kennedy: So what it... what it comes down to is not a... is... is that the State is entitled to take a safe district and make it a district where there's just a... an even chance.

Mr. Walbert: Equal opportunity, yes, Your Honor.

And... and our reasoning on that is... is a simple thing.

If one looks at it from the other side, and... and we're not saying section 2 is incorporated in section 5.

Justice Kennedy: And... and this cannot be within the definition of retrogression.

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

That cannot be the abridgement of the right to vote.

Justice Kennedy: May I ask a sort of a general question?

In any of the analysis, do the... the judges take into account the likelihood of winning primaries as opposed to the likelihood of winning the election itself?

Mr. Walbert: It's... it's implicit in what we did because we looked at the whole election scheme.

Everything that Dr. Epstein did was the whole election.

Dr. Engstrom made no distinction between nonpartisan elections, generals, and primaries.

He lumped them all together and treated them in one ball of wax.

We certainly did, and our evidence always looked at winning/winning, winning the seat.

If you won the primary and lost the seat, you're a loser because we're talking about winning the election.

That's all we looked at.

If you didn't win it, we didn't count it.

But the thing that is the most troubling, I guess, in this regard that is... and the reason I looked to section 2 is not that section 2 is incorporated in here, but if you assume that section 2 was proved... that a plaintiff came in and proved a section 2 violation in Georgia, what would be the high water mark relief that they would get?

They would get under Justice Souter's opinion for the Court in Johnson versus DeGrandy a district with an equal opportunity to prevail.

That--

Justice O'Connor: But we really haven't equated section 2 challenges with section 5 challenges.

Mr. Walbert: --That's correct, Your Honor.

Justice O'Connor: I know that's what you're arguing, but we have not done that.

And we have said that section 5 prevents retrogression.

So I think this case boils down to what amounts to retrogression.

Mr. Walbert: And I think, Your Honor, with all due respect here, I believe that the problem with interpreting it to be an absolutist at the safe seat level, you've got to... in our opinion... and we raised the issue, of course... it's a grave constitutional question.

What is the legitimate ends?

What is the legitimate ends into... I think the Court's discussion in City of Boerne versus Florida is the most detailed discussion recently about section 5 enforcement power under the 14th and section 2 under the 15th... and everybody on the Court agreed with the formulation there.

The ends of Congress must be legitimate and the ends must be related proportionately and with congruence, the... the remedies that are chosen by Congress.

And I would have to say what is... other than just preserving what happens to be there... the only reason we're talking about keeping safe seats is they happen to be there.

This is not because they're ever put in because of a remedy.

Justice Kennedy: Is it illegitimate for the State to decide to keep the safe seat if it wants?

Mr. Walbert: That's a different question surely, but no, I would say it's not, Your Honor.

I think as long as it's not--

Justice Kennedy: It is not--

Mr. Walbert: --Excuse me.

Justice Kennedy: --illegitimate.

Mr. Walbert: Correct.

Justice Kennedy: It... it is proper.

Mr. Walbert: I think that is within the State's prerogative so long as--

Justice Kennedy: Well, then is it proper for the Justice Department to consider that in its discretion in deciding whether or not to preclear?

Mr. Walbert: --You know--

Justice Kennedy: It's not using an illegitimate factor.

Mr. Walbert: --I'm going to add on the last part of that.

So long as it's not the predominant reason for the way the lines are drawn is how I was going to try and answer the... the rest of the last question.

So the State can do it.

And... and it is illegitimate in this sense, Your Honor, because you're getting back to the question about why didn't the State do it, which is almost like Bossier II.

What's the purpose and so on behind it?

So long as we maintain a system that satisfies the... what I would call the high water liability remedy level of section 2, that has got to be enough.

Justice Souter: All right.

What is your answer to this... this counter-argument?

I don't know whether the other side is going to make it, but let... let me... let me try it here.

The reason that section 5 is in there is that efforts simply to achieve your Plimsoll line, the... the equal opportunity, historically failed over and over and over and over again because every time a decree came down saying equal opportunity is required, there would be another voting change that, in fact, would inject a... a new fact pattern.

And the new fact pattern, just about every time, resulted in something less than equality.

Section 5 is there, in effect, to say you can't... you can't make a move without advance approval, and the only way, in effect... this Court has said in Beer, the only way to... or the... the best way at least, to keep from moving that line in a way which is going to result in less than an equal opportunity is to insist that at least the status quo, as best you can determine it, is, in fact, not going to be modified by the change.

And if the status quo is some measure of safety, then the theory of section 5 is preserve the measure of safety because if you don't do that, we know what's going to happen, and what's going to happen is you're not going to get to the line of equality.

That's the argument.

It's essentially an historical argument.

And what do you say to that?

Mr. Walbert: Several things.

First of all, the history Your Honor cites, which is correct in some regards, has nothing to do with redistricting history as a matter of fact in Georgia at least.

We have eight--

Justice Souter: That's what we... that's what you get for general laws.

We... we've got a general law, and that's the theory behind it.

Mr. Walbert: --Well, I think insofar as you're trying to apply that in interpreting section 5 in this context, with all due respect, Justice Souter, I don't think that that is a realistic way of interpreting it here because of that history.

If the mere fact that there was segregation and so on before 1965, a horrible history before 1965, that that was enough to justify in the year 2003 where African Americans are demonstrably having success that no one would have dreamed of in 1965 in the State of Georgia... in a 26 percent black State, one-quarter of the statewide elected officials are African American today in the State of Georgia.

And to say that it is necessary is so divorced from the factual reality that it wouldn't be a fair factual predicate to apply that constitutionally to the State of Georgia at this time in history.

Justice Souter: Why wouldn't it be... why wouldn't it be fair for us to say, number one, we're going to maintain the Beer theory?

And we're going to accept the position taken by Judge Edwards that if there was a margin of safety before, there's got to be some margin of safety now in order to comply with Beer and ultimately with section 5, and we're going to leave the law alone to that extent because the statute is up for renewal in a few years, and that will be an appropriate time for Congress to decide whether it wants to modify the standard or, indeed, to continue to have any section 5 standard at all.

That's a timing argument.

What's your response to that?

Mr. Walbert: I would say that's punting the Court's constitutional and statutory interpretation duty to a coincidence of time like that, with all due respect, Your Honor.

We have this case today.

Justice Souter: Well, we've--

Mr. Walbert: And what Georgia can do today is the questions before this Court.

And the fact that Congress may or may not... any law that ever comes before this Court may be repealed the next week.

Justice Souter: --Maybe... maybe it would be--

Justice Scalia: --No.

Justice Souter: But this isn't repealed.

This is--

Mr. Walbert: But it is always--

Justice Souter: --This is an automatic expiration--

Mr. Walbert: --Well--

Justice Souter: --on which Congress will have to act.

Mr. Walbert: --It's a de facto extension as a practical matter.

There is no real likelihood that section 5 will not be extended as a practical matter.

That's been true in '70, '75, '82.

Whether it will be for 25 years, 20 or 50 or become permanent this time, I don't know.

Justice Scalia: Maybe if we make it bad enough, they'll think about repealing it.

Unknown Speaker: [Laughter]

Justice Scalia: Maybe worse is better from your standpoint.

Mr. Walbert: I don't know about that, Judge.

We don't have a problem with section 5.

It's the way it would be applied if the district court were affirmed in this case.

And the difficulty is that just the whole notion of making section 5 compel more than the substance of section 2 in a redistricting context, there's a grave illogic about that given the narrow purpose of section 5 which is always the freeze and the backslide, the emergencies.

Don't... don't let anything bad happen.

If what Your Honor just said, Justice Souter, if it happened that there was a mistake and, oh, my gosh, it really... the world changed in Georgia and 55 percent or 50 percent wasn't equal and it turned... and 40 percent wasn't and it had to go back up to 60... let's take an unimaginably bad situation... section 2 is still there.

Section 5 could be applied.

Section 5 is a stopgap, extraordinarily harsh statute that is unique.

It is unique in our Federal system.

And the answer, I truly believe, to Your Honor's question is section 2 is always there if any of those kind of parade of horribles, if you will... if the expectation of equality disappeared.

But we're dealing with the facts of today, and the facts of today at the time of this trial showed equality was absolutely established at the level that we were talking about.

And that is the problem with this case that is before this Court today.

If I may reserve the remainder of my time for rebuttal, Your Honor.

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Very well, Mr. Walbert.

Mr. Stewart, we'll hear from you.

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

In a section 5 preclearance action, the appropriate comparison is between a covered jurisdiction's proposed voting change and the jurisdiction's existing practice.

In the present case, the district court found that Georgia's proposed Senate districting plan was likely to cause a significant diminution of black voters' ability to elect their candidates of choice.

Justice O'Connor: In... in preclearing, does the Government look at the effect as a whole?

What if, under the plan, it's true that the districts reduced the black voter population somewhat from the prior districting, but in so doing, they picked up enough black voters in another district that gave them an additional elected official of the minority race--

Mr. Stewart: The Justice Department--

Justice O'Connor: --and... and as a whole might be better off?

Mr. Stewart: --The Justice Department's view is that the analysis should focus on the plan as a whole, and our guidance is--

Justice O'Connor: You do look at it as a whole.

Mr. Stewart: --We do look at the plan as a whole.

Justice O'Connor: And you didn't think that this plan resulted in a gain as whole?

Mr. Stewart: No, because our... our feeling was that there were three Senate districts that we focused on specifically because we felt, for a variety of reasons, that the diminution in black population was likely to have a significant impact on black voters' ability to elect candidates of choice in those three districts.

And we... we also looked to where those black voters were going.

Were they being redistributed to other districts in which they would increase the ability to elect candidates of choice?

The... the focus of the inquiry has always been on the ability to elect candidates of choice.

So, for instance, if--

Justice Scalia: Well, the certainty or... or ability?

I'm... I'm really concerned about how far we are getting from the text of the statute.

The statute says nothing about retrogression.

Indeed, it says nothing about redistricting.

It... it's... it... it says that if one of the States who were covered by section 5 seeks to administer any voting qualification or prerequisite to voting, or standard practice or procedure with respect to voting, which I would have thought meant, you know, whether you vote on a... on a working day or on a non-working day, whether the polls are open for a certain amount of time or not.

Anyway, we've expanded that to cover districting.

Then it goes on and it says, any change cannot have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.

And we have said that that means you're denying or abridging the right... the right to vote if you backslide.

If... if a... even though all of the black or minority citizens can vote just the way they did before, if the percentage of... of minority voters in a... in a certain district goes down, we have denied or abridged their right to vote.

I... I find that... maybe that is a plausible interpretation of the statute when you are going from a good chance to elect a minority candidate to no chance of electing a minority candidate.

Maybe you can stretch it that far, but to say that you're abridging or denying the right to vote when you go from a certainty or safe seat for electing a minority candidate to a mere probability of... of electing a minority candidate... to say that that constitutes a denying or abridging of the right to vote seems to me to... you know, in violation of the... of the legal principle that fun's fun but you can't die laughing.

Unknown Speaker: [Laughter]

Justice Scalia: I mean, that is such a... such a stretch of the statutory language that the... that the Government is asking us to accept that I... I find it implausible.

Mr. Stewart: --Several points.

The... the Court in the second Bossier Parish case discussed the retrogression standard and grounded it in the word abridge and explained that the... the word abridge necessarily implies a comparison to some baseline.

And in the section 2 context, the baseline is a hypothetical reasonable world.

But because section 5 is targeted specifically at voting changes, the appropriate baseline is the jurisdiction's existing practice.

Justice Scalia: Well, you... you wouldn't say that a reduction from 90 percent minority to 85 percent minority abridges, would you?

Mr. Stewart: No, because I think the likelihood of--

Justice Scalia: So that proposition that mere reduction is enough is... is simply not valid.

Mr. Stewart: --I mean, I think... I think the--

Justice Scalia: So why isn't it reasonable to say that the reduction that counts is the reduction below the point where the minority has a probability of winning the election?

Why does it have to be below the point where the minority has a certainty of... of winning the election?

Mr. Stewart: --Well, I... I think one... one thing the Court should focus on is that when we're talking about the Senate districts at issue here, we are talking about districts that are among the strongest for blacks in the State of Georgia; that is, under the benchmark plan, 13 out of 56 districts with... Senate districts within the State had majority black voting age populations.

That's in a State that's approximately 27 percent black in terms of voting age population.

So to say that the districts in which blacks are strongest have been reduced to a point where blacks have an equal opportunity to elect candidates is not equivalent to saying that in the State as a whole blacks have equal electoral opportunities.

Justice O'Connor: Well, how about if it's reduced to a probably will elect?

More likely than not.

Mr. Stewart: I mean, I think if we're going from the 90 percent certainty to the 51 percent likelihood--

Justice O'Connor: Yes.

Mr. Stewart: --we would still say that's retrogression.

We... we do have a sort of substantiality inquiry in Department of Justice preclearance practice where--

Justice O'Connor: Well, there was another district, Senate District 15, where the percentage dropped from 62 percent to 50.8 percent, and the Government didn't challenge that.

Mr. Stewart: --I... I think part of the reason--

Justice O'Connor: Why?

Mr. Stewart: --Part of the reason that the Government challenged these three districts had to do with the magnitude of the increase, but part of it also had to do with electoral history and evidence of racially polarized voting.

And I... I don't--

Justice Kennedy: Does the--

--What about section 15?

Mr. Stewart: --I... I don't know the reason that we didn't object to... to Senate District 15.

I do know as to Senate District 2, for instance, that even though the BVAP under the benchmark plan was over 60 percent, in a 1999 runoff election, the black candidate of choice had won the... the primary by only 70 votes, and the reason was that the black candidate received approximately 78 percent of the black vote but only 9 percent of the white vote, and then--

Justice Kennedy: Does the State have any latitude insofar as your interpretation of the statute is concerned and insofar as your Department policy is concerned to experiment to see if it can't expand the black franchise in other districts?

Nothing in life is certain, and your position is... is that the State is simply frozen in these supermajority districts and it can't attempt to increase minority representation in other districts.

Mr. Stewart: --No.

Justice Kennedy: Doesn't it have... doesn't the State have some latitude to try that?

Mr. Stewart: We certainly think that they do, and... and nothing that we've said in this case and nothing that the district court said is to the contrary.

That is, if the State had sought to prove that the likelihood of electing black voters' candidates of choice in these three districts would be somewhat reduced, but that that was likely to be offset by corresponding increases in the ability to elect... to elect candidates of choice in other districts--

Justice O'Connor: Well, was that... where did I get the notion that there was very likely going to be, under their plan, another minority official elected--

Mr. Stewart: --I--

Justice O'Connor: --in an additional district?

Mr. Stewart: --I don't... there was... there was a pair of Senate Districts, not 2, 12, and 26, one of which was reduced sharply in black population--

Justice Kennedy: I have the same... I have the same problem with Justice O'Connor.

I... I thought the case was before us on... on the assumption that there is a likelihood that there will be another black representative from another district--

Justice O'Connor: --Yes.

Justice Kennedy: --and that that was the testimony of the State and the State said that this is the reason why we're doing this.

Mr. Stewart: --No.

That... that's not the case at all.

I think the... the nature of the State's plan was to reduce the high majorities of black voters in some districts, and those voters would be redistributed to other districts, but not districts in which there would be a high enough black population to create a plausible likelihood of electing black candidates of choice.

Justice Kennedy: Why... why is that the only change that's relevant?

Why is it insignificant that you... you change a district that was previously lily-white into a district that has, let's say, 30 percent black voters whose wishes and whose desires have to be taken into account by whoever is elected from that district, whether he's white or black?

Why is that an insignificant benefit to... to the black voters in that district so they won't get some... some redneck discriminatory representative, but rather somebody who will take into account their needs, even if he's not a black man?

Mr. Stewart: As... as an original matter, I think an argument could be made that black voters throughout the State of Georgia would be better off if every district were 27 percent black on the theory that even though they couldn't elect any candidates of choice, they could influence all legislators.

But although an argument could be made along those lines, the Court has consistently, in its vote dilution cases, framed the inquiry in terms of the ability to elect... to elect candidates of choice.

Justice Kennedy: We've never had a case before that... that amounts to a reduction not below the level where they can elect, but... but just to the level where it's merely probable as opposed to certain that... that they can elect.

I... I don't know that we're foreclosed from taking that reality into account.

Mr. Stewart: I... I agree that the... the precise question hasn't come before this Court.

The two things I'd say are that, first, we are talking about the strongest districts for blacks.

So to say that those districts have been reduced to an even shot, a toss-up, is not to say that blacks have equal electoral power statewide.

The second point I'd make is this is not different in principle from what goes on all the time in other preclearance settings.

That is, it is often the case that a covered jurisdiction will seek preclearance of a voting change, and the change will consist of getting rid of something that the jurisdiction had no obligation to create in the first instance.

But the inquiry has always focused on retrogression, on whether the State has made black voters worse off than they were--

Justice Breyer: Now, worse off, I thought... and I'm still at my same problem of what am I supposed to do in this case.

But I thought worse off means their right to vote is abridged because of race.

Abridged is the word.

And that it isn't so much a question, though it's partly a question, of percentage of black voters in the district.

It is really a question of what a reduction in that percentage means in terms of a... a race, black people, being able, across the State, to have a better or worse chance of electing public officials that they want.

And that's a function of polarization because if there isn't a lot of polarization, there is no such person as the official they want.

But there might be where there is polarization.

And it's also a function of how much of a reduction you get in a particular district in terms of what that means.

Now, if I'm thinking that way, A, is that the right way to think about it?

B, if it is, do I have any alternative in this case but to go through the statistical testimony about polarization?

The testimony, if there is any, which I'm not sure that there is or not... I thought the majority held there wasn't... that somehow other districts will be benefitted, and then sort of second guess the district court.

What is it I'm supposed to do?

Do I have it right?

And if I have it right, is that what I'm supposed to do?

Mr. Stewart: --I... I think you're looking at it correctly.

And when the Justice Department approached this case, there were other Senate districts in which the absolute drop in black voting age population was much greater than in these three districts.

The reason we found these districts problematic was partly the... the magnitude of the reduction, partly the fact that it had occurred along a point in the spectrum where a 10 percent reduction was especially likely to have a concrete impact.

That is, it stands to reason that reducing black population from 60 percent to 50 percent will more likely affect concrete results than reducing it from 80 percent to 70 percent or from 20 percent to 10 percent.

Justice Breyer: It isn't just percents--

Mr. Stewart: And--

Justice Breyer: --it's a question of what a percent means in the context of the particular district.

Mr. Stewart: --That's correct.

And we... we introduced--

Justice Breyer: And it's not just a little.

It has to be a lot.

Mr. Stewart: --We introduced--

Justice Breyer: It has to mean a lot.

Mr. Stewart: --We introduced substantial district-specific evidence of racial polarization in these three specific Senate districts.

We... both statistical and anecdotal evidence to the effect that there was a high degree of correlation between the race of the voter and the candidate of choice and evidence that racial appeals had been made in prior elections within those districts.

So the first step was to say, based on all that evidence, there is a... this change is likely to have a significant impact on black voters' ability to elect candidates of choice in these districts.

And the district court found to that effect.

And the second thing that the district court said--

Justice Ginsburg: I think the... the district court found that... I thought there was a heavy concentration on crossover in this record.

Wasn't that the whole controversy about Engstrom?

Didn't he say that there would be minimal white crossover in these districts?

Mr. Stewart: --That's correct.

His... his analysis of the statistical evidence of prior elections within the districts was that there would be minimal white crossover voting.

There was substantial racial polarization within these three districts specifically.

And so the district court found that the likelihood of black candidates... of black voters' ability being able to elect candidates of choice in these three districts--

Justice Stevens: Do the findings tell us whether there's been any change in the last few years in the amount of white crossover voting?

It seems to me there's some anecdotal evidence to that effect.

Mr. Stewart: --I... I don't believe that there were findings to that effect.

The... the findings were basically surveying the last--

Justice Stevens: Were they based on evidence during the last few years, or back in the '80s and '90s?

Mr. Stewart: --During the last few years.

Basically the experience under the benchmark district.

But the second thing that the district court said and... and emphasized... and I believe it's on pages 133 and 134a of the appendix to the jurisdictional statement.

The district court said at the very bottom of the page, once again we note that it may well be the case that any decrease in African American electoral power in Senate Districts 2, 12, and 26 will be offset by gains in other districts, but plaintiff, namely the State, has failed to present any such evidence.

So the district court acknowledged in principle that even though black voters' ability to elect candidates of choice in these three districts had been substantially decreased, the State might, nevertheless, be able to prove non-retrogression for the plan as a whole if it presented evidence that there would be offsetting gains in other districts.

And the court faulted the State for a failure of proof not for any... not... it didn't suggest that there was a... an analytical barrier to proceeding along that basis.

So I think the district court regarded this as a relatively easy case precisely because there were meaningful losses in identified districts and no attempt to prove offsetting gains in others.

And again, the retrogression standard has always focused on whether the change renders minority voters worse off.

And again, the... the preclearance inquiry would substantially... be substantially complicated if the analysis were otherwise.

That is the Court has held, for instance, that relocation of polling places is one type of change that has to be precleared before it can--

Justice Kennedy: Well, if they were not offsetting gains, what was the gravamen of the testimony of the black State officials who testified in favor of this plan?

Mr. Stewart: --The... the gravamen of the... the testimony was not that there would be offsetting gains in black voters' ability to elect candidates of choice.

Really, the thrust of the plan was black voters would be taken out of majority black districts and placed in districts that were predominantly white.

The black percentages would be too low for the black electorate to elect candidates of choice, but it might be high enough that the black vote could swing the balance between a white Republican and a white Democratic candidate.

That was really the thrust of the plan.

And because... again, whatever might have been said in the first instance, the Court's analysis has focused on ability to elect candidates of choice.

Congress has amended section 2 to facilitate vote dilution claims along those lines.

Congress has continued to reenact section 5 against the backdrop of the Court's decision.

So even though the argument could have been made that it's more important for blacks to be the balance of power in a lot of districts than to be able to elect candidates of choice in a few, the Court has rejected that proposition and Congress appears to have endorsed the Court's holdings by continuing to reenact these provisions without change.

If the Court has nothing further.

Argument of E. Marshall Braden

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Braden.

Mr. Braden: Mr. Chief Justice, and may it please this Court:

I assume that the threshold question for the intervenors in this case raised by the State is whether or not the two intervenors of the four intervenors, two African American Republican voters and two African American Democrat voters, are properly in this case.

Is intervention permitted in a section 5 case?

If precedent or experience provides any guidance to this Court, the answer clearly is yes.

In more than 70 percent of the section 5 litigation in district court here in the District of Columbia, more than 70 percent of those cases have involved intervenors.

There is not a single case... not a single case... cited by the State of Georgia where the Court has rejected the concept of intervention in section 5 litigation.

Chief Justice Rehnquist: Well, in... this type of case is governed by the Federal Rules of Civil Procedure, is it not, which provide for intervention under given circumstances?

Mr. Braden: Absolutely correct, Mr. Chief Justice, and--

Justice O'Connor: Mr. Braden, I... I think even if you're correct that intervention was appropriate, did the intervenors join in the appeal here?

Mr. Braden: --Intervenors did not join in the appeal.

Justice O'Connor: So why isn't it moot as to your issue?

Mr. Braden: As to our issue, it's not moot because this Court might fashion a remedy to send it back to the district court for additional findings, in which we would have presumably a position to argue it in that case.

Justice Scalia: Well, then you should have appealed.

I mean, that... if that was a real possibility, you should have appealed, but not to appeal and then ask us to decide whether you're proper intervenors because this might affect you, it seems to me--

Mr. Braden: We did not ask this--

Justice Scalia: --You can't walk both sides of the street.

Justice Ginsburg: I thought intervention was granted.

Mr. Braden: --Intervention was granted.

Justice Ginsburg: So how could you appeal from a victory?

Mr. Braden: I do not know, Justice.

It appears to me that--

Justice Scalia: Well, intervention was granted, but you didn't join the appeal from... from the decision below or file a cross appeal.

Right?

Mr. Braden: --That is correct.

But we are before this Court now and that... in that issue I think we are properly before this Court as decided by the lower court.

Now, the real issue I think below... before this Court is the question of whether or not you can accept Georgia's invitation to throw out 27 years of your jurisprudence because the reality of the Georgia position is the rejection of retrogression.

It's not this bugaboo about safe seats.

Every redistricting plan, by its very nature, creates safe seats.

The plan that wasn't precleared created safe seats.

It simply created safe seats solely for white members of the legislature.

Their proposal would permit the State to decide that there's only one class of Georgia's citizens entitled to safe electoral seats, and that would be white voters in Georgia.

The reality of what happened in the Georgia redistricting process is clear from the record in this case.

To maintain the political majority in the State legislature in Georgia, the individuals involved in the process looked at it and decided, well, these existing black districts, these existing represented communities have to be divided up.

Black precincts have to be pulled out of those districts and put in adjoining white districts so we may be able to maintain the Democrat level of vote in those districts so white Democrats can win.

Justice Scalia: Didn't... didn't almost all of the black legislature... legislators in the Georgia assembly favor this... this plan?

Mr. Braden: That is, in fact, correct, Justice Scalia.

Justice Scalia: How... how many opposed it?

Was it just one?

Mr. Braden: One in--

Justice Scalia: A woman.

I forget her name.

Mr. Braden: --Actually, I believe there were two, but one in the Senate.

Actually the senator representing District 2 which was one of the districts that was rejected in this case.

But I might make the observation that the view from aboard the ship of state and on the dock is quite different.

If you're on board the ship, if you're already in the legislature, the gangplank doesn't look very steep going up, but if you're there trying to get aboard the ship of state, if you're not an incumbent... incumbents have a different view and when an incumbent needs to be elected, it's totally different than a challenger candidate.

Justice Scalia: Well, that may be, but I... I find it hard to believe that they didn't have the... the... or a majority of them at least didn't have the best interests of their... of their race in... in mind.

And... and of course, you know that one of the problems has been in the southern States packing minorities into one district.

I mean, it's been the... in the interest of particular political parties on occasion to put all the black voters in one district so that all the other districts can be... can go to the other party.

And, you know, maybe the black voters who supported this plan did so because they thought it was a good thing to disperse some of the black voters who weren't needed to... to produce a high probability of success for a black candidate into other districts.

I mean, that's... that's a very plausible explanation--

Mr. Braden: That... that... Justice Scalia, that is a very plausible explanation in a hypothetical State.

It simply isn't a plausible explanation in the case of Georgia.

One, no one alleged that these districts were packed.

That simply... argument was never made.

Second, we're not talking about incumbents looking at the notion of whether or not we will maintain, quote/unquote, our racial position.

We're talking about incumbents looking about--

Justice Stevens: --Yes, but don't the figures--

Mr. Braden: --whether or not they'll be elected.

Justice Stevens: --Don't the figures show that some of the districts were way up there before, were... were packed and they reduced them something like 80 percent to 55 or 60?

Doesn't that fit precisely under what Justice Scalia described?

Mr. Braden: Absolutely correct.

And in fact, to be candid with you, it's our view as the intervenors... we believe the court actually probably went too low, that they took the numbers down, and frankly, the election results from the last election showed that our argument was vindicated by the failure to elect in certain district candidates of choice.

The process... the district court took a very conservative view on the issue of retrogression.

They permitted the State to decrease the number of black voting age populations in many districts, and the reason for that was not to unpack.

Look at the record.

I ask the Court to look at the record.

Look at the testimony of the person who drew the plan.

Look at the dissenting opinion of the judge.

Clearly what was happening here was a desire to divide up an existing community, to move black precincts into other districts to help elect Democrat candidates.

Now, politically that's understandable and political gerrymandering... it would appear to me, that it's possibly constitutional to do that, but not in a retrogression situation where we would reduce the black community's ability to elect its candidates of choice.

And that's what's happening.

Undeniable.

And you're talking about two different classes of candidates.

We have white safe seats but not black.

Justice Scalia: The black... the black community's candidates of choice has overwhelmingly been Democrats and to... to increase the probability of getting a Democrat elected by moving black voters into another district is precisely to give black voters a... a better choice, to... to... it may not be a black candidate, but it will be the candidate the black voters want.

Mr. Braden: And I think that's a misinterpretation of this Court's position and a misunderstanding of what the voting rights is meant to protect.

This is not a max Democrat plan.

Our jurisprudence doesn't point... we've got to create as many Democrat seats as possible.

We're talking about maintaining the existing level of the choice of the minority community which might be Democrat or might be Republican.

But we're not... it's hard to imagine the Congress in 1982 renewed this act and thought it would be interpreted of... of not looking at how many black or minority candidates would be chosen, but how many Democrats would be elected to a legislature.

One can't possibly believe that they would think that your jurisprudence would metamorphose to something like that.

That cannot be what we're looking at.

Justice Scalia: No.

But... but I... it's an implausible argument that you are... you are contravening the choice of black voters by increasing the probability of a Democrat's getting elected.

Mr. Braden: In... Justice Scalia, the fallacy I believe of that argument, in all due respect, is that there's one type of Democrat candidate, and the reality to that is there isn't one type.

And the political science on this is abundantly clear and the record in this case is abundantly clear that there's racial polarization and bloc voting.

No one denies that.

It exists in Georgia.

And this is simply a continuation of Georgia's sad history of 100 years of not just blocking minority voting rights, but enacting statutes and working very hard to do this.

And this is, in fact, another statute that was created to... again to divide up existing representative districts, move out black precincts to elect Democrats.

That's the process here.

There is no tension whatsoever--

Chief Justice Rehnquist: Move out... move out black voters to elect Democrats in the district they are moved to or in the district they're moved from?

Mr. Braden: --In the district that they're moved to.

This is just a carefully calculated scheme to move the numbers down to make adjoining districts to those existing black districts more likely to elect Democrat candidates.

And what happens is those districts the black precincts are moved from become less likely to choose the candidate of choice in more--

Justice Breyer: Whether they're Democrats or Republicans or whatever they are in these other districts, I take it in your view if evidence had been put on the stand that the black voter was better off, then you might lose your side of the case.

Mr. Braden: --Absolutely correct.

Rebuttal of David F. Walbert

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Braden.

Mr. Walbert, you have 3 minutes left.

Mr. Walbert: Thank you, Your Honor.

I would ask the Court to think of one question here, and it is this question.

Is it remotely realistic in the real world that 43 out of 45 African American legislators who are the most sophisticated, knowledgeable African Americans about politics and winning and political power and electoral power would have voted for this if it did all these bad things, if this wasn't the best way they could see of enhancing the power?

Is that conceivable?

It's not conceivable.

That's... that's fanciful.

One can't possibly say that's possible.

And--

Justice Kennedy: Well, it's conceivable if all they're interested in... is, is in race and you want us to presume that.

They might also wanted to have kept their jobs.

Mr. Walbert: --Well, Your Honor, I don't think that there's... that's realistic to think that the delegation would vote themselves out of office, which is what we're talking about.

Are they making their districts so weak they're voting themselves out of office?

No.

Their testimony is unequivocal that this enhances black voting strength because... and the Solicitor General was wrong when he says there's no testimony that the other districts would be enhanced.

There is no testimony that any other districts would become safe seats, but from a black point of view, absolutely.

When you're shifting the black votes into those other districts, the potential is enhancing, the potential of getting someone the Democrats prefer who happens to be white.

Justice Breyer: And the evidence is where?

What am I supposed to read?

Mr. Walbert: That's in the testimony of every one of the legislators, said that's why we get--

Justice Breyer: So what... what do I read and what pages do I read?

Mr. Walbert: --It would be in the... it's in the... the testimony of the legislators.

It would be in the proposed--

Justice Breyer: Okay.

Mr. Walbert: --It's... I'm sorry.

It's the testimony of the legislators.

Some little bit of it is quoted in our brief.

It's in the proposed findings of fact in great detail, but it's the testimony of the legislators.

Justice Scalia: The district court didn't consider that relevant testimony because it was not testimony about safe seats elsewhere.

Mr. Walbert: I would think that's a fair characterization, Your Honor.

As a practical matter, it would be a tragedy.

And we're well aware of the history.

We're not up here apologizing that we are disowning the history of race in Georgia.

We know what it is.

The Attorney General knows what it is.

But it would be a tragedy on the facts of this case to utilize that history to penalize what African Americans are trying to do... tried to do in this reapportionment under this evidence.

Integration's working in Georgia.

We have the most politically integrated political system probably in the United States.

Justice Breyer: That's what we're supposed to, go into which political party is better for which particular group of people?

Mr. Walbert: No.

We look at the success of what the record unequivocally and without contradiction demonstrates in terms of African American success in the State of Georgia, and it's a compelling record, Your Honor.

It shows again that we have 4 congressmen out of 13 who are African American, 52 percent district, 50 percent district, 41 percent district, and 38 percent district.

Last one just elected 13... Congressional District 13 just created... this reapportionment got two new districts.

13 was open, 38 percent, African American elected.

African American elected in the last election in a 28 percent multi-member house district.

It's working.

Justice Ginsburg: Can I ask before... before you conclude your argument, what is the status of the litigation that's pending in the State court to resolve the dispute between the Attorney General and the Governor?

Mr. Walbert: Yes.

There's oral argument next week on that, Your Honor, and we expect that to be decided very quickly.

There is, of course, your favorable from our position from the superior court.

That's on direct appeal to the supreme court, oral argument next week and that will in all likelihood be decided very, very promptly.

So--

And I think that... what is the reason... putting all these facts aside, which are compelling, if this Court were to hold that section 5--

Chief Justice Rehnquist: Thank you, Mr. Walbert.

Mr. Walbert: --Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

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:

Reno v. Bossier Parish School Board - Oral Reargument

admin — Fri, 18 Nov 2011 18:29:30 +0000

Case:

Reno v. Bossier Parish School Board

Media File:

98-405_19991006-reargument.mp3

Related Transcript:

98-405_19991006-reargument.xml

Transcript:

Argument of Paul R. Q. Wolfson

Chief Justice William H. Rehnquist: We'll hear argument first this morning in Number 98-405, Janet Reno v. Bossier Parish School Board and George Price versus the same.

Mr. Wolfson.

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

Section 5 of the Voting Rights Act of 1965 prevents a covered jurisdiction from implementing any new voting practice that has the purpose to discriminate against racial minorities even if that purpose is not retrogressive.

Section 5's purpose prong is not limited to an intent to make matters worse for minorities, and section 5 also places the burden of proof on the covered jurisdiction to show that its new voting practice does not have the purpose to discriminate.

The text and the Court's decisions and the background of section 5 all support those points.

Unknown Speaker: Well now, of course, if you relied on section 2 instead, and the Government brought some challenge or some private citizen, it would be... the burden of proof would be on the plaintiff, I suppose, to prove a discriminatory purpose.

Mr. Wolfson: That's correct, but I think it's important to understand section 5 does not render section 2... does not... useless.

I mean, this is an issue that's come--

Unknown Speaker: Well, it would for all practical purposes in a section 5 jurisdiction.

Mr. Wolfson: --I don't agree with that--

Unknown Speaker: I don't see that you ever resort to it, probably.

Mr. Wolfson: --I must disagree with that, Justice O'Connor.

First of all, after all, section 5 has been applied by the Attorney General and by the preclearance courts this way for 30 years, not limited to a retrogressive purpose, and yet there are many section 2 cases brought in the covered jurisdictions.

This Court has had several.

Mobile v. Bolden was a section 2 case.

Rogers v. Lodge was a section 2 case.

Thornburgh v. Gingles was a section 2 case, even though parts of North Carolina are covered.

There are at least two very important areas where section 2 remains vital.

First, of course, is where the challenged practice predates the Voting Rights Act, and in many covered jurisdictions in that area there are at-large voting practices and multimember voting practices and what-have-you that predate 1965.

Section 2 also remains very important for fact patterns like Beer and like Thornburgh v. Gingles, that is, where there was not a retrogressive effect, and the evidence does not indicate anything to show that the jurisdiction had a discriminatory purpose but nonetheless the plan has a very serious, relatively adverse impact on minorities.

There are many reported section 2 cases in covered jurisdictions on the books, and I think it, given the history... this is not a new interpretation of section 5 that we are advancing here.

It's the one that has been applied, and it's consistent with Arlington Heights.

Ever since this Court decided Arlington Heights in 1976, almost... just after it decided Beer, the Attorney General has followed the Arlington Heights factors to determine whether an enactment has a retro... has a discriminatory purpose.

The preclearance court in the District of Columbia, as far as we know, other than this case, has never limited its search to a retrogressive purpose.

In addition, there are at least two cases in this Court where we submit, where the Court has rendered decisions that are fundamentally irreconcilable with the construction of section 5 that the board advances today.

Unknown Speaker: Mr. Wolfson, before you go on with that, I just wanted to make sure that I understood you correctly to say that section 2 often works when there is a dilutive effect, even though you can't prove any malevolent purpose.

Mr. Wolfson: Correct.

Correct.

Unknown Speaker: And under the section 5 interpretation that you're urging, a dilutive effect would not suffice.

Mr. Wolfson: That's--

Unknown Speaker: You would have to have this malevolent purpose, so that would leave a great office for section 2 in dilutive effect cases.

Mr. Wolfson: --That's exactly the point I was trying to make.

In addition, the Court's precedents really foreclose the proposition that is relied on today.

City of Pleasant Grove in particular is irreconcilable with the submission that section 5 is limited to a retrogressive purpose, as opposed to a discriminatory purpose more broadly conceived.

That case involved an all-white town that annexed an all-white enclave and a... an all-white parcel, rather, and a vacant parcel, and refused to annex a parcel in which black residents were living, and the argument that was made by the City of Pleasant Grove in this case was exactly the one that is made today, which is, we know there is no retrogressive effect, so the effect is not bad under section 5.

We know that there could not have been a retrogressive effect because the city officials were not aware of any black residents of the town at the time, so how can it possibly be said that there is a discriminatory purpose.

Unknown Speaker: Well, Mr. Wolfson, how far can Congress go in this area--

Mr. Wolfson: Well, Congress can--

Unknown Speaker: --pursuant to the Constitution?

Mr. Wolfson: --Well, first of all, Mr. Chief Justice, let me say the question about how far the Congress can go beyond the Fourteenth and Fifteenth Amendment really is not implicated in this case, because this case involves a core discriminatory purpose, or at least that is what is in contention.

Now, whatever... however far Congress can go, the question about whether... the issue about a core discriminatory purpose against racial minorities is fundamentally what the Fourteenth and Fifteenth Amendment is about, so we're not talking about going--

Unknown Speaker: But how far can the Congress go in directing the Attorney General to supervise those States which are under the Voting Rights Act, under preclearance orders?

I... the Chief Justice can explain his own question, but I was... it seems to me that if you depart from retrogression as the baseline that the Attorney General must follow, then the Attorney General has vastly greater discretion and vastly greater responsibilities in preclearance procedures, and that may put the constitutionality of the intervention in State Voting Rights Acts in an entirely new light.

Mr. Wolfson: --Well, there's certainly no question that section 5 is an an unusual statute, and it has, without doubt, federalism costs, as the Court has said.

However, the Court has three times examined the constitutionality of section 5 and has upheld it.

Many of these arguments were the arguments that were raised in South Carolina v. Katzenbach.

The question was raised, how is that the Congress can require the States to come to Washington to prove that the... that their enactments do not have a discriminatory purpose, and the Court said, it is unusual, but, given the sensitivity of the interest that is at stake, which is the right to vote, and given the importance of protecting that right against discrimination on the basis of race, that this is an acceptable cost, and it is within Congress' power to enact.

Now, in South Carolina v. Katzenbach, there was certainly no suggestion that the kind of purpose that was at issue there was limited to a retrogressive purpose, and each time Congress has looked at this act again, and it's reenacted it three times, it has considered these constitutional questions very carefully... they are serious ones... and it has said, the interests at stake are serious enough that the preclearance remedy is still necessary.

Unknown Speaker: That--

--If it meant what you say it means.

If it meant what you say it means.

If it doesn't say what you say it means, Congress didn't make that judgment, and in coming to that decision, I was going to ask you when you said this case involves core purposeful discrimination, well, that may well be true, but in deciding what the statute means, what it means as applied to all situations, we have to take into account the fact that it would apply to noncore purposive discrimination as well, so I don't think you can just dismiss these problems on the ground, well, after all, this is a particularly bad case.

It may well be--

Mr. Wolfson: Well, the--

Unknown Speaker: --but we're talking about, you know, how should you reasonably interpret the statute.

Mr. Wolfson: --Understood, and section 5 has been understood to have two independent prongs or protections.

The purpose prong addresses those enactments that violate the Constitution itself, and the effect prong does go beyond it, and it inhibits the enforcement of those enactments which, although not animated by a discriminatory purpose, nonetheless present the risk of eroding those gains that have been made, and that was the issue before the Court in City of Rome.

In City of Rome, the court said, section 5 has two functions.

One is to ameliorate discrimination, and the other is to prevent against further erosion.

Many of these arguments, many of these serious concerns about section 5 have been aired in City of Rome and in Katzenbach, and there's no doubt, as I've said, that section 5 is unusual, but... but the question about whether it reaches what the Constitution itself prohibits is not a question... it does not implicate the concerns about whether the outer reaches of section 5 might present some constitutional difficulties.

What Congress intended above all was to enforce what it called the explicit commands of the fifteenth Amendment, and to make sure that new enactments did not violate the Constitution, and that's what this is about.

Unknown Speaker: Well, you know, you're talking now quite properly in response to questions about the substantive extent of section... but the preclearance requirements and that sort of thing are quite different.

I mean, those are procedural things that are highly unusual, regardless of the substantive extent.

Mr. Wolfson: They are unusual, and they're unusual in a number of ways, one of which is that the burden of proof is placed on the covered jurisdiction, as we've argued, to show that the enactment does not have a discriminatory purpose, but the procedural requirements are not... they're not... it's important not to exaggerate their onerousness.

The evidence is put in, and the trier of fact in the preclearance court in this case makes a judgment as to whether... as to where the risk of nonpersuasion should lie.

Unknown Speaker: But it's awfully hard to prove the absence of an intent.

I mean, that is a very difficult thing for anybody to do, and what's the practical effect of your interpretation?

Does it mean that any proposed change by a covered jurisdiction of any kind is going to require that jurisdiction to come in and show the negative somehow, this isn't what we intended, we didn't intend to discriminate, or have a purpose to do so, and it is not retrogressive?

Mr. Wolfson: Right.

Unknown Speaker: I guess that would become the requirement in every section 5 application.

Mr. Wolfson: Well, the preclearance, the district court in this case--

Unknown Speaker: Is that right?

Mr. Wolfson: --Not exactly, which is to say that--

Unknown Speaker: Why?

Mr. Wolfson: --Which is to say, really what the jurisdiction does is, it says, here is our intent.

Here is what we... here is why we enacted this particular legislation.

For example, it could be that as in Lopez last term, that there's a State policy of court consolidation because it's inefficient to have all of these various courts, and so we're doing this for efficiency purposes.

And that may, as the preclearance court said in this case, establish its prima facie reason, a legitimate nondiscriminatory reason, and then it's up to the Attorney General to show that there's some evidence that cast doubt on that reasoning, or some evidence that rebuts it.

Unknown Speaker: But I would think under your view that wouldn't be necessary, that the trial court could just discount the covered jurisdiction's proof.

If they have the burden of proof, it's very... as Justice O'Connor says, it's very, very difficult to prove a negative.

Mr. Wolfson: Well, unless the covered jurisdiction's reason, proffered reason is totally implausible on its face, Mr. Chief Justice, it would seem to me that if they come forward with what seems to be a facially credible reason, and it's supported by some evidence, then... and the Attorney General simply stands mute, then perhaps the preclearance court would enter judgment.

I mean, after all, under the Court's decisions like St. Mary's Honor Center v. Hicks, it's recognized that the other side generally doesn't stand mute in response to what the suggested reason is, and the general rules of summary judgment do apply to preclearance cases, just as they do to other civil litigation, so--

Unknown Speaker: How do we know how this statute has been applied as a practical matter by the Attorney General in the past?

I don't... it isn't clear to me that the Attorney General has done more in the past than look at retrogression--

Mr. Wolfson: --Well--

Unknown Speaker: --in most instances.

Mr. Wolfson: --Right.

Of course, the one thing I can point to is, the Attorney General's published regulations on the matter don't... certainly don't refer to retrogression as a purpose.

They say, discriminatory purpose and retrogressive effect, and it's difficult to point to anything that's published.

But the Attorney General has reviewed many, many cases, over 300,000 submissions in the entire history of the Voting Rights Act.

About... fewer than 1 percent of... in 1 percent of the admissions has an objection been lodged.

The--

Unknown Speaker: Is that the statistic, in all the years that it's been in effect, that the Attorney General has objected in only 1 percent of the cases?

Mr. Wolfson: --3,071 times, and a majority of those are purpose cases, and as far as we are able to tell from reviewing, they certainly do not distinguish between discriminatory purpose and retrogressive purpose, and we have cases like City of Pleasant Grove, where one can easily look to it and say well, there's no... it couldn't have been a retrogressive purpose, and Busbee v. Smith is another example.

An objection was lodged there by the Attorney General.

It went to the preclearance court, there was no retrogression in that case, but the process of redistricting in the Georgia delegation to the House of Representatives was filled with racial epithets being hurled, you know, in meetings and so forth, and the preclearance court said, it's a discriminatory intent.

Unknown Speaker: Mr. Wolfson, I certainly agree with you that the Attorney General's regulations couldn't be clearer, when they say discriminatory purpose or retrogressive effect.

That is absolutely clear.

Unfortunately, that is not what the statute says.

The statue says, whether the proposed change does not have the purpose, and will not have the effect of denying or abridging the right to vote on account of race or color, and we have clearly held, and you do not contest that the effect of denying or abridging the right to vote on account of race or color means the effect of being retrogressive.

I just find it impossible to know how you can use the English language to say that it will not have this purpose or effect, or the purpose or effect of burning the house down.

Burning the house down means one thing with regard to purpose, and something else with regard to effect.

That is just not... that language just cannot be used... in your brief, your only response to that is that it is not at all unusual in our laws for a purpose to be treated more harshly and to be subjected to greater sanctions than an effect.

That's certainly true, but we're not talking about what's possible for the law to do.

We're talking about just the plain language.

I don't see how you can say that it will not have this purpose or effect, and this means one thing for purpose and another for effect.

It--

Mr. Wolfson: Well, certainly if one were to look at the language for the first time and see that it prohibits a purpose of denying or abridging the right to vote on account of race, one would not find any language in there that would suggest retrogression.

I understand what... I understand your point, but--

Unknown Speaker: --And the same for effect.

Mr. Wolfson: --But--

Unknown Speaker: But we've held that, and you don't contest that holding.

Mr. Wolfson: --But the concept of effect was construed by the Court in Beer in light of the particular constitutional considerations similar to the ones that were discussed earlier, which is... and concern, uncertainty about how far Congress intended to go beyond the core requirements of the Fourteenth and Fifteenth Amendment.

Those considerations do not apply to the purpose prong.

I mean, to the contrary, the purpose prong essentially restates the Constitution--

Unknown Speaker: That's certainly true, and therefore Congress should have perhaps written it differently.

Mr. Wolfson: --Well--

Unknown Speaker: It should have written it the way your Attorney General wrote the regulations.

Mr. Wolfson: --Well, those regulations--

Unknown Speaker: Shall not have a discriminatory purpose or a retrogressive effect.

I don't deny that makes a whole lot of sense, but that happens not to be what the statute says.

Mr. Wolfson: --Well, the statute has been construed, of course, not just in Beer but in City of Richmond and in City of Pleasant Grove, and in City of Richmond the effect was held good, but nonetheless the court remanded for a question of the purpose and the court said, it may be asked, how is it that the purpose to accomplish a certain result may be bad if that result if not bad under the effect prong, and the answer is that under our Constitution and the statute... and the statute... that a purpose to discriminate has no legitimacy at all.

I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: I would like to ask you, though, the Attorney General can proceed under section 2 and achieve exactly what could be achieved by your interpretation of section 5, presumably.

Mr. Wolfson: A section 2 suit could be brought, but one of the principal advantages that Congress saw in section 5, and one of the reasons why it enacted it, was to prevent the necessity of the Attorney General going forward like that.

That's why, as the Court said in Katzenbach, the burden of time and inertia was placed on the covered jurisdictions, and that was... it is unquestionably an unusual statute, but that is... and one of the chief functions of section 5, and Congress has reexamined that three times, and each time ratified that rationale.

Thank you.

Unknown Speaker: Thank you, Mr. Wolfson.

Ms. Brannan, we'll hear from you.

Argument of Patricia A. Brannan

Ms Brannan: Thank you.

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

If the goal of the Voting Rights Act to eliminate discrimination in voting is to be fulfilled, the purpose clause of section 5 should not be restricted to a meaning more narrow than the basic fundamental constitutional framework for assessing discriminatory intent.

If I might begin on the point Justice Scalia asked toward the end of Mr. Wolfson's argument with respect to the plain language of section 5, there's an important countervailing principle of statutory interpretation that would be violated by reading effect in the statute to mean only retrogression and purpose to mean only retrogression, and that is that the purpose prong would become virtually meaningless in practical impact.

The only voting changes that would be reached by section 5 and could be touched by section 5, no matter how outrageously flagrant the racism that underlie them, would be retrogressive ones.

Unknown Speaker: No, but there are two situations, number 1 where you... where in fact the jurisdiction has a retrogressive purpose, but the plan it adopts in fact doesn't achieve that.

That may be fluky enough, but the other situation, it seems to me, is quite substantial.

It would not be necessary for the Attorney General to show a retrogressive effect so long as the Attorney General shows that the purpose... in fact, rather the jurisdiction has to show that the purpose wasn't retrogressive, and if the jurisdiction cannot show that the purpose was not retrogressive, the game's over.

The Attorney General doesn't have to go into the further difficulty, or the D.C. Circuit... the District of Columbia court doesn't have to go through the further difficulty of figuring out whether in fact the functioning of the matter is retrogressive.

I think that's a great advantage.

Ms Brannan: Justice Scalia, with respect to that first category, we think the incompetent retrogressive category will indeed be so small--

Unknown Speaker: It's pretty small.

I agree with that.

Ms Brannan: --that it really doesn't underlie the congressional purpose in a meaningful way, and with respect to the second, and a jurisdiction like Bossier Parish is a perfect example, it has never had a majority black election district, so when they come in with any redistricting plan that still doesn't have a majority black election district, it by definition is not going to be retrogressive, and for the Attorney General or a court to be looking for a purpose to do something other than what they've done we would submit is not a meaningful--

Unknown Speaker: But that doesn't meet my point.

That just shows that it does not go as far as you would like it to go, but my point is that there is a great advantage to having retrogressive purpose in the statute, and that advantage is, once you show a bad purpose, you don't have to go into the calculation of the effect.

Ms Brannan: --Your Honor, I... we think that once there is a discriminatory purpose in some kinds of voting changes it's very useful to not go into the effect, because some voting changes, unlike redistricting, the effect analysis is probably not very telling.

There are some voting changes clearly covered by section 5 that don't lend themselves to numerical analysis like districting plans do, but they also don't lend themselves, we would submit, to retrogression analysis.

For example, the Court has said that when a covered jurisdiction changes its leave policies for employees to campaign for candidates for election, that must be precleared.

It really defies understanding to see how that could be retrogressive, but we could certainly imagine how that could be flagrantly discriminatory if a jurisdiction always let employees off taking leave time to campaign, but the first black candidate appeared on the scene and suddenly the leave policy was cancelled, and people said you'll never go out and campaign for that guy.

I don't know how we would analyze it as retrogressive, but certainly we could analyze it as discriminatory under the Arlington Heights test.

In essence, the point we're making is that the school board's test simply goes too far toward making the first prong of the Arlington Heights analysis the only prong that will be analyzed in reasonable common sense cases that we can imagine.

Effect clearly is one important indicia of what the purpose of an act or a governmental actor is.

But in Bossier I, by commending Arlington Heights to the District court that does this analysis, we think that the court was saying that obviously the history, the contemporary statements, the course of events in adopting the change are all highly relevant and telling.

They're highly relevant and telling on these facts.

We think these facts are not only not unique, but that there will be many voting changes and have been many voting changes considered over the years by the courts that have a comparable situation.

If I might turn to Justice O'Connor's question about whether the proof of the negative, especially in a situation where there isn't objective evidence that this is getting worse, is really an unfair burden on the jurisdiction.

I would comment to the Court Judge Silberman's two-page discussion of this in the first panel opinion in this case.

It appears at pages 104 and 105 of the appendix to the jurisdictional statement.

He undertook to explain in a very straightforward way how this works in the court that is an expert, after all, in applying this in an evidentiary context.

Judge Kessler, the dissenting judge, agreed.

Her agreement with this is on page 116 of the appendix to the jurisdictional statement.

And what he really did was, he harmonized it with the Court's cases in the City of Richmond.

What the jurisdiction must do is stand up and give a verifiable nonracial reason for what it did.

After all, it knows why it did what it did.

Unknown Speaker: What do you mean by verifiable, Ms. Brannan.

Ms Brannan: Your Honor, if the jurisdiction, for example, here got up and said, we were trying not to split precincts, and here we have precinct splits, we were trying to get preclearance.

We did not file a motion for judgment, neither did the United States at the close of their evidence.

We recognized that there were contested facts, and that that--

Unknown Speaker: But--

Ms Brannan: --was something that should be judged on the facts.

Unknown Speaker: --But you haven't told me why that's verifiable, in your words, and something else perhaps is not.

Ms Brannan: Your Honor, it's simply the Arlington Heights test, whether the facts and circumstances... whether it's standing up and saying something that makes sense.

It said one thing that didn't make sense, and we know what the other side of the coin looks like.

It said the--

Unknown Speaker: You've never... were you finished?

Sorry.

I want you to finish what--

Ms Brannan: --Yes.

I just wanted to give the one further example that's actually present in this case.

The jurisdiction stood up in the D.C. District Court and said, we were trying to comply with Shaw.

Well, Shaw hadn't been decided by this Court at the time that the school board acted.

We know that that isn't a good reason.

If that's all they had ever said, frankly we probably would have moved for judgment at the close of their evidence.

But what I want to be very clear about is, we do not think the covered jurisdiction has to stand up and negate the Arlington Heights factors.

That is a burden of going forward that the defendant has, and that's what Judge Silberman said, and we think that makes sense.

The proof of racial intent has to come from the defendants either in cross-examining the plaintiff's case, or in their case-in-chief, and if it never comes, the jurisdiction is entitled to preclear.

Unknown Speaker: --Well, wait, you say they have the burden... just the burden of production, or do they have the burden of persuasion as well?

Ms Brannan: The burden of production, and we think the risk of nonpersuasion never leaves the covered jurisdiction--

Unknown Speaker: But the burden--

Ms Brannan: --in accordance with this Court's decision in--

Unknown Speaker: --Is it the case that your... the words here is, if the evidence is equally convincing.

Ms Brannan: --Yes.

Unknown Speaker: All right.

Ms Brannan: Yes.

Unknown Speaker: In other words, all this rigmarole that often accompanies words like burden of proof doesn't exist here.

All you're talking about is, if the evidence is equally convincing--

Ms Brannan: Yes.

Unknown Speaker: --a matter which I have never found as a judge in 15 years in any case.

[Laughter]

Ms Brannan: Yes.

Unknown Speaker: But if it were to happen--

Ms Brannan: Yes.

Unknown Speaker: --then, all it means is, if it's equally convincing, then the board loses as opposed to winning.

Ms Brannan: Yes.

Yes, and we think this--

Unknown Speaker: I guess the burden of proof is not very important at all, is it?

Ms Brannan: --Well--

Unknown Speaker: All these years I thought--

--Often it's not.

I thought it made a big difference.

[Laughter]

Often not.

Ms Brannan: --Well, Your Honor, we think the Court has made very clear in McCain v. Lybrand and Georgia v. United States that the burden is there.

Congress rejected efforts to shift the burden of proof from the covered jurisdiction.

Unknown Speaker: Well, but why--

--But would the burden of production shift?

Ms Brannan: Yes.

Unknown Speaker: Would the burden shift to the Government--

Ms Brannan: Yes.

Unknown Speaker: --once the jurisdiction said, look, we didn't want to split precincts.

Ms Brannan: Yes.

Unknown Speaker: At that point, the burden of production moves to the Government and say, that was pretext.

Ms Brannan: That's right.

Unknown Speaker: That was the reason why they did it.

Ms Brannan: That's exactly right.

Unknown Speaker: So they don't... the burden of persuasion may remain constant, but the burden of production would shift once they come up with a good reason for why they did what they did.

Ms Brannan: Yes.

Unknown Speaker: So you have some statements by some members of the city council that are clearly racist, and clearly indicate that these members at least were going to do it for that reason.

On the other hand, there are other members whose statements indicate the opposite.

Who knows what the majority was on the city council, whether the reason... in that kind of uncertitude, where you really don't know what the answer is, the jurisdiction loses.

Ms Brannan: Your Honor, yes is the answer, but the Court wrestled and Justice Powell's opinion in Arlington Heights wrestled with exactly this issue, how do you get at the intent of a multimember governmental body, and what the Court said is, yes, they'll tell you what they said, but you look at what they did.

You look at what information they had in front of them when they made the decisions that they made, whether the public was participating and what they said to the public at the time.

That's what these cases are made of.

That's what this trial was about.

Unknown Speaker: And if you have to throw up your hands at the end, which frankly in most of these cases I have to do... I can't really tell what the intent of the body was.

If you have to throw up your hands, the jurisdiction loses.

Ms Brannan: It does, Your Honor, but again in Arlington Heights we think the Court made the decision that, rather than effect alone, that was the exercise fact-finders should go through.

Unknown Speaker: Thank you, Ms. Brannan.

Mr. Carvin, we'll hear from you.

Argument of Michael A. Carvin

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

To answer the statutory question of when a voting change has a purpose to abridge voting rights, you need to answer the question, abridge compared to what?

Abridged is a relative term.

You don't know what an abridged vote is unless you know what an unabridged vote is and, as Justice Scalia pointed out, this Court has answered that question repeatedly.

In a voting rights case under section 5, you compare the change to the status quo ante, and if the change is no worse than the old status quo, then it hasn't abridged the right to vote.

Unknown Speaker: It hasn't had the effect of abridging the right.

Mr. Carvin: Abridging, but the relevant point, I would submit, Justice Stevens, is that they've interpreted the term, abridging, and all of those cases say, if you maintain the status quo, you do not abridge, you do not commit the--

Unknown Speaker: You do have the effect of abridging.

Mr. Carvin: --Right.

Unknown Speaker: That's what they all say, you don't have the effect of abridging.

Mr. Carvin: Precisely.

Unknown Speaker: The New York--

--Is it not possible that you would not have the effect of abridging, but you would nevertheless have the intent to abridge?

Mr. Carvin: Only in circumstances where you intended to make the status quo worse.

It's stipulated here that they intended to maintain the status quo, and maintaining the status quo, as we have agreed, does not have the effect of abridging, so if you intend to maintain the status quo, you do not intend to abridge.

You do not intend to commit the injury that is prohibited by section 5.

Unknown Speaker: So if a county in Mississippi in 1966 had never had one black voter, never one in their history, and they come up with a great plan under pressure from the Department and 87 lawsuits, they say, I have an idea, we'll change it so now one black person votes, one.

Why are you doing it?

Well, don't you see, if we don't do that... by the way, we have a very complicated plan.

One votes.

If we don't do that, we'll be forced to allow thousands to vote.

And in your opinion, that evidence, right on the record, there would be no violation of this statute.

Mr. Carvin: No, I'd have to disagree with that hypothetical for two reasons.

First of all, if you're talking about litigation, of course, you're not talking about section 5 preclearance.

Unknown Speaker: No, I'm talking about--

Mr. Carvin: The court... okay.

Unknown Speaker: --I wasn't clear, then.

Mr. Carvin: Okay, Your Honor.

Unknown Speaker: What I meant was, Mississippi has never allowed a person to vote.

They now have a new plan so one black person can vote.

Mr. Carvin: Right.

Unknown Speaker: And on the record, it's clear the reason they adopted it is, they were afraid that if they didn't they would soon have to allow thousands to vote.

Mr. Carvin: Right, but if they had a law that said no one could vote, that would violate the Voting Rights Act because it would be a test or device, wholly apart from section 5.

It would also violate section 5, because it denied the right to vote, regardless of whether abridge means retrogression or not.

But let's play out your hypothetical.

A Mississippi jurisdiction has a law that says no one can vote.

All section 5 said under South Carolina v. Katzenbach was, look, don't make your other voting procedures worse to replace the law we have just gotten rid of.

If those procedures stay the same, if the registration hours and all of the registration qualification stayed the same, and after all, they were designed for an all-white electorate, then you haven't filled the discriminatory gap that's left when the Voting Rights Act itself eliminates the law that says blacks can't vote, so that's a perfect example of what I'm talking about.

You've got a law that says, blacks can't vote.

Then the jurisdiction comes along and says, look, we're going to increase filing fees for candidates, because now blacks can vote, we want to make sure they don't get to run for office.

Now, let's assume they reduce the filing fee, so it was retrogressive, from $100 to $75, but the NAACP says, you should have reduced it to $50, and you find that the failure to reduce the filing fee to $50 was motivated by a discriminatory purpose, what would you do under section 5?

You would deny the reduction of the filing fee to $75.

You would put back in place the filing fee of $100, the fee that was worse for black candidates.

And Congress understood that since the remedy under section 5 is to deny the change and restore the status quo, you only want to deny the change when it's worse than the status quo.

You never want to deny the change when it's better than the status quo, i.e., nonretrogressive, because then you'd go back to the discriminatory status quo.

Unknown Speaker: Is that how the Justice Department has administered this statute in those hundreds of cases?

Mr. Carvin: The Justice Department has misinterpreted the retrogression standard both in Bossier I and in Beer and in this case as well, and this Court has not given deference to the Justice Department's misinterpretation of the retrogression standard in any of those cases, nor should it in this one as well, and that's because it does raise the very substantial federalism concerns that were addressed in the prior argument.

Unknown Speaker: Let me just suggest... that's a great hypothetical.

It really was clever.

Mr. Carvin: Thank you, Your Honor.

[Laughter]

Unknown Speaker: But isn't the response to that, if the evidence was all that clear they'd bring a section 2 case?

Mr. Carvin: Exactly.

That was the whole point.

No one expected section 5 to undo the discriminatory status quo in the South.

They knew they were dealing with recalcitrant southern jurisdictions.

Section 5 is only triggered if they change.

Well, the last thing they're going to do is change a discriminatory system and subject themselves to Federal review.

Section 2 was the answer.

This is how it worked.

The literacy test--

Unknown Speaker: Yes, but there's nothing in the statute that section 2 is the only answer.

Mr. Carvin: --Well, but the only way you can get at a discriminatory status quo.

That's the essential point.

See, if the status quo is discriminatory, section 5 can't get at it, because section 5 is triggered only when there's a change to the status quo, and this remedy again is to restore the status quo, so if you have a discriminatory status quo, section 5 is powerless to change that, and that's what Congress realized.

Unknown Speaker: Well, you say it's powerless.

That depends on whether one reads the retrogressive modifier to apply to the effect in the statute or to apply to the word abridge, as you do.

Mr. Carvin: No, I must respectfully disagree, Justice Stevens.

The only question in this case is whether abridge means the same thing in the same sentence.

Abridge modifies both purpose and effect, and abridge means retrogress, so if you don't have a purpose to retrogress, you do not have a purpose to abridge.

That is the essential thrust of our statutory argument.

If you are intending to maintain the status quo, you are not intending to abridge.

Now, the appellants argue that that renders the purpose prong relatively meaningless.

Well, it does have some meaning in the Richmond annexation context, as Mr. Wolfson pointed out, but I think the additional point, purpose prong of section 2 and title 7 don't carry much independent baggage.

Section 2 prohibits purposefully discriminatory voting changes, but you rarely even get to that in section 2 litigation because it's got a broader prohibition, which is a prohibition on result, and obviously strict liability statutes are broader than one that requires some kind of bad intent.

It is the appellants who are making the extraordinarily anomalous argument that--

Unknown Speaker: Of course, here the strict liability only attaches if the effect is obvious because it's retrogressive, but if you don't have a retrogressive effect, then you have to look further.

That's all that means.

Your strict liability attaches when there is a retrogressive effect.

Mr. Carvin: --Right, but what do you look at?

Do you look at whether or not they intended to cause the injury, to go back to Justice Scalia's analogy.

If you have... for example, under the law, if you defame somebody negligently, you cannot be held liable, but if you intentionally defame them, you can be held liable, because we agree that intentionally inflicting an injury is worse than negligently doing so, but in both instances you must defame the other person.

There must be a defamatory statement.

And in this case, there must be retrogression to come within the legally cognizable injury addressed by section 5.

Otherwise, you open up the very narrow section 5 proceeding to encompass all sorts of the free-floating purpose inquiry that was referenced before and dramatically increase the burden on the covered jurisdiction in three ways.

First of all, you subject the covered jurisdiction to duplicative litigation and inconsistent judgments.

Under appellants' theory of section 5, the small Louisiana parish comes up to the district court in D.C., proves itself innocent of any potential constitutional violation, and it means nothing, because the next day they can be sued in Louisiana District Court under section 2 and the Fifteenth Amendment, and section 5 strips them of any res judicata defense.

Well, obviously, when section 5 said you can have a follow-on proceeding in the local district court, it was not intending that you have precisely the same trial in the District of Columbia one day and in Louisiana the next.

It intended that the section 5 court would deal with section 5 issues, and it intended that the district court would deal with the constitutional issues, the Fourteenth and Fifteenth Amendment violations that they address every day.

The second problem for the covered jurisdictions is, you create an insoluble dilemma for them, as this Court noted in Miller and Shaw.

If the covered jurisdiction fails to subordinate traditional districting principles to create a majority-minority district, the Justice Department will find that they have a "discriminatory purpose", as they did in this case because the parish refused to violate State law.

On the other hand, if they do subordinate traditional districting principles to create majority-minority districts, then they will have violated the Fourteenth Amendment under Shaw and the gerrymandering cases, and this Court has noted that the jurisdictions need some breathing space to reconcile the competing interests under those two laws.

They need to have some ability not to violate the Voting Rights Act and to comply with the Constitution.

I submit that that breathing space will be gone under this regime.

Unknown Speaker: Counsel, as I understand, part of your argument is that, as a matter of textual analysis and as a matter simply of common sense analysis, there would be something very strange in saying that abridgement with respect to its effects can refer only as this Court has said, to retrogression, whereas a purpose to abridge might be broader to include, among other things, dilution.

It seems to me that in part of your argument this morning you've given a response to that, and I want to know whether I've understood you.

You pointed out that one of the difficulties with the concept of dilution is that there really isn't any benchmark ready-made.

We know what the benchmark is on retrogression simply by definition.

It's the status quo you start from, and you do have your benchmark.

When you're talking about dilution, you don't have a ready-made bench mark.

You have to, in effect, choose one somewhere, and it seems to me that... I mean, I think there's a lot of force in your point there, but that also seems to lead to this, that if we don't know whether a non... or if it's very difficult, conceptually, to decide how to determine whether a nonretrogressive change is dilutive or not, the way we do it is to look to purpose.

Was the purpose in effect to dilute, to in effect to mean that the vote will be less effective than the vote of the majority.

And simply because purpose is so important in determining dilution, whereas effect may not, in fact, be a basis for finding dilution at all, or at least it may be conceptually difficult, it seems to me that it makes perfect sense to say that a statute would want to proscribe an abridgement effect limited only to retrogression, but would want to proscribe an intent that includes both retrogressive and dilutive.

Have I misunderstood your point, and if I haven't, is that suggestion unsound?

Mr. Carvin: Well, I would agree with half of what you said.

The--

Unknown Speaker: Well, that's a good start.

Mr. Carvin: --You've... where I agree with you, Justice Souter, is that you've precisely identified the dilemma that would be confronting us if we injected these purpose, unconstitutional dilution issues into the section 5 proceeding.

Even at the benchmark level, it's tough to figure out what is dilutive.

As the Court pointed out in Johnson v. De Grandy and the Voinivich case, it's hard to even know whether or not a black majority district is less or more dilutive than a 45-percent, so you have to litigate all of those issues.

You have to introduce all of the section 2 evidence that... into the section 5 proceeding to figure that out.

Then you would have to get into the question of whether this multimember body believed that it was dilutive, and if they did believe it, that they have a... I think the phrase is, verifiable reason for not doing so.

You've turned--

Unknown Speaker: Of course, that would be easy in this case.

It would be easy in this case, because the witnesses on behalf of the board, as I recall, testified that they understood that the police jury plan was dilutive, so that would not be a difficult hurdle in this case.

Mr. Carvin: --Well, remember, in Bossier I we said that the district court simply assumed dilutive impact, but this Court found that that was not at all clear, so if... now in future cases to eliminate the question of whether or not a black minority district does have a dilutive impact, to avoid the ambiguity that led to the first remand, you do have to litigate that, and--

Unknown Speaker: But in this case... in this case, it would be easy.

Mr. Carvin: --In this case, there is no question but that white majority districts are not dilutive.

They have elected 3 blacks out of 12 on the school board under white majority districts.

I--

Unknown Speaker: You're going beyond the record, as I understand it.

Mr. Carvin: --Well, unfortunately the record closed before the 1998 election.

Unknown Speaker: Yes.

Yes.

Mr. Carvin: --so the Court has--

Unknown Speaker: There is testimony on the record, as I understand it, that the police jury plan is dilutive, and that the board knew that.

Mr. Carvin: --No.

There is the allegation that it's dilutive, and the board didn't want to bring in their own voting rights expert to disagree with that, because they said, we'll stipulate that it's dilutive, because we've got a superb reason for not taking the nondilutive plan, which is it violates--

Unknown Speaker: Well, the stipulation that it's dilutive--

Mr. Carvin: --Well--

Unknown Speaker: --is pretty good evidence, actually.

Mr. Carvin: --actually--

[Laughter]

Unknown Speaker: --I was using stipulated in the sense that they assumed it arguendo.

They didn't contest it.

But my point is that we are, I think, structuring a rule for future section 5 litigation, and every section 5 jurisdiction, in light of what happened in Bossier I, is going to litigate that.

They are going to introduce precisely the same evidence that you would have had to produce if you injected section 2 into section 5, so all of the federalism concerns that animated the Court to reject the injection of section 2 evidence into the section 5 proceeding apply with equal force here.

Indeed, Congress was quite clear in 1982 in saying that they thought constitutional purpose inquiries were more invasive of State sovereignty than the result test under section 2, so you don't avoid any of these federalism problems.

What is your opinion... and you're free to sound them.

What is your opinion on something I don't really know the answer to.

I haven't sat as a trial judge, but my impression is when a trial judge sits on deciding a question of fact, it's pretty unusual that the trial judge thinks the evidence is really equally convincing.

Normally, he thinks, well, you know, if I'm forced to choose, I think the evidence is a little more one way, or a little more the other way, and I raise that because I want to know what, in your opinion, that would make as a practical difference on factual questions heard by a trial judge if you said, the board has the burden of proving it, or the other side has the burden?

Mr. Carvin: I have to answer that on three levels, Justice Breyer.

First of all, I agree with you that the real problem here is not who has the burden of persuasion.

The real problem is injecting us into this amorphous constitutional purpose inquiry in the narrow section 5 proceeding.

I think that generally the cases in the 2000 redistricting cycle are going to be close cases, with very difficult, if you go too far, do you violate Shaw, so maybe the burden of persuasion will be outcome-determinative in those cases more typically than they would in other kinds of circumstances, because we all recognize that in redistricting you are considering race at some level of abstraction.

Whether that's a discriminatory consideration or not is a question that's bedeviled this Court in the gerrymandering cases, and I think would bedevil the lower courts as well.

My third point is, if they are close cases, of course, that is the kind of burden that you particularly don't want to put on the covered jurisdiction, because if it's a close case where a trial judge could go one way or another, the Justice Department and the minority plaintiffs have all the more incentives to bring the follow-on case in Louisiana that I described earlier.

Because they say, look, it was a coin toss, we might as well get a free second bite at the apple, leading to even more litigation than you have typically involved in redistricting and, of course, the follow-on lawsuit by the nonminorities in the jurisdiction we said that remedy that the Justice Department was trying to force on you violated our rights.

So we're contemplating literally four different proceedings every time we want to get a voting change precleared.

Unknown Speaker: May I--

--Mr. Carvin, you have said in answer to Justice Breyer, and I think you said earlier, that we don't want to put such a difficult burden, particularly in close cases, on the covered jurisdiction, and I don't know why we should assume that.

I would have assumed just the opposite.

The reason section 5 was enacted was that there was a game going on in the south in which every time there was an adjudication there was an immediate change in the law which in effect put the jurisdiction one step ahead of the courts, and the litigation had to start all over again, and I would have supposed that the very point of section 5, whether the issue might be close in litigation or not close in litigation, was to put the burden precisely on the covered districts, and I don't know why it is sound for you to stand here and argue that, in fact, this is somehow an offense against federalism.

It seems to me that it was precisely what was intended, and there was a justification for it.

Mr. Carvin: Again, the presumption that I'm talking about comes from this Court's precedent in Will and Gregory v. Ashcroft, that if you are going to redefine the traditional balance between the Federal Government and the States, you need to do so on the basis of unmistakably clear statutory language Here, we're not only--

Unknown Speaker: And we're talking about a voting context in which, in fact, the political and the constitutional context is fundamentally different from that of any other category of case, isn't that true?

Mr. Carvin: --Well, but of course, that was true in Bossier I and the reasoning in Bossier I was, we're not going to add to the federalism burdens inherent in the covered jurisdiction.

We're not going to inject section 2 into the section 5 proceeding either.

Unknown Speaker: But that begs the question here.

Mr. Carvin: But--

Unknown Speaker: Whether we are adding or not is, in fact, the issue before us.

Mr. Carvin: --Oh, I don't--

Unknown Speaker: Your argument is, well, you don't want to come out to the... with a ruling that a nonretrogressive intent is covered, because these can be very close cases, and that somehow would be offensive to federalism, but if you look at the broader context in which section 5 was enacted, it seems to me that is probably precisely what Congress intended.

Mr. Carvin: --But if we're talking about the 1960's, again, we did not... Congress did not anticipate that the southern jurisdictions would be submitting these redistricting plans because obviously section 5 in 1965 was only supposed to exist for 5 years.

That's why they had to renew it in 1970, so they didn't--

Unknown Speaker: But it has been renewed, and if there's supposed to be a fundamental conceptual difference, I think it's Congress that ought to make it.

Mr. Carvin: --Well, true enough, but in 1982 when it was renewed the Court had just ruled that the Fifteenth Amendment doesn't apply to redistricting cases, so the last thing Congress wanted to do in 1982 was embrace the Fifteenth Amendment standard that appellants were arguing for, because that would create the very real possibility that section 5 wouldn't even reach redistricting.

On the more realistic level--

Unknown Speaker: You say we'd ruled that section... the Fifteenth Amendment doesn't apply to redistricting.

Are you talking about Rogers v. Lodge?

Mr. Carvin: --Actually, the Mobile plurality opinion.

Unknown Speaker: Mobile, or the Mobile--

Mr. Carvin: Yes, which it ruled that the Fifteenth Amendment only deals with the--

Unknown Speaker: --It had an intent element, yes.

Mr. Carvin: --No, I'm sorry, the right to vote, the right... that it only reached the right to cast an individual ballot, that vote dilution mechanisms were not within the scope of the Fifteenth Amendment.

Unknown Speaker: Right.

Mr. Carvin: Those need to be dealt with under the Fourteenth Amendment.

Unknown Speaker: And the 1982 amendment was a response to that decision.

Mr. Carvin: Yes.

Unknown Speaker: Okay.

Mr. Carvin: And obviously they didn't change the language of section 5 to in any way undo that problem, but again, we're talking about 2000, and I think that's the important point to understand.

Unlike the hypotheticals that they keep bringing up from the 1960's, the status quo is no longer discriminatory in 1999.

We know that for three reasons.

They have precleared these redistricting plans three times.

Unknown Speaker: But we don't know it in this case.

There's a record indication in this case that the so-called police jury is dilutive.

You're... it seems to me you're asking us to start with an assumption which is contrary to the record in this case.

Mr. Carvin: No, no, I think that the covered jurisdiction has the burden to disprove retrogression, but I don't think if we're talking about the reality confronting covered jurisdictions--

Unknown Speaker: No, but you said a moment ago, as a premise for your argument, that this is 1999 or 2000, and we're not dealing with discrimination in the jurisdictions.

In this case, we are.

Mr. Carvin: --Well, actually, no, the court found that we're not, that they didn't have a discriminatory purpose.

Unknown Speaker: We are dealing with a police jury system as to which there is evidence in the record that it was dilutive.

Mr. Carvin: Oh, there may be nonpersuasive evidence.

I don't dispute that.

My only point is that the school board's plan was precleared in the 1980's as free of any discriminatory purpose and effect.

That was the--

Unknown Speaker: Wasn't the Department of Justice at that time ignorant that there had been a plan, that there had been the very real possibility of creating at least one, perhaps more, majority-minority districts?

Mr. Carvin: --As I understand it, all of the evidence produced by the black community was communicated to the Justice Department when they precleared the police jury plan in 1991, that they were not in any way misled, or had a mistake made, and I think the best evidence of that, Your Honor, is nobody's ever sued the 1991 police jury plan.

If it was such an obvious violation of the discriminatory purpose standard, presumably somebody would have brought a case against the identical police jury plan, but nobody's done that.

Unknown Speaker: Maybe it didn't matter as much for the police jury as it did for the school districts, and then you have a plan that has districts with no schools in them, two districts where incumbents are paired against each other.

Sounds passing strange that one would want to arrange a school district that way.

Mr. Carvin: Only if the people in those pairs were going to run against each other, and the undisputed evidence is that they were not, and--

Unknown Speaker: But that decision was made later.

Mr. Carvin: --No, actually, the evidence in the record is that they knew at the time that these people in the pairs were not going to run against each other, but indeed the school board was in a worse position than the police jury, because the school board was prohibited by law from splitting precincts, whereas--

Unknown Speaker: Yes, but they could get permission to do that, and there had been permission given in the past.

Mr. Carvin: --Only in response to a Justice Department objection, or where you did joint redistricting with the police jury and the school board.

The school board tried to do that in this case and was unsuccessful in doing so.

There was no ambiguity under State law that says, the precincts that were created in 1991 must be the building blocks for the school board's district.

They have tried to obfuscate that issue, but it is a very straightforward violation of State law, which gives particular point to the point I was trying to make earlier, which is, here, they failed to subordinate State law.

They failed to do something that was admittedly irrational because it was more costly and created voter confusion, which was splitting precincts, and they think this is a very clear case of discriminatory purpose.

That will give you an idea of the dilemma that covered jurisdictions will face in 2000 when they have to create yet another minority-majority district or the Justice Department will say, you didn't have a compelling Government interest for not doing so, ergo you've got to do it, which will lead to a Shaw lawsuit in the wake of that.

If this is a close case, or if this is a clear case of discriminatory purpose, then no covered jurisdiction can get through the Justice Department without committing a Shaw violation.

Unknown Speaker: May I ask you one sort of basic question?

Do you agree with Justice Scalia's comment that the intent, that the meaning of the Department of Justice regulations that distinguish between effect and purpose have been perfectly clear ever since the beginning?

Mr. Carvin: I think it's been their practice.

I think... these are not regulations.

These are guidelines on how they will enforce the law, and--

Unknown Speaker: So we're really deciding whether or not the practice that they've been following for 35 years may continue or not.

Mr. Carvin: --And I think you should give that the same deference that was given to it in Bossier I and Presley, which is none, because, as in Bossier I, their practice is contrary to both the Beer retrogression principle and to the statutory language.

I would also point out that, if you adopt the Justice Department position, you will be overturning the learned opinion of the section 5 district court in the District of Columbia, and they were the ones, as this Court made clear in City of Port Arthur, who were given primary responsibility for interpreting a violation of section 5, so if there's a choice between deferring to the section 5 court and the Justice Department, I think any Chevron deference should be given to the section 5 court in those circumstances.

Unless there are further questions, I have nothing else.

Unknown Speaker: Thank you, Mr. Carvin.

Mr. Wolfson, you have a minute remaining.

Rebuttal of Paul R. Q. Wolfson

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

I want to address a few points.

First, the filing fees hypothetical, which has come up in various guises.

It does portray a somewhat inaccurate way of how election laws operate and how they are changed.

I mean, jurisdictions don't change election laws for fun.

They usually do it in response to some change in circumstance, or some change in policy that requires it.

Redistricting presents the most obvious example.

Every 10 years, most jurisdictions that have single-member districts are under a constitutional obligation to reapportion.

Section 5 says essentially you can respond to that constitutional obligation in a discriminatory way, or you can respond to it in a nondiscriminatory way.

Section 5 forces you to chose the nondiscriminatory way.

Lopez last term was another example.

The State voters changed the State constitution to say, we want consolidated courts.

There are many ways that could have been carried out.

The effect of section 5 is to say, it must be carried out without discrimination, without discrimination on the basis of race.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Wolfson.

The case is submitted.

Attribution:

The Oyez Project

Reno v. Bossier Parish School Board - Oral Argument

Fri, 09 Jan 2009 14:50:15 +0000

Case:

Reno v. Bossier Parish School Board

Media File:

98-405_19990426-argument.mp3

Related Transcript:

1998_98_405_argument.xml

Transcript:

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in Number 94-1455, Janet Reno v. Bossier Parish School Board, and George Price v. Bossier Parish School Board.

How do you pronounce the name of this parish, do you know, Mr. Patrick?

MR. DEVAL L. PATRICK: It--we--it is usually referred to and has been in the litigation as Bossier Parish, but in Louisiana it's Bossier.

CHIEF JUSTICE REHNQUIST: Bossier, okay.

MR. PATRICK: And if you say Bossier--if you say Bossier in the course of this I'll probably be confused, so if you say Bossier it would be helpful.

CHIEF JUSTICE REHNQUIST: You would think in French it would be Bossier rather than Bossier.

MR. PATRICK: Bossier, oui.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Patrick--
(Laughter.)

CHIEF JUSTICE REHNQUIST: --you may proceed, whatever the name of the parish. (Laughter.)

JUSTICE ANTONIN SCALIA: Allez-y.

MR. PATRICK: Ah, oui. Allons.

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

The Bossier Parish School Board adopted the redistricting plan at issue in this case with a discriminatory purpose, plain and simple, and in finding otherwise, the district court ignored evidence that this Court has required fact-finders to consider since its decision in the Arlington Heights case, evidence of racial block voting and of the recent history of discrimination in voting and otherwise in Bossier Parish, evidence that was undisputed, indeed was stipulated below.

CHIEF JUSTICE REHNQUIST: Mr. Patrick, when you say the district court ignored the evidence, you don't mean that it excluded it as a matter of admission of evidence, but just that it refused to take it into consideration in making its conclusion?

MR. PATRICK: Frankly, Mr. Chief Justice, it's very hard to say. There was not a--an evidentiary ruling in the classic sense, in--because all of the evidence came into the--into the record by way of stipulation without objection by the parties, but what is plain is that the court did not even mention the Arlington Heights case or the Arlington Heights standards, and in one point--one point in the decision went so far as to say that it would not expressly consider the evidence of the history of discrimination in the school board, and when you cons--excuse me, Mr.--

CHIEF JUSTICE REHNQUIST: If it came in by stipulation, or--it's not an evidentiary point, really, it's an argument that the court's refusal to take it into consideration makes its findings clearly erroneous or wrong as a matter of law, I--

MR. PATRICK: Well, as a matter of law in the first instance, Your Honor, because under Arlington Heights, which requires that in making a determination of purposeful discrimination that the court take into account the totality of the circumstances, and where Rogers v. Lodge has said that this specific kind of evidence is important to a determination of purposeful discrimination, we argue in the first instance that there was a violation of--that there is a legal error and, indeed, when you take--

JUSTICE SCALIA: How do we know that they didn't take that into account--

MR. PATRICK: Because they did not, in the first instance, even cite the Arlington Heights precedent.

They did not indicate what standard was being used in the--if you look at the analysis--

JUSTICE SCALIA: I'm talking about particular evidence.

What particular evidence do you--do you maintain they did not take account of--

MR. PATRICK: It's--

JUSTICE SCALIA: --and how do you know that they didn't take account of it?

MR. PATRICK: There are two kinds of evidence that bends to the question, Your Honor, about how we know they didn't take account of it.

First of all, the evidence of racial bloc voting. This is a--this is acommunity where the parties have stipulated that 80 percent of the voters in the parish will not vote for a candidate of a race different than they.

That is stipulated at 122a of the record.

JUSTICE SCALIA: But didn't the--I mean, the response that's made by the appellee here is that the court-- that all that that would prove is that therefore, since there was bloc voting, it would--it would advantage the black voters if there were a majority black districting, but didn't the court assume that to be true?

MR. PATRICK: No, Your Honor. I don't think--

JUSTICE SCALIA: It didn't assume that--I thought it--

MR. PATRICK: I--excuse me. Did you--I'm sorry.

JUSTICE SCALIA: Yes. I thought that the court's discussion just takes as a given that it--that it would be to the benefit of the blacks if they had a majority-minority district.

MR. PATRICK: I'm not sure that we can fairly assume that from the district court's opinion. What the district court said is that evidence of this kind is relevant to Section 2, and there's no question about that.

But we contend, and Arlington Heights supports us, that it is independently relevant to the question of purposeful discrimination.

There is no evidence, in fact, on this record, which is relevant to the one question, the Section 2 question, but not relevant to the purpose determination in the case and, indeed, the court expressly refused in its opinion at 34a, Footnote 18, the evidence that the board itself was in violation of the Federal desegregation order with respect to the schools, so that when you take into account the evidence that was excluded and I--and the--both the racial bloc voting and the history of discrimination, all of which is stipulated and uncontested below, and you think--and you consider that in light of the other evidence that was considered, that the plan--

CHIEF JUSTICE REHNQUIST: Well, the evidence wasn't so much excluded as not considered--

MR. PATRICK: I think that's--I think that's fair to say.

CHIEF JUSTICE REHNQUIST: --in the technical sense here.

MR. PATRICK: When I think of excluded as a trial lawyer I think of a--

CHIEF JUSTICE REHNQUIST: Evidentiary rule, yes.

MR. PATRICK: Of a ruling on evidence--that's right, and because all of the stipulations came into the record without objection on relevance or any other--any other grounds, I think--I think Your Honor is right.

JUSTICE SANDRA DAY O?CONNOR: Has this Court applied Arlington Heights in a Section 5 determination, do you know?

MR. PATRICK: What this Court has done in--

JUSTICE O?CONNOR: I thought we had not, but what do you rely on for that?

MR. PATRICK: I rely on Rogers v. Lodge, which is a--which, as you know, is a case where the Court has said that the Arlington Heights factors are probative of the judgment about whether there is purposeful discrimination under the Voting Rights Act.

I think what is key in your analysis and consideration of this case is that you bear in mind all of the facts, as Arlington Heights requires, all of the facts and circumstances known to the board at the time, and ask yourself, does it add up?

This is a plan, you understand, that is against the school board's own interests, both its districting and its governance interests.

This is a school board that is typically concerned about distributing the schools among the school districts, and yet adopted a plan that has some school districts with no schools in it at all.

That is stipulated at 112a and 73a of the record.

It--

JUSTICE RUTH BADER GINSBURG: Mr. Patrick, do--would you clarify for me what you think the legal standard is before we go much further into the argument?

That is, we know that the effect, what they call the effect prong of Section 5 is about retrogression.

MR. PATRICK: Yes.

JUSTICE GINSBURG: What does the pur--what does the purpose--what does it mean? What does the statute mean when it says, shall not have the purpose of denying the right to vote on account of race?

MR. PATRICK: We take that to mean that the factors--that the school board has to show a nondiscriminatory purpose within the meaning of Arlington Heights by taking into account the totality of the circumstances, looking at the actions and inactions in this case of the--of the school board, in reaching the conclusion they did, all the facts and circumstances known to the board at the time.

JUSTICE ANTHONY KENNEDY: And that it has the burden of proof on that point.

MR. PATRICK: That's right.

I was saying about the--about the plan that they did adopt that this is a plan which it is conceded does not respect school attendance zones. That's also stipulated in this record, in 112a.

It pits incumbents against each other. The way the district court put it was that it wreaks havoc on incumbents--incumbency. That's 28a in the--in the court's opinion.

About half of the parish was placed in one district. That's also in 120a, and in other places it fractures neighborhoods, 110a to 111a. These are all stipulated facts.

JUSTICE DAVID H. SOUTER: Mr. Patrick, would it have been open or was it open at the district court to accept all of this and say, look, all of this evidence does point in the direction of intent to discriminate, but there's a piece of counterevidence here and that is, the moment at which the board seemed to turn around and suddenly embrace the police district plan, which it did not originally want, was the moment at which it became apparent that there was going to be a fight about this.

It was the moment following the NAACP's submission, I think, of a couple of plans.

And it is findable on this record that what the--what the board wanted to do was to avoid 7 years of litigation, and basically the board said, look, we'll take peace, even though we don't like the way we're getting it. We'll take peace with all of these defects.

If that was the court's reasoning process, would that have been clearly erroneous, or, indeed, was that clearly erroneous?

MR. PATRICK: It was clearly erroneous. It's not entirely clear that that was the court's--

JUSTICE SOUTER: I realize that.

MR. PATRICK: --the court's reasoning. What the court said was that it might be a legitimate reason to seek easy preclearance.

What Your Honor's question implies is that the reason was that they wanted to avoid a controversy with the--with the black citizens, but--

JUSTICE SOUTER: They wanted to--well, they wanted to avoid litigation, and they could see it coming.

MR. PATRICK: If that?s what it--if that's what it was. I do think Your Honor is right that the process and the sequence of events leading up to the decision is extremely telling and, indeed, Arlington Heights requires that that be considered as well.

This is a process that was undertaken more than 3 years before they needed the plan, and they--

JUSTICE GINSBURG: So if we didn't have the process and the sequence, we just had a lazy school board that said, oh, the police jury got this plan, and it was precleared, so we'll take it with all its faults.

If it hadn't been that, would this--would it have been okay?

MR. PATRICK: I think it would be a very different--a very different case.

Clearly, the--that's not the case we have here, because we have a board that expected to draw a plan different from the police jury plan at the outset.

That is stipulated, too, as well in the record, and, indeed, we have a--we have a board that had a different plan from the police jury for a decade or more before they were--they were faced with the redistricting considerations.

This is a board that hired a cartographer with the expectation he would spend 200--250 hours drawing a plan different from the police jury and went about that at a leisurely pace for over a year.

Everything changed when the black citizens came forward and asked that they be fairly represented in the districting--

JUSTICE STEPHEN G. BREYER: Are you--

MR. PATRICK: --process.

JUSTICE BREYER: --are you certain that the district court here meant to exclude evidence that he called relevant to the Section 2, meant to--was he saying, I'm not even going to consider that when I think about whether Section 5 is violated, or is he saying, you can't build a Section 5 case out of only that?

MR. PATRICK: Well, we're certainly not contending that you can build a Section 5 out of only--a Section 5 case out of only that, but frankly there is no way to understand the district court's opinion by saying that it won't consider for Section 5 purposes evidence that's relevant to Section 2 on a record where all of the evidence is relevant both to Section 2 and Section 5, as other than--meaning the purpose prong of Section 5 as other than--

JUSTICE KENNEDY: What is the evidence--and this was what Justice Scalia asked at the very first, and--

MR. PATRICK: Yes.

JUSTICE KENNEDY: --I wasn't sure that you completed your answer, and it's relevant to what you're discussing now with Justice Breyer.

What is the element--evidence, other than bloc voting, that should have been considered and that was not?

MR. PATRICK: That no black person had ever been elected to the school board. That's stipulated at 115a.

That there had never been more than one black member of the police jury. That's in the joint appendix at 55 to 60.

That blacks had rarely been elected anywhere in the parish at the time. That's stipulated at 127a--

JUSTICE KENNEDY: Those are all subsidiary elements of the bloc voting.

MR. PATRICK: That's right, and then the--in terms of the history of discrimination, at the time of the decision this board was in violation of its duty to redress school segregation under Brown.

That was noted by the district court, to be sure, in Footnote 2 of--

JUSTICE KENNEDY: All right. So again, most of these things are in the record.

It's just not clear that the--

MR. PATRICK: Well, they're all--

JUSTICE KENNEDY: --district court weighed them in a Section 2 context.

MR. PATRICK: They're--you?re right--

JUSTICE KENNEDY: Is that--Is that a fair statement?

MR. PATRICK: You're right that they're all in the record, Justice Kennedy, there's no question about that.

What is apparent, however, is that the district court was not taking them into account as is required by Arlington Heights in making its judgment about purposeful discrimination.

And with respect to the history of discrimination, remember, this is a school board that stipulated on the record that segregation has increased since the court--since they've been under Federal court order and, indeed, that they were assigning teachers to schools on racial grounds.

This is a--the district court said expressly in Footnote 18 of its opinion that it would not consider evidence that the board itself was in violation of its--of its duties under the Federal court order to desegregate the schools.

That's the evidence that was dis--that was not considered.

That is the evidence that should have been considered under the Arlington Heights standard, and if you add to that, and I want to come back to the sequence issues in just a moment, but if you add to that that this is a school board that came before the United States District Court, to say nothing of the Attorney General, and urged false reasons--false reasons for why it was--why it was--why it made the decision it did,

I sub--we submit that a jurisdiction with a clean, nondiscriminatory motive does not come to the United States District Court and urge false reasons, and--

JUSTICE SCALIA: Mr. Patrick, here's what Footnote 18 says. It seems to me entirely reasonable.

Defendant mentions the continuing duty of the--

CHIEF JUSTICE REHNQUIST: Where are you reading?

JUSTICE SCALIA: It's on page 34a of the juris--of the juris--of the appendix to the jurisdictional statement.

Defendant mentions the continuing duty of the school board to, quote, "remedy any remaining vestiges of the dual school system under the order in Lemon v. Bossier Parish School Board, citing in particular the school board's failure to maintain a biracial committee. We fail to see how this can be in any way related to the school board's purpose in adopting the police jury plan."

I don't--that seems to me quite reasonable.

MR. PATRICK: Well, Your Honor, it--

JUSTICE SCALIA: The court considered it, but in its judgment did not find it to be related. Now--

MR. PATRICK: Well, you--

JUSTICE SCALIA: --must the court find that it proves what you want it to prove in order to comply with the law?

It seems to me the court need only consider it, and then it's a matter of judgment whether it shows the animus or not.

MR. PATRICK: What weight it's given is a matter of judgment, guided by the--guided by the precedents of this Court, but whether it relates has been resolved by this Court.

That's what Arlington Heights is about. Arlington Heights says--

JUSTICE SCALIA: I take it, can be in any way related, means whether it has anything to do with as a factual matter.

MR. PATRICK: That's right, and Arlington Heights says that it does have something to do with the determination about whether there was or was not purposeful discrimination.

Legislative or administrative history at 268 of the Arlington Heights opinion was specifically noted and, indeed, the Rogers v. Lodge case states that that evidence, evidence of this very kind, bears heavily on the issue of purposeful discrimination, is, indeed, important evidence of purposeful exclusion.

I'd like to reserve the balance of my time for rebuttal, if I may.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Patrick.

MR. PATRICK: Thank you.

CHIEF JUSTICE REHNQUIST: Mr. Borkowski, we'll hear from you.

MR. JOHN W. BORKOWSKI: Mr. Chief Justice, and may it please the Court:

I'd like to start with the question Justice Scalia just asked about Footnote 18, because that shows very clearly, I think, what has been going on in Bossier Parish.

The evidence that the court didn't look at that dealt with the board's exclusion, admitted exclusion of blacks from educational policy issues.

The court had ordered that a committee be established to allow blacks for--to have a opportunity for input into school board issues.

This is the kind of nonresponsiveness, the kind of exclusion that is exactly what happened in the redistricting process.

CHIEF JUSTICE REHNQUIST: Well, if we're--if you're going to get into the sort of detail that you say Arlington Heights requires us to get into,

I would think that it would be important to know whether the school board's failure to maintain a biracial committee was the result of hostility to the idea, neglect, maybe unable to have the funds, maybe just got lost in the shuffle.

In other words, just saying it failed to maintain a biracial committee, if we're going to get into the sort of textual detail that Arlington Heights says, you have to know more about it than that.

MR. BORKOWSKI: That's absolutely right, and the facts on this record are that the board admitted in the direct testimonies of Mr. Musgrove and Mr. Myrick, the two board members who testified, that when this committee started getting into educational policy issues, they disbanded, because they did not want this committee having a role in it--

CHIEF JUSTICE REHNQUIST: Well, was the committee set up to deal with educational policy issues?

MR. BORKOWSKI: Yes, it was. The consent decree established it for that purpose, and the representations to the contrary, as we point out in our reply brief, in the appellee's brief, are simply false, and the record bears that out. The--

JUSTICE O?CONNOR: In your--

JUSTICE KENNEDY: And your--and your position is that all these matters and many others like them must become a part of a Section 5 case and must be resolved under Section 2 standards before there can be--the preclearance decision can be made?

MR. BORKOWSKI: These facts only become relevant in a purpose determination.

Had the board come forward and not--and been able to show legitimate reasons, and there were not these--this--not this pattern there, this evidence wouldn't come in.

This is an unusual case. In this purpose determination these factors have to be considered.

Justice O'Connor--

JUSTICE KENNEDY: Well, but I thought there were two points.

One is that it may be relevant to purpose. The other is that there must be a specific ruling on whether or not there is or is not a Section 2 violation.

Don't you have--don't you make both arguments here?

MR. BORKOWSKI: I'm focusing here on the--on the purpose argument only, and Justice O'Connor asked whether the Arlington Heights standard was the standard for Section 5, and in Pleasant Grove even the dissenters, who did not find discriminatory purpose, cited Arlington Heights as the proper standard to apply, and decisions that this Court has affirmed--Busbee v. Smith and Port Arthur--also applied Arlington Heights, and it?s the--it's the constitutional standard, and--so, I'm just talking at this point about the purpose argument.

All of these factors under Arlington Heights are relevant to showing discriminatory purpose, and the court erred in excluding it.

As Justice Scalia asked, how do we know that the--that the court did this?

Well, the court said we will not permit Section 2 evidence to prove discriminatory dis--

CHIEF JUSTICE REHNQUIST: Where are you reading from, Mr. Borkowski?

MR. BORKOWSKI: 24a, in the appendix to the jurisdictional statement. On 23a the court said we must--it's argued that we must consider--

CHIEF JUSTICE REHNQUIST: Whereabouts on 23a, so we can foll--we can follow you when you read.

MR. BORKOWSKI: On 23a and 24a, the court at three different times says that it's not going to consider this evidence.

CHIEF JUSTICE REHNQUIST: Well, point out at least one of them--

MR. BORKOWSKI: 23a, at the beginning of the first paragraph, we--it's argued that we must still consider evidence of a Section 2 violation as evidence of a discriminatory purpose under Section 5. We again disagree.

At the bottom of that paragraph, and Miller forecloses the permitting of Section 2 evidence in a Section 5 case, and then, at the end of that section, on 24a, we will not permit Section 2 evidence to prove discriminatory purpose under Section 5.

Judge Kessler, in dissent, in Footnote 4--

JUSTICE SCALIA: Well, excuse me. I took that to mean--evidence of a violation, I took that to mean evidence that a violation existed, rather than evidence which could be used to show a violation for the one could be used to show a violation for the other.

I took that to mean, we reject the notion that you can come in and say, the district is in violation of Section 2, and you quarrel with that statement, too. You would allow a Section 2 violation to be--to be brought in.

MR. BORKOWSKI: Yes, al--

JUSTICE SCALIA: But what we're discussing here is whether evidence that would go to show a violation may be brought in, and I don't see this as contradicting that.

MR. BORKOWSKI: Well, there are--there are three different statements, and one of the statements that--the statement you referred to could be interpreted that way, but Judge Kessler in dissent says to the--says in Footnote 4 on page 42a that the majority is not considering this evidence, and the majority never says it is.

If you look at the evidence the majority analyzes, it only analyzes two types of evidence, and doesn't look at all sorts of evidence.

You asked what was excluded. The fact that the board's plan fractures black neighborhoods, the same neighborhoods that the school board members consciously kept together in drawing 75-percent black school attendance boundaries were fractured by this plan.

That's a--those are stipulated, unrebutted facts on this record that appear nowhere in the majority's discussion of discriminatory intent, because they would also be relevant to Section 2.

There are communities of interest that our clients have and other black voters in Bossier Parish have that are established by the testimony. That is nowhere discussed in the majority's opinion.

The--what this Court has called the inexorable zero, the fact that no blacks have ever been elected to the school board, is nowhere discussed in the analysis of the board's purpose, and we think these--this kind of evidence cannot logically be excluded just because it's also relevant to a Section 2--

CHIEF JUSTICE REHNQUIST: Well, when you say excluded, you mean the court may not fail to consider it.

MR. BORKOWSKI: Yes. I'm sorry, I misspoke there, but all of this evidence is stipulated fact, is testimony admitted into the record before this Court. It's just not considered in the majority opinion.

JUSTICE SCALIA: Did--isn't mentioned in the majority opinion. And it--suppose the court considered it but didn't mention it in its opinion.

What--is it--is the judgment invalid because it was not mentioned in the opinion?

MR. BORKOWSKI: No.

JUSTICE SCALIA: I mean, there are--there are two different points.

MR. BORKOWSKI: Right.

JUSTICE SCALIA: Number 1 is that the court didn't even consider it, and if I agree with your interpretation of the language we were just discussing, then you would have established that the court didn't even consider it, but arguably the court could have considered it but not have thought it germane enough or significant enough to be mentioned in its opinion. Would that also be a violation?

MR. BORKOWSKI: I don't believe it would be a violation per se simply not to mention evidence that is considered.

The point here is that if the--if the court actually did consider this evidence, which in every category of evidence in Arlington Heights shows discriminatory purpose, it could not have reached the conclusion that it reached.

As Judge Kessler said in dissent, this is--the evidence is far from being equally convincing on either side.

If you look at all of the stipulated and unrebutted evidence, this is not a close case.

The problem here with the majority's approach, and the problem in aff--in--if this Court would affirm the majority's decision, is that it would effectively eviscerate the purpose prong of Section 5.

It would mean that the only kind of discriminatory purpose that would be reachable under Section 5 would be publicly admitted or covertly tape recorded discriminatory purpose, because every other category of evidence that this Court has said in Arlington Heights requires a sensitive inquiry is here.

JUSTICE GINSBURG: So what would you say is the instruction, on your view of this case, that the district court should be given were we to remand?

We'd say, district court, you did wrong, and this is what you should do.

MR. BORKOWSKI: I believe that on this record the Court should not--should simply remand with instructions to--that preclearance be denied, because the record here overwhelmingly establishes discriminatory purpose.

There's no way, unless--

JUSTICE GINSBURG: But if we don?t--if we don't agree with you on that and we think that the first shot, anyway, should be--or the second--done by the district court, what then?

MR. BORKOWSKI: Then I would say that you would have to remand with instructions to apply Arlington Heights and to look at all of the evidence that this Court, in the voting context, in Section 5 cases, in school cases, in all cases where intent is an issue, to look at that evidence in all of those categories, keeping in mind that the burden of proof is on the school board here.

There was also evidence that the court considered--that the court offered its own explanations for, which we cite in our briefs as another legal error.

The only evidence, contemporaneous, direct evidence of the board's intent are admissions that tend to show discriminatory purpose.

There are no contemporaneous minutes offering nonracial reasons for why the board did what it did. There's no legislative history indicating nonracial reasons.

There are statements that some board members are hostile to black--

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Borkowski.
Mr. Carvin, we'll hear from you.

MR. MICHAEL A. CARVIN: Mr. Chief Justice, and may it please the Court:

Let me begin by focusing on the standard that the district court actually did apply in assessing the evidence.

Appellants would have this Court believe that the district court had in front of it a body of evidence that it considered probative to the question of purpose, and it sifted through that evidence and threw out all the evidence that it also thought was relevant to Section 2, but of course the district court did not say that, and did not do that.

JUSTICE SOUTER: Well, my difficulty--

MR. CARVIN: What the--excuse me.

JUSTICE SOUTER: My--I'm sorry. My difficulty with that argument is--goes to a statement which the court made back on 23a, which we were referring to a moment ago, in the appendix. Do you have that handy?

MR. CARVIN: Yes, I do.

JUSTICE SOUTER: Okay.

I will agree that some of the court's statement about what it was doing with evidence perhaps were ambiguous and lent themselves to your interpretation, but at the bottom of the page the court quotes from--

CHIEF JUSTICE REHNQUIST: 23a?

JUSTICE SOUTER: Yes, page 23a. The court quotes from a panel opinion of a different panel but at the same court, and this is what it says:

?As the panel noted, the court in Miller reaffirmed that the purpose prong of Section 5 must be analyzed within the context of Section 5's purpose, which has always been to ensure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities.?

Now, it seems to me that the court is there making it clear that the only purpose evidence it would consider was evidence of purpose to effect a retrogression, as opposed to a broader purpose to discriminate. Isn't that fairly clear?

MR. CARVIN: No, it's not, Your Honor.

JUSTICE SOUTER: Then explain that.

MR. CARVIN: First of all, the case he is citing from did not--was making the point that in analyzing purpose you must look at the limited purpose of Section 5 and not get into these additional Section 2 issues that the Justice Department had urged upon the court in Texas and was also urging upon the court here.

But more directly to answer your question, of course, it was stipulated in this case that there was no retrogressive effect of the plan, so under your understanding of the district court opinion, the district court would have only been looking at, at did they have a purpose to effect a retrogression?

This would have been a very short opinion indeed if that had been its analysis.

It did not look at the purpose of the new plan compared to the status quo ante. It looked at the purpose of the new plan as compared to the maximization alternative proposed by the NAACP.

The plan adopted had no black majority districts. The NAACP plan had two black majority districts.

The district court spent its entire opinion analyzing, did the board do that--its decision because of its negative impact on minority voters or in spite of it?

Did it have legitimate nondiscriminatory motives for rejecting the NAACP plan, or was it motivated by a racial reason? So--

JUSTICE SOUTER: Then why did it quote what I just read?

MR. CARVIN: Again, becau--

JUSTICE SOUTER: I mean, it doesn't--the quotation doesn't seem to make any sense on your theory of the court's view of purpose.

MR. CARVIN: No, but in isolation it may not, but the context is this, Your Honor. You have five Section 5 courts who were trying to analyze, why did a submitting jurisdiction make a change?

What was the purpose behind that change? And they are examining all circumstantial and direct evidence relating to the change.

The Justice Department in all five of those cases and here says, don't just look at what was motivating the board at the time.

We also want you to consider all the--of this additional Section 2 evidence, as they're arguing here. We want you to consider racial bloc voting in prior elections.

And the district courts in Section 5 cases have consistently responded to the Justice Department, Section 5 has a much more limited purpose.

JUSTICE SOUTER: Well, what is--what is your position here? Is it your position here that the only purpose that is relevant under Section 5 is purpose to cause retrogression, as distinct from purpose to discriminate by effecting a purposeful dilution?

MR. CARVIN: Oh, no. No, not at all. I think that decision, the Court's decision in Richmond and Pleasant Grove has already decided that issue and, indeed, since it was stipulated that it didn't even have the effect of retrogression, you can obviously assume they didn't have the purpose to retrogress, and this would have been a one-paragraph opinion.

JUSTICE SOUTER: But there could have been--but there could have been a purpose to dilute.

MR. CARVIN: Yes. That's the whole point.

Even though you're not making things worse, we can conceive of circumstances where there's a fully reasonable alternative put in front of you that preserves black concentrations pursuant to traditional districting principles, but nonetheless, because you are a racist school board you say, no, we're not going to do that.

JUSTICE BREYER: So if everybody agrees on that, if everybody agrees that the purpose is really the purpose to cause discrimination, not just the purpose not to retrogress, if everybody agrees at least sometimes a lot of this Section 2 evidence in this case would be relevant, if not dispositive--not necessarily dispositive but relevant to showing that, and all we're arguing about is how ambiguous the district court's opinion is, why don't we just send it back to the district court to work it out and say, be clear, take it into account and do it?

MR. CARVIN: There is no dispute as to what the district court did. Appellants have now changed their opinion as to the legal standard applying.

Let me proceed in two steps. A district court, in analyzing whether or not two nonretrogressive plans reflect discriminatory purposes, compares the maximizing alternative to the plan adopted and again asks, do we have a legitimate, nondiscriminatory purpose?

There's an impact here. One's got black majority districts, one does not.

Now, what the appellants are asking district courts to do is, after they've figured out whether that impact is motivated by a discriminating purpose, go ahead and analyze racial bloc voting.

Well, what would that show you? All racial bloc voting is relevant to is whether the black majority districts have an impact.

If you have no racial bloc voting, if you have no history of discrimination that currently excludes blacks, then there's no difference, as this Court noted in Johnson v. DeGrandy, between white majority districts and black majority districts. Blacks can be elected in both districts.

So if the district court had gone on this detour that appellants insist they do--it do, it would have--and agreed with them entirely, it would have returned to precisely the place it started, which is, yes, the NAACP plan, the failure to adopt it has an impact, but the relevant question under Section 5 is whether that was motivated by a discriminatory purpose.

You see, all of the confusion comes here is because they keep quoting cases where plaintiffs, minority plaintiffs have the burden and, of course, in Section 5 the burdens are reversed.

So yes, in Rogers v. Lodge and Gingles and all of those cases, plaintiffs must prove racial bloc voting.

They must prove that you can create a compact black majority district, and then they must show that the failure to do so has an effect, and as Justice Brennan noted quite clearly in Gingles, it only has an effect if there is racial bloc voting.

So that is plaintiff's burden and, if they had the burden in the court below, they would have had to show that, but we had the burden, and we were making a much simpler argument.

We were saying, fine, the plan has an impact, but that's not the reason it did it--didn't--took the police jury plan over the NAACP plan.

We took the police jury plan over the NAACP plan because the NAACP plan clearly and irretrievably violated State law.

JUSTICE SCALIA: But this--but this other evidence not only shows impact, it also shows what you might call disposition.

Doesn't the evidence of a violation on racial grounds of Section 2 show that you're talking about people here who are likely to discriminate on the basis of race--

MR. CARVIN: Oh, I didn?t--

JUSTICE SCALIA: --and isn't that relevant to the Section 5 determination?

MR. CARVIN: Well,Your Honor, again, as appellants have correctly pointed out, the board was aware of the impact of this plan.

I mean, they can count. They knew that the NAACP plan had two black majority districts and their plan had none.

Nobody's disputing that they were aware of the impact of this plan.

Now--

JUSTICE SOUTER: No, but the question goes to--

JUSTICE SCALIA: I'm not talking about awareness.

MR. CARVIN: Yes, but--okay. Now--

JUSTICE SCALIA: I?m talking about--I'm talking about intent.

MR. CARVIN: Right.

JUSTICE SCALIA: I'm talking about disposition.

MR. CARVIN: Right.

JUSTICE SCALIA: I'm talking about the character of the people who made the decision.

MR. CARVIN: And how would that inquiry be aided by looking at regression analysis of racial elections that was done three years after the board's decision?

They brought in an expert to go through and produce this evidence of racial bloc voting which, by the way, he failed to produce and, of course, this plan has elected two black people--

JUSTICE SOUTER: Well, I suppose the answer is that people haven't changed that much over the course of three years.

MR. CARVIN: Well, I think--

JUSTICE SOUTER: Do you--do you dispute the fact that evidence of bloc voting, which, in fact, is evidence which discloses an intent, is irrelevant--

MR. CARVIN: No.

JUSTICE SOUTER: --to evidence of intent under Section 5?

MR. CARVIN: No. Again, it is not irrelevant, particularly when plaintiffs have a burden, but it adds nothing to what--

JUSTICE SOUTER: You're saying it was just cumulative, is that it?

MR. CARVIN: It was superfluous and cumulative because racial bloc voting only tells you, again, whether black majority districts have an impact.

JUSTICE SOUTER: So--if I may--if I may just--

MR. CARVIN: Sure.

JUSTICE SOUTER: --get clear on this, it would have been perfectly proper for the court to say, we will--we will consider this evidence for the Section 5 purpose issue. That would have been legally correct.

MR. CARVIN: Oh, sure, and remember the issue here is whether the court committed legal error--

JUSTICE SOUTER: Did the court ever say that the reason it was keeping it out was that it was superfluous and cumulative?

MR. CARVIN: It said, I am considering evidence that is relevant to purpose. No, Your Honor, it didn't say what its implicit assumptions were, just like this Court in Miller.

This Court in Miller analyzed a Section 5 purpose case, and it compared the legitimate nondiscriminatory reasons for adopting the plan with less majority black districts than the plan with more majority black districts.

The Justice Department in that brief urged upon them to--this Court to independently consider the stark evidence of racial bloc voting in Georgia and the history of discrimination and all those sorts of things.

Now, the Court didn't do that because, like the court below, it assumed that the--

JUSTICE SOUTER: Well--

MR. CARVIN: --the absence of the majority districts had an impact.

JUSTICE SOUTER: Mr. Carvin, I just don't think the court's opinion on page 23a is consistent with what you're saying.

MR. CARVIN: Well--

JUSTICE SOUTER: Go up to the top of that first full paragraph.

MR. CARVIN: Right.

JUSTICE SOUTER: The court summarizes the argument that it's responding to.

?Defendant argues that even if we decide that a Section 2 action cannot be brought in a Section 5 preclearance proceeding, we must still consider evidence of a Section 2 violation as evidence of discriminatory purpose under Section 5.

Again, we disagree. As we have said, the statutory language sets forth differing standards for the two sections.?

Isn't that, when read in relation to the quote that I started from, the bloc vote from the earlier opinion, isn't that a pretty clear indication that what the court was finding was, or assuming was, not that this evidence was cumulative or superfluous, but that it was irrelevant?

MR. CARVIN: Well, it--

JUSTICE SOUTER: And you have conceded that it was relevant.

MR. CARVIN: Well--well, but in that technical sense, as this Court has already pointed out, the court didn't rule it was irrelevant. It admitted it into evidence, and--

JUSTICE SOUTER: Well, it says the two sections have different purposes--

MR. CARVIN: Your Honor--

JUSTICE SOUTER: --and the argument was that you must consider it--

MR. CARVIN: Yes.

JUSTICE SOUTER: --the evidence that might go to Section 2 for Section 5 purpose, and the court says we disagree.

MR. CARVIN: Right. You must still consider evidence of a Section 2 violation.

Now, that means that Section 5 courts trying to figure out the purpose of this discrete change must engage in the amorphous and very complicated analysis of whether-- not, the change is purposefully discriminatory, but whether the underlying electoral system has the result of discriminating.

It therefore must analyze racial bloc--

JUSTICE SOUTER: But that is not what the court said.

MR. CARVIN: Yes--

JUSTICE SOUTER: The court says, these two sections have different purposes.

CHIEF JUSTICE REHNQUIST: Let Justice Souter finish his question--

MR. CARVIN: Sorry.

CHIEF JUSTICE REHNQUIST: --before you answer, Mr. Carvin.

JUSTICE SOUTER: It says, these two sections have different purposes.

MR. CARVIN: And, of course, they do.

JUSTICE SOUTER: They do, but they also have a purpose in common, don't they--

MR. CARVIN: Sure.

JUSTICE SOUTER: --because intent to cause dilution is relevant under Section 2 and under Section 5.

MR. CARVIN: Absolutely, Your Honor.

JUSTICE SOUTER: And doesn't the--doesn't the court's explanation indicate that that's not what the court thought?

MR. CARVIN: If the court had said, we are not going to consider evidence that is relevant to both Section 2 and Section 5, you would be correct.

But what the court said was, we'll consider evidence that's relevant to Section 5 but not relevant only to a Section 2 violation.

How do the two statutes differ? One has a purpose standard, and one has a result standard.

Some evidence of section--

JUSTICE SOUTER: No, they both have purpose standards.

MR. CARVIN: Yes, they both have that in common, but how do they differ?

They differ because Section 2 can be violated wholly without regard to purpose and, therefore, the evidence for a Section 2 violation has been consciously constructed to focus the court's inquiry not on the purpose for adopting this plan but on the results of the system, racial bloc voting and those sorts of things, and it was that subset of evidence that the court clearly said was the only evidence it wasn't--

JUSTICE SOUTER: But on your own argument, as I understand it, there was an error there, because evidence of racial bloc voting would indeed go to purpose, wouldn't it?

MR. CARVIN: The error has--no.

JUSTICE SOUTER: Didn't--I thought you--I thought you agreed that that was so--

MR. CARVIN: No.

JUSTICE SOUTER: --and that the reason it was kept out was cumulativeness.

MR. CARVIN: The argument was, in that court and this Court--

JUSTICE SOUTER: What is--what is your position? Do you--do you think--you agree, don't you--

MR. CARVIN: I--

JUSTICE SOUTER: --that evidence of racial bloc voting would be relevant evidence under the purpose prong of Section 5, don't you?

MR. CARVIN: It would--it would be relevant but superfluous. Therefore, what Section 5 courts should do is not exclude it as a matter of law, but pay attention to it only if it furthers the inquiry.

What appellants are asking this Court to do is to rule as a matter of law that they must always consider racial bloc voting, and my question again is, how does that further the analysis?

You have just gone through a comparison of a plan that you assume has--is better for black voters compared to one that you have assumed is not good for black voters, and you've found it is legal because it's not motivated by a discriminatory purpose.

Now, you could spend 20 or so pages discussing the extraordinarily voluminous ev--voluminous evidence showing that, indeed, plans with black majority districts are better for black voters, but I don't think that this Court as a matter of law should rule that Section 5 courts must engage in that sort of thing.

JUSTICE O?CONNOR: Well, what do we do if we're truly, at the end of the day, uncertain what it is the district court really excluded--

MR. CARVIN: I--

JUSTICE O?CONNOR: --from consideration, if it's unclear to us?

MR. CARVIN: I think--

JUSTICE O?CONNOR: Don't we have to remand?

MR. CARVIN: Your Honor, I had understood this Court's rule to be that ambiguities would be resolved in favor of district courts. Rogers v. Lodge is a perfect example of that.

Rogers v. Lodge did not apply this Court's subsequent decision in Mobile v. Bolden, but the Court did a very searching analysis and said, could the district court have applied the purpose test under Mobile v. Bolden, and therefore it gave it the benefit of the doubt.

I would submit, however, in the context, and given the language, that this Court did not make the ruling that appellants said. I think--

JUSTICE JOHN PAUL STEVENS: May I ask you a question?

MR. CARVIN: Sure.

JUSTICE STEVENS: I think I understand your theory, and your argument's been very helpful to me, I might say.

But say there is in the record evidence that they drew boundary lines to segregate blacks when they were working out school districts and just the opposite kind of lines when they--when they were doing voting districts.

And under your argument, that would be relevant and should have been considered?

MR. CARVIN: Yes, Your Honor, of course.

JUSTICE STEVENS: Yes. Because that goes to purpose.

MR. CARVIN: Of course--

JUSTICE STEVENS: And if there's evidence in the record that that happened, and there's nothing--no mention of it in the opinion, doesn't that lend some support to the view that the court took a different line of reasoning than you're advocating?

MR. CARVIN: Your Honor, if there was any evidence of fracturing in this case, I think that would not be my reasonable inference.

There was no evidence of fracturing based--Your Honor, if they had fractured black concentrations in Bossier Parish to create--to fail to create the black majority districts, then obviously appellants' job would be real easy.

All they would have to do is re--undo the fracture, and redraw the lines to create the black majority districts.

But we know that's not what occurred because if you look at the maps, no one redrew--

JUSTICE STEVENS: But let me interrupt you with one other point there.

I don't think our question is whether the court should have accepted the other proposed map.

I agree with you, that isn't it. The question is whether it was correct to adopt the plan it did adopt.

MR. CARVIN: Right, and the appellants try and make something very sinister about the adoption of the police jury plan.

The consistent, contemporaneous evidence has been that they rejected the NAACP plan because it violated State law, and they adopted the police jury--

JUSTICE GINSBURG: But Mr. Carvin, this--clarify one thing about what you call the NAACP plan that was rejected.

I didn't think that plan was put forward as a rival to some other plan.

This case is not like the one we just heard in that regard. I thought that plan was just put forward to show that it would be possible to create minority districts, not that this was a finished plan that was a rival to some other plan.

MR. CARVIN: Well, whether it was a work in progress or a final plan, the point is that it is stipulated that it is impossible to create even a single black majority district without splitting a precinct, and it is also quite clear from Louisiana--

JUSTICE GINSBURG: But splitting a precinct is something that even the jury--the--whatever it was called, the--

MR. CARVIN: The--

JUSTICE GINSBURG: --police jury did. Not terribly many, but they did for their plan, didn't they?

MR. CARVIN: But--yes, you--and appellants have confused this issue, and it's very important that the Court be clear on it.

The police jury had no power under State law to split any precincts. It was a facial violation for the police jury to split a precinct.

It was a facial violation for the board to split a precinct. That is on joint appendix at 277. The law could not be clearer under Louisiana.

JUSTICE GINSBURG: But you get permission to do it.

MR. CARVIN: No. No.

JUSTICE GINSBURG: Well then, how was it done?

MR. CARVIN: Because if you--from April 1, '91 through May 15, 1991 police juries can split precincts.

The board here asked to work with the police jury at that time so they could split the precincts in April and May of 1991. That's stipulated. The police jury rejected the overture.

After May 15th, 1991, it was impossible for the police jury to split precincts or the board to split precincts, and that is because that window of opportunity that the State legislature had consciously given to police juries so they could account for the '90 redistricting was now gone.

JUSTICE SCALIA: Where is that in the joint appendix? You gave a page number.

MR. CARVIN: Yes.

JUSTICE SCALIA: I didn't write it down.

MR. CARVIN: That's joint appendix 277, Justice Scalia, and it says, notwithstanding any other provision of the law, the precinct boundaries shall not be divided, abolished, consolidated, or the boundaries otherwise changed until after December 31, 1992.

Now, could the board have waited until after December 31, 1992 to do its redistricting as appellants contend?

The answer to that is found at the joint appendix on page 65.

The United States' own chronology of events states quite explicitly at the top of 65, 12/31/92--of course, the same date--date under Louisiana law by which school boards must reapportion.

So during the time that the school board was legally obliged to reapportion, the police jury and the board were legally prohibited from splitting a single precinct.

That law is not, unfortunately, in the joint appendix, but it is Louisiana Revised Statutes at 17.71. 5A.

JUSTICE O?CONNOR: iIs that law consistent with one-person-one-vote requirements, do you think?

MR. CARVIN: Your Honor, because of the window of opportunity. You see, the logic of the law is this. You get--oh.

JUSTICE O?CONNOR: I'm sorry, I don't understand.

Is such a State law consistent with the requirements of one person, one vote in drawing districts?

MR. CARVIN: I took your question to mean, could they make adjustments for the 1990 census, but I may be misunderstanding your question.

JUSTICE O?CONNOR: I'm asking, this Court has had several opinions that have required the utilization of the principle of one person, one vote in districting for whatever purpose, if it's for voting, a police jury or a school board that votes, and so forth, so is it consistent with that principle for a State law to say, you can't ignore a precinct boundary?

What if you have to in order to--

MR. CARVIN: Oh, in order to--I now understand. In order to achieve--

JUSTICE O?CONNOR: --draw equal districts and achieve that requirement?

MR. CARVIN: Right, but there was no violation, I don't believe, of the one-person-one-vote constitutional standard--

JUSTICE O?CONNOR: I'm asking, if it were, do you think that State law could prevail?

MR. CARVIN: Oh, I believe there's an exception in the law for boards with different numbers of members than police juries to-- they may split a precinct to come within plus or minus five in terms of ideal population deviation, but there was no argument--

JUSTICE O?CONNOR: Has this Court said plus or minus five is okay?

MR. CARVIN: I thought Mahan v. Howe used that as even just a presumptive guideline. In congressional redistricting you much--must be much clearer.

I had understood this Court's decisions in Mahan and others to give local and State jurisdictions much broader discretion.

As long as within--it was within--roughly within 10 percent, then everything was okay, and even--I think Mahan went to about 16.4, and they did that to preserve a town boundary and here, so if you have to preserve a precinct boundary I think you'd also be okay under law, now that I understand your question, Justice O'Connor.

JUSTICE BREYER: Why doesn't your--your argument, which is a very good argument as to why there was no purpose that violated Section 5, not show-- in order to see whether you're right or not we ought to introduce all the other evidence. I mean--

MR. CARVIN: Well--

JUSTICE BREYER: --on the other side they say that here are all these people on this board, which at that time had had only a black member for a very short period of time.

That--they didn't want the police jury district because they'd have to run against each other.

MR. CARVIN: Mm-hmm. They--

JUSTICE BREYER: And they didn't want the police district for some reasons that then later on they just ignored, and what happened in between?

What happened in between was that the NAACP got busy and began to talk about a more proportionate system, so why isn't whether there could have been a more proportionate system or had to be a more proportionate system highly relevant?

MR. CARVIN: It is highly relevant. The court looked at the NAACP as an alternative, and then asked itself the question, the proportionate plan, was this alternative objectively reasonable, and was the board's rejection of it motivated by discriminatory purpose, and in doing so, just to eliminate any ambiguity on this, it went through precisely the analysis that this Court articulated in Arlington Heights.

It did not cite Arlington Heights by name, I agree. The court had noted early on its opinion citing cases where minority plaintiffs have the burden makes it confusing when you're dealing with a Section 5 case where, of course, the burden is on the other side, and so it cited this Court's voting rights cases of City of Richmond and McCain against Lybrand, the purpose cases under Section 5.

But if I could briefly go through the Arlington Heights factors, did it look at the specific sequence of events?

There is a heading in the court's opinion that says, we'll now look at the specific sequence of events.

Did it look at the contemporary statements of the affected board members?

It spends about two pages walking through what it ultimately concluded were these ambiguous statements by the board members.

JUSTICE GINSBURG: Mr. Carvin, I take it from what you said that you do accept that Arlington Heights is relevant precedent.

MR. CARVIN: Sure.

JUSTICE GINSBURG: Right, so you think that it was just so understood that the district court didn't need to mention it.

MR. CARVIN: Your Honor, to be--to be candid, I don't think what people look at, what district courts look at in discriminatory purpose cases is a very complicated inquiry.

I mean, I think they looked at the direct and circumstantial evidence of, why did the board do this, and do we believe them, and is it objectively reasonable?

JUSTICE SCALIA: The factors of Arlington Heights are not so arcane.

If you asked somebody on the street, what would you look at, he'd probably come up with the same things.

MR. CARVIN: So I really must insist that the appellants here are really seeking to elevate form over substance.

They're seeking to require district courts to recite the blazingly obvious.

We're now looking at the black majority district, and we're looking at the other plan. The black majority plan, if it's not chosen, has an impact.

The court didn't do that in Miller. I don't know of any purpose case that does--

CHIEF JUSTICE REHNQUIST: If the appellants' argument is that the findings were clearly erroneous because there was so much other evidence pointing in the other direction, that isn't requiring the district court to put its opinion in some sort of Procrustean bed. That's an ordinary clearly erroneous argument.

MR. CARVIN: Oh, sure, and--but I don't think they think they can win the clearly erroneous argument, because no race-blind actor would have behaved in any way different from this board.

Again, the NAACP plan violated State law. The police jury plan did not.

Even assuming there was this loophole that appellants talked about, you could only make the NAACP comply with State law by going to the police jury, taking some affirmative steps.

The argument to the police jury for complying with State law would have been objectively irrational.

It would have been, we'd now like you to create 65 additional precincts in a district with 56 precincts.

No rational person would have taken the NAACP plan if you were blind to the racial composition, so their clearly erroneous case reduces to the proposition that it's not plausible to believe that this board did the only rational thing for rational reasons.

You must conclude, as a matter of law, that this board did the rational thing for a racial purpose.

I concede that that is conceivable, but I don't think it's a grounds for finding the district court's contrary conclusion clearly erroneous, particularly since, again, it was a facial violation.

JUSTICE GINSBURG: Why was it rational to set up the school districts with some districts that had a few schools, several schools, and some districts that had no schools at all?

It just seems a very odd kind of a school districting.

MR. CARVIN: Your Honor, school board members represents parents and children, they don't represent buildings.

It was never a redistricting criteria in Bossier Parish to have a school building in each district.

Mrs. Jackson's testimony below was that under the 1980 plan, the old plan, she did not have a building in her district.

It is stipulated that well before the NAACP plan ever came into existence, they did not provide their cartographer, Mr. Joiner, with school attendance zones, so--

JUSTICE GINSBURG: But I thought that was one of the reasons why they were resisting the jury--

MR. CARVIN: No--

JUSTICE GINSBURG: --police plan originally.

MR. CARVIN: That is what the appellants are attributing to them, and there is a stipulation and school boards typically look at that, but the undisputed evidence is, this school board did not care about that, and we know that to a certainty, because it didn't give their line-drawer any evidence of where the school buildings were, so--

JUSTICE GINSBURG: So are you saying that it was--incumbency was the only thing that kept them from resisting the--

MR. CARVIN: And the incumbency paled in significance to the advantages of the police jury plan for guaranteeing preclearance.

Pairs of incumbents are, of course, only a problem if both incumbents are going to run again.

There was two pairs of incumbents here. But the evidence again, by Mr. Musgrove at trial, by Mr. Harvey at trial, and by Ms. Jackson, again, in a deposition actually--

CHIEF JUSTICE REHNQUIST: I think you've answered the question, Mr. Carvin. Thank you.

MR. CARVIN: Thank you.

CHIEF JUSTICE REHNQUIST: Mr. Patrick, you have 5 minutes remaining.

MR. PATRICK: Thank you, and if the--Chief--Mr. Chief Justice, if the Court please, I'd just like to return to a question I didn't answer very well from Justice O'Connor.

You asked about cases where the--where the Court has, in the Section 5 context, reflected its respect for the Arlington Heights standards, and they--those cases are cited--they're beyond Rogers v. Lodge.

They're cited in the first full paragraph on page 17 of our brief. I'm sorry it wasn't very complete earlier.

Also, there was a statement made about precinct changes and precinct-splitting that was--has been argued by the parish.

In fact, precincts could be split, indeed, were split by the police jury. They split 20 precincts. You'll see that on--stipulated at 88a and 88--89a.

The only argument is, the only--

JUSTICE KENNEDY: Did they--did they do that within the window that the legislature gave them?

MR. PATRICK: I believe they did, yes, and the only argument, Justice Kennedy, is that--is that the school board could not split the precincts without the police jury's permission.

The school board never tried to get the police jury's permission. They expected to do so. They set out to draw a different plan.

JUSTICE SCALIA: No, the argument's a little further than that, as I understood the last argument. That is, even the police jury itself could not do it once the window of opportunity had closed.

MR. PATRICK: Well, but the window of opportunity opens again on--after the 1st of January, 1993, and that's im--that?s important. That was known to the school board at the time--

JUSTICE SCALIA: But they had--but again, the argument made was that they had an obligation to come up with districts before then.

MR. PATRICK: Well, that's right. They--I understand that argument, but what we do know is that--

JUSTICE SCALIA: Is it wrong? Did they have no obligation to come up with--

MR. PATRICK: I'm not convinced it's right, Justice Scalia, but what is clear is that consolidation after the window opened again has happened in Bossier Parish.

It was done by the police jury and could have been done, and indeed the record indicates that the school board could have drawn a plan with two majority-minority districts in it that ended up with fewer precincts in it than the police jury plan.

The other point I wanted to--wanted to make is that the Court needs to understand that this is not a choice. This case is not about a choice between the plan they adopted and the NAACP alternative. That is a--that?s a--that's a ruse.

It's very important to understand that this is about the school board's unwillingness to consider any alternative at all to the plan that they knew at the time was dilutive, and which they admit on the record at the time they knew they could have drawn one with two reasonably compact majority-minority districts.

It is--it is not maximizing for the Department of Justice to question a jurisdiction that draws a plan which hardly serves its own interests, that pits incumbents against each other, that distributes the schools in irrational ways, and is dilutive, rather than adopting a plan that is fair, and that is really what this case is about.

If there are no other questions--

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Patrick.

MR. PATRICK: Thank you.

CHIEF JUSTICE REHNQUIST: The case is submitted.

Attribution:

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Featured:

Lopez v. Monterey County - Oral Argument

Fri, 09 Jan 2009 14:50:15 +0000

Case:

Lopez v. Monterey County

Media File:

97-1396_19981102-argument.mp3

Related Transcript:

1998_97_1396_argument.xml

Transcript:

Argument of Joaquin G. Avila

Chief Justice Rehnquist: We'll hear argument now in Number 97-1396, Vicky Lopez v. Monterey County.

Mr. Avila.

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

The question before you is whether a voting change is required to be precleared prior to its implementation within a section 5-covered jurisdiction.

Section 5, plain language, its purpose, administrative interpretation, and congressional ratification, answer that question in the affirmative.

The State of California's statutory construction argument would undermine the broad purpose of section 5 as articulated by this Court.

Chief Justice Rehnquist: Well, but if it's a fair reading of the statute it has weight in its own right, doesn't it, even if it might be contrary to some earlier decisions of this Court.

Mr. Avila: Yes, it would.

If there's any ambiguity in the plain language of the statute then you would look at, not only at prior precedent, but also you would look at the structure, the overall structure of the act, that is, the interrelationship between sections 4 and 5, and also you would look at the Attorney General's longstanding interpretation of the act, and the legislative history, which confirms Congress' awareness and ratification of that interpretation.

And when you look at the focus of section 5, it is on the covered jurisdiction and whether its voting practices have changed, irrespective of the source of the voting change, but the State's construction would immunize a covered voting change so long as a State enacted a superseding statute, even if that statute was never subjected to preclearance.

This construction would create what has been described as a loophole the size of a mountain.

Two examples of such loopholes are:

Counties could evade section 5 review by securing courtesy legislation at the State level.

Section 5 review of redistricting plans would be circumvented.

On the other hand, a harmonious interpretation of the statute is achieved by construing section 5 consistently with section 4.

Justice Scalia: Well, the courtesy legislation point, I mean, I guess you have to acknowledge that a covered county can do some nasty things which it hasn't tried to do before by getting the State to acknowledge State-wide legislation.

Justice O'Connor: No?

Mr. Avila: That's correct.

The problem, however, is that the State's argument, if adopted by this Court, would result in major loopholes in the section 5 preclearance provision and, in this particular instance, it would immunize the county's voting changes from section 5 review.

Justice Scalia: If you appeal the plain language, what do you do when the State adopts a general provision of legislation?

Does each county within the State that happens to be covered have to clear that piece of legislation?

My understanding is that it's simply the State that preclears it and when that happens the county's okay.

Mr. Avila: If... the focus is on the voting changes that occur within the covered jurisdiction.

If the State enacts a statute that affects voting changes within our covered jurisdiction, either the State or the county can submit either the... the legislation for section 5 preclearance.

Justice Breyer: Why wouldn't...

Justice Scalia: But if you're appealing to the plain language, does the plain language suggest that either the State or the county can do it?

Mr. Avila: The plain language of section 5 would suggest that either a covered State or a political subdivision, but, however, the responsibility, the primary responsibility would be on Monterey County to make sure that it submits any voting change, irrespective of its source, when it effectuates a voting change in that covered county.

Justice Souter: I'm not sure I understand you.

What plain language is it that you're relying on?

Is it the seek to administer?

Mr. Avila: Yes, it is, and the seeks to administer refers, in fact, to the act of administering, not, as the State argues, to an administrative act.

Again, the focus is on the covered jurisdiction and whether its voting practices have changed.

Justice Kennedy: Suppose the State has not... pardon me.

Suppose the county has no discretion.

You shall consolidate the judicial district.

Does the State... does the county seek to administer such a provision?

It's not asking.

Seek means advice.

Justice Breyer: I might seek your advice.

Justice Kennedy: The State isn't really... or the, pardon me.

The county really isn't asking to do anything.

It's being told by the State to do it.

Let's assume no discretion.

Let's assume the State has no different options.

Mr. Avila: That interpretation, seeks to administer means seeking to implement.

As this Court in the first opinion, it stated...

Justice Kennedy: Well, it's not seeking to do anything.

It's just ministerially complying with a command from the State.

Mr. Avila: It is implementing a voting change.

Justice Kennedy: But it's not seeking to in the sense of wanting to, of asking to.

It's simply obeying a command from the State.

Mr. Avila: Well, even if it obeys a command from the State, when it effectuates voting change within that covered jurisdiction it has to be submitted for section 5 preclearance, otherwise you're going to create huge exemptions, especially in States that have... that include covered section 5 counties, like North Carolina.

Chief Justice Rehnquist: You say a huge exemption, but it's perfectly arguable from the language that that's what Congress intended.

Mr. Avila: It is a re... it is one interpretation.

However, the Attorney General, which is charged with the central enforcement of this section 5, could also have another reasonable interpretation, and that reasonable interpretation in the past has been deferred to by this Court, especially in matters... especially in terms of interpreting its regulations as they apply to matters affecting voting, and in Presley that was the case.

In Presley, section 5's broad scope as it relates to election matters was given a very broad scope, and that... and the Attorney General in this case has been interpreted...

Chief Justice Rehnquist: Well, but isn't there an argument on the other side, that here we deal with national and State relations, and that since this does impinge on them, it should probably not get a terribly sweeping interpretation.

Here Congress has stepped into the State... the State local business.

Mr. Avila: Yes, but that balance, that balance between... that delicate balance that was struck by Congress back in 1965 between a State's sovereignty and the Federal interest in eliminating the blight of voting discrimination, that was struck in 1965, and it's been reratified, or ratified three times.

Chief Justice Rehnquist: Precisely, so let's look at the language and not some cry for a very broad interpretation of it.

Mr. Avila: It is not a cry for a very broad interpretation.

In fact, what we're seeking to do in this case is just merely maintain what's been going on since 1965.

And that is, when you have the Attorney General reviewing redistricting plans for 1970, 1980, and 1990 from North Carolina, New York, and California, which are States that contain covered counties, when you look at that, and you look at the Congressional Record that's cited in our briefs, you find that in fact in the 1982 reenactment of the Voting Rights Act you find explicit references in the Senate report that say, while... quote, while North Carolina as a State is not subject to section 5, the legislation in question affected North Carolina counties which are covered, and therefore it should have been precleared.

And when you look at another page reference, at page 14 in that Senate report, it explicitly refers to letters of objection, which they found to be compelling evidence for reenacting section 5, and one of those letters of objection on page 11 of that Senate report is the 1981 redistricting plan for North Carolina.

So we have this history of administrative interpretation and this history of congressional ratification of that interpretation, and so when we... and in addition to that, when you look at the overall structure of the act and the interrelationship between section... sections 5 and section 4, we find even more compelling reasons for maintaining the status quo.

In Katzenbach, this Court stressed the interrelationships between sections 4 and 5, and stated that section 5 was designed to march in lockstep with section 4.

In Katzenbach and Gaston County, this Court approved section 4's statutory framework which suspended State literacy laws in section 5-covered counties, even though the State itself was not a designated jurisdiction.

In other words, all literacy tests that were suspended in the covered counties were products of State law.

Justice Souter: Well, one of your arguments is the... what... the risk of what you refer to as the courtesy legislation, that in fact if State law itself is a means to avoid section 5, the usual State capitol log-rolling will simply mean that the counties will get the legislature to enact what they want.

Is it an answer to that to say that a line should be drawn between legislation which affects only a covered county and general legislation which in fact affects every county in the State, which I understand is the case here?

Is the risk sufficiently reduced in the case of bona fide State-wide legislation so that we should dismiss... in a case like this we should dismiss the concerns about courtesy legislation?

Mr. Avila: Yes, because in fact the State of California has a choice here in enacting State legislation.

When we look at the 1979 State statute we find that California in fact directed its legislative effort towards one county.

The statute specifically mentions Monterey County.

Justice Kennedy: Well, there's two things there.

Justice Souter can certainly protect his own question.

The premise of his question was that there was State legislation which applied to more counties than Monterey, and he said, would that be a difference.

And then you say, well, this 1979 statute applied only to Monterey.

That doesn't really quite answer his question as a principle of law.

Mr. Avila: Yes.

Justice Kennedy: Why don't you answer the question, first as to whether or not his suggestion about the principle is accurate, then you can say whether or not the principle applies here.

Mr. Avila: The principle of law is that when you have a State-wide statute that has... that affects voting changes throughout the State, and four of those counties in California are subject to section 5, those State statutes would have to be submitted for section 5 preclearance.

Justice Scalia: Well, but that's the issue.

Mr. Avila: Yes.

Justice Souter: I mean, that's the issue, and one of your reasons for saying that they must be is that unless the general legislation is so submitted with respect to those counties, legislation at the State level will simply be used as a cover for what in fact is local discriminatory efforts.

Mr. Avila: That's correct.

Justice Souter: My suggestion was that perhaps if you have a genuine, bona fide legislative act intended to cover the whole State that really does cover the whole State, that you don't have that concern, and why isn't... why would you have that concern in the case of State-wide legislation?

Mr. Avila: We would have that concern, if I understand the... your question, because it might still have mischief in other counties.

For example, if...

Justice Souter: You're saying that it might lack intent to discriminate but have the effect.

Mr. Avila: That's correct, and really that's a question for another proceeding, because here we are still in the enforcement stage of section 5, and that issue would be best addressed when you're reviewing the substantive determination of whether a State-wide statute has a discriminatory purpose, or has a discriminatory effect.

Justice O'Connor: Could I ask you to identify what relief you actually want?

This has had a complicated history, the justice and municipal courts in Monterey County.

What precisely are you now asking?

Are you trying to get preclearance of the California State law in 1979 consolidating municipal courts into a single district, or the county ordinance that same year, or both?

It isn't clear to me.

Mr. Avila: We are trying to... both.

The quick answer is both.

We are trying to basically enforce this Court's first opinion, which stated...

Justice O'Connor: Well, yes, fine, but I'm trying to pin it down.

You want preclearance, in effect, of the 1979 county consolidation ordinance.

Mr. Avila: That's correct.

Justice O'Connor: And the 1979 State law to the same effect.

Mr. Avila: That's correct, and that's the premise of our argument, because...

Justice O'Connor: And even if you get some kind of preclearance and review in the meantime, State law has changed again, and has totally eliminated judicial districts.

Mr. Avila: Well...

Justice O'Connor: There's a constitutional amendment now that eliminated Justice of the Peace courts, and there's a State law increasing municipal judges from seven to nine in the county, and that was precleared.

Mr. Avila: Yes, it was.

The 1983 State statute was precleared.

Justice Stevens: Yes.

Mr. Avila: The... what is important, however, is that...

Justice O'Connor: So at the bottom line, what are you trying to get?

Mr. Avila: The bottom line is that the 1983 preclearance merely involved the preclearance that this Court found from... going from three districts, three judicial districts to one county-wide district and in fact, on November 1, 1968, we had nine judicial districts, and the 1983 State statute cannot be read to have precleared those nine districts into three districts, because there's no reference, the Attorney General had no notice...

Justice O'Connor: But under State law today it has to be one judicial district, so...

Mr. Avila: That's correct.

Justice O'Connor: what's available at the end of the line?

I just don't see.

Mr. Avila: Well, the basis for that one judicial district is that if that judicial... if that county-wide district is to be precleared, it was only precleared or approved from the change from three judicial districts to...

Justice O'Connor: Please tell me what it is at bottom you're trying to get.

Are you trying to go back to some separate district system...

Mr. Avila: No.

Justice O'Connor: or separate elections?

What is it you're trying to achieve at the end of the day?

Just tell me.

Mr. Avila: At the end of the day we're trying to have an election system that complies with the substantive provisions of section 5.

Justice O'Connor: Well, what do you say that is?

Is it by separate districts, or a single 1983 judicial district?

Mr. Avila: It could be a combination.

That would be a best... a remedy.

It could be a combination of districts.

It can be a combination of multi-member...

Justice O'Connor: There's nothing that you're trying to get, then?

Well, I... in concrete terms, I'd like to know what you are seeking.

Mr. Avila: Well, what we're seeking is... basically what we're looking at is either a districting plan or a multi-member districting plan.

Justice O'Connor: Well, State law's eliminated multi-member districts now.

Mr. Avila: But if we have a... but if we have a substantive determination that the at-large election system, or that the conversion from nine districts to six judicial districts is in violation of section 5, then the district court is best able to address that particular question as far as a remedy is concerned.

Chief Justice Rehnquist: So Monterey County could be excluded from this general State legislation, under your view?

Mr. Avila: Yes, it could.

In fact... in fact, Monterey County, the State legislature has enacted State legislation that affected just Monterey County, so we're not asking...

Chief Justice Rehnquist: I thought it was... I thought it was they had enacted... revised the justice court system for the entire State.

Mr. Avila: That's correct.

Now, we're not... we're not requesting at this point to get back into the justice courts.

Basically what we're asking for is to secure compliance with section 5.

And what I'd like to do is...

Justice O'Connor: Well, but as a... it seems almost like you're avoiding answering.

Are you seeking, then, municipal courts, or do you want to go back and have some Justice of the Peace courts, too?

Mr. Avila: We want to maintain municipal courts.

Justice Scalia: Municipal courts.

Mr. Avila: That's right.

Justice O'Connor: And how... and in Monterey County, do you want them elected by judicial districts or in one single district, as State law now provides?

Mr. Avila: We want... one of the remedies that we have sought is the election by judicial districts.

Justice O'Connor: Thank you.

Mr. Avila: And I'd like to reserve my remaining time for rebuttal.

Argument of Paul R. Q. Wolfson

Chief Justice Rehnquist: Very well, Mr. Avila.

Mr. Wolfson, we'll hear from you.

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

Under section 5 of the Voting Rights Act a covered jurisdiction like Monterey County must obtain preclearance of any voting change that it enacts or that it seeks to administer.

This change... this case involves voting changes that the county seeks to administer.

In every election for county judges, Monterey County oversees and implements the process by which the voters are registered, by which candidates are placed on the ballot, and by which the winners are chosen in the election.

Chief Justice Rehnquist: Isn't that all pursuant to State law?

Mr. Wolfson: Well, the county... the county does have to follow State law in some respects, but the county operates the process.

I mean, when we refer to seeking to administer the voting change, we read that to mean, it runs the elections by...

Chief Justice Rehnquist: Even the entire compliance with the law of another sovereign, the State, you know, put up polling places, that is seeking to administer something?

Mr. Wolfson: Yes, it is, and in fact I point to two examples.

First, I mean, the court looked at a very similar matter in Perkins v. Matthews, where the State of Mississippi before the Voting Rights Act was enacted had shifted from single member districts to at-large elections, and when eventually the city got around to complying with that State law the court said, the change had to be precleared even though the formal enactment by the higher sovereign did not have to be precleared.

Another example, actually that's quite relevant here, is, of course, the literacy tests that occasioned the passing of section 5 of the Voting Rights Act.

It's quite clear in this case that those tests were mandated by California State law, and they were implemented throughout the State of California at the county level.

Chief Justice Rehnquist: You're talking about literacy tests in California?

Mr. Wolfson: Literacy tests were required by California State law.

They were struck down by the California supreme court in... I believe in 1970, after section 5 was long enacted.

Now, section 5...

Chief Justice Rehnquist: How does that bear on this case?

Mr. Wolfson: My point is that Congress understood that even though there might be a requirement that... a requirement of the State sovereign that the county follow some procedures, that the county might nonetheless not be able to do so under section 5.

And in situations like California and North Carolina, a very important example that was ostensibly discussed when the Voting Rights Act was initially enacted, it was clear to Congress that there could be situations where a State... there might be nothing wrong per se with a State law, but the effects that it had in certain jurisdictions did... might have had an effect on minority voting rights...

Chief Justice Rehnquist: But I don't see how that bears on the issue of seeks to administer.

Mr. Wolfson: Seeks to administer means, it runs the election.

Now, if I may address Justice Kennedy's question about, doesn't seek to administer indicate some kind of discretion, or some kind of wanting to administer itself and not just following State law.

I think that's a... seek to administer is purely temporal, and it should be contrasted with enacts.

The way that the statute is written is, if any jurisdiction enacts or seeks to administer something, a voting change, then it has to obtain preclearance.

Now, Congress didn't say seeks to enact, because the legislature can formally enact it into State law without obtaining the approval of the Attorney General or the district court.

That mean, before it's actually implemented it has to then obtain preclearance.

Justice Kennedy: Well, but if you couple enact with seek, enact indicates discretion.

Mr. Wolfson: I...

Justice Kennedy: And here I noticed you told the Chief Justice, well, the county has to do the polling and so forth.

The county can't do districts.

Districts must be set by the State.

Am I right about that?

Mr. Wolfson: Well, after the State... I mean, after the State... arguably the State has now required... has now required one district...

Justice Kennedy: But even before, the districts were set by the State law, were they not?

Mr. Wolfson: No.

I would say before that.

Certainly at the very beginning, in 1968, my understanding is that the county had discretion about how to draw those districts within the county lines.

So I mean, getting back to the point, I think that seeks to administer simply means to begin to run the process by which elections are operated.

There's no doubt that, on the ground that counties are the responsible authorities for doing...

Chief Justice Rehnquist: Well, supposing the State of California says there's going to be a 65-mile speed limit on our highways, and the county police are going to enforce it.

Now, is that something the county is seeking to administer?

Justice Scalia: They're told by the State they have to enforce the speed limit?

Mr. Wolfson: I think that it would be seeks to administer.

I mean, there are... I mean, leave aside the point that the county obviously has great discretion in how it would enforce that, but even so, I think that because the county actually operates the elections, that... you know, that is the process by which it seeks to administer...

Chief Justice Rehnquist: And how about the speed limit question?

Mr. Wolfson: I would say it seeks to administer, because it is foreseen that the... by hypothesis that the county patrol are the ones who enforce the State law in that section.

I do want to point out that it's a long been settled administrative practice that covered counties have been required to submit for preclearance.

Justice Scalia: Mr. Wolfson...

Justice O'Connor: They submit, or the State submits?

Mr. Wolfson: It has been both.

As a matter of...

Justice O'Connor: It has been...

Mr. Wolfson: Right.

As a matter of... no...

Justice Breyer: both if you're relying upon the text of the statute.

Mr. Wolfson: As a matter of convenience...

Justice Scalia: You say shall seek to administer.

Justice Breyer: It says such...

Mr. Wolfson: Right.

Justice Scalia: You know, such State or subdivision.

Mr. Wolfson: As a matter of convenience, from the point of view of administrative practice, the Attorney General has recognized that when a State law, be it... when a State law that generally affects one or more counties, but say when it affects two or three counties, when a State law passes it is more convenient for the State to submit that for preclearance, it is the burden is ultimately...

Justice Ginsburg: And that happened here, didn't it, with the one that was precleared?

Mr. Wolfson: Yes.

Justice Breyer: It was the State that submitted it, not the county.

Mr. Wolfson: That's correct.

That's correct, it did happen here, and...

Justice Ginsburg: May I get back to you, because your time is so brief.

What do you see as the bottom line, because as I understand it these ordinances cannot be precleared because the county has already admitted that they are...

Mr. Wolfson: Right.

Justice Ginsburg: They dilute, so these... submit these for preclearance, they won't make the grade, so what happens?

Mr. Wolfson: I mean, I need to be very cautious here, because the Department of Justice has not seen the factual evidence underpinning this, so...

Justice Ginsburg: But at least the county at a prior turn admitted in the D.C. district court.

Mr. Wolfson: I think that there are... I think that there are a variety of ways, assuming that the county still believed that it couldn't successfully submit for preclearance, and we are not prejudging that question, I do want to emphasize.

It might be that they would turn to single member districts instead of at-large voting.

There might be other ways in which section 5 concerns could be accommodated, like resident...

Justice Ginsburg: But then last time around we were told there was no way that they could do anything other than this...

Mr. Wolfson: Right.

Justice Ginsburg: without violating State law.

Mr. Wolfson: That's correct, but I think that they're... first of all, in the end, if State law conflicts with section 5 they have to follow section 5, but I'm not sure that that's the only... I'm not sure that dividing the county into single districts is the only option they have.

Justice Scalia: Well, what is it...

Mr. Wolfson: There could be residency requirements for judges.

Justice Ginsburg: But isn't that what the district judge was trying to do for years?

He says, come up with something that satisfies both Federal and State, and they couldn't.

Mr. Wolfson: Well, again I have to say, I think the only question here is whether preclearance is required.

The Department of Justice...

Justice O'Connor: Yes, but you want to look down the road.

This thing has been dragging on for years.

Mr. Wolfson: I under...

Justice O'Connor: Why can't we look at the bottom line and ask what we're talking about?

I guess bottom line from your perspective is violate State law and mandate single member districts.

Mr. Wolfson: If, but only if, it's determined that the State law would be retrogressive.

Justice Scalia: Why... why...

Mr. Wolfson: I don't think that single member districts is the only way.

There are other options.

There may be other options.

We have not looked at it, and I cannot...

Justice O'Connor: Well, the district court couldn't come up with any.

Mr. Avila couldn't come up with any.

Justice Scalia: What do you have in mind?

Mr. Wolfson: Well, there are situations, for example, where a county is... where there's at-large voting but judges are required to reside in different parts of the county, so that that might not violate the elector... the separation of electoral and jurisdictional bases.

I don't know whether that's been explored.

I don't believe it has, but if that were submitted to us we would certainly examine that to determine...

Justice Breyer: So what is the common sense... suppose California's right, suppose.

Look, we don't want, says California, to discriminate against anybody.

We're trying to change our judicial system.

We don't want 98,000 people called justice judges.

We want municipal judges, and there'll be one municipal judge in each county, or four.

That's all we're trying to do.

Look at it up, down, and sideways.

We're not trying to do anything else, no discrimination.

Now, California says there should be, if that's true, a fairly simple, efficacious manner of bringing it about.

Now, in your opinion, what is that efficacious manner, consistent with the law, if what they say is true, we're not trying to discriminate, we're trying to help our judicial system function better.

Mr. Wolfson: I think that there are... I mean, dividing it into districts could be one way.

If... that doesn't...

Justice Breyer: How can you divide it into districts if there's only like one municipal judge...

Mr. Wolfson: There's 10 judges.

There's 10 judges on this municipal court, and so dividing it into districts could be one way of making sure that there's no retrogression and also having... not having a situation where you had before, consolidation where there were 200 people for each judge.

You could still have consolidation that would give you the benefits of a more efficient judicial system, but it might not be fully at-large.

Thank you.

Argument of Daniel G. Stone

Chief Justice Rehnquist: Thank you, Mr. Wolfson.

Mr. Stone, we'll hear from you.

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

The district court's dismissal of this section 5 coverage case was quite correct, and we submit that it should be affirmed by this Court.

The...

Justice Souter: Mr. Stone, I can't help but ask, was the issue of laches explored in the district court this last time around?

Mr. Stone: It was raised in our motion to dismiss as one of the grounds on which the case should be dismissed, but the district court did not reach it, and there were several other issues as well that the court found it unnecessary to reach.

Justice Kennedy: I'm having just a little bit of trouble hearing you.

Mr. Stone: Oh, I'm sorry.

The question related to whether laches had been raised, and I indicated that it was a ground in our motion to dismiss, but that the district court had not reached it.

This case presents a situation that was not contemplated by section 5, and it's a situation for which the preclearance requirement provides no meaningful remedy.

Here, if the appellants are correct, then the practical result would be no election for anybody with respect to municipal court judges in the County of Monterey indefinitely.

The district court, the coverage court, could enjoin elections under the current system to be sure, but, as everyone now agrees, the county has no authority, no remaining authority to conduct elections pursuant to the 1968 status quo system, and the county has no authority, as Justice O'Connor pointed out, to at this point create new justice court districts, to merge districts, or do anything.

Justice Scalia: Well, it can get that authority from the district court, I assume, if the district court should determine that that is the only way to bring the county in compliance with section 5.

Mr. Stone: Well, we suggest...

Justice Scalia: Does the district court prescribe it, even if it's different from what exists elsewhere in the State?

Mr. Stone: We suggest that the district court cannot in a coverage case suspend the constitution of a noncovered jurisdiction, that its remedial power necessarily, even if we're talking about the Washington, D.C. district court upon a finding of...

Justice Scalia: Cannot suspend the constitution of a noncovered jurisdiction within the covered jurisdiction?

Mr. Stone: Correct.

Justice Breyer: Why not?

Why can't... I mean, this is what I don't understand on your side of the case.

Assume you're right, California is just trying to implement some perfectly reasonable reform of the justice system, but they say that if you implement it in Monterey County it will have a retrogressive effect in respect to discrimination.

Now, you think one thing, they think the other.

Why wouldn't everyone long ago have gone to the D.C. circuit, where their job is to work this out?

I mean, that's what I don't understand why... why this has gone on for several years arguing... I don't get it, in other words.

It seems like a typical argument.

California has a law which it thinks is absolutely perfect.

They think, as applied to Monterey County it has a discriminatory effect.

The statute says, when a county administers a law... you know, a covered statute... that may have any change in voting at all, they're supposed to go to the D.C. circuit, so why aren't you in the D.C. circuit?

Mr. Stone: Well, your question suggested a host of answers, but initially we now have from the United States Government as amicus a concession that noncovered jurisdictions have no obligation to preclear anything.

The State of California is permitted, they say, as...

Justice O'Connor: Yes, well, the State has no obligation, they say, to preclear its law even as it affects Monterey County.

Mr. Stone: Correct.

Justice O'Connor: But Monterey County still has an ordinance of its own and wants to administer the State law so it can seek preclearance.

Mr. Stone: Well, under the United States' theory it is required to seek preclearance, not...

Justice Souter: Yes.

Mr. Stone: only of its own ordinances but of a State enactment.

Justice Scalia: Uh-huh.

Mr. Stone: Or in this case a State constitutional amendment...

Justice O'Connor: That's what they say.

Mr. Stone: that it did not initiate it, it has no authority to initiate it, and it can't change...

Justice O'Connor: But if they're right, then they'll have to seek preclearance, and if the Federal law prevails, it can prevail over California State law, presumably.

Mr. Stone: Well, if California itself, the State, as a noncovered jurisdiction has no obligation to preclear its enactments, and it does not by concession at this point, then how can the State...

Justice Breyer: But it's free to do so.

Mr. Stone: I'm sorry, Your Honor.

Justice Stevens: It's free to do so if it wants to, isn't it?

Couldn't it assume the burden of seeking preclearance?

Mr. Stone: Well, I suppose so, but then what does that do to its sovereignty?

Justice O'Connor: And it did, it did for the 1983 law.

The State did seek preclearance.

Mr. Stone: It did, and it has on and off over history.

Certainly we concede that a number of States in the position of California that are not themselves covered but that have covered subdivisions have, for whatever reasons, and I suspect they were often political reasons, attempts to reassure before enacting, perhaps to guarantee themselves that they wouldn't be subject to section 2 or constitutional lawsuits, they have willingly attempted to preclear through the U.S. Department of Justice.

Justice Kennedy: But let's assume that the 1983 clearance... statute was precleared.

Justice Breyer: It's been conceded that it was.

Justice Kennedy: Does that carry you home on the grounds that the 1983 statute permitted the consolidation of the remaining justice courts into the municipal court, and everybody knew that the municipal court was one district then because of the 1979 statute?

Do you make any argument that that carries you all the way home, or is that not before us, or...

Mr. Stone: Well, the district court indicated that the combination of the preclearance of the State's 1983 statute and of the county's final ordinance merging the last remaining justice courts into the municipal court, which was also precleared, that that combination put an end absolutely to anything other than a county-wide municipal court.

Now, I recognize that appellants have raised arguments that because the county was the acting agent in bringing those last two justice courts into the municipal court, that there was still some preclearance requirement.

The district court found there was not.

But that was all rendered moot when in 1994 the people of the State of California eliminated State-wide, as Justice Scalia pointed out, any justice courts.

There are no longer justice courts.

The State of California, a sovereign, uncovered State, is reforming a central component of its State government.

It's changing the nature of the judiciary in the State by eliminating...

Justice Kennedy: But if the justice courts are turning into municipal courts it doesn't follow that the municipal courts can't sit in districts, so I don't know if the 1994 proposition... I think it was 191... works.

Mr. Stone: Well, in this Court's prior Lopez opinion in 1996 it pointed out that in the State constitutional framework justice courts are for jurisdiction of less than 40,000, and municipal courts are for more than 40,000, and the requirement that a municipal court district have more than 40,000 State residents within it remains after proposition 191, so that a small justice court cannot become, in and of itself, a separate municipal court.

Justice Kennedy: Well, what does that add to what you already had from your 1983 statute...

Mr. Stone: Well, it doesn't add anything except...

Justice Breyer: It seems to me you don't need...

Mr. Stone: if one hypothesizes that had the county not willingly merged these last remaining justice courts, then, as the district court found, by operation of law, once justice courts were eliminated, the last two... had they still remained justice courts in Monterey County, they would automatically have been folded into the existing...

Justice Kennedy: But won't they say that still doesn't solve the problem of districting?

Okay, so they're municipal court judges.

They still want them to sit in districts.

Mr. Stone: Well, it's not a thing they can have, we submit, because the current district is defined by State law, and the State is not a covered jurisdiction.

Justice O'Connor: Well, but of course if the Federal law requires it then State law has to give way in Monterey County.

Mr. Stone: Well...

Justice O'Connor: That's the point.

Mr. Stone: That is the question, and...

Justice O'Connor: Well, I mean, what do you think the Supremacy Clause of the Constitution is all about?

Mr. Stone: No, you're absolutely correct, if... if the...

Justice O'Connor: I mean, if that is the law... if that is the law, that Federal law requires the election of judges by district in Monterey County, then it doesn't matter that the State law says something else.

Mr. Stone: Well, except that one has to define the Federal law in a way that it can reach and annul State law.

Justice Breyer: Well...

Chief Justice Rehnquist: But that's a statutory argument.

Mr. Stone: Correct.

The question is the plain meaning of section 2, and we've shown the Court in our briefs...

Justice Stevens: Mr. Stone, could I ask you a question about the conflict with the California law?

As I understand the California law, it requires a county-wide district for judicial purposes, for jurisdictional purposes, but does it speak to the question of how the judges will be elected?

In other words, would it necessarily conflict with State law if the county had a rule that said the district shall... county-wide... judges have county-wide jurisdiction, but one of the judges must be a resident of a certain part of the county, I mean, divide up the county residentially for voting purposes, something like that, that didn't affect their jurisdiction, would that conflict with State law?

Mr. Stone: Your hypothetical would involve subdistricts for election purposes?

Justice Stevens: Either subdistricts for election purposes or at least for residential... for qualification of the judges to live in a certain neighborhood or something like that.

Mr. Stone: Well, I'm not sure what the answer is to a residential requirement if there were county-wide voting for those people.

Justice Stevens: You think there would have to be county-side voting, though?

Mr. Stone: Yes.

That is a matter of the State constitution, Article VI, section 16.

Justice Stevens: But that does not...

Justice Kennedy: That applies to all counties?

Mr. Stone: Yes.

As to all judicial districts, every voter within a judicial district is entitled to vote for every judge of that district.

Justice Kennedy: But there are some counties...

I see.

in California with more than one judicial district.

Mr. Stone: Correct, and for that there are not county-wide elections, but there are always district-wide elections.

As I understood Justice Stevens' hypothetical, we had a county-wide court with some divisions or residency requirements within.

All I'm saying is, whatever the requirements may be, there would still have to be... if the jurisdiction of the municipal court district were county-wide, then every voter within that county would have a right under the State constitution to elect the judges thereof.

Chief Justice Rehnquist: Mr. Stone, this is not in the record, but someone told me recently that in Los Angeles County the superior court judges and the municipal courts have been combined so that there'll simply be one kind of judge there.

Do you know anything about that, and is it State-wide, or would that just be Los Angeles County?

Mr. Stone: It's rather a combination.

In June of this year the State constitution was amended to permit what's called unification of municipal and superior courts.

If the vote taken in a given county shows a majority of both the sitting municipal court judges and the sitting superior court judges in favor of that unification, at that point the municipal court in that county would be abolished, and apparently that's what occurred in Los Angeles County.

Justice Souter: Mr. Stone, is there... in the original pleadings was there both a section 2 and a section 5 case brought here?

Mr. Stone: There was not.

There has never been...

Justice Souter: So this is just a section 5 case.

Mr. Stone: Strictly section 5.

Justice Souter: Well, is part... I guess the reason I ask this is this.

Is part of your argument, or is it implicit in what you're arguing, that the district court would, in fact, have great discretion to fashion a remedy if it found a section 2 violation?

It could, for example, say the only way to eliminate the discriminatory effect that I find is to, in effect, to require as a remedial scheme four districts, each electing one judge, as opposed to one district from which four are elected.

However, is it implicit in your argument that the judge... that the district court does not have that degree of flexibility under section 5, that under section 5 all it can say is, you are supposed to preclear, you haven't, therefore preclear, and that its remedial discretion, its... the possibility of remedial creativity simply cannot go beyond that kind of yes or no order?

Mr. Stone: It could include... I have a couple of answers, but in the section 5 framework, in the coverage case as opposed to an action for declaratory relief in the Washington, D.C. district court...

Justice Scalia: Yes.

Mr. Stone: In the coverage case, all the coverage court can do is determine whether the challenged change is in fact...

Justice Souter: So that, I take it, is the reason that you're saying that there isn't anything... I think you're saying that the court cannot practically do... it cannot practically order the kind of remedy that the petitioners would like.

Mr. Stone: That's correct.

If the petitioners were... if the county were required to go to Washington, D.C. and preclear, or attempt to preclear its ordinances, it would be an utterly futile act at this point because the county has no remaining authority to implement those ordinances.

Justice Breyer: Why isn't it... look, I'm missing something, because it just... I thought that there's a statute, and what the statute that I have in front of me says is, whenever a political subdivision of a State... now, Monterey County is a political subdivision, right?

Mr. Stone: Yes.

Justice Breyer: And it's a covered subdivision, right?

Mr. Stone: Yes, correct.

Justice Breyer: So it says, whenever a political subdivision that is covered shall seek to administer any voting qualification or prerequisite to voting.

Now, I take it, in addition to all those ordinances the new State law, maybe with superior counties, everything else, is a prerequisite to voting.

I... there's no argument about that, is there?

Or maybe there is...

Mr. Stone: Well...

Justice Breyer: But I mean, at least I didn't see one here.

Mr. Stone: It's certainly an alteration.

Justice Breyer: All right... yes, fine.

It says, whenever that happens, what it says the political subdivision is supposed to do is to go to the Attorney General or the D.C. Circuit and get it cleared.

That's what the copy, I think, if I'm reading it correctly... so why isn't that the end of this part of the argument?

That is, you're in the wrong court.

You ought to be in the D.C. Circuit.

It should be precleared.

Now, it may be you have the best reasons in the world.

It may be that they filed 35 years too late.

It may be that there's no way to work out a good remedy, other... but all this is for the D.C. Circuit to decide, not for the California court.

Now, that, I take it, is their basic argument here.

Now, what's the response to that argument?

Mr. Stone: Well, as Justice Souter pointed out, in a section 5 coverage case, one of the issues that is before the district court is whether the voting change, the alleged voting change that is challenged, is in fact subject to preclearance in the first place.

Justice Breyer: Now, but I just read you the statute, I take it, that when you read it on its face it seems to be that it is subject to preclearance.

Justice O'Connor: Well, that's the very issue here, is it not?

Mr. Stone: Precisely.

Justice O'Connor: Yes.

I mean, that's what this case is about, to say yes or no to that, and if we say yes, then the district court, Federal district court in California has to simply say yes, it's covered, period.

Mr. Stone: Correct.

Justice O'Connor: Then it will be up to the county, if it wants to implement election of judges at all, to seek preclearance, or the State may, according to the Attorney General, the Solicitor General, the State may do it if it wants.

Mr. Stone: So the question is very much focused on the plain meaning of the phrase, seek to administer, and several of your questions to the appellant said so.

Justice Breyer: That's what I was trying to get to.

Mr. Stone: If the appellants' interpretation of seek to administer, which is that it encompasses anything and everything, regardless of source, that has any impact within the covered jurisdiction, if that were, that very, very broad interpretation were upheld by this Court, then it would be a direct reversal of Young v. Fordice.

In which case, as you'll recall, in Mississippi there was a challenge to Mississippi's implementation of the Federal National Voting Rights Act which very much changed the registration practices within the State, which is a covered State, and this Court said, to the extent that there is no discretion in the covered jurisdiction to make any changes or to select ways in which to implement this, it doesn't require preclearance.

It comes from a noncovered source.

It...

Justice Souter: It also came from a Federal source, which was of equal dignity legally with section 5, and that's not what we're dealing with here.

Mr. Stone: No, I certainly concede that we're not in every respect in the same shoes as the Federal Government, but it seems to me for the narrow purposes of analyzing what seeks to administer means we are in the same shoes, in the sense that neither the State of California...

Justice O'Connor: Well, I think it's totally different.

If Federal law requires something, that is supreme, and obviously the covered jurisdiction has no choice.

This is a State law requirement...

Mr. Stone: Over which...

Justice O'Connor: so Federal law can mandate something different.

Mr. Stone: But the covered jurisdiction likewise has no choice with respect to California law when that law does not reserve any discretion within the covered jurisdiction.

Justice O'Connor: Well, it has no choice but to obey the order of the Federal court when the Federal court's intervention is sought.

In the meantime, it can't hold any elections.

Mr. Stone: My point is whether the covered jurisdiction is exercising any kind of discretion.

Recall that initially section 5 was designed in conjunction with section 4 to identify... through a statutory formula to identify those jurisdictions, and they were either States or political subdivisions...

Justice O'Connor: The statute doesn't speak of discretion.

It says, administer, so our question is, do we read some kind of discretion in there.

It says...

Mr. Stone: Well, we...

Justice O'Connor: whether it seeks to administer.

Mr. Stone: And we now have a concession from the appellants that the term, seeks to administer, can reasonably be used to speak of discretionary administrative acts by a covered jurisdiction.

This is in their reply brief.

It's the fist time they've said this.

Prior to this...

Justice Souter: Well, but where does that get you?

I mean, of course sometimes when one is seeking to administer something one may exercise discretion in figuring out how to do it.

Other times in seeking to administer something one need not.

In this particular case, it seems to be nondiscretionary, but I mean, the words, seek to administer, covers both.

Mr. Stone: Well, I suggest that it presents the Court with an ambiguity, that there are two alternative means of interpreting seeks to administer now.

As plaintiffs concede, it could be interpreted to focus simply on the administrative acts executive decisions, anything other than the formal promulgations by a covered jurisdiction.

Alternatively, it could be interpreted to be broadly to encompass anything and everything that's different, whether imposed from above or not, and because there's an ambiguity...

Justice Stevens: Well, it could be interpreted to mean anything and everything that's different as a result of a decision made at a non-Federal level.

That's a possible interpretation.

Mr. Stone: I suppose, but I suggest that that's a distinction that can't be found anywhere in the statute.

Certainly Your Honor could suggest it's implied, but the statute talks about covered versus noncovered...

Justice Stevens: Well, it seeks to... it's seeking to administer a State-directed change in election practices.

You say that's not covered because it was State-directed.

Mr. Stone: Yes.

Justice Stevens: But one could say that that's... in order to get away from the elephantine loophole, that that's a reasonable reading, because you do have to admit, it's a fairly large loophole if you say any covered jurisdiction doesn't have to change... it doesn't have to get preclearance whenever the State law authorizes it.

Mr. Stone: Well, we don't admit it's a loophole, because we think it's fairly strange...

Justice Stevens: No, you don't think it's a loophole, but it's a rather large noncovered area of the statute.

Mr. Stone: Well, it is, but there are, I don't know, what, 40-some-odd noncovered States in the Nation.

I mean, if you want to speak of loopholes, obviously the section 5 preclearance requirement has not been imposed by Congress upon everyone.

Justice Scalia: Why have those States that have cleared it in the past in such situations done so?

Mr. Stone: Well, I... that would require speculation on my part, Your Honor.

I suggest that it may have been political reasons, to show good faith to minority voters within the State, to try to avoid perhaps section 2 or constitutional challenges.

Justice Scalia: Are there many instances in which States have not done so?

Mr. Stone: Have not done so?

Justice O'Connor: Uh-huh.

Mr. Stone: I can't speak to that.

The cases deal with those in which the States have done so voluntarily.

Justice Scalia: Do you know of any where they have not done so?

Mr. Stone: Well, one of the cases here is the 1979 statute in California, which dictated a municipal court district and all parties concede that was not precleared.

The State did not seek preclearance of that and I suspect there are a number of other examples.

I'm just not aware of what they might be.

Justice Scalia: You don't... you're not aware that it's a practice in either direction.

Mr. Stone: No, I accept the United States representation that it's commonplace for jurisdictions in this situation to voluntarily seek preclearance, but I don't think that gets us anywhere as far as a holding of this Court.

As you know, all the Shaw cases and the Lawyer case from Florida and the UJO case from New York all came before the Court in the posture of a constitutional challenge, or a section 2 challenge to redistricting plans, and in reciting the history of the case the Court has pointed out that the States, North Carolina, Florida, New York, voluntarily sought preclearance administratively before finally deciding on a districting plan.

But there's no holding that analyzes, as this Court is now asked to do, what the plain meaning of the statute is, whether there's a clear statement by Congress that this section 5 is intended to go beyond the covered jurisdictions, and what the Federalism issues might be if such a...

Justice Breyer: Isn't there administrative discretion in the... was... my impression was that for quite a long time anyway under some of these ordinances Monterey had considerable discretion, say, to set boundaries, which they could have drawn in different ways, and even where there's one district they'd have discretion as to whether to have a residency requirement, for example, as whether not.

So if that word administer means, you have to have some discretion, which I don't know if it does or not, but if it does mean that, isn't there a significant amount here?

Chief Justice Rehnquist: Why not?

Mr. Stone: There was historically, Justice Breyer.

There... Government Code section 71040 gave to the counties the discretion to change boundaries as...

Justice Breyer: And now do they have some in respect to, say, imposing residence requirements?

Mr. Stone: No.

I think residence requirement is a State requirement, and...

Justice Breyer: But I'm... if they wanted to divide it by, in effect districts, by saying you have to have one of the 10 from this... these blocks, and another of the 10 has to live in a different place, could they do that?

Mr. Stone: I don't know the answer to that.

Maybe they could.

The State requirement is that everyone who is a justice of that court reside within the court, so if you wanted to parse it even smaller than that, perhaps there is discretion.

I don't know.

Justice Kennedy: In the counties which do have districts, Los Angeles, for instance... I assume they have districts... do those counties set the district lines, or does the State legislature do that?

Mr. Stone: It could be either way, and I'm not sure precisely in the case of Los Angeles.

The statute...

Justice Kennedy: Are there any counties in the State of California with multiple judicial districts where the counties set the district lines?

Mr. Stone: Yes.

Yes.

There is statutory discretion given to the counties unless the State acts otherwise, and what's happened here is the State has taken over.

Justice Kennedy: So then there would be no, really violation of overall State policy for Monterey to do this by compulsion of a Federal court in the D.C. Circuit...

Mr. Stone: To do...

Justice Kennedy: or in compliance with the plan.

Mr. Stone: To divide into subdivisions?

Justice Kennedy: In other words, some counties in California do set their own electoral district lines, and therefore it doesn't necessarily contravene State policy to do so in Monterey.

Mr. Stone: Well, I submit that it does, not only because in 1972 the State Judicial Council and the Chief Justice indicated that they thought that was the better way for Monterey County to operate, but also because much more recently the State has dictated that there be just one municipal court in Monterey County.

So the State policy with respect to this part of its overall judicial system has spoken, and has dictated... all parties are agreed here that the county no longer has any discretion to have a municipal court anything short of county-wide.

So my point is that, since we have this ambiguity, then under the cases relating to importance of Federalism, the Gregory v. Ashcroft, the New York v. United States, Will v. Michigan, they say that if there's only an ambiguity, if the most that the plaintiffs can show is an ambiguity, then that falls far short of the requisite clear statement...

Justice Stevens: Can I go back to Justice Kennedy's question for just a moment?

The State policy we're talking about of having just one judicial district in the county is a county-specific State policy, not a general State policy, isn't it?

Mr. Stone: Well, it's... with respect to municipal courts...

Justice O'Connor: Yes.

Mr. Stone: the statute that has county-wide municipal court in Monterey County is county-specific.

There's a superior court system, the next layer up and the one which can now be, at the choice of the counties, unified with municipal courts, that's always been county-wide by dictate of the State.

Justice Stevens: It doesn't seem to me so unusual to say that when a State has a county-specific policy relating to a covered county, that there may be special reason for the State law to bow to the Federal law that applies only to that county.

Mr. Stone: The problem the State has with that is that it takes the presumption which attaches with application of section 5... if you're a covered jurisdiction, you're presumed to have had a history of wrongdoing, and you're suspected in the future of making voting changes designed to undermine the voting rights of minority voters.

Justice Scalia: Or having the effect of undermining.

Mr. Stone: Or having the effect.

Justice Scalia: Yes, but... that's right, and the State can do that just as readily as the county can.

Mr. Stone: But the point is...

Justice Scalia: In fact, more readily, because it's not trying to be careful not to undermine it, and that makes it very sensible to clear the State's plans for what it's effect is in the county.

Mr. Stone: But Justice Scalia, the State has not been identified as a wrongdoer.

The preclearance requirement is a remedy for wrongdoing identified by Congress.

Justice Scalia: Right, but once you acknowledge that there need... that there... the only wrongdoing that's relevant is past wrongdoing, that there need not be intentional wrongdoing in enacting the new plan... the new plan may simply have the effect, in good faith and without the intent to discriminate, but it has a bad effect.

Once you acknowledge that, I don't see any reason to think that... any reason in policy why the State's plan having that effect shouldn't be cleared just as well as the county's plan having that effect.

Mr. Stone: Well, the policy issue goes to the allocation of burdens.

If you're a section 5 identified covered county, then it's your burden to go to Washington, D.C. and establish that your... that the voting change that you desire and that you have fashioned... the court uses all kinds of terms like fashioned, adopt, seek to undertake and so on.

It all suggests that it's the covered jurisdiction's initiative that leads to this voting change, and they have the burden to show that it isn't a bad thing.

Why should the State, which has never been viewed a covered jurisdiction under any...

Justice Stevens: No, but you can't say the State has never been a wrongdoer, because it had the literacy test which was wrongful to the extent that it affected counties in which there was this particular result that occurred in Monterey County, and the State was the source of the wrongdoing.

Mr. Stone: I...

Justice Breyer: So the State is the wrongdoer.

Mr. Stone: I would very much dispute that.

This county has less than 1.2 percent of the State of California population.

All four covered counties within the State combined have less than 3 percent...

Justice Stevens: No, but was it not a State statute requiring literacy tests that was the wrong that gave rise to the coverage?

Mr. Stone: It was not.

The test for coverage is two-pronged.

One is the existence of...

Justice Stevens: Right, but half of it was by the State and half was the impact in that county.

Mr. Stone: But the State's literacy test was not a wrong.

There were literacy tests across the country at the time the Voting Rights Act was passed.

The wrong Congress looked at, and again it was just a formulaic, mechanical wrong, but it was the voter turnout, because Congress recognized that literacy tests were prone to abuse.

They had all manner of room for local discretion.

So it's not the test.

If it were the test, then every State that had a test would be a covered jurisdiction thereafter.

Justice Souter: Every county in California would be covered.

Mr. Stone: And every county in California.

Justice Scalia: No, but it was...

I don't accept your argument that... you seem to assume that I'm saying the State has to clear it.

I don't think the State has to clear it.

I think the county has to clear it, and the county is a covered jurisdiction.

Mr. Stone: But isn't that anomalous when the county can do nothing to change it, and the county is asked to come and defend it.

It may not have the desire to defend it.

This particular county may be entirely against the State's new law or new policy.

It may not have the financial resources fairly and adequately to defend it, and it comes in there without any power to change it, so you would have... and one needs look no further than this case to see the kind of...

Justice Breyer: Well, it wasn't anomalous.

If you go back into history, I take it the history of this was there'd be a lot of places in the south where they vote in a town by district, and say they were 40 percent black and 60 percent white, and then soon as you had to let black people vote, what they did was suddenly switch to a system that was a single district, and now it could be in many of those towns they would have said, well, we won't have it ourselves, and lo and behold you discover the State legislature implementing it throughout the entire State.

Of course, the State's a covered jurisdiction.

Justice Souter: Now, historically that was an evil, wasn't it?

Mr. Stone: Well...

Justice Breyer: No, but in States... I think there are some States where the State is not a covered jurisdiction, and I take it... is that...

North Carolina.

North Carolina I thought was, and I thought that the same problem would exist there, and that that was the history of this.

Mr. Stone: But the question is whether there's any justification, any constitutional justification, I would submit, for assuming wrongdoing on the part of a noncovered State without approving...

Justice Breyer: It wasn't to assume wrongdoing.

Mr. Stone: Well...

Justice Breyer: It was to try to cure the problem in the county.

Mr. Stone: But you have shifted the burdens.

If you require a noncovered jurisdiction to come and prove, absent any proof of wrongdoing, you've shifted the burdens in a manner that I suggest is unconstitutional.

In Katzenbach this Court pointed out what a very important element it was for Congress surgically to have identified the wrongdoers before imposing the preclearance requirement.

Chief Justice Rehnquist: Thank you, Mr. Stone.

Mr. Stone: Thank you.

Justice Souter: Mr. Avila, you have 3 minutes remaining.

Rebuttal of Joaquin G. Avila

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

Referring back to a point that was made by Justice Scalia, even a law with a State-wide effect might still have a greater effect on those counties that Congress designated for section 5 purposes.

As long as the covered jurisdiction is implementing a change, section 5 applies, and that common sense understanding of the term was reflected in the Court's earlier opinion in this case when, writing for a unanimous Court, Justice O'Connor stated that a section 5-covered jurisdiction must obtain preclearance beforea voting change.

Those were the words used by this Court to describe the operative effect of section 5, and when we look at the administrative practices of the Attorney General in Sheffield, this Court held that the Attorney General's interpretation of section 5 is, quote, persuasive evidence of original understanding.

So what we're trying to do in this case is merely maintain what's been going on for the past three decennial redistrictings, and when we look at what... in fact, what the State of California and the county administers at the local level, we know that the county administers the election machinery and the personnel that actually administer the State elections, and in our brief we cite to numerous State statutes in which the State mandates that a particular election occur, and that the county is directed to administer that election.

Justice Kennedy: If the 1983 statute was precleared, wasn't that against a background where there was a single district, and why shouldn't that end this case?

Mr. Avila: It does not end the case because when you're talking about reviewing a voting change you're talking about what happened before and what happened after.

The 1983 State statute only referred to the conversion from three judicial districts to a single county-wide district.

It did not start off with the November 1968 nine judicial district plan, and we do not have the conversion before the Department of Justice or the D.C. court between nine districts...

Justice Kennedy: I don't understand.

If the 1983 statute provided for a single judicial district, and this has been precleared, getting back to Justice O'Connor's question, what's left?

Mr. Avila: What's left is the judicial... what's left is the preclearance of nine districts which existed on November 1, 1968, to three districts which existed in 1983.

The 1983 State statute only converted three judicial districts into a single county-wide.

Whenever you examine voting change, it's examining from what, from what is it being changed from, to what is it being changed to, and that's precisely the point that we're making in this argument.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Avila.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Young v. Ford Ice - Oral Argument

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

Case:

Young v. Ford Ice

Media File:

95-2031_19970106-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Brenda Wright

Chief Justice Rehnquist: We'll hear argument now in Number 95-2031, Thomas Young v. Kirk Fordice.

Ms. Wright.

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

This case arises because the State of Mississippi, since early 1995, has been conducting voter registration under procedures that have not been submitted for preclearance to the United States Attorney General or to the D.C. District Court, as required by section 5 of the Voting Rights Act.

Because the section 5 preclearance requirement is so critical in protecting the right to vote in States such as Mississippi, Congress expressly provided in the National Voter Registration Act of 1993, the NVRA, that States must comply with the Voting Rights Act in implementing the NVRA.

Now, the procedures that Mississippi ultimately decided upon in implementing the NVRA established a twotier or dual system under which citizens who register under the provisions of the NVRA must also register separately to be able to vote in State elections, and a plan that implements the NVRA through that type of dual system reflects a change from the voter registration system that Mississippi had in effect prior to 19--

Unknown Speaker: Well, may I ask you a question right here about that?

Suppose from the outset Mississippi had said we're not going to change our State and local registration system from what it's been.

We're going to keep it, but here are the changes we're offering to implement for Federal election purposes the NVRA.

Could the Department of Justice refuse to preclear such a scheme if Mississippi kept in place its State local registration scheme and had a proposal that met the statutory requirements for the NVRA?

Mr. Wright: --Yes, it could Your Honor.

If the procedures that the State adopted were found by the Attorney General or the D.C. District Court to be discriminatory in purpose or effect, that objection could be made, and--

Unknown Speaker: Well, even in the face of the fact that the NVRA requirements expressly state that they govern only Federal elections?

Mr. Wright: --Well, Your Honor, in this case--

Unknown Speaker: There seems to be some indication in the statute itself that it never... Congress never purported to require a change in requirements for State and local elections.

Mr. Wright: --It doesn't require that, that is true.

It leaves that decision up to the States, but--

Unknown Speaker: But you think that the Attorney General can make that a condition of any approval?

Mr. Wright: --Well, it depends in part upon the State's specific history and the practices it had.

Unknown Speaker: In any section 5 State you think the Attorney General can insist on that?

Mr. Wright: Mississippi had a unitary system by statute at the time the NVRA came into effect.

Unknown Speaker: Yes.

Mr. Wright: And we contend that the implementation of a dual system reflects a change from that unitary system.

Unknown Speaker: It still does have the same unitary system in place.

You can still register for both Federal and State elections the same way you could before the NVRA provisions went in.

Mr. Wright: But you have a--

Unknown Speaker: Now you have an additional option.

If you want to use the easier method you can register for Federal elections, but as far as what a citizen of Mississippi can do by way of registering for both State and Federal, it is exactly the same as it was before, isn't it?

Mr. Wright: --Well, our contention is this.

Unknown Speaker: Except for the false start.

Let's leave the false start out of the mix for the moment.

Mr. Wright: Leaving the false start out of it, you now have a system under which there is a class of citizens that once registered is not permitted to vote in State and local elections, and that is not a unitary system under any meaningful sense of the term.

Unknown Speaker: By reason of the special grace provided by the Federal statute, but the same system that existed for multiple registration prior to the NVRA is still in place in Mississippi.

Mr. Wright: There was no system of multiple registration, though, because one registration made you eligible for all purposes.

Unknown Speaker: Eligible... well--

Mr. Wright: And the real purpose of our lawsuit here is to say that whatever choices Mississippi made in implementing the NVRA, whatever plan it decided to adopt ultimately had to be submitted for preclearance so that the Attorney General could review exactly how that procedure was going to be implemented, and there are many, many discretionary choices that a State makes in deciding to set up a system either on a dual basis or, even if it's on a dual basis, there are different ways and different choices that a State makes that will have a major impact on whether the voters--

Unknown Speaker: --Could you give me a few illustrations of that?

One is which State offices will be used for registration.

I take it that's one?

Mr. Wright: --That's right, and also, for example, the registration forms themselves.

In the, the NVRA forms that are currently in effect and are being handed out at the State agencies do not say anything about limited registration.

You have forms, for example, that are being handed out at the public assistance agencies that are entitled, Mississippi Voter Registration Application, and nothing on the form tells you that when you fill that out you're only going to be eligible to vote in State and local elections, so it was vital for the Attorney General--

Unknown Speaker: In Federal?

You mean only vote in Federal elections.

Mr. Wright: --In Federal... that you would only be able to vote in Federal elections, that's correct, and so it was vital, because of the risk of confusion, and the risk of people believing that they may already be registered for all purposes when in fact they are not that the Attorney General reviewed these procedures, each and every one of them.

Unknown Speaker: Well, I can understand that, but to ask the further question whether the Attorney General, assuming the forms make it clear that it's only for registration for Federal elections as the law indeed says is necessary, whether it can go beyond that and say, moreover, State, you have to make this a unitary system now and follow the Federal plan for all, even State and local.

Mr. Wright: But if there were evidence before the D.C. District Court or the Attorney General that a dual system had been reinstated for the very purpose of discriminating against minority citizens, certainly--

Unknown Speaker: Not reinstated, kept, unchanged from the past, but following the new law for Federal elections.

Mr. Wright: --But Your Honor, the cases such as City of Lockhart v. United States recognize that even when a State maintains certain procedures but changes other aspects of its registration system, the procedures that are unchanged themselves may be subject to section 5 review.

Unknown Speaker: It just seems so counterintuitive in the face of language in the statute whereby Congress expresses the intent not to require a change for State and local registration purposes.

That's the troublesome part of this case for me, anyway.

Mr. Wright: But cases such as City of Lockhart recognize... in that case the numbered post requirement had not been changed at all.

Unknown Speaker: That wasn't in connection with the Federal Voter Registration Act.

Mr. Wright: No, it was not, but it was a situation where one provision that called for numbered post remained unchanged, and the Court held that it nevertheless was a change when the city applied that numbered post requirement to an election system where additional seats had been added, because the Court held that you have to examine a change in the context of the entire election system.

Unknown Speaker: Ms. Wright, why--

--That's fair enough when it's voluntary on the part of the State.

Where one change is made voluntarily on the part of the State you can say well, the whole thing gets sucked in, but this is a unique situation in which a certain change is imposed upon the State by the Federal Government.

Now, it's one thing to say that the way in which you implement that mandatory change must be cleared with the Attorney General.

That's one thing.

But it's quite something else to say that because the Federal Government has mandated this change all of your current system which you have not changed at all has to be resubmitted for clearance to the Attorney General.

Mr. Wright: But Your Honor, the Attorney General is entitled to examine the effect that this particular method of implementation will have on voting and registration in State and local elections.

Unknown Speaker: Whatever its effect is is the fault of the Federal Government, so long as the procedures for implementing the Federal scheme themselves are fair.

Mr. Wright: Well--

Unknown Speaker: Now, it may discourage people from voting in State elections who find it easier to register for Federal only, but that's the Congress' fault for applying this new system only to Federal elections.

Mr. Wright: --We argue, Your Honor, that because of the decision in Allen v. State Board of Elections it's clear that even if a change, a particular change is mandated by the Voting Rights Act itself, it is subject to preclearance requirements.

Unknown Speaker: Your argument goes considerably further than Allen, which itself went to me to the extreme of construing this statute.

May I ask, Ms. Wright, I just want to be sure, I didn't think the questions that Justice O'Connor put to you is presented by this case.

We aren't concerned with whether or not the Attorney General would have had a duty to preclear if there had been a submission, are we?

Mr. Wright: No.

That question will arise when and if the procedures--

Unknown Speaker: Yes.

We don't... for all we know the Attorney General would just routinely preclear it.

Mr. Wright: --Well--

Unknown Speaker: Or perhaps she'd act wrongfully if she refused to, but that's not before us, is it?

Mr. Wright: --The question of actual discriminatory intent or effect is not before this Court and it was not before the court below, and that is why we contend that the Court exceeded its jurisdiction.

Unknown Speaker: Is it not true that even if it's perfectly clear that the Attorney General would have had a duty to preclear the existing system, you would nevertheless prevail?

Mr. Wright: Oh, yes, Your Honor.

Yes.

I'm simply--

Unknown Speaker: Then are you actually asking as well to submit all the changes that weren't made?

I thought what you were asking for is that what has to be submitted, the manner in which they carried out the changes required by the voter registration, the motor voter act, and that would be judged against a background in which they didn't change the State officials.

But I don't understand... I agree, I don't understand why they'd have to submit the things they didn't change.

I suppose they'd have to submit the things they did change, and then you would argue that those changes are unlawful because of what they didn't--

Mr. Wright: --That's right.

We contend that the procedures establishing a dual system, all of them, need to be submitted for preclearance.

Unknown Speaker: --But isn't all of that premature?

I thought the simple point is, there's been a change.

Every change has to be precleared, period.

Now, the Attorney General may agree with your point of view or disagree.

We don't know that at this point.

Mr. Wright: That is correct.

Unknown Speaker: All we know is that we have a change prompted by the Federal law.

Everybody concedes that it is a change that needs to be precleared.

Why should we look at anything more than that in this case?

Mr. Wright: Well, we certainly agree that there is no necessity of determining what the ultimate outcome of the--

Unknown Speaker: Or even what constitutes a satisfactory submission.

That's for the Attorney General to decide in the first instance.

Mr. Wright: --Yes.

Unknown Speaker: But it might be important to other members of this Court to know just how far the Attorney General's position goes.

It certainly is important to me.

Mr. Wright: Yes, Your Honor.

Unknown Speaker: And in that respect, may I rephrase Justice O'Connor's question?

Mr. Wright: Yes.

Unknown Speaker: It isn't your position that as a practical matter... as a practical matter, the State must ask for preclearance of its former voting procedures.

Mr. Wright: It need not Gubmit those procedures, but we do believe that if the State is going to change from its current statutory policy of a unitary system it does need to obtain preclearance for that alteration of its important policy, and that would be part of--

Unknown Speaker: So you're saying that as a practical matter the State cannot leave in place its previous precleared procedures without further amendment and alteration of those procedures.

Mr. Wright: --Because it's current... but that's only because its current system contemplates a unitary system of registration, and I do want to emphasize the very narrow character of the inquiry that we have here.

The only inquiry is whether there has been a change and whether, if there has been a change, that change has been submitted to the Attorney General.

Unknown Speaker: Even though the change was brought about by the Federal Government.

Mr. Wright: That's right.

Unknown Speaker: And not by the State.

Mr. Wright: That's right.

Unknown Speaker: None of our cases support that, do they?

Mr. Wright: I believe Allen v. State Board of Elections and McDaniel v.--

Unknown Speaker: Was that change brought about by the Federal Government?

Mr. Wright: --Yes.

It was an implementation of the Voting Rights Act.

Virginia was implementing the Voting Rights Act by providing assistance to illiterate voters, and the Allen case held that the changes providing that there was... that that assistance had to be given was subject to the preclearance requirement of section 5, and the reason for that is that--

Unknown Speaker: But that's not what we're--

--No.

--we're arguing about here.

It's not whether the procedures for implementing the Federal act have to be cleared, but whether there gets sucked along with that the procedures that the State has had in place for many years for registering under the State laws.

Mr. Wright: --Well, we contend that--

Unknown Speaker: And that was not involved in any earlier case.

Mr. Wright: --That comes into play, though, because of Mississippi's clear statutory policy of having a unitary registration system.

Unknown Speaker: Well, you pick on that and you say that that has been changed.

Well, I mean, yes you can say that that's been changed.

You could also say, however, if they had changed it to a unitary, or had continued a unitary, you could also say there has been a change because it used to be that you had to, in order to register for the State, do things beyond what the motor vehicle registration act requires.

Mr. Wright: Well, we do argue--

Unknown Speaker: I mean, that's a loaded question.

You say they... you focus on this unitary as though that's the center of the universe.

I don't know why--

Mr. Wright: --What we argue, Your Honor, is that the State has been highly selective in deciding which provisions of existing Mississippi law it must continue to comply with and which it cannot change.

We believe that the important State policy of a unitary registration system is clearly far greater in importance to the State than the provision of an attesting witness requirement in a mail-in form, which is really the only provision here that Mississippi has identified as a bar to implementing the registration--

Unknown Speaker: --I don't agree--

Mr. Wright: --on a unitary basis.

Unknown Speaker: --If you ask me what would constitute the least change that Mississippi could make in order to comply with the Federal law, I would say it is precisely what Mississippi did here, leave its current registration procedures entirely in place.

If you want to register for State and Federal localities at the same time, you just follow what Mississippi has had in place for years, and add to that what the Federal Government has required to be added: motor vehicle registration for Federal elections.

That seems to me the minimal change possible from the State system.

Mr. Wright: We would argue from the perspective of the voters it certainly is not the least change possible, because if you think about election day the registrars are now required to keep two sets of poll books, one for NVRA registrants only allowed to vote in Federal elections, and one for other registrants.

Presumably if you go into the voting booth you have to get a separate ballot, because if there are both Federal and State elections on the ballot you can't be permitted to vote that ballot, and so these types of changes, these types of--

Unknown Speaker: No problem.

Just register under the State procedures and you don't have to worry about that.

Mr. Wright: --But Your Honor--

Unknown Speaker: Just the way it was before.

Mr. Wright: --But because the NVRA does require that the States administer these procedures, the State, we contend, has an obligation to identify exactly how it wants to go about implementing the NVRA and obtain preclearance for all of those decisions specifically spelled out in a proceeding either before the Attorney General of the United States or the D.C. District Court, and that is what has not happened here.

I'd like to reserve the remainder of my time.

Unknown Speaker: Well, may I ask you a fact question?

I thought it had happened in the sense that the procedures that were outlined in the original submission for the application of the new Federal act are, in fact, the ones that are being followed.

I thought the contention was that the changes in the old State procedures which were outlined in that submission were not followed.

Am I wrong as a matter of fact?

Mr. Wright: Well, the... yes.

We are arguing that the system that was submitted to the Attorney General by the Secretary of State in December of 1994 was a system that contemplated a unitary--

Unknown Speaker: Oh, I realize that.

Mr. Wright: --set of procedures.

Unknown Speaker: That if you take the totality of the submission, that totality in fact has not been followed.

Mr. Wright: That's right.

Unknown Speaker: The provisions of that totality have not been followed.

Mr. Wright: That's right.

Unknown Speaker: But with respect to the provisions for the implementation of the Federal act, have they been followed or not?

Mr. Wright: We believe that Mississippi is following the provisions as they respect Federal elections.

Unknown Speaker: Okay, so the only fact difference, then, is it didn't make changes to conform its old State system to the new procedures which it, which everybody agrees it's following for the limited Federal registration.

Mr. Wright: But there are further differences because of... by necessity, when you implement a dual system you have to make changes in your practices to take into account the fact that you now have two separate sets of registration requirements that may result in confusion for voters.

So we say that as a package the decision to implement these procedures on a Federal-election-only basis really need to be submitted and reviewed on that basis.

Unknown Speaker: When... well, I just wanted to ask about your benchmark view.

If the interim January to February 10th, if that was not the system that Mississippi ever lawfully adopted, then why shouldn't our only benchmark be what was before the Federal act became effective?

Mr. Wright: Well, we contend that it's not necessary to determine the status of those early 1995 procedures in order to dispose of this case, but we do contend that Mississippi was actually implementing a unitary NVRA plan, and that it could not make a change from that system that was in effect in the early part of 1995.

Unknown Speaker: From an unlawful system, they just couldn't treat that as a nullity and say, we had a pre-January 1 system and a lawful post-January 1 system?

Mr. Wright: We contend no, because you simply cannot treat as a nullity the registration of thousands of voters who registered under the assumption that they were eligible for all elections.

That would be--

Unknown Speaker: Why not just give them notice?

Just give them notice that their, what they registered for counts only for the Federal elections?

Mr. Wright: --Preclearance would have to be obtained for a change that makes such a dramatic difference in the registration status of so many voters.

That's part of our contention.

Unknown Speaker: Ms. Wright, as I understood your submission, it is not that the whole State was acting de facto this way, although unlawfully.

It's that only a certain number of counties were.

I don't know how you can possibly leap to the position that the entire State of Mississippi, which is what is at issue here, that the entire State of Mississippi was de facto operating under a unitary system.

Mr. Wright: Well, we contend that even though only some of the circuit clerks put voters actually on the rolls for all purposes, the unitary NVRA plan was actually being implemented on a State-wide basis, because in each of these counties when you went into the agencies the forms that you were being given and the procedures that were being followed were to the knowledge of the voters procedures registering you for all elections, and that was going on in every county regardless of whether the circuit clerks immediately put you on the rolls for all purposes, and that's how we say there was in fact State-wide implementation here.

I'd like to reserve.

Unknown Speaker: Very well, Ms. Wright.

Mr. Stewart.

Argument of Malcolm L. Stewart

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

The point I would like to stress from the outset is that the potential discriminatory effects of Mississippi's current system with which the Department of Justice is most concerned are not in any sense the product of Federal compulsion.

That is, the NVRA does require the States to take certain steps, but it leaves the States with substantial discretion in other respects not only as to the initial decision as to whether NVRA registrants will be entitled to vote in State and local elections, but also with respect to subsidiary decisions regarding the forms that will be used, the procedures by which people will be registered.

And I want to emphasize as well that we think we are not being fanciful or alarmist in suggesting there may be a substantial problem with telling thousands of people in Mississippi that they are registered to vote in Mississippi when in fact they are not eligible to cast ballots for any Mississippi official.

The question of what forms are being used, what process of notification is given to NVRA registrants, is not simply a technicality.

It really goes... potentially at least goes to the heart of whether Mississippi's current system is--

Unknown Speaker: Well, even if we agree that the State's proposals to administratively and by State law implement the requirements of the new Federal act have to be submitted to the Attorney General for preclearance, do you also take the position espoused by Ms. Wright that the Attorney General may require the State to go to a... the same system for its State and local voter requirements?

Mr. Stewart: --If the State had made clear from the outset that it intended to implement the NVRA on a Federal election-only basis, it would then have submitted the procedures--

Unknown Speaker: Well, the procedures it did submit to the Attorney General contained within them a proposal for changing State law to go to a system that would be the same for Federal as well as State, but I thought the Attorney General's own requirements and that of Federal law in this area did not permit the Attorney General to act on something on the basis of laws that had not been passed.

Mr. Stewart: --That's correct.

The Attorney General did not--

Unknown Speaker: So the Attorney General, instead of acting on this, should have just said we can't act on it at this stage.

Mr. Stewart: --Well, the submission--

Unknown Speaker: Shouldn't it?

Mr. Stewart: --No, I don't believe so.

Unknown Speaker: No?

Mr. Stewart: Well--

Unknown Speaker: That's what the Federal law requires.

They don't have to do that?

Mr. Stewart: --The Attorney General certainly could not appropriately have purported to preclear legislation that had not been passed.

Unknown Speaker: But that's what it purported to do.

Mr. Stewart: With respect, Your Honor, I don't believe that's the case.

The--

Unknown Speaker: I was surprised it dealt with it at all.

I would think that the normal thing would be to send it back to the State and say, this law hasn't passed.

We're not in a position to act on it until it does.

Mr. Stewart: --But the submission did include the draft legislation, but it also included procedures for implementing the NVRA beginning on January 1, 1995, and in our view the unmistakable tenor of the whole submission was that those procedures presupposed a regime in which NVRA registrants would be eligible for State and local elections as well.

Unknown Speaker: Well, of course it did, but it also quite clearly and on its very face presupposed a new statute that hadn't been passed.

Mr. Stewart: Again, with respect, the statute was included, but the submissions did not make clear that passage of a statute was essential to treatment of NVRA registrations.

Unknown Speaker: Well, you're not contending that the Attorney General wouldn't have known from the submission that the statute had not, in fact, been passed?

Mr. Stewart: We knew from the submission that the statute had not been passed.

We didn't know from the submission that passage of the statute was a prerequisite to treatment of NVRA registrants as eligible to vote in State and local elections.

Unknown Speaker: How could that not be--

Mr. Stewart: Well--

Unknown Speaker: --when you had State law that said this is how you register for State--

Mr. Stewart: --Well, one of the respects in which this record is fairly hazy is--

Unknown Speaker: --You don't have to be a very good lawyer to figure that out.

You have State law that says, this is how you register for State elections.

Mr. Stewart: --In fact, Mississippi has never identified with any clarity the precise State statute which is supposed to bar the treatment of NVRA registrants as eligible to vote in State and local elections.

There is no State statute which says, voter registration applications--

Unknown Speaker: You don't need one that bars it.

You need one that authorizes it.

People don't get the ability to vote unless there's a law that says they don't have it.

They need a law that says they do have it, and the only law in effect is one that said this is how you get to vote in Mississippi, and then you get this submission from Mississippi which says, we are now going to let people vote in State elections on the basis of this new Federal law, and you see that in the Mississippi statutes... you get this from the Secretary of State, right?

Mr. Stewart: --That's correct.

Unknown Speaker: And you see the Mississippi statute doesn't permit this.

I cannot imagine that you people at the Justice Department did not know... did not know that this thing required legislation which had not yet been passed.

Mr. Stewart: No, what we knew was that the State had begun to adopt the plan outlined in the submission as of January 1, 1995, and again, this is not a situation in which the State could decide at a later date what elections these people were registered for.

It's essential that a person who comes in to register be told what elections he is eligible to vote in, so it wouldn't have been appropriate at all for the State to tell people you're eligible to vote in all elections and then decide at a later date, after the fate of the legislation was determined, whether in fact that would be the case.

To return for a second to Justice O'Connor's question, I think if Mississippi had told us from the outset we plan to do this for Federal elections only, the Attorney General in deciding whether to issue preclearance would have had to decide first whether there was discriminatory purpose.

But leaving that aside, the Attorney General would have had to determine whether the overall system contemplated would leave minority voters in a worse position than they were before the passage of the NVRA, and in making that determination, the Attorney General could properly consider the likely ancillary effects on voting in State and local elections.

Unknown Speaker: Well, that certainly isn't clear from the language of the act that Congress passed, which seemed to leave in place, if States chose, their existing system for State and local elections.

I thought that was pretty clear from the face of the law.

Mr. Stewart: Again, we're not... we acknowledge that the NVRA itself does not require these procedures to be used in State and local elections, and we're not arguing that the Attorney General has some blanket authority to require that as a matter of her own discretion.

What we're saying--

Unknown Speaker: Well, I thought that was what Ms. Wright argued, and I thought you were arguing in support of her.

Mr. Stewart: --I don't understand that to be Ms. Wright's position, and it certainly isn't ours.

I think our position is that in determining whether minorities will be worse off after Mississippi implements the NVRA, the Attorney General could consider not only the likely advantages to minority voters of expedited registration procedures in Federal elections, she could also consider whether the methods by which Mississippi was registering NVRA voters would be likely to confuse them and thereby dissuade them from--

Unknown Speaker: So there is a significant possibility that Mississippi cannot implement the motor voter... MRV statute without also changing precleared, preexisting procedures for elections, for State election registration?

Mr. Stewart: --I would say a theoretical possibility, but I think Mississippi--

Unknown Speaker: I think it's a significant possibility based upon the comment that you've... and the explanation you've just given us.

Mr. Stewart: --Well, at least our primary concern at this point is that the method by which Mississippi is implementing the NVRA creates a particular risk that NVRA registrants will be dissuaded from registering separately for State and local elections, because the forms on their face give the message that the registrant is eligible to vote in all elections.

Unknown Speaker: Well, the way to cure that is simply to deny the preclearance with respect to the simple implementation of the Federal act.

That doesn't require you to go any further than that.

Mr. Stewart: Again, all we want at this--

Unknown Speaker: Isn't that so?

Mr. Stewart: --Yes, I think that is so.

All we want at this point is the opportunity to view the submission and to determine whether there are any likely discriminatory consequences, and with respect to the consequence that I have just outlined, the possibility for confusion based upon the forms and procedures, it certainly would be a sufficient response for Mississippi to reformulate those forms and procedures so that the likelihood of confusion is diminished or eliminated.

Unknown Speaker: What would be the position of the State of Mississippi if you failed to preclear its implementation of the new Federal statute?

Mr. Stewart: Well, part of this--

Unknown Speaker: Could it go, could elections at the State and local level proceed but not at the Federal level?

Mr. Stewart: --Well, I think part of this depends upon the benchmark that would be used.

If, as we've contended, the State initially implemented a unitary system of NVRA registration and then sought to change that system, the appropriate remedy pending submission of a new package of materials would be that NVRA registrants would be eligible to vote in all elections until a change had been submitted and precleared.

This Court has recognized often that the question of whether unlawful elections should be set aside is distinct from the question of whether there has been a violation of section 5, so we certainly don't think that the consequence of requiring a new preclearance submission would necessarily or even probably be that any elections would be set aside.

Unknown Speaker: Is it your position that in a picture like this the State would be required to preclear twice?

Suppose Mississippi took the position, we haven't yet gotten this legislation.

We don't know if we will.

Could they have let January 1 come and go without filing anything on an interim basis and then waited till they found out what happened with the legislation?

Mr. Stewart: They could have as far as section 5 is concerned but not as far as the... well, as far as the NVRA is concerned, they would have been required to implement the statute for Federal elections because of the effective date of the NVRA itself--

Unknown Speaker: Yes.

Mr. Stewart: --and section 5 would have precluded their doing so without preclearance.

Unknown Speaker: Thank you, Mr. Stewart.

Mr. Sanders, we'll hear from you.

Argument of Robert E. Sanders

Mr. Sanders: Thank you, Your Honor.

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

I would like to begin by responding to Justice O'Connor's first question, that being whether base implementation by a State of the requirements of the National Voter Registration Act are subject to section 5 preclearance, and I think the answer to that question clearly is no.

When the Congress mandates that a State implement the matters set forth in the National Voter Registration Act, the State has no discretion about whether to do that.

If the Attorney General is asserting a right of review, that means necessarily that the Attorney General is asserting a right to object to Mississippi's implementation of the congressional mandate.

Unknown Speaker: Does that mean that there were no discretionary matters that the State could decide in implementing the motor vehicle registration act?

Mr. Sanders: No, Your Honor.

There are a couple of areas where the State has a very small amount of discretion.

Unknown Speaker: Well, with respect to those, was there a duty to preclear?

Mr. Sanders: Possibly.

The--

Unknown Speaker: Well, yes or no?

Mr. Sanders: --Well... all right, I'll say yes if the amount of discretion is considered to be significant.

The NVRA--

Unknown Speaker: Well, isn't the standard just whether there's a change?

Mr. Sanders: --Well, to the extent that the State of Mississippi has discretion in implementing the mandates of the NVRA, arguably those discretionary--

Unknown Speaker: Should have been precleared.

Mr. Sanders: --Are subject to preclearance.

Unknown Speaker: And they were not.

Mr. Sanders: Oh, yes they were, Your Honor, I'm sorry.

The--

Unknown Speaker: Well, let me ask you, is it your position that there was no duty to preclear, or that you did get preclearance?

Mr. Sanders: --Well, on parts of it there was no duty.

On those parts that are strictly mandatory... for instance, putting NVRA forms at driver's license stations... there's no discretion about that.

The Congress says, thou shalt do that, and we can't, we can't... we have no discretion there, and the Attorney General may not veto that part or object under the section 5 device.

There are... the Congress also said that you shall put certain of these NVRA forms at certain agencies that provide public assistance.

It left it up to the States to determine which agencies fit that description.

Unknown Speaker: All right.

Mr. Sanders: We made a designation of five or six agencies, and arguably--

Unknown Speaker: Was not that designation something you had to preclear?

Mr. Sanders: --Yes, sir, and it was precleared.

That was part of--

Unknown Speaker: But it wasn't under your view.

If I understood your brief, you said that a certain State official did a rogue act, that the December 20 submission was without any authority, that Ms. Slaughter-Harvey acted on her own without authority, without anybody in Mississippi approving that, so if one takes you... takes that characterization of it, it is as though the December 20 submission never happened.

It was totally unauthorized.

It was not Mississippi's submission, and if that's the case, then mustn't there be a legitimate preclearance application?

Mr. Sanders: --Well, we characterize her actions as both erroneous and partly as a rogue official.

The reference to a rogue official was more to... for illustration.

Her action was erroneous primarily to the extent that she purported to submit material that required legislative change--

Unknown Speaker: But I thought you said nobody knew of her December 20 letter.

Mr. Sanders: --No one did.

Under section 5 of the Voting Rights Act any responsible State official may make a submission.

To the extent that she submitted things that were administratively changed, as Justice Stevens asked about, those were legitimate submissions.

Anything beyond that, anything that she purported to submit that required legislative preclear... or legislative change, simply were not.

They were--

Unknown Speaker: Well, I thought they indicated on their face that these are legislative proposals that will be submitted but they haven't been adopted.

Mr. Sanders: --That's correct, Your Honor.

Unknown Speaker: I mean, that was clear on the face.

But do you take the position that they... the Attorney General can't preclear the contents of the materials that are handed to people to register for Federal elections--

Mr. Sanders: Well--

Unknown Speaker: --so that it is clear to those people that they will be registered only for Federal purposes and not State?

Mr. Sanders: --All right, let me make clear--

Unknown Speaker: I mean, I would think that would be a natural part--

Mr. Sanders: --Let me make clear--

Unknown Speaker: --of the preclearance part.

Mr. Sanders: --Those purported changes that required legislative action, we submit, were not properly precleared.

They could not submitted for preclearance.

Those actions--

Unknown Speaker: I'm talking about the materials submitted to the people who come in to get a driver's license, and the language used to explain to the voters in Mississippi the Mississippi position, that you will be registered for Federal elections only.

Mr. Sanders: --I understand.

Unknown Speaker: And to register for the State you have to do A, B, C, and D.

Mr. Sanders: Yes, such as the--

Unknown Speaker: Now, presumably the Attorney General could take objection to Mississippi's apparent failure to advise voters of the situation.

Mr. Sanders: --All right.

The NVRA form itself, the State has some discretion, arguably, about what to include in that.

The Federal Election Commission has the responsibility of setting forth which elements must be contained in the NVRA form.

The State of Mississippi may incorporate into that form its own voter disqualifications, such as conviction of certain crimes and so forth.

The State of Mississippi did that.

That form was submitted to the Attorney General and the Attorney General precleared that form on February 1.

Unknown Speaker: He precleared it, or purported to preclear it... she... as part of a package which included... which included... in a way, you two sides deserve each other.

[Laughter]

The Attorney General purports to preclear something that was never submitted, and you purport to have gotten precleared something that was never submitted.

It was submitted as a whole package.

Mr. Sanders: Yes, Your Honor.

That's what the plaintiffs refer to as the context argument, that the context of the submission was different than the context of the implementation of that which was submitted.

There is a very important thing to keep in mind.

Section 5 has... prescribes a 60-day period for reviewing submissions.

Section 5 also, by the express language, says that if the Attorney General within that 60-day period decides not to object within that 60-day period, but that the Attorney General receives additional information within that 60-day period, the Attorney General may lodge a conditional objection pending an opportunity to review that additional material.

Now, the 60-day period began here on December 20, 1994 and it ended on February 18, 1995.

The Attorney... or, the Department of Justice on February 16, 1995, 2 days before that 60-day period ended, wrote a letter setting forth that they believed that what we were doing was instituting a dual registration system, but the Attorney General never did anything to diminish the preclearance that she had granted on February 1, 1995.

It cannot be said that on February 16 or February 18, also the day that the 60-day period ended, it cannot be said that the Attorney General at that point did not understand fully the context of what she precleared on February 1.

Unknown Speaker: But it can be said, can't it, that what the Attorney General precleared was what you submitted.

Mr. Sanders: That's right.

Unknown Speaker: And what you submitted does not conform to the law or practice of Mississippi today.

That's true, isn't it?

Mr. Sanders: Yes.

To the extent that the submission included purported changes, or proposed changes of statutory law, you're correct.

Unknown Speaker: All right.

Now--

--And is it further true that you concede... I interpret your remarks this way.

Correct me if I'm wrong.

Is it further true that you do concede that Mississippi's discretionary acts in implementing NVRA must be precleared?

Mr. Sanders: And were precleared, yes.

Unknown Speaker: Just that they--

Mr. Sanders: Oh, yes.

Unknown Speaker: --That they must be precleared, must be subject to preclearance.

Mr. Sanders: To the extent that they represent significant discretion, they must be precleared.

It's like McDaniel v. Sanchez, when the Court said that court imposed election remedies need not be precleared unless there is significant voter jurisdiction input into that plan.

It makes that distinction, and I would say the same thing applies here.

To the extent that there is significant discretion in Mississippi's input, then it does require preclearance.

I'm not certain, however, that the very limited things that we do when we designate which agencies fit the description of public assistance agencies, I'm not sure that that is enough Mississippi input to require those things to be submitted for preclearance, but to the extent that that is enough, they were submitted and they were precleared.

Unknown Speaker: Mr. Sanders, wouldn't the most important thing to preclear, perhaps the only thing once Mississippi decides it's going to do a different Federal-only registration, is to tell people who come into the motor vehicle bureau in big letters, this will register you for Federal elections only, and such a thing was never precleared because the first submission didn't suppose there was going to be that system.

Mr. Sanders: Well, of course, the National Voter Registration Act doesn't require that we set forth any such disclaimer or warning.

It simply requires that we put certain forms at certain locations, and that's what we did.

Unknown Speaker: It also says at each voter registration agency the following services shall be made available: assistance to applicants in completing voter registration forms.

Now, perhaps assistance to applicants would include an explanation of what's going on.

Mr. Sanders: All right.

Yes, Your Honor, I don't quarrel with that.

The fact is, we are informing people when they come in to register of the status that they will obtain by virtue of that registration, and I don't think the fact that we now inform people, I don't think the conveyance of information is a change within section 5 that requires preclearance.

Unknown Speaker: Yes, but the means by which you do that, however you are informing them, has never been submitted to the Attorney General and has never been precleared.

Mr. Sanders: Yes, Your Honor.

Unknown Speaker: Because the premise of your first submission was that you wouldn't be telling them that, isn't that correct?

Mr. Sanders: Well, it just... the first submission did not contemplate that at all.

Unknown Speaker: That's right, so that the Attorney General neither had before her, nor precleared, whatever means you are using to get this information to the voters.

Mr. Sanders: Again--

Unknown Speaker: That's true, isn't it?

Mr. Sanders: --That's true, yes, sir, but I would just contend that the transmission of information, helping someone understand his or her voting status, is not a change in any event, especially within the meaning of section 5.

I don't think that if a circuit clerk or the Secretary of State wanted to inform someone of what their voting status was, the names of the persons on the ballot or anything else, I don't think that that would require--

Unknown Speaker: Oh, but counsel, the adoption of the form that you use for the voter to fill out and so forth, that certainly was a change, wasn't it?

It's a new form.

Mr. Sanders: --Well, it's a new form mandated by the Congress, of course.

Unknown Speaker: Right, but was the language... all the language in the form mandated by Congress?

Mr. Sanders: Virtually all of it.

Unknown Speaker: Virtually.

Mr. Sanders: The FEC requires, or allows us to incorporate into the form those... as I said, those things that would disqualify--

Unknown Speaker: But isn't it fairly clear that if at the time of your submission you had realized what the ultimate outcome would have been, you would have put on that form, this is good only for Federal elections?

Mr. Sanders: --Well, of course, if the Attorney... if the Mississippi Attorney General's Office had known at the time that a submission was about to have been made, a lot of things would have been done differently.

The fact is here that the Department of Justice interjected itself into the Mississippi matters.

It pressured--

Unknown Speaker: Well, they didn't interject themselves.

Congress passed a statute that requires preclearance when you make changes, and you made some changes.

You had a duty to get preclearance, so you triggered the preclearance process.

Mr. Sanders: --Well, I beg to differ, Your Honor.

I believe the Department of Justice triggered this hasty submission.

They called and wrote to a person who is employed with the Secretary of State's office on several occasions, prompting them to go ahead and submit a preclearance, and frankly I think it was their behavior that caused this false start, as Justice Scalia referred to it as.

It's not the fact that Mississippi has tried to deceive the Department of Justice by any stretch.

Unknown Speaker: No, it isn't that, but it seems to me that we're off on sort of a tangent about whether they should or should not preclear a unitary system or not, but it seems to me it's a very simple case.

Even the most modest changes under the motor vehicle... motor voter registration act needed preclearance.

They weren't precleared.

Mr. Sanders: Yes--

Unknown Speaker: Now, whether they should be precleared is... maybe you're dead right on that.

They probably should be.

Mr. Sanders: --Well, but I contend they were precleared.

The February 1 letter says that they are precleared.

The only thing different is the context, and by February 16, well within the 60-day period to lodge a conditional objection, they ratified the original preclearance.

There... I don't think there's any... there can be any meaningful dispute that they understood on February 16--

Unknown Speaker: Mr. Sanders, if there had been no--

--You mean the--

--December 20, then do you agree that there would have had to have been a preclearance of what was agreed upon on February 10 to keep the Mississippi system?

Forget about... there had never been any December 20 submission.

On February 10 the State of Mississippi knows what it's going to do.

Does that have to be precleared?

Mr. Sanders: --No, ma'am, I don't think it does.

I think the fact... the 60-day period just makes the case stronger, but I think it's beyond dispute that the Department of Justice knew that those statutory changes, or that the law surrounding voter... Mississippi registration qualification was embodied in State statutes, and that law could not be changed unless those statutes were changed.

Unknown Speaker: I'm not talking about the State registration, just the Federal registration.

Mr. Sanders: Okay.

Unknown Speaker: It's a change.

It's something new, forced by Federal law, but still it's a change in the voting practice.

Doesn't that have to be precleared?

I thought that any change had to be precleared.

Mr. Sanders: Well, I think any State-initiated change has to be precleared.

Unknown Speaker: But the State is initiating a form that isn't dictated in every particular by Congress.

Mr. Sanders: Well, it is largely dictated, and is almost exclusively dictated by the Federal Election Commission.

That's what the NVRA requires the Federal... the FEC to do.

The State of Mississippi has very little input into the construction of that form.

Unknown Speaker: Then you... what your answer to me now seems to me inconsistent with the position that you repeated twice in your brief when you said that the statute requires preclearance of any change, and that arguably--

Mr. Sanders: Arguably.

Unknown Speaker: --Yes, but now you're changing your arguably to no.

Mr. Sanders: No, I'm just saying... what I'm saying is, arguably it did.

If it did, we got the preclearance.

Now, if we want to really examine the--

Unknown Speaker: You're not conceding, are you, that the publication of a form is a change in practice or procedure?

Mr. Sanders: --No, not one that's initiated by the State and subject to section 5 preclearance.

No, I'm not.

Unknown Speaker: So you're now taking the position the forms did not have to be precleared?

Mr. Sanders: No.

My position hasn't changed.

I just... I didn't want... I... the fact that they were precleared seemed to me to--

Unknown Speaker: Yes, but your argument that they were precleared, if I understood you before Justice Ginsburg asked you some other questions, was that the February 16 letter in effect ratified the prior preclearance.

Mr. Sanders: --That's correct.

Unknown Speaker: That's surely not a fair reading of that letter, which is asking... which is telling you in so many words there's been no preclearance.

Mr. Sanders: All right.

Well, Your Honor, the Attorney General has promulgated a regulation that carries out this part of the language of section 5... it's at 28 C.F.R. section 51.23... that expressly gives the Attorney General the authority to lodge a conditional objection.

There's no way you can read the February 16 letter to lodge a conditional objection--

Unknown Speaker: It says, a review of this matter indicates that the implementation of this dual voter registration system and purge system has not been submitted for review.

Mr. Sanders: --That's correct, and they suggest that we submit a... make another submission, but they never do anything to diminish the fact that they precleared those agency selections, they precleared the form, their--

Unknown Speaker: But as part of a general submission that you say was improper, and which was clearly not--

--They were willing to take the bitter with the sweet.

They would approve those provisions as part of a unitary system but might not be willing to approve them as part of a divided system that you want to retain.

Mr. Sanders: --Well, my position is in the February 16 letter all they had to do was say, well, if this is not part of a unitary system, then we hereby lodge a conditional objection and we will resolve it later on.

That's what their own regulation says they have the authority to do, and they do not do it.

Unknown Speaker: Well, let me ask you a what-if question.

Mr. Sanders: All right.

Unknown Speaker: What if we don't agree with you and think this whole preclearance bubble... mess... doesn't amount to anything.

It's a nullity.

You're out and they're out.

Nothing's precleared.

Now what do you have to do?

Mr. Sanders: Well--

Unknown Speaker: Let's just suppose that's what we think.

Mr. Sanders: --All right.

I certainly would not have to submit any notion that there has been a change of State law.

Clearly there has not been.

I would not have to submit any of the things that amount to base compliance... or I mean, that amount to implementation of the base requirements of the NVRA.

Again, at most I would have to submit those matters... the designation of agencies, the construction of the form, and the--

Unknown Speaker: And probably forms that make clear to people who register at driver's license time that they are not registered thereby for State and local elections.

Mr. Sanders: --Oh, certainly I think if this Court were to remand we might make that change, but frankly I do not think that that would be--

Unknown Speaker: Might.

Mr. Sanders: --Well, I do not--

Unknown Speaker: You said a moment ago you didn't think that was a practice or procedure.

Mr. Sanders: --No, I don't.

I don't think that it amounts to enough, but certainly--

Unknown Speaker: But in your brief you said twice the choice of NVRA forms those agencies would use were administrative changes affecting voting that arguably required section 5 preclearance, and now as I understand your answer to the Chief Justice you're saying you were wrong to say arguably require preclearance because they weren't changes that needed preclearance.

Mr. Sanders: --Well, I don't--

Unknown Speaker: But you said it twice so you must have thought about it.

Mr. Sanders: --Well, frankly, I mean, I didn't put as much--

Unknown Speaker: You think it's an argument, but it's a bad argument is what you're saying.

Mr. Sanders: --That's correct.

Thank you, Your Honor.

Unknown Speaker: But didn't you also... didn't you also in this argument just a moment ago in responding to Justice O'Connor refer to the need to submit something about the forms?

You used the word form.

Mr. Sanders: Right.

The construction of the form the State had--

Unknown Speaker: The construction of the form, by which you mean the format and its content?

Mr. Sanders: --Well, really what--

Unknown Speaker: What do you mean by construction?

Mr. Sanders: --As I indicated earlier the NVRA says that persons may register--

Unknown Speaker: May I interrupt you just for a second?

Before you tell me that, what... I just want to know what you meant by the words you used.

You spoke of the construction of the forms.

What do you mean by construction of the forms?

Mr. Sanders: --If the State of Mississippi had decided to put a lot of additional material on the form, then we would have been constructing in a material sense.

If we had... I can't think of an example, but if we had put a great deal more material on there.

All we actually put on there were those things that would disqualify someone.

The NVRA form has a voter declaration section and all the person needs to do is sign his name below this declaration which says, I have not been convicted of these certain crimes, I am over 18... in other words it incorporates Mississippi's qualifications.

Unknown Speaker: Okay.

Mr. Sanders: Now... so Mississippi put Mississippi's qualifications in there.

I suppose Alabama put Alabama's qualifications in there.

So to that extent it is somewhat different than the base form, from the FEC--

Unknown Speaker: So you agree that insofar as you include those, in effect State law conditions and limitations you must submit the form for preclearance.

Mr. Sanders: --I'm just... no.

I say that arguably if... I don't know whether just filling out that part and putting our State qualifications is enough.

Frankly, I don't think it is.

I'm just saying arguably it could be, but I think clearly if we went further than that, if we put other material in there, the more we put into it--

Unknown Speaker: Or if you omitted material.

For example, if you omitted a statement calling attention to the fact that under Mississippi law this registration would be good for Federal elections only, that omission, as I understand it, would not be something that would require submission for preclearance.

Mr. Sanders: --Well, I'm not sure that not putting something in there amounts to a section 5 change.

Unknown Speaker: Well, you say you're not sure.

I thought your position was going to be that you were sure and it was not a section 5 change and you didn't have to submit it.

Mr. Sanders: Well, all right.

I'll state it in the affirmative.

I don't think that not putting that is a section 5 change, correct.

Unknown Speaker: Okay.

What should we do if we think, well, you haven't submitted the... I see about 20 pages here in this statute.

It has a lot of different procedural requirements, and maybe some are absolutely mandatory, maybe some give you discretion.

If we send it back and say you have to preclear those, would there be a lot of argument about what you have to preclear or not?

I mean, what would you suggest we do?

I imagine what would happen is you'd have to preclear those, and they'd come in and argue that in light of the dual system you have to do something that's virtually impossible.

I don't know what they're going to argue, but they're going to argue that that dual system is highly relevant, and you'll argue it isn't.

All right, and... so what in your opinion, if we... just what Justice O'Connor asked, I think.

What is your opinion if we disagree with you that it has been cleared, and we think it hasn't been cleared yet, what should we do?

Mr. Sanders: Well, I think at most of course you should just simply remand it.

I do not think that this Court should in any way render a decision on... without going back to the district court, but I think still, to the extent that anyone considers that a change has been made, I think that it's still something that section 5, the district court should have an opportunity to look at.

If the Court feels that more proof should be developed and so forth through discovery, I mean, that can be done, but the very most that this Court should do is remand to the district court, if that's what your question is.

I--

Unknown Speaker: Mr. Sanders--

--Yes.

A look at the assistance part seems... I mean, there seems to be some words here about their having to provide appropriate assistance, your having to, to people.

That was the part that seemed the most discretionary when I just glanced at it, but that hasn't been argued fully here.

Mr. Sanders: --No, that's correct, Your Honor.

Unknown Speaker: Mr. Sanders, I'm reluctant, as some others seem to be to say that you have to submit forms for preclearance, because if we adopt that principle we'll have to use it not just in this case but in all cases in the future, and the notion that all forms are submittable whenever you make any change is a rather expansive one.

On the other hand, I'm also concerned that the Justice Department ought to be able to protect Mississippi voters from being misled when they register under what is a Federal-only system into believing that they're registered under State law.

Then they appear at the State voting place and they find that they can't vote.

Mr. Sanders: And Your Honor--

Unknown Speaker: If we can't be sure by requiring the forms to be submitted, how can the Attorney General prevent the State of Mississippi from misleading citizens that way?

Mr. Sanders: --Well, obviously through a section 2 challenge or any Fifteenth Amendment-based challenge, but our position is that the Attorney General should not be able to do that through the device of section 5 preclearance.

Again, we do not think that the Attorney General should be able to review, object, or veto any mandate to the State of Mississippi from the Congress, but they have plenty of other options available to it.

To the extent, as my good friend Mr. Stewart said, that base implementation of the NVRA might amount to a discriminatory purpose, if it does, then the United States may challenge that in a variety of other ways but not through the device of preclearance.

Unknown Speaker: Is there any significance to the fact that the motor vehicle statute has a specific section in it saying that this doesn't limit the application of the Voting Rights Act and doesn't modify it in any way, and doesn't it follow that if you adopt a new form to be used to register voters, that that's a change or practice, blah, blah, blah, within the meaning of section 5?

Mr. Sanders: I read that language in the NVRA simply to mean the same... or I read it the same way I read footnote 29 in Allen, where this Court says that State-initiated changes, even when made to comply with section 5 of the Voting Rights Act, must be submitted for preclearance.

I read that language in the NVRA the same way.

When the State makes changes itself, they must be submitted for preclearance even though they are part of an NVRA--

Unknown Speaker: But the fact that the Federal Government, the Federal statute required them to do some things, made them print a new form with respect to elections, is it not still true that the distribution of a new form to people who are being registered, a form you never used before, is a change in a voting practice?

Mr. Sanders: --Not within the meaning of section 5.

Unknown Speaker: You don't think so.

Mr. Sanders: No.

I don't think that language in the NVRA was designed to give the Attorney General the right of veto over an act of Congress, over a mandate from the Congress.

Unknown Speaker: Well, if the... without reference to the NVRA, the State of Mississippi decided to have a new form advising voters of the effect of their registration, where they could register and so forth, would that have to be precleared?

Mr. Sanders: If it was just a--

Unknown Speaker: It's an instruction mailed to all voters with respect to an explanation of registration procedures.

You do not have to preclear that?

Mr. Sanders: --Absolutely not.

I mean, there's nothing new about circuit clerks or Secretary of States or any elected official--

Unknown Speaker: Suppose it's a new form, new wording, et cetera.

Mr. Sanders: --It doesn't matter, Your Honor.

If it's just designed to convey information to the electorate, no, that's not a change in any sense.

Unknown Speaker: This is not a voting practice or procedure.

Mr. Sanders: No, of course not.

It has nothing to do with a person's ability to vote.

It simply is... if we're trying to inform them of their status, that does not represent a change for section 5 purposes or for any other purposes so far as I can see.

That is simply... I mean, all elected officials have always done what they can to help people... to help their constituents.

That's just currying favor with voters, and that does not represent a section 5 change.

If there are no more questions, thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Sanders.

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Reno v. Bossier Parish School Board - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

Reno v. Bossier Parish School Board

Media File:

95-1455_19961209-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Deval L. Patrick

Chief Justice Rehnquist: We'll hear argument now in Number 94-1455, Janet Reno v. Bossier Parish School Board, and George Price v. Bossier Parish School Board.

How do you pronounce the name of this parish, do you know, Mr. Patrick?

Mr. Patrick: It... we... it is usually referred to and has been in the litigation as Bossier Parish, but in Louisiana it's Bossier.

Chief Justice Rehnquist: Bossier, okay.

Mr. Patrick: And if you say Bossier... if you say Bossier in the course of this I'll probably be confused, so if you say Bossier it would be helpful.

Chief Justice Rehnquist: You would think in French it would be Bossier rather than Bossier.

Mr. Patrick: Bossier, oui.

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

[Laughter]

--you may proceed, whatever the name of the parish.

[Laughter]

Unknown Speaker: Allez-y.

Mr. Patrick: Oui.

Allons.

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

Unknown Speaker: Mr. Patrick, when you say the district court ignored the evidence, you don't mean that it excluded it as a matter of admission of evidence, but just that it refused to take it into consideration in making its conclusion?

Mr. Patrick: Frankly, Mr. Chief Justice, it's very hard to say.

There was not an evidentiary ruling in the classic sense, in... because all of the evidence came into the record by way of stipulation without objection by the parties, but what is plain is that the court did not even mention the Arlington Heights case or the Arlington Heights standards, and in one point in the decision went so far as to say that it would not expressly consider the evidence of the history of discrimination in the school board, and when you... excuse me, Mr.--

Unknown Speaker: If it came in by stipulation, or it's not an evidentiary point, really, it's an argument that the court's refusal to take it into consideration makes its findings clearly erroneous or wrong as a matter of law, I--

Mr. Patrick: --Well, as a matter of law in the first instance, Your Honor, because under Arlington Heights, which requires that in making a determination of purposeful discrimination that the court take into account the totality of the circumstances, and where Rogers v. Lodge has said that this specific kind of evidence is important to a determination of purposeful discrimination, we argue in the first instance that there was a violation of... that there is a legal error and, indeed, when you take--

Unknown Speaker: --How do we know that they didn't take that into account?

Mr. Patrick: --Because they did not, in the first instance, even cite the Arlington Heights precedent.

They did not indicate what standard was being used in the... if you look at the analysis--

Unknown Speaker: I'm talking about particular evidence.

What particular evidence do you maintain they did not take account of--

Mr. Patrick: --It's--

Unknown Speaker: --and how do you know that they didn't take account of it?

Mr. Patrick: --There are two kinds of evidence that bends to the question, Your Honor, about how we know they didn't take account of it.

First of all, the evidence of racial bloc voting.

This is a community where the parties have stipulated that 80 percent of the voters in the parish will not vote for a candidate of a race different than them.

That is stipulated at 122a of the record.

Unknown Speaker: But didn't the... I mean, the response that's made by the appellee here is that the court... that all that that would prove is that therefore, since there was bloc voting, it would advantage the black voters if there were majority black districting, but didn't the court assume that to be true?

Mr. Patrick: No, Your Honor.

I don't think--

Unknown Speaker: It didn't assume that... I thought it--

Mr. Patrick: --I... excuse me.

Did you... I'm sorry.

Unknown Speaker: --Yes.

I thought that the court's discussion just takes as a given that it would be to the benefit of the blacks if they had a majority-minority district.

Mr. Patrick: I'm not sure that we can fairly assume that from the district court's opinion.

What the district court said is that evidence of this kind is relevant to section 2, there's no question about that.

But we contend, and Arlington Heights supports us, that it is independently relevant to the question of purposeful discrimination.

There is no evidence, in fact, on this record which is relevant to the one question, the section 2 question, but not relevant to the purpose determination in the case and, indeed, the court expressly refused in its opinion at 34a, footnote 18, the evidence that the board itself was in violation of the Federal desegregation order with respect to the schools, so that when you take into account the evidence that was excluded and the... both the racial bloc voting and the history of discrimination, all of which is stipulated and uncontested below, and you think... and you consider that in light of the other evidence that was considered, that the plan--

Unknown Speaker: Well, the evidence wasn't so much excluded as not considered--

Mr. Patrick: --I think that's--

Unknown Speaker: --in the technical sense here.

Mr. Patrick: --I think that's fair to say.

When I think of excluded as a trial lawyer I think of a--

Unknown Speaker: Evidentiary rule, yes.

Mr. Patrick: --Of a rule of evidence... that's right, and because all of the stipulations came into the record without objection on relevance or any other grounds, I think Your Honor is right.

Unknown Speaker: Has this Court applied Arlington Heights in a section 5 determination, do you know?

Mr. Patrick: What this Court has done--

Unknown Speaker: I thought we had not, but what do you rely on for that?

Mr. Patrick: --I rely on Rogers v. Lodge, which is a... which, as you know, is a case where the court has said that the Arlington Heights factors are probative of the judgment about whether there's purposeful discrimination under the Voting Rights Act.

This is a plan, you understand, that is against the school board's own interests, both its districting and its governance interests.

This is a school board that is typically concerned about distributing the schools among the school districts, and yet adopted a plan that has some school districts with no schools in it at all.

That is stipulated at 112a and 73a of the record.

It--

Unknown Speaker: Mr. Patrick, would you clarify for me what you think the legal standard is before we go much further into the argument?

That is, we know that the effect, what they call the effect problem of section 5 is about retrogression.

Mr. Patrick: --Yes.

Unknown Speaker: What does the purpose... what does it mean?

What does the statute mean when it says, shall not have the purpose of denying the right to vote on account of race?

Mr. Patrick: We take that to mean that the factors... that the school board has to show a nondiscriminatory purpose within the meaning of Arlington Heights by taking into account the totality of the circumstances, looking at the actions and inactions in this case of the school board, in reaching the conclusion they did, all the facts and circumstances known to the board at the time.

Unknown Speaker: And that it has the burden of proof on that point.

Mr. Patrick: That's right.

I was saying that the... about the plan that they did adopt that this is a plan which it is conceded does not respect school attendance zones.

That's also stipulated in this record, at 112a.

It pits incumbents against each other.

The way the district court put it was that it wreaks havoc on incumbent... incumbency.

That's 28a in the court's opinion.

About half of the parish was placed in one district.

That's also at 120a, and in other places it fractures neighborhoods, 110a to 111a.

These are all stipulated facts.

Unknown Speaker: Mr. Patrick, would it have been open or was it open at the district court to accept all of this and say, look, all of this evidence does point in the direction of intent to discriminate, but there's a piece of counterevidence here and that is, the moment at which the board seemed to turn around and suddenly embrace the police district plan, which it did not originally want, was the moment at which it became apparent that there was going to be a fight about this.

It was the moment following the NAACP's submission, I think, of a couple of plans.

And it is findable on this record that what the board wanted to do was to avoid 7 years of litigation, and basically the board said, look, we'll take peace, even though we don't like the way we're getting it.

We'll take peace with all of these defects.

If that was the court's reasoning process, would that have been clearly erroneous, or, indeed, was that clearly erroneous?

Mr. Patrick: It was clearly erroneous.

It's not entirely clear that that was the court's--

Unknown Speaker: I realize that.

Mr. Patrick: --the court's reasoning.

What the court said was that it might be a legitimate reason to seek easy preclearance.

What Your Honor's question implies is that the reason was that they wanted to avoid a controversy with the black citizens, but--

Unknown Speaker: Well, they wanted to avoid litigation, and they could see it coming.

Mr. Patrick: --If that's what it was.

I do think Your Honor is right that the process and the sequence of events leading up to the decision is extremely telling and, indeed, Arlington Heights requires that that be considered as well.

This was a process that was undertaken more than 3 years before they needed the plan.

Unknown Speaker: So if we didn't have the process and the sequence, if we just had a lazy school board that said, oh, the police jury got this plan, and it was precleared, so we'll take it with all its faults, if it hadn't been that, would this... would it have been okay?

Mr. Patrick: I think it would be a very different case.

Clearly, the... that's not the case we have here, because we have a board that expected to draw a plan different from the police jury plan at the outset.

That is stipulated, too, as well in the record and, indeed, we have a board that had a different plan from the police jury for a decade or more before they were faced with the redistricting considerations.

This is a board that hired a cartographer with the expectation he would spend 200... 250 hours drawing a plan different from the police jury and went about that at a leisurely pace for over a year.

Everything changed when the black citizens came forward and asked that they be fairly represented in the districting--

Unknown Speaker: Are you--

Mr. Patrick: --process.

Unknown Speaker: --Are you certain that the district court here meant to exclude evidence that he called relevant to the section 2, meant to... was he saying, I'm not even going to consider that when I think about whether section 5 is violated, or is he saying, you can't build a section 5 case out of only that?

Mr. Patrick: Well, we're certainly not contending that you can build a section 5 out of only... section 5 case out of only that, but frankly there is no way to understand the district court's opinion by saying that it won't consider for section 5 purposes evidence that's relevant to section 2 on a record where all of the evidence is relevant both to section 2 and section 5, as other than... meaning the purpose prong of section 5 as other than--

Unknown Speaker: What is the evidence... and this was what Justice Scalia asked at the very first, and--

Mr. Patrick: --Yes.

Unknown Speaker: --I wasn't sure that you completed your answer, and it's relevant to what you're discussing now with Justice Breyer.

What is the evidence, other than bloc voting, that should have been considered and that was not?

Mr. Patrick: That no black person had ever been elected to the school board.

That's stipulated at 115a.

That there had never been more than one black member of the police jury.

That's in the joint appendix at 55 to 60.

That blacks had rarely been elected anywhere in the parish at the time.

That's stipulated at 127a----

Unknown Speaker: Those are all subsidiary elements of the bloc voting.

Mr. Patrick: --That's right, and then in terms of the history of discrimination, at the time of the decision this board was in violation of its duty to redress school segregation under Brown.

That was noted by the district court, to be sure, in footnote 2 of--

Unknown Speaker: All right.

So again, most of these things are in the record.

It's just not clear that the--

Mr. Patrick: --Well, they're all--

Unknown Speaker: --district court weighed them in a section 2 context.

Mr. Patrick: --They're--

Unknown Speaker: Is that a fair statement?

Mr. Patrick: --You're right that they're all in the record, Justice Kennedy, there's no question about that.

What is apparent, however, is that the district court was not taking them into account as is required by Arlington Heights in making its judgment about purposeful discrimination.

And with respect to the history of discrimination, remember, this is a school board that stipulated on the record that segregation has increased since the court... since they've been under Federal court order and, indeed, that they were assigning teachers to schools on racial grounds.

This is a... the district court said expressly in footnote 18 of its opinion that it would not consider evidence that the board itself was in violation of its duties under the Federal court order to desegregate the schools.

That's the evidence that was not considered.

That is the evidence that should have been considered under the Arlington Heights standard, and if you add to that, and I'm going to come back to the sequence issues in just a moment, but if you add to that that this is a school board that came before the United States district court, to say nothing of the Attorney General, and urged false reasons... false reasons for why it was... why it made the decision it did, I... we submit that a jurisdiction with a clean, nondiscriminatory motive does not come to the United States District Court and urge false reasons, and--

Unknown Speaker: Mr. Patrick, here's what footnote 18 says.

It seems to me entirely reasonable.

Defendant mentions the continuing duty of the--

--Where are you reading?

It's on page 34a of the appendix to the jurisdictional statement.

Defendant mentions the continuing duty of the school board to

"remedy any remaining vestiges of the dual school system under the order in Lemon v. Bossier Parish School Board, citing in particular the school board's failure to maintain a biracial committee. "

"We fail to see how this can be in any way related to the school board's purpose in adopting the police jury plan. "

I don't... that seems to me quite reasonable.

Mr. Patrick: --Well, Your Honor, it--

Unknown Speaker: The court considered it, but in its judgment did not find it to be related.

Now--

Mr. Patrick: --Well--

Unknown Speaker: --must the court find that it proves what you want it to prove in order to comply with the law?

It seems to me the court need only consider it, and then it's a matter of judgment whether it shows the animus or not.

Mr. Patrick: --What weight it's given is a matter of judgment, guided by the precedents of this Court, but whether it relates has been resolved by this Court.

That's what Arlington Heights is about.

Arlington Heights says--

Unknown Speaker: I take it, can be in any way related, means whether it has anything to do with as a factual matter.

Mr. Patrick: --That's right, and Arlington Heights says that it does have something to do with the determination about whether there was or was not purposeful discrimination.

Legislative or administrative history at 268 of the Arlington Heights opinion was specifically noted and, indeed, the Rogers v. Lodge case states that the evidence, evidence of this very kind, bears heavily on the issue of purposeful discrimination, is, indeed, important evidence of purposeful exclusion.

I'd like to reserve the balance of my time for rebuttal, if I may.

Unknown Speaker: Very well, Mr. Patrick.

Mr. Patrick: Thank you.

Unknown Speaker: Mr. Borkowski, we'll hear from you.

Argument of John W. Borkowski

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

I'd like to start with the question Justice Scalia just asked about footnote 18, because that shows very clearly, I think, what has been going on in Bossier Parish.

The evidence that the court didn't look at that dealt with the board's exclusion, admitted exclusion of blacks from educational policy issues.

The court had ordered that a committee be established to allow blacks to have an opportunity for input into school board issues.

This is the kind of nonresponsiveness, the kind of exclusion that is exactly what happened in the redistricting process.

Unknown Speaker: Well, if we're... if you're going to get into the sort of detail that you say Arlington Heights requires us to get into, I would think that it would be important to know whether the school board's failure to maintain a biracial committee was the result of hostility to the idea, neglect, maybe unable to have the funds, maybe just got lost in the shuffle.

In other words, just saying it failed to maintain a biracial committee, if we're going to get into the sort of textual detail that Arlington Heights says, you have to know more about it than that.

Mr. Borkowski: That's absolutely right, and the facts on this record are that the board admitted in the direct testimonies of Mr. Musgrove and Mr. Myrick, the two board members who testified, that when this committee started getting into educational policy issues, they disbanded, because they did not want this committee having a role in it.

Unknown Speaker: Well, was the committee set up to deal with educational policy issues?

Mr. Borkowski: Yes, it was.

The consent decree established it for that purpose, and the representations to the contrary, as we point out in our reply brief, in the appellee's brief, are simply false, and the record bears that out.

The--

Unknown Speaker: And your position is that all these matters and many others like them must become a part of a section 5 case and must be resolved under section 2 standards before there can be... the preclearance decision can be made?

Mr. Borkowski: --These facts only become relevant in a purpose determination.

Had the board come forward and not... and been able to show legitimate reasons, and there were not these... not this pattern there, this evidence wouldn't come in.

This is an unusual case.

In this purpose determination these factors have to be considered.

Justice O'Connor--

Unknown Speaker: Well, but I thought there were two points.

One is that it may be relevant to purpose.

The other is that there must be a specific ruling on whether there is or is not a section 2 violation.

Don't you have... don't you make both arguments here?

Mr. Borkowski: --I'm focusing here on the purpose argument only, and Justice O'Connor asked whether the Arlington Heights standard was the standard for section 5, and in Pleasant Grove even the dissenters, who did not find discriminatory purpose, cited Arlington Heights as the proper standard to apply, and decisions that this Court has affirmed... Busbee v. Smith and Port Arthur... also apply to Arlington Heights, and it's the constitutional standard, and... so I'm just talking at this point about the purpose argument.

All of these factors under Arlington Heights are relevant to showing discriminatory purpose, and the court erred in excluding it.

As Justice Scalia asked, how do we know that the court did this?

Well, the court said we will not permit section 2 evidence to prove discriminatory dis--

Unknown Speaker: Where are you reading from, Mr. Borkowski?

Mr. Borkowski: --Twenty-four a, in the appendix to the jurisdictional statement.

On 23a the court said we must... it's argued that we must consider--

Unknown Speaker: Whereabouts on 23a, so we can follow you when you read.

Mr. Borkowski: --On 23a and 24a, the court at three different times says that it's not going to consider this evidence.

Unknown Speaker: Well, point out at least one of them, will you?

Mr. Borkowski: Twenty-three a, at the beginning of the first paragraph, we... it's argued that we must still consider evidence of a section 2 violation as evidence of a discriminatory purpose under section 5.

We again disagree.

At the bottom of that paragraph, and Miller forecloses the permitting of section 2 evidence in a section 5 case, and then, at the end of that section, in 24a, we will not permit section 2 evidence to prove discriminatory purpose under section 5.

Judge Kessler, in dissent, in footnote 4--

Unknown Speaker: Well, excuse me.

I took that... evidence of a violation, I took that to mean evidence that a violation existed, rather than evidence which could be used to show a violation for the one could be used to show a violation for the other.

I took that to mean, we reject the notion that you can come in and say, the district is in violation of section 2, and you quarrel with that statement, too.

You would allow a section 2 violation to be brought in.

Mr. Borkowski: --Yes.

Unknown Speaker: What we're discussing here is whether evidence that would go to show a violation may be brought in, and I don't see this as contradicting that.

Mr. Borkowski: Well, there are three different statements, and one of the statements that... the statement you referred to could be interpreted that way, but Judge Kessler in dissent says to the... says in footnote 4 on page 42a that the majority is not considering this evidence, and the majority never says it is.

If you look at the evidence the majority analyzes, it only analyzes two types of evidence, and doesn't look at all sorts of evidence.

You asked what was excluded.

The fact that the board's plan fractures black neighborhoods, the same neighborhoods that the school board members consciously kept together in drawing 75-percent black school attendance boundaries were fractured by the plan.

That's a... those are stipulated, unrebutted facts on this record that appear nowhere in the majority's discussion of discriminatory intent, because they would also be relevant to section 2.

There are communities of interest that our clients have and other black voters in Bossier Parish have that are established by the testimony.

That is nowhere discussed in the majority's opinion.

The... what this Court has called the inexorable zero, the fact that no blacks have ever been elected to the school board, is nowhere discussed in the analysis of the board's purpose, and we think these... this kind of evidence cannot logically be excluded just because it's also relevant to a section 2--

Unknown Speaker: Well, when you say excluded, you mean the court may not fail to consider it.

Mr. Borkowski: --Yes.

I'm sorry, I misspoke there.

All of this evidence is stipulated facts, is testimony admitted into the record before this Court.

It's just not considered in the majority opinion.

Unknown Speaker: Did... isn't mentioned in the majority opinion.

Suppose the court considered it but didn't mention it in its opinion.

Is it... is the judgment invalid because it was not mentioned in the opinion?

Mr. Borkowski: No.

Unknown Speaker: I mean, there are two different points.

Number 1 is that the court didn't even consider it, and if I agree with your interpretation of the language we were just discussing, then you would have established that the court didn't even consider it, but arguably the court could have considered it but not have thought it germane enough or significant enough to be mentioned in its opinion.

Would that also be a violation?

Mr. Borkowski: I don't believe it would be a violation per se simply not to mention evidence that is considered.

The point here is that if the court actually did consider this evidence, which in every category of evidence in Arlington Heights shows discriminatory purpose, it could not have reached the conclusion that it reached.

As Judge Kessler said in dissent, this is... the evidence is far from being equally convincing on either side.

If you look at all of the stipulated and unrebutted evidence, this is not a close case.

The problem here with the majority's approach, and the problem in... if this Court would affirm the majority's decision, is that it would effectively eviscerate the purpose prong of section 5.

It would mean that the only kind of discriminatory purpose that would be reachable under section 5 would be publicly admitted or covertly tape recorded discriminatory purpose, because every other category of evidence that this Court has said in Arlington Heights requires a sensitive inquiry is here.

Unknown Speaker: So what would you say is the instruction, on your view of this case, that the district court should be given were we to remand?

We'd say, district court, you did wrong, and this is what you should do.

Mr. Borkowski: I believe that on this record the Court should not... should simply remand with instructions that preclearance be denied, because the record here overwhelmingly establishes discriminatory purpose.

There's no way, unless--

Unknown Speaker: But if we don't agree with you on that and we think that the first shot, anyway, should be... or the second... done by the district court, what then?

Mr. Borkowski: --Then I would say that you would have to remand with instructions to apply Arlington Heights and to look at all of the evidence that this Court in the voting context, in section 5 cases, in school cases, in all cases where intent is an issue, to look at that evidence in all of those categories, keeping in mind that the burden of proof is on the school board here.

There was also evidence that the court considered that the court offered its own explanations for, which we cite in our briefs as another legal error.

The only evidence, contemporaneous, direct evidence of the board's intent are admissions that tend to show discriminatory purpose.

There are no contemporaneous minutes offering nonracial reasons for why the board did what it did.

There's no legislative history indicating nonracial reasons.

There are statements that some board members are hostile to black--

Unknown Speaker: Thank you, Mr. Borkowski.

Mr. Carvin, we'll hear from you.

Argument of Michael A. Carvin

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

Let me begin by focusing on the standard that the district court actually did apply in assessing the evidence.

Appellants would have this Court believe that the district court had in front of it a body of evidence that it considered probative to the question of purpose, and it sifted through that evidence and threw out all the evidence that it also thought was relevant to section 2, but of course the district court did not say that, and did not do that.

Unknown Speaker: Well, my difficulty--

Mr. Carvin: What... excuse me.

Unknown Speaker: --My... I'm sorry.

My difficulty with that argument is... goes to a statement which the court made back on 23a, which we were referring to a moment ago, in the appendix.

Do you have that handy?

Mr. Carvin: Yes, I do.

Unknown Speaker: Okay.

--Twenty-three a?

Yes, page 23a.

The court quotes from a panel opinion of a different panel but at the same court, and this is what it says:

As the panel noted, the court in Miller reaffirmed that the purpose prong of section 5 must be analyzed within the context of section 5's purpose, which has always been to ensure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities.

Isn't that fairly clear?

Mr. Carvin: No, it's not, Your Honor.

Unknown Speaker: Then explain that.

Mr. Carvin: First of all, the case he is citing from did not... was making the point that in analyzing purpose you must look at the limited purpose of section 5 and not get into these additional section 2 issues that the Justice Department had urged upon the court in Texas and was also urging upon the court here.

This would have been a very short opinion indeed if that had been its analysis.

It did not look at the purpose of the new plan compared to the status quo ante.

It looked at the purpose of the new plan as compared to the maximization alternative proposed by the NAACP.

The plan adopted had no black majority districts.

The NAACP plan had two black majority districts.

The district court spent its entire opinion analyzing, did the board do that... it's decision because of its negative impact on minority voters or in spite of it?

Did it have legitimate nondiscriminatory motives for rejecting the NAACP plan, or was it motivated by a racial reason?

Unknown Speaker: Then why did it quote what I just read?

Mr. Carvin: Again--

Unknown Speaker: I mean, it doesn't... the quotation doesn't seem to make any sense on your theory of the court's view of purpose.

Mr. Carvin: --No, but in isolation it may not, but the context is this, Your Honor.

You have five section 5 courts who were trying to analyze why did the submitting jurisdiction make a change?

What was the purpose behind that change?

And they are examining all the circumstantial and direct evidence relating to the change.

The Justice Department in all five of those cases and here says, don't just look at what was motivating the board at the time.

We also want you to consider all of this additional section 2 evidence, as they're arguing here.

We want you to consider racial bloc voting in prior elections.

And the district courts in section 5 cases have consistently responded to the Justice Department, section 5 has a much more limited purpose.

Unknown Speaker: Well, what is your position here?

Is it your position here that the only purpose that is relevant under section 5 is purpose to cause retrogression, as distinct from purpose to discriminate by effecting a purposeful dilution?

Mr. Carvin: Oh, no.

No, not at all.

I think that decision, the Court's decision in Richmond and Pleasant Grove has already decided that issue and, indeed, since it was stipulated that it didn't even have the effect of retrogression, you can obviously assume they didn't have the purpose to retrogress, and this would have been a one-paragraph opinion.

Unknown Speaker: But there could have been a purpose to dilute.

Mr. Carvin: Yes.

That's the whole point.

Unknown Speaker: Yes.

Mr. Carvin: Even though you're not making things worse, We can conceive of circumstances where there's a fully reasonable alternative put in front of you that preserves black concentrations pursuant to traditional districting principles, but nonetheless, because you are a racist school board you say, no, we're not going to do that.

Unknown Speaker: So if everybody agrees on that, if everybody agrees that the purpose is really the purpose to cause discrimination, not just the purpose not to retrogress, if everybody agrees at least sometimes a lot of this section 2 evidence in this case would be relevant, if not dispositive... not necessarily dispositive but relevant to showing that, and all we're arguing about is how ambiguous the district court's opinion is, why don't we just send it back to the district court to work it out and say, be clear, take it into account and do it?

Mr. Carvin: There is no dispute as to what the district court did.

Appellants have now changed their opinion as to the legal standard applying.

Let me proceed in two steps.

The district court, in analyzing whether or not two nonretrogressive plans reflect discriminatory purposes, compares the maximizing alternative to the plan adopted and again asks, do we have a legitimate, nondiscriminatory purpose?

There is an impact here.

One's got black majority districts, one does not.

Now, what the appellants are asking the district court to do is, after they've figured out whether that impact is motivated by a discriminating purpose, go ahead and analyze racial bloc voting.

Well, what would that show you?

All racial bloc voting is relevant to is whether the black majority districts have an impact.

Blacks can be elected in both districts.

So if the district court had gone on this detour that appellants insist they... insist it do, and agreed with them entirely, it would have returned to precisely the place it started, which is, yes, the NAACP plan, the failure to adopt it has an impact, but the relevant question under section 5 is whether that was motivated by a discriminatory purpose.

You see, all of the confusion comes here is because they keep quoting cases where plaintiffs, minority plaintiffs have the burden and, of course, in section 5 the burden is reversed.

So yes, in Rogers v. Lodge and Gingles and all of those cases, plaintiffs must prove racial bloc voting.

So that is plaintiff's burden and, if they had the burden in the court below, they would have had to show that, but we had the burden, and we were making a much simpler argument.

We were saying, fine, the plan has an impact, but that's not the reason it did it... didn't... took the police jury plan over the NAACP plan.

We took the police jury plan over the NAACP plan because the NAACP plan clearly and irretrievably violated State law.

Unknown Speaker: But this other evidence not only shows impact, it also shows what you might call disposition.

Doesn't the evidence of a violation on racial grounds of section 2 show that you're talking about people here who are likely to discriminate on the basis of race--

Mr. Carvin: Oh, I--

Unknown Speaker: --and isn't that relevant to the section 5 determination?

Mr. Carvin: --Your Honor, again, as appellants have correctly pointed out, the board was aware of the impact of this plan.

I mean, they can count.

They knew that the NAACP plan had two black majority districts and their plan had none.

Nobody's disputing that they were aware of the impact of this plan.

Unknown Speaker: No, but the question goes to--

--I'm not talking about awareness.

Mr. Carvin: Yes, but... okay.

Unknown Speaker: I'm talking about intent.

Mr. Carvin: Right.

Unknown Speaker: I'm talking about disposition.

Mr. Carvin: Right.

Unknown Speaker: I'm talking about the character of the people who made the decision.

Mr. Carvin: And how would that inquiry be aided by looking at regression analysis of racial elections that was done 3 years after the board's decision?

They brought in an expert to go through and produce this evidence of racial bloc voting which, by the way, it failed to produce and, of course, this plan has elected two black people--

Unknown Speaker: Well, I suppose the answer is that people haven't changed that much over the course of 3 years.

Mr. Carvin: --Well, I think--

Unknown Speaker: Do you dispute the fact that evidence of bloc voting, which, in fact, is evidence which discloses an intent, is irrelevant--

Mr. Carvin: --No.

Unknown Speaker: --to evidence of intent under section 5?

Mr. Carvin: No.

Again, it is not irrelevant, particularly when plaintiffs have a burden, but it adds nothing to what--

Unknown Speaker: You're saying it was just cumulative, is that it?

Mr. Carvin: --It was superfluous and cumulative because racial bloc voting only tells you, again, whether black majority districts have an impact.

Unknown Speaker: So... but if I may just--

Mr. Carvin: Sure.

Unknown Speaker: --get clear on this, it would have been perfectly proper for the court to say, we will consider this evidence for the section 5 purpose issue.

That would have been legally correct.

Mr. Carvin: Oh, sure, and remember the issue here is whether the court committed legal error.

Unknown Speaker: Did the court ever say that the reason it was keeping it out was that it was superfluous and cumulative?

Mr. Carvin: It said, I am considering evidence that is relevant to purpose.

No, Your Honor, it didn't say what it's implicit assumptions were, just like this Court in Miller.

This Court in Miller analyzed a section 5 purpose case, and it compared the legitimate nondiscriminatory reasons for adopting the plan with less majority black districts than the plan with more majority black districts.

The Justice Department in that brief urged upon them to... in this Court to independently consider the stark evidence of racial bloc voting in Georgia and the history of discrimination and all those sorts of things.

Now, the Court didn't do that because, like the court below, it assumed that--

Unknown Speaker: Well--

Mr. Carvin: --the absence of the majority districts had an impact.

Unknown Speaker: --Mr. Carvin, I just don't think the court's opinion on page 23a is consistent with what you're saying.

Mr. Carvin: Well--

Unknown Speaker: Go up to the top of that first full paragraph.

Mr. Carvin: --Right.

Unknown Speaker: The court summarizes the argument that it's responding to.

Defendant argues that even if we decide that a section 2 action cannot be brought in a section 5 preclearance proceeding, we must still consider evidence of a section 2 violation as evidence of discriminatory purpose under section 5.

Again, we disagree.

As we have said, the statutory language sets forth differing standards for the two sections.

Mr. Carvin: Well, it--

Unknown Speaker: And you have conceded that it was relevant.

Mr. Carvin: --Well... well, but in that technical sense, as this Court has already pointed out, the court didn't rule it was irrelevant.

It admitted it into evidence, and--

Unknown Speaker: Well, it says the two sections have different purposes, and the argument was that you must consider the evidence that might go to section 2 for section 5 purpose, and the court says we disagree.

Mr. Carvin: --Right.

You must still consider evidence of a section 2 violation.

Now, that means that section 5 courts trying to figure out the purpose of this discrete change must engage in the amorphous and very complicated analysis of whether... not, the change is purposefully discriminatory, but whether the underlying electoral system has the result of discriminating.

It therefore must analyze racial bloc--

Unknown Speaker: But that is not what the court said.

Mr. Carvin: --Yes--

Unknown Speaker: The court says, these two sections have different purposes.

Let Justice Souter finish his question--

Mr. Carvin: --Sorry.

Unknown Speaker: --before you answer, Mr. Carvin.

It says, these two sections have different purposes.

Mr. Carvin: And, of course, they do.

Unknown Speaker: They do, but they also have a purpose in common, don't they--

Mr. Carvin: Sure.

Unknown Speaker: --because intent to cause dilution is relevant under section 2 and under section 5.

Mr. Carvin: Absolutely.

Unknown Speaker: And doesn't the court's explanation indicate that that's not what the court thought?

Mr. Carvin: If the court had said, we are not going to consider evidence that is relevant to both section 2 and section 5, you would be correct.

But what the court said was, we'll consider evidence that's relevant to section 5 but not relevant only to a section 2 violation.

How do the two statutes differ?

One has a purpose standard, and one has a result standard.

Some evidence of section--

Unknown Speaker: No, they both have purpose standards.

Mr. Carvin: --Yes, they both have that in common, but how do they differ?

They differ because section 2 can be violated wholly without regard to purpose and, therefore, the evidence for a section 2 violation has been consciously constructed to focus the court's inquiry not on the purpose for adopting this plan but on the results of the system, racial bloc voting and those sorts of things, and it was that subset of evidence that the court clearly said was the only evidence it wasn't--

Unknown Speaker: But on your own argument, as I understand it, there was an error there, because evidence of racial bloc voting would indeed go to purpose, wouldn't it?

Mr. Carvin: --The error has... no.

Unknown Speaker: Didn't... I thought you agreed that that was so--

Mr. Carvin: No.

Unknown Speaker: --and that the reason it was kept out was cumulativeness.

Mr. Carvin: The argument was, in that court and this Court--

Unknown Speaker: What is your position?

Do you think... you agree, don't you--

Mr. Carvin: --We--

Unknown Speaker: --that evidence of racial bloc voting would be relevant evidence under the purpose prong of section 5, don't you?

Mr. Carvin: --It would be relevant but superfluous.

Therefore, what section 5 courts should do is not exclude it as a matter of law, but pay attention to it only if it furthers the inquiry.

What appellants are asking this Court to do is to rule as a matter of law that they must always consider racial bloc voting, and my question again is, how does that further the analysis?

You have just gone through a comparison of a plan that you assume is better for black voters compared to one that you have assumed is not good for black voters, and you've found it is legal because it's not motivated by a discriminatory purpose.

Now, you could spend 20 or so pages discussing the extraordinarily voluminous evidence showing that, indeed, plans with black majority districts are better for black voters, but I don't think that this Court as a matter of law should rule that section 5 courts must engage in that sort of thing.

Unknown Speaker: Well, what do we do if we're truly, at the end of the day, uncertain what it is the district court really excluded from consideration, if it's unclear to us?

Mr. Carvin: I think--

Unknown Speaker: Don't we have to remand?

Mr. Carvin: --Your Honor, I had understood this Court's rule to be that ambiguities would be resolved in favor of district courts.

Rogers v. Lodge is a perfect example of that.

I would submit, however, in the context, and given the language, that this Court did not make the ruling that appellants said.

I--

Unknown Speaker: May I ask you a question?

Mr. Carvin: --Sure.

Unknown Speaker: I think I understand your theory, and your argument's been very helpful to me, I might say.

But say there is in the record evidence that they drew boundary lines to segregate blacks when they were working out school districts and just the opposite kind of lines when they were doing voting districts.

Under your argument, that would be relevant and should have been considered?

Mr. Carvin: Yes, Your Honor, of course.

Unknown Speaker: Yes.

Because that goes to purpose.

Mr. Carvin: Of course.

Unknown Speaker: And if there's evidence in the record that that happened, and there's nothing... no mention of it in the opinion, doesn't that lend some support to the view that the court took a different line of reasoning than you're advocating?

Mr. Carvin: Your Honor, if there was any evidence of fracturing in this case, I think that would not be my reasonable inference.

There was no evidence of fracturing based... Your Honor, if they had fractured black concentrations in Bossier Parish to create... to fail to create the black majority districts, then obviously appellants' job would be real easy.

All they would have to do is re... undo the fracture, and redraw the lines to create the black majority districts.

But we know that's not what occurred because if you look at the maps, no one redrew--

Unknown Speaker: But let me interrupt you with one other point there.

I don't think our question is whether the court should have accepted the other proposed map.

I agree with you, that isn't it.

The question is whether it was correct to adopt the plan it did adopt.

Mr. Carvin: --Right--

Unknown Speaker: Yes.

Mr. Carvin: --and the appellants try and make something very sinister about the adoption of the police jury plan.

The consistent, contemporaneous evidence has been that they rejected the NAACP plan because it violated State law, and they adopted the police jury--

Unknown Speaker: But Mr. Carvin, this... clarify one thing about what you call the NAAC plan that was rejected.

I didn't think that plan was put forward as a rival to some other plan.

This case is not like the one we just heard in that regard.

I thought that plan was just put forward to show that it would be possible to create minority districts, not that this was a finished plan that was a rival to some other plan.

Mr. Carvin: --Well, whether it was a work in progress or a final plan, the point is that it is stipulated that it is impossible to create even a single black majority district without splitting a precinct, and it is also quite clear from Louisiana--

Unknown Speaker: But splitting a precinct is something that even the jury... the... whatever it's called, the police jury did.

Not terribly many, but they did for their plan, didn't they?

Mr. Carvin: --Yes, and appellants have confused this issue, and it's very important that the Court be clear on it.

The police jury had no power under State law to split any precincts.

It was a facial violation for the police jury to split a precinct.

it was a facial violation for the board to split a precinct.

That is on joint appendix at 277.

The law could not be clearer under Louisiana.

Unknown Speaker: But you get permission to do it.

Mr. Carvin: No.

No.

Unknown Speaker: Well then, how was it done?

Mr. Carvin: Because from April 1, '91 through May 15, 1991 police juries can split precincts.

The board here asked to work with the police jury at that time so they could split the precincts in April and May of 1991.

That's stipulated.

The police jury rejected the overture.

After May 15, 1991, it was impossible for the police jury to split precincts or the board to split precincts, and that is because that window of opportunity that the State legislature had consciously given to police juries so they could account for the '90 redistricting was now gone.

Unknown Speaker: Where is that in the joint appendix?

You gave a page number.

Mr. Carvin: Yes.

Unknown Speaker: I didn't write it down.

Mr. Carvin: That's joint appendix 277, Justice Scalia, and it says, notwithstanding any other provision of the law, the precinct boundaries shall not be divided, abolished, consolidated, or the boundaries otherwise changed until after December 31, 1992.

Now, could the board have waited until after December 31, 1992 to do its redistricting as appellants contend?

The answer to that is found at the joint appendix on page 65.

The United States' own chronology of events states quite explicitly at the top of 65, 12/31/92... of course, the same date... date under Louisiana law by which school boards must reapportion.

So during the time that the school board was legally obliged to reapportion, the police jury and the board were legally prohibited from splitting a single precinct.

That law is not, unfortunately, in the joint appendix, but it is Louisiana Revised Statutes at 17: 71.5A.

Unknown Speaker: is that law consistent with one-person-one-vote requirements, do you think?

Mr. Carvin: Your Honor, because of the window of opportunity.

You see, the logic of the law is this.

You get--

Unknown Speaker: I'm sorry, I don't understand.

Is such a State law consistent with the requirements of one person, one vote in drawing districts?

Mr. Carvin: --I took your question to mean, could they make adjustments for the 1990 census, but I may be misunderstanding--

Unknown Speaker: Well, I'm asking, this Court has had several opinions that have required the utilization of the principle of one person, one vote in districting for whatever purpose, if it's for voting, a police jury or a school board that votes, and so forth, so is it consistent with that principle for a State law to say, you can't ignore a precinct boundary?

What if you have to in order to--

Mr. Carvin: --Oh, in order to... I now understand.

In order to achieve--

Unknown Speaker: --draw equal districts and achieve that requirement?

Mr. Carvin: --Right, but there was no violation, I don't believe, of the one-person-one-vote constitutional standard.

Unknown Speaker: I'm asking, if it were, do you think that State law could prevail?

Mr. Carvin: Oh, I believe there's an exception in the law for boards with different numbers of members than police juries to... they may split a precinct to come within plus or minus five in terms of ideal population deviation, but there was no argument--

Unknown Speaker: Has this Court said plus or minus five is okay?

Mr. Carvin: --I thought Mahan v. Howe used that as even just a presumptive guideline.

In congressional redistricting you must be much clearer.

I had understood this Court's decisions in Mahan and others to give local and State jurisdictions much broader discretion.

As long as within... it was within... roughly within 10 percent, then everything was okay, and even... I think Mahan went to about 16.4, and they did that to preserve the town boundary and here, so if you have to preserve a precinct boundary I think you'd also be okay under law, now that I understand your question, Justice O'Connor.

Unknown Speaker: Why doesn't your... your argument, which is a very good argument as to why there was no purpose that violated section 5, not show... in order to see whether you're right or not we ought to introduce all the other evidence.

I mean--

Mr. Carvin: Well--

Unknown Speaker: --on the other side they say that here are all these people on this board, which at that time had had only a black member for a very short period of time.

They didn't want the police jury district because they'd have to run against each other.

Mr. Carvin: --Mm-hmm.

Unknown Speaker: And they didn't want the police district for some reasons that then later on they just ignored, and what happened in between?

Mr. Carvin: It is highly relevant.

The court looked at the NAACP as an alternative, and then asked itself the question, the proportionate plan, was this alternative objectively reasonable, and was the board's rejection of it motivated by discriminatory purpose, and in doing so, just to eliminate any ambiguity on this, it went through precisely the analysis that this Court articulated in Arlington Heights.

It did not cite Arlington Heights by name, I agree.

The court had noted earlier on in its opinion citing cases where minority plaintiffs have the burden makes it confusing when you're dealing with a section 5 case where, of course, the burden is on the other side, so it cited this Court's voting rights cases of City of Richmond and McCain v. Lybrand, the purpose cases under section 5.

But if I could briefly go through the Arlington Heights factors, did it look at the specific sequence of events?

There is a heading in the court's opinion that says, we'll now look at the specific sequence of events.

Did it look at the contemporary statements of the affected board members?

It spends about two pages walking through what it ultimately concluded were these ambiguous statements by other board members.

Unknown Speaker: Mr. Carvin, I take it from what you said that you do accept that Arlington Heights is a relevant precedent.

Mr. Carvin: Sure.

Unknown Speaker: Right, so you think that it was just so understood that the district court didn't need to mention it.

Mr. Carvin: Your Honor, to be candid, I don't think what people look at, what district courts look at in discriminatory purpose cases is a very complicated inquiry.

I mean, I think they looked at the direct and circumstantial evidence of, why did the board do this, and do we believe them, and is it objectively reasonable?

Unknown Speaker: The factors of Arlington Heights are not so arcane.

If you asked somebody on the street, what would you look at, he'd probably come up with the same things.

Mr. Carvin: So I really must insist that the appellants here are really seeking to elevate form over substance.

They're seeking to require district courts to recite the blazingly obvious.

We're now looking at the black majority district, and we're looking at the other plan.

The black majority plan, if it's not chosen, has an impact.

The court didn't do that in Miller.

I don't know of any purpose case that does--

Unknown Speaker: If the appellants' argument is that the findings were clearly erroneous because there was so much other evidence pointing in the other direction, that isn't requiring the district court to put its opinion in some sort of procrustean bed.

That's an ordinary clearly erroneous argument.

Mr. Carvin: --Oh, sure, and... but I don't think they think they can win the clearly erroneous argument, because no race-blind actor would have behaved in any way different from this board.

Again, the NAACP plan violated State law.

The police jury plan did not.

Even assuming there was this loophole that appellants talked about, you could only make the NAACP comply with State law by going to the police jury, taking some affirmative steps.

The argument to the police jury for complying with State law would have been objectively irrational.

It would have been, we'd now like you to create 65 additional precincts in a district with 56 precincts.

You must conclude, as a matter of law, that this board did the rational thing for a racial purpose.

I concede that that is conceivable, but I don't think it's grounds for finding the district court's contrary conclusion clearly erroneous, particularly since, again, it was a facial violation.

Unknown Speaker: Why was it rational to set up school districts with some districts that had a few schools, several schools, and some districts that had no schools at all?

It just seems a very odd kind of a school districting.

Mr. Carvin: Your Honor, school districts represents parents and children, they don't represent buildings.

It was never a redistricting criteria in Bossier Parish to have a school building in each district.

Mrs. Jackson's testimony below was that under the 1980 plan, the old plan, she did not have a building in her district.

It is stipulated that well before the NAACP plan ever came into existence they did not provide their cartographer, Mr. Joiner, with school attendance zones, so--

Unknown Speaker: But I thought that was one of the reasons why they were resisting the jury police--

Mr. Carvin: --No--

Unknown Speaker: --plan originally.

Mr. Carvin: --That is what the appellants are attributing to them, and there is a stipulation that school boards typically look at that, but the undisputed evidence is, this school board did not care about that, and we know that to a certainty, because it didn't give their line-drawer any evidence of where the school buildings were, so--

Unknown Speaker: So are you saying that it was... incumbency was the only thing that kept them from resisting the--

Mr. Carvin: --And the incumbency paled in significance to the advantages of the police jury plan for guaranteeing preclearance.

Pairs of incumbents are, of course, only a problem if both incumbents are going to run again.

There was two pairs of incumbents here.

But the evidence again, by Mr. Musgrove at trial, by Mr. Harvey at trial, and by Ms. Jackson, again in a deposition--

Unknown Speaker: --I think you've answered the question, Mr. Carvin.

Thank you.

Mr. Carvin: --Thank you.

Unknown Speaker: Mr. Patrick, you have 5 minutes remaining.

Rebuttal of Deval L. Patrick

Mr. Patrick: Thank you, and if the... Mr. Chief Justice, if the Court please, I'd just like to return to a question I didn't answer very well from Justice O'Connor.

You asked about cases where the Court has, in the section 5 context, reflected its respect for the Arlington Heights standards, and they... those cases are cited... they're beyond Rogers v. Lodge.

They're cited in the first full paragraph on page 17 of our brief.

I'm sorry it wasn't very complete earlier.

Also, there was a statement made about precinct changes and precinct-splitting that was... has been argued by the parish.

In fact, precincts could be split, indeed, were split by the police jury.

They split 20 precincts.

You'll see that on... stipulated at 88a and 88... 89a.

The only argument is, the only--

Unknown Speaker: Did they do that within the window that the legislature gave them?

Mr. Patrick: --I believe they did, yes, and the only argument, Justice Kennedy, is that the school board could not split precincts without the police jury's permission.

The school board never tried to get the police jury's permission.

They expected to do so.

They set out to draw a different plan--

Unknown Speaker: No, the argument's a little further than that, as I understood the last argument.

That is, even the police jury itself could not do it once the window of opportunity had closed.

Mr. Patrick: --Well, but the window of opportunity opens again on... after the 1st of January, 1993, and that's important.

That was known to the school board at the time--

Unknown Speaker: But they had... but again, the argument made was that they had an obligation to come up with districts before then.

Mr. Patrick: --Well, that's right.

They... I understand that argument, but what we do know is that--

Unknown Speaker: Is it wrong?

Did they have no obligation to come up with--

Mr. Patrick: --I'm not convinced it's right, Justice Scalia, but what is clear is that consolidation after the window opened again has happened in Bossier Parish.

The other point I wanted to make is that the Court needs to understand that this is not a choice.

This case is not about a choice between the plan they adopted and the NAACP alternative.

That is a... that's a ruse.

It is not maximizing for the Department of Justice to question a jurisdiction that draws a plan which hardly serves its own interests, that pits incumbents against each other, that distributes the schools in irrational ways, and is dilutive, rather than adopting a plan that is fair, and that is really what this case is about.

If there are no other questions--

Chief Justice Rehnquist: Thank you, Mr. Patrick.

Mr. Patrick: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Abrams v. Johnson - Oral Argument

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

Case:

Abrams v. Johnson

Media File:

95-1425_19961209-lq-argument.mp3

Related Transcript:

1996_95_1425_argument.xml

Transcript:

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument first this morning in Number 94-1425, Lucious Abrams v. Davida Johnson, and Number 95-1460, United States v. Davida Johnson, consolidated.

Mr. Waxman.

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

On remand from this Court's decision in Miller v. Johnson, the three-judge court, after waiting unsuccessfully for the Georgia legislature to enact a new apportionment plan, created a plan of its own, a plan with one majority-minority district in Metropolitan Atlanta.

In its opinion, and this is at page 21a of the jurisdictional statement, the district court concluded that

"if Georgia had a concentrated minority population large enough to create a second majority-minority district without subverting traditional districting principles, the court would have included one, since Georgia legislatures probably would have done so. "

The illustrative plan that we submitted to the district court in November of last year, which is reprinted at page 44a of the jurisdictional statement, demonstrates, in fact, that a reasonably compact majority black district can be drawn in East Central Georgia without neglecting, subverting, or subordinating Georgia's traditional districting principles and, thus, the district court erred in two independent and fundamental respects:

First, by failing to respect, as Upham v. Seamon and White v. Weiser require, the Georgia legislature's desire, expressed in word and in deed, for a second majority-minority district in East Central Georgia and, second, regardless of the legislature's intent, by failing to recognize that on the record as it existed before the district court at the time, section 2 of the Voting Rights Act required creation of a second district in East Central Georgia to remedy unlawful vote dilution.

Now, the appellants have--

Unknown Speaker: Actually, in your brief you said that the question was whether or not it was proper to reduce the majority black districts from three to one, but that begins with a premise based on an unconstitutional plan, does it not?

Mr. Waxman: --That would... that argument would... would indeed, Justice Kennedy, and I think that where you--

Unknown Speaker: Although that's the argument you made in your brief.

Mr. Waxman: --Well, in our... in the section 5 portion of our brief, which is not an argument that we had noted in... a point that we had noted in our jurisdictional statement but since it was raised by the coappellants we addressed it, in the section 5 analysis you would start with the 1992 plan.

In the Upham v. Seamon--

Unknown Speaker: Why would you begin with an unconstitutional premise?

That's the opening statement in your summary of argument.

You're contesting a plan that reduces from three to one--

Mr. Waxman: --Yes--

Unknown Speaker: --but you begin with an unconstitutional premise.

Mr. Waxman: --I understand your point.

Under Upham v. Seamon and White v. Weiser, a district court, when remedying an unconstitutional plan enacted by the legislature, must make the minimum number of changes to remedy the constitutional violation, but otherwise adhere to the expressed intent and desire and policies of the State legislature.

In this case--

Unknown Speaker: But the minimum number of changes in the case of three majority black districts in which two are unconstitutional, the minimum number of changes are to eliminate the two that are unconstitutional, I would think.

Mr. Waxman: --Well, the issue, I submit, Justice Scalia, is whether it is possible... given the Georgia legislature's expressed desire for a second majority-minority district if one were possible consistent with traditional districting principles--

Unknown Speaker: That expressed desire--

Mr. Waxman: --whether it is possible to do it.

Unknown Speaker: --the court found was expressed... you might call it an extracted desire.

It was expressed because of the Justice Department's insistence--

Mr. Waxman: That is--

Unknown Speaker: --that an additional black district be drawn.

It's not as though the Georgia legislature came to this conclusion on its own.

Mr. Waxman: --I respectfully disagree with you, Justice Scalia.

What the district--

Unknown Speaker: Not with me, but with the court.

Mr. Waxman: --What the district court found was that the 1992 plan, which is the plan reflecting three districts, was the product of improper and unconstitutional Justice Department pressure.

The original plan enacted by the Georgia legislature in 1991, which we refused to preclear, had two majority-minority districts, and when this case was before--

Unknown Speaker: And the court did not say that that plan also had been affected by Justice Department pressure?

Mr. Waxman: --To the contrary.

The court... I believe the court's opinion makes a point of saying that it was error for us not to have approved that plan because it was proper and not regressive.

In fact--

Unknown Speaker: That's a different point from whether the Justice Department, pressure from the Justice Department had induced the legislature to include the second.

Mr. Waxman: --Let me, if I may, Justice Scalia, repeat for you what counsel for the State of Georgia told this Court at the outset of his argument in Miller v. Johnson:

"There was a consensus politically before the Department of Justice ever got involved in the State of Georgia to try and draw a majority-minority district in East Central Georgia, no question about that fact. "

Page 3 of the transcript in Miller v. Johnson.

And there is extensive evidence in the record to support that conclusion.

Unknown Speaker: That proves nothing, Mr. Waxman.

It just proves... I mean, the political consensus could have been a consensus, look, if we don't put in at least one more majority-minority district, this thing will never be precleared by the Justice Department.

The issue is not whether there is a consensus.

The issue is whether, as you portray it, the uncoerced desire of the Georgia legislatures was to have this second district.

Mr. Waxman: Well, I would respectfully submit, Justice Scalia, that the district court found as fact, based on the evidence before it, that the Georgia legislature would have wanted to create a second majority-minority district in East Central Georgia if to do so would not subvert traditional districting principles--

Unknown Speaker: Mr.--

Mr. Waxman: --and I respectfully suggest that the court erred in enacting its plan because the illustrative plan we've provided to the Court demonstrates that that can be done.

The district court's finding in that regard, Justice Scalia, I think is entitled to review under the clear error standard.

Unknown Speaker: --Mr. Waxman, is it your position now that the 1991 plan which had the two districts was unconstitutional at least with respect to one of those districts, and therefore it's the illustrative plan that has two districts that should have been the one adopted?

Mr. Waxman: Yes.

I believe that in light of this Court's decision, subsequent decision in Miller v. Johnson and its decisions thereafter in Bush v. Vera and Shaw v. Hunt, the legislature's 1991 plan, although clearly expressing the legislature's intent for a second district in this area, would violate this Court's decisions because it is an extremely irregular, bizarre district.

The district that we have drawn in this case has no arms, no tentacles, no claws, no land bridges; it doesn't reflect any effort to go around certain racial populations to reach others.

Unknown Speaker: Mr. Waxman--

--Well, on that point, I believe it's district 2... is it Muscogee County?

Is that the way you pronounce it.

Mr. Waxman: I believe it is.

Muscogee County is--

Unknown Speaker: Which side of that map are you reading from, Justice Kennedy?

This would be the illustrative plan--

Mr. Waxman: --I can point to it if I--

Unknown Speaker: --The illustrative plan, and Bibb County is toward the north of section 2, and you split Columbus in order to make up section 2, and that's to pick up black population, and in Bibb County, which is number 11, you split Macon--

Mr. Waxman: --Yes.

Unknown Speaker: --in order to get a black population.

Mr. Waxman: It is correct that in our plan we retain completely intact 148 out of the 150 counties of Georgia outside--

Unknown Speaker: And it just so happens that the counties you split are split along white-black lines.

Mr. Waxman: --Well, there is... Justice Kennedy, there is actually nothing in the record that reflects why or precisely how our illustrative plan divides it, except to--

Unknown Speaker: It just happened that way?

Mr. Waxman: --Well, if I may finish, Your Honor, what... the only thing the record itself reflects is that we divided those same jurisdictions as did the legislature in its original 1991 plan.

Now, if I may go further, because... I think because the district court drew its own plan, even though answer Your Honor's question about why we divided the counties the way we did and how we divided it, because I think it really does go to the question of whether, under this Court's opinion in Miller v. Johnson, race was the predominant reason.

So let me go forward, because I think the district court, in drawing its own plan, took this into account and answered that question.

Muscogee County was divided for three reasons.

Number 1, to keep Fort Benning, which splits... which is in Muscogee County, intact in one district.

The 1991 plan did that, too, and also to comply with one-person one-vote requirements and lower the overall deviation between the second district and the other districts.

Bibb and Macon... Bibb County and Macon was divided both in order to achieve population equality under one-person one-vote, and to include as much of it as possible--

Unknown Speaker: Macon is the county seat of Bibb County?

Mr. Waxman: --Yes... and to include as much of it as possible with the rest of the African American concentration in the region and to be consistent with the 1991 plan.

In point of fact, the area included in our illustrative district is 80 percent of all the population in Macon and includes substantial areas that are almost entirely white, and in point of further fact, the mayor and the city council of Macon unanimously supported division of the county and city into more than one district.

Unknown Speaker: Counsel, one question I had about the DOJ illustrative plan is that apparently it was not ever put on computer to show precincts and rather, it used, what, census tracts or something?

Mr. Waxman: Yes, Your Honor.

Unknown Speaker: And so how did the district court know that if it had been put on computer for precincts that those numbers would have panned out?

It perhaps could have required a lot more adjusting and splitting to do the job ultimately.

Mr. Waxman: Justice O'Connor, the district court didn't... we submitted the plan using precincts because that was what was on our computer at the time.

The--

Unknown Speaker: You mean census tracts, not precincts, I think.

Mr. Waxman: --Using census tracts.

We subsequently obtained the precinct data both for 1992 and now in 1996, and the plan is almost exactly the same, because the precinct lines in Georgia very carefully follow census tracts, and--

Unknown Speaker: But it wasn't ever given to the district court, and I guess we have to ask whether it abused its discretion, and I just wasn't really sure--

Mr. Waxman: --Well--

Unknown Speaker: --whether it would be an abuse of discretion to not consider or adopt an illustrative plan that didn't have those closer figures in--

Mr. Waxman: --Well, I would respectfully suggest, Justice O'Connor, that it was an abuse of discretion at least not to wait for it and give us the opportunity, or try and find out whether a plan that was submitted only for illustrative purposes could, in fact, be drawn in that fashion using precincts.

The district court did not hold a hearing after we submitted our illustrative plan.

Instead, it just ruled.

We have since done the work with the State's computer and, on remand, will be able to demonstrate that this--

Unknown Speaker: --If there is a remand.

Mr. Waxman: --Of course.

Of course, Chief Justice.

Unknown Speaker: Mr. Waxman, may I ask a more basic question?

All of this would be irrelevant if the district judge was right when he said creating a second majority-minority district... this is 21a of your appendix... would require the court to engage in the unconstitutional... in unconstitutional racial gerrymandering.

That sentence seems to be saying, if you start out with the purpose of creating a majority-minority district, then no matter how neat and tidy it is, it's no good.

Mr. Waxman: Well, if that conclusion were a correct conclusion of law, that's right, but that is... that test which the court applied is not, in fact, the test that this Court has adopted in Miller v. Johnson and Bush v. Vera, which is that it is... this Court has stated that a legislature may take race into account, and may create, intentionally create majority-minority districts without incurring strict scrutiny if race was not the predominant reason, which is to say that the plaintiff must prove... if the plaintiff can prove that the legislature subordinated, substantially disregarded, or neglected traditional race-neutral districting principles.

And what we have here, with respect to the eleventh district in our illustrative plan, is a district which on five of the six traditional principles that the court enumerated in its opinion our plan does as well as or better than the court's plan.

With respect to one factor... that is, splitting county lines... in one little portion of this district we split one county line in order to include as much of Bibb County as Macon as possible with the rest of the concentrated African American population in East Central Georgia, and we submit--

Unknown Speaker: But the district judge seemed to think that if race is the driving force, then it is the predominant force, even if other factors are accommodated.

Mr. Waxman: --Well, I can't speak beyond what the court's opinion was, what the district court thought.

I cannot reconcile the district court's conclusion in this case with the articulation of the law that this Court has set forth in Miller v. Johnson and Bush v. Vera.

May I reserve the balance of my time?

Unknown Speaker: Very well, Mr. Waxman.

Mr. McDonald, we'll hear from you.

Argument of Laughlin McDonald

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

One of the fundamental errors of the district court in this case was in thinking that every aspect of the 1992 plan was unconstitutional and that, accordingly, the court could proceed in drawing a remedy plan and ignore the least change principle of Upham v. Seamon.

The court adopted a plan that was maximally disruptive.

It totally ignored the policy choice of the general assembly about where to place the eleventh congressional district, and also as to what the racial composition of that district should be, and it also failed to apply the standards of section 2.

The court completely relocated the eleventh congressional district from that southeastern corridor of the State where the--

Unknown Speaker: Well, if what you say is true, Mr. McDonald, I would think that the State in the person of the attorney general would be here arguing what you're arguing, but the State appears to be on the other side.

Mr. McDonald: --Well, Your Honor, the litigants before this Court are seeking an end to the litigation, I assume, and they are asking for an affirmance, but the general assembly itself clearly articulated what the State policy was in 1991, when it enacted the first plan.

Unknown Speaker: So we should accept your version of what the general assembly wanted rather than the representatives of the State?

Mr. McDonald: Well, Your Honor, I think it's instructive to see what these litigants said on page 2 of their brief.

They explained during the remedy phase of the case they had elected not to submit a proposed redistricting plan to the district court, and the reason that they took that position was, they were not authorized, they said, to state what the legislature's policy was, so these litigants don't pretend to be surrogates for the general assembly.

They've disavowed, in fact, that they have that authority.

Unknown Speaker: Well, the problem is, I guess, that the district court found as a factual matter here that the plan passed by the Georgia legislature in '91 and then their efforts after that did not represent State policy, that they were the result of coercion by the Department of Justice, and we would have to find that's clearly erroneous, wouldn't we--

Mr. McDonald: Well--

Unknown Speaker: --to ignore that district court finding--

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

Unknown Speaker: --to support your view?

Mr. McDonald: --Your Honor, I would submit that that's not what the district court in fact found.

The plaintiffs, for example, never contended that the 1991 plan was unconstitutional.

There was no evidence whatever presented which would support such a finding, and the--

Unknown Speaker: And the district court in your view made no such finding?

Mr. McDonald: --That is correct, Your Honor.

I don't believe there's any finding that the 199--

Unknown Speaker: Well, I thought they did, and found that it was obtained... that it was the product of coercion when the attorney general refused to preclear.

Mr. McDonald: --That was the second and the third plan, Your Honor, but there was no such finding with respect to the first plan.

Unknown Speaker: Well, the first plan that I guess this Court reviewed and found one district unconstitutional.

Mr. McDonald: Your Honor, as I recall this Court's opinion, this Court said that the eleventh congressional district under the first plan did not violate the retrogression principle of section 5.

Unknown Speaker: Just to get our plans clear, the first plan was not precleared, am I correct about that?

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

Unknown Speaker: All right.

So the first plan was not precleared.

Mr. McDonald: That's correct.

Unknown Speaker: And it's interesting, you want us to go back to a presumed legislative intent that did not obtain preclearance and there was a second legislative plan after that was declared unconstitutional.

Then the district court tells the legislature, give us a plan, please, and the legislature says well, we can't.

Mr. McDonald: The first plan was objected to, but it was not objected to, Your Honor, on the grounds that it contained two majority black districts, so the Department of Justice has not objected to that feature of it, and this Court expressly found that that feature of it would not violate the retrogression principle a second time.

As a practical matter the court... the litigants in this case want to say that John Dunne was a bad guy and that he had coerced and terrified the State, but in point of fact, Your Honor, the reason the State made a conscious, deliberate decision to adopt two majority black districts is based on a myriad of facts and circumstances.

I mean, one has to remember that there's a very large black membership in the general assembly, and those legislators were urging the State to adopt an additional majority-minority congressional district, so that was part of what was going on in the general assembly.

But one also has to see what sort of trauma the State went through in 1970 and in 1982 when it was attempting to preclear this congressional plan, because the 1972 plan was an open racial gerrymander.

It was objected to by the Department of Justice because the State had fragmented the concentration of minority population in the Atlanta area.

They had deliberately drawn Andy Young and Maynard Jackson into a district that went almost down to Augusta because they knew that they would be potential candidates, and if the 1972 plan was bad enough, the 1982 congressional redistricting plan in Georgia was an absolute total embarrassment and humiliation for the State of Georgia.

It had nothing to do with John Dunne or the Department of Justice, but the D.C. court denied preclearance to the 1982 plan because they said the State had deliberately fragmented the concentration of the minority population in the Atlanta area and it accused Ladle, the person in the general assembly, in the House, who was chair of the redistricting committee, who was the chief architect of the plan, and said he was a "racist", and there was all the findings about the N word that he used, and the contempt that he held the legislature.

The State was absolutely determined to avoid at all costs that kind of public humiliation and they wanted to do what they thought was 2 vote dilution litigation.

Since 1970 forty-six cities in the State of Georgia and 56 counties have been sued under section 2 on vote dilution grounds, and almost every one of those cases resulted in the adoption of remedial plans.

The State was just... sort of not acting in a vacuum, of course, but--

Unknown Speaker: Well, it's so difficult to know how to analyze this because there really isn't a clear plan that we can look back to as the base, that didn't have problems.

Mr. McDonald: --Well, I--

Unknown Speaker: And the district court made a number of findings here, and I assume that to support your view we have to find some of those clearly erroneous, and I'm just not sure how we do that, or which ones would lend themselves to being a clearly erroneous finding.

Mr. McDonald: --Well, Your Honor, I think the first plan enacted by the State is the best indication of what the State intended to do and would have done, and the three-judge court in fact found that the State would have adopted a second majority black congressional district, but it refused to do so itself because it was of the view that the minority population was not sufficiently compact, and--

Unknown Speaker: Someone also I think said something to the effect that it would require joining populations from Atlanta and Macon which the district court found did not share a community of interest, that it wasn't a geographically compact group, so what do we do with that kind of finding?

Mr. McDonald: --Your Honor, one of the problems in a State like Georgia is that you do have these urban areas, and then you have these rural areas--

Unknown Speaker: Wide apart... wide apart from each other.

Mr. McDonald: --That is correct--

Unknown Speaker: Yes.

Mr. McDonald: --and in the plan adopted by the court you have what I would submit to Your Honor is the best example of yoking together these widely disparate entities.

Echols County, which is right on the Florida line, is the smallest county in the State.

It's included in the court's eighth congressional district.

Unknown Speaker: Was this one of the four corners?

Mr. McDonald: No, Your Honor, that's not... the four corners are... this might be part of the southwestern corner.

Unknown Speaker: I see, number 8.

Mr. McDonald: But also Bibb County is included in there.

It's one of the largest metropolitan areas in the State, and then that eighth district goes all the way up to these counties that are very near the Metropolitan Atlanta Area, so that's precisely the kind of district--

Unknown Speaker: Well, but it was drawn with basically a nonobjectionable clean set of lines compared to the general assembly plan of 1991.

I mean, it draws kind of a wide swath from north to south, but nonetheless, pretty clean lines.

Mr. McDonald: --It aggregates a lot more counties, Your Honor, and you're entirely correct.

Unknown Speaker: But Mr. McDonald, may I interrupt you just--

Mr. McDonald: Yes, Your Honor.

Unknown Speaker: --Because there's one thing I may not understand about your answer.

You're not necessarily claiming that the 1991 plan should have been adopted by the district court, are you?

In other words, I think you're claiming that the feature of the '91 plan of having two majority-minority districts is what the district court should have adopted under Upham and Seamon.

Mr. McDonald: That's right.

Unknown Speaker: But you're not claiming that the 1991 plan as such should have been adopted by the district court.

Mr. McDonald: No.

We've never taken that position.

Unknown Speaker: Do you... what is your position in relation to the Justice Department's illustrative plan?

Mr. McDonald: That would be... is an example of what the court could do and what it was obligated to do.

It shows that you can, in fact, adopt a remedial plan that contains two reasonably compact districts that do not subordinate traditional redistricting--

Unknown Speaker: So you'd settle for that.

So... but your assertion is that it is okay to say that the legislature would have set out to create a second majority-minority district, and setting out to do that is okay?

Mr. McDonald: --It is, Your Honor, as I read the decisions of this Court, so long as you don't subordinate traditional redistricting principles to race, that a State can make a determination that it wants to be inclusive and create two majority-minority districts.

Now, what the... it really... I did some county counting over the last couple of days, and there is not a single county that was included in the 1991 version of the eleventh congressional district that ends up in the court-ordered eleventh congressional district.

Not a single county ends up in the existing eleventh congressional district.

Unknown Speaker: What eleventh does not end up, the 1991 eleventh?

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

Those counties that were in--

Unknown Speaker: Was the 1991 eleventh constitutional?

Mr. McDonald: --No, it was not.

It was not, but I think--

Unknown Speaker: Well, so what difference does that make?

I mean, it was a district that the legislature had carved out to... you know, to pursue an unconstitutional objective, and that eleventh district touched how many counties?

It touched an awful lot of other districts--

Mr. McDonald: --Yes.

Unknown Speaker: --didn't it?

Mr. McDonald: And there were features of that plan that were expressly identified as being unconstitutional, and it's possible to correct those defects and not totally, absolutely ignore the policy choice of the general assembly that, where that district should go.

Unknown Speaker: But the policy choice of the general assembly was to create... specifically to create an unconstitutional district, to specifically create a district just for the sake of, other considerations aside, obtaining a majority-minority district.

Mr. McDonald: With all respect, Your Honor, I don't think that their plan was to create an unconstitutional district.

They wanted to create one that was constitutional.

They failed to do so.

But the record clearly indicates that it is possible to create one that is constitutional, that the--

Unknown Speaker: What is the record evidence, Mr. McLaughlin?

In addition to the illustrative plan, wasn't there a problem that that plan was introduced after the close of the evidence, so there was some question whether it was appropriate for it to be considered?

Mr. McDonald: --Well, Justice Ginsburg, the district court in fact did consider it, so if there was a problem it did not regard it as an insurmountable one.

But there were other plans, Your Honor, that were introduced.

The Abrams appellants, whom I represent, introduced four plans, and... the least change plan, and plan A and B and C... and those plans all created a second majority black district, and we would contend that it did so in a way that fully complied with Miller v. Johnson.

We tried to aggregate as many counties as possible.

We read the decision of this Court and the decision of the lower court.

We fixed the land bridge in Henry County.

We avoided the heroic reach to Savannah.

We cured the split in the land bridge in Effingham County.

We cured the problems in Richmond County and Augusta, where the Court said the redistricting plan of the State had linked up black neighborhoods.

We did a plan which I think was an effort and in good faith and in fact responded to all the concerns which were expressed by this Court and the district court concerning the eleventh congressional district.

Unknown Speaker: Mr. McDonald, you have just a moment or two left, and you've not addressed one of your arguments that was one of the issues raised in the petition, which was a violation of the one-person one-vote principles.

How would that help you on this other substantive aspect of your case?

I mean, to send it back to tinker with minor population deviations doesn't seem to address your main concern at all.

Mr. McDonald: It would not address the question--

Unknown Speaker: No.

Mr. McDonald: --of the creation of a second--

Unknown Speaker: No.

Mr. McDonald: --majority black district, and you're probably right about that, Your Honor.

What we think the Court should do and what we request the Court to do is to reverse and remand with instructions to the three-judge court to adopt a new remedial plan that applies the least change standards of Upham v. Seamon and that also complies with section 2 of the Voting Rights Act, and we think that if the Court does that, that such a plan would, in fact, contain two majority black districts.

Unknown Speaker: Thank you, Mr. McDonald.

General Bowers, we'll hear from you.

Argument of Michael J. Bowers

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

The issue is whether the district court abused its discretion in redrawing or fixing Georgia's basically unconstitutional congressional districts.

I will address Upham v. Seamon and whether the Court adhered to Georgia's traditional districting principles.

As a preliminary matter, I would urge the Court to consider that this case may, in fact, be a case about discretion or leeway, and the question initially may be, is there any room for a State between what this Court has said is the limit in congressional district drawing in Johnson v. Miller and what the Justice Department is urging upon this Court as mandated by section 2 of the Voting Rights Act?

I think the Justice Department would say no, there's no room.

There's a perfect congruence between where this Court has left off in Johnson v. Miller and where the... section 2 of the Voting Rights Act comes to.

We must as closely as possible move toward what this Court has decided in Johnson v. Miller in complying with the Voting Rights Act, section 2.

This is nothing but another attempt at maximization, albeit with a grudging admission by the Justice Department that there is some... there are some limits which did not heretofore exist.

Unknown Speaker: Well, general, it seems to me that there's a different argument for maximization here, and it's... and I think you're going to address it, but it's the Upham and Seamon argument, and the premise of the Upham and Seamon argument is that the... sort of the latest un... the latest expression of State intentions, untainted by coercion from the Justice Department, was that there be two majority-minority districts.

And that's not maximization.

That's kind of the least change principle, and I take it your position is that the '91 plan, with its feature of two such districts, was not a valid... in effect a valid statement of the State's desires, is that correct?

Mr. Bowers: It is valid in some respects, Your Honor, but as the district court found in its order, and it's stated in footnote 9, which is at page 13a of the jurisdictional statement, you can't draw the kind of district that existed in the '91 plan for the eleventh district because what you're doing is you're joining disparate and distant minority populations, namely the urban minority population in South De Kalb County, and the rural, primarily rural urban, or primarily rural minority population located in East Central Georgia.

Unknown Speaker: Well, as I--

Mr. Bowers: You can't do that.

Unknown Speaker: --As I understand the argument that I've just heard, the Abrams least change plan and the Department of Justice's illustrative plan avoided those pitfalls.

Is that correct?

Mr. Bowers: No, sir.

I respectfully submit that that is not correct and, as to the illustrative plan, by referring to page 44a of the jurisdictional statement you can see that very closely.

Looking at the eleventh district specifically, in the northwest corner, that county, that last county is De Kalb County.

That is an urban--

Unknown Speaker: The one that's right next to five?

Mr. Bowers: --Right next to what, Your Honor?

Unknown Speaker: The one that's--

Mr. Bowers: Right next to district 5.

Unknown Speaker: --Five, yes.

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

That split has never heretofore occurred with respect to De Kalb County in a congressional districting.

There is no question whatsoever, although we have not had the chance to litigate the illustrative plan, it being submitted 3 weeks after the Justice Department said on the record at about 400, page 400 of the transcript that they weren't going to submit a plan, but we know the purpose of that can only be said to be race, because you're getting all of the black population, virtually, of De Kalb County, about 212,000 people out of a district requirement of about 589,000.

Then you go up, and where else is the minority population, and the only significant minority population in this district is going to Bibb County, where you split Bibb County three ways, which again has never occurred in the history of redistricting in Georgia, you put those two populations together, and they constitute 80 percent of the minority population in this illustrative plan, and if that's not drawing a district with the primary motive being race, I don't know--

Unknown Speaker: What about the Abrams least change plan?

Has that got the same problem?

Mr. Bowers: --It's substantially the same thing, Your Honor.

Unknown Speaker: Did the... and help me out here.

I should know this, but I'm not clear on it.

Did the district court here find that, as a blanket matter that it was impossible to come up with a two minority... majority-minority districts without these features, or did it simply find that the 1991 plan involved such features as this when it came up with two majority-minority districts?

Mr. Bowers: I think it was the latter, Your Honor.

What specifically is in the record is testimony of Ms. Linda Meggers, who is the State's demographer, a recognized expert on this area, as well as the testimony of the demographer that the appellant ACLU used.

Ms. Meggers said point blank, it is impossible to draw a second minority population in this area because you don't have a large enough compact minority population.

Mr. Carter, at the very best, can be said to say that he doesn't know, so on this record there is nothing whatsoever that would mandate a district court to find that the first Gingles requirement has been satisfied, namely, this compact large minority population.

Unknown Speaker: Well, should... and here's a question I have about the way the standard should be set.

If we accept as our starting premise that there should be something like a least change principle, an Upham and Seamon principle, should the burden be on a district court like this to find that it is impossible to draw districts which come any closer to whatever the benchmark is?

So that in this case, I take it if that were the principle we would say, the opinion of the three-judge court has a hole in it here, because... and the hole is, it did not find that it was impossible, consistent with the first Miller case and normal districting principles, to come any closer to a two-district scheme than it did.

Would that... is my principle right about how we should apply Upham and Seamon, and number 2, if that's the way we should apply it, is there a defect in what the district court did here?

Mr. Bowers: I think the principle you enunciated as to Upham v. Seamon is correct, Your Honor.

I think in the application the district court has satisfied Upham v. Seamon by trying to follow Georgia's traditional districting principles using the '91 plan, the very first plan that the general assembly passed which was rejected by Justice, except as to the eleventh congressional district and what has to be done there, keeping in mind that the bulk of the population in the eleventh, even in the '91 plan, is located in some appendages which this Court acknowledged in its opinion in Johnson v. Miller had nothing to do with one another.

Augusta--

Unknown Speaker: Yes, but shouldn't the district court have to conclude that it would be impossible to come up with a two-district plan without these impermissible appendages?

Mr. Bowers: --I would respectfully submit no, Your Honor.

Unknown Speaker: Why not?

Mr. Bowers: It should not have to do that because that is dealing with its discretion or leeway that a legislature--

Unknown Speaker: Well, it's got discretion, but it's also got to worry about Upham and Seamon, and how do we know that Upham and Seamon is satisfied unless the court does, in fact, make a finding of impossibility?

Mr. Bowers: --Your Honor, I think if you will allow me to go through what the district court has done in respect to Upham v. Seamon you can... this Court can see how closely it followed.

I would respectfully submit that a finding of impossibility as to that second district is not one of the requirements, but even if it is, this Court in this case on these facts has come pretty close to saying that in footnote 9, which is at page 13a of the jurisdictional statement.

Unknown Speaker: Well, and this argument assumes, of course, that that feature of the earlier State plan which must be followed is two majority-minority districts, why... that that is sacrosanct, that if the other features, such as not splitting precincts and things of that sort, would stand in the way of it, nonetheless, for some reason the two majority-minority feature is a... an overwhelmingly determinative feature of the earlier plan.

Mr. Bowers: I agree, Your Honor.

Unknown Speaker: And are you prepared to--

--May I interrupt right there for... just to get the argument in... it seems to me you can respond to the argument that they had a duty to form two majority-minority districts in two ways.

One, they had no such duty, or two, they tried but it wasn't possible or it wasn't feasible without violating all these other principles--

It seems to me the district court, and I think your argument also, assumes that it was a permissible objective.

In fact, they had some duty to make an effort to try and create two majority-minority districts.

I think you agree with the district court on that, don't you?

Mr. Bowers: If--

Unknown Speaker: If it were... if you could do it without causing these other collateral effects.

Mr. Bowers: --Yes, Your Honor, but--

Unknown Speaker: Which is different from the argument that Justice Scalia was suggesting.

Mr. Bowers: --Yes.

Unknown Speaker: I would have thought differently from your answer to Justice Scalia, that there are a number of factors, presumably, which make up the 1991 redistricting plan, one of them is two majority-minority districts, and that the district court is obliged to consider that along with all the other factors but it's not obliged to simply take that as a be-all and end-all, that it's got to have that whatever else it sacrifices.

Mr. Bowers: Correct, Your Honor.

Only... it is only required to do so if it meets or can find met in the record the criteria set forth in Gingles, and here the court--

Unknown Speaker: But you do agree that if it can meet those criteria it had a duty to do so?

Mr. Bowers: --Yes.

Unknown Speaker: Okay.

That's--

--So that Upham basically provides a kind of presumptive principle.

This is where you ought to... this is what you ought to do if you can do it consistently with these other collateral limitations.

Mr. Bowers: Yes.

Unknown Speaker: Okay.

Mr. Bowers: I agree, Your Honor.

Here, what the district court did, it took the '91 plan which we've reflected on the composite map in front of you here in the middle, and you'll note they're almost similar, this '91 plan and what the court ultimately came up with.

It preserved the corners.

It preserved core districts in the eighth, the tenth, the fourth, also.

It drew the best it could what the general assembly had said to draw in the '91 plan, but correcting the unconstitutional defects in the second and in the eleventh, and the second and the eleventh touched all but six of the remaining districts.

Unknown Speaker: It just left out Hamlet.

Mr. Bowers: I beg your pardon?

Unknown Speaker: It was without the Hamlet, without the Prince.

It simply left out the main point, which was to have the two majority-minority districts.

Isn't it... my question really is, in respect to that, is, isn't it constitutional, or is it, in your opinion, for the legislature directly to draw a line on the basis of race where the legislature reasonably feels that that is necessary to prevent a violation of section 2 of the Voting Rights Act?

Mr. Bowers: If it is... yes, Your Honor.

Unknown Speaker: All right.

If the answer to that question is yes, then, if the legislature has tried to do that in 1991, and if you believe people should in fact in courts pay attention to legislatures and give them lots of leeway, then why shouldn't the judge here have tried to carry out that legislature's primary intention, giving it that leeway to draw those two district boundaries in a way that would reasonably have prevented a violation of the Voting Rights Act?

Mr. Bowers: Because on this record, Your Honor, there is no evidence that that district was required.

That is clear.

Unknown Speaker: Oh, yes, there--

Mr. Bowers: There's not--

Unknown Speaker: --There is lots of evidence.

The evidence when you in fact go into the section 2 part of the two... of the second district.

It's a close question, isn't it?

Mr. Bowers: --No, sir.

I was--

Unknown Speaker: The district judge doesn't think--

Mr. Bowers: --It's not that close.

Unknown Speaker: --that's a close question?

All right.

So you would say the legislature could not have reasonably thought... perhaps wrongly, but reasonably, that a second majority-minority district was necessary?

Mr. Bowers: It was--

Unknown Speaker: Is that your... is that the point?

Mr. Bowers: --It thought a second district was necessary.

Unknown Speaker: Did they reasonably think so?

Mr. Bowers: No, sir.

Unknown Speaker: If it was reasonable in their thinking so, then would you agree that the district court should, in fact, have followed their intent?

Mr. Bowers: If it were reasonable on the factual record, yes, Your Honor, but if it's not--

Unknown Speaker: Well then, I think you've changed your argument, haven't you, because I thought your... you started out arguing saying there is a realm of discretion.

What the district court did is within that realm, and therefore no abuse, no reversal.

Now I think you're saying that there wasn't discretion, that the district court could not, in fact, have done anything consistent with section 2 except come up with a one-district plan.

Mr. Bowers: --On this record that is my--

Unknown Speaker: So it isn't a discretionary matter.

You're saying as a matter of law it has to be a... on this record--

Mr. Bowers: --On this record.

Unknown Speaker: --it has to be a one-district plan.

Mr. Bowers: It can only be that if you look at what, for example, the Justice Department is putting forth in the illustrative plan.

You have to link disparate distant minority populations.

That's the only way that you can get that second district in the area of the eleventh, and that can only be for the purpose of drawing lines based upon race, which this Court has condemned as a predominant motive in Johnson v. Miller, but we would urge this Court to affirm, to give a State or a court acting in its place some leeway between what this Court has said--

Unknown Speaker: But on your view we don't have to give it leeway.

On your view, it would be appropriate to affirm by saying this is the only thing it could have done.

As a matter of law, this was required.

Isn't that correct?

Mr. Bowers: --Yes, sir, but also, it would then... that would... that holding would give us and a court acting in our stead leeway between what the Justice Department is suggesting under section 2 and what this Court has found under the Fourteenth Amendment.

Thank you.

Unknown Speaker: Thank you, General Bowers.

Mr. Parks, we'll hear from you.

Argument of A. Lee Parks

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

I want to first address Justice Souter's question with regard to the district court's findings.

At page 20a and 21a of the jurisdictional statement, in the opinion of the district court, the district court specifically found that it could not create a second majority-minority district in Georgia without violating the teachings of Miller.

It states there, analysis of the racial map in Georgia reveals the State's minority population is widely dispersed.

In fashioning a remedy, we considered the possibility of creating a second majority-minority district and concluded that to do so would require us to subordinate Georgia's traditional districting policies and consider race predominantly.

Now, the Solicitor General also referenced the oral argument of the State of Georgia in Miller I, and they did say that it was the legislative policy to create a second majority-minority district, but they also said at page 14, in explaining why that policy was created... this is page 14 of the oral argument... that their purpose was this.

The facts, in a nutshell, are the reality of having black people elected to office.

The general assembly in Georgia, when it did this reapportionment plan, had a simple choice: we will draw districts to have blacks elected.

You will recall in Miller I that they made the argument proportionality was a compelling State interest, and they lost that argument.

The creation of a second majority-minority district is therefore infected with that belief, that belief borne of what they had been told by the Justice Department before they began their redistricting process in 1990 that all districts that were technically possible were required under the Justice Department's melding of section 5 and section 2.

This case boils down to whether or not the eleventh district, as stated by the appellants, is required to be maintained as a majority-minority district.

The district court's findings in that regard are not clearly erroneous.

The district--

Unknown Speaker: Mr. Parks, is there anything in the court's opinion here that reflects what you just said about the Georgia legislature's frame of mind in its 1991 apportionment?

Mr. Parks: --Yes, Your Honor.

They specifically cite Linda Meggers' testimony and credit that testimony where she says, I was the reason we drew the first district.

Unknown Speaker: Where is that in the court's opinion, do you know?

Mr. Parks: I don't have the page number, Your Honor... perhaps they could find it... but they specifically cite her testimony to the effect that they believed that Georgia did have that mind set going into the process.

The DOJ in their brief pins this case on... at page 29 of their brief on this contingent.

An African American candidate cannot win a congressional election in Georgia without a majority of African American voters being put into the district.

They say that that is the standard for section 2 liability.

In our view, they have juxtaposed a constitutional violation with a statutory mandate, and whenever that occurs, the constitutional requirements prevail.

Unknown Speaker: May I ask you if you think the court's creation of the fifth district was constitutional?

Mr. Parks: Your Honor, yes, we do.

That was not litigated.

The court--

Unknown Speaker: But you do accept that as a constitutional--

Mr. Parks: --We do, Your Honor, because that... we are... the issue of section 5 retrogression, the constitutional of that is not in this case, and whether or not a district can continue on in perpetuity when there has been an original finding on vote dilution is a question we do not litigate, so we don't take that position.

The real world of this case, juxtaposed with the Department of Justice's statement as to what standard the standard of section 2 liability is, is that both minority candidates won.

They relied, rather than upon the Justice Department, upon self-help.

They found biracial coalitions.

They came out with positions that would appeal to both black and white voters, and they won.

It seems to me anomalous that we are standing here now--

Unknown Speaker: --Does the record tell us what percentage of the black voters voted for them and what percentage of the white voters did?

Mr. Parks: --No, it does not, Your Honor.

Unknown Speaker: Isn't it something like 90 percent of the blacks and 30 percent of the whites?

Mr. Parks: According to the submission of the ACLU in response to our motion to supplement the record, in the fourth district 39 percent of the whites voted for the minority candidate, but as I read a section 2 analysis, for them to be able to come in and show this Court that section 2 required a second majority-minority district as opposed to just a policy decision to create a second majority-minority--

Unknown Speaker: But isn't the issue whether, in 1991, the legislature could reasonably have thought that the Constitution... strike the Constitution... section 2 of the Voting Rights Act required them to have a second minority district?

They would have read Gingles.

They would have read this Court's opinions.

They would have thought that quite possibly, not definitely, section 2 requires a second majority-minority district.

Mr. Parks: --The--

Unknown Speaker: Is that... I mean, and if that's so, why shouldn't the district court have to pay attention to that legislative decision when... instead of just making up its own plan?

Mr. Parks: --Because the State of Georgia in the entire... from the beginning to end of Miller v. I never took the position that the Voting Act... Rights Act required anything more than one majority-minority district.

It never accepted the Department of Justice's argument that there was a fair question on that point.

It made a separate argument that as long as the district was not bizarre, and as long as they felt that diversity in the delegation was a policy choice the legislature was free to make, that they could draw those districts.

That is very different from saying that their decision to draw that district to a two majority-minority plan the first time around was motivated by any believe that section 2 required it.

Unknown Speaker: But normally... normally... I mean, maybe there's a different rule here, but normally I thought you looked at a legislator's... legislature's motive by and large by what they do.

I mean, legislatures are subject always to people threatening them with all kinds of things, and all kinds of people saying all kinds of things.

Mr. Parks: Right.

Unknown Speaker: Are we supposed to look to when Congress enacts something as to whether a Congressman or Senator was under threat that large groups of people would vote for someone else, or someone would bring a lawsuit?

Mr. Parks: Well--

Unknown Speaker: Don't we normally look to what they did?

Mr. Parks: --Your Honor, you're correct, but however, we have an extraordinary case here where we have the State coming and confessing what happened.

But be that as it may, we have a district court's opinion that goes beyond that.

Unknown Speaker: But you're willing to accept as the State's policy that a district court must follow the legislature's incorrect--

Mr. Parks: No, Your Honor.

Unknown Speaker: --perception of the law?

Well, I thought you were in response to Justice Breyer--

Mr. Parks: No, Your Honor.

I'm saying that--

Unknown Speaker: --That if the legislature incorrectly believed that it had to adopt a second district--

Mr. Parks: --It's indefinitive--

Unknown Speaker: --the court, knowing now that it didn't have to, must give--

Mr. Parks: --No.

Unknown Speaker: --No, then--

--give effect to the legislature's mistaken belief that it had to.

Mr. Parks: No, Your Honor.

I--

Unknown Speaker: No.

No.

If the answer's no, then you mean that every plan in the United States that any legislature adopted thinking it was necessary under section 2 is open to relitigation on the question of whether or not it really violates section 2, after all, a matter that's very, very hard to know, and what would be left of leaving to legislatures the power to write voting districts if we accepted that argument?

Mr. Parks: --Your Honor, that argument argues for accepting the district court's opinion.

It stands as a surrogate for the legislature.

It made a best judgment call that section 2 did not require this.

The record does not substantiate a finding that Georgia acted with that intent to adhere to section 2, but for totally different reasons.

There--

Unknown Speaker: Mr. Parks, could you explain one thing to me that does seem connected to the legislative will?

The judge seemed reticent to create a second majority-minority district.

I'm looking at 22a, and this is the spillover of footnote 16.

The judge said that the counsel for the Speaker of the Georgia House of Representatives said that if the court included a second majority-minority district it would be set in stone.

What was the fear that the district judge--

Mr. Parks: --Retrogression, Your Honor, that if the district court acted here without a firm belief that the Voting Rights Act required a second majority-minority district, that retrogression would basically create that district eternally, that it would be forever saddled with it.

Unknown Speaker: --The legislature couldn't change it and eliminate it.

Mr. Parks: Could never change--

Unknown Speaker: Whereas if the legislature wants an additional one, there's no problem--

Mr. Parks: --Absolutely not, Your Honor.

Unknown Speaker: --with the legislature altering the district court's plan.

Mr. Parks: Right, and towards the end of the opinion, Justice Ginsburg, the court makes, I think, a critical point that ties in with the importance of State sovereignty in this area.

It said, were we to do this, were we to take a step that we do not find authorized or justified by the Voting Rights Act, we leave a political footprint on the State of Georgia that will never be washed away.

That, in their view, was a decision that the Georgia legislature could make.

When we talk about intent, let's remember the 1995 special session.

The Georgia legislature could not agree on this issue because of the difficulties the constitutional... this constitutional area of the law presented, so it did not act, and it deferred back to the legislature the opportunity to create that district.

Unknown Speaker: --back to the court.

Mr. Parks: Back to the court, yes, Your Honor.

But it said also this plan is a caretaker plan.

We do no harm with it.

We do only what we were required to do to remedy the constitutional defects and we leave it to the legislature to change that plan should it no desire the next time it comes into session, or it can wait till the next millennium.

Now, that, to me, is giving everybody a little bit of what they want.

It respects State sovereignty.

Seven years of litigation over this plan, three to go before the--

Unknown Speaker: Isn't it correct... isn't it correct, if the district court's analysis of the demographics here is correct the legislature could not create a second majority-minority district?

Mr. Parks: --Well, the legislature can do whatever it chooses.

It will have to--

Unknown Speaker: Well, but not... it can't violate the Constitution--

Mr. Parks: --That's right.

Unknown Speaker: --as construed by a majority of this Court.

Mr. Parks: That's correct, but--

Unknown Speaker: So that then under the demographics, under the findings, they just simply couldn't create a second one, as I understand it.

Mr. Parks: --They could not--

Unknown Speaker: Isn't that right?

If the findings are all correct--

Mr. Parks: --They would face a Miller challenge.

Unknown Speaker: --Sure, and they would lose on the Miller challenge.

Mr. Parks: That's right, but that--

Unknown Speaker: They could bring it to court anyway.

Mr. Parks: --They--

Unknown Speaker: Whereas if it came out the other way they couldn't even get to court.

It's just--

Mr. Parks: --That's correct, Your Honor.

Unknown Speaker: --Retrogression, period.

Is there--

--It's the end of the case.

I'm sorry.

Were you through?

Yes?

Is there evidence in the record that shows the racial distribution in relation to these lines at all?

Mr. Parks: Yes, Your Honor, there is.

I don't have... but the--

Unknown Speaker: Where would we find that?

Mr. Parks: --That is in the record that shows... you're talking about the... each plan, each district and each plan?

Unknown Speaker: That shows us on any kind of map where the--

Mr. Parks: The racial concentrations are?

Unknown Speaker: --The racial concentrations are in Georgia.

Mr. Parks: The record... each map that was put in has a, right next to it a racial map, a racial composition map of those districts, and through the colorations of red, yellow, orange, and green will show you that.

Unknown Speaker: We would find it in the record.

Mr. Parks: It's in the record.

Unknown Speaker: But not in the appendix or anything.

Mr. Parks: That's right, Your Honor.

That's right, Your Honor.

Unknown Speaker: Did you want to comment on the percentage of deviation in the plan that was adopted?

Mr. Parks: I will briefly, Your Honor.

I think that the appellants really are foreclosed from that argument.

Their plan, with the exception of the illustrative plan offered to the district court, had deviations far in excess of what the court plan offered.

I think that the concurring opinion in White v. Weiser, which Mr. Chief Justice Rehnquist joined in back in 1973, really says it all.

We cannot put this down to a question of slide rule precision.

We have an average deviation here of 328 people in districts that total 589,000.

The deviation argument here--

Unknown Speaker: Isn't that the deviation between the two plans, the Abrams plan and your plan?

Mr. Parks: --The illustrative plan--

Unknown Speaker: That's not the absolute--

Mr. Parks: --That's the difference between the illustrative plan, which was their best deviation plan, and the court's plan.

Unknown Speaker: --Yes, but that... it's about 3,000... the court's plan is about 3,000 from a zero variation, is it not?

Mr. Parks: If you added all eleven districts up, the court's plan is better in four districts, the DOJ's plan is better in five districts, and they tied on two.

It came down to a.11 variation for the court's plan average for the districts,.07 for the DOJ's plan, 328 people.

What's happening here, and this speaks to 2000, the deviation argument has nothing to do with the invidious devaluation of a person's vote any more.

It is a way to get in the door to gerrymander.

They didn't divide Muscogee County to reduce the variation.

They divided it to defectively create a majority-minority district in the second congressional district.

That district, when you take out Fort Benning's population... the other reason they gave... which is a nonvoting population, effectively becomes a majority-minority district, and the appellants achieved--

Unknown Speaker: Well, can't people in the military claim residence in Georgia and vote--

Mr. Parks: --Your Honor, they--

Unknown Speaker: --while living in Fort Benning?

Mr. Parks: --They do, but as a--

Unknown Speaker: And some probably do.

Mr. Parks: --That's correct, Your Honor, but as a districting principle, when they design these districts they generally consider military population to be generally nonvoting.

The effect of it is to accentuate the minority vote.

So the deviation issue, in my answer to your question, I think we have de minimis deviation here, and the court more than justified the 328 people by--

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: Thank you, Mr. Parks.

The case is submitted.

Your time expired as you were leaving the lectern.

Mr. Waxman: I'm sorry, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Lopez v. Monterey County - Oral Argument

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

Case:

Lopez v. Monterey County

Media File:

95-1201_19961008-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Joaquin G. Avila

Chief Justice Rehnquist: We'll hear argument now in Number 95-1201, Vicky Lopez v. Monterey County.

Mr. Avila, you may proceed whenever you're... am I pronouncing your name correctly?

Mr. Avila: Yes, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you.

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

The issue before you is whether a district court having enjoined an unprecleared plan can then order that unprecleared plan into effect.

The resolution of this issue is controlled by Clark v. Roemer.

There, the Court unanimously held that an election based upon unprecleared election changes must be enjoined.

Here, the district court ignored Clark, suspended the operation of section 5, and ordered the implementation of the unprecleared plan.

Unknown Speaker: Do we know that section 5 necessarily applies here?

Mr. Avila: Yes, it does apply.

There can be no serious dispute that section 5 applies to judicial elections in Monterey County.

Unknown Speaker: But how about the fact this is basically a State statute, and Monterey, the State of California isn't covered?

Mr. Avila: We are dealing with county ordinances which have consolidated judicial districts starting back in 1969, the date after Monterey County was made subject to the section 5 preclearance provisions.

The applicable State statutes refer and incorporate the consolidations that occurred at the county level, so we had a series of county ordinances... in fact, a total of about 11... that started out with two municipal court districts and seven justice of the peace court districts on November 1st of 1968, and ultimately it winded up with a countywide election system in 1983, and so--

Unknown Speaker: But I guess you stipulated with the county that it is impossible to prepare an election plan that doesn't conflict with State law and still comply with the Voting Rights Act.

Mr. Avila: --That is correct, Your Honor.

Unknown Speaker: And if that's the case, then how do you avoid challenging California State law?

Mr. Avila: Well, at this particular point, there are still--

Unknown Speaker: And how do you do that under section 5?

I mean, it's a very confusing case.

Mr. Avila: --Yes.

Unknown Speaker: And I really would appreciate your addressing this inquiry that the Chief Justice also inquired about.

Mr. Avila: Although we are dealing with State statute, we are also dealing with county ordinances and a consolidations of judicial districts that occurred over a period of time.

Section 5 requires the county ordinances as well as the State statutes that specifically refer to events or consolidations of the judicial districts in Monterey County, and these State statutes specifically referred to Monterey County.

Unknown Speaker: Well, but if it is the State statute that is the operative law, I think it's just not a case where the Voting Rights Act applied.

Surely you wouldn't make the argument if it was the other way around, if the county ordinance mentioned by reference some State law, and then applied... applied the same rule as a matter of county law.

You wouldn't say that the fact that it referred to State law lets the county off the hook.

Mr. Avila: That's correct, Your Honor, but--

Unknown Speaker: So I don't know why it works the other way here.

This is State law we're talking about.

The State isn't a covered unit.

Mr. Avila: --The reason why it doesn't work is because here, Monterey County has the authority to consolidate judicial districts, and it exercised that authority under State law, and so as a result of those consolidations, there were changes which had to be precleared under section 5 of the Voting Rights Act.

Even though you may have had a State statute that implicated those consolidations, it nevertheless specifically referred to the consolidations in Monterey County, and in this particular instance, we have a series of county ordinances which the district court back in 1993 found had not been precleared and could not be implemented, and until those particular county ordinances are approved, the State statutes, which are dependent and interrelated with those county ordinances, can't come into effect.

Unknown Speaker: Mr.--

--Did State law require Monterey County to consolidate?

Mr. Avila: It could, but it didn't in this particular case, and when we look at, say for example--

Unknown Speaker: Well, I mean it either does or it doesn't.

I'm just not clear whether State law requires consolidation of these local judicial offices.

Mr. Avila: --The State laws that are under review in this particular case did not.

The 1983 State statute was contingent upon the consolidations of three judicial districts in Monterey County, and so it specifically referred to this event that was going to occur in Monterey--

Unknown Speaker: So you take the position that the county, Monterey County was free to consolidate or not.

Mr. Avila: --That is--

Unknown Speaker: And what is challenged here was Monterey County's decision to consolidate.

Mr. Avila: --That is correct.

Unknown Speaker: Which was not mandated, according to you, by State law.

Mr. Avila: Under the State laws that are under review, are not... they were not mandated.

Unknown Speaker: And there has never been a determination that there is a substantive violation of section 5 of the Voting Rights Act?

Mr. Avila: That is correct.

Now, the only... this, of course, is just not merely a failure to preclear.

We also have a situation here where, after the district court found these ordinances subject to section 5 of the Voting Rights Act, Monterey County then filed a section 5 judicial declaratory judgment action in Washington, D.C., and subsequent to that filing, we intervened, and as a result of that intervention, as a result of discussion with the Department of Justice, Monterey County decided that it could not meet its burden of demonstrating that several of these county ordinances did not have a retrogressive effect.

Unknown Speaker: Well, it withdrew that suit, I guess.

Mr. Avila: It did.

Unknown Speaker: It dropped the suit, and so that leaves us in a posture, as of now, there's been no finding of a substantive violation of section 5.

Mr. Avila: That is correct.

Unknown Speaker: Mr. Avila, you're not making an alternative argument which I would have thought you would have made, and I'm beginning to think that I'm missing something or you would have made it, and the argument would be this.

Section 5 refers to a jurisdiction which enacts, or which, I think, implements a plan which has not been precleared, so that even if the county took no independent action, and even if the county were doing nothing but administering State law, wouldn't the second clause of section 5 pick it up, so that it would require preclearment even though it was the result of State law and the State is not, as an entire State, a covered jurisdiction?

Wouldn't that be enough to create the section 5 violation?

Mr. Avila: Yes, it would, Your Honor.

If you have a State statute that enables the county to take a particular course of action--

Unknown Speaker: Well, I'm not talking about enabling it to take a course of action.

I'm saying, if you had a state statute that required it to take a course of action, even though the State wasn't covered, and even though the county alone was a covered jurisdiction, by following that State law, the second clause of section 5 would require preclearance, wouldn't it?

Mr. Avila: --That's correct, it would.

Unknown Speaker: But you say that the State law authorized but didn't require consolidation, is that right?

Mr. Avila: The 1983 State statute was in essence based on a contingency of consolidation of three judicial districts which the county board of supervisors at that point authorized, and duly adopted an ordinance consolidating these three judicial districts, but--

Unknown Speaker: Was the county free, after the enactment of the State statute and after consolidating, to go back to the preconsolidation regime?

Mr. Avila: --It was not free under State law to go back to the status quo ante, and the reason why is because the justice of the peace courts were eliminated in 1993 under a State proposition, and at the time of 1968, there were two municipal court districts and seven justice of the court... justice of the peace court districts, and to go back to that procedure was deemed to be unfeasible by the district court, and for that reason the district court found it compelling to issue an order to require an election based on an interim plan for the June 1995 election.

Unknown Speaker: And it was also true that there was a State statute that required countywide courts, isn't that correct?

Mr. Avila: I'm sorry, Your Honor.

Unknown Speaker: Isn't there also a statute, a State statute that requires that the courts be countywide, or am I wrong about that?

Mr. Avila: Under the State statutes and the constitution, State constitution, you could have a countywide municipal court district.

Along... in addition to that, you could also have municipal court districts, several municipal court districts within the county as long as they met certain criteria, as long as they didn't divide municipalities, as long as they contained over 40,000--

Unknown Speaker: Are there such counties in California where you have... unlike this county that now has just one district, are there counties in California that have multiple judicial districts?

Mr. Avila: --There are some counties in California that do have multiple court judicial districts.

For example, Los Angeles County, Alameda County, San Diego County.

Many of the large urban areas have multiple municipal court districts, and Monterey County, back in 1968, did in fact have two--

Unknown Speaker: So the State law that we're dealing with that ratified or approved the consolidations is not part of a Statewide plan.

It's just peculiar to this one covered county, is that not right?

I mean, that law that deals with the consolidation is not like the constitutional provisions that are also in this picture.

Mr. Avila: --That's correct.

Unknown Speaker: But to the extent that California approved what had been done by the county, that's peculiar to this one covered county.

Mr. Avila: The State statute specifically refers to Monterey County.

It auth... the State constitutional provision authorizes the legislature to create countywide municipal court districts, to create multiple municipal court districts if so desired.

In fact, in some of these counties you have... in San Diego County, for example, you have a municipal court district that in fact divides municipal boundaries, so there are various variations that are permitted under State law.

Unknown Speaker: As I take it, what this case presents to us is not the question so much what the court should have done, or might have done, but the question of whether what it did do was wrong, and you're saying what it did do was per se wrong.

Mr. Avila: Yes, Your Honor.

Unknown Speaker: It was clear error.

Mr. Avila: Clear error.

Unknown Speaker: Yes, and that's the only issue before us, I take it.

If we agree with you, back it goes, and people will have to figure out what to do next.

Mr. Avila: That's precisely our point.

If the Court reverses the district court refusal to enjoin its unprecleared election change, then on remand, the district court would then be required to conduct an evidentiary hearing to determine what alternative should be implemented, because it can't go back to the--

Unknown Speaker: Well, it's possible that the only thing before the court at the time it acted was the allegation that no preclearance had been obtained, and perhaps the only thing the court could do was just say, that's right, get it precleared.

Mr. Avila: --Yes.

That was one--

Unknown Speaker: Nothing else.

Mr. Avila: --That... no.

Unknown Speaker: Nothing else.

Mr. Avila: There were other alternatives that the district court could have explored.

Unknown Speaker: Well, I'm not sure there are.

Like what?

Mr. Avila: Well--

Unknown Speaker: I mean, at that stage, with no substantive violation of section 5, what more can the court do except say, okay, get preclearance?

Mr. Avila: --Well, for one thing the district court could have continued to extend the terms in order to permit the State--

Unknown Speaker: Well, even that isn't so clear, is it?

Mr. Avila: --Well, in this particular case the district court did... after the issuance of this Court's stay did extend the terms until further order of the district court and further order of this Court.

Unknown Speaker: Are you actually disagreeing?

I thought your position is, they have to preclear, they didn't, and under Clark, what a district court is supposed to when they don't preclear is say, hold everything.

Nothing happens.

No election, no nothing until you go and preclear.

Am I right?

Mr. Avila: Ordinarily that would be correct.

Unknown Speaker: And isn't that what you want to happen here?

Mr. Avila: Yes.

Unknown Speaker: And you're saying he didn't do that, but under Clark, he should have done it.

Mr. Avila: Yes.

Unknown Speaker: You're... but you have to add one fact to it, extend the terms of judges elected under a plan that the court believes may be unconstitutional.

I mean, the court was concerned about the constitutionality of the plan under which the judges currently sitting were elected, wasn't it?

Mr. Avila: Yes, it was, Your Honor.

Unknown Speaker: So that... that's quite a significant factor as to whether a realistic option is to let those terms continue.

Mr. Avila: Well, there was ample opportunity that was provided to the district court in order to resolve and address that question.

Unknown Speaker: But your case, as I understand it, does not depend upon our so assuming, because all you want, in theory, and all... as I understand it, all that it would take for us to resolve this case, and all that it would have taken for the district court to resolve the case was to order, just as Justice Breyer suggested a moment ago, no election under this plan.

What happens next may be a very serious State problem, but that's not what you require the district court to get into.

All you are asking from the district court is, enjoin the election.

Enjoin the application of an unprecleared plan, period.

Isn't that correct?

Mr. Avila: That is--

Unknown Speaker: And that's all you want us to say.

Mr. Avila: --At this point, yes, it is, Your Honor.

The reason why at some point... maybe not at this particular juncture, but the reason why we're here is because there hasn't been preclearance since 1969, and the State and the county have not come forward with a proposed solution since 1993.

Unknown Speaker: But would you not agree that your position would be different if, instead of the district judge... instead of saying, well, I think there may be a violation of equal protection under Miller and so forth, if the judge had held a hearing and found that the plan in effect was unconstitutional, then we'd have a different case, wouldn't we?

Mr. Avila: That's correct, and I--

Unknown Speaker: Of course, he did not do that, but they just sort of assumed it might be.

Mr. Avila: --And at a minimum we wanted to have an evidentiary hearing so that we could present various alternatives and the district court could then determine whether in fact the 1994 was unconstitutional, but that's not the issue here.

Unknown Speaker: Then why didn't you bring a complaint saying it's unconstitutional?

I mean, why... you said you would like to have had a hearing, but as I understand it, and I may be wrong on this, you had no pleading before the court claiming that the preceding plan was in fact a violation either of section 2 or of the Fourteenth Amendment.

Mr. Avila: I think it's very important to point out that the plan that we're talking about is the 1994 precleared plan, which was a proposed plan that was submitted by the appellants and the county to try to resolve this litigation.

Unknown Speaker: Yes.

Mr. Avila: And it is that plan that the district court felt that after this Court's decision in Miller raised constitutional concerns.

Unknown Speaker: Well, that's right, but that plan was limited in its temporal scope--

Mr. Avila: That's right.

Unknown Speaker: --as I recall.

Mr. Avila: That's correct.

Unknown Speaker: So once again, the only thing that the court had before it as a matter of pleading or complaint was a claim that in the absence of that interim precleared plan there was no precleared plan, and therefore no election should be held, isn't that correct?

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

Unknown Speaker: Yes.

Do you know in your study of this... it seems to me over the last 30 or 40 years it probably has come up before that some covered district had in place a plan that arguably is unconstitutional.

Then, they changed it, and the change has to be precleared, but under Clark, you just keep the status quo until they preclear it, even if that status quo is arguably unconstitutional.

Mr. Avila: That's correct.

Unknown Speaker: Has that situation ever come up before, because that would be a relevant precedent.

Mr. Avila: Well, the typical procedure is to go back to the status quo, and you cannot challenge--

Unknown Speaker: Yes, even if that status quo--

Mr. Avila: --Yes, you can--

Unknown Speaker: --You don't go back to it.

You just say, that's it.

Everything else is frozen.

Now, is there instances where you can think of in your experience or research where maybe that status quo was arguably unconstitutional, but still we want the D.C. Circuit deciding these things, not every district court in the country.

Mr. Avila: --Well, in the... the 10-year litigation that occurred in the Conner v. Johnson, Connor v. Waller, which started off as a one-person-one-vote violation, which there was established, in fact, a violation, and subsequent court proceedings dealt with the remedial issues, and that would be the precedent that I would cite.

I would like to at this time reserve my time for rebuttal.

Unknown Speaker: Very well, Mr. Avila.

Mr. Jenkins, we'll hear from you.

Argument of Alan Jenkins

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

The three-judge court held that the county's electoral system contained voting changes covered by section 5 that had never received preclearance.

This Court's precedents clearly require the district court to enjoin elections under that plan.

As the Court's questions have indicated, first and foremost, a so-called local three-judge court's task is to determine whether changes are subject to preclearance, have been precleared and, if not, to enjoin elections under an unprecleared plan.

Justice Breyer, in response to your question, it has been frequently the case that the status quo ante was an unconstitutional or otherwise unlawful plan.

For instance, when Congress enacted the Voting Rights Act, it understood that a lot of the plans currently in effect would be unconstitutional either under the Fifteenth or Fourteenth Amendment, one-person-one-vote violations and what-have-you, and that for section 5 purposes they could still serve as the benchmark.

That--

Unknown Speaker: But Mr. Jenkins, isn't the problem that this isn't a status quo ante?

Right.

I mean, if we were going back to what it was when they had the district... whatever, the municipal districts and the justice districts.

But here, it's not that we go back to what was and keep it.

There is in... practically for every point of view you can't return.

You can't go back to that old way, so there has to be a different way.

Mr. Jenkins: --Well, Justice Ginsburg, our contention is not that the district court necessarily erred in rejecting a particular plan, but that the option that it chose of allowing elections to go forward under an unprecleared plan was impermissible under this Court's decisions.

We do think that the district court had some remedial alternatives, some flexibility in determining what to do, but that the course that it took was an unlawful choice.

Unknown Speaker: Would we--

--Well, suppose there are two choices, neither of which involves returning to the status quo.

Suppose you cannot return to the status quo.

One is to order preclearance, and the other is to require elections under an unconstitutional plan based on race.

Which of those do you take?

Which is the lesser evil?

Mr. Jenkins: Well, Your Honor, clearly, I think if the district court had done the full-blown Miller v. Johnson analysis, determined that the 1994 interim plan was unconstitutional--

Unknown Speaker: Let's assume that that was the case.

Mr. Jenkins: --Right, and if the only other choice was, if I understand your question, allowing elections under an unprecleared plan--

Unknown Speaker: Yes.

Mr. Jenkins: --Then I think elections would have to go forward under the unprecleared plan.

If the Constitution were to come into direct conflict with enforcement of section 5, that would affect the outcome, but I think that's quite far afield from the situation that's presented here, as--

Unknown Speaker: Mr. Jenkins, why don't you... why doesn't your answer go this way, that given the unconstitutionality on the one hand, an unprecleared plan on the other, that in fact everything has got to stop until somebody comes up with a constitutional plan?

Now, that somebody may be the district court.

If the district court has, in fact, had a complaint register... or filed with it saying the old plan is unconstitutional, the district court finds that it's unconstitutional.

It finds no precleared alternative to the unconstitutional plan, then it's clear that the district court has got... absent anybody's better idea, the district court has got the jurisdiction to fashion a plan.

Isn't that the way out of the dilemma?

Mr. Jenkins: --I think that's correct, Justice Souter, but as I understood the hypothetical, the only two choices were an election under an unprecleared plan--

Unknown Speaker: Right.

Mr. Jenkins: --or an election under an unconstitutional plan.

Unknown Speaker: And I guess I'm saying you shouldn't have accepted the choices as being limited to the two because--

[Laughter]

Because the third choice is, simply file a complaint saying the old plan is unconstitutional, let the district court adjudicate it, and the district court has got remedial authority.

Mr. Jenkins: Well, that's certainly correct under the situation that was actually presented in this case.

There were a number of alternatives.

One alternative could have been simply to prevent elections from going forward and to order that incumbent judges remain in their posts pending preclearance of a permanent change.

We don't know that the 1994 interim plan was in fact unconstitutional.

Unknown Speaker: Well, I mean, I don't know why you give this sort of absolute answer rather than it depending on circumstances.

I mean, it might be the case that the status quo ante was arguably unconstitutional.

The judge has to decide whether to keep that while they go run and preclear, or produce a new interim plan.

Suppose the only interim plan that he's presented with is, give the State just what it wants.

Then his choice is, we give the State just what it wants, or we proceed under the old status quo, which was arguably unconstitutional.

I mean, I don't know whether... which is which.

Isn't it rather fact-specific, and--

Mr. Jenkins: I think that... pardon me.

Unknown Speaker: --circumstance-specific?

Mr. Jenkins: I think that's correct, Justice Breyer.

Unknown Speaker: This is a rather confusing case--

--I don't understand this.

--and I think we're getting confused about what is the old status quo.

I mean, nobody suggested that the old system with the justice courts was unconstitutional.

The question is, when they changed from that, was that in violation of section 5.

Mr. Jenkins: That's correct, Justice Ginsburg.

If I can be clear, there was a system that existed on November 1st, 1968, which has not been claimed to be unconstitutional, but which the district court thought would be difficult or unfeasible to return to.

Unknown Speaker: Because it involved courts that no longer exist in the whole State of California, for one thing.

Mr. Jenkins: That's correct, but I think before allowing elections under an unprecleared system the district court was required, among other things, to analyze whether that system, the preexisting '68 system, could have been adapted in some way to accommodate current circumstances.

We think there were a number of remedial alternatives that were possibilities, as Justice Breyer says, based on the facts of the case.

Unknown Speaker: Did the court have the power to impose any of these remedial alternatives on its own without first making the determination that the extant plan, which would otherwise continue, was unconstitutional?

Mr. Jenkins: Well, we think so, Justice Scalia.

I mean, the 1994 interim plan was a one-time plan, and the elections had already been conducted under that plan, so there was a question as to what would be the further relief that would be ordered so long as no pre... permanent plan had been precleared, but I think the local court had jurisdiction to make that consideration.

Unknown Speaker: Well, I'm not sure why, because the court has got jurisdiction to adjudicate a complaint that's brought in front of it.

The complaint brought in front of it says, this is an unprecleared plan.

The court can adjudicate that, says it is unprecleared, don't use it.

I don't see why the court, absent some further pleading before it, has got jurisdiction to do anything.

If at that point the party says, or some party says, whoops, if we can't use this unprecleared plan, then we've got to decide what's going to happen to the old plan.

If they don't bring a complaint that the old plan is in fact unconstitutional, then I don't know why the old plan wouldn't be followed.

If they do bring a complaint that the old plan is unconstitutional, and the court so finds, then the court has got jurisdiction to make any kind of remedial order.

Why isn't that the regime that we should assume?

Mr. Jenkins: Well, Justice Souter, if I understand your question, I agree with you that it would not have been objectionable for the district court to simply say, no further elections, and judges that were elected either under the unprecleared plan that existed or under the interim plan will simply remain in their posts.

Unknown Speaker: Yes, but I'm suggesting something more.

I'm saying the court shouldn't have done anything more than that.

Mr. Jenkins: Well, I think under certain--

Unknown Speaker: It should adjudicate what's in front of it, and if the only thing in front of it is a section 5 claim, it should adjudicate it and stop.

Before it goes any further, it ought to have another claim to adjudicate in response to which it would have jurisdiction to grant relief.

Mr. Jenkins: --Well, ordinarily that would be correct, and I agree with you that in order to resolve this case, and to order the outcome that the appellants seek, that's all this Court would have to decide.

My point is simply that there was a difficult circumstance presented to the district court here because of the jurisdiction's failure to obtain preclearance, and the possibility that there might be an indefinite period in which no elections--

Unknown Speaker: Yes, but that's--

--That's not the court's problem.

That's not--

--That's the jurisdiction's problem.

All the court has to say is, this hasn't been precleared, period, whereupon it's the problem of the jurisdiction to decide what they're going to do with these judges, continue them or come up with some other plan, but I don't know why it's the court's problem.

Mr. Jenkins: --Well, Justice Scalia, in City of Rome this Court held that in fact the fallback remedy essentially under section 5 is elections under the status quo ante system, and as Justice Gins--

Unknown Speaker: After a finding of violation.

That's a remedy after finding--

Mr. Jenkins: --Well, there was a finding of a violation here, which was the failure to preclear an election system that was covered by section 5, so there was in fact a violation.

If I... there was not--

Unknown Speaker: --I mean a violation that the extant... you know, the system in place, which someone is asking to be stricken down, is a violation.

Mr. Jenkins: --Are you referring to the 1994 interim plan, or are you... which one are you referring--

Unknown Speaker: In this case, none.

I mean, nobody was challenging any particular plan here.

They were just challenging the preclearance.

Mr. Jenkins: --Well, I'd like to leave it with the fact that I think, Justice Souter, you're correct that this Court need not address that question in order to reverse the decision.

If I could address briefly the question of--

Unknown Speaker: What about the situation of the district judge?

The fact that this wasn't precleared, the district court bears some responsibility for that, because the district judge kept insisting, I want you to come up with a plan that satisfies Federal law and State law.

Both parties said they couldn't, so the district judge really had something to do with why we have no precleared anything.

Mr. Jenkins: --Well, Your Honor, that's true, and what I was about to address was the question of State law, and I think Justice Souter in his earlier comment was quite correct that section 5 covers attempts to enact or administer voting changes within the covered jurisdiction.

This Court in the Sheffield case held that section 5 coverage is territorial, and that State laws as well as local laws cannot be enforced within the jurisdiction as to preclearance.

Unknown Speaker: Thank, you, Mr. Jenkins.

Mr. Jenkins: Thank you.

Unknown Speaker: Mr. Stone, we'll hear from you.

Argument of Daniel G. Stone

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

The questions posed to Mr. Jenkins and Mr. Avila suggest what the State would have suggested independently, which is that the context of this proceeding is a very important focus as well as the scope of a covered jurisdiction once it's determined, by virtue of the statutory formula, that a jurisdiction must seek preclearance of voting changes.

The nature of this case, as Justice Souter has suggested, is a complaint for declaratory and injunctive relief.

It's called a coverage case under section 5, and the only inquiry in these cases is whether there is a covered jurisdiction, if so, whether that jurisdiction is enacting or seeking to administer a new change which it has initiated affecting voting rights, and then the third question is, did they first obtain the requisite preclearance?

So in that sense... in our briefs we use the word technical.

I understand that that's a confusing, perhaps a misnomer, but it is a procedural question of whether or not they've done the requisite steps to get Federal approval before implementing something that a covered jurisdiction has initiated.

Unknown Speaker: So if it is established in the Federal district court that preclearance was not obtained, and that it's a covered jurisdiction, what, in your view, could the district court do, beyond simply saying, hold everything, get preclearance?

Mr. Stone: That is the common remedy.

It's a declaration that--

Unknown Speaker: Nothing more.

Mr. Stone: --Nothing more.

Unknown Speaker: On this complaint.

Mr. Stone: Certainly on this complaint.

Unknown Speaker: Well, I take it hold everything means enjoin any further elections.

Mr. Stone: Well, in Clark v. Roemer this Court very strongly suggested that that may be the case.

Unknown Speaker: What should have happened here, in your view?

Could the court simply say, I make a finding, a declaration that there has been no preclearance, and that there should be no preclearance, and stop there, or must he further enjoin elections under the unprecleared plan?

Mr. Stone: In most cases the elections must be enjoined.

This Court--

Unknown Speaker: What should have happened here in your view?

Mr. Stone: --Well, for several reasons we don't believe the elections should have been enjoined here.

Under Clark v. Roemer this Court said that there may be extraordinary circumstances in which an injunction would not be appropriate, and it gave an example, which is one in which the action was filed at the eleventh hour, the election processes were already well-advanced, and that there were equitable reasons why the elections should be permitted to go forward.

Here, the complaint was filed in 1991, and it was challenging 1968 through 1983 ordinances.

In Clark the Court made the point that there was no showing that the plaintiffs were not diligent.

Here, I suggest that quite the opposite fact is true.

Furthermore, as the Court has pointed out, there have been intervening State actions.

The State is not a covered jurisdiction, and the State has... for one thing, the people through an initiative measure have eliminated justice courts altogether.

The State has also enacted statutes, particularly Government Code section 73560, which state as a matter of State law what the municipal court district is in Monterey County, and--

Unknown Speaker: Is it your position that changes by the county pursuant to State law, even if required by State law, need not be precleared?

Mr. Stone: --Yes.

The State... the State is not--

Unknown Speaker: And how do you respond to the "or administer" language in the statute?

Mr. Stone: --Well, I believe that... Justice Stevens, I believe that addresses informal as opposed to formal actions by a covered jurisdiction.

The covered jurisdiction may initiate by promulgating a regulation if it's a county--

Unknown Speaker: So that in your view, even if Monterey County was covered, if the State legislature enacted a whole bunch of changes, it completely redesigned the jurisdiction in ways that were retrogressive, there'd be no... no Federal remedy except under section 2.

Mr. Stone: --Exactly.

There's always the remedy, and several members of this Court have suggested this, there's always the remedy of proceeding under section 2, or the Fourteenth Amendment.

Unknown Speaker: So that in any case of a covered jurisdiction which is less than Statewide, the State legislature basically can preclude any section 5 action simply by enacting a new State statute on your view.

Mr. Stone: If it--

Unknown Speaker: The State can completely defeat the jurisdiction under section 5 and the preclearance requirement.

Mr. Stone: --Well, with respect, Justice Souter, I don't think it defeats the purpose of section 5.

Section--

Unknown Speaker: Well, if this... maybe I misunderstood you.

I thought if the... I thought your position was that if the State was not a covered jurisdiction, and only a... some subdivision of the State was, that if the State enacted a statute which changed the manner of election in the covered jurisdiction, it was not subject to preclearance.

Mr. Stone: --That is our position.

Unknown Speaker: Well, then I think it follows... I mean, that's just an example of a general rule that in any case of a section 5 jurisdiction the requirements of preclearance can simply be eliminated by the adoption by the State of a statute which changes the manner of election in the covered jurisdiction.

Mr. Stone: I agree with that, too.

I just took from the tone of the question--

Unknown Speaker: So there isn't much left of section 5.

Mr. Stone: --Well, of course there is.

The citizens within the covered jurisdiction are still protected against any action of that identified jurisdiction, but the fact that another governmental entity has made some change within its sovereign power that has some effect upon voting rights--

Unknown Speaker: Mr. Stone, when did that become... would you just describe to us, when did that become California's position, because... correct me if I'm wrong about this... I thought that California had itself sought to preclear changes that would affect... changes in State legislation that would affect covered counties.

Mr. Stone: --It's true that the Secretary of State's Office for the State of California does submit on occasion... I don't think it's absolutely every time, but it does submit regularly State statutes and enactments for preclearance, but this Court has never held, and it's been our position throughout this case, to answer your question, that the State is not a covered jurisdiction, and therefore its enactments do not require preclearance.

Unknown Speaker: Even though the State has sought such preclearance when its enactments affect... will make a change in a covered jurisdiction.

Mr. Stone: It has, Your Honor.

The Court is probably aware--

Unknown Speaker: So you're saying that California has acted out of an excess of caution, is that your view?

Mr. Stone: --That is exactly what has happened, and also--

Unknown Speaker: And not on... based on its understanding of the law that it was required to seek preclearance when State law changes voting in a covered jurisdiction.

Mr. Stone: --There's a Department of Justice regulation... I believe it's section 51.23 of 28 Code of Federal Regulations... which suggests that States have that requirement, and in an abundance of caution the Secretary of State's Office has, as a general matter, attempted to obtain preclearance, but this Court has never held that such preclearance is required of an uncovered jurisdiction, and I would suggest that it's a very grave incursion into principles of federalism to do so.

Unknown Speaker: Well, Mr. Stone, I'm not sure that's even an issue here.

Was the... Monterey County free to adopt the plans that it did--

Mr. Stone: The--

Unknown Speaker: --at the time that it took the actions that it did?

Mr. Stone: --Yes.

It's various consolidation ordinances--

Unknown Speaker: It wasn't mandated by State law?

Mr. Stone: --No.

State law permitted the counties to adopt--

Unknown Speaker: But didn't require it.

Mr. Stone: --No, although there's some confusion on the record in that respect.

The county through its counsel in its initial motion to dismiss early on in the case, before we were involved at all, indicated that it required legislative permission in advance, and the--

Unknown Speaker: But that's not your position here.

Mr. Stone: --I think that's right, that the legislative--

Unknown Speaker: And so all of this other discussion about your views of State action and section 5 is not really at issue in this case.

Mr. Stone: --No, I believe they are, Justice O'Connor, because we... the State is now, as you know, a defendant party.

It was made a party for the first time as part of the order that's now on appeal here, and we have argued that because the countywide elections are conducted pursuant to State law, that there's no place for a section 5 proceeding here, the reason being that when the Court in South Carolina--

Unknown Speaker: Well, but to the extent that what was challenged here in the complaint was a failure to preclear a change in Monterey County's municipal and justice court setup, that change you say was not mandated by State law, and to the extent we look at that, I assume that the Court would just determine whether it was or wasn't, and if it wasn't would order preclearance.

Mr. Stone: --Oh, I see, Your Honor.

Unknown Speaker: Why do we get into all this other stuff?

Mr. Stone: I misunderstood your question.

At the time the ordinances were passed, the county had the discretion--

Unknown Speaker: Right.

Mr. Stone: --to design the district--

Unknown Speaker: And wasn't what the complaint alleged?

I mean, that's all that was before it.

Mr. Stone: --But at the time the lawsuit was filed, there was on the books a State statute indicating that the Monterey County Municipal Court District is the entirety of Monterey County... that's section 73560 of the Government Code... and there was this change in the State's constitution, Article VI, section 5, which said that there may no longer be Statewide--

Unknown Speaker: But that wasn't what the complaint challenged.

Mr. Stone: --No, but the point is--

Unknown Speaker: No.

Mr. Stone: --that at the time they filed it, 20 years after the first of these ordinances, things had changed considerably, and the State during that intervening period had dictated what the Monterey County Municipal Justice--

Unknown Speaker: All right, but why doesn't that go to the merits?

I mean, what I can't understand about this case is why has it taken 5 years?

You didn't preclude that... preclear the initial matter, so you have to preclear it.

So why doesn't the State go to the D.C. Circuit, and they would make their argument, which says because of all the factors you bring up, that these single... this single unity and the change in all the judges does not abridge anyone's right.

It does not have the effect to abridge rights to vote on the grounds of race, and they would argue because of the change in the single district, member district, it does.

And then we would have the D.C. Circuit decide all this, take into account your arguments, which are excellent, and their arguments, which are excellent, and then we would get a decision as to whether or not a State does abridge--

Mr. Stone: --Because--

Unknown Speaker: --rights on the basis of race under the circumstances that you outline in your brief.

Mr. Stone: --Our arguments go to whether preclearance is required.

They go first of all to whether a statute enacted by a jurisdiction that has not come within the covered formula is nevertheless subject to preclearance--

Unknown Speaker: All right, so if you disagree that it's not subject to preclearance--

Mr. Stone: --Right.

Unknown Speaker: --why don't you appeal, the district court's judges to the contrary, to the Ninth Circuit?

Mr. Stone: The issue is still open in the district court.

The district court's order that is under appeal here specifically says, now that the State has been made a defendant on this day, November 1, 1995, it shall have the opportunity to raise defenses--

Unknown Speaker: Then why isn't it up to the district court under ordinary precedent to enjoin all elections until it decides that matter, at which point, if you lose you will have to go to the D.C. Circuit, and if you win, you won't.

But Clark says this is an ordinary kind of thing.

When one side says it is precleared, the other doesn't, you keep the status quo, freeze everything, until the district court decides, and it should decide.

Mr. Stone: --Your Honor, that would have been fine.

We would dispute that an injunction should be put into effect until the court is certain that there is in fact a preclearance requirement that was not met.

That remains an open question.

As the Court said in its November order, the State may have this case dismissed on the basis that preclearance is not required.

But your point, Your Honor, about the status quo is very important, because had the plaintiffs and the Department of Justice been content to have an injunction preventing these countywide elections pending preclearance, that would have been fine.

That would have been what Clark says to do.

They instead urged the court, and the court ultimately did their bidding, to fashion a new order, a remedial order.

Unknown Speaker: All right, but can we say bygones are bygones--

Mr. Stone: We cannot.

Unknown Speaker: --whatever happened in the past, now proceed according to Clark?

Mr. Stone: No.

As Justice O'Connor pointed out, this proceeding is simply to determine whether an enactment is subject to preclearance.

Preclearance encompasses not just enactments that harm minority voting rights, it encompasses neutral enactments, and it encompasses enactments that greatly enhance minority rights.

Any of those kinds of actions have to be precleared before they can be implemented, so at this point the mere fact that the court found that this consolidation had to be precleared says nothing about whether there's any substantive harm.

And because there's no substantive harm yet proven or established and because, as Justice Souter pointed out, there's no constitutional or section 2 challenge filed, there's no parallel case, as there was in Allen and Clark and Morse, where the constitutionality of the practices are being challenged, there is... the court has no basis upon which to fashion any remedial order.

Unknown Speaker: Well, is that quite true?

Isn't it true that the county, when it dismissed its objection in the D.C. Circuit action, in effect stipulated that they could not demonstrate that there was no retrogression?

Mr. Stone: Yes.

They stipulated that they were unable to--

Unknown Speaker: Which at least gives the district court a colorable basis for assuming their ought to be some interim remedy until they get preclearance.

Mr. Stone: --Well, I'm not sure it does, Justice Stevens, because the district court... this Court has held, in defining the different kinds of actions that may be brought under the Voting Rights Act, it has specifically said that a coverage case such as this, where the only question was coverage, has no jurisdiction to determine either retrogression, which is expressly limited to the District of Columbia courts, or constitutional violations.

They are all beside the point.

Unknown Speaker: When you say stipulate, Mr. Stone, was there what you would think of as a technical stipulation filed in the district court which stated what you said it stated?

Mr. Stone: As part of these interim orders that they urged the court to order, to direct, the parties stipulated... not the State, certainly, but the parties then existing, stipulated that the county was unable to establish that the ordinances, that several of the ordinances, it wasn't specific, were not retrogressive in that they may have had--

Unknown Speaker: The parties... they stipulated that they couldn't bear the burden of proof of proving that they were not retrogressive?

Mr. Stone: --Yes, of proving that several of them were not, and that was all they stipulated.

There was no... normally in the District of Columbia court, if there's a determination of retrogression the court gives some guidance about what it is that's a problem, and perhaps how it can be remedied.

Here, we don't know which, if any consolidated--

Unknown Speaker: Is it not also relevant that the interim remedy put into effect in December of 1994 was precleared?

Mr. Stone: --That is irrelevant, Your Honor.

Unknown Speaker: That's irrelevant.

Mr. Stone: Yes.

Unknown Speaker: May I get clear on, I guess, a further point there that is raised both by your answer to Justice Stevens and your answer to Justice Breyer?

In an action like this, in which the issue is whether preclearance is required and whether, if so, it has been obtained, and the court concludes that it is required and it hasn't been obtained, is it your position that the Court can enjoin the... an election under the unprecleared plan?

Mr. Stone: Yes.

Unknown Speaker: Okay.

Mr. Stone: And that's the normal remedy.

I believe that's what this Court said in--

Unknown Speaker: And that's the extent of it.

And that's it, period.

Mr. Stone: --Absent extraordinary circumstances that seems to be the limits of this coverage case court's remedial authority.

Now, here in particular, we would argue that the court did not need to enjoin then.

For one thing, as we say, the question of whether preclearance was required is now reopened, because the State is now a defendant, and can argue that the State is not subject to preclearance, and that these elections are conducted pursuant to State law at this late date.

Secondly, that Clark says that there may be extraordinary circumstances which could come into play.

As we pointed out, there was no diligence here.

The process... not in the sense that it was at the eleventh hour and that primaries were going to be held the next day, but in the sense that the State has, since these ordinances, dictated how municipal court elections shall be conducted, those have come to play.

Secondly,--

Unknown Speaker: Well, how is that relevant, because the State might not have made this disposition with respect to this county if it had known that it was under attack?

Mr. Stone: --No.

It's relevant because a noncovered jurisdiction has some substantial say if not dispositive say in the elections as they're--

Unknown Speaker: No, but I'm trying to connect that to the lack of due diligence that you were referring to.

Mr. Stone: --Well, it's the fact that they waited 20 years, permitted a great deal of time in which the State took several actions with respect to justice and municipal courts in Monterey County, so their diligence... had they filed this action immediately after passage of the first ordinance, or the second, or the third, and taken issue with it at the time, then an injunction would have been against the county, I suppose, at least much more clearly.

Now, the State has developed law, including the initiative voted by the entire population of the State, to eliminate justice courts, and that is in the midst... one point to be made about how much the State is involved here is to look at the remedy which they have sought here.

They didn't seek an injunction that would put the status quo... that is, the 1968 system... back in effect.

They sought an affirmative remedial order by the court which, among other things, annulled or suspended State laws.

It annulled or suspended--

Unknown Speaker: Yes, but the interim remedy did accommodate the State interest in having countywide jurisdiction.

I mean, they were trying to accommodate some of the State interest in the particular remedy they selected, didn't they?

Mr. Stone: --Actually, Your Honor, the State interest is not in having countywide jurisdiction.

Mr. Avila was correct that there are municipal courts that are less than county, but the underlying State interest is very much that every voting citizen within a judicial district is entitled to vote for the judges of that district, and that was thrown out the window by the interim plan.

Similarly, there's a State interest, constitutional in nature, that no city shall be split in a municipal court district.

That was thrown out the window.

Unknown Speaker: But only for election purposes, not for jurisdictional purposes.

The interim remedy is countywide for jurisdictional purposes as opposed to election purposes?

Mr. Stone: But that's even worse, Your Honor, than dividing it into--

Unknown Speaker: It's almost as bad as letting a judge be assigned to another district.

It's almost that bad.

At least that's what the district court said.

Mr. Stone: --Yes, and we of course disagree to the extent that it belittled the State's interest.

But the point is, there are constitutional... constitutional provisions that were in existence before even Monterey County became a covered jurisdiction.

These are 1966, the most recent enactments of Article VI, section 5, and Article VI, section 16.

They're 1966.

Even if the State were a covered jurisdiction, a coverage question would have to find that those enactments are not subject--

Unknown Speaker: Mr. Stone, can I interrupt your presentation for one moment, because I understand you're making arguments that really haven't been decided on by the district court.

To what extent does your position rest on the reason given by the district court for the action that's being challenged, namely that it was concerned that Miller, which was decided some 6 months after the interim remedy went into effect, cast constitutional doubt on the interim remedy?

Is that essential to... do you think that that reason was acceptable?

Let me put it that way.

Mr. Stone: --That... yes, Justice Stevens, that in combination with the fact that the interim remedy... and I always put it in quotes... was issued in the first place, because I believe that Miller--

Unknown Speaker: But that's not why the district court set its own remedy aside.

They set it aside entirely, as I understand it, on the basis of Miller.

Mr. Stone: --Well, that's correct, on the basis that it was... substantial questions about its--

Unknown Speaker: Right.

Mr. Stone: --constitutionality came into play.

Unknown Speaker: And my question is, do you think that was a proper way to decide that issue without first deciding whether there was a Miller violation?

Mr. Stone: Well, the court didn't say there was a Miller violation.

Unknown Speaker: No.

Mr. Stone: But I don't see how it could come to any other conclusion, Your Honor.

But let me say that the mix... what we've been talking about is a normal section 5 coverage case where the only question is whether a statute enactment or informal something that a covered jurisdiction seeks to administer requires preclearance and hasn't yet had it.

But when the court decided... it was very ill-advised, we believe beyond its jurisdiction, but it decided to redesign, reconfigure the county court system in Monterey and to suspend or annual State laws and State constitutional provisions.

It then had another order.

That changed the mix entirely, and we submit that the court then had jurisdiction to correct its own error, to eliminate this unconstitutional or substantially unconstitutional order and to put things back where they were.

The court was trying to return to the status quo.

That's why we believe it ordered that there be a one-time countywide election, because when the case first came to this court the judges on the Monterey County Municipal Court had been elected countywide.

The court changed that.

It changed it in a race-based fashion that it was inappropriate to do and the court's November order points out, we don't accept the retrogression stipulation, meaning we now recognize that that's not our domain, it's for the district court in the District of Columbia, and we're not the section 2 court, meaning all these stipulations--

Unknown Speaker: But don't you think that the reason the district judge thought Miller invalidated the plan, or its interim plan, was because the district judge thought that any reliance on race in fashioning the districting would be invalid?

Mr. Stone: --The district court did say that Miller draws into question whether any reliance on race may be invalid, but it didn't go that far.

Unknown Speaker: So do you think it's up to us to decide whether the district court correctly or incorrectly construed Miller?

Mr. Stone: Your Honor, I think the sentence that the court... that you're citing in the court's decision is certainly subject to some scrutiny and clarification, but that was not necessary to the Court's decision here.

In normal cases, including Miller and Shaw, the Court asks about the constitutionality of districting in a context where districting is the normal procedure, and there are normal districting principles... the decennial reapportionments, for instance.

In this case, the traditional districting principle as far as dividing any judicial district in California is, we don't do it.

We do not do it.

Unknown Speaker: Your position here, Mr. Stone, is that you are satisfied with the November 1995 interlocutory injunction, and you ask that the district court's judgment be affirmed?

Mr. Stone: Yes.

My point is that the traditional districting principles, as that phrase is normally used in decennial reapportionments, doesn't apply here.

The districting principles that apply here... districts are designed for administrative convenience in the justice courts, so the notion of it, maybe... maybe in a hearing they could prove that it was contiguous, so what?

Unknown Speaker: It seems to me that affirmance is inconsistent with your basic argument here, which is that all the Court could do was order preclearance.

I mean, how could we affirm?

The petitioners asked the court to do things that it couldn't or shouldn't do, and the court went along with it, and you want us to affirm it, and it looks to me like to be consistent with your view we'd have to reverse, or vacate and send it back and say the only thing on this complaint you could do is order preclearance.

Mr. Stone: Except, Your Honor, that I think the court's most recent order, the November order, was an attempt to correct what it had unfortunately messed up initially.

The court should not have issued the December 1994 order, which injected race, divided the county, it gave 10 percent of the voters within a judicial district the right and power to elect a judge that is sitting over the whole district--

Unknown Speaker: Well, if we should reverse the November 1995 order, that wouldn't necessarily mean approval of the December 1994 order, would it?

Mr. Stone: --Well, but that would then be the status quo, as the Court has used it.

That would be what was left.

That's the trouble.

The court's effort was to correct that and bring things back the way they were initially.

I think that was laudable.

Unknown Speaker: But you would be free to advance all the arguments you've been making here, including the unconstitutionality of that remedy, because those haven't really been ruled on.

Is that not right?

Mr. Stone: Well, the court has not expressly stated that it's remedy, its '94 remedy was unconstitutional, but as I started to point out, the only purpose for the dividing of this district was race.

Unknown Speaker: Yes, I know.

If that establishes unconstitutional, it's an easy issue to decide.

Surely he'll set aside the order if it's unconstitutional, but he just hasn't so held, or they haven't so held... there are three judges... I should say.

I think I'm right on that.

You still can make the argument.

You still may win on this very ground, but that ruling has not yet been made.

Mr. Stone: Well, and at this point it would be moot, except for the extension of terms, because the court was obviously uncomfortable with its remedy in the first place.

Unknown Speaker: Well, if it would be moot, then your answer... then you're not standing by... I think you're not standing by the answer you gave a moment ago that if all we do is conclude here that he should have enjoined the use of the plan that he adopted, that that would restore a status quo ante, and the status quo ante is unconstitutional.

I think you're now saying it wouldn't restore the status quo ante.

Mr. Stone: No, it would, because the court has extended the terms.

But the court--

Unknown Speaker: Oh, because of the court's extension.

All right.

Well then, isn't Justice Stevens correct in his suggestion that all you have to do, if the case goes back in that posture, is to file an appropriate pleading saying this status quo ante is unconstitutional, and you should vacate any order of the court that establishes it?

You... that's open to you, isn't it?

Mr. Stone: --Well, when the Court held its hearing on Miller, that was the question it wanted to address--

Unknown Speaker: Yes, and that's the question... and that's the question that you can litigate if it goes back in the posture that Justice Stevens and I are suggesting.

Mr. Stone: --Well, that's true, Your Honor, although in the meantime the results of that unconstitutional--

Unknown Speaker: That is yet another issue.

That is yet another issue, but you can litigate your Miller claim, can't you, if it goes back?

Mr. Stone: --Yes.

Unknown Speaker: Yes.

Mr. Stone: But on the same token, on these facts this Court it seems to me could very quickly and easily find that under Miller, that--

Unknown Speaker: Well, we don't... I don't know what procedural basis we'd have to be deciding a Miller claim, either.

Mr. Stone: --Well--

Unknown Speaker: We don't even have a map in the record, I don't think.

Mr. Stone: --Well, actually, I did submit a map which shows that there's no--

Unknown Speaker: I couldn't find it.

I--

[Laughter]

Mr. Stone--

--I assume one of the lawyers said it was based on race, but--

--how is the Miller question even ripe if we don't know whether the change needs to be precleared, and we don't know the view of the Attorney General or the D.C. Circuit whether there's any retrogression involved in the countywide system?

How do you even get to the Miller, which would be something else in place of the system that's been found retrogressive?

Mr. Stone: --Well, the principal reason that you know Miller should annul this interim remedy of December '94 is the point made by Justice O'Connor that no substantive harm to voting rights has been established, so any remedy that brings race in at all, any remedy at all is inappropriate in this Court.

Unknown Speaker: But suppose... let's suppose the D.C. Circuit finds you can't have this change because it's retrogressive.

Then what?

If that's what the D.C. Circuit finds, how can you counter the retrogression... retrogression necessarily involves race... without saying, I have to remedy that impact on race?

That's what I don't follow.

Mr. Stone: Well, that's... it would be a very different case if this were in the district court and if retrogression, a substantive violation had been determined.

Then the Court would have options.

Unknown Speaker: But we never even have empowered the right decisionmaker, because it's been frozen in... as I understand it, in the district court within the Ninth Circuit that doesn't have the authority to make that retrogression determination.

Mr. Stone: Well, it's correct that it hasn't yet gotten to any court in which substantive harm can be determined.

Unknown Speaker: Thank you, Mr. Stone.

Mr. Stone: Thank you.

Unknown Speaker: Mr. Avila, you have a minute remaining.

Rebuttal of Joaquin G. Avila

Mr. Avila: I would like to refer the Court to Conner v. Waller as providing authority for the issuance of injunctive relief and additional relief beyond merely the issuance of a permanent injunction.

I would also like to point out that at least in, previously in this Court in Shaw the State is not entirely covered under section 5 of the Voting Rights Act, and only Federal counties, but yet when the State enacts a redistricting plan that affects those counties, those plans that directly affect those counties have to be precleared.

And with respect to the remedy we are urging this Court to reverse the district court's use of the unprecleared election change, and so that the court can then conduct whatever evidentiary hearing needs to be conducted in order to determine what should be the appropriate remedy, and the reason why we have to go beyond the injunction is because there has been... we have to correct the previous effects of elections that were conducted under an unprecleared election system, and that was what the temporary plan did.

We have election systems since 1968, up to the time that the complaint was filed, conducted under an unprecleared election system.

Chief Justice Rehnquist: Thank you, Mr. Avila.

The case is submitted.

Unknown Speaker: The honorable court is now adjurned until tomorrow at ten o'clock.

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