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tv   Lamone v. Benisek Oral Argument  CSPAN  June 29, 2019 2:20pm-3:21pm EDT

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was still on the court. the supreme court will be reviewing the challenger's petition in that case. probably when it comes back from summer recess in october. scotusblog. of >> now here's the first oral argument on the supreme court, heard on the topic of partisan gerrymandering. from march, this is an hour. in this case the court should
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reverse and vacate for three reasons. the first amendment retaliation test that was adopted fails to provide a manageable standard because it does not give courts and legislators the means to distinguish between excessive political consideration and those that have been deemed constitutionally acceptable. was this a political consideration? >> i don't think it is, your honor. this is the norm where states receive -- one party receives more than 60% of the vote and congressional elections. >> if that is right in your defense is not really we can't tell the difference between and non-excessive. to doly need 10,000 votes the population measure. moved 66,000kers republicans out of the district,
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flips the composition of the district from 47% republicans and 36% democrats to 45% democrats. effectively insuring the republicans will never win this seat again, and maryland, which has 35% republicans is going to have one republican house member for the foreseeable future. how is that not excessive? >> we assume it is the whole universe. see his new york buildings and not the rest of the country. this one, the sixth district was heavily influenced by the decision that had nothing to do with partisan politics. was to remove a crossing at chesapeake bay.
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justice kavanaugh: that was the goal of 7-1. mr. sullivan: it was. justice kagan: i don't think you should run away from the obvious. justice kavanaugh: i do not think across the bay is a very -- not very persuasive, given all the evidence that this was just 7-1. and to talk with the county that was grouped in west of baltimore, as opposed to just crossing the bay, when everyone is saying they want 7-1, i just don't know if this runs away from the obvious. mr. sullivan: and the change in first district that resulted -- the competitive district they have been able to win to a heavily leaning republican district. justice kavanaugh: well, sure, others goake all the the other way, between 5-3 or
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6-2 or 7-1. the first will be republican for the foreseeable future. it's going to be 7-1. that is the stated goal. sullivan: you have to discount other statements in the record. governor o'malley's statement that with the population growth to the central part of the state, you will see the most changes off the i-270 corridor. justice kavanaugh: the i-270 corridor is a community of interest? mr. sullivan: it is. from independent sources. justice sotomayor: if the idea is to identify the corridor, then it's very simple to put into the eighth district. mr. sullivan: and that democratic area. north was a reasonable direction for it to go. and it was a reasonable
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direction. and as a hypothetical. justice breyer: what we have is a three-part test that you have -- north was a reasonable direction to go. >> hypothetically you get away had these, that what we used the three-part test that you just heard. are 42 bishops, before whom they swear the this just to help democrats. map they used, and the map in statewide elections, the republicans won the 42 bishops. wheel -- willhis make an -- will in fact make a difference of how many republicans there are. and third, is absolutely durable
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get the greatest statisticians in the universe in there. now i have exaggerated enormously. but if that were true, then would you say this court should intervene? mr. sullivan: i'm not sure i understand all of that. justice breyer: if it is in disputed a clear intent to do this just to the democrats to get their district, number two indisputed this will have an effect to give this district to the democrats, and number three a big effect, and number three, it will happen for the next 20 years. so now we have all three parts, i think, if i understand correctly. so on that assumption, would you say that this court should intervene? mr. sullivan: i don't know that we can carry justice breyer, you expressed the need to limit to the extreme circumstance. if you have that circumstance
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you are going to have to intervene in arkansas, kansas, massachusetts, kentucky, tennessee and utah. all states where more than 60% of the votes are cast for one party. it was established and unrebutted in states that have a similar oracle makeup to maryland, you end up with a similar congressional delegation that looks similar to marilyn. so if you are concerned to the extreme circumstance with the current state of affairs, you would not be limiting it to the extreme. you would say get ready, arkansas. justice kagan: why should we assume, mr. sullivan, that everything would stay the same? if the court said something was unconstitutional, don't we usually assume people change their behavior when the court sets down a constitutional role? reason all these politicians are bragging about the amount of
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partisanship they can put into the maps is because they think it is perfectly legal to do so. if the court said it is not illegal to do so, presumably some actors would change their behavior. >> every time there is a governmentng, the and legislators are briefed in the requirements. >> what would be an example of a the drawing of the district would constitute impermissible political gerrymandering? brief wheren our the minority vote getters dictate the results for the majority. that would be a situation where the court ought to remedy that.
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>> they have to start with a , both being controlled by the same party. i don't understand how a minority can force -- can enforce its will. >> in 1962, a democratic governor legislature both houses to take that referendum but they rejected that. and that is in our record. justice ginsburg: and then what happened? mr. sullivan: in this case, it was taken to referendum, and the people overwhelmingly approved it. including and counties where republicans outnumber democrats. justice ginsburg: it is to be understood that from reading it, that most would not understand at all. mr. sullivan: two points on -- three things, first that was
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not litigated in this case. it was litigated in the court of competent jurisdiction in maryland state court, and our immediate appellate court said it was apparent especially in light to explain that referendum question. in the washington grange court, it said that such notices remain in the threat of the voter constituents. justice kavanaugh: you brought it up. you are going to dispute justice ginsburg and say most voters knew what they were voting for? mr. sullivan: this court has not presumed that voters don't understand.
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in the end, the court is going to assume that people are informed them of that they've read the paper. you will find unrebutted testimony that the "washington post" ran three lead editorials, urging the people of maryland to reject this plan, so it was not a secret ballot. it was a big issue in the state, and the people overwhelmingly approved it. justice breyer: what i read is the exact words that people voted for or against. this referendum petition "establishes the boundaries for the state's eight congressional districts face on recent census figures as required by the united states constitution," end quote. is that sufficient? mr. sullivan: if that were the only thing that voters knew, but this court assumes people read the paper, they watch tv, they talk to each other, they have
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forums, as we have had here. justice breyer: with at least a large number of them that this was the only thing they knew, then is it sufficient? mr. sullivan: it is not sufficient for this court to conclude -- its precedent suggests that you have to have proof. justice sotomayor: am i to be understanding you to say that partisan gerrymandering is always -- mr. sullivan: no, not at all. it is just specifically -- justice sotomayor: so that you heard the argument in the case, are you saying that those tests are better, just this one is not -- i am not sure what your position is. mr. sullivan: we only had the experience to litigate with the one test our court used, so we
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do not have the benefit to tell you the informed level of analysis that counsel did in the prior argument. justice sotomayor: well, but, you know, you have had time to -- and i am assuming you would have -- are you ok with any of the tests? mr. sullivan: i am not going to take position, your honor, and it is the plaintiff's obligation to come up with the standard fee or the plaintiff, with the standard they wanted to use in our case, and we are here to argue that that standard is not manageable. justice kavanaugh: you start up brief by saying you agree partisan gerrymandering poses a threat to democracy. mr. sullivan: yes. this court has said that. justice kavanaugh: what should the test be, then? mr. sullivan: i believe there are tests that can be adopted, and this court can come up with them. justice alito:is it your position that what was done in
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maryland would be ok with any test, but you will not tell us what possible testimony you were saying that one test was done here, so we can send it back for the or two i'm a mother test, which you are not going to identify, and then apply that to the facts of your case? mr. sullivan: well -- this court, in davis v. manimer held that the court was reaffirmed by a majority, and that was reiterated in the arizona v. legislature case, and this case would not be here if the court had not found in the first go round that some sort of first amendment standard is not foreclosed by this court's precedents, otherwise -- justice kavanaugh: i will ask you the question, and then asked mr. clement, why is it not in your personal view? mr. sullivan: in my personal view, but it could be.
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justice kavanaugh: could be? you are saying because edition could be interpreted to something closer to representation? then you would lose, wouldn't you? mr. sullivan: no. in light of reality, as both experts have testified in his income or written at least, when one party gets a super majority of the votes, they tend to get a higher percentage of seats than they would get from a straight vote count, and as dr. mcdonald pointed out, if there is any correspondence between those two, it is accidental, because typically it will be highest at the count. so the court has acknowledged that this can be, and i think the court can --
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chief justice roberts: i would like to have you discuss the first amendment a little bit. it seems like the state is taking retaliatory actions and penalizing them for exercising their right by moving them out to a different district. what is wrong with that argument? mr. sullivan: as we explain in the brief, retaliatory analysis has never been used in the round, and to say legislation results because of the party that had more votes was retaliating against the other party's views has been repeatedly rejected since the o'brien case. chief justice roberts: well, you say we have not done in the past, but we have been asked to do a lot of things that have not been done in the past, and it is because there has been a change in how redistricting has been done. i guess i don't understand.
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if you have any other kind of state employee, and you do not like her exercise of first amendment rights, and you fire her, there is pretty well-established analysis for approaching that case. i do not understand why the same would not apply here. mr. sullivan: an important context, elizabeth a policymaking employee, you cannot take into account in legislating political views pretty much at all, but in legislating, political views have to be taken into account, people have to express those political views with the legislature. so those two different contexts, one is where speech is prohibited.
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and legislation where speech is inherent and necessary. chief justice roberts: well, speech against other legislators or against voters? i mean, you think it is all right to retaliate against republicans in the district that were moved out because of how they voted? mr. sullivan: i do not think that is a fair characterization of what voters do, and hear, to the question of who are you retaliating against? washington county, before the districting, was before they help you redistricting, the same county, presumably, the same strong. chief justice roberts: are you suggesting that the redistricting here was not successful? mr. sullivan: well, if you say the intent was a partisan
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intent, then it was successful, yet you still have a district that is capable to vote republican. they voted overwhelmingly for larry hogan, the republican governor. not the district that's locked in for democrats. justice breyer: so that would be the defense so what you can do is use it as a statewide map they want to statewide elections saying a party with 60% of the vote cannot intentionally i have to prove it, intentionally draw the maps to increase the majority beyond two-thirds of the seats. i picked those numbers out, you can use any numbers you want, but to but to get into the idea to look into the mind of the legislators is difficult but not impossible, and then apply it to extreme situations, and i use numbers like two-thirds and
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majorities to show it's not impossible to generate analogous conclusions from the constitution. mr. sullivan: your honor, as the court pointed out with the brief, how they get where they are because some partisan effort would be present when the legislature and the government -- justice ginsburg: when they say they want 7-1, we want to shrink the representation and to achieve that for us. is there any genuine doubt that that is the aim from the beginning to shrink those republican districts by one?
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mr. sullivan: i think there is doubt. i think if you read the entire record, including what governor o'malley elsewhere, in places not quoted by the plaintiffs of the district court, where he said what he wanted was for the constitution and statutes and all caps lot be complied with, and after all that, he would hope that a democrat would be reelected. justice breyer: it is not the case in my mind that every politician considers politics, and so forth, up in the air. of course, you are right, they do, but there is a classical reason the patient should, and the classical reason is that they build the ability in the legislature of voting behavior, so that large shifts do not make large shifts in the legislatures, but if that's the reason, that doesn't apply in the case where the party already control 60% of the seats.
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mr. sullivan: well, we do have a fair amount of stability. justice breyer: yes, that is the problem. i'm not saying it is the solution. you say politicians will consider politics. yes, of course. but our problem is to say when that is too much, and why isn't this too much? mr. sullivan: i think other areas of first amendment law that plaintiffs have cited for you, for example, crawford v. marion county court of elections, they did not care about intent. let's look at what is alleged, identify them, measure them, how much of the burden is on how many people, and then make the call. we did not have that analysis here. there is no measuring, it is any practical difference, is what the court said, sufficient to
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trigger and invalidate a map, and that will happen in every single redistricting. justice alito: you say that partisan gerrymandering is judicial, under which part of the constitution? the elections clause or something else? mr. sullivan: well, i will say under the ethical protection clause -- justice alito: and that is the only one? both of them. your answer is both of them? mr. sullivan: both of them is essentially a source for a standard. justice alito: what is your test under the first amendment? mr. sullivan: i do not have a specific test to propose, but as i indicated to justice breyer, i do think to get away from the standard, where you have a ground, politics, where political aims are endemic. justice alito: do you think the first amendment and equal
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protection dictate the same standards for different standards? mr. sullivan: i would imagine they would have to be different, because you have completely different bodies of case law they have developed, so there has to be some differences. justice alito: you can't tell me the test under the first amendment. what is the test under the equal protection clause? mr. sullivan: it protects intent. justice alito: what degree of intent? justice alito: well, i tried listening to the prior argument, but i lost count where it came out. [laughter] mr. sullivan: in racial gerrymandering -- justice alito: but you are back before the district court. what should you tell the district court, to try to explain to the district court why you should win? mr. sullivan: one of the arguments we make is how, given the plaintiff's delay, which is
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what the court found my son, put this in the categories of cases cited where courts have decided it is not equitable, no longer in the public interest to redraw the map. if you redraw the lines, you change all the of the associational interests, and then you will have the redraw the mouse again within two years' span. justice alito: you think there will be a different map drawn after the 2020 census? mr. sullivan: there will be a different map, because our laws requiring. i would like to reserve whatever time i have left. thank you, your honor. chief justice roberts: thank you, counsel. mr. kimberly. mr. kimberly: thank you, chief justice, and made it please the
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court, when state officials use redistricting to burden a particular group of voters because of their political views, with the express goal of making it harder for that group of voters to win elections, when that goal is achieved, so that group of voters is doomed to electoral defeat under the map, and when the state cannot come forward with a legitimate governmental interest to justify the burdens imposed some of the matt has to be mutually redrawn. that, in a nutshell, is our claim, and all the evidence in our case proves that the 2011 redistricting violated that theory. chief justice roberts: it is a test matched in every particular, except for the one about durability that you mentioned. in every redistricting, partisanship would play a significant role, and you can always do it to one degree or another, it will always have an effect if you focus entirely on durability.
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mr. kimberly: i do think all the court needs to say in this case is the targeted voter to electoral failure is enough to state a claim. i think what is helpful, your honor, is coupling that burden with intent makes sense because that is the intent all map drawers harbor. gerrymandering does not set out to fix at the margin, they set out to fix electoral outcomes. they do not set out to make it slightly easier for their candidates to win for slightly more difficult for their opponents to win, they set out to change the electoral outcomes. all of the evidence is that as of the time that the map was enacted, the map drawers understood that is previously safe republican district would
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become a safe democratic district. justice sotomayor: how do you see your test? you introduced the gengle factors, which the court did not rely on here. you say it implicitly, but it is not anywhere mention that. how does your test differ from the other test, either the legal or the common cause? mr. kimberly: i actually do not see a whole lot of daylight between our test and what is presented in those cases. justice sotomayor: except that your test does not look at durability at all. mr. kimberly: it does not look
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at durability as such. the focus last time was solutions that would make a practical difference versus those that would make a maximum impact, and i think what would be more helpful to focus on rather than what counts as the minimum is to focus on what counts as a practical burden, and we think the great range of cases in which rentable burdens that would be actionable of rise is going to be the situation that i was just explaining to the chief does this, that it is where the maps are set out to doom the targeted voters because of their politics to usual electoral failure under the amount as drawn. that is i think in essence the range of cases in which a practical difference will be made, and i think it overlaps substantially with the league of women voters' approach toward durability. justice alito: if your claim is based on the first minute, doesn't that necessarily mean that partisanship cannot be taken into account at all, not one iota?
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mr. sullivan: no, i do not think so, your honor. justice alito: why is that not so? have we ever said there is such a thing as benign discrimination? you can't discriminate on the basis of viewpoint, but it just has to be small. mr. kimberly: i think most of this work has begun at the justification stage. this might mirror andersen verdict balancing, it does not have to come of it as long as we have a consideration of the way people have voted in the past and make it more difficult for those voters to achieve electoral success -- justice alito: what would be of potential success? mr. kimberly: i think it would be a balance map, pursuit of competitive districts. justice alito: and what is a balanced map? what does that mean? mr. kimberly: a proportional map, so either a 6-2 delegation or a 5-3 delegation. justice kavanaugh: if you set
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out to draw a 5-3, we want to be fair, we have five democratic district and three republican districts, the democrats come individual democrats that you sort into republic industries are going to be able to say we are being deprived of our ability to be treated without reference to our partisan affiliation, our political affiliation, right? mr. kimberly: well, yes -- justice kavanaugh: so doesn't that show that your test -- you said doing a 5-3 would be ok -- mr. kimberly: that is right -- justice kavanaugh: despite the fact that it would penalize voters because of their political affiliation. mr. kimberly: your honor, that is exactly the approach this court takes in their ballot access case. in the hypothetical you described them i think the voters may well have stayed in the case under the first two prongs, but under the justification prong, the state comes back and says although true, maybe they do and maybe
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they don't, but although true -- justice kavanaugh: i am sorry to interrupt, but that shows the driver, i think some of your test, the overwhelming driver, is proportional representation. do you think the constitution requires proportional representation or something close to proportional representation? mr. kimberly: i do not think it does, your honor -- justice kavanaugh: why don't you think it requires it? mr. kimberly: i do not see a textual indication in the constitution itself. justice kavanaugh: the equal protection clause does not suggest you something where political groups are treated roughly equally? mr. kimberly: your honor, if that is the way that you are inclined to think about it -- [laughter] justice kavanaugh: i am asking that everyone seems to be running away from challenging the mass but running away from proportional representation, even though, as you can tell from the questions, there is a suggestion that really it all
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comes back to proportional representation, in some respects. mr. kimberly: your honor, i guess i will answer the question this way. i think the first amendment is probably the better approach for explaining why it may favor proportional representation, but of course there are a range of factors having nothing to do with discrimination against voters on the basis of their political views that may yield a non-political map. justice alito: do you think the first amendment might require or even tolerate the regulation of speech, and in this instance, the speech is the votes for the purpose of providing a proportional representation of viewpoints? mr. kimberly: as i was about to say, i think not. i do not think it requires it. justice alito: does it tolerate it? mr. kimberly: yes. i think that is the inevitable
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conclusion of gaffney against cummings. justice alito: so is there a place in a public park, to get back to the classic example, where it is open to speakers, the city that controls that could say we want to make sure that we have equal speakers on both sides of this question, so we are going to balance the speakers, they can do that? mr. kimberly: your honor, i do not think ruling in our favor requires the court to say that in the least. justice alito: you are saying this is a free-speech case, right? and you are saying it is ok to regulate speech for the purpose of providing proportionality in some sense. mr. kimberly: no, your honor, after gaffney against cummings, we accepted that it is a legitimate state interest to pursue proportional representation in redistricting. if you take that as a given, the sort of claims that the justice kavanaugh was describing would be in fact justified under the third prong. our claim is not an end oriented claim. it is a process-oriented claim. our view under the facts as we have proven them, we are entitled to a mutually redrawn map in which the legislature
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does not use this kind of data with an intent to burden particular groups of voters because of -- chief justice roberts:you would agree if you have a parson-free map, you said, that would be the first time in history, right? mr. kimberly: a mutually drawn, you may? chief justice roberts: yes, mutually drawn, without regard to partisanship at all. mr. kimberly: i cannot say for certain it would be the first time in history, but i could say today, the accepted approach does not require neutrality, but that is precisely the problem. just to finish the point from our position is not having proved for claim that it is favoring republicans, our claim
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is that we are entitled to the redrawing of congressional districts so that it favors republicans. our point is the redrawing of the district in a manner that doesn't select a map by their political views. justice breyer: there is a classical political science point of view, which is very easy -- draw the state districts and imagine populations such as 48% republican, 52% democrat. all right? now suddenly, 3% change. 2.1% change. now, if there is no politics involved whatsoever, i think you can share that means 100% change in the legislature. that cannot be a recipe for american government. if you believe it can, fine, but you would have to show that to me. therefore, people resist to a degree. your statement that, well, no consideration -- call it a stability consideration, but it's still the same consideration.
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i think that many people's problem, and what i'm searching for, anyway, is for you to say, ok i see a stability interest, but how much is too much? and now we've heard from the one side that says here's how you find out. you find out by looking at the intent of the legislature and about what the effect is and whether it is durable. you want to just say that is it, and it is the same argument, it might work. mr. kimberly: i think it is effectively the same argument, your honor. and just to draw a counter distinction, the vote in the degree that took place in the eighth congressional district was roughly the same as that in the sixth congressional district. the vote in the sixth congressional district resulted in a map drawn such that republicans were in the sixth congressional district, were
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doomed to the usual electoral failure. not so with the democrats in the eighth congressional district. and yes, i think as a practical matter the distinction of the court below drew between the deliberate vote dilution that makes practical difference is in effect the same. so we would be perfectly comfortable with the court saying the way we know it is too much is that it is a result of the durable partisan gerrymandered that will resist changes in the politics over the coming decades. that is exactly what is borne out of the evidence in this case. justice gorsuch: what do we do about the referendum? i understand there are questions about how good a referendum that was, but would your test require this court to declare unconstitutional gerrymanders
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that have been approved by the people through referendum themselves, and could this referendum be used otherwise? mr. kimberly: i don't think so. i think the referendum was a red herring. if this had been a racial gerrymandering and had been put to a popular vote in the popular vote had approved them it would still be a racial gerrymandering. justice gorsuch: i completely i completely accept that answer, all right. so in effect, you are asking the court no matter how good the referendum might be, no matter how much the people themselves might approve these lines, this court has to tell them, it's unconstitutional. ♪ [speaking foreign language] >> on the facts of this case, yes, i think that's correct. i want to come back to the question of --
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>> what do you see on the facts of this case? what makes it so here? >> for one, it was the intent that led to the adoption of this map in particular is undisputed. this is not a circumstance where you have, now heyou know, a menu of maps put to the public vote and the public are asked to interdiscretion on which map to choose. it isn't the public in the place of the legislature. the legislature has acted, it has done so in an unconstitutional way. that -- >> because of the uniqueness of this. >> yes, no, that's right. i'm saying on the facts of this case. >> on the facts of this case, whatever the public maps might have been in an open situation, were different than what happened here. >> that's right, that would be a very different case, your honor. >> but just to clarify, and i just want to make sure i understand your position, i'm supposing that the people fully understood the gerrymander that took place, and fully understood there was an alternative, a pure proportional representation, and it would be great, and they rejected it in favor of gerrymandering. now you may say that's outlandish and that isn't
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what happened in maryland but let's just suppose it is. you would still be incumbent, in your view, on a court to declare the gerrymander unconstitutional. >> i want to be clear i understand the hypothetical. the electorate are being presented with an option. you get proportional representation or you get this map, which do you choose? >> yes. >> right. >> i think that's -- >> unconstitutional and we must say so. yes. >> i don't think the court should feel especially troubled about that, for exactly the reason that the map itself is unconstitutional. i want to come back to the question of judiciability. the question is not just whether there is a potential political solution. that doesn't answer the question whether this court bears an obligation to enforce the first amendment in these circumstances. the question here
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is whether the theory that we've put forward before the court as applied in these circumstances entirely defies judicial judgment, so that it cannot be called a legal question at all. and with respect to my friends on the other side, i just don't think there's any basis for saying that. we have this court's opinions in its racial gerrymandering cases, in its racial vote dilution cases, in its ballot access cases, its first amendment retaliation cases and political patronage cases. in all of those contexts, this court finds consistently reliable justiciable situations for burdens imposed here and if they are manageable in that context, they are manageable in this context. >> does your test apply only to districts that are drawn for a partisan, to favor one political party over another or could it apply to retaliation for some other reason? for example, suppose the objection of the map makers is not that this district had voted republican, but it was that the particular person in a
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district, the representative in that district, was a pain in the rear, and so they wanted to get rid of that person. would that be prohibited by the first amendment? >> not under the theory that we've put forward. >> how could you square that with your retaliation theory? >> i want to be clear -- >> i vote for this person because this guy, this is the person that i want, and the map makers say we want this person out of the house, so we're going to draw the map so that person is excluded. i want to vote for this, for my representative, and they're duluth diluting my vote. >> the first amendment retaliation framework we referenced in our briefing is just that, a framework. we don't think there's magic in the particular word itself. the question is whether the state
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officials are deliberately burdening particular groups of voters because of the way those voters have expressed themselves. that does not to me sound like the scenario that you're describing, where the concern in the cases, the behavior of a particular individual, and i might add in addition that drawing an individual out of a district does not prevent that individual from continuing to run as a candidate in that district. >> how much -- >> mr. kimberly i'm wondering how easy it would be for plaintiffs to prevail under your standard in the future. suppose we accepted your test, and we made clear that this kind of behavior was unconstitutional. so you didn't have all these people bragging about how much
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partisan gerrymandering they were doing, right? what makes your case so easy is that everybody was completely up front about what they were doing, as they were in the north carolina case as well, because they think it's legal, so let's say what we're doing. but if we say it's not legal, and that kind of intent evidence just disappears, because you don't find silver bullets like that very often, then what kind of effects evidence would you need to prove your claim? >> well -- >> now, you have all that intent evidence. don't worry, this is not faengt affecting your case. [laughter] suppose people act like normal people and stopped saying all these things, and the next case comes along. what would you need to show intent and effects and causation? >> well, i think to show intent, it would be the same sort of evidence that you would need in
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racial gerrymandering cases. this court deals with that question all the time. i think that part of the -- >> it would really raise the bar, didn't it? >> it would, your honor. >> you would have to show really dramatic effects to be able to infer intent, wouldn't you? >> yes, i think that's right. >> so in fact, this would be the outlier cases. >> i think -- >> this is not an every case in the universe, every district in the universe. >> not at all, your honor. >> but why would you have to show dramatic evidence of effects before you can infer intent? >> well, i think as a general matter, showing intent when you're talking about specific intent rather than general intent which is the standard that the district court below applied and we think is the correct standard i think raises the bar very high. when you don't have direct evidence such as the admissions that we have on our record here, you've got to show -- >> so you think if you have the redistricting controlled by one political party, and it comes out that the districts reflect a
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significant benefit for that particular party, that's not enough to infer an intent to draw the districts with an eye to the partisan effect? >> well, i think here, your honor, that may or may not be so. i think here, though, the question of intent dove tails with the question of justification. if in a circumstance where you have a single party control of the government and you have a badly imbalanced map that might suggest improper intent, as long as the state can come forward with some legitimate justification for the imbalance as it's drawn, and as the court has said in its racial gerrymandering cases, the sorts of political considerations in map drawing are myriad and malliable and involve a delicate balancing of all the factors, all the state has to come forward with is some explanation for the map as it's drawn and the burdens imposed identified by the playoffs --intiffs --
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>> so if you have the record here with no intent evidence, to pick up on justice kagan's question, and it was 5-3, any chance of prevailing on that? >> we don't have evidence of intent and it's a 5-3 map. i think that's a very difficult case. >> how about 6-2? >> i think that's also a very difficult case. >> how about 7-1? >> i think 7-1, it becomes easier to prove intent. there's no question that the results -- >> that's because it deviates from proportional? >> it deviates from proportional, but i think the question also, as i was saying about the third prong is whether there are neutral justifications, and there might be things like geography. here obviously maryland's geography -- >> that's to justify it but it would be a problem. the 7-1 is a problem, 5-3 almost certainly not a problem, which i think has got to be right. >> that's right but isn't to be clear to say our test tends towards proportionality. >> i think if justice, to proportionalty. >> i think just to play out justice justice's hypothetical.
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then it would be a lot on effects and 5-3 would be hard to prove. 7-1 is easy to prove. that sounds like something where something that's balanced, to use your words, which is a word you used, 5-3 would be okay because it's close to the proportion of democrats and republicans in the state. something that's really extreme would not be okay, 7-1, because it deviates so far from the proportion of democrats. >> it's just where there's smoke, you're probably going to find fire. >> another way of putting the test, i know it when i see it? [laughter] >> certainly not, your honor. >> so it sounds like you might be comfortable with justice briar's two-thirds limit. 5-3 is probably okay. 7-1 is not. i mean, that suggests some sort of
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rough mathematical threshold. >> i don't think a mathematical threshold is probably the way to go about it, in large part because every state is different and how the geography plays out in every state is different. and whatever other justifications there will be i'm sure will vary. >> it just seems that what you're saying is that once people stop putting these statements on the record, which they will, then what your test will deliver is a way of going after the worst of the worst and this happens to be one of them. >> i think that's right, your honor. i think we have to give legislators due credit. if this court says that this kind of discrimination against groups of voters is unlawful, i have faith certainly that most legislators will listen and abide this court's teachings. so there is not enough time in between now and the 2020 census to litigate
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any new cases. and so the next round of litigation this court sees after adopting a standard in this case or in north carolina will be after the 2020 redistricting. and presuming that state legislators abide this court's teachings, there's every reason to think that the incidents of extreme partisan gerrymandering will be significantly reduced. we only see it as often as we do today and what is extreme seems less extreme is because this court has not identified a standard to rein in the practice. >> can i isolate the role of geography with this question? >> sure. >> suppose you have a crazy line drawing, something similar to what is in md, but it ends up in 5-3 districts, new problem there? no partisan intent on the record, but the lines are really misshaped but it's 5-3. >> it wouldn't be a first amendment problem. indeed what the evidence shows is there are a lot of reasons to think you
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might still see that. >> if it ends up 7-1, the state's in trouble unless the state could show this fits with county boundaries and town boundaries and city boundaries and actually the geography makes sense and we don't want to divide the bay and all kinds of things like that, right? >> yeah. to be clear, i don't think there are any such justifications in this case. >> i take your point on that. so that's helpful on the geography. they made a point on the sixth district not being durable because governor hogan won. >> it's a difference between what the experts call endemic elections and exogenous elections. on a number of occasions there have been suggestions that legislators are going to act as legislatures. in dedevisevising access to ballots there's no reason those in power
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wouldn't be expected to use that authority to regulate elections to their own partisan ends. yet we do not expect that they may. history is a little bit of perhaps significance there. gerrymandering has been part of american history from the beginning, as pointed out in the >> history is a little bit of perhaps significance there. gerrymandering has been part of american history from the beginning, as pointed out in the previous case. maybe it has been. i don't know that interference with ballot access is on the same level of the air they breathe, as your friend on the other side put it. >> your honor, that may be true, but since the beginning of the republic gerrymander has been recognized also as a
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constitutional offense. i think everybody has understood that it is a constitutional violation. >> your best authority is a newspaper editorial? [laughter] >> certainly not, your honor. the legal tools for this court and article iii courts generally to address this problem haven't emerged until modern times. the incorporation of the first amendment to the states happened in the 1940s.these political patronage cases were decided in the '60s and '70s. >> what does incorporation have to do with congressional districts? >> congressional districting is an act by state legislatures. if state legislatures are cabined by the first amendment, the first amendment has to be a limit on their authority, and that wasn't recognized by this court until the 1940 jzs.
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you said gerrymandering has been recognized as unconstitutional. if gerrymandering is defined as deviation with what you would otherwise get with proportional >> what we take to be partisan gerrymandering is the singling out of groups of voters for redistricting and using redistricting in turn to doom those voters to usual electoral defeat. we think that is a clear violation of the first amendment. i'll just say very briefly, the other explanations that general sullivan has put before the court explaining the shape of the sixth district are all that thely disflatly disproved by the map. that map respects all of the political
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considerations elsewhere throughout the state and does not result in flipping the district to democratic control. thank you. >> five minutes, mr. sullivan. >> i hope not to take all of that time. i think what we've heard if nothing else confirm that is the plaintiff's test and the district court's test does not provide the answer the court is looking for. a test that can tell us when the redistricting has gone too far -- >> why not? you have intent which in this case all the leaders say, yeah, that's what we want to do, reduce the republican representation by one. and then they tell the map maker makers to achieve that result. the result is achieved. and as a result of the map, this will continue into the future.
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why isn't that -- >> well, there's a number of things wrong with that. into the future is not proven at all. the map that was developed, the expert testimony agreed that it was a competitive map. independent sources said it was a plus 2 democratic. in 2010, the last election before the redistricting, democrats across the country won 52 congressional seats in districts that were more democratic than the sixth district in maryland. that these legislators were looking at was not a map that was a lock for future redistricting. it was a very vulnerable map if you look t theat the results with 2010 elections. the reason this test doesn't work, as counsel revealed, is that it abandoned what the members of this court have identified as essential evil of gerrymandering, which is the politicians getting one other onver on the people. in
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this case the people's will was expressed in a referendum overwhelmingly favoring the map. and counsel says this court needs to invalidate that result, which would be directly contrary to what this court has said it wants to get at in gerrymandering, which is the polls deciding where their district lines are going to be. >> you mean if there's a referendum on a map that heavily favors one party and this is a state in which that party is the majority party and the campaign in favor of the referendum is approve this map because this will really favor the party that you like and the majority votes for that. that would be
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different from the legislature doing it? >> yes, it would because it's the people's will being expressed which is the harm that politicians who gerrymander are subordinating the people's will. that didn't happen here. >> so when the legislature does it, the members of which are elected by the people that's one thing? but when people do it districtly,district ly -- directly it's a different thing? >> it is a different thing. the people could not approve a map with unequal population. that's one of this court's precedents. where the debate is, whose first amendment rights are going to prevail? these seven plaintiffs, it's not a class action or the 1.5 marylanders who approved this plan. that's the question that was even attempted for the answer to be provided by the court in this case. this test cannot be the answer to how do we protect the people and their ability to ensure that motions
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do not draw the districts to serve the politicians instead of the people. unless there are any further questions, thank you. >> the root cause is the basic efficient to give responsibility or congressional districting to political actors. they consciously chose to give the primary authority to state

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