On a threshold matter, this court should hold the courts jurisdiction to entertain statewide political gerrymandering challenges, leaving district specific gerrymandering. I think it is true there is no case that directly helps respondents strongly on the standing issue. You have a strong argument. Suppose the court you have to assume we will know exactly the parameters of it decided this was a First Amendment issue. Not an equal protection issue. With that change the calculus so if you are in one part of the state you have a First Amendment interest in having your party strong or the other party weak . It is still grounded in the right to vote. Folks only vote on their own district. They have more members and congress for example, like a Wisconsin Republican might want more Texas Republicans in congress. But no one would say that you have a First Amendment or first fourteenth amendment right in that sort of circumstance to challenge texas law that you would, for example, argue led to less republicans from texas coming into the u. S. Congress. You want to exercise that right of association with other people elsewhere in the state and if you cant challenge the redistricting throughout the state in your claim seems to be, there is no way to raise your claim. Eliminates the problem of outofstate. That is the way chief justice stated the hypothetical. Relationshipural lets assume that it does. Think this court should be very careful about enacting that kind of doctrine. Political gerrymandering and recent gerrymandering claims will often be raised together. It cannot possibly be the case the person is limited to a single district claim. If they turned on the political screen the plaintiff would get access to the holy grail of a statewide claim. Some years ago this dealt a deliberate attempt by the legislature to make as many africanamerican districts as possible. The effort was to create as Many Republican districts. It doesnt have the same problem . I do not take that raises the same problem. Politics is not a suspect classification like race. To see this is to take a look at a chart that plaintiffs own expert created, and thats available on supplemental appendix 235. This is plain plaintiffs expert studied maps from 30 years, and he identified the 17 worst of the worst maps. What is so striking about that list of 17 is that 10 were neutral draws. There were courtdrawn maps, commissiondrawn maps, bipartisan drawn maps, including the immediately prior wisconsin drawn map. And i think the court should learn two lessons from this list of 17, 10 of which were neutral. The first lesson is that partisan symmetry is simply not a neutral districting criteria. It is not a neutral method of drawing districts. For if it were, all of these commissions would not be drawing partisan asymmetry maps. The second lesson that this court should learn from that from that list is that plaintiffs are asking this court to launch a redistricting revolution based upon their social science metrics. Justice alito before you get too deeply into the merits, which i assume you will want to do in a minute, can i just ask you a question about standing along the lines of those asked by my colleagues . Suppose that it was alleged that town officials in someplace in northern wisconsin where the republicans predominate were discriminating against the democratic candidate for a legislative district by, lets say, not allowing that candidates signs to be put up along the roadsides, but allowing the republican signs to be put up along the roadsides, or they were pressuring town lets just leave it at that. Theyre discriminating with respect to these signs. Now, who would have standing to raise a First Amendment challenge to that . Would it be just the candidate in that district or maybe voters in that district . Or could a a democratic voter in, lets say, milwaukee have standing to raise that First Amendment argument . Mr. Tseytlin i would certainly think, your honor, the candidate would have standing, and i im not so sure about the voters in the district, but probably. But certainly, voters in milwaukee who dont vote for that candidate, theyre not eligible to vote for that candidate any more than someone in california is eligible to vote for the candidate. And i think we see this Justice Alito wait. Im sorry. Certainly, voters in milwaukee you left out would not have standing . Mr. Tseytlin they would not have standing. And i i think we see this from the testimony of of the lead plaintiff, who is the only plaintiff that testified in this case. He was asked, during his testimony, what harm does act 43 put on you, given that you live in a democraticdominated district in madison under any possible map. Well, he said, i want to be able to campaign for a majority in assembly, which shows that his injury has nothing to do with him as a voter. Its just a generalized interest in more wisconsinites more wisconsin democrats being elected, which someone in wisconsin can have or someone outside of wisconsin can Justice Ginsburg may i Justice Kennedy i think were anxious to get to the merits, but one more thing on the sign. Suppose the sign in the southern part of the state had talked about an issue which was very important to the people in milwaukee. Mr. Tseytlin i think that one could frame a hypothetical where, if it was some sort of a home rule thing, where milwaukees right to have certain height buildings was affected, you could have a no longer generalized interest, but we dont have anything like that here. Hi Justice Breyer all right. So can i do this . Because i think the hard issue in this case is are there standards manageable by a court, not by some group of social science political ex you know, computer experts. I understand that, and i am quite sympathetic to that. So let me spend exactly 30 seconds, if i can, giving you, as youve read all these briefs, i have too, this is this is where i am at the moment not that im for this, react to this as you wish, and if you wish to say nothing, say nothing, and its for everybody because its a little complicated. When i read all that social science stuff and the computer stuff, i said, well, what is there a way of reducing it to something thats manageable . So id have step one. The judge says, was there one Party Control of the redistricting . If the answer to that is no, say there was a bipartisan commission, end of case. Okay . Step two, is there partisan asymmetry . In other words, does the map treat the Political Parties differently . And a good evidence of that is a party that got 48 percent of the vote got a majority of the legislature. Other evidence of that is what they call the eg, which is not quite so complicated as the opposition makes it think. Okay . In other words, you look to see. Question 3, is is there going to be persistent asymmetry over a range of votes . That is to say one party, a, gets 48 , 49 percent, 50 , 51, thats sort of the scurve shows you that, you know, whether there is or is not. And there has to be some. And if there is, you say is this an extreme outlier in respect to asymmetry . And there we have eric landers brief, okay . You know that one. And and we look through thousands and thousands of maps, and somebody did it with real maps and said how bad is this compared to, you know, the worst in the country. And then, if all those the test flunks all those things, you say is there any justification, was there any other motive, was there any other justification . Now, i suspect that thats manageable. Im not positive. And so i throw it out there as my effort to take the technicalities and turn them into possibly manageable questions for a response from anyone insofar as you wish to respond, and if you wish to say, i wish to say nothing, thats okay with me. [laughter] mr. Tseytlin thank you, your honor. Id like to talk about the third and fourth aspects of that because i think those are ive already talked about the second a little bit. But with regard to the third, which is persistence, that is exactly the kind of conjectural, hypothetical state of Affairs Inquiry that was submitted to this court in lulac in professor kings amicus brief because, of course, as your suggestion suggested steps recognize, a single election doesnt mean much. A single election, you could have an eg for any particular reason. So you would have federal courts engaging in battles of the hypothetical experts deciding, well, what would it be under this map or that map . So i think thats a nonstarter for that reason. Now, with regard to extremity, this was an arg Justice Kagan well, if i could just stop you there for a second, because i was under the impression that legislators are capable of doing this actually pretty easily now. You know, the world of Voting Technology has changed a great deal, and when legislatures think about drawing these maps, theyre not only thinking about the next election, theyre thinking often not always but often about the election after that and the election after that and the election after that, and they do sensitivity testing, and they use other methods in order to ensure that certain results will obtain not only in the next one but eight years down the road. And it seems to me that, just as legislatures do that, in order to entrench majorities or minorities, as the case may be in order to entrench a party in power, so, too, those same techniques, which have become extremely sophisticated, can be used to evaluate what theyre doing. Mr. Tseytlin well, your honor, legislatures dont have to worry about judicial manageability standards. Legislatures dont have to worry about false positives, false negatives. Legislatures dont have to worry about conjecture. They can Justice Kagan what what im suggesting is that this is not kind of hypothetical, airyfairy, we guess, and then we guess again. I mean, this is pretty scientific by this point. Mr. Tseytlin well, your honor, theyre just estimates. Theyre not all scientific. And let me give you one example from the record. Justice sotomayor im sorry. Theyre estimates where you havent put any social scientist to say that the estimates are wrong. Youve poked holes, but every single social science metric points in the same direction. So there are five of them. Your map drawer is one of them, by the way, the person who actually drew these maps, and what we know is that they started out with the court plan, they created three or four different maps, they werent partisan enough. They created three or four more maps, they werent partisan enough. And they finally got to the final map, after maybe 10 different tries of making it more partisan, and they achieved a map that was the most partisan on the scurve. And it worked. It worked better than they even expected, so the estimate wasnt wrong. The estimate was pretty right. So, if its the most extreme map they could make, why isnt that enough to prove partisan asymmetry and unconstitutional gerrymandering . Mr. Tseytlin well well, your honor, i think the facts in this case, which is what you were discussing, are significantly less troubling than the facts in the cases that this court has previously faced, for example, bandermer and vieth, and thats for two reasons. One, the map drawers here complied fastidiously with traditional districting principles, which was not true in bandemer and vieth. Justice sotomayor but they kept going back to fix the map to make it more gerrymandered. Thats undisputed. People involved in the process had traditional maps that complied with traditional criteria and then went back and threw out those maps and created more some that were more partisan. Mr. Tseytlin thats correct, your honor. And, of course, there were computers used Justice Sotomayor so why didnt they take one of the earlier maps . Mr. Tseytlin because there was no constitutional requirement that they do so. They complied with all state law Justice Sotomayor thats the point. Mr. Tseytlin and they complied with all traditional districting principles. Justice alito can i take you back to to Justice Kagans question about the legislators use of these techniques . Are all the techniques that are used by politicians in order to try to maximize their chances of electoral success scientific . I think they rely a lot on polls, dont they . How scientific have they proven to be . Mr. Tseytlin of course, your honor. Legislatures can very much rest on conjecture whereas courts cannot. If i could reserve the balance of my time. Chief Justice Roberts thank you, counsel. Ms. Murphy. Ms. Murphy mr. Chief justice, and may it please the Court Plaintiffs have not identified a workable standard for determining when the inherently Political Task of districting becomes too political for the constitution to tolerate. Indeed, the only thing plaintiffs have added to the mix since lulac is a wasted votes test that identifies courtdrawn maps as enduring partisan gerrymanders and conveniently favors their own Political Party. Justice kennedy youve probably considered the hypo many times. Suppose a state constitution or state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to increase have a maximum number of votes for party x or party y. What result . Ms. Murphy i think if if you have something that says the ultimate principle that were going to follow is abandon all other criteria in favor of partisan advantage, at least youre closer at that point Justice Ginsburg i dont think i dont think that was the question. It was it satisfies all the traditional criteria, contiguous, but it was a deliberate attempt to maximize a number of seats that republicans would hold. Justice kennedy this is mandated by the state constitution. Ms. Murphy i dont think that in a world where the legislature is required to and is, in fact, complying with a number of other metrics and is as one of those things taking into account partisan advantage, that youve proven a constitutional violation. Justice alito thats not a thats not a manageable standard. Its not a manageable standard that you cannot have a law that says draw maps to Favor One Party or the other. Ms. Murphy i think its Justice Alito that seems like a perfectly manageable standard. Ms. Murphy if its on Justice Alito you cannot have that. Ms. Murphy the face of the statute, i think you have a different scenario because at least at that point, you know the intent. You know theres no debate to have about the intent of what the legislature is doing and if they are intentionally drawing for one purpose or another. Justice kagan but there are plenty areas of law, ms. Murphy, where we look at intent beyond the face of a statute. And, you know, sometimes thats harder than other times. We understand it can be difficult. We understand in other cases it can be easy. But we do it all over the place in our law. We dont we dont say, oh, if its not on the face of the statute, were never going to look at it. So if your answer to Justice Alito is well on the face of the statute, thats certainly a manageable standard, i guess i would ask why not if its not on the face of the statute . But you absolutely you know, but you have good evidence that there was the intent here, and you have good evidence that the intent led to a certain kind of effect, which was to entrench a party in power. Ms. Murphy i think what differentiates this from a lot of other contexts is that here we have opinion after opinion from this court, dissenting opinions, concurring opinions, plurality opinions, what have you, saying that considering politics in districting is not in and of itself inherently unconstitutional. Justice gorsuch ms. Murphy ms. Murphy so just finding the intent isnt a problem. Justice kagan but the Justice Gorsuch id like to go back to Justice Breyers question, and it would be helpful to get an answer for me on that. What criteria would a state need to know in order to avoid having every district and every case and every election subject to litigation . Because the the standard thats given in in the lower court here was, well, a little bit of partisan symmetry problem, a little bit of an efficiency gap problem, not a real set of criteria. And here, you know, is it 7 , how durable, how many elections would we need . How much data would we have to gather . Walk us through Justice Breyers question and provide some answers, if you if you would. Ms. Murphy sure. So i think some of the problems with the criteria that have been suggested, in particular with the test thats focus on these symmetry metrics, is that so far the metrics that we have, i mean, they identify false positives roughly 50 of the time. And i dont know how a legislature is supposed to comply with criteria that cant differentiate between a courtdrawn map and a map drawn for partisan advantage. So, when you start with the partisan symmetry concept, you automatically have the basic problem that you have to have some way to decide what is the appropriate partisan asymmetry. Justice gorsuch okay. But what are the questions you know, i need two years or two cycles worth of data. I need an s curve of a certain shape and size. I need an efficiency gap of something. What are the numbers, what are the criteria wed have to fill in as a constitutional matter in order for a state to be able to administer this . Ms. Murphy well, i mean with all due respect, i i im not convinced that there are manageable criteria for the courts to be putting on legislatures for how to go about this process. And i certainly dont think that anyone in this case has identified that. Justice gorsuch but if you could try to answer ms. Murphy but i would suggest that, you know, one of the starting points for me would have to be that traditional districting criteria should matter in the analysis. If you have a legislature that has started by saying were going to comply with everything that were supposed to do, not only as a legal matter, but also all of these practical constraints, were going to draw districts that comply Justice Ginsburg ms. Murphy, because your time is running out, i would like to ask you whats really behind all of this. The precious right to vote, if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote . Whether its a democratic district or a republican district, the result using this map, the result is preordained in most of the districts. Isnt that what becomes of the precious right to vote . Would we have that result when the individual citizen says i have no choice, im in this district, and we know how this district is going to come out . I think thats something that this society should be concerned about. Ms. Murphy well, a a couple of responses to that, your honor. First of all, its inherent in our districting scheme that there are plenty of people who are always going to be voting in are districts where they know what the result is going to be. And that has nothing to do with partisan gerrymandering; it has to do with the geography of politics and the fact that some of us just live in districts where Justice Ginsburg some of us but ms. Murphy we know that our vote will come out one way or another. Justice ginsburg in wisconsin, before this plan, was it the case that when it was Something Like 49 and 99 districts were uncontested, nobody the election was wasnt contested because the one party or the other was going to win. Ms. Murphy well, i dont think you can quite draw that conclusion from the fact theres uncontested races. I mean, the reality is that Political Parties have to make decisions about where to put their resources, and theyre going to have to do that for reasons that, again, have nothing to do with districting for partisan advantage. They have to do with the fact that drawing districts is always going to reflect political calculations and its always going to be driven by communities of interest, and communities of interest sometimes feel very strongly about one Political Party rather than another. Justice kennedy i have to say that i dont think you ever answered the question if the state has a law or constitutional amendment thats saying all legitimate factors must be used in a way to favor party x or party y, is that lawful . Ms. Murphy i think its on the face of the constitution as a requirement the district must the Legislature Must comply with, then that could be your instance of a a problem that can be actually solved by the constitution, but its quite different to me when you have a facially neutral districting Justice Kennedy is there an equal protection violation or First Amendment violation . Ms. Murphy well, its a little hard to say at this point because, you know, it really just hasnt been fully explored, this concept of how you would come at all this from a First Amendment perspective. I think this comes back to really the standing question Justice Kennedy well, you said theres a constitution there is equal protection . Ms. Murphy i think the question is i mean, it would be who has standing to bring Justice Kennedy well, assume standing. Id like the answer to the question. Ms. Murphy yes. It would be an unconstitutional, if it was on the face of it, and i think that that would be better thought of probably as an equal protection violation, but you could think of it just as well, i think, as a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure, but, again, i Justice Sotomayor could you tell me what the value is to democracy from political gerrymandering . How how does that help our system of government . Ms. Murphy sure. Well, i would point to Justice Sotomayor you you almost concede that it doesnt when you say if a state filed has a constitutional amendment or has a law that says you must comply with traditional criteria, but you must also politically gerrymander, youre saying that might be unconstitutional . Ms. Murphy it might be, but i dont think that necessarily means that districting for partisan advantage has no positive values. I would point you to, for instance, Justice Breyers dissenting opinion in vieth which has an extensive discussion of how it can actually do good things for our system to have districts drawn in a way that makes it easier for voters to understand who they are account who the legislature is. It produces values in terms of accountability that are valuable so that the people understand who isnt and who is in power. Justice sotomayor i really dont understand how any of that what that means. I mean, it its okay to stack the decks so that for 10 years or an indefinite period of time one party, even though it gets a minority of votes, cant get a minor gets a minority of votes, can get the majority of seats . Ms. Murphy with all due respect, you know, i would certainly dispute the premise that the decks are stacked here. At the end of the day, what matters is how people vote in elections and thats whats going to determine the outcomes, as it has in wisconsin where the republicans have won majorities because theyve actually won the majority of the vote in most of the elections over the past four years. Thank you. Chief Justice Roberts thank you, counsel. In justice, and may it please the court. What the state is asking for here is a free pass to continue using an assembly map that is so extreme that it effectively nullifies democracy. As this case illustrates, its now possible even in a 50 50 state like wisconsin to draw a district map that is so reliably and extremely biased that it effectively decides in advance whos going to control the legislative body for the entire decade. Chief Justice Roberts maybe we can just talk briefly about the standing issue. It is a little arresting to have a rule that we establish that when your claim is racial gerrymandering, it has to be limited to your district, you cant complain about racial gerrymandering elsewhere in the state, but here, if the claim is going to be political gerrymandering, you can raise claims about whole statewide issues even if there is no argument that youre gerrymandered, like the First Plaintiff who votes in madison, his vote isnt diluted in any way, and yet he is able to complain about voting anywhere in the state. Mr. Smith well, mr. Chief justice, i think that standing has to follow from the nature of the injury and that follows from the nature of the constitutional violation. A racial gerrymandering claim, a shaw v. Reno claim, is an attack on a particular district for being drawn with excessive focus on race. In that situation, the injury has to be localized to the place where that district is. Partialpartisan gerrymandering has the same word in it, but its an entirely different kind of injury because it involves dilution of votes. Racial gerrymandering is analytically distinct from any dilution case. Chief Justice Roberts what about what about the sign hypothetical . You know, youre up in far north of wisconsin and somebody is taking down the signs for the one candidate in the far south. That affects that individuals the strength of his vote for the statewide purposes. Does he really have standing to complain about that . Mr. Smith well, your honor, i think you could decide that while it might have some de minimis effect on the interest of any democrat attempting to carry out that groups political agenda, that its sufficiently de minimis that you wouldnt want to give standing to people outside the directly affected area. Justice alito why why is it de minimis . It seems to me its exactly the same thing. If you have the system, lets extend it to many towns that are controlled by the republicans and theyre taking down all the democratic signs. And if thats an effective strategy, it will mean fewer members of the legislature are democrats and, therefore, the interests of the democratic voter in milwaukee or madison will be impaired. It seems like exactly the same thing. Mr. Smith well, your honor, if you had a systematic effort in a lot of places by members of one party to prevent the other party from campaigning effectively, i think that anybody in the Democratic Party in the state would have standing. Justice alito all right. Well, lets look at the race issue. So you have a state where there you have an African American voter in in a in one part of the state who wants to complain that districts in another part of the state are are packed or cracked and, as a result of that, there are going to be fewer African Americans in the legislature than there should be. And thats going to impair that persons interests, including, i would suppose, their right of association. What is the difference between those two situations . Mr. Smith well, your honor, thats a section 2 vote dilution claim and i think that the law appropriately limits standing in that situation to people who live in the region of the state where theres an absence of an additional minority district. You wouldnt want to assume that some African American from a different part of the state has a collective interest with people over here in this part of the state just because of race. Thats just stereotyping. But with party, people join the party to to Work Together to achieve a collective end. So youre not chief Justice Roberts well, but thats equally stereotyping. Sometimes people vote for a wide variety of reasons. Maybe the candidate, although hes of a different party, is a friend, is a neighbor. Maybe they think its a good idea to have the representatives from their district to balance out what they view would be necessary likely candidates from other districts. Mr. Smith maybe they do chief Justice Roberts i dont think its any more any less stereotypical to say that people are going to vote for parties because they support everything the party does statewide. Mr. Smith well, but to have standing, i think youd want to find plaintiffs who do that, your honor. And certainly the plaintiffs we have here are thorough going supporters of the disfavored party. Their party has been punished by the law of the state of wisconsin. And i think that the the standing issue ought to be satisfied by the description of what our claim is, which comes right out of Justice Kennedys concurrence in vieth where this is on page 86a of the jurisdictional statement, the white appendix. Its just a twosentence description of our claim First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters representational rights. So the group is is the targeted people, those are the people who have the injury, the injury to their First Amendment interests, and anybody in the group has ought should be able to to bring a First Amendment argument saying Justice Kagan mr. Smith. Chief Justice Roberts mr. Smith do you have standing . Well, Justice Kagan . Justice kagan in a oneperson onevote case, does one person in an overpopulated district have standing to challenge not only that district, those district lines, but the entire state map . Mr. Smith that is true. That is the way that its been handled ever since the reynolds case. Justice kagan and why is that, and does it is it an analogy to this case . Mr. Smith well, its certainly a helpful analogy. Its not exactly the same because they have to live in an overpopulated district rather than an underpopulated district. But those are the people in who suffer vote dilution because theyre living in the overpopulated districts. And the court has said not only does that person have standing to challenge their own district but also to challenge the entire map and make all of the districts closer in population. Thats just the way thats been handled since the 60s. Chief Justice Roberts mr. Smith, im going to follow an example of one of my colleagues and lay out for you as concisely as i can what what is the main problem for me and give you an opportunity to address it. I would think if these if the claim is allowed to proceed, there will naturally be a lot of these claims raised around the country. Politics is a very important driving force and those claims will be raised. And every one of them will come here for a decision on the merits. These cases are not within our discretionary jurisdiction. Theyre the mandatory jurisdiction. We will have to decide in every case whether the democrats win or the republicans win. So its going to be a problem here across the board. And if youre the intelligent man on the street and the court issues a decision, and lets say the democrats win, and that person will say well, why did the democrats win . And the answer is going to be because eg was greater than 7 , where eg is the sigma of party x wasted votes minus the sigma of party y wasted votes over the sigma of party x votes plus party y votes. And the intelligent man on the street is going to say thats a bunch of baloney. It must be because the Supreme Court preferred the democrats over the republicans. And thats going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country. Mr. Smith your honor chief Justice Roberts it is just not, it seems, a palatable answer to say the ruling was based on the fact that eg was greater than 7 . That doesnt sound like language in the constitution. Mr. Smith your honor, first thing i would say in response to that is that those challenges are already being brought. Partisan gerrymandered maps get challenged they get challenged in other ways, under the one person, one vote doctrine, under the racial gerrymandering doctrine, under section 2. And and so youre getting those cases. Most of the the statewide redistricting maps in this country are challenged every 10 years in some way or another. What what would make the system work better is if people could bring a challenge to what they actually think is wrong with the map, which is that its antidemocratic, it decides in advance that one party is going to control the State Government for 10 years and maybe for 20 years because they can replicate it at the end of the 10 years and do it again. That is the real problem. Him and i think what what the court needs to know is its this is a cusp of a really serious, more serious problem as gerrymandering becomes more sophisticated with computers and Data Analytics and a and an electorate thats very polarized and more predictable than its ever been before. If you let this go, if you say this is were not going to have a judicial remedy for this problem, in 2020, youre going to have a festival of copycat gerrymandering the likes of which this country has never seen. And it may be that you can protect the court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like everywhere are going to be like the voters in wisconsin and, no, it really doesnt matter whether i vote. Justice alito well, mr. Smith chief Justice Roberts no, but youre going to take this the whole point is youre taking these issues away from democracy and youre throwing them into the courts pursuant to, and it may be simply my educational background, but i can only describe as sociological gobbledygook. Mr. Smith your honor, this is this is not complicated. It is a measure of how unfair the map is. How much burden can the party Justice Breyer can you say this . Look, dont agree with me just because it sounds favorable, because he wont in two minutes. Can you answer the chief justices question and say the reason they lost is because if party a wins a majority of votes, party a controls the legislature. That seems fair. And if party a loses a majority of votes, it still controls the legislature. That doesnt seem fair. And can we say that without going into what i agree is pretty good gobbledygook . [laughter] chief Justice Roberts and if you need a convenient label for that approach, you can call it proportional representation, which has never been accepted as a political principle in the history of this country. Mr. Smith your honor, we are not arguing for proportional representation. We are arguing for partisan symmetry, a map which within rough bounds at least treats the two parties relatively equal in terms of their ability to translate votes into seats. Thats chief Justice Roberts that sounds exactly like proportional representation to me. Mr. Smith proportional representation is when you give the same age of seats as they have in age of votes. Thats what proportional representation means. And our our claim simply doesnt remotely do that. It says if party a at 54 gets 58 of the seats, party b when it gets 54 ought to get 58 of the seats. Thats symmetry. Thats what the political Scientists Say is the right way to think about a map that does not distort the outcome and put a thumb on the scale. Now what Justice Alito mr. Smith, can i just Say Something ask you a question about the Political Science . I mean, i gerrymandering is distasteful. But if we are going to impose a standard on the courts, it has to be something thats manageable and it has to be something thats sufficiently concrete so that the public reaction to decisions is not going to be the one that the chief justice mentioned, that this threejudge court decided this, that this way because two of the three were appointed by a republican president or two of the three were appointed by a democratic president. Now, its been 30 years since bandemer, and before then and since then, judges, scholars, legal scholars, political scientists have been looking for a manageable standard. All right. In 2014, a young researcher publishes a paper, eric mcghee publishes a paper, in which he says that the measures that were previously the leading measures previously, symmetry and responsiveness, are inadequate. But i have discovered the key. I have discovered the Rosetta Stone and its it is the efficiency gap. And then a year later you bring this suit and you say there it is, that is the constitutional standard. Its been finally after 200 years, its been finally discovered in this paper by a young researcher, who concludes in the end this is the end of his paper after saying symmetry and responsiveness have shown to be looked to be inappropriate, the measure i have offered here, relative wasted votes, is arguably arguably a more valid and flexible measure of of partisan of partisan gerrymandering. Now, is this is this the time for us to jump into this . Has there been a great body of scholarship that has tested this efficiency gap . Its full of questions. Mr. Mcghees own amicus brief outlines numerous Unanswered Questions with with this theory. What do you do in in elections that are not contested . Him well, then you have to you have to make two guesses. How many people would have voted for the winning candidate if it had been a contested election . How many people would have voted for the losing candidate if it had been a contested election . One of the judges in the court below asks why do you calculate eg by map, by subtracting from the votes obtained by the winner, 50 of the votes, instead of the votes obtained by the runner up . And mr. Mcghee says well, i have an answer to this, and i have a forthcoming paper and ill answer it in the forthcoming paper. [laughter] Justice Alito and there are all of these questions. This is 2017 is the time to jump into this . Thats a question. Mr. Smith is there a question there, your honor . Justice alito yes, there is a question there. Theres about 10 of them. [laughter] mr. Smith i would say this if i might, Justice Alito. In vieth, the court appropriately laid down a challenge and said if you want this week the Supreme Court heard oral arguments in a case we will have standards of say we are going to go after you. Anything less serious than that we will leave to the political branches. We have and so the social scientists stepped up and said we have three different ways to calculate asymmetry, not just one. The medianmean measure; the partisan bias measure, where youre equalizing to 50 50; and the the efficiency gap. And in this case, they all come to the exact same conclusion that this is one of the most extreme gerrymanders ever drawn in in living memory of the United States, one of the five worst out of the 230 maps that professor jackman studied. And so there is no theres no question here about this being the maximizing one Party Control as far as they could go. As Justice Sotomayor was saying, they pushed the limits and pushed the limits and pushed the limits. And it Justice Kagan mr. Smith, may i im sorry. Please. Mr. Smith please go ahead, your honor. Justice kagan i i think that this symmetry idea is both an intuitive and an attractive principle. So, if the first question was do you have a substantive principle, i actually think you do. The second question is, is there ways are there ways to make sure that not every district is subject to challenge as violating that principle . And so id like to hear you talk about that. How is it that we are not going to create a world in which in every district somebody can come in and say aha, theres been a violation of partisan symmetry; were entitled to a redrawn map . Whats the threshold . Where do you draw the line . Mr. Smith well, the Justice Kagan because this this it seems to me that this map goes over pretty much every line you can name. Mr. Smith thats true. Justice kagan but where do you draw the line in another case and another case . Mr. Smith well, Justice Kagan, the great virtue of these three different measures, none of which were presented to the court in vieth when i argued the vieth case and i didnt do a very good job is that they each allow you to assign a number to each gerrymander and that allows you to compare them across the country and back in history. And, therefore, it is possible to draw a line. Now, in addition to just measuring the degree of asymmetry, the other thing thats important to do is to measure the likelihood of durability of that asymmetry. And you do that with the sensitivity testing so you make sure you dont have the kind of map that, with a small swing of voting over the next decade, its going to flip over, as the map in pennsylvania in vieth actually did. That if we had the right tests, the ones that im now presenting to you, we wouldnt have won that case in in 2004. But this map is never going to flip over. The evidence is unequivocal that the democrats would have to have an earthquake of unprecedented proportions to even have a chance to get up to 50 votes out of 99. Chief Justice Roberts all of those predictions i mean, bandemer predicted the democrats would never be able to attain a majority. It was 50 50 the next election, and they got a majority the one after that. You already mentioned vieth. It was five days, right, after the District Court said, oh, the i forget who it was republicans are never going to get elected. And they won every single race. Predicting on the basis of the statistics that are before us has been a very hazardous enterprise. Mr. Smith the technique of sensitivity testing, which was done by the defendants expert in the in the process of drawing the map to make sure that they were drawing a permanent, nonflippable gerrymander, and then done again by the experts for the plaintiffs in this case in court and tested by the court, is a a method by which you identify one thing about the map does it have a lot of swing districts in it, a lot of competitive districts in it . Because if it does, you can have a map that looks very biased in one year when all those districts go one way, but it might flip over. That was bandemer. That was vieth. That is not this case. They spent their entire time in that those four months in that locked room doing two things, trying to maximize the amount of bias and eliminating systematically competitive districts, reducing it down to something less than 10 when it had been up around 20, and then even though those 10, they tinkered with it and tinkered with it to make sure that even of that 10, they thought they could get at least seven. They ended up getting eight and then eventually all 10. Justice kagan mr. Smith, are you suggesting that we should be looking for outliers or are you suggesting that we should be trying to filter out all manner of partisan consideration, or is it someplace in between . Mr. Smith your honor, the word outlier is probably an appropriate one. Certainly, we dont think and weve followed the lead of this court in Justice Kennedys concurrence and other decisions of this court that all partisanship is unconstitutional. What you need is a method by which the extreme gerrymander, the one that is fundamentally antidemocratic and is going to last for the full decade, can be identified and held unconstitutional. And that thats the only thing were asking you to do here. Justice gorsuch so, mr. Smith, what is the formula that achieves that . Because the court below didnt rely on efficiency gap entirely. It looked also at the partisan symmetry test. It reminds me a little bit of my steak rub. I like some turmeric, i like a few other little ingredients, but im not going to tell you how much of each. And so whats this court supposed to do, a pinch of this, a pinch of that . Or are we supposed to actually specify its going to be the chief justices formula of the efficiency gap of 7 for the country . Is that what youre asking us to do . What is it that you want us to constitutionalize . Mr. Smith well, your honor, the first thing i want to make clear is is that symmetry is whats being measured by the efficiency gap, by the other two tests that i mentioned. Symmetry is the underlying substantive Justice Gorsuch well, but there are different tests for measuring symmetry mr. Smith right. Justice gorsuch right . Mr. Smith right. There are. Justice gorsuch there is the test you previously proposed. Now there is the efficiency gap test. And the court relied on both and said a little bit a pinch this and a pinch of that mr. Smith right. Justice gorsuch and were not telling you how much of each. So mr. Smith well, i think its fair Justice Gorsuch so that doesnt seem very fair to the states to me, to to know how to what theyre supposed to do to avoid the kind of litigation were talking about. As i understand the efficiency gap test itself, and tell me if im wrong, that it would yield about a third of all the districts in the country winding up in court. Mr. Smith not true. Not true. Justice gorsuch now, thats what the other side says. So tell me where thats wrong and tell me what test youd have this court adopt. Mr. Smith well, first of all, i i would go with the the screens that Justice Breyer mentioned, the first one being it has to be a oneparty state. That onethird figure they keep throwing around ignores the fact that a number of those maps were drawn either by commissions or by courts or by divided legislatures. And so they get those all get taken off the table from the very beginning. If you have a oneparty state, you then have to measure whether its unusually asymmetrical, pretty extreme, and we Justice Gorsuch how . I am still stuck on Justice Breyers question. Mr. Smith you can use the you can use any of those three tests that were all applied here. Justice gorsuch any of them . Mr. Smith yes. Justice gorsuch any any of the three . Mr. Smith and if they dont i i would suggest you apply all of them, and Justice Gorsuch all of them . Mr. Smith if they disagree, that would that would tell you maybe this isnt the right case to be holding something unconstitutional. That might be a fly in the ointment. But the court below did not set the Justice Alito excuse me. Isnt it true that mr. Smith the line im sorry. Justice alito just on that, isnt it true that you could you can get very high levels of very high eg based on factors that have nothing to do with gerrymandering . The political geography can lead to it; protection of incumbents, which has been said to be a legitimate factor, can lead to a high eg; compliance with the Voting Rights act can affect that . Mr. Smith certainly, there are various factors that that other than partisan bias that can lead you to draw a map that does not have a zero eg. In our test, with the intents requirement, the effects requirement, and the justification requirement, all of those problems are taken care of either at the intent stage or at the justification stage. Justice alito how are they taken care of at the justification stage . The proposal is to run many you know, millions of of alternative maps to see whether using some traditional districting requirements, you can produce a map that has a lower a lower eg. But my understanding is that when thats done, those maps do not take into account either incumbent protection or compliance with the Voting Rights act, both of which can have a very big effect. Its just one of the dozens of uncertainties about this whole process. Mr. Smith actually, they do they do take into account the Voting Rights act. The chen study that was discussed in one of the amicus briefs and is discussed somewhat in the merits briefs here, where they he produced 200 randomly generated maps of wisconsin using all the states traditional criteria, he started with the minority districts that were already drawn by the state in act 43 and kept those in place. And so then he generated randomly generated maps, and he found that the degree of bias created by the political geography in wisconsin is minute, modest, a little bit, something just like what the District Court found, maybe 1 or 2 , not even remotely like what they have in the map. And so Justice Kagan would it be fair to require plaintiffs to provide those maps, many, many of them, so that one can tell whether the actual map is an outlier . Mr. Smith well, i think in the cases Going Forward after this these technologies are there, they will be in the record in almost every case. It has become the state of the art. Whether it ought to be something that the plaintiffs have to produce as part of their initial case, id have to think about it. It certainly could be done that way. There are as the lander brief and the and a couple of other briefs and and the the political geographers brief all show, people who have developed a capacity for generating random maps that teach you a lot of lessons about the effects of neutral criteria of where people live and allow you to say that has nothing to do with the degree of bias that we have here. And i think it will become a part of how these cases are decided at the justification stage. It may also become evidence of intent or of of how severe the effects are. It can be useful in a whole variety of ways. Now that, again, social science has stepped up to the challenge. Justice kagan so, for an example, that becomes a way to filter out the effects of geography from the effects of partisan advantage . Mr. Smith yes, your honor. I would say that at the remedy stage, if they if they come back with a remedy map that matches the sort of neutral geography, even if its somewhat favorable to the the party thats in charge, that should be okay. They dont have to go to zero just to at the remedy stage, but they have to come up with something much less extreme than their intentional gerrymandering, one that basically makes democracy no longer function because, basically, gerrymanders now are not your fathers gerrymander. These are going to be really serious incursions on democracy if this court doesnt do something. And this is really the last opportunity before we see this huge festival of new extreme gerrymanders all done along the model of wisconsin but probably even more serious. I i would commend the political scientists brief, which talk about the revolution in Data Analytics that has happened since this map was drawn. Youre going to see people coming in and and slicing and dicing a very polarized electorate to the point where one oneParty Control will be guaranteed. Thats going to become the norm. Indeed, in any oneparty state, if you dont do it that way, theyre going to say, you know, thats malpractice. Why arent you doing what wisconsin did . Justice ginsburg mr. Smith, will you clarify what you mean by oneparty state . Here, we know that the maps were drawn by the republicans and every everybody else was excluded, even some republicans were excluded. But suppose the legislature has a republican majority, but there are democrats, say its 60 40, 40 democrat, and the redistricting is done by the legislature. Does does that count . Would you count that as one party . Mr. Smith i do, your honor. You i think if theres a majority, one party has a majority in both houses of the legislature and the governorship, the fact that there there are some representatives of the other party in a minority status would not negate the possibility that the thing was Justice Gorsuch mr. Smith, is that a is that a republican form of government claim . Mr. Smith i think its a First Amendment claim and equal protection claim. I im not going to try to revive the republican form of government clause at this late stage. Justice gorsuch isnt that isnt that exactly what youre trying to do, though . Mr. Smith no. Justice gorsuch youre saying its a oneparty rule and that would violate a republican form of government guarantee. Wouldnt that be the more specific constitutional provision to look to, rather than the generic equal protection clause . Mr. Smith well, i Justice Gorsuch for that matter, maybe we can just for a second talk about the arcane matter, the constitution. And where exactly do we get authority to revise state legislative lines . When when the constitution authorizes the federal government to step in on state state legislative matters, its pretty clear. If you look at the fifteenth amendment, you look at the nineteenth amendment, the twentysixth amendment, and even the fourteenth amendment, section 2, says congress has the power, when state legislators dont provide the right to vote equally, to dilute congressional representation. Arent those all textual indications in the constitution itself that maybe we ought to be cautious about stepping in here . Mr. Smith well, i dont think theres anything unusual about using the First Amendment and the fourteenth amendment to regulate the abusive management of state elections by State Government. Thats what the court has been doing. Justice ginsburg where did oneperson onevote come from . Mr. Smith thats what reynolds vs. Sims, and baker vs. Carr, did and a number of other cases that have followed along since. And the fact that congress could conceivably regulate this problem under the fourteenth amendment does not mean that the court should not. There is a number of cases, the term limits case, cook vs. Gralike, where congress could have used the elections clause to fix a problem, but the court said, well, in the absence of congressional action were going to regulate an abusive, a misuse of the power to run federal elections, and in this case it is state elections, you would have to rely, congress would have to rely on section 5 of the fourteenth amendment, and maybe they could in theory, but this is a problem which Justice Gorsuch do you see any impediment to Congress Acting in this this area . Mr. Smith other than the facts that politicians are never going to fix gerrymandering. They like gerrymandering. [laughter] mr. Smith this is the problem in this area is if you dont do it, it is locked up. The voters of wisconsin cant get it on the ballot without the legislatures consent. And that is true in both of the states that dont have commissions now. And so you have were here telling you you are the only institution in the United States that can do that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse. Justice alito you paint a very dire picture about gerrymandering and its effects, but i was struck by something in the seminal article by your expert, mr. Mcghee, and he says there, i show that the effects of Party Control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests. So he was wrong in that. Hes right with the eg. Thats the Rosetta Stone, but he is wrong in that. Mr. Smith your honor, i would have to see what that sentence is saying in context. Im quite confident mr. Mcghee does not think that redistricting is not is a nonproblem or that Justice Alito well, thats what he said. Mr. Smith or that gerrymandering is a nonproblem. Thank you, your honor. Chief Justice Roberts thank you, mr. Smith. Mr. Tseytlin, you have five minutes remaining. Rebuttal argument by Misha Tseytlin on behalf of appellants mr. Tseytlin i would like to begin by answering Justice Kennedys question. A facially discriminatory law in a state would violate the First Amendment because it would stigmatize that party. This case this courts cases could not be clearer that when you have neutral lines neutrally, facially neutrally lines, the question is not of partisan intent, because there will always be partisan intent. The question is have the plaintiffs presented a burden on representational rights based upon a limited, precise, judiciallyamenable standard. There has been nothing new presented to this court. Basically what the plaintiffs have done here is they have taken professor kings amicus brief from lulac, they have taken the exact same central concept, partisan asymmetry, and theyve recycled it here. There is nothing new before this court. Second, we have heard something about the various tests that they are now proposing. There was only one test that was subjected to adversarial scrutiny in this case, in a fourday trial. That efficiency gap test proved so fatally flawed that the District Court rejected it as the test and plaintiffs abandoned it as the primary test on appeal. And then my final point about the scare tactics, about what will happen next. Plaintiffs expert did a comprehensive study from 1972 at the when the baker redistricting had happened, to 2014. And he and you can look at that study. The chart on that study is on him supplemental appendix 227. It shows that the asymmetry was worse, was worse in 1972 than in 2014. You are always going to have scare tactics. You are always going to have partisan intent. We have not had any advancement in terms of what has been presented to this court since lulac where this court properly criticized partisan asymmetry as not a neutral standard that has uniform acceptance. And we have asked for those reasons for this court to reverse the District Court. Thank you, your honors. Chief Justice Roberts thank you, counsel. The case is submitted. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] a seriesrk cases, it about the Supreme Court returns in february. We hear the human stories of constitutional drama heard by the high court. Beginning the Supreme Court has agreed to hear a case this term that could have a Significant Impact on privacy. The case raises the question of whether the government obtaining cell phone records without a warrant violates the Fourth Amendment protection against unreasonable search and seizure. Robberiesfrom armed in 2010 and 2011. During the investigation the federal government apply for access to self publication records for the suspects. You can read more at the washington examiner. At 4 30 eastern, andreign on relations challenges related to trade. You can watch online for using the cspan radio app. Its your Radio Station in the Nations Capital the cover 6 million people. Heavily automobile commute city and it will just extend our brand and give people involved in the process here at chance to listen to it. Thats how it happened. It was that simple. Cspan radio, marking 20 years of Public Affairs programming from the Nations Capital. Listen to the washington journal live each morning beginning at 7 a. M. Eastern and here recaps of political events on washington today. 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