Efficient to give responsibility or congressional districting to political actors. They consciously chose to give the primary authority to state legislatures and then to police the possibility that state legislatures which the framers knew to be partisan institutions would engage in too much partisanship. They chose to Structural Solutions by giving authority. Decided the one person, one vote concept, we were pretty much saying certain acts by the legislature are unconstitutional, including race discrimination and others. Be that simply because the constitution says that a particular act is in the hands of one branch of government that that deprives the courts of reviewing whether that action is constitutional or not. Questionose the whether that ship has sailed is one way of presenting the question in front of the court today. I would submit you dont have a onesizefitsall solution for disability and i dont think this fits that. I took the central lesson to be the same claim, essentially, presented as an equal protection presented. En does one person have one vote that counts equally . I take it to be the message of those cases. As one person have one vote that counts equally with others if the impact of her vote is reduced based on her Party Affiliation . The answer is yes. You still have an equal right to vote as an individual. What the parties on the other site are complaining about is not an individual injury. What they are complaining of is their group in a district with too many people who agree with them or too few people that agree with them and therefore their vote is diluted in some way. I dont think that is in the first place a legal interest. Even if they get over the standing problem, i dont think that is an injury. Lots and lots of voters live in a District Court either because of geography or state action, they are not going to have their preferred candidate elected. I would go further and say most americans dont get their preferred candidate elected because they have to choose from the candidates that are before them and may be based on the district they live in, it tends to give them a relatively liberal democrat or a relatively conservative republican and what they would prefer is someone down the middle. None of those things are something you are constitutionally entitled to. Position required to overrule it . It would depend on which way you decide the case. If we decided it in your favor. Yout would still depend if found it on Standing Grounds or disability grants. If you found it in dishabille to grounds, you have to disability grounds, i would be happy to discuss why that is the case. It is a case that has no reliance interests other than the potential reliance interests of litigants. It has not reduced actual results. It is a decision that does not have a strong claim. If you decided the case on Standing Grounds, you would be deciding the case on grounds that are interior to anything the court decided on vendor mirror. If i understand the bottom , you wouldr argument answer the question that one of my i dont want to call him a former colleague, he is still a colleague but no longer on the bench. Justice kennedy asked in one of these cases, it was if the state constitution had a provision that required redistricting to be based solely on partisan about whethert there were any traditional grounds or not, you would say that was constitutional. Say, and it might matters so you frame it, i think if you took a state constitutional provision and try to have it impose, some requirements will apply to every redistricting going forward. You may or may not accept that. You are basically saying, yes, that would mean as occurred here, that almost 50 of one result vote is going to in maybe less than one third of the representation in congress. That is exactly right and i think you put your finger on what my friends on the others precede to be the problem, which is a lack of proportional representation. Know, because all of the tests they are proposing and the District Court looked at did not talk about proportionate representation. It looked at only the opportunity to elect. An opportunity is different. The way this is structured, there is absolutely no , iortunity virtually none am exaggerating slightly. But virtually none, for maybe a Majority Party to elect more than or less than one third of the people they voted for. Differencethat that is implicit in the idea of having districts rather than statewide elections for the congress. Keep in mind the constitutional as originally enacted for constitutional purposes, it is perfectly constitutional for a state to embrace the policy idea that proportional representation is a good thing and implement it by saying we will elect congress not by districts but by statewide vote. To thei take you back Justice Kennedy question that Justice Sotomayor talked about. Im not quite sure i understood your answer. That this ise justices hypothetical come to life in this sense, that there is a particular provision in the legislation that says the partisan makeup of the congressional delegation is 10 republicans and three democrats and the committee will make reasonable efforts to construct districts to maintain that current partisan makeup, 10 and three. It was specifically written into the law that whatever else you do, and there were definitely other things the lawmakers wanted done, but whatever else you do, dont come back they will come back the same tenant three. That was the import of Justice Kennedy question. Can you write that into a law and say that is what we are trying to do here. Responses, one is i did notice every time Justice Kennedy asked that question, he asked at the way Justice Sotomayor did and built in an ocean that you will really enshrine that preference for future elections. I want to drop the footnote that there may be something distinctive. Go do it 10 and three, that is what we want to maintain. I think there is a difference, but i am happy to respond to your question about can you have it as an express criteria for a particular districting. I think the answer is absolutely yes, that is not a problem. I think being candid about it probably serves accountability principles in the long run, which is to say, which i think almost everyone does, that implicitly, that is what the Republican Legislature was doing, in fact they were explicit in their deposition testimony if you look at whites 5 of justice opinion,. His goal was to preserve as Many Republican incumbents as possible. Back to the way Justice Kennedy formula to the question, which hypothesized the state constitution. You made reference to the elections clause. The elections clause says that it is to be prescribed by the times, places and manners are to be prescribed by the toatures of the state the legislatures of the state typically control what is in the state constitution . They dont and that is what i think it is important to figure out. I think Justice Kennedy may have framed that particular question in a particular way. Intot want to go too far the arizona independent redistricting case. I think there is a respectable argument the state legislature means state legislature and not the other parts of the state government. I think it is a separate issue. It could mean the people by referendum. It well could. There are at least four people who agreed with you and i dont want to relitigate that here because i dont think the result in that case i think that case can be taken as a given. Can still send the claims to be as responsive as i can to thei think theres a constitutil problem when a state legislature makes explicit with respect to redistricting they are undertaking at that moment, if they make explicit what was after the record was built up, existed in heaven that they got a map of that was favorable to republicans, that, along with redistricting principles. I think there where you rather criteria was exactly right. The said reasonable efforts would be made. With respect to other items on their list of criteria like continuity, they said, shall. So some things were nonnegotiable. Equal population. Other things were negotiable but different efforts would be made,. In terms of democratic accountability, one of the arguments weve heard is that the Court Must Act because nobody else can as a tactical matter. Arizona, and that is the holding of the court, is that true . To what extent have stayed through their citizen initiatives or at the ballot box in elections amended their constitutions or otherwise provided for remedies in this area . Colorado had af referendum about this in the past. They do that. I am just wondering what is the scope. Of the other place where there can be a solution to this, which is the most obvious one and is a solution the matter what you think of the arizona independent case, is congress. , the veryk at hr. R 1 first bill put on the agenda, it was an effort to basically force states to have bipartisan commissions. It thoroughly shows that congress is able to take action area. S particular i suppose the members of congress are pretty happy with the way district has gone. [laughter] might think, mr. Chief justice, but i dont think the majority of them are. The bill was passed on. Partyline votes. It is a little odd here that weve had all of this supposedly partisan redistricting to benefit the composition of congress and yet the majority of Congress Things they should pass h. R. 1. I just dont know that there is that much of a problem. Contexticular is the context of congressional redistricting. One of the elements of the structural solution was a tell congress, where do you district for yourself. They said, lets have someone closer to the people at the state level do the redistricting. They didnt have the same fox regarding the same henhouse this particular context. You may know want to answer this question. I am trying to understand you. That, absolutely, this is the label. Does this is illegal. But there is no remedy. We cant figure out a remedy. That is where i want you to start. My guess is from the reaction, there was none. Figuream trying to do is out if there is only to catch real outliers. You cant go beyond that. The real outliers. Which are the real outliers . If we look at history, there wasnt that much gerrymandering in the past compared to what there might be with computers in the future. I have tried to figure out something simple. Not going to get every judge in the country mixed up. Not going to lead to every election contested and throw it all to the judges instead of the people. Okay . Anybody can figure it out. Now this is what it is, that if a gerrymander, dahdahdah, is if there is a commission or something, forget it, youre out of court right away. Okay . But, if there is no commission, one Party Controls it, then a gerrymander is unconstitutional if a party that wins a majority of the votes in the state, if they won a majority of the votes by the other party gets more than twothirds of the seats. You see . That would be pretty extreme. But your client might meet it. And the virtue of it, its absolutely simple. By the way, they can try to justify it and then we can use, you know, the landers you know, Something Like those 5 percent things to test the justifications, but there wont be much can be justified. And that twothirds number is not drawn out of thin air. The constitution, in fact, you can find serious matters, overriding vetoes, constitutional amendments, and you can show how gerrymandering wrecks what they assumed for those, but thats a different story, you can find. And it it very rarely would operate, but it would be somewhere. Now have you thought about anything like that . Do you have any reaction . Your reaction would be, no, thats no good, but i mean aside aside from that, have is there anything you want to contribute to thought on that . Mr. Clement well, Justice Breyer, in in all candor, theres so much in that that i disagree with that its a little hard to know where to start. [laughter] Justice Breyer all right, all right. Mr. Clement im going to resist at first the temptation to take issue with the premises, though if i have time ill get back to that. Let me take issue with the two basic prongs of your test. So, first, the reason i think your test has to be a nonstarter is the fact that, as you say, your test would basically give a pass to any state that doesnt use the method prescribed by the framers to engage in congressional districting. So it would be a strike against the state if they actually did what the framers envisioned Justice Breyer wait, wait, wait, wait i am just saying that this is perhaps a start. Im not saying anybody gets a pass. But im saying you wouldnt have to go further than that in this case. Mr. Clement well, i thought i heard you say that if you were a state that used a bipartisan commission, dot, dot, dot you would get a pass. Justice breyer oh, yes, thats right. Thats right. Mr. Clement and that seems to me itself to be remarkably revealing because youre basically saying that it would be a good thing for the state if they chose to use a mechanism other than the one that the framers picked. So thats my big objection to the intent prong. Justice ginsburg not if you not if you say that for this purpose, the legislature is the people. And thats what arizona held held. Mr. Clement well, Justice Ginsburg, in fairness, i think what arizona held is that the people are within that concept, but i certainly dont think arizona stands for the proposition that what the framers had in mind primarily was something other than the state legislatures. So it seems to me its a strike against your test that it identifies as a problem something that the framers would have associated with the primary mechanism they used for redistricting. So on the effects Justice Kagan if i can just interrupt for one second. Mr. Clement sure. Justice kagan i mean, going down that road would suggest that Justice Gorsuchs attempt to sort of say this is not so bad because the people can fix it is not so true because youre suggesting that the people really maybe cant fix it, you were wrong about the people being able to fix it, and if the people could fix it, while its not the constitutionally prescribed way because its never been done before, so Justice Gorsuchs attempts to save whats so dramatically wrong here, which is the court leaving this all to professional politicians who have an interest in districting according to their own partisan interests, seems to fail. Mr. Clement well, i i would disagree, Justice Kagan. I mean, i took the import of Justice Gorsuchs question being that, you know, maybe we can allow the states to solve this problem for themselves. But i think then, when you get at the starting point of Justice Breyers question, which is at a certain point the federal government through its justices and judges are going to intervene and put limits on what the state does. Justice breyer all right, ive got this point, but what im trying to get you to focus on because ive read the briefs, you know, this is the fourth time, but the thing that i will you to focus on, if you can, if you want to, is the twothirds majority idea. Look, my party got a majority of the votes in the state, but we ended up with less than a third of the seats. You see, my tone of voice is meant to be, gee, this is really extraordinary, but there is absolutely a workable standard. Now the next question is all the constitutional arguments youre raising. Im not pushing those under the rug, but, for present purposes, i want you to see if theres any reaction to the practicality of this standard. Mr. Clement i think the way i would respond to that, Justice Breyer, is i am not here to tell you that if the constitution included a one standard deviation from proportional representation clause or a onethird twothirds clause, that judges somehow would be incapable of administering that clause. So i think the fundamental problem is there is no one standard deviation from proportional representation clause in the constitution. And, indeed, you cant talk even generally about outliers or extremity unless you know what it is youre deviating from. And i take it, implicit in your question and implicit in Justice Sotomayors question, that whats bothering people is a deviation from a principle of proportional representation. Justice kagan well, mr. Clement , you keep saying that, but i dont quite think that thats right given the Statistical Analysis in this case. I mean, youre quite right that this court in the past has said this country does not run on proportional representation and this is a hangup in our ability to solve this problem. But what is quite interesting about the Statistical Analysis in this case is that quite a lot of it does not run off a proportional representation benchmark. In other words, all the computer simulations, all the 25,000 maps, right, really do take the political geography of the state as a given. So, if democrats are clustered and republicans arent, thats in the program. And all the other redistricting requirements or preferences, like contiguity, like following natural boundaries, thats all in the program. So the benchmark is not proportional representation. The benchmark is the natural political geography of the state plus all the districting criteria, except for partisanship. And if you run those maps, right, what did you get . You got 24,000 maps and this and 99 percent of them, 99 plus percent of them, were on one side of the map that was picked here. All of those maps show that a 10 3 configuration is not the natural one. And its not the natural one not because its not proportional representation. Its just not the way anybody can district, given the actual political geography on the ground, unless you absolutely try to overrule that political geography. Mr. Clement so, Justice Kagan, two points. One is, i mean, im happy to respond to the maps, but i do think Justice Breyer, in fairness, did build in a notion of proportional represent Justice Breyer no, i dont think it does for this reason. The reason is all it says is a part Justice Kagan well, yeah, i coit. I want you to come back to Justice Breyers question, but mr. Clement okay. I just Justice Kagan i want you to answer mine. Mr. Clement i sure thought we were talking about proportional representation. As to the maps, you know what i found striking about the maps, and i think this is different from what you found striking about the maps, but, first of all, you can do this 24,000 different ways. So that seems like this is about as discretionary a government function as one could imagine. And if you go all the way back to marbury versus madison and what makes something a political question, it is a purely discretionary function. You can do this 24,000 different ways. The second thing i found Justice Kagan well, thats making lemonade out of lemons. [laughter] mr. Clement well, let me let me try to make can i make Justice Kagan you can do it 24,000 different ways and 23,999 produce an outcome thats less partisan than the one the legislature picked here. [laughter] mr. Clement but, see, what i think is remarkable is actually that what the statistics show, and this is on page 162 of the of the jsa, is that if you run 24,000 maps with partisanship taken out entirely and you just use traditional principles, you get 162 different maps that produce a 10 3 republican split. So, yeah, its 1 percent, its. 7 percent, just to be clear. Thats 162 different ways to get to a 10 3 map that didnt take politics into account at all. Justice alito but, if you have 24,000 maps that satisfy all of the socalled neutral criteria that you put in your Computer Program, dont you need a criterion or criteria for deciding which of the 24,000 maps youre going to choose . And implicit in Justice Kagans comments is the idea, is it not, that you have to choose one that honors proportional representation . You have no other criteria for distinguishing among the 24,000 maps. Mr. Clement i think thats right. And at a bare minimum, it has to be that those 162 Justice Sotomayor why, mr. Clement . Mr. Clement because theyre over here, are off limits. Justice sotomayor mr. Clement, lets go back to the why of that. You keep talking about proportional representation, but its not, because what was shown is that 99 percent of the time you get a map that is more fair to both parties than the one that was chosen. And so the issue is you can you can have 162, 164, but what you cant do in picking that 1 percent of a map is discriminate against a group of people based on their political views. We have a legion of cases that say you cant treat Political Parties differently because its an equal protection violation. And its the same thing, whether its because of their speech or their activities. What were telling you is pick any other map you want; just dont split counties, as was then here based solely on your political views, because counties were split. Dont pick, you use saving an may incumbent, but dont kick one out because by kicking one out, and there is a map that would keep all of the incumbents in place, dont kick one out because youre excluding people based on their political views. This is what this is about. Youre discriminating on the basis of a groups speech and diluting their vote accordingly. Mr. Clement so, Justice Sotomayor, i would have three points, if i could get them out. I mean, one is the key word in your question is fair. And what makes this unfair, i would submit, at the end of the day, is some principle of proportional representation. Nobody thinks its unfair, i dont think, that republicans in massachusetts under the current maps are never going to be able to elect somebody to Congress Even though theres Something Like 35 percent of the population, nobody thinks thats unfair, because you really cant draw districts to do it because theyre evenly distributed. It might be unfortunate for them, but i dont think its unfair. And what makes this unfair is some conception of proportional representation and the ability to do it. Justice breyer yes, thats true, but, look, party a gets over and over and over 55 percent of the votes. . Party b, every single time, gets 90 percent of the seats. Now, if you want to call that a proportional representation problem, do it, but im limiting to that kind of thing. I mean, its not proportional representation. Its a problem of seeing a legislature reflect to some degree, you know, the views of the majority of people that elect its members. Mr. Clement so, Justice Breyer, let me say why i dont think thats such a horrible problem and let me try to put whats on the other side of the ledger. So why i dont think thats a horrible problem is even if its as you described, whats going to happen in almost every state in the union, if that happens, is the 55 majority will elect to statewide office governors, attorneys general, and the like, and the next time around theyre not going to be able to pass a map and the next time around itll probably end up in gridlock and a judicial line drawing. I dont think thats the happiest result in the world, but it means that youre not going to be able to perpetuate this in the long run. Now here is whats on the other side of the ledger and then ill try to sit down and reserve my time. Justice kavanaugh may i Justice Kagan well, let me just give you a different, you know, a 49 state, which is more like what North Carolina is, so a 48 48 or 49 state might not find it so easy to do that. And yet, that 48 or 49 in this map is consistently being represented by 25 give or take, of the legislature. Mr. Clement well, and and i dont think anybody has a solution. I dont know. 48 , i think gerrymandering is sufficiently unpopular, as proven by history, that the 48 might get elected, but if you are 35 nobodys got a solution , for you. So heres whats on the other side of the ledger, which is, all right, i think these problems, as Justice Oconnor, who probably more than anybody who sat on this court recently had her finger on the pulse of state electoral politics, said this problem is largely selfhealing. But, on the other side of the lens, on the other side of the weight, rather, if you get in the business of adjudicating these cases, these cases will come, they will come in large numbers, and they will come on your mandatory appellate jurisdiction. And once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics. Justice ginsburg exactly the same thing was said about Justice Sotomayor mr. Clement, do you seriously Justice Ginsburg exactly what you said was dont go to one person one vote. Chief Justice RobertsJustice Ginsburg. Mr. Clement im sorry . Justice ginsburg exactly what you said, just what you said now, that was the exact same argument about dont go to one person one vote, the courts are going to be flooded with cases and theyll never be able to get out of it. Thats not what happened. Mr. Clement but, Justice Ginsburg, sometimes an argument thats not a great argument in one context turns out to be pretty darn good in another context. And here is the thing state legislatures can deal perfectly well with a oneperson one vote requirement. Legislatures that are literally divided down the line in the middle with an aisle. If physical aisle between democrats and republicans. If you tell them that they cant take partisanship into account, then youre really either telling them to get out of the business of redistricting entirely or youre opening yourself up for case after case after case. Id like to reserve my time. Justice kavanaugh on proportional representation, can i ask a question, which is, first, isnt proportional representation a judiciallymanageable standard . Mr. Clement it is a difficult standard. It would require answering some questions about where its baseline, what elections do you get the baselines from, but it could be manageable. Justice kavanaugh and the second is, why cant the equal protection clause be interpreted to require something resembling proportional representation . Mr. Clement because its entirely ahistorical. And keep in mind, the framers gave state legislatures the choice of ensuring proportional representation by having statewide elections. But they also gave them the choice to district, which is fundamentally inconsistent with that. Thank you. Chief Justice Roberts thank you, counsel. Mr. Bondurant. Mr. Bondurant chief justice, and may it please the court this case involves the most extreme partisan gerrymander to rig Congressional Elections that has been presented to this court since the oneperson onevote cases. The North Carolina legislatures defense is equally extreme. They take the position that no matter how predominant the intent, no matter how extreme the effects, there are absolutely no constitutional limitations on partisan gerrymander. Justice kavanaugh when you use the word extreme, that implies a baseline. Extreme compared to what . Mr. Bondurant in this case, it is extreme in comparison to any statistical application of neutral redistricting principles in the context of the political geography of North Carolina. It was statistically impossible to come up with an 11 2 plan. One of the authors said, were proposing a 10 3 partisan gerrymander because its not possible to do an 11 2 plan. The statistics bear that out. Moreover, dr. Chens maps, which took every possible criteria that they used that was legitimate, applied them to 1,000 randomly drawn maps, showed multiple things. First, that you cannot possibly explain the 10 3 advantage based on political geography, democratic clustering, the application of independent redistricting principles, or pure chance. This is not the result of chance. You can only achieve it by making partisan advantage the predominant motivation. Justice kavanaugh mr. Clement chief Justice Roberts well, if the predominant i understood your brief, and your friend on the other side characterized your brief as saying that any element of partisanship was bad. Is that your position . Mr. Bondurant no, your honor. Our position is that partisanship has to be at least a material factor, as it is in Arlington Heights or mount healthy, but in this case, we prove that was a predominant factor and that is the ruling of the lower court. Chief Justice Roberts well, i guess it just rephrases the question of what constitutes a material factor. Mr. Bondurant well, the difference between material and being immaterial, having no consequence, is a very real difference. Chief Justice Roberts so so just so i understand, any partisanship that has a consequence is impermissible under your view . Mr. Bondurant we do not need to go that far in this case because you have evidence of predominance, that is, this objective, partisan advantage, superseded every other conceivable objective. Chief Justice Roberts i understand the reality that it is an extreme case. But to state a principle that were going to be able to apply to other cases, your your definition of material is that it has a partisan consequence . Mr. Bondurant it is a material part of the decision, as in, for example, firing in mount healthy. If that was a material part of the decision of the school board to fire the school teacher, then he had made a prima facie case which could then be defended based on either there were intervening causes, that is, the real reason why she didnt show up to teach, or you have legitimate state interests that are being served. In this case, the North Carolina legislature before, below, did not advocate, contend in any way that there is any legitimate state interest of any kind served by partisan gerrymandering. So you have under any of your analyses, anderson burdick, a clear burden. You have clear vote dilution, intentional vote dilution, carefully thought out, skillfully executed. Justice alito can i take you back to questions that were asked before . If you make a list of the socalled neutral criteria compactness, contiguity, protecting incumbents, if thats really neutral, respecting certain natural features of the geography and you have a Computer Program that includes all of those and weights them all, and lets assume all that is neutral, and at the end, what you get is a large number of maps that satisfy all those criteria. And i think thats realistic. Thats what you will get. And the legislature chooses from among those maps. How do you determine whether that choice is unconstitutional . Mr. Bondurant the choice would be the standards that the court has traditionally applied. Picking an example, the Island Trees School case in which the court said that a Democratic School board could not use its discretionary choices to discriminate based on viewpoint by excluding republican authors and republican books. Justice alito no, no, but can you just answer that question, because its a real puzzle to me. Lets say youve got 100 maps or you might even have 25. I think you probably have thousands. So you have all of these maps, and you have to choose among them. And youve already programmed in all of the socalled neutral criteria. How does the legislature go about choosing among those maps . Would anything other than just random choice be satisfactory . Mr. Bondurant the legislature has wide discretion, as long as it does not attempt to do two things, dictate electoral outcomes, favor or disfavor a class of candidates. That is an easily administered Justice Gorsuch but, counsel, that first one, dictate electoral outcomes, i think is going to turn on numbers, right . How much deviation from proportional representation is enough to dictate an outcome . So arent we just back in the business of deciding what degree of tolerance were willing to put up with from proportional representation . We might pluck a number out of the air or see that, you know, maybe twothirds is used for veto overrides, so we like that. Where are we going to get the number on the business end of this . Mr. Bondurant the business end of it is looking at how this is done. This was done by looking at voting history as the best predictor of voting behavior. Sorting voters among districts to achieve a particular outcome, to guarantee that in 10 districts, there would be safe republican majorities in which the general election is essentially irrelevant and the primary election is the determining factor. Justice alito well, let me try one more time. Lets say that you have a range of outcomes with all of these neutral maps that satisfy the neutral criteria, and they extend from 10 to two in favor of republicans to 10 to two in favor of democrats. So which one do you choose do you have to choose . Nine to three for republicans . Eight to four . Six to six . Mr. Bondurant clearly, its an evidentiary matter in terms of intent. If the predominant intent is to favor one party, to penalize another based on their voting history, that goes too far, but Justice Kavanaugh isnt that always going to be the case when you deviate too far from six to six, in Justice Alitos hypothetical . Mr. Bondurant it certainly is going to be a question of factual proof. The closer you come to proportional representation, the harder its going to be for a plaintiff to prove that there was an intent. Justice gorsuch well, there we go. I think thats the answer to the question, right . You would like us to mandate proportional representation. Mr. Bondurant not at all. Our position is you cannot discriminate intentionally against Political Parties and voters based on their political views and their voting history. Justice gorsuch and the further you deviate from proportional representation, the more likely you are to be found guilty of that. Mr. Bondurant it is purely an evidentiary question. This court itself said in reynolds, it said again in lulac, that in a case in which you look statewide and see proportional representation, it is less likely Justice Gorsuch okay. So as to each case were going to have to, as part of our mandatory jurisdiction, in every single redistricting case, look at the evidence to see why there was a deviation from the norm of proportional representation. Thats the ask . Mr. Bondurant youre going to have to look at the case and determine whether or not the plaintiffs proved intentional, predominant, partisan intent to discriminate based on Justice Gorsuch i would think that would always be present so long as youre deviating from proportional representation. What good reason could there be but partisanship at the end of the day . Mr. Bondurant not at all. If the legislature in North Carolina could have picked any among hundreds of maps that would have produced either a 7 6, a 6 7, maybe an 8 5 representation, but, here, that is not this case. Justice gorsuch what do we do as well about the the fact that about 20 states, as i understand it, from from your friend on the other side, have dealt with this problem through citizen initiatives as a remedy to deal with this, including, i think, five of them just this last election and a bunch more on the ballot in the coming election. Why should we wade into this mr. Bondurant the simple Justice Gorsuch when that alternative exists . Mr. Bondurant the simple answer, Justice Gorsuch, is this the vast majority of states east of the mississippi, including specifically North Carolina, do not have citizen initiative. Justice gorsuch can you amend your constitutions . That has happened in a lot of states too. Mr. Bondurant you can only amend the constitution with the approval of the legislature, in proposing an amendment that gets to the ballot and is then ratified. And that is not an effective remedy. And the states in which you have independent redistricting commissions are states in which those commissions were adopted over the dead bodies of the legislators by citizen initiative, passed overwhelmingly by the citizens and in the face of legislative opposition. Chief Justice Roberts bondurant, what do you do with the fact that partisan identification is not the only basis on which people vote . You see electoral results change dramatically depending, for example, on the particular appeal of individual candidates, turning on who is at the head of the ticket rather than down ticket . And how do you deal with that those factors that depart from the arguments about the inevitability of electoral results based on partisan identification . Mr. Bondurant your honor, the social science and the experts in this field, which included dr. Hofeller, who designed this plan, was the republican partys leading redistricting expert he testified that based on social science and his 20 years of experience in redistricting in North Carolina, he could demonstrate that how a small, what are called voter tabulation districts had voted in past elections, whether democratic or republican, was the best predictor of how they would vote in future elections. And that all partisan gerrymandering in the modern era is based on that kind of social science. Chief Justice Roberts well, but the one thing that i forget where the which brief it is but it turns out that a lot of the predictions in this area, and i dont know if this applies to North Carolina or not, prove to be very, very wrong very often. You have the famous example in the vieth case where the argument was this change, or the method under challenge would never allow the election of republican judges. And 15 days after the opinion came down, all the judges were republican. Even as in the more recent cycle, i understand that a lot of things that were never supposed to happen happened. Mr. Bondurant in this case, on this undisputed record, the way this was done was that dr. Hofeller used a composite of seven statewide elections over four election cycles to come up with a calculation of partisan advantage and predictability. And it predicted 10 republican districts, and the republicans won all 10. It predicted three democratic districts. The democrats won all 10. In 218, they did the same thing. He used the same methodology in 211 to design the districts that were in 212. Justice sotomayor counsel, the reality is that with all statistical models and we spend our lives based on them, insurance is paid on statistical models, Health Insurance premiums are based on statistical models. Im given to understand by the amicus briefs in this case that Nuclear Plants are built based on statistical models. The one thing about statistical models is theres always the possibility of an aberration, correct . Mr. Bondurant there is a remote possibility sometimes. Justice sotomayor and the sometimes happen; thats why theyre a a possibility . Mr. Bondurant correct. Justice sotomayor so the fact that you have one exception doesnt disprove the rule . Mr. Bondurant certainly not 100 maps out of 24,000 maps. Justice breyer yes, but the problem i think your side throughout this morning has to deal with, a problem, is from this side of the bench, to some people looking at the prior cases, there is a great concern that unless you have a very clear standard, you will turn many, many elections in the United States over to the judges. Theres always someone who wants to contest it. They will always find experts of all kinds. And what youll discover is judges simply deciding too much. Now, ive written about why i dont take that position, et cetera, but im not speaking for myself here. Im speaking as a reader and an understander of whats on the other side, at least one thing. And i think its important for you and the others to deal square on with that question. Mr. Bondurant and our squareon answer to that question is in this case we prove beyond a reasonable doubt a predominant partisan intent that was admitted on this record, and demonstrated statistically beyond any possibility of dispute, and we have proved an extreme partisan effect, not only on a statewide level, but on a districtspecific level. In dr. Mattinglys charts, six of the districts are extreme statistical outliers that would not be achieved in even one, in some instances, of 24,000 plans. That is this case. Moreover, this court has held that the elections clause is, number 1, intended to provide limits on partisan gerrymandering. Justice scalia said that in vieth. And this court has said the elections clause was a limited delegation of power to dot procedural rules for time, place, and manner, but was not to provide power to dictate electoral outcomes or favor or disfavor a class of candidates. That is an understandable standard that legislators throughout this country can understand. They already are told that you cant discriminate based on political viewpoint. They are already told in redistricting you cant discriminate predominantly based on race. Justice alito suppose the legislature had said we have all these maps we can choose from, but we dont want to be too greedy, so were going to pick a map solely for the purpose of giving us an advantage. Were going to pick a map that builds in a seven to five advantage for us. Would there be a problem with that . Mr. Bondurant it would be very difficult to prove predominant partisan intent. Justice alito what if they said it outright the only reason why were picking this map is we want to build in a seven to five advantage . Mr. Bondurant to take your hypothetical example if in North Carolina the Legislature Said we in our wisdom have decided that the people in charlotte are going to be represented by a democrat, the people in asheville are going to be represented by a republican, that were going to split Guilford County and North Carolina a t to ensure that the students in that school are going to be represented by a republican in one district and a republican in another, they would be dictating electoral outcomes even if it were seven six. The whole idea of the democratic process in a general election is the people elect a member of congress in a general election in which everybody can vote. And when you rig the districts in that manner, you are making the general election irrelevant. You are making the primary election in which only some people can vote Justice Alito so even if mr. Bondurant outcome determinative. Justice alito so even if the map provides only a very small partisan advantage, that would be subject to challenge in litigation . Mr. Bondurant if in the facts that i posited you had the legislature essentially deciding that the people in x part of the state were going to be represented by a democrat, and the people in y part of the state were going to be represented by a republican, of that the people in those respective districts of the other persuasions were not going to have a choice, were not going to have an opportunity, that would clearly violate every principle for which this court has stood. Justice alito when you say that, arent you answering Justice Breyers question yes, all of these things are going to potentially end up in court . Mr. Bondurant no. Justice alito judges are going to have to decide whats the right answer. Mr. Bondurant quite the contrary. As with the oneperson onevote rule, if the court says, as this court said in term limits and in cook v. Gralike, that the elections clause means that the legislature cant put its thumb on the scale and pick winners and losers, dictate electoral outcomes, favor or disfavor a class of candidates, that is a standard that can be understood. That is a standard that legislators will obey. And that is a standard that will reduce, not increase, litigation. Chief Justice Roberts thank you, counsel. Ms. Riggs. Ms. Riggs chief justice and may it please the court the north carolinians who are plaintiffs in this case come before this court today seeking relief because when the General Assembly enacted an allegedly remedial plan in 2016, its leadership essentially bragged to these voters and the public at large that by enacting a 10 3 plan, it was punishing voters who supported democratic candidates, and it was going to create districts that would not allow voters in those districts any meaningful ability to use normal democratic processes to redress infringements on their individual constitutional rights. This case is not the first North Carolina voting case to reach this court this decade, but it represents the most extreme example of a nonresponsive legislature that believes that this court will implicitly endorse unfettered partisan manipulation in redistricting by declining to rein in this most egregious example. The vote dilution test presented to this court today is a limited and precise test designed only to impose liability on the worst of the worst cases, thus limiting the number of partisan gerrymandering cases that this court will see. And under this very limited and precise vote dilution test, a lower court will apply a threeprong test where all three prongs must be satisfied in an and under many of those prongs there are multiple screens to limit the number of plans subject to liability. First, partisan intent has to be proven on a districtspecific basis, that is, proving that district lines were drawn to subordinate the adherence of one Political Party and entrench the power of the Party Drawing the lines. Second, partisan effect has to be shown at the districtspecific and planwide levels. The districtspecific effect inquiry looks at intentional cracking, the cracking and packing of democratic clusters or republican clusters, as it will, and the statewide, the planwide inquiry is whether the map as a whole creates a severe and durable effect on the disfavored party. Then, finally, the court asks whether there is any justification at the districtspecific level for the cracking and packing observed and whether planwide the map as a whole is more biased than you would expect given the states political geography and use of legitimate nondiscriminatory criteria. Justice alito but do you deny that built into this is the idea that we should at least have proportional representation light . Proportional representation is in a sense that is in some way the baseline against which all of this is measured . Ms. Riggs not at all, Justice Alito. With the three prongs, there is plenty of room for nonproportional plans. Justice alito a degree. You dont have to have strict proportional representation, but thats thats the baseline. Thats what youre measuring. Was there a partisan effect . Well, theres a partisan effect because it deviates from some notion of proportional representation. Ms. Riggs the effects prong and the justification prong do real work to prevent that situation from happening, from this being just a measurement from the deviation Justice Gorsuch how can that be because i would have thought under the effects prong there has to be at least some effect, right . Ms. Riggs there has to be a districtspecific and severe and durable statewide. Justice gorsuch i got it. I got it. So we have to measure effect from what . Every test thats been presented to this court, last year and this year, we talked a lot about last year the efficiency gap, which is how far a deviation from proportional representation. And we were told, i think, six or seven percent of deviation would be okay, and that would not be an untoward effect. But anything above six or seven percent. Today were talking about twothirds is an effect. We need to have a number or some formula to determine what effect is enough to state a claim and what isnt, otherwise every case is going to come to this court. And im still waiting to hear what that might what that number, what that formula might be, other than proportional representation, and were not going to tell you today just how far deviation will be permissible because that would expose the problem. Ms. Riggs several points in response, Justice Gorsuch. The Legal Standard in question is severe and durable effect. All of the social science is just an evidentiary tool, not a legal tool. Two categories of social Science Evidence were brought to bear on this question of severe and durable effect. The simulations didnt set a numerical threshold baseline because you see a range of produced plans with varying democrat republican splits using these simulations and were giving the legislatures breathing room. All of the simulations produce a u curve. Justice gorsuch sorry to interrupt come up that living breathing room from what . Ms. Riggs breathing room to Justice Gorsuch from how much breathing room, from what standard . And is into the answer here breathing room from proportional , representation up to maybe 7 percent . Ms. Riggs no. Justice gorsuch just if its not that, then what is this breathing room, and where does it exist . Ms. Riggs breathing room exists in the bell curve of expected and reasonable map allocations of representation. Its breathing room to employ some political consideration. Its breathing room Justice Kagan well, why isnt the answer to Justice Gorsuchs question that whats not allowed is deviation from whatever the state would have come up with, absent these partisan considerations . In other words, the state can do whatever it wants, it can depart from proportional representation however much it wants to, however much the natural features of the state would suggest, and it can come up with something thats not proportional representation at all. What it cant do is deviate from that based on partisan considerations. Isnt that what this test is essentially driving at . Ms. Riggs that gets at the effects prong. I think thats a grading calculation. Justice kagan yes, thats what i was talking about. Ms. Riggs but you would still potentially lack discriminatory effect, and it really is a question of whether the linedrawing party is imposing upon a disfavored party a severe and durable effect. And thats the legal chief Justice Roberts counsel, what is dust Justice Gorsuch i get that you have wisely adopted a very fine answer, given for you. But i guess my question is, once we control for geography, once we control for all those things, were going to have hundreds and hundreds of maps, as Justice Alito has pointed out. Computers spit them out infinitely now. And once we say, okay, all these other factors are controlled for, we can do a regression analysis, control for geography and all these things, were still going to have hundreds of maps. And the legislature is going to choose one. And at that point, we have to say, whats the range of permissible options . From that, we need a baseline. And the baseline, i still think, if its not proportional representation, what is the baseline that you would have us use . Controlling for geography and everything else. Ms. Riggs well, the geography is baked into that bell curve. Justice gorsuch its baked in, i accept that. We agree on that. You and i actually agree on that. So, after that, weve thrown out millions of maps, we are all electric mere few thousand, okay . What deviation . From what to what . Ms. Riggs if what were left with is no extreme statistical outlier or no grossly asymmetrical map, the legislature can choose from any of those plans. Chief Justice Roberts counsel, what is wrong with proportional representation . Ms. Riggs there are certainly states where the natural geography of the state doesnt lend itself to proportional representation. We live in a system with singlemember chief Justice Roberts if you were cracking or packing to get to proportional representation, would that in your view be unconstitutional . Ms. Riggs this court has endorsed that kind of activity in gaffney, where a legislature is striving for proportional representation. Our test would not invalidate a plan like gaffney because it would not have a statewide severe and durable effect and it would be something that you would see within the simulations. Justice kavanaugh do you agree with mr. Clement that the constitution does not require proportional representation or require something close to proportional representation . Ms. Riggs the constitution does not require it. But what we see here in this test that weve employed, Justice Roberts, to get to one of your earlier questions, is a test that employs a durability inquiry and sensitivity testing, technology that was not in existence in vieth and bandemer and the republican judges case in the 1990s, and that map drawers are using right now. If there is a plan where, under any plausible shift of voter sentiment, the bias across the plan would disappear, that plan would not be unconstitutional. Again, this is a an enormous screen to the kinds of plans that would be subject to liability. Our proposed test, the one adopted by the District Court, is so exacting that it narrows dramatically the number of plans subject to scrutiny and leaves legislatures lots of breathing room. Chief Justice Roberts am i right to understand that your your test allows a greater degree of partisanship in redistricting than bondurants . Ms. Riggs i think theyre complementary tests depending on how you understand the constitutional harm, where we see the vote dilution tests based on the oneperson, onevote and the racial vote dilution frameworks, we see those tests as allowing room for some political considerations, particularly the ones endorsed by this court. Its just a different approach to the same problem. We do believe that our test does give is narrow and descriptive enough that it gives legislatures guidance on what to do to make sure that they stay on the right side of the constitution, and limits gives lower courts something very manageable to apply and to grapple with, and that the pleading standards are going to be very high. To prove a severe and durable effect is not to just allege it. Its to come forward with rigorous statistical evidence that supports this situation. Justice kavanaugh i took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy and im not going to dispute that and that the court, even though it might be a problem to get involved in all these cases, should, in essence, recognize the emergency situation from your perspective. But what about, to pick up on something Justice Gorsuch said earlier, that there is a fair amount of activity going on in the states on redistricting and attention in congress and in state Supreme Courts . In other words, have we reached the moment, even though it would be a have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors cant do it . Ms. Riggs the north carolinian plaintiffs in front of you can do nothing to solve this problem. Justice kavanaugh but im thinking about more nationally. The amicus briefs are certainly referencing a problem in many states. And the idea, i think in the briefs, is this court and this court alone can step in. And there is a fair amount of activity going on in the states, recognizing the same problem that youre recognizing. Ms. Riggs and as bondurant acknowledged, east of the mississippi theres a very small number of states where this is a possibility. This court has rightfully been concerned about the burden on the court and the reputation of the court, but Justice Gorsuch well, but that is on initiatives, right . I mean, new jersey, michigan, ohio have dealt with this in some way, just to pick a few that ive got in front of me. But he also have the state Supreme Court option, as Justice Kavanaugh pointed out. And we often overlook that possibility in our federal system. What do we do about that . Ms. Riggs other options dont relieve this court of its duty to vindicate constitutional rights. And certainly, while the reputation of the court as an independent check is an important consideration, understand that on the facts of this case, the Reputational Risk to the court of doing nothing when david lewis says, im going to draw a 10 3 plan and if i could drew an 11 2 plan, i would, the Reputational Risk of doing something is much, much less than the Reputational Risk of doing nothing, which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out. This is a situation where, with all due respect, Justice Oconnor was not correct. This isnt selfcorrecting. Voters in North Carolina, no matter how hard no matter what level they turn out this was a swing election in 2018 for North Carolina voters, and they were not able to eliminate the bias in the plans. The techniques are so sophisticated now that theres no room for selfcorrection. And these voters Justice Alito if we look at the popular vote for the house of representatives nationally in the 2018 election and compare that to the percentage of seats won by the two parties, to what degree do they diverge . Ms. Riggs i dont know the answer to that question off the top of my head. I know there was a 5 point advantage for North Carolina democrats in 2018. Justice alito but, if this is a Great National problem, is there would we see a great divergence there if we look at the statistics across the whole country . Ms. Riggs theres not gerrymandering in every state. In fact, our brief points out the fact that most plans are symmetrical. Gerrymandering isnt in every state. And so i dont think that metric is particularly informative on that front. Chief Justice Roberts thank you, counsel. Two minutes, mr. Clement. Mr. Clement thank you, your honors. Just a few points in two minutes. First, i do think at a very fundamental level my friends on the other side are the victim of their own technology because they have produced 24,000 maps that are permissible maps that dont take partisanship into account at all. And their submission is that a legislature organized on partisanship lines cannot take partisanship into account to any material degree in picking among the 24,000 maps. And thats just an argument ultimately to reassign this authority away from state legislatures into somebody else who doesnt have a partisanship interest or a partisanship organization. Justice sotomayor thats just not true because what they have shown is, if you dont use partisanship as the predominant factor, then you can produce a lot of maps that are not this one. Thats what they have shown. Mr. Clement right. But you can also pick 162 that are this map and how is a partisan legislature supposed to choose from among those maps if they cant Justice Sotomayor dont use no one criteria that intentionally and individual invidiously looks to exclude the other party. Thats their basic point. That was the basic point of the judge below. Clement thats right. So youree legislatures not to act as state legislatures. And let me just finish with this observation, which is a lot of hard constitutional issues come before this court because you are dealing with something that was unknown to the framing generation. But the framing generation understood partisan gerrymandering firsthand. James madison was the intended target of a partisan gerrymander by patrick henry. He complained about it bitterly. So did george washington. Neither of them contemplated suit. Hamilton actually suggested to john jay that the federalists ought to partisanly gerrymander the Electoral College for the 1800 president ial election. John jay said it wasnt such a good idea. All three authors of the federalist papers knew about this and didnt think there was a judicial solution. Thank you. Chief Justice Roberts thank you, counsel. The case is submitted. Now, here is the second oral argument the Supreme Court heard on the topic of gerrymandering, lamone v. Benisek. This is an hour