Transcripts For CSPAN Justices 20240703

All the directvidence confirms it used polical data, not racial data to identify republicans and democrats. The panel declared district one a racial gerrymander only by adopting an erroneous racia policy theory. First they failed to enforce th alternative map required. In a case like this oy such an ternative. Second it hyper entangled rac and politics and makes no sense. Thean believe they needed a raci target in Charleston County to achieve its political goal nationwide because 17 racial tge says nothing about vor turnout, says nothing whatsoever about the prodominant majority votes for the predominantly white Charleston County and i irreconcilable th district ones recent history. Moreover the panel agreeing the General Assembly made 34reu8 changes oer parts of district one without using a racial target. E yen assembly has had no reason to and did n use a racial target. Used political day to da to pursue its political goals. If left uncorrected this wl undermine the Courts Holding th partisanerrymandering claims are not justiciable. They can be repackaged as racial jerry mandering claims if all plaintiffs have to do is ignore direct evidence of intent, infer a racial target from the correlation between race and politics and point to malleable expertsis. This courthould reverse and not allow its exacting precedence to be so easily subverted. I quk the courts questions. Mr. Gore, we review this for clear error. The district cou credited the plaintiffs expert and found your experts noncredible. So how ds that meet the clear error standard . All three of dr. Ragusas opinions contradict the data in his report which demonstrated that race did not predominate in the changes to district one. His own data shows that politic was a stronger predictor than race of whether b. T. E. Was moved out of district one. He concluded there was no correliobetween race and whether they were moved into district one. Thatsag111 of the joint appendix. Thoss alone establish that dr. Ragusas three opinions in this appeal reliable and unprobative. But theres even more. For each of those three opinion he ismitted other errors. He did not control for where in the district voters live. I thought he said as far as geographic continuity, the size of the different districts was an adequate proxy for that . He did say traditional inciples were embedded in his analysis. Whatever he meant by that he did admit on crossemition he didnt test or control for those principles and whethy assembly actually made. E yen thats the same error tremendous experts made in allen that this court setside just last term. His failure sider the location of voters within the district is the same error committed by the expert where this Court Reversed the finding of gerrymandering. Did your expert present annual terntive study which did control for geography and reached a different result . That would have been the eiest way to undermine the theory. As i understand it, this was hardly touched upon by the state below and certainly the state did not do what would seem toe the normal thing if you were really conrn about this, which is to say look at our study, we conold for geography, the results entirely different. We did raise questions about that. Direct evidence showed like all the other dict evidence that decisions were made on politics and traditional principles, not using race. I think you indulge in a very poor starting point and clear error. Are you in the substance of beliabity of one expert over otr. Credibility findings must be deferred to to the dtrt court. I understand your points about yr int about dr. Ragusa but iust point out that other experts before the court and he himself said iwa embedded as part of the structure of hisnasis. You may disagree with that but it will be hard for you to show that no fact finder could cdit that understanding of his testimony. But i thinkhat i am really troubled bisoing back to Justice Thomas question, what the legal error and whats the clear error . Just tick them off for me. Therere several legal every rors. I want legal errors or clear errors under our standards. The first legal error is the failure to enforce the alternative map requirements. Im going to butt in. The alternative map requirement, i mean, doesnt exist. You know sometimes this court, i think, holdshis and then i go back to the opini and i think wl maybe we western as clear as we might have been. Not here. Im just going to read from cooper. A plaintiffs task is simply to persuade the trial court witut any special prerequitthat race, not politics, was the predominant consideration. In no area of our eal protection law have we forced plaintiffs to submit one more form of prf prevail nor would it make sense to do so re. An alternative map is merely an idtiary tool, neither its presence nor its absen c itself resolve a riajerry mandering claim. I dont know how tmo clarily sayhat there is no alternative map requirement in these kinds of cases. Where there was direct evidence of racial predominance. O said on page 322 in the majority opinion ia case like cromartie2, one in which the plaintiffs meager direct evidence of a racial jer hi ry mander and needed to rely on evidence of foregone alternatives only maps of that ki all we were saying there, mro other evidence you needed some evidence. Tt is not this case. Cromatie2 was making a specific point. Look at this case. Theres none of this kind of evidence. None othat kind of evidence. None of the hekind of evidence. So my gosh. In that case you needed a map. But this is case by case, all we were saying is that whenou have no other evidence you better present a masm but thas not to say that theres anything like an aertive map requirement. If you make your case some other way, thats good enough. And here, theourt found again on a clear error standard that the plaintiffs made their case some other way. En if thats the correct reading of cooper, justice kahere were other legal errors in how the panel conducted its analysis. Mr. Gore, i thought your argument was that at least as a practical matter, in a case in which there ino direct evidencer virtually no dect evidence theres no way in which a plaintiff candice entangle race and politics. Except by providing an alternative map. I thought that was your legal argument. That is. And thats exactly what cooper says is not the case. One may read cooper a different way. Cooper was a case in which there was a lot of direct evidence, was there not . Yes. How could there be direct evidence really in this kind of case . This is what im concerned about. Because this distinction towrns whether theres direct ed. I wonder if it is reasono require such evidence or say that such evincwould exist in a situation that is not majorityminorityict scenario . You can see how there would be direct ed when the states goal is to try to, in its view, a majority minority district,ake well have evidence of people ying that. But in a situation like this, where that the case where the state is saying instead, we are tryg to, you know, achieve partisan tilt, i guess i dont understaand excuse me, we have also said the intent to use race is very hard thing to prov just on its own are. You asking that we have a smoking gun in a situation like this . Not at all, justice jackson. As you pointed o, a majority mi districtontext use of race or racet evidence of predominating. You could have that in another cop text, the map drawer or someone else admitted to using race as a proxy for politics because dithey didve adequate election data. Are you reqri that . On circumstantial evidenceowing alone . Were amicus briefs related toed to computer drawings and that sort of thick they thought would be helpful in this con tex. He alternative map its would perform that requirement. Because any if a map could be drawn. There were alternative map heres that showed if race was ed they would look like. This lets move back past the map. Because i think cooper wa petulantly clear that you dont need a smoking gun and if you dont need a smoking gun you dont need direct evidence. Atre the other legalors . Another legal error was the panels misconstruction of the Shelby County decision. It also failed to disentangle race and politics. It ignored volumes of direct evidence on the politics versus race queio it disclaimed his it disclaimed his claims. The court d accept his version of events but didnt makedibility finding based on his dr or testimony at trial, it simply credit other evidence in. Conducting the inquiry that cooper require, the court was trierd look at all the ee, direct and circumstantial, of intent and did not do that here. Is that a legal error, they condition correctly weigh the evidence . They didnt correctly conduc that sounds like a factual error to me. Your brief basically says we haveeg errors and then it says well the edee didnt show. Those are factual errors. Thatsubject to the clear error standard. Going back to Justice Thomas questi. To the extent we have also made a clear error argumeni agree. But weve pointed out that the ct court failed to properly apply the standards at this Court Required in cooper. Cooper could not have bn clearer on that point that the District Court isuired to weigh all the direct and rcstantial evidence of intent to ensure plaintiffs have disentangled race and politics. Theyreequired to presume the good faith of the general what it did but the panel failed to do both othose things. It sounds like you just have a different view of the evidence. Youaiwere using politics and e court said no, youre using race as a proxy for politics. The infoatn the map drawer had on the computer was a single president ial Election Year voting data and lotoface data. Everybodcatell you if you really want to draw a stable partisan grynder, you do not rely on a single president ial year election data. I an they had not only the opportit it was sitting there on their computers, but the clear incentiveo be looking at this race da which is certainly more predictive of future voting may haver than a single president ial year election in which psident trump was the candidate which further distorts voting behavior. We totally disagree with that reading of the record. The panel itself did not call to question the reliability of the General Assemblys election data. It in fact used that election data to support its racial target theory. That election data is unreliable thes entire line of reasons is unreliable. All the evidence establishedhe map drawing team thought it was reriebl and used it to draw lines. On the question of whether racial it was evidence that they lookedt. There was evidence it went into their analysis. Bui mean, look at it the was what the panel said was that there wasley of theafd they look a the voting record and not justs legal check on the ba end. Nobody needs to have the voting record on your computer as you awhe maps to make a legal check. What they were doings king sure the population of blacks in each precinct, in ea dtrict, you know, did not re above the number which would make the plungerry mander less stable. Thats not what the evidence was at trial. The evidence was that the racial data is embeddedn e software but that the map drawer would have to scrol to a different screen or down to the bottom in order to be able to see. Is there anything suspicious about the fact that a map drawer knows the racial demographics of the state . Or has available the racial demographics of the state . Havent we spoken about that . Yes, many this court has said that mere awareness or considerationrace doesnt prove racial predominance. And thats that would be particularly true in a state like south carolina. This is not something lie along the lines of we looked at the racial data but it still it condition rise to the level of predominance. Actulyour defense was we didnt lootohe racial data for this purpo. And what the courtaid was, i dont beevhat. Made a crebity judgment. Basically said, you are your mapmaker gets on the anand know this is racial data like the back of his hand d e court says i just dont believe that they were not looking at the racial data that was right there in front of th f the purpose of making their gerrymander more secure. That underscores the District Courts error in failing to look at all the evidence. Its true the map drawer knew the raci composition of one district, one v. T. E. He didnt know the racial composition of other dts he was asked about. Moreover, racial data is not a good predictor a president ial election is what dsn measure turnout in a nonpresident i yr correctly. Ill ask you this. There are two map, let say you have before you that where the election da says these districts favored president rump. One has a 20 feedback and the other has a 17 . Now doesnt any mapmaker look and say, you know, i wou rather have the 17 vbap in order to make sure Going Forward this continues to be a republican district. I dont believe thats true at all, justice kagan. I think they look at how much the areas favored President Trump by. This particular holding that constant youd rather have the 20 vbap 17 . It would depend on other factors such as traditional principles. What th tal court found on the facts thoarng evidence, was that the mapmakers made a judgment theyd rather have the 17 . That, you kw,long with the election data, they might they were they looked at this one year of the election da. But that the7 was what would y, if we go above that were not sure we can hold this when another election comes. The record did not support that finding. O you explain the consistency . I mean my understanding is that thousands of people were moved in and out of this ct and yet that line, the line concerning the amount of, you know, black v adult Voter Participation remained the same. If that was not if what the court found here was not happening how do you explain the consistency of that line . We have a few explanations for that, jti jackson. The first to address justice kagans hypothetical is the draft plans t the drafting proses actually changed. In the man it was 15. 48 . In theer plan it was 16 . The enacted plan is 16. 7 . The staff plan has a higher republican vote share than the milk plan. Was it ever highe the 17 . People were being moved around. You would assume if it was varying it would do so in both directns people were beingoved around but not very many people. Remeer ta district one retained 93 , almost 93 of the district core. S8 . You said 93 . I thought it was 82. 3 3bg9. It depends on the method used to measure. The mtd used by theen assembly was over 92 . Thats not what the District Court found. I thought it was 28. It was 82. , the lowest of any core district how much do you account connecticut for the fact that 68. 6 of whites go to c1 but only 50 of blks to that are democrats . Youre controlling for partis and the numbers are that disparate . You have to consider where those vote es happen to live. So its ok for the legislature to say i was looking at partisanship but im not looking at whether someoneas white or black but im going to separate cv1 so its 100 miles apart in one county and the only commonality is that they live along i26, 100 miles apart . And im going to join those two black sectis or get rid of them and keep whites there. Even though even though the democrats couldnt be moved. This court has been clear that racial effects do not prove racial predominance. But the numbers are incredible. Were look att here. Dont Say Something about the intent in whether or not the court wasusible . I thought clear error standard was plausible. Was plausible for the distctourt to believe or disbelieve the, wet looking at race statement made by the person who was putting the racial effects in this plan are far less stark thanhe racial effects in theromartie and cromartie2 plan where the cour reversed racial andering. They created a 10 arein the other district. Iry to interrupt. But weve been dancing around the big question which i think is, to my mind, the District Courts finding that your clients had to have looked at race data rather than politics da because the politics data wasnt robt ough. Now youve given part of an answer. Id just like the full answer as to why you think that is clearly erroneous. Racial data does not predict Election Outcomes particularly ctively. The correlation between race and potics only affects election politics to the extent ppl turn out and vote. Racial data doesnt msure that. Only election data measures their own expert agreed with that. He said that racial data could not be used to predict Election Outcomes because you have to know about turnout, you veo know about crossover voting and other factor. Eir own brief, page 10, concedes that racial data wou not predict voting behavior turnout ahite voters in the area covered byistrict one. The reason f that is white votes for the that area split between trump and biden in 2020 anthat district, even Charleston County, predominantly white. Using a racial target in that area wouldnt have told you what the vast majority ofs were going to do. Its not an effective way to predict Election Outcomes there. The reason they used the 2020 prediction election data is the vote hbs allocated back to precincts. There are some that said the absentee ballots were properly whats the response to that . Theyre citing testimony from mr. Olden who isnvolved in drawing the senate plan, not the congressional plan. He sd that hypothetically election data would be flawed if it didnt do tha he didnt know the general asss election data did do that. The ttiny unrebutted at trial and es the election data the used didperly allocate both the absentee ballots back to precincts and other votes back down to the census block. It was the best Data Available because of the absentee ballot issue from prior year data. Moreover, even though 20s a president ial Election Year it waalso a congressional Election Year. Its the most recen congressional year available to the map drawer. Fikd sawrhat you just said. You think its clear error on the courts part that it did not accept the view. Clear error that it did not accept the vieth racial data would have lp the mapmakers draw a more secure republican jerry marynd. Clear error on this record the reasons ive just explained. Moreover i demonstrates the panels legal error in failing to apply the correct standards which included its faire. Thank you, mr. Gore if i could move to 30,000 foot perspective, how do you understand what were supposed to do ievuating clear error . I mean weave just appendices in this case that is like that. Lets say there are 100 different factual demtions. If we thin15f them are wrong, do we rever f clear error in thatituation . Or is it more . We dont normally review o than in these cases, dont normally review record for factual findings. And im just wondering how you think we should do that. Even one clear error can be sufficient if it leae court with a definite, Firm Conviction that an eor was made below. Here we pointed to manyors in the District Courts analysth legal and factual, to establish the standa tts been met. This court did exactly this in cromare they reviewed the record and determined clear error had b committed and therefore reversed a finding of a threejudge panel of racial predominance. So we give different doaftion importance in particular facts and weigh those . In reviewing the entire record . Yes weve tried in our brief to show what we think are the most rtant factual errors made by the District Court. Theres no direct ee of any racial target in. Fact all the direct evidence points the other way. And the panel didnt even mention any of at theres also their own alternativens even if theres no alternative map requirement in this particular case. Their own alternative maps fayed to disentangle race and politics because they all turn district one into a majority democrat district. Thats evidence that support ours case. Becaus shows that race and politics cant do disentangled and they fail to carry eir burden. The clear error standard, if thats the standd we are required to apply is a very demandingtaard. But it is not an iossible standard and it doesnt mean that we simply rubber stamp findings by a District Court, particularly in a case like this where we are the only court tt is going to be reviewing those findings. And parcurly in a case in which the bis for a judgment in favor of the prevailing party relies very heavily if not entirely, on expert reports, the methodology of which can be examined. So in light of that, i want to asyo about and allegedla in dr. Ragusas analysis that you mentioned on page 21 of your reply brief. And dr. Ragusas expert report y rn out to be crucial in this case. Because is it not correct that all t oer experts failedo control for partisanship . That is correct. So you say on page 31 that dr. Ragusnalysis is flawed because it, quote, used total mbs instead of percentag for v. T. D. s racial and political decisions. Thats what i understand youre saying is thain determining whether a v. T. D. Wasoved out or moved in for a political reon as opposed to for a r richel reason as opposed to a political reason, dr. Ragusa looked only to the number of votes cast for President Biden in those districts. That the problem . Rather than the net biden vote over therump vote. Thats one of the problems, yes. Could you explain that . Yes. It was at trial and the panel li upon this in its discussion of mr. Roberts testimony, that the total numb is not as relevant as the percentage in determining the effect of moving v. T. D. Because v. T. D. s are different sizes. When you move aot number it doesnt tell you as much as the percent composition either racially or politically in terms of how that affects the total compositioofhe district. The other problem that we pointed out in our brief with that particular analysis is it coradicts dr. Ragusas own data from his initial report. His own data showsolics was a stronger predictor than race as to whether v. T. D. s were moved out. He also concluded there was no statistically significant correlation to race in terms of v. T. D. s being moved into district one. Soe arrived at this contrary conclusion only by jerring his analysis. He didnt consider traal districting principl het consider v. T. D. Or voter location. He committed this error about percent abio thriferred v. T. E. s together in broad categories. There was a sis similar an tols oranges compariso can i ask you one more question, and that concerns mr. Roberts. And his job and his backgroun am i correcthat he is he is emplayed by he legislature . Thats correct. And has been embloid them for some period of time . Yes. And he draws maps for both republicans and democrats . Yes. Let mect one thing i said. I believe du also claimed to be contllg for partisanship. But dr. Lieu used a flawed data set in his analysis. His analysis of the enact planneds v. T. D. Moves is also flaw. The joint appendix, 142144, illustrates the magnitude of the he thought his data set told him there were 91 split v. T. D. s in the ena plan, seven times more than there actually were which is 13. Justice sotomayor . At chxpert you take potshots. Th fled to do this, they failed to do that. But weve never ridene perfect expert to testify to all aspects of the case. But i worry that your methodology is going to suggest that what we do now is do exactlythat. Instead of looking at the yes, siralwhich is what the District Court did, not the yes, sir talt but the whole picture. Yogot all four of the plaintifs perts, dr. Ragus a and the hers two. Accounted for partisanship but nogeraphy. Two others accounted for geraphy but not partisanship. Theres no rule that reqre one expert to do all of that. Even with dr. Ragusa, his purpose for hishoices were not your purposes. His purposes for his chce were to show that v. T. D. s with a particular percentage of blksere going to be selected ov white districts and tha proof he made. So im wondenghether would the clear error standard ce in for us to be doing what Justice Alito did in picking one factor and saying, this is a critical flaw that cant be mad up by the circumstantial evidence around it from all oer experts. Two responses on that maybe three. The first is this is supposed to be a demanding burden for plaint so this kind of analysis of the evidence they actually put forward is exactly what this court did in cromartie 2 when it recognized tar error standard is informed b demanding burden ofro the plaintiffs bore. And in cromartie two b that doesnt change the clear error standard. That doesnt make harsher. Under any proper formulat of the clear error standard the court has to ensure t what the District Court relied on was reliable evidence. This court already did that in cromartie two. So if i come away from this lookingt all four experts, okg at other cases where weve accepted that expert testimony, even with pointed out flaws, does that defeat your argument . In, i dont think it does. I think what youll find is in allen the court rejected the analysis of of the four expertsput forward in this case. But it didnt in others . Ont know if those experts before the court but they committed the same errors in is case as they did in al than led the court to see their analysis. Even more he because they failed to consider politics i their analysis. So they say nothing on the disentanglement question. Justoontinue on Justice Sotomayors line of questio you have two experts here who answerhexact question that is supposed to be answered in such a case. In oer words, is this geymander based on politics or is it a way to get to ultimate goal, an ultimate politicaloa but the gerrymandering i based on race . What the two of them do is she that blackemocrats are excluded from district one at a far greater percentage than white democrats are. Y know, lieu yswhat is it, 61 , w im going to lose. 69 of white democrats were maed in the district whereas only 51 of black democrats did ragusas analysis similarly clear, a little harder to sta in one sentence. Buboth experts essentially said lk,eve done these regressions. We can showouhat black democrats and white des are not being treated the same way. That black democrats are being excluded for the district at a far greater proportio so you know, every regression analysis has things that you can pull. But you didnt give anythi i response to that. Its not like you said we have a tter regression analysis. Weve controlled for me things and we can show you tt the effects disappear. Youre saying that itas clear error to credit the plaintiffs experts alg with the exact question under review and nding statistically significant results to credit those experts over your nothing. Over o dect evidence which the panel didnt mention. Those expertsadlawed methodology. I talked aut the data sthevment panel didnt even cite dr. Lieu in its opinion because of the glaring error, glaring flaw in his set became so clear on crossexamination. Dr. Lieu is completely ouof the case because his v. T. D. Data t was worthless and the District Court knew that and didnt c. Lieu in the dr. Ragusas regression analysis at one pointsed an inapt politimber because he use and average democratic vote nuer rather than the actual number andompared it to the actual aicamerican number. Thats pages 506 and 509 of the joint appendix. Itlear error to rely on clearly erroneous and unreliable expert testinynd to use that to oe a mountain of direct evidence both lookingt charleston coud district wide to establish that the plan adheved General Assemblys political goal. Unique among all the plans presented at cyle. And mped with traditional district principles both in Charleston County and in district one, district wide, uniquely among the alternatives presented at trial if thats not the definition clear error, i dont know what is. If thats not the definition of departom the presuption of good faith and extraordinary caution, plaintiffs no longer face a demanding burden in these cases. I want to make sure you have a chance to summarize the ovid why charlest county was the way it was split. Thank you. It was done for political reasons beusof course it was part and parcel of achieving the district the goal the cal goal district wide. The big the most siant move that the enacted plan made wasarleston county. It moved the west ashley neighborhood from districtne to district six. That was over000 of the 140,000 pehat were moved from district one to district six. West ashley is a close suburb of charleston. Ajority democratic and predominantly. We gave figures to show that that move incular had a much greater impooskt the political composition of district one than its racial composition. The people involved, is itself more easily explained by politics than race. The line in charlest county improved compliance with aditional districting principles compared to the benchmark plan. The ben plan had five split v. T. D. sCharleston County. The enactedlan does. The enacted plan also followed natural geographic boundaries such as rivers which are very ificant methods of transportation and commerce in a un like charleston. It also achieved senator campsons policy goal which was to keep two representatives in Charleston County to represent the countys interests here in washington, d. C. Could you explain that more . Senator campson testified he lo having jim clyburn represent a portion of Charleston County because ngressman clyburn is one of the most powerful democrats in congress. What the senator explained is if it werent for congressman clybur of course he wts congressman clyburn representing the interests of his home county of charleston but he witnesse to keep a republican there too in case theres a change in leadership in washington. The senators o dft map kept the split in Charleston County. He wanted to keep a portion of Charleston County in his district as well. What was the black voting that map . District one in it waon 15. 48 ,er than where it ended up under the enacted plan. By more than a point. I have a question abo gusas expert report. The circumstan evidence is what the plainffrelied on and the whole issue o disentangling race partisanship. I understoodour brief to say, but yohant said this yet, so i want to make sure i understand it correctly, he did not take into account factors like contigusns and compactness so he was assuming that youou have essentially an island c off in the middle of the districthat would have more black voters which would obviously then not be contiguous, am i misunderstanding that . Thats correct for his count analysis. What he also didnt do, the other piece o, is control or test for tonal principles. Thats on page 197 of the appendix. What we mean by that is it would beosble to draw different lines for district one in county. Charleston county or dor chester which are both split. If you want to grow out if you want to go out and grab that other v. T. D. You have to go elsewhere. If youre picking up other population you have to offset that somewhere else. What a prorl done analysis does i this court rognized in allen would test whether the decisions made are more or less consistent with traditiona principles than the decisions the expert is proposing. Dr. Ragusa doesnt do th he, he doesnt control for traditional priips like continuity. The analysis done and this court crededn cooperecause of the thinntioned before about his regression analysis using only an average political number rather than the actual political number in each v. T. D. How much of a point did you we raised many we raid t . Lot of objections to dr. Ragusa and his methodology in the District Court. Can i drill down on that a little bit . I think thats at the heart of one of my concerns about the ens and some of the questions that weve heard. Yo put on plity at the district my my understanding is thatrendi kid not as an expert undercut the methodologies of ragusa and is that correct . He didnt do a kind of method logical analysis of rag did he . Pointed out some flaws in his expert reports including use of total numbers instead of percentages. He talked about the continuity issue in the county envelope analysis. So he did . He did point out some method them out as well. We pointed what if the District Court disagreed . Thdirict court relies on ragusas expertise and you say that you challenged, although you did notng an expert roar report that met ragusa at the same level b y raised the objection. And the District Court disagreed apparently, right . Thats correct. So i guess what im concerned about is that i kind of hear you wanting us to do a de novo review as opposed to a clear error review. Because to the extent tt youre now asking us tlook at the flaws in ragusas testimony and i guess disagree with the dirict court crediting that report, that sounds to mee de novo. I understood from cooper that the clear error standard, and i had it here a second ago, is a highly deferential standard the court mayoteverse because it would have decided the matter differently. A finding thats plausible in light of the full record even if another isally equally or so must govern. So to what extent do we have to cred the District Courts disant with your objections to ragusas report . Thats a great quest let me give a couple of responses. As you reafr cooper, the court has to decide whether is plausible in light of the record and the entire evidence and the District Court ignored other evidence put forward. What we were asking the crto do is doing what it did in omartie 2. There was an expert who diddabl analysis of v. T. D. s moved in, ved out, potentially available. They put forth an expert to give the contradictory evidence. But wasnt cromartie 2 a majoriority district scenario . Sure which is all the more reas the racial target theory in this case makes no sense. Theres no clear motivation. I understd. I guess so keep going. Cromartie 2. Crow mar the had the sameituation with experts. District considerate excluded the defense expert. So that expert wasnt considered by this court on review. But this court went through as part of clear error to ensu the District Court h n relied on clearly erroneous ebltion pert testimony and bad methology. But how does clear error work in that . I understood the standard now, postcooper, to be, is it plausible that the District Court could have relied on ragusas testimony and could have found it be reliable and in the absence of a defense expert thats actually folk join it in progress. Im wondering how we are to assess the courts determinati it disagreed with or didnt agree with the experwhen he said i was looking at partisanship and not race . It s not a credibility determination bause the court never based that on his demeanor on the witness stand or at trial. The court credited other evidence. There was other evidence the court didnt discuss. So youre saying the court could not have ty asked him the question, moving that line up into the afranamerican arias of north charleston, you would say, s for a partisan lean, correct . And the witness said yes. And they ultimately find that thats not so. So why isnt that a fining, i disagree, i dont believe you . A credibility determinati as we pointed out in our reply brief requires a detmition of the demeanor of the witness on the stand. Otherwise dtrt courts can wrap their factngs in credibility demtions in an attempt to avoid review. They didnt even do that here. There isnt that kindf credibility determination. But even setng that aside theres all kinds of direct test from senator hanson, the sponsohe bill, senator massie, the Senate Majority ader, representativeor dan who also testified about Text Messages in the record. What would a plainffave needed . This is my final question. T what would a plaintiff have needed in yourie direct evidence, a statement that says, we are using race and not partisanship in this particular area . That or an alter map that disentangled the two. Or if you think the alternative map is not requiredl evidentiary pictat sws that tradition principles actually were subordinated to and heres theres been no snoarg reasons i i discussed with justice kavanaugh. Charl 207b county complies with traditional principles. Thank you, counsel. Mr. Chi jtice, may it please theou no party disputes the rule that absent predominant interest race cannot be a means of line drawing to hieve a goal. Here they conclud re predominated over partisanship based on strong ftu findings including that after map drawers moved more than 193,000 people in and out of c. D. 1, it maed identical to the 2011 map. They sorted more than 30,000 black charlestonnians, removing 11 ofhe 12 brings with the highest black voting age population. This Massive Movement disregard the least change approach the state applies statewide. And that mapmakers admitted they anned only in Charleston County which had been c. D. 1s historical anchor. Disentangling race and Party Affiliation using the very methods this court accepted in cooper, the panel credited the unrebutted expert testimony that race was a better predictor than partisan affiliation for the design of c. D. 1. Under the clear error review anrds, this court should affirm the panels factual racial gerrymandering factu finding because it is more than plausible ilit of the teale to tal of th record. Apell lts also cannot show they cmied a legal error, particularly in its rejection of the alternative map requirement. Finally, t rord here is indeed the inverse of cromartie 2 where a majority of this court dermed that mapmakers designed the district using political voting may haver over time. Rather than relying upon racialster y types. Here, by contrast, the panel found noncredible the appellants assertion that they relied on merely 2020 partisan performance data for cd1s design. I welcome the considerates questions. We normally have lternate map in redistricting cases. We dont havene here. In these instances where you have a high correlation between race a political affiliation, how would you constitutionally dintangle it . We have something we believe at was better, if not comparable,o alternative map. We hav this unrebutted testimony of dr. Ragusa. Thatesmony is corroborated byheestimony of dr. Lieu. If you look at the amici briefs of the political scientists who performed the analysis in cooper, they value tate that the methods dr. R u and dr. Lieu used are the aim as in coer all the potshots made by the defendants in ei brief about dr. Ragusa analyses and dr. Lieus,lmost all of them, i can walk you through them were made in discovery or during dalbert motions or tal and the court didnt reject them. It is unrebued evidence disentangling race and par which is a form of circumstantial evidence but akin to an alternative map. If you look at dr. Ragusas rebuttal, he charts out all the v. T. D. s in c. D. 1. He looks at the whether the racial composition or e political composition determine their placement in the map. And you can see that r of the five heaviest blackrencts were moved out of c. D. 1. By contrast, only five of the7 majority white precincts were removed from c. D. 1. And this is again unrebutted testimony and it serves the pup of an alteate map because this Court Unanimously in Desert Palace said theres no particular form of proof a plaintiff needs to show in an equaection days. Counsel we have said that the burden you are assuming of disentangling race and politics in a situation like thiss very, very difficult. But it is your bde right . Yes. And youre ting to carry it without any dect evidence work no alternative map, with no oddshaped districts which we often get in jerry mannering case in gerrymandering cases, and with nothing youfrnds on the other side would ignore the lieu of racial data. Have w ever had a case like this before . Have we ever had a case before where all it is is circumstantial evidenc i think the closest we might comeo it is a casli gamilia wherelaintiffs would have lost if theyd been required to have proved by direct evidence where the circumstantial evidence was overwhelming. Here youre asking whether ers direct evidence that the of race, we do not have that. Is but what we do he is factual finding that the mapmakers had map data and race data. Tre a lot of back and forth on it, you have the clear error rd in reviewing that. But weve never had a case where theres been no direct evidence. No map. No strangely configud districts. Very large amount of lical evidence. Whher the District Court chose to credit it or not. And instead its all resting on ciumstantial evidence. Circumstan evidence to determine what we held as recelys in allen last year is something that is peculiarly in the provie the states in drawing the districts. Im not saying you cant get there but it does that this is the th would be breaking newround in our Voting Rights jurisprudence. Respect fri i disagree. We strong, this is not crare. We have strong circumstantial even where were not relying upon the court did not rely up foregone alternatives or conclusion about what happened. We have a racial target. The fact othsenate was proposing various maps over the legislative process and moving 193,000 people around a they can only explain it as being by coincidence. The fact that e question in the shaw case is whether there was a signifan sorting of black voters on the basis of ra. We have 30,000 charlestoia moved out of c. D. 1, out of eihome county. It cannot be explained by let change, the priority principle they said was guying their map. Sorry t interrupt, that is to change the vote perg centage in the district by hutch . Ultimately by 1. 36 and senator canson used that 1. 36 , the lead sponsortoisclaim this was a partisan gerrynd in the process. The Court Accepts they had a legitimate means to achieve this politi goal. Weont dispute that. The court accepted they had the political preference to bring in counties. What the court acknowledged is when they brought in those counties, there were black people brought in alongside wh them. That led to an increase vbap in cd1 that became too politicly risky. For the black people they brought, in they offset the black peopl by expelling them from crleston county. This goes to the heart of this courts jurisprudence this is ng rights case, correct . It is a gerrymandering case. And they did all of these things to increase the pcentage of voters the wanted by 1. 6 . 36 you had four sophisticated experts. Any reasowhy one or more couldnt have drawnp map that had the stated goal that had a different effect on the ra composion you thought the state was going to defend this without making thergent that this was done to increase republican chances in district 1 . Yes it was not in the guidelines for the legislature they were achieving a political goal. There are statements that we have included in our befhat people were disclaiming this was about partisanship. You had very extensive discovy. Didnt say that memberhe legislature and tcovery didnt say this is what our aim was . They we a disclaiming in the leadup to trial. And the record better than i do and particular surpse that people did not brag about the fact that they were doing a rtan gerry p man deer. Until they got to the point we get to the case . That we were looking rohout the legislative process and running these reports and looking at the coection between racial data and Political Data because they believed whether rig o wrong and relied on oneie of partisan data they were relying on to understand the ramifications. Do you have evidence of that they were relying on race . They were looking at race on the screen. They had the racial data. Isnt that surprising . We dont have aroem looking at race data or race conscience but no reason to do it. I t that made it to ensure compliance was asking him for the racial data. There has never been a fense they were trying to c. D. 1, they disclaimed they were looking at racan found noncredible. The experts tested, do the maps, racial data than partisan data. They used the 2021 data and the ctor demonstrates that race s a betr predictor and only single piece tt they consta for the senate was unreliable for predicting political behavior. These are why is there so little eltoral data . If you were using electoral data, why wouldnt have more of it . They haveore. They gothe 2020 president ial data and 2020 senate data. The state election Ts Commission isefding in this case and tons of data d d not use it. They were lki at race because they had an eectation that race was a predictor for how political outcomes would perform. This was shown in the closing ar that showed it connection. And he was relying uporaal reports and some reports that were being generated. An once again, more than plausiblth the court said and total of evidence that there was consistency despite the fact that maps were changing overtime. The house tried to change it. Andheenator intervened and the house adopted a map. They were proposing maps around 17 . And in the colloquy with mr. Roberts, the court asked what would happen if you bring in counties tt are not majority black butow majority black. And he acknowledged that. E so closely aligned as theyp are, in fact, why is it surprising that a legislature that is pursuing partisan goal bough vo a map that turns out consistently to have the same evap . If they are using race as a means to get there. This court said a legime interest cannot aie if that is what they are using. And race and politics are so closel aligned, it isnt surprising and get a district that has aerntage you are going to get a district that has a steady evap. Eve if the map maker wasnt ju looking at race, the court said it was in his mind and they were looking at race and keeping it at 17 that wked at 17 prior to 18 and after 2018 and defending this map as being least changed. The department of justice that surviv a constitutional challenge and said we want to make it more republicleaning at trial. At the heart of ts, they served their purpose b focusing on therecincts leaving alone white precincts in chacials ton what about ashley, west hl was moved out. Cited by e urt. This is a Historic Community that has a lot of mixed precincts. Premintly white. With the highest black populations those were targeted and the court recognized that white voters y be impacted by this map a because there is a light and threejudge panel and recognized there were white voters impacted but their evidence is race is a better predictor for movement and plaque voters wereargeted for movement and thais unrebutted. The report says they cannot explain the 30,000 moved out. They have never bee able to explain that. Which complies with the questioning. This goes to what mr. Gore claims is a very serious flaw in dr. Ragusas methodology. Mayav may have a good answer. Theemmings tour is ensuring that district one has a republican lead, then all else being equal, which t following two precincts would th rather include in district one, a district with a precinct with 3,000 residents that went 900800 trump or a precinct with the same number of residents 3,000 that went 700600or biden. Which one wldou rather include a republican legislature. I would like to know two things with respect to the racial makeup, we know that the legislature knew not on the partisan perform appears and knew you dont kw ything about race which i what they cim. They didnt takeace. And all before you is 900800 for trump and want to keep a puican. Former. If they were looking at pure partisan data and voting behavior over time that is the problem ty claim with dr. Ragusas methodology. The one you want to keep is the one with the greater number of tefor President Biden and keep the district that wt 900800o ump because as opposed that went 700600 for biden. In the rebutta report controlled the prenc side and controlling forha determined that black voters were moved o and white voters were kept in and tt is unrebutted data. He looked at the absolute number of votes for President Biden, not the percentage, not the net votes. And he testified while looking at the total net was the better methodology than the percentages and this wasesd below and district crt did not accept these arguments. Are we retrying expert testimony on appeal or three judges consistent with cooper, are their findings determined giv the deference that the appellate is to give an unius opinion and there was a racial tget and sorting of plaque people and ra rather than party explaining the assignmen of voters and disregard of redistricting presumes and that is more thanlaible and using race as a means to harm individuals mr. Scott. Thank you. Justice alito. Im concerned whahabeen said here about mr. Roberts. And as i asked mr. Gore about that, is it not true that hhas long record working for the legislature and drawn maps to republicans and democrats . The panel acknowledges that he used race but denied dngo in this case. In this trial, the judge the judge had complimentary things to say. I know mr. Roberts, he is a very precise guy. What i want is if that report, talking about a particular report is inaccurate and im persuaded and tells me its not, thats good enough for me. Comply men temporary is his honesty. Honesty in footnote 9 recognized that a yeaafr trial, roberts cited with the maskup which was incomplete with his noncredible denials that he did not look at race. The District Court turns around and said his testimony ringhollow and nice way to say that he lied. In coopewi three reasons. And i nt you to telle ich one is the sensible. Third one is what you just mentioned. Indep is that damning . O. It is the incredible denial including his testimony but also with t eerts demonstrate and the movement of so many people and the coincidence. Thats one. The second one is roberts failed to provide the court with any auble explanation for the abandonment for his least changed approach or t subordination for a maintenance and and avoidance of gerry deering. Mr. Roberts admitted he admitted he wasimg to produce a republican dtrt . The court accepted that but the court recognized in cooper to use racism is unconstitial. Isnt that a plausible plation . The court heard that testimony and Racial Movement as the expert testimony ay have the opportunity is there plausible reason, did theyay we dont believe mr. Robertbeuse he had a shifty look on the stand . No, your honor, plausible, but this court is noto look at that but whether or not ao circumstance would it be plausiblehat the outcome be what it is and the court was correct. Last one is i admitted his moment of africanamericans was incsient with the clyburn staff bn for charleson. Dide er say we followed exactly what congressman clyburn asked us to do. Did he ever say that . The statement makes a big defense their wpo is what representative clybu w seeking. The befhows that is not what the record reflects and congressmans clyburns map didnt treat the map of that sorted basis arbitration than it did not harm wesasey in the same way. Lete me back about why yourxperts did not produce an alternative map. The doctor produced 10,000 maps, right . Correct. Simulation with 10,000 maps. He never considered politics. His testimony reflects that he tested for the criteria that the state was using in their idines the objective criteria. The two docto a used as further support recognized to show that race was a significant factor. Sean trendy or trendvaated dr. Ragusasaps that the democrat would win 90 of the mapsha dr. Ragusa produced. Did the doctor use the pital data and decided to shelf it when the results were not favorable tyour client . It never occurred to him that politics mig have something to do with this . This is being tasked with particular questions. I dont believe every requirement look at every decision that one might go into. Each expert looks at different things. The two doctors served the purpose of this and race was more present dwicttive. And helped counter this narrative andllf the evidence demonstrates and frankly the doctor used all of the traditional redistricting premesnd these were always pretrial and this is what trial courts are givenheuthority to do not what is hpeng here but relegitimating the eert testimony. He did not control for politics. Did the District Court rely on dr. Liu . The analysis of the political scntists that he used the same methods and his analysis cyst substantiate and point in the did dr. Control forolitics . You look at one of her supplemealeports and looked at how the maps were fair when you put the candidates of plaque and determined that plaque voters pformed worse. So that is one way she looked at partisanship. Did dr. Liu and dr. Ragusa use it . They did. And the other doctors and cooper and hill. There are two people who live in the same Apartment Building under the county envelope method does the analysis that one can be moved and the other cant. One could stay in the district and the other could move . I dont believe that is the case because the county is relying on precincts. Does at this time assume that all precincts could be moved regardless of their locatn. Within the county eelope that a county like bkley or buford. So it is fair for dr. Raga to assume that they cldave been moved to c. D. 1 and black vers were at issue. Justice sotomayor. I understand the reference that you are using, but i understood that dr. Liu was to produce maps that the sta sd it hassed. Thats correct. H never looked at partisanship becsehat is one of the criteria that was first used. That is correct. But as i understood the record and i know Justice Alito thinks it should have been assumed th partisanship would haveeethe defense, dune if the answer in this case raised partisanship as a defense . I dont believe so. The legislature predicated their line drawing. You rely on what they said during the process. The legislatures he come up with justifications. But the Panel Accepted their justifatn and present sume and allowed plaintiffs to test whether that was the true reason and found that it was not. What your expert shows everything they said during the legislative process had to be racebased in some way because thats what the evidence showed. Eyouldnt explain the large movement of plaques as oppose tohis. And democratic whites d plaques and had to come up with a different reason, correct . Racism means is constitutional suspect. Air and black precincts and moved out along side. He point is the higher percentage of blacks than whites moved out, is that right . There are a lot of white people that moved out of district one. That is correct. And the court look about it and talks about how you may have a precinct 10,000 whiteeoe and 85,000 people i and still a minority and the movenof those precincts would not affect the overall district and what the court d t a new argument and considered by the court. The other side makes a point that the original anhat came from representiv clie burns office had a ler black voting population for dtrt one than what ultimately emerged. I want to get your response to relevance of that. It is iter because i dont his maps determined the sorting that was done by the k decision makers. And representative clyburns office, they provided a partial map and the state drew out the partial map of one district and omhere drew out the oth Six Districts and dont kno what the record rlects. And that isetailed in the brief that he submitted. Justice jackson. Im struggling with this standard and the application in this. Ju alito asked ar of questions about the reasons that the District Court highlighted for why it did not credit mr. Roberts testimony and cons what i understood the standard to requi i didnt know we were to evaluate whether we agreed orisagreed with each of their findings and whether we would ha a different takeaway from the fact that his testimony, the districcot said itan hollow, would that be a basis for clear error. Do i not understand . I dont believe that you do. The credibility determinations, the ability for the court we think is plausible and the fact that we descroa with that disary finding is not the sis. So maybe, car error the District Courtidnt have disary findings and are said nothing. But they did havthe reasons why they didnt agree with him. I want to be clear as to what we are looking at from the stand point of clear error. Tre are atea three reasons and why the court did not credit all of his reasons and the why the map was drawn. But that testimony did not align with the other facts in the record which refct that race predominance was ourng in this map and that is overall a finding not ly by the disentangling method but the states own data. I want to ask you about and moving in 900 trump voters, a district with 900 trump voters. I may have gotten itrong, i think his point was if politics is at play, then clearly you want to bring it in the district more trump voters if you e going to get republican help. I guess what im trying to understand is how it syshe race. Unless you are looking at if you bring in the dtrt with more trump voters, the assumption ith everybody is operating under, that district would have more white voters in because race is with politics. I would expect that id drop. And it stayed the sd i understand your argument toe because plaque voters were moved out, that race was used to move out black voters and whenou brought in the 900 trump voter districts. Is that point . Yes. And s and and remains the same in a situation where you are bringing in more white voters and moving out plaque voters in this kind of circuman, you are relying on race in a way that you say is improper. That Political Data that the were drawing from in order to do this. In their minds they we using race as a proxy to predict partisan behavior. Thank you, counsel. Thank you, your honor. May it please the court. The court has recognized where ste defendants have claimed the use of race andnyacial disparities are the result of correlation between race and political ation and it requires sensitivenquire. Plaintiffs have to disentangle race and shows not where to plac the District Court found they have done that here. On appeal, this courts job racial predominance an when there is a politics defense and impose hurdles as a mat of law. Defendants in this case i welcome the courts questions. If we find to discriminater there was on a vote to claim, thats what im more interested you want us to send it back. Shou we simply resolve it here. This court should remand on the second claim. And what should that standard be . The District Court took the findings but the intent standard is different. Arlington heights inquiry. T claim. It seems athose that would collapse into one another. E redistricting and dealt with on the second standard. Im wondering if the standard is tent with respect to the that, why should we remand it. E i dont tnk they made it. And asked that racial and different inquiries and asking about a specific intent to dill lute. And in the line decision. You are saying we couldnt determine that onhe record that is here . And instruct the lower court about the standards and send it back about determination looking at the full record if they had occasion to reach that. I guess astion is im sorry, chief. You review a lot of these cases, right . And not in racial gerrymandering. Have you ever supported the plaintif a case whe tre was no evidence of direct discrimination. No orderly shaped districts and volume and volume of Political Data . Can you think of one where your office has done that before . This might be the first case where there hasnt been direct evidencef compliance. But i do think you brought up the alternative map and they answered that same question whether evidence or politics. Tts one of the things. I brought up the absence of direct dination and orderly shaped districts and the great volume of political evidence. And anythinghahas been done on racial basiso ange the population in the district of the desired voters by 1. 3 . My point is a clear one. Haveou ever seen anything like this . The court has a firmed on a substantial record North Carolina versus covinon they said the state is not denying theislation to not hook at race and said it was permissible find based on dehic information that race was relied upon. And the district did look at traditionally and found they were a ts is not contiguous. There was a Charleston County divide but i dont think the case wholly supported the states. And i will go back to the evidence incase and reduce toxpert and liu has been talking about whether race or po that were driving it. And improve upon it and present sinks rather than by voter by voter and ran an aggression analysis. I want to explore the alternative map, nonrequime. Everybody seems to take this given that the legislature did seek to pursue a partisan or the preferred term. And thais given, rht yes. And that the plaintiff bears the burden of overcoming a goodfaith presumption that the legiate is doing what it says, right . How do you prove they e ting in bad faith without showing they could achieve objective a differentay that could be evidence in different casesndhat the court said in cooper. You haveo have as a matter of law. And im wondering why. There is a burden of proof. And cnge in the world. Anderthe analogy would be a butfor world, it could ve achieved wtever you think they are in some other w without doing what it did. And there is novince that the legislature could he achieved its partisan tilt in any other way. What do we do with that . Couple of responses to that. I think the evidence. Alternative map says if you are relying. When you have done and maybe done this other thing i could have achieved the same partisan objective. And mapdrawing technology and spit out maps, i would have thought that would have been a modest burden. What am i misng what better explains how heins are drawn and the evidence soys that. I thin its going to be a more complication of cases. Defendants want their alternative map requirements where there is no or direct evidence. You will have a mini trial t bring the tool into play and you will have litigation and appeals on what the map has to do. mot interested in what is a requirement or not. And simplest and achie i from municipal ends a se other way. Inost other scenariosnd antiy trust cases, there were 15 other ways to achieve that what you said you wanted to achieve. And idce whether it is qued, that you shall not telling the truth what you are up to here. It can be probative evidence. Ihink the plaintiff answered the same question. There are maps in the record that did have a higher th stayed based on the 2020 election data. I dont i believe thoseaps are the first house map plan. And so whether it is easier r a plaintiff to do that case, i cant speak to those choices. So no matter ud da tower it is, onlwayou can satisfy yourself forhaver your political reasonsr thats illegal. This cour that in cooper. So the bottom line is they have maps that were created tha reached kept tm republicanleaning and f whatever politaleasons and what they went back to is race to make the map they made . Twhathe District Court found, yes. This is just a matter of riosity. Your answer was you couldnt use race to draw the districts, right . Right. Or you would be in strict scruny land. You can use race to draw a majorityminimum y dtrict in. In that cirmsnce where the overriding consideration is to draw that district and that determines how heins are being aw and then you would be in the co half and you would ask the scrutiny qstn odds of this context do we use the standard in our 1h amendment analysis . Im not aware of that context. Jus alito. Justice kagan. Its a funny case, because first post case, you could understand completely where why it was map makers started doing race in order to hie partisan gerry man deering. They were afraid it w going to be unlawful. And all these partisan gerry man deering have been found to found i dont get it. Why people keep using race. Use the election da d use the grymandering. Why would you ne race as a proxy. Why would map makers in general and in this case use race as a oxy to do partisan gerrymandering . So, i dont have a position to speak in general, there was evidence in e record that the policawas limited and it was a ng election that wasnt coressional. And it was not looking at the dure built of voting across elections it was plausible foth District Court to find that the map makers would have relied on map makers. Justice gorsuch. It would have been plausib for theisict court to come to tt conclusion and find that the simplest explanation is they wanted to do politics and they did politics. W should we think about that . We made that point in evious cases before this court. The most plausleeading of the record or on t whole supports. It asks whether the District Court is plausible based on the entirety oth evidence. How does that fit with the presumption of good faith we asked people to make sure they are not overstepping their bounds and getting involved in stateocal politics . We thinkonnection of good faith and havehe burdens work here the plaintiffs did ha the obligation and predint standard is a High Standard that accounts that doesnt find predominance on consciousness and setting the bar that high is the legislature is the choices. Justice kavanaugh. Just to follow up, how would this court look at a record and come to the opposite conclusion in your vie the evidence play roll and the District Court makes a you looked at this recor and concluded that the District Court could have said no that expert evidence is not reliable or probative in light of the Overall Record to support the plaintiffs case . We think the evidence is a big part of it and came out with threejudge panel and we werent the sing the witnesses firsthand and we take the point that these are difference ces like in cooper. So you can describe tributes to being in politics or race and given that, we recognize that District Courts ve a tough job to look at the entirety of the evidence and whether or not to carry the burden. I think big theme of the other side and thats all over e briefs a amicus pref. And the Political Data is n good enough to achieve the end over a republican tilt. Do you agree with that . Evidence in the record to find tt. What if we disagree on that point mentioned that acts about the reliability of that data and suppose wthk that data is fairly probative, does the whole se the plaintiffs have and District Courts, all fall because that is the lynch pin and responswhh is relied on this data if that data is good, should weeverse . I dont think so. An even after about 190,000 people were being moved in and out of the district doesnt that show correlation . Im not it does. And and how people were moved in that area and the District Court found were a racial target. There is therend plaque voters being takenut and same Political Party andhey had there was expert evidence. An explains the lines here. Why do you think 2020 election data is not pbave the term you want to use there that it would have made sense to relyn that . And looking to just one election and not an election for thrace you are and patterns. Weood at multiple elections and voting rm patterns. You think looking at 2020 and were you a trump voter or biden voter is q y are going to vote for nancy mace . How votersre more likely and white voters to vote for a candidate and switch across party lines and given that evidence it was possible to rely on race teve its political goal. [iisrnible] in light of the Legal Standard and talk about factu andtiffs have a heavy burd and we give the legislature. And made an error judging the factual record and the chief justice has outlined in a pretty concise way in the evidence that isubantial. There is a reason why theeport keeps coming up because it was the best of the expert report that tried to disentangle race and politics. And you pointed out and so did the respondenthathey didnt point out arnative map and eviden that was justod because it made similar points but this is my question about the doctors evidence. Is it control for rpoent trying to address this problem is one that we have been asking aboutnd struggling with that respondent said so many experts talked about redistricting criter and disentang. Did anyone talk about those and i want to sure im understanding dr. Ragusas testimony . The methodology looked at the area of three things can be drawn that are constituted in the are and that is bui ithe analysis. Oking att is the available from which the map makers had to draw. And my fris made the point that theoretically possible to they took into the entetof the two counties when they drew the map and it was to do the same thing and figuring out the areas which he could draw. How do we think about e situation i outlined where the plaintiffs burde and heavy how should that affect our view of the facts . Itoesnt effect it. And on review. Actual findings and. I wanted to ask about the questions that justice kgh asked and whether not it is reliable. Is that a finding of fact or is that something we are apt to or allowed to take into account ourselves . That renders the racial target and so no, i dont think so are we looking at de novo. Results from the fact that might disagree about the reliability of the president ial election do owe deference with regard to their determin having thata was not enough and that race was at issue here, do we owe any defencto that . And there is a question about th data. And i think this is because this court is looking at thence to determine whether it i and this is coming up. And with respect to this question about maps. Wondering whether or not an ative map is helpful with reect to the contention that the districtaseing orderly manufactured withespect to who was being moved inor out. This is the same question i asked plaintiff eye counsel. Politics is driving at a m level and the map makd he would like to ilu. That that republicaing district has both white and black voters in it. I do not know if thats right but im walking ithugh. But in this situation, the map stays the same at the end of the day and we had evidence that the mapmaker went into t rest of the district and moved out a certain nbe of democratic leaning voters who hd to be black, or because they were black, but that is what ma the map remain the same is that we have now moved out black democrats to account for i guess the republican leaning district that we have inc is the use of race in that way, i have now got a higher bvap than i want and i out black voters, not white democrats, black democrats to bring that down, is that a violation in this world . Yes. We think that was a very probate piece of evidence. What would a map do . If that is the kind of violati im trying to establish as a plaintiff, what i dont understand is why having an alternative map is going to illuminate that in any w. An alternative map can show a different way that lines could have been drawn and show wheer or not it could accomplish some or all of the defs goals. I do not think it is the only way to answer this questionf what was driving the decisionmakings. I this dynamic is what is really bothering me as a plaintiff, i am putting myself in their shoesitoes not make necessarily makes sense to me that you would pdu a map t proofo that dynamic. Ve expert testimony, you would explain it all through but i do not see how a map would be helpful if thats the dynamic im trying to focus on. I think it wa very for plaintiffs offered expert testimony,hether piece did as well. Substantial sometimes withix of direct, you kind of have te the record and see what persuasive conclusio can be drawn. The governments position is that you do not necessarily have to have a map and you do not necessarily have to have direct idence. We have been hearing a lot about this lack of direct idce in this case. Is there a world in which you can put together a ca that demonstrates that race is actually operative in this environment without direct ence and without a map . Yes. Thank you. Counsel, a rebuttal, mr. Gore . Todays argument underscores the alternative map requirement is so vital. It ensures that racial gerrymandering casain focused on Racial Discrimination and nonpartisan disputes. Ao ensures that the grave finding of racial gerrymander rests on actual evidence of racial predominance and not ble expert analysis. If the doctor were correc race better ex the plan in politics, it should have been very easy to draw an alternative map th dentangled the two political lien in district one. They failed the requirement. They did put alternative maps into the record, so ad the capacity to do that and all the district one into a majority democratic dtrt. We heard from counsel from the United States about two plans, t he housestaff plan and the the plan, neither of those crease the republican tilt and neither so, neither of those in fact, senator kamps andd. Became iold in drawing the and sponsoring it, precisely because the housestaff planned to to threaten to turn it into a journey democratic strict. There was an alternative map because ther been prior municipal boundaries in tuskegee thaterprovably square before the redrawing that was done in a discriminate area w discrimination which is aas totally different case from this, for a host of reasons otherwise. Let me address the pbout election data. The District Court did not find e 2020ion data was unreliable. He District Court t district cou relied on that data. It used that data iustrate the correlation between race and politics. It thought that data was reliable and all the direct evidence showed it was reliae and far more reliable than racial data thatnot addresste voters and does not address turnout. The reason that the General Assembly used only one year of election data is a simple one in that 2020 was the first year that the Election Commission allocated absentee ves down to the precinct whereoter lives instead of at the county le it was more accurate and finely tu data, Political Data, than any data tha come before in the history of south carolina. This is a circumstantial case with weak circumsta evidence. There is no direct evidence, no alternative map. Here we have a plan tt complies with traditional diing principles in Charleston County and in district one and did so better than all the alternatives presented at trial. There was a mention of contigty the distourt also made no finding about contiguity. The enacted district one is contiguous, by water. Every plan drawn in Charleston County is contiguous by water because charleston count contains islands and rivers. There nothing suspect about the contiguity of this particuln. We heard about the covington case. Th a remedial case. A remedial case where panel had already found racial gerrymandering, sent it back to the legislature and determine the legislature had not adequately fix the problem. It is not a case in which there was only weak circumstantial evidencepport a finding of racial gerrymandering. We heardoday that the legislate cord gave no indication that the General Assembly wwing lines based on politics. Thcompletely incorrect. The guidelines from both the usand the senate permitted the General Assembly to it based on politics, to draw mmunities of interest based on politics and the house guidelines went evenurer. They allowed the General Assembly to around communities of interest defined by voting behavior, whi exactly what the general is some we did here. The generaasmbly did here. Ws, a democrat who opposed the plan,et on the floor the nate it was about politics. She even disclaims the allegahat it was about race. She said that senat kps had drawn based on how people vo including also, this political go w made clear in discovery. Roberts testified in senator kamps in an senator massey and rntative jordan. And Text Messages including from representative jordan tablishing the General Assembly had pursued a political goal. Weve heard a lot of discussion today that mr. Roberts or others were aware of b mere awareness of race does not the question here is whether race was actually used to draw linehe predominant manner. That d did not happen on this record and the District Courts own description of what the General Assembly didisproves it. It said the first move was to move in berkeley and beaufort countys hole. Once you do that, you can finish her sentence. You end up with the district with a 20 , the majority