Transcripts For CSPAN3 Lamone V. Benisek Oral Argument 20240714

Please the court, id like quickly to try to reorient the court to marylands case, and then if i can, address some of the concerns that i heard in the argument that you just had. In this case, the court should reverse and vacate for three reasons. The First Amendment retaliation test that was adopted, a single test was used here, fails to provide a management standard because it does not give courts and legislators the means to distinguish between excessive Political Considerations and those deemed constitutionally acceptable. Was this an excessive political consideration . I dont think it was, your honor. Whether the court may like it or not, this is the norm for states where one party receives more than 60 of the vote in congressional elections, those states have a lineup if thats right, then your defense is not really that we cant tell the difference between excessive and nonexcessive. Under measure this is excessive, isnt it . You only need 10,000 votes to do the population measure that baker requires, and instead, map makers moved 66,000 republicans out of the district, 24,000 democrats into the district, flips the composition of the district from 47 republicans and 36 democrats to instead 45 democrats and 34 republicans, effectively ensuring that republicans will never win this seat again, and that maryland, which has about 35 republicans, is going to have one Republican House member for the foreseeable future. How is that not excessive . Its a number of things wrong with that, your honor respectfully. It starts from the perspective we take one district and assume its the whole universe like the fames requesting new yorker cartoon, you see new york buildings and not the rest of the country. Maps are formed from piecing together parts of the entire state. This one sixth district was heavily influenced by the decision that this nothing to do with partisan politics, that was to remove a crossing across the Chesapeake Bay the stated goal was 71. For some it was. But it was a goal governor and others . The governor, speaker. I dont think you should run away from the obvious. The crossing the bay thing and the easton grouped in with talbot county, that is just as opposed to just crossing the bay, when everyones saying we won 71. I dont know if response to Justice Kagans question you should run away from the obvious. I dont think its running away to say there were a lot of other factors that had to do with this. The change in the First District that resulted from the bay crossing changed, a competitive district that democrats have been able to win, to a heavily leaning republican district sure, to make the others all the other way to get from 62 to 71 or 53 or 62 to 71. You get the sixth and eighth both democratic, the first is going to be republican for the foreseeable future, as Justice Kagan says, but its going to be 71, thats the stated goal. Thats the goal thats effectuated. To get to the goal you have to discount other statements in the record which you cant do on summary judgment, governor omalleys Statement Given the population growth in the western part of the central part of the state, Montgomery County primarily had the largest growth, youre going to see the most changes up the i270 corridor. Youd have to say the i270 corridor is a community of interest . It is. That was established in this record. From independent sources that have nothing to do with they should have put it in the eighth district then. Whats that . If the idea was to unify the i270 corridor, i look at the map and its very simple. Put it in the eighth district. That would be an injury according to plaintiffs on complaint because they say packing is an injury thats remediatable, and that would be packing the democrats. Thats a heavily democratic area that had more growth in the entire state, the most growth there. It had to go somewhere and north was a reasonable direction for it to go. Suppose for hypothetically to get away from these facts that what we had, use the threepart test that you just heard. One, there are 42 bishops before whom they swear that they did this just to help the democrats. Now we look at the map they used and the map, by the way, showed in statewide elections governor, the republicans won. 42 bishops say they swore, in other words its indisputable. Second, that this will, in fact, make a difference of who how many republicans there are. And third, that its absolutely durable and there we get the greatest statisticians in the universe in there, okay . Imagine ive exaggerated enormously. If that were true, then would you say this court should intervene. Its indisputed there was a clear and absolute intent to do this just so the democrats could get the district. Number two, indisputed this will have an effect of giving this district to the democrats and number three, its a big effect, and number three, it will happen for the next 20 years, okay . So we got all three parts, i think, if i understand it correctly. On that assumption, would you say this court should intervene . I dont know that i can. Justice breyer you expressed the need to limit it to the extreme circumstance. I just pictured if you have that circumstance, you have to intervene in arkansas, kansas, massachusetts, oklahoma, alabama, kentucky, tennessee and utah, all states where more than 60 of the votes are cast for one party, thats in the record at 871 and 1012, that states have a similar political makeup to maryland you end up with a congressional delegation that looks similar to maryland. If youre concerned about limiting the courts intervention to the extreme circumstance, at least under the current state of affairs in these United States, you would not be limiting it to extreme. You would be saying get ready, arc a, kansas, massachusetts, oklahoma why should we assume, mr. Sullivan, that everything would stay the same if the court said something was unconstitutional, dont we usually assume people change their behavior when the court sets down a constitutional rule . The reason why in this case and the case before you all the politicians are bragging about the amount of partisanship they can put into the maps is because they think its perfectly legal to do so. If the court says its not legal to do, presumably some actors would change their behavior, no . Yes, your honor. We certainly would in maryland. Every time before the redistricting the legislators and the governor are briefed on the legal requirements happened here. That would happen in maryland and other states as well. What would be the situation where the drawing of the district would be impermissible, constitute impermissible political gerrymandering, in your opinion . Weve said in our brief certainly as indicated in the prior argument where the minority vote getters dictate the results for the majority. That would be a situation where the court ought to remedy that. How does the majority get to do that . They have the thought with the legislature, both houses being controlled by the same party. I dont understand how a minority could force its will. If in maryland theres history for this. If the people are upset with the way the redistricting happens, they can ache take it to refere. In 1962, democratic governor, legislature, both houses controlled by the democrats adopted a redistricting plan and taken to referendum and the people in north dakota rejected it. Thats in our record. And then what happened . A new map was drawn. Presumably the people were happy. This map was taken referendum and the people approved t 1. 5 million voters including in counties where republicans outnumbered democrats. It has been suggested from reading what was on the ballot that most citizens wouldnt understand at all what they were voting for. Three things, your honor. First, that wasnt litigated in this case, was not mentioned by the plaintiffs in their complaint or motion for summary judgment. It was litigated in Maryland State Court and intermediate Appellate Court determined the language was sufficient when read in light of the individual notices that each voter received before the election explaining the referendum question and in the Washington State grange case this court said such notice eliminate any threat of voter confusion. Thats not a reason for you brought it up. You think youre going to dispute Justice Ginsburg saying most voters knew what they voted for . Ill agree with the intermediate appellate which had more of a record than Justice Ginsburg does. This court did not presume voters didnt understand. In the anderson case, the court said it will assume people are informed and read the paper. Here you find at page 70 of joint appendix unrebutted system the Washington Post ran three lead editorials urging the people of maryland to reject this plan so it was not a secret ballot. It was simply a big issue in the state and the people overwhelmingly approved it. What i read there is the exact words of the thing they voted for or against, that this referendum petition establishes the boundaries for the states eight United States Congressional Districts based on recent census figures as required by the United States constitution. End quote. Right. All right, now, is that sufficient . If that were the only thing the voters knew but this Court Presumes that they read the paper, they watch tv, they talk to each other, they have forums as held here. If this is the only thing, if i thought that at least a large number of them, that this was the only thing they knew, which is what you just mentioned, then is it sufficient . No, its not sufficient for this court to conclude there was a problem. Precedent says you have to have proof there was confusion and we have no proof in this case because it was not litigated at all. Am i understanding you to be saying par san gerrymandering is already nonjurisdictionalable . No, not at all. I started to outline a specific test that our court applied so that youve heard the argument in the rutro case, are you saying that those tests are better, just this ones not . Im not quite sure of what your position is. They may be, but in our case weve only had a chance to litigate and have an experience with one test that our court used so we dont have that benefit of telling you with the informed level of analysis that counsel did in the prior argument. Well, but you know, youve had time to, im assuming you would have, are you okay with any of the rutro tests . Im not going to take position, your honor. Its not in our case and typically what the court has said, its the plaintiffs obligation to come up with the standard. Plaintiff came up with the standard they wanted to use in our case and it was used by the District Court and we are here to argue that starred is not manageable. You start your brief by saying that you agree partisan gerrymandering poses a threat to democracy. Yes. This court has said that what should we, what should the test be then . Well, again, i cant speak beyond whats in our record. I believe there are tests that can be adopted, and this court can come up with them. Is it your position that this, what was done in maryland would be okay under any test, but youre not going to tell us which of the possible tests is the right test . Are you just saying the wrong test was done, was used here, so we should send it back for the court to find, some other test which youre not going to identify, and then apply that to the facts of your case . Well, i if you keep with the analysis in veath, but this court in davis v. Manimer held that an equal protection period is reaffirmed by the majority of the justices who spoke in veath and reiterated in the Arizona State Legislature Case and in this very case we wouldnt still be here if the court hadnt found in the first goround that some form of First Amendment standard is not foreclosed by this courts precedent, otherwise the court would have had to have informed dismissal. Ill ask you the question i asked mr. Clement, which is why cant the constitution be interpreted to require something close to proportional representation, in your view . Well, my personal view, it could be, but i dont think you need to get that far to say that you could use proportionality it could be . Youre saying the constitution could be interpreted to require something close to proportional representation . Then you would lose, wouldnt you . No. If proportionality is interpreted in light of the reality that as both experts testified in this case or have written at least, when one party gets a super majority of votes, they tend to get a higher percentage of seats than they would get from the straight vote count, and as dr. Mcdonald, plaintiff expert, has written, if there is any correspondence between the two its accidental because typically its higher seat count. So the court has acknowledged that this can be, the court can come up with a standard. Id like to have you discuss the First Amendment argument a little bit. It does seem that this is a situation where the state is taking retaliatory action against republicans who were in that district, and had a more effective vote, and penalizing them for exercising their right to vote by moving them out to a different district. Whats wrong with that argument . Well, as weve explained in our brief, retaliation, that whole analysis has never been used in the legislative realm, and to say that legislation results, because the party that had the more votes was retaliating against the other parties views has, a position repeatedlyjected in the cases we cited since the obrien score. You say we havent done in the past. Weve been asked to do a lot of things we havent done in the past, its because theres been a change in how redistricting has been done and i guess i dont understand. If you have, i dont know, any other kind of state employee and you dont like her exercise of First Amendment rights and you fire her, thats wellestablished analysis for approaching that case, and i dont know why the same wouldnt apply here. Well, in the employment context, you cant, unless its a policymaking employee, you cant take into account the employees political views pretty much at all, but in legislating, political views have to be taken into account. People have to speak and express their political views in, whenever there is a legislature enacting it or when the people of the state enacted it as happened here. So two different contexts, one where speech is prohibited to be a basis for action in the employment contest, and legislation where speech is inherent and necessary in order to well speech against other legislators or against voters . I mean, you think its all right to retaliate against the republicans from the district that were moved out because of how they voted . I dont think thats a fair characterization of what legislators do, and here, this is a question about who are you retaliating against . Washington county, before the redistricting voted for the republican mr. Bartlett overwhelmingly. The first election held after redistricting the same county intact, presumably the same voters voted in 2010 voted for the democratic candidate. So drawing those distinctions in maryland is very difficult. The evidence in the record of across the aisle voting was very strong. Are you suggesting that the redistricting here was not successful . Well, if you say the intent was a partisan intent, if it was successful, except you still have a district thats capable of voting republican. Sixth District Voted overwhelmingly for our republican governor larry hogan. So its not a district thats locked in for democrats. That would be the defense. But what you cant do is, if a party uses a map for its district, which is a statewide map, you used a statewide map, the republicans won two statewide elections for governor, and so even a party with 60 of the votes cannot intentionally, i have to prove it, you know, intentionally draw these maps just so they increase their majority beyond twothirds of the seats. I mean, i picked those numbers out. You can use other numbers, if you want. But you get the idea. The idea is looking into the minds of the legislators, which is difficult, not impossible, and then applying it to extreme situations and i just used numbers like twothirds and so forth, and majorities, in order to show its not impossible to generate an analogous numbers from the constitution. Your honor, the problem with using the intent as your guide, intent was the dominant factor that the court relied on is because in davis versus banham the court showed how easy it is to show partisan intent, its the air the politicians breathe and in veath a majority of the justices agreed some effort is going to be present in every redistricting. But when the legislature and the government, the legislative leaders and the government say we want 71, we want to shrink republican representation by one, map makers achieve that for us, i mean, is there any genuine doubt that that was the aim from the beginning, to shrink republican districts by one . I think there is doubt. I think if you read the entire record, including what governor omalley said elsewhere in places not quoted by plaintiffs of the District Court, where he said that what he wanted was for the constitution, the statutes and all case law to be complied with, and after all of that, he would hope that a democrat would be elected in that district. You may be able to prove it. Im just saying what youd have to prove, but its not the case, in my mind, that every politician considers politics and so forth up in the air. Of course youre right, they do, but theres a classical reason that they should, and the classical reason is to produce stability in a legislature so that small shifts of voting behavior dont make big shifts in legislatures. But theres no if thats the reason, that doesnt apply in the case where one party already controls 60 of the seats. We do have a fair amount of stability in maryland. Yes, i know, thats a problem, im not saying its a solution. You have the stability. So your response was, well, politicians will consider politics. Yes. Of course. But our problem is to say when thats too much, and why isnt it too much . Well i think in other areas of your First Amendment law that plaintiffs have cited for you, for example, crawford versus Marion County board of elections, didnt really care very much, the court didnt, about the intent. Lets look at the burdens that are alleged, identify them, measure them, how much of a burden is on how many people, and then make the call, whether the states justification overcomes that. We didnt have that analysis here. There was no measuring. Any practical difference is what the court said is sufficient to trigger invalidating a map, and any practical difference is going to happen to voters in every single redistricting. Somebody is going to have a difference because of the line change. You say that partisan gerrymandering is gestitiable. Under which provision, First Amendment, the equal protection clause, the elections clause, or Something Else . Well, i will say under the equal protection clause, thats this courts precedent. Thats the only one . And First Amendment precedent, at least law of the case in this particular case. Both of them . Whats that . Your answer is both of them . Both of them are potentially sources for a standard. And what is the test, lets go to the First Amendment. Whats your test under the First Amendment . I dont have a specific test to propose, but as i indicated in my answer to justice breyer, i think anything the court can do to get away from an intentbased standard, where you have a realm, politics, where political aims are just ind inendemic. Do you think the First Amendment and equal protection dictate the same or different standards . I would imagine they would have to be different, because you have completely different bodies of case law. I would imagine this there would be some difference. What is the test, you cant tell me what the test is under the First Amendment . What is the test under the equal protection clause . Its intent effects and injury intent and effects what degree of intent . Well i tried listening to the prior argument but i lost count of the tally of where it came out. In racial gerrymandering, it has to be preponderance if youre back before the District Court, what are you going to tell the District Court, we should win, but are you going to try to explain to the District Court why you should win . First of all, one of the other arguments we make is given plaintiffs delay puts us in the category of cases we cited where courts determined where there is delay and youre this close to the census its no longer in the Public Interest to redraw the map because the same disruption that plaintiffs complain about, you redraw the lines you change the associational interests and affect our representation. Thats going to happen with redrawing the map and you have to redraw the map again within the twoyear span. You think theres going to be a different map drawn after the 2020 census . There will be a different map. Our laws require it. Id like toe reserve whatever time i have. Thank you, your honor. Thank you, counsel. Mr. Kimberly . Thank you, mr. Chief justice and may it please the court, id like to begin with a succinct stap statement. When state officials use redistricting to burden a particular group of voters because of their political views, with the express goal of making it harder for those, for that group of voters to win elections, and when that goal is achieved, so that group of voters is ordinarily doomed to usual electoral defeat under the map and when the state cannot come forward with a legitimate governmental interest to justify the burdens imposed, the map has to be neutrally redrawn. That in a nutshell is our claim and all of the evidence in our case proves that the 2011 redistricting in maryland violated that theory. Its a test that would be met in every particular, except for the one about durability that you mentioned. In every redistricting, partisanship is going to play a significant role, and because you can always do it, to one degree or another, it is always going to have an effect. It seems to me that your focus is entirely on durability. Well, i do think all that the court needs to say in this case is that dooming the targeted voters to electoral failure is enough to state a claim. I think whats helpful, your honor, is that coupling that burden with intent makes sense, because that is the intent that all map drawers who set out to gerrymander harbor. Gerrymanderers dont set out to fiddle at the margins. They set out to fix electoral outcomes and that is exactly what the evidence in this case shows. They dont set out to make it slightly easier for their candidates to win or slightly more difficult for their opponents to win. They set out to change the electoral outcomes, and using metrics like the democratic Performance Index in this case, and the partisan voter index under the cooke political report, all of the evidence is that, as of the time the map was enacted, the map drawers understood that this previously safe republican district would become a safe democratic district. How do you see your test . I mean, youve introduced the gingell factors which the District Court didnt rely on here. You say implicitly it did, but it really doesnt anywhere next gingell. How does your test differ from the rucho test, from either of the women league or the common cause . Well, i actually dont see a whole lot of daylight between our test and the tests that are presented in those cases. Except that your test doesnt look at durability at all. Well, it doesnt look at durability as such, but the focus last term was on the difference between vote dilution that would make a practice and dilution for deminute neimus. The focus is what counts as a practical burden. The great range of cases practical burdens that would be actionable arise, its going to be the situation that i was just explaining to the chief justice, that its where the map drawers set out to doom the targeted voters because of their politics to usual electoral failure under the map as drawn. That is i think in essence the range of cases in which a practical difference will be made and i think it overlaps substantively with the league of women voters approach towards durability. If your claim is based on the First Amendment, doesnt that necessarily mean that partisanship cannot be taken into account at all, not one iota . No, i dont think so, your honor. Why is that not so . Have we ever said that theres such a thing as benign viewpoint discrimination under the First Amendment . You can discriminate on the basis of viewpoint but it has to be small. I think most of this work is done at the justification stage and this might mirror Something Like anderson verdict balancing. It doesnt have to, but our view is, as long as consideration of the way that people have voted in the past and intent to make it more difficult for those voters to achieve electoral success is in service of a legitimate government interest, then it would be permissible. What would be a potentially legitimate government interest . I think it would be pursuit of balanced maps, as the court said in gaffney against cummings. It would be a pursuit of competitive districts. I think there are a range of circumstances what is a balanced map, what does that mean . I think balanced map in the gaffney sense which is the sense i mean it is a proportional map. So in this case, it might be a 62 delegation or a 53 delegation. But if you set out to draw a 53 here, say, we want to be proportional, we want to be fair, so were five democratic districts and three republican districts, the democrats, individual democrats that you sort into the republican districts are going to be able to say were being deprived of our ability to be treated without reference to our partisan affiliation, our political affiliation, right . Well, yes, and i think thats how doesnt that show that your test, but you said doing a 53 would be okay. Thats right. Despite the fact it would still treat individual voters, it would penalize them because of their political affiliation. Your honor, that is exactly the approach this court takes in its Ballot Access cases. So in the hypothetical that youve described, i think democratic voters may well have stated a prima facie case under the first two prongs. Under the justification prong the state comes back and says although true, maybe they admit it, maybe they dont, but although true, we were considering that shows, sorry to interrupt, that shows what the driver i think of your test, the overwhelming driver is proportional representation. And i guess ill ask you the question ive asked others, do you think the constitution requires proportional representation or something close to proportional representation . I dont think it does require it your honor and i do not think it drives why do you not think it requires it . I dont see a textural indication in the constitution itself. Equal protection clause does not suggest to you something where political groups are treated roughly equally . Your honor, if thats the way that youre inclined to think about it im happy to have you rule that way. Im asking, everyone seems to be running away from challenging the maps but running away from proportional representation, even though you could tell from the questions theres a suggestion that really it all comes back to proportional representation in some respects. Your honor, i guess ill answer the question this way. I think the First Amendment is probably the better approach for explaining why it might favor proportional representation, but of course, there are a range of factors, having nothing to do with discrimination against groups of voters on the basis of their political views that might yield a nonproportional map. Do you think the First Amendment might require or even tolerate the regulation of speech and in this instance, the speech is the votes for the purpose of providing a proportional representation of viewpoints . So as i was about to say, i think not. I dont think it requires it. Does it tolerate it . I think yes. I think thats the inevitable conclusion of gaffney against cummings. So if there is a place and a public park to get back to the classic example, where it is open to speakers, the city that controls that could say we need to make sure we have equal speakers on both sides of this question, so were going to, you know, were going to balance the speakers, they can do that . Your honor, i dont think ruling in our favor requires the court to say that in the least. What were saying youre saying this is a free speech case, right . And youre saying its okay to regulate speech for the purpose of providing proportionality, in some sense . No, your honor. Im suggesting after this courts decision in gaffney against cummings, we accept as given it is a legitimate state interest to pursue proportional representation in redistricting. If you take that as a given, then the sort of claim that Justice Kavanaugh was describing would in fact be justified under the third prong, but let me emphasize, our claim is not an ends oriented claim. It is a process oriented claim. Our view is, under the facts as weve proven them, we are entitled to a neutrally redrawn map, in which the legislature does not use this kind of data with an intent to burden particular groups of voters because counsel, you would agree that if you had a partisanfree map, which is required, that would be the first time in history, right . A neutrally drawn map, you mean . Yes, neutrally drawn, without regard to partisanship at all. I cant say for certain whether as a matter of fact it would be the first time in history. I would accept that today, the accepted approach does not require neutrality but i think thats precisely the problem. So just i think just to finish the point, we dont, our position is not having proved our claim were entitled to a redrawing of the six Congressional Districts so it favors republicans. Our point is that we are entitled to a redrawing of the sixth Congressional District in a manner that does not select a map that disfavors them because of their political views. Thats look, there is a classical Political Science view. Its very easy, draw state districts and imagine populations such as the states 42 48 republican, 52 democrat, all right . Now, suddenly, 3 change, 2. 1 change. Now, if theres no politics involved whatsoever, i think you can show that that means 100 change in the legislature, depending now, that cannot be a recipe for american government. I mean, if you believe it can, fine, but youd have to show that to me, and therefore, people resist to a degree your statement that, well, no consideration, call it a stability consideration, but its still the same consideration, so i think many peoples problems, and what im searching for anyway, is for you to say, okay, i see a stability interest there, but how much is too much . And now weve heard from one side that said here is how you find out. You find out by looking at the intent of the legislature, about what the effect is, and about whether its durable. Right. Do you want to just say thats it, and its the same argument . That might work. I think it is effectively the same argument, your honor, and just to draw a counter distinction, the vote dilution in degree that took place in the eighth Congressional District was roughly the same as the vote dilution in degree that took place in the sixth Congressional District. The vote dilution in the sixth Congressional District resulted in a map drawn such that republicans were in the sixth Congressional District were doomed to usual electoral failure, not so in the, its the inverse, its democrats in the eighth Congressional District, not so in the eighth Congressional District, so yes, i think as a practical matter, the distinction that the District Court below drew between vote, deliberate vote dilution that makes a practical difference and is in effect the same, and we would be perfectly comfortable with the court saying that the way that we know its too much is if it results in a durable partisan jer gerrymander that will resist changes in politics over the coming decade. That is of course exactly what is borne out in the evidence in this case. What do we do about the referend referendum, the whole of the people had a chance to speak. I understand that there are questions about how good a referendum that was, but would your test require this court to declare unconstitutional gerrymanders that have been approved by the people through referendum themselves, and could this referendum process be used otherwise, too . I dont think so, your honor. In my view, the referendum is a red herring. If this had been a racial gerrymander and put to popular vote, and the popular vote had approved this map as drawn, it would still be a racial gerrymander. I completely accept that answer, all right. So in effect, you are asking the court no matter how good the referendum might be, no matter how much the people themselves might approve these lines, this court has to tell them, its unconstitutional. On the facts of this case, yes, i think thats correct. I want to come back to the question of what do you see on the facts of this case . What makes it so here . For one, it was the intent that led to the adoption of this map in particular is undisputed. This is not a circumstance where you have, now you know, a menu maps put to the public vote and the public are asked to interdiscretion on which map to choose. It isnt the public in the place of the legislature. The legislature has acted, it has done so in an unconstitutional way. That because of the uniqueness of this. Yes, no, thats right. Im saying on the facts of this case. On the facts of this case, whatever the public maps might have been in an open situation, were different than what happened here. Thats right, that would be a very different case, your honor. But just to clarify, and i just want to make sure i understand your position, im supposing that the people fully understood the gerrymander that took place, and fully understood there was an alternative, a pure proportional representation, and it would be great, and they rejected it in favor of gerrymandering. Now you may say thats outlandish and that isnt what happened in maryland but lets just suppose it is. You would still be incumbent, in your view, on a court to declare the gerrymander unconstitutional. I want to be clear i understand the hypothetical. The electorate are being presented with an option. You get proportional representation or you get this map, which do you choose . Yes. And a majority of democrats who do better under this map choose this map . Right. I think thats unconstitutional and we must say so. Yes. I dont think the court should feel especially troubled about that, for exactly the reason that the map itself is unconstitutional. I want to come back to the question of judiciability. The question is not just whether there is a potential political solution. That doesnt answer the question whether this court bears an obligation to enforce the First Amendment in these circumstances. The question here is whether the theory that weve put forward before the court as applied in these circumstances entirely defies judicial judgment, so that it cannot be called a legal question at all. And with respect to my friends on the other side, i just dont think theres any basis for saying that. We have this courts opinions in its racial gerrymandering cases, in its racial vote dilution cases, in its Ballot Access cases, its First Amendment retaliation cases and political patronage cases. In all of those contexts, this court finds consistently reliable justiciable situations for burdens imposed here and if they are manageable in that context, they are manageable in this context. Does your test apply only to districts that are drawn for a partisan, to favor one Political Party over another or could it apply to retaliation for some other reason . For example, suppose the objection of the map makers is not that this district had voted republican, but it was that the particular person in a district, the representative in that district, was a pain in the rear, and so they wanted to get rid of that person. Would that be prohibited by the First Amendment . Not under the theory that weve put forward. How could you square that with your retaliation theory . I want to be clear i vote for this person because this guy, this is the person that i want, and the map makers say we want this person out of the house, so were going to draw the map so that person is excluded. I want to vote for this, for my representative, and theyre duluth diluting my vote. The First Amendment retaliation framework we referenced in our briefing is just that, a framework. We dont think theres magic in the particular word itself. The question is whether the state officials are deliberately burdening particular groups of voters because of the way those voters have expressed themselves. That does not to me sound like the scenario that youre describing, where the concern in the cases, the behavior of a particular individual, and i might add in addition that drawing an individual out of a district does not prevent that individual from continuing to run as a candidate in that district. How much mr. Kimberly im wondering how easy it would be for plaintiffs to prevail under your standard in the future. Suppose we accepted your test, and we made clear that this kind of behavior was unconstitutional. So you didnt have all these people bragging about how much partisan gerrymandering they were doing, right . What makes your case so easy is that everybody was completely up front about what they were doing, as they were in the North Carolina case as well, because they think its legal, so lets say what were doing. But if we say its not legal, and that kind of intent evidence just disappears, because you dont find silver bullets like that very often, then what kind of effects evidence would you need to prove your claim . Well now, you have all that intent evidence. Dont worry, this is not faen affecting your case. Suppose people act like normal people and stopped saying all these things, and the next case comes along. What would you need to show intent and effects and causation . Well, i think to show intent, it would be the same sort of evidence that you would need in racial gerrymandering cases. This court deals with that question all the time. I think that part of the it would really raise the bar, didnt it . It would, your honor. You would have to show really dramatic effects to be able to infer intent, wouldnt you . Yes, i think thats right. So in fact, this would be the outlier cases. I think this is not an every case in the universe, every district in the universe. Not at all, your honor. But why would you have to show dramatic evidence of effects before you can infer intent . Well, i think as a general matter, showing intent when youre talking about specific intent rather than general intent which is the standard that the District Court below applied and we think is the correct standard i think raises the bar very high. When you dont have direct evidence such as the admissions that we have on our record here, youve got to show so you think if you have the redistricting controlled by one Political Party, and it comes out that the districts reflect a significant benefit for that particular party, thats not enough to infer an intent to draw the districts with an eye to the partisan effect . Well, i think here, your honor, that may or may not be so. I think here, though, the question of intent dove tails with the question of justification. If in a circumstance where you have a single Party Control of the government and you have a badly imbalanced map that might suggest improper intent, as long as the state can come forward with some legitimate justification for the imbalance as its drawn, and as the court has said in its racial gerrymandering cases, the sorts of Political Considerations in map drawing are myriad and malliable and involve a delicate balancing of all the factors, all the state has to come forward with is some explanation for the map as its drawn and the burdens imposed identified by the playoffs intiffs so if you have the record here with no intent evidence, to pick up on Justice Kagans question, and it was 53, any chance of prevailing on that . We dont have evidence of intent and its a 53 map. I think thats a very difficult case. How about 62 . I think thats also a very difficult case. How about 71 . I think 71, it becomes easier to prove intent. Theres no question that the results thats because it deviates from proportional . It deviates from proportional, but i think the question also, as i was saying about the third prong is whether there are neutral justifications, and there might be things like geography. Here obviously marylands geography thats to justify it but it would be a problem. The 71 is a problem, 53 almost certainly not a problem, which i think has got to be right. Thats right but isnt to be clear to say our test tends towards proportionality. I think if justice, to proportionalty. I think just to play out justi justices hypothetical. Then it would be a lot on effects and 53 would be hard to prove. 71 is easy to prove. That sounds like something where something thats balanced, to use your words, which is a word you used, 53 would be okay because its close to the proportion of democrats and republicans in the state. Something thats really extreme would not be okay, 71, because it deviates so far from the proportion of democrats. Its just where theres smoke, youre probably going to find fire. Another way of putting the test, i know it when i see it . Certainly not, your honor. So it sounds like you might be comfortable with justice briars twothirds limit. 53 is probably okay. 71 is not. I mean, that suggests some sort of rough mathematical threshold. I dont think a mathematical threshold is probably the way to go about it, in large part because every state is different and how the geography plays out in every state is different. And whatever other justifications there will be im sure will vary. It just seems that what youre saying is that once people stop putting these statements on the record, which they will, then what your test will deliver is a way of going after the worst of the worst and this happens to be one of them. I think thats right, your honor. I think we have to give legislators due credit. If this court says that this kind of discrimination against groups of voters is unlawful, i have faith certainly that most legislators will listen and abide this courts teachings. So there is not enough time in between now and the 2020 census to litigate any new cases. And so the next round of litigation this court sees after adopting a standard in this case or in North Carolina will be after the 2020 redistricting. And presuming that state legislators abide this courts teachings, theres every reason to think that the incidents of extreme partisan gerrymandering will be significantly reduced. We only see it as often as we do today and what is extreme seems less extreme is because this court has not identified a standard to rein in the practice. Can i isolate the role of geography with this question . Sure. Suppose you have a crazy line drawing, something similar to what is in md, but it ends up in 53 districts, new problem there . No partisan intent on the record, but the lines are really misshaped but its 53. It wouldnt be a First Amendment problem. Indeed what the evidence shows is there are a lot of reasons to think you might still see that. If it ends up 71, the states in trouble unless the state could show this fits with county boundaries and town boundaries and city boundaries and actually the geography makes sense and we dont want to divide the bay and all kinds of things like that, right . Yeah. To be clear, i dont think there are any such justifications in this case. I take your point on that. So thats helpful on the geography. They made a point on the sixth district not being durable because Governor Hogan won. Its a difference between what the experts call endemic elections and exogenous elections. On a number of occasions there have been suggestions that legislators are going to act as legislatures. In dedevivising access to ballo theres no reason those in power wouldnt be expected to use that authority to regulate elections to their own partisan ends. Yet we do not expect that they may. History is a little bit of perhaps significance there. Gerrymandering has been part of American History from the beginning, as pointed out in the previous case. Maybe it has been. I dont know that interference with Ballot Access is on the same level of the air they breathe, as your friend on the other side put it. Your honor, that may be true, but since the beginning of the republic gerrymander has been recognized also as a constitutional offense. I think everybody has understood that it is a constitutional violation. Your best authority is a newspaper editorial . Certainly not, your honor. The legal tools for this court and article iii courts generally to address this problem havent emerged until modern times. The incorporation of the First Amendment to the states happened in the 1940s. These political patronage cases were decided in the 60s and 70s. What does incorporation have to do with Congressional Districts . Congressional districting is an act by state legislatures. If state legislatures are cabined by the First Amendment, the First Amendment has to be a limit on their authority, and that wasnt recognized by this court until the 1940 s. You said gerrymandering has been recognized as unconstitutional. If gerrymandering is defined as deviation with what you would otherwise get with proportion proportional what we take to be partisan gerrymandering is the singling out of groups of voters for redistricting and using redistricting in turn to doom those voters to usual electoral defeat. We think that is a clear violation of the First Amendment. Ill just say very briefly, the other explanations that general sullivan has put before the court explaining the shape of the sixth district are all that thely dflatly disproved by the map. That map respects all of the Political Considerations elsewhere throughout the state and does not result in flipping the district to democratic control. Thank you. Five minutes, mr. Sullivan. I hope not to take all of that time. I think what weve heard if nothing else confirm that is the plaintiffs test and the District Courts test does not provide the answer the court is looking for. A test that can tell us when the redistricting has gone too far why not . You have intent which in this case all the leaders say, yeah, thats what we want to do, reduce the republican representation by one. And then they tell the map ma r makers to achieve that result. The result is achieved. And as a result of the map, this will continue into the future. Why isnt that well, theres a number of things wrong with that. Into the future is not proven at all. The map that was developed, the expert testimony agreed that it was a competitive map. Independent sources said it was a plus 2 democratic. In 2010, the last election before the redistricting, democrats across the country won 52 congressional seats in districts that were more democratic than the sixth district in maryland. That these legislators were looking at was not a map that was a lock for future redistricting. It was a very vulnerable map if you look t tat the results with 2010 elections. The reason this test doesnt work, as counsel revealed, is that it abandoned what the members of this court have identified as essential evil of gerrymandering, which is the politicians getting one otherve the people. In this case the peoples will was expressed in a referendum overwhelmingly favoring the map. And counsel says this court needs to invalidate that result, which would be directly contrary to what this court has said it wants to get at in gerrymandering, which is the polls deciding where their district lines are going to be. You mean if theres a referendum on a map that heavily favors one party and this is a state in which that party is the Majority Party and the campaign in favor of the referendum is approve this map because this will really favor the party that you like and the majority votes for that. That would be different from the legislature doing it . Yes, it would because its the peoples will being expressed which is the harm that politicians who gerrymander are subordinating the peoples will. That didnt happen here. So when the legislature does it, the members of which are elected by the people thats one thing . But when people do it districtldistrict directly its a different thing . It is a different thing. The people could not approve a map with unequal population. Thats one of this courts precedents. Where the debate is, whose First Amendment rights are going to prevail . These seven plaintiffs, its not a class action or the 1. 5 marylanders who approved this plan. Thats the question that was even attempted for the answer to be provided by the court in this case. This test cannot be the answer to how do we protect the people and their ability to ensure that motions do not draw the districts to serve the politicians instead of the people. Unless there are any further questions, thank you. Thank you, counsel. The case is submitted. The Supreme Court ruled yesterday that partisan gerrymandering is a matter of politics and not a matter for the federal judiciary to decide. The decision covered both the maryland case we just heard and also a case from North Carolina about partisan gerrymanderin