Up next, oral argument from the North Carolina gerrymandering case. This court has repeatedly failed to identify a standard r for partisan gerrymandering claims. The cause is not a lack of judicial imagination or a lack of claims that the particular map before the court was the most extreme ever. Rather, the root cause of this failure is the basic decision of the framers to give responsibility for congressional districting to political actors. The framers consciously chose to give the primary authority to state i would submit that you dont have a one size fits all solution. I took the central lesson of baker v carr to be that the same claim essentially when presented as an equal protection claim was justiceable. Mr. Clement, does one person have one vote that counts equally, which i take it to be the message of those cases now well accepted. Does one person have one vote that counts equally with others. Is the impact of her vote reduced based on her Party Affiliation . The answer is yes, you still have an equal right to vote as an individual. What the parties are complaining of is not a purely individual injury. What theyre complaining of is theyre grouped in a district with either too many people who agree with them or too few people who agree with them. Therefore their vote is sort of diluted in some. Lots and lots of voters live in a district either because of geography or state action, theyre not going to have their preferred candidate elected. Indeed id go further and say most americans dont get their preferred candidate elected because they have to choose on the candidates before them and maybe based on the district they live in it tends to give them a relatively liberal democrat or a relatively conservative republican when really what they prefer is somewhere down the middle. Mr. Clement, would you position require us to overrule the case . I think if we decided in your favor, would it require us to overrule . It would still depend on Standing Grounds or justiceability grounds. If you decided on justiceability grounds, i think you would have to overrule the bandmere case. I think as Justice Scalia pointed out it is a case that has no reliance interests on it over than the potential reliance interest of litigants. It hasnt produced actual results. I think as Justice Scalia said its a decision that sort of triply have strong claims. I think if you decided on standing ground you would really be deciding on grounds that are actually interior to anything the court decided in bandmere. Mr. Clement, if i understand the bottom line of your argument, you would answer the question that one of my i dont want to call him a former colleague. Hes still a colleague but no longer on the bench with us. Justice kennedy asked in one of these cases and it was if a state constitution had a provision that required redistricting to be based solely on partisan grounds. Forget about whether they were meeting any other traditional grounds or not, you would say that was constitutional. Well, actually, Justice Sotomayor, i think i might say to that particular hypo and i matters how you frame it. Some requirement thats going to apply to every redistricting going forward, theres at least an argument theres an election clause with that argument to try to control subsequent redistricting efforts. Youre basically saying yes, that would mean as occurred here that almost 50 of one partys vote is going to result in maybe less than onethird of their representation in congress. Thats exactly right. I think you put your finger on what my friends on the other side perceive to be the problem, which is a lack of proportional representation. No. Because all of the tests that theyre proposing and that the District Court looked at didnt talk about proportionate representation. It looked at only the opportunity to elect, an opportunity is different. The way this is structured there is absolutely no opportunity but virtually none for for maybe a Majority Party to elect more than or less than a third of the people they voted for. I think that that difference first of all, i think that difference is implicit in the idea of having districts rather than statewide elections for the congress. Keep in mind, the koconstitutio as originally enacted it is perfectly constitutional for a state to embrace the policy idea that proportional representation is a good thing and implement it by saying were going to elect congress not by districts but by statewide votes. Can i take you back to the Justice Kennedy question that Justice Sotomayor talked about . Ill say the question in a little bit of a different way. It seems to me this is kind of Justice Kennedys hypothetical come to life in this sense, that there is a particular provision in the legislation here that says the partisan makeup of the congressional delegation is 10 republicans and 3 democrats and the Committee Shall make reasonable efforts to construct districts to maintain that current partisan makeup, 103. So it was specifically written into the law that whatever else you do and there were definitely other things that the lawmakers wanted done, but whatever else you do, dont come back with the same 103. I think that was the import of Justice Kennedys question, is like can you write that into a law and say thats what were trying to do here . Justice kagan, two responses. I did notice every time Justice Kennedy asked that question, he did ask it the way that Justice Sotomayor did a. I do want to drop the footnote this seems pretty enshrined. Go do it 103. Thats the current, thats what we want to maintain. I think theres a difference. Im happy to respond to your question about can you have it as an express criterion for a particular districting. I think the answer is absolutely yes thats not a problem, and by the way, i think actually being candid about it probably serves accountability principles in the long run, which is to say if you think, which i think almost everybody does, that implicitly thats what the Republican Legislature was doing in bandmere. They were explicit in their footnote testimony that the people who drew that map, the speaker of the Republican House of indiana was expressed that his goal was to preserve as Many Republican incumbents as possible. Can i take you to the way Justice Kennedy formed the question which hypothesized the state constitution. The elections clause says it is to be prescribe the times, places and manners are to be prescribed by the legislatures of the state. Do the legislatures of the state typically control what is in the state constitution . They dont, Justice Alito. Thats why i do think its important to figure out. I think Justice Kennedy may have framed that question in a particular way. I dont want to go too far down the road of relitigating the arizona redistricting case here, but i do think theres a respectable argument that state legislature means state legislature and not the other parts of the state government. It can mean the people done by referendum. It well could, justice ginsburg. There are at least four people that agreed with you on that problem sigs. You can still say the claims are not justiceable. I dont think there is a constitutional problem when a state legislature makes explicit with respect to the redistricting theyre undertaking at that moment. If they make explicit whats ultimately explicit what have the record was built nuup in bandmere. The way you read the criteria is exactly right with respect to partisan advantages. They said reasonable efforts will be made with respect to other items on their list of criteria like con ttiguousness. Other things were negotiable but reasonable efforts would be made. Along those lines, in terms of democratic accountability, one of the arguments weve heard is that the Court Must Act because nobody else can as a practical matter. Given arizona, is that true and to what extent have states through their initiatives, Citizen Initiatives or at the ballot box in elections through their legislatures amended their constitutions or otherwise provided for remedies in this area. I just happen to know my home state of colorado this last november had such a referendum on the ballot that passed overwhelmingly, as i recall. I believe there are others. Im just wondering whats the scope of the problem here. I also know there are five states with only a single representative in congress so presumably this isnt a problem there. Thats right. To the extent its a problem at all the scope of the issue is roughly 30 states who dont have some kind of mechanism like you described or have multiple districts. My sense is theres a lot of movement in this area. I believe there were four or five states along with colorado just this last election that acted. Michigan is another state that passed a ballot initiative. The other place where there can be a solution to this which is the most obvious one and is a solution no matter what you think of the arizona independent case is congress. If you look at hr1, the very first bill that the new congress put on their agenda, it was an effort to essentially force states to have Bipartisan Commissions. Now, query whether thats constitutional, but it certainly shows that congress is able to take action in this particular area. Well, i suppose the members of congress are pretty happy with the way the districting has been done. You might think, mr. Chief justice, but actually i dont think the majority of them are, because that was a bill that i think passed on party line votes. To the extent that the justices of this court in the past have been concerned about things like entrenchment and the like, its a little odd here that weve had all of this supposedly partisan redistricting to benefit the composition of congress and yet the majority of congress thinks they should pass hr1. So i just dont know that there really is that much of a problem. The particular context that arises here is the context of congressional redistricting. And one of the elements of the framers structural solution was they didnt directly tell congress, why dont you district for yourself. They said in the first instance, lets have somebody else at the state level closer to the people do the districting and then well give congress a role to supervise that. They didnt have sort of the same fox guarding the same hen house in this particular context. You may not want to answer this question, which i understand. You might not have thought about it. But assume that absolutely this is illegal or unconstitutional. But theres no remedy. We cant figure out a remedy. Thats where i want you to start. Now, i tried one in veeth, you know. My guess is from the reaction there was none so probably theres something wrong with it. What im trying to do is to figure out if theres a way to catch real outliers. So which are the real outliers. If you look at history, there wasnt that much gerrymandering in the past compared to what there might be with computers in the future. Ive tried to figure out something. Simple. Not going to get every judge in the country mixed up, not going to lead to every election contested and throw it all to the judges instead of the people. Anybody can figure it out. This is what it is. That if theres a commission or something, forget it. Youre out of court right away. But if theres no commission, one Party Controls it, then a gerrymander is unconstitutional. If a party that wins the majority of the vote in a state but the other party gets more than twothirds of the seats, that would be pretty extreme. But your client might meet it. And the virtue of it, its absolutely simple. They can try to justify it and then we can use Something Like those 5 things to test the justifications. But there wont be much can be justified. It could be a starting place. And that twothirds number is not drawn out of thin air. The constitution, in fact, you can find serious matters, overriding vetoes, constitutional amendments and you can show how gerrymandering wrecks what they assumed for those. But thats a different story. It very rarely would operate, but it would be somewhere. Now, have you thought about anything like that . Do you have any reaction . Your reaction would be, no, thats no good. Aside from that, is there anything you want to contribute to thought on that . Well, in all candor, theres so much in that that i disagree with that its a little hard to know where to start. Im going to resist at first the temptation to take issue with the premises, though if i have time ill get back to that. First, the reason i think your test has to be a nonstarter is the fact that, as you say, your test would basically give a pass to any state that doesnt use the method prescribed by the framers to engage in congressional districting. So it would be a strike against the state if they actually did what the framers envision. Wait, wait, wait. One second. Im just saying this is perhaps a start. Im not saying anybody gets a pass. Im saying you wouldnt have to go further than that in this case. I thought i heard you say that if you were a state that used Bipartisan Commission dot, dot, dot, you would get a pass. Youre right. That seems to me itself to be remarkably revealing because youre saying it would be a good thing for the state if they chose to use a mechanism other than the one the framers picked. Not if you say that for this purpose, the legislature is the people and thats what arizona held. Well, in fairness, i think what arizona held is that the people are within that concept, but i certainly dont think arizona stands for the proposition that what the framers had in mind primarily was something other than the state legislatures. It seems to me its a strike against your test that it identifies as a problem something that the framers would have associated with the primary mechanism they used for redistricting. If i could interrupt for one second, going down that road would suggest that Justice Gorsuchs attempt to say this is not so bad because the people can fix it is not so true because youre suggesting that really maybe the people cant fix it, you were wrong about the people being able to fix it, and if the people could fix it, well, its not the constitutionally prescribed way because its never been done before. Justice gorsuchs attempts to save whats so dramatically wrong here, which is the court leaving this all to professional politicians who have an interest in districting according to their partisan interests, seems to fail. I would disagree, justice kagan. I took to the import of Justice Gorsuchs question being maybe we can allow the states to solve this problem for themselves. B when you get at the starting point of Justice Breyers question what im trying to get you to focus on. Ive read the briefs. This is the fourth time. The thing that i want you to focus on, if you can, if you want to, is the twothirds majority idea. Look, my party got a majority of the votes in the state, but we ended up with less than a third of the seats. You see my tone of voice meant, gee, this is really extraordinary but there is absolutely a workable standard. Now the next question is all the constitutional arguments youre raising. Im not pushing those under the rug, but for present purposes i want you to see if theres any reto reaction to the practicality of this standard. I think the way i would respond to that is that im not here to tell you that if a constitution included a one standard deviation from proportional representation clause or a onethird twothirds clause that judges somehow would be incapable of administering that clause. Indeed you cant talk even generally about outliers or extremity unless you know what it is youre deviating from. I take it implicit in your question and implicit in Justice Sotomayors question that whats bothering people is a deviation from representation of proportional representation. Youre quite right that this court in the past has said this country does not run on proportional representation and this is a hangup in our ability to solve this problem. But whats quite interesting about the Statistical Analysis in this case is that quite a lot of it does not run off a proportional representation benchmark. In other words, all the computer simulations, all the 25,000 maps, right, really do take the political geography of the state as a given. So if democrats are clustered and republicans arent thats in the program. And all the other redistricting requirements or preferences like conty guty, like following natural boundaries the benchmark is not proportional representation. The benchmark is the natural political geography of the state, plus all the districting criteria except for partisanship. Its just not the way that anybody can district given the actual political geography on the ground unless you absolutely try to overrule that political geography. To justice kagan, two points. I mean, im happy to respond to the maps but do i think Justice Breyer did build in a proportional no, i dont think it does for this reason. The reason is all it says i want you to come back to Justice Breyers question but i want you to answer mine. I hear onethird twothird and i thought we were talking about proportional representation. What i find striking about the maps is, first of all, you can do this 24,000 different ways. This sounds like its about as discretionary a government function as one could imagine. It is a purely discretionary function. You can do this 24,000 different ways. Thats making lemonade out of lemons. You can do it 24,000 different ways and 23,999 produce an outcome thats less partisan than the one the legislature picked here. See, what i think is remarkable is that actually what the statistics show and this is on page 162 of the jsa is that if you run 24,000 maps with partisanship taken out entirely and you just used traditional principles, you get 162 definite m different maps that produce a 103 republican split. Its. 7 just to be clear. Thats 162 different ways to get to a 103 match thp that didnt politics into account at all. If you have 24,000 maps that satisfy all of the socalled neutral criteria that you put in your Computer Program, dont you need a criterion or criteria for deciding which of the 24,000 maps youre going to choose . And implicit in justice kagans comments is the idea, is it not, that you have to choose one that honors proportional representation . You have no other criteria for distinguishing among the 24,000 maps. I think thats right. At a bare minimum, it has to be mr. Clement, lets go back to the why of that. You keep talking about proportional representation, but its not. Because what was shown is that 99 of the time you get a map that is more fair to both parties than the one that was chosen. So the issue is you can have 162, 164, but what you cant do in picking that 1 of a map is discriminate against a group of people based on their political views. We have a legion of cases that say you cant treat Political Parties differently because its an equal protection violation. And its the same thing, whether its because of their speech or their activities, what were telling you is pick any other map you want, just dont split counties, as was done here based solely on your political views, because counties were split. Dont pick or dont you may use saving an incumbent, but dont kick one out because by kicking one out, and there is a map that would keep all of the incumbents in place, dont kick one out because youre excluding people based on their political views. This is what this is about. Youre driscriminating on the basis of a groups speech and diluting their vote accordingly. Three points if i could get them out. The keyword in your question is fair. What makes this unfair i would submit at the end of the day is some principle of proportional representation. Nobody thinks its unfair, i dont think, that republicans in massachusetts under the current maps are never going to be able to elect somebody to Congress Even though theres Something Like 35 of the population. Nobody thinks thats unfair because you really cant draw districts to do it because theyre evenly distributed. It might be unfortunate for them, but i dont think its unfair. What makes this fair is some conception of proportional representation and the ability to do it. Thats true. But party a gets over and over and over 55 of the votes. Party b every single time gets 90 of the seats. Now, if you want to call that proportional representation problem, do it. But im limiting to that kind of thing. I mean, its not proportional representation, its a problem of seeing a legislature reflect to some degree, you know, the views of the majority of people that elect its members. So Justice Breyer, let me say why i dont think thats such a horrible problem and then we try to put whats on the other side of the ledger. Even if its as you described, whats going to happen in almost every state is the 55 majority will elect to statewide office governors, attorneys general and the like. And the next time around theyre not going to be able to pass a map and the next time around it will probably end up in gridlock and a judicial line drawing. I dont think thats the happiest result in the world, but it means youre not going to be able to perpetuate this in the long run. Heres whats on the other side of the ledger. Let me give you a 49 state which is more like what North Carolina is. So a 48 or 49 state might not find it so easy to do that. Yet that 48 or 49 in this map is consistently being represented by 25 , give or take, of the legislature. And i dont think anybody has a solution. I think gerrymandering is sufficiently unpopular as proven by history that the 48 might get i lekelected. But if youre 35 , nobodys got a solution for you. I think Justice Oconnor had her finger on the pulse of state electoral politics said this problem is largely selfhealing. On the other side of the weight, if you get in the business of adjudicating these cases, these cases will come. They will come in large numbers and they will come on your mandatory appellate jurisdiction. Once you get into the political thicket, you will not get out and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other mr. Clement, you seriously im sorry . Just what you said now, that was the exact same argument about dont go to one person one vote. The courts will be flooded with cases and theyll never be able to get out of it. Thats not what happened. Sometimes an argument thats not a great argument in one context turns out to be pretty darn good in another context. If you tell state legislatures that are literally divided down the line in the middle with a physical aisle between democrats and republicans that they cant take partisanship into account u then youre really telling them to get out of the business of redistricting entirely or youre opening yourself up for case after case after case. Can i ask a question, which is first isnt proportional representation a judicially manageable standard . Well, its a difficult standard that would require answering some elections about baseline but it could be manageable. The second is why cant the equal protection clause be interpreted to require something resembling proportional representation . Because its entirely ahistorical. They also gave them the choice to districts which is fundamentally inconsistent with that. Thank you. Thank you, counsel. Mr. Bondurant. Mr. Chief justice, may it please the court . This case involves the most extreme partisan gerrymander to rig Congressional Elections that has been presented to this court since the one person one vote cases. The North Carolina legislatures case is equally extreme. They take the nooposition that matter how predominant the intent, no matter how extreme the intent when you use the word extreme, that implies a baseline. Extreme compared to what . In this case, it is extreme in comparison to any statistical application of neutral redistricting principles in the context of the political geography of North Carolina. It was statistically impossible to come up with an 112 plan. As one of the authors said, we are proposing a 103 partisan gerrymander because its not possible to do an 112 plan. The statistics bear that out. Moreover, dr. Chins maps which took every possible criteria that they used that was legitimate, applied them to a thousand randomly drawn maps showed multiple things. First, that you cannot possibly explain the 103 advantage based on political geography, democratic clustering, the application of independent redistricting principles or pure chance. This is not the result of chance. You can only achieve it by making partisan advantage the predominant moetivation. I understood your brief as saying that any element of partisanship was bad. Is that your position . No, your honor. Our position is that partisanship has to be at least a material factor, as it is in Arlington Heights or mt. Healthy. But in this case we proved that was a predominant factor and that is the ruling of the lower court. I guess it rephrases the question of what constitutes a material factor. Well, the difference between material and immaterial having no consequence is a very real difference. Just so i understand, any partisanship that has a consequence is impermissible under your view . We do not need to go that far in this case, because you have evidence of predominance. That is, this objective, partisan advantage superceded every other conceivable objection. I understand the reality that its an extreme case. But to state a principle that were going to be able to apply to other cases, your definition of material is that it has a partisan consequence . It is a material part of the decision as is, for example, firing in mt. Healthy. If that was a material part of the decision of the school board to fire the schoolteacher, then he had made a prima facie case which could then be defended based on either there were intervening causes. That is the real reason why she didnt show up to teach. Or you have legitimate state interests that are being served. In this case, the North Carolina legislature before below did not advocate, contend in any way that there is any legitimate state interest of any kind served by partisan gerrymandering. So you have under any of your analyses a clear burden. You have clear vote dilution, carefully thought out, skillfully executed. If you make a list of the socalled neutral criteria, compactness, contiguity, respecting certain natural features of the geography and you have the Computer Program that includes all of those and weights them all. Lets assume all of that is neutral. At the end what you get is a large number of maps that satisfy all this criteria. I think thats realistic thats what you will get and the legislature chooses from among those maps. How do you determine whether that choice is unconstitutional . The choice would be the standards that the court has traditionally applied. Picking an example, the Island Trees School case in which the court said that a Democratic School board could not use its discretionary choices to discriminate based on viewpoint by excluding republican authors and republican can you just answer that question . Because its a real puzzle to me. Lets say youve got 100 maps or you might even have 25. I think you probably have thousands. But you have all of these maps and you have to choose among them. The legislature chooses among them. Youve already programmed in all of the socalled neutral criteria. How does the legislature go about choosing among those maps . Would anything other than just random choice be satisfactory . The legislature has wide discretion as long as it does not attempt to do two things, dictate electoral outcomes, favor or disfavor class of candidates. Counsel, that first one, dictate electoral outcomes, i think, is going to turn on numbers, right . How much deviation from proportional representation is enough to dictate an outcome . So arent we just back in the business of deciding what degree of tolerance were willing to put up with from proportional representation . We might pluck a number out of the air or see that maybe twothirds is used for veto overrides so we like that. Where are we going to get the number at the business end of this . The business end of it is looking how this is done. This was done by looking at voting history is the best predictor of voting behavior, sorting voters among districts to achieve a particular outcome to guarantee that in ten districts there would be safe republican majorities in which the general election is essentially irrelevant and the primary election let me try one more time. Lets say you have a range of outcomes with all of these neutral maps that satisfy the neutral criteria and they extend from 102 in favor of republicans to from 102 in favor of democrats. Which one do you have to choose . 93 for republicans, 84, 66 . Clearly its an evidentiary matter in terms of intent. If the predom innocent intent is to favor one party, that goes too far. Isnt that always going to be the case when you deviate too far from 66 in Justice Alitos hypothetical . It certainly is going to be a question of factual proof. The further you deviate from proportional representation, the more likely you are to be found guilty of that. It is purely an evidentiary question. This court itself said in reynolds that any case in which you look statewide and see proportional representation, it is less likely that you have as part of our mandatory jurisdiction in every single redistricting case, were going to have to look at the evidence to see why there was a does he ha haveuation from the norm . Youre going to have to look at the case and determine whether or not the plaintiffs proves intentional predominant partisan intent to discriminate. I would think that would always be present. The legislature in North Carolina could have picked between hundreds of maps that would have produced a 67, maybe an 85 representation. But that is not this case. What do we do as well about the fact that about 20 states, as i understand it from your friend on the other side, have dealt with this problem through Citizen Initiatives as a remedy to deal with this including, i think, five of them just this last election and a bunch more on the ballot in the coming election. Why should we wade into this when that alternative exists . The simple answer is this. The vast majority of states east of the mississippi including specifically North Carolina do not have Citizen Initiative. Can you amend your constitutions . That has happened in a lot of states too. You can only amend the constitution with the approval of the legislature. That is not an effective remedy. In the states in which you have independent redistricting commissions, are states in which those commissions were adopted over the dead bodies of the legislators by Citizen Initiative passed overwhelmingly by the citizens in face of legislative opposition. What do you do with the fact that partisan identification is not the only basis on which people vote . You see electoral results change dramatically depending, for example, on the particular appeal of individual candidates, turning on whos at the head of the difficult rather than down ticket. How do you deal with those factors that depart from the arguments about the inef tablt of electoral results . The social science and the experts in this field which included dr. Hofler who designed this plan was the republican partys leading redistricting expert. He testified that based on social science in his 20 years of experience in redistricting North Carolina he could demonstrate that how a small what are called voter tabulation districts had voted in past elections, whether democratic or republican, was the best pri predictor on how they would vote in future elections and all gerrymandering in the modern era is based on that social science. It turns out that a lot of the predictions in this area and i dont know if this applies to North Carolina or not, prove to be very, very wrong very often. You have the famous example in the veeth case where the argument was the method under challenge would never allow the election of republican judges. And 15 days after the opinion came down, all the judges were republican. I mean, even as in the more recent cycle i understand a lot of things that were never supposed to happen happened. In this case on this undisputed record the way this was done was dr. Hofler used a composite of seven statewide elections over four election cycles to come up with a calculation of partisan advantage and predictability. And it predicted ten republican districts and the republicans won all ten. It predicted three democratic districts. The democrats won all ten. In 2018 they did the same thing. He used the same methodology in 2011 to describe the districts in 2012. Counsel, the reality is that with all statistical models, and we spend our lives based on them, insurance is paid on statistical models, Health Insurance premiums are based on statistical models. Im given to understand by the amicus briefs in this case that n Nuclear Plants are built based on statistical models. The other thing about statistical models is theres always a possibility of an aberration, correct . There is a remote possibility sometimes. And sometimes happen,thats why theyre a possibility. Correct. So the fact that you have one exception doesnt disprove the rule. Certainly not. 100 maps out of 24,000 maps. But the problem i think your side throughout this morning has to deal with, a problem, is from this side of the bench to some people looking at the prior cases there is a great concern that unless you have a very clear standard, you will turn many, many elections in the uni states over to the judges. Theres always someone who wants to contest it. They will always find experts of all kinds, and what youll discover is judges simply deciding too much. Now, im ive written about why i dont take that position, et cetera, but im not im not speaking for myself here. Im speaking as a reader. And an understander of whats on the other side. At least one thing. And think its important for you and the others to deal square on with that question. My squareon answer to that question is in this case, we prove beyond a reasonable doubt a predominant partisan intent that was admitted on this record and demonstrated statistically beyond any possibility and dispute and we proved in extreme partisan effect not only on a statewide level but on a districtspecific level, in dr. Mattinglys charts, six of the districts are extreme statistical outliers that would not be achieved in even one in some instances of 24,000 plans. That is this case. Moreover, this court has held that the elections clause is, number one, intended to provide limits on partisan gerrymanderi gerrymandering. Justice scalia said that in veath and this court has said the elections clause was a limited delegation of power, through not procedural rules, for time, place, and manner, but was not to provide power to dictate electoral outcomes or favor or disfavor a class of t candidates. That is an understandable standard that legislators throughout this country can understand. They already have told that you cant discriminate based on political viewpoint. They already told in redistricting you cant discriminate predominantly based on race. Suppose the legislature had said, we have all these maps we can choose from, but we dont want to be too greedy, so were going to pick a map solely for the purpose of giving us an advantage. Were going to pick a map that builds in a 75 advantage for us. Would there be a problem with that . It would be very difficult to prove partisan intent. What if they said it outright . The only reason why were picking this map is we want to build in a 75 advantage. If take your hypothetical example, if in North Carolina the Legislature Said we in our wisdom have decided the people in charlotte are going to be represented by a democrat, the people in asheville are going to be represented by a republican, that were going to split gilford county and North Carolina a. N. T. To ensure the students in that school are going to be represented by a republican in one district and a republican in another. They would be dictating electoral outcomes even if it were 76. The whole idea of the democratic process in a general election is the people elect a member of congress in a general election which everybody can vote. And when you rig the districts in that manner, you are making the general election irrelevant. Youre making the primary election in which only some people can vote so even the map provides only a very small partisan advantage, that would be subject to challenge in litigation . If it the facts that i posited you had the legislature essentially deciding that the people in x part of the state were going to be represented by a democrat and people in y part of the state were going to be represented by a republic an that people in the respected states of other persuasions were not going to have a choice, were not going to have an opportunity. That would clearly violate every principle for which this quart has stood. When you say that, arent you answering Justice Breyers question . Yes, all of these things are going to potentially end up in court. No. Judges are going to have to decide. Quite the contrary as is the one person one vote rule. If the court says as this court said in term limits, that the elections clause means that the legislature cant put its thumb on the scale and pick winners and losers, zydictate electoral outcomes, favor or disfavor a class of candidates, that is a standard that can be understood. That is a standard that elect legislators will o cabey. And reduce and not increase litigation. Thank you, counsel. Mr. Chief justice, and may it please the court, the north carolinians who are plaintiffs in the case come before the court seeking relief. When the General Assembly enacted a remedial plan in 2016, its leadership eventually bragged to these voters and the public at large that by enacting a 103t was punishing voters who supported Democratic Candidates and was going to create districts that would not allow voters in those districts any meaningful ability to use normal democratic processes to redress infringements on their individual constitutional rights. This case is not the first North Carolina voting case to reach this court this decade, but it represents the most extreme example of a nonresponsive legislature that believes that this court will implicitly endorse unfettered partisan manipulation in redistricting by declining to rein in this most egregious example. The vote dilution test presented to this court today is a limited and precise test designed only to pose liability on the worst of the worst cases, thus limiting the number of gerrymandering cases that this court will see. A lowercourt will apply a threepronged test where all three prongs must be satisfied, and under many of those prongs there are multiple screens to limit the number of plans subject to liability. First, partisan intent has to be proved on a districtspecific basis. Proving that district lines were drawn to subordinate the adherence of one Political Party and entrench the power of the Party Drawing the lines. Second, partisan effect has to be shown at the district specific and planwide levels. The districtspecific inquiry looks at potential tracking and packing of democratic clusters o republican clusters, as it will, and the statewide, the planwide inquiry, is whether the map as a whole creates a severe and durable effect on the disfavored party. Then finally the court asks whether theres any justification at the districtspecific level for the cracking and packing observed and whether planwide the map as a whole is more biased than you would expect given the states political geography and use of legitimate nondiscriminatory criteria. Indeed, built into this is the idea that we should at least have a proportional representation light. Proportional representation is in a sense that it is in some way the baseline against which all of this is measured. Not at all, Justice Alito. With the three prongs, there is plenty of room for nonproportional plans. A degree. I mean, you can you dont have to have strict proportional representation. Thats the baseline. Thats what youre measuring. Was there a partisan effect . Well, theres a partisan effect because it deviates from some notion of proportional r representati representation. The effects prong and justification prong do real work to prevent that situation from happening, from this being just a measurement from the deviation. How can that be . Because i would have thought under the effects prong there has to be at least some effect. Right . There has to be a district specific and severe and durable i got it. We have to measure effect from what . So so every test thats been presented to this court last year and this year, talked a lot about last year, the efficiency gap, which is how far a deviation from proportional representation we were told i think 6 or 7 of deviation would be okay and that would not be an untoward effect. But anything above 6 or 7 . Today were talking about twothirds. As an effect. We need to have a number or some formula to determine what effect is enough to state a claim and what isnt. Otherwise, every case is going to come to this court. And im still waiting to hear what that might what that number what that formula might be. Other than proportional representation and were not going to tell you today just how far deviation would be permissible because that would expose the problem. Several points in response, justice gorsuch. The Legal Standard is all the science is an evidentiary tool, not a legal tool. Two categories of social Science Evidence were brought to bear on this question of severe and durability effect. The simulations didnt set a w numerical baseline, you see a range of plans with democrat varying, democrat republican splits, using these simulations and were giving the legislature breathing room. With respect, counsel, im sorry to interrupt, but breathing room from what . Breathing room to how much breathing room, what from standard . And isnt the isnt the answer you just i understand you dont want to give it, but isnt the real answer here breathing room from proportional representation up to maybe 7 . No. If its not that, what is this breathing room and where does it exist . Breathing room exists in the bell curve of expected and reasonable map allocations of ref zrepresentation. Breathing room to employ some political consideration. Why isnt the answer to Justice Gorsuchs question that whats not allowed deviation from whatever the state would have come up with absent the state can depart from proportional representation, however much it wants to, however much the natural features of the state would suggest and come up with something thats not proportional rep dresentation a all. What it cant do is deviate from that based on partisan considerations. Isnt that what this test is essentially driving at . That gets at the effects prong. Yes, thats what i was talking about. You would still potentially lack discriminatory effect and it really is a question of whether the linedrawing party is imposing upon a disfavored party a severe and durable effect. Counsel, i get that, you know, youve wisely adopted a very fine answer. Given for you. But i guess my question is, once we control for geography, once we control for all those things, were going to have hundreds and hundreds of maps as Justice Alito pointed out. Computers that spit them out infinitely now. And once we say, okay, all these other factors are controlled for, we can do a regression analysis, controlled for geography, on all these things, were still going to have hundreds of maps. The legislature is going to choose one. At that point, we have to say, whats the range of permissible options . From that, we need a baseline. The baseline, i still think, if its not proportional representation, what is the baseline that you would have us use . There is no controlling for geography and everything else. The geography is baked into the bell curve. I accept that. You and i actually agree on that. So after that, when were left with weve thrown out millions of maps. Were only left with a mere few thousand. Okay . What deviation from what to what . If what we are left with is no extreme statistical outlier or no grossly asymmetrical map, the legislature can choose from any of those plans. Counsel, what is wrong with proportional representation . There are certainly states where the natural geography of the state doesnt lend itself to proportional representation. We live in a system with single if you were cracking or packing to get to proportional representation, would that, in your view, be unconstitutional . This court has endorsed that kind of activity in gaffney where a legislature is striving for a proportional representati representation. Our test would not invalidate a plan like gaffney because it would not have a statewide severe and durable effect and it would be something that you would see within the simulations. Do you agree with mr. Clement that the constitution does not require proportional representation or require something close to proportional representation is. The constitution does not require it. But what we see here in this test that weve employed, justice roberts, to get to one of your earlier questions,s i i Test Technology that was not in existence in veath and vandemer and the republican judges case in the 1990s and map drawers are using right now. If there is a plan where under any plausible shift of voter sentiment, the bias across the plandisappear. That plan would not be unconstitutional. Again, this is an enormous screen to the kinds of plans that would be subject to liability. Our proposed tests, the one adopted by the District Court, is so exacting that it narrows dramatically the number of plans subject to scrutiny and leaves legislators lots of breathing room. Am i right to understand that your test allows a greater degree of partisanship in redistricting than mr. M bondurants . Depending how you understand the constitutional harm. Where we see the vote dilution tests based on the one person one vote and the racial vote dilution frameworks, we see those tests as allowing room for some political situations, particularly the ones endorsed by this court. Its a different approach to the same problem. We do believe that our test does give is narrow and descriptive enough that it gives legislatures guidance on what to do to make sure they stay on the right side of the constitution and limits gives lower courts something very manageable to apply and to grapple with and the pleading standards are going to be very high. To prove a severe and durable effect is not to just allege it, its to come forward with rigorous statistical evidence that supports this situation. I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a problemdemocracy. The court, even though it might be a problem to get involved in all these cases should, in essence, recognize the emergency situation from your perspective. But what about, to pick up on something justice kgorsuch said earlier, theres a fair amount of activity going on in the states on redistricting and attention in congress and in state Supreme Courts. In other words, have we reached the moment even though it would be have we really reached the moment even though it would be a big lift for this court to get involved where the other actors cant do it . The north carolinian plaintiffs in front of you can do nothing to solve this problem, and im thinking about more nationally. Your the amicus briefs are certainly referencing a problem in many states. The idea, i think, in it the bri briefs is this court and this court, alone, can step in. And there is a fair amount of activity going on in the states recognizing the same problem that youre recognizing. As mr. Bondurant acknowledged, east of the mississippi theres a small number of states where this is a possibility. The court is thats not initiatives, right . And there there, i mean, there are, new jersey, michigan, ohio, have dealt with this in some way. Just to pick a few that ive got in front of me. But you also have the state Supreme Court option as Justice Kennedy kavanaugh pointed out. We often overlook that possibility in our federal. What do about that. Other options dont relieve this court certainly while the reputation of the court as an independent check is an important consideration, understand on facts of this case the Reputational Risk of the court of doing nothing when david lewis says im going to draw a 103 plan, if i could draw an 112 plan, i would. The retputational risk of doing something is much, much less than the Reputational Risk of doing nothing which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out. This is this is a situation wherewithal due respect, Justice Connor was not correct. This isnt selfcorrecting. Voters in North Carolina no matter what level they turn out, this was a swing election in 2018 for North Carolina voters. And they were not able to eliminate the bias in the plans. The techniques are so sophisticated now that theres no room for selfcorrection and these voters if we look at the popular vote for the house of representatives nationally in the 2018 election and compare that to the percentage of seats won by the two parties, what to what degree do they diverge . I dont know the answer to that question off the top of my head. I know there was a fivepoint advantage for North Carolina democrats in 2018. This is a Great National problem, is is there would we see a great divergence there if we look at the statistics across the whole country . Theres not gerrymandering in every state, in fact, our brief points out the fact that most plans are symmetrical. Gerrymandering isnt in every state. And so i dont think that metric is particularly informative on that front. Thank you, counsel. Two minutes, mr. Clement. Thank you, your honor. A few points in it two minutes. First i do think at a very fundamental level my friends on the other side are the sight of their own technology because they have produced 24,000 maps that are permissible maps that dont take partisanship into account at all, and their submission is that a legislature organized on partisanship lines cannot take partisanship into account to any material degree in picking among the 24,000 maps. And thats just an argument ultimately to reassign this authority away from state legislatures into somebody else who doesnt have a partisanship interest or partisanship organization. All right. Thats just not true because what they have shown is if you dont use partisanship as the predominant factor, then you can produce a lot of maps that are not this one. Thats what they have shown. Right, but you can also pick 162 that are this map and how is a partisan legislature supposed to choose from among those maps if they cant dont use the one criteria that intentionally and invidiously looks to exclude the other party. Thats their basic point. That was the basic point of the judge below. Thats right. So youre basically asking state legislatures not to legislatures. Let me finish with this, a lot of hard constitutional issues come before this court because youre dealing with something that was unknown to the framing generation. But the framing generation understood partisan gerrymandering firsthand. James madison was the intended target of a partisan gerrymander by patrick henry. He complained about it bitterly. So did george washington. Neither of them contemplated suit. Hamilton actually suggested to jon jay that the federalists ought