Cspans campaign 2024 coverage, watch as we follow candidates othcampaign trail. Just and all. Campgn 2024, span now, our free mil video app, anytime online. Cspan, your unfiltered view of politics. The u. Ssupreme court heard oral argument a case on Congressional Redistricting and gerrymandering. It centers around two distris divided by the public legislator. There was a suit filed alleging changes devoting the voting power of thousands of black voters. There was an appeal and it went to the higst. There is until june for a ruli. To identify republicans and democrats. The panel declared district one a racial gerrymander only by adopting an erronacial policy theory. First they failed to foe the alternative map required. In a case lis only sh an alternative. Second it hyper entangled race and politics and makes no s the panel believe they needed a racial target in Charleston County to achieve itsical goal nationwide because 17 voter turnout, says nothingt whatsoever about t prodominant majoty votes for the predominantly White Charleston unty and is irreconcilabl with district ones recent history. Moreover the panel agreeinth General Assembly made 34reu8 ges in other parts of district one without using a racial targe the yen assembly has had no reason tondid not use a racial target. It used political day to data to pursue its political goals. If left uncorrected this will undermine the Courts Holding that partisan gerrymandering claims are not justiciable. They can be repackaged as rac jerry mandering claims if all plaintiffs have to do is ignore direct evidence of intent, infer racial target from the correlation between race and politics ant to malleable pert analysis. This court should reverse and not allow itsxaing precedence to be so easily subverted. I quk the courts questions. Mr. Gore, we review this for clear erro the District Court credited the plaintiffs expert and found ur experts noncredible. Soow does that meet the clear error standard . All three of dr. Ragusa opinions contradict the data in report which demonstrated that race did not predominate in the changes to disone. His own data shows thatitics was a stronger predictor than race of whether a b. T. E. Was moved of district one. He concluded there was no rrelation between race and whether they were moved into district one. Ats page 111 of the joint appendix. Those facts alone establish that dr. Ragusas threeons in thiseal are unreliable and unprob but theres even more. For each of those three opinion he is committed other errors. He did not control for where in the distri voters liv i thought he said as far as geographic continuity, the size of the different districts was an adequate proxy that . He did say tradition principles were embedded in his analysis. Whatever he meanbyhat he did admit onssexamination he didnt test or contr for those principleshether they explain the decision theen assembly actually made. Thatsame error tremendous experts made in allen that this court set aside just last term. Hifaure to consider the location of voters th the district is the same error committed by the expert where this Court Reversed the finding did your expert present annual terntive study which did control for geography and reached a different result . That would have been the easiest way to undermine the theory. I understand it, this was haly touched upon bth state below and certainlyhetate did not do what would sm to be the normal thing if you were really concerned about this, which is to say look at our study, we controlled for geography, the results are entirely different. We did raise questions about that. Direct evidence showed like all thr direct evidence that decisions were made based on politics and traditional principles, not using race. Think you indul i a very poor starting point and clear error. Are you in the substance of believability of one expert over another. Credibility findings must be deferred to tohe District Court. I understandou points about your point about dr. Ragusa but i just point out th oer experts before the court and he hself said it was embedded as rtf the structure of his analysis. You may disagree with that but it will be hard for you to show at no fact finder could credit that understanding of his testimy. But i think what i am really oued by is going back to Justice Thomas questn,hats the legal error and whats the clear error . Just tick them off for me. There are several legal every rors. I want legal errors or clear errors under our sds. The first legal error is the failure to enforce the alternative map requirem im going to butt in. The alternative map requirement, me, doesnt exist. You know sometim ts court, i think, holds things and then i go back tohepinion and i think well maybe we western as clr we might have been. Not here. Im just going to read from cooper. A plaintiffs task is simply to rsde the trialou without any special prequisite that race, not politics, was the predominant consideration. In no ar of our equal protection law have we forced plaintiffs to submit one more rmf proof to prevail nor would it make sense to do s here. An alternative map is merely an evidentiary tool, neither its presence nor itsbsence can itself resol a racial jerry mandering claim. I dont owow to more clarily say that there is no alternative map requirement in these kinds of cases cooper was addressing aas where there was direct evidence of racial predominance. It also said on page 322 in the majority opinion in a case like cromartie in which the plaintiffs had meager direct evidence of a racial jer hi ry mander and needed to rely on evidence of foregone alternatives only maps of that kind all we were saying the, mr. N other evidence you needed some evidence. So that is not this case. Cromatie2 wamang a specific point. Look at this case. Theres none of this kind o evidence. None of that kind of evidence. No othe other kind of evidence. So m gosh. In that case you need map. But this is sey case, all we were sin ishawhen you have no other evidence you tt present a masm b thats not to say that theres anything like an alternative map requirement. If you make ur case some other way, thats good enough. And here, the court found again on a clear error standard that the plaintiffs made their case some other way. Even if thats the correct reading of cooper, justice kagen, there were other legal errors in how the panel conducted its analysis. Mr. Gore, i thought your argument was that at least as a practical matter, in a case in which there is no direct evence or virtually no direct evidence theres no way in which a plaintiff candice entangle race and politics. Expt by providing an alternative map. I thought that was your legal argument. That is and thats exactly what cooper says is not the case. One may read cooper a different way. Cooper was a case in which there was a lot of direct evidence, was there not . Yes. Ould there be direct evidence really in this kind of case . This is what im concerned about. Because this distinctionrns whether theres dire e i wonder if its asonable to require such evide say that such evidence would exist in a situation that is not a majorityminority district scenario . You can see how thereou be direct ed when the states goal to try to, in its view, comply with the v. R. A. , try a majority minority district, well have evidence of people saying that. But in a situation like this, wherehat is not the case where the is saying instead, we are trying to, you know, achieve partisan tilt, i guess i dont unrstand and excuse me, we have also said the inten use race is very hard thing tprove just on its own are. You asking that we have a smoking gun in a situation like this . Not at all, justice jackson. Minority district context theres often direct eviden o use of race or race predominating. You could have th another cop text, the mapr or someone else admitted to using race as a proxy for politics because dithey didnt have adequate electta. Are you requiring that . Could we ever make this showing on circumstantial evidence alone . There were amicus briefs related toed to computer dwis and that sort of thick they thought would be helpful in this con tex. The alternative map itself would perform that requirement. Because any if a map could be drawn. There were alternate map heres that showed if race wa used they would look like. This lets move back past e map. Because i thinkoor was petulantly clear tha you dont need smoking gun and if you dont need a smoking gun you dont need direct evidence. What are the other legal errors . Another legal error was the panels misconstructithe Shelby County decision. It also failed to disentangle race and politics. It ignored volumes of direct evidence on the politics versus race question. It disclaimedis it disclaimed his claims. The crt did not accept his version of eves t didnt make a credibility finding based on his demeanor or testimony at trial, i simply credit other evidence in. Conducting the inquiry that cooper require, the court was trierd look athe evidence, direct and circumstantial, of intent and did not do that here. Is that a legal error condition correctly weig evidence . They didnt correctly conduc that sounds like a factual error to me. Your brief basal says we have legal errors and then it says well the evidence didnt show. Those e factual errors. Thats subject to the clear error standard. Going back to Justice Thomas estion. To the extent we have also made a clear errument i agree. But pointed out that the District Court failed to properly apply the standards that this Court Required in co cooper could not have been clearer on that point that the District Court is required to circumstantial evidence of intent to ensure plainff have disentangled race and politics. They are required to presume the good faith of theeral assembly and its explanation of what it did but the panel failed to do both of those things. It sods like you just have a different view of the evidence. You said were using politics and the court said no, youre using race as a proxy for politics. Thinformation the map drawer had on the computer was a sgl president ial electio year voting data and lots of race data. Evybody can tell you if you really want to draw a stable partisan gerrymander, you do not rely ongle president ial year election data. I mean they had not only the portunity, it was sitting there on their computers, but the cleartive to be looking at thise data which is certainlyore predictive of re voting may haver than a single president ial year election in which President Trump was the candidate w further distorts voting behavior. We totally diswith that reading of the record. The panel itself did not cal into question the reliability of the general assem election data. It in fact usedhat area election data to support its racial target theory. If that election data is unreliable the panels entire line reasons is unreliable. All evidence established the map drawing team thought it reriebl and used it to draw lines. On the question of whether racial was evidence that they oked at it. There was evidence it went into their analysis. But i mean, look att there was what the panel said was that there was plenty of theafd they looked at the voting record and not just as a legal check on the back end. Nobody needs to have the voting draw the maps to make a legalu check. What they wereoing is making sure the population of blacks in each precinct,n each district, you know, did not rise above the nuhich would make the plungerry mander less stable. Thats not what the evide was at trial. The evidence that the racial data idded in the software but that t drawer would have tocroll over to a different screen or down to the bottom in order to be able to see it. Is there anything suspicious about the fact that a map drawer knows the racial demographics of the state or has available the racial demographics of the state . Havent we spoken about that . Yes, many times this court has said that mer awareness or consideration of race doesnt prove predominance. And thats that would be particularly true in a state like south cola. This is not something lie along the lines of we looked at the racial datat still it condition rise to the level of predominance. Actually your defense was we didnt look to the racial data for urpose. And what the court said was, i t believe that. Credibility judgment. Basically said, are your mapmaker getsthe stand and know this is racial data like the back ofand and the court says i just dont believe that they were not looking the racial data that was right there in frontf them for the purpose of making their gerrymander more secure. That underscores the District Courts error in fail look at all the evidence. Its true th drawer knew racial composition of one district, one v. T he d know the racial composition ofer districts he was asked about. Moreovcial data is not a good predictor. A president ial election is at doesnt measure turnout in a nonesential year correctly. Ill ask you this. There are twolets say you have before you. That where the election data says these districts favored President Trump. One has a 20 feedback and the other has a 1 now doesnt any mapmaker look and say, you k would rather have the 17 v order to make sure Going Forward this continues to be a republican dt. I dont believe thats true at all, justice kagan. I think they look at how much the areas favored President Trump by. This particular holding that constant youd rather have the 20 bap or 17 . It would depend on other factors such as traditional principles. Wt this trial court found on the facts thoarng evidence, was that the mapmakers made a ju theyd rather have the 17 . That,ou know, along with the election data, theyht they were they looked at this one year the election data. But that t 17 was what woul say, if we go above that were not sure we can hold this when another election comes. The record did not support that finding. How do you explain the consistency . I mean my understanding is that thousands of people were moved in and out ofhis district and yet that line, the line concerning the amount of, you know, black voter, adult Voter Participation remained the same. If that was not if what the court found here was not happening how do you explain the consistency of that lin we have a few explanations t, justice jackson. The first to addressce kagans hypothetical is the draftns through the drafting proses actuallged. Inhe milk plan it was 15. 48 . In the other plan it was 16 . The en plan is 16. 7 . The staff plan has a higher republican vote share than the milk plan. Was it igher than the 17 . Were being moved around. You would assume if it was varying it would do so in both rections. People were being moved around but not very many people. Remember ta district one retained 93 , almost 93 of the district core. So 8 . You said 93 . I thought it was 82. 3 3bg9. It depends on the method used to measure. The mtd used by the yen assembly was over 92 . Thats not what the District Court found. I thought it was 28. 82. , the lowest ocore district how much you account connecticut for theact that 68. 6 of whites go to ct1 but onlyf blacks to that are democrats . Youre controlling for rtisanship and the numbers are that disparate . You have to consider where those vote es happen to liv so its ok for the legislature to say i wasking at partisanship but im not looking at whether someone was white or black but im going to separate cv1 so it 100 miles apart in one county and the only commonality is that they live along i26, 100 miles apart . And im going to j those two blackections or get rid of and keep whites there. Even though even though the democrats couldnt be moved. This court has been clear that racial effects do not prove racial predominance. But the numbers are incredible. Were lk at intent here. Dont Say Something about the intent in whether or not the court was plausible . I thought clear error standard it was plausible for the District Court to believe or disbelieve, were not looking at race statement made by the person who was putting this together. The racial effects in this plan are far less stark than the racial effects in the cromartie and cromartie2 plan where the gerrymandering. Racial they created a 10 area in the other district. Im sorry to interrupt. But weve been dancing around the big question which i think is, mind, the District Courts finding that your clients had to have loo race data rather than politics data because the politics data wasnt robust enough. Now youve part of an answer. Id just like the full an as to why you think that is clearly erroneous. Racial data does not predict Election Outcomes particularly effectively. The correlation between race and politics only affects election politics to the extent people turn out and vote. Al data doesnt measure that. That. Election data measures their own expert agreed with th he said that racial data could not be used toct Election Outcomes b you have to know about turyou have to know about crossover voting and other factor. Their own brief, page 10, concedes that racial data would not predict voting behavior turnout among white voters in the area covered by district one. Thon for that is white votes for the that area split between trump and biden in 2020 and that district, even charlestonnty, are predominantly whit using a racial target inhat area wouldnt have told you what the vast majority of voters were going its not an effective way to predict election outcomee. The reason they used the 2020 prediction election data is the vote hbs allocatk to precincts. There a some that said the absentee ballots were properly allocated. Whats the response to that . Thats completely incorrect. Theyre citing testimony from mr. Olden who is involved in drawing the senate plan, not the congressional plan. He said that hypotheti election data would be flawed if it did that but he didnt know the General Assemblys election data did do that. The testimony unrebutted at trial and ed shows the election they used did properly allocate both the abse ballots back to the precincts and other votes back down to the census block. Ithe best Data Available because of the absentee ballot issue from prior year data. Moreover, evenugh 2020 i