Legal Case Summary

We are going to first this morning in case 14232, Harris versus the Arizona Independent Redistricting Commission. Mr. Hand. Thank you. Mr. Chief Justice, and may it please the Court, the one person, one vote principle of the Equal Protection Clause requires an apportionment authority to make a good faith effort to equally apportion the population as practically as possible. And while deviations are tolerated, they are only minor deviations made for legitimate purposes of irrational state policy intended not to be discriminatory or arbitrary. Here the Arizona Redistricting Commission, Malapportioned Arizona State Legislature, by almost 10% 8.8% and the district court below found it did so for two reasons. The first reason was to obtain a partisan advantage for the Democrat Party. The second reason was a perceived belief that Malapportion districts were necessary to obtain Justice Department pre-clearance approval. Neither of these reasons justifies a deviation from the constitutional principle of one person, one vote. Mr. Kern. The second part, do you want us to overturn the factual finding that compliance with the Voting Rights Act, the pre-clearance procedures, was the real reason for the deviation? Do you want us to overturn that as a factual finding? No, I don't, as a factual finding. But when you say Justice Kennedy, the pre-clearance obtaining voting rights at compliance, we have said, as we've noted in the briefing, it was not necessary to underpopulate districts to obtain compliance with the Voting Rights Act. I ask you a question. It's all that you're making this charge that there was an impermissible effort to increase the Democratic authority power in the legislature, but the end result was that the Arizona plan gave Republicans more than their proportionate share of seats in the state legislature. And I think the numbers are, in total, Republicans won 56.6% of the state senate seats, 60% of the state house seats. And that exceeded the Republican Party's statewide registration share of 54.4%. So there was an attempt to stack this in favor of Democrats, it certainly failed. Well, we would say, Your Honor, that a incompetent gerrymander is no less a gerrymander when it unequally affortions the population than a competent gerrymander that obtained the partisan objective. I think the objective that we are trying to achieve here is the one person, one vote standard. And that's why whatever the ultimate political outcome, I don't think that vindicates the fact that these are unequally important. It's still not clear to me what you want us to say about the commission's rationale for compliance and voting rights act on point

. That was wrong, as a matter of law, because if you don't overturn the factual finding that they had a good faith belief that what they were doing is correct, then you have, then you have a problem it seems to me, or do you have a problem? I don't believe I do, because I think it's not the good faith, what the district court found, was that their advisor told them, you can depopulate districts up to 10%, and in fact, you should do that because you need to create these underpopulated minority districts to obtain preclurance. That is wrong. The Voting Rights Act does not command, does not compel or require underpopulated districts to obtain preclurance. The solicitor general noted that as well in their briefing in the Justice Department guidelines. Well, I think that's how confident are you of that? I mean, the preclearance process at the Department of Justice is famously opaque. And usually the states and municipalities have to go through or had to go through several layers of back and forth. Here's a proposal, it's sort of a bargaining process. I don't know how confident you can be that it wasn't necessary. We certainly agree that the preclearance process was very opaque as you said, Mr. Chief Justice. I mean, we said it was like reading chicken entrails because no one really knows what you do or don't need to do to obtain preclurance. But just fundamentally, the Voting Rights Act, even prior to Shelby County, could not compel a redistricting authority to underpopulate districts. So the advice they had been given, you must underpopulate these 10 districts in order to obtain preclurance, was flawed as a matter of legal advice that doesn't justify malaportionment. So they could have achieved, as in fact, their own expert, Dr. King, said in the first map they had two maps. They had a draft map and a final map. The draft map had a 4% roughly deviation, and their own expert said this map satisfies the Voting Rights Act. Then they went and depopulated further to get a 8.8% deviation. So they were mistaken. I mean, you say they could have done it without dis-proportioning. But they thought that that was okay. They thought that they were doing this in order to comply with the Justice Department. What's the test? Is the test what they intended, or is it an objective test? Well, I think you have to look at actually both. I think you look at the objective test, is does the Voting Rights Act require you to depopulate districts? That's bad. Let's assume the answer to that is no

. Right. But the people who made this apportionment were mistaken, and they thought that it allowed and indeed may require you to do that. So that doesn't show a bad motive on their part, does it? No, but I don't think this Court's ever held that bad legal advice justifies a constitutional violation, which in this case that's what they're saying is that- Well, bad legal advice is different from an impermissible motive. Well, we have a mixed motive. What is the test here? Why would say this case is a district court noted, and all three judges split on what the burden of proof was, is a mixed motive case, where you have one assumed illegitimate motive, partisan advantage, and you have another motive, which is, oh, it's okay because we needed to do this because our advisor said that was necessary for pre-clearance, then I think the task falls to the commission to justify under this Court's decisions and Mount Healthy and Arlington Heights standard of a mixed motive case to justify, oh, this was necessary, in fact, to comply with that. And that was not- But it was more than mixed motive. It was a finding of dominance, but the dominant purpose of this was to attempt to meet sex in five. Two of the judges, Judge Clifton and Judge Silver, did find that that was a predominant motive, or primary motive. That's a fact finding, which you have a burden seeking to overturn it. But they also found that there was another illegitimate motive that they assumed, Judge Silver didn't necessarily agree, but she assumed for purposes of decision that this partisan advantage was a illegitimate motive. So you have a case where this body is unconstitutionally departing from one person one vote. They come forward with two explanations, one illegitimate, one supposedly legitimate, this pre-clearance based on a erroneous legal advice. And on the basis of that, the Court split on what the burden approved for us. We would- Just to pin this down a little bit, Mr. Herndt. You- you are not contestant the factual finding that the predominant motive was to comply with the Voting Rights Act. Is that right? We- we take the- the factual findings from the district court. We don't protest those. But what we do believe is that the Court applied the wrong burden shifting standard in that- in their analysis of those facts. When they have a mixed motive, the proper response would have been to say, okay, you've shown we found one illegitimate motive. Well, you keep on saying mixed motive, and I guess people keep on coming back to you, and just trying to figure out whether you are, in fact, or are not, in fact, contesting that- that the predominant motive was the Voting Rights Act. The- when we say the Voting Rights Act again, I want to make my position- Was the attempt to comply with the Voting Rights Act? Correct. This is the first- In the- in the- in the court found, and it is a factual finding, that that's the predominant motive, and I don't mean to harangue on this. I just want to understand what your argument is. No, we- we- we- to be very clear, yes, we accept the factual finding of the two judges that that was- what they said was the primary motive. But they aired when they did not shift the burden in a mixed motive case under Arlington Heights, I think footnote 21, or Mount Healthy, kind of standard

. Secondly, they aired when they gave a justification and found it legitimate, when there really was not a legal need to do what they did. There was no need- the- the Voting Rights Act can't compel vote delusion. And that justification, even if it was having good faith, does not excuse a constitutional violation of one person, one vote. So at minimum, it would need to be remanded for an opportunity for them to somehow the commission explain why they can justify these population deviations. And that's- that is our position, Justice Kagan. You. I'm- I'm even further confused. I- I understand that you gave up any racial or a- a- a political-gerimanding case. This is just a voter delusion case. That's absolutely correct, Justice Kagan. Now, I understand there's one case you're relying on that was summarily affirmed. But is there any other case from this Court that has ever said that a- a deviation of this amount is significant? I think we've always called it anything below 9 percent, to minimumist, correct? What the Court has said is I read the jurisprudence is that a deviation of over 10 percent is primafaceous and constitutional and the state must justify it. If it's a deviation of less than 10 percent, the obligation is on the party challenging it to come forward and present some evidence showing that it is done for an arbitrary or discriminatory purpose. That's what we understand that standard to be out of Brown v. Thompson. And again, that was a plurality opinion. But under that standard- I- I don't actually understand. I don't know of any case where we've required an explanation under 10 percent. I think two- I have two responses to that, Justice Sotomayor. First in Cox-Villorio, certainly this Court had a summary of firmance and the concuring opinion in that case by Justice Stevens and Breyer does say that there is not this magic bright line. And then other decisions of this Court have always disavowed creating some simple bright line test where deviations from the constitutional standard below that are tolerated. So for example, in culture, that decision said we specifically don't want to set some line because the minute we do that, legislators or redistricting authorities will immediately use that as the new standard. Well, in fact, they have. They've pretty much used 10 percent. And we've not discouraged them from doing that. It is certainly appeared in some of the district court decisions that they have looked at that

. And again, we see that as a burden shift. What it says at the in Brown v. Thompson, it says our decisions have established as a general matter that an unfortunate plan with a maximum population deviation under 10 percent falls within this category of minor deviations. And what we held previously was that minor deviations from mathematically quality among state legislatures are insufficient to make out a primaface case of impidious discrimination. So that's the holding of the Court. And this seems to be within the category of minor deviations where you have to make out, you have to do something more than you would have to do for a margin larger than 10 percent. Now, what do you think you have to do? Well, I think we have to do, Justice Breyer, what we did, which is to come to the Court, to come to a district court, and to present to them evidence which the district court found of you have a deviation that, though minor, is done for an illegitimate purpose. And yes, there was this other pretext of the preclearance issue that satisfied the burden of requiring judicial scrutiny of that redistricting. And so we have satisfied that burden. Why do you think they're having a minor? Don't you think this will lead every single plan to be a challenge as voter delusion? Well, no, I think that you would have to still have a showing of an illegitimate purpose behind the deviation. I mean, this is- Sotomayor, you didn't just establish it by the fact of the deviation. What kind of evidence did you present to the district court? Well, I think in this case, this case is a very unique case because as Judge Wake found in his dissent, the chart shows statistically that there was systematic partisan malapportionment done for that partisan reason, just looking at the number. Q. Is that the chart at 112A of the appendix? Sotomayor, yes. I think that if- Q. It is- Q. It is the chart that is in color, I think we've also provided- Got the colored chart. Yes. And it shows that the districts were systematically, statistically malapportioned for that purpose. So that would be the kind of showing Justice Scalia that would be- But I thought, Mr. Herring, that you were saying that the thing that you had presented had to do with an impermissible motive. And the impermissible motive was that they didn't have to do all this for voting rights act compliance. Is that right? Q. I say there's two. The first impermissible motive, or illegitimate justification, is partisanship to gain a advantage for the- Sotomayor. Right, but that's the very thing that you said you weren't challenging the factual finding that that was a subsidiary part of the redistricting

. It was- The dominant part was the voting rights compliance. And I'd take it. Q. You want to undermine the voting rights compliance rationale. But then I stuck on the same question that Justice Scalia is stuck on. Is what evidence did you present that there was an impermissible motive with respect to that, as opposed to different views as to what the Voting Rights Act compelled? Sotomayor, two quick answers to that, Justice Kagan. First is, legally, the Justice- the Voting Rights Act couldn't compel them to do what they did. So that justification legally is invalid. Secondly, we bring up that point about the burden shift with Arlington Heights and- and Mount Healthy, where when we show an illegitimate motive, partisanship, then the burden task falls to the commission to justify that. And I would reserve the balance of my time. Thank you, counsel. General Bernovich. Thank you, Mr. Chief Justice. May I please the Court? Fortunately or unfortunately, in this case, there are many facts that are not in dispute. Addressing Justice Kennedy's questions, the State does not dispute that the Independent Redistricting Commission did indeed draw districts of the unequal population. All sides agree that these deviations were not random or that they were not incidental. We also know that in the record shows and no one disagrees that this pattern to underpopulate minority districts was done to help create or further ability to elect districts. And we also know that the direct evidence is they did it intentionally. So why are we here today? And the background versus Reynolds V Sims, this Court has always held the equal protection is not a criteria, another factor when it comes to redistricting, but it is essentially the background which all redistricting much take place. The State of Arizona and the Secretary do not dispute the compliance with Voting Rights Act. Was a legitimate or is a legitimate state interest? And we don't dispute that maybe there was a good motive on the part of drawing these districts. The problem is those motives don't matter when what you have is undermining of the fundamental principle of one person, one vote. So in this case, what we have is a violation of the equal protection clause because by intentionally and systematically underpopulating those minority ability to elect districts, the IRC violated equal protection clause and that principle of one person, one vote. So essentially what happened was by overpopulating the other districts, the voters in the overpopulated districts had their votes diluted. And by diluting those votes, it violated the Constitution

. And it sounds fundamental that a statute can't authorize a constitutional violation so that even a attempt to comply with the Voting Rights Act is not sufficient if it violates the equal protection clause. Have we ever said that, I mean, it's obvious, but have we ever said that in the context of what the voting rights are? Your Honor, this Court is consistently for Reynolds V. Sims has always held that the concept and the principle of one person, one vote, any attempts to undermine that outside of the So we have said that even, you read our case of saying, even minor deviations are not permitted if their statutorily required? No statute can trump the Constitution. And so if the Voting Rights Act, whichever way it's read, can't be read in a way that would violate the one person one. And that's what Judge Wake said in his dissent. And that's exactly what Judge Wake said in his dissent. And that is the state's position is that we don't dispute or we're not saying that, complying with the Voting Rights Act, may indeed be a legitimate state interest. What we are saying is that when it's done in this systematic way, where you have a one-way ratchet, where you have consistently minority ability to elect districts, essentially using folks based on racial or ethnic classifications and underpopulating those districts and then overpopulating other districts, what you have done is essentially undervalued or violated the one person vote. Would you say it's correct that compliance with the Voting Rights Act, the desire to obtain pre-clearance is at least like other traditional district considerations, like respecting county lines, respecting municipal lines, having contiguous districts. Would you agree with that? Yes, Justice Lido. So if that is the case, then is this what you are asking us to say with respect to the Voting Rights Act, that the things that were really necessary to obtain pre-clearance are legitimate, but you can't go, but they went further. They went beyond what was really necessary to obtain pre-clearance. So we would have to determine whether that was true or not, or some court would have to determine whether that was true or not. In this instance, because of the systematic way the deviations, the underpopulation occurred, as well as the intention, we know from the Independent Redistring Commission that they intentionally underpopulated those districts. So we have all that evidence. However, we do believe that the Voting Rights Act is like any other criteria. So if you get these population deviations and they're incidental, not intentional, and that is the key, I believe, is when you intentionally underpopulate and systematically underpopulate these districts, that's what causes the consequences. What if the only way that you, that a state could obtain pre-clearance when Section 5 was still in force, was to underpopulate some districts? Would that be permissible? Just as you might have a situation where the only way in which you could respect municipal lines or county lines was to underpopulate some districts, to some degree. Justice Lido, the irony is in the draft maps, seven of the ten minority ability to elect districts were underpopulated. However, when the Independent Redistring Commission went from the draft maps to the final maps, there was a one-way ratchet. They intentionally and systematically underpopulated those districts. So Justice Lido can protect his own question, but he's asking you whether or not a deviation is permissible for protecting community ventures, protecting municipal lines, whether some slight deviation is permissible. Yes, yes, Justice Kennedy. If it's incidental and not intentional. I guess I'm not sure what that means. I mean, I thought you were saying that the Voting Rights Act is a matter of the same

. But it doesn't matter whether you were doing it to obtain Justice Department clearance. You cannot do something that is unconstitutional. That is. In fact, you don't have equally apportioned districts. It goes beyond what is tolerable. It's a violation, regardless of whether you're actually trying to comply with the Justice Department. Isn't that what you were saying? Yes, Justice Scalia, but I think that it's important to note that we look at this as a qualitative, not a quantitative analysis. So there isn't like some magic number where you say at this point this becomes unconstitutional or doesn't. The state's position is that compliance with the Voting Rights Act was like other neutral or traditional criteria like protecting as Justice Lido alluded to communities of interest, geographical boundaries. And so in that and considering that, you may have incidences where you get somebody, some districts above or below the line. So the faculty district may be below the line in and of itself is not a constitutional violation. The harm occurs when the Independent Redistricting Commission systematically underpopulates those districts, those ability to elect districts and overpopulates other districts thereby deluding the votes of those people. I guess I'm just not really sure. Let's say that there's a policy that says we want to respect county lines. And we also know that we want to do one person one vote, but we think we have basically some leeway up to 10 percent. And there's a policy. We want to respect county lines, even though that's going to cause a little bit more deviation on the one person one vote metric. Are you saying that that's impermissible? Justice Kagan, we were saying- It's a policy. I mean, it's an intentional policy. I guess, you know, the road to hell is paved with good intentions. And so our position is regardless of their intention. If they are doing it in a systematic way, we're intending to overpopulate certain districts, underpopulate other districts, that is unconstitutional. The voting rights act then- Even though it just says it takes you from 4 to 5 percent or from 7 to 8 percent. You're not crossing the 10 percent threshold, but as long as you're going up and you're doing it purposefully. In the sense of we have a policy to maintain county lines, that's impermissible. Yes, Justice Kagan

. The position of the State is that when it's done in a systematic and intentional manner, when you create essentially barrios of boroughs, excuse me, of certain folks, and then you overpopulate other districts that violates this court's one person one vote principle. General Bernadouc just as a matter of curiosity, how do you end up being on this side of the case? You were defended in the district court, weren't you? The Secretary in the State thought the principle of one person, one vote, in upholding that principle was very, very important, and that's why we felt compelled to be involved in this case. Well, but only on appeal. You didn't argue this side in the district court, did you? That is correct your Justice Scalia. What happened? Was there an election in between or something? Yes, and I won overwhelmingly. I knew it. Thanks. Thank you very much. I will be up for reelection in three more years. So anyway. Do you agree with your colleague that it doesn't make any difference in the end result? The legislature, the Republicans were disproportionately advantageous, and that is just had a disproportionate share of the seats. Yes, Justice. Our position is that that really is irrelevant as far as the numbers and ultimately, whether they're the percentage of the- So they would have ended up, if you're right, and even greater disproportion, a disproportion of Republican representative. And so ultimately, the number, this is not a line drawing case, this is an overpopulation underpopulation case. So how the lines are drawn and what the Republican or Democratic representation is in the state house or the state senate is not important or not key to our argument. Our-our-the key to the state's argument is that this intentional and systematic one-way ratcheting of underpopulating minority ability to elect districts is what undermines the one person, one vote principle, and what makes the actions of the IRC unconstitutional. Thank you, Council. Thank you. Mr. Schmitt? Mr. Chief Justice and Mayor, please the Court. There's no basis for concluding that the minor modest population variances among the districts in the Arizona map violate the equal protection clause. Do you accept the fact-finding-to-fack-finding-to-fack-finding that at least part of the motive was partisan? I don't think that's a fair characterization of what the district court found your honor. Oh, really? Why? The district court found that the predominant motive for the under-for-the-population division-the-fack-that's right. It said that there may have been two of the five commissioners who as to one district, district eight, had some mixed motives in urging that that district be made more competitive, but did not find that the commission as a whole acted even in that one instance with partisan motivations. And that district is not one of the ones that's significantly underpopulated

. The decision to move population around to make that district somewhat more competitive, even if it was motivated by partisanship, has nothing to do with what we're really talking about here, which is the 8.8 desidiliation. Well, I would be very upset if there was any motivation of partnership, because I wish this case had come up before the case we had last term, which approved your commission, despite the text of the Constitution, because this commission was going to end partisanship, get politics out of redistricting. And here, the very next term we have this case, which asserts that there has been a lot of partisanship on the part of this. With respect to the Oppositely Divine Commission. Not a fair characterization of what happened and not a fair characterization of what the district court found after a full trial. What it found after giving them a full opportunity to try to prove their claim that there was some and videos discrimination here is that simply not what happened. Instead, what happened is that they had these population deviations emerged in the final part of the process as they worked to make sure that their map would pass preclearance on the first trial, something that the State of Arizona had failed to achieve in each of the three previous decades. Well, the district court found, and this is on 79 A of the appendix to the jurisdictional statement, partisanship played some role. So you want us to interpret that to mean that if there was no partisanship, everything would have come out exactly the same way. It had no effect whatsoever on the district. What the court said was with respect to the changes to district rate, which, by the way, remained a large Republican-leaning competitive district, that two of the commissioners may have had mixed motives, both thinking about aiding the preclearance arguments and also thinking about bringing the Democratic Party up closer to parity. It still didn't get to parity. And I think that to say that's a red herring. Well, we don't need to discuss the issue of parity. If you have a system of proportional representation and you get 55% of the vote, you'll get 55% of the representatives. But in the kind of electoral system we have in the United States, with single-member districts and winner take-all, a neutral, a neutral district in plan will never produce exactly the same breakdown of legislators as the breakdown of the votes in the election. But that's, I mean, that's a side issue. What do we do with this statement? Partisanship played some role. Your Honor, partisanship by itself cannot violate the Constitution. You have a, even if you inflate that far beyond what was intended by the judges who wrote that opinion, the case of Gaffney versus Cummings was a case where you had partisanship being the dominant, controlling factor in every single line of the world. This is what interests me about the case. If we assume, as the district court did, that partisanship is not a legitimate consideration, it's not like respecting county lines. And if we interpret the district court's opinion as finding that partisanship was part of the reason for the plan that was adopted, then is the test, the mald healthy test, which in my understanding is what we normally apply in a constitutional mixed motive situation, so that if an illegitimate unconstitutional consideration is one of the reasons, the burden shifts to the defendant to show that things would have come out the same way, even if that factor had not been in the case. Or is it what the court said in Bush versus Vera and a few other cases that in this particular context, that's not the test. The test is whether the illegitimate factor there race was the predominant consideration

. Well, that seems to me it turns on the choice between the two of us. Is that wrong? Accepting a lot of the premises of the question, which I think are counterfactual about the opinion and what was found here and all of that, it does seem to me that even if you're going to make partisanship something illegitimate in a district thing which seems kind of like a fool's errand, frankly, it ought to at least have to be predominant. I mean, in a situation where you wouldn't, you wouldn't want to say that the, that, that, the, the, the, the line drawers have to act complete purity of heart. Well, are you saying that it's permissible to use as one factor, an illegal standard, if there are some other factors that are also in play, that it's permissible to use an illegal standard in part. If that were, would you want us to write in this opinion? No, you're on it. Nobody thinks that it's illegal. Well, let's, let's, that's one of the issues in the case. We'll talk about that later about partisanship. If you, if you want to say it does make any difference because partisanship is, is a valid consideration fine. That's your point. But my question is, it's Jones to me in response to your answer to Justice Alito that you're saying that it is all right to use an illegal standard in part to reduce, equal, equal representation. For all the same reasons that the Court has many times said we're not going to say any racial consciousness is enough to invalidate it unless it predominates. I would think you'd want to follow the same approach. Even if you were going to adopt the parody between racial considerations and partisanship considerations, which makes no sense. Your entire shawvi reno line of cases is about trying to decide whether it's race or party. And when you come to the conclusion of each leave that party, then it's okay. Can I put in my note that you're arguing that partisanship is a valid consideration in redistricting? You certainly can, Your Honor. You said it last year in the Alabama case. You said political affiliation is one of the legitimate traditional redistricting criteria that line drawers always can consider that is different. There is, I'm suddenly waking up here in the following sentence. I should hear it in your opinion. Look, look, look, how do you, it's, how, how do we write this? There are two areas that are difficult to write. One is, I know there's this 10% rule. But it doesn't say we don't look at it at all. We institutionally can't review thousands of pages of records in every redistricting case. So what are the words there that describe the standard we should bring to this? And the second, which is a direct application of the first, is you're quite right. How can we say that partisanship can't be used at all when you're doing one person one vote? But the sky is the limit, the, the, when in fact, of course I've descended there. The sky is the limit when you're drawing boundaries. Now, how do we reconcile, how do we reconcile our institutional ability with the need to have some policing here? And how do we reconcile what we say in this case with what we've held in the drawing area? Okay. Now those, those are two questions in the back of my mind and I'd like to have your answer. Can I answer the second question first? You're on 50 words or less. It seems to be like it would be, it would be not, not defensible to adopt a rule that says partisanship in creating minor population deviations is actionable, absent some effect in terms of biasing the map. Whereas in the, in the line drawing area, the beef situation, you have always insisted that there not only be a bias effect, but it'd be very large. I didn't ask you what we shouldn't say. I asked you what we should say. What you should say is, what you should apply is the rule that has been applied in all of these cases about minor population deviations. Is there a rational and legitimate policy that the state can articulate, which is the reason why they arrived at this difference? And here we have the Voting Rights Act, is the rational and legitimate state policy? Let's talk about that for a second. If action in redistricting or overpopulation would constitute illegitimate racial discrimination, can the answer that we're doing that to comply to get pre-clearance from the Justice Department legitimize that? Yes, your honor. This Court has said a number of times that complying with the Voting Rights Act is a compelling state interest. It assumed that just last year. My question is, if the action that is taken would otherwise constitute illegitimate racial discrimination? I'm trying to find out if the Justice Department's procedures can trump the requirements of the Constitution. In other words, it's an issue of, you know, we said in Reachee versus De Stefano that it's not an excuse, not a complete excuse, for intentional discrimination, that you're trying to avoid liability under Title VII for discrimination on the basis of effects. And I'm wondering if it's somehow different. If the Justice Department is insisting on conduct that would constitute a violation, if they're insisting on more than they should be, is that a defense for the redistricting? Well, your honor. The one thing that is clear, Mr. Chief Justice, is that the Voting Rights Act does require people drawing lines to consider race. Section 5 required it to avoid record wet progression. Section 2 requires it right now. I understand that. So it doesn't say that all bets are off. No, your honor, that what the line this Court has drawn is between maps which go too far and maps which don't. Maps in which the racial considerations predominate and subordinate all other traditional, disdricting principles here

. How can we say that partisanship can't be used at all when you're doing one person one vote? But the sky is the limit, the, the, when in fact, of course I've descended there. The sky is the limit when you're drawing boundaries. Now, how do we reconcile, how do we reconcile our institutional ability with the need to have some policing here? And how do we reconcile what we say in this case with what we've held in the drawing area? Okay. Now those, those are two questions in the back of my mind and I'd like to have your answer. Can I answer the second question first? You're on 50 words or less. It seems to be like it would be, it would be not, not defensible to adopt a rule that says partisanship in creating minor population deviations is actionable, absent some effect in terms of biasing the map. Whereas in the, in the line drawing area, the beef situation, you have always insisted that there not only be a bias effect, but it'd be very large. I didn't ask you what we shouldn't say. I asked you what we should say. What you should say is, what you should apply is the rule that has been applied in all of these cases about minor population deviations. Is there a rational and legitimate policy that the state can articulate, which is the reason why they arrived at this difference? And here we have the Voting Rights Act, is the rational and legitimate state policy? Let's talk about that for a second. If action in redistricting or overpopulation would constitute illegitimate racial discrimination, can the answer that we're doing that to comply to get pre-clearance from the Justice Department legitimize that? Yes, your honor. This Court has said a number of times that complying with the Voting Rights Act is a compelling state interest. It assumed that just last year. My question is, if the action that is taken would otherwise constitute illegitimate racial discrimination? I'm trying to find out if the Justice Department's procedures can trump the requirements of the Constitution. In other words, it's an issue of, you know, we said in Reachee versus De Stefano that it's not an excuse, not a complete excuse, for intentional discrimination, that you're trying to avoid liability under Title VII for discrimination on the basis of effects. And I'm wondering if it's somehow different. If the Justice Department is insisting on conduct that would constitute a violation, if they're insisting on more than they should be, is that a defense for the redistricting? Well, your honor. The one thing that is clear, Mr. Chief Justice, is that the Voting Rights Act does require people drawing lines to consider race. Section 5 required it to avoid record wet progression. Section 2 requires it right now. I understand that. So it doesn't say that all bets are off. No, your honor, that what the line this Court has drawn is between maps which go too far and maps which don't. Maps in which the racial considerations predominate and subordinate all other traditional, disdricting principles here. And what you have in this case is the quintessential map where that's not true. Well, you know, it seems to me you're avoiding my question. What if the requirements that the Justice Department asks for for pre-clearance go too far? Well, I think if the Justice Department reads the Voting Rights Act in a manner that requires them to do something that would go too far in the predominant sense, there might be a constitutional problem. There's no indication here that that's what happens. So whether or not pre-clearance as a defense depends upon whether the Justice Department is insisting on too much. It could be, your honor. But there's no indication of anything like that here. This is a case where they simply said no wet regression. This is not like the 90s where they were saying you have to create new districts no matter how ugly to comply with. Look at the finding to support what the Chief Justice is lying there. While partisanship played a role in the increased population deviation associated with changing district eight, so too did the pre-clearance goal play a role in motivating the change. It's the first half of the sentence, which is raising the issue that I think people are trying to get you to say how we write that. You see, because it says it played a role. And so we're going to be asked here by the other side to expand on what that means play a role. And we have to write an opinion. And if you win this case, they'll have to be words that support you. And so how do we take this thing? What would you say about the word play a role? I would say two things, Your Honor. First of all, it's a tiny role in this case. But second of all, even if it were the only reason why you had a population deviation is under 10%. I think it would be not defensible for this Court to say that by itself is unconstitutional. There's so de minimis effect on any interest in terms of representation from this difference of population absent some bias in the way that the district's elect candidates. That is simply not a constitutional problem that you ought to recognize, where even if the pure motive was partisanship, it's simply not something that ought to be taken seriously as a constitutional problem. But here, where the predominant motive is to try to make sure these districts will pass pre-clearance. And less than 50% of the commissioners may have had for one district where they increase the deviation slightly, like 0.2%, may have had some partisanship as well as the voting rights act in mind for district 8. Not one of the 10 that were offered to the Justice Department is the ability to elect districts

. And what you have in this case is the quintessential map where that's not true. Well, you know, it seems to me you're avoiding my question. What if the requirements that the Justice Department asks for for pre-clearance go too far? Well, I think if the Justice Department reads the Voting Rights Act in a manner that requires them to do something that would go too far in the predominant sense, there might be a constitutional problem. There's no indication here that that's what happens. So whether or not pre-clearance as a defense depends upon whether the Justice Department is insisting on too much. It could be, your honor. But there's no indication of anything like that here. This is a case where they simply said no wet regression. This is not like the 90s where they were saying you have to create new districts no matter how ugly to comply with. Look at the finding to support what the Chief Justice is lying there. While partisanship played a role in the increased population deviation associated with changing district eight, so too did the pre-clearance goal play a role in motivating the change. It's the first half of the sentence, which is raising the issue that I think people are trying to get you to say how we write that. You see, because it says it played a role. And so we're going to be asked here by the other side to expand on what that means play a role. And we have to write an opinion. And if you win this case, they'll have to be words that support you. And so how do we take this thing? What would you say about the word play a role? I would say two things, Your Honor. First of all, it's a tiny role in this case. But second of all, even if it were the only reason why you had a population deviation is under 10%. I think it would be not defensible for this Court to say that by itself is unconstitutional. There's so de minimis effect on any interest in terms of representation from this difference of population absent some bias in the way that the district's elect candidates. That is simply not a constitutional problem that you ought to recognize, where even if the pure motive was partisanship, it's simply not something that ought to be taken seriously as a constitutional problem. But here, where the predominant motive is to try to make sure these districts will pass pre-clearance. And less than 50% of the commissioners may have had for one district where they increase the deviation slightly, like 0.2%, may have had some partisanship as well as the voting rights act in mind for district 8. Not one of the 10 that were offered to the Justice Department is the ability to elect districts. That's a tiny, tiny, tiny sliver of partisanship for less than the full commission. There were a case where the commission or whoever was responsible for producing the plan produced chose between two plans. Plan A has a deviation of 0.1%, Plan B has a deviation of 9.9%. And they write a report and they say, well, it came down to these two plans. And we chose B because we want to maximize the representation in the legislature of Republicans or Democrats. And you would say that that would be constitutional. I think if that's the only thing that was problematic about the map, you might well say that's constitutional. But that's not this case, obviously. No, it's not. And you've gone as far as Lerios. You said a map that's an egregious jerrymander, massive disparate pairing of incumbents, plus the not the intentional abuse of the 10% rule at 9.98%. All of that together used to merely affirm the finding of unconstitutionality. But by itself, I don't know that I would even say that- That's because there's no constitutional criterion for where you draw the district lines. There is a constitutional criterion for how you weigh voters district by district. There is. One person won vote. There's no such criterion for where the location of a district line has to be. But this Court has said over and over again we want to give States leeway in this area because representation is often better if you give them some chance to make districts within the 10% band. And if you allow them to do what's being suggested here, to accuse, to bring partisanship in, and they can get the federal court, and they can get to trial just by that, then exactly what you said is going to happen in your dissent in Lerios. Everybody with a political motivation to try to do something to undercut a map is going to come in. It's easy enough to elect to a ledge partisanship. Here, the only evidence they have of partisanship leading inside the little story of district 8 is simply the pattern that the Hispanic districts they underpopulated and the Native American district happened to vote democratic. So you have this pattern, the chart on the 8

. That's a tiny, tiny, tiny sliver of partisanship for less than the full commission. There were a case where the commission or whoever was responsible for producing the plan produced chose between two plans. Plan A has a deviation of 0.1%, Plan B has a deviation of 9.9%. And they write a report and they say, well, it came down to these two plans. And we chose B because we want to maximize the representation in the legislature of Republicans or Democrats. And you would say that that would be constitutional. I think if that's the only thing that was problematic about the map, you might well say that's constitutional. But that's not this case, obviously. No, it's not. And you've gone as far as Lerios. You said a map that's an egregious jerrymander, massive disparate pairing of incumbents, plus the not the intentional abuse of the 10% rule at 9.98%. All of that together used to merely affirm the finding of unconstitutionality. But by itself, I don't know that I would even say that- That's because there's no constitutional criterion for where you draw the district lines. There is a constitutional criterion for how you weigh voters district by district. There is. One person won vote. There's no such criterion for where the location of a district line has to be. But this Court has said over and over again we want to give States leeway in this area because representation is often better if you give them some chance to make districts within the 10% band. And if you allow them to do what's being suggested here, to accuse, to bring partisanship in, and they can get the federal court, and they can get to trial just by that, then exactly what you said is going to happen in your dissent in Lerios. Everybody with a political motivation to try to do something to undercut a map is going to come in. It's easy enough to elect to a ledge partisanship. Here, the only evidence they have of partisanship leading inside the little story of district 8 is simply the pattern that the Hispanic districts they underpopulated and the Native American district happened to vote democratic. So you have this pattern, the chart on the 8.2 on 112A, but that's not evidence. It's equally consistent with what the court found happened, which is they wanted to make these districts more persuasive as ability to elect districts so they could get preclearance. And voila, they got preclearance. This is a case where you wonder, where is the beef? What exactly are we here for? There's no problem with this map. It's not a partisan gerrymander. It's not a racial gerrymander. It's within the 10% boundary. They did everything in open. Everything that's being complained about here, all of this underpopulation of these districts that was done at the, was done unanimously by all five commissioners who adopted the goal of getting preclearance, who adopted the, the idea that they had to get 10 districts, not eight districts, that every single change to those 10 districts that had increased their underpopulation was unanimously voted by all five commissioners. This is a case where there is simply nothing seriously being argued here that could possibly amount to a constitutional violation. And it seems to me that we can talk about whether a pure partisan case ought to by itself, if the only problem is deviation, be unconstitutional. I would recommend that you not do that for the reasons that you said in your dissent and hilarious, but it's, boy, this case is so far from that. I mean, there, the Republican commission, the appointed commissioners are voting for everything that they're complaining about because they too want to get preclearance. The state of Arizona wants very much to have its map go into effect for the first time since the 1960s when it became covered by the Voting Rights Act, rather than having a federal court have to put the map into effect because preclearance was denied. And they hire lawyers who work in the Justice Department, told them how many districts they needed, told them that if necessary and re-reguring these lines, they could go down to up to the 10% limit. They then tried very hard to minimize that. And one of the things that's important to recognize here is you could have probably equalized the population here and still gotten districts to the same level of Hispanic population. But you would have had to draw tentacles of the kind that the court has many times criticized. There's lots and lots of other Hispanic people in the state of Arizona who are not in these districts, but that's because they're spread out all over the place. So if you're going to draw compact districts, if you're going to draw districts that respect county boundaries, if you're going to send some tracks and communities of interest, something has to give. And what gave here was this modest, tiny small amount of population variation that seems to me just not a serious cannerny for any kind of constitutional invalidation on the fact of this case, which aren't even challenged here as clearly erroneous. The court has no further questions. Thank you. Thank you, Council. Is shearington? Thank you, Mr. Chief Justice, and may it please the court

.2 on 112A, but that's not evidence. It's equally consistent with what the court found happened, which is they wanted to make these districts more persuasive as ability to elect districts so they could get preclearance. And voila, they got preclearance. This is a case where you wonder, where is the beef? What exactly are we here for? There's no problem with this map. It's not a partisan gerrymander. It's not a racial gerrymander. It's within the 10% boundary. They did everything in open. Everything that's being complained about here, all of this underpopulation of these districts that was done at the, was done unanimously by all five commissioners who adopted the goal of getting preclearance, who adopted the, the idea that they had to get 10 districts, not eight districts, that every single change to those 10 districts that had increased their underpopulation was unanimously voted by all five commissioners. This is a case where there is simply nothing seriously being argued here that could possibly amount to a constitutional violation. And it seems to me that we can talk about whether a pure partisan case ought to by itself, if the only problem is deviation, be unconstitutional. I would recommend that you not do that for the reasons that you said in your dissent and hilarious, but it's, boy, this case is so far from that. I mean, there, the Republican commission, the appointed commissioners are voting for everything that they're complaining about because they too want to get preclearance. The state of Arizona wants very much to have its map go into effect for the first time since the 1960s when it became covered by the Voting Rights Act, rather than having a federal court have to put the map into effect because preclearance was denied. And they hire lawyers who work in the Justice Department, told them how many districts they needed, told them that if necessary and re-reguring these lines, they could go down to up to the 10% limit. They then tried very hard to minimize that. And one of the things that's important to recognize here is you could have probably equalized the population here and still gotten districts to the same level of Hispanic population. But you would have had to draw tentacles of the kind that the court has many times criticized. There's lots and lots of other Hispanic people in the state of Arizona who are not in these districts, but that's because they're spread out all over the place. So if you're going to draw compact districts, if you're going to draw districts that respect county boundaries, if you're going to send some tracks and communities of interest, something has to give. And what gave here was this modest, tiny small amount of population variation that seems to me just not a serious cannerny for any kind of constitutional invalidation on the fact of this case, which aren't even challenged here as clearly erroneous. The court has no further questions. Thank you. Thank you, Council. Is shearington? Thank you, Mr. Chief Justice, and may it please the court. The question in this case is not whether Section 5 can compel deviations from a perfect population standard. The question is whether it's the minimum, the minimum deviations are permitted by the Constitution. This court has made very clear that when state-districting plans are within a 10% deviation, total deviation from a perfect population equality standard, those plans are presumed to be constitutional. Now, that presumption is a substantive rule that serves three important principles. Just if I can briefly take them off. The first is that such diminished deviations do not by themselves violate equal protection. The second is that giving states a 10% leeway actually enhances citizens fair and equal representation by allowing states to pursue other important districting principles. And the third is that limiting federal court intervention in diminished deviation cases protects states sovereign right to draw districts for their own legislative. Is 10% really a minimum? I mean, I think you can say it's minor, but a minimum is, strikes me as misleading when you're talking about 10%. Well, I certainly don't mean to be misleading, but that's the term that this court has used. I know it has, yes. So I would never accuse the Court of being misleading. I mean, I think the point that the Court has made is that these sort of, you know, 10% deviations from perfect population equality don't have enough of a dilutive effect to really affect any citizens right to fair and equal. Does anybody contest that? I don't think that's contested here. I think the other side is willing to concede that it's presumptively okay, which means they have to come forward to show that there were invalid reasons why there is this discrepancy. That's true. And our view, Justice Scalia, is that the case should begin and end at the prima fascia case requirement. Our view is that the plaintiffs did not make a prima fascia case of invidious discrimination in this case. And so they just records factual findings about the commission's actual motives actually are relevant at this point. I don't understand that. I thought a primafasia case means you can use it. If you haven't made a primafasia case, it means you have to bring in other evidence. It doesn't mean you're out of court. Well, if you haven't made a prima fascia case, it means that the State doesn't have to justify its reasons for the deviations. And so in this context, in order to make it, in, in really any context, to make a prima fascia case what you have to do is put in enough evidence from which an inference of invidious discrimination can be made. What that generally requires is that the challenger has to put in enough evidence to rebut the presumed reasons for the challenged action

. The question in this case is not whether Section 5 can compel deviations from a perfect population standard. The question is whether it's the minimum, the minimum deviations are permitted by the Constitution. This court has made very clear that when state-districting plans are within a 10% deviation, total deviation from a perfect population equality standard, those plans are presumed to be constitutional. Now, that presumption is a substantive rule that serves three important principles. Just if I can briefly take them off. The first is that such diminished deviations do not by themselves violate equal protection. The second is that giving states a 10% leeway actually enhances citizens fair and equal representation by allowing states to pursue other important districting principles. And the third is that limiting federal court intervention in diminished deviation cases protects states sovereign right to draw districts for their own legislative. Is 10% really a minimum? I mean, I think you can say it's minor, but a minimum is, strikes me as misleading when you're talking about 10%. Well, I certainly don't mean to be misleading, but that's the term that this court has used. I know it has, yes. So I would never accuse the Court of being misleading. I mean, I think the point that the Court has made is that these sort of, you know, 10% deviations from perfect population equality don't have enough of a dilutive effect to really affect any citizens right to fair and equal. Does anybody contest that? I don't think that's contested here. I think the other side is willing to concede that it's presumptively okay, which means they have to come forward to show that there were invalid reasons why there is this discrepancy. That's true. And our view, Justice Scalia, is that the case should begin and end at the prima fascia case requirement. Our view is that the plaintiffs did not make a prima fascia case of invidious discrimination in this case. And so they just records factual findings about the commission's actual motives actually are relevant at this point. I don't understand that. I thought a primafasia case means you can use it. If you haven't made a primafasia case, it means you have to bring in other evidence. It doesn't mean you're out of court. Well, if you haven't made a prima fascia case, it means that the State doesn't have to justify its reasons for the deviations. And so in this context, in order to make it, in, in really any context, to make a prima fascia case what you have to do is put in enough evidence from which an inference of invidious discrimination can be made. What that generally requires is that the challenger has to put in enough evidence to rebut the presumed reasons for the challenged action. In this case, the Arizona Constitution sets forth the redistricting criteria that the commission is to use in drawing district lines. And so at a minimum, the plaintiffs should have come in and demonstrated that the deviations that they observed were not explainable as in service of those. Well, let's assume that the opinion of the district court found that partisanship was a consideration. So are you saying that that finding can't be sustained because it wasn't based on sufficient evidence brought forward by the plaintiffs? Well, so the first discipline of clarification, the part of the opinion that you read was just talking about district 8. And so it wasn't a finding that partisanship played any role with respect to the rest of the map. And if you read on in the paragraph from which he recorded, the district court said that the amount of deviation that was attributable to the attempt to make the district more competitive was less than 1 percent. I think it was 0.7 percent. And so it's really a small, very small, intermediate. Well, was it a factor or not? Was partisanship just irrelevant? It played no role. Everything would have come out the same way. Without partisanship. According to the district court's findings. The district court found that with respect to one district, two of the five commissioners were motivated by partisanship motives. But again, our first position is that this court doesn't need to get to what the actual findings were as to the motive because what the plaintiffs needed to do was come in and demonstrate at the front end that the lines in the map couldn't be explained as an effort to comply with legitimate district and criteria. And the disposition of, is that what is the position of the United States on the question of whether it's permissible to intentionally take partisanship? Do you use partisanship as a guiding principle in redistricting? Is that permissible or not? We haven't taken a position on that. I know you have. And it seems very unfortunate. It's a little difficult for us to address it since that's one of the main questions in the case. Well, the United States has never participated in the political jerrymandering cases. It's certainly, you know, there are lessons that can be drawn from this court's cases in Gaffney, the court indicated that certainly the consideration of politics and partisanship does not necessarily make a plan unconstitutional. But again, in this case, I think, in order before you even get to the question of what the state's actual motives were, there has to be some demonstration that the motives were not the announced motives that are in the Arizona Constitution. So you're unwilling to tell me whether intentional use of partisanship in redistricting is acceptable or not? Well, I think this court's decision in Gaffney indicates that it can be permissible. The Districting Body in Gaffney was driven by a desire to equalize partisanship. I took it at the position of the United States, is at least since many commissions are nonpartisan because they have two people who are more partisan on one side, two people on the other side, and one neutral. So at the least where the commissioners don't account for a majority, the partisan motive is not held by a majority of the commission, then it is constitutional or some members of the commission to take partisan considerations into account where they're not a majority and where the result is under 10%

. In this case, the Arizona Constitution sets forth the redistricting criteria that the commission is to use in drawing district lines. And so at a minimum, the plaintiffs should have come in and demonstrated that the deviations that they observed were not explainable as in service of those. Well, let's assume that the opinion of the district court found that partisanship was a consideration. So are you saying that that finding can't be sustained because it wasn't based on sufficient evidence brought forward by the plaintiffs? Well, so the first discipline of clarification, the part of the opinion that you read was just talking about district 8. And so it wasn't a finding that partisanship played any role with respect to the rest of the map. And if you read on in the paragraph from which he recorded, the district court said that the amount of deviation that was attributable to the attempt to make the district more competitive was less than 1 percent. I think it was 0.7 percent. And so it's really a small, very small, intermediate. Well, was it a factor or not? Was partisanship just irrelevant? It played no role. Everything would have come out the same way. Without partisanship. According to the district court's findings. The district court found that with respect to one district, two of the five commissioners were motivated by partisanship motives. But again, our first position is that this court doesn't need to get to what the actual findings were as to the motive because what the plaintiffs needed to do was come in and demonstrate at the front end that the lines in the map couldn't be explained as an effort to comply with legitimate district and criteria. And the disposition of, is that what is the position of the United States on the question of whether it's permissible to intentionally take partisanship? Do you use partisanship as a guiding principle in redistricting? Is that permissible or not? We haven't taken a position on that. I know you have. And it seems very unfortunate. It's a little difficult for us to address it since that's one of the main questions in the case. Well, the United States has never participated in the political jerrymandering cases. It's certainly, you know, there are lessons that can be drawn from this court's cases in Gaffney, the court indicated that certainly the consideration of politics and partisanship does not necessarily make a plan unconstitutional. But again, in this case, I think, in order before you even get to the question of what the state's actual motives were, there has to be some demonstration that the motives were not the announced motives that are in the Arizona Constitution. So you're unwilling to tell me whether intentional use of partisanship in redistricting is acceptable or not? Well, I think this court's decision in Gaffney indicates that it can be permissible. The Districting Body in Gaffney was driven by a desire to equalize partisanship. I took it at the position of the United States, is at least since many commissions are nonpartisan because they have two people who are more partisan on one side, two people on the other side, and one neutral. So at the least where the commissioners don't account for a majority, the partisan motive is not held by a majority of the commission, then it is constitutional or some members of the commission to take partisan considerations into account where they're not a majority and where the result is under 10%. I think that was the district court's conclusion. Are you sure your conclusion is representing the United States? Well, again, we haven't taken a position on how one would analyze a partisanship if there was a finding that you get there about a partisan. Partisan? I read the finding is saying, well, two members of the commission out of five did have a partisan motive in part. Yes. So I have to, you have to, I think have to say whether you think that is, that situation is constitutional or not? Well, let me make a pitch one more time for this, for having a robust prima fascia case. So what the plan of thing to do is come into this, come into court and say, here's a map. It can't be explained by the criteria that are identified in the Constitution that the commission is supposed to go by. The very first criteria listed in the Constitution is compliance with the Voting Rights Act. If you look at the map and you look at which districts are underpopulated and which are the ability to elect districts, there's almost a perfect correlation. I think that was a perfectly legitimate explanation for why there are deviations in the case. I understand this two out of five. Do you think if four of the justices of this court voted a certain way in a case because they were racists, the opinion would still be valid because after all five of us weren't, would you even consider that? And why is it any different for a commission like this? The mere fact that two of them are, if partisanship is indeed bad. Well, again, I think, you know, we don't have a position on how one would analyze that question. Well, on that one, I think this isn't racist. Number two, it's not this court. Number three, I don't know any court like that. And number four, if you're going to say, if you're going to say, if you're going to say that no members of a redistricting commission can ever have bipartisan views, I don't know where you're going to get your membership from. I mean, that is that many of these commissions, I would think, would balance people who know about districting and who are also Republicans, with people who know about it and are also Democrats. And then you have someone of undoubted neutral. Which is not the case here. That places a lot of weight on selecting the fifth person who is lily, lily white pure, right? And if that person deep down his partisanship one side or the other, the whole thing goes. And that is the allegation here, by the way. I'm sorry to interrupt. This Court has repeatedly said that politics is always going to be part of redistricting. And so I think it's, you can't, you can't do that. I agree with that

. I think that was the district court's conclusion. Are you sure your conclusion is representing the United States? Well, again, we haven't taken a position on how one would analyze a partisanship if there was a finding that you get there about a partisan. Partisan? I read the finding is saying, well, two members of the commission out of five did have a partisan motive in part. Yes. So I have to, you have to, I think have to say whether you think that is, that situation is constitutional or not? Well, let me make a pitch one more time for this, for having a robust prima fascia case. So what the plan of thing to do is come into this, come into court and say, here's a map. It can't be explained by the criteria that are identified in the Constitution that the commission is supposed to go by. The very first criteria listed in the Constitution is compliance with the Voting Rights Act. If you look at the map and you look at which districts are underpopulated and which are the ability to elect districts, there's almost a perfect correlation. I think that was a perfectly legitimate explanation for why there are deviations in the case. I understand this two out of five. Do you think if four of the justices of this court voted a certain way in a case because they were racists, the opinion would still be valid because after all five of us weren't, would you even consider that? And why is it any different for a commission like this? The mere fact that two of them are, if partisanship is indeed bad. Well, again, I think, you know, we don't have a position on how one would analyze that question. Well, on that one, I think this isn't racist. Number two, it's not this court. Number three, I don't know any court like that. And number four, if you're going to say, if you're going to say, if you're going to say that no members of a redistricting commission can ever have bipartisan views, I don't know where you're going to get your membership from. I mean, that is that many of these commissions, I would think, would balance people who know about districting and who are also Republicans, with people who know about it and are also Democrats. And then you have someone of undoubted neutral. Which is not the case here. That places a lot of weight on selecting the fifth person who is lily, lily white pure, right? And if that person deep down his partisanship one side or the other, the whole thing goes. And that is the allegation here, by the way. I'm sorry to interrupt. This Court has repeatedly said that politics is always going to be part of redistricting. And so I think it's, you can't, you can't do that. I agree with that. And that's a different point. I mean, you don't have a position on whether that's acceptable or not. It's a difference between saying something's a necessary evil and saying it's evil. Well, I think this Court's decisions have told us that it's, that it's fine to have partisanship play some role in redistricting. That's, but that's the lesson of Gaffee. Well, I'm really surprised the way you, the way you read the district Court's opinion. In footnote, ten of the district Court's opinion, they set out the standard that they apply. Can you give me the page, please? It's on 62, I'm sorry, 63a, running over into 64a. And in the, the final paragraph that begins at the bottom of the page, for decision purposes, a majority of the panel made up of Judge Cliffson and Judge Silver have concluded that plaintiffs have not demonstrated that partisanship predominated over legitimate redistricting considerations. Doesn't that mean that they found that there were some illegitimate considerations? Or at least they, and they assumed that partisanship wasn't illegitimate consideration. The extreme, the non-page 79a, which is where you were reading from earlier, I think it's clear that what they're talking about, that partisanship played a role only with respect to district eight. But let me just say, if this Court allows a plaintiff to come in and just point to, to deviations, to debate. I'm sorry, just to clarify your answer. So you think that what, what they said in footnote 10 only applies to one district? Yes, that's my reading of the opinion, I think. I haven't heard the other side disagree with that, but you can ask them. You know, if this Court makes it too easy for plaintiffs to come in and point to deviations and partisan correlation, then it's going to totally wipe away the 10% leeway, which itself serves important districting principles. Thank you, Ms. Harrington. General Hurne, you have four minutes remaining. Thank you, Mr. Chief Justice. What about footnote 10? You agree with the characterization that the other side is made? Well, footnote 10, no, I do not. And the portion I would quote was not limited just to district eight. Partition ship was rank in this redistricting process, and it's demonstrated objectively, not just with Judge Wake's chart, but it's also demonstrated by the fact of district eight, which was not submitted for preclarations. I don't want to find it. I don't want to look at it chart

. And that's a different point. I mean, you don't have a position on whether that's acceptable or not. It's a difference between saying something's a necessary evil and saying it's evil. Well, I think this Court's decisions have told us that it's, that it's fine to have partisanship play some role in redistricting. That's, but that's the lesson of Gaffee. Well, I'm really surprised the way you, the way you read the district Court's opinion. In footnote, ten of the district Court's opinion, they set out the standard that they apply. Can you give me the page, please? It's on 62, I'm sorry, 63a, running over into 64a. And in the, the final paragraph that begins at the bottom of the page, for decision purposes, a majority of the panel made up of Judge Cliffson and Judge Silver have concluded that plaintiffs have not demonstrated that partisanship predominated over legitimate redistricting considerations. Doesn't that mean that they found that there were some illegitimate considerations? Or at least they, and they assumed that partisanship wasn't illegitimate consideration. The extreme, the non-page 79a, which is where you were reading from earlier, I think it's clear that what they're talking about, that partisanship played a role only with respect to district eight. But let me just say, if this Court allows a plaintiff to come in and just point to, to deviations, to debate. I'm sorry, just to clarify your answer. So you think that what, what they said in footnote 10 only applies to one district? Yes, that's my reading of the opinion, I think. I haven't heard the other side disagree with that, but you can ask them. You know, if this Court makes it too easy for plaintiffs to come in and point to deviations and partisan correlation, then it's going to totally wipe away the 10% leeway, which itself serves important districting principles. Thank you, Ms. Harrington. General Hurne, you have four minutes remaining. Thank you, Mr. Chief Justice. What about footnote 10? You agree with the characterization that the other side is made? Well, footnote 10, no, I do not. And the portion I would quote was not limited just to district eight. Partition ship was rank in this redistricting process, and it's demonstrated objectively, not just with Judge Wake's chart, but it's also demonstrated by the fact of district eight, which was not submitted for preclarations. I don't want to find it. I don't want to look at it chart. Well, to make my own factual determination, what factual finding other than footnote 10 is there? Then I would quote from the appendix at 107a, which is where the statements made judge Clifton correctly finds that the IRC was actually motivated by both partisan advantage and hope for voting rights preclarations, so we have a majority for that finding of fat. So that is two members of the Court specifically found that partisanship was one of the two motives to explain these deviations from one person, one vote. So clearly it was a motive. At that point, as even Judge Silver noted, this is a mixed motive. To what extent? I mean, the other side is going to say, yeah, that's true, but it's only true as to that one district discussed in footnote 10. Well, if that's so, then they would have stopped and adopted the initial map and not continued to deviate from 4 percent to 8 percent for the final map. The initial map, the draft map, was a 4 percent deviation. Dr. King, their own expert, said that this map complied with the Voting Rights Act, and yet they went after that and continued deviating and underpopulating districts to get to the 8.8 percent. That included the machinations with district 8. So if the only legitimate reason was to obtain pre-clarars, then they would have accepted the draft map and it would have been game over. But they didn't. They went ahead and conducted these further deviations. I thought it was because they wanted to make super short that they complied with the Voting Act. I think that that's why they said they kept going. The explanation that was made is that they're, quote, strengthening these districts by continuing to underpopulate districts because their consultant said, oh, that does help us get Voting Rights Act pre-clarars approval. That's what the explanation may. But if their own expert said the original map, the draft map satisfied the Voting Rights Act, and the only reason to additionally depopulate these districts was to achieve a further partisans skew, which Judge Wakeschard demonstrates. Then that shows that partisanship was a very, I understand two of the members said that it was not the primary motive, but it certainly was a pervasive motive in the process by which these districts were drawn. And our position is a very narrow one that we ask the Court to hold. Is that partisanship does not justify deviating from one person, one vote, and that a mistaken belief that pre-clarars was necessary to underpopulate certain districts also does not justify deviating from one person, one vote? Where is the district in which or the state in which partisanship does not play a role in redistricting? Well, we think partisanship is always going to play a role. We would say that there's an outer limit, certainly as Justice Scalia noted, a articulatable justishable standard of one person, one vote. That's a rule that we can cabin the partisanship. You can be partisan, and we don't fault the commission for having partisan interests, Republican members, Democrat members, even if this fifth member ended up being partisan interests for the Democrats. That's fine

. The problem here isn't that they had partisan motives, is that they deviated from the one person, one vote, principle to further those partisan motives. And that's a rule. If I could ask that the question that I'm is having to left with was that I'm sorry. No, please, please. If you're saying that even within the 10 percent, you know, to go from 1 percent to 2 percent, or from 2 percent to 3 percent, and then somebody can come in and say that's partisanship, it means that every single plan will be up for grabs in every single place, doesn't it? I don't think it does, and the answer would be it doesn't, because in this case, there were no other legitimate reasons to explain it. If that is the reason, and the only reason to deviate, only other legitimate reason to deviate from one person, one vote, then it is not a constitutional plan, but that's not present in all the other. Okay, thank you, Council. The case is submitted