tv Harris v. Arizona Oral Argument CSPAN April 20, 2016 11:01pm-12:05am EDT
[cheers and applause] >> the supreme court ruled unanimously on wednesday that arizona's legislative districts, created by an independent commission, are valid and comply with the voting rights act, and the constitution's one person, one vote principle. next, the hour-long december 2015 oral argument in the case. it is an hour.
>> argument first this morning, harris versus the arizona ind independent redistricting commission. mr. hearne: thank you, 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 possible. while deviations are tolerated, they are only minor dooef yaigss of a rational state policy intended not to be discriminatory or arbitrary. here, the arizona redistricting commission mel apportioned state legislature by almost 10% in the district court below found it did so for two reasons. the first was to obtain a partisan advantage. the second reason was a
perceived belief that malapportioned districts were necessary to obtain approval. neither of these reasons justifies a deviation of one person, one vote. justice kennedy: do you want us to overturn the factual finding that that compliance was the real reason? do you want us to overturn that as a factual finding? no i don't, as a factual finding. 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. may i ask yourg: a question? it's odd that you're making this charge that there was an
impermissible effort to increase a democratic authority power in the legislature. but the end result was that the arizona plan gave repugnants -- republicans more than their proportion gnat share of seats in the state legislature. and i think the numbers are, in total, republicans won 56.6% of the state senate seats. and that exceeded the republican party statewide of 54.4%. there was an attempt -- if there was an attempt to stack this in favor of democrats, it certainly failed. mr. hearne: your honor, an incompetent gerrymander is no less a gerrymander that obtained the department objective. i think the objective that we are trying to achieve here is
the one person, one vote stamp. and that's why whatever the ultimate political outcome, i don't think that vindicates the fact that these are unequally proportionate. justice kennedy: it's still not clear to me what you want us to say about the commission's rationale. that it was wrong as a matter of law? if you don't overturn the factual finding that they hd a good faith belief of what they're doing is correct, then you have a problem, it seems to me. or do you have a problem? mr. hearne: i don't believe i do. 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 you need to create these underpopulated districts to obtain preclearance. that is wrong. the voting rights act does not command or require under-populated districts to obtain pre-clearance. the solicitor general has noted that, and the justice department guidelines.
justice kennedy: how confident are you of that? howustice roberts: confident are you of that? usually the states and municipalities have to go through several layers of back and forth, years of proposal. it's sort of a bargaining process. i don't know how confident you can be that it wasn't necessary. mr. hearne: we certainly agree that the preclearance process was very opaque, as you said. no one really knows what you need to do or don't need to do to obtain pre-clearance. just fundamentally, the voting rights act, even prior to shelby county could not compel a redistricting authority to underpopulated districts. so the advice they had been given, you must underpopulated these districts, was flawed as a matter of legal advice. that doesn't justify
malapportionment. so they could achieve, in the first map, they had two maps, a draft map and a final map. the draft map had a 4% roughly deviation. their own experts said, this map satisfies the voting rights act. they depopulated further to get an 8.8% deviation. justice scalia: they were mistaken. you said they could have done it without this apportioning. they thought that was ok. they thought they were doing this in order to comply with the justice department. what is the test? is the test what they intended or is it an objective test? mr. hearne: i think you have to look at both. does the voting rights act require you to depopulate districts? let's assume the
anxious is no. but the people who made this apportionment were mistaken. it may allow and require you to do that. that doesn't show a bad moment, does it? mr. hearne: i don't think this court has ever justify that bad legal advice justifies -- justice kennedy: bad legal advice is different from an impermissible votive. what is the test here? mr. hearne: i would say this case of the district court had all three judges split on what the burden of proof was is a mixed motive case. you have one assumed illegitimate motive, partisan advantage, and another motive which is, it is ok because our advisor said that was necessary for preclearance. then the task falls did -- falls to justify,ssion
oh, this was necessary, in fact, to comply with that. justice ginsburg: it was more than mixed motive. the dominant finding of this was to attempt to meet section five. mr. hearne: two of the judges did find that that was a predominant motive. justice ginsburg: that's a fact finding. if you have a burden, you're seeking to overturn it. mr. hearne: but they also found that there was another illegitimate motive that they assumed. judge silver didn't necessarily agree. she assumed for purposes of decision that this partisan advantage was an illegitimate motive. 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, based on erroneous legal advice. on the basis of that, the court split on what the burden of
proof was. justice kagan: just to pin this down a little bit, mr. hearne. you are not contesting the factual finding that the predominant motive was to comply with the voting rights act, is that right? mr. hearne: we take the factual finds. we don't protest those. but what we do believe is that the court applied the wrong burden shifting standard in their analysis of those facts. when they have a mixed motive, the proper response would be to say ok, you've shown, we've found one illegitimate motive. justice kagan: you keep on saying mixed motive and people come on back to you trying to figure out whether you are in fact or are not in fact, contesting that the predominant motive was the voting rights act. mr. hearne: when we say the voting rights act -- justice kagan: the attempts to comply with the voting rights act. and the court found, and it is a
factual finding, that that's the motive. i don't want to harangue you on this. i just want you to understand what the argument is. mr. hearne: to be very clear, yes, we accept the factual finding that that was what they said was a primary motive. but they erred when they did not shift the burden in a mixed motive case. under arlington heights, i think footnote 21 with a healthy, kind of standard. secondly, they errored when they gave a justification when there -- voting rights can't compel vote dilution. that justification, even in good faith, does not excuse a constitutional violation of one person, one vote. so at minimum, commission explain why they can justify these population deviations. and that is our position, justice kagan.
justice sotomayor: i'm even further confused. i understand that you gave up any racial or political gerimand case. this is just a voter dilution case. mr. hearne: absolutely correct. justice sotomayor: now, i understand there's one case that you are relying on that was summarily affirmed. but is there any case from this court that has ever said that a deviation of this amount is significant? i think we've always called it anything below 9%, correct? mr. hearne: what the court has said, i read the jurisprudence is that a deviation of over 10% is prima facie. if it's a deviation oaf less than 10%, 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 stand aurd to be, out of brown v. thompson. that was a plurality opinion. justice sotomayor: i don't actually understand. i don't know of any case where we've required an explanation under 10%. mr. hearne: i have two responses to that. there was a summary of performance and the concurrent by justice stevenson briar says that there is not this magic bright line. other decisions of this court have always disavowed creating a simple bright line test where deviations from the constitutional standard below that are tolerated. so, for example, that decision said we specifically don't want to set some line because the minute we do that, redistricting authorities will immediately use that as the new standard.
justice sotomayor: well, in fact, they have. fifth pretty much used -- they have pretty much used 10%. mr. hearne: it has appeared in some of the district court decisions that have looked at that. we see that as a burden -- justice breyer: what it says, actually, in brown v. thompson, is that our decisions have established that as a general matter with a maximum population deviation, under 10% falls within this category of minor deviations. what we held previously was that minor deviations, for mathematic equality are insufficient to make out a prima facie case of invidious 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
then you would have to do if it was larger than 10%. now, what do you think you have to do? mr. hearne: i think we have to do what we did. which is to come to the court, to come to a district court, and to present to them evidence that you have a deviation that even though minor, is done for an illegitimate purpose. and there was this pretext of a preclearance issue. that satisfies the burden of requiring judicial scrutiny. we have satisfied that burden. don't youtomayor: think this will lead every single plan to be challenged of voter dilution? no, i think you would still have to have a showing of illegitimate purpose behind the deviation. justice scalia: what kind of
evidence did you present to the district court? mr. hearne: this case is a very unique case. the chart shows statistically that there was systematic partisan malapportionment done for that partisan reason. is that theia: chart at 112-a of the appendix? mr. hearne: yes. i think that it is the chart that is in color. i think we've also provided. yes. it showed that the districts were systematically malapportionment for that purpose. that would be the kind of showing that would be -- i thought, mr. hearne, that you were saying that the thing that you 45d presented had to do with an impermissible motive? and the impermissible motive was
that they didn't have to do all of this for voting rights act compliance. is that right? mr. hearne: the first impermissible motive was partisanship. justice kagan: but that was a subsidiary part of the redistricting. the dominant part was the voting rights compliance. i take it you want to undermine the voting rights compliance rationale. but then i'm stuck on the same question. what evidence did you present that there was impermissible motive with respect to that as opposed to different views as to what the voting rights act compelled. mr. hearne: two quick answers to that, justice kagan. legally, the voting rights act couldn't compel them what they did. so that justification legally is invalid. secondly, the burden with arlington heights, where we've -- an illegitimate
motive, partisanship. and i would reserve the balance of my time. thank you,erts: counsel. mr. brnovich: thank you, mr. chief justice. may it please the court, fortunately or unfortunately in this case, there are many fact that is are not in dispute. addressing justice kennedy's questions, the state does not dispute that the independent redistricting commission did draw equal sides of population. all sides say they were not random or incidental. this pattern to underpopulate minority districts was doeb to help create further eighty to elect districts. and we also know they did it intentionally. so why are they here today? in the background, this court
has always held that equal protection is not a criteria under the factor when it comes to redistricting. but it is essentially the background which all redistricting ledgers take place. the statement of arizona, the secretary, do not dispute the compliance with voting rights act was a legitimate or illegitimate 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 mote ifrs -- those motives don't matter when what you have is an undermining of the principle of one person, one vote. so in this case, what we have is a violation of equal protection cause. by intentionally under populating those minority districts, they violated that principle of one person, one vote. so, essentially, what happened was by overpopulating the other districts, the voters had their votes diluted. and by diluting those votes, it violated the constitution.
it soundsnnedy: fundamental that a statute can't authorize a constitutional violation. so even an attempt to comply with the voting rights act is not sufficient if it violates the equal protection clause. have we ever said that? mr. brnovich: your honor, this court has consistently held that the concept and the principle of one person, one vote, any attempts to undermine that -- justice roberts: -- justice kennedy: so we have said that even minor deviations are not permitted? mr. brnovich: no statute can trump the constitution. the voting rights act, whichever way it's read, can't be read in a way to violate the one person, one vote clause. justice kennedy: and that is what judge wake said in his dissent. mr. brnovich: that is the state's position. we don't dispute or we're not
saying that complying with the voting rights act may be a legitimate state interest. what we're saying is when it's done in a systematic way, where you have consistent minority ability to elect districts, using folks based on racial ethnic classifications and under populating those districts and overpopulating other districts, what you have done is essentially undervalued or violated the one person -- justice alito: would you say it's correct that compliance with the voting rights act, a desire to obtain preclearance is at least like other traditional district violations? would you agree with that? mr. brnovich: yes, justice alito. justice alito: so if that is the case, is that what you're 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. we would have to determine whether that was true or not. or some court would have to determine whether that was true or not. mr. brnovich: in this instance, because of the systematic way the deviations occurred, we have all of that evidence. however, we do believe that the voting rights act is like any other critia. so if you get these population deviations and they're incidental, not intentional, and that is the key, i believe, is when you intentionally under-populate and systematically under-populate these districts. justice alito: what if the only way that a state could obtain preclearance when section five was still in force, would that be permissible?
you might have a situation where the only way in which you could respect municipal lines or county lines was two under populate some districts to some degree. mr. brnovich: the irony is in the draft maps. seven of the 10 minority to elect districts were underpopulated. however, when the independent district commission went from the draft maps to the final maps, there was a one way wrach et. they intentionally and systematically underpopulated those districts. justice kennedy: he's asking you whether or not a deviation is permissible for protecting community interest or municipal lines, whether some slight deviation is permissible. mr. brnovich: yes, justice kennedy. justice kagan: i'm not sure what that means. justice scalia: i had thought --
i thought you were saying that it doesn't matter whether you were doing it to obtain justice department clearance. you cannot do something that is unconstitutional. if 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? mr. brnovich: yes, but i think that it's important to note that we look at this as a qualitative, not a quantitative analysis. there isn't some magical number where this becomes constitutional or it doesn't. the state's position is that compliance with the voting rights act was like protecting communities of interest, geographical boundaries. so, in considering that, you may have incidents where you get some districts above or below the line. the fact that a 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 and overpopulates other districts. justice kagan: i guess i'm just not really sure. let's say that there's a policy that says we want to respect county lines. we know we want to do one person, one vote, but basically, we have some leeway, up to 10%. 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 is impermissible? mr. brnovich: justice kagan -- justice kagan: it's a policy. it's an intentional policy. mr. brnovich: i guess the road to hell is paved with good intentions. our position is regardless of their intention, if they are doing it in a systematic way, intending to overpopulate certain districts, that is
unconstitutional. the voting rights act then -- justice kagan: everyone though it takes you from 4% to 5% or 7% to 8%. you're not crossing the 10% threshold. but as long as you're going up and you're doing it it purposefully in the sense of we have a policy to maintain county lines, that's impermissible. mr. brnovich: yes, justice kagan. when you create essentially ba rrios of certain folks and overpopulate other districts, that violates the one person, one vote principle. as a matter of curiosity, how do you end up being on this side of the case? you were a defendant in the district court, weren't you? mr. brnovich: the secretary in the state thought the principal of one person and one vote upholding that principal was very, very important. that's why we felt compelled to be involved in this case. justice scalia: but only on
appeal. you didn't argue this side in the district court, did you? mr. brnovich: that is correct, justice scalia. justice scalia: what happened? was there an election in between or something? [laughter] yes, and i won overwhelmingly. justice scalia: i knew it! [laughter] thanks, thank you very much. i will be up for reelection in three more years so the -- anyway -- justice ginsburg: do you agree with your colleague that it doesn't make any difference that in the end result the legislature, the republicans were disproportionately advantaged to -- had a disproportionate share of the seats? mr. brnovich: yes, justice. our position is that that really is irrelevant as far as the numbers ultimately, whether the percentage -- justice ginsburg: they would have ended up, if you're right, an even greater disproportion of republican representatives. mr. brnovich: ultimately, the
number -- this is not a line-drawing case, this is an overpopulation overpopulation/underpopulation case. so how the lines are drawn and what the representation is in the statehouse or the state senate is not important, not key to the argument. the key to the state's argument is that this intentional and systematic one-way ratcheting of underpopulating minority to elect districts is one what undermines the one person one vote principal and what makes the action of the irc unconstitutional. justice roberts: thank you, counsel. mr. smith? mr. smith: mr. chief justice and may it please the court, there's no conclusion that the population districts in the arizona map violate the equal protection clause. justice scalia: do you accept
the fact -- speaking of accepting fact findings, do you accept the fact finding that at least part of the motive was partisan? mr. smith: i don't think that's a a fair characterization of what the district court found, your honor. the district court found the predominant motive -- is said there may have been two of the five commissioners who as to one district, district eight, had some mixed motives in urging that district be made more competitive but did not find 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 talking about here, which is the 8.8% deviation. justice scalia: well, i would be very upset if there was any motivation of partisanship. 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 supposedly divine commission. mr. smith: with respect, sir, not a fair characterization of what is found after giving them a full opportunity to prove their claim is 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 was pass preclearance on the first try, something the state of arizona failed to achieve in each of the three previous decades. justice alito: well, the district court found -- and this is on 79a 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? had no effect whatsoever on the districting? mr. smith: what the court said was with respect to the changes to district eight which, by the way, remained a largely republican-leading competitive district, that two of the commissioners may have had mixed motives, both thinking about aiding the pre-clearance arguments and also thinking about bringing the democratic party up closer to parity. still didn't get to parity. and i think that to say -- justice alito: well, that's a red herring. 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 districting plan will never produce exactly the same breakdown of legislators as the breakdown of the votes in the selection.
but that's a side issue. what do we do with this statement "partisanship played some role"? mr. smith: your honor. partisanship by itself cannot violate the constitution. you have a -- even if -- even if you inflate that far beyond what was intended by the judges who wrote that opinion, the case of "gaffney v. cummings" was a case where you had partisanship being the dominant controlling factor in every single -- justice alito: i think 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 mount healthy test which, in my understanding, is
what we normally apply to 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 v. 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. and that's -- it seems to me it turns on the choice between the two. is that wrong? mr. smith: accepting a lot of the premises of the question which i think 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 redistricting which seems like a fool'ser rand, frankly, it ought to at least have to be predominant. you wouldn't want to say the line drawers have to act
complete purity of heart -- >> well, are you saying it's permissible to use as one factor an illegal standard if there are some other factors that are also in play? that it is permissible to use an illegal standard in part? is that what you want us to write in this opinion? mr. smith: no, your honor, nobody thinks it's illegal -- justice kennedy: well, that's one of the issues in the case. we'll talk about that later, about partisanship. if you want to say it doesn't make any difference because partisanship is a valid consideration, fine, that's your point. but any question is, it sounds 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 representation. mr. smith: 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 would want to follow the same approach, even if you were going to adopt the parity between racial considerations and partisan considerations which makes no sense. your entire line of cases is trying to decide whether it's race or party and when you come to the conclusion that it's party than it's ok. justice kennedy: can i put in my notes that you're arguing that partisanship is a valid consideration in redistricting? is that what you want me to say? >> you 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 can consider. justice breyer: i'm suddenly waking up here. [ laughter ] mr. smith: i mentioned your opinion, your honor. justice breyer: 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 record 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 when, in fact -- of course, i dissented there, but the sky is the limit there when you're drawing boundaries. now, 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 line-drawing area? those are two questions in the back of my mind and i'd like to have -- mr. smith: can i answer the second question first, your honor. justice breyer: 50 words or
less. mr. smith: it seems to me like it would be not defensible to adopt a rule that says partisanship in creating minor population deviations is actionable in terms of biassing in map whereas in the line-drawing area, the v situation, you have always insisted there not only be a bias effect but it be very large. justice breyer: i didn't ask you what we shouldn't say. i asked you what we should say. >> 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 as the rational and legitimate state policy. chief justice roberts: let's talk about that for a second. if action in redistricting 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? mr. smith: this court has said a number of times that complying with the voting rights act is a compelling state interest. chief justice roberts: my question is if the action would otherwise constitute illegitimate racial
discrimination. i'm trying to find out if the justice department's procedures can trump the requirement of the constitution. in other words, it's an issue of we said in "ricci v. destefano" that it's not an excuse for intentional discrimination that you're trying to avoid liability under title vii and i'm wondering if it's somehow different. in if the justice department is insisting on more than they should be is that a defense for the redistricting? mr. smith: 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 v required it to avoid retrogression, second ii requires it right now. mr. smith: no, your honor.
the line this court has drawn is between map which is go too far and map which is don't. maps in which the racial considerations predominate and subordinate all other traditional districting principles here. and what enough this case is the quintessential map where that's not true -- chief justice roberts: it seems if you're avoiding my question. what are the requirements that the justice department asks for for preclearance go to too far? mr. smith: i think if the justice department reads the voting rights fact a manner that requires them to do something that would go to far the predominant sense there might be a constitutional problem. there's no indication here that that's what happens. chief justice roberts: so whether or not preclearance is a defense depends upon whether the justice department is insisting on too much? mr. smith: it could be, your honor, but there's no indication of anything like that here. this is a case where they simply said no retrogression. this is not like the '90s where they're saying you have to create new districts no matter how ugly to comply with -- justice breyer: look at the finding to support what the chief justice is talking about. while partisanship played a role in the increase 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 do write an opinion and if you written 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"? mr. smith: i would say two thing, 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 under 10% i think it would be not defensible for this court to say that by itself is unconstitutional. there is such a diminished effect absence bias in the way the districts elect candidates
that it's not a constitutional problem that you ought to recognize where even if the pure motive was partisanship it's not something that ought to be taken seriously as a constitutional problem. but here where the predominant motive is to make sure these districts will pass pre-clearance and less than 50% of the commissioners may have had for one district where they increased the deviation slightly, like.2% may have had some partisanship as well as the voting rights act in mind for district 8. not one of the ten offered to the justice department as the ability to elect districts, that's a tiny, tiny, tiny sliver of partisanship for less than the full commission. justice alito: what about the case where the commission or whoever was responsible for producing the plan produced -- chose between two plans. plan "a" has a deviation of point 1%, plan "b" has a deviation of 9.9% and they write a report and 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 of democrats." and you would say that would be constitutional? mr. smith: 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. you've gone as far as "larios." you said a map that's got egregious gerrymandering, disparate pairing of incumbents, the rule at 9.98% all of that together you affirm unconstitutionality but by itself i don't know that i would say -- justice scalia: but that's because there's not constitutional criterion where where you draw the district lines. there is a constitutional criterion for how you -- you how
weigh voters district by district. there is. one person, one vote. there's no such criterion for where the location of a district line has to be. mr. smith: but this court said over and over again we want to give states leeway in this area because representation is 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 bring partisanship in and they can get the federal court and get to trial just by that, exactly what you said is going to happen in your dissent in "larios." everyone with political motivation to undercut a map will come in, it's easy enough to allege partisanship. the only evidence they have a partisanship leaving aside the little story of district 8 is simply the pattern. the hispanic districts they underpopulated. 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 toll elect districts so they could get pre-clearance
and voila, they got preclearance. it's within the 10% boundary. they did everything that it's being complained about here, all this underpopulation of districts was done unanimously by all five commissioners who adopted the goal of getting pre-clearance, who adopted the idea that they had to get ten districts not eight districts, that every single change to those ten districts that 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. it seems to me we can talk about where whether a pure partisan case ought to by itself -- if the only problem is deahviation to be unconstitutional. i would recommend you not do that because of your dissent in
"larios" but this case is so far from that. the republican commissioners are voting for everything they're complaining about because they, too, want to get free clearance. 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 pre-clearance was denied and they hire lawyers who work in the justice department, told them how many districts they needed, told them if necessary in rejiggering these lines they could go up to the 10% limit. they've tried 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 the court has many times criticized. there's lots and lots of other hispanic people in the state of arizona not in these district bus that's because they're
spread out all over the place. so if you're going draw compact districts, if you're going to draw districts that respect county boundaries and census 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 candidate for any kind of constitutional invalidation on the facts of this case which aren't even challenged here as clearly erroneous. >> the court has no further questions, thank you. >> thank you, counsel. ms. harrington. >> thank you, mr. chief justice and may it please the court. the question in this case is not whether section v can compel deviations from a perfect population standard. the question is whether dim minute mus deviation are permitted by the constitution. this court 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. that presumption is a substantive rule that stretch three important principles. if i can tick them off, the first is that such di minute mus deviations don't violate equal protection, the second is giving states a 10% leeway enhances citizens' fair and equal representation by allowing states to pursue other important districting principles and the third is limiting federal court intervention protects state' sovereign right. chief justice roberts: is 10% deminimous.ished -- mr. harrington: that's the therm this court has used. chief justice roberts: i know it
has, yes. [ laughter ] chief justice roberts: does anybody contest this? i don't think that's contested here. i think the other side is willing to concede that it's precementively ok. which means they have to come forward to show there were invalid reasons why there's this discrepancy. mr. harrington: 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 did not make a case of invidious discrimination so the district court's findings about the commission's motive aren't relevant. justice scalia: i don't understand that. i thought a prima fascia case means -- if you haven't made a prima fascia case you have to bring in other evidence. it doesn't mean you're out of court. mr. harrington: if you haven't made the prima fascia case it means the state doesn't have to justify its reasons for the
deviation. in this context or any context to make a prima fascia case you have to put in enough evidence for from which an inference of invidious discrimination can be made. that generally requires 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 the commission is to use in drawing district lines so at a minimum the plaintiffs should have come in and demonstrates that the deviations that they observed were not explainable as in service of those -- justice alito: let's assume that the opinion of the district court found that partisanship was a consideration. so are you saying that finding can't be sustained because it wasn't based on sufficient evidence brought forward by the plaintiffs? mr. harrington: first a point of clarification, part of the opinion you read was talking about district eight is it wasn't defining that
partisanship played any role in the map. and if you read on the district court said if amount of deviation was less than 1%. i think it was .7%. so it's a very small -- justice alito: 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 findings? mr. harrington: the district court found with respect to one district two of the five commissioners were motivated in part 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 the lines on the map couldn't be explained as an effort to comply with legitimate districting criteria. chief justice roberts: what is the position of the united states on the question of whether it's permissible to intentionally take partisanship -- to use partisanship as a guiding principle in redistricting. is that permissible or not?
mr. harrington: we haven't taken a position on that. chief justice roberts: i know you haven't. it seems very unfortunate, it's 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 gerrymandering cases. there are lessons that can be drawn from this court's cases. in "gaffney" the court indicated that consideration of politics and partisanship does not necessarily make a plan unconstitution al unconstitutional. but before you get to the question of what the state's motives were there has to be some demonstration that the motives were not the announced motives in the arizona constitution. chief justice roberts: so you're unlogical to tell me whether intentional use of partisanship in redistricting is acceptable or not? >> i think this court's decision in "gaffney" indicates it can be permissible. that was driven by a desire to equalize partisanship.
justice breyer: i took it that the position of the united states is at least since many commissions are non- non-prz because they have two people on one side, two on the other and one neutral.artisan because they have two people on one side, two on the other and one neutral. the partisan motive is not held by a majority of the commission. it is constitutional for some members of 2 commission to take partisan considerations into account where they're not a majority and where the result is under 10%. mr. harrington: that was the district court's conclusion. justice breyer: it's your conclusion as representing the united states. mr. harrington: we haven't taken a position if there was a finding that you get there -- justice breyer: i read the finding as saying two members of the commission out of five did have a partisan motive. so i think you have to say
whether you think that situation is constitutional or not. mr. harrington: well, let me make the pitch one more time for having a robust prima fascia case. so what the plaintiff needed to do was come into court and say here's a map, it can't be explained by the criteria identified in the constitution that the commission is supposed to go by. the very first criteria listed in the constitution includes compliance with the voting rights act. if you look at the map and which districts are underpopulated and which are the ability to elect districts there's almost a perfect correlation and i think that was a perfectly legitimate explanation for why there are deviations in the case. justice scalia: i don't 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 -- in partisanship is,
indeed, bad -- mr. harrington: well, again, we don't have a position on how one would analyze -- justice scalia: well, one, this isn't racist. number two, it's not this court. number three, i don't know any court like that. and number four -- [ laughter ] if you're going say -- if you're going say, if you're going to say that no members of a redistricting commission can ever have -- can have ever partisan views i don't know where you'll get your membership from. [ laughter ] that is -- many of these commissions, i would think, would balance people who know about districting and are also republicans, with people who know about it and are also democrats and then you have someone of undoubted neutral -- justice scalia: which is not the case here. it places a lot of weight on selecting the fifth person who is lily white pure, right?
and if that person deep down is partisanship one side or the other, the whole thing goes and that is the allegation here, by the way. mr. harrington: i'm sorry to interrupt. this court has said politics is going to be a part of redistricting so i think -- justice scalia: i agree with that and that's a different point. chief justice roberts: you don't have a position on whether that's acceptable or not. there's a difference between saying something is a necessary evil and saying it's evil. mr. harrington: i think this court's decisions have told us that it's fine to have partisanship play some role in redistricting. that's the lesson of gaffney. justice alito: i'm surprised the way you read the district court's opinion. in footnote x of the district court's opinion they set out the standard they apply. mr. harrington: can you give me the page, please? justice alito: it's on 62 -- i'm sorry, 63a running over into 64a. and in the final paragraph that begins the bottom of the page "for decision the majority of the panel have concluded that plaintiffs have not demonstrated that partisanship predominated
over legitimate redistricting considerations." doesn't that mean that there were some illegitimate consideration s? considerations? they assume partisanship wasn't -- mr. harrington: on page 79a wh you were reading for earlier, it's clear what they're talking about is that partisanship played a role with respect to district 8. if this court allows the plaintiff to come in and point to deviations -- justice alito: just to clarify your answer. so you think what they said in footnote 10 only applies to one district? mr. harrington: yes, that's my reading of the opinion. i haven't heard the other side disagree with that but you can ask them. if this court makes it too easy for plaintiffs to come in and point to deviations and partisan correlation then it will totally wipe away the 10% leeway which itself serving important districting principles. chief justice roberts: thank you, ms. harrington.
you have four minutes remaining, attorney general hearne? >> thank you, mr. chairman chief justice. justice scalia: what about footnote 10? do you agree with the characterization that the other side has made? mr. hearne: no, i do not. the portion i would quote was not limited to district 8. part partisanship was rank and was demonstrated not just with the judge's chart but also by the fact of district 8 which was not submitted for pre-clearance. justice scalia: i want a finding. i want a finding. i don't want to look at a chart to make my own factual determination. what factual finding other than footnote 10 is there, in i would -- mr. hearne: i would quote from the appendix at 107-a which is where the statements made, judge clifton correctly finds that the irc was motivated by both partisan advantage and hope for voting rights pre-clearance so we have a majority for that finding of fact. so that's two members of the court specifically found that
partisanship was one of the two motives to explain these deviations for one person, one vote. so clearly it was a motive. at that point, as even judge silver noted, this is a mixed motive -- justice scalia: but to what extent. the other side is going to say, yeah, that's true, but it's only tu as to that one district discussed in footnote 10. mr. hearne: if that is so, they would have stopped and adopted the initial map and not continue to deviate from 4% to 8% for the final map. the initial map, the draft map was a 4% deviation. dr. king, their own expert said this map complied with the voting rights act and yet they went after that and continued deviating in underpopulating districts to get to the 8.8%. that included the machinations with district 8. so if the only legitimate reason was to obtain pre-clearance, then they would have accepted the draft map and it would have
been game over. but they didn't, they went ahead and conducted -- justice kagan: i thought it was because they wanted to make super sure that they complied with the voting act. i think that that's why they said they kept going. mr. hearne: the explanation that was made is that they're "strengthening" these districts by continuing to underpopulate districts because their consultant said oh, that does help us get voting rights act pre-clearance approval. that what the explanation made. but if their own experts 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 partisan skew which judge wake's chart demonstrates, that shows partisanship was a very, as i understand, two of the members said 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 showed that partisanship does not justify deviating from one person, one vote, and that a
mistaken belief that pre-clearance was necessary to underpopulate certain districts also does not justify deviating from one person, one vote. we think partisanship is always going to play a role. ,e would say there is a limit just as justice scalia noted, a standard of one person, one vote . that is april. you can be partisan and we don't fault the commission for having partisan interest. republican members, democrat members. even if the fifth member and it up being partisan interest for the democrats, that is fine. the problem here is not that they had partisan motives. it is that they deviated from the one person, one vote principle to further those partisan motives.
sorry. >> please. >> if you are saying that even within the 10%, to go from 1% to 3%, andom 2% to somebody can come upin and that means that they are all up for grabs. >> i do like it does because in this case, there are no other legitimate reasons to ask lane. if that is the only reason to deviate -- the only legitimate reason to deviate from one person, one vote, that is not the constitutional plan. >> the case is submitted. >> monday, the supreme court heard oral arguments in the supreme court versus texas. the case stems from a texas court's injunction against the
order, allowing some undocumented immigrants to stay in the u.s. you can hear the argument friday at 8:00 p.m. eastern, here on c-span. thursday, a confirmation hearing for nominees to head the u.s. european command. nato ally the print command, u.s. northern command and noard. a.m. youive at 8:30 stern on c-span3. hours of authors and books every weekend. this saturday at noon you stern, book tv is live at the soldier shakespeare library in washington d c to mark the 400th anniversary of william shakespeare's death. and then at 10:00, afterwards, we discussed the common bind shooting in her -- the columbine
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complete weekend schedule. >> next coming the financial effect of seniors in the the economy. geoffrey canada spoke at the university of california at berkeley. this is one hour. >> welcome, everybody. it is great to be here. it is wonderful to see a full house for this wonderful event tonight. ournt to introduce panelists. but actually, we will start with a short talk, outlining the issues with respect to use in america today.