tv Rucho v. Common Cause Oral Argument CSPAN March 31, 2019 6:46pm-8:01pm EDT
the supreme court heard a case concerning north carolina congressional district gerrymandering. it dates back to 2011 when a lower court ruled the existing maps were unconstitutionally, racially gerrymandered and ordered new maps. favorltimately ruled in of the groups. in 2018, a supreme court ruling case back carolina's for consideration. 18422, rucho verse common cause, mr. clement. >> mr. chief justice and may it please thecourt. this i course hads speed he filled to i'd a start nor
partisan ger rymandering claims the cause of the failure it not a lack l imagination or a lack of claims that the particular map before the court was the most extreme ever. rather the root cause of this failure is the basic decision of the framers to give responsibility for congressional districting to political actors. the framers conscious she chose to give the primary authority to state legislatures and then to police the possibility that state ruth legislatures which the framer news to be partisan is constitutions would engage in too much partisanship the framers chose a struck to all -- >> mr. clement that shipped has sailed. once we decided the one person one vote concept, we pretty much in all of-under juris prudence saying that certain acts lyingly
are unconstitutional, including racial discrimination and others. it can't be that simply because the constitution says that a tick act is in the hands of one branch of government, that deprive this courts of reviewing whether that action is constitutional or not. i. >> well, justice sotomayor issue suppose the question whether that ship sailedded is one we to present the question and i submit you don't have a one size fits all dissolution and i don't think baker v carr supports. that i took the central lesson of baker v. carr to be that the same claim when prepared as equal protection claim was -- when he same claim represent as publication guarantee clause claim was not -- i took -- >> implement -- does one person
have one vote that counts equally, which i take it to be the message of those cases, now well-accepted, is one person have one vet that counts equally with others if the impact of her vote is reduced based on her party affiliation? >> the answer to that question, justice ginsburg, yes you still have an equal right to vote. what the pears on the other side are complaining of here is not purely individual injury. what they're complaining of is that their grouped in a district with either too many boehm who agree with them or too few people who agree with them and therefore their vote is sort of diluted in some way and i don't think that is in the first place an individual legally cognizable interest so i think they have a standing problem. even. i they've get over the standing problem, he don't think that's a injury i and i would say more
broadly,lights and lots of votes live in a district where either because of geography or because of state action, they're not going to have their preferred candidate elected. indeed i'd good further and say, most americans don't get their preferred candidate elected because they have to choose from the candidates that are before them and maybe based on the district they live in, it tens to give them a relatively liberal democrat or relatively conservative republican when really what they'd prefer is somebody down the middle and none of those things are things you're constitutionally entitled to. >> mr. clement would your position require to us overall davis vs. band. >> i think mr. chief justice itself would depend on which way you decided the case. i fish if you -- >> if we decide in your fav it would require to us overrule -- [laughter] raft. >> would defend whether you decided on standing grounds justicabledowns you would have
to owe overall rule the band case, the case is a case that well-deserves overruling and i'm happy to discuss why that is the case if think it's justice school ya "he out for four justices is a case that ha has know roo lines interests on it other than the potential reliance interests of litigants but has not produced actual results and i think as justice scalia said, it's a decision that sort of triply doesn't have a strong claim to stare decisis but if you decide the case on staddle grounds you decide the case on grounds that irinterior to anything the court decided to in vander mere so i think it does depend on how you decide the case in our favor whether you need to overall rule. >> mr. clement, if i understand the bottom line of your argument, you would answer the question that one of my -- i don't want to call him a former cal here doing still a colleague but no long en0 on ben weapon
with is, justice kennedy asks in one okay and it was if a state constitution had a provision that required redistricting to be based solely on partisan grounds, forget whether they were meeting nye traditional grounds or not, you would say that was constitutional. >> well, actually, justice sotomayor, i think i might say to that particular hypo -- i thing matters how you frame it if think if you took state constitutional provision and tried to have it impose some requirements that it's going apply to every redistricting going forward, there's at least an argument there's an election clause problem with the effort to try to control subsequent redistricting efforts. may or may not -- >> you're basically saying, yes, that would mean, as occurred here, that almost 50% of one
party's vote is going to result in maybe less than a third of their representation in congress. >> that is exactly right. justice sotomayor and you put your finger on what my friends on the other side perceive to be the problem, lack of proportional representation. >> not, because all of the tests that they're proposing in the district court looked at, didn't talk about proportionate representation. it looked at only the opportunity to elect. an opportunity is different the way this is structured, there is absolutely no opportunity to -- virtually none -- i'm exaggerating slightly but virtually none -- for maybe a majority party to elect more than or less than a third of the people they voted for.
>> well, i think that difference -- first of all i think that difference is implicit in the idea of having districts rather than statewide elects for the congress. keep in mind, the constitution as, eye e enneighboring there's statute that changed that but as for constitutional purposes it is perfectly constitutional for a state to embrace the policy idea that proportional representation is a good thing, and implement it by saying we're going to elect congress not by districts but by statewide vote. -- >> mr. clement, can i take -- >> please -- can i take you back to the justice kennedy question that justice sotomayor talked about? i wasn't quite sure i understood your answer and i'll say the question in a little bit of a different way. it seems this is kind of justice kennedy's hypothetical come to life. in this sense. there is a particular provision in the legislation here that says the partisan makeup of the congressional delegation is ten
republicans and three democrats, and the committee shall make reasonable efforts to construct districts that toe maintain that current partisan makeup, ten and three so it was specifically written into the law that whatever else you do -- there are other things they lawmakers wanted done but whatever else you do, they'll come back with the same ten and three and i think that was the import of justice kennedy's question. can you write that interest a law and say, that's what we're trying to do here? >> so justice kagan two responses. its noticed every time justice kennedy asked the question he asked the way justice sotomayor did and built in this motion you were going permanently enshrine that preference for future elect size want to drop the footnote there may be something -- >> pretty enshrined, go do ten and three. that's that's what we want to maintain. >> there's a difference -- i'm
happy to respond to your question about can you have it as an express cite tieran for a particular districting, and i think the answer, sort of obviously given who i'm representing is, absolutely yes, not a problem and i think actually being candid, probably serves accountability principles in the long run, which is to say if you think, do i check almost everybody does -- that implicitly that is what the republican legislature was doing in vander mere, in fact they were explicit in their depth deposition testimony that the people who drew that map, speaker of the republican house in indiana, was expressed his goal was to preserve as many republican incumbents as possible. >> could i take us back to the way justice kennedy formulated the question, which hypothesized a provision of the state discussion constitution and you made reference to the elections
cause at the elections clause says it is to be prescribed bity times places and manners to be prescribed bi' each -- by the legislatures of the state. do the legislatures of the state typically control what is in the state constitution in. >> they don't, and that's why die think it is important to figure out. think justice kennedy may have framed that question in a particular way. i don't want to go too far down the road of re-litigating the arizona independent redistricting case here but i do think there is a certainly respectable,ment that state legislature means state legislature and not in the other parts of the state government and i think there -- >> can mean the people. done by referendum. >> it well could, justice ginsburg and at least four people that agreed with you on that proposition and i don't want to re-litigate that here because i don't the result in that case -- i think that case can be taken as a given -- you ick still say the claims here no justicable and be as response to
justice kagan's question, there's not a constitutional problem when a state legislature makes expressive with respect to the redistricting their undertaking at that moment if they make explicit what was explicit after the record wafers built up in vander mere which is just didn't happen that they got a map that was favorable to republicans. that they actually intended to do that along with traditional redistricting principles and i think justice kagan the way you read the criteria is exactly right, with respect to partisan advantages theyed. they've said reasonable efforted will be made with respect to other items on the list of criteria like contiguousness, shall. other things were negotiable but reasonable efforts would be made. >> mr. clement, along those lines, in term 0's democratic accountability on this, one argument we have heard is the court must act because nobody
else can as a practical matter. but given arizona, and that is the holding of the court, is that true in and to what extent have states through their initiatives, citizen initiatives, or at the ballot box, in elections, through their legislatures, amended their constitution or otherwise provided for remedies in this area? i just happen to know my ohm state of colorado, this last november, had such a referendum on the ballot that passed overwhelmingly as i recall ump believe -- what's the scope of of the problem here and there are five states with only a single representative in congress so plumb my this isn't a problem there. >> that's right. to the extent it's a problem at all, the scope of the issue, shall we say, is roughly 30 states that don't have some kind of mechanism like you have described, or have multiple districts and i think --
>> how -- my sense is there's at of movement in this area. i believe there four or five states that eighted. >> that's exactly right. michigan is another state that passed a ballot initiative and the other sort of place where there can be a solution to this, which is the most obvious one and is a solution no matter what you think of the ashes independent case, is congress, and if you look at hr1, the very first bill that the new congress put on their agenda, it was an effort to essentially force states to have bipartisan -- whether that's constitutional but shows that congress is able to take action in this particular area. >> i suppose the members of congress are pretty happy with the way the districting has been done. >> you might think, mr. chief justice, but actually i don't think the majority of them are,
because that was a bill that i think passed o. party line votes and so -- to the extent that people of the yatess over the court in the past have been concern but things like entrench. it's a little odd here that we have had all of this supposedly partisan redistricting to benefit the composition of congress and yet a majority of congress thinks they should pass hr1, so i just don't know that there really is that much of a problem and i do think it's -- the particular context that arises here is the context of congressional redistricting and one of the almosts of the framers structural solution was they didn't directly tell congress, why don't you district for yourselves. they said in the first instance, let's have somebody else at the state level closer to the people do the districting and then we'll give congress a role to supervise that. so they didn't have sort of the same fox guarding the same hen house in this district context.
>> imagine you may not want to answer this question which i understand. you might not have thought about it. but assume that absolutely this is illegal. or unconstitutional. but there's no remedy witch can't fig out a remedy. that where i want you to start. tried one in -- my guess is from the reaction there was none and so probably they're something wrong with it but what i'm trying to do is to figure out if there's way to catch real outliers, just you can't go beyond that. i mean at the moment i'm assuming. the real outliers. so which are the real outliers? if we look at history, there one that much jerrymandering in the past are compared to what there might be with computers in the future. okay? so i've tried to figure out something. simple, not going to get every
judge in the country mentioned up. not going to lead to every election contested and throw it to the judges instead of the people. okay? anybody can figure it out. now, this is what it is. that if a -- if there's a commissioner or something, forget it. you're out of court right away. but if there's no commission, one party controls it, then a jerrymander is unconstitutional if a party that wins a majority of the vote in a state -- won a majority of the vote -- put the other party gets more than two-thirds of the seats, that would be pretty extreme. but your client might meet it and the virtue of it, it's absolutely simple. theying try justify it and we can use the landers -- something like 5% things can just to test the justification, but there
won't be much can be justified. that could be a starting place and that two-thirds number is not drawn out of thin air. the constitution in fact you can find serious matters overriding vetoes, constitutional amendments, and you can show how jerrymandering wrecked what they assumed for those but that's a different story, and it very rarely would operate but would be somewhere. have you thought but anything like that? too you have any reaction? your wreaks be, that's no good, but aside from that, is there anything you want to contribute to thought on that? >> well, justice breyer, there's so much in that i disagree with, it's a knowledge hard to know where to start. i'll resist the temptation to take issue with the premises, though i if i have time i'll get back to that. let me take issue with the two
basic prongs of your test, first, the reason i think your test has to be a nonstarter is the fact that as you say, your test would basically give a pass to any state that doesn't use the method prescribed by the framers to engage in congressional districting. so a strike against the state if they actually did what the framers envision. >> wait, wait, one second here. i'm just saying this is perhaps a start. i'm not saying anybody gets a pass. but i'm saying you wouldn't have to go further than nat this case. >> i thought i heard you say that if you were state that used a bipartisan, dot, dot, dot, you get a pass. >> you're right. >> that seems to me itself to be remarkably reveal little because you're saying that would be a good thing for the state if they've chose to use a mechanism other than the one that the framers pick. so that's my big objection to -- >> not if you say that's a dispurpose, the legislature is
people and that's what arizona held. >> justice ginsburg in fairness i think what arizona held eggs that the people are within the concept but i certainly don't think arizona stands for at the proposition that what the framers had in mind primarily was something other than the state legislatures. seems to me it's a strike against your test that it identifies as a problem something that the framers would have associated with the primary heck system they used for rear districtening jibing met interrupt of the going down that road would suggest that justice gorsuch's attempt to sort of save this is not so bad because the people can fix it, is not so true because you're suggesting that the people really maybe can't fix it you were wrong but the people being able to fix it and if the people could fix it, it's not the constitutional prescribed way because it's never been done before, so
justice gorsuch's search. to save what so dramatically wrong here which is the court leave this all to professional politics who every an interest in districting according to their own partisan interest, seems to fail. >> i would disagree, justice kagan i. took the import of justice gorsuch's question, maybe we can allow the states to solve the problem for. thes but then when you do are the starting point of justice bryer's question, the federal government through its justices and judges are going to intervene and put limits on what the state does. >> if got. that. what i'm trying to get you to focus on because i read the briefs. this the fourth time and i think i've -- the thing i want you to focus on, if you can ex-if you want to is the two-thirds manty idea. my party got a majority of the votes in the state, but we ended up with less than a third of the
seats. you see i said my tone of voice is meant -- gee, this is extraordinary but there is absolutely a workable standard. the next question is all the constitutional arguments you're raising. i'm not pushing those under the rug but for present purposes, i want you -- see if there's any reaction to the practicality of the standard. >> i think the way i would respond to that, justice breyer, i'm not here to tell you that if the constitution inwhich whiched juan standard deviation from proportional representation clause or a one-third/two-thirds clause judges would be incamable of administering the laws clause 0 see problem there's no one standard deviation from proportion of representation clause in the constitution and you can't talk even generally about outliers or extremity unless you know what you're deviating from and i take it
implies it? your question and immense sift in justice sotomayor's question that what is bothering people is a deviation from a principle of proportional representation. >> mr. clement you keep saying that but i don't quite thick that right give the stacksal analysis in this case. you're quite right this court has sis this country not run or proportional representation and this is a hangup in our ability to solve this problem. but what is quite interesting about the statistical analysis in this case is the quite a lot of it does not run off a proportional representation benchmark. in other words, all the computer simulations, all the 25,000 maps, right, really do take the political gee of gage of the state as a given. so if democrats are clusters and republicans aren't, that is in the program, and all the other
. >> i thought we were talking about proportional representation. >> i think this is different. >> that first of all, you can do this so this seems like it is about government function as one could imagine if you go all the way back to marbury versus madison. it is a purely discretionary function for go. >> that is making lemonade out of lemons.
but 22999 produced is less partisan than the one of the legislature. >> what i think is remarkable is actually on page 162 that if you run if you just use traditional principles 162 different maps that have the republican split.7 percent just to be clear. these are two different ways to get to the map. >> if you are 24000 maps to satisfy all the neutral criteria in your computer program don't you need a criteria to decide which of
those 24000 maps you will choose and implicit in justice kagan's comment is the idea, is it not that you have to choose one that honors proportional representation that you have no other criteria to distinguish among the 24000 maps quick. >> and bare minimum. >> so let's go back you keep talking about representation but it is not because 99 percent of the time you get a map that is more fair to both parties than the one that was chosen. 's you could have 162 or 164 but what you can do is take that 1 percent in the map is
discriminates against a group of people based on their political views. we have a legion of cases that say you cannot treat political parties differently because it is a violation whether because of their speech or their activities but what we're telling you is just don't split counties to be based on your political views because they were split you may use an incumbent but don't pick one out to keep all of the incumbents in place because you are excluding people based on their political views that is what this is about you are discriminating on the basis of
a group speech and diluting accordingly. >> justice i have three points. your question is fair about what makes this unfair at the end of the day is a proportion of representational proportional representation nobody thinks republicans in massachusetts will never be able to elect somebody to congress even though it's like 35 percent of the population that is unfair. if you draw districts i don't think it is unfair what makes this unfair is that proportional representation. >> that is true but party a gets 55 percent of the vote party be every single time so
if you want to call that proportional representation than do it but i am saying that that if it is not proportional representation to see a legislator or legislature reflect the views of the majority of people. >> so justice breyer let me say why i don't think that such a horrible problem and on the other side of the ledger because even if it is as you described which would happen in almost every state in the union is the 55 percent majority elected to statewide office and the next time around they cannot pass a map in the next time around you will end up in gridlock and judicial lines are drawn and that is of the happiest result
in the world at least it means you cannot capitulate in the long run. here is what is on the other side of the ledger then i will sit down. >> but 49 percent state is more like north carolina so they might not find that so easy but then in this math is consistently represented 25 percent give or take of the legislature. >> i don't think everybody or anybody has a solution but wyatt is proven by history 48 percent might get elected by 30 percent nobody has a solution. i think as justice o'connor
and then you will not get out in the other cases where it needs that reputation but that is the exact same argument don't go to one person one vote because they can never get out of it. >> justice ginsburg sometimes it turns out to be pretty darn good in the state legislatures go well with the one person one vote if you say that they are literally divided down the middle with the physical aisle
to have that partisanship into account then you tell them to get out of the business or you open yourself her case after case. >> on proportional representation my question is is that a manageable standard crack. >> it is a difficult standard for the baseline. >> and to require something for proportional representation crack. >> the framers gave those state legislatures to ensure proportional representation but also given the choice to the districts that is consistent. >> thank you counsel.
>>. >> this involves the most extreme gerrymandering that has been presented to this court since the one person one vote cases but the defense is equally extreme and takes the position matter how predominant the intent no matter how extreme the effects there are no constitutional limitations. >> when you use the word extreme, that implies a baseline compared to what quick. >> in this case it is extreme in comparison to any statistical application of mutual redistricting consequences context of
political geography it is statistically impossible to come up with 11 / two plan and is one of the authors said to pose ten / three gerrymandering because it's not possible. statistics bear that out. moreover those maps which took every possible criteria that they used to apply them to 1000 randomly drawn maps shows first you cannot possibly explain the advantage based on politically geography the application of independent redistricting principles this is not the result of chance. you can only achieve it of the predominant motivation.
>> i understood your brief with your friend the other side to say in the element of partisanship is that your position quick. >> no. our position is that partisanship has to be at least a material factor like arlington heights but in this case we proved it was predominant and that is the ruling of the lower court. >> that just rephrase is the question what constitutes a material factor? . >> the difference with material or immaterial mean no consequence. >> just so i understand any that has a consequence is under your view it is evidence of predominance of the
objective of partisan advantage superseded. >> i understand the view that it is an extreme case but to state that principle to apply to other cases your definition is that it has a partisan consequence. >> it is if that was a material part of the decision of the school board to find the school teacher and then that could be defended the stone on those intervening causes or the legitimate state interest to be served and in this case the legislation from before did not advocate or contend in any way if there is any legitimate interest of any
kind sold by partisan gerrymandering under any of your analysis a clear burden intentional vote dilution gently thought out. >> getting back to the questions we were asking before. if you make a list of the neutral criteria protecting incumbents to respect certain natural features of the geography and help to computer program that and assuming all of that is neutral and at the end you get a large number of maps that satisfy those criteria i think that is realistic that is what you will get. the legislature chooses from among those maps how do you
determine if that choice is unconstitutional quick. >> it is traditionally applied and in the school case that the court said that a democratic school board could use the discretionary choices to terminate based on the viewpoint with the republican author. >> answer that question it is a puzzle so you have all of these maps and you have to choose among them you have already programmed that criteria how does the legislature go among those maps with anything other than random choice to be satisfactory crack. >> the legislature as long as
it does not attempt. >> but that electoral outcomes will determine and how much that deviation proportional representation does not dictate the outcome so that degree of tolerance we are willing to put up with from proportional representation to be plucked god number out of the air or two thirds for veto overrides? where do we get the number on the business end quick. >> it is looking at how this was done for it was done looking at voting history that is the best predictor.
so many voters to achieve a particular outcome with ten districts the republican majorities that it is essentially irrelevant. >> let me try one more time. if you have a range of outcomes and they extend with the republicans ten / two so which one do you choose the republicans or eight / 46 / six? . >> clearly it is the evidentiary matter in terms of intent but to favor one party or penalize another.
>> but will that always be the case if you deviate too far? . >> certainly it will be a question but the closer you come to proportional representation the harder it will be for a plaintiff to prove. >> there you go. there's the answer. like that mandate a proportional representation. >> not at all. you cannot discriminate intentionally against political parties and voters. >> that you save proportional representation the more likely you are to be found guilty. >> that is purely evidentiary question. this court itself in reynolds and again in the case in which you look statewide in state proportional representation. it is less likely. >> as part of mandatory jurisdiction if every redistricting case to look at
the evidence to say why there is a deviation from the norm. that is the ask. >> you have to look to determine whether or not the plaintiffs prove predominant partisan intent to discriminate. >> i think that would always be present so what good reason could there be other than partisanship crack. >> not at all. the legislature in north carolina have been among hundreds that had a seven / six or six / seven the representation but this is not the case. >> what about these 20 states as i understand it through citizen initiatives?
including five of them this last election and even more on the ballot. why should we deal with this quick. >> because east of the mississippi including specifically north carolina , do not have citizen initiatives. >> can you amend your constitutions? that has happened in a lot of state. >> only with the approval of the legislature. to propose the amendment to get to the ballot that is ratified that is not an effective remedy in the states of which you have independent jurisdictions are which they were adopted by citizen initiatives in was out of
opposition. >> what you do about that partisan identification is not the only basis that people vote you see it changes dramatically with a particular appeal with individual candidates the head of the ticket. how do you deal with those factors of electoral results based on identification quick. >> the social class and the experts concluded which designed this plan the redistricting expert to testify that based on social science and his 20 years of experience he could demonstrate how the voter
tabulation districts pass elections democratic or republican how they would vote in future elections and all partisan gerrymandering in the modern era is based on the social science. >> it turns out that this applies to north carolina or not but it proves very often. but the argument was that it would never allow the election 15 days after the opinion came down all the judges looked. and even a lot of things that were not supposed to
happen, happened. . >> the way this was done to use a composite seven statewide elections. over for election cycles to come up with the calculation partisan advantage. and it predicted ten republican districts and republicans won all ten and three democratic districts they want all ten. he's the same methodology. >> counsel, the reality is with all statistical models we spend our lives based on them that the insurance is paid on the statistical models , premiums are based on statistical models.
i am given to understand with the amicus brief in this case that nuclear plants are built based on statistical models. that there is always the possibility of an aberration. >> there is a remote possibility sometimes. >> it sometimes happens that's why it is a possibility. >> correct. >> the fact you have one does not disprove the rule. >> certainly not. hundred maps of 24000 maps. >> but i think on your side has to deal with the problem that on this side of the bench looking at the prior cases there is a great concern that unless you have a very clear standard you will turn many elections in the united states
over to the judges there's only 70 who wants to contest it. so what you will discover is judges are simply deciding too much. is not that i don't take that position i am not speaking for myself but as a reader to understand what is on the other side. and i think it's important for you and the others. >> and i'm clear to answer that question because in this case we prove beyond a reasonable doubt a predominant partisan intent on this record to demonstrate statistically beyond any possibility of
dispute and we proved extreme partisan effect not only at a statewide level but a district specific level and was charged six of the districts of extreme statistical outliers and even one of 24000 that is this case. moreover to hold that the elections clause is intended to provide limits on partisan gerrymandering justice scalia said that in with the elections clause was a limited delegation to adopt procedural rules but not to provide power to favor or disfavor a class of candidates.
that is an understandable standard in the legislators can understand. they already know you cannot discriminate based on political viewpoints you cannot do it predominantly based on race. >> if the legislature said we have all these maps we can choose from but we don't want to be too greedy so we will pick a map solely for the purpose to give us an advantage seven / five advantage. would there be a problem with that quick. >> it would be very difficult to prove partisan intent. >> what if they said that? the only reason is to have the advantage. >> that if it north carolina the legislature said we decide
the people in charlotte represented by a democrat or republican than it is split in north carolina to ensure they are represented by a republican to dictate those electoral outcomes even if slot one - - seven / six so the people elected member of congress in a general election that everybody can vote when you read the districts in that manner you make it irrelevant the primary election. >> so even if that map provides a very small advantage, that would be subject to challenge of litigation quick. >> yes. you had the legislature essentially deciding they
would be represented by a democrat and the others represented by a republican those in the most respected districts were not going to have a choice or an opportunity. >> that when you say that with justice breyer's question that yes could and up in court. judges will have to decide. >> quite contrary it ends with the one person / one vote rule. if the elections clause means the legislator cannot put its thumb on the scale to pick winners and losers to disfavor a class of candidates it is a
standard that will reduce and not increase litigation. >> thank you counsel. . >> mister chief justice made it please the court the north carolinians in this case come to the court to seek relief because when the general assembly enacted plan in 2016 the leadership bragged to the public at large that by enacting the ten / three planet was punishing voters and would create districts with the normal democratic
processes. with those constitutional rights. so it has the most extreme example of the legislature that this court would implicitly and/or to have the most egregious example. a limited and precise test only to impose liability on the worst of the worst cases to eliminate the partisan gerrymandering cases the court will see. and under this test a lower court well apply a three-pronged test for all prongs must be satisfied and under many of those there are multiple screens to limit the number of plans.
first, partisan intent has to be proven on the district specific basis that the district lines were drawn to subordinate the one party and entrench the other. second partisan effect has to be shown as district specific level the specific effect looks at intentional attacking of the democratic clusters and the inquiry is whether the map as a whole has a severe and durable effect on the disfavored party. finally the court asks if there is any justification that district specific level the map as a whole is more biased than you would expect given the political geography and use of nondiscriminatory criteria to have proportional
representation is the sense that in some way to base which this is measured. >> not at all justice alito. there is plenty of for the non- congressional plan. >> you don't have to have strict representation but that is the baseline. that is what you are measuring. but the effects but we have to keep it from happening but there may be some affect. >> so every test that is
presented to this court last year and this year talk about the efficiency gap which is how far of a deviation from proportional representation that it would be okay to have the untoward effect for six or 7 percent that is two thirds. we need to have a number or a formula to determine what effect is enough or isn't for every case will come to this court for crime still waiting to hear what that number or what the formula might be we won't tell you just how far that would expose the problem.
>> justice gorsuch but the severe and durable that all of the social sciences just evidentiary. but it goes back to bearer of severe and durable effect that simulation didn't have that threshold because you see a range of produced plans with democrats varying to use the simulation to have the legislation breathing room. >> i'm sorry to interrupt but breathing room from what? how much? for what standard? i understand but isn't the real answer breathing room from proportional representation up to 7 percent? if not then what is the breathing room and where does it exist quick. >> it exist in the bell curve
of expected and reasonable map allocations of representation to give some political consideration. >> but not answering the justices question what is not allowed his deviation from whatever the state would have come up with absent these partisan considerations the state can do whatever it wants and apart from proportional representation however much it wants to or the natural features would suggest to come up with something that is not proportionate representation that what it can do is deviate from that based on partisan considerations isn't that what this is driving at quick. >> that does give that the effects. >> you still look at that discriminatory effect and it is a question of parties
imposing of severe and durable effect. >>'s you have wisely adopted a very fine answer given for you. but my question is, once we control for geography and all of those things we will have hundreds and hundreds of maps, computers will spit them out infinitely. and once we say okay we can do regression analysis for geography, we still have hundreds of maps and the legislature will choose one paragraph that point we have to say permissible options and now we need a baseline so what is the baseline you would have us use.
>> geography is baked into that. >> i accept that we actually agree on that. after that we are only left with a mere few thousand what deviation from what to what? . >> it is knows to extreme statistical outlier the legislature can choose from any of those. >> so what is wrong with proportional representation quick. >> there are states certainly where the natural geography does not lend itself to proportional representation. we live in a system. >> if you were crafting to get to proportional representation would that view be unconstitutional quick. >> this court has endorsed that activity where the
legislature strives for representation. this would not have the statewide durable effect and hoping that you would see within the simulation. and then to require something close to proportional representation? in this test that we have employed justice roberts. and then to employ and sensitivity testing technology that was not in existence and in the cases and with the
voter sentiment that would not be unconstitutional. to those kinds of plans and with that district court was so exacting with the number of plans and they love the breathing room. >> so that allows that partisanship and redistricting? . >> the complementary test depending on how you understand the constitution and in that dilution of a framework you see that test as allowing room for political considerations particularly endorsed by this court.
it's a different approach to the same problem that it is narrow and descriptive enough to give guidance on what to do to stay on the white right side of the constitution then to prove a severe and durable effect it is to come forward with rigorous statistical evidence i read some of your argument in the briefs that extreme partisan gerrymandering is a problem i will not dispute that and the court should in essence
recognize the emergency situation from your perspective but what about that there is a fair amount of activity going on in the states and the state supreme court's have we reached the moment where they cannot do it quick. >> north carolina can do nothing to solve this problem. . >> but it references a problem in many states and the idea in the brief is that this court alone can step in there is a fair amount of activity.
>> and as acknowledged there is a very small number of states this court has rightfully been concerned about the burden. >> that is in the initiative but in ohio have dealt with this and some hey - - in some way but you also have the state supreme court option as justice kavanaugh pointed out and we overlook that possibility what do we do about that quick. >> but to vindicate constitutional rights as an independent check is the important consideration understand all factors in this case risk doing nothing to say i will draw plan the
reputational risk is much less than doing nothing that is a green light for this rhetoric and manipulation to read district from here on out. this is a situation with all due respect this is not self-correcting voters in north carolina no matter what level this is a swing election in 2018 and they could not eliminate the bias the techniques are so sophisticated that there is no room for self correction. >> look at the popular vote in the 2018 election and compare that to the percentage of
seats to what degree do they diverge? . >> i don't know the answer to that question off the top of my head i do know there was a five-point advantage for north carolina democrats. >> this is a great national problem if we see a great divergence across the country quick. >> there is a gerrymandering in every state in fact, most plans are symmetrical so that isn't informative on that side. >> thank you counsel. you have two minutes mister clement. >> i do think at a fundamental level my friends don't know their own technology they have produced 24000 maps that our permissible that don't take partisanship into account at
all. their submission is the legislature is on partisanship lines cannot take it into account to any material degree in that is just an argument to reassign this authority away from the state legislature and to somebody else who doesn't have a partisanship interest. >> but that just isn't true because they have shown that you don't use partisanship as the predominant factor, then you can produce a lot of maps that are not this one. that is what they have shown. >> right. you can pick 162 that are the map and how is a partisan legislature supposed to choose quick. >> don't you use the one criteria that intentionally looks to exclude the other
part party? that is their basic point. . >> and let me just finish with this observation so to come before the court to deal with something that was unknown previously the generation understood partisan gerrymandering firsthand james madison was the intended target by patrick henry he complained about it bitterly so did george washington neither contemplated that hamilton actually suggested to john jay the federalist should partisan gerrymander the electoral college for the 1800 presidential election
>> tonight on afterwards, former tripadvisor george papadopoulos details his role in the 2016 presidential campaign and his book opens -- "come at the state target: how i got caught in the crosshairs of the plot to bring down president trump." i was actively trying to leverage what i thought were these man's connections to russia. because i believe there was an interest in the campaign for candidate trump to meet with cooking. you believe it was a prime for policy effectively came. >> by the time i turn the campaign, donald trump had been espousing for months the need to work with russia at a geopolitical, economic level, to combat isis. tonight "afterwards," on 9 p.m. eastern on book tv on c-span two. get to know the freshmen
members of the wondered 16th congress, monday on washington journal. learn more but the most diverse of group of lawmakers in history. >> rock, i'm real, authentic. i will be a polished politician. >> on a small-town lawyer from lexington. >> i served in afghanistan. >> and mcdonald franchisee for 22 years. a fascination with this idea of finding answers to questions no one else could find. >> it's a new event for me. i've been a petition for my entire life. >> my dad is a lifelong republican who is never voted for democrat. >> watch "c-span's, washington journal," each monday morning. >> here is what is coming up tonight on c-span. at 8:00 p.m., supreme court reporter joan buskupic is the q&a yes.
she is the author of a book about chief justice john roberts. by's questions is at 9:00 with theresa may from the british house of commons. it portion of today's washington journal, marking the 70th anniversary of nato. ♪ brian: joan buskupic, author of "the chief." with chief0 hours john roberts. seven different times and interviews, but off the record? joan: he let me put some things on the record to use in the book . most of it he kept off the record. brian, nstructive,