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tv   Mc Crory v. Harris Oral Argument  CSPAN  May 22, 2017 8:33pm-9:39pm EDT

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the concurring opinion. justices sotomayor, breyer and ginsburg rounded out to the 53-ruling, chief justice roberts, justices kennedy and alito were in the digs -- dissent. justice gorsuch was nose in the hearing because he was not on the board at the time. this is an hour. >> we'll hear argument in case 151262, mccrory vs. harris. mr. clement. >> mr. chief justice, this case involves the constitutionality of two congressal districts in north carolina that should be familiar to the court because they've been before the court on multiple prior occasion. even there are two congressam district smears both north carolina districts the issues presented are actually quite disstink.
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wayfare sacramento congressional district 12 it's defendant from both he house of delegates differences in the previous case and congressam district one because this was not a district that was drawn with an avowed intent to create a majority minority district to comply with the voting rights act. water, with respect to congressam district 12 the was avowed lay political draw. now, if that all sounds familiar it's because it's the exact same dynamic before this court in crow marty 2 and incromartie 2 this court in reversing a district court on the clear error standard conditioninged when the state actually said this was a political draw, that race did not predominate over politicness the drawing of this district. and that is essentially the same dynamic before this court now, with one major difference. this is a much easier case for this court to reverse than cromartie 2 was, even before the court gets to clear errors
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standard of review, there's a clear legal error here that was created by my friend offered the other side and the district court's failure to abide by the teaching of cromartie 2. cromartie 2 was clear that in a case where you have a majority-minority district or something approximating it, and you have race and politics highly correlated and you have somebody challenging the state's suggestion that this is a political and not a racial draw, with the plaintiffs must show, not can show, not may show, not it would be nice that they somehow -- must show there are alternative ways that the legislature could have accomplished its political goals without a comparable -- >> mr. clement, that passage in cromartie 2 says in a case like this one. and it's presidentially clearly
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falling off analysis of a case with purely circumstantial evidence rather than district evidence. i think you would have heard it and it would have sounded different if the court had really meant in every case, where the question was, is this politics or is this race, there was a requirement to present maps. that passage just would have read a lot differently. >> i respectfully disagree, justice kagan, for at least two reason. one is there was direct evidence in cromartie 2 and the direct evidence eerily similar. in cromartie 2 you had the evidence that the map drawer himself has taken race into account with the treatment of the african-american community in greensboro, which is gillford county. >> talking about that, that wife i say i was the problem when. what i wrote was in a case such as this one and then peopling are argue what does that mean in
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case such as this one of the by the time we reach the alabama case, there is a need, seen by majority of the court, to try to bring clarity. we're speaking at a court, not every individual gets his own way or should, and so if we go back into an area and try to reconcile the cases, and try to come up with in a complicated area, a set of standards that will prevent us from being turning into the ninth court of evidence to consider some highly detailed matters and so forth, all the problems here, i would take that or at least i'd start taking that last case, the alabama case, as at least trying to set the way in which a district court should go about deciding a case of such as this one. did i not do that? >> no, the following respect. alabama and career marty 2- --
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cromartie 2-different indicates and alabama is the court's last best guidance how to deal with a case like alabama and like congress aldistrict oney how have a state that shy why? we did it we wanted to draw a majority-minority district. cromartie 2 is the last and best word on cases like this where the state says, why did we do it? politics. we looked the benmark math, the benchmark mat has congressional district one over here, which was a majority-minority district wanted to preserve that. we know how to tell you, when we're taking race into account, we have said we're doing it north playing hide the ball here. we did if with cd1 and with cd12, that's a plate al draw. >> thees is, is it? that's the question the district tort was trying to answer, if it's politicked.
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it's it's a politics, it's fine. of it's raise, it's not -- if it's race, it's not. late take a hype the cat. a state really does decide to do race-based districting. they want to segregate the african-american voters and then say we'll justify it based on politics because that sounds better, right? so, there's a lot of direct evidence that in fact the justification is politicked but the true reason is race. now, were you suggesting when you stood -- in your first statements there, were you suggesting that even if a plaintiff comes in and has all this direct evidence they're really trying to do race, that the plaintiff has to present its own maps? >> i would say yes. i would say, why not? we're talking about a situation where the plaintiffs go in and
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ask a federal court -- in this case after they already asked the state court and lost. i'll get into that later maybe. we're asking a federal court to say and hold that a sovereign state legislature that says it's politics, was disseptember belling and it's actually race. that's a big thing to ask of a federal court. it's a unique thing in these cromartie 2 cases which is different from what you're asking a federal doubter do when state it forthright we took race into account to comply with the voting rights act. >> it's a big thing to ask for the plaintiffs to come in with their own map evidences they have evidence the state is doing race-based rather than politics based rei districting. >> i'm a little less trouble by being demading of plaintiffs than putting, some state legislatures in a difficult position and if there's all that district evidence, i think the alternative map drawing is going to be breeze. if there's all this direct
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evidence the was really's race and politic us a pretext, it's going to be easy as pie to show, well, actually, right here, you could have drawn this map driftly and would not have taken race into account. >> not so easy. we know that race and politicked correlate. the question is -- that's just a fact of the matter. we said notwithstanding of that if race is your motive you get one result and if politic is your motive you get another result. the maps are hard to do but the best evidence of direct -- there is evidence here because the principle line draw irsays they told me to get above 5%. that basically makes the case for somebody. >> youjust to be clear, the dirt evidence of me map drawer actually is incredibly helpful for my client's cd12.
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the same guy who had no problem saying, as to cd1 it's above 50.1% and also testified he had the exact once instructions and cd12 and help didn't look at racial dad to. he looked the 2008 presidential election and the political results from that and drew the map in order to bring in democratic voters and exclude republican voter. so that's -- i'm sorry? >> didn't he say that he was told specifically to not consider race except with respect to gillford county? >> well -- >> probably the most important piece of this discussion. >> no, that's not what he said. he didn't say -- he basically said, do it as a political draw and then you have to check what you did in gillyard county with the african-american community because gillford county is a covered jurisdiction. >> good back to the original deposition testimony which is would the court delied on.
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>> you look the deposition testimony and look at his testimony at trial, and it all fits together because he -- and again, this -- he never says, oh, well, actually, when it came to girlford county i turned off the political screen on my map drawing software and picked up the race drawing screen. what he did is the whole time he drew the mapped hi had political data up there, precisely because race and politics are highly correlated. he drew the map to draw the democrat inside and the republicanned out and then checked his work with respect to gill ford county and itit is the only covered jurisdiction in cd12 and said got the african-american community together. i don't have a problem. now, my friends on the other side want to talk -- whenever quibble there is about gillford county it's uncontroverted that with respect to every other part of the map is a race was not
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taken into account. nobody says he turned the political stuff off for gillword county. so the did a crock check as a gillford county to make sure there wasn't a retroaggression problem, with gillford county, but talk about eerie similarities. he was gill ford county and greensboro and cromartie 2 and what the court said in give thing direct evidence relatively million mall weigh was to say if you look the rest of the e-mail the map drawer was candid about taking race into account in brewing c dr. 2 and more race involved in cd12. the skim layers could not be more dead on with this case. the most you can get out of gill ford county is that race was taken into count in some way that did not make it predominate and the same evidence here that if you contrast the way the legislature proceeded with
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respect to cd1 and cd12, it's virtually impossible to thick this was all a pretext. i understand white you want to search a little bit more when you have a legislature who comes up with these racial maps and they say as to all of it, race had nothing to do with it. when the legislature says we treated cd12 different through from cd1, i think you want some substantial evidence before you second-guess that conclusion that overrode it and i think -- >> isn't -- >> wouldn't -- >> stangs substantial evidence that the congressman says i had a conversation with the map drawer and the map drawer said my bosses told me i have to get up over 50.1% black votes. >> so -- >> that seems like substantial evidence that the congressman says -- reports on a direct conversation he had with me map drawer who says he has received orders from on high. >> well, no.
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that's the thing. there's a dispute whether that confidence ever took place. in the record in this case, you have snort rucho who protests that's not what happen and another witness -- all in the record here. >> -- credibility finding? didn't the district judge say they credited what and -- >> they did say that but that only gets you to the point that, okay, maybe -- even if rucho said that, it didn't get translated to the map drawer. rucho and lewis make multiple public statemented that say that cd12 is not a racial draw, it's a political draw. let me get back to the maps. didn't just make that straight comment cromartie 2. you did it after your analysis in the opinion where you looked the map. it wasn't the probable policemen
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in cromartie 2 they didn't have alternative maps. the problem is they had alternative maps and showed they're very useful just because race and politics are so highly correlated. when you try to draw an alternative map as in crow marty 2, you can gate better racial balance only if you pair two incumbents. >> i understand cromartie 2 and the problem in cromartie 2 does not say in all case. write that for a purpose. this court rites in a case like this win it is ambiguous but i means it. as time progresses we face what you see, and i see as the problem right now, which is a set of standards that the district courts can apply which will try to separate sheep from goats. without is spending the entire term reviewing 5,000 page records. that's a problem you have by the time -- pretty here by the time
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we get to the later cases i don't know itch understand your argue. i understand your argue. i'll go become and look at it. you think it's determinative, the cromartie 2. i'm not so sure. >> you didn't just say in a case such as this onor, saw aid in a case such as this wren where it's a -- and race and politics are closelycourt lated. ry give if you a third cite tear contract which is in the cases where the legislature stated goal was politics, not race, and so you absolutely said it but you're also absolutely right, and before you decide whether it's seem or goats, i think it's perfectly fair to say there are two breeds here generally, the cases where -- the more common ones, the alabama cases, the shaw cases, all cases where the state come inside and cd1 -- those are all cases where the state comes in and says, yep, it was race. it was race because of the voting rights act, and we
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survive strict scrutiny. there's a whole separate class of cases where the state comes in and says, it wasn't race at all. it was politics. and sure, they're highly correlated but it was politics and they're very sensitive cases for the state because is the state does that, if they've lose because they they're found to have disseptember belled, they don't even get to the second half over the case, i can't argue it was politics north race but if you thinker to lying we narrowly tailored. so there has to be a very high threshold, and cromartie 2 addresses the cases like a laser beam. of you want to give guidance to lower courts don't tell them you faked them out in cromartie 2. say you'll stick with that and identify this class of cases and say that's the test force those kind of cases. and it's not that -- biggest burden to come up with an alternative map.
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dirks tearing inculp ben odd making a district looks like this, look like this, which is what you found in crow mat temperature 2. the alternative maps and they weren't -- i mean, it was not beyond the ken of man to come up with al concern tip maps in the case. the problem with the alternative maps is they actually showed that the legislature was exactly -- >> want me to say is even though the district court listenedded to the map drawer and believed him, and his statements are pretty much against you -- and then they heard two hoff the state senators, and they were pretty much against you, and it's up to the district court to evaluate the strength of witnesses, and came to the conclusion on the basis that, that in fact it was race was really the explanation, despite that everyone who comps in has to have an alternative map and we have five intervenors and so forth.
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we'll have five or six different al concern tip maps drawing -- i don't -- 100 state legislators and so forth. >> i don't think that the direct evidence here is of a character that is materially different from cromartie 2 itself. and i would say that, look, you're trying to give district courts directions for a whole bunch of indicates. everyone will be able to say i have direct evidence. always some direct evidence. the quality and character of it is going differ from case to case but i think you should do is in this class of cases, where the state's defense is politics, not race, is all five enter viners can get together, pool the costs which are minimal, give me at least one alternative mav -- map that shows you do the same political thing without a comparable effect on race. not too much to ask. and would make your juris
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prudence -- every case says that this is an extremely difficult business, that it's inherently legislative business, it is a humbling and big thing to have a court second-guess the decisions. so i think in a world like that, especially when you have already say it to say that there is an al turntive map requirement as a gatekeeping function, to guide a district court to give the district court the same tool outside used in cromartie 2 to say, it's easy to say that there was a pretext but when i actually look at this, i'm going to -- the end of the day i'm going to look at that alternative map in conjunction with the directed and kirk shall evidence and be kidded by something that slade was another way to do that, and that does make me think the direct evidence is a lot more probative than it might otherwise, but i see there was an easy alternative.
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they wanted to just help the democrats hurt the rub republicans vice versa. >> what do we do with the statement in miller that what evil we're trying to address is a use of race? once it's met you don't need a manifestation of it. you need just the use of race. does it predominant. that's the evil the constitution is intended to avoid. to say, state legislators, go out and always say it's politics because it's really easy say politics even though there's a lot of district evidence it realliy was race and put the added burden on a plaintiff now to do a map where you'll come up and say on their map, oh, this takes care of this problem. but there's another political reason for that doing it that way. there's another political reason
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for not doing it this way. it's impossible to ask a plaintiff to come up with a race neutral map in light of the entire region. the issue is, are state legislators prohibited from using hays predominantly? if they are and the prove is they have -- the proof is they have, they should go back to drawing board. >> your honor, i think the end of the day in these districts one partying says it's politics and the other says it's race you have to have a mechanism to determine which within was, our humble point is everybody agree third highly correlated and that creates the possible for abuse. we're not saying there shouldn't be in the test. we're saying is that this is a difficult thing. it's a particularly damning thing to say that state legislators -- especially when they're being candid about the
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use of race in cd1, to say they were disseptember belling is a big this and trent woe any strict scrutiny to fix is but a they'll say we didn't take race into account. it's not beyond the ken of man or woman or anyone else to come up with an alternative map and it's not just you're doing it to be mean or imposing costs. they're actually exceedingly useful for analysis and you only have to look the cromartie 2 opinion to show if you do that, you'll elongate it and that's not the case in every case. some cases you can come with a perfectly functional alternative mav. if i can concern my attention to cd1, a case that is more like the virginia district in the sense that here it is, it is the avowed use of race in order to preserve a majority minority district. now, as to this one in particular, we think that the district courterred in applying
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strict scrutiny based on essentially the took place -- adoption of 54-point. the easiest way to confirm is to do what the north carolina supreme court did in the parallel state litigation which confronted a district court that ahide strict scrutiny because of the 4 was applied but the lowercourt there said that applying strict scrutiny we thing this is narrowie tear tailored. the north carolina supreme court said we agree this is narrowly tailored and you can do the same thing here. if you rear very -- here the map drawers aid mitted they took race into account but they were dealing with a difficult problem. which is they had a benchmark match that had cb1 as the majority-minority district. a coalition district, 48% bvap
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but also lost 97,000 votes and so they want to preserve it as majority-minority district based on their reading of strickland and other things. the safest way for us to do this is to get it over 50.01% and we'll tell the map drawer we went this over 50.01%. the map drawer draws the district that ended up at 52.6%. the very fact it's 592 and not 50.1 show its at not like this ratio was preserved over everything else, but also i think it's worth in this case in particular to understand it's not like there was a myriad ways to do what the map drawing did in this situation. there will two opportunities. you could either draw the district to get part of wake county, and that would get you over 50%, or go into the stiff 0 durham and get 50%. this first time the map drewer
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drew the map, drew in wake county. got 50%. there was some back and forthand they decided we'll do the durham county. >> to what extent and what circumstances does section 5 of the voting right act require contiguous district be drawn in order to my with strict scrutiny, assuming your using race. >> i think it requires a reasonably contiguous district. this is a situation where you had a more compact district and in order to get either wake county 0 are durham you have to stepped the district to capture the territories. one thing say before i sit down about cd1 is i think it is very telling to look at representative butterfield residents testimony in the record here, because what the lower court founder is that the reason that we lost on strict scrutiny was there was racialal
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polarized voting. nobody thinks that there isn't racially polarized voting in cd1. they think we they didn't do enough to prove that. ... or 52 on the other and the difference to the legislature means anything that has to do
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with the deference. thank you, your honor. mr. chief justice may i please the court. i would like to come back in and go through district 12 as my colleague did and talk about the problems at the state has in finding a predominance was more than amply supported by the record that the trial court found, and we are under a clear standard.
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to overturn the decision is that an alternative map was not introduced while certainly an alternative map is to reduce the evidence that can't be that it is the only way to reduce evidence. it's a matter of ways to approve the brakes put on it. he offered no alternative map which was the case you heard earlier this year because in each of these cases in alabama they offered no alternative in each of the cases there was no need to provide and a map to prove the circumstantial but existed directly. it's not true that the state of alabama or virginia did not assert political motives in some
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of the districts. >> in respect to this district when i go back i think he's right it doesn't say the evidence is close and political and party attacking the legislature has to show it could have achieved its legitimate political objectives in an alternative way that are equally consistent. what is it that you suggest about that that you're going to say? >> i would say two things. first, i'm taking issues in this adjustment and this is a
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reversal on the trial. some type of evidence that could have been achieved in the political objectives with less reliance on race this but it seems to say. >> i want to know you can say it doesn't matter if the giving wae district court. >> i think the language that is being focused on is discussing the case in which as you say there were lots of maps.
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it is a case where each side is proving their case through the maps principally through circumstantial evidence and in that case we are offering a low of maps on both sides. you at least have to offer one that shows you achieved the political goals without race predominating. i would point out as an important footnote, the state of north carolina actually did draw the map in this case so it's not a hypothetical whether they could draw the map could achieve their political goals because the state of north carolina not using the race they do in fact drew this district and protected the republican nature of the district. >> to serve political ends to the same degree as the map before us?
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>> if they didn't say that it wouldn't prove anything. if they say that this was done based on politics and there is no way we could have achieved a political objective without doing this, they cannot prove the negative so it makes sense to turn to the other side if they prove that is wrong, prove that the political end could be served without taking or drawing the map that was before. >> the problem is that the constitutional cart before the horse. there is no constitutional right. it has to be protected. it has to be protected as the voters. >> the question is what is the
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basis. is that evidence that politics was the reason for its? >> if maybe but even if it isn't, that doesn't mean that there cannot be other evidence. >> would you accept that the map as necessary except in the case where there is quite strong evidence? >> i don't think that this court needs to find the strength of the evidence. i think it is evident and like most trials it is not a mosaic of evidence. >> i think the fact that there
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is a map that was enacted is obviously a race and party through a large degree is evident. but in this case look at what it is and let's talk about what they said, what the sponsors said, quote, because the presence of guilford county, this is the cost in the 12th district we have drawn out the voting age level that is above the percentage of the black voting age population found in the current 12th district. i found that it is race.
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>> the general assembly was covered by section five of the voting rights act determined it was prudent to reunify the community this could avoid the possibility of fracturing the community. further into guilford county caused the circle around the district to increase in diamet diameter. the evidence on that is not very strong. >> but that is where the race predominated. this is a district that was overpopulated.
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this was almost spot on and yet they moved 75,000 african-americans into the district. so that is in fact where they moved. >> is there any evidence that is necessary for the problem? >> they offered no evidence that it was. >> then why is that it seems that is what they would say. why wasn't that -- you? >> they wanted to put all of their eggs into the politics or whether they wouldn't support but this was actually necessary to comply. i don't know but that was not their argument. it's also important to realize the evidence doesn't stop there.
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he's out of congress and has no stake in the district one way or another for himself. he's moved on to the administration and electoral politics and says he is told the reason this happened is it have to ramp up to over 50% to comply. >> they did make the case and they vote for democrats and we want to get all the democratic voters in one district so that the 15 that are republican that's the kind of argument they made. >> the respected african-american was going to be to sell to the african-american community, expected to sell to the african-american community that he needed 50% to comply and you know what they said in this, you should read it and laugh and
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it's not possible because the people would know that there isn't a reason why this has to go above 50% to comply in the voting rights act. the trial court also found as my good friend suggested it was offered he only turned off race and used partisanship. that whole analysis the district court didn't credit. it wasn't believable. >> can i go back to the testimony you refer to something that was highlighted in the brief. the congressman said somebody told him that somebody else told him something and nobody is the
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person drew the map and i don't even know whether any of that is visible to approve the choice of the matter. >> it was admitted into this evidence that the trial court in reviewing the witnesses and weighing out all of the evidence was credited as important evidence. so i understand obviously the supreme court can do whatever you want but i think the role of the appellate court is to look at them and say whether it sounded like hearsay it sounded like something that was believable and the like and. the other is look at what the number came in at even if by coincidence the politics drove them back and get it wound up
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with a score of 50.66. isn't that a coincidence that they turned off the racial data and drew a map into just so happened it came in at 50.66. the trial court was not found but the fact that the number that ultimately came in was just a hair above. it is further evidence that the gracrace predominated. >> i would like to ask about the issue in the case. they just decided in the opposite way. during this case you are offering by which we should
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judge what the court did, that if we had a state case before us it would be found by the clear standards. if that is so then it is a state case. the court applies the fact and that is the rule of the appellate procedure. they brought this case and they
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are entitled to have it add adjudicated for the well-established principles of the court. >> if it is true that the state case is first. it was quite a different case in several respects. the state case was predominantly about the state wines and related to the state districts. this trial court was meticulous
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in laying out the fact they found. most credible and what they were relied upon. was much more conclusive in that regard in part because frankly it was dealing with a mountain of evidence around the state legislation in the state senate. there are other judicial mechanisms available in the court and to the courts generally to control and handle the question of the congress decision in the cases of districting there would be an expedited process whether that was group policy to cases that come up out of the federal courts and the other goes
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through the normal channel and this court might choose to hear it or not but that is not an accident. that is not fortunate. that is a deliberate decision that congress made in the structuring of review and finally i would say that this is a question of the application of the federal law and federal constitution. the defenses are largely under the act, and there is no reason why the word wouldn't giv what e normal weight to the federal three-judge panel in those cases. >> they have an obligation to construe the federal constitution to the same extent the federal courts do. i would have thought that was a pretty well-established principle.
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>> but it is also equally well-established in that this court judge's finding of fact by the lower courts under the clear air. whatever the state of north carolina -- that doesn't seem responsive to the point that you just made with respect to the decision of the state court. >> i'm saying we should follow the rules and here yet that
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doesn't present. you need a state perspective that causes you to overturn. should we proceed as if it never occurred? >> you can read about in the same way that you would read any decision of a lower court for any more or less deference in the decision of the north carolina supreme court that
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1998. my time is about to expire and i want to make the point that this was just a clear error. i appreciate your indulgence. race was the predominant motive or whether it was politics.
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it is one of clear error and had a lot of evidence before the three-day trial and i want to highlight some of the key evidence relied upon in making the credibility determinations in finding that race was the predominant motive and that sent with the testimony told him they have to ramp up the minority percentage in the district so that is the racial target and announced the council mentioned, 50.66 and then we have direct evidence of the way the states did it and that came from the mapmaker. they made contradictory statements and said they did use race with respect to guilford county and pulled the population in order to the voting rights
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act. you would see the state was pulling in constitution of the bloblock voting age population d the concentrations were so high and there was a chart and the plaintiff's briefs and evidence cited in our brief but said no one had concentrated pulling it and that is how it was done with respect to guilford county. the court made credibility findings that have been discredited. there is evidence that it was there about the political motive but it wasn't credible in light of the testimony which credited the political testimony put on by the mapmaker had been contradicted by the mapmaker himself and also contradicted by the architects of the plan who kept trying to downplay politics
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in their statements. and so, when we look at this particularly in light of the standards you have a three-judge panel that went through three days worth of evidence and even the one that disagreed with the holding recognized that the majority did was reasonable and referred to it as the well reasoned opinion of the majority and those cases i don't think you can find an error. >> what do you have to see about the error in the state court decision? is something that we have a federal case before us and not the state case and we are viewing their factual findings in the same question for the error. that response is not terribly helpful in addressing the conflict before us.
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>> >> a couple responses. the way that they deal with the problem is the initial preclusion doctrines and to the extent you are trying to find out what weight they have, we think that is the appropriate lens. i think you would have to ask whether it would have been the state court being decided. >> we should apply so what does that mean? >> it was a case out of the north carolina courts and we don't have a decision on the north carolina law. i'm just saving the way that you deal with this question as opposed to doing something different like saying now we
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won't use the error anymore we will go to the review or something like that. >> you don't have a position on what the answer is. >> if the court is worried about having some effect they would ask whether there would be three hurdles i think the state would have to overcome in order to prove, to show that there was a bar and first of all whether the argument was waived is addressed and the predicate that the state claims is there is a substantial question and third. the way that you figured out to do is to using thos this by usie principles. what you don't do is simply defer to the state court
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findings. rule 52 but has the factual findings applies to this court. the court should decide the case as it comes and that is with respect to the district 12. the only potential reason would be section five and that is to prevent the retrogression so it wasn't a matter of preventing the retrogression. we don't read the court's decision to require a map any time it is asserted. we take a case like this one and
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that was the case of circumstantial evidence of the race. there was little direct evidence according to the direct evidence that was substantial for the race and politics we knew with the race and correlation if it made sense in the context of this case mike gave us an alternative that shows this but if you have to case conversely that is a strong and direct evidence of the racially prominent motive it doesn't make sense to require the map because it is used for an unjustified reason it isn't the map as an evidentiary area thing you could have or not have. >> we think that this court tried to give flexibility in terms of proving racial predominance.
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maybe one other thing is we don't think if the court for about ten and math requirement for a set of cases that would have explained it in hi its opin and would have done something with its prior. there was a majority minority district and the problem is how does it permits the creation of the enemy be slightly better or slightly worse. so if you are too tough in this case in rejecting the notion that it was politics what would happen to the majority minority districts where that has just.
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there are two things in particular. >> it is the constitutional interest in seeing that minorities have representation and reality in the legislatures. it's to ask about racial predominance meaning was raised predominant motive not just one factor but the motive to show that evidence in the second thinand the secondthing is whene strict scrutiny they said give your justification and that is the first in this case that the state was operating on an air of law first of all and a second dividend to provide the justification and that is what the section two and section five focus on. it's not just alabama an and of
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course picking a number out of the air but shoving there is a problem with retrogression is a problem with respect to the first congressional district in this case that was not evidence of a potential problem because of the lower percentage not being a majority minority districts andistrict and the african-american community was able to elect a candidate of choice and this is on page 49 of the district opinion so it's getting back to the question we understand that this is a somewhat delicate balance. it's against the concerned states have and the flexibility to states need by adopting these different parts of the standard racial predominance and strong base of evidence for scrutiny. >> you have four minutes
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remaining. >> it is worth recognizing the sixth trial court judges looked at the congressional district number 12 in four out of the six said politics, not race prevailed that it is a funny sort of wall that will refer to the minority of two. i don't think yo you can't ignoe the decision on the grounds they were not specific enough. i would point you to the appendix 161 to 163 where they were unanimous in finding other things that was constructed from the 2011 and 2012 district on the voter tabulation district in which president obama received the highest voter turnout. the only information on the computer screen used in selecting the inclusion in the district was the percentage by which president obama won or lost and of course that gets to the need for an alternative and
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difficulty here if it is all well and good. but they pulled in all these democrats, too. what they could have done which would have been simple enough if it were true to draw a map that shows he wasn't using the 2008 presidential election results. that would have been easy to do but they didn't do that. any alternative map would have been easy to do and they didn't do it in other cases as well and i think there are two reasons that explain that to get rid of the map requirement. we are off so we don't need a map on predominance. that is wrong and the courts will say that is wrong. the second reason is most of the challenges are brought by people that are at least as concerned by democratic political
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prospects as they are about avoiding race and the problem with putting an alternative map together is to actually prevailed on the other side they could use a map and then say you can't complain about that because it was your map. so if you really want people to bring race claims and not bipartisan claims make them put together an alternative method that works. they were all democrats as well and that is why even there if you have an alternative map that shows that would bring in democrats and african-americans and they would have something to just the fact that they brought in a bunch of african-americans because they were trying to bring in democrats is about as interesting as the sun coming up in north carolina because everybody agrees there is a 90%
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correlation between race and partisan identity. the second thing is there is a very good reason we didn't make a section five defense because this wasn't a case about the county not that we didn't do something to overly comply with section five. it was drawn as a majority minority district. >> they did present both and said the proposed findings were purposely included in a substantial number of african-american residents of guilford county and cd 12 and an intentional place with a significant number of voters in the racial predominance. >> they would have had two problems. we would have had a section five defense.
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>> everything but they said was a concern about the retrogression which is why when the senator talked about guilford county he didn't say that it was a majority minority district and we avoided any problem by making sure that we had at least a higher percentage than in the benchmark map and with any potential section five concerned with splitting the county and putting the african-americans in guilford county and the neighboring republican leaning district they would be the first to complain about that.
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>> the house budget committee hears from the doctor on 2018.
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never let anyone define you and that is the first lesson. our hearts should be open, not just falling in love but to the world we need to look, we need to care, and we need to contribute. don't let anyone tell you that your dreams are silly. if you have to look back on your life, regret things you did and not what you didn't do. the question is whether and how you will participate in the creative change in
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