tv Benisek v. Lamone Oral Argument CSPAN May 9, 2018 8:40am-9:47am EDT
>> next come the supreme court arguments for a gerrymandering case in maryland where republican voters are challenging a sixth congressional district map that was re-drawn after the 2010 census. this is the second gerrymandering case could be heard by the court in the turn. the euro argument is just over an hour. >> the argument this morning in case 17333, trained to versus lamone. >> chief justice and may it please the court. all nine justices agreed that partisan gerrymandering can violate the con to tuition. the principal question in this case is whether this court has the article iii of our need to do anything about it. we submit that it does under the first amendment. according to the court's first
amendment retaliation, and ballot access cases, government officials may not single out particular individuals for disfavored treatment on the basis of the abuse they've expressed at the ballot box in prior elections. >> mr. kimberly, may i ask you a preliminary question? it is much too late even if you are successful for there to be any change in the 2018 election. if that is so and in terms of improving their injunction here. >> we're talking about a preliminary injunction. that's correct. >> how would you be irreparably injured by the denial of a preliminary injunction is the earliest, assuming you are right that they go into effect 2020. >> your honor, we don't conceive for purposes of this appeal that is too late to enter relief in
the 2018 election in deals with these sorts of circumstances that this court addressed in bush against sarah -- i'm sorry, and usc to way. >> is there anything in the record that indicates the records will tell you all of this is possible? >> that it's possible to enact a new? spin it possible to imply with the injunction? >> nothing in the record about that, but it isn't an issue of the district court has been given an opportunity to address yet. >> euros seem to just assume it had >> i think what we are asking for his arraignment for consideration as the injunction motion in light of what we take to be the proper legal standard. >> the equitable principles involved in the junction, it's an awfully long time to bring the change in 2011 was a?
should that factor into our consideration of whether to uphold or not uphold? >> or two things to say about god. the first is we don't think that's an issue properly before the court unless the court concluded it would be not to deny the preliminary injunction on the he says. that is a function of reviewing the fact that the lower court hasn't had an opportunity yet to address that. >> it is not just that equitable there. there were other factors under the injunction standard including irreparable harm. because of your delay, collections have been held to this district in 2012, 2014 and 2016, right? >> it's true the elections have been held. i would not say it's attributable to her delay in bringing suit.
>> it is evidence to the question of whether you've been irreparably harmed that you let go the elections of 2012, 2014 and 2016 to suggest that maybe 2018 you are not going to be irreparably harmed in the broader sense obviously. you would be in this particular election. but you've been willing to accept that harm in three different cycles. i don't know if we should get concerned about irreparable harm for more. >> of a few things to say about that. the first is what was initially filed in 2013 true after. and the congressional district in after they've taken place. >> you did not file the suit present in this particular of the case until 2016.
>> our position is it's been in the case since the beginning. the premise of the court's reversal and re-manned for the fourth circuit back in 2015 in schapiro against mcmanus that this claim was in the case but had not yet been foreclosed by any majority opinion of this court and therefore that it was the basis for convening a three-judge district court. industry that it did not claim the majority, but this court could not have reached the decision that it reached in schapiro against mcmanus at this claim had not been in the case from the get-go. >> i still don't understand what she went to have take place for in practical terms. you think that after the cases we remand the case of the district court that will adopt a new map to be used in the 2018 election. >> your honor, the short answer to that question is that is an issue for the district court to
decide. as i say, not something we've conceded and i think it's conceivable that the case could get back down to the district court for some form of relief. the district court could conclude is enough time to allow an election to take place. it might look for some sort of interim solution. >> what would god order by this court that might be time is claimed to have set several of the expert nations. are you suggesting that it would not eat disruptive of the current election scheme and the elections in district team for this court to re-manned, to consider whether the mouth would change. >> i think would perpetuate the same sort of insurgency that's been hanging over maryland
politics all along. i don't deny that, your honor. i don't think the court has to actually take a position on the question one way or another. what we're asking the court to do is evaluate legal principles the district court denouncing designer pulmonary injunction motion to correct them as it sees fit to correct them or for them otherwise. >> it's not a question of we have hauled in a preliminary injunction context you do not have to consider the merits if you think the equities and irreparable harm questions cut against the grant of a preliminary injunction. >> that is true, but again a crushing with the district court in the first instance. >> you are asking us to decide the merits and determine from now whether it's been a discretion from now. what i'm suggesting and the strongest case is the winter case from a few years ago were
reset if the equities in the harm questions cut strongly in one direction, we don't have to consider the merits at all without determining that there has determining that there has or hasn't been an abuse of discretion. >> i don't recall what it is exactly the district court in the winter case before this court, i don't recall what the district court in nike sedan. if the district court had reached each of the individual issues, is certainly they can pick out the issues resolved, which it wants to base its decision on. >> i think that's exactly right that the court can pick of the different criteria to base its decision on. it's part of your challenge today to explain why we should take out the hardest one. >> the short answer is because that the one on which the district court aced his decision. if this court were to pick out a different factor from the preliminary injunction test and decide it wants to confirm on databases, it would be taking the discretion of the district
court in taking it in taking up for itself and exercise. >> this is the denial of the challenge. you still have the trial to go through or no? >> yes, we do. >> can you go through that trial without a ruling from us? and if not, why not? >> judge niedermayer said that there were many issues in this case, not the least of which was the motivation of the governor and his committee for the change at issue. would that obviate some of the merits questions before us if we don't prove the first problem? >> you have fairly strong evidence to show that. >> we don't think we have weakness in any of it. >> i agree.
but assuming we leave it the way it is, what happens? >> i think the concern we have is that the case, imagine the district court does not enter summary judgment in the case proceeds to trial on a fundamentally misguided u.n. likely have to approve to establish a first amendment violation against partisan gerrymandering. it would be open to reopening discovery, allowing us basically to conduct a massive districtwide survey of voters to determine whether or not they would've voted one way or another. all because the district court believed the primary question on burden is whether all of the electoral outcomes in the district are attributable. >> let me ask you about your legal theory. i probably don't understand, but if i understand it, i don't see how any legislature will ever be able to redistrict.
so let's say that a legislature is drawing a particular map for a particular district and they say they have two possible plans they are considering and they both have very low population deviations comment exactly the same to the districts and both are compact, territory contiguous. but they say plan added is a more than de minimis advantage in plan b is the other party more than de minimis advantage. so let's pick the one that favors our party. in your view that's unconstitutional i gather. >> about the map drawers are doing is looking at what individuals have voted in the past and on the basis attempting to make it more difficult to achieve electoral success and a specific intent in a burden
imposed as a consequence. >> the answer to my question is yes it may well be a const duchenne. >> time and again you haven't taken all consideration of the advantage out of district team. >> i want to be clear that her theory does not take advantage of producing. >> i don't see how your theories in a different but not other than a de minimis advantage. >> two ways in which is different. >> i know you have protection of incumbents and preserving the district that has a particular facility in it and a few other things. in my example, none of those supplies. your answer is that favoring the political party in a way that is more than de minimis is violation of the constitution.
>> into circumstances that would be the case. the first is we take the position that strict scrutiny applies and it certainly is the case map drawers could consider if it's narrowly tailored which might include, for example, pursuing a balanced map for competitive districts. >> what would happen if you have the large party and the green party. the large party 55. because of natural population shows that the legislature say at this point in order to have a congressionally balanced decoration in order to accommodate the new majority. there would be to retaliate against certain voter used to be
in the majority and minority and got a complaint interview. >> of us has your honor suggested in pursuit of allen's of mouth drying, in that circumstance we've taken positions throughout the litigation. >> is your theory that would be a compelling interest that could defuse scrutiny. in other words, the way i understand your theories you at the state in opposition of saying this is a compelling interest in the only way we can achieve the interest and put it through the strict scrutiny use comment even when the state wants to achieve balance districts or wants to undo a former gerrymander to you would still put the states were very strict scrutiny test in that case. >> i think the answer is yes, your honor. in this circumstance from the
scrutiny can do real work just as the gerrymandering context is tolerated the idea the consideration of race is compelling. it is a necessary means of achieving the compelling and complying with section two of the voting rights act. >> how would you ever satisfy strict scrutiny in a case like this? in other words, it would seem to me that so many alternative approaches that the idea of saying this one way of achieving a particular result was the only way. >> i don't think under the strict scrutiny approach i don't think it's necessary that particular district is strong in what would have to be necessary. for example in arizona, the independent redistricting missionaries told to pursue districts in order to pursue competitive districts, it is likely considering this kind of data is necessary. >> your theory is the legislator
acts of a vengeful intent to punish people for the exercise of their first amendment rights, right? >> disapproval of their past voting history. >> in some circumstances that's going to be okay even though it applies strict scrutiny and will be okay for them to burden their first amendment rights. >> i think we would take the position in any other first amendment context that yes, consideration of past voting history is necessary to propose that and we tend to think competitive districts. >> a district that's been spewed and you take that baseline in seeking any deviation from that. there's something wrong with that. in the past this is a gerrymandered district and now we want to undo the gerrymander in people who were left elbow
said now with then diluted. we lost the clout they once had. is there something wrong with using the district as it now exists as your starting point? >> three things to say about that and i recognize an important point in the case. the first is our focus on the immediately prior district was a reflection of what this court said about districts historically having around what changes are made. that describe the sixth rational district which is comprised with northwest maryland and around changes have been made and preserved. i think probably analytically the more consistent way to think about it is the first precondition under the jingles
framework because the question whether the targeted minority is capable of forming a sufficiently numerous and geographically compact to form a majority of the reasonably drawn district. we knew in this case that was true because of course between 1990 and 2010, republican voters had formed the majority of the reasonably drawn district. that is why in this case it's focused on what has been tried before. in a circumstance where the court is looking out whether there's been a there's been in the end for the prior gerrymander, we think the more consistent way to look at it is as i just described the first prong of the preconditions. >> is you're assuming your proposal at other gerrymandering cases can use the others being made possibility?
>> in this lawsuit this is the only. >> in other gerrymandering cases to see the applicability of any other choice? you have different tasks. the aclu. the others have proposed a test that would address some of justice kagan's concern of the durability for that sort of thing. why did you disavow those? or do you think yours is just easier? >> there are two reasons. it was our understand what he filed the amended complaint in 2015 that we would not have made that claim under none of those other tasks and were concerned because the focus there is on the sixth district did not map as a whole that it just wasn't an apt way of thinking about what happened in maryland. the second reason we focus on it was because we were concerned about the notion that under
these other tax committee injury inflicted upon republican voters in the maryland six congressional district could be viewed as being offset by allowing effectively gerrymandering and other districts in other parts of the state to offset. .. >> the other way to look at it it would be an acceptable consequence. >> so we have many briefs, we
have three cases. and one, too, is wisconsin, there's maryland, and the one we're holding, i think, is north carolina. and you've read those briefs probably. they all have slight variations on different themes. i think you're right when you-- the same theme, maybe, but variations and obviously, the problem is what you start with. it seems like a pretty clear violation of the constitution in some form to have deliberate extreme gerrymandering. the court said things like that, but is there a practical remedy that won't get judges involved in every -- or dozens and dozens and dozens of very important political decisions. or what would you think of of taking the three cases, and setting them for reargument on the question of standard and that we'd have all three variations in front of us and we would enable people who have an interest in this subject
generally to file briefs and we'd see them altogether and they could attack each other's standards or they could support each other's standards or they could attack every standard. but there we'd have right in front of us the possibilities as thought through by lawyers and others who have an interest in this subject. >> obviously, this court has the-- those three cases and i think it makes sense to think of them altogether. because i think the consequences of not adopting one or the other theory is alarming to anybody. and i might add, i think today, as the campaign legal center laid out in its brief in this case, a challenge to maryland's partisan gerrymandering would succeed under the approach they'd taken. and i think that the wisconsin one would require different theory and different evidence,
perhaps different plaintiffs, but it's imaginable that the wisconsin map could be invalue kated. >>-- involume -- invalidated. i could see an advantage. you could have a blackboard and have everyone's theory on it and then you'd have the pros and cons and look at them all and be able to see different ones for different variations and maybe there are different parts of gerrymandering, and da, da, da, you see the point. >> sure. >> you can't think of a reason not to do it? >> the reason to be the intervening 2018 elections, if the court thinks there's not time for a remedy in any event. that's not an issue we're willing to concede, i think it would be an interest in the district court on remand just as in wisconsin and north
carolina. >> what do you think would be permissible? you said your theory allows for d deminimus exceptions. >> as i was describing to justice sotomayor, what happened in the 8th congressional district. >> that's not deminimus. you're saying there is no burden at all. you're saying there wasn't an intent to burden. >> i think that-- >> that's different than d dimimius. >> i think you can have that complaint under the intent and also under the burden promise. >> may i give you a hypothetical that gets to justice ginsburg suggestion. suppose you had a district and there was reapportionment and we realized we had to add 15,000 voters to this district, and they looked at the numbers and they said, you know what?
if this is a solid republican district, but if we add 15,000 voters from a democratic area, we're going to turn this into a highly competitive district. would -- you would now force the state to stress scrutiny on that, wouldn't you? >> i think in that-- it sounds like-- >> we are taking 15,000 of the bluest blue voters and parking them in this district in order to convert from a safe republican district to a competitive district. how do you analyze that? >> just to be clear i have it straight. if the point is that lawmakers in-- we want another democratic-- >> in annapolis, they say we disapprove of these voters electing a republican in this district, we're going to move these democrats in to prevent them from doing it again in the future, yes, i think that that could be, again, depending on the strict scrutiny question and also depending on the
burden question, that could, indeed, be a violation of our theory. >> counsel, one question i have about causation for you. before the district court it appeared you had conceded you had but-for, but-for the gerrymandering, the district court rejecting some metaphysical burden but for, and in this court you seem to be backing away from the but-for in favor of something this court might have described differently. how could it be an abuse of discretion for the court to have proceeded on the basis of concession before it you're now backing away from? >> to be clear we think the but-for is an element. claim, we don't think that it's our burden to--
>> i understand that but according to the district court's opinion, according to the brief our burden is to show. >> that's a line taken out of a brief. >> right. >> that's twisted to 180 degrees. >> so the district court twisted your perception. >> your honor, it misunderstood what we were saying. we said very clearly in the context in which that sentence is taken that we did not have to prove that every election forever more would be-- >> no, what it said, it didn't say that so i think you're twisting perhaps what the district court said, but the district court quoted you as saying, our burden is to so that purposeful dilution is for the laws of-- >> your honor, that was a description of the factual arguments we made in the case how it was we were describing the burden at that point. that's not something-- >> how can it be an abuse of discretion to have relied on that concession? >> because that -- i mean, that
concession -- first of all, it's not a concession, it's taken out of context to say something other than what it meant, but i think it's wrong it say that that is the basis on which the district court based its decision. it's base it's decision on the view that in order to prove an actionable burden in any partisan gerrymandering case, the plaintiff has to come forward and show that electoral outcomes have been changed in the past and will continue to be changed until the map is altered and that is not what this court-- that is not a position that we took in the district court. >> and one more line on this, factual findings 11 and 12, the district court found that plaintiffs had conducted no statistical sampling to show the alternative cause might not have been responsible. namely, that people just preferred candidate and had nothing to do with gerrymandering. how do we address that factual finding and call it abuse of
discretion, the decision when plaintiffs failed to rule out other causal factors for the results here? >> there are two things to say about that. the first and i think the easiest way to address it is through whether shifting the burden applies here. whether it's on the state of a prima facia case has been made and the action that it took. if we're right about that question then it wasn't our burden to put the evidence before the court in any event. but i think the other way it think about it is to call it abuse of discretion, frankly, because it's clear error. the court didn't take account of the strong evidence that we have about the reliability of the metrics of the maps themselves used to work the gerrymandering in this case, that includes the pbi. well, they didn't rely on the pbi, but relied on the dpi. we have evidence uncontested in this case that those metrics are reliable ways of predicting
electoral outcomes. that they are that, it wouldn't be a gerrymandering. we have strong evidence in the case demonstrating that more likely than not the electoral outcomes and the dilution of votes in the district was attributable as common sense suggests, to the way that the map drawers drew the lines. so, i think the legal error under healthy burden shifting and the factual question is simply a clear misreading of the district court and i reserve my time. >> thank you, counsel. mr. solomon, may please the court. and there's a failed retaliation, first amendment
retaliation does not try to answer the question of how much is too much politics and redistricting that this court called inherently political. >> i don't know, he says not at all. he says it's too much, if that's all you're doing. >> no. >> that's basically, if i read his argument. >> depends on-- >> if that's all you're doing, then it's too much. now, under that test he might lose because you're claiming there were other reasons for this. but that's an issue of fact for the jury, i think. you have some pretty damning evidence that it might not have been. you have your own mayor saying, your own governor, pardon me. >> used to be my mayor. >> yeah, your own governor saying that he felt duty-bound to ensure that his party won. and there are basically statements to that effect here. so that tells-- that gives you a standard. you may not like it, but it
does give you a standard. >> well, two things, your honor. one is elsewhere in the brief plaintiffs disavow that they have to show how much is too much. they actually say at that in words. two, that kind of intent-- >> well, how much is too much is what is, i think, balled up in the question which i grant you they're a little equivocal who bears this burden, but they are saying that we have to show that there's some form of entrenchment, that the intent is to ensure that only democrats will be capable of winning in this district for the life of the census or the life of this boundary. so, you have it, you have some form of too much. >> but they're really relying on the intent which they would equate with retaliation, but it's the same intent which the court recognized in vandermeer as ever present. >> mr. sullivan, i'd say you're right, they have not shown us how much is too much, that they
have suggested that in any form when there's partisan advantage, the courts should be intervening, but we don't have to say something like that to deal with this case because, well, however much you think is too much, this case is too much. i mean, i think-- and you'll tell me i'm wrong, but, as justice sotomayor said, from the governor, from congressman hoyer, people were very upfront about what they were trying to do here, which was to create another democratic district, and they did that, only 10,000 people had to be removed from that district as a result of one person, one vote. what the maryland legislature did was to shuffle 360,000 people out and bring in 350,000 people. the result of that is that the district went from 47%
republican and 36% democratic to exactly the opposite, 45% democratic and 34% republican. i mean, how much more evidence of partisan intent could we need? >> well, you might want intent to create something better than a competitive district which is what maryland created. it went from a safe republican plus 13 republican to a plus 2 democrat and in-- >> plus 2, you're referring to the single election? is that what you're referring to? >> well, cook evaluated the election after the redistricting the most important one to judge the effectiveness. >> democrats have prevailed in pre straight elections including an election that was wave republican election. the effects were exactly what the intent would suggest. a longstanding republican incumbent is unseated by a democratic newcomer who with stands a wave election, who prevails three straight times. it appears that the maryland
legislature got exactly what it intended which was, you take a republican district, like a safe republican district and made it into not the safest of democratic districts, but a pretty safe one. >> well, no, it's not safe. it was just competitive and in that first election, 2012, the incumbent republican had seven, count them, seven opponents in the republican primary. the total vote for those opponents exceeded the vote for the incumbent. those seven candidates did not run for office presumably because they thought it was a waste of time to run for the seat as a republican in the 6th district. they considered it to be competitive so they ran as we often do. >> competitive, the idea that is being advanced is extreme gerrymandering, okay? 100% is extreme. no other reason for doing this other than partisanship, that's an example of extreme
gerrymandering, and the election result changed. that's an example of harm. and there is nothing else put forward, okay? except you did put something forward. there's been gerrymandering in the past, trying to cure it. we've seen that in other cases. the last reason is not good enough, you have to start somewhere. second, there is an example of an effect and three, it's 100% partisan. that's the reason. that's extreme. now, could we say that? yes, i think we could, but the problem is that's not going to solve other cases and we'll never have such a record again. i mean, the people who do the gerrymandering are not stupid, and they will never have such a record. and therefore, we will not do much to deal with the problem of serious dimensions. that is national. all right. so, what do we do? just say, goodbye?
forget it? and as you know, you've read these briefs. if you think what's happened now is something, wait until you see those computer really working. you've read that, i've read it, what do you think? >> well, i don't know if i'm smart enough to exceed all the knowledge applied to this question, to this court for a generation, but, we do think that the equal protection law which is what baker and carr looked to when it first embarked on this project to have the courts oversee redistricting, provides the best hope for a standard for it to emerge and first amendment, there are cases outside of retaliation. retaliation has never been used to evaluate a statute that otherwise-- >> equal protection law, you get to the same place. you see, because we have 100% here or that's the record that could be read that way. we get to the same place and that's why i think you've got
to get all of these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if some work in some cases and some work in other cases and depends on the type that you have. that isn't squarely addressed by the lawyers because they're focused on one case, et cetera. what do you think? >> well, there hasn't been 100% showing it was the only purpose here. eliminating the crossing of the chesapeake bay which happened in the early '90s, caused the need to move 125,000 people in the first district alone, so, and as everyone, all the experts who testified in this case in deposition acknowledge if you move one line, it affects the whole map. >> suppose the maryland constitution had a provision that required that partisan advantage for one party be the predominant consideration in the districting. lawful or not? >> that would be viewpoint discrimination, your honor,
which the court would evaluate on the face of the statute, but here we have a facially valid statute that doesn't have any content. >> you could have viewpoint discrimination without challenging something on its face. it goes either way. >> well, in christian legal society versus martinez the court pointed out that it's-- >> what's the hypothetical viewpoint consideration and what happened here not viewpoint consideration? i don't understand the difference. >> well, it comes down to what -- how the court evaluates that kind of statutory challenge which it has traditionally done-- >> my question to you was, a, was that invalid, the hypothetical, and i believe i can conclude that your answer is no, that's not constitutional? >> yes, on the face of the statute-- >> how is this case different? >> well, we don't have a statute that establishes the preference for one party or the other. >> but, i mean, the redistricting is a statute,
isn't it? >> yes. >> well, that seems to be a statute that prefers one party over another. >> but on its face it's a series of metes and bounds. it's the most boring ever-- >> and suppose, mr. sullivan, that the maryland legislature passed a statute. maryland is a 60-40 democratic, republican state. >> democratic. >> yes, 60-40. suppose the maryland legislature passed a statute and said in the next round of reapportionment, we're going to create seven democratic districts and one republican districts. >> i think it would have a similar result to the question from justice kennedy. it would be-- >> was that a-- the chief justice said the reapportionment statute is that statute. >> well, it isn't on its face unless-- it would require, rather than using traditional well-developed standards the court would have to depart from
its traditional well-developed standard from an evaluating on the face of the statute as it's done in recent cases. >> if you hide the evidence of what you're doing, you're going to prevail? [laughter] >> well, i don't think it's hiding by stating statute where the boundary lines are, as they've always been stating. that's not hiding what's being done. >> let's talk about the boundary lines for a second. people have been talking about the statistics and the numbers. is it appropriate in the case like this to look at what the district looks like in terms of the boundaries and extent to which it complies with traditional redistricting criteria? part of the issue here, you have people from potomac joined with people from the far west panhandle. i mean, they both have farms, but the some are hobby farms and others are real farms. >> there's a lot in the record that you'll find that considers most of the people this that western maryland part of the state to actually live in urban areas according to the census,
but congress abandoned the geographic requirements as early as 1911 was the las time they put compactness in the statute so it's not in the constitution, it's not in the governing statute, but if you would look at that kind of thing-- >> it seems i've read a lot in the record worried about going over chesapeake bay and it's not just water that's separated people. the way that it's redrawn, it doesn't seem to have any internal logic. >> it would be harder to justify what-- plaintiffs want to call the benchmark district and extended the 6th all the way across the state to far hartford county, as far from western maryland as you can get, without plopping into the chesapeake bay. so if you want to say let's judge it by geographic and traditional methods then you couldn't justify the benchmark
district that they want to point to, which is the old 6th. this new district looks much more traditional. in fact, it has montgomery county in it which was a traditional layout of the 6th district until that was changed in 1990, which paved the way for rosco bartlett to get elected unlike the previous try when he lost by 46 points. >> mr. sullivan, in the wake of the gerrymandering case, there was a period when max black was the effort and it seems to me what we have here is max democratic and if max black was no good, why should max democratic be okay? >> there's a couple of reasons, one is factual and in this record, there's uncontested evidence in the record that the legislators could have without much difficulty drawn a map that would have resulted in eight democratic and zero
republican congress persons. so, factually, it's not a max dem plan. secondly, in the other case, i believe you're concerned about racial gerrymandering, which is drawn from a history of exclusion of african-americans from our political process, something that republicans can hardly claim, certainly not today where our federal government and our state government both controlled by republican party. so-- >> you made-- i meant to ask you before a factual question. you said the state was 60-40 democr democrat-republican. >> yes, your honor. that's the party. what's the independents in maryland? >> well, i'm not sure. in this particular district it's about 20% in the 6th district, i do know that, 20%. >> is that the pertinent consideration in deciding whether something's been a partisan gerrymander? >> well, i think it's important
because here both major parties are in the minority as far as registration in that district. neither is the majority. they could have made it that way, but they didn't. so, the independent vote is critical because in the election that -- the first election, the democrat won more of the independent vote than the republican. the redistricting lines couldn't have caused that to happen. that happened because of the views of those voters and the strength of that candidate. >> as a general matter in gerrymandering cases, do you have a theory how are you're supposed to take independents into account. >> well, what about the people that aren't a part of a major party. if they don't enter into the calculus for this first amendment retaliation, presu
presuming they're retal yated dependence-- >> isn't it a matter of fact, most independents tend to lean strongly one way 0 over the other over many election cycles? >> well, i've heard analysts call them the angry white vote. >> i don't know that they were anything in particular, just people who call themselves independents and who in fact are not members of a political party, you know, tend to-- not all of them, but many of them tend to vote pretty consistently one way and this is why, when map makers do their map making, they look not only to party registration, they look to the way people vote and what they find is that more members than just the members of the political party. more voters vote pretty consistently. well, i don't know if our record would support that, your honor. you may be correct, but the record that we have statements from experts in our instance, dr. lickman testified that the
vote tends to be transitional voters who are unhappy with their former political party and may or may not move to toth one. are they moving away from the democrats and parking themselves as independents for a few years before becoming republican or vice versa, republicans-- >> along the lines of things we don't know. we have been talking about the intent of the legislature, but what effect does the fact that this map was subsequently approved by the people them selves when we're trying to determine intent. this went up for voter registration as 64% of the vote. >> and some of were active in getting that referendum on the ballot. in this case, justice kennedy says it raised issues of its own. people have spoken and expressed themselves and did so
to for this plan. ten out of 12 counties majority of voters are republican. so, for-- this is not as many redistricting case might be presented to you as a blow for democracy, this would be a blow against democracy. >> what did the referendum question ask? >> it asked if the voters approved the plan that had been drawn up. >> and it says that-- >> the plan that had been drawn up? i thought-- >> well, more elaborate statement. >> it is a more elaborate statement and you're relying on the response to the referendum and certainly, i think your friends on the other side suggest that the question-- the phrasing of the question on the referendum was opaque. >> yes, your honor. that issue was litigated by the proponents of the referendum in state court and they lost both in trial and appellate court, that is cited in the judicial watch brief. the court found that the
language of the referendum was sufficient on its face to apprise voters especially viewed in conjunction with the individual notice that the voters received from the board of elections fully explaining the issue and map as it exited. >> here it is, i think, if my clerk got it right. are you for or are you against the following text, establishes the boundaries for the state's eight ued -- concensus figures as required by the state's constitution. >> and they didn't tell you what establishes it. >>, but they were sent notice that had a fuller explanation. >> notice, do you read all of the-- maybe. >> no, but they do read the paper and the plaintiffs themselves rely on, in their second amendment complaint, if you look at the fine print on the bottom of the maps, drawn from the extensive press coverage in the run-up to the referendum. many of them critical of the
map, talking about it as a gerrymander. this was not held in a vacuum and schutt said we're not going to presume that the voters are not well-enveloped enough. >> and another question, and i have not both the answers to this question. let's suppose that you do have 100% district drawn to help the democrats, and suppose, also, in the next election, the democrat was elected, not the republican. now, if you said that was unconstitutional, and there was no other reason given, all right, now, in other words, extreme, if that upholding of the court, i'm not saying it would be, i'm saying assume it, how would that hurt independents? is there a way that that would hurt independents voters, that holding? >> well, if independent voters have support of that democratic candidate on the merits of that candidate because they thought that candidate was the better
candidate as happened in the 6th district when independent vote,voted heavily for the democratic candidate then you would be harming them if you were to-- i don't know if you're going to think about invalidating an election which the court had intended to do, but it would be hurting them as well and blaming nem f-- them for a problem they didn't create. >> we have found standards on things like how many-- what's the burden of treating different political parties to a requirement of signatures to get on the ballot. and we've said if those situations, we've looked to the nature of the burden, we look to the expense, we look to a variety of different factors to inform the seriousness of the burden.
the first amendment has worked well in those cases. are you just merely suggesting it can't work well here because the redistricting process a so complex? is that your only reason or is it-- what exactly makes the workable in one context, but not particularly in this one? >> well, if there's two parts of that, your honor, if i may. one is if we're looking at retaliation which has never been used as a means testing a statute. it's been used in the executive part of the government when it's employing people, when it's attracting-- where the government has consideration of speech and affiliation was restricted, whereas the governor enacts a districting statute, it's legislating which always involved consideration of speech, including, of course, political speech. if you're talking more generally first amendment law
as affects elections, the right of association, the right to proselytize, to get on the ballot-- >> not to discrimination, you stand for justice saying you don't have to right to-- >>, but those cases go up the point of voting, but as far as i know, they don't address the result of the election which is what partisan gerrymandering cases clair-- care about. they're not claiming they didn't get to vote or-- >> the full purpose of gerrymandering attack is that i am being discriminated against or at least the theory of their case, because of the views i have expressed over time, and those views want to be silenced by the other side. >> but most of the same types of things that come up anytime, your honor, on the losing side of legislation in this court has repeatedly denied that opportunity to try to turn into
a legal issue and a way to get redress. the fact that one's views did not prevail in the legislature. >> are you essentially saying, are you agreeing that gerrymandering is not-- >> we're arguing that on this claim that the plaintiffs are bringing, first amendment retaliation that it would not be a manageable standard. we're not-- >> so going back to my question why. do you agree with the court below that it can be made manageable if you introduce the test that it suggests plaintiff has to undertake? >> no, so-- >> so answer why, the court there seems to agree, certainly, that the judge need mayer thought it was manageable, but why do you disagree with the majority? the majority is basically saying it could be. it could be though, but you have to prove these other
things. >> it starts with a specific intent, that retaliation requires, as the court recognized in o'brien, the intent when it comes to legislation is owe disfuse many people are involved. >> they certainly have enough to go to the jury, whether there was legislative intent outside the gerrymander. they don't have anywhere near the number of affidavits they would need 0 from the legislators that voted or 1.5 million marylanders who approved the plan in a referendum. that's the kind of diffuse intent that comes into play when you talk about legislation. here, legislation that's been taken to referendum. it's so far different from the kind of cases that the district court was citing, where you have an employer and you know, you know, i fired this employee and it's not very complex to figure out what the intent was and who did what to whom. that's not what you're talking
about with legislation. >> i guess i don't quite understand that, mr. sullivan. in the racial gerrymander cases this is what we do, it's the same in the sense that we look to what legislators say, we look to what map makers say, we look to a variety of pieces of circumstantial evidence about how the district turned out and the reason i say it's harder there than it is here because there we have to deal with the kind of race and politicsment and here, when you look at this kind of maneuvering and it's all about -- what else is it except about politics? and we would look to the exact same things that we look to in our consistent line of racial gerrymandering cases. >> well, i would refer you to plaintiffs-- if you want to say that this is not involving the interplay between race and politics, you should look at the expert report in the record from
plaintiff's expert, dr. morrison, one of the reasons that the plaintiffs are aggrieved is because the makeup of the prior district was much less diverse racially and ethnically than the new district and they're forced to be part of a district with more diverse population in montgomery county. i don't know if you can say-- >> the point, we do this, we do it when we deal with racial gerrymandering cases, even if you want to say to me that this is no easier than that, i would say that -- i guess i would argue with that, but my main point was, even if it's no easier, we do it all the time. >> but you do it under the equal protection clause and not the first amendment. that's where your cases will tell you. but we would be looking at the same things, we would be looking at the same kind of direct evidence. the same kind of statements, we would be looking at the same
circumstantial evidence that has to do with where the lines are drawn and how they were drawn, so, it's all the same kind of evidence, isn't it? >> no, when you get to the end of the process there needs to be a showing of totality of circumstances with historical sociological evidence of exclusion of that minority, which simply is not the case when you're talking about republica republicans. they have-- they're a major party. they've been in control of government often times as they are now. >> i guess what i was suggesting, we're looking to the same things to discover intent in each circumstance. >> you may be looking at similar types of evidence, but as far as i know, you have not applied the first amendment retaliation rubric to that analysis as plaintiffs want you to do here. >> one difference between race and partisanship. we've recognized that a portion of partisanship is acceptable
and we've never looked at race would be acceptable. >> in the racial, part that you would remove root and branch, and this court redistricting is root and branch political. how are you going to give it the same approach? do you eliminate all evidence of partisanship. if you can't eliminate all of it, how do you judge where the line is. again, we get to where the plaintiffs have not presented the court with a-- >> we've had briefs in other cases that do try to answer that question pretty directly, you know, you look to see what the reason is and why is there partisansh partisanship, ask the defendant. and then given that reason, is there no real explanation that just doesn't work, and you can, you know, these experts, you can run it through, and you can get somebody who will look at this and they'll say, well, this is-- if this was the reason, why is
it this is in the top 5% of doesn't satisfy the reasons without the partisanship. you've read those briefs. >> yes. >> and the problem is they're complicated, but not impossible, right? >> well-- >> so, that's why i'm back to-- >> i'm not saying it's impossible, and we're not taking the position that it's not possible for this court to come up with a manageable standard. we're just trying to explain why this one isn't manageable and the court has looked for so long, i would hate for it to settle on something less than a valid and workable standard. >> further questions? >> thank you, counsel. two minutes, mr. kimberly. >> i'd like to come back to something that justice kagan raised about intent. when it comes to legislative intent this court does it. when it comes to the question
of burdens imposed on voting rights in the ballot access cases, this court does that as well. our position is that the burden properly understood under the first amendment and applied in this context is the same burden that this court recognized in the ballot access cases. it's deliberately making it more difficult for particular citizens to achieve electoral success because their views are disapproved by those in power, in this case, in annapolis. the court having postponed jurisdiction, i think the question of this is squarely presented to it. and i think the court has concerns about the posture of the case coming up as preliminary injunction. at the same time i think the lower court is looking for this cou court's guidance, whether this should proceed on. we would take the approach that
judge kneemayer took, whether the citizens have been burdened because of the views expressed in their prior voting histories. i guess i would say, if that approach isn't going -- is going to work in any case, it's going to work in this one because here the evidence is unequivocal that this was the intent and point in fact, the political competition of the district turned 180 degrees, it went from republican to democrat, just as the map drawers intended and if i could quickly come back to a point, concern that the chief justice raised at the argument in whitford. i think the average person on the street understands what partisan gerrymandering is. it's about the map drawer singling out individuals because the way they voted and making it more difficult for them to achieve electoral success, when plaintiffs succeed in proving that map drawers have succeeded in rigging an election, they ought
to be entitled to relief and the average person on the street would understand those reasons and for that reason, we'd ask the court to reverse. >> thank you, the case is submitted. >> monday on landmark cases, regents california, versus alan baki. he claims he was passed over at the medical school in favor of less qualified minority candidates and took the university of california system to are the could. the resulting supreme court decision both struck down the university's admission program and upheld the constitutionality of affirmative action under the 14th amendment. our guest to discuss this are the acting u.s. solicitor general in the obama administrati administration. and a from the law center, a legal scholar and commentator. live monday night at 9:00
eastern on c-span. and join the conversation. our hash tag is landmark cases and we have resources on our website for background in each case, the landmark companion book a link to the constitution centers and interactive constitution and podcasts, c-span.com/landmarkcases. sunday night on after words, journalist talks about his book "killing the deep state", he's interviewed by journalist sharyl attkisson. >> i've heard some of these phrases bandied about and adidn't attach meaning to them until more recently. maybe you can define in your view of a deep state, the shadow government and the forum. the same thing who are how would you differentiate between those? >> in my terminology, they're the deep state and others may call them the shadow government
because they're affecting their own bureaucratic wishes rather than the wishes of the people in electing donald trump, for instance, and donald trump, of course, has termed it the swamp, which is probably the term most americans immediately understand because washington was at one point a swamp and the certainly biting and fighting for the turf. >> and sunday night 9 eastern on book tv. >> connect with c-span to personalize this. c-span.org and sign up for the e-mail. the program guide has the schedule and upcoming stel. word for word, the highlights in their own words with no
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