tv Abbott v. Perez Oral Argument CSPAN April 30, 2018 1:59am-3:18am EDT
the case challenges the method used to redraw congressional districts in texas and the impact it had on minority voters. this is about one hour and 20 minutes. >> we will hear arguments this abbott versus perez and that consolidated case. texas legislature did not have a racial discriminatory purpose when it adopted the entire court ordered remedial told thes court district court to order districts that do not violate .he constitution it obeyed this court's remand. defects even
on the lower section five standard and today. >> i know you want to get to the merits but i don't want to leave the jurisdiction question to say you cannot draw this map, the court said that you can. and while waiting for the remedy in this case we are not in the position to be fully informed on the question so i still don't understand how in these cases unless the district court has made clear
to use some portion of your map with the appeals? with our constituents forced to make they said they could not draw the districts but that is under jurisdiction. >> this is the oasis county. >> and with their own expert testified without additional majority minority district then neither district would have performed we would have produced cracking. >> that is open to dispute by your adversary. but the point remains and to change one district it affects others and in the end with the court drawing maps may find
that it is by the map drawing. and often wait for a remedy. so tell me why that's not the case? >> so what the district court did was expressly state his own ruling then months later with no further order. here in contrast after the district court was ordered it ordered state for expedited redistricting. >> no. whether it intended didn't order it it just says if you intend to and hadn't even started the process but could
you have gotten relief at the end of the process? you were granted a stay within less than two weeks of your filing a motion. even going through the remedial stage the trying for the next election. >> but here the district court invalidated the district and then they do not have remedial math and with the jurisdiction. >> what distinguishes this case from what the court has had to do expedited redistricting on deadlines. >> that is the problem when i became a judge 19811 of the first things i was told that when you get an appeal there
is a piece of paper called a judgment or they are appealing from a piece of paper that says junction motion denied or granted what does that piece of paper say here? it aims it says come to court if we call that the injunction we will hear 50000 appeals however many courts there are. when you come to court have a plan. said of 90000 or 40000 but you see the point to say injunction denied or granted. >> there is no magic words. >> i did not say that i said what is the piece of paper to
keep order, read it to me it only has four words. it is in effect to say number one, stay denied. stay granted. produce some papers. do you see what i'm driving at? >> yes. now to have a remedy even by the real texas legislature and two if the governor would not call a special session in 72 hours we were to take immediate steps for after hours. >> you are ordered to consult with map drawers that is the injunction and if that is the injunction if you will call that an injunction then you are ordered to consult now what won't that open the door you are ordered to be in court
tomorrow morning you are ordered to produce a witness. >> because that was blocking from the election to say that somehow we could abuse the map. >> even though that might well be true in all of these cases that that there is a finding that more than one district has drawn but the upshot is that you are not allowed to use those that is only at the end of that process customarily there is an injunction in place don't use this map instead use that one and what i am concerned about
we will hear all of these redistricting cases straight away after the liability stage. >> first of all many of these cases come after that injunction posture seven years after the appeal to this court but more importantly we would have faced contempt if we told the district court know we are not going to engage in redistricting on the extra lung -- expedited basis. >> you always have the choice of not participating and simply let the court draw the map. >> we were ordered not only to appear with their own texas counsel employees with us. >> it hasn't happened with an appeal. >> so what you now say is we
have an appeal of the injunction and every time a map is declared unconstitutional, we have an appeal and then a third appeal of the end of the remedy. so automatically i don't know how to distinguish this from guns and still don't know how from the millions i'm exaggerating greatly but from the hundreds of these that we have received where the court says something is unconstitutional and we have to end the case that is the final injunction that stops you from doing something that requires you to do something else. >> we were in the same spot. >> i'm talking about 1253. you are not giving me any way to distinguish any previous
court decision that does not result in the immediate appeal you basically say every single one where a court says even one district was drawn wrong that that is immediately appealed. >> but with the redistricting itself in cooper only when it declares that invalid but to tell the state you must redistrict that in itself particularly in this case we were ordered 21 days late later to come to engage in expedited. >> with actor justice briars question i don't think ever ordering someone to come to court to give an explanation has been considered a final order. what is considered a final order is a contempt finding that something else happens as a result of your fielder --
failure to act. >> but here to state his own order then took no additional action for months so if the district court clarified to say you can use your maps for the elections that would be a very different case. >> what would've happened if you told the district court i will issue an opinion but we are going had to conduct elections under the map adopted by the state legislature what would've happened? >> we would have been held in contempt for not obeying and we didn't want to get hit with contempt could cousin we could not appeal we told the court at the time granted us a stay then treat us has a petition we are very clear of the status and the court granted a stay.
the issue the in visor he that they could voluntarily comply so we can resume expeditiously. >> i'm sorry but you said before you are interrupted that what distinguishes this case so what does distinguish this case? if there is jurisdiction here will be finding that there is jurisdiction after the liability stage and all redistricting cases? >> no justice kagan if the court declares districts invalid and then issues no other injunction and says the state doesn't have to redistrict that is a different case but when it goes ahead and says you must on an expedited basis with all parties that is the practical effect of the injection. >> supposed there was a 45 day
window? would that have been impractical we could play the game. >> i think so because this precedent says there must be a reasonable opportunity for the legislature to correct any deficiencies but when the part-time legislature is out of session and the court puts a sovereign authority use it or lose it only in 45 days i think that would still be but here it was nothing close it was within three days that certainly is not a reasonable opportunity. >> i have a? the merits. you put a lot of weight on the adoption of 2013 the court drawn 2012? and that plan. i think the concern is that the district court plan was not comprehensive, put in quickly and temporary as
opposed to permanent does that undermine the weight you place on that? >> i don't think so chief justice because there was plenty of process in 2011 and 2012 it wasn't from the posture but that is granted in 2011 the only way the lower standard is because there were collateral sections this is the unique posture and hear the procedure in the district court we had two weeks of trial with the extensive briefing before and after the court's decision even a section five briefing before d.c. two more days of argument and then at that point the district court in 2012 issued written findings and conclusions with a map that changed nine districts and 288 houston districts and in that context they said six
different times of the district court it was under a mandate to draw off the district and then they expressly said to have those plausible legal defects even if there was an issue the claim was not insubstantial and to say that was for a purpose. >> one of the things of the recitation is that it wasn't just the map but also with the d.c. district court found these maps suspicious and with discrimination to question some of the claims and the
reasons that were given by the legislature. there were serious questions raised by the d.c. circuit court so this court basically said it can't rely on these findings let the d.c. district court made the findings contrary are we obligated piece of the picture? >> those were not those districts that were invalidated the plaintiff's counsel told the legislature those court ordered maps fixed every district please mom --
they do not dispute that so in 2013 the dispute was the maps were fixed even beyond the analysis of the court or that somehow clearly that is erroneous here in 2013 the house and senate spent nearly 33 hours of debate with 11 public hearings producing 1355 transcript pages that is just the committee process over 1000 pages of transcript from the journals in the house and senate in that context the legislature had a deliberative process to adopt wholesale entire congressional method didn't tinker with the district and there were nine districts that were changed. there were a couple congressional districts that the plaintiffs were challenging but the district court in 2012 issued an analysis and if that is not a
basis on what the legislature can rely on the federal court opinion i am not sure there is any breathing space at all for legislatures to engage in redistricting with their obligations. >> you essentially say that this was a safe harbor and that seems an odd thing to say but that the aisle opinion is preliminary and just the opinion and this court has said multiple times if they have not gone through all the evidence are all the facts this is just at the stage it was not then. so to turn that around to say it was a safe harbor for the state isn't isn't essentially to stop at that preliminary injunction. >> our position somehow this is not a safe harbor the 2011 legislature's actions could not be examined.
but in 2011 to examine in isolation did not end in 2011. what happened in 2012 without process and in 2013 to adopt a court order review is very good evidence they were acting in good faith. and you have persuasive evidence to overcome a strong presumption of good faith when charging the legislature with illicit purpose essentially nothing changed between 2012 and 2014 plaintiffs have no new evidence compared to what the district court was aware of in 2012 without legislative record before it. in that context with a presumption of good faith there was no basis to see that it was racially discriminatory when it adopted the entire congressional map that it was
ordered to use. >> what would you think putting aside the court order and pretend that does not exist that is an important feature of the case but suppose there is one map and then there is a second map. the one map is later found to have all kinds of evidence of discriminatory intent there's emails, there is everything in the second map there is nothing but the second map is exactly the same. what does the court do with respect to the second map? essentially there is no e-mail? >> that is a very different cas case. >> i know. >> and they would consider that evidence and in doing that analysis of the sequence of events the court could say the 2013 legislature was not
doing anything at all that but here we have a court ordered plan into wholesale acceptance on the congressional side this is not the legislature and obsolete no evidence in place that somehow they were trying to lock in the discriminatory districts if i can reserve the remainder of my time. >> mr. chief justice if i may please the court i would like to make a few points of jurisdiction at the outset to show why this is different from other cases that may arise and with distinguishing factors in this case with the district court did was say that the current borders in
place may not be used there must be a remedy then the court only gave three days to the state legislature which is far from sufficient time to allow a sovereign state to engage in the critical lack to decide whether to reapportio reapportion. >> that might be true it may have been terrible to give only three days but support the court had given three weeks? why would that have made a difference for the question whether something is an injunction? >> i think with your time limit is very important consideration it is a limitation on what we are proposing. october 1 was a deadline the parties accepted my preliminary measures had to be taken as it was only 45 days
away. >> how do we know how much time is enough? with all of these election cases it seems to me that every single one even if decided today i will hear and eight months i have to do something and three months after that they have to do something else until it is clear the district court tells the state you cannot use your map at all even within 24 hours this court could intervene if need be so i am not sure in what other setting the time constraints are a reason if not generally under the law? >> under that practical test but the statements facing a deadline with only three days to use an example that would
express the federal interest 2284 was enacted with a special deference to redistricting by three-judge court that includes the apportionment of congress if the district court held the apportionment statute was something in the census was affected and they said perhaps before the president was to report to the house of representatives the states cannot rely upon that in the upcoming election it is important for the federal government. >> that there are appeals and injunctions and in millions of cases so the judge says i have written an opinion that says just what you say the lawyer says your honor we respectfully disagree with that opinion we are willing to
go ahead and have the election unless you injure the order the injunction which i thank you should not do for stopping us from doing that when that is injured at that point now there is an appeal. once you say that practicality test i have not found a case of that. there was an injunction in carson it was settled i found no case people have used the word practical maybe we stop that without the injunction then what happens to the 4 million cases in u.s. courts? >> i will make a final point that i do want to move on to the next but with the difference between redistricting again the court said the state could not use that planet had used for three elections that representatives and electric had come to
report lung -- rely upon but another stipulation but with others in the redistricting case there has to be a legislature it can't go on with nothing else being done when that redistricting case the court said you may not use this plan. >> you have five minutes left move on. >> i would like to. >> for us the critical point to be made is the question whether the 2013 plan enacted by the state legislature was discriminatory on the intent of the legislature in 2013. this court has said repeatedly there is a procedure of good faith with respect to a legislative enactment and that is true even if a prior legislative enactment was found to be discriminatory.
given the presumption of good faith is particularly strong because as discussed, the district court in this case following this court's careful instructions, examined the 2011 plan and determined which ones did not pass that substantial test that the court articulated and this court said to leave the others in place it had extensive proceedings at that stage and then reinforced the proposition that the state legislature could rely upon that and certainly does not suggest any intent on the part of the state. >> in your brief you acknowledge two things. first when there are two maps that are exactly the same it
is probative of intent and the question is always intent but if two maps are exactly the same result kinds of evidence of intent of the first map is probative and direct knowledge that? don't you think? >> of course everything depends on the circumstances but the facts are that this court has principal authority. the second that you acknowledge in your brief is that these court orders that the preliminary stage are not safe harbors don't you think? >> we agree to prove the intentional discrimination claim under the voting rights act to remain available as well and fact that is the principal for challenging redistricting. >> so given that the court has a better understanding of the
fact then we do do you think we are wrong i am to find the legal principle that went wrong. >> it is that the court basically said that taint that it found with certain districts in 2011 carried forward through 2013 and it was the state's obligation of the legislature to engage in a deliberative process to make sure that which was not found. >> i recognize there are some sentiments that could be read either way but if i understand you correctly you are suggesting there was a shift in the burden of proof that is a legal burden of error. >> that is how we read the opinion. >> but they said the plaintiffs can establish their claim by showing the legislature adopted the 2013 plan with a discriminatory purpose they had the lines or intentionally furthered
pre-existing intentional discrimination so here is the way they can establish their claim so what happened in 2013? >> yes but if you read that whole section of its great weight on the perception of the state legislature was required to engage in a deliberative process to make sure it was undoing and as we have said there is no presumption of tate just because the legislature was previously found by the way. >> that may be right there is no presumption but surely the evidence that one can take into account that the legislature did not engage in a deliberative process after having done a map with discriminatory intent. >> but this court has said there is a presumption of good faith that is a demanding test to establish racial discrimination with no taint
that requires the plaintiffs to come forward with significant evidence bearing directly on 2013 and here we think the district court's the district court opinion even though preliminary. >> i thought the legislature had the findings of the district court were tentative, preliminary only and that it went through what the plaintiffs claim to tell them what they were doing was not addressed because of constitutional issues raised by the plaintiff. >> take the next couple of minutes. >> yes the legislative counsel said this will not end the litigation.
>> they said this will not resolve the tate. >> i don't believe that's what he said i think he just gave advice that the district court decision was preliminary and there could be further litigation but the primary motivation was to end the litigation and the plaintiff suggested there is nothing pernicious about ending litigation but to the contrary the state legislatures acknowledging there was prior discrimination excepting with the district court did as a remedy even though preliminary to enact that new thought is something to be commended with the state legislature proceeds in that manner from the independent review conducted by the article three court. >> are you ending litigation or are you ending the possibility from discriminating? if there is a basis and you
are aware there are claims you pretend -- discriminated there are findings from the 2012 court that the d.c. district court that you haven't discriminated to draw a number of lines intentionally or as a result and now you say i don't really care i just want to get the court outside even from messing with my discriminatory lines. >> answer that then we will let you sit down. >> that is a fair account of what the record shows and first of all if there are indications with a presumption of good faith of tate but the important point is the intent
of 2013 with that desire to accept with the district court did so the state can refine did not end the litigation but that is something to be encouraged and to adopt that rather than continue to resist. >> thank you counsel. >> mr. chief justice a bit may please the court i hadn't anticipated doing this but justice breyer asked a question of the other side and said show me the language. show me where they enter the injunction. the closest they can come everybody agrees there is not real one but was the injunction against the 2018 elections for congress going
forward under the existing plan? the closest they can come to the language that says there is the injunction that says these violations that we just found and declared must be remedied. but that is not an injunction does not say when or how with no detail if you want language the language is in the courts order. >> viewing the current maps viewing the current maps. unfortunately as far as we are concerned. >> as far as the court order is concerned? they make yes. there is no question if they say we are held in contempt if we gone forward it would have been impossible to hold them in content because we have not enjoyed use for any upcoming elections. >> they gave three days if you
think maybe we cannot do that. >> not at all. first of all that three day window was a chance for the legislature to come back to say i will call them in special session it wasn't when. rather the court had said two different times in the spring of 2017 to texas attorney general's office you should consider having the legislature having them address the problems that have cropped up so far that didn't change between 2011 and 2013. no response. simons. then two or three weeks later after this court's decision decision with cooper came down the court again said that handwriting is on the wall if there are problems with your district that did not change you should consider changing a
special session. will you? they did not do it in the spring in fact they got an answer no we will not so when the time came that said we have found violations now we have gotten to the point that in these two districts the court did not say you cannot have the election the court did not say you only have three days to call a special session you have three days to let us know. >> but with the jurisdiction there is no injunction so then what happens next? >> i can tell you what we hope if the court dismisses this case for lack of jurisdiction i have not consulted with every one of the nine groups but if the court says no jurisdiction we will ask the court to set up a remedy hearing to see if we can get relief in time for the 2018
elections. there is a very good chance a pretty strong chance the district court will not let us do that. we went to the district court three different times your hono honor, asking for an injunction in 2015 we asked for an injunction before the 2016 election we got a no. after the march order came down we went to the court and said we you give us the injunction as to the districts between the old plan and the new plan and the court said no. so we have tried also at the end of 2016 and said please give us an injunction to stop the 2018 elections going forward and the court said no. we have knocked on the door three times they said no so finally getting to the liability issue and we didn't
even get a chance. >> are you suggesting you will not seek an injunction? >> i cannot speak for every plaintiff we did it consult with before we walked in. >> what is your intent? >> what the question is do you intend to seek an injunction on that basis? >> yes. >> but i emphasize there was pretty strong indication that we would be successful in getting in the 2018 election. i don't know from this core and what it might say but from the district court has been very reluctant to do with the election process. >> i would like to mention one other thing about jurisdiction the kinds of orders they say that have injunction relief their case processing please
show up on june 3 or whatever it is or help us to draw maps that day. if those are injunction that it was the abuse of discretion not the merits of the case. >> do you think we lack jurisdiction if it doesn't contain the word injunction or order? >> i will give two answers the first is yes i do believe you don't have jurisdiction unless it has the injunction in so many words i do believe that's true. but if that practicality tests the court has applied but if that is applied there has to be something that indicates there is injunctive relief
forthcoming not forthcoming but rather there is intended this court can look at previous. >> and to distinguish from 1292? >> it never has and the previous case suggest that principle is followed it wouldn't be we have to remember the practical effects test is ultimately a misnomer because the district court had refused to enter a consent decree one piece would have been an injunction and the court denied the consent decree that has practical effect to deny that particular injunction. >> counsel you said you wanted to have one more word on the jurisdictional issue.
>> on the merits, it seems a strong argument that you dismiss this wanting to end litigation which is usually a good thing for the legislature to say this is the plan i understand it is preliminary but this is the plan the district court approved that is what we will go with it does seem to me at the very least that ought to give them some presumption of good faith moving forward which is significant on their intent to discriminate. >> that isn't what gave them the presumption they always have presumption that is the first step in good faith and the district court proceeds but in this particular instance the district court in 2012 did not draw a map so those two districts that are before you 25 and 27 it didn't
touch them directly when not change but surely the district court could draw a map for every single district if you look at what you think is inappropriate map to elections moved forward under. >> i understand but half of the texas congressional district was not touched in the interim map. not touched at all. >> is your answer different if they altered every single district but the district said it would be court drawn but they were not. >> how many were altered? >> 36 and 18 were altered in some way 18 were untouched it was half and half and of those that were untouched go look at the 2011 legislation that drew them you can see the restrictions the geographic captions the statute is there
in 2011. >> with the congressional districts that issue did the district court simply rubberstamp what it was presented to it? or did it engage in a thoughtful analysis of the legality of those districts? >> it did a thorough analysis i believe as it could under the constraints and that is not a thorough analysis the court has just said it is not thorough if you're honors recall this case returned to them it was as if the court did not have a choice there was a gap at that time before the regime was in place the district already postponed elections two or three times that were scheduled in the district court in d.c. had not yet acted so there was a gap in it had to go forward so to talk about the analysis the district court and the texas
legislative council lawyer did tell the legislature this that the district court it is hard to find a more hedged opinion about the outcome of the case they said it is a close question i don't know how many times they said this for this time only in the state before you honesty request in 2016 the state told you it is just a one time deal we quote that in our brief. it is not a thorough analysis there were things that changed substantially between the 2012 map and the 2013 legislative action they use the term ratified they did not even say they had considered to redraw that but there are several things that change. number one the district court in d.c. decision that said essentially more intentional
discrimination than you can shake a stick at. that there is a pre-existing crossover district in the area that the district court in san antonio had not found existed they said where minority voters but also in between the united states had intervened in a different posture back then united states had intervened to oppose the map that evidence was introduced. >> talk about district 35 and to initially analyze this is not true that the concept of this district was recommended by dia mexican american legal defense fund and the task force the concept was one of
two alternatives the april 11 testimony and to say we have two maps one is a concept similar and the other is the alternative map that does what we think should have happened we don't have a choice. >> but they argue the alternatives. >> and there was a community of interest and they said that with the initial opinion? >> they said they didn't know for sure but the important thing is there was no evidence under racial gerrymandering test so on the scrutiny side the texas legislature had nothing, nothing in front of them that suggested there was problems require the creation of this district.
>> i thought there was racially polarized voting as a whole? >> they offered no evidence at all. >> you offered evidence about travis county they offered no evidence because if you recall justice kennedy wrote the opinion you don't get to investigate afterwards if there is a problem but at that time it acted they had nothing in front of them that you didn't have to come into travis county. >> isn't that what we are looking at. >> yes it did the district court said we need more facts pacifically in the meantime to show the most important fact
the legislature had is what it didn't have in 2011 was the elections occurred under that map what didn't know in 2013 did not know in 2011? of what it had intended to do they had achieved everything they wanted with regard to the racial tamping down of voting rights that is the most important factor that they had but in 2013 they knew they had succeeded so just briefly on this point about a week ago this court repeated the quit
from justice scalia that said kennedy is doing the same thing over and over again expecting a different result. the texas legislature is not insane. it knows how to do redistricting maps with very well regarding voting rights and ask the court to look at it this way. if you did in 2011 and you know the outcome was discrimination is doing the same thing over and over again. and expecting and achieving the exact same results and that is what happened here your honor. thank you. >> thank you counsel. >> mr. chief justice of it may please the court this court does not have jurisdiction to hear this appeal but if it proceeds to the merits the
district court properly applied the arlington heights framework to apply the intent of the 2013 legislature to reenact some of the same statehouse districts it was deliberately designed in 2011 to cancel out or minimize those voting restraints black-and-white latino voters in texas and it concluded the intent of the legislature was in fact to maintain and perpetuate those findings cannot be deemed clearly with the entire record that is .-ellipsis the jurisdictional question has been discussed that first the ruling gun which is restrictive and doesn't create any exceptions has been applied in the redistricting case but then
there is the practical consequence of the restrictive reading all redistricting cases involve timing and deadlines started different times this is manipulation under 1253 and the exception is the rule turning to the merits it is helpful to look at the analysis of the evidence in 2013 and all of the evidence in front of it. and i submit if you look at the district court opinion there are three obvious buckets of evidence one relates to the 2011 redistricting plans for statehouse yeah there is
analysis of the actual motivation of the legislature found the justification also with respect to 2013 to give rise to discriminatory intent i want to start with 2011 because it provides several pieces of relevant information under arlington heights framework the effect of the redistricting plan is an important place to start with extensive findings and as mentioned in 2013 with the intended effect but the 2011 process also provides with evidence of discrimination. >> has there ever been the pallet review with those
findings of the 2011 plan? do you think we should just accept those findings as a given? would we not have to review those? >> as i understand it texas challenges say it should never happen but with those actual factual findings made. >> we could ask that on rebuttal but i want to understand and as to the 2011 plan were correct and we accept them all. >> we don't accept them but based on 300 pages of factual findings with the intended effect of the house district, it would be very difficult to
find those as erroneous also 2011 evidence is properly conceived of as the sequence of events leading up to the 2013 challenge the same people doing the same thing in 2011 as they do in 2013 can be viewed as part of the same process. they didn't have to offer a separate opinion with the 2011 plan they could have combined that altogether so that 2011 findings under numerous arlington heights framework also want to talk about specific districts because what they had was a troubling pattern what this court saw the last cycle from texas in house district 105 in dallas latino voters were 19 vote shy
from electing their candidate of choice in the district in the legislature in 2011 went to extreme lengths to protect anglo incumbent from being held from that latino population the legislature carved the precinct every anglo voter they could find to pack to protect that anglo incumbent so every latino and black voter was in that district. >> there is a difference between pulling out republicans and democrats so what shows protecting and incumbent? presumably the law would save you protects the incumbent if it's based on party lines that if you just use race what findings are there to show as opposed to incumbency based? >> based on the fact receipt
was split you don't have political data at that level so when the legislature was drawing the lines, it was only grabbing the anglo voters it was not grabbing republican voters it may have been using race but that certainly isn't acceptable either. >> i'm sorry i've lost track which districting are you talking about with respect to 105? >> 2011. >> sorry. >> and likewise the district court i'm sorry i meant to say bell county and while they made that interim ruling it didn't have that relevance but you have that testimony with
those who drew up district 54 to say if it was just kept whole like it was a numerous versions because of the population growth was across minority voters it would be a naturally occurring district. >> are these districts that the district court is entering its preliminary map looked at? that these are things the district court changed? >> it did not change these districts in the interim plan but it was only 12 pages long did not getting into any detail these are hard questions but a delicate sorting out of the evidence
and the district court did not have all of the evidence to say it is serious to find that the legislature acted with discrimination they were acting very carefully to make sure that in many places it found those district lines so it knows how to do that very delicate analysis but to follow that evidence. >> 2012 order? >> when it issued the 2011 opinion when it needed to be redone on the 28th i don't
think they had all the time or the evidence to do this delicate balance. >> so with the legislature you want to take your best shot at a plan that would be accepted by the district court wouldn't you take the plan that the district court drafted? >> you may as a starting point and that was the advice the council gave during a committee meeting but the district court had to question before it to adopt the interim plan to use the adoption of the interim plan as that discriminatory intent that had manifested itself just two years ago. >> who was doing the masking? . . . .
>> to adopt the interim plan was indeed math for discrimination. >> a lot of complaints are focused on a number districts. what do we do about house district 90 where when the legislature sought to take into consideration some concerns along those lines think it's attack from the other direction was discriminating on the violation of race and discrimination of the 14th amendment. how's the states poster balance
this? a bit of a dilemma. >> i think the court has provided the guidance and recent cases. but consistent dating as far back as the '90s. the district court found that the legislature did not create house district 90 with compliance and mine. they found that it employed a mechanical racial target. they're not clearly erroneous. they must be affirmed, the state can protect itself by doing the voting rights increases the court has seen in previous cases. making sure when it does use race in a predominant fashion
doesn't in a narrowly terror of taylor's sense. >> but what about the state adopting a plan approved by the court for this reason. >> dwelling the inference was multifaceted. one was that the legislature ignored the warnings of the district court that the ruling was preliminary. the next is that it had the ruling from the d.c. district court ruling that didn't reach discriminatory purpose but it noted that listed evidence that would support a finding of discriminatory purpose.
notice the legislator had the advice of counsel during the committee meetings. >> the advice of what? it was preliminary. >> that's the piece of advice from that exhibit. but that it joint exhibit contains other advice from legislative counsel which he explains to members of the committee that house district 54 were voters had been cut in half and stranded might have a target on its back and if the legislator wanted to avoid being found guilty to consider reunite that district. this is the evidence they had in front of them.
as late as may 2013 we have a conference where we discussed the need for further evidence. that was discussed during the legislator proceedings. in concluding that the actual motivation was in fact an intent. >> what is the lawn your opinion not the facts if you assume the file one, there's no plan in the state legislature thinks it may have been discriminatory to, there's a judge who says this is okay but i haven't seen the evidence and that we have bishops who look into the heart of the new legislature they discover the reason a pastor was because it's our best shot now
imagine those three fax, what's the law. >> even though the bishops determined there may be. >> they determined that's the real reason they all voted because it's our best shot to get the old plan through or some version there of. it's the best shot. that's the assumption, now is the law. >> the buyer would point to us when a statue has been acted and struck tell her been unconstitutional then reenacted the next year, if it partakes too much cannot stand. i'd also add that wanting to end
the litigation even if it's coming from a good place doesn't in the constitutional scrutiny. racial discrimination needs to be one of the factors in litigation strategy wanting to win doesn't and the constitutional inquiry. more importantly, it's not that doesn't matter if they wanted to end the litigation or not, it matters how they wanted to end it. they wanted to end it by maintaining muslim the political voice and a stat were black and latino voters population is exploding. it was that intent they wanted to muffle. >> do you suggest that was the intent the district court had?
this evil attendance comes from adopting the plan the district court adopted and let the election go forward. >> it doesn't have to encompass any racial animus. i think the district court to the best or could with the time and evidence it had. >> discrimination that would fall under the prohibitions of the 14th amendment doesn't have to come from a deep papal place. >> doesn't have to be intentional racial discrimination. >> intentional racial discrimination attaches where there's a purposeful intent to keep a cohesive minority group from electing their candidate of choice where they might otherwise have it absent that
intervention. i like to know regardless of whether what the court does on the question of intent, the house case we have two claims that are independent of any intent. one is house district 90 which i really spoke about justice court should gorsuch. the dispute boils down to a narrow question, there's no dispute there's racially polarized voting and latino voters have been less able to elect their candidate of choice. the dispute requires that plaintiff show that you can draw an additional majority district the state wants an additional requirement that requires plaintiffs to prove the district
is performing. that's not consistent with this recent ruling. they set a bright line because it's helpful to plaintiffs and the plaintiffs had a district that was 55.2% one and 59.9. >> you want us to hold that a state can satisfy its voting rights act obligation by creating a district where there's a mathematical majority but that district would not perform for the minority candidate. >> no. i think liability under section two has been proven when it
shown it's possible to draw to districts. >> i thought the district court did not find that you can create. >> it so there is some question about if they be performing. he was using elections it didn't have latino candidates in it. that's an issue that still needs to be determined and that this course cannot resolve it. >> the only thing i would add is that the court said this is just the liability stage. so proving the majority of the liability stage is what gets you to the net stage. >> and to establish liability to need to show another performing district and did the district
court find that you could do that? is it not true that one of the plaintiffs experts found one of these districts would not perform one time and 35 elections and the other seven times. >> i misspoke earlier. the proven liabilities the majority. plaintiffs do believe they control performing districts. they haven't presented those maps yet. the liability maps are different. a state can understand the section two liability. >> was the tester intentional discrimination finding? >> it was a racial gerrymandering? >> and i don't think we need to prove whether you create a
majority or minority. >> just that race predominated without a compelling interest. >> thank you. >> general you have formats remaining. >> you for the plaintiffs said they want to now modify the districts for 2018. we've already had a primary election i want to back up to higher-level points. there are three major legal errors here. first no presumption good faith applies. no mention of good presumption of good faith and the red brief. the second is the well accepted standard that to show discrimination you must show they acted because of race with the intent to harm.
that's not the standard. in the third errors test flight was wrong. was team to remove even though there had been no team finding mac and all this just proves that all you get is a vacate disorder. >> in addition these findings were clearly erroneous. there's no evidence that somehow the 2013 legislature had to mask an intent. >> you know that what she wanted to do which was to block hispanic voters or other voters and get certain candidate selected that your own counsel is telling you that in certain districts that's what you got
any say we want the district court to change these maps but that's enough for the panel to conclude that you wanted to put into place discriminatory intent. >> and hinges completely on jeff archer and he testified their preliminary findings. he said i don't think you can say you simply saying that this case litigation will not end. even here to find intentional discrimination there is no discriminatory effect. the only place we could draw another district is the state house man. they don't know if it can perform. their own expert testified.
>> i have two questions on racial gerrymandering. i don't think we've required a proof of effect just that you intentionally gerrymandered. >> that was. >> but that just answer my question. on racial gerrymandering you don't have to prove it. >> if we changed other districts we would have been subjected to other legal challenges which is why they acted in good faith. we had the best of reasons to believe we had a valid compliance defense. they said it had to be drawn majority. >> in 2013 they had to be
adopted as majority hispanic. they narrowly lost her nearly run. >> what is left between our jurisprudence under section two in the 14th amendment? what spaces there. >> in the breathing space really grew reasons, we don't have to have a perfect analysis we just think good reasons were trying to comply. we had the best of reasons possible to believe it needed to be a majority minority districts because that's what it impose here we are seven years later three trials and two appeals we've asked the court to washington journal,
live every day with news and policy issues that impact you. coming up this morning, bipartisan policy center's john tortilla joins us to talk about election security. and then national border control president talks about border security and we are live from colorado for the next up on the capitals tour. we will talk about top policy issues in that state. be sure to watch c-span's washington journal live at 7:00 eastern this morning. join the discussion. tonight, on landmark cases, new york times versus the united states better known as the pentagon papers case. in 1971, daniel ellsberg released a top-secret pentagon study to the new york times and the washington post which --