League of United Latin American Citizens v. Perry – Oral Argument – March 01, 2006

Media for League of United Latin American Citizens v. Perry

Audio Transcription for Opinion Announcement – June 28, 2006 in League of United Latin American Citizens v. Perry

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John G. Roberts, Jr.:

We’ll hear argument next in No. 05-204, League of United Latin American Citizens v. Perry, and the consolidated cases.

Mr. Smith.

Paul M. Smith:

Mr. Chief Justice, and may it please the Court–

The Texas legislature passed a new congressional districting map in 2003 for only one reason, maximizing the number of Republicans who would represent the State of Texas in Congress.

Even though the existing lawful map already had 20 of 32 districts which strongly favored the Republicans, lawmakers went to extraordinary lengths to lock in control of 22 districts, moving around 8 million people into new districts, abandoning concerns about compactness, wherever necessary, and most importantly, segregating the population by race and by politics into 32 districts which are extremely noncompetitive.

John G. Roberts, Jr.:

So your… your statement that it was for one reason only means it wasn’t for any discriminatory reason on the grounds of race or ethnicity?

Paul M. Smith:

Your Honor, the finding of the district court, which we’re relying on here, was that it was purely for discrimination based on partisanship rather than on the basis of race.

Now, they started out by trying to engineer the defeat in the… in the legislative process, engineer the defeat of the six Democratic Congressmen who had managed to be elected in Republican leaning districts because they were moderate to conservative and they were, as the district court put it, able to appeal to voters to split their tickets and vote for them in 2002.

By the end of the legislative process, they went further and decided to take the risk of eliminating one of only four districts in the State in which African Americans had an opportunity to elect candidates of their choice and also to eliminate one of the Hispanic opportunity districts in south Texas.

Now, in the latter case, they did try to replace that with another Hispanic opportunity district, but that was the one that we’ve called the land bridge district, District 25, which spans 300 miles, linking up urban concentrations of Latinos in Austin and in McAllen down on the Mexican border.

Antonin Scalia:

You think that’s no good.

Paul M. Smith:

Your Honor, we–

Antonin Scalia:

Not… not even to prevent retrogression, which would violate section 5.

Paul M. Smith:

–Your Honor, the retrogression problem was created by the fact that they had gotten rid of a much more natural… naturally occurring–

Antonin Scalia:

But that was done for political reasons, not racial reasons.

Paul M. Smith:

–Exactly, Your Honor, and that’s the argument that was made and rejected expressly by this Court in Bush v. Vera, that we had to make an ugly minority district rather than a compact minority district because if we did it the other way, a nearby incumbent would lose his seat.

That was precisely the argument that was made there, that it was really incumbency protection, and we had to make it this ugly district to send that excessive racial message in order to protect other nearby incumbents, an argument which is mirrored here exactly and… and as to which I notice the… the State of Texas offers no response.

Antonin Scalia:

But what… what is your proposal?

What… what is… what is a State to do if… assuming there is a political motivation in drawing its districts, perfectly valid political motivation let’s assume, and the result of that redrawing is that it would eliminate a majority minority district, what… what is the State supposed to do?

Paul M. Smith:

I think the State has to stay within the constitutional confines of the Shaw v. Reno doctrine which would require it not to go so far in the pursuit of its political agenda that it creates a district… has to… has to create a minority opportunity district somewhere that would otherwise violate Shaw.

Now–

Anthony M. Kennedy:

But what’s the… I’m… as Justice Scalia, I’m interested in the section 25 problem.

The briefs–

Paul M. Smith:

–District.

Anthony M. Kennedy:

–for your cocounsel don’t talk much about it, and it’s… it’s a problem for me.

Justice Scalia’s point was let’s assume… and I have some doubt about it.

Let’s assume that there’s a valid reason for redoing section 23.

That means you need another district to avoid retrogression.

What is… what is your position as to district 25 on that assumption, based on that assumption?

Paul M. Smith:

I don’t think that it makes a constitutional difference under this Court’s cases whether or not the reason they decided to place the district there and give it that configuration was because they had a political agenda somewhere else.

Paul M. Smith:

The… the fact of the matter is they… they were deliberately trying to create an Hispanic majority district there, and to do it, they had to go all the way up to Austin and grab 300,000 Latinos and link them up with–

Antonin Scalia:

Surely, that’s not what makes it bad.

Even if they created a compact district but with the… with the intent of creating a majority minority district, that would be a district created for a racial reason.

The mere fact that this one happens to be not compact doesn’t eliminate the motivation, and… and I don’t see how you can avoid that motivation unless you’re going to abandon the… the prohibition against regression.

Paul M. Smith:

–Our point, Your Honor, is that in this situation, doing it this way, the… the motivation predominates over the other legitimate districting criteria, which I think under Bush and under–

John G. Roberts, Jr.:

Which… which motivation?

Paul M. Smith:

–Well, the… the racial motivation to create a district… to… to reach out as far as they did to capture–

Anthony M. Kennedy:

Well, can the… can the State by its action with one district, i.e., 23, in effect bootstrap itself in a position where it’s entitled to use race where… in a… in a predominant and I… I think insulting way and… and then have a defense?

Paul M. Smith:

–Our submission is that they cannot, Your Honor.

Now, if I could turn to the partisanship issue, our–

Stephen G. Breyer:

May I just clarify one thing on that?

Paul M. Smith:

–Sure.

Stephen G. Breyer:

I take it your reason was that in Bush v. Vera, the Court said, of course, they can use race to prevent retrogression.

Of course, they can, but if they do, they have to create a compact majority minority district, not an elongated majority–

Paul M. Smith:

Yes.

Stephen G. Breyer:

–That’s the… that’s the argument.

I have to go back and look at Bush v. Vera.

Paul M. Smith:

Yes, Your Honor, and that they can’t say we have to create it in a noncompact way where the race predominates over the other values because we have a political agenda of protecting some other incumbent in a nonminority district.

John G. Roberts, Jr.:

How… how does that make any sense to say that what you’re objecting to is the consideration of race in one situation, but if it’s compact and the predominant motive was the consideration of race, that doesn’t bother you?

That seems to me to be a back door way to get into a more extensive judicial review of the compactness and based on racial considerations that are, under your view, the predominant factor in each case.

Paul M. Smith:

Well, Your Honor, I think there’s a question of what you mean by the word predominance.

And I as understand the Court’s cases, there are times when the shape and the extra efforts that are made to… to kind of gather up minority voters as, for example, in Miller v. Johnson where we had a very similar district, where race is said to predominate in a different sense than it does when you simply are creating a minority district to avoid retrogression or to… to stay in compliance with the Voting Rights Act.

Clearly, the Voting Rights Act requires you to create minority districts.

It should require that it makes sense that people make efforts to do that.

We’re not saying you shouldn’t do any of those things.

We’re just saying in this instance, under this Court’s cases, you shouldn’t be able to use your political agenda to allow you and justify you to do it in a different way which sends this extra message of excessive racial consideration.

Anthony M. Kennedy:

And that’s a–

John G. Roberts, Jr.:

So you can take race into account if it’s compact as a predominant motive.

You can’t take race into account if it’s not compact.

Paul M. Smith:

I think, Your Honor, you certainly can–

John G. Roberts, Jr.:

As a dominant motive.

Paul M. Smith:

–You certainly can intentionally create a minority district under section 2 of the Voting Rights Act.

I don’t know how you could comply with section 2 of the Voting Rights Act if you don’t do that in situations where, under the Gingles criteria, that’s what you’re supposed to do.

John Paul Stevens:

May I ask?

I’m a little puzzled by the… the questioning.

Doesn’t everyone agree that the predominant motive in all the districts was political?

You agree to that, don’t you?

Paul M. Smith:

Yes, Your Honor.

John Paul Stevens:

And you don’t agree that that necessarily makes it valid, that that’s necessarily a defense to section 2.

Paul M. Smith:

No, I actually don’t agree with that, Your Honor, and you’re right.

John Paul Stevens:

And… and the problem with section… with district 23, under section 2 of the Voting Rights Act, is not the motivation.

It’s the results that have changed.

Isn’t that correct?

Paul M. Smith:

That’s correct, Your Honor.

John Paul Stevens:

And the question under the district court’s opinion is whether the political motive was an adequate defense to what would otherwise be a violation of section 2.

Is that correct?

Paul M. Smith:

That’s correct, Your Honor.

John G. Roberts, Jr.:

Well, isn’t it correct, though, that a result is… focus on results is not sufficient if the challenge is an equal protection one and not a section 2 one?

Paul M. Smith:

Right, but… but our challenge under the Equal Protection Clause–

John G. Roberts, Jr.:

I’m talking about district 25.

Paul M. Smith:

–It’s a little hard to keep all the different arguments straight, but yes.

Our argument is based on intent there, yes, Your Honor.

And… and the argument is that the intent went too far because they had to–

John G. Roberts, Jr.:

Well, that’s why I asked earlier that your… your statement that all of this was done with a political motive… I wondered how that satisfied the equal protection requirement, not the section 2 requirement.

Paul M. Smith:

–Well, I think there are situations in which you have a political motive overarching the entire map, and that… but at the same time, that pushes you to do some things which could violate the Fourteenth Amendment in terms of racial conduct.

And that’s what this… that’s what our argument is–

Anthony M. Kennedy:

–But you don’t think that’s a defense.

It seems to me the State creates the very problem that it claims that it must use race to settle.

Paul M. Smith:

–That’s correct, Your Honor, yes.

We don’t think it’s a defense in this instance.

David H. Souter:

Now, with respect to section 2, what is… what is your position on the relationship between the predominant political motivation and the existence and nonexistence of a section 2 violation?

Paul M. Smith:

Your Honor, if I understand the question, I… if the question is is it permissible to have–

David H. Souter:

Let me put it another way.

If… if you otherwise demonstrate a section 2 violation, is the political motivation a defense?

Paul M. Smith:

–No, Your Honor.

David H. Souter:

No.

Paul M. Smith:

Certainly not.

Now, we have a… an argument about that too, which has to do with the district in the Dallas Fort Worth area, and I think the political defense there doesn’t have anything to do with it.

Now, if… if I could, I think that the whole map… the decision to redraw the whole map violates the Equal Protection Clause for a wholly different reason, which was that it was wholly lacking in any rational, legitimate public purpose.

At the time, there was a lawful map in place that had the right number of districts, and the district court found as fact that the only reason that this law was even considered, let alone passed, was to help one political party gain more seats in the Congress at the expense of the other.

Ruth Bader Ginsburg:

What about having a–

Antonin Scalia:

Wow.

That’s a surprise.

[Laughter]

Ruth Bader Ginsburg:

–What about having a… a plan that was put in place by the legislature instead of a temporary plan put in effect by a court?

Paul M. Smith:

The–

Ruth Bader Ginsburg:

Isn’t there… isn’t it… you… you seem to treat this as a redone redistricting instead of as the very first redistricting done by a legislature.

Paul M. Smith:

–It was the first one done by the legislature because they violated the constitutional intentionally when they had an obligation to… to draw a map 2 years earlier.

Our submission is that the existence of some power that the legislature may have to… to alter the remedial map… and they may well have that power.

We don’t… we don’t question that… doesn’t justify the map.

They still have to, in exercising that power, point to some constitutional basis for which they’re acting.

Antonin Scalia:

Which… but it’s a perfectly constitutional basis to alter the map because we don’t think it allocates the seats in the fashion that our political power enables us to… to provide for.

Legislatures redraw the maps all the time for political reasons.

I mean, to say that this is, you know, something horrible is ridiculous.

You acknowledge that political motivation is fine.

Paul M. Smith:

Your Honor, we–

Antonin Scalia:

Don’t you?

Paul M. Smith:

–we acknowledge that we tolerate political motivation in the context of map drawing when there’s other legitimate public purposes being served, which is to say at the beginning of the decade when they have to redraw the map anyway.

Antonin Scalia:

I see.

Paul M. Smith:

But our position is when it’s purely for partisan motivation, which is… only occurs in mid decade–

Antonin Scalia:

Even… even when the map is so… you… you acknowledge that the map that came out, after this… this realignment of districts, had less of a divergence between the voting strength of the Republican Party and the number of Republican seats than had existed under the previous allocation by the Democrats.

Paul M. Smith:

–That… that is not, we believe, a justification for two reasons, Your Honor.

This notion that you can have compensatory gerrymandering and that that can be your justification… I think it’s wrong as a matter of law because all it amounts to is another way of saying we like… we don’t like the partisan composition of a delegation that the people voted for and we’re going to change it.

Antonin Scalia:

But I’m saying less.

Less.

It… there’s less of a divergence under the new map than there was under the old one.

The only difference is this divergence is in favor of the majority.

Paul M. Smith:

Well, Your Honor, as the district court found… and this is on page 85 of our jurisdictional statement appendix… it wasn’t that there was bias in the map that the court drew.

It was that there were 20 of 32 districts that strongly favored the Republicans in the court drawn map.

It just so happened that the voters in those districts, in six of those Republican leaning districts, happened to like voting for moderate to conservative Democrats who they were comfortable with.

Now, if you tell me… I… I find difficulty… I find it difficult to understand how anyone could say the legislature can, as a matter of… use the machinery of government to decide that those voters should not have that opportunity to do that again, that that was a mistake.

John G. Roberts, Jr.:

Well, counsel, just take it in… in an abstract way.

If you think that the prior system has been gerrymandered by the party in power, are you saying that when that shift in power in the statewide offices changes, that the new party in power cannot redress the gerrymandering of its predecessor?

Paul M. Smith:

My… my answers to that are twofold.

I think as a matter of law that the Court should hold that… if that’s the only justification, you ought to wait until you have other public purposes for redrawing the lines.

But even if that were… even if the Court is going allow that kind of justification for middecade redistricting, it shouldn’t allow it here because it was just factually untrue, as the district court found.

Anthony M. Kennedy:

Well, but let’s get back to the… to the principle without just talking about these… these fact findings.

It… it seems to me very odd for you to be telling us that partisan gerrymandering is… is improper when that’s the sole or substantial, predominant motivation, but then saying that we can’t correct it when it’s happened.

Let’s assume that the 1990 legislative plan was one that was done with… without a wholly partisan intent, but over the years, it… it now freezes in the Democrats or party X to having a much greater advantage than the general registration would give it.

And if it leaves it in for a particularly partisan purpose, why… why can’t it be redone?

Paul M. Smith:

Well, Your Honor, I think that if the Court–

Anthony M. Kennedy:

I just don’t understand that argument.

Paul M. Smith:

–I think it’s a dangerous thing to do, to say to the legislatures of the country you can’t redistrict for partisan gain, but if you can recouch it as partisan compensation, that’s okay.

John G. Roberts, Jr.:

Let me give you another parallel.

Let’s suppose that districts have been gerrymandered for racially discriminatory purposes for years.

Can you take race into account in drawing new districts to remedy that racial discrimination?

Paul M. Smith:

I think if a map is illegal, Your Honor, then… then certainly it is within the power of… of the legislature to–

Stephen G. Breyer:

Oh, well, that’s… but now, in fairness, I think to the red brief argument… you’ve read the red briefs.

Paul M. Smith:

–I have, Your Honor.

Stephen G. Breyer:

Yes.

Stephen G. Breyer:

They are filled with factual information that in their opinion shows that previously the Democrats had gerrymandered this much worse, and that what… this was an effort to create a balance.

That’s what their view is.

Now, I want to know really precisely what is your response to that argument.

Paul M. Smith:

My response is… is… factual response is that by the time we got to 2002, the district court’s drawn map had 20 of 32 districts, which voted overwhelmingly Republican for every other office, in the range of 60 to 70 percent, so that whatever bias was introduced into the map in 1991, if there was one, had been eradicated because all of these Democrats in those districts had become more Republican.

And so the map was not biased.

There was nothing wrong with the lines.

Stephen G. Breyer:

Now, what do I look to in the record to verify what you just said?

Paul M. Smith:

You look to the court’s finding on page 85 which said that 20 of 32 districts favored the Republicans.

And you look at the expert reports filed by both sides at the trial that preceded that finding, and the experts for both sides said that the court drawn map was a proRepublican map that favored the Republicans or, at minimum, was fair, and that with the kind of voting patterns that existed in Texas at the time, one would expect the Republicans to carry 20 districts in most of the elections.

Now, they also said… and… and this is a reason why the State didn’t actually put their expert on the stand… that the map that the legislature had drawn instead was wildly biased in favor of the Republicans in that at 52 percent of the vote, they would still get 22 districts, and at 50 percent of the vote, they’d still get 20 districts.

Antonin Scalia:

Yes, but what percentage did they have?

I… I thought that… you say that they should have gotten 20 districts, and how many districts did the plan give them?

Paul M. Smith:

The plan gave them 20 districts in which they had a strong Republican majority.

Now, what that means is that–

Antonin Scalia:

But you say that’s what they should have had, given… given the voting in the State.

Paul M. Smith:

–I say they… that given that opportunity to have 20 districts elect Congressmen, that’s… that’s all that anybody could reasonably ask for.

That’s the only kind of justification that I can even imagine justifying purely partisan redistricting in middecade.

The fact of the matter is the large majority of the Members of Congress who went to Washington after the 2002 election were elected by Republicans in Republican districts.

That’s what the facts are.

Now, they say, well, vestiges of the past gerrymander are still around, but what does that mean?

The fact is the districts are by now overwhelmingly Republican in the large majority of cases.

Antonin Scalia:

Do you have any… any authority either in the text of the Constitution or in a… a case for the proposition that the only reason a legislature can reapportion its districts is because there’s been a census?

Paul M. Smith:

Our… our position is slightly different.

Antonin Scalia:

Well, but that’s your position when you said middecade redistricting is bad because your… your position is the only reason is the census is… has… has caused there to be less than… than one man/one vote.

Paul M. Smith:

There may be cases where you could do middecade redistricting for neutral, legitimate public purposes.

I submit they’ll be quite rare in… in practice, but there certainly could be.

Our position is you can’t redraw the lines purely for partisan gain, and the case I would point to that I think most strongly speaks to that is Cox v. Larios.

In that case, the district court found that population deviations, sufficiently small that they weren’t even usually requiring justifications, didn’t pass the rational basis test because the only explanation you could offer for those deviations was that they were systematically attempting to help the Democrats at the expense of the Republicans.

David H. Souter:

But… but are you saying–

Anthony M. Kennedy:

Well, if you say that middecennial districting is suspect or subject to some special rules, then it seems to me that you’re… you’re taking away a very important deterrent that works on legislatures when they do decennial districting.

Anthony M. Kennedy:

If you know as a legislature, when you do a decennial districting, that your program is going to be presumptively valid or not subject to partisan gerrymandering, then… then you’re… then you’re liable to overreach.

And it… it seems to me very dangerous for this Court to take away that control mechanism that exists so that legislatures know that there’s a possibility that if they overreach, they can be corrected.

Paul M. Smith:

That… that might be a concern, Your Honor.

I don’t think the… the historical practice supports it because the fact is that while there’s been a fair amount of partisan redistricting, whatever one wants to call it, in the last several decades, there have been precious few, if any, examples of anybody trying to convene the legislature before the next census to try to fix it.

It is extraordinarily rare.

And the reason for it is we… there’s a general tradition we’ve established in this country that whatever happens when those lines get drawn, even if it’s done by a court, you leave it alone until the next time–

John G. Roberts, Jr.:

Well, now, counsel–

Antonin Scalia:

That… that little… even if it’s done by the court.

I like the way you slipped that in.

I mean, even if you had a general rule that you cannot redistrict except after a decennial census, surely there ought to be an exception unless… which… which would read, unless the districting you’re living under was never decreed by the legislature, but was decreed by a court.

And that was the situation here.

Surely, that’s a good reason, even if you adopted your general proposition.

Paul M. Smith:

–The… the reason I… I slipped it in is that in my description of what I think is the current tradition, Your Honor, is we went and looked and found how many court drawn congressional district maps have there been in this country in the last 40 years, and how many times were they redrawn by the legislature.

And the answer is that if you go back between 1970 and 2000, there were 36 of them, and only two of them were redrawn in very small, technical ways, one in Hawaii where they only have two districts and then the one in Texas, which was changed in Dallas.

It’s not–

Antonin Scalia:

Well, I’d say that’s a shame for the democratic process.

I… I don’t like the idea that… that there are a lot of districts out there that have never been drawn by the people, which is what the Constitution envisions.

Paul M. Smith:

–Well, Your Honor, the other thing I think about this… this argument about that we have this… this need to have a legislative plan is you invite an abuse of a different kind.

If you… if you say to the legislature, you can sit on your hands at the time when you have an undisputed constitutional obligation to redraw the lines at the beginning of… of the decade, as long… and you’ll know that what that will do is it will give you the right to come along anytime you feel like it when you get your political ducks–

John G. Roberts, Jr.:

–Is that the reason these lines were not redrawn at the beginning of the decade, because the majority party sat on its hands?

Paul M. Smith:

–That’s absolutely what happened here, Your Honor.

They didn’t make any serious efforts to redo it.

The only person–

Ruth Bader Ginsburg:

I thought there was–

John G. Roberts, Jr.:

I thought–

Ruth Bader Ginsburg:

–I thought there… the houses were divided.

One party, one… had one house; the other, the other.

And so they were at loggerheads and they–

Paul M. Smith:

–The reality is… and the record… there was discussion of this at trial by Senator Ratliffe… there was not very serious effort to do this at the time.

The only person who can call a special session… and it does take special sessions in Texas to get these lines drawn historically… is the Governor.

Paul M. Smith:

He declined to call any special sessions when they… when they had a divided legislature.

Of course, 2 years later, when they had unilateral control of the whole legislature, we were calling special sessions like mad to get the job done.

So–

Ruth Bader Ginsburg:

–But the court… even from the court’s perspective, was it the same three judges that did the… that did the plan, the court ordered plan?

And I thought that the… the judge who presided told us in his latest opinion that they never anticipated that as being a permanent plan, and indeed, they tried to stay as close as they could to the then existing plan.

Paul M. Smith:

–Well, Your Honor, there was some language to that effect.

If you go back, though, and read the opinion that the… the judges wrote in… in 2001 when they actually were describing in meticulous detail their process of drawing the map, he specifically said then that they didn’t follow the old lines, that they used neutral criteria like compactness and following political subdivisions, and that they… this was not an effort to… to come up with a map that matched the old map.

The only thing that I think really fairly can be said about the court drawn map is it did give a separate district to all of the incumbents, which is what you’d expect a court to do.

They’re not going to sit around and decide mutual incumbents ought to have to run against each other.

And so it did have that effect, I think, of allowing some incumbency advantage to continue on.

But it is… it is not true that the… that the court tried to keep some pattern in the map beyond that.

The court specifically said otherwise in 2001 when it drew the map, and then it said in–

Anthony M. Kennedy:

Well, we’re not… we’re not trying the court for a bad intent.

We’re looking at the effect of what it’s done, and if the effect of what it’s done is to leave in place something that’s slanted based on… on statewide registration in favor of the Democrats, then… then, it seems to me, there’s… there’s a ground for the new legislature to act.

And… and one… one reason legislatures may not have redrawn plans often is because they always protect incumbents.

Paul M. Smith:

–But, Your Honor, the facts are that it wasn’t slanted.

The facts are the experts both testified from both sides at the trial that the map was fair to both parties and that it contained 20 Republican districts.

And that’s what the court found too in 2004.

Then we have an appeal and we go back down on remand, and suddenly we’re starting to hear about vestiges of gerrymanders.

But the court didn’t withdraw its finding of fact that there were 20 Republican districts in its own map.

That’s true.

I mean, look at the way the votes were cast in 2002.

There were 20 Republican districts in the map.

The six districts that these Democrats represented who they… who they… the moderate Democrats that they were targeting… the average vote for statewide office in that district was something like 65 percent… 55 to 65 percent for the Republican candidate.

I… I looked, for example, yesterday at the… there was an election for the Attorney General in Texas in 2002.

It was an open seat, two… two nonincumbents running against each other, two people from Austin.

And the average vote for the Republican Attorney General candidate, Mr. Cruz’s boss, in that election in those six districts was 62 percent for him and 38 percent for the… the Democrat.

So these were not Democratic districts.

This was not a gerrymander in any rational use of the word.

David H. Souter:

–Mr. Smith, may… may I ask you to comment on… on one problem that I have with your position that has nothing whatever to do with the… with the fact that there was a… a judicial redrawing in the first place here?

David H. Souter:

If I understand your argument, you’re saying that a… a districting that takes place prior to the report of a new decennial census, which is done for purely political reasons, maximizing political advantage, is invalid for that reason, I guess under the Equal Protection Clause.

Paul M. Smith:

Yes, Your Honor.

David H. Souter:

And yet, I take it it’s also your position that if the districting is done in response to the new decennial figures so that there’s a need to do something to conform to one person/one vote, that there is nothing illegitimate about political motivation, at least up to some point–

Paul M. Smith:

Right.

David H. Souter:

–in… in drawing the lines at that time.

How can we in principle say that the motivation which is legitimate in 1991 is somehow constitutionally illegitimate and dispositive in 1995?

Paul M. Smith:

It seems to me that one is not saying that it’s legitimate in 1991.

One is saying that in redistricting, which is a messy process, we tolerate a lot of mixed motives.

We tolerate some consideration of race.

We… we ask for some consideration of race.

We tolerate some consideration of politics.

But that is dramatically different under the rational basis test from a law that is passed solely for political reasons because it doesn’t have the other kinds of interests that are being promoted and protected in… at the beginning of the decade.

And so there’s a drastic difference, it seems to me, under the rational basis analysis between a law which serves a lot of purposes, some governmental and public, some of them private, and… and not legitimate bases for governmental action.

Anthony M. Kennedy:

But you’re making the assumption that a mid decennial districting is not interested in compactness, it’s not interested in counties, it’s not interested in keeping a university within one… within one district.

That’s… that’s just simply not true.

Paul M. Smith:

Well, Your Honor, the… the fact here is that the only reason they decided to change was for partisanship.

That’s what the district court found as a matter of fact.

Now, the other legal requirements of… of the map that are… give you the… the legitimate bases for redrawing the lines at the beginning of the decade were already satisfied because such a map already existed.

And as this Court said in… in Growe, the… the court drawn map, in some sense, changes the status quo.

You have to say what are the additional governmental interests that are… that exist and justify going through this process again and changing that map, which already is fully lawful, has been affirmed by this… this Court as lawful.

David H. Souter:

But your answer, both to the Justice Kennedy and… and to me, ultimately comes down, I guess, to saying that political partisanship alone, undiluted, unadulterated by any other motivations, is per se wrong.

Paul M. Smith:

It’s… it’s not a basis that can justify public conduct, State action.

If… if it was, then it would be perfectly okay, I suppose, to have government subsidies for some parties and not for others, or to have… let some people use public facilities and not others.

David H. Souter:

All right.

Let’s… let’s assume that the… that the partisans who do the mid term redistricting candidly say, we are doing this for partisan reasons, but we recognize limits on what we can do.

And the limits are the traditional ones, compactness, et cetera.

Let us assume that there is, in fact, evidence of a good faith effort at least to conform to those districting principles.

Under those circumstances, is the midterm redistricting equally illegitimate?

Paul M. Smith:

The question I think you need to pose is what is the justification for doing anything, not… not for any particular line–

David H. Souter:

Well, that may be, but how about the question that I posed?

David H. Souter:

[Laughter]

Paul M. Smith:

–Well, it seems to me, Your Honor, that if… if the… I was trying to get to the answer.

I really was.

David H. Souter:

Okay.

Paul M. Smith:

It seems to me that if… if you can… if they can legitimately and… and plausibly say, we are… we… we decided to redraw the old map because it was so departed… it’s so departed from these important principles and values like compactness and respect for subdivision… so if that’s our reason–

David H. Souter:

No.

I’m… in a way, I’m making it easy for you.

I’m saying, look, they’re… they’re saying we think we can get a better deal for our party, but we are respecting these districting principles.

Equally illegitimate?

Paul M. Smith:

–I think so, Your Honor.

If all they’re saying is we… we didn’t go as crazy as we could have, but the only reason we did anything is because we want more seats, but we could have done even worse, that seems to me not a… not a justification for action, but merely a… a decision not to… to be more political than purely political.

David H. Souter:

The difficulty I have with that is that it is… it is impossible… I think you would agree.

It is impossible… and may, indeed… let’s assume undesirable… to take partisanship out of a political process.

And… and if partisanship pure and simple, even though subject to the discipline of districting principles, is… is illegitimate, then I don’t see why that does not imply the illegitimacy of any districting at any time.

Paul M. Smith:

Well, Your Honor, our… our submission is it makes a difference when it’s pure rather than merely one of the many things that is going on.

If I could take a few minutes just to talk about our section 2 argument with respect to the African American–

John Paul Stevens:

Before you do that, may I just ask one short question?

Paul M. Smith:

–Sure.

John Paul Stevens:

You’ve mainly attacked the plan as a whole in your briefs.

And I’m wondering.

I often look at particular districts, as you may know.

Are there residents of districts 23, district 24 that are plaintiffs?

Paul M. Smith:

We have plaintiffs in every district, I think, on the whole map, certainly any district that would raise a concern under–

John Paul Stevens:

But they’re not identified easily–

Paul M. Smith:

–Yes, Your Honor, but… but I think that there… there was a… in the complaint there’s allegations about where each of these people live, and I think that… that we were very careful to make sure anything we were talking about specifically, such as, for example, district 24 in Dallas, we had… we had plaintiffs.

The… the list is quite long.

So there is standing, I think, for all of those arguments.

Now, on… on district 24, our submission is that under section 2, there ought to be protection for districts where the minority group does not have an absolute majority but where the evidence shows that it can effectively elect a candidate of its choice in… in concert with a… a predictable group of Anglo or sometimes Hispanic crossover voters, and that we think on the facts of this case, this was such a district because the African Americans in every case were a large majority of the voters in the Democratic primary and the Democratic nominee, in virtually every case, is elected in this district regardless of what… what race that person may be.

John G. Roberts, Jr.:

–What was the percentage of the African American voters in the district as a whole?

Paul M. Smith:

Citizen voting age population is 26 percent, Your Honor.

Paul M. Smith:

The–

Anthony M. Kennedy:

But… but if… if your… if your test is that section 2 ought to be opened up to any racial group that could influence an… an election, I don’t see the limits on your principle.

Paul M. Smith:

–That’s not our… our test, Your Honor.

Our test is they… they have to control the election, and–

John G. Roberts, Jr.:

So that if you had a situation where it’s 40 percent one group, 40 percent another group, and 20 percent where the 20 percent controlled who was elected by siding with one group or the other group, then you would say that that was an influence district for that small… the smallest group in the district?

Paul M. Smith:

–Your Honor, I don’t think that would work because I think the way we… we view what you have… you… the group has to be able to decide who’s going to be on the ballot, and then you want to see whether there’s enough crossover voting to–

Anthony M. Kennedy:

No.

Suppose there’s a primary where it works that they can get on the ballot.

Suppose we’re looking at the general election.

Paul M. Smith:

–If… if that group gets to decide who–

Anthony M. Kennedy:

Accept the hypothetical.

Paul M. Smith:

–Yes.

If that group has… has picked who gets on the ballot and their choice always wins the general election, I think that’s not an influence district.

That’s… that’s–

Stephen G. Breyer:

What is the answer?

I mean, you’ve read the briefs.

The obvious reply to that is there are many, many districts in the United States where African American voters have a big influence on the Democratic primary.

Paul M. Smith:

–Yes.

Stephen G. Breyer:

A lot.

And there are a lot where the Democrat wins.

So if your principle is accepted, says the other side, that means that any district that’s drawn here to favor the Democrats can’t be changed, but all the ones that favor the Republicans can be changed.

Now, if that argument is right, it’s hard for me to accept, but that’s a neutral principle of constitutional law.

So I want to see what… what your response is to that.

Paul M. Smith:

I think there are a number of limiting principles that apply here that… that suggest we’re not just coming in here and asking for the Voting Rights Act to become the… the proDemocratic act–

Stephen G. Breyer:

Obviously you’re not.

That’s why I would like–

Paul M. Smith:

–And… and–

Stephen G. Breyer:

–you to say what specifically the answer to that argument is.

Paul M. Smith:

–The… the… first of all, there are not that many districts in which African Americans control the Democratic primary and then have predictable ability to see that person elected in… in the general election.

Where that is the truth, they then have representation of the kind that I think is valuable under section 2 of the Voting Rights Act.

Paul M. Smith:

Now, of course, there are going to be limits.

One of them is De Grandy.

They… they only have rights up to a proportional level of their proportion of the population.

And by not respecting… not protecting this kind of district, what you do is, in fact, condemn the people, the African Americans in Texas, to less than proportional representation because there is no other way to give them a district in which they have any possibility of… of participation in the process and electing a candidate of their choice.

This is the only place in Texas where it can be done.

They’re… they are more than an eighth of the population, citizen voting age population, and they’re only getting 3 districts out of 32 because the State of Texas chose to eliminate this district.

David H. Souter:

This would be at… least your criterion, whether we accept it or not, would… would be more administrable if we’re dealing with the elimination of a district than if we were dealing with the question of creating one.

Do you take the position that the NAAC brief does that there really should be distinct criteria, depending on whether you’re asking to create something new or preserve something which has been in place?

Paul M. Smith:

I… I perhaps more faith in the ability of courts to predict the future than… than that brief does, but… but I certainly can imagine a rule where the court says, we’re going to require that there be experience, not simply predictions by experts, in order to create a district below the majority level.

That would be an administrable rule which would give… at least give some protection in situations of the kind that we… we face here.

If I could reserve the balance of my time, Your Honor.

John G. Roberts, Jr.:

Thank you, Mr. Smith.

Ms. Perales.

Nina Perales:

Mr. Chief Justice, and may it please the Court:

I will begin by arguing that Texas violated the Equal Protection Clause by making excessive use of race in its changes to district 23.

After removing 100,000 Latinos from district 23, the State used race to craft a razor-thin Latino majority.

Abandoning political data, the State used census block redistricting to achieve 50.9 percent Latino voting age population.

Anthony M. Kennedy:

In 23.

Nina Perales:

In district 23, Your Honor.

Thus, the State used race, as we contend, not only to protect an incumbent, but to give the false impression of Latino support for that incumbent.

Anthony M. Kennedy:

Focus for a minute just on the… what we can call the removal, the drawing of the lines to exclude some Latino voters.

Just focus on that, not the later justification.

The district court found that this was for political reasons, not racial reasons, even though it was a largely racial group that was removed.

Do you attack that finding as clearly erroneous?

Nina Perales:

Yes, Justice Kennedy, we do attack that finding as clearly erroneous.

This case is really the flip side of Easley v. Cromartie because in this case Latino voters supported Republican and Democratic candidates.

As the State asserts vigorously, Latino voters voted significantly and substantially–

John Paul Stevens:

May I interrupt you just with one… one question on district 23?

Regardless of what the intent of the parties was, I’m just wondering why is the district court’s finding on intent relevant to the section 2 issue when the test under section 2 is results?

Nina Perales:

–Yes, Justice Stevens.

Nina Perales:

The… the test under section 2 is results, and that goes–

John Paul Stevens:

So that even if the intent was primarily political, it would still violate section 2.

Nina Perales:

–Yes, and we argue in our brief exactly that.

But we hope today to focus in oral argument at least first on the Fourteenth Amendment violation, which is the intentional use of race both as intentional vote dilution, as well as the analytically distinct claim under Shaw v. Miller.

With respect to the question whether Latino voters voted with such a high correlation… and that’s the phrase used from Easley v. Cromartie… whether there was such a high correlation between Latino voters and Democratic voters, particularly in district 23, to justify removing them because of their race and then saying that they were Democrats, that nexus simply doesn’t exist under the facts of this case.

Besides the State’s arguments and… and the many assertions that it makes with respect to Latino voting support for Republican candidates and especially Congressman Bonilla, we also have Latino voting for Bonilla that rises and falls.

If Latinos were close adherents to the Democratic ticket, you wouldn’t see fluctuating support for Congressman Bonilla.

You would see low and steady support if Latinos were Democratic voters.

Instead, we see something very different, which is Congressman Bonilla gaining support in the Latino community within his district up until 1996 where the peak is 30 percent Latino support and then a steady decline over a series of elections, ending in 2002 with only 8 percent, as the district court found, Latino support for Congressman Bonilla.

This is not–

John G. Roberts, Jr.:

Does that undermine the assumption that there’s… they’re voting as a bloc?

30 percent of the group is voting for one candidate.

Is that sufficient to establish a voting bloc?

Nina Perales:

–Yes, Mr. Chief Justice.

Under section 2’s question with respect to racially polarized voting, we would contend that voting as a bloc 70 percent or subsequently higher than 70 percent to 90-92 percent is enough under section 2 to satisfy the test whether Latinos are voting cohesively.

Congressman Bonilla has never been able to garner a majority of Latino support, not more than 30 percent.

But with respect to a somewhat different question, which is whether partisanship and race correlate so highly in district 23, that you can remove Latinos and in the hopes of being able to take the Democratic index down, we say that that kind of voting is not tight enough.

In Easley v. Cromartie, of course, the Court found that African American voters voted 95 to 97 percent for Democratic candidates across elections.

Antonin Scalia:

I don’t understand.

Does this go to motive or result?

I mean, what if I’m… I’m stupid and I think there’s the correlation and I remove it for that reason?

I’m not removing them for racial reasons.

I’m removing them because I want to remove Democrats.

And you’re saying that if I have made a mistake about how solidly they vote Democratic, that turns my validly non-racial decision into a racial decision?

Nina Perales:

This Court made clear in Bush v. Vera that the State may not make exactly the kind of assumption, Justice Scalia, that you described.

The… the Court held in Bush v. Vera that you cannot use race as a proxy for partisanship.

You cannot make that assumption.

So if the State–

Anthony M. Kennedy:

Well, but… but that was because it was deliberate in that case, and that’s not the hypothetical that Justice Scalia has posed.

Nina Perales:

–In this case, we contend that the State removed Latino voters from district 23 because they were Latino and that–

Anthony M. Kennedy:

But that’s not the hypothetical that was posed to you by the Justice.

Nina Perales:

–That if the State–

Antonin Scalia:

I’m assuming–

Anthony M. Kennedy:

As I… as I understood it.

Antonin Scalia:

–they’re removing them because they’re Democrats, but I’m wrong about that.

Nina Perales:

–Then it is still wrong to take out 100,000 Latinos using that assumption.

I mean, the… the act that was done was to slice through the most Latino county in the United States, 95 percent Latino.

The people were not removed anywhere else.

Clearly, the State removed Latinos from this district and then said, well, we did it because we were aiming for Democrats.

David H. Souter:

But is it… is it wrong under the Equal Protection Clause or is it wrong under section 2?

Nina Perales:

It’s wrong under both, we would argue in our brief.

David H. Souter:

No.

But on Justice… Justice Scalia’s hypothesis, there is no intention to remove Latinos as Latinos.

And maybe the answer to that is if you’re removing Latinos, it does not matter whether your motivation is invidious or not.

I don’t know whether that’s your position.

But it… if that’s not your position, then I think there’s got to be a difference between the… the Equal Protection Clause analysis and the section 2 analysis.

Nina Perales:

We contend that in this case the removal is invidious because it was Latinos that were identified and taken out and then… for incumbency protection, similar to what–

David H. Souter:

Well, is that because there were no other Democrats who could have been identified and taken out?

Nina Perales:

–There’s no testimony that the State considered ever taking out anybody else but the people in Webb County.

Antonin Scalia:

I thought you said that the county was 92 percent Latino or something like that.

Nina Perales:

Yes, Justice Scalia.

Antonin Scalia:

Well, how can you… how can you possibly take out any substantial number of Democrats without taking out Latinos?

Nina Perales:

That’s exactly our point, that the State removed–

Antonin Scalia:

Well, that’s my point too.

[Laughter]

Nina Perales:

–Moving to what I… the point–

John G. Roberts, Jr.:

Can I… can I… I don’t understand… I think your argument is at cross purposes.

I mean, the one point… and you’re making the point that the Democrats do not vote overwhelmingly for the Democratic candidate.

They voted as much as 30 percent for Bonilla.

But the Voting Rights Act is concerned with whether or not a group voting ethnically as a bloc can vote for candidates of its choice.

John G. Roberts, Jr.:

Well, if they’re 30/70, it’s not… it’s hard to think of them as having a clear candidate of choice.

So what does it matter whether they’re in or out?

Nina Perales:

–I agree, Mr. Chief Justice, but under the facts of this case, what had happened by 2002 was something very, very different.

After 1996, when Mr. Bonilla garnered the high of 30 percent among Latino voters, not… not in his district but among that group–

John G. Roberts, Jr.:

Yes, the percentage goes up, the percentage goes down.

Nina Perales:

–Yes.

John G. Roberts, Jr.:

It depends on who’s running against him.

At the low point, there was a popular Hispanic candidate running against him in some of those elections.

But it seems to me that the predicate for coverage under the Voting Rights Act that a particular group is being denied the opportunity to elect a candidate of its choice doesn’t even come into play if you’re right that the… the vote is split over time, depending on the circumstances in a particular election.

Nina Perales:

No, Mr. Chief Justice, because this is bloc voting at rates of 70 percent or higher, and after 1996, that 70 percent bloc went to 80 percent and then it went to 90 percent.

And as the voters became increasingly disenchanted, I suppose, with the incumbent, that decline was steady.

It didn’t fluctuate up and down.

It was going down and it went down even farther.

Mr. Bonilla was always opposed by a Latino candidate in each of his general elections that he’s had since he’s been elected.

So that hasn’t really been a factor for the voters.

But as they became more cohesive and they reached 55 percent of the… the registration in the district, they were poised to elect their candidate of choice.

John G. Roberts, Jr.:

Well, then… well, but then… and this is why I say it’s an argument at cross purposes.

If you’re right about that, then the assumption that the Hispanic voters are going to be voting Democratic is not one that was unfounded, which I thought was your… your first point.

Nina Perales:

We would contend, Mr. Chief Justice, that voting against Congressman Bonilla doesn’t make you a Democrat.

And it, in fact, highlights that the State was seeking voters, Latino voters, who had withdrawn their support for Congressman Bonilla as opposed to just seeking Democrats because you can vote against Congressman Bonilla and still vote Republican in other races, as Latinos did.

And you could have been a former supporter of Congressman Bonilla.

It doesn’t make you a Democrat in that sense that race and partisanship are completely interchangeable so that the State can scoop in and grab 100,000 people of the same race and then say later, well, we were taking out Democrats.

John G. Roberts, Jr.:

It’s not just the State that’s saying it, though.

You have a district court finding that ethnicity was not the predominant factor, that politics was the predominant factor.

Maybe… as Justice Scalia suggests, maybe they were right, maybe they were wrong, but the point was that it was being done for political purposes not for ethnic purposes.

Nina Perales:

We agree, Mr. Chief Justice, that the end goal was political in the sense of incumbency protection, but a State may not use race as the means to the end of protecting an incumbent.

What happened here was that the only group of voters who had shifted their support away from Congressman Bonilla were Latino.

Democrats had never voted for Congressman Bonilla.

The problem inside this district was not a problem of Democratic voters.

It was Latino voters who had supported him and withdrawn.

Anthony M. Kennedy:

Well, can… can the State use race as the means to an end of electing a new candidate that the race wants?

And what should be the difference?

Nina Perales:

It should turn on the candidate of choice–

Anthony M. Kennedy:

I mean, it sounds like you’re going to say race cannot be used as this basis, but how can race be used not to protect an incumbent but to allow the group to choose the representative of its choice and then reelect him every year?

Nina Perales:

–Well, district 23 was created by the Balderas court pursuant to a finding under section 2.

So it was a remedial district under section 2 when it was created in 2001.

And in 2002, when it was used as a remedial district, it… it elected a Latino-preferred candidate in 13 out of 15 elections, according to the State’s expert, and came very close to unseating Congressman Bonilla.

The State’s response was essentially to punish Latino voters for voting against Congressman Bonilla by slicing them out of the district.

So the State used race to achieve its end of… of incumbency protection.

Samuel A. Alito, Jr.:

Well, if… if the objective is just to get rid of the voters who vote against Congressman Bonilla, why is that an equal protection violation?

It’s not done for… for race or ethnicity, but just to get rid of voters who vote against him.

Nina Perales:

Because the group of voters who had withdrawn their support were Latino voters.

The district court discusses the… the interrelationship of these phenomenon in its opinion at jurisdictional statement appendix 128 when it says, the State acted to shore up the incumbency of Congressman Bonilla, and the next sentence is, his support among Latino voters had dropped to 8 percent.

It was, in fact, the… the voting behavior of Latinos as opposed to anybody else who had caused the incumbency crisis, and it was Latinos as Latinos who were removed from the district.

At the same time, however, the redistricters sat down and figured out exactly how many Latinos they wanted to leave inside this district to achieve a bare, razor-thin Latino voting age majority population, and that was done to give the impression of Latino support for the incumbent.

The chief redistricter–

John G. Roberts, Jr.:

Is that… and what relevance does that have?

What provision of the Constitution prevents you from leaving a majority of one group in a district to create the impression that the district supports a particular candidate?

Nina Perales:

–The Fourteenth Amendment, Mr. Chief Justice–

John G. Roberts, Jr.:

That’s what the Fourteenth Amendment was passed for, to avoid creating the impression that a particular group supports a particular candidate?

Nina Perales:

–This Court has held that race may not be used for its own sake in redistricting, and here race was used most gratuitously and cynically to make sure that the State could say a majority of Latinos in district 23 support Congressman Bonilla.

The chief redistricter in the House, Representative Phil King, testified… and this is express motivation… that they sought to maintain a 50 percent Latino voting age majority in the district while making it safer for Congressman Bonilla, which involved pulling 100,000 Latinos out.

Similarly–

John G. Roberts, Jr.:

And how many… what percentage would they have shifted from making it look like a Hispanic opportunity district with about 51 percent to when it would actually be one?

What percentage does it shift from being looking like one to being one, both above a majority?

Nina Perales:

–Oh, yes, Mr. Chief Justice, but… but quite a distance.

The… as the Balderas court–

John G. Roberts, Jr.:

But what’s the number?

Nina Perales:

–The voting age population for district 23, as created by the Balderas court, Your Honor, was a great deal higher.

It was 63 percent, and that was what was able to give the 55 percent voter registration–

John G. Roberts, Jr.:

Is that your number?

It has to… anything short of 63, it’s just looking like it?

I mean, really, you’re asking us to draw a very fine line between a… in each case a majority Hispanic voting age district, but in one case, it’s a constitutional violation and in the other case, it’s… it’s required by the Voting Rights Act.

So what is the magic number between 51 and 63?

Nina Perales:

–We would argue that race cannot be used for its own sake, that if you’re going to put people together into a Latino majority district, it should be to meet a purpose, for example, to create an opportunity district under the Voting Rights Act.

John G. Roberts, Jr.:

What’s the number?

Nina Perales:

That would be… well, depending on how many people it takes in that particular district to elect a candidate of choice.

In this case it was 63 percent.

It might be a different number for a different district.

But your–

John G. Roberts, Jr.:

So if this district were drawn with 60 percent, you would say that’s just to make it look like a Hispanic district?

Nina Perales:

–No, Your Honor.

John G. Roberts, Jr.:

No.

So what’s the number?

It’s… it’s somewhat more than 51 percent because you’re saying that’s a constitutional violation, and I want to know how many more it takes before it becomes what’s required under the Voting Rights Act.

Nina Perales:

Maybe I can answer the question by going around to the court’s finding, which was that district 23 was created not as a Latino opportunity district, that it would not operate to offer the opportunity to elect a Latino for a candidate.

And the… and the district court found this on page 145-146 of our appendix to the jurisdictional statement.

And in that same paragraph, they said, but it has a political nuance that Congressman Bonilla will be elected from a Latino majority district.

John G. Roberts, Jr.:

I’m just trying to get the number.

If you’re asking us to rule on a constitutional violation, I’m asking to find out what the number is that changes it from a political nuance to a Hispanic opportunity.

Nina Perales:

That number would be the number that shows Latinos have the opportunity to elect their candidate of choice.

It will be a different number for each district, but it would always be in the evidence of the case because the analysis is done on different districts.

Here, all of the experts agreed that district 23 had been created so that it would not elect a Latino candidate of choice, but that the State testified that it wanted to keep it voting age majority, that they did so because they wanted Henry Bonilla to run from a Latino majority district.

The State abandoned traditional redistricting criteria to do so, redistricting at the bloc level and splitting 6 election precincts out of 51 in Webb County, which is wholly unnecessary even to equalize population in either district.

There is no reason for the State–

John G. Roberts, Jr.:

Would it have been better–

Nina Perales:

–to have done that.

John G. Roberts, Jr.:

–would it have been better in your view if they had excluded more Hispanics so it didn’t look like a Hispanic opportunity district?

Nina Perales:

Well, the State certainly could have moved Webb County whole out of the district.

It depends on how they would have done the overall–

John G. Roberts, Jr.:

And… and that would have been preferable.

It would have been preferable to you if it was, say, 45 percent Hispanic rather than 50.8, or whatever it was.

Nina Perales:

–Mr. Chief Justice, it… it just doesn’t hang on a particular number.

It… it turns on whether or not the district is an opportunity district, and if it isn’t an opportunity district, why is the State sitting down and using race for its own sake to be able to say we got 50.9 percent Latino voting age population?

We managed to zigzag that boundary through the streets and… and through the neighborhoods of the City of Laredo so that we could say it was a Latino majority district.

David H. Souter:

Well, isn’t… isn’t one answer that we were doing it, number one, because we wanted to protect the incumbent and we also had to use race to avoid a section 5 problem and a section 2 claim?

You’ve got to use race for those purposes.

Nina Perales:

Well, under section 5, the State went ahead and created district 25 as the offset because it seemed fairly clear that district 23 had been dismantled to such a degree it was no longer going to be able to be used for section 5 purposes.

Similarly, under section 2, the State saw that it was terribly vulnerable and so again tried to make an offset district which caused its own problems.

So the use of race here to achieve the 50.9 percent voting age majority was not to satisfy the Voting Rights Act, either section 5 or section 2.

David H. Souter:

So you could have used that reasoning to create a district in the first place, but you cannot use that reasoning to create an offset district in the second place at the same time that you’re trying to protect an incumbent.

I think that’s what you’re saying.

Nina Perales:

To create a district with 50.9 percent voting age population here in this part of the State, it would be obvious that you weren’t going to yield an opportunity district.

David H. Souter:

In other words, you’re saying that would be implausible as a section 2/section 5 justification, regardless of when you’re doing it.

Is that–

Nina Perales:

Yes.

David H. Souter:

–Yes.

Nina Perales:

Yes, most certainly.

This case represents an egregious use of race in redistricting.

Without the Equal Protection Clause to protect minority voters, States will have free rein to use race to manipulate not only electoral outcomes, as it did here, but also the complexion of a district in order to be able to express some kind of symbolic–

Antonin Scalia:

But, of course, you want them to use race to manipulate outcomes.

It’s just sometimes.

John G. Roberts, Jr.:

You may answer.

Nina Perales:

–Thank you, Mr. Chief Justice.

To serve a compelling State interest, to comply with the Voting Rights Act, yes, Justice Scalia, it is appropriate.

It was not appropriate here.

John G. Roberts, Jr.:

Thank you, Ms. Perales.

Mr. Cruz.

R. Ted Cruz:

Mr. Chief Justice, and may it please the Court:

The central issue in resolving these various challenges to mid-decade redistricting is determining which institution is constitutionally vested with the primary responsibility for redistricting.

R. Ted Cruz:

Elected legislatures or Federal courts.

In Texas, for the first time in 12 years, the legislature acted to adopt a congressional redistricting map.

That map, in turn, replaced one of the most profoundly anti-majoritarian congressional maps in the country with a map that reflects the demonstrated preferences–

John Paul Stevens:

But may I ask, General Cruz, are you talking about replacing the court-ordered map or the preceding Democrat gerrymandered map?

R. Ted Cruz:

–The legislature replaced the court-ordered map, but the court found as a factual matter that the court-ordered map, in the court’s words, quote, perpetuated the 1991 Democratic Party gerrymander, and that was the court characterizing its own map with the same judges.

John Paul Stevens:

Yes, but you don’t think it really perpetuated the same degree of gerrymandering that was present in the earlier map, do you?

R. Ted Cruz:

Well, the court’s map, under the–

John Paul Stevens:

I’m asking you.

R. Ted Cruz:

–Yes.

John Paul Stevens:

Do you think it did?

Do you think–

R. Ted Cruz:

Yes, we do.

John Paul Stevens:

–the court-ordered map is just as bad as the Democratic map?

R. Ted Cruz:

The district court found that it had blunted some of the most egregious lines, but under the district court’s map, 28 of 28 incumbents were reelected.

So the identical outcome was yielded.

John Paul Stevens:

But is your opponent correct in saying that in six of those districts, the Democrat won even though the district was majority Republican?

R. Ted Cruz:

That… that is correct, and then the district court–

John Paul Stevens:

Does that sound like a gerrymander?

R. Ted Cruz:

–It… it depends.

The districts were drawn such that the Democrats who were running were incumbency.

And the reality of congressional elections is that incumbency is a tremendous advantage, and in the face of incumbency–

Antonin Scalia:

No.

I was going to say I… if I were gerrymandering, I would absolutely want to leave majority other party districts in which the people from the other party were voting for a candidate from my party with some regularity.

I’d want to do that.

That’s exactly what I’d want a gerrymander to do.

R. Ted Cruz:

–And that’s exactly right.

These districts were drawn to protect incumbents.

It is notable that if one looks on a national level, the 2001 map drawn by the court led to the most anti-majoritarian results of any of the 50 States in the Union.

There were only two other States with more than five Members of Congress that saw a minority of voters electing a majority of the delegation, and those were Illinois and Tennessee.

In each of those, 49 percent in Illinois elected one extra seat to Congress; in Tennessee, 48 percent.

R. Ted Cruz:

In Texas, by contrast, 45 percent of the two-party vote and 41 percent of the overall State vote elected not just a one-seat majority, but a two-seat majority.

So on any national level, the prior map was the most profoundly anti-majoritarian.

Now, this Court resolved in… in Vieth that majoritarianism is not a constitutional mandate, but that being said, as Mr. Smith characterized in Vieth, he characterized the fundamental principle of democracy… and this is Mr. Smith’s characterization… is the principle that a majority can elect a majority of the delegation.

And as this Court concluded in Gaffney v. Cummings, achieving political fairness, achieving a rough sense of proportionality, such that a majority can elect a majority of the delegation, is not only legitimate, it is salutary.

It is–

Stephen G. Breyer:

All right.

So I… I wrote an opinion, as you know, where I was agreeing with you on that, and I wonder if… if then the thing to do would be to say, yes, indeed, a legislature can redraw a map to prevent a minority of the voters electing a majority of the congressional delegation.

But when they do that, there has to be some reasonable assurance that it works the same way for both parties.

I mean as a standard.

I thought my standard worked before.

I guess there wasn’t that much agreement, but… but–

[Laughter]

–from the point of view of… of taking that standard, which you agree with, I’m glad to say, apparently, and modifying it to be sure it works out the same way for both.

R. Ted Cruz:

–Justice Breyer, under the standard articulated in your opinion in Vieth, in our judgment the result would be a straightforward affirmance here because the map that was adopted is precisely what was advocated in Vieth of a majority of the population electing a majority of the delegation.

That being said, the question here is not whether that is required.

Indeed, it is ironic.

In 1992 the Republicans in Texas brought a political gerrymandering challenge to the predecessor map here, and that map was rejected… that challenge was rejected under Bandemer, and the district court in 1992 told the Republican plaintiffs… said even though this may be tilted against you, there is nothing to prevent you, over the ensuing decade, from running candidates, from building support, and from eventually taking control by electing your candidates to the machinery of government and adopting a map you deem fair.

That… those words of the district court prove prescient because that is precisely what happened over the ensuing decade, and it is equally true today.

There is nothing in Texas to prevent the Democratic Party from doing the exact same thing over the ensuing decade if they can command a majority of votes at the polls.

John Paul Stevens:

May I ask you this question?

Assume you’re correct that as a whole the plan is well-justified and makes gains and so forth.

Does that necessarily mean that every district within the… the plan is immune from constitutional attack?

R. Ted Cruz:

Of course, it does not, and there are a variety of district-specific attacks.

The plaintiffs have framed their partisan gerrymandering attack as one that focuses on the map as a whole.

And… and the–

John Paul Stevens:

I understand.

R. Ted Cruz:

–and the reason for that is that in the Vieth decision, Justice Kennedy’s concurrence was the controlling concurrence, and it set out a standard for subsequent partisan gerrymandering cases that litigants should find a, quote, substantive definition of fairness in districting that commands general assent.

Rather than attempt to meet that challenge, the plaintiffs have refused to discuss effects at all, and that’s not by accident because any assessment of effects would yield that the current plan is more fair than the predecessor.

John Paul Stevens:

And the… the next question I wanted to ask you is that if it is possible there can be a single-district challenge, what is the justification for the… the cracking of district 24, which was a majority Democratic district before, into five different districts, none of which would elect a Democrat.

R. Ted Cruz:

The legislature made a policy judgment, and under the decision–

John Paul Stevens:

But is it… is it defended by anything other than political motivation?

R. Ted Cruz:

–There were a host of–

John Paul Stevens:

I mean in district 24.

R. Ted Cruz:

–There were a host of judgments about the multiple districts that district 24 was broken into, and the district court found, for example, that Representative Grusendorf wanted the City of Arlington contained in one single district.

There were a whole host of specific motivations about the surrounding districts that were drawn.

Indeed, the district court said on remand that appellants’ argument ignores, as it must, the reality that the lines are infused with the myriad mixtures of local politics and accommodations, often inconsistent with overall objectives of partisan gains.

That was the district court’s finding on remand, that there are a host of decisions here that have nothing to do with partisan gain, that have to do with drawing a map that are the constitutional responsibility of a legislature in drawing a redistricting map.

Appellants frame their basic challenge on partisan gerrymandering because they cannot look at effects, because any examination of substantive effects yields the conclusion that the current map is much more fair than the prior.

They disavow any examination of effects.

Instead, they frame it as solely partisan intent, which has never been the standard under this Court’s precedents.

But even under that standard, they base it on a simple syllogism that is found nowhere in the Court’s precedents, a syllogism that says because there was an extant legal map in place, the redistricting was unnecessary.

And so anytime there is a court map, it is unnecessary redistricting.

The problem is appellants raise a false dichotomy because every legislative redistricting is voluntary.

Whether it is Texas in 2003 or Pennsylvania in 2001, the legislatures face a binary choice.

They can act and adopt their legislative policy preferences, or they can not act, in which case they know with an absolute certainty that a court-drawn map will govern the election that follows.

In Pennsylvania, to be sure, it was a map that would be drawn subsequently, but the decision is the same.

Does the legislature act to embody its preferences or does it allow a court-drawn map to govern the elections in the States?

And I would note the consequence of the rule that appellants are urging is that it would create an enormous incentive for the minority party in every State to attempt to deadlock the system, to shut down at the beginning of the decade any effort to adopt a map because if they’re able to deadlock the system, if they are able, as happened in Texas, to flee the State and no map passes, the consequence of that… they would know for certain under appellants’ rule… is a court will draw the map.

And under the Upham standard, the court map will reflect the preexisting policy judgments of the predecessor legislature.

So any minority party has an incentive.

If they can stop it from happening at the beginning of the decade, they have an incentive to seek a better map.

Antonin Scalia:

A… a minority who was a majority.

R. Ted Cruz:

Indeed, yes.

That… that is predicated upon a preference for a decade ago rather than what would be adopted now.

The Framers chose political checks for the problem of partisan gerrymandering.

They assigned principal responsibility to elected State legislatures whom they certainly knew would care a great deal about politics, and they assigned supervisory authority to another elected legislature, Congress.

The appellants point to a host of perceived policy problems about the specter of seriatim redistricting of legislatures coming back every 2 years and tweaking the line here and tweaking the line there.

To the extent that is a problem, Congress is the institution constitutionally authorized to address it, and there is no indication that there is a looming threat of seriatim redistricting.

It didn’t happen here.

It was the first time in 12 years the legislature had acted.

John Paul Stevens:

General Cruz, could I ask you another district-specific question?

Because I want to get it on the table and let you explain it to me.

Focusing on district 23 for a moment, assuming for the moment… and I… I know you probably disagree with this but… that the results of the redrawing of district 23 violated section 2, would you say that it would be a defense to that violation that the motivation was actually non-racial but purely political?

R. Ted Cruz:

As the hypothetical is… is asked, the answer would be no.

But… but the difficulty is if the motivation… if there’s a violation of section 2, a political motivation does not excuse it.

John Paul Stevens:

Not a defense.

And the second question for me is that if there were a violation in district 23 of section 2, could it be cured by creating a district… the district farther to the east.

I forget the number.

25 I guess it was.

Would that be a cure in your… in your judgment?

R. Ted Cruz:

The Court has concluded before–

John Paul Stevens:

Given what the Court said in Shaw II.

R. Ted Cruz:

–Right, right, that… that a… a section 2 violation in one area cannot be corrected with a discrete change in a different area.

John Paul Stevens:

Right.

R. Ted Cruz:

However, in De Grandy, the Court also said that the assessment is the totality of circumstances in the region under-assessed.

And in the totality of circumstances, the district court made factual findings against the plaintiffs that they cannot demonstrate were clearly erroneous.

Indeed, that… that is the problem with all of the district-specific claims that all of the sets of plaintiffs have brought is that this was tried in a full trial.

The district court took testimony, made credibility determinations–

John Paul Stevens:

Except for the fact the district court really didn’t find a violation in section 2.

They didn’t quite, as I’m suggesting, say, well, given a violation on section 2, can we cure it and have a defense by what we do in… in district 25.

And I don’t think De Grandy is an answer to that, and I’m not quite sure whether you said yes or no on my question.

R. Ted Cruz:

–If they are wholly different areas–

John Paul Stevens:

Yes.

R. Ted Cruz:

–the Court has concluded no.

John Paul Stevens:

Yes.

R. Ted Cruz:

If they are–

John Paul Stevens:

So the argument… the question then would be whether district 25 is a wholly different area from district 23.

R. Ted Cruz:

–That’s correct.

John G. Roberts, Jr.:

And what do we look at to determine that?

I know what we said in De Grandy, but I mean how… I mean, you talk about the south and west Texas.

John G. Roberts, Jr.:

I mean, on the other hand, 23 and 25 are actually not that close together.

So how do we know that we should be looking at all the way from El Paso to the Gulf, as opposed to a narrower area?

R. Ted Cruz:

They are not that relatively close together, but… but that is because this region of Texas is… is vast and… and relatively lightly populated.

And so district 23, for example, runs 800 miles in length because you’ve got miles and miles of… of desert land and open ranch land with very low population.

The way the Court did it in De Grandy, which is also the way the Court should do so here, is to look at what the parties agreed to and how they litigated the case.

In this case, everyone litigated the district 23 section 2 claim with a focus on south and west Texas.

Indeed, what speaks volumes is that if one examines the demonstration map that the GI Forum appellants introduced, which is at their… their appendix to their jurisdictional statement, page 241, that map only covered south and west Texas.

They proposed no districts for the rest of the State.

They were focused–

John G. Roberts, Jr.:

But I didn’t understand Ms. Perales’ argument to concern section… district 25 at all.

R. Ted Cruz:

–It did not, and… and, indeed, she has never joined in the racial gerrymandering claim that has been brought by the… by the Jackson plaintiffs.

Her claim has focused on… as… as it concerns racial gerrymandering, not that the legislature did too much of it, but… but in a sense that it should have done more.

It should have been more aggressive in seeking to create majority minority districts.

And… and the district court has factual findings that rule against those claims.

Stephen G. Breyer:

Would a… I’d like you to elaborate a little because, as I understood your claim, particularly in response to Justice Stevens, you agree that if 23 violated section 2, they can’t make up for it somewhere else.

You agree they can’t make up for it particularly when their only way is for political reasons.

But your argument is they never violated… that 23 as redrawn didn’t violate section 2.

R. Ted Cruz:

That’s correct.

Stephen G. Breyer:

And the reason that it didn’t violate section 2, I want to know, is what?

Because you have the three preconditions which seem to be met, and then you have some kind of… it doesn’t violate section 2 from De Grandy if, despite the preconditions, there is some kind of overall proportionality.

But all that is rather unclear in my mind, and I want to know what your view of it is.

R. Ted Cruz:

There are multiple reasons, Justice Breyer.

As an initial matter, the district court found on page 131a of the Jackson appendix to their jurisdictional statement that CD 23 was not an effective minority opportunity district.

So that’s a direct finding that the… that the old CD 23 was not an effective minority opportunity district.

John G. Roberts, Jr.:

And why was that?

R. Ted Cruz:

Because the… the data demonstrated that a majority of Hispanic voters were not able to elect their candidate of choice.

Although Congressman Bonilla consistently commanded a significant percentage of Hispanic votes, he did not command a majority, and the candidate for whom a majority voted did not prevail in the congressional election.

John Paul Stevens:

But isn’t that somewhat inconsistent with the decision to reshape the district?

Why did they do it then?

R. Ted Cruz:

What the legislature did… the legislature’s express intention was to shore up Congressman Bonilla’s electoral chances, and… and it was explicitly because Congressman Bonilla is a valued member of the delegation and the legislature made a judgment that they wanted to increase his margin of victory.

R. Ted Cruz:

One–

Anthony M. Kennedy:

And… and in your view, that justification allows the creation of district 25, which has, as far as Latino population, people of quite different economic backgrounds and so forth, you know, the… the two-ended… the district on the two ends.

R. Ted Cruz:

–We did not–

Anthony M. Kennedy:

That… that to me was… was not discussed much in your brief, but it’s a serious Shaw violation.

And… and the two are really linked, 23 and 25, in this respect because it was by virtue of what it did in 23, that the State claims a right to do what it did in 25.

R. Ted Cruz:

–We did not place our principal emphasis, with respect to 25, on the Voting Rights Act’s concerns potentially raised by the alterations in 23.

That was a motivation, but it’s not our principal motivation.

Our principal argument on 25 is that there are a series of factual findings the district court made that are not clearly erroneous and, indeed, we would submit, are… are completely supported by the record to–

John G. Roberts, Jr.:

Do you have a… a section 5 argument with respect to district 25 as opposed to a section 2 argument involving district 23?

R. Ted Cruz:

–The legislature was certainly concerned about section 5, and with respect to the adjustment in… in district 23, it was possible that the Department of Justice might deem the alteration of district 23 to be something that would be retrogressive and, accordingly, having a district that was… a performing Hispanic opportunity district would increase the chances of preclearance.

So… so that was a factor in the consideration, was a desire to comply with section 5 and also to comply with section 2, although section 5 was the… the principal focus of the legislative discussion.

John G. Roberts, Jr.:

Is it permissible for a legislature concerned with section 5 to take race and ethnicity in account… into account in drawing a district?

R. Ted Cruz:

This Court has never squarely resolved that.

This Court has assumed in the racial gerrymandering cases, assumed without deciding, that compliance with the Voting Rights Act is a compelling interest.

And the… the districts that have struck down have been struck down as not being narrowly tailored.

Although we advance that argument, we don’t have to prevail on that argument for district 25 to survive the racial gerrymandering claim.

Anthony M. Kennedy:

And as to 23, do you want this Court to say that it’s constitutionally permissible to take away a number of minority voters from the district, but leave just enough so that it looks like a minority?

Is that a permissible use of race?

It… it seems to me that’s an affront and an insult.

R. Ted Cruz:

Except the district court found as a factual matter that what happened in district 23 was wholly political.

It was not racial, so that the voters were not removed because of race.

They were removed because of politics.

Anthony M. Kennedy:

Well, but… but the additional finding is that 50 percent were kept to make it… to make it look good.

R. Ted Cruz:

The… the legislature was aware of… as this Court has said, the legislature will always be aware of the racial composition of a district.

But the legislature specifically… for example, unlike Bush v. Vera, there are no bloc-level cuts based on race.

Indeed, in district 23, what the legislature did, by and large, is go straight down Interstate 35 which cuts right in the middle of Webb County.

Now, if one considers Webb County, there… there are two halves of it.

There is the half that moved into new district 28.

Now, those voters presumably cannot complain about being disenfranchised in that.

At least the Hispanic voters there are now in a unquestionably performing Hispanic opportunity district that elects an Hispanic Democrat to Congress.

R. Ted Cruz:

The remaining voters in Webb County… in 2004, Congressman Bonilla carried a majority of Webb County, and so it is difficult to see who is being disenfranchised, given that both halves of Webb County are electing a Congressman for whom a majority of their voters are voting.

David H. Souter:

Why… in… in–

John G. Roberts, Jr.:

Go ahead.

I’m sorry.

David H. Souter:

–In… in contrast to that, however, you could not make that argument or… or that response with respect to… to district 24, the district in which the… the black vote was… was cracked.

And in response to earlier questions from Justice Stevens, you… you mentioned there were a number of motivations for dividing it up the way it did, and… and yet, as you also acknowledge, those differing motivations don’t answer a… a section 2 argument.

What is your answer to the section 2 claim?

R. Ted Cruz:

Well, as you know, Justice Souter, purpose under the ’82 amendment is irrelevant to section 2.

It is an effects-only test, and… and the district court had a series of factual findings, most of which appellants did not even challenge until their reply brief, each of which is independently sufficient to defeat their claim.

The… the district court found against them on all three prongs of Gingles, and those findings were fully supported by the record.

As an initial matter, the appellants attempted to frame this as debating the legal question over whether 50 percent is an absolute barrier.

The district court concluded that it needn’t resolve that question because the facts here presented no opportunity to determine if there might be some tolerable deviation below 50 percent.

In this case, African American voters in old district 24 comprise less than 22 percent of the voting age population.

David H. Souter:

But… but following Georgia and Ashcroft, isn’t… isn’t that a possibility that we should consider as a satisfaction of what has come to be known as the… you know, the first of… of the Gingles factors?

R. Ted Cruz:

In our judgment, Georgia against Ashcroft expanded the flexibility for States to determine how to comply with the Voting Rights Act.

Georgia against Ashcroft obviously was a section 5 case, and it determined that in considering retrogression, that opportunity districts and influence districts should both be considered.

It surely did not mean that there was a cause of action now for any plaintiff to argue that any conceivable influence district must be drawn.

That goes entirely against the central theme of Georgia against Ashcroft, which is that States have flexibility in choosing a representational model for voters in that State.

David H. Souter:

But it… it is not inconsistent with Georgia and Ashcroft to say that for… for much the same reason, States have less flexibility in cracking influence districts once they have been established.

R. Ted Cruz:

That might perhaps be true if the plaintiffs could demonstrate the other Gingles prongs, but on the second and third prong, the district court found that African American voter cohesion was far from clear and there was absolutely no cohesion between African Americans and Hispanics in district 24.

Indeed, they voted in an almost completely polar manner in Democratic primaries.

And third, the district court found that there was not Anglo bloc voting.

And so all three of the prongs… what the district court found as a factual matter is that district 24 functioned as an Anglo Democratic district.

And indeed, this case is unusual in that there were some extraordinary direct testimony that the way district 24 operates is not accidental, that in 1991, it was explicitly drawn by Anglo Democrats for the specific purpose of electing Anglo Democrats and only Anglo Democrats.

And that was testimony not from a State witness but from Congresswoman Eddie Bernice Johnson, a Democratic African American incumbent from the adjoining district who was in the State legislature in 1991, and she said the African American population there was deliberately split up to create a district that would be… elect white Democrats.

That direct testimony is extraordinary and it shows that what the data demonstrate, which is that white Democrats control the district… and that’s what the district court found as a factual matter… is not an accident.

It was precisely the intended effect of the map-drawers.

Indeed, if one looks to the three races that the appellants’ experts examined that were African American versus Anglo in the primaries, of those three races, an African American candidate of choice who was black prevailed in only one.

Of the 20 races appellants’ experts examined, of those 20, only one black candidate prevailed, and that case, the district court found, was aberrational because that candidate was Ron Kirk.

He was a former mayor of the City of Dallas.

R. Ted Cruz:

He was a very popular, local politician with a strong friends and neighbors effect.

If you take that aberrational case out, the two other cases appellants’ experts looked to both showed that the African American candidate, one of whom was supported by 76 percent of African American voters, lost.

And indeed, what happened was the Anglos and the Hispanics voted in virtual unison against the African American candidate.

That data… if one looks to the endogenous races, there had never been an African American opponent to Martin Frost, or the exogenous races, those three we talked about… the data demonstrate quite persuasively that African Americans were drawn into a district where they did not have an equal opportunity to elect their candidate of choice because they lacked the ability to elect a black candidate.

Now, they could choose to do otherwise, but in this district, they could not choose to elect a black candidate.

And that was the district court’s finding and that’s what the data demonstrated.

John G. Roberts, Jr.:

Counsel, can I move you south and west again, back to district 23?

How do we tell… as redrawn, it had what?

50.8 percent.

And I gather that that’s not considered a Hispanic opportunity district because of lower voting turnout, registration, participation?

How do we tell when something is being done to make it look like a Hispanic district and, instead, when it’s being done for the opportunity of providing a Hispanic opportunity district if voter turnout and registration are increased?

R. Ted Cruz:

The district court made a finding that the reason district 23 was altered was to increase the chances of Congressman Bonilla prevailing.

And in particular, if one looks to Webb County, which is the county that was split, Webb County centers on the City of Laredo.

And in 2002… the race that the GI Forum appellants focus on principally… the candidate that ran against Congressman Bonilla was Henry Cuellar, a popular, local politician from Laredo, and he had a very strong following in Laredo.

And as a consequence, Mr. Cuellar did very well in that election, came within slightly under 4 points of beating Mr. Bonilla and Mr. Bonilla’s percentage of the… of the Latino vote dropped to its lowest historic point.

That, as the district court found, was also aberrational because of Mr. Cuellar’s very strong local support, and the clearest evidence of that is under the new map, when half of Webb County was placed in the adjoining district, district 28, Mr. Cuellar ran against the incumbent Democratic Congressman, Ciro Rodriguez, and beat him in the primary, which demonstrates that his success was because the… the voters in Laredo are supporters of Mr. Cuellar and, accordingly, voted for him against either opponent, Henry Bonilla or Mr. Rodriguez.

And so, when the legislature was determining which section of voters to remove for political reasons, the region that voted heavily against Mr. Bonilla in the preceding election, Laredo, Webb County, was a natural place to move voters who had in the last election demonstrated they would vote for his opponent.

Under any assessment of 23, the prior map had five districts that were indisputably Hispanic opportunity districts, plus district 23 that elected Congressman Bonilla, an Hispanic Republican.

The current map has six districts that are indisputably Hispanic opportunity districts, plus district 23 which elects Henry Bonilla.

So the result is the same in district 23, and there is an additional Hispanic opportunity district in district 25.

If I may turn to district 25 and return to Justice Kennedy’s questions earlier about racial gerrymandering with respect to that district.

The first indicium this Court has looked to in racial gerrymandering case… cases is unusual or bizarre shape, and on that indicium, this district does not fall anywhere near the districts this Court has struck down as racial gerrymanders.

Anthony M. Kennedy:

Well, of course, the reason the lines are straight is nobody is there.

[Laughter]

R. Ted Cruz:

But those counties have to be placed in some district.

And… and so the appellants call a series of seven whole contiguous counties a land bridge, but those are very sparsely populated counties.

In whatever district they’re in, they’re going to have to connect with a population zone.

And what the district court found as a factual matter is that the elongated nature… the relatively elongated nature of district 25 was a function of the geography and the fact that you have population along the border and then you have a large space of relatively low population, and then you have to get back up to population.

So Texas historically has run north-south districts to get enough population to form a congressional district under this Court’s one person/one vote precedents.

District 25, if one examines… the district court expressly found that the plaintiffs failed to prove purposeful discrimination.

R. Ted Cruz:

The State defendants introduced at trial a Cromartie analysis that was precisely drawn from this Court’s first Cromartie decision, Hunt v. Cromartie, and it’s found on pages 331 and 332 of the joint appendix.

And what that analysis did is precisely what this Court found in Cromartie I was sufficient on summary judgment to defeat a claim of racial gerrymandering.

It assessed the lines in Travis County, the northern part of district 25, and it asked are the cuts the legislature made driven by politics or driven by race.

And so what the State’s expert did is drew a map that would be based on race that would maximize the Hispanics in district 25 on the northern end of Travis County.

He then compared that map to the map that the legislature had drawn and said what are the differences between what it would look like if the legislature was attempting to maximize race as compared to what it would look like if it was attempting to maximize party.

And what the State’s expert found is there was on the order of a 1 percent differential which is you’re talking between 24 and 25 percent.

So it was about 4 percent differential of fewer Hispanics in the State’s map and more Democrats in the State’s map.

And so what the State’s expert found is precisely along the lines as the evidence in Cromartie I that the legislature had drawn the map looking for Democrats rather than looking for Hispanics.

In addition, if one examines the two numerical measures of compactness, smallest circle and perimeter to area, smallest circle this map measured 8.5, which is smaller than North Carolina’s reconfigured district 12 upheld in Cromartie, which was 8.6 Its perimeter-to-area score, 9.5, is terribly low.

As a… as a means of comparison, districts 18, 29, and 30 that this Court struck down in Vera had perimeter-to-area scores of 106, 144, and 69, as compared to district 25’s score of 9.5.

John Paul Stevens:

General Cruz, if you’ve finished your answer… I didn’t want to interrupt you, but that makes… reminds me of a question I wanted to answer you because… ask you, rather, because you make a very persuasive argument in your brief, which I found very helpful, that the… a State should be able to correct a prior gerrymander by… for… with political motivations.

I would like you to comment on this suggestion.

Supposing we said they have an absolute right to do that with one caveat, that any new district has to be more compact… no more… no less compact than its predecessor, wouldn’t that avoid all sorts of problems?

R. Ted Cruz:

That could be a salutary policy goal, and… and Congress could certainly enact that.

But I… I see no… no source in the Constitution placing that requirement upon States particularly–

John Paul Stevens:

We have… we have quite a history, as you just identified in your response to Justice Kennedy, of being concerned about particularly grotesque shapes, and that’s why they developed these tests of compactness for use in this very litigation.

And the fact that the lawyers have come up with this approach to it makes me think maybe it does have some relevance to the whole problem we’re trying to confront.

R. Ted Cruz:

–At an extreme level, lack of compactness can indicate something was going on.

If one looks at the districts this Court has struck down, if you look at Bush v. Vera… and we have in the joint appendix the silhouettes of those districts that were… you know, had fingers going out in every direction.

There’s plainly something questionable going on.

These districts are nothing like that.

John Paul Stevens:

When I… when I was thinking about this problem, I looked at district 24.

The thing that was interesting to me is that most of the neutral justifications that you describe… and they’re certainly in the… in the five new districts that replaced it, but in the key part of the population that was moved, it becomes much less compact than it was before.

R. Ted Cruz:

The… the new map–

John Paul Stevens:

Which it seems to me quite significant.

R. Ted Cruz:

–The… the new map was somewhat less compact than the prior map, but it does–

John Paul Stevens:

And its particularly… particular reference to the targeted group that was moved out of the district.

R. Ted Cruz:

–But lack of compactness does not… no one has brought a racial gerrymandering claim with respect to districts other than 25 and, to some extent, 23, although the 23 challenge is not a typical racial gerrymandering claim.

John Paul Stevens:

No, but I’m suggesting the challenge to 24 should be a political gerrymandering challenge.

R. Ted Cruz:

I understand that, although a majority of the Court in Vieth concluded that in order for a political gerrymandering claim to succeed, that there must be a substantive standard for fairness to measure the map against some baseline.

Anthony M. Kennedy:

Well, Justice Stevens–

John Paul Stevens:

And that’s the standard I’m suggesting.

Right.

That’s exactly the point.

R. Ted Cruz:

But–

Anthony M. Kennedy:

–The compactness standard.

John Paul Stevens:

Yes.

R. Ted Cruz:

–But the Court had before it… appellants urged in Vieth compactness, principles of cracking, principles of packing.

One of the dissenting Justices advocated that standard, and yet, a majority of the Court… the plurality explicitly rejected it.

And Justice Kennedy’s concurrence explicitly rejected the standards discussed in the dissents, including a standard looking to compactness.

Antonin Scalia:

I’m not sure that Justice Stevens is suggesting that as a standard.

He’s suggesting it as a disqualifier.

If it’s not as compact, it’s no good, but if it is as compact, he’s… I… I don’t think he’s suggesting it’s okay.

So we still don’t have a standard.

John Paul Stevens:

No.

I was suggesting that would be a safe harbor, and… and it would just–

Antonin Scalia:

A safe harbor from an unknown standard.

[Laughter]

John G. Roberts, Jr.:

Jump in whenever you want.

[Laughter]

R. Ted Cruz:

Under any standard that looks to the substantive lines on the map, anything that… and we have spent hours racking our brains trying to think of a standard for litigation purposes that would yield the old map being more fair than the new one.

We’re not aware of any coherent standard that looks to substance.

Anthony M. Kennedy:

Let… let me ask you this.

Suppose you have a court that’s required to redistrict, and the court has two experts.

Expert number one says, here is a plan.

It’s totally partisan in its orientation, but it balances the Democratic and the Republican registration.

It gives them exactly proportional representation.

Plan number two gives minimal consideration to this, but it’s compact.

It takes into account geography, communities of interest, and so forth.

Would the district court be in error if it adopted the first plan?

R. Ted Cruz:

Well, that… that question actually was litigated in this case, the first time in 2001, as part of the litigation over how to draw the new map.

One of the arguments that was presented to the district court was that the old map was no longer consistent with how Texas voters were voting.

And the district court concluded that under the Upham case, it lacked the authority to take that into account and to change the demonstrated policy preferences of the last legislative map.

And that’s why, on remand in this case, the district court found although it didn’t intend to work partisan bias, that that was the effect of its map.

Anthony M. Kennedy:

Well, but my hypothetical is designed to suggest that partisanship, political lines should be certainly a secondary consideration to a valid principled scheme and that perhaps in the hypothetical case, you could reverse a district court for abuse of discretion in… in overemphasizing political considerations.

And then if that’s true, it means that there is some standard lurking out there indicating that political considerations should be of at least secondary importance.

R. Ted Cruz:

In this case, the district court was presented with maps that would be more fair on… on pretty much any measure of partisanship, and what the district court concluded is it didn’t have the ability… that making that judgment was a political judgment, and it was the legislature’s job to do it.

And so it drew in the districts it was required to draw because Texas had two new districts.

It drew in what it believed the Voting Rights Act required, and beyond that, it made as few changes as possible.

And so the district court recognized that the consequence of that map-drawing technique is whatever partisan bias was there before is reflected in its own map that just neutrally carries over the preexisting bias.

And that’s why the district court found it was perpetuating the prior bias, not because it intended to do so, but because it was consciously restraining itself from doing anything to alter the partisan composition other than to carry over what was already there.

Stephen G. Breyer:

What… district 24.

I take it… it’s a long walking stick is what it looks like.

And the… I take it you’re saying when I go back to the record here, I’ll discover a finding that the district court made.

They said this was not an effort to use race to district.

And one of the reasons that you think that is because, although it’s not a circle, it’s not absolutely terrible.

That… that is a supporter of the ultimate conclusion they did not use race.

Is that right?

R. Ted Cruz:

Justice Breyer, that’s… that’s exactly correct–

Stephen G. Breyer:

Then… then if I… if I… so I have to go back, look at the record, and see what it says.

Now, suppose I came to a different conclusion.

Then you might still win on this point if the rationale for using race to district was because we want to avoid a section 2 violation.

And there, you would lose, however, because you can’t use that rationale unless, according to Bush v. Vera, the district that you draw is, in their words, reasonably compact.

So, again, you’d have to say that this district that looks like a walking stick is reasonably compact for that other purpose.

Is that right?

R. Ted Cruz:

–Well, although we would submit this district is reasonably compact.

Stephen G. Breyer:

Yes, so I understand that.

But… but if… if I… you have two bites at this apple with your reasonably compactness.

One, you want to say it wasn’t… you think this proves it wasn’t to use race in the first place, but if I’m wrong on that, it’s still a legitimate use of race because it’s a reasonably compact effort to conform with section 2.

R. Ted Cruz:

Justice Breyer, you’re correct that if the Court concludes this district is not reasonably compact, then under its precedents, it wouldn’t be a narrowly tailored way to satisfy a voting rights violation, but–

Stephen G. Breyer:

And is there anything I can look to to decide what reasonably compact means in that second–

R. Ted Cruz:

–Well, the district court’s finding was that Texas geography and population dispersion limit the availability of district compactness in southern and western regions of the State, and that was at the Jackson jurisdictional statement, page 154a.

So that’s… there’s… there’s a challenge in Texas because you’ve got these–

John G. Roberts, Jr.:

You’re talking about district 25.

Right?

R. Ted Cruz:

–25, yes.

Yes, we’re talking about 25.

Stephen G. Breyer:

–Yes, 25.

R. Ted Cruz:

25 has seven whole counties and only two county splits, which is unusual.

Most of the cases that this Court has struck down what it’s perceived to be racial gerrymanders have been a number of county splits.

In this case, the county splits… those were mandated to… because we have achieve perfect equipopulosity, so we had to get exactly, within one person, precise lines.

But within… in between the two, they are whole contiguous counties that are longstanding geographic units.

The testimony is clear that the… the legislature made no effort to avoid Anglo voters.

It’s not like they snaked around.

And even the lean of it is a simple fact that the Gulf of Mexico leans like this, and it follows the geographic boundaries of the State, so that if one examines this district next to the other districts, it follows historic lines that have been used in Texas.

John Paul Stevens:

–General Cruz, why wouldn’t it be a… at least a helpful guide to what is reasonably compact to compare with the preceding districts?

Now, that fits 24 but not necessarily 25 I understand.

Wouldn’t that make… make sense if the reasonable compactness is… is one of the tests?

R. Ted Cruz:

One could certainly compare the preceding district, and with respect to the preceding district, the differential is… is not great.

It is somewhat more compact.

But there were other policy agendas the district court–

Antonin Scalia:

When you’re carved out of a couple of preceding districts, which is the preceding district?

I mean, isn’t… isn’t that a problem with that test?

R. Ted Cruz:

–That… that is a certainly a challenge.

John Paul Stevens:

I suppose if you have a plaintiff suing, it would be the one he lives in.

R. Ted Cruz:

You know, if you compare, for example, district 25’s perimeter-to-area score is 9.6.

You know, if… if one looks at, for example, the plan 1385 submitted by GI Forum, that has one plan, district… one district, district 28, with a higher perimeter-to-area score of… of 10.0.

And indeed, the district court found as a factual matter that the demonstration plan submitted by the GI Forum appellants was… was less compact and critically would not perform.

Going back to the section 2 question about district 23, the district court found that one district in the demonstration plan, district 28, had only a bare majority of citizen voting population, 50.3 percent, and there was undisputed testimony that for a district to perform in this region, it had to have–

John G. Roberts, Jr.:

Why did they have… why did have just 50.3 percent?

R. Ted Cruz:

–Because the Hispanic population is dispersed enough that one can’t… one can’t draw–

John G. Roberts, Jr.:

They’re doing that to make it look like whoever was elected had Hispanic support in that district?

Is that–

R. Ted Cruz:

–We did not ascribe motives to them.

They… they drew it to demonstrate that… that you could draw a district with a bare majority citizen voting population, although their experts also testified that a bare majority will not elect in this region because of lower voter… voter turnouts.

Stephen G. Breyer:

On the… either it is reasonably compact or it isn’t.

If it is reasonably compact, we never get into Bush v. Vera, whatever, the Vera case in the first place.

And if it isn’t, you can’t get out of it by saying it’s an effort to cure a section 2 violation.

R. Ted Cruz:

Correct, but with respect to the question of racial gerrymandering, this Court’s question is, is race the predominant motivation?

There’s a direct factual finding by the district court that it was not.

Indeed, the district court said that the… that the measures of compactness, examined in relationship to the geography and population, reflect the sheer size and population distribution of this area, rather than a calculated stretch to find voters of a particular ethnic makeup.

Anthony M. Kennedy:

You mean 25… the… the Latino makeup of 25 is accidental?

R. Ted Cruz:

It is a function of the population in south and west Texas.

Anthony M. Kennedy:

It’s accidental.

R. Ted Cruz:

The… it is not accidental in the sense that the legislature was unaware, and as this Court has said, whenever a legislature is districting, it is aware of the… the racial distribution.

But it was drawing an additional district there, and the district court found that in drawing those lines, it did not reach out to segregate voters on either side based on race, that that was not its intent and that was not the effect of what it in fact drew.

David H. Souter:

What… what do you say to Ms. Perales’ argument that the… the numbers are just too precise to have been reflective of anything but a racial motivation, and that, therefore, the… the district court’s finding was clearly erroneous?

R. Ted Cruz:

Well, that… that concerns district 23, and… and–

David H. Souter:

Aren’t they equally precise here?

R. Ted Cruz:

–No.

District 25 is… has a… a large majority on Hispanic voting age population and also citizen voting age population.

David H. Souter:

I… I misspoke.

Okay.

R. Ted Cruz:

With respect to district 23, there’s an unusual aspect to the GI Forum appellants’ arguments in that it’s unlike a typical racial gerrymandering claim where they say you’re… you’re seeking to draw lines based on race.

She’s arguing they should have been more aggressive drawing lines on… based on race, which is… which is not an argument that sounds in the Shaw line of cases.

What the district court found is that it was purely a political motivation that drew that decision, and if one is looking to the Voting Rights Act, under any assessment, the district is performing identically as it did before.

And on the totality of circumstances, either based on the region, in which case their argument… argument is one for maximization… they have six of seven districts.

They’re arguing they’re entitled to seven of seven districts… or on a statewide basis, the district court found totality of the circumstances was met.

With respect to district 24, the findings… the… two of the three findings, with respect to Anglo bloc voting and cohesion, the appellants have made no attempt to get around other than in their reply brief, they have… have briefly challenged them.

But it was their own expert who provided the information that the district court found credible, that there was no cohesion, that African Americans couldn’t elect their candidate of choice.

R. Ted Cruz:

And it is undisputed that in new district 9, African Americans can elect their candidate of choice.

And so from a statewide… from a totality of circumstances perspective, the ability to elect a candidate of choice for African Americans in the State is higher under this map than it was in the preceding map.

In sum, the basic question here is whether courts or legislatures are the principal decision-makers.

If appellants’ proffered rule is adopted, it removes the safety valve that the Constitution provided.

It is rarely employed because it is rare that one finds a plan so out of step with the demonstrated preferences of voters for a decade.

We are aware of no other plan that allowed a minority of voters who never crossed the 44 percent threshold to control the majority of the delegation.

We’re aware of no other map in the country.

And so if there is a standard that this is impermissible, that consequence would either elevate courts above legislatures, contrary to the constitutional text and to 4 decades of this Court’s precedents, or that looks to substance, it would call into question the districts and a hosts of other districts because on any objective measure, the districts in Texas are fair as a partisan matter, compared to the other States, compared to the predecessor map, compared to any metric that one applies.

Indeed, the social scientists say, based on the seats/votes curve, that given that Republican voters are currently voting at roughly 60 percent for Republican candidates, one would expect a higher percentage of Republican candidates elected than… than what this map is yielding.

And so on any coherent measure of a substantive measure of fairness, this map should survive.

If there are no further questions.

John G. Roberts, Jr.:

–Thank you, Mr. Cruz.

Mr. Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court:

The United States’ participation in this case is addressed to the Voting Rights Act issues, and our position is that the district court properly concluded that the 2003 plan does not unlawfully dilute minority voting strength in either the Dallas/Fort Worth area or the south and west region of the State.

The district court based that conclusion on factual findings that are entitled to great respect on appeal and that preclude appellants’ section 2 claims under this Court’s decisions.

John Paul Stevens:

May I ask you if you agree with General Cruz, that if the results of the 20… section… district 23 violated section 2, it would not be a defense that was politically motivated?

Gregory G. Garre:

I… I think that’s right, Justice Stevens, insofar as–

John Paul Stevens:

And would you also agree with the second question I asked as to whether if it were a violation… I understand you don’t think it was… it would not be a defense that they were able to create a district… a Hispanic district in another part of the State.

Gregory G. Garre:

–Well, that’s true in the context that the Court said it in the Shaw II case, but we don’t think that the principle of Shaw II would apply to the section 2 claim in the south and west part of Texas in this case.

And that’s because in Shaw II, the Court found a violation in the southern part of the State and considered the question as to whether a creation of a district in a completely different part of the State, the middle of the State with no connection, would remedy the section 2 violation, and the Court said no.

This case deals with a section 2 claim which is addressed to a particular region of the State, a region that’s marked by its high concentration of Hispanic citizen voting age population, as well as common geography and other factors.

And we know that the claim is addressed to that particular region of the State because that… that region is the focus of the plaintiffs’ demonstration plan.

Mr. Cruz referred to it.

It’s at page 241 of the GI Forum jurisdictional statement.

That’s the plan that they claim they’re entitled to under section 2 of the Voting Rights Act, and it’s addressed to the entire part of the State.

So in that situation where you’ve got a claim where you have a… a Voting Rights Act section 2 claim addressed to a particular region of the State, we don’t think that the Shaw II principle would come into play.

Here, we don’t think there’s any section 2 violation with respect to the elimination of–

John Paul Stevens:

Is that based on the premise that section… that district 25 and district 23 are in the same part of the State?

Gregory G. Garre:

–Yes, not just the same part of the State, but a part of the State that falls within the section 2… within the focus of the plaintiffs’ section 2 claim, and a part of the State that’s marked by its high concentration of minority citizen voting age population.

Gregory G. Garre:

In… in the De Grandy case, this Court confronted a very similar problem where you had one part of the State, the Miami-Dade area of Florida, which had a high concentration of Hispanic citizen voting age population, and the State was drawing various districts in that part of the State.

And the Court looked to those districts and considered whether there was a proportional representation of the minority group in that area and… and found that, under the totality of the circumstances, there was, and therefore, there was no violation of section 2.

Here, you have a situation where the district court found that the citizen voting age population in the south and west part of the State was 58 percent, and that under the State’s plan, Hispanics enjoyed 85 percent majority minority districts in that area, which is to say, six of the seven districts under the State’s plans were districts in which Hispanics enjoyed a majority of the citizen voting age population.

The decision within that area of where to draw district lines is a decision that section 2 and this Court’s precedents leave up to the States.

And, in fact, in the De Grandy case, this Court in… in particular considered the situation where a district line ran through a minority neighborhood and split up that neighborhood.

The Court discussed it on page 1015 of its decision.

And it said that the fact that the district line went through that neighborhood and had an effect on minority voters, in terms of which district they went into, didn’t in itself establish a section 2 violation.

And we think the same principle would apply here, where the fact that the district lines separating district 23 and 28 in the southern part of the State near Laredo splits a Hispanic neighborhood, which is, after all, not… not surprising given that the large percentage of the population in that part of the State is Hispanic, doesn’t in itself establish a section 2 violation.

The plaintiffs’ section 2 claim in that part of the State really sounds very much in a section 5 retrogression or dismantling claim, and this Court made clear in the Holder v. Hall case that retrogression principles of section 5 are not applicable in section 2 cases.

And we certainly think that that principle holds here and that–

Anthony M. Kennedy:

Are there cases that… that we’ve issued from this Court that address what happens in a case like this where the economic circumstances and many other circumstances of the two Latino populations are very different?

The border Hispanics and the Hispanics in Austin have very… very little in common other than… than the Latino background.

Are there… are there cases that address whether or not these populations can be combined in… in order to satisfy the… the Voting Rights Act requirements?

Gregory G. Garre:

–Well, I don’t know of a–

Anthony M. Kennedy:

Have we talked about that?

Gregory G. Garre:

–specific case that has addressed that concern.

I suppose it would go perhaps to the cohesiveness analysis under the Gingles factors.

I mean, what… what is clear under this Court’s cases and the text of section 2(b) is that the Court has to take into account the totality of the circumstances in the area, not just the rough proportion… the existence of proportionality between the Hispanic population and the number of districts in which they enjoy a majority, but all the circumstances that could bear on the region.

And the district court in this case conducted that analysis and it found, under the totality of the circumstances, that there was an… that there was not a section 2 violation in the south and west region of the State.

And we certainly think that that finding is entitled to respect under the clearly erroneous standard that this Court applies in reviewing findings… ultimate findings of vote dilution.

The Court has… has said repeatedly that it will not disturb such a factual finding unless it is left with the definite and firm conviction that a mistake has been made, and we don’t think the record in this case would support such a conclusion with respect to either the section 2 claim in the south and west or the section 2 claim in the Dallas/Fort Worth area.

As we have explained in our brief, that claim… and I’m now turning to the Dallas/Fort Worth claim… fails because of the district court’s finding that African American voters in old congressional district 24 lacked the ability to elect candidates of choice in that district in the sense that they would be unable, in a contested election, to put their candidate, the African American candidate, into office.

That finding too is supported by ample record evidence and we think could not be set aside under the standard that this Court applies.

Stephen G. Breyer:

Is it possible it violates section 2, the following?

We look at the map as it’s drawn.

We ask the question, is there a way to redraw this map so that, say, the minority group has a more significant influence for their bloc voting, et cetera, et cetera?

Gingles.

Answer: Of course, there is.

It’s the old way.

And you say, well, why didn’t you do it the old way?

Stephen G. Breyer:

Well, the only reason you didn’t do it the old way was pure politics and that that isn’t a sufficient justification.

Gregory G. Garre:

Well, I don’t think that would bear on the typical section 2 analysis that this Court would apply.

The… the plaintiffs bear the burden of coming in in a section 2 case, which is, after all, a claim that the State is forced to draw a district in a particular way, to show the demonstration district in which the three Gingles factors can be met.

And this case is a little bit unusual in that instead of coming up with a… a new district, they’ve just pointed to the old district, which in itself is… is similar to more of a section 5 claim.

But with respect to that district, the district court failed… failed to… the district court found that plaintiffs failed to meet the first Gingles precondition, which is that they could not show in that district that they had the ability to elect the candidate of their choice because African Americans were 22 percent of the population in that district, the third largest racial group, and because other evidence, including the past elections in that district and direct testimony of politicians with intimate familiarity of that district, supported the logical conclusion that a group that comprises only 22 percent of the electorate–

Stephen G. Breyer:

I was thinking of district 23.

Gregory G. Garre:

–Oh, I’m sorry.

With respect to district 23, again I… I think the… the framework for the plaintiffs’ challenge to section 23 is the south and west region of the State in a claim that they were entitled to a seventh… a seventh effective majority district in that part of the State.

The State’s plan, 2003 plan, gives them six majority minority districts.

The plaintiffs, GI Forum–

John G. Roberts, Jr.:

That’s not… not including 23.

Gregory G. Garre:

–Not including 23.

That’s right, Mr. Chief Justice.

They claim that they’re entitled to a seventh majority minority district.

The district court rejected that claim because it found that they had failed to show that the seventh district that they drew would be an effective district because it only had 50.3 percent citizen voting age population–

John G. Roberts, Jr.:

When you say they drew, you mean GI Forum proposal?

Gregory G. Garre:

–The GI Forum drew.

That’s right.

And again, that’s at page 241 of the GI Forum jurisdictional statement.

It found that that district was not effective because it only had a 50.3 percent citizen voting age population, and the district court found, based on the testimony that showed that Hispanics have a comparatively low turnout rate in elections, that a 50.3 percentage wouldn’t do the trick to give them the potential to elect.

John G. Roberts, Jr.:

Thank you, Mr. Garre.

Gregory G. Garre:

Thank you.

John G. Roberts, Jr.:

Mr. Smith, you have 4 minutes remaining.

Paul M. Smith:

Thank you, Mr. Chief Justice.

As I understand the State’s argument, it is that the rational, legitimate governmental purpose that was served in passing a new map in 2003 was to eliminate an anti-majoritarian map drawn by the Federal district court in 2001.

I submit to you that’s an odd use of the word in a couple of different senses.

First of all, as the experts for both sides found and as the court itself found, that… the court-drawn map was not unfair or biased in any way.

It did not in any way maldistribute voters in a way that… that hurt… hurt Republicans’ chances to elect Members of Congress.

So when Mr. Cruz says that the problem with the old map was that a minority of voters were controlling the delegation, that is factually untrue.

What happened was that Republican districts chose to elect moderate to conservative Members of Congress who happened to be affiliated with the Democratic Party rather than the Republican Party, but that does not mean that Democrats were controlling the delegation.

Paul M. Smith:

The anti-majoritarian name is odd in another way because the map that replaced it, of course, is terribly anti-majoritarian, as the experts for both sides agreed.

It totally flunks any… any kind of standard analysis about bias in the map to the point where it locks in 22 to 10 regardless, essentially, of how anybody votes in the State of Texas, and it’s going to produce majorities that are going to average about… margins of victory that are about 40 percent in… for the rest of the decade, even if the Democrats gain votes over time.

Now, it’s a dangerous road we’re going down, I submit to you, if we start authorizing this kind of partisan festival every couple of years adjusting the lines.

Now, we’ve had three States redo their congressional districts already in this decade, and if this Court were to uphold this one, I think we’ll start seeing lots and lots of other ones tit for tat around the country.

There’s another particular aspect of this that I think is potentially dangerous, which is as you get further into the decade, the census numbers get older and older and more and more out-of-date.

And what the line-drawers then do is they’ve got the census numbers over here, they know where the real people are over here, and they can exploit that differential using the old census numbers.

So it seems to me that even if you’re going to say there’s a legitimate public purpose for redrawing the lines through the decade, we ought to require the States to come up with fresh numbers.

The population… one person/one vote requirements are so incredibly strict in the congressional area.

Simply to sort of assume that these people can use the old numbers when they’re redrawing the lines 5 years after the census seems… seems mistaken to me and it does invite terrible abuse.

There… and there are mechanisms for getting new census numbers if the States really feel it’s important to do so.

Let me then turn, if I might, quickly to respond, I think, to Justice Stevens’ question about what the record shows about the intent for taking the… the African American community in Fort Worth and sending it up to Oklahoma, so to speak.

That intent is set forth in pages 87 to 88 of the jurisdictional statement appendix where the map-drawer himself… his testimony is quoted, and he explained that we had to find a Republican district in the… in the neighborhood that we could… we could tack them onto that could sort… that could, quote, handle that particular component of the current county population, which is to say a district sufficiently Republican that they would be completely disempowered for the rest of the decade.

Now, there was… there was a comment from Mr. Cruz about how the district 24 was created for a Anglo… Anglo Democrat to win.

The district that… that was talked about in the testimony was the district drawn in 1991.

What Mr. Cruz didn’t point out was that in 1996, that district was completely changed by a Federal district court in Bush v. Vera.

The old district went way down into the southeast into the countryside.

The new district, which is the one you see in the maps before you, was drawn by the Federal district court.

It wasn’t drawn by anybody seeking to uphold any Anglo Democrats’ opportunities.

John G. Roberts, Jr.:

Who was the… who was the… the candidate in that district after the district court plan?

Paul M. Smith:

Mr. Frost continued to run in that district, Your Honor.

John G. Roberts, Jr.:

Well, didn’t the district court say one of its criteria was preserving incumbency?

Paul M. Smith:

That’s a different Federal district court.

I was talking about the… the Bush v. Vera court was the one that redrew it, Your Honor, not the… not the one that’s in 2001.

Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, Mr. Smith.