Perry v. Perez

PETITIONER:Rick Perry, Governor of Texas et al.
RESPONDENT:Shannon Perez, et al.
LOCATION:The Radisson Hotel

DOCKET NO.: 11-713
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT:

CITATION: 565 US (2012)
GRANTED: Dec 09, 2011
ARGUED: Jan 09, 2012
DECIDED: Jan 20, 2012

ADVOCATES:
Jose Garza – for the appellees
Paul D. Clement – for the appellants
Sri Srinivasan – Principal Deputy Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting affirmance in part and vacatur in part

Facts of the case

The United States Census Bureau conducted a national census in 2010. In May and June of 2011, the Texas Legislature created a new electoral map based on changes in the state’s population. Texas Governor Rick Perry signed the new map into law in July of 2011.

Under Section 5 of the Voting Rights Act of 1965, either the Justice Department or a special three-judge district court must approve new electoral maps before state officials may enact the map. Texas officials submitted its map to the three-judge court in Washington. The Washington court determined that state officials had used improper standards with respect to two districts. It further held that a three-judge panel in the United States District Court for the Western District of Texas must designate an interim redistricting plan for the 2012 election cycle.

The district court redrew 36 electoral districts. Governor Perry and other state officials appealed the district court’s redistricting to the Supreme Court and requested that the Supreme Court stop the enactment of the lower court’s new map. The Supreme Court granted the appeal and stopped the enactment of the lower court’s new map until the Supreme Court could issue a further order on the matter.

Question

Did the district court abuse its discretion under the Voting Rights Act when it redrew 36 electoral districts?

John G. Roberts, Jr.:

We will hear argument next today in Case 11-713, Perry v. Perez and the consolidated cases.

Mr. Clement.

Paul D. Clement:

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

The judicial maps drawn here are truly remarkable.

They reflect the reality that the district court below lost sight of first principles.

The court repeatedly invoked the principle that these were only interim maps and not remedial maps, but that obscures the reality that a court has the authority to draw an election map, surely one of the most powerful judicial tools in the judicial arsenal, only if it is identifying specific statutory or constitutional violations or a substantial likelihood thereof.

Sonia Sotomayor:

Mr. Clement, section 5 says you can’t draw new maps unless they have been precleared.

You can’t put them into effect.

Paul D. Clement:

But–

Sonia Sotomayor:

So the only thing that exists is old maps until you get the preclearance.

I don’t see how we can give deference to an enacted new map, if section 5 says don’t give it effect until its been precleared.

Paul D. Clement:

–Well, Justice Sotomayor, obviously section 5 is clear that the new map drawn by the Texas legislature, the new maps drawn by the Texas legislature, cannot take effect of their own force.

But that doesn’t answer the question of whether a judge when having to impose a remedial map to address what all concede is a one-person, one-vote problem with the benchmark maps can look to the new maps which also remedy that same one-person, one-vote problem, for guidance.

And this Court in its–

Sonia Sotomayor:

But you are asking for more than for guidance.

You are asking for deference.

You are saying they have to start with the new map even though that map hasn’t been approved.

Paul D. Clement:

–That’s right, Your Honor.

Sonia Sotomayor:

Instead of starting, as the court below did, with the old map which had been approved.

Paul D. Clement:

Right.

We are, in fairness we are asking for it to be used as the starting point for drawing the new map, but that’s because–

Sonia Sotomayor:

Doesn’t that turn section 5 on its head?

Paul D. Clement:

–No, I don’t think so, Your Honor, for a number of reasons.

One is that the obligation to go to the preclearance court or to go to the Attorney General remains fully in place.

So the only question is, what is going to inform the district court in Texas’s exercise of remedial authority to remedy the one-person, one-vote problem with the remedial plans — with the benchmark plans, rather.

Now, this Court from the very beginning of its reapportionment cases has emphasized the need to look for legislative guidance in order to inform the judicial exercise of solving that reapportionment problem; and the need to look to the new maps I think is most acute, of course, with the congressional maps, because the benchmark is — is a fine map, but it’s a map for 32 seats.

And Congress here — the legislature of Texas has spoken as to how it would like to divide the new 36-seat allocation up, and it seems to be quite odd that the court would simply ignore that judgment when it could look to that as the starting point.

Ruth Bader Ginsburg:

It didn’t ignore it.

It took it into account along with other plans.

My — Mr. Clement, suppose the D.C. court that has exclusive authority over preclearance in mid-February denies preclearance.

Ruth Bader Ginsburg:

And suppose — suppose we accept your position.

You prevail in — in this proceeding.

And then the three-judge district court says this — this plan — these plans do not meet the section 5 requirement, we deny preclearance.

What happens if we use the Texas plan that has not been precleared as the interim plan?

Paul D. Clement:

Well, Justice Ginsburg, as a practical matter I suppose at that point Appellees would go to the court in Texas and say: You need to revise your interim maps once again.

Now, I think, since the premise for the court drawing its interim maps is that time is of the essence, it can’t wait any longer, the Texas court may deny that motion or it may grant that motion.

I mean I don’t — I don’t really have a crystal ball to take that into account.

But what I do think is particularly anomalous is let’s suppose that the D.C. court does deny preclearance.

At that point it’s common ground that the plan, the legislatively enacted plan, even though it’s denied preclearance, would be something that the Texas court would have to defer to.

That’s basically Upham.

So it’s, the oddity of the other side’s position–

Ruth Bader Ginsburg:

I don’t see how it’s basically Upham.

That was a plan — there were two contiguous districts, there was a problem with them, the Attorney General said the rest of it was okay.

Here the entire plan, the plans are — are opposed.

Paul D. Clement:

–Well, Justice Ginsburg, I mean it’s true that the Justice Department does raise a purpose objection to the plans as a whole, but of course even that takes its force from the way particular districts are being drawn.

It seems to me quite likely that, you know, obviously our position is that the D.C.–

court is most likely to grant preclearance; but if they were to deny it, it seems quite likely that they would deny it as to particular districts, and then Upham would make clear that you would give, that the Texas court would give deference to the legislative plan.

And the anomaly of the other side’s position is you give less deference to a plan when preclearance is pending than you do when preclearance is denied.

Samuel A. Alito, Jr.:

Can I ask you a question about timing?

Let’s suppose that the district court in Washington moves expeditiously and issues a decision in mid-February.

Are there insuperable problems with postponing the Texas primary so that the plan that is to be used can — doesn’t have to be formulated until after the district court in Washington has ruled?

Texas has a very early primary.

Some States have them for congressional races in — in the fall, and the latest presidential primary I think is at the end of June.

So why can’t this all be pushed back, and wouldn’t that eliminate a lot of the problems that we are grappling with in this case?

Paul D. Clement:

Well, Justice Alito, two — two answers: One is, as a practical matter all of the affected, you know, entities in Texas have gotten together and they have agreed on the ability to move the primary back to April, given — on the assumption that a map could be in place by February 1st.

Now, the primary has been moved from March to April already, so I can’t tell you that it’s impossible to move it again.

But it’s also quite, you know, in a sense, I mean, the question becomes, I mean Texas has made its own determination that it wants to have a relatively early primary.

That’s not something that popped up for this set of elections.

It’s had that in place since at least 1988.

And so the question is how much do you want to interfere with that judgment.

Samuel A. Alito, Jr.:

Well, if we have a binary choice, if it’s either the plan enacted by the Texas legislature or the plan that’s already been drawn up by the court, yes, that could be presumably resolved rather quickly.

But what if neither of those is fully acceptable.

Then is it — is it practicable to have the primary on the date that’s been agreed on?

And if not, then would you just prefer to limit us to those two possibilities or would Texas entertain the possibility of moving the primary back?

Paul D. Clement:

Well, look.

Texas wants the Court to have the opportunity to get this right.

We think the decision below is profoundly wrong.

We think it’s important for this Court to send a clear signal to the courts that would provide relief not just in this case but to future situations where this arose.

Anthony M. Kennedy:

Just one more question.

Paul D. Clement:

Sure.

Anthony M. Kennedy:

Background question about preclearance.

Assume that the court of appeals — the three judge district court in Columbia in the preclearance proceeding finds some problems with two or three of the districts, say, in the congressional plan.

Does it just say,

“there are problems with these districts, we therefore deny preclearance. “

or does it then give guidance and say,

“we would give preclearance if you made the following changes? “

In other words, does it give you a road map?

How do these decisions work?

That’s what I’m asking.

Paul D. Clement:

Well, I don’t think there is a road map for the extent to which they give a road map.

I think there are two things that are crystal clear.

One is that when the D.C. authority, be it the Attorney General or the court denies preclearance, it denies preclearance.

The plan is not precleared.

There is no such thing as preclearance in part or partial preclearance.

As the Justice Department puts it, it doesn’t work like a line item veto.

Now, that’s not to say — and here’s the second point.

That’s not to say that the court doesn’t provide reasoning for its decision or the Attorney General.

And that’s why in Upham, for example, that the court — this Court knew that the objections were to two particular districts, even though the effect in Upham was to not preclear the whole plan.

And it seems to me the mistake of the district court is it effectively treats the unprecleared plan as a nullity.

And that’s the exact word that Judge Johnson used in the lower court opinion in Upham.

Paul D. Clement:

And this Court reversed and it said: No, you don’t ignore that; but on the other hand, what you do is you take into account the judgment of the Attorney General in that case, but other than that, you take the plan into account notwithstanding the fact that it hasn’t been precleared.

Elena Kagan:

But we’ve said over and over, Mr. Clement, that it’s the Attorney General and the district court in D.C. that has exclusive jurisdiction over this set of questions and that we don’t want courts in other parts of the country to try to mimic what those — what that court and the Attorney General are supposed to do.

And you are essentially asking for the district court in the State of Texas to try to predict what they are going to do and to mimic what they are going to do.

And that’s why Justice Alito suggests, well, look, if we said that only the district court in D.C. and the Attorney General should do this, let’s wait until they do it and go from there.

Paul D. Clement:

Well, Justice Kagan, here’s why we are not asking the regional court to mimic the D.C. court’s function.

We are asking it to perform correctly the one — one of the roles that this Court has always made clear the regional court retains.

And that’s to provide temporary relief.

If you look at this Court’s decisions that essentially warn off a regional court from arrogating to itself the final preclearance decision — I’m thinking, for example, of Connor against Waller — those same decisions say, but this is not with prejudice to your ability to provide temporary relief.

Now, our position is quite simple.

If we are in a situation where the regional court has to provide temporary relief, then it should apply the same standards that always apply everywhere to courts issuing temporary relief.

Elena Kagan:

But you are not taking into account the fact that, as Justice Sotomayor said, section 5 itself operates as an injunction.

And it’s an injunction against the use of an unprecleared plan.

Paul D. Clement:

Justice Kagan, I think we are taking that into account.

I mean — and I think that’s at the heart of what’s going on here.

You have to ask yourself the question: What is the remedy that the Texas court in this case was trying — what is the violation, rather, that the Texas court was trying to remedy.

The Appellees proceed and I think your question proceeds on the assumption as if the violation is a section 5 violation.

But that’s not what motivated the court’s opinion, and you can — I mean, look at page 96 of the Joint Appendix, where the court specifically says: Look, Texas has always been cleared.

They need to get preclearance.

So this is not about enjoining them from implementing the plan.

The constitutional violation that is being remedied here and the only thing that gave the Texas court any authority is the one person, one vote violation with the old plans.

Stephen G. Breyer:

That’s what they said they are doing.

I mean, I count eight times in the House plan, the State house plan, and several times in the senate plan where it’s clear and I think it’s fairly clear in the U.S. House plan, they say things like:

“The court began by considering the uncontested districts from the enacted plan that embraced neutral districting principles, although it wasn’t required to give any deference. “

And you say they are wrong about that.

“The court attempted to embrace as many of the uncontested districts as possible. “

So after I got finished reading their opinions I thought, well, there may be a difference between what you say and they say, but I’m not sure that there is a difference that is reflected in the maps.

And so it’s now January 9th.

We have to have something in effect by February 1st.

They said that they are paying attention to what the legislature did and when I looked at the maps, as far as I can tell, they include some more, some less, most in the State senate, but they include a lot of the State’s changes.

So what am I supposed to do?

Stephen G. Breyer:

I mean, I can’t tell whether you are right or wrong without looking district by district by district by district.

What am I supposed to do on January 9th?

Paul D. Clement:

Well, I think on January 9th, Justice Breyer, you should take another look at El Paso County.

Because I think if you look at El Paso County–

Stephen G. Breyer:

In which — in which–

Paul D. Clement:

–In either the congressional map or the house map.

I think if you look at El Paso county what you cannot conclude is that all — 14–

Sonia Sotomayor:

What district is that?

Paul D. Clement:

–What’s that?

Sonia Sotomayor:

What district is that?

Paul D. Clement:

Well, it depends.

If we are looking at the congressional map, I believe it’s district 16 or 17.

And those maps start on page 1.

Stephen G. Breyer:

–Okay.

El Paso County in the original plan I guess was all like number 16.

I’ve got it in front of me.

And they split it, and it was split somewhat differently or not.

Okay.

Then what else?

Paul D. Clement:

Well, I mean, I think you are understating it.

I mean, on the benchmark plan–

Stephen G. Breyer:

No, no, right.

Paul D. Clement:

–there is a whole straight line.

On the enacted plan it was a different straight line.

Stephen G. Breyer:

Correct.

Paul D. Clement:

And in the–

Stephen G. Breyer:

All right.

So right now, why is that wrong?

Why is that wrong?

Tell me why it’s wrong for them to do that?

Paul D. Clement:

–I want to say two reasons why it’s wrong, but first I think that really does answer your premise, which is that all the court was doing was remedying one person, one vote.

Stephen G. Breyer:

No, no, I didn’t say that.

I said in their way of thinking they are taking the map into account.

Now, to sit — the enacted one.

If I disagree with that, I can’t disagree at the level of principle, I have to disagree at the level of particular districts.

That’s why I asked you the question.

So you point to district 16 and I say, very well, tell me what they did wrong, and why?

Because, remember, they are facing a challenge that’s based on section 5, part purpose.

And the district court there said in the D.C.: You don’t survive — I can’t give you a summary judgment on that; purpose here may have been violated.

All right, now you tell me what’s wrong with district 16, which I guess is your strongest case?

That would be helpful.

Paul D. Clement:

No, what I’m — I’m not saying it’s my strongest case.

I’m saying it’s illustrative of the problem.

Another thing that’s illustrative of the problem–

Sonia Sotomayor:

But what’s was the problem?

Stephen G. Breyer:

Tell me what’s the problem?

Paul D. Clement:

–The problem is that the court lost sight of what it was supposed to be doing.

It was supposed to be–

Stephen G. Breyer:

What you said they were doing.

They couldn’t have lost sight at the level of generality, because at the level of generality they said: We are trying to take into account the map.

I’m just repeating myself.

I want to know what is wrong with the drawing of district 16, what they did, given that there is a section 5 challenge based on purpose?

Paul D. Clement:

–And what’s wrong with it is because they neither started with the old benchmark plan and said we are going to solve the one person, one vote problem, nor did they start with the new legislative plan and say is there some violation that allows us to change that plan.

They instead, as they told you said that they were on their own drawing an independent map.

Sonia Sotomayor:

I’m sorry.

That’s incomplete.

John G. Roberts, Jr.:

You can finish, finish your answer, please, Mr. Clement.

Paul D. Clement:

What I was hoping to say is that they — they told you they were drawing an independent map, and what they told you is that they thought that they were under an affirmative obligation not to defer to the legislative enactment because it hadn’t been precleared.

And the oddity of this — I mean look, you’re right.

In certain places, they then turn around and say: But we deferred where we could.

Paul D. Clement:

But the oddity of their position is their first premise, which is the one thing we can’t do in drawing these maps, is look at that — look at that unprecleared map.

There’s no explanation for why, if that premise was right, why would it be even a good thing that were pointing to the other map.

Sonia Sotomayor:

Counsel, I’m not sure how I understand that, okay?

As I looked at one of the El Paso maps, the enacted map created a antler-type district, a head and two unconnected antlers on top, nothing tying them together.

The district court went back to the benchmark and said: This is the benchmark district, now I’m going to draw the districts around it that fall naturally, trying to stay within neutral principles of not dividing up the city more than I have to, and it came out with another district.

I don’t understand what principle, what legal principle, the district court was violating that makes what it did with that particular county wrong.

You’re saying they should have given deference to an oddly-shaped district that changed a prior benchmark that’s been challenged as having been created specifically to minimize the Latino vote.

All of the challenges that relate to El Paso are very significant.

The district court has already denied summary judgment on that.

Tell me what legal principle they violated, other than the deference principle that you’re relying upon?

Paul D. Clement:

The basic principle they violated is they drew an interim order that they thought wasn’t a remedial order without it being based on any finding of substantial likelihood of a violation.

Sonia Sotomayor:

That’s your–

Paul D. Clement:

You may be right.

There may be a problem with those maps in El Paso.

I don’t think so, and I would like to talk about that.

But if the district court had said, you know, there’s a problem with this because the two antler — the deer with two antlers, that violates — that’s a substantial likelihood of violating the Constitution.

We’re going to remedy that.

If that’s what they did, this would be a very different case.

Now, I do want to talk about the deer with two antlers, because what that ignores is that in the benchmark plan, the deer had one antler and an antenna.

And so the district court — the map the district court drew doesn’t look anything like the benchmark, and actually the map that the legislature drew looks very much like the benchmark.

And so I think that just shows that what was going on here by the district court was something very different from either remedying a one-person, one-vote problem with the benchmark or from correcting specific identified problems with the legislative–

Antonin Scalia:

I — I had thought, Mr. Clement, that — that one of your objections was that in deciding whether they’re using the benchmark or — or the — the legislature’s proposed new plan, whichever one they’re using, they — in drawing up their own plan, they assumed the validity of all of the challenges.

Is — is that not the case?

Paul D. Clement:

–Well, that is the case, Your Honor, and that is one of the many problems with the way that the Court proceeded here.

Because once you lose sight of the fact that, look, we only have remedial authority if we’re remedying substantial likelihood of violations that are identifiable and particular, well, then what are you going to do?

What this district court did, after he started where Justice Breyer suggested, is that the district court judges then said: Look, we want to avoid the challenges that are brought by the plaintiffs.

And what they mean by “avoid” is they basically take all the allegations at face value and then redraw–

Anthony M. Kennedy:

But you don’t have any problem, if I’m a district judge and I think there is a substantial likelihood that a particular challenge would succeed, you don’t have any problem with my drawing an interim plan to avoid that likelihood.

Paul D. Clement:

–Absolutely no problem at all, Justice Kennedy.

And the great thing about that is that gives the district court a familiar role to play applying familiar standards, and it gives this Court something to review.

Ruth Bader Ginsburg:

But the district court in that — in that scenario is projecting what the D.C. court that has exclusive authority is going to do.

And that’s why I find your — your position troublesome.

You’re asking one court to make its best guess at what another court is likely to do, and that other court has exclusive jurisdiction.

Paul D. Clement:

Can I respond to that, Justice Ginsburg, as follows, which is, I had assumed that Justice Kennedy’s question was not specific to section 5 and could just as well be a section 2 problem–

Anthony M. Kennedy:

Section 2.

Paul D. Clement:

–or an equal protection under the Constitution problem.

And in this case, there is no problem.

All the court is doing is making a substantial likelihood determination of an issue that it’s ultimately going to confront.

Elena Kagan:

But haven’t we also said that, with respect to section 2 and constitutional violations, that those allegations would be unripe in the — prior to the district court or the Attorney General clearing a plan?

Paul D. Clement:

Absolutely, Justice Kagan.

But I think it’s important to understand that to the extent that the district court in this remedial phase should take section 5 into account, it’s just in considering whether or not the remedial plan is consistent with section 5 principles.

And that’s what the judges did in this case with respect to their own plan.

So we’re not I’m asking them to do something with section 5 that they otherwise wouldn’t do.

And again, I think if you come back to the particular question of what are they trying to remedy, they are trying to remedy the one person, one vote problem.

So if that’s what they’re trying to remedy, why wouldn’t they take into account the legislative policy judgments reflected in the unprecleared plan if that’s — if that’s the state we’re in, if that’s the snapshot we’re in.

Keep in mind, this Court has throughout–

Elena Kagan:

Well, just because section 5 says that there’s no presumption of regularity attached to that plan, and indeed, that it’s unlawful to put that plan into effect without the proper approvals.

Paul D. Clement:

–Two things, Justice Kagan.

One, I would beg to differ that what section 5 says is that there’s no presumption of regularity.

And I think that’s — it’s not just a quibble.

Because I think if what section 5 says is that there’s no presumption of regularity, or no presumption of good faith, then section 5 I think is closer to the constitutional edge than this Court said in Northwest Austin.

I think all it says–

Elena Kagan:

Section 5 says somebody has to clear it before it can go into effect.

Paul D. Clement:

–Absolutely.

But I don’t think that means that the assumption is that the legislature didn’t act in good faith in enacting the provision.

And that brings me to my second point–

Elena Kagan:

Nobody said the opposite.

The question just is, does somebody have to clear it?

Here, it wasn’t clear.

Paul D. Clement:

–Okay.

Paul D. Clement:

I agree, but then the question is, if there’s not a presumption of bad faith, then why wouldn’t the Court take that legislative judgment into account in drawing its remedy for the one person, one vote violation in the remedial district?

If I could add my second point, which is the other thing to keep in mind is the preclearance obligation is not driven by congressional judgment that these covered jurisdictions are particularly bad at remedying one person, one vote problems.

Obviously, section 5 is driven by concerns about racial discrimination.

So in that sense it’s particularly odd, given that what’s at issue here is a remedy for a one person, one vote problem that you would assume that you’re not going to take into account the legislature’s judgment as reflected in an unprecleared claim.

Elena Kagan:

No, I don’t think–

John G. Roberts, Jr.:

Counsel, I think there’s — I see two different problems and I’m not quite sure how they come out.

One, you cannot assume that the legislature’s plan should be treated as if it were precleared.

The district court in Texas cannot assume or presume what the district court here in D.C. is going to do.

But on the other hand, it can’t presume it the other way.

In other words, it can’t draw its interim plan assuming that there are going to be these section 5 violations, because that’s presuming what the Court’s going to do the other way.

So how do we decide between those two — you have two wrong choices.

How do we end up?

Paul D. Clement:

Well, I think you try to split the difference by trying to apply the preliminary injunction standards.

And I think if you do that, then what you’re going to do is that you’re going to ensure that the remedy that the district court draws for — as an interim matter for the one person, one vote problem, which is not the same thing as preclearance, that remedy is both consistent with the legislative policy judgments, but also with section 2, with the Equal Protection Clause.

And I suppose if this Court wants to, it can say that for purposes of interim temporary relief, the Court can look at section 5 directly.

I would think the better answer is, no, you just focus it on section 2, the Equal Protection Clause, and then you ensure that the judicial plan is consistent with section 5 principles, because that’s the test that the Court’s going to apply in any event.

Anthony M. Kennedy:

Can you — can you tell me with reference to the two districts, other than the Senate district, congressional and State house districts, did Judge Smith defer or use these — the Texas legislature’s 2011 plan as a benchmark to some extent?

Paul D. Clement:

I — I don’t think Judge Smith — if I can answer your question, I think this does: I don’t think Judge Smith did this the way that we think he should or focused on the benchmark.

If you look at the congressional plan, what he did is he just basically picked one of the proposals, that was a bipartisan proposal, the so-called C216.

With respect to the House plan, I think he got it — the Texas House plan — I think he got it closer to right.

But I don’t think he applied the right standard.

And I would ask you to look at Joint Appendix 193, and particularly his consideration of House district 33.

Because there, what Judge Smith did is said, well, you know, there’s these allegations, and I find this — he said the State has persuasive responses, but out of an abundance of caution I am going to redraw the districts.

That doesn’t seem quite right.

I mean, if the State really does have persuasive responses, that ought to be enough to not redraw the districts.

Anthony M. Kennedy:

So you would fault his solution for giving insufficient deference to the State of Texas 2011 plan?

Paul D. Clement:

That’s right, but it’s certainly a fair improvement over what the district court majority did.

If I could reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, Mr. Clement.

Mr. Srinivasan.

Sri Srinivasan:

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

The fundamental flaw with Texas’s approach is that it directly inverts the burden established by the Voting Rights Act.

Section 5 places the burden on a covered jurisdiction to show that a proposed voting change is nondiscriminatory in purpose and effect, and the change can’t go into effect unless and until the State carries its burden in that regard.

Anthony M. Kennedy:

Let me ask you this.

Suppose that this — all the facts are the same except that this is in a State that is not subject to section 5.

Would there be a problem in your view with what the district, with what the district court did, with Judge Smith — with what Judge Smith did?

Sri Srinivasan:

Well, with what Judge Smith did, I guess in that context, Justice Kennedy, there wouldn’t be a section 5 issue at all.

Anthony M. Kennedy:

Right.

Alderson Reporting Company–

Sri Srinivasan:

All you would be dealing with is section 2 or the Equal Protection Clause.

Anthony M. Kennedy:

–And then we could use — then there would be no problem with using Texas as a benchmark, the Texas 2011 as benchmark, as a starting point, as a starting point?

Sri Srinivasan:

Well, I guess what I would say is this, that in the malapportionment context what this Court typically has said the district court should do is to start with a plan that is already in effect and then modify it according to neutral districting principles to remove the malapportionment issue.

Samuel A. Alito, Jr.:

What are neutral districting principles?

Anybody who draws a map faces at the outset certain legal constraints, constitutional constraints, restrictions that are imposed by the Voting Rights Act, maybe some State law restrictions to the extent they are not inconsistent with Federal law.

Once you have gotten beyond that point, all you have left is districting policy.

They are policy choices and there are many factors that can be taken into account in drawing a map: How compact you want the districts to be, to what extent are you going to respect zones of economic interest, to what extent are you going to try to preserve old districts, what about incumbents, what about party registration?

Are you going to try to have balance or are you going to try to favor one party or the other?

That’s all — those are all questions of policy.

And the question is who makes those policy decisions?

Are they going to be the policy decisions that were made by the legislature, or are they going to be the policy decisions made by the district court?

And to say they are going to apply neutral districting principles is a subterfuge.

There is no such thing.

Sri Srinivasan:

I guess I would disagree with you, Justice Alito.

I want to make two preliminary observations on what a district court is supposed to do in this regard, and then I’ll try to walk through the principles that should guide this inquiry.

The first preliminary observation is what a district court is not supposed to do, and what a district court is not supposed to do is to take the unprecleared plan as a given, because section 5 forecloses it.

Now, what’s a district court supposed to do?

It’s not at sea, contrary to the underpinning of some of the arguments made today, because the district court starts with the last legally enforceable plan, which after all is the last manifestation of State policies and priorities.

So you have that as a starting point.

And then it has to modify that plan, of course, to deal with malapportionment issues and to comply with section 2 and section 5–

Samuel A. Alito, Jr.:

I don’t want to interrupt you too much, but even if you do that, even if you start with the old plan and then you modify it to the extent necessary to comply with Constitution and statutes, there are still — I’m sure our computer could shoot out dozens and dozens of possible maps, and somebody has to choose among them.

Samuel A. Alito, Jr.:

Now what criteria does a district judge, does a district court use in making that choice?

Sri Srinivasan:

–There is discretion in the inquiry, Justice Alito.

I am not going to — I’m not going to disagree with that.

What it looks to is the districting criteria that had been applied by this jurisdiction in the past.

For example, in this case–

Antonin Scalia:

It’s not just discretion.

It’s political discretion.

That’s what’s troublesome about it.

It seems to me the government takes an absolutist approach to the proposition that you cannot use an unprecleared plan for any purpose.

All the law says is that you cannot apply a precleared plan.

The plan being applied here is not the Texas legislature’s plan; it’s the plan — a remedial plan adopted by Federal judges.

And to say that they cannot use in drawing up that plan the legislature’s last political decisions seems to me not required by the mere prohibition against implementing that plan as the plan of the legislature.

What would you do if — if the district court in Washington and the district court in Texas, neither one of them acts in time, and it’s too late?

It’s too late to have any — any primaries anymore?

What would happen?

Sri Srinivasan:

–Well, I guess–

Antonin Scalia:

What would happen?

You can’t use the old plan.

You have an absolute rule against using the new plan.

What happens?

You disenfranchise every voter in Texas–

Sri Srinivasan:

–No, I don’t think you should do that.

Antonin Scalia:

–because there may be some voters in Texas, may be, some who will be prejudiced by using the current plan?

I suggest in that situation there is nothing to do but use the Texas plan.

Sri Srinivasan:

Well, I don’t — not in the context of section 5, Your Honor.

That’s one option, but the other option would be to use a malapportioned plan, which this Court has suggested would be something the courts could do.

Now, that is not a preferred option, to be sure.

But we are not in that situation here, because what you have is interim maps that have been developed.

We are not in the kind of emergency situation that you are positing.

Antonin Scalia:

You acknowledge that there are some situations in which you can use the very plan that the Texas legislature adopted, even though it’s not been precleared?

Sri Srinivasan:

Only if there is no time for the district court to adopt a different plan.

But if–

Antonin Scalia:

So it’s no longer an absolute rule.

So the question is whether this is another reasonable exception to a non-absolute rule.

Sri Srinivasan:

–There is an emergency exception, as there is with all sorts of legal rules.

But that’s so far as we would go.

Now, I would like to address the proposition that suggestions what the Court would be doing here under Texas’s view is just a standard application of substantial likelihood of success principles, because it’s not.

It’s decidedly different from standard operation of substantial likelihood of success principles in three fundamental respects.

The first goes to the burden, Justice Kennedy, and I think you alluded to this in your question.

The burden in a preliminary injunction context stays with the same party at the preliminary injunction stage as at the merits stage.

And so when in a preliminary injunction context the court is asking, has there been a substantial likelihood of success on the merits, the same party has to make that showing as has to make that showing at the merits stage.

Here Texas would turn that upside down, because at the merits stage, which is the preclearance proceeding–

Elena Kagan:

Well, would it be okay if we just said, well, Texas has to make the showing?

Sri Srinivasan:

–That would certainly be better.

I think that would improve things quite a bit.

But that’s not what Texas — the approach that Texas proposes today.

But it’s different in two other respects from a standard preliminary injunction context as well.

And one is what Justice Ginsburg alluded to, which is here you don’t have a situation in which the same court that’s going to forecast its ultimate adjudication of the merits is also deciding what it’s going to do at the preliminary injunction stage.

John G. Roberts, Jr.:

Well, that’s exactly right, but you see it only on one side of the problem.

You say, well, you can’t treat it as if it’s being pre-cleared because that would be prejudging what the court is doing in D.C. But you have no trouble with them saying, assuming that there are going to be these section 5 violations, in drawing additional majority-minority districts, which is just assuming in the other way what the court here in D.C. is going to do.

I don’t know how you lean one way and say, it’s horrible, you can’t use it because it hasn’t been precleared, but it’s all right in drawing the interim plan to treat it as if preclearance has been denied.

Sri Srinivasan:

I don’t know about that, because I think what a district court is supposed to do when preclearance is pending is not accept all the challenges.

What it is supposed to do is to apply traditional districting criteria to the benchmark.

So I guess–

Elena Kagan:

So do you contest the view that this district court did essentially accept the challenges, did sort of say, well, look, there are these challenges, so we have to make sure that we don’t do anything that cuts against them?

Sri Srinivasan:

–Well, there is some language in the opinions to that effect, Justice Kennedy.

I have to say the district court opinions here are not a model of clarity.

In some respects, they seem to outline the right inquiry.

If you look at Joint Appendix 137 to 138, I think what the district court said it was doing was starting with the status quo, which is the benchmark, and then modifying it.

John G. Roberts, Jr.:

And if you look — and if you look at Joint Appendix 146 to 147, it looks the exact opposite.

John G. Roberts, Jr.:

It looks like they’re drawing minority coalition opportunity districts to draw them, because they have anticipated how they think the district court in D.C. is going to come out.

Sri Srinivasan:

Well, that’s right, Mr. Chief Justice, and I think we point to that in our brief as an area in which the district court could give further explanation on remand.

John G. Roberts, Jr.:

You do.

Anthony M. Kennedy:

Isn’t it odd that this is a section 2 suit and yet section 5 seems to be driving that — driving it.

That’s the problem with this litigation, it seems to me.

Sri Srinivasan:

I think section 5 can’t help but drive–

Anthony M. Kennedy:

And section 5 applies only to some States and not others.

Texas is at a tremendous disadvantage here in defending the section 2 suit and in drawing — and in having — and the judiciary is at a disadvantage in framing a remedy for a likely, a likely section 2 violation in some of the districts.

Sri Srinivasan:

–Of course, Your Honor, Texas is in a different position precisely because it’s a covered jurisdiction.

And when you have a section 5 case, section 5 can’t help but take precedence in some respects, precisely because a proposed change can’t go into effect unless and until the covered jurisdiction shows that it’s nondiscriminatory in purpose and effect.

But I do think it’s important–

Anthony M. Kennedy:

I wonder if it should take precedence in a section 2 suit.

All this — this is the primary obligation of the Texas district court, is to address section 2 violations.

Sri Srinivasan:

–That — that may be, Your Honor.

But I think then if, if it can’t address the section 5 issue at all, then the one thing that shouldn’t happen is that the section 2 court gives effect to the unprecleared plan, because that is something that the D.C. district court is supposed to do.

Anthony M. Kennedy:

It’s not giving effect to an uncleared plan.

It’s giving effect to a legislative judgment as to what is workable for all the factors and criteria that Justice Alito referred to, county lines, et cetera.

John G. Roberts, Jr.:

We will let you go on for a little longer.

We may have a few more questions.

Sri Srinivasan:

Okay.

Thank you, Mr. Chief Justice.

I appreciate that.

I guess what I would say, Justice Kennedy, is, if you use the unpreclear plan as the starting point, which is what Texas proposes, you are giving effect to that, notwithstanding the preclearance requirement of section 5.

And with the covered jurisdiction, that is something that section 5 doesn’t allow.

Now, I do think it’s important to consider Texas’s preclearance submission in the context of the other statewide preclearance submissions that have been submitted in this election cycle.

If you look at the government’s brief at pages la to 3a, I think what that bears out is that there is not a fundamental problem with section 5 or the way section 5 operates.

The problem insofar as it exists is with respect to the particular submissions that Texas has made, because there were 20 submissions of statewide plans for administrative preclearance.

In all 20 cases, the Attorney General precleared them.

In 19 of the 20 cases, the Attorney General precleared it within the initial 60-day window.

Now–

John G. Roberts, Jr.:

Counsel, I have — Your position — I understand you’re straddling a position.

That’s why you are sitting in the back rather than the front row between the two parties.

But it’s a little unsatisfying because what you say we should do when we are all under the gun of very strict time limitations is we should send it back to the district court so it can give a greater explanation of what it’s done.

Isn’t that going to be very wasteful?

And it’s kind of an odd order from this Court to send to a district court saying, you know, tell us more.

Sri Srinivasan:

–Well, I don’t know that it is, Your Honor, and I have two responses in that respect.

First, and this goes to a question that Justice Alito asked earlier, what is this Court supposed to do in this situation?

And I think one thing that could absolutely happen is if there were a remand the D.C. district court could complete its preclearance proceeding, which would be illuminating the what the Texas district court is supposed to do.

And to have guidance on that–

Stephen G. Breyer:

Did you have — what is that based on?

Sri Srinivasan:

–What I would say is this.

The D.C. district court has scheduled trial to begin on January 17th.

It’s supposed to last 8 days.

Closing argument is on February 3.

If you look at what happened at the summary judgment stage, Justice Breyer, they had summary judgment arguments on one day–

Stephen G. Breyer:

Yes, I read, I read, I read the opinion and what you said on the phone and so forth.

Sri Srinivasan:

–No, not that.

Stephen G. Breyer:

It seems to me that it’s a complicated case.

Let’s suppose you are completely right on your time schedule.

Then they will decide something.

How could any human being redraw maps in 5 days or 10 days where you will have different — 6 different positions.

I mean, I think it’s impossible.

How can you — I don’t see how you can do it.

Sri Srinivasan:

Well, of course, if preclearance is granted we won’t have an issue with drawing maps.

Stephen G. Breyer:

Well, I think there’s — it seemed to me from reading it, I didn’t think that the judge there is ready to grant preclearance.

And the other thing in sending it back, I read the brief and then I read the opinions.

I don’t think I have — I’m not being too generous to the opinions, but I thought that they were saying throughout is: We didn’t try to draw extra coalition or extra opportunity districts; they emerged.

They say “emerged” about seven times.

They emerged as we tried to apply equal vote principles.

And it’s hardly surprising that it would, considering that the population growth is primarily due to the minority expansion.

Stephen G. Breyer:

So it didn’t seem to me — now why do you want us to send it back to get more explanation when that seems to be the explanation, and to me at first blush, it seems like a perfectly good explanation.

John G. Roberts, Jr.:

Maybe — brief answer, please.

Sri Srinivasan:

Yes.

Sure.

I think insofar as the coalition districts and ability districts emerge from growth, there is nothing suspect about them.

The one example I point to is District 33.

If you look at Joint Appendix, pages 146 and 147, it’s not clear what the, what the district court was doing in that regard.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Garza?

Jose Garza:

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

There seems to be general consensus on at least three points that we’ve talked about today.

First, that the unprecleared plan cannot take effect.

The second, that the district court is foreclosed from entering and engaging in an analysis of the issues that are pending before the three-judge court in Washington, D.C., and that at this point, a court ordered plan must be implemented on an interim basis.

Antonin Scalia:

Exclude me from the second.

I’m not sure that I have gone along on that, as you phrased it.

The way you phrase it, you say they cannot even make the kind of preliminary inquiry that your friend suggests.

Jose Garza:

I think we are dealing with a matter of semantics, Your Honor, because the question is, did the Court give the State’s plan deference.

But it itself said that it began, as it should, as it has been directed by this Court with the historical or benchmark configurations, and then respected the State’s plan.

Elena Kagan:

But you know what I don’t understand about your briefs, Mr. Garza.

If the States can’t — if, if — if the plan has not been precleared, you should be saying that the States can’t look at the plan.

But on the one hand you are saying, well isn’t it great because the Court did look at the plan, and on the one hand — the other hand you are saying the Court can’t look at the plan.

So which is it?

Because there is a real tension.

On one page you say isn’t it great, the Court looked at the Texas plan.

And then you say the Court can’t look at the Texas plan.

Jose Garza:

We don’t say that the Court can’t look at the Texas plan.

What we say is that the Court, the Court can’t implement the Texas plan, and it certainly can’t implement the Texas plan if there is any suspect of discrimination.

And what it did was exactly the right measure.

Sonia Sotomayor:

Then you are saying the Court should look at the merits.

Jose Garza:

I think that the Court did the appropriate thing by looking at the — at this matter.

Sonia Sotomayor:

No.

Let’s, let’s go to something Justice Scalia asked was, what does a court do with frivolous claims?

Does it assume under your theory that those frivolous claims are valid?

And if you say no, it shouldn’t assume that, then what level of inquiry should the Court engage in before it accepts or deviates from the enacted plan?

Jose Garza:

I think that the Court should look at — first of all, should not start with the State’s plan.

It should look at where there have been objections made.

And the role of the district court in the District of Columbia is where the question of whether there are frivolous claims have been made.

And there have been no motions to dismiss any of the claims in Washington, D.C. based on frivolity.

Sonia Sotomayor:

So the Texas court cannot — should automatically accept all — that every district that a challenge has been raised in the DC Circuit Court is okay?

Jose Garza:

It should not accept any of the districts that have been challenged.

But I think the difference in terms of even assuming a violation — 22–

John G. Roberts, Jr.:

I’m sorry, I don’t mean to interrupt, but I didn’t follow that.

So long as a district has been challenged in DC, the court in Texas should not accept it?

Jose Garza:

–It should make a determination either way, and it didn’t.

Because in those districts, it didn’t adopt the plans that were put forward by the plaintiffs or the challengers in Washington, D.C. it looked at the benchmark plan as a starting point.

Anthony M. Kennedy:

But could it look at the district and say, well, it respects county lines; it follows a river; it’s got urban/rural.

Can it look at it for that reason and rely on the legislative judgment as making a sound judgment that the river runs through here, and the county line is there and so forth?

That’s what seems to me the difficulty with saying oh, you can’t look at the plan.

Jose Garza:

I think the problem with that, Your Honor, is that then it would be assuming that the State is correct, that it doesn’t violate section 5.

That is — that is an inquiry that is reserved to the district court in the District of Columbia.

John G. Roberts, Jr.:

And that’s right, but it goes the other way when you say they can’t approve something that’s been challenged.

Aren’t you assuming that the plaintiffs are right?

Jose Garza:

No.

John G. Roberts, Jr.:

And that’s an inquiry that belongs to the district court in D.C.–

Jose Garza:

No, because what the court did, is it didn’t accept as a remedy what the plaintiffs proposed there.

It reverted to State policy which is what it’s directed to by this Court.

It direct — It went back to State policy and it looked at the benchmark plan, and it started with the benchmark plan.

Even with the congressional plan, where there are four new districts, and there is no comparable district in the benchmark, it looked to the legislatively enacted plan to determine where to replace those districts.

Antonin Scalia:

But that is not the current State policy.

The benchmark plan is gone.

Antonin Scalia:

It’s old.

The Texas legislature now has a different policy, and that, you say, should be ignored.

Jose Garza:

That policy cannot be deferred to.

It is incorporated in the court’s plan by — in the manner in which it did review the plans.

That is–

Antonin Scalia:

There is a presumption of its invalidity.

You can’t presume it valid, but you can presume it invalid.

Jose Garza:

–Either way.

And, in fact, what the Court did — 23–

Antonin Scalia:

Well, not either way.

You are presuming it invalid.

Jose Garza:

–It — you are not presuming it is invalid.

You’re — you are suggesting that — you are reverting to the next State policy.

You are not incorporating it, but you’re not — you are not making any decision.

And the way you sort of walk that tightrope is you go to what the State policy was before the enacted — plan.

Samuel A. Alito, Jr.:

Let’s say a legislature says — says we have a new policy, and that is that once we’ve satisfied our constitutional obligations and our obligations under the Voting Rights Act, the only thing we are going to do is try to draw the districts that are the most compact possible, compactness over everything else.

They draw up a plan that embodies that policy, and it’s challenged under section 5.

Now can the district court just say well, that’s — the State’s policy is compactness over everything else, but we don’t agree with that, because we have other neutral principles that advance the interest of the collective public good, which is the — the term that this — the — the words that this Court used.

Can they do that?

Jose Garza:

I don’t believe they can, and this Court didn’t.

The Court in fact–

Samuel A. Alito, Jr.:

Well, if they can’t do that then you are saying that they are constrained by State policy, except to the extent the Constitution or the Voting Rights Act requires otherwise.

Jose Garza:

–And in this case, part of the Voting Rights Act is section 5, and in those areas and in those districts where there have been challenges — and by the way the district court has — in the District of Columbia has determined that those challenges are substantial, because they have denied preclearance.

And in fact they’ve said that Texas has not disputed–

Ruth Bader Ginsburg:

They denied summary judgment.

They didn’t deny preclearance.

Jose Garza:

–I’m sorry?

Ruth Bader Ginsburg:

They denied summary judgment.

Jose Garza:

They denied summary judgment, but they went even further.

They said Texas has not disputed many of the intervenors’ specific allegations of discriminatory intent.

Jose Garza:

So it’s — it’s — and under the summary judgment standard, they have to find that the challenges that are being made are substantial.

The district court in Texas was not free to incorporate discriminatory districts in its interim plan, and it didn’t.

But it first went to the State’s plan, the benchmark plan, to begin its process on how it was drawing those districts.

And there is a good reason why Texas is covered under the Voting Rights Act.

As this Court indicated in — in LULAC v. Perry, there is a terrible history of historical discrimination in Texas, including discrimination–

John G. Roberts, Jr.:

–The constitutionality of the Voting Rights Act is not at issue here, right?

Jose Garza:

–That’s not.

John G. Roberts, Jr.:

Okay.

Maybe you could turn to the issue that I see on Joint Appendix 146 and 147.

They don’t say a minority coalition opportunity district just happened to emerge.

It said that district 33 was drawn as a minority coalition opportunity district.

And we have never held that it is appropriate or even permissible to draw a district where you are putting in together two minorities, two different minority groups.

And it seems to me that that raises all sorts of different concerns.

It’s one thing under the Voting Rights Act to say that this group votes as a bloc and has been discriminated against in its ability to elect representatives of its choice.

It’s another thing to say that two different minority groups are put together because they share some particular view so that one candidate is going to be each of theirs candidate — candidates of choice.

That goes quite a step further from what we have upheld under the Voting Rights Act.

And here you are have of the district court creating that in the absence of any State expression of a desire to create that type of — of district.

Jose Garza:

I think — I think that the statement that the Court made is a correct statement, it did create a coalition district in Dallas.

But that’s not describing how it reached that — that district.

However, it describes how it reached that district is in a number of other places; however, as discussed above the court has not intentionally created any minority districts.

John G. Roberts, Jr.:

New district 33 was drawn as a minority coalition opportunity district.

I don’t see how that can be read any way other than saying — saying when we sat down and drew it, we drew this one as a minority coalition opportunity district.

Jose Garza:

Of course it can be read differently than Your Honor’s interpretation of this, because the court has said over and over again we did not attempt to create coalition districts, we did not attempt to draw–

John G. Roberts, Jr.:

I’m sorry, when you are saying something can be read differently than that, and say because they said something else somewhere else, that is not responsive.

Jose Garza:

–What I’m — what I’m suggesting is what he is saying is that this is the result of what they have done.

That sentence can also be interpreted as saying this is the result of what we have done.

We have created a–

Antonin Scalia:

Drawn as?

Drawn as the coalition?

Jose Garza:

–Yes.

Jose Garza:

Yes.

Stephen G. Breyer:

–two sentences forward, if I could help with the reading, the fourth new district, district 33 was drawn in the Dallas-Fort Worth Metroplex

“to reflect population growth in that area. “

All right?

Then he goes on to say just what Justice Scalia says.

And I — I did read that as saying, well, when you apply — I read it consistent what they have said in — elsewhere, which is that what they are doing is, population grows, you have to have one person, one vote; the legislature itself in the new plan did create a minority, whatever you — the opportunity district here, so we are following what they did.

We are taking into account population, and it turns out to be, and we do create it as — in which case there is some ambiguity here.

Jose Garza:

Precisely.

And there is no independent evidence that this was a racial gerrymander.

What do courts look at for evidence of racial gerrymanders?

Split voting precincts where you go out in cars and bring in minority voters.

This district maintains voting precincts intact.

It is entirely within one county.

It is a compact district.

Especially when you compare it to the district in that part of the State–

John G. Roberts, Jr.:

I’m sorry, why — why do you care — why do they care then that it was drawn as a minority coalition opportunity district?

You are saying they didn’t do that at all.

They just followed precinct lines and everything else.

Why would they say something?

Jose Garza:

–I believe it is describing what the results of their map drawing is, and I think that is perfectly legitimate.

Anthony M. Kennedy:

Can we infer from either the ambiguity or the other reading of the sentence that the Chief Justice suggested that in the court’s view it was desirable to have a minority coalition district?

I draw that inference.

Jose Garza:

I think — I think it is desirable to have a minority district there.

Anthony M. Kennedy:

A minority coalition district?

Jose Garza:

A minority coalition district.

Moreover, I think the court is–

Anthony M. Kennedy:

All right.

So you would defend the plan on the grounds that this is a sound result?

Jose Garza:

–I believe that the plan that was drawn by the court is fair.

Is it the optimum plan that the plaintiffs wanted?

Jose Garza:

It is not.

Antonin Scalia:

One of — one of — one of the basic rules that was followed in drawing up the court plan was not to divide any voting districts, right?

Jose Garza:

That’s one of the principles.

Antonin Scalia:

Why?

Why did the — that certainly is not a principle that the Texas legislature agrees with.

Jose Garza:

There is two reasons, Your Honor.

One is–

Antonin Scalia:

So the court just made it up?

Jose Garza:

–No.

There are two reasons why the court saw maintaining voting precincts is important.

One is because that is what it’s been directed by this Court in Bush v. Vera.

In Bush v. Vera the Court said we have an interim election or a — or an impending election and it’s important for elections administrators in — in order to be able to — to implement without — without interference a legitimate election process, to have whole precincts, because whole precincts makes a big difference in terms of how the election is — is administrated.

The second reason is that this court didn’t adopt this plan without any inquiry into the standards and proposals from the parties.

It was very deliberate.

It was very cautious, and it was very open.

We had 3 days of hearings on what these plans should look like and what the standards ought to be, including testimony from elections administrators and from the Texas Secretary of State.

And in every instance those administrators and that representative from the Secretary of State said the most important thing the court should consider, if it’s going to order us to start conducting elections under a different plan, is maintain voting precincts, because that is the most cumbersome part.

Samuel A. Alito, Jr.:

Well, if Texas says we don’t care about maintaining voting precincts; this is — this is a matter of — of administrative burden and expense, and we are willing to bear that, so disregard that.

The district court can say well, we think, we disagree with you; in order to make it more convenient to hold the election and less expensive for Texas, we are going to respect voting districts.

They can do that?

Jose Garza:

The State didn’t do that in this instance.

Samuel A. Alito, Jr.:

But could they do that?

Jose Garza:

And–

Samuel A. Alito, Jr.:

Could the district court do that?

That’s my question.

Jose Garza:

–It’s — yes, I think they could, because there’s still the authority of this Court in Bush v. Vera that directs courts, in drawing interim plans for impending elections, to be cautious about that, number 1.

And number 2, if in fact in order to get an appropriate map you must split a number of precincts, which means then that you can’t conduct the election on April 3, we still have time, as — as the government’s attorney indicated, the — there are States that conduct primaries as late as June 26th.

The drop-dead deadline is not April 3rd, it’s November 6th.

So if this Court disagrees with our position, and is determined to send this back to the district court, then it should consider this: the District Court in the District of Columbia is about 30 days away from rendering a complete decision in the section 5 case.

That would place the court in Texas in exactly the Upham circumstance.

Jose Garza:

In that circumstance — and the court is poised to move.

It can move with all due diligence.

It had two weeks of trial in which it heard testimony on the plaintiffs’ claims.

It is ready.

Once the District Court in the District of Columbia tells us these are the problems with the State’s plan, the court in Texas is primed to make its decision on the plaintiffs’ claims under section 2 and the Constitution.

And under that circumstance–

Sonia Sotomayor:

Mr. Garza, what’s the real drop-dead date?

It’s not November 6th, because that’s the date of the general election.

What’s the latest election — primary election that any State has?

June 26th?

Jose Garza:

–June 26th, Your Honor.

Sonia Sotomayor:

All right.

So, working backwards — the last–

Samuel A. Alito, Jr.:

That’s for presidential primaries, isn’t it?

I don’t want to interrupt, but isn’t that the date of the last presidential primary rather than congressional?

Jose Garza:

That’s correct.

So Utah is the last — is the State with the last primary in which it conducts both the State’s primary and the presidential.

There are in States — in fact, States that conduct primaries as late as September that have no presidential primaries at all.

Sonia Sotomayor:

–So how many days before that election do the — does the voting mechanism or apparatus need to set up the voting booths, et cetera?

Jose Garza:

The — the critical date is 45 days from the election in order to ensure — sending out a ballot to overseas voters, including the military.

So if — if you go back 45 days and then you give the jurisdiction sufficient time to develop a ballot, because you need a ballot to send to the — to the soldiers, then that’s about — what they — what the testimony was is that takes about — 90 days, I believe is what they testified.

So 45 days plus 90 days, and that’s the drop-dead deadline.

Antonin Scalia:

Go back from June 26th.

Where does that leave us?

Jose Garza:

If go back from June 26th–

Antonin Scalia:

June, May, April.

It’s the end of March.

Right?

Jose Garza:

–You could develop a plan by the end of March, and we could conduct an election in June, in late June.

Antonin Scalia:

When do you expect the D.C. court to finish?

Jose Garza:

I would expect it to finish by — within 30 days of today, because we have closing arguments on the 3rd of February, and if the court will act with the sort of diligence that it did on summary judgment, which was a complicated record and a large record, 6 days later, it made its determination.

It didn’t issue its memorandum opinion, but it gave us something that we could run with.

John G. Roberts, Jr.:

When — and when do you expect our decision on the appeal from the district court from D.C.?

[Laughter]

Jose Garza:

Later this afternoon.

[Laughter]

Ruth Bader Ginsburg:

They did write in a — in their summary judgment opinion, they made it sound like it’s very complicated.

Jose Garza:

Yes.

Ruth Bader Ginsburg:

And so that’s why I’m — I have some doubts about how swiftly they’re going to render their decision after — what is the date, the trial will end on February 3rd?

Jose Garza:

That will be closing arguments, yes, Your Honor.

Anthony M. Kennedy:

Is there anything in the opinion from the three-judge court in the District of Columbia that indicates that there are some likely potential violations that are section 2 violations as well as section 5 violations?

Jose Garza:

From the — from the–

Anthony M. Kennedy:

And — and I can amend that to — and in the submission of the parties.

Jose Garza:

–In the District of Columbia?

Anthony M. Kennedy:

Yes.

Jose Garza:

Well, I believe that the — that the court has found that the — the plaintiffs have made substantial claims with regard to retrogression and intentional discrimination.

And of course, intentional discrimination–

Anthony M. Kennedy:

The second — the second being section 2 violations as well.

Jose Garza:

–Intentional discrimination is a component of section 2, yes, Your Honor.

And it — and I think it’s important to note that Judge Smith in Texas used, in a manner of speaking, the preliminary injunction standard that’s being advocated by the State, and they would not be able to meet that standard because generally, Judge Smith determined that the plaintiffs had presented colorable claims of statutory or constitutional infirmity.

Ruled that the plan was an extreme gerrymander.

Ruled that elimination of District 149 presented section 5 problems.

Ruled that the legislature dismantle the minority district in Essex County that presented–

Anthony M. Kennedy:

Do you have substantive objections to the plans suggested by Judge Smith in the house and congressional districts?

Jose Garza:

–Yes, Your Honor.

We believe that there are section 5 claims with regard to Harris County.

Judge Smith addressed the constitutional–

Anthony M. Kennedy:

Do you have some section 2 objections?

Well, that doesn’t quite work.

You have to talk about retrogression, I suppose.

Jose Garza:

–Right.

And in — in District — in Harris County, the court did equalize population per the failure of the State to justify the sorts of deviations that are contained in that district, but didn’t provide, in our opinion, additional remedies.

But Judge Smith’s proposed plan for the State house is in fact very similar to the plan that was proposed by the majority.

It — it differs by only one minority district.

That is one additional minority district is contained in the interim plan than is contained in Judge Smith’s plan.

Elena Kagan:

Mr. Garza, what would you think of a system in which the Court could start with the Texas plan and say — the new Texas plan — and say anything that is consistent with statutes and the Constitution can go forward, but it’s Texas that has to show that consistency.

So flipping the burden of proof in the way that Mr. Srinivasan was suggesting?

In a way that makes it more consistent with section 5’s burden.

Jose Garza:

Well, I — I think that our position is that section 5 is clear that this Court should not start with the interim plan, but if the Court disagrees with me, I think that that’s a much more reasonable approach than the one offered by the State, for the same reason argued by the United States: that is, that in the State’s argument, you really turn section 5 on its head, because one of the principal benefits for the minority community in having section 5 is it alters of the burden of proof.

And if you maintain the burden of proof on the State before it can implement any portion of its newly adopted but unprecleared plan, that’s far more preferable than shifting the burden, which would be inconsistent with section 5 in its intent.

I don’t think I have anything else.

Thank you.

John G. Roberts, Jr.:

I don’t think we do, either.

Thank you, counsel.

Mr. Clement, you have 3 minutes remaining.

Paul D. Clement:

Thank you, Mr. Chief Justice.

Just a few points in rebuttal.

As one of Justice Alito’s questions highlighted, one of the things that makes remedying a one person one vote problem particularly unique is there’s literally an infinite number of ways to solve the problem.

And for that reason, this Court has always looked wherever it could to legislative guidance.

So much so that in White v. Weiser, this Court looked for legislative guidance to a plan that had been declared unconstitutional for failing to accommodate one person one vote problems, but yet this Court still said that the district court erred in not taking them into account to the extent that it could.

As to the hard choice, if it comes to that, of using either the legislative plan that reflects the legislative will, or the judicial plan that even the United States concedes is flawed, I think this Court has faced even more difficult choices in the past: Bullock v. Weiser and in Whitcomb.

And in both of those cases, this Court chose between an adjudicatedly unconstitutional State plan and a judicial remedy that it determined was flawed.

And in both cases, it ordered the election to take place under the flawed constitutionally adjudicated imperfect plan.

Compared to that, simply saying that an election should go forward under a plan that hasn’t been precleared is a far less serious step.

Now, there was a reference made to the 3 days of hearings.

But the problem is, 3 days of hearings with an unadministrable standard is worse than 1 day of hearing with an unadministrable standard.

And what we ask is for a preliminary injunction standard that’s familiar to everybody, everybody understands and everybody can apply.

Antonin Scalia:

Well, why — why shouldn’t it be inverted the way your friend suggests?

Paul D. Clement:

Well, I’ll join everybody in saying that that’s — that’s better than the — than the worst alternative I face, which is to say it’s better than the district court’s opinion.

But here’s why it shouldn’t.

Paul D. Clement:

That actually further intrudes on the D.C. court.

Because the question that the remedial court should not be asking is, geez, do I really think — you know, what are the odds that the D.C. court is going to preclear?

It shouldn’t ask that question at all.

It should ask the questions that are before it.

Is there a section 2 violation?

Is there an equal protection violation?

If there aren’t those and I use the State’s plan, does that create a section 5 violation?

That is different from the preclearance question.

And on that section 5 question, the burden is not logically on the State.

And that’s the same section 5 question that the Court considered on its own motion, because it understands that even when it takes a plan, it has to be consistent with Section 5 principles.

Now, Justice Kennedy, you’ve asked the question, what if we take section 5 out of this, what happens?

Then it’s an easy case.

Then it’s the preliminary injunction standard.

Now, the objection to that, of course, is, well, but how can you take section 5 out of it?

But there’s not interference with section 5, because Texas still understands it needs to get preclearance — before its changes can take permanent effect, it absolutely positively needs preclearance.

It’s never wavered from that prohibition.

So you go back–

John G. Roberts, Jr.:

Finish your sentence.

Paul D. Clement:

–I was simply going to say if you go back, the default problem here is that there’s an infinite number of solutions.

It’s particularly a problem with respect to the Congressional map, where there’s not four new seats.

There’s nothing else to defer to than the judgment of the legislature reflected in this plan, notwithstanding that it hasn’t been precleared.

John G. Roberts, Jr.:

Thank you, counsel.

All counsel, I appreciate the extraordinary efforts you had over the holiday season.

Thank you very much.

The case is submitted.