texas legislator of the plan that has been drawn up by the court. that could be presumably resolved rather quickly but what if neither of those is totally acceptable? then is it practicable to have the primary on the date that has been agreed on and if not, would you just prefer to limit us to those two possibilities or would texas entertain the possibility of moving the primary back? ..

for the extent to which they give a road map. the two things that are clear is that when the b.c. authority the attorney general or the court denies preclearance it denies clearance. it isn't clear. there is no such thing as plea terrence in part. as the justice department puts it it doesn't look like a line-item veto. that doesn't say the second point to say the court doesn't provide reasoning for its decision or the attorney general, and that's why for example this court knew the objections were the two particular districts even though the effect was not to pre-clear

the whole plan and it seems to me the mystique of the district court is it effectively treats the plan as a moldy and that is the exact word judge johnson used in the court brief reversed and said you don't ignore that but on the other hand when you do is 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 it hasn't been cleared. >> we said over and over that it's the attorney general and the district court in d.c. that has exclusive jurisdiction in this set of questions and we don't want the courts in other parts of the country to try to mimic what that court and the attorney general are supposed to do. and you are a essentially asking for the district court in the state of texas to try to predict what they are going to do and mimic what they are going to demand that is why justice alito suggests look, if we said 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. >> justice, here's why we are not asking the regional court to mimic the d.c. court function. we are asking it to perform correctly one of the rules that this court has always made clear the regional court retains and that is to provide temporary relief. if you look at the court decisions that essentially ward off the regional course from the irritating to would solve final preclearance decision i'm thinking for example the same decisions say this is not prejudice for your ability to provide temporary relief. our position is quite simple if we are in a situation where the court has to provide to relief it should apply the same standards apply everywhere to the courts issuing temporary relief. >> you are not taking into account as justice said section 5 itself operates as an injunction and it's an injunction of the use of them

and crew cleared a plan. >> justice kagan we are taking that into account and that is what is at the heart here. what is the remedy that the texas court in this case was trying but the texas court was trying to remedy. i think that your question is on the assumption that if the violation is a section five violation but that isn't what motivated the court's opinion and you can look at page 96 of the joint appendix for the court specifically says texas has always been clear they need to get preclearance so this is not about enjoining them for implementing the plan. the constitutional violation that is being remedied and the only thing that gave them any of 40 is the one person one vote violation with the old plans. i count about eight times in the house plans several times in the senate where it's clear.

the court begin by considering the uncontested district from the enacted plan that embraced the neutral principles of the wood wasn't required to give any difference. you say they are wrong about that. the court attempted to increase as many of the uncontested districts as possible. so after i got finished reading their opinions i thought there may be a difference between what you say and they say there is a difference that is reflected in the maps to leave so it is now january 9th. we have february 1st. they said that they are paying attention to what the legislature did. and when i look at the map as far as i can tell, they include some more, some less book include a lot of the state's changes. so what am i supposed to do? i mean, i can't tell whether you are right or wrong looking

district by district. what am i supposed to one january 9th? >> on january 90 should take another look at el paso county because if you look at el paso county in which either the congressional map or the house map if you look at el paso county what you cannot conclude -- it depends if we are looking at the congressional map i believe it's district 16 or 17 and those maps stored on -- >> the plan on guess was all like number 16 they split it and was split somewhat differently or not. islamic a fancher or understating it. >> a state line on the enacted plan tell me why it's wrong.

>> it's wrong but i think really does answer your premise which is that all the court was doing was remedying one person. >> i didn't say that. i said in their way of finding they are taking that into account. now if i disagree with fact i can't disagree at the loveless principle i have to disagree at the level of particular districts. that's why i asked you the question. you point to the district 16 and i say very well tell me what they do wrong and why. because remember, they are facing a challenge that is based on section 5 and the district court said in the d.c. i can't give you some judgment on that. they have been violated. now you tell me what is wrong with district 16 which i guess

is you're strong this case. it would be helpful. >> i'm not saying it is my strongest case it is illustrative of the problem. >> tell me what is the problem? >> the problem is the court lost sight of what it was supposed to be 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 -- i am just repeating myself. i want to know what is wrong with the drawing of district 16 what they did again that there is a section five challenge based on purpose and what's wrong with it is because they neither started with the old benchmark plan and said we are going to solve a one-person one-vote problem nor did they start with of the new legislative plan and say if there is some violation that allows us to change that plan instead as they told you they said that they were on their own. >> finish your answer, please. >> what i was hoping to seize

the told you day they were drawing an independent that and what they told you is that they thought that they were under an affirmative obligation not to refer to the legislative enactment because it hadn't been pre-cleared. and the oddity of this. you are right in certain places they then turn around and say we dever where we could. but it is the oddity of their position is the first premise which is the one thing we can't do on these maps is look at that map. there is no explanation for why it that premise was right. >> i'm not sure why it understand that. okay? as i look at one of the el paso maps, the enacted now map create a day district and to unconnected antlers on the top

of them to become of them tied together. they put that in 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 the neutral principles not dividing the city of 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 dalia leading that makes what it did with that particular county rolm. you are saying they should have given deference to an oddly shaped district that changed the prior benchmark that's been challenged as having been created specifically to minimize the latino voting.

all of the challenges that relate to el paso are very significant. the district court already denied judgment on that. tell me what legal principle they finally did other than the difference principle that you are relying upon. >> the basic principle the violated is the true an interim order they thought wasn't a remedial order without it being based on any finding of substantial likelihood of a violation. if the district court had said there's a problem with this because the year with two and -- dewitt to antlers we are going to remedy that. if that is what they did this would be very different case. i do want to talk about the year with antlers but it's in the benchmark plan they had one and four and an antenna and so the

district court drew doesn't look anything like the benchmark that the legislature drew looks very much like the benchmark and so i think that shows what was going on by the district court something's very different from either remedy and the one-person one-vote problem on the benchmark or correcting specific identified problems with the legislature. >> i thought that one of your objections was that in deciding whether they are using the benchmark for the legislature's proposed plan which of the one they are using and in drawing up their own plan they assume the validity of all of the challenges. is that not the case? >> is the case and it 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 are

remedying suspended because a substantial likelihood identified in particular then what are you going to do? what this district court did after he started where the justice suggested is the district court judges then said we would avoid the challenges that are brought by the plaintiffs and what they mean by avoid it is they basically take all the allegations had to face value. >> but you don't have any problem if i may district judge and i think there's a substantial likelihood that a particular challenge would exceed you don't have any problem with my drawing an interim plan to avoid that likelihood? >> no problem at all and the great thing about that is that gives a familiar role to play applying to the standards and against this court -- >> in that scenario it is projecting what exclusive offer ready is going to do and that is why i find your position

troublesome. you are asking one court to make its best guess at what another court is likely to do and that has brought exclusive jurisdiction. >> can i respond to that. i had assumed justice kennedy's question wasn't specific. it could just as well be -- >> or an equal protection and in that case there is no problem. old court is doing is making a substantial likelihood determination of the issue that it's ultimately going to confront this because and we said retrospection due to respect to section 2 that those obligations wouldn't be right in the prior to the district court or the attorney general clearance? >> absolutely but i think it's important to understand to the extent the district court in this remedial phase should take section 5 into account it is just in considering whether or not the remedial plan is consistent with section five principles and that is what the

judges did in this case with respect to their own plan slam asking them to do with section five is what they otherwise wouldn't do. and again i think if you come back to the particular question of what are they trying to remedy it is the one person one vote problem so if that is what they are trying to remedy why wouldn't they take into account the legislative policy judgments reflected in the plan if that is the state we are and if that is the snapshot we are in. keep in mind this court has throughout -- >> section 5 says there is no presumption of regularity attached, and indeed that it is unlawful to put the plan into effect without the proper approval. >> two things. one, i would beg to differ but there is no presumption of regularity. and it's not just a quibble because i think it section 5 says that there is no presumption of regular nettie or of good faith section 5i think

is closer to the constitutional edge the northwest. i think .... >> section 5 says someone has to clear it before it can go into effect. >> absolutely but i don't think that means the assumption is the legislature didn't act in good faith in enacting the proficient >> nobody said the opposite. the question is still somebody have to clear it and hear it wasn't. >> i agree but then the question is if there is in the presumption of bad faith then why wouldn't the court take that legislative judgment into account and draw its remedy for the one person one vote of ovulation in the remedial district. can i get my second point which is you have to keep in mind preclearance obligation isn't driven by congressional judgment that these covered jurisdictions are particularly bad at remedying one person and one vote problems. section five is driven from the concerns of the racial discrimination so in that sense it is particularly odd given what is at issue here is the remedy for one person one vote that you would assume you are

not going to take into account the legislature's judgment as reflected in the undeclared. >> i see two different problems i'm not sure how to come out. one, you cannot assume the legislature's plan should be treated as if it were cleared. the district court in texas cannot assume or presume with the district court in d.c. is going to do. but on the ever handed cannot presume it the other way. a cannot draw its interim plan assuming if there will be the section 5 violation because that is presuming with the court is going to do the other way. so, how do we decide between the two? how do we end up? >> you try to split the difference by trying to apply the preliminary injunction standards and i think if you do that then what you are going to do is ensure the remedy that the district court droll's in the interim matter as the one person one vote problem which is in the same thing as preclearance that

the remedy is both consistent with the legislative policy judgment but also with section 2 with the equal protection clause and if it wants to it can save for the purposes of the internal temporary relief the court can look at section 5 directly. i would think the better answer is focus on section to equal protection clause and then ensure that the judicial plan is consistent with section five principles because that is the test the court is going to apply. >> can you tell me with reference to the district's other than the senate congressional and state house district did the judge dever or use the legislature's 2011 plan as a benchmark? >> i don't think the judge, if i can answer your question i don't think that judge smith did this the way we think that he should or focused on the benchmark. if you look at the congressional plan what he did is basically picked one of the proposals the

was a bipartisan proposal. with respect to the house plan i think that he got it closer to write but i don't think that he applied the right standard and i would ask you to look at the appendix 193 and his consideration of the house district 33 because they're what he did is said well there's these allegations, and the state has persuasive responses without an abundance of caution i'm going to withdraw the district doesn't seem right of the state really does have persuasive responses out to be enough. >> so you would fold his solution for giving insufficient difference to the state of texas 2011 plan? >> 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. >> thank you. >> thank you mr. chief justice and may i please the court the

fundamental flaw is that it directly inverses the burden of this voting rights act. section five has a burden on the covered jurisdiction to show a proposed voting change is nondiscriminatory and the change can't go into effect unless and until the state carries -- >> let me ask you this. suppose all the facts or the same except this is an estate that is not subject to section five. would there be a problem in your view with the district court did? with what judge smith did. >> what judge smith did i guess in that context there wouldn't be the section 5 at all and all you would be dealing with this section two. >> then there would be no problem with using texas as a benchmark. as a starting point. >> well i guess what i would say

is the court typically said the district court should view to start with a plan that's already in effect and then modify it according to the neutral districting principles. >> anybody that drawls a map faces at the outset certain legal constraints, constitutional constraints, restrictions imposed by the voting rights act may be some state law restrictions to the extent they are not inconsistent with federal law. once you've gotten beyond that point all you have left is districting policy and there are many factors that can be taken into account. how contact you want them to be. to what extent are you going to respect the common economic interest, to what extent are you going to try to preserve all the districts, with about incumbents, what about the party registration are you going to try to balance or try to favor

one party over the other? those are all question of policy and the question is who makes those policy decisions? are they going to be the policy decisions made by the legislature or are they going to be the policy decisions made by the district court and to say they will apply neutral districting principles is a subterfuge. there is no such thing. >> i would disagree to make the preliminary observations with the district court is supposed to do and then i will try to walk for the principles. the first observation is with the district court is not supposed to do and what the district court is not supposed to do is take the and prepared a plan of the given because the section fifer closes it. what is it supposed to do? it's not contrary to the underpinning of the arguments made today because the district court starts with of the last legally enforceable plan which after all is the last manifestation of the state policies and priorities so you have that as a starting point and then it has to modify that of course to deal with the

issues to deal with section 2 and section 5. >> even if you do that and start with the old plan and then modified to the extent necessary to comply with the constitution and a statute i'm sure the computer could shoot out dozens and dozens of possible maps. and somebody has to choose among them. what criteria does the district judge district court use in making that choice? >> there is discretion. i'm not going to disagree with that. what it looks to is the districting criteria applied by this jurisdiction in the past. >> its political discretion. that is what is troublesome and it seems to me the government takes an absolute approach to the proposition that you cannot use and on pre-cleared a plan for any purpose to all losses is you cannot apply diprete cleared

a plan. the plan being applied here is not the texas legislature plan. it's the plan the remedial plan adopted by federal judges and to say that they cannot use in a drawing of that plan the legislatures last political decisions seems to me not required by the prohibition against implementing that plan as the plan of the legislature. what would you do if the district court in washington and the district court in texas neither one of the max in time and it's too late, it's too late to have any primaries anymore. what would happen? you can't use the old plan there is the rule against using the

new plan what happens you disenfranchise? every voter in texas because there may be some voters in texas who may be prejudiced by using the current plan. i suggest in that situation there is nothing to do but use the texas plan. >> not in the context of section 5. that is one option the the other would be to use as the court suggested something the court should do. it isn't a preferred option to be sure but we are not in that situation here because what you have is the amounts that have been developed. >> you acknowledge there are some situations you can use the very plan the texas legislature adopt even the wood isn't being pre-cleared. >> if there is no time. islamic but it's no longer an absolute rules of the question is whether this is another reasonable exception to them on an absolute rule. >> there is the exception as there is with all sorts of legal rules but that is as far as we

would go. i would like to address the proposition of the court would be doing under texas is a standard application of the substantial likelihood of success principles because it's not. it's different from the standard operation of substantial likelihood of the success principles. the first goes to the burden, justice kennedy and dewey would it to this in your question the burden in the preliminary injunction context stays with the same party of the preliminary injunction stage so in the context the court is asking has there been a substantial success on the merit the same party has to make that showing. here texas would turn that upside down because of the stage. >> would it be okay if we said texas has to make the show? >> that would be better. that would improve things quite a bit but that is not what they propose today. but it's different in two other respects from the standard preliminary context as well and one is what justice ginsberg diluted to which is you don't have a situation in which the same court is going to also

decide -- >> you see only on one side of the problem where you can't treat it as if it is being pre-cleared because that would be prejudging what the court in d.c. is going to do but you have no problem with them saying assuming if there are going to be the section 5 violations and drawling additional majority minority districts which is assuming on the other way with the court hearing in d.c. is going to do. i don't know how you lean one way and say it's portable you can't use it because it hasn't been cleared but it's all right in the interim plan to treat it as if the clearance is being denied. >> i don't know about that because i think what the court is supposed to do and the preclearance is pending is not accept all the challenges what it's supposed to do is apply the traditional criteria to the benchmark. >> do you contest the view that this court did he essentially accept the challenges and say there are these challenges so we have to make sure that we don't do anything that cuts against

them. >> there is some language to that effect, justice kennedy the district court opinions here are not a model of clarity in some respects the seem to outline the ann curry if you look at the appendix 137 to 138i think what the district court said was doing was starting with the status quo which is a benchmark and in modifying. if you look a different bendixen 136 it looks like the opposite, like they are drawing of a minority coalition opportunity districts to draw because they've anticipated how they think the court in d.c. is going to come out. >> that's right and i think we plan to that in our brief as an area in which the court can need a further explanation. >> this is the section to suit it section 5 seems to be driving that. that's the problem with this litigation it seems to me. >> it applies to some states and

not others. it's a tremendous disadvantage here and defending the section to sood and drawing and the judiciary for disadvantaged and screaming a remedy for a likely section 2 violation in some of the districts. >> of course texas is in a different position because of the covered jurisdiction. when you have a section 5 case come section 5 can't help but take precedence precisely because the change can't go into effect unless and until the coverage jurisdiction shows its effect to this committee wondered if it should take precedence in fields of the primary obligation of the texas district court is to address this section to a violation. >> that meets be coming your honor, but if it can't address the issue at all than the one thing that shouldn't happen is the section to court gives the uncleared plan because that is something the district court is supposed to do.

>> it isn't the planets giving effect to the legislative judgment as to what is workable for all the factors and criteria that justice alito referred to in the county line etc. we will let you go on for a little longer but we may have more questions to the estimates before. i appreciate that. i guess what i would say is if you use the plan as a starting point which is what texas proposes your argument notwithstanding the preclearance to section 5 and with a covered jurisdiction that is something section 5 doesn't allow. i think it's important to consider the preclearance the mission in the context of the other statewide preclearance emission submitted in the cycle. if you look at the government brief on the page 183a with that bares out is there's not a fundamental problem with section 5 for the way section 5 operates. the problem in so far as it exists is with respect to the submission that texas has made because there were 20 submissions of the statewide plans for administrative preclearance.

in all 20 cases the attorney general pre-cleared them in 19 of the 20 cases the attorney general prepared with in the initial 60-day window. estimate your position might understand your straddling of the position is why you are in the back row and not the front between the two parties, but it's a little unsatisfying because what you say we should do when we are all under the gun in a very strict time limitation we should send it back to the district court said it can give a greater explanation on what it's done. and it's kind of fan of order from this court to send to the district court saying tell us more. >> i don't know that it is and i have the responses in that respect and this goes to the question that justice alito asked earlier what is the court supposed to do and the situation and i think one thing that could absolutely happen is if they were a remand the district court could complete its preclearance proceeding which would be very illuminating for the district court supposed to do. >> what is that based on? >> the d.c. district court is scheduled to begin january 17th

and closing arguments on february feared pity if you look what happened at the judgment justice breyer they have a summary judgment arguments. >> i have read in the opinion and what you said on the phone and so forth. it seems to me that it's a complicated case but suppose you are completely right of your time schedule then you will decide something how can any human being a regional the maps in five days or ten days or do have six different positions? i mean i think it's impossible. how can you -- i don't see how you can. >> pre-clearances granted we won't have an issue. spinnaker would seem to me from reading it i didn't think that the judge is ready to grand prix clearance. the other thing and sending it back i read the brief and then i read the opinions. i don't think i have -- i am not being too generous but i thought that they were saying it throughout is they didn't try to draw extra collection or

opportunity districts. they emerged and emerge about seven times. they emerge as we try to apply equal vote principles, and it's hardly surprising that the bullet considering that the population growth is primarily due to the minority expansion. so it didn't seem to me -- why do you want to send it back to get more explanation when that seems to be the explanation and it seems like a perfectly good explanation? >> you maybe you have a brief answer. >> sure. i think that in so far as the coalition has the ability to emerge from the national growth there is nothing suspect about them that on the one example of a point to is the district 33 to look at the joint appendixes on 46, 147 it isn't clear what the district court is doing in that regard. >> thank you, counsel.

>> mr. chief judge may i please the court is a general consensus on at least three-point we've talked about today first the plan cannot take effect and the court is for closed in the annals of the issues pending before the three judge court in washington, d.c.. it must be implemented on an interim basis. >> excuse me for a second by not sure if -- if i've got along on that. you phrase that you say you cannot even make the preliminary inquiry that your friends suggest. >> i think that we are dealing with a matter of semantics, your honor, because the question is did the court give the state's plan difference, but it self it said it began as it should and

as it has been directed by this court with the historical benchmark configurations, and then respected the state's plan. >> you know what i don't understand about your brief, mr. mr. garza is it the states can't, if the plan hasn't been pre-cleared you should be saying the states can't look at the plant on the one hand you are saying isn't it great because the court did look at the planning and on the other hand you are saying they can't look at the plan so what is it? because there is attention on one page to say is that great the court looked at the plan, and then you say the court can't look at the plan. >> we don't say the court can't look at the texas plan. what we say is the court can't implement the texas plan and certainly can't implement the texas plan if there is any suspected discrimination and what they did is it is exactly the right --

>> you are saying the court should look at the plan. spreading the court did the appropriate thing by looking at the -- >> let's build on something justice scalia asked is what does the court do with the frivolous plans? is assumed under your theory that the claims are valid? if you say no it shouldn't assume that then what level of inquiry should the court engage before it accepts or deviates from the enacted plan? >> i think that the court should look at first of all not start with the state's plan. it should look at where there have been objections made a dent the will of the district court of the district of columbia is the question of where there are frivolous claims that have been made. and there have been no motions to dismiss any of the claims in the washington, d.c. based on --

>> so the texas court cannot -- should automatically accept all that the challenge has been raised in the d.c. circuit. >> it should not accept any of the districts that have been challenged, but i think the difference in terms of -- maldon assuming a violation. >> i don't mean to interrupt, but i didn't follow that, so long as a district has been challenged in d.c., the court in texas should not accept it? >> should make a determination either way and didn't because in those districts it didn't adopt the plans put forward by the plaintiffs or their challengers in washington, d.c.. it looked at the benchmark plan. >> but couldn't look at the district and the respect of the county line it's got room can and will get it for that reason? and rely on the legislative judgment it's making a sound judgment that the river runs

through and the county line and so forth. >> it seems to me the difficulty is saying you can't look at the plant. >> the problem with that, your honor, it would be assuming the state is corrected doesn't violate section 5. that is an inquiry that is reserved to the district court and the district of columbia. >> when you say they can't approve something that has been challenged or not he was serving the plaintiffs are right? that is an inquiry that belongs to the district court in d.c.. ceramica didn't accept as a remedy with the proposed. it reverted to the state policy which is what it is directed to do by this court read it went back to the state policy and 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 and the benchmark it looked to the legislative we enact a plan to determine where it would place those districts.

>> that is not the current state policy. the benchmark plan is gone. it's old. the texas legislature now has a different policy. and that, you say, should be ignored. >> that policy cannot be deferred to. it is incorporated in the plan in the manner in which it refused the plan that is there is a presumption of its indolent eddy. you can't presume that a valid but you can't presume it invalid. >> either way and with the court did. >> you are presuming it invalid. >> you're not presuming it invalid. you are suggesting that you are reverting to the next state policy. you're not incorporating it, but you're not making any decisions and the way that you sort of walk the tightrope is go to what the state policy was before the enactment. >> let's say a legislature says we have a new policy and that is that once we have satisfied the

constitutional obligations and 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 over everything else. the journal the plan that embodies that policy and its challenge under section 5. can the district court say the state policy is compact over everything else, but we don't agree with of that because we have other neutral principles but advance the interest of the collective public good which is the term the words that this court used. can they do that? >> i don't believe they can and this court didn't. >> if they can't do that than you are saying they are constrained by state policy, except for the extent the constitution or the voting act requires otherwise. >> in this case part of the voting act section 5, and in those areas and in those districts where there have been challenges and by the way the district court, the district of columbia has determined that

those challenges are substantial because they've denied a preclearance and in fact they've said -- >> i'm sorry? >> they denied some judgment but they went even further. they said texas is not disputed many of the intervening specific obligations of discriminatory intent. under the judgment standard they have to find the challenges that are being made a substantial. the district court in texas was sent free to incorporate the districts in its interim plan and it didn't. it went to the state's plan, the benchmark plan to begin a process on how it was drawing those districts. and there is a good reason why texas is covered under the voting rights act. as the court indicated in. there is a terrible history of historical discrimination in texas including discrimination

-- >> the voting rights act is in addition here, right? maybe you could turn for a moment to the issue that i see on the joint appendix 146 and 147. they don't say the minority coalition opportunity district just happened to emerge. it said the district 33 was a minority opportunity district. we've never held that there was appropriate or even permissible to draw the district putting together the two minorities, different minority groups and it seems to me it's one thing under the voting rights act to say that this group votes and has been discriminated against in its ability to elect representatives of its twice. it's another thing to say the different minority groups are put together because they share a particular view so that one candidate is going to be each of the candidates of choice. that goes a step further from the voting rights act and here you have the district court

creating that in the absence of any state expression and the designer to create that kind of district. >> i think that the state the court made is a correct statement. it did create a coalition district in dallas but that is in describing how it reached the district. how it reached the district is in a number of other places however did as discussed above the court hasn't intentionally created in the minority district. new district 33 was strong as same minority. i don't know what can be read any and saying when we sat down we drew this one as a minority coalition opportunity district. >> because the court said over and over again we did not attempt the coalition district -- >> something can be read

differently than that and because they said something else. >> what i'm suggesting is what he's saying is this is the result of what they've done. that sentence can also be interpreted as saying this is the result of what we've done. we've created the -- >> drongen towns? the coalition? >> yes. >> the fourth new district district 43 was drawn in the dallas-fort worth to reflect population growth in that area, right? then he goes on to say what justice alito says. now i did read that as saying when you apply for it consistent with they say is elsewhere is what they are doing is population growth you have to have one, the legislature in the new plan did create a minority in the opportunity district here but they are taking account the

population and it turns out we do create it as in which case there is an ambiguity. >> precisely and there is no independent evidence that this was a racial gerrymander. what do they look at further racial gerrymander? the voting precincts you go out and carve and bring in the minority voters. the district maintains the precincts in tact. it's entirely within one county. it's a compact district especially when you compare to the district in that part of the state. >> why do they care event that there was strong as a minority coalition opportunity district? you are saying they didn't do that at all. why would they say something? >> i believe it is describing what the result of the drawling is and i think that is perfectly legitimate. >> can we infer from either the hendee committee or the other reading of the sentence that the chief justice suggested that in the court to view it was desirable to have a minority

coalition district? i would draw that inference. >> i think it is desirable to have the minority district. it's been a minority coalition district. moreover, i think the court is -- >> you would defend the plan on the ground if this is a sound result? >> i believe described by the court it is fair. is the optimal plan the plaintiffs wanted, it is not. >> one of the basic rules doubles followed controlling of the court plan was not to dividing the voting districts, right? -- this certainly is not a principle that the texas legislature agrees with. >> there are two reasons. >> so the court just made it up? >> no, there are two reasons why the salles maintain voting precincts as important. one is that is what it had been directed by this court. the court said we have an

interim election or pending election and it's important for the administrators in order to be able to implement without interference a legitimate election process to have precinct because the whole precinct mcginn the difference in terms of how the election is administrative. the second reason is this court didn't adopt this plan without any inquiry into the standards and proposals from the party. was very deliberate, it would smeary cautious and was open. we had three days of hearings on with the plans should look like and what the standards of to be including testimony from elections administrators and the texas state. and in every instance those that ministers and the representative for the secretary of state said the most important thing the court should consider if it is going to order us to start

conducting elections under a different plan is maintain voting precincts because that is the most cumbersome part. texas says we don't care about maintaining the precincts this is a matter of administrative burden and expense and we are willing to bear that. so disregard that the district court can say we disagree with you in order to make it more convenient to hold the election of this less-expensive we are going to respect the district's. >> that's my question. >> i think they could because there's still the authority of the court in bush that drexel courts in drawing the interim plans for intending to elections to be cautious about that. number one, at number two and if in order to get inappropriate matter you must split a number of precincts which means you can't conduct the election we still have time as the

government's attorney indicated there are states that conduct the primaries as late as june 26th the drop dead deadline is not april 3rd its november november 6th. if this court disagrees with our position and it is determined to send us 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 please the court in texas in exactly this circumstance. in that circumstance, and the court is poised to move with all due diligence. we've had two weeks of trial on the claims it is ready. ayatollahs these are the problems the state's plan the court in texas is trying to make its decision on the plaintiffs'

claims under section 2 and the constitution. >> what is the real drop dead date? that is the date of the general election in the election the of june 26? >> moving backwards -- >> i don't want to interrupt but isn't that the date of the last primary rather than congressional? >> that's correct, utah is the state with of the last primary in which it conducts both the state primary and the presidential. there are states that conduct primaries as late as september that have no presidential primary. >> how many before that election do the voting mechanism more apparatus need to set up the voting booth? >> the critical date is 45 days from the election in order to ensure sending out the ballot to

overseas voters including the military. so if you go back 45 days and give the jurisdiction sufficient time to develop a ballot because you need a ballett to send to the soldiers, then that's about what the testimony was that that takes about 90 days i believe is what they testified. so 45 days plus 90 days and that is the drop deadline. >> go back to june 26th. >> if you go back from june -- >> april, the end of march. >> you can develop a plan by the end of march and we can conduct an election in june, late june. >> wendi you expect the court to finish? >> i would expect it to finish within 30 days of today because

we have closing arguments on the third of tebeau murray and if the court will act with the sort of diligence that they did on the judgment which is a complicated record and a large record six days later it made its determination it didn't issue its memorandum opinion but something we could run with. >> when do you expect our decision from but d.c.? [laughter] >> later this afternoon. >> in the summary judgment opinion they made the tone that it's a very complicated. so that's why i have some doubts about rendering of the decision. estimate there will be closing arguments, yes your honor. >> is their anything from the

district of columbia that indicates that there are some likely for potential violations under the sections as well as section 5? >> in the submission of the parties -- >> in the district of columbia i believe that the court has found the plaintiffs have made substantial claims with regard to intentional discrimination and of course intentional -- >> the section to violations? >> intentional, yes, your honor, 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 the plaintiffs presented colorful claims of the constitutional conformity that the plan was an extreme gerrymander. ruled that the elimination of the district presented a section five problems ruled that the legislature dismantled the district in the county that presented -- >> do you observe the suggestions made by justice smith in the house and congressional districts? >> yes, your honor. we believe that there are section 5 claims with regard to harris county. judge smith addressed the constitutional -- >> to the objections. well, but doesn't quite work. >> right. in the harris county the court

did equalize the population for the failure of the state to justify the sort of deviations' contained in the district but didn't provide in our opinion additional remedies. but judge smith proposed a plan for the state house it is in fact very similar to the plan proposed by the majority. it differs by only one minority district, but as one additional district is contained in the interim plan them as contained in judge smith's plan. >> what would you think the court could start with the texas plan in say the new texas plan and say anything that's consistent with statutes and the constitution can go forward but it's texas that has to show that consistency so putting the burden of proof in a way that

would suggest in a way that makes it more consistent with section five. >> i think our position is that section 5 is clear that the court should not start with the interim plan but if the court disagrees with me i think that is a much more reasonable approach than the one offered by the state for the same reason argue 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 and having section 5 is that it alters 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 on pre-clear plan that is 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. [laughter] >> thank you tebeau thank you, counsel. mr. clement, you have three minutes remaining to the estimates before mr. justice. as one of alito's questions highlighted one of the things that makes the remedy a one-person one-vote problem particularly unique is there is an infant number of ways to solve the problem and for that reason the court has always looked where it could to the legislative guidance so much so that this court looked for legislative guidance to the plan that had been declared unconstitutional for failing to accommodate one person and 1 foot problems at the cort stull said the district court wasn't taking them to account to the extent it could. as to the hard choices if it comes to that of using the legislative plan that reflects

the legislative will or the judicial plan even the united states conceives is called i think the court has faced even more difficult choices in the past both against wiser and wood, and in both of those cases, this court chose between and at adjudicated unconstitutional state plan and a judicial remedy this old and in both cases if ordered the election to take place under the constitutional the had adjudicated and perfect plan compared to that simply saying in the election should go forward under a plan that hasn't been cleared is a far less serious step. there was a reference made to the three days of hearings but the problem is three days of hearings with an unearned ministered standard is worse than one day with of the standard and what we ask is for the preliminary injunction standard that's familiar to everybody. everybody understands and can apply. >> why should they be inverted the way your friend suggests? >> i will join everybody saying that it's better than the worst

alternative which is to say it's better than the district court opinion but here is why it should. that actually further intrude on the d.c. court because the question that the remedial course should not be asking is due y relating -- what are the odds the d.c. court is going to it shouldn't ask that at all it shall ask the questions before it. is there a section to violation or equal protection violation? if there aren't and use the state plan does that create a section five violation that is different from the preclearance question and on that the burden is not logically on the state and that is the same section five question that the court considered on its own motion because it understands that even when it takes a plan that has to be consistent with section five principles. justice kennedy, you ask the question what if we take section 5 out of this what happens? the nets and easy case it is the injunction standard. the objection is how can you take section 5 of?