nature of the complications when they come to think about the constitutionality of the act and how to enforce it. we have time for questions now. so i want to give folks an opportunity to ask questions and they'll bring around microphones for you. >> thanks. yeah, i wanted to ask probability nina, but who ever wants to comment, the supreme court's comments about the constitutionality and it shifted the burden on the parties in terms of like preempting the d.c. district court with respect to the -- any potential violations of section 5 in the current plans. it sounds as though the supreme court is doing a lot of -- don't get us involved. if they do have to get involved,

my understanding is they have to take the texas plan and you have to say you can't include that. which does change the burden. then i wonder if that affects, you know, that beginning of the death by a thousand cuts for section 5 or do you think it would potentially contribute to things being strengthened or something else? >> yes and no. it's not the death. i think it's, you know, with respect to texas voting rights and texas litigation it's really the whole story why we need section 5. i mean, you know, gets a little complicated can timing sometimes. but since texas became covered in 1975, it's had one or more e redistributing plans and it's part of the rules to prevent discrimination. i don't think there's a majority on the supreme court to take that away from us because it's been so vital and so important.

and we have a 2006 decision which found the marks of intentional discrimination in the last round of redistributing. we have a good case this time on intentional discrimination as well. so i'm not the doom and gloom person on section 5 that you'll hear a lot of people. i mean, i walked out of the mud argument quite sure we wouldn't have the constitutionality taken away from us. i continue to believe that, that the supreme court is not going to take the statute away from us. have things become murky when you get in the situation when you have impending primaries, the need for a local court to draw and no preclearance? yes, more murky. we'll work it out as we go. >> i have a question addressing the panel theme of the future of

redistrict. fortunately, the rest of the country isn't like texas. but of course in many ways it is. we have tremendous latino demographic growth. increasing political participation in many, many places. in california as we heard significant partisan -- partisa conflict and incumbency protection as the major political value in the redistricting process. it seems to me that the texas experience than sort of disastrous for the dominant party in texas and kind of a debacle for the state at least from a good government standpoint. what are the lessons that you would draw from the texas -- on

going texas litigation and political redistricting experience for other states which are not exactly like texas, but have some of the same issues in the future including in playing out of this redistricting process in the next few years? >> i mean, there's one very easy lesson to draw and i think that is that many of the legal constraints operate primarily to prevent the most grotesque form of overreaching. that is i think that if texas had not overreached quite as much as they had, they would have gotten preclearance either from the department of justice or from the ddc or if not from the ddc from the supreme court. i think, you know, the numbers nina put up showed that texas -- what was it, 80% or 70% of the

overall population growth is attributable to a growth in the latino population. they drew fewer latino opportunities the next time around. so this question of what -- when you just go too far, does the system push you back? i think that's one thing to go draw out of this going forward. which is at some point, partisanship or incumbency protection becomes so grotesqu grotesquely dominates the system that they'll find a way to snap back at this. it's more of partisanship and discrimination isn't going to be picked up as the most blatant forms will be. do any of you want to -- >> i'll only add that i think --

in line with my thesis that section 2 would cover the extreme cases of discrimination and push back from the texas legislature and that section 5 is no longer needed to combat those extreme cases of discrimination. >> i'd like the answer that because having litigated a section 2 case from 2001 until 2006 which ended up okay, but took an awful lot out of my life and out of his two life and out of his two siblings lives who i had in the middle of it. >> wmet. >> i would prefer the section 5 because hopefully it will block a plan before going into effect. there are small institutions that are there to section 2 but it's overwhelming to do one of these cases. i have been feeling overwhelms with the team i have, and

they're all amazing. and 5 and find it's still necessary, at least in the experience we have been having in texas so far. >> i would add one last thing. i think it's interesting to think why texas did overreach. and whether they are operating under the assumption this regime is over and if they had votes on the court who were not ready to express themselves this time around. >> yeah, i wondered about that myself since it seemed to me, you know -- there was no necessary reason to overreach quite that much. >> hi. now, you mentioned at the end that having more reflective maps might lead to the latinoization of both political party

platforms. what do you hope that will look like? >> well, i would hope it would involve less race baiting. that would be a good start. you know, when you look at polling of latino voters, latino voters care about a lot of the same things that other voters do. the economy, the state of education. but one thing that is notable is two things. the number of people that latino voters -- the number of latino voters who personally know somebody who's undocumented right now, what's here without lawful presence, and the number of latinos who -- latino voters who said within the past year they have talked about immigration reform either with friends or family or colleagues. so just to focus in on that issue which i don't think is being well addressed by the leadership of either political party right now. i would hope that there might be subtle shifts to reflect what latino to at.

>> you're taking the microphones around. i want you to take the microphones around. >> so this is a question for nina, but i guess also for pam since you're a co-counsel in this case. so one argument i grew up in texas, in pfluegerville, so my congressman used -- >> up the road. >> now michael mccall. one argument i see thrown out under proposed redistricting plans there will no longer be white democrats and one response to and after seeing the powerpoint, in the sense of being the consequence that might be an unfortunate, but unavoidable consequence of why democrats being in a group that's growing demographically more the majority of white voters are identified with the other political parties. so it's a similar situation to

being an afro-american republican. do you think that's the right response to give, either sort of politically or in terms of the facts on the ground or do you think there's a way that redistricting in texas is going to evolve that will lead to there being white politicians from the democratic party in office there? >> i think you're exactly right. and i promised myself i wouldn't say more on that subject while the tv is on. i think you're exactly right. >> i'll say something that's -- that take us back one level of abstraction which is a district -- a system that involves single member districts is going to have the consequence of taking groups that are -- i mean, maybe knick nick is going talk about this in his presentation later, but when white democrats are interspersed in overwhelmingly white areas

which are heavily republican overall. that it's not a function of the fact -- it's not that there are no white democrats. it is a function of the fact that white democrats do not tend to be constitute sufficiently large and geographically compact groups in texas. if they did they would be getting districts. that is if there were a whole lot -- you know, like if there must be part of the state where -- like abilene. there would be a district electing white democrats there. and it is a function of if fact that we use single member districts that groups that are geographically dispersed will find it harder to elect than groups that aren't. it was true for asian americans in new york city where there are 6% of the population. but it's impossible and it's not that even they live all in integrated communities.

many of them live in heavily integrated communities but they've too far apart to connect them. you can't connect chinatown to sunny, and you have to cross so many districts to get inland. i think that is a function of the choice to use driktds. not a function of how the districts are drawn once you have made that decision. >> okay, i have recovered. there's a lot of white democrats in ati enough in austin to compromise the district. that's why i think it's dangerous to focus on the incumbent, there are x number of white democrats from texas. you have to look at this district. if that's a district where whites are controlling the outcome of the primary in such a way that latino presence or other voter presence in the district is not able to nominate and elect a candidate of choice, then, you know, when somebody

else takes a look at that district in this case the leadership of the texas house and senate, they may not see that as a valuable thing to preserve. >> i'll just jump in on that last point. because this goes to what you had been saying, nina, to what extent we should view it through party or race. you're right, you look at lloyd doggit and the parties want to protect their incumbents, you have two that are in texas, and you know, this is in -- for the congressional delegation. and so lloyd is -- you know -- i mean, his district flips, it

will -- depending on how they will -- when he resigns he'll go the way of a lot of the other southern white democrats. as the personnel looks more correlated between race and party, then you get sort of a different dynamic than the one that you're suggesting. i think you're right that latinos have greater power when they can operate as the critical sort of group that both parties can court. but if -- i mean, what do you see as the future in texas? because it seems like, you know, it's going not directly the way of california, but it's getting closer and closer to it. then that's part of a larger question which is do you think ten years from now you'll be making similar arguments about the percentages in the populations of these districts that you would want, particularly 50%, sort of

extrapolating out from that, do you think the district arrangements that you're pushing for given what you'll know about texas you'll be asking for in ten years? >> as for the first point, i work for latino voters. i try to achieve whatever the result is that enables them to achieve their goal which is to nominate and elect their candidate of choice. if latino voters want to nominate and elect a person who is purple with green spots, you know, somebody who's african-american or anglo it's their choice. that's the perspective i view it from. as to -- to what districts, what the numerical cutoff is for different districts we use a functional analysis. we have lots of election data available for us. we want to enable the latinos to elect their candidate of choice. there's typically not kind of a bright line test for that.

although we have to fulfill the requirements under section 2. >> i didn't mean -- put your political scientist hat on, more than the lawyer hat. in california we'd be making different arguments. depends on which part of california. talking about central valley and san francisco and l.a., what do you see as the trends? maybe because of the partisan realignment in texas, things are getting worse. not necessarily better. in the sense of what percentages are necessary, or maybe they're getting better because you think over time they can rely on greater crossover voting in the areas where they're in high concentration. >> i mean, if i can just in for a second here, it seems that one of the fundamental differences between california and texas which your question kind of alludes to, in texas you're moving in some very important ways towards the system right

now in which there's a white political party in there, and a nonwhite political party in texas. that's not the case in california at all. that is the democratic party in texas is the multiracial, multiethnic party. the republicans in part because they guessed so badly at the prop 180 phase remains an overwhelmingly white political of redistricting one of the members of the legislation said they were hoping to create a system in which white people looked at the political system and thought there's a party for white people and there's a party that's not for white people. so those two dynamics are very important in the two states. in terms of partisan realignment and that probably has it own set of effects. >> that's sort of what you're saying. >> yeah. i mean, i think whether or not there's political diversity in texas is largely up to the

republican party right now. i think if the republican party gets it act together and starts rehi growi growing demographic of their state, which many republicans believe there are a lot of latinos who can vote republican because they see an alignment with certain positions of the republican party. i think that texas is at a tipping point in terms of what political parties are going to do with all of these latinos. you know, are democrats going to continue to fracture, fracture, fracture to preserve the last shreds of, you know, incumbents who may not be preferred candidates of latinos? are republican knocking on doors and say i believe in immigration reform? so i don't think that we're going to split up or maybe in isn't just one future of splitting into a party of group or white. that's -- it's like, you know, the christmas carol, right? people are either weeping -- not

the singling oing one, but the - >> oh, you mean the ghost of christmas past. i was thinking silent night. >> no, i can't talk as well as pam can. the republican party is going to be weeping over its own grave because they could not reach out to latino voters and the horrible scenario comes out where you have a party of one race or a party of one race or we'll see more people reaching out and doing what they need to do to have the healthy political system in texas. >> i just want to make a quick comment because i think california's instructive in sense, that the republican party was incapable of changing the rhetoric. i have to respectfully disagree. it's party of whites. >> that's exactly what i was saying that the democratic party in california was not a multi -- is not a single race party. the republican party was. >> republican party is now.

>> that's right. >> because they chose not to incorporate latinos and they have been incapable, so texas may be going the way that california is in the '90s. at that poin linos were 35% republican and that changed because of the policies their pursued. >> my point is that the minority groups in california are part of a multiracial party not that both are multiracial. >> yes. we have the same problem of the democrats not wanting to incorporate latino incorporation into the same fights. and in term limits ironically kind of fix that, but, you know, otherwise, it would -- we would be in the exact same position of having to litigate. >> i wonder if the panel the

address the bailout provision and if we assume that section 5 is in trouble from a constitutional specter, would the court use the bailout provision as changing some of the requirements for subdivision to bail out in order tove the vg right act or section 5. and whether that would kind of harm maybe the deterrents effects in we brought in the requirements to bail out. >> i think bailout is -- it's st farcical remedy in what justice thomas cited 17 jurisdictions had received bailout. all of them virginia, all of them represented by the same civil rights attorney that sought bailout. and don't -- does

anybody know northwest austin ended the day? they were bailed out eventually. but it's -- i don't see bailout as the long-term solution to the constraints that section 5 places on jurisdictions. it's heavily contested with every jushz and -- jurisdiction and it's never available. >> i guess -- i see that differently. i mean, i think one of the difficult questions is why jurisdictions don't bail out. i think it is understood that many jurisdictions actually are eligible to bail out and choose not to. it's a difficult narrative because the statute is so burdensome and yet at the same time, there are jurisdictions that seem to be going merrily along, not taking advantage of it. and i think it's a curious thing. my prediction is that the court will see the numbers that have increased but not increased enough to think that it's become

more calibrated. i would urge the court to think about it more as that's a reason they're not bailing out because they actually find it to be useful. i know there are several justices who say no, they're cowards. i'm not sure what to make of that language, because it's not burdensome, we could bail out, we choose not to. as long as it's there, i think it's critical. in terms of saying you know what, this burden is there. clean up your act and get out if you want. if you don't, that might get to pam's point. who's going to decide this. maybe let the jurisdictions decide for themselves. >> these guys on my left preempted a lot of what i was going to ask, but that's okay. given that the democratic party in california is losing percentages and the republican party is losing percentages and the independents are increasing, and i have learned that is due

somewhat or largely to latinos becoming independent, independents have no political voice in california. and so my question is, do you see a way if that's an accurate hypothesis or scenario, a way for latinos to achieve significant independent political voice if the independents have really no voice at all? >> well, we're talking about a single member district election system when we talk about redistricting. so, you know, the question isn't really about whether you have a statewide voice or how you might express your statewide voice. i think the question is how are the district lines going to be drawn so people can come together and whether voters are going to act as swing voters between democrat and republican candidates or whether they'll mount their own candidate, i don't know.

but i think the question is much more limited than that what you're in single member districts. >> i mean, this may be -- well, elvis has just left the building so he's not here to answer this question. but perhaps you can answer it, but lots of people are independents, but their actual voting behavior is quite predictable. in partisan elections they always vote for the republican or always vote for the democrat in which case their position is going to be effectively the same as any other voters. >> so a follow-up question, do you think -- [ inaudible ]. >> with the top two primaries is that going to solve itself, and if they actually are -- but both independent and they share a point of viewing a opposed to

being fractured. >> and right, speaking to the point, part of the reason is because neither point is speaking to the interest of the groups. if either party were to change the positions so perhaps those voters aren't part of the political discussion won't change. we know what independents mean for different people, but especially among the immigrant groups it's a reflection of what neither party have been dealing with that's important to their daily lives. >> a question -- you mentioned a couple of times some of the language about discriminatory intent but i was curious about what you thought of the rest of the decision. in particular all of the abundant language in justice kennedy's opinion, how you're combining two socioeconomically groups in the district, that district no counts as valid remedial district under the vra.

you showed us charts and dprgra and data on various districts, but i was curious if you look at not only the latino numbers but with the socioeconomic, culture income similarity in different districts, or are you basically neglecting that side going forward? >> when we do litigation under section 2 and we're proposing a district especially a district that might be new, we have lots of lay testimony. in addition to demographers who might talk about the more quantitative view, i think it's a good idea to bring in lay withins to talk about -- witnesses to talk about similarities or differences or what it's really like on the ground. whether there's a particular mall over here that folk goes to. i think it's tremendously important to give the court a rich sense of what it is that you're proposing to put there. as to lieulock versus perry, i'm

in the same point of view as pam. you had to be there with respect to that case and sort of understand what was going on in terms of being able to find a violation over here and what that meant about this other district over there. and the fact that nobody was defending that strip district. no party was defending it so nobody did put on evidence about people had anything in common. >> i think we have time for one more question before we take a break. >> so i had a question for the panel broadly. i read in a student note in the yale law journal earlier this month about comparing the fallout from the fight to integrate schools to the fight to have, you know, voting districts that are representative of racial minorities and part of the

backlash from the fight for school integration is you have the -- these school decrees that let the schools get out like the bailout provision. you get out of the court supervision, and then the schools go back to being more segregated than they were before. so my question is centered towards this idea of, you know, if we get rid of the voting rights act, if we get rid of section 5 and we have the history of seeing what's happening in the schools are we worried that the same thing is going to happen if we get rid of section 5? and for josh in particular, you know, go back to the analogy that pam made earlier today, if we're interested in deterrents if we're interested in keeping people from committing murder, what is the life without parole equivalent? something that will have substantial deterrent effects for these harms that you've kn