seems to drive the supreme court justices into the denial? >> it's the presumption which think you're bad until you show us. one of the things i would hope to pull out of this is the notion that there's actually value in that for the jurisdictions, that the regime almost in a constitutional sense provides a framework for which they don't have to take certain responsibility and can go forward and press their claims. >> i wanted to mention that i thought it was an interesting dynamic in the most recent supreme court appeal that we did, at first i had the sense that the supreme court was a little indignant that the texas court had drawn interim plans that departed from the legislatively enacted plans. and especially because texas was presented this as a really

dramatic departure what had been enacted even if that wasn't true on the facts. but when we got to the day of argument, i sensed a very different dynamic among the justices and it seemed that maybe by the time the briefing was done they might have been realizing that there were some pretty serious things wrong with the texas plans. and when chief justice roberts said to the texas request put in the legislative plans we'll just sort it all out later, that chief justice roberts took the initiative to say these plans are not precleared. we need to get some kind of feedback here on preclearance. i had the sense that maybe there was an implicit recognition that the shifting of the burden of proof was important for the reasons we had in front of us that day. >> this is a question that i think comes out of joshua's comments maybe to you, nina, which is joshua's point is we

would not design section 5 the way it was designed if we were designing it today. i don't think anybody would design a parallel legislation in two district courts with supreme court stepping in. if you were designing section 5 or trying to design a regime today to protect the interest of latino voters, how would it differ from the regime that we have in place? >> well, you know, i think the problem was that texas took this thing off the rails, because that would have moved much faster. since the doj isn't taking a position, the doj -- i mean, texas probably could have gone to the senate plan precleared right away. i think they would have a much better sense on clarity on what may or may not have been objectionable in the other two plans. they rejected the idea of going

ri would have given us a decision that would have avoided this kind of crash and burn that we had in december. but even though the district court in the district of columbia was saying, you know, you could not file the summary motion, the texas said, no, no, we want to find the summary motion. i'm not sure if there's anything wrong with the structure or a series of catastrophic decisions by the legal team representing texas that caused this crisis. some people suggested they wanted to case the crisis so they could go to the supreme court to say take our plans, please. >> but that seemed to me to be the gamble they were making and in fact the gamble in their brief which is put our plan into effect even though it's not precleared -- >> which is saying declare it unconstitutional.

>> that didn't work either. i was thrilled because that said texas could not put the plans into effect. in this war of attrition where we're in this court and we're in that court, every day the texas plans are not implemented is a day of victory for me. >> like every day with orange juice is -- >> exactly. sunshine today because we're not voting under the texas plans. >> i think this is also one of the unintended consequences of the voting right acts in the initial understanding section 5 was intended and joshua makes this a little bit, to freeze into effect the existing subject so states can't make it worse. the history from 1865 to 1965, the state would come up with a new wonderful way of making it happen and as the supreme court recognizes it in the perry

against perez case, you can't do that in redirecting. that is the existing plan is rendered unconstitutional when the census plans are dropped. you have a system in which you now have -- not the one party system of the south in 1965, but essentially not even the two party system. your point is we have a three competing interest system in places like texas. you're guaranteed there's going to be litigation. and the existing plan can't be used so there have to be interim plans. that creates difficulties and dynamics that tie in with what we were discussing earlier in the prior plan. do you want a political actors doing it, federal judges clearly are not supposed to be politicians in the same way that state legislators are. so we find ourselves really in an extraordinarily complicated dynamic. it makes you wonder low the

supreme court will view the very 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 ofng 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 asian american demographic growth as well. we have partisan -- partisan 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. >> and whom you just met. >> 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 litigate section 2 but it's overwhelming to do one of these cases. i have been feeling overwhelmed during the past two months even

with the team i have, and they're all amazing. and with pam's help, i prefer the structure section 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 voters are thinking about with respect to that.

>> 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 slowly and 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 austin, but like pam said there aren't 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 party. the last round 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 reaching out to the largest 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 going to start 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 point latinos 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 to constitutionally save the voting 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 almost a 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 even -- i 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