fauci talks about preventing ebola. and a discussion on the recall of defective air bags. last week the supreme court heard oral argument on two cases involving legislative injugeri mannedering. at issue in these cases is what -- this is just over an hour. the argument in case number

13895. legislative black caucus in alabama versus alabama, the alabama democratic conference versus alabama. mr. pildes? >> mr. chief justice, if it may please to court, rigid racial targets to design all of its black districts based on mere racial statistics along and then -- meet those targets with atron initiating precision. racial quotas in the context of districting are a dangerous business. they can be a way of giving mean norths a phased voting, a fair opportunity to elect. but they can be an unnecessary way of packing voters in ways that polarize and divide us by race.

>> your honor we understand that states are in a bind under the voting rights act of section 2. >> they have to hit the sweet spot without taking race predominantly under consideration. >> this has mapped out a path that states must take to both comply with their section 5 obligations not to use the excessive and unjustified use of racial -- >> it used to require that there be no regression in majority black districts, so if a

district went from 69% black to 55% black, you would be in trouble. >> your honor, section five is always required no retrogression based on current conditions. >> and they're saying, that's all we did, these districts were under populated with respect to other ones, so we had to move new people in them. and we had to do it in such a way that there was still the 69% black population that there used to be in order to avoid retrogression. >> your honor, retrogression is built to preserve the minority and majority. >> the only way you're doinot dg

that is to maintain the same percentage. that's the way the justice department in the battle of days used to look at it. >> doj employed various kinds of practices as you describe. as our brief documents in detail, the department of justice has routinely recleared plans that would reduce black populations as long as they don't reduce the ability to elect. in alabama in the last process of redistricting, if you look at the black caucus, at the chart at 8a, you will see that alabama dramatically reduced black population in all of its districts in the senate and virtually all of its districts in the house. if you look at that chart, you will see numbers like a 12 point reduction, a 10 point reduction, a 16 point reduction. >> why is that? why do you no longer need as high a percentage of minority voters to maintain a situation where minority voters can still

elect their candidates of choice. >> for the reasons that this court averted to and the reason that alabama rightly celebrates in its briefs. black turnout and black registration rates in alabama routinely equal or even exceed white registration and white turnout rates. >> i assume that you're making the argument that the opponents of black plaintiffs used to make here. they said you know by requiring packing of minorities into certain districts, you're reducing their influence state wide, so you know of the representatives and others -- in other districts can't ignore what the minority wants. because they're all packed into -- that's the argument the other side used to be making. >> yes, your honor, and when the voting rights act legitimately requires the use of race in the face of polarized voting.

then there's a national, political judgment that reflects the tradeoffs, the costs and the benefits as there are to designing these districts. >> do you suppose there are a party a in 2001, takes minorities out of heavily minority districts and puts them into opportunity districts. for political purposes, it's for partisan geri mannedering purposes. party b gets into power ten years later. it wants to undo what party a did. and it puts them back into the heavily populated districts. is there a violation when party b does that? >> and we'll stipulate that it's motive is simply to help it's partisan balance. or partisan imbalance.

>> if they do not use racial populations. >> they put minorities back into heavily packed districts just as they took minorities out ten years before. >> but the line this court has drawn is the line between partisan -- >> looking at my hypothetical, it's partisan, in either case, is there a violation? >> if it's purely partisan in motive and they don't use race, then there's no problem. >> they do use race, but it's purely partisan, case one, they find minority voters and put them into minority -- unpacking the very heavily minority populated district. then the next party comes in and simply undoes it. and it uses the same calculus, race.

>> if they exceeded their obligations in section 2 and section 5, they went beyond the limited leeway that courts have. if they have the strong basis that's required, that's the legitimate path states have. >> they do this for partisan purposes? >> your honor -- >> i'm asking if party b can then undo it for partisan purposes. because i sense that there's a one-way ratchet here. >> i understand your concern, but if for partisan purposes, the legislature passed a raced base barrier to voting that would be unconstitutional. they can't use race in the way these -- are beyond the parameters the states have s they have to have a strong basis

in evidence. in this case, alabama didn't even ask the relevant basis question. alabama didn't even act what might be necessary to preserve the ability to elect. they just reproduced numbers, statistics, and the way they did it, is they just used racial data. >> you began by criticizing alabama by supposedly imposing quotas. but listening to your argument, it sounds as if you're interested in quotas. you're just interested in lower quotas. if they take it down to the minimum that would be required, in order to produce the desired result, that's a permissible quota. >> you don't have to word quota. why did you use it? >> i actually meant to use the word racial targets. >> you think there's a difference between the two? >> well, there's a lot of rhetorical and inflamory quotas.

>> that's in justice kennedy's testimony, i thought you would say there wasn't a one way ratchet. if you're doing this for political reasons, because many, many african-americans vote democrat, all right? so what they're doing is they're trying to help the democrats. so yeah, we're trying to help the democrats, okay, if that's what you are doing, and you can't really prove the contrary, the burden is on attacking the district, whether they're doing it by removing some african-americans from this one or by putting more into it, it's the same issue, am i right? >> yes, you're right. >> and it's not a one-way ratchet, it is a two-way ratchet. >> and it's valid in both cases. that's your problem. >> that's not our case, because

in our case, they don't try to defend on that grounder. >> that's the answer i was trying to give to justice kennedy, which is part san manipulation this court has said may be fine and constitutional. but the one thing you cannot do is use race as a proxy for policy affiliation, you can cannot use racial targets that don't have a legitimate justification. they're not tied to current conditions. >> i thought you agreed with justice prior. now you're saying that you cannot use race as a proxy for political affiliation. but that was hypothetical. these people were moved because blacks overwhelmingly vote democrat. you're saying that's bad if that's the reason they moved. i don't think he thinks that's bad. >> i think justice pryor to be ze kribing a -- you have voting behavior data. you're moving them because they're black and you think

blacks will overwhelmingly vote democrats, because they're black, because we assume blacks are overwhelmingly democrats. >> your honor, in this area, the court has said assumptions like that cannot be the basis of the way district lines are drawn. >> because your time is running out, in your presentation, you're saying we are attacking the state wide plan, we are not picking undistrict or the other. and you have been attacked on that point. the attack is it's your claims have to be district by district, they can't be state wide. so i would like your answer to that question. there hasn't been a -- there have been -- >> your honor, our claim is that the exact same policy was applied in every black majority district, which is we will use racial data to repopulate as close as we can possibly do it

to the kpablg same black percentage. that's a policy applied in all 36 districts. >> how are you clients hurt by that? it seems to me you have to come up with a client in one of the other districts that would have been, as you put it, more competitive had this packing not occurred? >> you assume that's the harm that you're alleging. >> your honor, the record demonstrates that we have members of the adc in many of the black majority districts at issue, and that at least is sufficient to challenge this policy that's supplied in those districts. >> i thought the record just showed that you named your plaintiffs by county, rather than district. >> but many of the districts are wholly contained within the county. and we demonstrated in a number of districts and a number of

house districts. >> do you think your district by district counts, your claim relyings ole -- >> by state wide, we simply mean a common policy applied to every district in the state. >> thank you, counsel. >> this court's show on jurisprudence chachbls the conversation that we're having today, this court has identified two constitutional claims that could be raised with regard to use of race and districting. one is intentional delusion of minority votes for the purpose of minimizing their effectiveness and the second one is shaw. we're venting the shaw plan.

>> you lost on the delusion plan. >> we did. >> the facts material to the sharp claim were not at dispute at trial. the question is whether they fall within the concept of predominance in this court's line of decision. >> did the district court understand you to be asserting a district specific claims? >> i think it understood us to be challenging each of the districts. >> where do you find that in the opinion of the district court? i thought the district court interpreted you not to be making that claim. >> i -- we advanced evidence as to the motive that was a motive common to all the districts and then we advanced, offered evidence got particular districts to illustrate how that was played out. but this is ---there's no conceptual difference between

challenging all 36 districts. it's the same claim. >> but specific in your proposed findings, you dealt specifically with certain directs and not specifically with others. >> the specific information dealt with many of the particular districts, but the claim was that all of the districts were the result of a common purpose, in that common purpose, race was the predominant and overriding. >> some of the districts were unchanged, the percent sajs was exactly the same as it was before. those are the only districts that your clients were from. how have they been harmed? >> our clients, we have members in all the districts. the theory of harm in the -- >> was that established in the

district court, that you have members in all the districts? >> this concerned -- >> the finding of the district court was that you have members -- >> i think it said all or virtually all. our standing wasn't in dispute. the concept of injury in the shaw rain line of cases -- those are people who don't have standing. in hayes, this court may appear it's individuals in the district into which blacks are put for the predominant racial purpose, the predominant racial kurp. that's the standing that this court has announced in these cases. predomination involved under this court's -- >> i don't understand what you just said, they have a claim because -- >> there are too many blacks in their zriblgt? >> it's not about the number. the theory in the court in shaw,

is that if race is the predominant purpose in putting blacks into a districts, that that will likely result in re representational harms. that's been the theory of the shaw claims ever since shaw. >> and you think it's possible for the state to navigate between not enough minority members in the dprikts and too many minority members in the district without taking race into account? >> no, we do not. >> but shaw doesn't say that taking race into account raises a constitutional question in all cases? particularly in the wake of this court's decision, easily, which made it clear in the resolving issuing. the majority of the court held there that for shaw purposes to

trigg trigger trick scrutiny, they would have to -- it was the criteria to which it could. be put aside for any other -- >> so they have to navigate between too many and too few. >> if race isn't the predominant purpose, then there's no constitutional claim. with regard to steck shin fi5. i think it would be helpful to identify what section 5 requires. this is -- in the 2011 guidelines f government's view and this is how this has long been understood, that the black proportion can be reduced to the point where blacks no longer have the ability to elect the candidate of their choice.

until you get to that point, changes are not retrogressive. >> it's speculative, but i think if alabama had reduced the number of majority voters in majority/minority districts in a significant way, the attorney general would have come down on them like a ton of bricks. >> that's not correct, your honor. >> he also -- the government's view of this is set out in georgia versus ashcroft and in the oral argument of mr. stewart at the time, as they claimed it and this remains their view and consistent with the way the department has operated, until the numbers can fall, until it gets to the point where the ability to elect is in question. >> i have a problem. can i just go back to your shaw

nonshaw? >> basically you're saying you don't have a shaw challenge? >> i have a shaw challenge. it's a emfemoral injury in the way that race played a part in the plan, without effect in a particular district. >> no. >> in a particular district, if it stayed essentially the same, they didn't move the boundaries much, they obviously -- they don't, it's an all white district if they moved the boumpbtd, it wasn't to include more blacks or anything else, it was just because of geographic divisions. so explain to me whi you don't have to prove that you are harmed specifically by the application of this policy. >> there's two things in response to that. first, the theory of shaw is that if black voters are for

predominantly racial reasons moved into a district for predominantly racial reasons that would trigger scrutiny. >> but that was wasn't true. >> yes, it was. >> i think what he meant was the black percentage hadn't changed. all of these districts changed, they were underpopulated on average of 15%. there's an average of 6,000 voters put in every house district, 20,000 in every senate district. >> now that you're talking about districts, could i come back to the question i asked in the beginning so that i understand what we have to decide. on page 128 of the joint appendix, there's a paragraph in the district court's opinion of what the court understood to be before it on the issue of intentional discrimination. i see nowhere any indication of the district court construed

your pleadings and your other submissions that waves a claim about any specific district. the third point is we construe the filings of the democratic congress district that certain senate districts constitution racial gerrymandering. maybe i'm missing something. if that's how the district court understood your position, then maybe it was wrong. but that would be the threshold question we would have to decide, wouldn't it be? if you have to be district specific, we would have to say the district court misunderstood the claims that you were asserting. >> i think in the context of the way the case was litigated and tried and the briefs at the time, it was everybody understood that claims were challenge all of the majority black districts. >> the district court understood that? why did it include this

paragraph and what did it not go through the ones that you saw as challenging. none with respect to you? >> we think in the context of this case that was litigated, there was no conceptual difference between challenging all the districts and challenges 36 congressional districts. the reason the claim reads the way it does is that the state didn't contend and we didn't con thaechbd there were district -- the state's account of this, which everyone accepted was that the state had a common purpose in adding those thousands of individuals to each district, which was to -- which was to continue the black percentage as it had been all along, it was a purpose common to all. >> and mr. schnapper, wasnyou i

fact did reference particular districts, you referenced district 18, 19 and 20. and in other places you talked got all the majority black districts in the states's black belt. and you explained how your theory of the case related to each one of those districts. >> we did. >> this is somewhat analogous to the teamster's decisions back in the 1970s, with the government to prove racial discrimination and promotions offered evidence that was class wide, that affected all the individual blacks and hispanics and then offered some individual stories, but the claim was for all of the individuals who worked in those plans, in those facilities. >> so get there, you're talking about the black caucus pleadings is the act as a whole of

constitutional geri mannedering. they didn't get the kplachlt right, we're going to have to send it back, to send it back, i guess, would there be anything wrong with saying this, look, tell the plaintiffs, please, to point district by district to the fact that the primary motive here was racial. i don't think that would be too hard. you have loads of evidence on that. if the primary is racial, and this is the crucial part. then then to justify this, have to show that they are making a, and i don't know what word, reasonable attempt? good faith reasonable attempt? some other word? to comply with the old section 5 requirements. the section 5 rimpls. now they have to do it over again anyway. so they do it over again.

and in fact, some suggestions and that's what they were trying to do. and you would have evidence there, you would say no, no, that sngtd what they were trying to do, they didn't even read the guidelines of the attorney general, they didn't even look at what happened in the past. they made no such attempt. so from a mural point of view, anything wrong with that holding? >> your honor, i think with regard to the question of justification, we think it doesn't make any sense, in light of this decision, in shaw 2, the court's decision makes it clear. what they did was judge by the correct interpretation of the statute, not what they might have thought in good faith that mattered. and it's correct in a number of the -- secondly that the purpose to comply with the correct interpretation has to have been their motive at the time.

and secondly, at the time not at trial, but back when they did this, they had to then in 2012 have had a strong basis in evidence for concluding that not using all these different numbers would say -- you could send the case back to 20 -- you can't send the case back to 2012 and have them change the purpose or change the evidence before them. unless you're going to change -- other affirmative action related cases. you could not do that. it's years too late for them to solve those problems. and -- >> i'm still having a psychological problem with your point. there were three reasons, they're saying herely because it was among the three, it

necessarily was predominant as to each district created. it was a hypothetical i posited for you. it was the primary reason above all others is that it was a 2% district and there may be districts among these 36 that as i indicated had con tig wous populations that didn't make a difference about race. so they're not affected by this policy, why should we undo that? >> let me just answer this one question, as the analysis of the preceding districts shows, there's raced based precinct splitting on every one of the majority black districts questioned. it wasn't just that they took the neighboring districts a chkd they turned out to be just the

ratio they wanted, it was very, very calculated and raced based. >> thank you, counsel. >> the key point in this case is that saw claims district -- the district court departed from that principle and in our -- >> what the plaintiffs are saying is yes, we have common evidence not all together usual in a shaw claim, but here they have evidence. it's a policy statement that retrogression was going to be a very mean priority. and retro aggression skr wwas dd

in a certain way. and that was going to be taken into account in every single minority/majority -- that relates to every single district, so in effect the evidence state wide does not make it any less a district by district case. >> that may be right, justice kagan, but it also doesn't prove that race predominated in the shaw sense with respect to each particular district. let me explain why. the test under shaw is whether race predominated on the delegation of redistricting criteria. resulted in judgments that to draw the districts in ways that -- such as compactness and maintaining communities of interest, but it may be the other districts that it didn't and i can provide specific examples of that.

>> i guess i would appreciate specific examples because it seems to me as sort of a going in matter, when you say this is the most important thing except for the reynolds inquiry. this is the most important thing that necessarily, it's going to avblgt the way you redraw or what you put into the districts. you might not reach the target in every single district, but necessarily you're saying, we are prioritizing this race based thing, cry tier i don't think in a way that's going to affect every judgment we make. >> but we read the shaw line of cases as to whether it's done in deregacey. >> if you have three priorities or three criteria and you say this is the absolute most important criteria, the natural affect of that is going to be to minimize the other two criteria.

>> that's not necessarily try, sometimes they'll kick, and sometimes they won't. i'll give you examples that will illustrate that from the report. there weren't specific findings about these districts in the district court's opinion, so i'm not trying to say this is what the district court found. for example in house district 67, the state argumees that tha was a state in which you are going to have an african-american percentage, at the percentage that the district was drawn at, no matter how you drew it. and that was because the surrounding populations around the district were all of comparable african-american percentages, so whatever choice you made in order to get to the 1%, 2% -- it's a situation in which traditional drishlging criteria drove the decision. there may be other districts,

and district 26 is one that comes to mind is where you had 14,500 people in the city of nont bombry and surrounding areas, all but 35 of whom were african-american. and if one looks at that map, and it's very difficult to discern in the small maps that are in your material, but if you can get a blowup of it, what you will see in that map, the so-called crab claws that extend out from the district from african-american populations, what they do is carve out the white part of the city of montgomery and attach it by a very narrow land base. >> what about the economic data? >> then it would not be a problem. >> but it results in the same thing? >> but wouldn't -- i want to go back to the question that your honor posed earlier when partisanship can be a -- if a

state were to move electoral presiblgts, there you would have the data on how the people voted in that precinct. that would not raise a problem under the shaw analysis because you would clearly be making a decision for partisan reasons. but when you split a precinct and you move just on the census population, you know don't how they voted, you just know their race. if you're using race as a proxy, in that circumstance, that would violate what this court has said in all it's shaw cases is the constitutional norm at stake here, because you're making an assumption, you're stereotyping in that situation. >> so that's true at the out set if you move them by race in order to increase their capacity to influchbs districts? >> that's a difficult question, your honor, but i think if

you're moving people by race in order to ensure that you're not violating the voting rights act, then it's a one-way ratchet. >> >> you say that the district court in addressing the claim of racial geri mannedering on a state wide rather than on a race specific basis, i would assume that was an error on the part of the district court unless an -- >> i actually think this is quite a working question. i think we agree, your honor as quite right that the district court did appear, and there's a place where they did appear to assume that this was a state wide claim n some respects one can understand why, because the basic theory is that the motive influenced every district.

and it did adjudicate the case on that basis. so it did seem to me that one outcome would be that the proper understanding of shaw is that the claims have to be made on a specific basis, and that claims didn't propound recognizable claims under shaw. and that would be run resolution here. judge thompson did say he thought that the claims were district by district specific, justice kagan has identified, so another option might be to arrest fick late the district's standards. >> you don't deny that a state wide policy can refer to every district or every majority/minority district in the state. >> our point is that's not enough to trigger strict scrutiny, you have to look at see if it's implemented in a matter -- >> i don't want to press it if you have given me your best answer to it.

if a policy says we're going to prioritize this particular criterion, which here was the mistaken understanding of retrogression, if it says that we're going to prior advertise this beyond anything else -- >> if it's der ration -- >> if the policy says it's going to prioritize it over everything else, that means it's going to be in derogation of district -- sometimes they might fail. sometimes you're not going to be able to prioritize it over everything else. but the intent is still to prioritize it over everything else. >> but the question is, let me take a step back because i think it might help to put it in this context. a shaw challenge is a challenge to a neutral government action.

the lines on the map are what are being challenged here, that's the government action. those lines are neutral. they may in fact affect a violation of the constitution under shawive race predominated in the placement of those lines. but that's what you've got to prove. and the mere existence of this motive doesn't prove it for each district and that's our point. if i could, i would just like to raise one point in my remaining time going back to the question of what section 5 retrogression. >> you may also address what affect if any it had. >> the two are quite related. i think professor pildes referred you to this chart. the difference between the 1993 plan and the 2001 plan, the justice department cleared the 2001 plan that alabama submitted

and you will see for every single district listed, with maybe one exception, there were significant reductions in the minority percentages in those districts. so alabama knew perfectly well that it was completely consistent with it's obligations under section 5. >> you asked for a remangd, the results of remand would be the re -- >> that's certainly correct. >> and that's not a concern for you? >> it's not a concern for us. it is what it is, mr. chief justice. if on remand, the district court concludes that some of these districts violated the constitution, then alabama will have to -- this legislation will get its first chance for a legislative fix and section 5 worvelt be a basis for them to take any action. >> thank you counsel.

>> mr. brasher? >> thank you, mr. chief justice, and may it please the court. i think i should given with the district court's fact finding. because the district court found that race did not dominate. and we can avoid addressing questions about sec shichb 5 about redistricting. on page 144 of the jurisdictional statement appendix, the district court expressly found that we did not impose a quota. the court says that we imposed no -- we followed preexisting district lines, we followed roads, we followed county lines, municipal lines, we met the needs of incumbents and we preserved communities of interest. the plan that we passed is a status quo plan. the whole point of the plan was to preserve the status quo, because the majority had won the

legislature for the first time in 1 30 years. >> but the other side says it was impermissible for you to preserve the status quo because the majority in the minority districts to participate in the electoral process had improved to the extent that maintaining the status quo would be characterized as packing? >> actually if you look at, two responses to that, your honor, the first is that if you look at the micus brief supported by political scientists, they show that black voter turnout and white voter turn out actually equalized in 1998. so there actually isn't some difference between the districts in 2010 and the new ones that we proposed with respect to those criteria. the second point i guess i would make to that is that, our redistricting criteria are nonracial redistricting criteria with the objective is -- the objective of these nonracial

redistricting criteria was to preserve the status quo. i think that's what the united states attorney general was getting at, that it's difficult to disentangle that we're trying to go with the status quo of the minority black districts. >> is it fair to read the pleadings a and the submissions in this case that the state did not defend this plan on the basis that it was for part sachb purposes but that it was to comply with section 5 in was that a fair reading of a of the read brief and bhrks of what the district court found? >> i don't think it's a fair reading either, your honor and this is the reason why. specifically with respect to -- one of those districts is senate district 11 which was specifically challenged by the alabama democratic conference and the district court held that the changes to that district were based on politics. now with respect to the plan as

a whole, our response has always been that the there's a lot of factors that went into drawing the plan as a whole. and i think it's porvelt here that the plaintiffs have never proposed a redistricting plan, especially the 2% deviation in population that the legislature adopted. i think that's important for three reasons? >> are you really saying that that's a pleading requirement, that they have to come in with a plan that meets all the rest of your criteria? >> i think it's an evidentiary issue. i think it's important for three reasons, first because the legislature adopted that 2% deviation to end the previous geri machbderring that the -- the plaintiffs brought a partisan geri mannedering claim. and the second part is what i alluded to earlier. the court held that the first

step of a racial geri man zering claim was that there was a -- greater racial balance. and the fact that they have never produced a plan that does that is a serious problem. if you want to see if race is precome nangtd, you take race out and you run it again and you see what happened. >> let me just give you some numbers here from some of these districts. hd 52. you needed to add 45 -- which was your number one criterion. you added 1143, you missed by two. hd 55, you needed to add 6981, you added 6984. sd 63, you hit it at 15,185. those nibs speak for themselves, don't they? that in each of these cases, you were determined come what may,

and disregarding other criteria to maintain the black voting age population. >> i don't think that shows that for two reasons, first i agree with the united states, mr. general, is that the question was that -- >> that was just a coincidence? >> no, but that goes to my second point is that those house districts you were reading off are in the city of birmingham. the city of birmingham is 73% black. >> it's 73%, and you hit that 73% exactly. >> that's my point, there's going to be some of those house districts that are going to be 73% black. and in a place where there's more than 200,000 people and 73% of them are black-- >> i think you kind of do actually, because you're frying to repopulate these districts and many of these districts, yes, there are many, many african-americans. but as you just suggested, there are also white people. and you did it so that you know

completely replicated the exact percentage figure. >> i'll give you another example of what i mean. house district 67 which we talk about in our briefs is a single county district, it's always been a single county district. it's always going to be 70% black because that county is 70% black. these nablds are 73% black and that's how we hit those numbers and we certainly have proven otherwise. the failure to propose a 2% plan is important, because of a 10% plan. are drablgtically different from a 2% plan. it's like comparing -- their senate districts can vary by 14,000 people. and ourselves can vary by only 2,000 people. even though these plans are drastically different many of their districts have exactly the

same black percentage districts. we lay out the senate districts in their proposed plan and our proposed plan, you'll see district 18, 19, 20, some of the districts that justice kagan was talking about earlier are almost exactly the same in all three plannings. if you look at senate district 33, it's the exact same in our plan and the black caucus's proposed plan. it's the only way you can draw senate district 33 with -- >> what about senate district 26? >> senate district 26 was 70% black in the previous plan and it's 70% in our plan. the plaintiffs testified in this case that the marry of montgomery city is 99% black, and because that was one of the senate districts that they actually challenged, we have actually good faith credibility determination from the chalk board because the gradraftered

actually testified and they said that because of the way population shifted they had to join anned a joining district. and that left an orphan county, crenshaw county, as a rural county, south of montgomery, they explained that what they did was they took part of former senate district 26, took it out to make a way to skekt the rural crenshaw county to the rest of senate district 25 which was already commonly ruled. >> if you look at that district, it has a very bizarre shape and the efblgts of the bizarre shape is to include african-american areas and exclude predominate. ly white areas. >> if you look at the comparison map, you can see a comparison between a former district and the current district. and what you'll see is up at the right -- i'm sorry, the left -- the left part of montgomery

county, that's where the former district used to be, it was part of senate district 25, that came into the middle of that dprikt, sort of came in the middle of it and what the drafters did here, is they dpru the lines closer to the city of mochkd bombry, and middle. they took some precincts and parts of it along those lines and moved them from senate district 25 to senate district 26. i want to correct something that my friend said, we didn't just move black voters into that district, we moved hispanic and white voters into that district. >> usually in these cases you're looking at these funny-shaped districts and you're trying to figure out from the shape and from other matters whether race has been used instead of traditional district and criteria, but this is very sort of -- this is sort of sweet, generous claim because here the

principal evidence in the case is not all the circumstantial stuff that we usually do, it's a policy statement from the state that says race is going to be our principal cry tear yan except for reynolds. and then clear testimony from the people who were applying that policy statement that they thought that that meant maintaining the black voting age population, something which is mistaken understanding of what retrogretion entails. you don't have to look at the circumstantial evidence, this is how we understand it in such a way that it's going to insure a 68% district stays a 68% district and a 52% district stays a 52% district and so on. >> well, just two quick

responses to that justice kagan. the first is that the state is always going to say that complying with federal law was a top priority because federal law is supreme. >> this is much more than that, this is very specific saying where the two legislatures principally in charge of this said this is what we understand the requirements are, that we're going to maintain the black voting age population in each district. >> well, that brings me to my second point which is that imagine had we done the same thing that the plaintiffs are suggesting and we had higher political scientists that said 55% should be the target. i don't think that we can say race predominated in that circumstance just because we had a different target. they are bringing a circumstantial case here. we said this is -- >> justice kagan's question points up the fact that the defenders of this plan did not rely on the fact that it was a politically jury-manded and that

of course they said it was the 2% goal but the basis was race cocomply with section 5. >> certainly with respect to certain districts they were based on partisan ship. and so had they challenged specific districts we would have responded in kind with respect to those specific districts, but they never challenged specific districts below. to answer justice's question, look at 194, the black caucuses post-trial brief -- this is a circumstantial case because the only evidence -- it was challenged by the alabama democratic conference. because they specifically challenged that -- about the

testimony with respect to that specific district. >> let me ask you about this section 5 mistake. isn't it so that both the district court and alabama were laboring under the impression that retrogretion meant you have to keep the same numbers? >> the district court made an express fact finding here that our goal was to prevent substantial -- >> if that's a misunderstanding of what's section 5 requires, then the whole thing is infected by that mistake. >> well, i disagree with you about it being a misunderstanding. in 2006, congress told us we would not diminish the ability to elect black voters. my friend professor testified against the inclusion of that language in congress and he told them if they included that language it would, quote, lock in place, end quote the majority black districts in the south. if you cannot diminish the

ability to elect, if there's a safe majority black district or 100% chance, you cannot drop that to where they have a 50% or 60% chance. that's what we were setting out to do. this court said that they have lead way in complying with section five that we do not have to hit things right on the top. >> i don't understand your response. there are different interpretations of what those 2006 amendments mean, right, under one interpretation it was a codification of justice suitor's opinion and so majority minority districts could be transformed into influenced districts. on another stricter interpretation, perhaps, no majority minority districts had to stay majority/minority districts but in no interpretation does a 76% district have to stay a 76% district when circumstances change and when the ability to elect candidates of one's choice does not require it.

>> well, decreasing the proportion of black voters will generally reduce the chance that the minority's groups favored candidate will be elected. and the district court i think that korng was trying to go to go back to, quote f existing opportunities to exercise the franchise are robust a proposed plan that leaves those voters with merely a reasonable or fair chance of elects a candidate of choice may constitute retrogretion. only 55% black district would only give those voters a reasonable opportunity to elect. >> suppose -- i don't know, i want to know what you think about the practicalities of sending this back.

assume in the back of my mind relying on state policy is this -- a state legislature gets up and says n our state there's a history of discrimination against black people, there are fairly fu black representatives in this body. i would like to find a way of drawing district lines so that we have a few more. >> okay. >> that's the normal way this case comes up. this is an odd situation. i don't know that that statement should automatic matly disqualify his plan. maybe we should look further into it and see what they actually get. suppose i start there. then i say, okay, i suspect they'll be able to prove that at least in some districts, at least in some the statement of legislature here did prevail and did make a difference.

so i don't know what the defense is possibly going to be. and since we can't even think what the defense is, why don't they just redo this plan over in the legislature. what's your response to that? >> there's a couple of responses. the first is i think it was a lot of trouble to redo a sflan. >> it is a lot of trouble. >> you want to go to that lot of stroubl before a lot of extra trouble in court proceedings or do you want to go through that trouble right off the bat and get it over with? now i expect you would have answer answer to that and i'm not taking a point of view. i want to know what your response is. >> to respond to that pointed question, this plan was passed after 21 hearings held throughout the state of alabama. it was passed after extensive legislative negotiation. it was passed in a special session of the alabama legislature, it was called for enacting a redistricting plan. we do not want to go back

through that process. >> of course you don't. will there be a defense left that could stop you from having to go back? >> yes. i think the united states agrees with me that the question here is whether there was a strong basis in evidence for us to believe at the time we passed this plan that we had to comply with section 5. we had that defense even if we're litigating district by district. but let me say something -- >> what did it mean to comply with section 5? and that's -- you can say strong -- everybody agrees that that counts. compliance with section 5, strong interest in doing that. but if you think section 5 means you got to preserve the same numbers and that's not what section 5 means, then the whole premise on which the district court based its decision was wrong. >> well, i don't think so because i think the district court's decision was premised on the fact that race was not the predominant factor in this plan. but to go to the question about section five, we adopted a very

responsible section 5. it was the exact same thing that georgia did in 2005 and that congress said in the house report when it reauthorized section 5 in 2006 -- >> if that turns out to be wrong, i guess you're still not guilty of using race. you're still trying to comply with section 5 as opposed to being racist, right? >> that's exactly right. they did make intentional discrimination claims -- >> if the district court said that race was not the purposes, in the district court's view, what was the plan? >> i don't think there's a need for a district court to identify any one -- >> i'm asking in this case what did they say? wasn't it the assumption they wanted to assure preclearance under section 5 and for that reason used race. so when you say the district court said, well, race was not the purpose, it was close to the purpose because they were trying