thank you. [applause] >> terminator! >> thank you for joining us today. let's give a round to everybody. what do we want? representation. when did we >> now! >> went we want? what do we want take? >> representation! now! >> what do we >> this week, the supreme court heard oral arguments in a case covering wisconsin's gerrymandering. that it wast ruled unconstitutional. this oral argument, gill versus

whitford is hour. we will hear arguments this gillng in case 161161, versus whitford. >> this court has never uncovered judiciously manageable standards for how politicians have acted too politically. andal science metrics hypothetical projections do not solve any of these problems. they were merely shifting districting the final courts who decided the fate of maps based upon panels of experts. on a threshold matter, this court should hold the courts jurisdiction to entertain statewide political gerrymandering challenges, leaving district specific gerrymandering. >> i think it is true there is no case that directly helps respondents strongly on the

standing issue. you have a strong argument. suppose the court -- you have to assume we will know exactly the parameters of it -- decided this was a first amendment issue. not an equal protection issue. with that change the calculus so if you are in one part of the state you have a first amendment interest in having your party strong or the other party weak? mr. tseytlin: no, your honor. it is still grounded in the right to vote. 's single district electric system, you can only vote in your own district. you might have some big interest in the part associated with having more members in congress, like a wisconsin republican might want more taxes republicans -- texas republicans in congress. argue it led to less

republicans from texas coming to congress. you and yourdy: district have a right of association and with exercise that right of association with other people elsewhere in the state. if you can't challenge the districting throughout the state, your claim seems to be -- there is no way for you to raise your claim. and this of course confined to to the state and a limited the problem of out-of-state. the weather chief justice stated that hypothetical. mr. tseytlin: i don't think he would solve the energy problem. the structural -- interstate problem. the structural -- >> let's assume it does. mr. tseytlin: i still think the court to be very careful about and acting that kind of doctrine. as we know, race and politics are often correlated in this country. recent gerrymandering claims

will often be raised together. it cannot possibly be the case that if there is a showing that the map drawer went down a racial screen, a person limited to a single district claim, if desksame map drawer appointed would get access to the holy grail of a statewide claim. >> a question of race. some years ago this court dealt so-called best a deliberate attempt by the legislature to make as many african-american districts as possible. this bears a certain resemblance. the effort intentionally was to create as many republican districts. it does not have the same problem that max black did? mr. tseytlin: i do not think

that raises the same problem. politics is not a suspect classification like race. the easiest way to see this is to look at charts and next recreated available in appendix 235. from 30ert study maps years and identified the 17 worst of the worst maps. what is so striking about that list of 17 is ten or neutral draws. court drawn maps, commission drawn maps, bipartisan drawn maps. including immediately prior to this counsel drawn map. you can learn lessons from this 17, 10 of which were neutral. the first is that partisan symmetry is simply not a neutral districting criteria. it is a neutral method of drawing districts. if it were, all these commissions were not be drawing

these partisan symmetry maps. the second lesson the court should learn from that list is they are asking the court to launch a redistricting revolution based upon the social science. >> before you get deeply into the narrative, can i ask you a question about standing along the lines of those asked by my colleagues? thatse that it was alleged town officials in some place in northern wisconsin where the republicans predominate were discriminating against democratic candidates for legislative district by not allowing that candidate's signs to be put up along the roadsides but allowing the republican signs to be put up along the roadsides, or they were pressuring -- let's leave it at that. they were discriminating with respect to the signs. raiseuld have standing to

a first amendment challenge to that? would it be just the candidate in that district? or maybe voters in the district? or could it democratic voter in let's say milwaukee have standing to raise that first amendment argument? mr. tseytlin: i would think the candidate. i'm not so sure about the voters. certainly voters in the lofty who did not vote for that candidate, they are not eligible to vote for them than anyone in california. >> certainly voters in milwaukee would not have standing? mr. tseytlin: would not have standing. please see this from the testimony of the plaintiff, the only plaintiff that testified in this case. he was asked during his testimony, what harm does act 43 put on you given that you live in a democratic dominated district in madison? he said, i want to be able to

campaign for a majority in the assembly. his injury has nothing to do with him as a voter. it is just a generalized interest in more wisconsinites, wisconsin democrats elected -- what summit in wisconsin can have -- in theose the sign southern part of the state talked about an issue that was very important to the people in milwaukee. mr. tseytlin: i think one can from hypothetical where if there was a moral thing where milwaukee's right to have certain type of buildings was affected, but we don't have anything like that here. >> can i do this? the heart issue is are there standards? manageable by a court, not by some group of social science and political experts -- computer experts. i understand that and i'm quite sympathetic to that. canme spend 30 seconds if i

giving you as you have read all these briefs -- this is where i am at the moment, not that i am for this, react to this as you wish. if you wish to say nothing, say nothing. it is for everybody because it is a little complicated. i read all the social science and the computer stuff, is there a way of reducing to something that is manageable? i have step one. the judge says, was there one-party control of the redistricting? if the answer is no, is a bipartisan commission, end of case. step two, is there partisan asymmetry? in other words, does the map treat the political parties differently? a good evidence of that is a party they got 48% of the vote, got a majority of the legislature. all the evidence of that is what they call the e.g., which is not quite so complicated as the

opposition makes you think. in other words -- question three, is there going to be persistent asymmetry over a range of votes? that is to say one party gets 50% -- that is the s curve, whether there is or is not. and i has to be some. if there is, you say is this an extreme outline in respect to asymmetry? there we have eric landers' brief. you know that one. we look through thousands and thousands of maps. somebody did it with real maps and said how that is this compared to the worst in the country? you say is there any justification? was there any other motive?

was there any other justification? mr. tseytlin: i suspect that is manageable. -- i'm not positive. as myw it out there effort to take the technicalities and turn them in the possibly manageable questions for a response from anyone in so far as you wish to respond. if you wish to say, i wish to say nothing, that's ok with me. mr. tseytlin: i would like to talk about the third and fourth. i have talked about the second a little bit. with regards to the third, persistence. that is exactly the kind of conjectural hypothetical state of affairs inquiry submitted to this court in professor king's amicus brief. recognize -- you have an e.g. for any particular reason. you have federal courts engaging

in battles of the hypothetical experts the siding, what would it be under this map or that map? that's a nonstarter for that reason. with regard to extremity, -- >> give i could stop you for a second. i was under the impression that legislators are capable of doing this easily now. in the world of voting technology, it has changed a great deal. when legislatures think about drawing these maps they are not only thinking about the next election, they are thinking often -- not always but often about the election after that and the election after that. they do sensitivity testing and they use other methods in order to ensure certain results were obtained not only in the next one but eight years down the road. it seems to me just as legislatures do that in order to in trench majorities or minorities as the case may be,

in order to entrench a party in power, so to those same techniques that become sophisticated can be used to evaluate what they are doing. mr. tseytlin: your honor, legislatures don't have to worry about standards. legislatures don't have to worry about false positives, false negatives. this is not a hypothetical guess in them he guess again. this is pretty scientific by this point. mr. tseytlin: your honor, they are just estimates. there are estimates we have not put any social science to say the estimate is wrong. singleetold, but every science metric points in the same direction. there are five of them. your matt kuchar is one of them --map drawer is one of them.

what we know is they started out with the court plan. they created three or four different maps. they were not partisan enough. they created three or four more maps that were not partisan enough. they finally got to the final map after maybe 10 different tries of making it more partisan and the achieved amount -- a map that was the most partisan on the s-curve/ it works better than they expected. the estimate was not wrong. the estimate was pretty right. so, if it is the most extreme map they could make, why isn't that enough to prove partisan asymmetry and unconstitutional gerrymandering? mr. tseytlin: i think the facts in this case that you were

discussing are significantly less troubling than the facts and case this court is previously faced. one, the map drawer comply fastidiously with traditional principles, but they kept -- justice kagan: they kept going back to fix the map to make it more gerrymandered. that is undisputed. they were involved in the process. they had traditional maps that complied with traditional criteria. and then went back and throughout those maps to create some that were more partisan. mr. tseytlin: that is correct, your honor. justice sotomayor: why didn't they take one of the earlier maps? mr. tseytlin: there was no constitutional requirement that they do so. they complied with all traditional districting runcible's. >> let me take you back to justice kagan's question about legislators using these techniques.

are all the techniques that are used by politicians in order to try to maximize their chances of electoral success scientific? i think they rely a lot on polls. how scientific have a proven to be? mr. tseytlin: legislatures can very much rest on conjunction, where courts cannot. i reserve the balance of my time. >> mr. murphy? mr. chief justice in may it please the court, plaintiffs have not identified a workable standard for determining when the inherently political task of districting becomes too political for the constitution to tolerate. the only thing plaintiffs and added to the mix is a wasted votes test identifies court drawn maps and enduring partisan gerrymander's and favors their own political party. >> you probably considered the

hypo many times. suppose a state statute says all-district shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to increase the maximum number of votes for party x fouor y. ms. murphy: if something says the ultimate principle that we are going to follow his abandon all other criteria in favor of partisan advantage, at least you are closer. >> i don't think that was the question. it satisfies all the traditional criteria. but it was ad -- deliberate attempt to the number of seats republicans would hold. >> this is mandated by the state constitution. ms. murphy: i don't think in a world where the legislature is required to and is complying with a number of other metrics,

and one of those things is taking into account partisan advantage that you have proven a constitutional violation. >> that is not a manageable standard? it is not a manageable standard to cannot have a law that says drawbacks to favor one already or the other? that seems perfectly manageable standard. ms. murphy: i think you have a different scenario because at least at that point you know the intent. there is no debate to have about the intent of what the legislature is doing and if they are intentionally drawing from one purpose. >> there are many areas of law related intent beyond the face of the statute. sometimes it is harder than other times. we understand it can be difficult. in other cases it can be easy. we do it all over the place in law. we don't say, we are never going to look at it. if your answer to justice alito is on the face of the statute, that is certainly a manageable standard, i guess i would ask,

why not if it is not on the face of the statute? but you have good evidence that there was the intent here, and you have good evidence the intent led to a certain kind of to entrench aas party in power. ms. murphy: i think what differentiates this from other context is we have opinion after opinion from this court, dissenting opinions, concurrent opinions, what have you saying considering politics in districting is not in and of itself inherently unconstitutional. just finding the intent is not a problem. >> i would like to go back to justice breyer's question and get an answer for me. what criteria would escape need to know in order to avoid having every district in every case in every election subject to litigation? the standards given in the lower court was a little bit of

partisan symmetry problem, a little bit of efficiency gap problem. not a real set of criteria. 7%, how durable, how many elections when we need, how much data will be have to gather. provide some answers if you would. ms. murphy: some of the problems with the criteria that has been suggested, and particular with a test that focused on these symmetry metrics is that so far the metrics we have identify false positives roughly 50% of the time. i don't know how a legislature is supposed to comply with criteria they can't differentiate between a court drawn map and a map drawn for partisan advantage. when you start with this partisan citrusy -- symmetry concept you have the basic problem that you have to decide what is the appropriate partisan asymmetry.

justice gorsuch: i need two cycles with the data. ve of a certain shape and size. one of the numbers? what are the criteria we would have to fill in as a constitutional matter for the state to administer this? ms. murphy: with all due respect i'm not convinced there are manageable criteria for the courts of the putting on legislatures for how to go about this process. i certainly don't think anyone in this case is identified them. one of the starting points for me would have to be that traditional districting criteria should matter in the analysis. if you have a legislature that started by saying we are going to comply with everything we are supposed to do, not only in a legal matter, but all of these practical constraints, we're going to draw districts that -- >> time is running out. theuld like to ask you

precious right to vote, if you can stack the legislature in this way what incentive is there for a voter to exercise his right? whether it is a democratic district, a republican district, the result using this map is preordained in most districts. that's what becomes of the precious right to vote when you have that result? when individual citizens say i have no choice. i am in this district and we now have this district is going to come out. this is something society should be concerned about. ms. murphy: a couple of responses. it is inherent in our districting scheme that there are plenty of people who are always going to be voting districts with a note with the result is going to be. that has nothing to do with partisan gerrymandering. it has to do with the geography of politics and the fact that some of us live in districts

where we know our vote will come out one way or another. plan wisconsin before this 49 outs something like of 99 districts were uncontested. contestedn was not because one party or the other was going to win. ms. murphy: i don't think you control the conclusion from the fact there are uncontested races. the political parties have to make decision about where to put their resources. they are going to have to do that for reasons that again have nothing to do with districting for partisan advantage. they have to do with the fact that drawing districts is always going to reflect political calculation and always going to be driven by communities of interest and communities of interest sometimes feel very strongly about one political party rather than another. >> i have to say i don't think you ever answered the question.

if the state has a law or a constitutional limit saying all legitimate factors must be used in a way to favor party x or party y, is that lawful? ms. murphy: as a requirement to district must comply with, and that could be your instant of a problem that can be actually solved by the constitution. it is quite different to me when you have a neutral -- >> is it a first amendment violation? ms. murphy: it is a little hard to say at this point because it has not been fully explored, this concept of how you would come out of all of this may 1 amendment respective. i think this comes back to the standard question -- >> equal protection. ms. murphy: i think the question would be who has standing to bring -- >> let's assume standing. i would like an answer to the question. ms. murphy: it would be an unconstitutional on the face of it, and i think that would be

better thought of as an equal protection violation. you could think of it just as well as a first amendment violation in the sense it is viewpoint discrimination against the individual or the legislation is saying you have to specifically draw the map in a way to injure. >> can you telling with the value is to democracy from political gerrymandering? how does that help our system of government? you almost can see it doesn't you say if the state has a constitutional amendment or has a law that says you must comply with traditional criteria, but you must also politically gerrymander. you are saying that might be unconstitutional. ms. murphy: i don't think that means districting for partisan advantage has no positive values. i would point you to justice breyer's dissenting opinion which has an extensive

discussion of how they can actually do good things for our system to have districts drawn in a way that makes it easier for voters to understand who they are, the legislature is. give releases values in the terms of accountability that are value to people understand -- >> i don't understand how any of that -- what that means. it is ok to stack the deck so that for 10 years or an indefinite period of time one party, even though it gets a minority of votes -- gets a minority of votes can get the majority of seats? ms. murphy: with all due respect, i would certainly dispute the premise that the deck is stacked. what matters is how people vote in elections and that is one to determine the outcomes as it has in wisconsin where the republicans won majorities because they were won -- they won the majority of votes in the

past four years. >> thank you, counsel. >> mr. smith? mr. smith: may it please the court. what the state is asking for is a free pass for using an assembly map that is so extreme that it nullifies democracy as this case illustrates it is a 50-50 staten in to draw a map that is so biased it effectively decides in advance who will control the legislative body for the entire decade. >> maybe we can talk briefly about the standing issue. arresting to have a rule we establish with your claim is racial gerrymandering it has to be limited to your district. you cannot complain about racial gender bending -- gerrymandering elsewhere in the state. but if it is political, you can raise claims about statewide issues, even if there is no argument that you are gerrymandered.

like the first plaintiff whose votes in madison that his vote is not diluted in any way, that he will complain about voting anywhere in the state. mr. smith: mr. chief justice, the standing has a follow for the nature of the industry -- injury. is an g remaining claim attack on a particular district for being drawn with excessive focus on race. in that situation the injury has to be localized to the place for the district is. partisan gerrymandering has the same word,-entirely district kind of -- different kind of injury because it involves dilution of votes. >> what about the hypothetical? you are up in far north of wisconsin and somebody is taking down the signs for the one candidate in the far south. that affects the individual's strength of his vote for the

statewide purposes. will he have standing to complain about that? mr. smith: it might have some the minimus effect of any democrat trying to carry out that group -- >> it seems to me is exactly the same thing. if you have a system, let's extended to many towns that are controlled by the republicans and they are taking down all the democratic sign. it will mean fewer members of the legislature are democrats, and therefore the interest of the democratic voter in milwaukee or medicine will be impaired. it seems like exactly the same thing. mr. smith: if you have a systematic effort in a lot of places by members of one party to prevent the other party from campaigning effectively, >> is look at the race issue. you have a state where you have in onecan-american voter

part of the state who wants to complain that districts of the other part of the state are cracked. in one part of theas a result, there wr african-americans in the legislative that there should be. that is going to impair that person's interests, including i would suppose the right of association. what is the difference between those two situations? appropriatehe law bits of people living in the region of that state if there is an absence of an additional minority district. you do not want to assume the african-american has a collective interest because of race. that is the stereotype. with party, people join a party to work together and cook -- but she a collective -- and achieved a collective ends.

>> that is also stereotyping. maybe the candidate is a friend or neighbor or people think it is a good idea to have their representatives from their district to balance out candidates from other districts. maybe it is left areas difficult to think people will vote for parties because they support everything the party the statewide. >> i think you want to find plaintiffs to do that and the plaintiffs are thoroughgoing members of the party and their party has been punished by the wisconsin.state of the standing issue ought to be satisfied by the description of what our claim is, which comes out of kennedy's occurrence. it is a two-fences description -sentenceaim -- two description of our claim.

disfavored treatment by reason of their views. in the context of partisan gerrymandering, first amendment concerns arise where it have a purpose and effect of a group of voters representational rights. because of the people who have the injuries of their first amendment interests. everybody in the group should be able to bring the first amendment argument -- well --roberts: person one vote case, doesn't person in an overpopulated district have standing to the entire state map? paul: that is the way i have been handled as the reynolds case. >> why is that an analogy to this case? >> it is helpful but not exactly the same because they live in an overpopulated district. those of the people who suffer vote dilution because everything

in the overpopulated districts, not only developers and have standing to challenge their own district but to challenge the entire map and make all the -- districts closer in population. that is how it has been handled since the 60's. >> i will layout for u.s. concisely as i can. what is the main problem for me? i would think is the claim was allowed to proceed there were be a lot of these claims raised around the country. is an important driving force and the claims will be raised. every one of them will come here for decision on the merits. these are not within our discretionary jurisdiction in their mandatory and we will have to decide in every case if the democrats or republicans win. it will be a problem here across the board. an intelligent man on

the streets and let's say the core issues in decision and the democrats win and a presence is why did the democrats win, the egwer will be because the was greater than 7% where it is the stigma of party x wasted ytes minus sigma of party wasted votes over the sigma. that person will say that is a bunch of baloney. up one case after another as they are brought in every state about because very serious harm to the status and integrity of the decisions of this court in the eyes of the country. it seems a palatable answer to on the ruling was based fact that e.g. was greater than

7%. that does not sound like language from the constitution. >> those challenges are already being brought. part of the mouse get challenged in other ways. under the racial gerrymandering doctrine, under section ii. you are getting those cases. most of the statewide districting maps are challenged every 10 years. what makes the system work better as people can bring challenge to what they actually think is wrong with the map, which is the anti-democratic -- in advance when party will control the state government for 10 or 20 years because they can replicate it and do it again. that is the real problem. with the court needs to know is of a morecusp serious problem as gerrymandering becomes more sophisticated with computers and data analytics and the electorate that is polarized and more predictable than ever before.

if you let this go in and say we are not going to have a judicial , in 20or the problem will have copycat gerrymandering, like of which is country has never seen. the country is going to lose days in democracy big-time because voters everywhere will be like the voters in wisconsin and it doesn't really matter whether i vote. >> the whole point is you are taking these issues away from democracy and throwing them into the course pursuant to that it may be just my background i can only describe the sociological part. >> this is not complicated. it is a measure of how unfair the map is. >> look, do not agree with me just because it sounds favorable -- in he won't and two minutes. answer and say the reason they a w as because it party

--ority of votes, partyins if party a wins a majority of votes it was the legislator and loses, it still controls the legislator. that is not there. can call a proportional representation, which has never been accepted as a political principle in this country. >> we're not arguing for political representation. we want to map that treats the two parties equally with the votes into seats. >> that something satellite proportional representation to me. is with the same percentage of seats that they haven't votes. that is what it means. our claim doesn't remotely do that. it's as if party a at 54% to 58%

when iteats, party be gets 54% of the votes gets 58% of the seats. that is the right way to think about a map that does not distort the outcome and put a thumb on the scale. >> can i just ask you a question about the political science? distasteful.g is but if we are going to impose a standard on courts, it has to be something manageable and sufficiently concrete so that public reaction to decisions is not going to be the one the chief justice mentioned. they decided this way because two of the three were appointed by a republican president --republican or democratic presidents. then, scholarsce and political scientists have

been looking for a manageable standard. in 2014, a young researcher publishes a paper, eric mcgee, publishes a paper in which he says the measures that were previously -- the leading sures previously were inadequate but i have discovered the key. i discovered the rosetta stone and it is the efficiency gap. one year later you bring in this suit and say there is. that is the constitutional standard. after 100 years is finally discovered in this paper by a young researcher who concludes in the end after saying symmetry eness looked to be inappropriate, the measure i have offered here relative wasted votes is arguably,

arguably, a more value and flexible measure of partisan gerrymandering. is this the time for us to jump into this? has there been a great body of scholarship that has tested this efficiency gap? it is full of questions. brief hass owner numerous unanswered questions. what you do in elections that are not contested? you have to make two guesses. how many people would have voted or the winning candidate losing candidate if it had been a contested election? when of the judges in the court below asks why do you calculate e.g. by subtracting from the votes obtained by the winner 50% of the votes instead of the votes attained by the runner up? mcgee says i have an answer and i have a forthcoming paper

and i will answer it in the coming paper. all of these questions. is 2017 the time to jump into this? >> is there a question there, your honor? [laughter] >> yes, there is a question there. court, might, in the inappropriately lays out a challenge and says if you want us to do this you give us a lot more than you have given us. a definition of fairness and a way to measure it so we can toit judicial intervention the really serious cases so we will have the court entering into the political fray all the time but we will have standards that say you go this are and we , anythingter year less serious than that we will lead the political branch. sts steppedscienti up and say we have three different ways to calculate asymmetry, not just one.

andpartisan bias measure the efficiency gap. they all come to the exact same conclusion. this is one of the most extreme gerrymandering is ever drawn. the five worst out of the two maps professor jacqueline studied. there is no question here about -- maximizing one-party control as far as they could go. they pushed the limits and pushed the limits and push the limits. >> i am sorry. please. >> please go ahead, your honor. >> i think the summitry ideas an attractive and principle. the first question is you have a substance the principal? principle?

i think you do. out is there a way to find if the district's are subject to challenge without violating the principle? how is it that we will not create a world in which in every district someone can come in and say there has been a violation of partisan summitry we are -- symmetry and we are entitled to a redrawn map? where do you draw the line? it seems to me this math goes over pretty much every line. but where do you draw the line in another case and another case? >> the great virtue of these three different measures, none that were brought into the court, is that they each allow you to assign a number to each r and that allows you to compare them across the country and history. it is possible to draw a line. in addition to measuring a

degree of summitry, you can measure the likelihood of durability of that asymmetry. to do that with the sensitivity testing so you make sure you do not have the kind of map where the small swing of voting over the next decade will look over. this map in pennsylvania actually did. if we have the right tests that i presenting to you now, we would have won that case in 2004. this map is never going to flip over. evidence is unequivocal that the democrats would have to have an earthquake of unprecedented proportions for a chance to get up to 50 votes out of 99. >> all of these predictions, they predict the democrats would not be able to get a majority. it was 50-50 the next election and they had the majority the one after that. republicans are never going to get elected and they've have one every single race.

predicting on the basis of the statistics before us has been a very hazardous enterprise. >> the technique of sensitivity testing, done by the defendants expert in the process of trying them out to make sure they were permanent,er is aammable gerrymanderer method by which you identify one thing about the map. does that have a lot of swing districts and competitive districts in his -- in it? if it does, it might look by his one year but my flip over. that is not this case. they spent their entire time and that locked room doing two things, trying to maximize the amount of bias and eliminating systematically competitive districts, reducing it down to something less than 10. even of those 10, they tinkered thatit to make sure even 10, they thought they could get

at least seven. they ended up getting eight and eventually all 10. >> are you saying we should be looking for outliers or are you suggesting we should be trying to filter out all manner of partisan can situation? or is it some place in between? outliers probably an appropriate one. we do not think and we follow the lead of this court and other decisions of this court that all partisanship is unconstitutional. what you need is a method by which the extreme gerrymander, the one that is fundamentally antidemocratic and is going to last for the full decade, can be identified. that is the only thing we are asking. >> what is the formula that achieves that? the court below did not rely on efficiency gap entirely. it looked also to the partisan summitry test. paralyzed me of my steak rub --

it reminds me of my steak rub. i like to break and a little bit of other things but i will not tell you the formula. efficiencytly the formula for 7% of the country? what is a you want us to constitutionalize? >> summitry is what is being measured by the assistant to gap -- efficiency gap. >> but there are different tests. there are the tests you have previously approached and now there is the efficiency gap test. if the court relied on: synthetic inch of that the we're not telling you how much of -- thatt does of th does not seem to be very fair to the states to meet to avoid this kind of litigation we are talking about. i understand the efficiency gap test itself and it said one third of all districts in the country wind up in court.

tell me where it is wrong and what test you would have this court adopt? >> i would go with the screens that justice breyer mentioned. it would have to be a one-party state. that ignores the fact that the number of the maps were by commissions or courts are divided legislators. with all this taken off the table from the very beginning. you have a one-party states, you have to measure if it is unusually asymmetrical, pretty asked her in -- pretty extreme -- >> how? >> you can use any of the three tests. ould suggest you apply all of them and if they disagree i would say that is something that is unconstitutional. >> just on that, isn't it true e.g.you can get very high based on factors that have nothing to do with

gerrymandering? the political geography can lead to it, protection of incumbents, which has been said to be a legitimate factor, can lead to a high e.g. compliance with voting rights acts. factors thatother can only do to draw a map that does not have a zero e.g.. requirements, all of those problems are taken care of either of the intense stage or the justification stage. >> how are you taking care of it at the justification stage? the proposal was to run millions of alternative maps to see traditionalg some districting requirements you can produce a map that have a lower e.g. nderstanding is when the sun, those maps do not take into account incumbent protection or inclines -- appliance with the

zoning rights act. those can have a big effect. one of the dozens of insurgencies about this old process. >> they do take into account the voting rights act. the study discussed by one of , he produced 200 randomly generated maps of wisconsin using all of the state's traditional criteria. he started with the districts already drawn by the state in 1943 and kept them in place. then he generated randomly some maps and found the degree of i rated by the political geography was my needs. mop -- was minute. not even remotely like what they have in the map. >> would it be fair to require plaintiffs to provide those maps , many of them so that one could tell whether the actual map is an outlier? >> i think the case is going

forward after the technologies are there will be in the record. whether it ought to be something the plaintiffs have to produce as part of their initial case. it could be done that way. a couple briefs that show people who developed the capacity for developing random maps that teach you about the lessons of the criteria of where people live allow you to say that has nothing to do with a degree of bias that we had here. i think it will become part of how the cases are decided at the justification stage. it may also become evidence of intent or how severe the effects are. it could be useful animal variety of ways. that is a challenge. >> how is there a way to filter out the effects of geography from the effects of artisan advantage? >> i would say at the remedy

stage as they come back with a remedy map that matches neutral geography and is somewhat invorable to the party charge, that should be ok. they'll have to go to zero but it has to be something much less extreme. something that doesn't make democracy no longer function. gerrymander is now - -gerrymanderers now are not your father's gerrymanderers. we need to see a new festival of them. all along probably even more serious, i would commend the political simon -- scientists brief. you'll see people coming in and slicing and dicing a very polarized electorate to a point where one-party control be guaranteed. norm.ill become the

in any one party state if you do not without with people will say that is malpractice. clarify what you mean by the one-party state. here, we know the maps were drawn by the republicans and everyone else was excluded, even some republicans. suppose the legislator as republican majority but the 40, 40%ts say it is 60/ democrats. and this is done fighting legislature. does that count -- would you count that as one-party? >> i do, your honor. party has ane majority in both houses of the legislator and the governor ship, the fact that there are some representatives of the party in a minority status would not negate the possibility -- >> is that a republican form of government claim?

>> i think it is a first amendment claim any protection claim. i'm not going to try to revise the republican closet this stage. >> isn't that what you are saying? it is a one-party rule. when a puppy the more specific constitutional -- wouldn't that be the more specific constitutional revision? maybe we can talk about the arcane matter of the constitution. written we get authority to revise its state legislative do we gethere authority to revise state legislative lines and when we authorize the government to step in on state legislative matters? it is pretty clear if you look at the 15th, 19, 26 amendments. even the 14th amendment section congress have the power with state legislators do not provide the right to vote dilute to

representation. are those all contextual representations that we have to be cautious about stepping ain? >> i don't think there's anything weird about using these amendments for elections and state governments. >> where did one vote come from? a number of other cases have followed along since. the fact that congress could conceivably regulate this problem under the 14th amendment does not mean the courts should not. there are a number of cases were congress could have used the election clock to fix a problem. congressional of action, we will get rid of the use of the misuse of federal elections. he will rely on section five of the 14th amendment. >> maybe they could in theory but this is a problem -- >> do see an impediment to congress acting? >> politicians will never fix

gerrymandering. they like your mentoring. [laughter] the problem in this area is if they don't do it is locked up. it cannot get on the ballot without the legislation consents. the same for the state to donna commissions. you you're telling the only institution in the united states that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse. >> you have painted a very dire picture about gerrymandering and it affects. i was struck by something in this seminal article by your expert, mr. mcgee, and he says shall the effects of party control on guys are small and decay rapidly, suggesting redistricting is at best a blunt tool for promoting partisan interests." wase was wrong and that, he

right with the, but he was wrong in that. think i would have to see what he is saying in context. i don't think he says redistricting are gerrymandering is a nonproblem. >> your five minutes remaining. facially discriminatory law and estate would violate the first amendment because it was stigmatized that party. the court's cases cannot be clear that when you have think you'll -- facially neutral lines, the question is not a partisan attack. have theion is plaintiffs presented a burden on representational rights based upon a limited precise judicially and minimal standard. there has been nothing new presented to this court. but they have done here is taking -- taken the briefings concept andt same

recycled it here. there is nothing new before this court. second, we heard about the various tests they are now proposed -- proposing. there was only one test on a four-day trial. that efficiency gap test proved so fatally flawed that the district court rejected it. my final point is about the scare tactics that will happen next. they did a comprehensive study from 1972 to 2014. shows --lment study the charts on that study shows the asymmetry was worse in 1972 than in 2014. you always have scare taxes and partisan attempt -- scare tactics and partisan attempt.

criticizedproperly symmetry is not a neutral standard that has uniform acceptance. we're asking for the court to reverse >> landmark cases>>, a c-span series returns in february. join us as we hear the human stories and the constitutional drama behind 12 frequently heard cases by the landmark court. today on c-span, washington journal is is next to lie with your phone calls and yeardebate on the fiscal 2000 18 federal budget. in about an hour, foreign policy emily onter timothy --

the trunk state department. then we talked to alex nowrasteh and time magazine sports writer sean get -- sean gregory. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] host: good morning. , 2017.aturday, october 7 is end of a very busy week in washington which created a flood of issues from the iran nuclear cash nd the future of it is not always a laughing matter, then -- the late-night hosts have also given emotional pleas on issues like gun control and health care reform. we are asking our "washington journal