hampton roads and upper hampton roads and each of those pockets really don't impact the other. so yes, i agree with you in general it would cause redistricting around the richmond area, but if you recall -- in the person hubbell case, which this court heard last term, we dealt with a single district, bobby scott's congressional district, which had been racially gerrymandered by the same legislature using the same 55% floor. and when they did the redistricting it only effected the two neighboring districts. that district and the district next to it. but i understand the point and it's a fair one and in that sense remand would not be an unreasonable step to take to apply it correctly. >> if -- so i can understand your sense of the relative strengths of your arguments, if we did remand, saying this is the wrong standard, they'll apply the right standard and that was done fairly, where do you think he would have to change his view? where do you think there would be a question? and where do you think the same result would probably obtain? >> i'd like to say there would be new results everywhere but to answer your question fairly, as i try to always do, i think in the richmond area there is no question that a fair application of the standard would lead to a new districting in -- i'm sorry? in the richmond area, which are districts 71, 69, 70 and 74, i think there is no question that it would lead to a new -- it would lead to a different map, different result. i think in the southside of virginia, which is two districts, 75 and 63, this was a curious one because he actually found race did predominate in 75 by splitting dinwitty county. but yet did not find race predominated with respect to 63. it's difficult to understand how race could have predominated in the racial division of voters on one side but not predominate in the racial division of voters -- >> but as to 75 did he not say that strict scrutiny was met because other legitimate and conventional factors were considered and were present. >> he did -- >> 75 is the strongest case for the district court. >> i think 75 is the strongest case in the sense that the application of the wrong legal test he still found that we met that our burden of predominance. i think it is a weak finding on the part of the district court in this regard, your honor. if you look at what the actual evidence was to meet the strong evidence, once we found -- once predominance was found and strict scrutiny was applied, now the burden shifted to the government to explain why they had a strong basis of evidence to do had what they did. their strong bases of evidence was the following, number one that the elected official felt like she would want more -- she needed more african-americans in her district. with all due respect to delegate tyler, most incumbents feel like they would like more voters in their district who are going to support them, and that's not a -- that can't be a strong basis in evidence. the second is they alluded to the fact that there were prisons in the district. this is interesting. this is your honor exactly the kind of racial stereotyping that the voters right act is intended to avoid. there's nothing in the record as to the racial demographics of those prisons. there's nothing to believe that those prisons included or excluded, raise or lower the overall black voting age population of the district. they assumed that if a prison had 8,000 people, it had 8,000 black people. and that is -- that is exactly the kind of racial stereotyping that cannot form the basis. >> wasn't there a primary in 2005 in that district where representative tyler won over a white candidate by less than 300 votes. >> yes your honor and i'm glad you raise that because that's the third one. that is the most important one. let us take a step back because it's interesting to say he won by -- she won by more than -- by only 300 votes. the districts were drawn in -- following 2000. in 2001 there was an incumbent who had been there for 30 some odd years who was a candidate for the african-american who won. that candidate won again in a landslide in 2003. that candidate then retired and it was then an open primary and in that open primary delegate taylor won by 5 percentage points. what's interesting is that 300 votes is 5 percentage points. this was a 6,000 vote primary, fiveway. so to say she won by 300 votes, and that proves predominance, well, she won in a landslide. she won by five percentage points as a nonincumbent in a multiple primary field -- >> i thought she won by only 1.5% in the general. >> in the general. so what happened next, is that the incumbent, who had retired, who's son had run against her in the primary, he then endorses the republican opponent. you have this long time incumbent who endorses the republican opponent and she wins by 1.3% of the vote. >> these districts are going to last for a decade, are they not? >> correct. >> and there's no guarantee that the same candidates are going to be running throughout that decade. >> i agree. >> so you think they have to take into account this very complicated analysis, the person is an incumbent and therefore's going to have the incumbent advantage. >> no, your honor, i'm saying the complete opposite. i'm saying that in 2001, 2003, 2007, 2009, this was performed without a close election. in 2005 the primary was not close. it was a five point election. so that leaves us with one election, the 2005 general, where she won by 1.3% of the vote. >> what you're saying essentially is idiosyncratic. >> this court has never said it was a guarantee it will win. in fact, in jingles itself, there was a statement that it is not a guarantee, that no one election controls. >> that gets to an interesting point, to what degree of confidence that it will remain a majority/minority district is necessary to have a strong basis in evidence? i don't want to take up your time. >> i think it would be likely if there are no questions. i'd like to reserve the remainder of my time. >> thank you, counsel. mr. gornstein? >> mr. chief justice, may it please the court, the district court was right to hold that the use of a racial target is not sufficient to trigger strict scrutiny but it was wrong to hold that a conflict with redistricting principles is an essential element of a racial gerrymandering claim. on the use of a racial target, the court's cases have drawn a distinction between the use of race as a factor and the predominant use of race in drawing district lines and the use of racial target shows that race was used but as the court explained in alabama, the -- when the critical question is whether it was predominantly used. as to that, evidence that a racial target is used is evidence, but not conclusive proof. to take one example that i think you asked for, the -- if a district starts out 75% black voting age population before its redistricted and that's based on general demographic patterns and the target is set out don't drop below 50%, then it's just not the case that district lines that are then drawn to bring the district into compliance with one person, one vote are necessarily going to be based predominately on race rather than traditional districting principals and if a racial target was alone sufficient, it would deprive the states of the flexibility that they need to comply with the voting rights act. >> maybe i missed it. you're saying if it was 75 and it's down to 50 that does not necessarily mean -- >> no, i did not say that. i said if the target was that it shouldn't go below 50, not that the target was it had to get to 50. >> so it's at 75 and they say what we're going to do when we draw this is not get below 50. >> right. so they could end up anywhere between 70 and 50, so they could end up right at 70 or at 65 or at 60 or wherever there is in in between. it's just not necessarily the case that the use of a target may have had little or nothing -- a target that that's -- that's so low at 50% when you started up here at 75, the most -- the lines that you're drawing are probably likely to be drawn based predominately on traditional districting factors. not necessarily the case that you're going to have to predominantly use race because no matter what you do, you'll end up above 50%. >> are those the only kind of districts where you would say that a target would not have an impact on district lines? in other words, where the district has a population that's so far above the target that nothing that they're doing on the margins is affected by the target, are those the only kind? >> no i would not say that. i would say districts for example, like in this case where you start at 60, there's no reason necessarily to think that race is going to predominate in order to bring the districts into compliance with the voting rights act. they started out at 60 and let's assume based on traditional redistricting factors and not on race, there's no reason that it couldn't end up at 60 for the same reasons. >> what if you started at 53 and you brought it up to 55? >> again, i'm with you on there. it doesn't necessarily -- you would need more evidence than that. now the one -- >> more evidence of what? that -- >> so the most important evidence would be a conflict with traditional redistricting principles, and if you can establish that and that it went up to that degree, and that it affected a substantial number of voters, then i think you could make out a case. >> what if they said we're at 53, we want to bring this up to 55 and we can do that by drawing a district that's even more compact than the district that we had before. >> so ordinarily speaking it's going to be very difficult to show that race predominated without showing a conflict with traditional redistricting principles, but there's no hard and fast rule that says that prevents a plaintiff from -- >> when can you? what would be a case in which that might be possible, not just theoretically possible but you can imagine it happening? >> we have two examples in our brief and most cases i can think of are var yeags of those. so the first relies on direct evidence from the map maker himself and the second is where the states nonracial explanation is discredited by the evidence. to be more concrete, if you have tens of thousands predominantly white voters moved out, tens of thousands of predominantly minority voters moved in, and the mapmaker says i did that to hit the target, then a finding of racial predominance could be made, even if, justice alito, the district was reasonably compact. the second example that i would -- from the brief is, if the state says politics is what explains that and then you look at the evidence and they used racial data rather than political data, then a finding of racial predominance could be made even if politics is also playing a role and there's no conflict with politics in the drawing of the -- >> maybe there's no way around this, but this is all as you lay it out very, very complicated and the state legislature has to redistrict a huge -- a large number of districts in a short amount of time using a very multifactor, vague predominant standard and if it turns out that there is predominance, when they will be deemed to have had a strong basis in evidence that there would be a voting rights act claim is also quite unclear. it's just -- maybe there's no way around it, isn't this just an invitation for litigation in every one of these instances? >> we're very sympathic to the interest to state being able to comply with the voting rights act while simultaneously pursuing its traditional redistricting policies. and, in fact, we proposed a version of the conflict case test to the court in miller but we read miller and shaw to have rejected this conflict requirement and instead to replace it to what as you said is a complicated task about whether race predominated in the drawing of district lines even if traditional factors also played a role. >> is it still the office's position that it would be preferable to have the test that was adopted by the district court here, the requiring conflict before you find that race predominated? >> so putting aside the question of whether you would overruling the court's decisions, yes, except that we wouldn't want that to bleed over into racial vote dilution claims. >> so your objection of the court below is that it required a conflict? >> correct. >> and in your brief you say the vast majority, your words, of cases you will need to show a conflict. >> correct. >> and you think showing a conflict should be the correct legal standard, putting aside the decisions. >> i wouldn't want to urge the court's to overrule its decisions. putting aside that is the position with advocated in or version of it in miller. >> but in the alabama case, certainly what i tried to do changing what my position had been previously in order to get position previously in order to get a court to have a clear set of standards on page 1271 where there are two paragraphs that address the issue that you are talk about, and briefly say what you say. and then, at the end, to deal with the problem that you are raising, we say it has to be a strong basis in evidence, because you don't want to put the district court in a position or the legislature to do the impossible, right? so it tries to do that. that is the dedecision of the court, and i had thought that having done that, it would be lots of lower courts to rely on the decision. it is a good idea now to suddenly change and go to some different test? >> no, i am not saying that you need to go to a different test. the stare decisis considerations are what they rare. under that approach in alabama, justice braeuer, you did not say it is es shanl to show the -- >> yes, it is. it is predominant and the two paragraphs that i have talked about which are meant to illustrate what that predominance means. they are pretty much what i think what you said. >> yes. we would agree with that. >> pretty much, what is it that you said? >> you think that what we said -- [ laughter ] >> i think that what we said are two things. one, simply because you have used a a racial target you are not in strict scrutiny from alabama, and two, a conflict is not essential to proof of claim, but there is three, some strong evidence besides just the use of the racial target to put you in such strict scrutiny. >> yes, but the same question i asked mr. alias, if we did vacate this on the grounds of the standard that you said and not the standard that the district court used, what do you think would happen if the standard that you just stated was fairly applied, would anything change? >> so we have only done a close analysis of three districts as you can see from the brief. in two of the three districts we thought that there was a strong case, but not one where we could say it definitely would come out one way or another. >> but a strong case that it would change. >> it would change. >> and those districts are? >> 71 and 95. >> thank you, counsel. mr. clement. >> mr. chief justice and may it please the court, the 2011 redistricting of the virginia house of delegates was a bipartisan success story. there was wide agreement that the 12 majority/minority districts that existed in b benchmark plan should be preserved, and there was a consensus on the bipartisan privileges and e llections committee that a 55% devap level was to a appropriate level to ensure that the after can american candidates in those -- african-american candidates in those districts could elect the candidate of their choice. >> how was the 55% arrived at? >> the 55%, and the testimony in the record, justice ginsberg, shows that it was a arrived by the bipartisan committee, and by talking to chris jones and members of the public and members of particularly the african-american caucus, and they told delegate jones and reinforced it on the floor, and the floor debates in the house of delegates is something that s is in the cd of the volume one of the joint appendix, and it is worth a look because the african-american members of the house of delegates testified that based on the knowledge of their districts that african-american voters did not vote in the same numbers as white voters, and therefore, it is simply to have 50% would be -- >> i thought that mr. clement said that the 55% was based on a single district, 75. and that they said okay, we have looked at 75, and you need 55% there. and then it was a applyied acros the board to every moo majority/minority district without any granular analysis. >> i don't believe that the record would support that characterization of the record. it was are predominant on hd-75, but also on the testimony of the delegate dance from district 63 who testified that it has to be north of 50%, and also done in consultation with delegate sprul, and not just done in the demographics of hd 75, but it was essential ly the starting point, but also based on the characterizations of the districts and the voting te tendencies -- >> isn't there something a little bit strange about this kind of rule? it is not to say that the rule is the end all and be all, and maybe you can have this rule and still be absolutely fine in the way that mr. gornstein suggested, but the idea that you would look at 12 districts and say that every single one of them ought to meet the same b-vap standard without looking at the characteristics of those districts, who is in them, how they vote, and -- i mean, it defies belief that you could pick a number and say, that applies with respect to every majority/minority district. >> justice kagan, i think that maybe if you were picking one number for every district in the state from big stone gap to arlington, maybe that would be the case, and if you were trying to apply one number to latino districts in one part of the state, and african-american districts in another part of the state, you might have a point, but although they are 12 districts and four subregions, they are all pretty much in the same part of the state, and they all started on the benchmark map as somewhere between 46 and about 62% for starting. so it is not like this number comes out of thin air. and with respect to 9 of the 12 districts, they are already north of 55%, and between 55 and 62, and two of the other ones are close, and they are like 54 and 53 and then one is a little bit lower like 46 which is district 71 which i hope that i will get a chance to talk about, because there, there is strong evidence that are redrawing was not done solely on the race. >> and let's talk about 71. >> sure. >> and now i have a particular question on 71. remember what i was tryinging the do. >> sure. >> at least in alabama. the court's cases at that moment pre-alabama, i am one of the problems. so, i am trying to reflect what is actually there in "miller" for better or for worse and to make it clear. the column i have referred to talks really about evidence showing predominance. does it or doesn't it? and there are two things there that are crucial in that, i think, in the two paragraphs. one, there was district evidence that they moved 70 or 15,000 people that were all black, and then when you are look at the redistricting criteria, two, they are pretty weak at applicable to that case. and they don't seem to have much relevance to what they are talking about. >> right. >> and 71, the same kind of thing they are arguing. the same kind of thing. they are moved, and u i don't know, you have nit in the s.g.' brief, too. but they have moved 11,293 people out, and 79,000 in, and looking at those people. the ones they moved out were 3/4 or something like that white and the ones they moved in were 3/4 or something black. so that is pretty similar. it seems to me that they paid a lot of attention to race are. then they say, let's look at the traditional criteria are and the one they mentioned is the horn thing and they said they kept it to preserve the richmond scente, and they had changed it so it is not richmond centered at all. and so what they are saying in that case, and looking at that specificity and you will see that the mistake of the judge in listing the criteria, you know, his statement overly broad or whatever made a difference and send it back and get him to do it right. now it is a long question, but that is designed to focus you. >> i am glad to be focused on the district 71, because what the district court did is not to the apply any cartoonish analysis and he looked at the districts as drawn and the first thing that he noticed is that it is going to preserve the core of the district which is higher than the statewide average of 70%. so you will have the core of the district to be preserved which is a traditional redistricting principle, and he is looking at the horns and he does not just look at them and say that they look funny, but he has district testimony from jones who drew the district, and he realizes that the horns were drawn to encumber the district. and then he says he does not want to get into conflictingle testimony between two delegates and what he says abshautly correctly, this is a contiguous precinct. it is 207 and right on the border and so whether it is in or out, it is going to conform with the traditional districting. >> and suppose you have two possible districts, and each one of them is conventional and each of them are conventional in the same sense that you have been describing the multiple factors, but the stated reason, and the stipulated reason for choosing district a over district b is because it has voters of a certain race, black, white, latino, whatever, and is that a predominant motive based on race? >> i would say that right answer for that with predominance with within the meaning of the court's cases is no. i think that there are two reasons. >> and that what the district court says, and i have a problem with that, because predominance is designed to measure intent when there are multiple causes. in my hypothetical, the hypothetical is that the tipping point, the principle motivating factor was race. you say that because, and the district said that, i think that you said, that the districts are conventional in all other respects and scrutiny does not apply, and i have a problem with that. >> justice kennedy, i thought that you might and i would like to say three things to try to convince you in defense of the district court. and first of all when the court says predominance, i presume predominance over something else, and that is the districting principles, and so when race dominates over those principle, it is sacrifice and subordinated and that is the way to the make sense of this court's cases. and second of all, i think that if you apply the test that way, what you are doing is you are mapping on the test to the theory of a shaw claim. now, you may disagree with me on this, and what makes a shaw claim a shaw claim is not that somebody is kept in a perfectly foreign district in a community of interest based on the race, but it is the particular injury in a shaw claim is that people from different parts of the state who would share nothinging in common except for the color of their skin are grouped together in the same district. that is what makes the shaw claim different from other type s of claims. i completely agree with the solicitor general's office in thinking of this question, you should be thinking of shaw claims, and thinking about them separately from vote dilution claims ark stlnd a real problem in this ear a ya of the law because what happened is that shaw which started as a odoctrine for outlanding districts and claims is the wep pochb choice wep -- weapon of redistricting claims. and this is not the way that shaw is constructed, because it ignores that there is a separate disillusion claim that can be brought that has a much higher standard of proof. and people are trying to evade that by bringing the junior varsity -- >> and the -- >> and -- by bringing the junior varsity claims by calling them shaw claim, and it is a distortion of the law. and the third point to put on the table is that at some point you have to ask the question, the if you disagree on the first two point, and you believe that there is a different conception of the shaw claim, you have to ask p the game is worth the candle and given the need to defer to state legislatures, and 80 members of the house delegates voted in favor of the plan, and because it conported with the districting principles and people wanted to -- i am sorry, justice kagan. >> yes, and going back to justice kennedy's questions, the cases after shaw, and because shaw, you could have looked at it that this is the way that the district looks. and then in the cases after shaw, and in shaw ii and in mill, the court makes it clear it is not all about the way that the district looks, and in deed -- >> well sh, if i may stop you there, in miller, the court argued a bizarreness of the element of the claim. nobody i think thinks that is the right answer. >> if you are looking at shaw and shaw ii and then at miller and then looking at the hypothetical that justice kennedy gave you which is essentially, and maybe i will change it a little bit, but it is a map maker who says, look, we want to do the race-based districting in here, and we can manage to do it in a way where the maps look like they are kind of contiguous, and reg ularly shaped, but what we are doing is race-based decision-making. it seems clear to me that if you are looking at shaw ii or miller, that is forbidden. that is the exactly the opposite of what the district court said here. >> i don't think that you have to read those decision s s in t way. i think that if you are going to read those decision s s in that way, it is appropriate to pause and reflect where it has gotten us. i think that every one of the decisions starts out by saying that this is a difficult task of redrawing the districts without the voting rights act, but to draw them in compliance of the voting rights act is very difficult and we want deference of the legislature. >> and then i'm with justice braeuer who suggested that a few years ago we took those concerns into account, and we tried to figure out a test responsive to the concerns, and that is not the test that the district court used here. >> i beg to differ, because as justice braeuer was suggesting in the first 25 minutes to give the district court more credit than that. the district court had alabama in front of him, and he also had the arguments of the parties. if you are going back to look, and i mean with all due respect to my friends on the other side, they did not argue this in terms the of looking at all of the people moving in and out, and that is not the thrust of the case, because they argued, it is a district evidence case. >> and that is what i had to do after the argument, and you gave me the things the look up, and the things on the other side, and they didn't use exactly the right test, but does it matter? and so i think that the reason that i approach it this way is that for the reasons that you said. okay. you have to give the leeway here, and leeway, leeway, leeway, but the government makes a pretty good point here that it was really important evidence that he did not look at, and that's my job, isn't it, to go back to rad these thingead thes see what was there. >> and you should look at the evidence in this case, and not the evidence that could have been mounted, but the evidence as it came in and the way it was argue pod the district court, and i they if you go to look at the closing arguments to this case, you will see that the other side, did not say that this is a case of moving too many people in and out of a particular district. they said, it is a district evidence case and they told you what the problem was, and told you that they would apply a 55% bvap floor, and so they tried to get not just some tail wind from the fact that there was a bvap floor, but to essentially rest their case below that proposition. and as a result of that, it left them with the vacuum in the evidence, because we have extraordinarily good evidence on our side of the case, because the principle map drawer testified for hours and hours and why particular lines were drawn, and in every case he provided explanations for why they comforted with the ra traditional principles, and not just that, he told you why the lines were there, and not because we have a 55% bvap target and everything had to go out of the window. and he said down here at south hampton roads we have three incumbents who are close together, because this part of the state lost some population, a sound drew some zigs and zags to keep the three incumbents separate which is completely nonracial explanation. and in district 77, that is funny, but i got together with delegate sprul who said that he wanted to reunite the old city of norfolk, and so we moved it around, and there you vx and there is reams of evidence of that, and really a vacuum of the evidence on the other sidef tho. and i want to rewind the tape a little bit to hear that the reason it is so problematic to think that just because they apply to the bvap floor, you are 3/4 of the way to applying strict juteny is what else is a state legislature supposed to do? i don't believe in this context that a bvap floor is inherently sinister. and one way of thinking of this, justice kagan, is that the floor is a bvap floor, and that is a quan tave flotity quantitytive floor. and there is knnothing to elect. and so in th
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