tv Abbott v. Perez Oral Argument CSPAN April 28, 2018 1:30am-2:49am EDT
>> first case 17586 with the consolidated case. >> thank you mr. chief justice me it please the court the legislature did not have a discriminatory purpose when adopted the entire plan with all the remedial state health plan they told the district court those that do not violate the constitutionst are remanded it itself said it obeyed to fix that the legal
defects and indeed today with the nine groups of plaintiffs with that majority minority district. >> i know you want to get to the merits but i don't want to leave the jurisdictionn that you just the court said that syou can i not waiting for the remedy in this case and then to be fully informed on the question. i still don't understand how you distinguish that says these cases of the district
court makes clear it is issuing and c injunction or some portionr so can you address that jurisdiction. >> they did not say they could draw that from those jurisdictions. >> but not in performing districts and they testified anddd with that majority minority districts and we would have meant that is subject to dispute by your adversary so the point still remains that every time you are ordered to change district and innd the end something that
it concluded initially is proven wrong that goes why it has a wait for a remedy waiting for appeal to tell me why that isn't the case. >> with the district court did was state its own ruling thatha month later it issued no further order. a mere 21 and 13 days ordered the state to appear for redistricting. >> so it just said that you intend to but that is only one
prong that the other is the relief at the end of the process you were granted a stay in filing a motion in less than two weeks to even out the remedial stage you still would've had time for the next election. >> we are in the same practical position and with that invalidated district yet there was appellate jurisdiction. >> that what distinguishes this case is that we were ordered to do expedited risk i guess redistricting. >> when i became a judge in 19811 of the first thing i was told to say when you get an
appeal they are appealing from a piece of paper called a judgment or they are appealing from the piece of paper that says the injunction motion denied or granted so what does that say here? it seems to me it says the court that would be 50000 peels are however many there aree.. >> when you come to court, have a plan but still you see the point what is the sentence that says injunction denied or granted from which there is an appeal?
>> there is a magic word. >> i said no magic word read it to me it probably only has four words to say stay denied? stay granted? you see what i'm driving at. two so it now requires it must be remedied the court ordered us to call aa special session if not within 72 hours and we are ordered to take immediate steps. >> you are ordered to consult? that is an injunction? if that is an injunction if you call that the injunction then you are orderede to consult. >> so now why will that open
the door? you are ordered to be in court tomorrow morning to produce a witness. and they seriously do not say. >> than it is also true and with that liability finding with that particular district that more than one is drawn but the upshot is that you are nott allowed to use those lines but there is a remedial process what they argue about the proper remedy and at the end of that process customarily the injunction is in place say don't use that
map instead that map so what i am concerned is if you are right we will be hearing all these districting cases not after the remedial stage by straightaway after the liability stage. >> many cases were from the preliminary injunction weird since the case for this court with your appeals but we would have faced contempt if we told theth court know we are not going to engage in redistricting on the expedited basis what distinguishes this case. >> that is odd you always have the choice not to purchase a paid. >> we did not we were ordered not to work. bring your own legislative counsel with us. >> it hasn't happened you could have had an appeal from
that. >> what you now say to us we have an appeal after the preliminary injunction, every time a law is declared unconstitutional, we have an appeal. then we have the third appeal so automatically i still don't know how to distinguish from millions of others i'm exaggerating greatly the hundreds of these we have received where a court says we think it is unconstitutional and we say that is not the case what ends the case is the final injunction that requires you to do something else. >> we were in the same posture. >> i'm talking about 1253 you
are not giving me any way to distinguish any court decision from liability does that result in the immediate appeal? you basically say every single one with ease and one district that that is immediately appealable. >> redistricting itself is difficult not only to call certain districts but to tell the state you mustst redistrict particularly in this case 13 days later to come with counsel to engage. >> that was justice pryor's question i don't think ever to give an explanation is considered a final order what is is a contempt finding or
something else that happens as a result as a failure to act not the request to come to court. the district court stated and took no additional action for months and then to be removed to say you can use your maps for the elections that would be a very different case. >> what would have happened said you issued the opinion that we are going ahead to conduct elections under the map adopted by the state legislature what would have tap happened? we would have been held in contempt if we didn't have that threat that we could not appeal so to know by october 1, 2017 what that was and we told the court grant us a stay of mandamus we were clear about the status of this
case c and even then issuing a temporary stay the court issued an advisory to voluntarily comply so they could resume c expeditiously and to use the court's words if i can turn from jurisdiction. >> i'm sorry but you said before you were interrupted to say what distinguishes this case i want to know what does distinguish this case? or in finding willie find that jurisdiction of all redistricting cases? >> no justice kagan if they say it is invalid and then issues no otherr injunction that is a different case but when the court says you must redistrict on the expedited basis that both parties conceded that it iss practically effective.
>> supporters there had been a 45 day window we can play that game. >> i think so because they say there must be a reasonable opportunity for the legislature to correct any deficiencies in the map when they go out of session and they put the sovereign authority use it or lose it i think that iss injunction but here was nothing close to 45 days that the governor had to call a special session. >> i have a? the merits. you put a lot of way of adoption in 2013 through 2012. and with that plan but i think the concernn is district is not comprehensive or put in
quickly and was preliminary as opposed to permanent does that undermin undermine? >> it all think so mr. chief justice because there were plenty t of prospects in 2012 it was not preliminary injunction that was granted in 2011 the only reason that the standard was being used because of the collateral section five with unique posture with the proceedings were ongoing and here we discovered there was that motion with two weeks of trial with an appeal to this court and extensive briefings before and after this court's decision also a section five briefingng in d.c. two more days of argument on remand than the district court in 2012 issued tens of pages of written findings and conclusions influencing -- including the
maps that change the district and in the context with six different times it was under a mandate and it expressly said it obeyed the mandate to have those plausible legal defects even if there was an issue where a claim was not substantial under sectionon five the district court fixes those districts and said it was and said this does not incorporate any portion of the state map that was tainted. >> one of the things in this presentation you forget it wasn't just pining on these maps but also the d.c. district court who found these maps that they were left untouched suspicious to found intentional discrimination
with respect to some that have questionable reasons given to the legislature there were serious questions raised by the d.c. circuit court. so this court basically said you cannot rely on these findingsy until we have a full hearing that the d.c. district court made finding contrary to your position so are we obligated to look at the full picture not just the want you want us to look at? >> with the d.c. court did not find issues with the district. in 2011 plaintiff's counsel told the legislature that the court ordered maps from the district court in san antonio
even when all clearance was denied the plaintiffs do not dispute that so that evidence that they heard in 2013 was that the maps were fixed even beyond the analysis of the court o so to play the argument the process was rushed is clearly erroneous. here the house and senate serving 33 hours of debate in public hearings and that was just the committee process that was 1000 pages of the house and senate journals and that context engaged in the deliberative process it didn't even tinker with the districts there were nine districts that hadni been changed a couple of congressional districts left in place for challenging but he issued of those pages of
analysis that they were valid and if that is not a basis on what remit legislature should rely on for an opinion i'm not sure there is any breathing space left for legislatures engaging inga redistricting with their obligations. >> but it seems that you essentially say that this opinion was a safe harbor for the state and that seems odd to say that opinion is just the opinion and is preliminary and this court said multiple times that it had not gone through all the evidence are the facts this was the best it could do the stage it was in now. so to turn that around is a safe harbor isn't that to stop every case? >> ba categorical safe harbor
those actions could not be examined. but what could happen only 2011 was examined in isolation it did not end in 2011 but what happened in 2012 with a the process in 2013 adopted co isourt order redistrict very good evidence legislature was acting in good faith there is very persuasive evidence p to overcome the strong presumption of good faith when charging the legislature with the illicit purpose. essentially nothing changed between 2012 and 2014 there was almost no new evidence coming in on retrial that the district court was aware of without legislative record before it and in theti context with or without a presumption of good faith, there is no basis to find the texas legislature was racially
discriminatorycr when it adopted the map that it was ordered to use. >> what would you think just to put aside the court order which i realize that is an important feature of the case for you. but suppose there is one map and a second map. one map is found to have all kinds of evidence of discriminatory intent e-mails and everything but the second has nothing but the second is exactly the same? what does the court do with the second map? just because there's no emails? >> that is a very different cas case. under arlington heights the court would consider that evidence to do that analysis
of the sequence of events the court could take cognizance of the fact the legislature there may not have been doing anything at all and that could go to the purpose but here with a court ordered remedial plan with wholesale acceptance, congressional side and on the statehouse side they were not trying to pull a fast one on anyone there is no evidence that somehow they were trying to lock in those discriminatory districts that would like to reserve the remainder of my time. >> thank you counsel. >> mac mr. chief justice if it may please the court i do want to address the merits but to make a few points of jurisdiction way it is different from the other cases that may arise and those distinguishing factors. in this case was the districts court didn't want to say was
thee current plan in place since 2012 they may not be used and there must be a remedy then there were only three gave -- three days for the state legislature. to allow a sovereign state to engage in the critical act deciding to reapportion. >> maybe that is true and it was a terrible decision only to give three days but support lung -- suppose theyey gave three weeks that would make a difference whether someone is the injunction? >> that urgency or time limit and what we were opposing here. it was those preliminary measures.
with about 45 days away. >> how much time is enough? and it seems to me every single one even if decided todayar i will hear any length they have to do something and three months after that i have to do a something else and then do something else. until it is clear the district court shows you cannot use your math at all. they could intervene i'm not sureet of your time constraints are a reason for immediate appeal? if not permitted generally under the law? >> but without practical
effect test with the state is facing a deadline. 2284 was enacted to redistricting that includes apportionment of congress but the federal apportionment statute or something in the census was defective in the district court said in the two weeks before the president was to report the apportionment to the house you cannot use this in the states cannot rely upon this in the upcoming election and think it ista important. >> but what bothers me here is not this case. but appeals and injunctions in millions of cases so the judge says i have written m an opinion
the lawyer for the states as your honor we respectfully disagree with that opinion we will go ahead and have the election and less you order the injunction which i thank you should notounj do you enter the order to forbid us from doing so when that is entered at that point now there is an appeal. once you say the practical effects i have not found a case of that not even carson there was the injunction in carson s in settlement i found no case maybe you will tell us some people have used the word practical effects but suddenly but we stop without the injunction then what happens to the 4 million cases in the u.s. courts? >> so that we make a final important point i do want to move on to the merits there is a big difference between redistricting that the court was saying the plan that i used over three elections the
representatives from the electorate have come to rely upon but another important distinction is that the state could go without the statute and the redistricting case it has to be distracting of the legislature just can't go on with nothing further being done so that case when the court says you may not use this plan. >> you have about five minutes left can you move on? >> i'd like to. arrest the critical point to be made is that question whether the 2013 plan acted by the state legislature was discriminatoryry turns on the intent of the legislature in 2013 and this court has said repeatedly there is a presumption of good faith with respect to the legislative enactment and that is true
even if the prior enactment was found to be discriminatory. here the presumption of good faith is strong because as discussed the district court in this case following the court's careful instructions, examined the plan to determine whichd ones did not pass the substantial test the court articulated in this court said to leave the others in place it had extensiveve proceeding and in our view gave to reinforce the proposition the state legislature could rely upon that and certainly doesn't suggest any intent.ble >> but in your briefs your knowledge two things.gs
first, when there are two maps that are exactly the same evidence of intent with the first is probative of intent but the question is always intent with the second but if they are exactly the same there is all kinds of evidence surely that is probative i thank you acknowledge that don't you thin think? >> depending on the circumstances. >> of course everything depends on the circumstances but the fact that this court has principal authority over the second thing to acknowledge her brief is that these court orders at this preliminary stage are not safe harbors don't you think? >> we don't agree and we try to prove the intentional discriminationhe claim under the voting rights act remains available as well actually to
challenge the redistricting. >> given that they have so much better of an understanding of the facts and we do? i'm trying to find the legal principle that went wrong. >> what went wrong is the court basically said the taint that it found with respect to certain districts in 2011 carryforward through 2013 and it was the state obligation in the legislature to have that celebrity process. >> but i recognize there are some sentences that could be read either way but if i understand you correctly you suggest there was a shift of the burden of proof that would be legal error. >> that is how we do read the opinion. >> that this is what they said that plaintiffs can establish w claim showing the legislature adopted the 2013 plan with a discriminatory purpose d to maintain the
purpose or intentionally further discrimination so talking how they can establish theirli claim, what happened in 2013? >> but if you read the whole sectionf if it's great weight on the perception of the state legislature was required to engage in a deliberate process and as we have said there is no presumption of taint just because they were previously found. >> but there is no presumption but surely it is evidence one could take into account that they did not engage in a deliberative process after having done a map thatng is tainted with intent. >> right but the court has there is a presumption off good faithh that is a demanding test
whether to establish racial discrimination and there is no taint that requires the plaintiffs to come forward with significant evidence bearing directly on 2013 and here we think the district court's it is our record. . . . . had the findings of the district court were tentative, preliminary only and that it went through what the plaintiffs claim to tell them what they were doing was not addressed because of constitutional issues raised by the plaintiff. >> take the next couple of minutes. >> yes the legislative counsel said this will not end the
litigation. >> they said this will not resolve the tate. >> i don't believe that's what he said i think he just gave advice that the district court decision was preliminary and there could be further litigation but the primary motivation was to end the litigation and the plaintiff suggested there is nothing pernicious about ending litigation but to the contrary the state legislatures acknowledging there was prior discrimination excepting with the district court did as a remedy even though preliminary to enact that new thought is something to be commended with the state legislature proceeds in that manner from the independent review conducted by the article three court. >> are you ending litigation or are you ending the
possibility from discriminating? if there is a basis and you are aware there are claims you pretend -- discriminated there are findings from the 2012 court that the d.c. district court that you haven't discriminated to draw a number of lines intentionally or as a result and now you say i don't really care i just want to get the court outside even from messing with my discriminatory lines. >> answer that then we will let you sit down. >> that is a fair account of what the record shows and first of all if there are indications with a presumption of good faith of tate but the
important point is the intent of 2013 with that desire to accept with the district court did so the state can refine did not end the litigation but that is something to be encouraged and to adopt that rather than continue to resist. >> thank you counsel. >> mr. chief justice a bit may please the court i hadn't anticipated doing this but justice breyer asked a question of the other side and said show me the language. show me where they enter the injunction. the closest they can come everybody agrees there is not real one but was the injunction against the 2018
elections for congress going forward under the existing plan? the closest they can come to the language that says there is the injunction that says these violations that we just found and declared must be remedied. but that is not an injunction does not say when or how with no detail if you want language the language is in the courts order. >> viewing the current maps viewing the current maps. unfortunately as far as we are concerned. >> as far as the court order is concerned? they make yes. there is no question if they say we are held in contempt if we gone forward it would have been impossible to hold them in content because we have not enjoyed use for any upcoming
elections. >> they gave three days if you think maybe we cannot do that. >> not at all. first of all that three day window was a chance for the legislature to come back to say i will call them in special session it wasn't when. rather the court had said two different times in the spring of 2017 to texas attorney general's office you should consider having the legislature having them address the problems that have cropped up so far that didn't change between 2011 and 2013. no response. simons. then two or three weeks later after this court's decision decision with cooper came down the court again said that
handwriting is on the wall if there are problems with your district that did not change you should consider changing a special session. will you? they did not do it in the spring in fact they got an answer no we will not so when the time came that said we have found violations now we have gotten to the point that in these two districts the court did not say you cannot have the election the court did not say you only have three days to call a special session you have three days to let us know. >> but with the jurisdiction there is no injunction so then what happens next? >> i can tell you what we hope if the court dismisses this case for lack of jurisdiction i have not consulted with every one of the nine groups but if the court says no jurisdiction we will ask the court to set up a remedy
hearing to see if we can get relief in time for the 2018 elections. there is a very good chance a pretty strong chance the district court will not let us do that. we went to the district court three different times your hono honor, asking for an injunction in 2015 we asked for an injunction before the 2016 election we got a no. after the march order came down we went to the court and said we you give us the injunction as to the districts between the old plan and the new plan and the court said no. so we have tried also at the end of 2016 and said please give us an injunction to stop the 2018 elections going forward and the court said no. we have knocked on the door three times they said no so
finally getting to the liability issue and we didn't even get a chance. >> are you suggesting you will not seek an injunction? >> i cannot speak for every plaintiff we did it consult with before we walked in. >> what is your intent? >> what the question is do you intend to seek an injunction on that basis? >> yes. >> but i emphasize there was pretty strong indication that we would be successful in getting in the 2018 election. i don't know from this core and what it might say but from the district court has been very reluctant to do with the election process. >> i would like to mention one other thing about jurisdiction the kinds of orders they say
that have injunction relief their case processing please show up on june 3 or whatever it is or help us to draw maps that day. if those are injunction that it was the abuse of discretion not the merits of the case. >> do you think we lack jurisdiction if it doesn't contain the word injunction or order? >> i will give two answers the first is yes i do believe you don't have jurisdiction unless it has the injunction in so many words i do believe that's true. but if that practicality tests the court has applied but if that is applied there has to
be something that indicates there is injunctive relief forthcoming not forthcoming but rather there is intended this court can look at previous. >> and to distinguish from 1292? >> it never has and the previous case suggest that principle is followed it wouldn't be we have to remember the practical effects test is ultimately a misnomer because the district court had refused to enter a consent decree one piece would have been an injunction and the court denied the consent decree that has practical effect to deny that particular injunction.
>> counsel you said you wanted to have one more word on the jurisdictional issue. >> on the merits, it seems a strong argument that you dismiss this wanting to end litigation which is usually a good thing for the legislature to say this is the plan i understand it is preliminary but this is the plan the district court approved that is what we will go with it does seem to me at the very least that ought to give them some presumption of good faith moving forward which is significant on their intent to discriminate. >> that isn't what gave them the presumption they always have presumption that is the first step in good faith and the district court proceeds but in this particular instance the district court in 2012 did not draw a map so
those two districts that are before you 25 and 27 it didn't touch them directly when not change but surely the district court could draw a map for every single district if you look at what you think is inappropriate map to elections moved forward under. >> i understand but half of the texas congressional district was not touched in the interim map. not touched at all. >> is your answer different if they altered every single district but the district said it would be court drawn but they were not. >> how many were altered? >> 36 and 18 were altered in some way 18 were untouched it was half and half and of those that were untouched go look at the 2011 legislation that drew
them you can see the restrictions the geographic captions the statute is there in 2011. >> with the congressional districts that issue did the district court simply rubberstamp what it was presented to it? or did it engage in a thoughtful analysis of the legality of those districts? >> it did a thorough analysis i believe as it could under the constraints and that is not a thorough analysis the court has just said it is not thorough if you're honors recall this case returned to them it was as if the court did not have a choice there was a gap at that time before the regime was in place the district already postponed elections two or three times that were scheduled in the district court in d.c. had not yet acted so there was a gap
in it had to go forward so to talk about the analysis the district court and the texas legislative council lawyer did tell the legislature this that the district court it is hard to find a more hedged opinion about the outcome of the case they said it is a close question i don't know how many times they said this for this time only in the state before you honesty request in 2016 the state told you it is just a one time deal we quote that in our brief. it is not a thorough analysis there were things that changed substantially between the 2012 map and the 2013 legislative action they use the term ratified they did not even say they had considered to redraw that but there are several things that change. number one the district court
in d.c. decision that said essentially more intentional discrimination than you can shake a stick at. that there is a pre-existing crossover district in the area that the district court in san antonio had not found existed they said where minority voters but also in between the united states had intervened in a different posture back then united states had intervened to oppose the map that evidence was introduced. >> talk about district 35 and to initially analyze this is not true that the concept of this district was recommended by dia mexican american legal
defense fund and the task force the concept was one of two alternatives the april 11 testimony and to say we have two maps one is a concept similar and the other is the alternative map that does what we think should have happened we don't have a choice. >> but they argue the alternatives. >> and there was a community of interest and they said that with the initial opinion? >> they said they didn't know for sure but the important thing is there was no evidence under racial gerrymandering test so on the scrutiny side the texas legislature had nothing, nothing in front of them that suggested there was problems require the creation of this district.
>> i thought there was racially polarized voting as a whole? >> they offered no evidence at all. >> you offered evidence about travis county they offered no evidence because if you recall justice kennedy wrote the opinion you don't get to investigate afterwards if there is a problem but at that time it acted they had nothing in front of them that you didn't have to come into travis county. >> isn't that what we are looking at. >> yes it did the district court said we need more facts pacifically in the meantime to
show the most important fact the legislature had is what it didn't have in 2011 was the elections occurred under that map what didn't know in 2013 did not know in 2011? of what it had intended to do they had achieved everything they wanted with regard to the racial tamping down of voting rights that is the most important factor that they had but in 2013 they knew they had succeeded so just briefly on this point about a week ago
this court repeated the quit from justice scalia that said kennedy is doing the same thing over and over again expecting a different result. the texas legislature is not insane. it knows how to do redistricting maps with very well regarding voting rights and ask the court to look at it this way. if you did in 2011 and you know the outcome was discrimination is doing the same thing over and over again. and expecting and achieving the exact same results and that is what happened here your honor. thank you. >> thank you counsel. >> mr. chief justice of it may please the court this court
does not have jurisdiction to hear this appeal but if it proceeds to the merits the district court properly applied the arlington heights framework to apply the intent of the 2013 legislature to reenact some of the same statehouse districts it was deliberately designed in 2011 to cancel out or minimize those voting restraints black-and-white latino voters in texas and it concluded the intent of the legislature was in fact to maintain and perpetuate those findings cannot be deemed clearly with the entire record that is .-ellipsis the jurisdictional question has been discussed that first the ruling gun which is restrictive and
doesn't create any exceptions has been applied in the redistricting case but then there is the practical consequence of the restrictive reading all redistricting cases involve timing and deadlines started different times this is manipulation under 1253 and the exception is the rule turning to the merits it is helpful to look at the analysis of the evidence in 2013 and all of the evidence in front of it. and i submit if you look at the district court opinion there are three obvious buckets of evidence one relates to the 2011
redistricting plans for statehouse yeah there is analysis of the actual motivation of the legislature found the justification also with respect to 2013 to give rise to discriminatory intent i want to start with 2011 because it provides several pieces of relevant information under arlington heights framework the effect of the redistricting plan is an important place to start with extensive findings and as mentioned in 2013 with the intended effect but the 2011 process also provides with evidence of discrimination.
>> has there ever been the pallet review with those findings of the 2011 plan? do you think we should just accept those findings as a given? would we not have to review those? >> as i understand it texas challenges say it should never happen but with those actual factual findings made. >> we could ask that on rebuttal but i want to understand and as to the 2011 plan were correct and we accept them all. >> we don't accept them but based on 300 pages of factual findings with the intended effect of the house district,
it would be very difficult to find those as erroneous also 2011 evidence is properly conceived of as the sequence of events leading up to the 2013 challenge the same people doing the same thing in 2011 as they do in 2013 can be viewed as part of the same process. they didn't have to offer a separate opinion with the 2011 plan they could have combined that altogether so that 2011 findings under numerous arlington heights framework also want to talk about specific districts because what they had was a troubling pattern what this court saw the last cycle from texas in
house district 105 in dallas latino voters were 19 vote shy from electing their candidate of choice in the district in the legislature in 2011 went to extreme lengths to protect anglo incumbent from being held from that latino population the legislature carved the precinct every anglo voter they could find to pack to protect that anglo incumbent so every latino and black voter was in that district. >> there is a difference between pulling out republicans and democrats so what shows protecting and incumbent? presumably the law would save you protects the incumbent if it's based on party lines that if you just use race what findings are there to show as
opposed to incumbency based? >> based on the fact receipt was split you don't have political data at that level so when the legislature was drawing the lines, it was only grabbing the anglo voters it was not grabbing republican voters it may have been using race but that certainly isn't acceptable either. >> i'm sorry i've lost track which districting are you talking about with respect to 105? >> 2011. >> sorry. >> and likewise the district court i'm sorry i meant to say bell county and while they made that interim ruling it didn't have that relevance but you have that testimony with
those who drew up district 54 to say if it was just kept whole like it was a numerous versions because of the population growth was across minority voters it would be a naturally occurring district. >> are these districts that the district court is entering its preliminary map looked at? that these are things the district court changed? >> it did not change these districts in the interim plan but it was only 12 pages long did not getting into any
detail these are hard questions but a delicate sorting out of the evidence and the district court did not have all of the evidence to say it is serious to find that the legislature acted with discrimination they were acting very carefully to make sure that in many places it found those district lines so it knows how to do that very delicate analysis but to follow that evidence. >> 2012 order? >> when it issued the 2011 opinion when it needed to be
redone on the 28th i don't think they had all the time or the evidence to do this delicate balance. >> so with the legislature you want to take your best shot at a plan that would be accepted by the district wouldn't you take the plan that the district court drafted? >> you may as a starting point and that was the advice the council gave during a committee meeting but the district court had to question before it to adopt the interim plan to use the adoption of the interim plan as that discriminatory intent that had manifested itself just two years ago. >> who was doing the masking? . . . .
was discriminating on the violation of race and discrimination of the 14th amendment. how's the states poster balance this? a bit of a dilemma. >> i think the court has provided the guidance and recent cases. but consistent dating as far back as the '90s. the district court found that the legislature did not create house district 90 with compliance and mine. they found that it employed a mechanical racial target. they're not clearly erroneous. they must be affirmed, the state can protect itself by doing the voting rights increases the court has seen in previous cases.
making sure when it does use race in a predominant fashion doesn't in a narrowly terror of taylor's sense. >> but what about the state adopting a plan approved by the court for this reason. >> dwelling the inference was multifaceted. one was that the legislature ignored the warnings of the district court that the ruling was preliminary. the next is that it had the ruling from the d.c. district court ruling that didn't reach discriminatory purpose but it noted that listed evidence that
would support a finding of discriminatory purpose. notice the legislator had the advice of counsel during the committee meetings. >> the advice of what? it was preliminary. >> that's the piece of advice from that exhibit. but that it joint exhibit contains other advice from legislative counsel which he explains to members of the committee that house district 54 were voters had been cut in half and stranded might have a target on its back and if the legislator wanted to avoid being found guilty to consider reunite that district. this is the evidence they had in front of them.
as late as may 2013 we have a conference where we discussed the need for further evidence. that was discussed during the legislator proceedings. in concluding that the actual motivation was in fact an intent. >> what is the lawn your opinion not the facts if you assume the file one, there's no plan in the state legislature thinks it may have been discriminatory to, there's a judge who says this is okay but i haven't seen the evidence and that we have bishops who look into the heart of the new legislature they
discover the reason a pastor was because it's our best shot now imagine those three fax, what's the law. >> even though the bishops determined there may be. >> they determined that's the real reason they all voted because it's our best shot to get the old plan through or some version there of. it's the best shot. that's the assumption, now is the law. >> the buyer would point to us when a statue has been acted and struck tell her been unconstitutional then reenacted the next year, if it partakes too much cannot stand. i'd also add that wanting to end
the litigation even if it's coming from a good place doesn't in the constitutional scrutiny. racial discrimination needs to be one of the factors in litigation strategy wanting to win doesn't and the constitutional inquiry. more importantly, it's not that doesn't matter if they wanted to end the litigation or not, it matters how they wanted to end it. they wanted to end it by maintaining muslim the political voice and a stat were black and latino voters population is exploding. it was that intent they wanted to muffle. >> do you suggest that was the
intent the district court had? this evil attendance comes from adopting the plan the district court adopted and let the election go forward. >> it doesn't have to encompass any racial animus. i think the district court to the best or could with the time and evidence it had. >> discrimination that would fall under the prohibitions of the 14th amendment doesn't have to come from a deep papal place. >> doesn't have to be intentional racial discrimination. >> intentional racial discrimination attaches where there's a purposeful intent to keep a cohesive minority group
from electing their candidate of choice where they might otherwise have it absent that intervention. i like to know regardless of whether what the court does on the question of intent, the house case we have two claims that are independent of any intent. one is house district 90 which i really spoke about justice court should gorsuch. the dispute boils down to a narrow question, there's no dispute there's racially polarized voting and latino voters have been less able to elect their candidate of choice. the dispute requires that plaintiff show that you can draw an additional majority district
the state wants an additional requirement that requires plaintiffs to prove the district is performing. that's not consistent with this recent ruling. they set a bright line because it's helpful to plaintiffs and the plaintiffs had a district that was 55.2% one and 59.9. >> you want us to hold that a state can satisfy its voting rights act obligation by creating a district where there's a mathematical majority but that district would not perform for the minority candidate. >> no. i think liability under section two has been proven when it
shown it's possible to draw to districts. >> i thought the district court did not find that you can create. >> it so there is some question about if they be performing. he was using elections it didn't have latino candidates in it. that's an issue that still needs to be determined and that this course cannot resolve it. >> the only thing i would add is that the court said this is just the liability stage. so proving the majority of the liability stage is what gets you to the net stage. >> and to establish liability to need to show another performing district and did the district
court find that you could do that? is it not true that one of the plaintiffs experts found one of these districts would not perform one time and 35 elections and the other seven times. >> i misspoke earlier. the proven liabilities the majority. plaintiffs do believe they control performing districts. they haven't presented those maps yet. the liability maps are different. a state can understand the section two liability. >> was the tester intentional discrimination finding? >> it was a racial gerrymandering? >> and i don't think we need to prove whether you create a
majority or minority. >> just that race predominated without a compelling interest. >> thank you. >> general you have formats remaining. >> you for the plaintiffs said they want to now modify the districts for 2018. we've already had a primary election i want to back up to higher-level points. there are three major legal errors here. first no presumption good faith applies. no mention of good presumption of good faith and the red brief. the second is the well accepted standard that to show discrimination you must show they acted because of race with the intent to harm.
that's not the standard. in the third errors test flight was wrong. was team to remove even though there had been no team finding mac and all this just proves that all you get is a vacate disorder. >> in addition these findings were clearly erroneous. there's no evidence that somehow the 2013 legislature had to mask an intent. >> you know that what she wanted to do which was to block hispanic voters or other voters and get certain candidate selected that your own counsel is telling you that in certain
districts that's what you got any say we want the district court to change these maps but that's enough for the panel to conclude that you wanted to put into place discriminatory intent. >> and hinges completely on jeff archer and he testified their preliminary findings. he said i don't think you can say you simply saying that this case litigation will not end. even here to find intentional discrimination there is no discriminatory effect. the only place we could draw another district is the state house man. they don't know if it can
perform. their own expert testified. >> i have two questions on racial gerrymandering. i don't think we've required a proof of effect just that you intentionally gerrymandered. >> that was. >> but that just answer my question. on racial gerrymandering you don't have to prove it. >> if we changed other districts we would have been subjected to other legal challenges which is why they acted in good faith. we had the best of reasons to believe we had a valid compliance defense. they said it had to be drawn majority. >> in 2013 they had to be
adopted as majority hispanic. they narrowly lost her nearly run. >> what is left between our jurisprudence under section two in the 14th amendment? what spaces there. >> in the breathing space really grew reasons, we don't have to have a perfect analysis we just think good reasons were trying to comply. we had the best of reasons possible to believe it needed to be a majority minority districts because that's what it impose here we are seven years later three trials and two appeals we've asked the court to fin coe