Morning in case 161161, gill versus whitford. Mr. Chief justice, and may it please the court. 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 cant 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 outofstate. The weather chief justice stated that hypothetical. Mr. Tseytlin i dont think he would solve the energy problem. The structural interstate problem. The structural lets 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 socalled best a deliberate attempt by the legislature to make as many africanamerican 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 candidates signs to be put up along the roadsides but allowing the republican signs to be put up along the roadsides, or they were pressuring lets 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 lets say milwaukee have standing to raise that First Amendment argument . Mr. Tseytlin i would think the candidate. Im 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 milwaukees right to have certain type of buildings was affected, but we dont 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 im 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 oneParty 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. Im 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, thats 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 kings 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 . Thats 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 dont have to worry about standards. Legislatures dont 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 scurve 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 isnt 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 didnt they take one of the earlier maps . Mr. Tseytlin there was no constitutional requirement that they do so. They complied with all traditional districting runcibles. Let me take you back to Justice Kagans 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 gerrymanders and favors their own Political Party. You probably considered the hypo many times. Suppose a state statute says alldistrict 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 dont 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 dont 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 dont 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 Breyers 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 dont know how a legislature is supposed to comply with criteria they cant 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 im not convinced there are manageable criteria for the courts of the putting on legislatures for how to go about this process. I certainly dont 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, were 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. Thats 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 dont 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 dont 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 lets 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 doesnt 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 dont think that means districting for partisan advantage has no positive values