Reverse and vacate for three reasons. The First Amendment retaliation test that was adopted fails to provide a manageable standard because it does not give courts and legislators the means to distinguish between excessive political consideration and those that have been deemed constitutionally acceptable. Was this a political consideration . I dont think it is, your honor. This is the norm where states receive one party receives more than 60 of the vote and congressional elections. If that is right in your defense is not really we cant tell the difference between and nonexcessive. To doly need 10,000 votes the population measure. Moved 66,000kers republicans out of the district, flips the composition of the district from 47 republicans and 36 democrats to 45 democrats. Effectively insuring the republicans will never win this seat again, and maryland, which has 35 republicans is going to have one Republican House member for the foreseeable future. How is that not excessive . We assume it is the whole universe. See his new york buildings and not the rest of the country. This one, the sixth district was heavily influenced by the decision that had nothing to do with partisan politics. Was to remove a crossing at chesapeake bay. Justice kavanaugh that was the goal of 71. Mr. Sullivan it was. Justice kagan i dont think you should run away from the obvious. Justice kavanaugh i do not think across the bay is a very not very persuasive, given all the evidence that this was just 71. And to talk with the county that was grouped in west of baltimore, as opposed to just crossing the bay, when everyone is saying they want 71, i just dont know if this runs away from the obvious. Mr. Sullivan and the change in First District that resulted the competitive district they have been able to win to a heavily leaning republican district. Justice kavanaugh well, sure, others goake all the the other way, between 53 or 62 or 71. The first will be republican for the foreseeable future. Its going to be 71. That is the stated goal. Sullivan you have to discount other statements in the record. Governor omalleys statement that with the population growth to the central part of the state, you will see the most changes off the i270 corridor. Justice kavanaugh the i270 corridor is a community of interest . Mr. Sullivan it is. From independent sources. Justice sotomayor if the idea is to identify the corridor, then its very simple to put into the eighth district. Mr. Sullivan and that democratic area. North was a reasonable direction for it to go. And it was a reasonable direction. And as a hypothetical. Justice breyer what we have is a threepart test that you have north was a reasonable direction to go. Hypothetically you get away had these, that what we used the threepart test that you just heard. Are 42 bishops, before whom they swear the this just to help democrats. Map they used, and the map in statewide elections, the republicans won the 42 bishops. Wheel willhis make an will in fact make a difference of how many republicans there are. And third, is absolutely durable get the greatest statisticians in the universe in there. Now i have exaggerated enormously. But if that were true, then would you say this court should intervene . Mr. Sullivan im not sure i understand all of that. Justice breyer if it is in disputed a clear intent to do this just to the democrats to get their district, number two indisputed this will have an effect to give this district to the democrats, and number three a big effect, and number three, it will happen for the next 20 years. So now we have all three parts, i think, if i understand correctly. So on that assumption, would you say that this court should intervene . Mr. Sullivan i dont know that we can carry justice breyer, you expressed the need to limit to the extreme circumstance. If you have that circumstance you are going to have to intervene in arkansas, kansas, massachusetts, kentucky, tennessee and utah. All states where more than 60 of the votes are cast for one party. It was established and unrebutted in states that have a similar oracle makeup to maryland, you end up with a similar congressional delegation that looks similar to marilyn. So if you are concerned to the extreme circumstance with the current state of affairs, you would not be limiting it to the extreme. You would say get ready, arkansas. Justice kagan why should we assume, mr. Sullivan, that everything would stay the same . If the court said something was unconstitutional, dont we usually assume people change their behavior when the court sets down a constitutional role . Reason all these politicians are bragging about the amount of partisanship they can put into the maps is because they think it is perfectly legal to do so. If the court said it is not illegal to do so, presumably some actors would change their behavior. Every time there is a governmentng, the and legislators are briefed in the requirements. What would be an example of a the drawing of the district would constitute impermissible political gerrymandering . Brief wheren our the minority vote getters dictate the results for the majority. That would be a situation where the court ought to remedy that. They have to start with a , both being controlled by the same party. I dont understand how a minority can force can enforce its will. In 1962, a democratic Governor Legislature both houses to take that referendum but they rejected that. And that is in our record. Justice ginsburg and then what happened . Mr. Sullivan in this case, it was taken to referendum, and the people overwhelmingly approved it. Including and counties where republicans outnumber democrats. Justice ginsburg it is to be understood that from reading it, that most would not understand at all. Mr. Sullivan two points on three things, first that was not litigated in this case. It was litigated in the court of competent jurisdiction in maryland state court, and our immediate Appellate Court said it was apparent especially in light to explain that referendum question. In the washington grange court, it said that such notices remain in the threat of the voter constituents. Justice kavanaugh you brought it up. You are going to dispute Justice Ginsburg and say most voters knew what they were voting for . Mr. Sullivan this court has not presumed that voters dont understand. In the end, the court is going to assume that people are informed them of that theyve read the paper. You will find unrebutted testimony that the Washington Post ran three lead editorials, urging the people of maryland to reject this plan, so it was not a secret ballot. It was a big issue in the state, and the people overwhelmingly approved it. Justice breyer what i read is the exact words that people voted for or against. This referendum petition establishes the boundaries for the states eight Congressional Districts face on recent census figures as required by the United States constitution, end quote. Is that sufficient . Mr. Sullivan if that were the only thing that voters knew, but this court assumes people read the paper, they watch tv, they talk to each other, they have forums, as we have had here. Justice breyer with at least a large number of them that this was the only thing they knew, then is it sufficient . Mr. Sullivan it is not sufficient for this court to conclude its precedent suggests that you have to have proof. Justice sotomayor am i to be understanding you to say that partisan gerrymandering is always mr. Sullivan no, not at all. It is just specifically Justice Sotomayor so that you heard the argument in the case, are you saying that those tests are better, just this one is not i am not sure what your position is. Mr. Sullivan we only had the experience to litigate with the one test our court used, so we do not have the benefit to tell you the informed level of analysis that counsel did in the prior argument. Justice sotomayor well, but, you know, you have had time to and i am assuming you would have are you ok with any of the tests . Mr. Sullivan i am not going to take position, your honor, and it is the plaintiffs obligation to come up with the standard fee or the plaintiff, with the standard they wanted to use in our case, and we are here to argue that that standard is not manageable. Justice kavanaugh you start up brief by saying you agree partisan gerrymandering poses a threat to democracy. Mr. Sullivan yes. This court has said that. Justice kavanaugh what should the test be, then . Mr. Sullivan i believe there are tests that can be adopted, and this court can come up with them. Justice alito is it your position that what was done in maryland would be ok with any test, but you will not tell us what possible testimony you were saying that one test was done here, so we can send it back for the or two im a mother test, which you are not going to identify, and then apply that to the facts of your case . Mr. Sullivan well this court, in davis v. Manimer held that the court was reaffirmed by a majority, and that was reiterated in the arizona v. Legislature case, and this case would not be here if the court had not found in the first go round that some sort of First Amendment standard is not foreclosed by this courts precedents, otherwise Justice Kavanaugh i will ask you the question, and then asked mr. Clement, why is it not in your personal view . Mr. Sullivan in my personal view, but it could be. Justice kavanaugh could be . You are saying because edition could be interpreted to something closer to representation . Then you would lose, wouldnt you . Mr. Sullivan no. In light of reality, as both experts have testified in his income or written at least, when one party gets a super majority of the votes, they tend to get a higher percentage of seats than they would get from a straight vote count, and as dr. Mcdonald pointed out, if there is any correspondence between those two, it is accidental, because typically it will be highest at the count. So the court has acknowledged that this can be, and i think the court can chief Justice Roberts i would like to have you discuss the First Amendment a little bit. It seems like the state is taking retaliatory actions and penalizing them for exercising their right by moving them out to a different district. What is wrong with that argument . Mr. Sullivan as we explain in the brief, retaliatory analysis has never been used in the round, and to say legislation results because of the party that had more votes was retaliating against the other partys views has been repeatedly rejected since the obrien case. Chief Justice Roberts well, you say we have not done in the past, but we have been asked to do a lot of things that have not been done in the past, and it is because there has been a change in how redistricting has been done. I guess i dont understand. If you have any other kind of state employee, and you do not like her exercise of First Amendment rights, and you fire her, there is pretty wellestablished analysis for approaching that case. I do not understand why the same would not apply here. Mr. Sullivan an important context, elizabeth a policymaking employee, you cannot take into account in legislating political views pretty much at all, but in legislating, political views have to be taken into account, people have to express those political views with the legislature. So those two different contexts, one is where speech is prohibited. And legislation where speech is inherent and necessary. Chief Justice Roberts well, speech against other legislators or against voters . I mean, you think it is all right to retaliate against republicans in the district that were moved out because of how they voted . Mr. Sullivan i do not think that is a fair characterization of what voters do, and hear, to the question of who are you retaliating against . Washington county, before the districting, was before they help you redistricting, the same county, presumably, the same strong. Chief Justice Roberts are you suggesting that the redistricting here was not successful . Mr. Sullivan well, if you say the intent was a partisan intent, then it was successful, yet you still have a district that is capable to vote republican. They voted overwhelmingly for larry hogan, the republican governor. Not the district thats locked in for democrats. Justice breyer so that would be the defense so what you can do is use it as a statewide map they want to statewide elections saying a party with 60 of the vote cannot intentionally i have to prove it, intentionally draw the maps to increase the majority beyond twothirds of the seats. I picked those numbers out, you can use any numbers you want, but to but to get into the idea to look into the mind of the legislators is difficult but not impossible, and then apply it to extreme situations, and i use numbers like twothirds and majorities to show its not impossible to generate analogous conclusions from the constitution. Mr. Sullivan your honor, as the court pointed out with the brief, how they get where they are because some partisan effort would be present when the legislature and the government Justice Ginsburg when they say they want 71, we want to shrink the representation and to achieve that for us. Is there any genuine doubt that that is the aim from the beginning to shrink those republican districts by one . Mr. Sullivan i think there is doubt. I think if you read the entire record, including what governor omalley elsewhere, in places not quoted by the plaintiffs of the District Court, where he said what he wanted was for the constitution and statutes and all caps lot be complied with, and after all that, he would hope that a democrat would be reelected. Justice breyer it is not the case in my mind that every politician considers politics, and so forth, up in the air. Of course, you are right, they do, but there is a classical reason the patient should, and the classical reason is that they build the ability in the legislature of voting behavior, so that large shifts do not make large shifts in the legislatures, but if thats the reason, that doesnt apply in the case where the party already control 60 of the seats. Mr. Sullivan well, we do have a fair amount of stability. Justice breyer yes, that is the problem. Im not saying it is the solution. You say politicians will consider politics. Yes, of course. But our problem is to say when that is too much, and why isnt this too much . Mr. Sullivan i think other areas of First Amendment law that plaintiffs have cited for you, for example, crawford v. Marion county court of elections, they did not care about intent. Lets look at what is alleged, identify them, measure them, how much of the burden is on how many people, and then make the call. We did not have that analysis here. There is no measuring, it is any practical difference, is what the court said, sufficient to trigger and invalidate a map, and that will happen in every single redistricting. Justice alito you say that partisan gerrymandering is judicial, under which part of the constitution . The elections clause or Something Else . Mr. Sullivan well, i will say under the ethical protection clause Justice Alito and that is the only one . Both of them. Your answer is both of them . Mr. Sullivan both of them is essentially a source for a standard. Justice alito what is your test under the First Amendment . Mr. Sullivan i do not have a specific test to propose, but as i indicated to justice breyer, i do think to get away from the standard, where you have a ground, politics, where political aims are endemic. Justice alito do you think the First Amendment and equal protection dictate the same standards for different standards . Mr. Sullivan i would imagine they would have to be different, because you have completely different bodies of case law they have developed, so there has to be some differences. Justice alito you cant tell me the test under the First Amendment. What is the test under the equal protection clause . Mr. Sullivan it protects intent. Justice alito what degree of intent . Justice alito well, i tried listening to the prior argument, but i lost count where it came out. [laughter] mr. Sullivan in racial gerrymandering Justice Alito but you are back before the District Court. What should you tell the District Court, to try to explain to the District Court why you should win . Mr. Sullivan one of the arguments we make is how, given the plaintiffs delay, which is what the court found my son, put this in the categories of cases cited where courts have decided it is not equitable, no longer in the Public Interest to redraw the map. If you redraw the lines, you change all the of the associational interests, and then you will have the redraw the mouse again within two years span. Justice alito you think there will be a different map drawn after the 2020 census . Mr. Sullivan there will be a different map, because our laws requiring. I would like to reserve whatever time i have left. Thank you, your honor. Chief Justice Roberts thank you, counsel. Mr. Kimberly. Mr. Kimberly thank you, chief justice, and made it please the court, when state officials use redistricting to burden a particular group of voters because of their political views, with the express goal of making it harder for that group of voters to win elections, when that goal is achieved, so that group of voters is doomed to electoral defeat under the map, and when the state cannot come forward with a legitimate governmental interest to justify the burdens imposed some of the matt has to be mutually redrawn. That, in a nutshell, is our claim, and all the evidence in our case proves that the 2011 redistricting violated that theory. Chief Justice Roberts it is a test matched in every particular, except for the one about durability that you mentioned. In every redistricting, partisanship would play a significant role, and you can always do it to one degree or another, it will always have an effect if you focus entirely on durability. Mr. Kimberly i do think all the