The possibility that state legislatures which the framers knew to be partisan institutions would engage in too much partisanship. They chose to Structural Solutions by giving authority. Once we decided the one person, one vote concept, we were pretty much saying certain acts by the legislature are unconstitutional, including race discrimination and others. It cant be that simply because the constitution says that a particular act is in the hands of one branch of government that that deprives the courts of reviewing whether that action is constitutional or not. I suppose the question whether that ship has sailed is one way of presenting the question in front of the court today. I would submit you dont have a onesizefitsall solution for disability and i dont think this fits that. I took the central lesson to be the same claim, essentially, presented as an equal protection claim when presented. Does one person have one vote that counts equally . I take it to be the message of those cases. As one person have one vote that counts equally with others if the impact of her vote is reduced based on her Party Affiliation . The answer is yes. You still have an equal right to vote as an individual. What the parties on the other site are complaining about is not an individual injury. What they are complaining of is their group in a district with too many people who agree with them or too few people that agree with them and therefore their vote is diluted in some way. I dont think that is in the first place a legal interest. Even if they get over the standing problem, i dont think that is an injury. Lots and lots of voters live in a District Court either because of geography or state action, they are not going to have their preferred candidate elected. I would go further and say most americans dont get their preferred candidate elected because they have to choose from the candidates that are before them and may be based on the district they live in, it tends to give them a relatively liberal democrat or a relatively conservative republican and what they would prefer is someone down the middle. None of those things are something you are constitutionally entitled to. Does your position required to overrule it . It would depend on which way you decide the case. If we decided it in your favor. [laughter] it would still depend if you found it on Standing Grounds or disability grants. If you found it in dishabille to grounds, you have to disability grounds, i would be happy to discuss why that is the case. It is a case that has no reliance interests other than the potential reliance interests of litigants. It has not reduced actual results. It is a decision that does not have a strong claim. If you decided the case on Standing Grounds, you would be deciding the case on grounds that are interior to anything the court decided on vendor mirror. If i understand the bottom line of your argument, you would answer the question that one of my i dont want to call him a former colleague, he is still a colleague but no longer on the bench. Justice kennedy asked in one of these cases, it was if the state constitution had a provision that required redistricting to be based solely on partisan grounds, forget about whether there were any traditional grounds or not, you would say that was constitutional. I think i might say, and it matters so you frame it, i think if you took a state constitutional provision and try to have it impose, some requirements will apply to every redistricting going forward. You may or may not accept that. You are basically saying, yes, that would mean as occurred here, that almost 50 of one partys vote is going to result in maybe less than one third of the. That is exactly right and i think you put your finger on what my friends on the others precede to be the problem, which is a lack of proportional representation. No, because all of the tests they are proposing and the District Court looked at did not talk about proportionate representation. It looked at only the opportunity to elect. An opportunity is different. The way this is structured, there is absolutely no opportunity virtually none, i am exaggerating slightly. But virtually none, for maybe a Majority Party to elect more than or less than one third of the people they voted for. I think that that difference is implicit in the idea of having districts rather than statewide elections for the congress. Keep in mind the constitutional as originally enacted for constitutional purposes, it is perfectly constitutional for a state to embrace the policy idea that proportional representation is a good thing and implement it by saying we will elect congress not by districts but by statewide vote. Can i take you back to the Justice Kennedy question that Justice Sotomayor talked about. Im not quite sure i understood your answer. It seems to me that this is justices hypothetical come to life in this sense, that there is a particular provision in the legislation that says the partisan makeup of the congressional delegation is 10 republicans and three democrats and the committee will make reasonable efforts to construct districts to maintain that current partisan makeup, 10 and three. It was specifically written into the law that whatever else you do, and there were definitely other things the lawmakers wanted done, but whatever else you do, dont come back they will come back the same tenant three. That was the import of Justice Kennedy question. Can you write that into a law and say that is what we are trying to do here. Two responses, one is i did notice every time Justice Kennedy asked that question, he asked at the way Justice Sotomayor did and built in an ocean that you will really enshrine that preference for future elections. I want to drop the footnote that there may be something distinctive. Go do it 10 and three, that is what we want to maintain. I think there is a difference, but i am happy to respond to your question about can you have it as an express criteria for a particular districting. I think the answer is absolutely yes, that is not a problem. I think being candid about it probably serves accountability principles in the long run, which is to say, which i think almost everyone does, that implicitly, that is what the Republican Legislature was doing, in fact they were explicit in their deposition testimony if you look at footnote 5 of justice whites opinion,. His goal was to preserve as Many Republican incumbents as possible. Back to the way Justice Kennedy formula to the question, which hypothesized the state constitution. You made reference to the elections clause. The elections clause says that it is to be prescribed by the times, places and manners are to be prescribed by the legislatures of the state to the legislatures of the state typically control what is in the state constitution . They dont and that is what i think it is important to figure out. I think Justice Kennedy may have framed that particular question in a particular way. I dont want to go too far into the arizona independent redistricting case. I think there is a respectable argument the state legislature means state legislature and not the other parts of the state government. I think it is a separate issue. It could mean the people by referendum. It well could. There are at least four people who agreed with you and i dont want to relitigate that here because i dont think the result in that case i think that case can be taken as a given. You can still send the claims to be as responsive as i can to thei think theres a constitutional problem when a state legislature makes explicit with respect to redistricting they are undertaking at that moment, if they make explicit what was after the record was built up, existed in heaven that they got a map of that was favorable to republicans, that, along with redistricting principles. I think there where you rather criteria was exactly right. The said reasonable efforts would be made. With respect to other items on their list of criteria like continuity, they said, shall. So some things were nonnegotiable. Equal population. Other things were negotiable but different efforts would be made. In terms of democratic accountability, one of the arguments weve heard is that the Court Must Act because nobody else can as a tactical matter. Given arizona, and that is the holding of the court, is that true . To what extent have stayed through their citizen initiatives or at the ballot box in elections amended their constitutions or otherwise provided for remedies in this area . My home state of colorado had a referendum about this in the past. So i believe they do that. I am just wondering what is the scope. Of the other place where there can be a solution to this, which is the most obvious one and is a solution the matter what you think of the arizona independent case, is congress. If you look at hr. R 1, the very first bill put on the agenda, it was an effort to basically force states to have bipartisan commissions. It thoroughly shows that congress is able to take action in this particular area. I suppose the members of congress are pretty happy with the way district has gone. [laughter] you might think, mr. Chief justice, but i dont think the majority of them are. The bill was passed on. Partyline votes. It is a little odd here that weve had all of this supposedly partisan redistricting to benefit the composition of congress and yet the majority of Congress Things they should pass h. R. 1. I just dont know that there is that much of a problem. The particular context is the context of congressional redistricting. One of the elements of the framers structural solution was a tell congress, where do you district for yourself. They said, lets have someone closer to the people at the state level do the redistricting. They didnt have the same fox regarding the same henhouse this particular context. You may know want to answer this question. I am trying to understand you. Assume that, absolutely, this is the label. Does this is illegal. But there is no remedy. We cant figure out a remedy. That is where i want you to start. My guess is from the reaction, there was none. What i am trying to do is figure out if there is only to catch real outliers. You cant go beyond that. The real outliers. Which are the real outliers . If we look at history, there wasnt that much gerrymandering in the past compared to what there might be with computers in the future. I have tried to figure out something simple. Not going to get every judge in the country mixed up. Not going to lead to every election contested and throw it all to the judges instead of the people. Okay . Anybody can figure it out. Now this is what it is, that if a gerrymander, dahdahdah, is if there is a commission or something, forget it, youre out of court right away. Okay . But, if there is no commission, one Party Controls it, then a gerrymander is unconstitutional if a party that wins a majority of the votes in the state, if they won a majority of the votes by the other party gets more than twothirds of the seats. You see . That would be pretty extreme. But your client might meet it. And the virtue of it, its absolutely simple. By the way, they can try to justify it and then we can use, you know, the landers you know, Something Like those 5 percent things to test the justifications, but there wont be much can be justified. And that twothirds number is not drawn out of thin air. The constitution, in fact, you can find serious matters, overriding vetoes, constitutional amendments, and you can show how gerrymandering wrecks what they assumed for those, but thats a different story, you can find. And it it very rarely would operate, but it would be somewhere. Now have you thought about anything like that . Do you have any reaction . Your reaction would be, no, thats no good, but i mean aside aside from that, have is there anything you want to contribute to thought on that . Well, Justice Breyer, in in all candor, theres so much in that that i disagree with that its a little hard to know where to start. [laughter] im going to resist at first the temptation to take issue with the premises, though if i have time ill get back to that. Let me take issue with the two basic prongs of your test. So, first, the reason i think your test has to be a nonstarter is the fact that, as you say, your test would basically give a pass to any state that doesnt use the method prescribed by the framers to engage in congressional districting. So it would be a strike against the state if they actually did what the framers envisioned Justice Breyer wait, wait, wait, wait i am just saying that this is perhaps a start. Im not saying anybody gets a pass. But im saying you wouldnt have to go further than that in this case. Well, i thought i heard you say that if you were a state that used a bipartisan commission, dot, dot, dot you would get a pass. Justice breyer oh, yes, thats right. Thats right. And that seems to me itself to be remarkably revealing because youre basically saying that it would be a good thing for the state if they chose to use a mechanism other than the one that the framers picked. So thats my big objection to the intent prong. Justice ginsburg not if you not if you say that for this purpose, the legislature is the people. And thats what arizona held well, Justice Ginsburg, in fairness, i think what arizona held is that the people are within that concept, but i certainly dont think arizona stands for the proposition that what the framers had in mind primarily was something other than the state legislatures. So it seems to me its a strike against your test that it identifies as a problem something that the framers would have associated with the primary mechanism they used for redistricting. So on the effects Justice Kagan if i can just interrupt for one second. Mr. Clement sure. Justice kagan i mean, going down that road would suggest that Justice Gorsuchs attempt to sort of say this is not so bad because the people can fix it is not so true because youre suggesting that the people really maybe cant fix it, you were wrong about the people being able to fix it, and if the people could fix it, while its not the constitutionally prescribed way because its never been done before, so Justice Gorsuchs attempts to save whats so dramatically wrong here, which is the court leaving this all to professional politicians who have an interest in districting according to their own partisan interests, seems to fail. Well, i i would disagree, Justice Kagan. I mean, i took the import of Justice Gorsuchs question being that, you know, maybe we can allow the states to solve this problem for themselves. But i think then, when you get at the starting point of Justice Breyers question, which is at a certain point the federal government through its justices and judges are going to intervene and put limits on what the state does. Justice breyer all right, ive got this point, but what im trying to get you to focus on because ive read the briefs, you know, this is the fourth time, but the thing that i will you to focus on, if you can, if you want to, is the twothirds majority idea. Look, my party got a majority of the votes in the state, but we ended up with less than a third of the seats. You see, my tone of voice is meant to be, gee, this is really extraordinary, but there is absolutely a workable standard. Now the next question is all the constitutional arguments youre raising. Im not pushing those under the rug, but, for present purposes, i want you to see if theres any reaction to the practicality of this standard. I think the way i would respond to that, Justice Breyer, is i am not here to tell you that if the constitution included a one standard deviation from proportional representation clause or a onethird twothirds clause, that judges somehow would be incapable of administering that clause. So i think the fundamental problem is there is no one standard deviation from proportional representation clause in the constitution. And, indeed, you cant talk even generally about outliers or extremity unless you know what it is youre deviating from. And i take it, implicit in your question and implicit in Justice Sotomayors question, that whats bothering people is a deviation from a principle of proportional representation. Justice kagan well, mr. Clement , you keep saying that, but i dont quite think that thats right given the Statistical Analysis in this case. I mean, youre quite right that this court in the past has said this country does not run on proportional representation and this is a hangup in our ability to solve this problem. But what is quite interesting about the Statistical Analysis in this case is that quite a lot of it does not run off a proportional representation benchmark. In other words, all the computer simulations, all the 25,000 maps, right, really do take the political geography of the state as a given. So, if democrats are clustered and republicans arent, thats in the program. And all the other redistricting requirements or preferences, like contiguity, like following natural boundaries, thats all in the program. So the benchmark is not proportional representation. The benchmark is the natural political geography of the state plus all the districting criteria, except for partisanship. And if you run those maps, right, what did you get . You got 24,000 maps and this and 99 percent of them, 99 plus percent of them, were on one side of the map that was picked here. All of those maps show that a 10 3 configuration is not the natural one. And its not the natural one not because its not proportional representation. Its just not the way anybody can district, given the actual political geography on the ground, unless you absolutely try to overrule that political geography. So, Justice Kagan, two points. One is, i mean, im happy to respond to the maps, but i do think Justice