SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - BEVERLY R. GILL, et al., Appellants, v. ) ) ) No. 16-1161 WILLIAM WHITFORD, et al., Appellees. ) ) - - - - - - - - - - - - - - - - - - Pages: 1 through 65 Place: Washington, D.C. Date: October 3, 2017 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 BEVERLY R. GILL, et al., 4 5 6 Appellants, v. 8 ) ) No. 16-1161 WILLIAM WHITFORD, et al., 7 ) Appellees. ) ) - - - - - - - - - - - - - - - - - - 9 Washington, D.C. 10 Tuesday, October 3, 2017 11 12 The above-entitled matter came on for oral 13 argument before the Supreme Court of the United States 14 at 10:04 a.m. 15 16 APPEARANCES: 17 MISHA TSEYTLIN, Solicitor General, Madison, Wisconsin; 18 19 20 21 22 on behalf of the Appellants. ERIN E. MURPHY, Washington, D.C., for Wisconsin State Senate, et al., as amici curiae. PAUL M. SMITH, Washington, D.C.; on behalf of the Appellees. 23 24 25 Heritage Reporting Corporation Official 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 MISHA TSEYTLIN 4 On behalf of the Appellants 5 ORAL ARGUMENT OF: 6 ERIN E. MURPHY 7 For Wisconsin State Senate, 8 as amicus curiae 9 10 11 3 18 ORAL ARGUMENT OF: PAUL M. SMITH, On behalf of Appellees 12 REBUTTAL ARGUMENT OF: 13 MISHA TSEYTLIN 14 PAGE: On behalf of the Appellants 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 30 63 Official 3 1 P R O C E E D I N G S 2 3 (10:04 a.m.) CHIEF JUSTICE ROBERTS: We'll hear 4 argument first this morning in Case 16-1161, 5 Gill versus Whitford. 6 Mr. Tseytlin? 7 ORAL ARGUMENT OF MISHA TSEYTLIN 8 ON BEHALF OF APPELLANTS 9 10 11 MR. TSEYTLIN: Mr. Chief Justice, and may it please the Court: This Court has never uncovered 12 judicially manageable standards for determining 13 when politicians have acted too politically in 14 drawing district lines. 15 science metrics composed of statewide vote to 16 seat ratios and hypothetical projections do not 17 solve any of these problems. 18 Plaintiff's social Instead, they would merely shift 19 districting from elected public officials to 20 federal courts, who would decide the fate of 21 maps based upon battles of the experts. 22 Now, as a threshold matter, this Court 23 should hold that federal courts lack 24 jurisdiction to entertain statewide political 25 gerrymandering challenges, leaving for another Heritage Reporting Corporation Official 4 1 day the question of district-specific 2 gerrymandering challenges. 3 JUSTICE KENNEDY: I -- I think it's 4 true that there's no case that directly helps 5 Respondents very strongly on the standing 6 issue. You have a -- a strong argument there. 7 But suppose the Court -- and you just 8 have to assume, we won't know exactly the 9 parameters of it -- decided that this is a 10 First Amendment issue, not an equal protection 11 issue. 12 Would that change the calculus so 13 that, if you're in one part of the state, you 14 have a First Amendment interest in having your 15 party strong or the other party weak? 16 MR. TSEYTLIN: No, it wouldn't, Your 17 Honor. And I think the reason for that is, 18 even if it's a First Amendment issue, it's 19 still grounded in the right to vote. 20 And in our country's single district 21 election system, folks only vote in their own 22 district. 23 vague interest in the party that you associate 24 with having more members in Congress, for 25 example, like a Wisconsin Republican might want For example, you might have some Heritage Reporting Corporation Official 5 1 2 more Texas Republicans in Congress. But no one would say that you have a 3 First Amendment or a first -- Fourteenth 4 Amendment right in that sort of circumstance to 5 challenge some Texas law that you would, for 6 example, argue led to less Republicans from 7 Texas coming to the Congress. 8 9 CHIEF JUSTICE ROBERTS: Well, but I -- I think the argument is pretty 10 straightforward which you, in your district, 11 have a right of association and you want to 12 exercise that right of association with other 13 people elsewhere in the state. 14 And if you can't challenge the 15 districting throughout the state, then your 16 claim seems to be -- there's no way for to you 17 to raise your claim. 18 JUSTICE KENNEDY: And this of course 19 -- and this of course confines it to the state 20 and eliminates the problem of out-of-state, as 21 the way the Chief Justice stated the 22 hypothetical. 23 MR. TSEYTLIN: Well, Your Honor, I 24 don't think it would solve the interstate 25 problem because, of course, the structural Heritage Reporting Corporation Official 6 1 2 relationship of, for example, Mr. -­ JUSTICE KENNEDY: 3 assume that it does. 4 (Laughter.) 5 MR. TSEYTLIN: Let's -- let's Well -- well, Your 6 Honor, I still think that this Court should be 7 very careful about enacting that kind of 8 doctrine. 9 As we know, race and politics are 10 often correlated in this country, so political 11 gerrymandering claims and racially 12 gerrymandering claims, even if they're 13 ultimately grounded in a different 14 constitutional amendment, will often be raised 15 together. 16 And it cannot be -- possibly be the 17 case that, if there's a showing that the map 18 drawer turned on the racial screen, the person 19 is limited to a single district claim. 20 But if that same map drawer turned on 21 the political screen, then the plaintiff would 22 get access to the holy grail of a statewide 23 claim based on -­ 24 JUSTICE SOTOMAYOR: 25 JUSTICE GINSBURG: I'm not -­ On the question of Heritage Reporting Corporation Official 7 1 -- of race, some years ago, this Court dealt 2 with what the -- the so-called "max-Black" 3 plan, said it was a deliberate attempt by the 4 legislature to make as many African American 5 districts as possible. 6 This bears a certain resemblance 7 because the effort here, intentionally, was to 8 create as many Republican districts. 9 max-Republican, it -- doesn't it have the same 10 11 So is problem that "max-Black" did? MR. TSEYTLIN: Well, Your Honor, that 12 turns to the issue of justiciability, and I do 13 not think that raises the same problems 14 because, of course, politics is not a suspect 15 classification like race. 16 And I think the easiest way to see 17 this is to take a look at a chart that 18 Plaintiff's own expert created, and that's 19 available on Supplemental Appendix 235. 20 is plain -- Plaintiff's expert studied maps 21 from 30 years, and he identified the 17 worst 22 of the worst maps. 23 that list of 17 is that 10 were neutral draws. 24 There were court-drawn maps, 25 This What is so striking about commission-drawn maps, bipartisan drawn maps, Heritage Reporting Corporation Official 8 1 including the immediately prior Wisconsin drawn 2 map. 3 lessons from this list of 17, 10 of which were 4 neutral. And I think the Court should learn two 5 The first lesson is that partisan 6 symmetry is simply not a neutral districting 7 criteria. 8 drawing districts. 9 these commissions would not be drawing partisan 10 11 It is not a neutral method of For if it were, all of asymmetry maps. The second lesson that this Court 12 should learn from that -- from that list is 13 that Plaintiffs are asking this Court to launch 14 a redistricting revolution based upon their 15 social science metrics. 16 JUSTICE ALITO: Before you get too 17 deeply into the merits, which I -- I assume 18 you'll want to do in a minute, can I just ask 19 you a question about standing along the lines 20 of those asked by my colleagues? 21 Suppose that it was alleged that town 22 officials in someplace in northern Wisconsin 23 where the Republicans predominate were 24 discriminating against the Democratic candidate 25 for a legislative district by, let's say, not Heritage Reporting Corporation Official 9 1 allowing that candidate's signs to be put up 2 along the roadsides, but allowing the 3 Republican signs to be put up along the 4 roadsides, or they were pressuring town -­ 5 let's just leave it at that. 6 They're discriminating with respect to 7 these signs. Now, who would have standing to 8 raise a First Amendment challenge to that? 9 Would it be just the candidate in that district 10 or maybe voters in that district? 11 -- a Democratic voter in, let's say, Milwaukee 12 have standing to raise that First Amendment 13 argument? 14 MR. TSEYTLIN: Or could a I would certainly 15 think, Your Honor, the candidate would have 16 standing, and I -- I'm not so sure about the 17 voters in the district, but probably. 18 But certainly, voters in Milwaukee who 19 don't vote for that candidate, they're not 20 eligible to vote for that candidate any more 21 than someone in California is eligible to vote 22 for that candidate. 23 And I think we see this from -­ 24 CHIEF JUSTICE ROBERTS: 25 sorry. Wait. I'm Certainly, voters in Milwaukee -- you Heritage Reporting Corporation Official 10 1 2 3 4 left out the -- would not have standing? MR. TSEYTLIN: Would not have standing. And I -- I think we see this from the 5 testimony of -- of the lead plaintiff, who is 6 the only plaintiff that testified in this case. 7 He was asked, during his testimony, 8 what harm does Act 43 put on you, given that 9 you live in a Democratic-dominated district in 10 11 Madison under any possible map. Well, he said, I want to be able to 12 campaign for a majority in assembly, which 13 shows that his injury has nothing to do with 14 him as a voter. 15 interest in more Wisconsinites -- more 16 Wisconsin Democrats being elected, which 17 someone in Wisconsin can have or someone 18 outside of Wisconsin -­ It's just a generalized 19 JUSTICE GINSBURG: 20 JUSTICE KENNEDY: May I -­ I think we're 21 anxious to get to the merits, but one more 22 thing on the sign. 23 southern part of the state had talked about an 24 issue which was very important to the people in 25 Milwaukee. Suppose the sign in the Heritage Reporting Corporation Official 11 1 MR. TSEYTLIN: I think that one could 2 frame a hypothetical where, if it was some sort 3 of a home rule thing, where Milwaukee's right 4 to have certain height buildings was affected, 5 you could have a no longer generalized 6 interest, but we don't have anything like that 7 here. 8 9 JUSTICE BREYER: do this? All right. So can I Because I think the hard issue in 10 this case is are there standards manageable by 11 a court, not by some group of social science 12 political ex -- you know, computer experts. 13 understand that, and I am quite sympathetic to 14 that. 15 I So let me spend exactly 30 seconds, if 16 I can, giving you, as you've read all these 17 briefs, I have too, this is -- this is where I 18 am at the moment -- not that I'm for this, 19 react to this as you wish, and if you wish to 20 say nothing, say nothing, and it's for 21 everybody because it's a little complicated. 22 When I read all that social science 23 stuff and the computer stuff, I said, well, 24 what -- is there a way of reducing it to 25 something that's manageable? Heritage Reporting Corporation Official 12 1 So I'd have step one, the judge says, 2 was there one party control of the 3 redistricting? 4 say there was a bipartisan commission, end of 5 case. 6 If the answer to that is no, Okay? Step two, is there partisan asymmetry? 7 In other words, does the map treat the 8 political parties differently? 9 evidence of that is a party that got 48 percent 10 11 And a good of the vote got a majority of the legislature. Other evidence of that is what they 12 call the EG, which is not quite so complicated 13 as the opposition makes it think. 14 other words, you look to see. 15 Okay? In Question 3, is -- is there going to be 16 persistent asymmetry over a range of votes? 17 That is to say one party, A, gets 48 percent, 18 49 percent, 50 percent, 51, that's sort of the 19 S-curve shows you that, you know, whether there 20 is or is not. 21 And there has to be some. And if there is, you say is this an 22 extreme outlier in respect to asymmetry? And 23 there we have Eric Lander's brief, okay? You 24 know that one. 25 And -- and we look through thousands Heritage Reporting Corporation Official 13 1 and thousands of maps, and somebody did it with 2 real maps and said how bad is this compared to, 3 you know, the worst in the country. 4 And then, if all those -- the -- the 5 test flunks all those things, you say is there 6 any justification, was there any other motive, 7 was there any other justification? 8 9 Now, I suspect that that's manageable. I'm not positive. And so I throw it out there 10 as my effort to take the technicalities and 11 turn them into possibly manageable questions 12 for a response from anyone insofar as you wish 13 to respond, and if you wish to say, I wish to 14 say nothing, that's okay with me. 15 (Laughter.) 16 MR. TSEYTLIN: Thank you, Your Honor. 17 I'd like to talk about the third and fourth 18 aspects of that because I think those are -­ 19 I've already talked about the second a little 20 bit. 21 But with regard to the third, which is 22 persistence, that is exactly the kind of 23 conjectural, hypothetical state of affairs 24 inquiry that was submitted to this Court in 25 LULAC in Professor King's amicus brief because, Heritage Reporting Corporation Official 14 1 of course, as your suggestion -- suggested 2 steps recognize, a single election doesn't mean 3 much. 4 for any particular reason. 5 A single election, you could have an EG So you would have federal courts 6 engaging in battles of the hypothetical experts 7 deciding, well, what would it be under this map 8 or that map? 9 for that reason. 10 11 So I think that's a non-starter Now, with regard to extremity, this was an arg -­ 12 JUSTICE KAGAN: Well, if I could just 13 stop you there for a second, because I was 14 under the impression that legislators are 15 capable of doing this actually pretty easily 16 now. 17 You know, the world of voting 18 technology has changed a great deal, and when 19 legislatures think about drawing these maps, 20 they're not only thinking about the next 21 election, they're thinking often -- not 22 always -- but often about the election after 23 that and the election after that and the 24 election after that, and they do sensitivity 25 testing, and they use other methods in order to Heritage Reporting Corporation Official 15 1 ensure that certain results will obtain not 2 only in the next one but eight years down the 3 road. 4 And it seems to me that, just as 5 legislatures do that, in order to entrench 6 majorities -- or minorities, as the case may 7 be -- in order to entrench a party in power, 8 so, too, those same techniques, which have 9 become extremely sophisticated, can be used to 10 11 evaluate what they're doing. MR. TSEYTLIN: Well, Your Honor, 12 legislatures don't have to worry about judicial 13 manageability standards. 14 have to worry about false positives, false 15 negatives. 16 about conjecture. 17 Legislatures don't Legislatures don't have to worry They can -­ JUSTICE KAGAN: What -- what I'm 18 suggesting is that this is not kind of 19 hypothetical, airy-fairy, we guess, and then we 20 guess again. 21 by this point. 22 I mean, this is pretty scientific MR. TSEYTLIN: 23 they're just estimates. 24 scientific. 25 from the record -­ Well, Your Honor, They're not all And let me give you one example Heritage Reporting Corporation Official 16 1 JUSTICE SOTOMAYOR: I'm sorry. 2 They're -- they're estimates where you haven't 3 put any social scientist to say that the 4 estimate's wrong. 5 every single social science metric points in 6 the same direction. 7 You've poked holes, but So there are five of them. Your map 8 drawer is one of them, by the way, the person 9 who actually drew these maps, and what we know 10 is that they started out with the court plan, 11 they created three or four different maps, they 12 weren't partisan enough. 13 four more maps, they weren't partisan enough. 14 They created three or And they finally got to the final map, 15 after maybe 10 different tries of making it 16 more partisan, and they achieved a map that was 17 the most partisan on the S-curve. 18 And it worked. 19 they even expected. 20 wrong. So, if it's the most extreme map they could make, why isn't that enough to prove -­ 23 24 25 So the estimate wasn't The estimate was pretty right. 21 22 It worked better than MR. TSEYTLIN: Well, Your Honor, I think -­ JUSTICE SOTOYMAYOR: -- partisan Heritage Reporting Corporation Official 17 1 asymmetry and unconstitutional gerrymandering? 2 MR. TSEYTLIN: Well, Your Honor, I 3 think the facts in this case, which is what you 4 were discussing, are significantly less 5 troubling than the facts in the cases that this 6 Court has previously faced, for example, 7 Bandemer and Vieth, and that's for two reasons. 8 One, the map drawers here complied fastidiously 9 with traditional districting principles, which 10 was not true in Bandemer and Vieth. 11 JUSTICE SOTOMAYOR: But they kept 12 going back to fix the map to make it more 13 gerrymandered. 14 involved in the process had traditional maps 15 that complied with traditional criteria and 16 then went back and threw out those maps and 17 created more -- some that were more partisan. 18 MR. TSEYTLIN: 19 Honor. 20 used in -­ 21 22 23 That's undisputed. The people That's correct, Your And, of course, there were computers JUSTICE SOTOMAYOR: So why didn't they take one of the earlier maps? MR. TSEYTLIN: Because there was no 24 constitutional requirement that they do so. 25 They complied with all state law. Heritage Reporting Corporation Official 18 1 JUSTICE SOTOMAYOR: 2 MR. TSEYTLIN: 3 That's the point. And they complied with all traditional districting principles. 4 JUSTICE ALITO: Can I take you back to 5 -- to Justice Kagan's question about the 6 legislators' use of these techniques? 7 the techniques that are used by politicians in 8 order to try to maximize their chances of 9 electoral success scientific? I think they 10 rely a lot on polls, don't they? 11 scientific have they proven to be? 12 MR. TSEYTLIN: Are all How Of course, Your Honor. 13 Legislatures can very much rest on conjecture, 14 whereas courts cannot. 15 balance of my time. 16 17 18 19 20 21 22 23 If I could reserve the CHIEF JUSTICE ROBERTS: Thank you, counsel. Ms. Murphy. ORAL ARGUMENT OF ERIN E. MURPHY FOR WISCONSIN STATE SENATE, AS AMICUS CURIAE MS. MURPHY: Mr. Chief Justice, and may it please the Court: Plaintiffs have not identified a 24 workable standard for determining when the 25 inherently political task of districting Heritage Reporting Corporation Official 19 1 becomes too political for the Constitution to 2 tolerate. 3 Indeed, the only thing Plaintiffs have 4 added to the mix since LULAC is a wasted votes 5 test that identifies court-drawn maps as 6 enduring partisan gerrymanders and conveniently 7 favors their own political party. 8 JUSTICE KENNEDY: 9 You've probably considered the hypo many times. Suppose a 10 state constitution or a state statute says all 11 districts shall be designed as closely as 12 possible to conform with traditional 13 principles, but the overriding concern is to 14 increase -- have a maximum number of votes for 15 party X or party Y. 16 MS. MURPHY: What result? I think if -- if you have 17 something that says the ultimate principle that 18 we're going to follow is abandon all other 19 criteria in favor of partisan advantage, at 20 least you're closer at that point -­ 21 JUSTICE GINSBURG: I don't think -- I 22 don't think that was the question. It was it 23 satisfies all the traditional criteria, 24 contiguous, but it was a deliberate attempt to 25 maximize the number of seats that Republicans Heritage Reporting Corporation Official 20 1 would hold. 2 3 JUSTICE KENNEDY: This is mandated by the state constitution. 4 MS. MURPHY: I don't think that in a 5 world where the legislature is required to and 6 is, in fact, complying with a number of other 7 metrics and is as one of those things taking 8 into account partisan advantage, that you've 9 proven a constitutional violation. 10 JUSTICE ALITO: It's not a -- that's 11 not a manageable standard. 12 manageable standard that you cannot have a law 13 that says draw maps to favor one party or the 14 other. 15 MS. MURPHY: 16 JUSTICE ALITO: 17 It's not a If it's -­ That seems like a perfectly manageable standard. 18 MS. MURPHY: If it's on -­ 19 JUSTICE ALITO: 20 MS. MURPHY: You cannot have that. -- the face of the 21 statute, I think you have a different scenario 22 because at least at that point, you know the 23 intent. 24 about the intent of what the legislature is 25 doing and if they are intentionally drawing for You know there's no debate to have Heritage Reporting Corporation Official 21 1 one purpose or other purposes. 2 JUSTICE KAGAN: Well, there are plenty 3 areas of law, Ms. Murphy, where we look at 4 intent beyond the face of a statute. 5 know, sometimes that's harder than other times. 6 We understand it can be difficult. 7 understand in other cases it can be easy. 8 we do it all over the place in our law. 9 don't -- we don't say, oh, if it's not on the 10 face of the statute, we're never going to look 11 at it. And, you We But We 12 So, if your answer to Justice Alito 13 is, well, on the face of the statute, that's 14 certainly a manageable standard, I guess I 15 would ask why not if it's not on the face of 16 the statute? 17 but you have good evidence that there was the 18 intent here, and you have good evidence that 19 the intent led to a certain kind of effect, 20 which was to entrench a party in power. 21 But you absolutely -- you know, MS. MURPHY: I think what 22 differentiates this from a lot of other 23 contexts is that here we have opinion after 24 opinion from this Court, dissenting opinions, 25 concurring opinions, plurality opinions, what Heritage Reporting Corporation Official 22 1 have you, saying that considering politics in 2 districting is not in and of itself inherently 3 unconstitutional. 4 JUSTICE GORSUCH: 5 MS. MURPHY: 6 7 8 9 Ms. Murphy -­ So just finding the intent isn't a problem. JUSTICE KAGAN: But there is a difference -­ JUSTICE GORSUCH: I'd like to go back 10 to Justice Breyer's question. 11 helpful to get an answer for me on that. 12 criteria would a state need to know in order to 13 avoid having every district and every case and 14 every election subject to litigation? 15 the -- the standards given in -- in the lower 16 court here was, well, a little bit of partisan 17 symmetry problem, a little bit of an efficiency 18 gap problem, not a real set of criteria. 19 It would be What Because And here, you know, is it 7 percent, 20 how durable, how many elections would we need? 21 How much data would we have to gather? 22 through Justice Breyer's question and provide 23 some answers, if you -- if you would. 24 25 MS. MURPHY: Sure. Walk us So I think some of the problems with the criteria that have been Heritage Reporting Corporation Official 23 1 suggested, in particular with the tests that 2 focus on these symmetry metrics, is that so far 3 the metrics that we have, I mean, they identify 4 false positives roughly 50 percent of the time. 5 And I don't know how a legislature is 6 supposed to comply with criteria that can't 7 differentiate between a court-drawn map and a 8 map drawn for partisan advantage. 9 start with this partisan symmetry concept, you 10 automatically have the basic problem that you 11 have to have some way to decide what is the 12 appropriate partisan asymmetry. 13 JUSTICE GORSUCH: Okay. So, when you But what are 14 the questions -- you know, I need two years or 15 two cycles worth of data. I need an S curve of 16 a certain shape and size. I need an efficiency 17 gap of something. 18 are the criteria we'd have to fill in as a 19 constitutional matter in order for a state to 20 be able to administer this? 21 What are the numbers, what MS. MURPHY: Well, I mean, with all 22 due respect, I -- I -- I'm not convinced that 23 there are manageable criteria for the courts to 24 be putting on legislatures for how to go about 25 this process. And I certainly don't think that Heritage Reporting Corporation Official 24 1 anyone in this case has identified that. 2 3 JUSTICE GORSUCH: But if you could try to answer -­ 4 MS. MURPHY: But I would suggest that, 5 you know, one of the starting points for me 6 would have to be that traditional districting 7 criteria should matter in the analysis. 8 9 If you have a legislature that has started by saying we're going to comply with 10 everything that we're supposed to do, not only 11 as a legal matter, but also all of these 12 practical constraints, we're going to draw 13 districts that comply -­ 14 JUSTICE GINSBURG: Ms. Murphy, because 15 -- because your time is running out, I would 16 like to ask you what's really behind all of 17 this. 18 stack a legislature in this way, what incentive 19 is there for a voter to exercise his vote? 20 Whether it's a Democratic district or a 21 Republican district, the result -- using this 22 map, the result is preordained in most of the 23 districts. 24 25 The precious right to vote, if you can Isn't that -- what becomes of the precious right to vote? Would we have that Heritage Reporting Corporation Official 25 1 result when the individual citizen says: I 2 have no choice, I'm in this district, and we 3 know how this district is going to come out? 4 mean, that's something that this society should 5 be concerned about. 6 MS. MURPHY: 7 responses to that, Your Honor. 8 it's inherent in our districting scheme that 9 there are plenty of people who are always going I Well, a -- a couple of First of all, 10 to be voting in districts where they know what 11 the result is going to be. 12 nothing to do with partisan gerrymandering; it 13 has to do with the geography of politics and 14 the fact that some of us just live in districts 15 where -­ 16 JUSTICE GINSBURG: 17 MS. MURPHY: 18 19 And that has Some of us, but -­ -- we know that our vote will come out one way or another. JUSTICE GINSBURG: In Wisconsin, 20 before this plan, was it the case that when it 21 was something like 49 out of 99 districts were 22 uncontested, nobody -- the election was -­ 23 wasn't contested because the one party or the 24 other was going to win. 25 MS. MURPHY: Well, I -- I don't think Heritage Reporting Corporation Official 26 1 you can quite draw that conclusion from the 2 fact there's uncontested races. 3 reality is that political parties have to make 4 decisions about where to put their resources, 5 and they're going to have to do that for 6 reasons that, again, have nothing to do with 7 districting for partisan advantage. 8 to do with the fact that drawing districts is 9 always going to reflect political calculations I mean, the They have 10 and it's always going to be driven by 11 communities of interest, and communities of 12 interest sometimes feel very strongly about one 13 political party rather than another. 14 JUSTICE KENNEDY: I have to say that I 15 don't think you ever answered the question: 16 the state has a law or a constitutional 17 amendment that's saying all legitimate factors 18 must be used in a way to favor party X or party 19 Y, is that lawful? 20 MS. MURPHY: If I think it's -- on the 21 face of the Constitution as a requirement the 22 district must -- the legislature must comply 23 with, then that could be your instance of a -­ 24 a problem that can be actually solved by the 25 Constitution, but it's quite different to me Heritage Reporting Corporation Official 27 1 when you have a facially neutral districting 2 matter -­ 3 JUSTICE KENNEDY: Is that an equal 4 protection violation or a First Amendment 5 violation? 6 MS. MURPHY: Well, it's a little hard 7 to say at this point because, you know, it 8 really just hasn't been fully explored, this 9 concept of how you would come at all of this 10 from a First Amendment perspective. 11 this comes back to really the standing question 12 -- 13 JUSTICE KENNEDY: I think Well, you said 14 there's a Constitution -- is it equal 15 protection? 16 MS. MURPHY: I think the question -- I 17 mean, it would be who has standing to bring 18 their -­ 19 20 21 JUSTICE KENNEDY: standing. Well, assume I'd like an answer to the question. MS. MURPHY: Yes. It would be an 22 unconstitutional if it was on the face of it, 23 and I think that that would be better thought 24 of probably as an equal protection violation, 25 but you could think of it just as well, I Heritage Reporting Corporation Official 28 1 think, as a First Amendment violation in the 2 sense that it is viewpoint discrimination 3 against the individuals who the legislation is 4 saying you have to specifically draw the maps 5 in a way to injure, but, again, I -­ 6 JUSTICE SOTOMAYOR: Could you tell me 7 what the value is to democracy from political 8 gerrymandering? 9 system of government? 10 11 12 How -- how does that help our MS. MURPHY: Sure. Well, I would point to -­ JUSTICE SOTOMAYOR: You -- you almost 13 concede that it doesn't when you say if a state 14 filed -- has a constitutional amendment or has 15 a law that says you must comply with 16 traditional criteria, but you must also 17 politically gerrymander, you're saying that 18 might be unconstitutional? 19 MS. MURPHY: It might be, but I don't 20 think that necessarily means that districting 21 for partisan advantage has no positive values. 22 I would point you to, for instance, Justice 23 Breyer's dissenting opinion in Vieth which has 24 an extensive discussion of how it can actually 25 do good things for our system to have districts Heritage Reporting Corporation Official 29 1 drawn in a way that makes it easier for voters 2 to understand who they are account -- who the 3 legislature is. 4 accountability that are valuable so that the 5 people understand who isn't and who is in 6 power. 7 It produces values in terms of JUSTICE SOTOMAYOR: I really don't 8 understand how any of that -- what that means. 9 I mean, it -- it's okay to stack the decks so 10 that for 10 years or an indefinite period of 11 time one party, even though it gets a minority 12 of votes, can't get a minor -- gets a minority 13 of votes, can get the majority of seats? 14 MS. MURPHY: With all due respect, you 15 know, I would certainly dispute the premise 16 that the decks are stacked here. 17 the day, what matters is how people vote in 18 elections and that's what's going to determine 19 the outcomes, as it has in Wisconsin where the 20 Republicans have won majorities because they've 21 actually won the majority of the vote in most 22 of the elections over the past four years. 23 Thank you, Your Honor 24 25 CHIEF JUSTICE ROBERTS: At the end of Thank you, counsel. Heritage Reporting Corporation Official 30 1 2 3 4 5 6 Mr. Smith. ORAL ARGUMENT OF PAUL M. SMITH ON BEHALF OF APPELLEES MR. SMITH: Mr. Chief Justice, and may it please the Court: What the state is asking for here is a 7 free pass to continue using an assembly map 8 that is so extreme that it effectively 9 nullifies democracy. 10 As this case illustrates, it's now 11 possible even in a 50/50 state like Wisconsin 12 to draw a district map that is so reliably and 13 extremely biased that it effectively decides in 14 advance who's going to control the legislative 15 body for the entire decade. 16 CHIEF JUSTICE ROBERTS: Maybe we can 17 just talk briefly about the standing issue. 18 It is a little arresting to have a 19 rule that we establish that when your claim is 20 racial gerrymandering, it has to be limited to 21 your district, you can't complain about racial 22 gerrymandering elsewhere in the state, but 23 here, if the claim is going to be political 24 gerrymandering, you can raise claims about 25 whole statewide issues even if there is no Heritage Reporting Corporation Official 31 1 argument that you're gerrymandered, like the 2 first plaintiff who votes in Madison, his vote 3 isn't diluted in any way, and yet he is able to 4 complain about voting anywhere in the state. 5 MR. SMITH: Well, Mr. Chief Justice, I 6 think that standing has to follow from the 7 nature of the injury and that follows from the 8 nature of the constitutional violation. 9 A racial gerrymandering claim, a Shaw 10 v. Reno claim, is an attack on a particular 11 district for being drawn with excessive focus 12 on race. 13 be localized to the place where that district 14 is. 15 In that situation, the injury has to Partial -- partisan gerrymandering has 16 the same word in it, but it's an entirely 17 different kind of injury because it involves 18 dilution of votes. 19 analytically distinct from any dilution case. Racial gerrymandering is 20 JUSTICE ALITO: I don't understand -­ 21 CHIEF JUSTICE ROBERTS: What about -­ 22 what about the sign hypothetical? You know, 23 you're up in far north of Wisconsin and 24 somebody is -- is taking down the signs for the 25 one candidate in the far south. Heritage Reporting Corporation Official 32 1 That affects that individual's -- the 2 strength of his vote for the state-wide 3 purposes. 4 complain about that? 5 Is he really have standing to MR. SMITH: Well, Your Honor, I think 6 you could decide that while it might have some 7 de minimis effect on the interest of any 8 Democrat attempting to carry out that group's 9 political agenda, that it's sufficiently de 10 minimis that you wouldn't want to give standing 11 to people outside the directly affected area. 12 JUSTICE ALITO: Why -- why is it de 13 minimis? 14 thing. 15 to many towns that are controlled by the 16 Republicans and they're taking down all the 17 Democratic signs. 18 strategy, it will mean fewer members of the 19 legislature are Democrats and, therefore, the 20 interests of the Democratic voter in Milwaukee 21 or Madison will be impaired. 22 exactly the same thing. 23 It seems to me it's exactly the same If you have a system, let's extend it And if that's an effective MR. SMITH: It seems like Well, Your Honor, if you 24 had a systematic effort in a lot of places by 25 members of one party to prevent the other party Heritage Reporting Corporation Official 33 1 from campaigning effectively, I think that 2 anybody in the Democratic Party in the state 3 would have standing. 4 5 JUSTICE ALITO: All right. Well, on the -- let's -- let's look at the race issue. 6 So you have a state where there you 7 have an African American voter in -- in a -- in 8 one part of the state who wants to complain 9 that districts in another part of the state are 10 -- are packed or cracked and, as a result of 11 that, there are going to be fewer African 12 Americans in the legislature than there should 13 be. 14 And that's going to impair that 15 person's interests, including, I would suppose, 16 their right of association. 17 the difference between those two situations? 18 MR. SMITH: What -- what is Well, Your Honor, that's a 19 Section 2 vote dilution claim, and I think that 20 the law appropriately limits standing in that 21 situation to people who live in the region of 22 the state where there's an absence of an 23 additional minority district. 24 25 You wouldn't want to assume that some African American from a different part of the Heritage Reporting Corporation Official 34 1 state has a collective interest with people 2 over here in this part of the state just 3 because of race. 4 But with party, people join the party to -- to 5 work together to achieve a collective end. 6 you're not -­ 7 That's just stereotyping. CHIEF JUSTICE ROBERTS: So Well, but 8 that's equally stereotyping. Sometimes people 9 vote for a wide variety of reasons. Maybe the 10 candidate, although he's of a different party, 11 is a -- is a friend, is a neighbor. 12 think it's a good idea to have the 13 representatives from their district to balance 14 out what they view would be necessary -- likely 15 candidates from other districts. 16 MR. SMITH: 17 CHIEF JUSTICE ROBERTS: Maybe they Maybe they do -­ I don't think 18 it's any more -- any less stereotypical to say 19 that people are going to vote for parties 20 because they support everything the party does 21 statewide. 22 MR. SMITH: Well, but to have 23 standing, I think you'd want to find plaintiffs 24 who do that, Your Honor. 25 plaintiffs we have here are thorough going And certainly the Heritage Reporting Corporation Official 35 1 supporters of the disfavored party. Their 2 party has been punished by the law of the State 3 of Wisconsin. 4 standing issue ought to be satisfied by the 5 description of what our claim is, which comes 6 right out of Justice Kennedy's concurrence in 7 Vieth where -- this is on page 86-A of the 8 jurisdictional statement, The White Appendix. 9 It's just a two-sentence description And I think that the -- the 10 of our claim: 11 where a state enacts a law that has the purpose 12 and effect of subjecting a group of voters or 13 their party to disfavored treatment by reason 14 of their views. 15 gerrymandering, that means that First Amendment 16 concerns arise where an apportionment has the 17 purpose and effect of burdening a group of 18 voters' representational rights." 19 "First Amendment concerns arise In the context of partisan So the group is -- is the targeted 20 people, those are the people who have the 21 injury, the injury to their First Amendment 22 interests, and anybody in the group has -­ 23 ought -- should be able to -- to bring a First 24 Amendment argument saying -­ 25 JUSTICE KAGAN: Mr. Smith. Heritage Reporting Corporation Official 36 1 2 3 CHIEF JUSTICE ROBERTS: do you have standing? Mr. Smith -­ Well, Justice Kagan? JUSTICE KAGAN: In a one-person 4 one-vote case, does one person in an 5 overpopulated district have standing to 6 challenge not only that district, those 7 district lines, but the entire state map? 8 9 10 11 12 13 MR. SMITH: That is true. That is the way that it's been handled ever since the Reynolds case. JUSTICE KAGAN: And why is that, and does it -- is it an analogy to this case? MR. SMITH: Well, it's certainly a 14 helpful analogy. 15 because they have to live in an overpopulated 16 district rather than an underpopulated 17 district. 18 It's not exactly the same But those are the people in -- who 19 suffer vote dilution because they're living in 20 the overpopulated districts. 21 said not only does that person have standing to 22 challenge their own district but also to 23 challenge the entire map and make all of the 24 districts closer in population. 25 the way that's been handled since the '60s. And the Court has That's just Heritage Reporting Corporation Official 37 1 CHIEF JUSTICE ROBERTS: 2 going to follow an example of one of my 3 colleagues and lay out for you as concisely as 4 I can what -- what is the main problem for me 5 and give you an opportunity to address it. 6 Mr. Smith, I'm I would think if these -- if the claim 7 is allowed to proceed, there will naturally be 8 a lot of these claims raised around the 9 country. 10 Politics is a very important driving force and those claims will be raised. 11 And every one of them will come here 12 for a decision on the merits. 13 not within our discretionary jurisdiction. 14 They're the mandatory jurisdiction. 15 have to decide in every case whether the 16 Democrats win or the Republicans win. 17 going to be a problem here across the board. 18 These cases are We will So it's And if you're the intelligent man on 19 the street and the Court issues a decision, and 20 let's say, okay, the Democrats win, and that 21 person will say: 22 win?" 23 was greater than 7 percent, where EG is the 24 sigma of party X wasted votes minus the sigma 25 of party Y wasted votes over the sigma of party "Well, why did the Democrats And the answer is going to be because EG Heritage Reporting Corporation Official 38 1 X votes plus party Y votes. 2 And the intelligent man on the street 3 is going to say that's a bunch of baloney. 4 must be because the Supreme Court preferred the 5 Democrats over the Republicans. 6 going to come out one case after another as 7 these cases are brought in every state. 8 9 It And that's And that is going to cause very serious harm to the status and integrity of the 10 decisions of this Court in the eyes of the 11 country. 12 MR. SMITH: Your Honor -­ 13 CHIEF JUSTICE ROBERTS: It is just 14 not, it seems, a palatable answer to say the 15 ruling was based on the fact that EG was 16 greater than 7 percent. 17 like language in the Constitution. 18 MR. SMITH: That doesn't sound Your Honor, first thing I 19 would say in response to that is that those 20 challenges are already being brought. 21 gerrymandered maps get challenged -- they get 22 challenged in other ways, under the one person, 23 one vote doctrine, under the racial 24 gerrymandering doctrine, under Section 2. 25 -- and so you're getting those cases. Partisan And Most of Heritage Reporting Corporation Official 39 1 the -- the statewide redistricting maps in this 2 country are challenged every 10 years in some 3 way or another. 4 What -- what would make the system 5 work better is if people could bring a 6 challenge to what they actually think is wrong 7 with the map, which is that it's anti­ 8 democratic, it decides in advance that one 9 party is going to control the state government 10 for 10 years and maybe for 20 years because 11 they can replicate it at the end of the 10 12 years and do it again. 13 That is the real problem. And I think 14 what -- what the Court needs to know is it's -­ 15 this is a cusp of a really serious, more 16 serious problem as gerrymandering becomes more 17 sophisticated with computers and data analytics 18 and a -- and an electorate that is very 19 polarized and more predictable than it's ever 20 been before. 21 this is -- we're not going to have a judicial 22 remedy for this problem, in 2020, you're going 23 to have a festival of copycat gerrymandering 24 the likes of which this country has never seen. 25 And it may be that you can protect the If you let this go, if you say Heritage Reporting Corporation Official 40 1 Court from seeming political, but the country 2 is going to lose faith in democracy big time 3 because voters are going to be like -­ 4 everywhere are going to be like the voters in 5 Wisconsin and, no, it really doesn't matter 6 whether I vote. 7 JUSTICE ALITO: 8 CHIEF JUSTICE ROBERTS: 9 Well, Mr. Smith -­ No, but you're going to take these -- the whole point is 10 you're taking these issues away from democracy 11 and you're throwing them into the courts 12 pursuant to, and it may be simply my 13 educational background, but I can only describe 14 as sociological gobbledygook. 15 MR. SMITH: Your Honor, this is -­ 16 this is not complicated. 17 how unfair the map is. 18 party -­ 19 It is a measure of How much burden can the JUSTICE BREYER: Can you say this? 20 Look, don't agree with me just because it 21 sounds favorable, because he won't in two 22 minutes. 23 question and say the reason they lost is 24 because if party A wins a majority of votes, 25 party A controls the legislature. Can you answer the Chief Justice's That seems Heritage Reporting Corporation Official 41 1 fair. 2 And if party A loses a majority of 3 votes, it still controls the legislature. 4 doesn't seem fair. 5 going into what I agree is pretty good 6 gobbledygook? That And can we say that without 7 (Laughter.) 8 CHIEF JUSTICE ROBERTS: And if you 9 need a convenient label for that approach, you 10 can call it proportional representation, which 11 has never been accepted as a political 12 principle in the history of this country. 13 MR. SMITH: Your Honor, we are not 14 arguing for proportional representation. 15 are arguing for partisan symmetry, a map which 16 within rough bounds at least treats the two 17 parties relatively equal in terms of their 18 ability to translate votes into seats. 19 That's -­ 20 21 CHIEF JUSTICE ROBERTS: We That sounds exactly like proportional representation to me. 22 MR. SMITH: Proportional 23 representation is when you give the same 24 percentage of seats as they have in percentage 25 of votes. That's what proportional Heritage Reporting Corporation Official 42 1 representation means. 2 simply doesn't remotely do that. 3 party A at 54 percent gets 58 percent of the 4 seats, party B when it gets 54 percent ought to 5 get 58 percent of the seats. 6 And our -- our claim It says if That's symmetry. That's what the political scientists 7 say is the right way to think about a map that 8 does not distort the outcome and put a thumb on 9 the scale. 10 Now what -­ JUSTICE ALITO: Mr. Smith, can I just 11 say something -- ask you a question about the 12 political science? 13 is distasteful. 14 a standard on the courts, it has to be 15 something that's manageable and it has to be 16 something that's sufficiently concrete so that 17 the public reaction to decisions is not going 18 to be the one that the Chief Justice mentioned, 19 that this three-judge court decided this, that 20 -- this way because two of the three were 21 appointed by a Republican president or two of 22 the three were appointed by a Democratic 23 president. 24 25 I mean, I -- gerrymandering But if we are going to impose Now, it's been 30 years since Bandemer, and before then and since then, Heritage Reporting Corporation Official 43 1 judges, scholars, legal scholars, political 2 scientists have been looking for a manageable 3 standard. 4 All right. In 2014, a young researcher publishes 5 a paper, Eric McGhee publishes a paper, in 6 which he says that the measures that were 7 previously -- the leading measures previously, 8 symmetry and responsiveness, are inadequate. 9 But I have discovered the key. I have 10 discovered the Rosetta stone and it's -- it is 11 the efficiency gap. 12 And then a year later you bring this 13 suit and you say: 14 constitutional standard. 15 after 200 years, it's been finally discovered 16 in this paper by a young researcher, who 17 concludes in the end -- this is the end of his 18 paper -- after saying symmetry and 19 responsiveness have shown to be -- looked to be 20 inappropriate, "The measure I have offered 21 here, relative wasted votes, is arguably" -­ 22 arguably -- "a more valid and flexible measure 23 of -- of partisan -- of partisan 24 gerrymandering." 25 There it is, that is the It's been finally -­ Now, is this -- is this the time for Heritage Reporting Corporation Official 44 1 us to jump into this? 2 body of scholarship that has tested this 3 efficiency gap? 4 Mr. McGhee's own amicus brief outlines numerous 5 unanswered questions with -- with this theory. 6 Has there been a great It's full of questions. What do you do in -- in elections that 7 are not contested? Well, then you have to -­ 8 you have to make two guesses. 9 would have voted for the winning candidate if How many people 10 it had been a contested election? 11 people would have voted for the losing 12 candidate if it had been a contested election? 13 How many One of the judges in the court below 14 asks: Why do you calculate EG by map, by 15 subtracting from the votes obtained by the 16 winner, 50 percent of the votes, instead of the 17 votes obtained by the runner up? 18 Mr. McGhee says: 19 this, and I have a forthcoming paper and I'll 20 answer it in the forthcoming paper. Well, I have an answer to 21 (Laughter.) 22 JUSTICE ALITO: 23 these questions. 24 to jump into this? 25 And And there are all of This is -- 2017 is the time MR. SMITH: That's a question. Is there a question there, Heritage Reporting Corporation Official 45 1 2 3 Your Honor? JUSTICE ALITO: question there. Yeah, there is a There are about 10 of them. 4 (Laughter.) 5 MR. SMITH: I would say this if I 6 might, Justice Alito. In Vieth, the Court 7 appropriately laid down a challenge and said if 8 you want us to do this, you've got to give us a 9 lot more than you've given us. You've got to 10 give us two things, a substantive definition of 11 fairness and a way to measure it so we can 12 limit judicial intervention to the really 13 serious cases, and so we won't have the Court 14 entering into the political fray all the time, 15 but we'll have standards that say you go this 16 far, we're going to go -- we're going to go 17 after you, but in the meantime, anything less 18 serious than that, we're going to leave to the 19 political branches. 20 And so the social scientists stepped 21 up and said we have three different ways to 22 calculate asymmetry, not just one: 23 median-mean measure; the partisan bias measure, 24 where you're equalizing to 50/50; and the -­ 25 the efficiency gap. the And in this case, they all Heritage Reporting Corporation Official 46 1 come to the exact same conclusion that this is 2 one of the most extreme gerrymanders ever drawn 3 in -- in living memory of the United States, 4 one of the five worst out of the 230 maps that 5 Professor Jackman studied. 6 And so there is no -- there's no 7 question here about this being the -­ 8 maximizing one party control as far as they 9 could go. As Justice Sotomayor was saying, 10 they pushed the limits and pushed the limits 11 and pushed the limits. 12 13 JUSTICE KAGAN: I'm sorry. 14 15 16 And it -­ Mr. Smith, may I -­ Please. MR. SMITH: Please go ahead, Your Honor. JUSTICE KAGAN: I -- I think that this 17 symmetry idea is both an intuitive and an 18 attractive principle. 19 question was do you have a substantive 20 principle, I actually think you do. 21 So, if the first The second question is, is there 22 ways -- are there ways to make sure that not 23 every district is subject to challenge as 24 violating that principle? 25 hear you talk about that. And so I'd like to Heritage Reporting Corporation Official 47 1 How is it that we are not going to 2 create a world in which in every district 3 somebody can come in and say: 4 been a violation of partisan symmetry; we're 5 entitled to a redrawn map? 6 7 What's the threshold? A-ha, there's Where do you draw the line? 8 MR. SMITH: Well, the -­ 9 JUSTICE KAGAN: Because this -- this 10 -- it seems to me that this map goes over 11 pretty much every line you can name. 12 MR. SMITH: 13 JUSTICE KAGAN: 14 15 That's true. But where do you draw the line in another case and another case? MR. SMITH: Well, Justice Kagan, the 16 great virtue of these three different measures, 17 none of which were presented to the Court in 18 Vieth when I argued the Vieth case -- and I 19 didn't do a very good job -- is that they each 20 allow you to assign a number to each 21 gerrymander and that allows you to compare them 22 across the country and back in history. 23 therefore, it is possible to draw a line. 24 25 And, Now, in addition to just measuring the degree of asymmetry, the other thing that's Heritage Reporting Corporation Official 48 1 important to do is to measure the likelihood of 2 durability of that asymmetry. 3 with the sensitivity testing so you make sure 4 you don't have the kind of map that, with a 5 small swing of voting over the next decade, is 6 going to flip over, as the map in Pennsylvania 7 in Vieth actually did. 8 right tests, the ones that I'm now presenting 9 to you, we wouldn't have won that case in -- in 10 And you do that That -- if we had the 2004. 11 But this map is never going to flip 12 over. The evidence is unequivocal that the 13 Democrats would have to have an earthquake of 14 unprecedented proportions to even have a chance 15 to get up to 50 votes out of 99. 16 CHIEF JUSTICE ROBERTS: All of those 17 predictions -- I mean, Bandemer predicted the 18 Democrats would never be able to attain a 19 majority. 20 they got a majority the one after that. 21 already mentioned Vieth. 22 right, after the District Court said, oh, the 23 -- I forget who it was -- Republicans are never 24 going to get elected. 25 single race. It was 50/50 the next election, and You It was five days, And they won every Predicting on the basis of the Heritage Reporting Corporation Official 49 1 statistics that are before us has been a very 2 hazardous enterprise. 3 MR. SMITH: The technique of 4 sensitivity testing, which was done by the 5 Defendants' expert in the -- in the process of 6 drawing the map to make sure that they were 7 drawing a permanent, non-flippable gerrymander, 8 and then done again by the experts for the 9 Plaintiffs in this case in court and tested by 10 the court, is a -- a method by which you 11 identify one thing about the map: 12 a lot of swing districts in it, a lot of 13 competitive districts in it? 14 does, you can have a map that looks very biased 15 in one year when all those districts go one 16 way, but it might flip over. 17 Bandemer. 18 Does it have Because if it That was That was Vieth. That is not this case. They spent 19 their entire time in that -- those four months 20 in that locked room doing two things, trying to 21 maximize the amount of bias and eliminating 22 systematically competitive districts, reducing 23 it down to something less than 10 when it had 24 been up around 20, and then even though those 25 10, they tinkered with it and tinkered with it Heritage Reporting Corporation Official 50 1 to make sure that even of that 10, they thought 2 they could get at least seven. 3 getting eight and then eventually all 10. 4 5 They ended up CHIEF JUSTICE ROBERTS: Mr. Smith, I'm -- 6 JUSTICE KAGAN: So are you suggesting 7 that we should be looking for outliers or are 8 you suggesting that we should be trying to 9 filter out all manner of partisan 10 consideration, or is it someplace in between? 11 MR. SMITH: Your Honor, the word 12 "outlier" is probably an appropriate one. 13 Certainly, we don't think -- and we've followed 14 the lead of this Court in Justice Kennedy's 15 concurrence and other decisions of this Court 16 -- that all partisanship is unconstitutional. 17 What you need is a method by which the 18 extreme gerrymander, the one that is 19 fundamentally anti-democratic and is going to 20 last for the full decade, can be identified and 21 -- and held unconstitutional. 22 that's the only thing we're asking you to do 23 here. And that -­ 24 JUSTICE GORSUCH: So, Mr. Smith, what 25 is the formula that achieves that? Because the Heritage Reporting Corporation Official 51 1 court below didn't rely on efficiency gap 2 entirely. 3 symmetry test. 4 my steak rub. 5 few other little ingredients, but I'm not going 6 to tell you how much of each. 7 It looked also at the partisan It reminds me a little bit of I like some turmeric, I like a And so what's this Court supposed to 8 do? A pinch of this, a pinch of that? Or are 9 we supposed to actually specify it's going to 10 be the Chief Justice's formula of the 11 efficiency gap of 7 percent for the country? 12 Is that what you're asking us to do? 13 it that you want us to constitutionalize? 14 MR. SMITH: What is Well, Your Honor, the 15 first thing I want to make clear is -- is that 16 symmetry is what's being measured by the 17 efficiency gap, by the other two tests that I 18 mentioned. 19 substantive -­ 20 21 Symmetry is the underlying JUSTICE GORSUCH: Well, but there are different tests for measuring symmetry -­ 22 MR. SMITH: Right. 23 JUSTICE GORSUCH: 24 MR. SMITH: 25 JUSTICE GORSUCH: Right. -- right? There are. There is the test Heritage Reporting Corporation Official 52 1 you previously proposed. Now there is the 2 efficiency gap test. 3 both and said a little bit -- a pinch this and 4 a pinch of that -­ And the Court relied on 5 MR. SMITH: Right. 6 JUSTICE GORSUCH: -- and we're not 7 telling you how much of each. 8 MR. SMITH: 9 JUSTICE GORSUCH: So -­ Well, I think it's fair -­ -- so that doesn't 10 seem very fair to the states to me, to -- to -­ 11 to know how to -- what they're supposed to do 12 to avoid the kind of litigation we're talking 13 about. 14 itself, and tell me if I'm wrong, that it would 15 yield about a third of all the districts in the 16 country winding up in court. 17 MR. SMITH: 18 JUSTICE GORSUCH: As I understand the efficiency gap test Not true. Not true. Now, that's what the 19 other side says. 20 and tell me what test you'd have this Court 21 adopt. 22 So tell me where that's wrong MR. SMITH: Well, first of all, I -- I 23 would go with the -- the screens that Justice 24 Breyer mentioned, the first one being it has to 25 be a one-party state. That one-third figure Heritage Reporting Corporation Official 53 1 they keep throwing around ignores the fact that 2 a number of those maps were drawn either by 3 commissions or by courts or by divided 4 legislatures. 5 And so they get -- those all get taken 6 off the table from the very beginning. 7 have a one-party state, you then have to 8 measure whether it's unusually asymmetrical, 9 pretty extreme, and we -­ 10 JUSTICE GORSUCH: 11 How? If you I am still stuck on Justice Breyer's question. 12 MR. SMITH: You can use the -- you can 13 use any of those three tests that were all 14 applied here. 15 JUSTICE GORSUCH: 16 MR. SMITH: 17 JUSTICE GORSUCH: 18 19 20 Any of them? Yes. Any -- any of the three? MR. SMITH: And if they don't -- I -­ I would suggest you apply all of them, and -­ 21 JUSTICE GORSUCH: 22 MR. SMITH: All of them? -- if they disagree, that 23 would -- that would tell you maybe this isn't 24 the right case to be holding something 25 unconstitutional. That might be a fly in the Heritage Reporting Corporation Official 54 1 ointment. 2 -- 3 4 But the court below did not set the JUSTICE ALITO: Excuse me. Isn't it true that -­ 5 MR. SMITH: -- the line -- I'm sorry. 6 JUSTICE ALITO: Just on that, isn't it 7 true that you could -- you can get very high 8 levels of -- very high EG based on factors that 9 have nothing to do with gerrymandering? The -­ 10 the political geography can lead to it; 11 protection of incumbents, which has been said 12 to be a legitimate factor, can lead to a high 13 EG; compliance with the Voting Rights Act can 14 affect that? 15 MR. SMITH: Certainly, there are 16 various factors that -- that -- other than 17 partisan bias that can lead you to draw a map 18 that does not have a zero EG. 19 In our test, with the intents 20 requirement, the effects requirement, and the 21 justification requirement, all of those 22 problems are taken care of either at the intent 23 stage or at the justification stage. 24 25 JUSTICE ALITO: How are they taken care of at the justification stage? The Heritage Reporting Corporation Official 55 1 proposal is to run many -- you know, millions 2 of -- of alternative maps to see whether using 3 some traditional districting requirements, you 4 can produce a map that has a lower -- a lower 5 EG. 6 done, those maps do not take into account 7 either incumbent protection or compliance with 8 the Voting Rights Act, both of which can have a 9 very big effect. 10 11 But my understanding is that when that's It's just one of the dozens of uncertainties about this whole process. MR. SMITH: Actually, they do -- they 12 do take into account the Voting Rights Act. 13 The Chen study that was discussed in one of the 14 amicus briefs and is discussed somewhat in the 15 merits briefs here, where they -- he produced 16 200 randomly generated maps of Wisconsin using 17 all the state's traditional criteria, he 18 started with the minority districts that were 19 already drawn by the state in Act 43 and kept 20 those in place. 21 And so then he generated -- randomly 22 generated maps, and he found that the degree of 23 bias created by the political geography in 24 Wisconsin is minute, modest, a little bit, 25 something -- just like what the District Court Heritage Reporting Corporation Official 56 1 found, maybe 1 or 2 percent, not even remotely 2 like what they have in the map. 3 JUSTICE KAGAN: And so -­ Would it be fair to 4 require plaintiffs to provide those maps, many, 5 many of them, so that one can tell whether the 6 actual map is an outlier? 7 MR. SMITH: Well, I think in -- in the 8 cases going forward after this -- these 9 technologies are there, they will be in the 10 record in almost every case. 11 state of the art. 12 It has become the Whether it ought to be something that 13 the plaintiffs have to produce as part of their 14 initial case, I'd have to think about it. 15 certainly could be done that way. 16 It There are -- as the Lander brief and 17 the -- and a couple of other briefs and -- and 18 the -- the political geographers' brief all 19 show, people who have developed a capacity for 20 generating random maps that teach you a lot of 21 lessons about the effects of neutral criteria 22 -- of where people live and allow you to say 23 that has nothing to do with the degree of bias 24 that we have here. 25 a part of how these cases are decided at the And I think it will become Heritage Reporting Corporation Official 57 1 justification stage. 2 evidence of intent or of -- of how severe the 3 effects are. 4 It may also become It can be useful in a whole variety of 5 ways. 6 stepped up to the challenge. 7 Now that, again, social science has JUSTICE KAGAN: So, for an example, 8 that becomes a way to filter out the effects of 9 geography from the effects of partisan 10 11 advantage? MR. SMITH: Yes, Your Honor. I would 12 say that at the remedy stage, if they -- if 13 they come back with a remedy map that matches 14 the sort of neutral geography, even if it's 15 somewhat favorable to the -- the party that's 16 in charge, that should be okay. 17 have to go to zero just to -- at the remedy 18 stage, but they have to come up with something 19 much less extreme than their intentional 20 gerrymandering, one that basically makes 21 democracy no longer function because, 22 basically, gerrymanders now are not your 23 father's gerrymander. 24 really serious incursions on democracy if this 25 Court doesn't do something. They don't These are going to be And this is really Heritage Reporting Corporation Official 58 1 the last opportunity before we see this huge 2 festival of new extreme gerrymanders all done 3 along the model of Wisconsin but probably even 4 more serious. 5 I -- I would commend the political 6 scientists' brief, which talk about the 7 revolution in data analytics that has happened 8 since this map was drawn. 9 people coming in and -- and slicing and dicing 10 a very polarized electorate to the point where 11 one -- one-party control will be guaranteed. 12 That's going to become the norm. 13 any one-party state, if you don't do it that 14 way, they're going to say, you know, that's 15 malpractice. 16 Wisconsin did? 17 You're going to see Indeed, in Why aren't you doing what JUSTICE GINSBURG: Mr. Smith, will you 18 clarify what you mean by one-party state? 19 Here, we know that the maps were drawn by the 20 Republicans and every -- everybody else was 21 excluded, even some Republicans were excluded. 22 But suppose the legislature has a 23 Republican majority, but there are Democrats, 24 say it's 60/40, 40 percent Democrat, and the 25 redistricting is done by the legislature. Heritage Reporting Corporation Does Official 59 1 -- does that count? 2 one party? 3 MR. SMITH: Would you count that as I do, Your Honor. I think 4 if there's a majority, one party has a majority 5 in both houses of the legislature and the 6 governorship, the fact that there -- there are 7 some representatives of the other party in a 8 minority status would not negate the 9 possibility that the thing was -­ 10 JUSTICE GORSUCH: Mr. Smith, is that a 11 -- is that a republican form of government 12 claim? 13 MR. SMITH: I think it's a First 14 Amendment claim and an equal protection claim. 15 I -- I'm not going to try to revive the 16 republican form of government clause at this 17 late stage of -­ 18 19 JUSTICE GORSUCH: Isn't that -- isn't that exactly what you're trying to do, though? 20 MR. SMITH: No. 21 JUSTICE GORSUCH: You're saying it's a 22 one-party rule and that would violate a 23 republican form of government guarantee. 24 Wouldn't that be the more specific 25 constitutional provision to look to, rather Heritage Reporting Corporation Official 60 1 than the generic equal protection clause? 2 MR. SMITH: Well, I -­ 3 JUSTICE GORSUCH: For that matter, 4 maybe we can just for a second talk about the 5 arcane matter, the Constitution. 6 And where exactly do we get authority 7 to revise state legislative lines? When -­ 8 when the Constitution authorizes the federal 9 government to step in on state -- state 10 legislative matters, it's pretty clear. 11 look at the Fifteenth Amendment, you look at 12 the Nineteenth Amendment, the Twenty-Sixth 13 Amendment, and even the Fourteenth Amendment, 14 Section 2, says Congress has the power, when 15 state legislators don't provide the right to 16 vote equally, to dilute congressional 17 representation. 18 indications in the Constitution itself that 19 maybe we ought to be cautious about stepping in 20 here? 21 If you Aren't those all textual MR. SMITH: Well, I don't think 22 there's anything unusual about using the First 23 Amendment and the Fourteenth Amendment to 24 regulate the abusive management of state 25 elections by state government. That's what the Heritage Reporting Corporation Official 61 1 Court has been doing. 2 3 JUSTICE GINSBURG: Where did one-person/one-vote come from? 4 MR. SMITH: That's what Reynolds 5 versus Sims and Baker versus Carr did and a 6 number of other cases that have followed along 7 since. 8 conceivably regulate this problem under the 9 Fourteenth Amendment does not mean that the 10 And the fact that Congress could Court should not. 11 There's a number of cases, the term 12 limits case, Cook versus Gralike, where 13 Congress could have used the elections clause 14 to fix a problem, but the Court said, well, in 15 the absence of Congressional action, we're -­ 16 we're going to regulate an abusive, a misuse of 17 the power to run federal elections, and in this 18 case, it's state elections, you'd have to rely 19 on, Congress would have to rely on Section 5 of 20 the Fourteenth Amendment, and maybe they could 21 in theory, but this is a problem which -­ 22 JUSTICE GORSUCH: Do you see any 23 impediment to Congress acting in this this 24 area? 25 MR. SMITH: Other than the fact that Heritage Reporting Corporation Official 62 1 politicians are never going to fix 2 gerrymandering. They like gerrymandering. 3 (Laughter.) 4 MR. SMITH: This is -- the problem in 5 this area is if you don't do it, it's locked 6 up. 7 the ballot without the legislature's consent. 8 And that's true in most of the states that 9 don't have commissions now. The voters of Wisconsin can't get it on 10 And so you have -- we're here telling 11 you you are the only institution in the United 12 States that can do -- that can solve this 13 problem just as democracy is about to get worse 14 because of the way gerrymandering is getting so 15 much worse. 16 JUSTICE ALITO: You -- you paint a 17 very dire picture about gerrymandering and its 18 effects, but I was struck by something in the 19 seminal article by your expert, Mr. McGhee, and 20 he says there, "I show that the effects of 21 party control on bias are small and decay 22 rapidly, suggesting that redistricting is at 23 best a blunt tool for promoting partisan 24 interests." 25 So he was wrong in that. He's right Heritage Reporting Corporation Official 63 1 with the EG. 2 he's wrong in that. 3 That's the Rosetta Stone, but MR. SMITH: Your Honor, I'd have to 4 see what that sentence is saying in context. 5 I'm quite confident Mr. McGhee does not think 6 that redistricting is not a -- is a non-problem 7 or that -­ 8 9 JUSTICE ALITO: said. 10 11 MR. SMITH: is a non-problem. 12 13 14 15 16 17 18 19 20 Well, that's what he -- or that gerrymandering Thank you, Your Honor. CHIEF JUSTICE ROBERTS: Thank you, Mr. Smith. Mr. Tseytlin, you have five minutes remaining. REBUTTAL ARGUMENT BY MISHA TSEYTLIN ON BEHALF OF APPELLANTS MR. TSEYTLIN: I'd like to begin by answering Justice Kennedy's question. A facially discriminatory law in a 21 state would violate the First Amendment because 22 it would stigmatize that party. 23 this Court's cases could not be clearer that 24 when you have neutral lines -- neutrally, 25 facially neutral lines, the question is not of This case -­ Heritage Reporting Corporation Official 64 1 partisan intent, because there will always be 2 partisan intent. 3 The question is have the Plaintiffs 4 presented a -- a burden on representational 5 rights based upon a limited, precise, 6 judicially amenable standard. 7 nothing new presented to this Court. 8 There has been Basically, what the Plaintiffs have 9 done here is they've taken Professor King's 10 amicus brief from LULAC, they have taken the 11 exact same central concept, partisan asymmetry, 12 and they've recycled it here. 13 new before this Court. 14 There is nothing Second, we've heard something about 15 the various tests that they're now proposing. 16 There was only one test that was subjected to 17 adversarial scrutiny in this case, in a 18 four-day trial. 19 proved so fatally flawed that the District 20 Court rejected it as the test and Plaintiffs 21 abandoned it as the primary test on appeal. 22 That efficiency gap test And then my final point about the 23 scare tactics, about what will happen next. 24 Plaintiff's expert did a comprehensive study 25 from 1972 at the -- when the Baker Heritage Reporting Corporation Official 65 1 redistricting had happened, to 2014. 2 and you can look at that study. 3 that study is on Supplemental Appendix 227. 4 The chart on It shows that the asymmetry was worse, 5 was worse in 1972 than in 2014. 6 going to have scare tactics. 7 going to have partisan intent. 8 9 And he -­ You're always You're always We have not had any advancement in terms of what has been presented to this Court 10 since LULAC, where this Court properly 11 criticized partisan asymmetry as not a neutral 12 standard that has uniform acceptance. 13 And we are asking for those reasons 14 for this Court to reverse the District Court. 15 Thank you, Your Honors. 16 17 18 19 CHIEF JUSTICE ROBERTS: counsel. Thank you, The case is submitted. (Whereupon, at 11:03 a.m., the hearing was concluded.) 20 21 22 23 24 25 Heritage Reporting Corporation 66 Official � 1 1 [1] 56:1 10 [12] 7:23 8:3 16:15 29:10 39:2, 10,11 45:3 49:23,25 50:1,3 10:04 [2] 1:14 3:2 11:03 [1] 65:18 16-1161 [1] 3:4 17 [3] 7:21,23 8:3 18 [1] 2:8 1972 [2] 64:25 65:5 2 2 [4] 33:19 38:24 56:1 60:14 20 [2] 39:10 49:24 200 [2] 43:15 55:16 2004 [1] 48:10 2014 [3] 43:4 65:1,5 2017 [2] 1:10 44:23 2020 [1] 39:22 227 [1] 65:3 230 [1] 46:4 235 [1] 7:19 abusive [2] 60:24 61:16 acceptance [1] 65:12 accepted [1] 41:11 access [1] 6:22 account [4] 20:8 29:2 55:6,12 accountability [1] 29:4 achieve [1] 34:5 achieved [1] 16:16 achieves [1] 50:25 across [2] 37:17 47:22 act [5] 10:8 54:13 55:8,12,19 acted [1] 3:13 acting [1] 61:23 action [1] 61:15 actual [1] 56:6 actually [10] 14:15 16:9 26:24 28: 24 29:21 39:6 46:20 48:7 51:9 55: 11 added [1] 19:4 addition [1] 47:24 additional [1] 33:23 address [1] 37:5 administer [1] 23:20 3 adopt [1] 52:21 advance [2] 30:14 39:8 3 [3] 1:10 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17:12 61:14 62:1 educational [1] 40:13 gorsuch [20] 22:4,9 23:13 24:2 50: [9] [1] exactly 4:8 11:15 13:22 32:13, flawed 64:19 24 51:20,23,25 52:6,9,18 53:10,15, effect [5] 21:19 32:7 35:12,17 55:9 22 36:14 41:21 59:19 60:6 flexible [1] 43:22 17,21 59:10,18,21 60:3 61:22 effective [1] 32:17 example [8] 4:22,25 5:6 6:1 15:24 flip [3] 48:6,11 49:16 [6] 12:9,10 16:14 45:8,9 48:20 effectively [3] 30:8,13 33:1 got [1] 17:6 37:2 57:7 flunks 13:5 effects [7] 54:20 56:21 57:3,8,9 62: excessive [1] 31:11 government [7] 28:9 39:9 59:11, fly [1] 53:25 18,20 16,23 60:9,25 excluded [2] 58:21,21 focus [2] 23:2 31:11 [1] 59:6 efficiency [11] 22:17 23:16 43:11 excuse [1] 54:3 governorship [1] folks 4:21 [1] 6:22 44:3 45:25 51:1,11,17 52:2,13 64: exercise [2] 5:12 24:19 grail follow [3] 19:18 31:6 37:2 18 gralike [1] 61:12 expected [1] 16:19 followed [2] 50:13 61:6 effort [3] 7:7 13:10 32:24 great [3] 14:18 44:1 47:16 [5] [1] expert 7:18,20 49:5 62:19 64: follows 31:7 eg [11] 12:12 14:3 37:22,23 38:15 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21:4,10,13,15 26:21 frame [1] 11:2 eliminates [1] 5:20 hard [2] 11:9 27:6 [1] 27:22 eliminating 49:21 fray [1] 45:14 harder [1] 21:5 faced [1] 17:6 elsewhere [2] 5:13 30:22 free [1] 30:7 harm [2] 10:8 38:9 facially [3] 27:1 63:20,25 enacting [1] 6:7 friend [1] 34:11 hazardous [1] 49:2 [9] [1] fact 20:6 25:14 26:2,8 38:15 53: full [2] 44:3 50:20 enacts 35:11 hear [2] 3:3 46:25 1 59:6 61:7,25 end [6] 12:4 29:16 34:5 39:11 43: fully [1] 27:8 heard [1] 64:14 17,17 factor [1] 54:12 function [1] 57:21 Heritage Reporting Corporation Sheet 3 districts - heard 69 Official � hearing [1] 65:18 height [1] 11:4 held [1] 50:21 help [1] 28:8 helpful [2] 22:11 36:14 helps [1] 4:4 high [3] 54:7,8,12 history [2] 41:12 47:22 hold [2] 3:23 20:1 holding [1] 53:24 holes [1] 16:4 holy [1] 6:22 home [1] 11:3 honor [30] 4:17 5:23 6:6 7:11 9:15 instance [2] 26:23 28:22 instead [2] 3:18 44:16 institution [1] 62:11 integrity [1] 38:9 intelligent [2] 37:18 38:2 intent [11] 20:23,24 21:4,18,19 22: 13:16 15:11,22 16:23 17:2,19 18: 12 25:7 29:23 32:5,23 33:18 34: 24 38:12,18 40:15 41:13 45:1 46: 15 50:11 51:14 57:11 59:3 63:3, 11 honors [1] 65:15 houses [1] 59:5 huge [1] 58:1 hypo [1] 19:9 hypothetical [7] 3:16 5:22 11:2 13:23 14:6 15:19 31:22 6 54:22 57:2 64:1,2 65:7 intentional [1] 57:19 intentionally [2] 7:7 20:25 intents [1] 54:19 interest [8] 4:14,23 10:15 11:6 26: 11,12 32:7 34:1 interests [4] 32:20 33:15 35:22 62: 24 interstate [1] 5:24 intervention [1] 45:12 intuitive [1] 46:17 involved [1] 17:14 involves [1] 31:17 isn't [10] 16:22 22:6 24:24 29:5 31: 3 53:23 54:3,6 59:18,18 issue [10] 4:6,10,11,18 7:12 10:24 11:9 30:17 33:5 35:4 issues [3] 30:25 37:19 40:10 itself [3] 22:2 52:14 60:18 I J idea [2] 34:12 46:17 identified [4] 7:21 18:23 24:1 50: jackman [1] 46:5 job [1] 47:19 join [1] 34:4 judge [1] 12:1 judges [2] 43:1 44:13 judicial [3] 15:12 39:21 45:12 judicially [2] 3:12 64:6 jump [2] 44:1,24 jurisdiction [3] 3:24 37:13,14 jurisdictional [1] 35:8 justice [119] 3:3,9 4:3 5:8,18,21 6: 20 identifies [1] 19:5 identify [2] 23:3 49:11 ignores [1] 53:1 illustrates [1] 30:10 immediately [1] 8:1 impair [1] 33:14 impaired [1] 32:21 impediment [1] 61:23 important [3] 10:24 37:9 48:1 impose [1] 42:13 impression [1] 14:14 inadequate [1] 43:8 inappropriate [1] 43:20 incentive [1] 24:18 including [2] 8:1 33:15 increase [1] 19:14 incumbent [1] 55:7 incumbents [1] 54:11 incursions [1] 57:24 indeed [2] 19:3 58:12 indefinite [1] 29:10 indications [1] 60:18 individual [1] 25:1 individual's [1] 32:1 individuals [1] 28:3 ingredients [1] 51:5 inherent [1] 25:8 inherently [2] 18:25 22:2 initial [1] 56:14 injure [1] 28:5 injury [6] 10:13 31:7,12,17 35:21, 21 inquiry [1] 13:24 insofar [1] 13:12 19:8 20:2 26:14 27:3,13,19 kennedy's [3] 35:6 50:14 63:19 kept [2] 17:11 55:19 key [1] 43:9 kind [7] 6:7 13:22 15:18 21:19 31: 17 48:4 52:12 king's [2] 13:25 64:9 L label [1] 41:9 lack [1] 3:23 laid [1] 45:7 lander [1] 56:16 lander's [1] 12:23 language [1] 38:17 last [2] 50:20 58:1 late [1] 59:17 later [1] 43:12 laughter [6] 6:4 13:15 41:7 44:21 22 living [2] 36:19 46:3 localized [1] 31:13 locked [2] 49:20 62:5 longer [2] 11:5 57:21 look [11] 7:17 12:14,25 21:3,10 33: 5 40:20 59:25 60:11,11 65:2 looked [2] 43:19 51:2 looking [2] 43:2 50:7 looks [1] 49:14 lose [1] 40:2 loses [1] 41:2 losing [1] 44:11 lost [1] 40:23 lot [8] 18:10 21:22 32:24 37:8 45:9 49:12,12 56:20 lower [3] 22:15 55:4,4 lulac [4] 13:25 19:4 64:10 65:10 M 45:4 62:3 launch [1] 8:13 law [11] 5:5 17:25 20:12 21:3,8 26: 16 28:15 33:20 35:2,11 63:20 lawful [1] 26:19 lay [1] 37:3 lead [5] 10:5 50:14 54:10,12,17 leading [1] 43:7 learn [2] 8:2,12 least [4] 19:20 20:22 41:16 50:2 leave [2] 9:5 45:18 leaving [1] 3:25 led [2] 5:6 21:19 left [1] 10:1 legal [2] 24:11 43:1 legislation [1] 28:3 legislative [4] 8:25 30:14 60:7,10 legislators [2] 14:14 60:15 legislators' [1] 18:6 legislature [16] 7:4 12:10 20:5,24 madison [4] 1:17 10:10 31:2 32: 21 main [1] 37:4 majorities [2] 15:6 29:20 majority [11] 10:12 12:10 29:13,21 40:24 41:2 48:19,20 58:23 59:4,4 malpractice [1] 58:15 man [2] 37:18 38:2 manageability [1] 15:13 manageable [12] 3:12 11:10,25 13:8,11 20:11,12,17 21:14 23:23 42:15 43:2 management [1] 60:24 mandated [1] 20:2 mandatory [1] 37:14 manner [1] 50:9 many [10] 7:4,8 19:9 22:20 32:15 44:8,10 55:1 56:4,5 2,24,25 8:16 9:24 10:19,20 11:8 map [39] 6:17,20 8:2 10:10 12:7 14: 14:12 15:17 16:1,25 17:11,21 18: 23:5 24:8,18 26:22 29:3 32:19 33: 7,8 16:7,14,16,21 17:8,12 23:7,8 1,4,5,16,21 19:8,21 20:2,10,16,19 24:22 30:7,12 36:7,23 39:7 40:17 12 40:25 41:3 58:22,25 59:5 21:2,12 22:4,7,9,10,22 23:13 24:2, legislature's [1] 62:7 41:15 42:7 44:14 47:5,10 48:4,6, 14 25:16,19 26:14 27:3,13,19 28: legislatures [8] 14:19 15:5,12,13, 11 49:6,11,14 54:17 55:4 56:2,6 6,12,22 29:7,24 30:4,16 31:5,20, 57:13 58:8 15 18:13 23:24 53:4 21 32:12 33:4 34:7,17 35:6,25 36: legitimate [2] 26:17 54:12 maps [30] 3:21 7:20,22,24,25,25 8: 1,2,3,11 37:1 38:13 40:7,8,19 41: less [6] 5:6 17:4 34:18 45:17 49:23 10 13:1,2 14:19 16:9,11,13 17:14, 8,20 42:10,18 44:22 45:2,6 46:9, 16,22 19:5 20:13 28:4 38:21 39:1 57:19 12,16 47:9,13,15 48:16 50:4,6,14, lesson [2] 8:5,11 46:4 53:2 55:2,6,16,22 56:4,20 58: 24 51:20,23,25 52:6,9,18,23 53:10, lessons [2] 8:3 56:21 19 11,15,17,21 54:3,6,24 56:3 57:7 matches [1] 57:13 levels [1] 54:8 58:17 59:10,18,21 60:3 61:2,22 matter [9] 1:12 3:22 23:19 24:7,11 likelihood [1] 48:1 62:16 63:8,12,19 65:16 27:2 40:5 60:3,5 likely [1] 34:14 justice's [2] 40:22 51:10 matters [2] 29:17 60:10 likes [1] 39:24 justiciability [1] 7:12 max-black [2] 7:2,10 limit [1] 45:12 justification [6] 13:6,7 54:21,23, max-republican [1] 7:9 limited [3] 6:19 30:20 64:5 25 57:1 limits [5] 33:20 46:10,10,11 61:12 maximize [3] 18:8 19:25 49:21 maximizing [1] 46:8 line [5] 47:7,11,14,23 54:5 K lines [6] 3:14 8:19 36:7 60:7 63:24, maximum [1] 19:14 kagan [16] 14:12 15:17 21:2 22:7 25 mcghee [4] 43:5 44:18 62:19 63:5 35:25 36:2,3,11 46:12,16 47:9,13, list [3] 7:23 8:3,12 mcghee's [1] 44:4 15 50:6 56:3 57:7 mean [13] 14:2 15:20 23:3,21 25:4 litigation [2] 22:14 52:12 kagan's [1] 18:5 little [10] 11:21 13:19 22:16,17 27: 26:2 27:17 29:9 32:18 42:12 48: keep [1] 53:1 17 58:18 61:9 6 30:18 51:3,5 52:3 55:24 kennedy [10] 4:3 5:18 6:2 10:20 live [5] 10:9 25:14 33:21 36:15 56: means [4] 28:20 29:8 35:15 42:1 Heritage Reporting Corporation Sheet 4 hearing - means 70 Official � meantime [1] 45:17 negate [1] 59:8 measure [8] 40:16 43:20,22 45:11, negatives [1] 15:15 23,23 48:1 53:8 neighbor [1] 34:11 measured [1] 51:16 neutral [10] 7:23 8:4,6,7 27:1 56: 21 57:14 63:24,25 65:11 measures [3] 43:6,7 47:16 measuring [2] 47:24 51:21 neutrally [1] 63:24 median-mean [1] 45:23 never [8] 3:11 21:10 39:24 41:11 48:11,18,23 62:1 members [3] 4:24 32:18,25 memory [1] 46:3 new [3] 58:2 64:7,13 mentioned [4] 42:18 48:21 51:18 next [5] 14:20 15:2 48:5,19 64:23 52:24 nineteenth [1] 60:12 merely [1] 3:18 nobody [1] 25:22 merits [4] 8:17 10:21 37:12 55:15 non-flippable [1] 49:7 method [3] 8:7 49:10 50:17 non-problem [2] 63:6,11 methods [1] 14:25 non-starter [1] 14:8 metric [1] 16:5 none [1] 47:17 metrics [5] 3:15 8:15 20:7 23:2,3 norm [1] 58:12 might [8] 4:22,25 28:18,19 32:6 45: north [1] 31:23 6 49:16 53:25 northern [1] 8:22 millions [1] 55:1 nothing [10] 10:13 11:20,20 13:14 25:12 26:6 54:9 56:23 64:7,12 milwaukee [5] 9:11,18,25 10:25 32:20 nullifies [1] 30:9 milwaukee's [1] 11:3 number [7] 19:14,25 20:6 47:20 53:2 61:6,11 minimis [3] 32:7,10,13 minor [1] 29:12 numbers [1] 23:17 minorities [1] 15:6 numerous [1] 44:4 minority [5] 29:11,12 33:23 55:18 59:8 minus [1] 37:24 minute [2] 8:18 55:24 minutes [2] 40:22 63:14 misha [5] 1:17 2:3,13 3:7 63:16 misuse [1] 61:16 mix [1] 19:4 model [1] 58:3 modest [1] 55:24 moment [1] 11:18 months [1] 49:19 morning [1] 3:4 most [7] 16:17,21 24:22 29:21 38: O obtain [1] 15:1 obtained [2] 44:15,17 october [1] 1:10 offered [1] 43:20 officials [2] 3:19 8:22 often [4] 6:10,14 14:21,22 ointment [1] 54:1 okay [8] 12:5,13,23 13:14 23:13 29: 9 37:20 57:16 one [52] 4:13 5:2 10:21 11:1 12:1,2, 17,24 15:2,24 16:8 17:8,22 20:7, 13 21:1 24:5 25:18,23 26:12 29: 11 31:25 32:25 33:8 36:4 37:2,11 25 46:2 62:8 38:6,22,23 39:8 42:18 44:13 45: [1] motive 13:6 ms [25] 18:18,21 19:16 20:4,15,18, 22 46:2,4,8 48:20 49:11,15,15 50: 12,18 52:24 55:9,13 56:5 57:20 20 21:3,21 22:4,5,24 23:21 24:4, 58:11 59:2,4 64:16 14 25:6,17,25 26:20 27:6,16,21 one-party [6] 52:25 53:7 58:11,13, 28:10,19 29:14 18 59:22 much [9] 14:3 18:13 22:21 40:17 one-person [1] 36:3 47:11 51:6 52:7 57:19 62:15 [1] murphy [28] 1:19 2:6 18:18,19,21 one-person/one-vote 61:3 [1] 52:25 one-third 19:16 20:4,15,18,20 21:3,21 22:4, [1] 5,24 23:21 24:4,14 25:6,17,25 26: one-vote 36:4 [1] 48:8 ones 20 27:6,16,21 28:10,19 29:14 [12] 4:21 10:6 14:20 15:2 19:3 must [6] 26:18,22,22 28:15,16 38: only 24:10 36:6,21 40:13 50:22 62:11 4 64:16 N opinion [3] 21:23,24 28:23 name [1] 47:11 opinions [3] 21:24,25,25 naturally [1] 37:7 opportunity [2] 37:5 58:1 nature [2] 31:7,8 opposition [1] 12:13 necessarily [1] 28:20 oral [7] 1:12 2:2,5,9 3:7 18:19 30:2 necessary [1] 34:14 order [6] 14:25 15:5,7 18:8 22:12 need [7] 22:12,20 23:14,15,16 41:9 23:19 50:17 other [29] 4:15 5:12 12:7,11,14 13: 6,7 14:25 19:18 20:6,14 21:1,5,7, needs [1] 39:14 22 25:24 32:25 34:15 38:22 47:25 50:15 51:5,17 52:19 54:16 56:17 59:7 61:6,25 ought [5] 35:4,23 42:4 56:12 60:19 out [17] 10:1 13:9 16:10 17:16 24: 15 25:3,18,21 32:8 34:14 35:6 37: 3 38:6 46:4 48:15 50:9 57:8 out-of-state [1] 5:20 outcome [1] 42:8 outcomes [1] 29:19 outlier [3] 12:22 50:12 56:6 outliers [1] 50:7 outlines [1] 44:4 outside [2] 10:18 32:11 over [11] 12:16 21:8 29:22 34:2 37: 25 38:5 47:10 48:5,6,12 49:16 overpopulated [3] 36:5,15,20 overriding [1] 19:13 own [5] 4:21 7:18 19:7 36:22 44:4 P packed [1] 33:10 page [2] 2:2 35:7 paint [1] 62:16 palatable [1] 38:14 paper [6] 43:5,5,16,18 44:19,20 parameters [1] 4:9 part [8] 4:13 10:23 33:8,9,25 34:2 21 38:22 person's [1] 33:15 perspective [1] 27:10 picture [1] 62:17 pinch [4] 51:8,8 52:3,4 place [3] 21:8 31:13 55:20 places [1] 32:24 plain [1] 7:20 plaintiff [4] 6:21 10:5,6 31:2 plaintiff's [4] 3:14 7:18,20 64:24 plaintiffs [11] 8:13 18:23 19:3 34: 23,25 49:9 56:4,13 64:3,8,20 plan [3] 7:3 16:10 25:20 please [5] 3:10 18:22 30:5 46:13, 14 plenty [2] 21:2 25:9 plurality [1] 21:25 plus [1] 38:1 point [10] 15:21 18:1 19:20 20:22 27:7 28:11,22 40:9 58:10 64:22 points [2] 16:5 24:5 poked [1] 16:4 polarized [2] 39:19 58:10 political [25] 3:24 6:10,21 11:12 12:8 18:25 19:1,7 26:3,9,13 28:7 30:23 32:9 40:1 41:11 42:6,12 43: 1 45:14,19 54:10 55:23 56:18 58: 5 56:13,25 politically [2] 3:13 28:17 partial [1] 31:15 politicians [3] 3:13 18:7 62:1 particular [3] 14:4 23:1 31:10 politics [5] 6:9 7:14 22:1 25:13 37: parties [4] 12:8 26:3 34:19 41:17 9 partisan [37] 8:5,9 12:6 16:12,13, polls [1] 18:10 16,17,25 17:17 19:6,19 20:8 22: population [1] 36:24 16 23:8,9,12 25:12 26:7 28:21 31: positive [2] 13:9 28:21 15 35:14 38:20 41:15 43:23,23 45: positives [2] 15:14 23:4 23 47:4 50:9 51:2 54:17 57:9 62: possibility [1] 59:9 23 64:1,2,11 65:7,11 possible [5] 7:5 10:10 19:12 30: partisanship [1] 50:16 11 47:23 party [45] 4:15,15,23 12:2,9,17 15: possibly [2] 6:16 13:11 7 19:7,15,15 20:13 21:20 25:23 power [5] 15:7 21:20 29:6 60:14 26:13,18,18 29:11 32:25,25 33:2 61:17 34:4,4,10,20 35:1,2,13 37:24,25, practical [1] 24:12 25 38:1 39:9 40:18,24,25 41:2 42: precious [2] 24:17,25 3,4 46:8 57:15 59:2,4,7 62:21 63: precise [1] 64:5 22 predictable [1] 39:19 pass [1] 30:7 predicted [1] 48:17 past [1] 29:22 predicting [1] 48:25 paul [3] 1:21 2:10 30:2 predictions [1] 48:17 pennsylvania [1] 48:6 predominate [1] 8:23 people [21] 5:13 10:24 17:13 25:9 preferred [1] 38:4 29:5,17 32:11 33:21 34:1,4,8,19 premise [1] 29:15 35:20,20 36:18 39:5 44:8,11 56: preordained [1] 24:22 19,22 58:9 presented [4] 47:17 64:4,7 65:9 percent [16] 12:9,17,18,18 22:19 presenting [1] 48:8 23:4 37:23 38:16 42:3,3,4,5 44:16 president [2] 42:21,23 51:11 56:1 58:24 pressuring [1] 9:4 percentage [2] 41:24,24 pretty [8] 5:9 14:15 15:20 16:20 41: perfectly [1] 20:17 5 47:11 53:9 60:10 period [1] 29:10 prevent [1] 32:25 permanent [1] 49:7 previously [4] 17:6 43:7,7 52:1 persistence [1] 13:22 primary [1] 64:21 persistent [1] 12:16 principle [5] 19:17 41:12 46:18,20, person [6] 6:18 16:8 36:4,21 37: 24 Heritage Reporting Corporation Sheet 5 meantime - principle 71 Official � principles [3] 17:9 18:3 19:13 prior [1] 8:1 probably [5] 9:17 19:8 27:24 50: range [1] 12:16 rapidly [1] 62:22 rather [3] 26:13 36:16 59:25 12 58:3 ratios [1] 3:16 problem [18] 5:20,25 7:10 22:6,17, react [1] 11:19 18 23:10 26:24 37:4,17 39:13,16, reaction [1] 42:17 22 61:8,14,21 62:4,13 read [2] 11:16,22 problems [4] 3:17 7:13 22:25 54: real [3] 13:2 22:18 39:13 22 reality [1] 26:3 really [10] 24:16 27:8,11 29:7 32:3 proceed [1] 37:7 39:15 40:5 45:12 57:24,25 process [4] 17:14 23:25 49:5 55: 10 reason [5] 4:17 14:4,9 35:13 40: 23 produce [2] 55:4 56:13 produced [1] 55:15 reasons [4] 17:7 26:6 34:9 65:13 produces [1] 29:3 rebuttal [2] 2:12 63:16 professor [3] 13:25 46:5 64:9 recognize [1] 14:2 projections [1] 3:16 record [2] 15:25 56:10 promoting [1] 62:23 recycled [1] 64:12 properly [1] 65:10 redistricting [7] 8:14 12:3 39:1 58:25 62:22 63:6 65:1 proportional [5] 41:10,14,21,22, 25 redrawn [1] 47:5 proportions [1] 48:14 reducing [2] 11:24 49:22 proposal [1] 55:1 reflect [1] 26:9 proposed [1] 52:1 regard [2] 13:21 14:10 proposing [1] 64:15 region [1] 33:21 protect [1] 39:25 regulate [3] 60:24 61:8,16 protection [8] 4:10 27:4,15,24 54: rejected [1] 64:20 11 55:7 59:14 60:1 relationship [1] 6:1 prove [1] 16:22 relative [1] 43:21 proved [1] 64:19 relatively [1] 41:17 proven [2] 18:11 20:9 reliably [1] 30:12 provide [3] 22:22 56:4 60:15 relied [1] 52:2 provision [1] 59:25 rely [4] 18:10 51:1 61:18,19 public [2] 3:19 42:17 remaining [1] 63:15 publishes [2] 43:4,5 remedy [4] 39:22 57:12,13,17 punished [1] 35:2 reminds [1] 51:3 purpose [3] 21:1 35:11,17 remotely [2] 42:2 56:1 purposes [2] 21:1 32:3 reno [1] 31:10 pursuant [1] 40:12 replicate [1] 39:11 pushed [3] 46:10,10,11 representation [6] 41:10,14,21, 23 42:1 60:17 put [6] 9:1,3 10:8 16:3 26:4 42:8 putting [1] 23:24 representational [2] 35:18 64:4 representatives [2] 34:13 59:7 Q republican [9] 4:25 7:8 9:3 24:21 question [24] 4:1 6:25 8:19 12:15 42:21 58:23 59:11,16,23 18:5 19:22 22:10,22 26:15 27:11, 16,20 40:23 42:11 44:24,25 45:3 46:7,19,21 53:11 63:19,25 64:3 questions [5] 13:11 23:14 44:3,5, 23 quite [5] 11:13 12:12 26:1,25 63:5 republicans [11] 5:1,6 8:23 19:25 29:20 32:16 37:16 38:5 48:23 58: 20,21 require [1] 56:4 required [1] 20:5 requirement [5] 17:24 26:21 54: 20,20,21 R [1] 55:3 requirements [7] race 6:9 7:1,15 31:12 33:5 34:3 [2] 43:4,16 researcher 48:25 resemblance [1] 7:6 races [1] 26:2 [1] [6] racial 6:18 30:20,21 31:9,18 38: reserve 18:14 [1] 26:4 resources 23 [4] 9:6 12:22 23:22 29:14 respect racially [1] 6:11 respond [1] 13:13 raise [4] 5:17 9:8,12 30:24 respondents [1] 4:5 raised [3] 6:14 37:8,10 response [2] 13:12 38:19 [1] raises 7:13 responses [1] 25:7 random [1] 56:20 responsiveness [2] 43:8,19 randomly [2] 55:16,21 rest [1] 18:13 result [6] 19:15 24:21,22 25:1,11 33:10 results [1] 15:1 reverse [1] 65:14 revise [1] 60:7 revive [1] 59:15 revolution [2] 8:14 58:7 reynolds [2] 36:10 61:4 rights [5] 35:18 54:13 55:8,12 64:5 road [1] 15:3 roadsides [2] 9:2,4 roberts [19] 3:3 5:8 9:24 18:16 29: seeming [1] 40:1 seems [8] 5:16 15:4 20:16 32:13, 21 38:14 40:25 47:10 seen [1] 39:24 seminal [1] 62:19 senate [3] 1:20 2:7 18:20 sense [1] 28:2 sensitivity [3] 14:24 48:3 49:4 sentence [1] 63:4 serious [7] 38:9 39:15,16 45:13,18 57:24 58:4 set [2] 22:18 54:1 24 30:16 31:21 34:7,17 36:1 37:1 seven [1] 50:2 38:13 40:8 41:8,20 48:16 50:4 63: severe [1] 57:2 12 65:16 shall [1] 19:11 shape [1] 23:16 room [1] 49:20 shaw [1] 31:9 rosetta [2] 43:10 63:1 shift [1] 3:18 rough [1] 41:16 show [2] 56:19 62:20 roughly [1] 23:4 showing [1] 6:17 rub [1] 51:4 shown [1] 43:19 rule [3] 11:3 30:19 59:22 shows [3] 10:13 12:19 65:4 ruling [1] 38:15 side [1] 52:19 run [2] 55:1 61:17 sigma [3] 37:24,24,25 runner [1] 44:17 sign [3] 10:22,22 31:22 running [1] 24:15 significantly [1] 17:4 S signs [5] 9:1,3,7 31:24 32:17 s-curve [2] 12:19 16:17 simply [3] 8:6 40:12 42:2 same [12] 6:20 7:9,13 15:8 16:6 31: sims [1] 61:5 16 32:13,22 36:14 41:23 46:1 64: since [8] 19:4 36:9,25 42:24,25 58: 11 satisfied [1] 35:4 satisfies [1] 19:23 saying [10] 22:1 24:9 26:17 28:4, 17 35:24 43:18 46:9 59:21 63:4 says [12] 12:1 19:10,17 20:13 25:1 28:15 42:2 43:6 44:18 52:19 60: 14 62:20 scale [1] 42:9 scare [2] 64:23 65:6 scenario [1] 20:21 scheme [1] 25:8 scholars [2] 43:1,1 scholarship [1] 44:2 science [7] 3:15 8:15 11:11,22 16: 5 42:12 57:5 scientific [4] 15:20,24 18:9,11 scientist [1] 16:3 scientists [3] 42:6 43:2 45:20 scientists' [1] 58:6 screen [2] 6:18,21 screens [1] 52:23 scrutiny [1] 64:17 seat [1] 3:16 seats [6] 19:25 29:13 41:18,24 42: 4,5 second [6] 8:11 13:19 14:13 46:21 60:4 64:14 seconds [1] 11:15 section [4] 33:19 38:24 60:14 61: 19 see [9] 7:16 9:23 10:4 12:14 55:2 58:1,8 61:22 63:4 seem [2] 41:4 52:10 8 61:7 65:10 single [6] 4:20 6:19 14:2,3 16:5 48: 25 situation [2] 31:12 33:21 situations [1] 33:17 size [1] 23:16 slicing [1] 58:9 small [2] 48:5 62:21 smith [63] 1:21 2:10 30:1,2,4 31:5 32:5,23 33:18 34:16,22 35:25 36: 1,8,13 37:1 38:12,18 40:7,15 41: 13,22 42:10 44:25 45:5 46:12,14 47:8,12,15 49:3 50:4,11,24 51:14, 22,24 52:5,8,17,22 53:12,16,19,22 54:5,15 55:11 56:7 57:11 58:17 59:3,10,13,20 60:2,21 61:4,25 62: 4 63:3,10,13 so-called [1] 7:2 social [8] 3:14 8:15 11:11,22 16:3, 5 45:20 57:5 society [1] 25:4 sociological [1] 40:14 solicitor [1] 1:17 solve [3] 3:17 5:24 62:12 solved [1] 26:24 somebody [3] 13:1 31:24 47:3 someone [3] 9:21 10:17,17 someplace [2] 8:22 50:10 sometimes [3] 21:5 26:12 34:8 somewhat [2] 55:14 57:15 sophisticated [2] 15:9 39:17 sorry [4] 9:25 16:1 46:13 54:5 sort [4] 5:4 11:2 12:18 57:14 sotomayor [9] 6:24 16:1 17:11,21 Heritage Reporting Corporation Sheet 6 principles - sotomayor 72 Official � 18:1 28:6,12 29:7 46:9 stuck [1] 53:11 studied [2] 7:20 46:5 study [4] 55:13 64:24 65:2,3 stuff [2] 11:23,23 subject [2] 22:14 46:23 subjected [1] 64:16 subjecting [1] 35:12 submitted [2] 13:24 65:17 substantive [3] 45:10 46:19 51:19 subtracting [1] 44:15 success [1] 18:9 suffer [1] 36:19 sufficiently [2] 32:9 42:16 suggest [2] 24:4 53:20 suggested [2] 14:1 23:1 suggesting [4] 15:18 50:6,8 62: 2 27:14 33:22 46:6 47:3 59:4 60: 22 61:11 therefore [2] 32:19 47:23 they've [3] 29:20 64:9,12 thinking [2] 14:20,21 third [3] 13:17,21 52:15 thorough [1] 34:25 though [3] 29:11 49:24 59:19 thousands [2] 12:25 13:1 three [8] 16:11,12 42:20,22 45:21 47:16 53:13,18 three-judge [1] 42:19 threshold [2] 3:22 47:6 threw [1] 17:16 59:17 throughout [1] 5:15 throw [1] 13:9 standard [10] 18:24 20:11,12,17 22 21:14 42:14 43:3,14 64:6 65:12 throwing [2] 40:11 53:1 suggestion [1] 14:1 thumb [1] 42:8 standards [5] 3:12 11:10 15:13 22:15 45:15 suit [1] 43:13 tinkered [2] 49:25,25 supplemental [2] 7:19 65:3 together [2] 6:15 34:5 standing [21] 4:5 8:19 9:7,12,16 10:1,3 27:11,17,20 30:17 31:6 32: support [1] 34:20 tolerate [1] 19:2 3,10 33:3,20 34:23 35:4 36:2,5,21 supporters [1] 35:1 tool [1] 62:23 suppose [6] 4:7 8:21 10:22 19:9 town [2] 8:21 9:4 start [1] 23:9 33:15 58:22 towns [1] 32:15 started [3] 16:10 24:9 55:18 supposed [5] 23:6 24:10 51:7,9 traditional [10] 17:9,14,15 18:3 19: starting [1] 24:5 12,23 24:6 28:16 55:3,17 state [47] 1:19 2:7 4:13 5:13,15,19 52:11 10:23 13:23 17:25 18:20 19:10,10 supreme [3] 1:1,13 38:4 translate [1] 41:18 20:3 22:12 23:19 26:16 28:13 30: suspect [2] 7:14 13:8 treat [1] 12:7 6,11,22 31:4 33:2,6,8,9,22 34:1,2 swing [2] 48:5 49:12 treatment [1] 35:13 35:2,11 36:7 38:7 39:9 52:25 53:7 symmetry [14] 8:6 22:17 23:2,9 41: treats [1] 41:16 55:19 56:11 58:13,18 60:7,9,9,15, 15 42:5 43:8,18 46:17 47:4 51:3, trial [1] 64:18 24,25 61:18 63:21 16,18,21 tries [1] 16:15 troubling [1] 17:5 state's [1] 55:17 sympathetic [1] 11:13 state-wide [1] 32:2 system [5] 4:21 28:9,25 32:14 39: true [9] 4:4 17:10 36:8 47:12 52:17, 17 54:4,7 62:8 4 stated [1] 5:21 try [3] 18:8 24:2 59:15 statement [1] 35:8 systematic [1] 32:24 trying [3] 49:20 50:8 59:19 states [6] 1:1,13 46:3 52:10 62:8, systematically [1] 49:22 12 tseytlin [25] 1:17 2:3,13 3:6,7,9 4: T 16 5:23 6:5 7:11 9:14 10:2 11:1 statewide [6] 3:15,24 6:22 30:25 table [1] 53:6 13:16 15:11,22 16:23 17:2,18,23 34:21 39:1 tactics [2] 64:23 65:6 18:2,12 63:14,16,18 statistics [1] 49:1 talked [2] 10:23 13:19 status [2] 38:9 59:8 tuesday [1] 1:10 [1] statute [6] 19:10 20:21 21:4,10,13, targeted 35:19 turmeric [1] 51:4 [1] 18:25 task 16 turn [1] 13:11 teach [1] 56:20 steak [1] 51:4 turned [2] 6:18,20 technicalities [1] 13:10 step [3] 12:1,6 60:9 turns [1] 7:12 technique [1] 49:3 stepped [2] 45:20 57:6 twenty-sixth [1] 60:12 techniques [3] 15:8 18:6,7 stepping [1] 60:19 two [14] 8:2 12:6 17:7 23:14,15 33: technologies [1] 56:9 17 40:21 41:16 42:20,21 44:8 45: steps [1] 14:2 technology [1] 14:18 10 49:20 51:17 stereotypical [1] 34:18 term [1] 61:11 stereotyping [2] 34:3,8 two-sentence [1] 35:9 terms [3] 29:3 41:17 65:9 stigmatize [1] 63:22 U test [12] 13:5 19:5 51:3,25 52:2,13, [4] still 4:19 6:6 41:3 53:10 [1] 19:17 20 54:19 64:16,18,20,21 ultimate stone [2] 43:10 63:1 ultimately [1] 6:13 tested [2] 44:2 49:9 stop [1] 14:13 [1] 10:6 unanswered [1] 44:5 testified [1] straightforward 5:10 [2] 10:5,7 uncertainties [1] 55:10 testimony strategy [1] 32:18 [3] 14:25 48:3 49:4 unconstitutional [7] 17:1 22:3 testing street [2] 37:19 38:2 27:22 28:18 50:16,21 53:25 tests [6] 23:1 48:8 51:17,21 53:13 strength [1] 32:2 64:15 uncontested [2] 25:22 26:2 striking [1] 7:22 uncovered [1] 3:11 texas [3] 5:1,5,7 strong [2] 4:6,15 under [7] 10:10 14:7,14 38:22,23, textual [1] 60:17 strongly [2] 4:5 26:12 [2] 44:5 61:21 24 61:8 theory struck [1] 62:18 [12] 4:4 5:16 6:17 20:23 26: underlying [1] 51:18 there's [1] structural 5:25 sotoymayor [1] 16:25 sound [1] 38:16 sounds [2] 40:21 41:20 south [1] 31:25 southern [1] 10:23 specific [1] 59:24 specifically [1] 28:4 specify [1] 51:9 spend [1] 11:15 spent [1] 49:18 stack [2] 24:18 29:9 stacked [1] 29:16 stage [7] 54:23,23,25 57:1,12,18 underpopulated [1] 36:16 understand [8] 11:13 21:6,7 29:2, 5,8 31:20 52:13 understanding [1] 55:5 undisputed [1] 17:13 unequivocal [1] 48:12 unfair [1] 40:17 uniform [1] 65:12 united [4] 1:1,13 46:3 62:11 unprecedented [1] 48:14 unusual [1] 60:22 unusually [1] 53:8 up [12] 9:1,3 31:23 44:17 45:21 48: 15 49:24 50:2 52:16 57:6,18 62:6 useful [1] 57:4 using [5] 24:21 30:7 55:2,16 60:22 V vague [1] 4:23 valid [1] 43:22 valuable [1] 29:4 value [1] 28:7 values [2] 28:21 29:3 variety [2] 34:9 57:4 various [2] 54:16 64:15 versus [4] 3:5 61:5,5,12 vieth [10] 17:7,10 28:23 35:7 45:6 47:18,18 48:7,21 49:17 view [1] 34:14 viewpoint [1] 28:2 views [1] 35:14 violate [2] 59:22 63:21 violating [1] 46:24 violation [7] 20:9 27:4,5,24 28:1 31:8 47:4 virtue [1] 47:16 vote [22] 3:15 4:19,21 9:19,20,21 12:10 24:17,19,25 25:17 29:17,21 31:2 32:2 33:19 34:9,19 36:19 38: 23 40:6 60:16 voted [2] 44:9,11 voter [5] 9:11 10:14 24:19 32:20 33:7 voters [9] 9:10,17,18,25 29:1 35: 12 40:3,4 62:6 voters' [1] 35:18 votes [20] 12:16 19:4,14 29:12,13 31:2,18 37:24,25 38:1,1 40:24 41: 3,18,25 43:21 44:15,16,17 48:15 voting [7] 14:17 25:10 31:4 48:5 54:13 55:8,12 W wait walk [1] 22:21 wants [1] 33:8 washington [3] 1:9,19,21 wasted [4] 19:4 37:24,25 43:21 way [23] 5:16,21 7:16 11:24 16:8 [1] 9:24 23:11 24:18 25:18 26:18 28:5 29: 1 31:3 36:9,25 39:3 42:7,20 45:11 49:16 56:15 57:8 58:14 62:14 ways [5] 38:22 45:21 46:22,22 57: 5 Heritage Reporting Corporation Sheet 7 sotomayor - ways Official � 73 weak [1] 4:15 whereas [1] 18:14 whereupon [1] 65:18 whether [8] 12:19 24:20 37:15 40: 6 53:8 55:2 56:5,12 white [1] 35:8 whitford [2] 1:6 3:5 who's [1] 30:14 whole [4] 30:25 40:9 55:10 57:4 wide [1] 34:9 will [16] 6:14 15:1 25:18 32:18,21 37:7,10,11,14,21 56:9,24 58:11,17 64:1,23 william [1] 1:6 win [5] 25:24 37:16,16,20,22 winding [1] 52:16 winner [1] 44:16 winning [1] 44:9 wins [1] 40:24 wisconsin [21] 1:17,19 2:7 4:25 8: 1,22 10:16,17,18 18:20 25:19 29: 19 30:11 31:23 35:3 40:5 55:16, 24 58:3,16 62:6 wisconsinites [1] 10:15 wish [5] 11:19,19 13:12,13,13 within [2] 37:13 41:16 without [2] 41:4 62:7 won [4] 29:20,21 48:9,24 word [2] 31:16 50:11 words [2] 12:7,14 work [2] 34:5 39:5 workable [1] 18:24 worked [2] 16:18,18 world [3] 14:17 20:5 47:2 worry [3] 15:12,14,15 worse [4] 62:13,15 65:4,5 worst [4] 7:21,22 13:3 46:4 worth [1] 23:15 Y year [2] 43:12 49:15 years [12] 7:1,21 15:2 23:14 29:10, � 22 39:2,10,10,12 42:24 43:15 yield [1] 52:15 young [2] 43:4,16 Z zero [2] 54:18 57:17 Heritage Reporting Corporation Sheet 8 weak - zero