00:00What's the limit on that in terms of your answer to Justice Sotomayor, 50%, 40%, 30%
00:09and what kind of guidance do you think we could give because one of the legitimate concerns
00:17of your brief and the amicus briefs are to give clearer guidance.
00:22What do you think the limit is on taking the political considerations into account in fashioning
00:28a remedial district that substantially addresses the violation?
00:34Well I think one of the limits, Justice Kavanaugh, is numerical, right?
00:37I mean in Shaw 2 the court said that a 20% overlap was insufficient.
00:41In LULAC, you know, less than 50% was insufficient.
00:44Here we're in the neighborhood of 70% so I think as a numerical matter that's going to
00:48be one pretty clear guidepost for the lower courts on how closely a state is approximating
00:55the illustrative map.
00:56And I think the other thing is just to really assess why the state deviated from the baseline
01:01map.
01:02And I think that's one of the things where I don't know that there's any dispute in this
01:05case on both sides why we didn't adopt SB 4, we adopted SB 8.
01:10The sole reason in Senator Womack's own statements is SB 8 was the only map that would protect
01:15our high profile incumbents.
01:17So the rule I think you want is political considerations are fine to take into account
01:21in doing the map, the second map in 50s, kind of a floor on that.
01:29I think so.
01:30I mean this court has never spelled out what substantially addresses means as a numerical
01:34matter and to my mind if I'm between 60 and 80% I think that's substantial but obviously
01:39a judgment call for this court.
01:42Ms. Stewart?
01:43I just want to be sure I understand your question to Justice Alito.
01:46Justice Alito asked you, you know, if the Robinson decision was patently wrong could
01:50it still be a good reason?
01:52And you said, well, you know, if it was patently wrong, no, but we were obeying the federal
01:58court orders, this wasn't patently wrong.
02:00What is the point at which, because it's an odd situation, right, where the later district
02:03court has to essentially take as preclusive the earlier district court's determination
02:08of the Section 2 violation, right?
02:10But it's not entirely preclusive because you left room for the later court to say well
02:16that was patently wrong so we're not going to follow it.
02:19What is the line?
02:21I think there are two ways in which it's not automatically preclusive, Justice Barrett.
02:23I think the first is regardless of what the earlier court decisions say when the state
02:28acts, it has to substantially address the baseline violation.
02:32So that's one way in which if we fail to do that, if we adopted an SB 8 map that had only
02:3620% overlap with the Robinson illustratives, then that's one way in which the VRA decisions
02:41are not preclusive here.
02:42We lose this case.
02:43I think the other way, and I think this is what your question was getting at, is that
02:48in the wildly wrong case, you know, I think we just can't, we can't dispute that there
02:54may be some case where objectively on both sides of the aisle, everybody agrees that
02:59the court just got the law on the facts wrong.
03:01I think that's a case we have to give up and we're happy to give it up.
03:04But barring that case, when a federal court, two federal courts, tell a state what the
03:09law requires, to me that means that there should be a very, very high bar in this court's
03:14precedence for second guessing what those federal courts say.
03:18And I think you just leave that hypothetical out there as a potential odd case that may
03:22never arise, but we acknowledge that, you know, it is out there.
03:25I mean, is it also because of the position that it puts the state in here?
03:29I mean, it's not just a matter of your obedience to the federal court order, which I appreciate,
03:33you know, you would be obedient to the federal court order, but it's also that if you had
03:37continued to litigate the Robinson, if you had continued to litigate in Robinson, you
03:42risked having the court imposed map.
03:44And so it's really your litigation risk that's part of the calculus here.
03:48That's one risk, Your Honor.
03:49I think it's both litigation risk and political risk.
03:51Because remember, if you look at page 601 of the Fifth Circuit's decision, they say
03:54now that we have affirmed the district court on the merits, we don't doubt that the legislature
03:59might want to take this opportunity to draw a new map now.
04:02And here's a deadline, January 15th, 2024.
04:05You call that litigation risk, you can call that political risk, whatever it is, it's
04:08forcing the state to make a call.
04:10It's wrapped up together.
04:11Yeah, that's correct.
04:12So if you lose, then you risk that the district court's going to impose a map on you.
04:16That's exactly right, Justice Breyer.
04:17Okay.
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