1 00:00:00,000 --> 00:00:08,680 What all that might look like, and if you have some idea, is there a way to streamline it, 2 00:00:08,680 --> 00:00:13,720 is there, what are some of the ways that if we get to that point, we might want to think 3 00:00:13,720 --> 00:00:15,760 about handling it at that stage? 4 00:00:15,760 --> 00:00:19,920 Yes, Your Honor, and if the court decides to go down the gerrymandering route, whether 5 00:00:19,920 --> 00:00:25,000 it's partisan or anti-competitive or both, I think the structure that the court has already 6 00:00:25,000 --> 00:00:29,960 set up in designating two panels to adjudicate what I understand to be very different claims. 7 00:00:29,960 --> 00:00:34,520 But related, obviously, you know, our claim, you know, we've already established that 8 00:00:34,520 --> 00:00:40,360 our claim has, you know, well-worn, we've seen from other states. 9 00:00:40,360 --> 00:00:44,200 And I don't take a position on the anti-competitive gerrymandering claim, which I understand to 10 00:00:44,200 --> 00:00:46,960 be a novel claim under Wisconsin law. 11 00:00:46,960 --> 00:00:51,200 But I do think that two different panels can adjudicate those claims as a matter of liability 12 00:00:51,200 --> 00:00:56,280 if it turns out that the map is deemed either a partisan gerrymander or an anti-competitive 13 00:00:56,280 --> 00:00:57,880 gerrymander or both. 14 00:00:57,880 --> 00:01:02,280 I think at that point, either this court or those courts can decide to consolidate for 15 00:01:02,280 --> 00:01:07,040 purposes of remedy so that we're not having dueling remedy maps for the state of Wisconsin. 16 00:01:07,040 --> 00:01:12,280 Let me ask you about that, because if I understood your answer to Justice Crawford's question 17 00:01:12,280 --> 00:01:15,760 and to Justice Dallas' questions about the remedy and who would draw the maps, you said 18 00:01:15,760 --> 00:01:18,760 the three judge panels would. 19 00:01:18,760 --> 00:01:20,320 You can see where I'm going, right? 20 00:01:20,320 --> 00:01:27,680 We could end up with two maps, and that seems like a bad idea. 21 00:01:27,680 --> 00:01:32,160 And that's the existing structure, I think, is a function of having two different courts 22 00:01:32,160 --> 00:01:34,560 appointed for two different claims. 23 00:01:34,560 --> 00:01:39,520 How would we get those, how would you said either the three judge panels could draw the 24 00:01:39,520 --> 00:01:40,520 maps or we could? 25 00:01:40,520 --> 00:01:44,800 How would we get the maps back at that point? 26 00:01:44,800 --> 00:01:48,920 How would the remedy come back to us? 27 00:01:48,920 --> 00:01:53,400 Well the remedy could come back to you on appeal from either court, from any court. 28 00:01:53,400 --> 00:01:54,400 That has to happen. 29 00:01:55,400 --> 00:01:56,640 Yeah, that would have to happen. 30 00:01:56,640 --> 00:02:00,800 But at the same time, this court is certainly within its purview and certainly within this 31 00:02:00,800 --> 00:02:02,960 court experience to adjudicate the remedy itself. 32 00:02:02,960 --> 00:02:06,120 It did so in Johnson, it was prepared to do so in Clark. 33 00:02:06,120 --> 00:02:08,800 If the court decides that that's the route it wants to take. 34 00:02:08,800 --> 00:02:13,120 The kind of complexity that comes from the fact of having two different panels adjudicating 35 00:02:13,120 --> 00:02:17,200 two different claims, your honor absolutely is correct to point out, well then what if 36 00:02:17,200 --> 00:02:20,680 we end up with two different remedies that we then have to kind of pick between or adjudicate? 37 00:02:21,240 --> 00:02:24,560 That wasn't what happened in Clark or Johnson because those were only in front of us. 38 00:02:24,560 --> 00:02:27,560 They weren't going back to a three judge panel. 39 00:02:27,560 --> 00:02:30,800 Those were very different. 40 00:02:30,800 --> 00:02:32,560 Those are postured completely differently. 41 00:02:32,560 --> 00:02:39,160 Well both Johnson and Clark contemplated that the remedy phase of which map do we select 42 00:02:39,160 --> 00:02:41,360 would happen before this court. 43 00:02:41,360 --> 00:02:45,360 And I believe this court has the authority to say, yeah, that's what we do. 44 00:02:45,360 --> 00:02:48,800 We certainly can do that in the context of the separation of powers claim and it could 45 00:02:48,800 --> 00:02:52,640 even decide to do that in the context of a gerrymandering claim down the line. 46 00:02:52,640 --> 00:03:00,600 If the court instead decides to give the remedy phase over to the circuit court as well then 47 00:03:00,600 --> 00:03:06,760 I think this court has other tools at disposal to manage the docket to make sure that perhaps 48 00:03:06,760 --> 00:03:12,200 this case is below are consolidated for purposes of remedy and coming to a single map that resolves 49 00:03:12,200 --> 00:03:14,600 whatever the outstanding liability is at that point. 50 00:03:14,600 --> 00:03:18,000 Can they be consolidated though prior to remedy? 51 00:03:18,000 --> 00:03:24,480 Doesn't this court under 80501 have the authority to do that and would you agree that they're 52 00:03:24,480 --> 00:03:26,680 related claims? 53 00:03:26,680 --> 00:03:30,840 Absolutely this court has the authority to consolidate and to manage the docket. 54 00:03:30,840 --> 00:03:32,720 I don't think they necessarily have to be. 55 00:03:32,720 --> 00:03:37,640 They are related because they are both challenging the same map. 56 00:03:37,640 --> 00:03:41,160 I don't want to speak to the anti-competitive gerrymandering claims since I understand 57 00:03:41,160 --> 00:03:45,000 it to be a novel claim that is not already entrenched in it. 58 00:03:45,000 --> 00:03:47,800 Regardless of the claim, we're looking at similar evidence. 59 00:03:47,800 --> 00:03:53,440 You're making similar accusations about the 2011 maps and whether they are extreme partisan 60 00:03:53,440 --> 00:04:00,240 gerrymanders or extreme anti-competitive, those things both would seem to relate to 61 00:04:00,240 --> 00:04:01,840 one another. 62 00:04:01,840 --> 00:04:05,280 Absolutely your honor and it is well within this court's purview to decide to consolidate. 63 00:04:05,280 --> 00:04:10,000 We of course envision our claim and I don't have a position on how similar a different 64 00:04:10,000 --> 00:04:11,560 their claim is to ours. 65 00:04:11,560 --> 00:04:14,920 We understand the kinds of evidence that we would want to bring and we think would be 66 00:04:14,920 --> 00:04:18,760 relevant to a partisan gerrymandering claim based on established law. 67 00:04:18,760 --> 00:04:22,680 So I don't want to necessarily intertwine the two not having enough information about 68 00:04:22,680 --> 00:04:26,720 how that would work but certainly this court has the authority to do that whenever there's 69 00:04:26,720 --> 00:04:28,840 multiple challenges to the same map. 70 00:04:28,840 --> 00:04:36,240 And council I understand that you didn't brief the other or haven't argued the other case 71 00:04:36,240 --> 00:04:42,760 but it sounds like your position is that those two claims are not incompatible in the 72 00:04:42,760 --> 00:04:47,360 sense that it's either one or the other but they could be both. 73 00:04:47,360 --> 00:04:48,360 Is that correct? 74 00:04:48,360 --> 00:04:53,000 That is my understanding of that claim is that it's not necessarily incompatible with 75 00:04:53,000 --> 00:04:54,800 a partisan gerrymandering claim. 76 00:04:54,800 --> 00:04:59,120 A partisan gerrymander could also be an anti-competitive gerrymander. 77 00:04:59,120 --> 00:05:03,840 A district can be competitive in a primary or a general so I think there are many ways 78 00:05:03,840 --> 00:05:07,720 to slice that so that they're not fundamentally at odds with one another. 79 00:05:07,720 --> 00:05:08,720 Okay. 80 00:05:08,720 --> 00:05:09,720 Go ahead. 81 00:05:09,720 --> 00:05:10,720 Okay. 82 00:05:10,720 --> 00:05:11,720 Thank you. 83 00:05:11,720 --> 00:05:21,280 In terms of the burden of proof or the standard that's being applied here is the lower court 84 00:05:21,280 --> 00:05:29,600 going to have to make a determination as to the statewide map for these congressional 85 00:05:29,600 --> 00:05:34,920 districts or is it going to be obliged to look district by district and make findings 86 00:05:34,920 --> 00:05:37,720 as to each separate congressional district. 87 00:05:37,720 --> 00:05:39,520 How is that supposed to work? 88 00:05:39,520 --> 00:05:44,040 So I think the traditional way is for the district by district approach in terms of liability 89 00:05:44,040 --> 00:05:48,000 to decide that certain districts are configured in a way that is a what we would argue is 90 00:05:48,000 --> 00:05:53,000 a partisan gerrymander but in making that determination the court can consider statewide 91 00:05:53,000 --> 00:05:54,000 evidence. 92 00:05:54,000 --> 00:05:55,000 Thank you. 93 00:05:55,360 --> 00:06:01,400 Part of the problem here is we're kind of, I don't mean to be disparaging but making 94 00:06:01,400 --> 00:06:03,880 it up on the fly here. 95 00:06:03,880 --> 00:06:09,280 And I'm interested in the law here. 96 00:06:09,280 --> 00:06:14,840 I mean I read your briefs and obviously there's a lot of discussion here about mechanics and 97 00:06:14,840 --> 00:06:16,320 remedy and those sorts of things. 98 00:06:16,320 --> 00:06:21,320 I want you to put aside the separation of powers argument for a minute and just focus 99 00:06:21,360 --> 00:06:23,000 on this. 100 00:06:23,000 --> 00:06:30,200 Could you, your argument on why this is actually a thing which it hasn't been for 170 years 101 00:06:30,200 --> 00:06:36,720 ago and I rejected it explicitly on the same grounds in Johnson when we did ask the parties 102 00:06:36,720 --> 00:06:38,440 to brief every legal claim. 103 00:06:38,440 --> 00:06:43,080 We did ask whether we should consider partisan impact and we explicitly held that there is 104 00:06:43,080 --> 00:06:49,920 no legal basis for this claim but your argument is a little like we got some free government, 105 00:06:49,960 --> 00:06:54,000 we got some free press, we got freedom of the assembly, sprinkle in a little bit of salt 106 00:06:54,000 --> 00:07:01,560 and pepper and you know equal, we're all inherently equal, ergo districts can't be favored one 107 00:07:01,560 --> 00:07:06,200 party over the other too much which means I don't know what, nobody really knows what 108 00:07:06,200 --> 00:07:07,200 that means. 109 00:07:07,200 --> 00:07:09,760 I don't know how it fits with the next case. 110 00:07:09,760 --> 00:07:15,080 Help me out walk me through as precisely as you can, your logic from something on the 111 00:07:15,080 --> 00:07:21,800 law that gets me to a test that's based something on the law that is actually supposed 112 00:07:21,800 --> 00:07:28,040 to be adjudicated or dealt with below as opposed to just, it sounds a lot like this is unfair, 113 00:07:28,040 --> 00:07:32,800 please stop unfair things, bad things are happening, constitution must stop that, you 114 00:07:32,800 --> 00:07:36,120 know, please stop in court and stop bad things from happening. 115 00:07:36,120 --> 00:07:38,240 Help me see why that's not what's going on here. 116 00:07:38,240 --> 00:07:42,640 So your honor, I'll start with the language in Clark as it specifically held from a majority 117 00:07:42,680 --> 00:07:47,680 of this court that partisan gerrymandering remains an important and an unresolved area 118 00:07:47,680 --> 00:07:49,120 of Wisconsin law. 119 00:07:49,120 --> 00:07:54,120 So what we are asking is the court to resolve it and in resolving it, it can look at the 120 00:07:54,120 --> 00:07:59,840 various provisions of article one that we have pointed to, all of which center on democratic 121 00:07:59,840 --> 00:08:05,200 self-governance and equality under the law, that is antithetical to the idea that politicians 122 00:08:05,200 --> 00:08:10,200 get to choose their voters or that the deck is stacked with a thumb on the scale or a 123 00:08:10,240 --> 00:08:15,680 fist on the scale in favor of one party over another to the arbitrary disadvantage of the 124 00:08:15,680 --> 00:08:17,240 disfavored party. 125 00:08:17,240 --> 00:08:22,000 At this test that the courts would apply is exactly the test that other courts have 126 00:08:22,000 --> 00:08:25,160 deemed, have seen fit to apply and been able to apply. 127 00:08:25,160 --> 00:08:29,680 The fact that there is not a bright line rule that says as a binary, this is a partisan 128 00:08:29,680 --> 00:08:34,720 gerrymander and this is not, is not unique to the partisan gerrymandering context. 129 00:08:34,720 --> 00:08:39,400 Courts adjudicate the protection context frankly in the undue burden context all the time, 130 00:08:39,400 --> 00:08:44,040 when does something amount to a violation because it is just too much and I litigate 131 00:08:44,040 --> 00:08:48,920 undue burden claims all the time and that is a really just, it's always a weighing of 132 00:08:48,920 --> 00:08:54,240 the facts and it's always a judicial determination of making some of those hard calls in the absence 133 00:08:54,240 --> 00:08:58,440 of bright line rules but those are the exact time questions and answers that this court 134 00:08:58,440 --> 00:09:01,560 and all courts are equipped to make and they do it every day. 135 00:09:01,560 --> 00:09:08,120 So do you think that, you think taking, having partisan motivations is fine with drawing 136 00:09:08,120 --> 00:09:12,440 maps as long as it's just not too effective? 137 00:09:12,440 --> 00:09:16,720 I mean, so let's just go back to, for example, our Johnson litigation. 138 00:09:16,720 --> 00:09:21,000 We asked for submissions from a variety of different parties and let me submit to you 139 00:09:21,000 --> 00:09:25,520 that every map we got had a lot of partisan motivations behind it within the least changed 140 00:09:25,520 --> 00:09:27,120 principle we announced. 141 00:09:27,120 --> 00:09:30,880 Pretty clear that Governor Revers map, for example, was trying to make district one much 142 00:09:30,880 --> 00:09:35,200 more democratic than had been before within the limits and the congressmen submitted map 143 00:09:35,200 --> 00:09:40,120 that was trying to do some things and up north and district three. 144 00:09:40,120 --> 00:09:43,680 So whether I'm right or wrong on that, just file a track with me for a moment. 145 00:09:43,680 --> 00:09:46,320 There clearly were partisan motivations behind it. 146 00:09:46,320 --> 00:09:52,760 Is that fine as long as the whole map just isn't too democratic or too republican and 147 00:09:52,760 --> 00:09:56,480 why is that the standard that derives somewhere from the law? 148 00:09:56,480 --> 00:10:01,360 Because the law basically, the fact, the law recognizes that partisan actors, political 149 00:10:01,360 --> 00:10:03,440 actors will have political motives. 150 00:10:03,840 --> 00:10:07,720 It specifically says that judicial actors will not and cannot and need to make clear 151 00:10:07,720 --> 00:10:11,080 to make certain to not veer down that path. 152 00:10:11,080 --> 00:10:15,160 But when the law does recognize that political actors will have political motives and it 153 00:10:15,160 --> 00:10:19,760 doesn't sever the political actors from the redistricting process for that reason. 154 00:10:19,760 --> 00:10:24,160 But in allowing, in disallowing for extreme partisan gerrymandering, what it says is, 155 00:10:24,160 --> 00:10:26,200 we cannot allow those political motives. 156 00:10:26,200 --> 00:10:29,920 Specifically, this court looks at the free government provision, for instance. 157 00:10:30,000 --> 00:10:36,360 The idea of temperance and moderation cannot allow the self interest of those 158 00:10:36,360 --> 00:10:41,360 in power to essentially be at the expense of the citizens. 159 00:10:41,360 --> 00:10:45,240 Such that it is essentially canceling out the majority will and 160 00:10:45,240 --> 00:10:48,200 not being responsive to the vote of the citizens in the end. 161 00:10:48,200 --> 00:10:52,360 I want to roll up just on the intent portion of your intent effects test that 162 00:10:52,360 --> 00:10:54,360 you're that potentially disgusting. 163 00:10:54,360 --> 00:10:59,040 I know you have the other one subordinating the traditional redistricting principles. 164 00:11:00,920 --> 00:11:06,240 So you seem to be making two different arguments on what this court did. 165 00:11:06,240 --> 00:11:11,360 One, you're complaining from a separation of powers perspective that we blindly 166 00:11:11,360 --> 00:11:16,000 adopted a 2011 map without regard to what went into that map. 167 00:11:16,000 --> 00:11:18,240 And that was problematic. 168 00:11:18,240 --> 00:11:22,800 And then you're also arguing at the same time that this court, 169 00:11:22,800 --> 00:11:25,920 with regard to the partisan gerrymandering claim, 170 00:11:25,920 --> 00:11:30,400 actually had all the intentions of the 2011 map, 171 00:11:30,400 --> 00:11:34,000 which we didn't consider or say anywhere in our opinion. 172 00:11:34,000 --> 00:11:38,160 We didn't actually have evidence before us about what went into the 2011 map. 173 00:11:38,160 --> 00:11:41,520 But you're saying we borrowed that, so which is it? 174 00:11:41,520 --> 00:11:43,880 I think they're saying the same thing, Your Honor, 175 00:11:43,880 --> 00:11:47,040 that in adopting the 2011 map through the least changed principle and 176 00:11:47,040 --> 00:11:49,640 refusing to look at the partisan effects of that map, 177 00:11:49,640 --> 00:11:55,640 this court blindly deferred to a legally defunct principle based on a legally 178 00:11:55,640 --> 00:11:58,680 defunct principle that this court said was unlawful in Clark and 179 00:11:58,680 --> 00:12:00,120 outside the bounds of the judicial role. 180 00:12:00,120 --> 00:12:01,320 That's not what intent means. 181 00:12:01,320 --> 00:12:04,200 Intent means what you intend to do, want to do, right? 182 00:12:04,200 --> 00:12:07,000 So you might be arguing that was the effect of it. 183 00:12:07,000 --> 00:12:11,400 But what you're arguing is that Justice Dalit, 184 00:12:11,400 --> 00:12:15,960 Chief Justice Krowski and myself, who were in the majority adopting that, 185 00:12:15,960 --> 00:12:20,280 and I know a couple of my colleagues dissented from the underlying principle of least change. 186 00:12:20,280 --> 00:12:26,440 When you're arguing that our intent in that case was actually to adopt 187 00:12:26,440 --> 00:12:29,880 all of the partisan motivations in the 2011 map when we did that, 188 00:12:29,880 --> 00:12:31,640 is that the principle you're suggesting to us? 189 00:12:31,640 --> 00:12:35,320 I think the intent in that case, which is spelled out in this court's Johnson opinion, 190 00:12:35,320 --> 00:12:38,840 was to adopt the 2011 map and everything that went into and 191 00:12:38,840 --> 00:12:41,640 resulted from it without the other considerations. 192 00:12:41,640 --> 00:12:42,360 That's not what we said. 193 00:12:42,360 --> 00:12:44,440 We actually said what our motivation was. 194 00:12:44,440 --> 00:12:48,600 We didn't say our motivation was partisan interest at all. 195 00:12:48,600 --> 00:12:50,680 In fact, we said exactly the opposite. 196 00:12:50,680 --> 00:12:55,080 So how could possibly you satisfy an intent test 197 00:12:55,080 --> 00:13:01,960 that we had an intention to make a map that was overly sympathetic to Republicans 198 00:13:01,960 --> 00:13:05,640 when, in fact, we said we were not looking at that at all. 199 00:13:05,640 --> 00:13:08,920 We said what our intent was in that opinion. 200 00:13:08,920 --> 00:13:12,760 Right, and I'm not suggesting that the court had some nefarious intent, 201 00:13:12,760 --> 00:13:14,680 but the court said exactly what it said in this opinion, 202 00:13:14,680 --> 00:13:21,960 which is our intent, is to calcify in place whatever happened in 2011 with that map. 203 00:13:21,960 --> 00:13:27,480 The inputs, the outputs, the effects, with blind deference to all of that, 204 00:13:27,480 --> 00:13:31,000 we are essentially channeling that in, funneling that in, 205 00:13:31,000 --> 00:13:36,120 and adopting all of that as much as we possibly can to a 95% degree of certainty 206 00:13:36,120 --> 00:13:36,840 going forward. 207 00:13:36,840 --> 00:13:38,280 But not partisan motivation. 208 00:13:38,280 --> 00:13:40,200 That's not what the word intent means. 209 00:13:40,200 --> 00:13:44,520 Like in any kind of intent, you're looking at what did they mean to do? 210 00:13:44,520 --> 00:13:46,360 What were they considering? 211 00:13:46,360 --> 00:13:49,720 I understand your consideration at the practical effect of that 212 00:13:49,720 --> 00:13:53,960 is deferring to the political judgments that went into that in 2011, 213 00:13:53,960 --> 00:13:59,320 which my understanding was more or less an effort to keep the incumbents in power. 214 00:13:59,320 --> 00:14:01,720 Maybe now we can, you know, who knows? 215 00:14:01,720 --> 00:14:06,280 I don't know what all the details of that are, but whatever that was, 216 00:14:06,280 --> 00:14:07,320 that wasn't before us. 217 00:14:07,320 --> 00:14:10,520 We didn't have that before us when we were dealing with that. 218 00:14:10,520 --> 00:14:14,520 The word intent means you meant to do something. 219 00:14:14,520 --> 00:14:17,000 And what we, we said what we meant to do. 220 00:14:17,000 --> 00:14:21,240 We said we don't mean to do anything for partisan advantage. 221 00:14:21,240 --> 00:14:25,640 In fact, we mean to exclude that entirely from our consideration. 222 00:14:25,640 --> 00:14:29,880 So you can't meet an intent effects test when this court adopt, 223 00:14:29,880 --> 00:14:31,640 if we're looking at what this court meant to do, 224 00:14:31,640 --> 00:14:34,920 when this court said we're not in considering partisan motivation. 225 00:14:34,920 --> 00:14:37,400 There go, we weren't intending to do that. 226 00:14:37,480 --> 00:14:39,320 Respectfully, Your Honor, I think that's in Clark, 227 00:14:39,320 --> 00:14:41,080 this court made clear that that's actually not, 228 00:14:41,080 --> 00:14:43,640 that when the court did what it did, 229 00:14:43,640 --> 00:14:46,600 did what it intended to do, which was adopt wholesale, 230 00:14:46,600 --> 00:14:51,720 that previous map, it erred in not considering all of the inputs 231 00:14:51,720 --> 00:14:53,240 and the effects of that map. 232 00:14:53,240 --> 00:14:55,640 And that not necessarily that it was, you know, 233 00:14:56,760 --> 00:14:58,920 linking arms with all of the map drawers, 234 00:14:58,920 --> 00:15:02,440 but that in blindly deferring to that map, 235 00:15:02,440 --> 00:15:05,640 it therefore channeled, channeled in that entire process, 236 00:15:05,640 --> 00:15:06,920 both intent and the effects. 237 00:15:06,920 --> 00:15:08,760 Council, we're banking in. 238 00:15:08,760 --> 00:15:10,360 Let me just, I just want to follow up. 239 00:15:10,360 --> 00:15:13,080 I mean, essentially what least change is, 240 00:15:13,640 --> 00:15:16,760 is least change says we are going to bake in 241 00:15:16,760 --> 00:15:22,120 whatever the political motivations were of that 2011 legislature. 242 00:15:22,680 --> 00:15:25,240 And we're going to bake it in for perpetuity. 243 00:15:25,240 --> 00:15:28,440 If it's least changed from the 2011 maps, 244 00:15:28,440 --> 00:15:32,840 and we continue to follow least change in 2021, 245 00:15:32,840 --> 00:15:35,640 and in 2031, and 2041, and 2051, 246 00:15:35,640 --> 00:15:41,400 it all links back to what happened in 2011. 247 00:15:41,400 --> 00:15:42,360 Correct, Your Honor. 248 00:15:42,360 --> 00:15:43,960 Let me ask you some questions. 249 00:15:45,560 --> 00:15:48,040 I just had, can I ask one question on least change? 250 00:15:48,040 --> 00:15:49,480 I was not here at the time. 251 00:15:50,360 --> 00:15:51,640 I was adopted. 252 00:15:51,640 --> 00:15:54,680 But when we're doing constitutional interpretation, 253 00:15:54,680 --> 00:15:56,520 looking at constitutional harm, 254 00:15:56,520 --> 00:15:58,840 we're looking at the words of the Constitution, 255 00:15:58,840 --> 00:16:00,520 we're looking at history, precedent. 256 00:16:01,320 --> 00:16:03,960 Where does this least change come from? 257 00:16:03,960 --> 00:16:06,520 Because I've tried to find it somewhere, 258 00:16:07,160 --> 00:16:13,880 and I cannot find it in Wisconsin constitutional jurisprudence. 259 00:16:13,880 --> 00:16:16,920 Do you know where that comes from? 260 00:16:17,640 --> 00:16:20,360 I think this Court held in Clark that it doesn't come from anywhere. 261 00:16:20,360 --> 00:16:24,280 It is an extra constitutional concept 262 00:16:24,280 --> 00:16:26,360 that cannot be allowed to supersede 263 00:16:26,360 --> 00:16:29,080 the actual constitutional requirements for redistricting. 264 00:16:29,080 --> 00:16:31,480 And that's why Clark struck down least change. 265 00:16:31,480 --> 00:16:33,800 I understand that my interveners, 266 00:16:34,120 --> 00:16:39,400 are here to argue against Clark and argue for least change. 267 00:16:39,400 --> 00:16:41,320 But that issue has already been resolved 268 00:16:41,320 --> 00:16:42,760 by binding precedent at this Court, 269 00:16:42,760 --> 00:16:45,480 and all we ask is for this Court to apply that precedent 270 00:16:45,480 --> 00:16:47,320 to the ongoing maps that continue, 271 00:16:47,320 --> 00:16:49,960 that Wisconsin voters continue to vote on in future elections. 272 00:16:50,680 --> 00:16:52,600 Let me ask you some questions. 273 00:16:56,760 --> 00:16:59,000 We talked about, we've talked about a lot of things, 274 00:16:59,000 --> 00:17:00,520 so let me direct you to, 275 00:17:01,240 --> 00:17:03,480 we talked about this case going back for fact finding. 276 00:17:03,960 --> 00:17:05,560 To the three judge panel. 277 00:17:07,000 --> 00:17:10,680 I just want to ask some questions about some of that fact finding. 278 00:17:11,720 --> 00:17:13,960 How is a Court supposed to know, 279 00:17:13,960 --> 00:17:16,840 and these concerns were brought up in Johnson and Juan, 280 00:17:16,840 --> 00:17:20,840 these concerns are laid out in the Rucho majority. 281 00:17:22,040 --> 00:17:22,840 Am I saying that right? 282 00:17:23,480 --> 00:17:24,840 Do we say Rucho, Rucho? 283 00:17:24,840 --> 00:17:26,120 Rucho, Rucho, okay. 284 00:17:26,120 --> 00:17:27,240 All right, and Kayla. 285 00:17:27,240 --> 00:17:28,200 I don't know him either, so. 286 00:17:28,200 --> 00:17:28,680 Be clear. 287 00:17:29,640 --> 00:17:32,520 How do we know, 288 00:17:34,280 --> 00:17:35,800 so these concerns were laid out in Johnson and Juan, 289 00:17:35,800 --> 00:17:37,720 and they were laid out in the Rucho majority, 290 00:17:37,720 --> 00:17:39,880 and they've been laid out in other cases. 291 00:17:40,520 --> 00:17:41,800 And their questions are like, 292 00:17:41,800 --> 00:17:44,360 how do you know when a map is too partisan? 293 00:17:44,360 --> 00:17:48,120 How do you know when it has crossed the line 294 00:17:48,120 --> 00:17:51,880 of going from constitutional to unconstitutional? 295 00:17:52,440 --> 00:17:56,360 So, Your Honor, I've litigated partisan gerrymandering cases 296 00:17:56,360 --> 00:17:57,640 in other states, 297 00:17:57,640 --> 00:17:59,480 and some of the most probative evidence 298 00:17:59,480 --> 00:18:03,160 comes from the expert analyses of the maps themselves. 299 00:18:03,160 --> 00:18:05,640 And I'll specifically point to two kinds of evidence 300 00:18:05,640 --> 00:18:07,320 that we have often seen. 301 00:18:07,320 --> 00:18:09,480 One is the efficiency gap analysis, 302 00:18:09,480 --> 00:18:12,440 which I know this was born in Wisconsin, 303 00:18:13,000 --> 00:18:15,080 which really looks at the extent to which 304 00:18:15,080 --> 00:18:19,560 the map wastes votes of one party versus another, 305 00:18:19,560 --> 00:18:23,080 which courts have deemed a really reliable 306 00:18:23,560 --> 00:18:27,160 way of determining how extreme is this 307 00:18:27,160 --> 00:18:29,240 compared to previous Wisconsin maps 308 00:18:29,240 --> 00:18:31,080 and maps across the country. 309 00:18:31,080 --> 00:18:33,240 How far down the scale? 310 00:18:33,240 --> 00:18:35,400 Are we talking about efficiency gap of seven? 311 00:18:35,400 --> 00:18:37,880 Are we talking about an efficiency gap of 35? 312 00:18:37,880 --> 00:18:40,120 And that I think has been a really useful metric 313 00:18:40,120 --> 00:18:41,080 in other states. 314 00:18:41,080 --> 00:18:43,560 And the other piece of expert analysis 315 00:18:43,560 --> 00:18:45,800 that I think has been extremely helpful to courts 316 00:18:45,800 --> 00:18:47,880 is the outlier analysis. 317 00:18:47,880 --> 00:18:50,840 Your Honor mentioned looking at a bunch of simulated maps 318 00:18:50,840 --> 00:18:53,560 that don't take partisanship into effect. 319 00:18:54,360 --> 00:18:57,080 How often, if you're looking just at the political geography 320 00:18:57,080 --> 00:18:59,400 of the state and using that as the inputs, 321 00:18:59,400 --> 00:19:00,840 how often do you come up with a map 322 00:19:00,840 --> 00:19:03,560 that even approximates this kind of a split, 323 00:19:03,560 --> 00:19:05,720 or this kind of a partisan impact? 324 00:19:05,720 --> 00:19:09,320 And then you can see whether it's an extreme outlier or not. 325 00:19:09,320 --> 00:19:11,160 Those are just two of the pieces of evidence 326 00:19:11,160 --> 00:19:12,840 that in addition to any direct and other 327 00:19:12,840 --> 00:19:14,840 circumstantial evidence that is available 328 00:19:14,840 --> 00:19:17,400 on a state-specific or map-specific basis. 329 00:19:17,400 --> 00:19:19,640 And I want to, and so those are some of the tools 330 00:19:19,640 --> 00:19:20,920 that courts have used. 331 00:19:20,920 --> 00:19:23,320 To Justice Haggadorn's concern about, 332 00:19:23,320 --> 00:19:26,200 well, in this particular case, what happens since there's, 333 00:19:26,200 --> 00:19:28,840 you know, there's different map drawers or different stages. 334 00:19:28,840 --> 00:19:30,280 All of those questions go into like, 335 00:19:30,280 --> 00:19:32,520 well, what kind of evidence would plaintiffs be able 336 00:19:32,520 --> 00:19:34,840 to reduce at the lower court 337 00:19:34,840 --> 00:19:36,600 if we get to that fact-finding provision? 338 00:19:36,600 --> 00:19:38,600 It does not come to the question of whether or not 339 00:19:38,600 --> 00:19:40,760 partisan gerrymandering is a thing 340 00:19:40,760 --> 00:19:43,000 that is cognizable under Wisconsin law. 341 00:19:43,000 --> 00:19:45,160 Let me just ask a couple other questions 342 00:19:45,160 --> 00:19:46,840 regarding the fact-finding. 343 00:19:47,720 --> 00:19:52,520 Wisconsin's political geography is interesting. 344 00:19:52,520 --> 00:19:55,080 Every state's political geography is interesting. 345 00:19:55,080 --> 00:19:58,600 We tend to have two urban centers, obviously here, 346 00:19:58,600 --> 00:20:04,200 and in Milwaukee where Democrats tend to be clustered, 347 00:20:04,200 --> 00:20:08,600 as opposed to the more rural areas of our state. 348 00:20:08,600 --> 00:20:11,000 How is that taken into account? 349 00:20:11,000 --> 00:20:14,840 Just the political geography that is special, 350 00:20:14,840 --> 00:20:16,200 unique to Wisconsin? 351 00:20:16,200 --> 00:20:18,840 Yeah, and I think that specifically that the court 352 00:20:18,840 --> 00:20:20,520 will look at traditional districting principles, 353 00:20:20,520 --> 00:20:23,400 such as compactness and communities and counties 354 00:20:23,400 --> 00:20:25,480 and things like that, but I think that's especially 355 00:20:25,480 --> 00:20:27,080 where that efficiency gap comes in. 356 00:20:27,080 --> 00:20:29,880 And again, I'll point the court to the Pennsylvania decision. 357 00:20:29,880 --> 00:20:31,880 And the Pennsylvania partisan gerrymandering says, 358 00:20:31,880 --> 00:20:33,800 like, look, we can understand that there's, 359 00:20:33,800 --> 00:20:35,320 given the technology that we have, 360 00:20:35,320 --> 00:20:38,040 given the way that states that people reside, 361 00:20:38,040 --> 00:20:40,600 that there are ways to kind of check the boxes 362 00:20:40,600 --> 00:20:43,240 of things like compactness and county splits 363 00:20:43,240 --> 00:20:46,600 and still create very, very slanted maps. 364 00:20:46,600 --> 00:20:49,000 And that's why these tools, such as the efficiency gap, 365 00:20:49,000 --> 00:20:50,840 are able to smoke that out to make sure 366 00:20:50,840 --> 00:20:53,560 that we're not using the political geography 367 00:20:53,560 --> 00:20:56,680 to manipulate votes before votes are actually cast. 368 00:20:56,680 --> 00:21:00,680 And I just have one more question along these lines, 369 00:21:00,680 --> 00:21:05,800 which is we don't register by party affiliation in Wisconsin. 370 00:21:06,360 --> 00:21:10,440 So what evidence or information do you, 371 00:21:10,440 --> 00:21:13,800 would you be asking the experts and then the court 372 00:21:13,800 --> 00:21:17,800 to look at when it's making the determination, 373 00:21:17,800 --> 00:21:21,800 how is a court supposed to, 374 00:21:21,800 --> 00:21:24,800 or what evidence would you look at in that situation? 375 00:21:24,800 --> 00:21:26,800 Yeah, courts and political scientists routinely look 376 00:21:26,800 --> 00:21:30,800 at the political voting patterns of precinct basis. 377 00:21:30,800 --> 00:21:32,800 So they look at historical voting patterns. 378 00:21:32,800 --> 00:21:34,800 And that's something that these experts 379 00:21:34,800 --> 00:21:37,800 and courts around the country have examined for many years, 380 00:21:37,800 --> 00:21:39,800 not just in the partisan gerrymandering context, 381 00:21:39,800 --> 00:21:41,800 but in any kind of vote dilution claim, 382 00:21:41,800 --> 00:21:43,800 when you're trying to figure out what are the candidates of choice, 383 00:21:43,800 --> 00:21:45,800 and how are maps being drawn in a way that's meant 384 00:21:45,800 --> 00:21:48,800 to suppress a certain one viewpoint versus another? 385 00:21:48,800 --> 00:21:51,800 Council, we've already talked to think about articles, 386 00:21:51,800 --> 00:21:54,800 one section, one of the Wisconsin Constitution. 387 00:21:54,800 --> 00:21:57,800 But I'm just wondering about your take on this. 388 00:21:57,800 --> 00:22:00,800 The respondents argued that the Wisconsin Constitution 389 00:22:00,800 --> 00:22:03,800 does not have a provision addressing partisan gerrymandering. 390 00:22:03,800 --> 00:22:05,800 Like other states do. 391 00:22:05,800 --> 00:22:08,800 Other than article one, section one, 392 00:22:08,800 --> 00:22:11,800 do you have a response to that argument? 393 00:22:11,800 --> 00:22:14,800 Well, we point it to multiple provisions of article one 394 00:22:14,800 --> 00:22:16,800 for our partisan gerrymandering claim. 395 00:22:16,800 --> 00:22:18,800 And while it is true that the Wisconsin Constitution 396 00:22:18,800 --> 00:22:21,800 does not use the words partisan gerrymandering, 397 00:22:21,800 --> 00:22:24,800 that makes only make sense because the Wisconsin Constitution 398 00:22:24,800 --> 00:22:27,800 speaks in principles and not in particulars. 399 00:22:27,800 --> 00:22:29,800 It also does not use the words racial gerrymandering, 400 00:22:29,800 --> 00:22:32,800 or mal apportionment, or many of the other things 401 00:22:32,800 --> 00:22:35,800 that this court has found to be an equal protection violation 402 00:22:35,800 --> 00:22:37,800 because it is meant to apply those principles 403 00:22:37,800 --> 00:22:39,800 to the facts of a given claim. 404 00:22:39,800 --> 00:22:41,800 When it comes to the other states, yes, 405 00:22:41,800 --> 00:22:44,800 there are states like Florida or Ohio, 406 00:22:44,800 --> 00:22:46,800 which specifically contain constitutional provisions 407 00:22:46,800 --> 00:22:49,800 barring unlawful partisan intent or partisan gerrymandering. 408 00:22:49,800 --> 00:22:52,800 But there are also states like North Carolina or Pennsylvania 409 00:22:52,800 --> 00:22:55,800 or New Mexico that also do not use the words 410 00:22:55,800 --> 00:22:58,800 partisan gerrymandering, but have clauses very similar 411 00:22:58,800 --> 00:23:00,800 to the equal protection clause that we're talking about here, 412 00:23:00,800 --> 00:23:03,800 or free and equal election clauses that are more, 413 00:23:03,800 --> 00:23:06,800 that are more, sound more in principle 414 00:23:06,800 --> 00:23:08,800 and that are applied to those particulars. 415 00:23:08,800 --> 00:23:10,800 Thank you. 416 00:23:10,800 --> 00:23:13,800 Council, when we are looking at the, 417 00:23:13,800 --> 00:23:15,800 and this is more of a remand question, 418 00:23:15,800 --> 00:23:17,800 assuming that we get there, 419 00:23:17,800 --> 00:23:22,800 you just were speaking about 420 00:23:22,800 --> 00:23:29,800 looking at the efficiency gap 421 00:23:30,800 --> 00:23:34,800 and I'm curious, given the passage of time here, 422 00:23:34,800 --> 00:23:40,800 and how, you know, we don't have partisan registration in Wisconsin, 423 00:23:40,800 --> 00:23:44,800 is the correct data set to look at the 2010 data 424 00:23:44,800 --> 00:23:50,800 or the 2027 data, or 2026 data? 425 00:23:50,800 --> 00:23:55,800 You know, I'm just curious about 426 00:23:56,800 --> 00:23:59,800 the fact that a lot of time has passed 427 00:23:59,800 --> 00:24:04,800 from the sort of original sin that the plaintiffs are claiming here, 428 00:24:04,800 --> 00:24:07,800 which is the 2010 map. 429 00:24:07,800 --> 00:24:08,800 Can you respond to that? 430 00:24:08,800 --> 00:24:12,800 Even if this court decides to employ an intent element in the analysis 431 00:24:12,800 --> 00:24:15,800 that does look back at the original map drawers intent, 432 00:24:15,800 --> 00:24:18,800 courts would also look at the effects of that map 433 00:24:18,800 --> 00:24:19,800 and the ongoing effects of that map. 434 00:24:19,800 --> 00:24:20,800 And the current effects. 435 00:24:20,800 --> 00:24:21,800 The current effects. 436 00:24:21,800 --> 00:24:23,800 And that is traditionally in the case in partisan, 437 00:24:23,800 --> 00:24:24,800 again, not just partisan gerrymandering. 438 00:24:24,800 --> 00:24:26,800 Any kind of vote dilution claims. 439 00:24:26,800 --> 00:24:30,800 The courts and political scientists traditionally look to the most recent, 440 00:24:30,800 --> 00:24:34,800 all at four, six, eight years of election results 441 00:24:34,800 --> 00:24:37,800 to decide to look at a kind of a spate of elections 442 00:24:37,800 --> 00:24:40,800 to determine what has been the entrenched effect, 443 00:24:40,800 --> 00:24:43,800 if any, of the challenge map. 444 00:24:43,800 --> 00:24:47,800 And isn't the big question on the effects test 445 00:24:47,800 --> 00:24:51,800 that we are looking at is whether partisanship 446 00:24:51,800 --> 00:24:57,800 substantially dilutes a group, the disfavored groups right to vote? 447 00:24:57,800 --> 00:25:00,800 Isn't that at the core of the effects test? 448 00:25:00,800 --> 00:25:01,800 Absolutely, Your Honor. 449 00:25:01,800 --> 00:25:02,800 Okay. 450 00:25:02,800 --> 00:25:05,800 Because we haven't talked a lot about voting in this. 451 00:25:05,800 --> 00:25:07,800 But that is what we are looking at. 452 00:25:07,800 --> 00:25:08,800 Is that right? 453 00:25:08,800 --> 00:25:14,800 Whether someone's right to vote has been so substantially diluted 454 00:25:14,800 --> 00:25:16,800 that there is a constitutional harm. 455 00:25:16,800 --> 00:25:17,800 Absolutely. 456 00:25:17,800 --> 00:25:18,800 Okay. 457 00:25:18,800 --> 00:25:21,800 So that is the ultimate in the effects question, 458 00:25:21,800 --> 00:25:24,800 question that we want to ask. 459 00:25:24,800 --> 00:25:29,800 That is the ultimate question is whether or not the map has drawn, 460 00:25:29,800 --> 00:25:31,800 imposes such a thumb, and I get on to say, 461 00:25:31,800 --> 00:25:35,800 a fist on the scale in favor of one party over another 462 00:25:35,800 --> 00:25:38,800 that essentially is deciding elections before votes are cast. 463 00:25:38,800 --> 00:25:43,800 Well, the right to vote is my right to go to a place 464 00:25:43,800 --> 00:25:47,800 or mail in a ballot and vote. 465 00:25:47,800 --> 00:25:52,800 But you are conflating the effect of a vote 466 00:25:52,800 --> 00:25:54,800 with the right to vote. 467 00:25:54,800 --> 00:25:56,800 I see those as two different things. 468 00:25:56,800 --> 00:26:02,800 In Wisconsin, we have pretty liberal laws regarding your ability to vote. 469 00:26:02,800 --> 00:26:06,800 You can mail in ballots, you can go to your place 470 00:26:06,800 --> 00:26:09,800 and vote your right to vote. 471 00:26:09,800 --> 00:26:15,800 You are really arguing that the person's right to vote is 472 00:26:15,800 --> 00:26:17,800 not allowed to vote? 473 00:26:17,800 --> 00:26:19,800 No, it's dilution. 474 00:26:19,800 --> 00:26:20,800 That's what I asked. 475 00:26:20,800 --> 00:26:22,800 They have the right to vote. 476 00:26:22,800 --> 00:26:26,800 But my question was, is it so substantially diluted 477 00:26:26,800 --> 00:26:28,800 that there is a constitutional harm? 478 00:26:28,800 --> 00:26:30,800 Well, okay. 479 00:26:30,800 --> 00:26:35,800 Then that is conflating a right to vote with the effect of your vote. 480 00:26:35,800 --> 00:26:37,800 So in the vote dilution context, and again, 481 00:26:37,800 --> 00:26:40,800 we can take it out of the partisan gerrymandering question for a second. 482 00:26:40,800 --> 00:26:43,800 In any vote dilution claim, and these are part and parcel of state 483 00:26:43,800 --> 00:26:45,800 federal courts across the country for decades, 484 00:26:45,800 --> 00:26:49,800 the question is not just whether somebody had the ability 485 00:26:49,800 --> 00:26:52,800 to put a vote in the ballot box and have it counted. 486 00:26:52,800 --> 00:26:55,800 But courts have held that when it comes to vote dilution, 487 00:26:55,800 --> 00:26:58,800 it's about having a meaningful opportunity to vote, 488 00:26:58,800 --> 00:27:01,800 and a meaningful opportunity to translate your vote into power, 489 00:27:01,800 --> 00:27:03,800 not just to be able to show up at the ballot box, 490 00:27:03,800 --> 00:27:05,800 but to actually have an effect with your vote. 491 00:27:05,800 --> 00:27:08,800 And that is the essence of any vote dilution claim, 492 00:27:08,800 --> 00:27:10,800 including our partisan gerrymandering claim. 493 00:27:10,800 --> 00:27:12,800 We've never held that though. 494 00:27:12,800 --> 00:27:15,800 This court has never found a case to be a part of a map 495 00:27:15,800 --> 00:27:16,800 to be a partisan gerrymander. 496 00:27:16,800 --> 00:27:18,800 It is held that it is an unresolved issue of Wisconsin law. 497 00:27:18,800 --> 00:27:20,800 We've never held that. 498 00:27:20,800 --> 00:27:22,800 There's something like your votes being diluted 499 00:27:22,800 --> 00:27:24,800 if you can't elect the candidate of your choice. 500 00:27:24,800 --> 00:27:26,800 We've never held that before, right? 501 00:27:26,800 --> 00:27:29,800 Wisconsin federal courts have certainly talked about it 502 00:27:29,800 --> 00:27:31,800 in the Voting Rights Act context. 503 00:27:31,800 --> 00:27:32,800 Sure. 504 00:27:32,800 --> 00:27:34,800 I'm saying we're talking about this is an entirely Wisconsin law claim. 505 00:27:34,800 --> 00:27:37,800 So Wisconsin has never recognized what you just outlined. 506 00:27:37,800 --> 00:27:39,800 I agree, Your Honor, this court has made very clear 507 00:27:39,800 --> 00:27:41,800 that partisan gerrymandering remains 508 00:27:41,800 --> 00:27:43,800 an unresolved and important issue of Wisconsin. 509 00:27:43,800 --> 00:27:46,800 Has anyone ever asked us straight on to resolve that question 510 00:27:46,800 --> 00:27:48,800 before you're doing that here today? 511 00:27:48,800 --> 00:27:51,800 I believe that this is the first time that has come to this court. 512 00:27:51,800 --> 00:27:53,800 I know that there was a partisan gerrymandering claim 513 00:27:53,800 --> 00:27:56,800 in Gill in federal court, last cycle. 514 00:27:56,800 --> 00:28:00,800 But again, in the Johnson case, there was no partisan gerrymandering claim. 515 00:28:00,800 --> 00:28:02,800 The only claim was a malaportionment claim. 516 00:28:02,800 --> 00:28:04,800 Aren't you here last year? 517 00:28:04,800 --> 00:28:07,800 Didn't you file a petition for original action asking us to do this very thing? 518 00:28:07,800 --> 00:28:08,800 We did, Your Honor. 519 00:28:08,800 --> 00:28:10,800 And the court denied that petition for original action 520 00:28:10,800 --> 00:28:12,800 without issuing any opinion or judgment. 521 00:28:12,800 --> 00:28:17,800 So having exercised this discretion to not accept that procedural vehicle, 522 00:28:17,800 --> 00:28:19,800 we then exercised our right to go through them. 523 00:28:19,800 --> 00:28:24,800 And Johnson, we explicitly asked all the parties to that case, 524 00:28:24,800 --> 00:28:28,800 write us every single legal issue in the Wisconsin Constitution 525 00:28:28,800 --> 00:28:30,800 that needs to govern our adjudication, 526 00:28:30,800 --> 00:28:35,800 including the impact of partisanship on any maps we'd adopt. 527 00:28:35,800 --> 00:28:38,800 And we explicitly invited that claim, 528 00:28:38,800 --> 00:28:42,800 and we did not, and we answered that question. 529 00:28:42,800 --> 00:28:43,800 Did we not? 530 00:28:43,800 --> 00:28:44,800 In Johnson 1. 531 00:28:44,800 --> 00:28:48,800 In Johnson 1, in paragraph 8, the court said that it decided 532 00:28:48,800 --> 00:28:50,800 that it's not going to be looking at partisan effect, 533 00:28:50,800 --> 00:28:53,800 and it is not going to deem partisan claims just dishable, 534 00:28:53,800 --> 00:28:55,800 despite the fact that there was not a partisan gerrymandering claim 535 00:28:55,800 --> 00:28:56,800 before the court. 536 00:28:56,800 --> 00:28:58,800 But as Your Honor knows, Justice Hagenard, 537 00:28:58,800 --> 00:29:01,800 the concurrence did not join that paragraph 8. 538 00:29:01,800 --> 00:29:02,800 So that was only a three- 539 00:29:02,800 --> 00:29:05,800 That is true, but not accurate. 540 00:29:05,800 --> 00:29:09,800 I did not join paragraph 8, but I was very clear 541 00:29:09,800 --> 00:29:11,800 that I joined the holding on that question, 542 00:29:11,800 --> 00:29:13,800 and I wrote explicitly saying that. 543 00:29:13,800 --> 00:29:16,800 So while I did not join paragraph 8, 544 00:29:16,800 --> 00:29:20,800 there was no doubt about my joining that issue. 545 00:29:20,800 --> 00:29:22,800 So true, it didn't join paragraph 8, 546 00:29:22,800 --> 00:29:25,800 but I don't think it would be fair or accurate at all to suggest 547 00:29:25,800 --> 00:29:27,800 that that wasn't a holding of Johnson 1. 548 00:29:27,800 --> 00:29:28,800 Absolutely, Your Honor. 549 00:29:28,800 --> 00:29:32,800 And I guess all I have to go on is what the majority of this court held in Clark, 550 00:29:32,800 --> 00:29:35,800 which is that it remains an unresolved and important issue 551 00:29:35,800 --> 00:29:36,800 of Wisconsin law. 552 00:29:36,800 --> 00:29:37,800 That is not my opinion. 553 00:29:37,800 --> 00:29:38,800 That is this court's opinion. 554 00:29:38,800 --> 00:29:41,800 Is that an issue in Clark? 555 00:29:41,800 --> 00:29:43,800 The issue of partisan gerrymandering? 556 00:29:43,800 --> 00:29:45,800 No, which is why it did seem that it was not deciding 557 00:29:45,800 --> 00:29:47,800 that partisan gerrymandering claim. 558 00:29:47,800 --> 00:29:49,800 That was one of the questions brought to the court, 559 00:29:49,800 --> 00:29:51,800 but it decided not to take up that question 560 00:29:51,800 --> 00:29:53,800 and specifically said we are not deciding today 561 00:29:53,800 --> 00:29:55,800 whether or not partisan gerrymandering is. 562 00:29:55,800 --> 00:29:58,800 So any of those comments are probably a question. 563 00:29:58,800 --> 00:30:01,800 So any of those comments were probably dicta. 564 00:30:01,800 --> 00:30:03,800 They were not at the legal issue. 565 00:30:03,800 --> 00:30:05,800 That was being addressed at that point. 566 00:30:05,800 --> 00:30:09,800 That was a remedial question about how the court would exercise its powers 567 00:30:09,800 --> 00:30:12,800 after the violation, which simply focused on the constitutional 568 00:30:12,800 --> 00:30:13,800 contiguity question, right? 569 00:30:13,800 --> 00:30:15,800 Well, there's two different things that the court said. 570 00:30:15,800 --> 00:30:18,800 One is that the court said in Clark that we are not addressing 571 00:30:18,800 --> 00:30:21,800 what we believe to be an unresolved issue of Wisconsin law. 572 00:30:21,800 --> 00:30:23,800 That is partisan gerrymandering. 573 00:30:23,800 --> 00:30:25,800 So I'm taking the majority of the court at its word 574 00:30:25,800 --> 00:30:28,800 that is an unresolved issue of Wisconsin law that we, of course, 575 00:30:28,800 --> 00:30:30,800 are asking in the alternative the court resolved today. 576 00:30:30,800 --> 00:30:33,800 But the other part of Johnson that specifically overrules 577 00:30:33,800 --> 00:30:36,800 lease change as pre-expressed in any of the Johnson opinions, 578 00:30:36,800 --> 00:30:39,800 I don't believe anybody here has argued that that part is dicta. 579 00:30:39,800 --> 00:30:43,800 That is what binds Wisconsin with this court and Wisconsin courts 580 00:30:43,800 --> 00:30:45,800 when it comes to court-drawn maps, 581 00:30:45,800 --> 00:30:49,800 and it is a court-drawn map that continues to affect elections 582 00:30:49,800 --> 00:30:52,800 in Congress for Wisconsin going forward, 583 00:30:52,800 --> 00:30:54,800 and that's the court-drawn map that we're saying needs to be 584 00:30:54,800 --> 00:30:57,800 revisited in light of the holding in Clark. 585 00:30:58,800 --> 00:31:01,800 Are there any other questions? 586 00:31:01,800 --> 00:31:03,800 I think we're good. 587 00:31:03,800 --> 00:31:05,800 Thank you, Your Honor. 588 00:31:05,800 --> 00:31:07,800 I'm not seeing any. 589 00:31:07,800 --> 00:31:10,800 It is 1028. 590 00:31:10,800 --> 00:31:12,800 We're going to take a quick break. 591 00:31:12,800 --> 00:31:18,800 I might recommend you guys make sure your Uber apps are working. 592 00:31:18,800 --> 00:31:20,800 Your Uber Eats apps are working for lunch. 593 00:31:20,800 --> 00:31:26,800 We'll take a break at lunch, but it might be somewhat 594 00:31:26,800 --> 00:31:27,800 shortened. 595 00:31:27,800 --> 00:31:30,800 I don't want anyone to get hangry in here. 596 00:31:30,800 --> 00:31:33,800 So maybe just think forward a little bit. 597 00:31:33,800 --> 00:31:36,800 We'll take a quick break and try to get back in 10 minutes or so. 598 00:31:36,800 --> 00:31:38,800 Thank you.