WEBVTT 00:00.000 --> 00:08.680 What all that might look like, and if you have some idea, is there a way to streamline it, 00:08.680 --> 00:13.720 is there, what are some of the ways that if we get to that point, we might want to think 00:13.720 --> 00:15.760 about handling it at that stage? 00:15.760 --> 00:19.920 Yes, Your Honor, and if the court decides to go down the gerrymandering route, whether 00:19.920 --> 00:25.000 it's partisan or anti-competitive or both, I think the structure that the court has already 00:25.000 --> 00:29.960 set up in designating two panels to adjudicate what I understand to be very different claims. 00:29.960 --> 00:34.520 But related, obviously, you know, our claim, you know, we've already established that 00:34.520 --> 00:40.360 our claim has, you know, well-worn, we've seen from other states. 00:40.360 --> 00:44.200 And I don't take a position on the anti-competitive gerrymandering claim, which I understand to 00:44.200 --> 00:46.960 be a novel claim under Wisconsin law. 00:46.960 --> 00:51.200 But I do think that two different panels can adjudicate those claims as a matter of liability 00:51.200 --> 00:56.280 if it turns out that the map is deemed either a partisan gerrymander or an anti-competitive 00:56.280 --> 00:57.880 gerrymander or both. 00:57.880 --> 01:02.280 I think at that point, either this court or those courts can decide to consolidate for 01:02.280 --> 01:07.040 purposes of remedy so that we're not having dueling remedy maps for the state of Wisconsin. 01:07.040 --> 01:12.280 Let me ask you about that, because if I understood your answer to Justice Crawford's question 01:12.280 --> 01:15.760 and to Justice Dallas' questions about the remedy and who would draw the maps, you said 01:15.760 --> 01:18.760 the three judge panels would. 01:18.760 --> 01:20.320 You can see where I'm going, right? 01:20.320 --> 01:27.680 We could end up with two maps, and that seems like a bad idea. 01:27.680 --> 01:32.160 And that's the existing structure, I think, is a function of having two different courts 01:32.160 --> 01:34.560 appointed for two different claims. 01:34.560 --> 01:39.520 How would we get those, how would you said either the three judge panels could draw the 01:39.520 --> 01:40.520 maps or we could? 01:40.520 --> 01:44.800 How would we get the maps back at that point? 01:44.800 --> 01:48.920 How would the remedy come back to us? 01:48.920 --> 01:53.400 Well the remedy could come back to you on appeal from either court, from any court. 01:53.400 --> 01:54.400 That has to happen. 01:55.400 --> 01:56.640 Yeah, that would have to happen. 01:56.640 --> 02:00.800 But at the same time, this court is certainly within its purview and certainly within this 02:00.800 --> 02:02.960 court experience to adjudicate the remedy itself. 02:02.960 --> 02:06.120 It did so in Johnson, it was prepared to do so in Clark. 02:06.120 --> 02:08.800 If the court decides that that's the route it wants to take. 02:08.800 --> 02:13.120 The kind of complexity that comes from the fact of having two different panels adjudicating 02:13.120 --> 02:17.200 two different claims, your honor absolutely is correct to point out, well then what if 02:17.200 --> 02:20.680 we end up with two different remedies that we then have to kind of pick between or adjudicate? 02:21.240 --> 02:24.560 That wasn't what happened in Clark or Johnson because those were only in front of us. 02:24.560 --> 02:27.560 They weren't going back to a three judge panel. 02:27.560 --> 02:30.800 Those were very different. 02:30.800 --> 02:32.560 Those are postured completely differently. 02:32.560 --> 02:39.160 Well both Johnson and Clark contemplated that the remedy phase of which map do we select 02:39.160 --> 02:41.360 would happen before this court. 02:41.360 --> 02:45.360 And I believe this court has the authority to say, yeah, that's what we do. 02:45.360 --> 02:48.800 We certainly can do that in the context of the separation of powers claim and it could 02:48.800 --> 02:52.640 even decide to do that in the context of a gerrymandering claim down the line. 02:52.640 --> 03:00.600 If the court instead decides to give the remedy phase over to the circuit court as well then 03:00.600 --> 03:06.760 I think this court has other tools at disposal to manage the docket to make sure that perhaps 03:06.760 --> 03:12.200 this case is below are consolidated for purposes of remedy and coming to a single map that resolves 03:12.200 --> 03:14.600 whatever the outstanding liability is at that point. 03:14.600 --> 03:18.000 Can they be consolidated though prior to remedy? 03:18.000 --> 03:24.480 Doesn't this court under 80501 have the authority to do that and would you agree that they're 03:24.480 --> 03:26.680 related claims? 03:26.680 --> 03:30.840 Absolutely this court has the authority to consolidate and to manage the docket. 03:30.840 --> 03:32.720 I don't think they necessarily have to be. 03:32.720 --> 03:37.640 They are related because they are both challenging the same map. 03:37.640 --> 03:41.160 I don't want to speak to the anti-competitive gerrymandering claims since I understand 03:41.160 --> 03:45.000 it to be a novel claim that is not already entrenched in it. 03:45.000 --> 03:47.800 Regardless of the claim, we're looking at similar evidence. 03:47.800 --> 03:53.440 You're making similar accusations about the 2011 maps and whether they are extreme partisan 03:53.440 --> 04:00.240 gerrymanders or extreme anti-competitive, those things both would seem to relate to 04:00.240 --> 04:01.840 one another. 04:01.840 --> 04:05.280 Absolutely your honor and it is well within this court's purview to decide to consolidate. 04:05.280 --> 04:10.000 We of course envision our claim and I don't have a position on how similar a different 04:10.000 --> 04:11.560 their claim is to ours. 04:11.560 --> 04:14.920 We understand the kinds of evidence that we would want to bring and we think would be 04:14.920 --> 04:18.760 relevant to a partisan gerrymandering claim based on established law. 04:18.760 --> 04:22.680 So I don't want to necessarily intertwine the two not having enough information about 04:22.680 --> 04:26.720 how that would work but certainly this court has the authority to do that whenever there's 04:26.720 --> 04:28.840 multiple challenges to the same map. 04:28.840 --> 04:36.240 And council I understand that you didn't brief the other or haven't argued the other case 04:36.240 --> 04:42.760 but it sounds like your position is that those two claims are not incompatible in the 04:42.760 --> 04:47.360 sense that it's either one or the other but they could be both. 04:47.360 --> 04:48.360 Is that correct? 04:48.360 --> 04:53.000 That is my understanding of that claim is that it's not necessarily incompatible with 04:53.000 --> 04:54.800 a partisan gerrymandering claim. 04:54.800 --> 04:59.120 A partisan gerrymander could also be an anti-competitive gerrymander. 04:59.120 --> 05:03.840 A district can be competitive in a primary or a general so I think there are many ways 05:03.840 --> 05:07.720 to slice that so that they're not fundamentally at odds with one another. 05:07.720 --> 05:08.720 Okay. 05:08.720 --> 05:09.720 Go ahead. 05:09.720 --> 05:10.720 Okay. 05:10.720 --> 05:11.720 Thank you. 05:11.720 --> 05:21.280 In terms of the burden of proof or the standard that's being applied here is the lower court 05:21.280 --> 05:29.600 going to have to make a determination as to the statewide map for these congressional 05:29.600 --> 05:34.920 districts or is it going to be obliged to look district by district and make findings 05:34.920 --> 05:37.720 as to each separate congressional district. 05:37.720 --> 05:39.520 How is that supposed to work? 05:39.520 --> 05:44.040 So I think the traditional way is for the district by district approach in terms of liability 05:44.040 --> 05:48.000 to decide that certain districts are configured in a way that is a what we would argue is 05:48.000 --> 05:53.000 a partisan gerrymander but in making that determination the court can consider statewide 05:53.000 --> 05:54.000 evidence. 05:54.000 --> 05:55.000 Thank you. 05:55.360 --> 06:01.400 Part of the problem here is we're kind of, I don't mean to be disparaging but making 06:01.400 --> 06:03.880 it up on the fly here. 06:03.880 --> 06:09.280 And I'm interested in the law here. 06:09.280 --> 06:14.840 I mean I read your briefs and obviously there's a lot of discussion here about mechanics and 06:14.840 --> 06:16.320 remedy and those sorts of things. 06:16.320 --> 06:21.320 I want you to put aside the separation of powers argument for a minute and just focus 06:21.360 --> 06:23.000 on this. 06:23.000 --> 06:30.200 Could you, your argument on why this is actually a thing which it hasn't been for 170 years 06:30.200 --> 06:36.720 ago and I rejected it explicitly on the same grounds in Johnson when we did ask the parties 06:36.720 --> 06:38.440 to brief every legal claim. 06:38.440 --> 06:43.080 We did ask whether we should consider partisan impact and we explicitly held that there is 06:43.080 --> 06:49.920 no legal basis for this claim but your argument is a little like we got some free government, 06:49.960 --> 06:54.000 we got some free press, we got freedom of the assembly, sprinkle in a little bit of salt 06:54.000 --> 07:01.560 and pepper and you know equal, we're all inherently equal, ergo districts can't be favored one 07:01.560 --> 07:06.200 party over the other too much which means I don't know what, nobody really knows what 07:06.200 --> 07:07.200 that means. 07:07.200 --> 07:09.760 I don't know how it fits with the next case. 07:09.760 --> 07:15.080 Help me out walk me through as precisely as you can, your logic from something on the 07:15.080 --> 07:21.800 law that gets me to a test that's based something on the law that is actually supposed 07:21.800 --> 07:28.040 to be adjudicated or dealt with below as opposed to just, it sounds a lot like this is unfair, 07:28.040 --> 07:32.800 please stop unfair things, bad things are happening, constitution must stop that, you 07:32.800 --> 07:36.120 know, please stop in court and stop bad things from happening. 07:36.120 --> 07:38.240 Help me see why that's not what's going on here. 07:38.240 --> 07:42.640 So your honor, I'll start with the language in Clark as it specifically held from a majority 07:42.680 --> 07:47.680 of this court that partisan gerrymandering remains an important and an unresolved area 07:47.680 --> 07:49.120 of Wisconsin law. 07:49.120 --> 07:54.120 So what we are asking is the court to resolve it and in resolving it, it can look at the 07:54.120 --> 07:59.840 various provisions of article one that we have pointed to, all of which center on democratic 07:59.840 --> 08:05.200 self-governance and equality under the law, that is antithetical to the idea that politicians 08:05.200 --> 08:10.200 get to choose their voters or that the deck is stacked with a thumb on the scale or a 08:10.240 --> 08:15.680 fist on the scale in favor of one party over another to the arbitrary disadvantage of the 08:15.680 --> 08:17.240 disfavored party. 08:17.240 --> 08:22.000 At this test that the courts would apply is exactly the test that other courts have 08:22.000 --> 08:25.160 deemed, have seen fit to apply and been able to apply. 08:25.160 --> 08:29.680 The fact that there is not a bright line rule that says as a binary, this is a partisan 08:29.680 --> 08:34.720 gerrymander and this is not, is not unique to the partisan gerrymandering context. 08:34.720 --> 08:39.400 Courts adjudicate the protection context frankly in the undue burden context all the time, 08:39.400 --> 08:44.040 when does something amount to a violation because it is just too much and I litigate 08:44.040 --> 08:48.920 undue burden claims all the time and that is a really just, it's always a weighing of 08:48.920 --> 08:54.240 the facts and it's always a judicial determination of making some of those hard calls in the absence 08:54.240 --> 08:58.440 of bright line rules but those are the exact time questions and answers that this court 08:58.440 --> 09:01.560 and all courts are equipped to make and they do it every day. 09:01.560 --> 09:08.120 So do you think that, you think taking, having partisan motivations is fine with drawing 09:08.120 --> 09:12.440 maps as long as it's just not too effective? 09:12.440 --> 09:16.720 I mean, so let's just go back to, for example, our Johnson litigation. 09:16.720 --> 09:21.000 We asked for submissions from a variety of different parties and let me submit to you 09:21.000 --> 09:25.520 that every map we got had a lot of partisan motivations behind it within the least changed 09:25.520 --> 09:27.120 principle we announced. 09:27.120 --> 09:30.880 Pretty clear that Governor Revers map, for example, was trying to make district one much 09:30.880 --> 09:35.200 more democratic than had been before within the limits and the congressmen submitted map 09:35.200 --> 09:40.120 that was trying to do some things and up north and district three. 09:40.120 --> 09:43.680 So whether I'm right or wrong on that, just file a track with me for a moment. 09:43.680 --> 09:46.320 There clearly were partisan motivations behind it. 09:46.320 --> 09:52.760 Is that fine as long as the whole map just isn't too democratic or too republican and 09:52.760 --> 09:56.480 why is that the standard that derives somewhere from the law? 09:56.480 --> 10:01.360 Because the law basically, the fact, the law recognizes that partisan actors, political 10:01.360 --> 10:03.440 actors will have political motives. 10:03.840 --> 10:07.720 It specifically says that judicial actors will not and cannot and need to make clear 10:07.720 --> 10:11.080 to make certain to not veer down that path. 10:11.080 --> 10:15.160 But when the law does recognize that political actors will have political motives and it 10:15.160 --> 10:19.760 doesn't sever the political actors from the redistricting process for that reason. 10:19.760 --> 10:24.160 But in allowing, in disallowing for extreme partisan gerrymandering, what it says is, 10:24.160 --> 10:26.200 we cannot allow those political motives. 10:26.200 --> 10:29.920 Specifically, this court looks at the free government provision, for instance. 10:30.000 --> 10:36.360 The idea of temperance and moderation cannot allow the self interest of those 10:36.360 --> 10:41.360 in power to essentially be at the expense of the citizens. 10:41.360 --> 10:45.240 Such that it is essentially canceling out the majority will and 10:45.240 --> 10:48.200 not being responsive to the vote of the citizens in the end. 10:48.200 --> 10:52.360 I want to roll up just on the intent portion of your intent effects test that 10:52.360 --> 10:54.360 you're that potentially disgusting. 10:54.360 --> 10:59.040 I know you have the other one subordinating the traditional redistricting principles. 11:00.920 --> 11:06.240 So you seem to be making two different arguments on what this court did. 11:06.240 --> 11:11.360 One, you're complaining from a separation of powers perspective that we blindly 11:11.360 --> 11:16.000 adopted a 2011 map without regard to what went into that map. 11:16.000 --> 11:18.240 And that was problematic. 11:18.240 --> 11:22.800 And then you're also arguing at the same time that this court, 11:22.800 --> 11:25.920 with regard to the partisan gerrymandering claim, 11:25.920 --> 11:30.400 actually had all the intentions of the 2011 map, 11:30.400 --> 11:34.000 which we didn't consider or say anywhere in our opinion. 11:34.000 --> 11:38.160 We didn't actually have evidence before us about what went into the 2011 map. 11:38.160 --> 11:41.520 But you're saying we borrowed that, so which is it? 11:41.520 --> 11:43.880 I think they're saying the same thing, Your Honor, 11:43.880 --> 11:47.040 that in adopting the 2011 map through the least changed principle and 11:47.040 --> 11:49.640 refusing to look at the partisan effects of that map, 11:49.640 --> 11:55.640 this court blindly deferred to a legally defunct principle based on a legally 11:55.640 --> 11:58.680 defunct principle that this court said was unlawful in Clark and 11:58.680 --> 12:00.120 outside the bounds of the judicial role. 12:00.120 --> 12:01.320 That's not what intent means. 12:01.320 --> 12:04.200 Intent means what you intend to do, want to do, right? 12:04.200 --> 12:07.000 So you might be arguing that was the effect of it. 12:07.000 --> 12:11.400 But what you're arguing is that Justice Dalit, 12:11.400 --> 12:15.960 Chief Justice Krowski and myself, who were in the majority adopting that, 12:15.960 --> 12:20.280 and I know a couple of my colleagues dissented from the underlying principle of least change. 12:20.280 --> 12:26.440 When you're arguing that our intent in that case was actually to adopt 12:26.440 --> 12:29.880 all of the partisan motivations in the 2011 map when we did that, 12:29.880 --> 12:31.640 is that the principle you're suggesting to us? 12:31.640 --> 12:35.320 I think the intent in that case, which is spelled out in this court's Johnson opinion, 12:35.320 --> 12:38.840 was to adopt the 2011 map and everything that went into and 12:38.840 --> 12:41.640 resulted from it without the other considerations. 12:41.640 --> 12:42.360 That's not what we said. 12:42.360 --> 12:44.440 We actually said what our motivation was. 12:44.440 --> 12:48.600 We didn't say our motivation was partisan interest at all. 12:48.600 --> 12:50.680 In fact, we said exactly the opposite. 12:50.680 --> 12:55.080 So how could possibly you satisfy an intent test 12:55.080 --> 13:01.960 that we had an intention to make a map that was overly sympathetic to Republicans 13:01.960 --> 13:05.640 when, in fact, we said we were not looking at that at all. 13:05.640 --> 13:08.920 We said what our intent was in that opinion. 13:08.920 --> 13:12.760 Right, and I'm not suggesting that the court had some nefarious intent, 13:12.760 --> 13:14.680 but the court said exactly what it said in this opinion, 13:14.680 --> 13:21.960 which is our intent, is to calcify in place whatever happened in 2011 with that map. 13:21.960 --> 13:27.480 The inputs, the outputs, the effects, with blind deference to all of that, 13:27.480 --> 13:31.000 we are essentially channeling that in, funneling that in, 13:31.000 --> 13:36.120 and adopting all of that as much as we possibly can to a 95% degree of certainty 13:36.120 --> 13:36.840 going forward. 13:36.840 --> 13:38.280 But not partisan motivation. 13:38.280 --> 13:40.200 That's not what the word intent means. 13:40.200 --> 13:44.520 Like in any kind of intent, you're looking at what did they mean to do? 13:44.520 --> 13:46.360 What were they considering? 13:46.360 --> 13:49.720 I understand your consideration at the practical effect of that 13:49.720 --> 13:53.960 is deferring to the political judgments that went into that in 2011, 13:53.960 --> 13:59.320 which my understanding was more or less an effort to keep the incumbents in power. 13:59.320 --> 14:01.720 Maybe now we can, you know, who knows? 14:01.720 --> 14:06.280 I don't know what all the details of that are, but whatever that was, 14:06.280 --> 14:07.320 that wasn't before us. 14:07.320 --> 14:10.520 We didn't have that before us when we were dealing with that. 14:10.520 --> 14:14.520 The word intent means you meant to do something. 14:14.520 --> 14:17.000 And what we, we said what we meant to do. 14:17.000 --> 14:21.240 We said we don't mean to do anything for partisan advantage. 14:21.240 --> 14:25.640 In fact, we mean to exclude that entirely from our consideration. 14:25.640 --> 14:29.880 So you can't meet an intent effects test when this court adopt, 14:29.880 --> 14:31.640 if we're looking at what this court meant to do, 14:31.640 --> 14:34.920 when this court said we're not in considering partisan motivation. 14:34.920 --> 14:37.400 There go, we weren't intending to do that. 14:37.480 --> 14:39.320 Respectfully, Your Honor, I think that's in Clark, 14:39.320 --> 14:41.080 this court made clear that that's actually not, 14:41.080 --> 14:43.640 that when the court did what it did, 14:43.640 --> 14:46.600 did what it intended to do, which was adopt wholesale, 14:46.600 --> 14:51.720 that previous map, it erred in not considering all of the inputs 14:51.720 --> 14:53.240 and the effects of that map. 14:53.240 --> 14:55.640 And that not necessarily that it was, you know, 14:56.760 --> 14:58.920 linking arms with all of the map drawers, 14:58.920 --> 15:02.440 but that in blindly deferring to that map, 15:02.440 --> 15:05.640 it therefore channeled, channeled in that entire process, 15:05.640 --> 15:06.920 both intent and the effects. 15:06.920 --> 15:08.760 Council, we're banking in. 15:08.760 --> 15:10.360 Let me just, I just want to follow up. 15:10.360 --> 15:13.080 I mean, essentially what least change is, 15:13.640 --> 15:16.760 is least change says we are going to bake in 15:16.760 --> 15:22.120 whatever the political motivations were of that 2011 legislature. 15:22.680 --> 15:25.240 And we're going to bake it in for perpetuity. 15:25.240 --> 15:28.440 If it's least changed from the 2011 maps, 15:28.440 --> 15:32.840 and we continue to follow least change in 2021, 15:32.840 --> 15:35.640 and in 2031, and 2041, and 2051, 15:35.640 --> 15:41.400 it all links back to what happened in 2011. 15:41.400 --> 15:42.360 Correct, Your Honor. 15:42.360 --> 15:43.960 Let me ask you some questions. 15:45.560 --> 15:48.040 I just had, can I ask one question on least change? 15:48.040 --> 15:49.480 I was not here at the time. 15:50.360 --> 15:51.640 I was adopted. 15:51.640 --> 15:54.680 But when we're doing constitutional interpretation, 15:54.680 --> 15:56.520 looking at constitutional harm, 15:56.520 --> 15:58.840 we're looking at the words of the Constitution, 15:58.840 --> 16:00.520 we're looking at history, precedent. 16:01.320 --> 16:03.960 Where does this least change come from? 16:03.960 --> 16:06.520 Because I've tried to find it somewhere, 16:07.160 --> 16:13.880 and I cannot find it in Wisconsin constitutional jurisprudence. 16:13.880 --> 16:16.920 Do you know where that comes from? 16:17.640 --> 16:20.360 I think this Court held in Clark that it doesn't come from anywhere. 16:20.360 --> 16:24.280 It is an extra constitutional concept 16:24.280 --> 16:26.360 that cannot be allowed to supersede 16:26.360 --> 16:29.080 the actual constitutional requirements for redistricting. 16:29.080 --> 16:31.480 And that's why Clark struck down least change. 16:31.480 --> 16:33.800 I understand that my interveners, 16:34.120 --> 16:39.400 are here to argue against Clark and argue for least change. 16:39.400 --> 16:41.320 But that issue has already been resolved 16:41.320 --> 16:42.760 by binding precedent at this Court, 16:42.760 --> 16:45.480 and all we ask is for this Court to apply that precedent 16:45.480 --> 16:47.320 to the ongoing maps that continue, 16:47.320 --> 16:49.960 that Wisconsin voters continue to vote on in future elections. 16:50.680 --> 16:52.600 Let me ask you some questions. 16:56.760 --> 16:59.000 We talked about, we've talked about a lot of things, 16:59.000 --> 17:00.520 so let me direct you to, 17:01.240 --> 17:03.480 we talked about this case going back for fact finding. 17:03.960 --> 17:05.560 To the three judge panel. 17:07.000 --> 17:10.680 I just want to ask some questions about some of that fact finding. 17:11.720 --> 17:13.960 How is a Court supposed to know, 17:13.960 --> 17:16.840 and these concerns were brought up in Johnson and Juan, 17:16.840 --> 17:20.840 these concerns are laid out in the Rucho majority. 17:22.040 --> 17:22.840 Am I saying that right? 17:23.480 --> 17:24.840 Do we say Rucho, Rucho? 17:24.840 --> 17:26.120 Rucho, Rucho, okay. 17:26.120 --> 17:27.240 All right, and Kayla. 17:27.240 --> 17:28.200 I don't know him either, so. 17:28.200 --> 17:28.680 Be clear. 17:29.640 --> 17:32.520 How do we know, 17:34.280 --> 17:35.800 so these concerns were laid out in Johnson and Juan, 17:35.800 --> 17:37.720 and they were laid out in the Rucho majority, 17:37.720 --> 17:39.880 and they've been laid out in other cases. 17:40.520 --> 17:41.800 And their questions are like, 17:41.800 --> 17:44.360 how do you know when a map is too partisan? 17:44.360 --> 17:48.120 How do you know when it has crossed the line 17:48.120 --> 17:51.880 of going from constitutional to unconstitutional? 17:52.440 --> 17:56.360 So, Your Honor, I've litigated partisan gerrymandering cases 17:56.360 --> 17:57.640 in other states, 17:57.640 --> 17:59.480 and some of the most probative evidence 17:59.480 --> 18:03.160 comes from the expert analyses of the maps themselves. 18:03.160 --> 18:05.640 And I'll specifically point to two kinds of evidence 18:05.640 --> 18:07.320 that we have often seen. 18:07.320 --> 18:09.480 One is the efficiency gap analysis, 18:09.480 --> 18:12.440 which I know this was born in Wisconsin, 18:13.000 --> 18:15.080 which really looks at the extent to which 18:15.080 --> 18:19.560 the map wastes votes of one party versus another, 18:19.560 --> 18:23.080 which courts have deemed a really reliable 18:23.560 --> 18:27.160 way of determining how extreme is this 18:27.160 --> 18:29.240 compared to previous Wisconsin maps 18:29.240 --> 18:31.080 and maps across the country. 18:31.080 --> 18:33.240 How far down the scale? 18:33.240 --> 18:35.400 Are we talking about efficiency gap of seven? 18:35.400 --> 18:37.880 Are we talking about an efficiency gap of 35? 18:37.880 --> 18:40.120 And that I think has been a really useful metric 18:40.120 --> 18:41.080 in other states. 18:41.080 --> 18:43.560 And the other piece of expert analysis 18:43.560 --> 18:45.800 that I think has been extremely helpful to courts 18:45.800 --> 18:47.880 is the outlier analysis. 18:47.880 --> 18:50.840 Your Honor mentioned looking at a bunch of simulated maps 18:50.840 --> 18:53.560 that don't take partisanship into effect. 18:54.360 --> 18:57.080 How often, if you're looking just at the political geography 18:57.080 --> 18:59.400 of the state and using that as the inputs, 18:59.400 --> 19:00.840 how often do you come up with a map 19:00.840 --> 19:03.560 that even approximates this kind of a split, 19:03.560 --> 19:05.720 or this kind of a partisan impact? 19:05.720 --> 19:09.320 And then you can see whether it's an extreme outlier or not. 19:09.320 --> 19:11.160 Those are just two of the pieces of evidence 19:11.160 --> 19:12.840 that in addition to any direct and other 19:12.840 --> 19:14.840 circumstantial evidence that is available 19:14.840 --> 19:17.400 on a state-specific or map-specific basis. 19:17.400 --> 19:19.640 And I want to, and so those are some of the tools 19:19.640 --> 19:20.920 that courts have used. 19:20.920 --> 19:23.320 To Justice Haggadorn's concern about, 19:23.320 --> 19:26.200 well, in this particular case, what happens since there's, 19:26.200 --> 19:28.840 you know, there's different map drawers or different stages. 19:28.840 --> 19:30.280 All of those questions go into like, 19:30.280 --> 19:32.520 well, what kind of evidence would plaintiffs be able 19:32.520 --> 19:34.840 to reduce at the lower court 19:34.840 --> 19:36.600 if we get to that fact-finding provision? 19:36.600 --> 19:38.600 It does not come to the question of whether or not 19:38.600 --> 19:40.760 partisan gerrymandering is a thing 19:40.760 --> 19:43.000 that is cognizable under Wisconsin law. 19:43.000 --> 19:45.160 Let me just ask a couple other questions 19:45.160 --> 19:46.840 regarding the fact-finding. 19:47.720 --> 19:52.520 Wisconsin's political geography is interesting. 19:52.520 --> 19:55.080 Every state's political geography is interesting. 19:55.080 --> 19:58.600 We tend to have two urban centers, obviously here, 19:58.600 --> 20:04.200 and in Milwaukee where Democrats tend to be clustered, 20:04.200 --> 20:08.600 as opposed to the more rural areas of our state. 20:08.600 --> 20:11.000 How is that taken into account? 20:11.000 --> 20:14.840 Just the political geography that is special, 20:14.840 --> 20:16.200 unique to Wisconsin? 20:16.200 --> 20:18.840 Yeah, and I think that specifically that the court 20:18.840 --> 20:20.520 will look at traditional districting principles, 20:20.520 --> 20:23.400 such as compactness and communities and counties 20:23.400 --> 20:25.480 and things like that, but I think that's especially 20:25.480 --> 20:27.080 where that efficiency gap comes in. 20:27.080 --> 20:29.880 And again, I'll point the court to the Pennsylvania decision. 20:29.880 --> 20:31.880 And the Pennsylvania partisan gerrymandering says, 20:31.880 --> 20:33.800 like, look, we can understand that there's, 20:33.800 --> 20:35.320 given the technology that we have, 20:35.320 --> 20:38.040 given the way that states that people reside, 20:38.040 --> 20:40.600 that there are ways to kind of check the boxes 20:40.600 --> 20:43.240 of things like compactness and county splits 20:43.240 --> 20:46.600 and still create very, very slanted maps. 20:46.600 --> 20:49.000 And that's why these tools, such as the efficiency gap, 20:49.000 --> 20:50.840 are able to smoke that out to make sure 20:50.840 --> 20:53.560 that we're not using the political geography 20:53.560 --> 20:56.680 to manipulate votes before votes are actually cast. 20:56.680 --> 21:00.680 And I just have one more question along these lines, 21:00.680 --> 21:05.800 which is we don't register by party affiliation in Wisconsin. 21:06.360 --> 21:10.440 So what evidence or information do you, 21:10.440 --> 21:13.800 would you be asking the experts and then the court 21:13.800 --> 21:17.800 to look at when it's making the determination, 21:17.800 --> 21:21.800 how is a court supposed to, 21:21.800 --> 21:24.800 or what evidence would you look at in that situation? 21:24.800 --> 21:26.800 Yeah, courts and political scientists routinely look 21:26.800 --> 21:30.800 at the political voting patterns of precinct basis. 21:30.800 --> 21:32.800 So they look at historical voting patterns. 21:32.800 --> 21:34.800 And that's something that these experts 21:34.800 --> 21:37.800 and courts around the country have examined for many years, 21:37.800 --> 21:39.800 not just in the partisan gerrymandering context, 21:39.800 --> 21:41.800 but in any kind of vote dilution claim, 21:41.800 --> 21:43.800 when you're trying to figure out what are the candidates of choice, 21:43.800 --> 21:45.800 and how are maps being drawn in a way that's meant 21:45.800 --> 21:48.800 to suppress a certain one viewpoint versus another? 21:48.800 --> 21:51.800 Council, we've already talked to think about articles, 21:51.800 --> 21:54.800 one section, one of the Wisconsin Constitution. 21:54.800 --> 21:57.800 But I'm just wondering about your take on this. 21:57.800 --> 22:00.800 The respondents argued that the Wisconsin Constitution 22:00.800 --> 22:03.800 does not have a provision addressing partisan gerrymandering. 22:03.800 --> 22:05.800 Like other states do. 22:05.800 --> 22:08.800 Other than article one, section one, 22:08.800 --> 22:11.800 do you have a response to that argument? 22:11.800 --> 22:14.800 Well, we point it to multiple provisions of article one 22:14.800 --> 22:16.800 for our partisan gerrymandering claim. 22:16.800 --> 22:18.800 And while it is true that the Wisconsin Constitution 22:18.800 --> 22:21.800 does not use the words partisan gerrymandering, 22:21.800 --> 22:24.800 that makes only make sense because the Wisconsin Constitution 22:24.800 --> 22:27.800 speaks in principles and not in particulars. 22:27.800 --> 22:29.800 It also does not use the words racial gerrymandering, 22:29.800 --> 22:32.800 or mal apportionment, or many of the other things 22:32.800 --> 22:35.800 that this court has found to be an equal protection violation 22:35.800 --> 22:37.800 because it is meant to apply those principles 22:37.800 --> 22:39.800 to the facts of a given claim. 22:39.800 --> 22:41.800 When it comes to the other states, yes, 22:41.800 --> 22:44.800 there are states like Florida or Ohio, 22:44.800 --> 22:46.800 which specifically contain constitutional provisions 22:46.800 --> 22:49.800 barring unlawful partisan intent or partisan gerrymandering. 22:49.800 --> 22:52.800 But there are also states like North Carolina or Pennsylvania 22:52.800 --> 22:55.800 or New Mexico that also do not use the words 22:55.800 --> 22:58.800 partisan gerrymandering, but have clauses very similar 22:58.800 --> 23:00.800 to the equal protection clause that we're talking about here, 23:00.800 --> 23:03.800 or free and equal election clauses that are more, 23:03.800 --> 23:06.800 that are more, sound more in principle 23:06.800 --> 23:08.800 and that are applied to those particulars. 23:08.800 --> 23:10.800 Thank you. 23:10.800 --> 23:13.800 Council, when we are looking at the, 23:13.800 --> 23:15.800 and this is more of a remand question, 23:15.800 --> 23:17.800 assuming that we get there, 23:17.800 --> 23:22.800 you just were speaking about 23:22.800 --> 23:29.800 looking at the efficiency gap 23:30.800 --> 23:34.800 and I'm curious, given the passage of time here, 23:34.800 --> 23:40.800 and how, you know, we don't have partisan registration in Wisconsin, 23:40.800 --> 23:44.800 is the correct data set to look at the 2010 data 23:44.800 --> 23:50.800 or the 2027 data, or 2026 data? 23:50.800 --> 23:55.800 You know, I'm just curious about 23:56.800 --> 23:59.800 the fact that a lot of time has passed 23:59.800 --> 24:04.800 from the sort of original sin that the plaintiffs are claiming here, 24:04.800 --> 24:07.800 which is the 2010 map. 24:07.800 --> 24:08.800 Can you respond to that? 24:08.800 --> 24:12.800 Even if this court decides to employ an intent element in the analysis 24:12.800 --> 24:15.800 that does look back at the original map drawers intent, 24:15.800 --> 24:18.800 courts would also look at the effects of that map 24:18.800 --> 24:19.800 and the ongoing effects of that map. 24:19.800 --> 24:20.800 And the current effects. 24:20.800 --> 24:21.800 The current effects. 24:21.800 --> 24:23.800 And that is traditionally in the case in partisan, 24:23.800 --> 24:24.800 again, not just partisan gerrymandering. 24:24.800 --> 24:26.800 Any kind of vote dilution claims. 24:26.800 --> 24:30.800 The courts and political scientists traditionally look to the most recent, 24:30.800 --> 24:34.800 all at four, six, eight years of election results 24:34.800 --> 24:37.800 to decide to look at a kind of a spate of elections 24:37.800 --> 24:40.800 to determine what has been the entrenched effect, 24:40.800 --> 24:43.800 if any, of the challenge map. 24:43.800 --> 24:47.800 And isn't the big question on the effects test 24:47.800 --> 24:51.800 that we are looking at is whether partisanship 24:51.800 --> 24:57.800 substantially dilutes a group, the disfavored groups right to vote? 24:57.800 --> 25:00.800 Isn't that at the core of the effects test? 25:00.800 --> 25:01.800 Absolutely, Your Honor. 25:01.800 --> 25:02.800 Okay. 25:02.800 --> 25:05.800 Because we haven't talked a lot about voting in this. 25:05.800 --> 25:07.800 But that is what we are looking at. 25:07.800 --> 25:08.800 Is that right? 25:08.800 --> 25:14.800 Whether someone's right to vote has been so substantially diluted 25:14.800 --> 25:16.800 that there is a constitutional harm. 25:16.800 --> 25:17.800 Absolutely. 25:17.800 --> 25:18.800 Okay. 25:18.800 --> 25:21.800 So that is the ultimate in the effects question, 25:21.800 --> 25:24.800 question that we want to ask. 25:24.800 --> 25:29.800 That is the ultimate question is whether or not the map has drawn, 25:29.800 --> 25:31.800 imposes such a thumb, and I get on to say, 25:31.800 --> 25:35.800 a fist on the scale in favor of one party over another 25:35.800 --> 25:38.800 that essentially is deciding elections before votes are cast. 25:38.800 --> 25:43.800 Well, the right to vote is my right to go to a place 25:43.800 --> 25:47.800 or mail in a ballot and vote. 25:47.800 --> 25:52.800 But you are conflating the effect of a vote 25:52.800 --> 25:54.800 with the right to vote. 25:54.800 --> 25:56.800 I see those as two different things. 25:56.800 --> 26:02.800 In Wisconsin, we have pretty liberal laws regarding your ability to vote. 26:02.800 --> 26:06.800 You can mail in ballots, you can go to your place 26:06.800 --> 26:09.800 and vote your right to vote. 26:09.800 --> 26:15.800 You are really arguing that the person's right to vote is 26:15.800 --> 26:17.800 not allowed to vote? 26:17.800 --> 26:19.800 No, it's dilution. 26:19.800 --> 26:20.800 That's what I asked. 26:20.800 --> 26:22.800 They have the right to vote. 26:22.800 --> 26:26.800 But my question was, is it so substantially diluted 26:26.800 --> 26:28.800 that there is a constitutional harm? 26:28.800 --> 26:30.800 Well, okay. 26:30.800 --> 26:35.800 Then that is conflating a right to vote with the effect of your vote. 26:35.800 --> 26:37.800 So in the vote dilution context, and again, 26:37.800 --> 26:40.800 we can take it out of the partisan gerrymandering question for a second. 26:40.800 --> 26:43.800 In any vote dilution claim, and these are part and parcel of state 26:43.800 --> 26:45.800 federal courts across the country for decades, 26:45.800 --> 26:49.800 the question is not just whether somebody had the ability 26:49.800 --> 26:52.800 to put a vote in the ballot box and have it counted. 26:52.800 --> 26:55.800 But courts have held that when it comes to vote dilution, 26:55.800 --> 26:58.800 it's about having a meaningful opportunity to vote, 26:58.800 --> 27:01.800 and a meaningful opportunity to translate your vote into power, 27:01.800 --> 27:03.800 not just to be able to show up at the ballot box, 27:03.800 --> 27:05.800 but to actually have an effect with your vote. 27:05.800 --> 27:08.800 And that is the essence of any vote dilution claim, 27:08.800 --> 27:10.800 including our partisan gerrymandering claim. 27:10.800 --> 27:12.800 We've never held that though. 27:12.800 --> 27:15.800 This court has never found a case to be a part of a map 27:15.800 --> 27:16.800 to be a partisan gerrymander. 27:16.800 --> 27:18.800 It is held that it is an unresolved issue of Wisconsin law. 27:18.800 --> 27:20.800 We've never held that. 27:20.800 --> 27:22.800 There's something like your votes being diluted 27:22.800 --> 27:24.800 if you can't elect the candidate of your choice. 27:24.800 --> 27:26.800 We've never held that before, right? 27:26.800 --> 27:29.800 Wisconsin federal courts have certainly talked about it 27:29.800 --> 27:31.800 in the Voting Rights Act context. 27:31.800 --> 27:32.800 Sure. 27:32.800 --> 27:34.800 I'm saying we're talking about this is an entirely Wisconsin law claim. 27:34.800 --> 27:37.800 So Wisconsin has never recognized what you just outlined. 27:37.800 --> 27:39.800 I agree, Your Honor, this court has made very clear 27:39.800 --> 27:41.800 that partisan gerrymandering remains 27:41.800 --> 27:43.800 an unresolved and important issue of Wisconsin. 27:43.800 --> 27:46.800 Has anyone ever asked us straight on to resolve that question 27:46.800 --> 27:48.800 before you're doing that here today? 27:48.800 --> 27:51.800 I believe that this is the first time that has come to this court. 27:51.800 --> 27:53.800 I know that there was a partisan gerrymandering claim 27:53.800 --> 27:56.800 in Gill in federal court, last cycle. 27:56.800 --> 28:00.800 But again, in the Johnson case, there was no partisan gerrymandering claim. 28:00.800 --> 28:02.800 The only claim was a malaportionment claim. 28:02.800 --> 28:04.800 Aren't you here last year? 28:04.800 --> 28:07.800 Didn't you file a petition for original action asking us to do this very thing? 28:07.800 --> 28:08.800 We did, Your Honor. 28:08.800 --> 28:10.800 And the court denied that petition for original action 28:10.800 --> 28:12.800 without issuing any opinion or judgment. 28:12.800 --> 28:17.800 So having exercised this discretion to not accept that procedural vehicle, 28:17.800 --> 28:19.800 we then exercised our right to go through them. 28:19.800 --> 28:24.800 And Johnson, we explicitly asked all the parties to that case, 28:24.800 --> 28:28.800 write us every single legal issue in the Wisconsin Constitution 28:28.800 --> 28:30.800 that needs to govern our adjudication, 28:30.800 --> 28:35.800 including the impact of partisanship on any maps we'd adopt. 28:35.800 --> 28:38.800 And we explicitly invited that claim, 28:38.800 --> 28:42.800 and we did not, and we answered that question. 28:42.800 --> 28:43.800 Did we not? 28:43.800 --> 28:44.800 In Johnson 1. 28:44.800 --> 28:48.800 In Johnson 1, in paragraph 8, the court said that it decided 28:48.800 --> 28:50.800 that it's not going to be looking at partisan effect, 28:50.800 --> 28:53.800 and it is not going to deem partisan claims just dishable, 28:53.800 --> 28:55.800 despite the fact that there was not a partisan gerrymandering claim 28:55.800 --> 28:56.800 before the court. 28:56.800 --> 28:58.800 But as Your Honor knows, Justice Hagenard, 28:58.800 --> 29:01.800 the concurrence did not join that paragraph 8. 29:01.800 --> 29:02.800 So that was only a three- 29:02.800 --> 29:05.800 That is true, but not accurate. 29:05.800 --> 29:09.800 I did not join paragraph 8, but I was very clear 29:09.800 --> 29:11.800 that I joined the holding on that question, 29:11.800 --> 29:13.800 and I wrote explicitly saying that. 29:13.800 --> 29:16.800 So while I did not join paragraph 8, 29:16.800 --> 29:20.800 there was no doubt about my joining that issue. 29:20.800 --> 29:22.800 So true, it didn't join paragraph 8, 29:22.800 --> 29:25.800 but I don't think it would be fair or accurate at all to suggest 29:25.800 --> 29:27.800 that that wasn't a holding of Johnson 1. 29:27.800 --> 29:28.800 Absolutely, Your Honor. 29:28.800 --> 29:32.800 And I guess all I have to go on is what the majority of this court held in Clark, 29:32.800 --> 29:35.800 which is that it remains an unresolved and important issue 29:35.800 --> 29:36.800 of Wisconsin law. 29:36.800 --> 29:37.800 That is not my opinion. 29:37.800 --> 29:38.800 That is this court's opinion. 29:38.800 --> 29:41.800 Is that an issue in Clark? 29:41.800 --> 29:43.800 The issue of partisan gerrymandering? 29:43.800 --> 29:45.800 No, which is why it did seem that it was not deciding 29:45.800 --> 29:47.800 that partisan gerrymandering claim. 29:47.800 --> 29:49.800 That was one of the questions brought to the court, 29:49.800 --> 29:51.800 but it decided not to take up that question 29:51.800 --> 29:53.800 and specifically said we are not deciding today 29:53.800 --> 29:55.800 whether or not partisan gerrymandering is. 29:55.800 --> 29:58.800 So any of those comments are probably a question. 29:58.800 --> 30:01.800 So any of those comments were probably dicta. 30:01.800 --> 30:03.800 They were not at the legal issue. 30:03.800 --> 30:05.800 That was being addressed at that point. 30:05.800 --> 30:09.800 That was a remedial question about how the court would exercise its powers 30:09.800 --> 30:12.800 after the violation, which simply focused on the constitutional 30:12.800 --> 30:13.800 contiguity question, right? 30:13.800 --> 30:15.800 Well, there's two different things that the court said. 30:15.800 --> 30:18.800 One is that the court said in Clark that we are not addressing 30:18.800 --> 30:21.800 what we believe to be an unresolved issue of Wisconsin law. 30:21.800 --> 30:23.800 That is partisan gerrymandering. 30:23.800 --> 30:25.800 So I'm taking the majority of the court at its word 30:25.800 --> 30:28.800 that is an unresolved issue of Wisconsin law that we, of course, 30:28.800 --> 30:30.800 are asking in the alternative the court resolved today. 30:30.800 --> 30:33.800 But the other part of Johnson that specifically overrules 30:33.800 --> 30:36.800 lease change as pre-expressed in any of the Johnson opinions, 30:36.800 --> 30:39.800 I don't believe anybody here has argued that that part is dicta. 30:39.800 --> 30:43.800 That is what binds Wisconsin with this court and Wisconsin courts 30:43.800 --> 30:45.800 when it comes to court-drawn maps, 30:45.800 --> 30:49.800 and it is a court-drawn map that continues to affect elections 30:49.800 --> 30:52.800 in Congress for Wisconsin going forward, 30:52.800 --> 30:54.800 and that's the court-drawn map that we're saying needs to be 30:54.800 --> 30:57.800 revisited in light of the holding in Clark. 30:58.800 --> 31:01.800 Are there any other questions? 31:01.800 --> 31:03.800 I think we're good. 31:03.800 --> 31:05.800 Thank you, Your Honor. 31:05.800 --> 31:07.800 I'm not seeing any. 31:07.800 --> 31:10.800 It is 1028. 31:10.800 --> 31:12.800 We're going to take a quick break. 31:12.800 --> 31:18.800 I might recommend you guys make sure your Uber apps are working. 31:18.800 --> 31:20.800 Your Uber Eats apps are working for lunch. 31:20.800 --> 31:26.800 We'll take a break at lunch, but it might be somewhat 31:26.800 --> 31:27.800 shortened. 31:27.800 --> 31:30.800 I don't want anyone to get hangry in here. 31:30.800 --> 31:33.800 So maybe just think forward a little bit. 31:33.800 --> 31:36.800 We'll take a quick break and try to get back in 10 minutes or so. 31:36.800 --> 31:38.800 Thank you.