1 00:00:00,000 --> 00:00:05,000 Or give me a couple of people to see if that's all I want. 2 00:00:30,000 --> 00:00:34,000 I'll give you a couple of people to see if that's all I want. 3 00:00:34,000 --> 00:00:38,000 I'll give you a couple of people to see if that's all I want. 4 00:00:38,000 --> 00:00:42,000 I'll give you a couple of people to see if that's all I want. 5 00:00:42,000 --> 00:00:46,000 I'll give you a couple of people to see if that's all I want. 6 00:00:46,000 --> 00:00:50,000 I'll give you a couple of people to see if that's all I want. 7 00:00:50,000 --> 00:00:54,000 I'll give you a couple of people to see if that's all I want. 8 00:00:54,000 --> 00:00:58,000 I'll give you a couple of people to see if that's all I want. 9 00:00:58,000 --> 00:01:02,000 I'll give you a couple of people to see if that's all I want. 10 00:01:02,000 --> 00:01:06,000 I'll give you a couple of people to see if that's all I want. 11 00:01:06,000 --> 00:01:10,000 I'll give you a couple of people to see if that's all I want. 12 00:01:10,000 --> 00:01:14,000 I'll give you a couple of people to see if that's all I want. 13 00:01:14,000 --> 00:01:18,000 I'll give you a couple of people to see if that's all I want. 14 00:01:18,000 --> 00:01:22,000 I'll give you a couple of people to see if that's all I want. 15 00:01:22,000 --> 00:01:26,000 I'll give you a couple of people to see if that's all I want. 16 00:01:26,000 --> 00:01:30,000 I'll give you a couple of people to see if that's all I want. 17 00:01:30,000 --> 00:01:34,000 I'll give you a couple of people to see if that's all I want. 18 00:01:34,000 --> 00:01:38,000 I'll give you a couple of people to see if that's all I want. 19 00:01:38,000 --> 00:01:42,000 I'll give you a couple of people to see if that's all I want. 20 00:01:42,000 --> 00:01:46,000 I'll give you a couple of people to see if that's all I want. 21 00:01:46,000 --> 00:01:50,000 I'll give you a couple of people to see if that's all I want. 22 00:01:50,000 --> 00:01:54,000 I'll give you a couple of people to see if that's all I want. 23 00:01:54,000 --> 00:01:58,000 I'll give you a couple of people to see if that's all I want. 24 00:01:58,000 --> 00:02:02,000 I'll give you a couple of people to see if that's all I want. 25 00:02:02,000 --> 00:02:06,000 I'll give you a couple of people to see if that's all I want. 26 00:02:06,000 --> 00:02:10,000 I'll give you a couple of people to see if that's all I want. 27 00:02:10,000 --> 00:02:14,000 I'll give you a couple of people to see if that's all I want. 28 00:02:14,000 --> 00:02:18,000 I'll give you a couple of people to see if that's all I want. 29 00:02:18,000 --> 00:02:22,000 I'll give you a couple of people to see if that's all I want. 30 00:02:22,000 --> 00:02:26,000 I'll give you a couple of people to see if that's all I want. 31 00:02:26,000 --> 00:02:30,000 I'll give you a couple of people to see if that's all I want. 32 00:02:34,000 --> 00:02:38,000 I'll give you a couple of people to see if that's all I want. 33 00:02:38,000 --> 00:02:42,000 I'll give you a couple of people to see if that's all I want. 34 00:02:42,000 --> 00:02:46,000 Thank you very much. 35 00:03:12,000 --> 00:03:13,000 Yeah. 36 00:03:13,000 --> 00:03:14,000 Yeah. 37 00:03:14,000 --> 00:03:15,000 Yeah. 38 00:03:15,000 --> 00:03:16,000 Yeah. 39 00:03:16,000 --> 00:03:17,000 Yeah. 40 00:03:17,000 --> 00:03:18,000 Yeah. 41 00:03:18,000 --> 00:03:19,000 Yeah. 42 00:03:19,000 --> 00:03:20,000 Yeah. 43 00:03:20,000 --> 00:03:21,000 Yeah. 44 00:03:21,000 --> 00:03:22,000 Yeah. 45 00:03:22,000 --> 00:03:23,000 Yeah. 46 00:03:23,000 --> 00:03:24,000 Yeah. 47 00:03:24,000 --> 00:03:25,000 Yeah. 48 00:03:25,000 --> 00:03:26,000 Yeah. 49 00:03:26,000 --> 00:03:27,000 Yeah. 50 00:03:27,000 --> 00:03:28,000 Yeah. 51 00:03:28,000 --> 00:03:29,000 Yeah. 52 00:03:29,000 --> 00:03:30,000 Yeah. 53 00:03:30,000 --> 00:03:31,000 Yeah. 54 00:03:31,000 --> 00:03:32,000 Yeah. 55 00:03:32,000 --> 00:03:33,000 Yeah. 56 00:03:33,000 --> 00:03:34,000 Yeah. 57 00:03:34,000 --> 00:03:35,000 Yeah. 58 00:03:35,000 --> 00:03:36,000 Yeah. 59 00:03:36,000 --> 00:03:37,000 Yeah. 60 00:03:37,000 --> 00:03:38,000 Yeah. 61 00:03:38,000 --> 00:03:39,000 Yeah. 62 00:03:39,000 --> 00:03:40,000 Yeah. 63 00:03:40,000 --> 00:03:41,000 Yeah. 64 00:03:41,000 --> 00:03:42,000 Yeah. 65 00:03:42,000 --> 00:03:43,000 Yeah. 66 00:03:43,000 --> 00:03:50,000 Yeah. 67 00:03:50,000 --> 00:03:58,000 Yeah. 68 00:03:58,000 --> 00:04:11,000 Yeah. 69 00:04:11,000 --> 00:04:18,000 They're not going to sell as much as I like. 70 00:04:18,000 --> 00:04:23,000 They're not going to sell as much as I like. 71 00:04:23,000 --> 00:04:28,000 They're not going to sell as much as I like. 72 00:04:28,000 --> 00:04:34,000 They're not going to sell as much as I like. 73 00:04:34,000 --> 00:04:39,000 They're not going to sell as much as I like. 74 00:04:39,000 --> 00:04:43,000 Just mac and cheese pizza, you want to get that? 75 00:04:43,000 --> 00:04:47,000 You're done with cheese for a little while. 76 00:04:47,000 --> 00:04:51,000 Yeah. 77 00:04:51,000 --> 00:04:55,000 Yeah. 78 00:04:55,000 --> 00:05:01,000 I'm going to get some lunch over here. 79 00:05:01,000 --> 00:05:05,000 So nice to sit down. 80 00:05:05,000 --> 00:05:07,000 Which is probably going to be nice. 81 00:05:07,000 --> 00:05:12,000 We're going to be here about as long as we can. 82 00:05:12,000 --> 00:05:17,000 I don't know. 83 00:05:17,000 --> 00:05:20,000 I don't know. 84 00:05:20,000 --> 00:05:23,000 I mean, we don't have a dream, but we're in this kind of system all day. 85 00:05:23,000 --> 00:05:25,000 We're in a lot of profiting. 86 00:05:25,000 --> 00:05:26,000 What do you think? 87 00:05:26,000 --> 00:05:28,000 What if you got some sandwiches for a computer in the office? 88 00:05:28,000 --> 00:05:29,000 Yeah. 89 00:05:29,000 --> 00:05:30,000 Do you guys care what it is? 90 00:05:30,000 --> 00:05:31,000 It's the same thing? 91 00:05:31,000 --> 00:05:34,000 No. 92 00:05:34,000 --> 00:05:37,000 Yeah. 93 00:05:38,000 --> 00:05:47,000 I'm having the opportunity to press the board. 94 00:05:47,000 --> 00:05:51,000 Yeah. 95 00:05:51,000 --> 00:06:06,000 Would you like your stuff in the room? 96 00:06:07,000 --> 00:06:16,000 I think there's a reasonable... 97 00:06:16,000 --> 00:06:20,000 Are you going to say it's going to be a combination of life? 98 00:06:20,000 --> 00:06:23,000 Yeah. 99 00:06:23,000 --> 00:06:25,000 I think I missed this. 100 00:06:25,000 --> 00:06:29,000 Regular. 101 00:06:29,000 --> 00:06:32,000 No one's going to know or care. 102 00:06:32,000 --> 00:06:34,000 It's not your case. 103 00:06:34,000 --> 00:06:36,000 You don't have to be through hell. 104 00:06:36,000 --> 00:06:37,000 Right. 105 00:06:37,000 --> 00:06:38,000 You're an audience. 106 00:06:38,000 --> 00:06:39,000 You're a spectator. 107 00:06:39,000 --> 00:06:43,000 You're a spectator. 108 00:06:43,000 --> 00:06:48,000 What do you mean it's true? 109 00:06:48,000 --> 00:06:53,000 It'll be probably a good tweet case. 110 00:06:53,000 --> 00:06:57,000 Which means it's going to be like, let's say, let's break it down. 111 00:06:57,000 --> 00:07:00,000 I think I'll be done by this. 112 00:07:00,000 --> 00:07:10,000 I think I'll be done by this. 113 00:07:10,000 --> 00:07:15,000 I think I'll be done by this. 114 00:07:15,000 --> 00:07:20,000 I think I'll be done by this. 115 00:07:20,000 --> 00:07:23,000 I thought you said the entire thing. 116 00:07:23,000 --> 00:07:26,000 90 minutes is about a time between schedule 117 00:07:26,000 --> 00:07:28,000 and when there are your systems. 118 00:07:28,000 --> 00:07:32,000 That's why you were starting by now. 119 00:07:32,000 --> 00:07:33,000 Right. 120 00:07:33,000 --> 00:07:36,000 We still have four. 121 00:07:36,000 --> 00:07:39,000 I think I'll be faster. 122 00:07:39,000 --> 00:07:45,000 I'm going to talk about it. 123 00:07:45,000 --> 00:07:48,000 Almost there. 124 00:07:49,000 --> 00:07:56,000 CHATTER 125 00:07:56,000 --> 00:07:59,000 CHATTER 126 00:07:59,000 --> 00:08:03,000 CHATTER 127 00:08:03,000 --> 00:08:07,000 CHATTER 128 00:08:07,000 --> 00:08:15,000 CHATTER 129 00:08:15,000 --> 00:08:17,000 I would like to thank you very much for being here. 130 00:08:17,000 --> 00:08:18,000 I would like to thank you very much for being here. 131 00:08:18,000 --> 00:08:19,000 I would like to thank you very much for being here. 132 00:08:19,000 --> 00:08:20,000 I would like to thank you very much for being here. 133 00:08:20,000 --> 00:08:21,000 I would like to thank you very much for being here. 134 00:08:21,000 --> 00:08:22,000 I would like to thank you very much for being here. 135 00:08:22,000 --> 00:08:23,000 I would like to thank you very much for being here. 136 00:08:23,000 --> 00:08:24,000 I would like to thank you very much for being here. 137 00:08:24,000 --> 00:08:25,000 I would like to thank you very much for being here. 138 00:08:25,000 --> 00:08:26,000 I would like to thank you very much for being here. 139 00:08:26,000 --> 00:08:27,000 I would like to thank you very much for being here. 140 00:08:27,000 --> 00:08:28,000 I would like to thank you very much for being here. 141 00:08:28,000 --> 00:08:29,000 I would like to thank you very much for being here. 142 00:08:29,000 --> 00:08:30,000 I would like to thank you very much for being here. 143 00:08:30,000 --> 00:08:31,000 I would like to thank you very much for being here. 144 00:08:31,000 --> 00:08:32,000 I would like to thank you very much for being here. 145 00:08:45,000 --> 00:08:47,000 I would like to thank you very much for being here. 146 00:08:47,000 --> 00:08:48,000 I would like to thank you very much for being here. 147 00:08:48,000 --> 00:08:49,000 I would like to thank you very much for being here. 148 00:08:49,000 --> 00:08:50,000 I would like to thank you very much for being here. 149 00:08:50,000 --> 00:08:51,000 I would like to thank you very much for being here. 150 00:08:51,000 --> 00:08:52,000 I would like to thank you very much for being here. 151 00:08:52,000 --> 00:08:53,000 I would like to thank you very much for being here. 152 00:08:53,000 --> 00:08:54,000 I would like to thank you very much for being here. 153 00:08:54,000 --> 00:08:55,000 I would like to thank you very much for being here. 154 00:08:55,000 --> 00:08:56,000 I would like to thank you very much for being here. 155 00:08:56,000 --> 00:08:57,000 I would like to thank you very much for being here. 156 00:08:57,000 --> 00:08:58,000 I would like to thank you very much for being here. 157 00:08:58,000 --> 00:08:59,000 I would like to thank you very much for being here. 158 00:08:59,000 --> 00:09:00,000 I would like to thank you very much for being here. 159 00:09:00,000 --> 00:09:01,000 I would like to thank you very much for being here. 160 00:09:01,000 --> 00:09:02,000 I would like to thank you very much for being here. 161 00:09:15,000 --> 00:09:16,000 I would like to thank you very much for being here. 162 00:09:16,000 --> 00:09:17,000 I would like to thank you very much for being here. 163 00:09:17,000 --> 00:09:18,000 I would like to thank you very much for being here. 164 00:09:18,000 --> 00:09:19,000 I would like to thank you very much for being here. 165 00:09:19,000 --> 00:09:20,000 I would like to thank you very much for being here. 166 00:09:20,000 --> 00:09:21,000 I would like to thank you very much for being here. 167 00:09:21,000 --> 00:09:22,000 I would like to thank you very much for being here. 168 00:09:22,000 --> 00:09:23,000 I would like to thank you very much for being here. 169 00:09:23,000 --> 00:09:24,000 I would like to thank you very much for being here. 170 00:09:24,000 --> 00:09:25,000 I would like to thank you very much for being here. 171 00:09:25,000 --> 00:09:26,000 I would like to thank you very much for being here. 172 00:09:26,000 --> 00:09:27,000 I would like to thank you very much for being here. 173 00:09:27,000 --> 00:09:28,000 I would like to thank you very much for being here. 174 00:09:28,000 --> 00:09:29,000 I would like to thank you very much for being here. 175 00:09:29,000 --> 00:09:30,000 I would like to thank you very much for being here. 176 00:09:30,000 --> 00:09:31,000 I would like to thank you very much for being here. 177 00:09:45,000 --> 00:09:47,000 I would like to thank you very much for being here. 178 00:09:47,000 --> 00:09:48,000 I would like to thank you very much for being here. 179 00:09:48,000 --> 00:09:49,000 I would like to thank you very much for being here. 180 00:09:49,000 --> 00:09:50,000 I would like to thank you very much for being here. 181 00:09:50,000 --> 00:09:51,000 I would like to thank you very much for being here. 182 00:09:51,000 --> 00:09:52,000 I would like to thank you very much for being here. 183 00:09:52,000 --> 00:09:53,000 I would like to thank you very much for being here. 184 00:09:53,000 --> 00:09:54,000 I would like to thank you very much for being here. 185 00:09:54,000 --> 00:09:55,000 I would like to thank you very much for being here. 186 00:09:55,000 --> 00:09:56,000 I would like to thank you very much for being here. 187 00:09:56,000 --> 00:09:57,000 I would like to thank you very much for being here. 188 00:09:57,000 --> 00:09:58,000 I would like to thank you very much for being here. 189 00:09:58,000 --> 00:09:59,000 I would like to thank you very much for being here. 190 00:09:59,000 --> 00:10:00,000 I would like to thank you very much for being here. 191 00:10:00,000 --> 00:10:01,000 I would like to thank you very much for being here. 192 00:10:01,000 --> 00:10:02,000 I would like to thank you very much for being here. 193 00:10:15,000 --> 00:10:44,000 Everybody welcome back. 194 00:10:44,000 --> 00:10:53,500 At long last year, if you can ask you something as you're taking the podium, sometimes when 195 00:10:53,500 --> 00:10:57,860 people are splitting up arguments, they're each taking an issue, you were going to start 196 00:10:57,860 --> 00:10:59,220 with that, weren't you? 197 00:10:59,220 --> 00:11:00,220 You weren't going to. 198 00:11:00,220 --> 00:11:05,120 Okay, are you each going to take an issue or not, just so that we can save some questions 199 00:11:05,120 --> 00:11:06,120 for Mr. Seith? 200 00:11:06,120 --> 00:11:08,940 No, you're in our group. 201 00:11:08,940 --> 00:11:11,140 All three of us are ready for all your questions. 202 00:11:11,140 --> 00:11:13,940 You will let the argument unfold, however it's most helpful. 203 00:11:13,940 --> 00:11:14,940 Oh, cool. 204 00:11:14,940 --> 00:11:15,940 Okay, that's great. 205 00:11:15,940 --> 00:11:20,900 Then we are ready whenever you are. 206 00:11:20,900 --> 00:11:21,900 Good morning. 207 00:11:21,900 --> 00:11:25,860 May I please the court tailor me in on behalf of the Wisconsin legislature? 208 00:11:25,860 --> 00:11:32,360 Four and a half years ago, this court adopted the governor's proposed remedy for the then 209 00:11:32,360 --> 00:11:35,620 malapportioned congressional districts. 210 00:11:35,620 --> 00:11:41,740 The court held unequivocally that that remedy complied with all applicable state and federal 211 00:11:41,740 --> 00:11:43,740 laws. 212 00:11:43,740 --> 00:11:50,060 Nothing has changed since then that could warrant reentering the political thicket of congressional 213 00:11:50,060 --> 00:11:57,220 redistricting and putting this court's injunction on trial in a circuit court. 214 00:11:57,220 --> 00:12:02,760 This court can affirm the dismissal of plaintiffs complaint on these simple grounds without 215 00:12:02,800 --> 00:12:08,640 reaching the merits, which is that the circuit court was exactly right that it could not 216 00:12:08,640 --> 00:12:14,320 unwind this court's final judgment in Johnson too. 217 00:12:14,320 --> 00:12:19,800 Likewise this court could affirm simply by holding plaintiffs waited too long to bring 218 00:12:19,800 --> 00:12:27,160 this suit in circuit court just as the Illinois Supreme Court held last year for the districting 219 00:12:27,160 --> 00:12:30,640 challenge in Illinois. 220 00:12:30,640 --> 00:12:36,880 Where would there be any reason for this court, for the circuit court, to unwind the 221 00:12:36,880 --> 00:12:39,640 Johnson too injunction? 222 00:12:39,640 --> 00:12:45,960 As to plaintiff's separation of powers arguments, the circuit court was exactly right that plaintiffs 223 00:12:45,960 --> 00:12:51,960 arguments rewrite this court's words in Clark to say something that this court did not say. 224 00:12:51,960 --> 00:12:57,080 The court needs no more authority than Clark itself to know that at least changes remedy 225 00:12:57,080 --> 00:13:02,080 is not categorically unconstitutional. 226 00:13:02,080 --> 00:13:03,080 That's cool. 227 00:13:03,080 --> 00:13:07,080 I want to go back to Clark, which I haven't set up to this point, but I'll say now it's 228 00:13:07,080 --> 00:13:09,080 a well written opinion. 229 00:13:09,080 --> 00:13:12,080 Indeed, your honor. 230 00:13:12,080 --> 00:13:14,080 Thank you. 231 00:13:14,080 --> 00:13:19,320 I appreciate it fishing for compliments this morning. 232 00:13:19,320 --> 00:13:24,280 It was really clear in 63 that these changes are unworkable in practice. 233 00:13:24,280 --> 00:13:27,920 It went through the whole analysis about it being unworkable and all the reasons it 234 00:13:27,920 --> 00:13:30,760 was unworkable. 235 00:13:30,760 --> 00:13:39,560 I certainly recall vividly sitting in this courtroom as we talked about the peanuts analogy of 236 00:13:39,560 --> 00:13:47,400 Lucy moving the football away from Charlie Brown because no one who was advocating for 237 00:13:47,400 --> 00:13:51,200 least change in this courtroom could agree to what it meant. 238 00:13:51,200 --> 00:13:55,040 It was at least change as far as the number of people, the population, and the district 239 00:13:55,040 --> 00:14:03,720 was at least change as to the lines where we were trying to least change as to municipalities. 240 00:14:03,720 --> 00:14:12,120 It didn't work and there was nothing in the Constitution as Justice Taylor brought out 241 00:14:12,120 --> 00:14:13,120 a little while ago. 242 00:14:13,120 --> 00:14:14,960 There was nothing in Wisconsin law. 243 00:14:14,960 --> 00:14:22,680 There was nothing in the Wisconsin Constitution that brought it forward that could be relied 244 00:14:22,680 --> 00:14:24,640 on to be the basis for it. 245 00:14:24,640 --> 00:14:30,640 In paragraph 63 of Clark just says, as illustrated across the course of the Johnson litigation, 246 00:14:30,640 --> 00:14:32,360 least change is unworkable in practice. 247 00:14:32,360 --> 00:14:38,120 As such, we overrule any portion of Johnson 1, Johnson 2 and Johnson 3 that mandate at 248 00:14:38,120 --> 00:14:39,640 least change approach. 249 00:14:39,640 --> 00:14:47,720 I would like to know, what else could a judge or justice possibly write in an opinion to 250 00:14:47,720 --> 00:14:52,080 say, we are overturning this. 251 00:14:52,080 --> 00:14:54,520 This does not apply going forward. 252 00:14:54,520 --> 00:14:55,800 This was wrong. 253 00:14:55,800 --> 00:14:58,280 It was unworkable in practice. 254 00:14:58,280 --> 00:15:02,040 I don't know how much more clearer I could have done it, but apparently there's something 255 00:15:02,040 --> 00:15:04,920 else I should have done. 256 00:15:04,920 --> 00:15:06,600 What do you suggest that was? 257 00:15:06,600 --> 00:15:10,440 Chief Justice Crossview took the words right out of my mouth, which is that we're not going 258 00:15:10,440 --> 00:15:13,000 to apply this going forward. 259 00:15:13,000 --> 00:15:19,880 But the court's discussion about how least changes is unworkable is not synonymous with 260 00:15:19,880 --> 00:15:26,240 a holding that least changes what's unconstitutional when applied in Johnson 2. 261 00:15:26,240 --> 00:15:31,000 And as for Justice Taylor's question about where this least changes approach comes from, 262 00:15:31,000 --> 00:15:34,400 I think some table setting is really important here. 263 00:15:34,400 --> 00:15:39,400 You receive Justice Taylor an answer about Clark and the state constitution. 264 00:15:39,400 --> 00:15:41,760 Clark involved the state house districts. 265 00:15:41,760 --> 00:15:44,600 Of course, we are here about the congressional districts. 266 00:15:44,600 --> 00:15:49,120 And so to the question of where a least changes approach might come from, I would point the 267 00:15:49,120 --> 00:15:54,080 court to the federal constitution here in this case, which assigns power to the legislature 268 00:15:54,080 --> 00:15:56,920 for redistricting, not courts. 269 00:15:56,920 --> 00:16:03,240 And when the last enacted plan by the legislature is Act 44, of course, the elections clause 270 00:16:03,240 --> 00:16:04,240 could anticipate this. 271 00:16:04,240 --> 00:16:11,640 But we said, I'm sorry to interrupt you, but we said that those maps, because they did 272 00:16:11,640 --> 00:16:17,320 not, the population had shifted, obviously, in the ten years, those maps could no longer 273 00:16:17,320 --> 00:16:23,320 be violated, they violated federal law, they violated the constitution. 274 00:16:23,320 --> 00:16:25,320 Those maps were no longer in effect, they couldn't be. 275 00:16:25,320 --> 00:16:30,840 Well, Your Honor, I think that mistakes the nature of the judicial power, which is when 276 00:16:30,880 --> 00:16:39,160 the court examined Act 44 and held Act 44 was unconstitutionally malapportioned, the court 277 00:16:39,160 --> 00:16:44,840 was not striking down the law or erasing it from the Wisconsin statutes. 278 00:16:44,840 --> 00:16:49,840 The court was remedying the malapportionment of those districts. 279 00:16:49,840 --> 00:16:55,920 Those districts are still the law on the books today with the additional layer of this court's 280 00:16:55,920 --> 00:17:00,920 injunction remedying the malapportionment of those districts at the margin. 281 00:17:00,920 --> 00:17:06,600 And as for the deference to the legislature and whether that could possibly work a constitutional 282 00:17:06,600 --> 00:17:11,840 violation in a congressional redistricting case, any such rule would come as an enormous 283 00:17:11,840 --> 00:17:17,200 surprise, I would think, to the U.S. Supreme Court, which states have done, state courts 284 00:17:17,200 --> 00:17:23,760 have looked at the issue of judicial ability, we have ten courts now that have come up with 285 00:17:23,760 --> 00:17:29,680 a standard, none of those Supreme Court decisions have been overturned, they've not 286 00:17:29,680 --> 00:17:33,880 been accepted on cert, they have not been accepted on a stay. 287 00:17:33,880 --> 00:17:42,360 So we see state courts coming up with standards to measure whether votes have been improperly 288 00:17:42,360 --> 00:17:46,080 and unconstitutionally and substantially deluded. 289 00:17:46,080 --> 00:17:52,600 How do we not have that same ability like these other state courts, state Supreme Court's 290 00:17:53,040 --> 00:17:57,400 and your honor, I do have arguments in response to the partisan gerrymandering claim and other 291 00:17:57,400 --> 00:18:01,800 states have done it, but I would like to finish my point on justice for Obscuse, the least 292 00:18:01,800 --> 00:18:06,920 changes approach and the very separate claim that plaintiffs have said they've brought here. 293 00:18:06,920 --> 00:18:11,320 And as for what state courts have done, let me start with the U.S. Supreme Court. 294 00:18:11,320 --> 00:18:16,280 In cases like white against wiser, the U.S. Supreme Court reversed a court for refusing 295 00:18:16,280 --> 00:18:21,680 to defer to the political judgments of the Texas legislature in a malapportionment case. 296 00:18:21,680 --> 00:18:27,480 And then state courts as diverse as courts in Minnesota, Oklahoma, South Carolina, and 297 00:18:27,480 --> 00:18:30,760 New Hampshire have all done exactly what this court did. 298 00:18:30,760 --> 00:18:32,760 Let me ask you some of that. 299 00:18:32,760 --> 00:18:36,640 We are not talking about maps that the legislature put in place. 300 00:18:36,640 --> 00:18:41,360 The legislature put in place maps, the governor vetoed those maps. 301 00:18:41,360 --> 00:18:46,600 You are talking about a legislature from 2011, correct. 302 00:18:46,600 --> 00:18:52,040 And just as courts in New Hampshire, Oklahoma, and all the other states I just listed off 303 00:18:52,040 --> 00:18:57,320 deferred to the same sort of maps, these are impasse cases, malapportionment cases. 304 00:18:57,320 --> 00:19:03,880 And those courts say we are going to defer to the last enacted map because that is the 305 00:19:03,880 --> 00:19:09,360 last enacted map by the people's representatives and our job here is to remedy malapportionment. 306 00:19:09,360 --> 00:19:11,840 It's not to strike a new political balance. 307 00:19:11,840 --> 00:19:14,840 We should talk about the people's representatives, right? 308 00:19:14,840 --> 00:19:18,960 Because if you start with Article 1, Section 1 of our Constitution, which says that the 309 00:19:18,960 --> 00:19:25,160 government derives its power from the consent of the governed, from the people, yes? 310 00:19:25,160 --> 00:19:26,160 Yes. 311 00:19:26,160 --> 00:19:27,160 Yes. 312 00:19:27,160 --> 00:19:28,160 Okay. 313 00:19:28,160 --> 00:19:32,480 And in your view, that means the legislature, not the court, that they should be deciding 314 00:19:32,480 --> 00:19:37,280 this issue of redistricting the 2011 legislature in this case, right? 315 00:19:37,280 --> 00:19:38,280 Yes. 316 00:19:38,280 --> 00:19:39,280 Okay. 317 00:19:39,280 --> 00:19:42,760 Because that legislature, if I'm understanding your argument, was elected by the people. 318 00:19:42,760 --> 00:19:44,840 They're closest to the people. 319 00:19:44,840 --> 00:19:47,200 They can be held accountable by the people. 320 00:19:47,200 --> 00:19:48,200 Yes. 321 00:19:48,200 --> 00:19:49,200 Yes. 322 00:19:49,200 --> 00:19:50,200 Okay. 323 00:19:50,200 --> 00:19:52,680 This is where I have some issues. 324 00:19:52,680 --> 00:20:01,800 The legislature that passed those original maps wasn't any old legislature, right? 325 00:20:01,800 --> 00:20:09,160 The legislature that passed that maps, they came from districts that many people claimed 326 00:20:09,160 --> 00:20:14,520 were the most gerrymandered in the entire country. 327 00:20:14,520 --> 00:20:20,640 They were, as some say, a prime example of representatives choosing their voters rather 328 00:20:20,640 --> 00:20:24,960 than the other way around, rather than voters choosing their representatives. 329 00:20:24,960 --> 00:20:30,520 And because of those maps, many people felt that their votes were diluted, that they weren't 330 00:20:30,520 --> 00:20:32,000 representative of the people. 331 00:20:32,000 --> 00:20:35,280 They said that they felt like those districts lacked in representation. 332 00:20:35,280 --> 00:20:37,120 People felt like those maps weren't fair. 333 00:20:37,120 --> 00:20:41,040 Some people even called those maps rigged. 334 00:20:41,040 --> 00:20:46,920 That the legislators that came from those districts came from rigged maps. 335 00:20:46,920 --> 00:20:52,520 It is that legislature, those representatives from those districts described as extremely 336 00:20:52,520 --> 00:20:56,520 gerrymandered that drafted the maps that we are talking about today. 337 00:20:56,520 --> 00:21:01,800 The maps that got baked in in 2021. 338 00:21:01,800 --> 00:21:05,720 And if I'm understanding your argument that under these change, which you're ardently 339 00:21:05,720 --> 00:21:14,240 defending, those maps, the baked in ones from the 2011 legislature, would go forward into 340 00:21:14,240 --> 00:21:17,160 perpetuity indefinitely. 341 00:21:17,160 --> 00:21:20,280 And I don't understand how that is not unconstitutional. 342 00:21:20,280 --> 00:21:26,720 Well, you're honored whether we agree with it or not, the U.S. Constitution assigns redistricting 343 00:21:26,720 --> 00:21:29,280 authority to the legislature. 344 00:21:29,280 --> 00:21:35,760 Because 250 years ago, when we declared revolution, we said the people decide through their elected 345 00:21:35,760 --> 00:21:37,080 representatives. 346 00:21:37,080 --> 00:21:41,760 And there are two solutions for that, either of which plaintiffs could pursue. 347 00:21:41,760 --> 00:21:46,720 First, they could lobby Congress because, of course, Congress likewise has power under 348 00:21:46,720 --> 00:21:52,880 the elections clause to stop what some have said should not have happened in 2011. 349 00:21:52,880 --> 00:21:59,840 Or like Florida, like New York, like Ohio, plaintiffs could do the hard work of creating 350 00:21:59,840 --> 00:22:05,000 a constitutional amendment and saying any politics in redistricting is forbidden. 351 00:22:05,000 --> 00:22:10,240 Any desire to send Speaker Paul Ryan back to Congress is forbidden. 352 00:22:10,240 --> 00:22:11,240 They have not done that. 353 00:22:11,240 --> 00:22:17,560 And so, yes, as we stand here today, the only neutral way for this court to have proceeded 354 00:22:17,560 --> 00:22:23,880 in a malapportionment case about congressional districts was to just defer to the existing 355 00:22:23,880 --> 00:22:30,160 political and policy choices, like sending senior statesmen, be it Speaker Ryan, or 356 00:22:30,160 --> 00:22:35,120 Representative Obie back to Congress, and lessen until there's a change from Congress 357 00:22:35,120 --> 00:22:39,480 itself or a constitutional change to the Wisconsin Constitution. 358 00:22:39,480 --> 00:22:46,200 And that is regardless of how much constitutional harm is caused to an individual's right to 359 00:22:46,200 --> 00:22:47,200 vote. 360 00:22:48,200 --> 00:22:56,160 Your Honor, as Justice Ziegler explained, every individual in Wisconsin can go to vote 361 00:22:56,160 --> 00:23:01,320 on election day or mail in their ballot and cast an equally weighted vote. 362 00:23:01,320 --> 00:23:03,320 That's been true in Wisconsin, by the way, since- 363 00:23:03,320 --> 00:23:05,160 That's not what gerrymandering allows. 364 00:23:05,160 --> 00:23:14,520 Is it gerrymandering is the legislature determining their voters and assigning, treating a class 365 00:23:14,520 --> 00:23:18,920 of voters as unfavored? 366 00:23:18,920 --> 00:23:27,720 And that can have the impact of deluding in individuals' right to vote. 367 00:23:27,720 --> 00:23:33,960 So they vote, yes, they go and vote, but they're votes meaningless because politicians have 368 00:23:33,960 --> 00:23:36,200 determined who their voters are. 369 00:23:36,200 --> 00:23:44,000 And that would seem to me so contrary to the language of our Constitution, which elevates 370 00:23:44,000 --> 00:23:50,600 the sovereignty of the people, that politicians have no power without the people. 371 00:23:50,600 --> 00:23:56,240 Your Honor, our founders risk their lives so that our representatives who we elect can 372 00:23:56,240 --> 00:23:59,440 represent the people, not a king. 373 00:23:59,440 --> 00:24:04,680 And with all due respect, not courts, because the Wisconsin Constitution provides this court 374 00:24:04,680 --> 00:24:11,280 no judicially manageable standards to decide that loyal Republicans and loyal Democrats 375 00:24:11,280 --> 00:24:13,280 have this super constitutional rights- 376 00:24:13,280 --> 00:24:14,880 The courts have done it. 377 00:24:14,880 --> 00:24:18,160 They have done it, Your Honor, and I'm so glad you asked that question, because there 378 00:24:18,160 --> 00:24:22,520 is no free and fair elections clause in Wisconsin's Constitution. 379 00:24:22,520 --> 00:24:29,200 And there is no Florida Fair District's amendment saying considering incumbents is forbidden. 380 00:24:29,200 --> 00:24:33,680 And even in states that have done it, even in North Carolina with the free and fair elections 381 00:24:33,680 --> 00:24:37,120 clause, I'd urge this court not to take my words for it, go look at the Supreme Court 382 00:24:37,120 --> 00:24:38,560 opinions in that case. 383 00:24:38,560 --> 00:24:43,840 They threw up their hands, Justice Taylor, and they said, we understand this is a political 384 00:24:43,840 --> 00:24:44,840 problem. 385 00:24:44,840 --> 00:24:49,400 And this is hotly debated at kitchen tables and in academic classrooms. 386 00:24:49,400 --> 00:24:53,720 But what we can't do as a court is solve that problem, because even the free and fair 387 00:24:53,720 --> 00:24:56,720 elections clause doesn't give us the tools to do so. 388 00:24:56,720 --> 00:25:03,240 So our Constitution is different in that we, there is a provision that says there is a 389 00:25:03,240 --> 00:25:09,960 remedy for wrongs, Section 9, it says every person is entitled to a certain remedy in 390 00:25:09,960 --> 00:25:18,480 the laws for all injuries or wrongs, which he may receive in his person, proper character, 391 00:25:18,480 --> 00:25:21,200 he ought to obtain justice freely. 392 00:25:21,200 --> 00:25:24,120 So that is unique to our Constitution. 393 00:25:24,120 --> 00:25:33,440 Our task is to interpret our Constitution to evaluate legislation to see if it poses 394 00:25:33,440 --> 00:25:36,640 a constitutional harm to these rights. 395 00:25:36,640 --> 00:25:45,600 So it's just very hard, I think your argument is challenging when I look at the, our own 396 00:25:45,600 --> 00:25:53,640 Constitution and the language of that Constitution and the embodiment of the sovereignty of 397 00:25:53,640 --> 00:25:57,840 people, government has no power without the people. 398 00:25:57,840 --> 00:26:07,720 So if a class of voters, if their vote is being deluded or infringed upon, that seems to me 399 00:26:07,720 --> 00:26:15,560 to violate these principles of the people being sovereign, because we have been elevated 400 00:26:15,560 --> 00:26:22,760 the power politicians above individual's right to choose their government. 401 00:26:22,760 --> 00:26:28,800 Your Honor, the question assumes the answer to the question I thought we were all here 402 00:26:28,800 --> 00:26:36,480 to address today, which is, is there a right to Republican districts or Democratic districts 403 00:26:36,480 --> 00:26:37,480 in the Wisconsin Constitution? 404 00:26:37,480 --> 00:26:42,520 That's not the framing though, it's not, that's not, you're framing it in a certain way that 405 00:26:42,520 --> 00:26:45,120 I think is not how I'm seeing it. 406 00:26:45,120 --> 00:26:52,120 I'm looking at our state Constitution and I am pondering as we do with all legislation 407 00:26:52,120 --> 00:26:55,080 that we review, the concept of judicial review. 408 00:26:55,080 --> 00:26:57,400 Is there a constitutional harm here? 409 00:26:57,400 --> 00:26:59,040 That's what I'm looking at. 410 00:26:59,040 --> 00:27:04,800 I'm not looking at, it's not up to us to imbue our policy choices. 411 00:27:04,800 --> 00:27:07,960 That's very clearly belongs to the legislature. 412 00:27:07,960 --> 00:27:13,760 What I'm looking at is there a constitutional harm here, and I'm sure you agree that the 413 00:27:13,760 --> 00:27:17,480 right to vote is the most precious constitutional right we have. 414 00:27:17,960 --> 00:27:23,160 Wisconsin case law that says that, it is the most precious right. 415 00:27:23,160 --> 00:27:31,600 So isn't that our inquiry, is there a constitutional harm here in infringing or deluding an individual's 416 00:27:31,600 --> 00:27:32,600 right to vote? 417 00:27:32,600 --> 00:27:33,760 That seems to be the question. 418 00:27:33,760 --> 00:27:35,960 Yes, three points, Your Honor. 419 00:27:35,960 --> 00:27:40,760 First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham 420 00:27:40,760 --> 00:27:41,760 case. 421 00:27:41,760 --> 00:27:45,480 And in Cunningham, this court did something decades, perhaps a century before the Supreme 422 00:27:45,520 --> 00:27:51,000 Court did in Westbury, which it said that right to vote is so precious that we in Wisconsin 423 00:27:51,000 --> 00:27:56,280 are going to ensure that you have a numerically equally weighted vote back in, I think it 424 00:27:56,280 --> 00:28:02,840 was 1892, and that, and no one here disputes that this court could not adjudicate a claim 425 00:28:02,840 --> 00:28:06,680 of mal apportionment, just as the court did in Johnson. 426 00:28:06,680 --> 00:28:12,360 The second point, beyond that, the right to vote is not a right to get the election outcomes 427 00:28:12,360 --> 00:28:13,360 you want. 428 00:28:13,360 --> 00:28:19,280 The very nature of the political branches is that someone loses and someone wins on election 429 00:28:19,280 --> 00:28:20,280 day. 430 00:28:20,280 --> 00:28:26,080 And when it comes to who decides what those districts look like, the Wisconsin Constitution 431 00:28:26,080 --> 00:28:31,600 gives this court no judicially manageable standard to override what the federal Constitution 432 00:28:31,600 --> 00:28:34,720 says, which is that the legislature does get to decide. 433 00:28:34,720 --> 00:28:40,120 And it was okay in remedying mal apportionment to defer to those legislative choices. 434 00:28:40,120 --> 00:28:44,200 A good case on that is the McGraill case where it certainly involved the right to 435 00:28:44,200 --> 00:28:45,200 vote. 436 00:28:45,200 --> 00:28:49,440 It involved whether you could be identified by party on a ballot, whether someone knew 437 00:28:49,440 --> 00:28:54,440 I was a Republican or a Democrat or the Constitution party or something else, and this court 438 00:28:54,440 --> 00:28:55,440 deferred. 439 00:28:55,440 --> 00:29:02,720 Well, of course, courts do apply substantiality of harm all the time. 440 00:29:02,720 --> 00:29:07,600 We weigh that, whether it be in civil criminal cases. 441 00:29:07,600 --> 00:29:13,800 We are applying those standards and not set out necessarily in the Constitution. 442 00:29:13,800 --> 00:29:19,000 But it seems to me that we're looking at, is there a substantial dilution? 443 00:29:19,000 --> 00:29:21,080 Is there a substantial harm here? 444 00:29:21,080 --> 00:29:24,240 And of course, do that all the time in jurisprudence. 445 00:29:24,240 --> 00:29:31,120 We are always looking at harms and weighing whether there's a substantiality issue. 446 00:29:31,120 --> 00:29:35,680 Your Honor, I suppose that brings me to the third point, which is whether a plaintiff might 447 00:29:35,760 --> 00:29:40,920 be able to establish there is a cognizable harm in some case. 448 00:29:40,920 --> 00:29:46,400 Later on, this court could leave unresolved whether it wants to overrule Johnson One. 449 00:29:46,400 --> 00:29:52,120 But in this particular case, plaintiffs have not done the hard work to walk back what 450 00:29:52,120 --> 00:29:57,680 were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence explaining 451 00:29:57,680 --> 00:30:04,880 that the Constitution, as it sits today and as it sat then, does not give the court the 452 00:30:04,880 --> 00:30:08,200 tools to adjudicate those kinds of thorny claims. 453 00:30:08,200 --> 00:30:09,200 So that's what you're looking at. 454 00:30:09,200 --> 00:30:11,120 Why do we have a remedy for every wrong? 455 00:30:11,120 --> 00:30:17,680 Every person is entitled to a certain remedy because of the laws for all injuries. 456 00:30:17,680 --> 00:30:22,760 Because your Honor, plaintiffs have not identified what the constitutional wrong is at this time. 457 00:30:22,760 --> 00:30:25,680 Vote dilution is not a constitutional wrong. 458 00:30:25,680 --> 00:30:31,440 When our Constitution explicitly says it is the people who choose their government, the 459 00:30:31,440 --> 00:30:35,720 only mechanism by which they do that is the right to vote. 460 00:30:35,720 --> 00:30:39,200 And no one disputes that the districts are equally apportioned, they can cast an equally 461 00:30:39,200 --> 00:30:40,200 weighted vote. 462 00:30:40,200 --> 00:30:44,320 So it does not matter the extent of a partisan gerrymandering. 463 00:30:44,320 --> 00:30:51,200 It does not matter the extent of the harm that is caused by a certain disfavored group. 464 00:30:51,200 --> 00:30:56,760 It sounds to me like you're saying an extreme gerrymandering, an extreme partisan gerry 465 00:30:56,800 --> 00:30:59,280 mander is constitutional. 466 00:30:59,280 --> 00:31:01,720 Your Honor, understanding that is your argument? 467 00:31:01,720 --> 00:31:06,240 Your Honor, I'm not sure at this point in time how to define an extreme partisan gerry 468 00:31:06,240 --> 00:31:10,880 mander versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back 469 00:31:10,880 --> 00:31:12,080 to Congress. 470 00:31:12,080 --> 00:31:17,400 Would you say five percent, double digits, ten percent, fifteen percent? 471 00:31:17,400 --> 00:31:22,560 I think we certainly have districts across the state that hit those numbers. 472 00:31:22,560 --> 00:31:28,400 We do, Your Honor, and I can't tell you that district two, for example, here where 473 00:31:28,400 --> 00:31:31,720 we stand today is an extreme partisan gerrymander. 474 00:31:31,720 --> 00:31:36,280 The representative there, one by 70 to 30 percent vote in 2024. 475 00:31:36,280 --> 00:31:43,160 There's every reason to think he did so because Democrats are densely populated in the Madison 476 00:31:43,160 --> 00:31:44,160 area. 477 00:31:44,160 --> 00:31:46,240 Right, there could become cackness, for sure. 478 00:31:46,240 --> 00:31:49,800 But you look at some of the other districts and the way they're drawn. 479 00:31:49,800 --> 00:31:54,280 What I'm almost hearing you say is that there's not a constitutional claim for extreme 480 00:31:54,280 --> 00:31:57,720 partisan gerrymandering under the Wisconsin Constitution. 481 00:31:57,720 --> 00:32:01,880 If that's what it boils down to, tell us. 482 00:32:01,880 --> 00:32:07,520 Your Honor, right now the Wisconsin Constitution does not define with any level of judicial 483 00:32:07,520 --> 00:32:13,440 certainty what an extreme partisan gerrymander would be and in states that have been displeased 484 00:32:13,440 --> 00:32:18,600 with that constitutional reality that they have amended their constitutions with clear 485 00:32:18,600 --> 00:32:20,920 rules that courts can apply. 486 00:32:20,920 --> 00:32:26,640 The Utah case, the New York case, the Florida case that plaintiffs have brought to you all 487 00:32:26,640 --> 00:32:33,800 involve either reticulated statutes or constitutional amendments saying we, we extirpate politics 488 00:32:33,800 --> 00:32:34,800 from redistricting. 489 00:32:34,800 --> 00:32:43,960 Oh, counsel, counsel, your opposing counsel, has urged us to adopt New Mexico and Pennsylvania's 490 00:32:43,960 --> 00:32:44,960 cases. 491 00:32:45,960 --> 00:32:50,360 It took the opportunity on break to take a look at their constitutional provisions. 492 00:32:50,360 --> 00:32:56,720 You mentioned earlier that Wisconsin does not have a free and equal elections clause, 493 00:32:56,720 --> 00:33:02,960 but the courts in those cases did point to and reference and the New Mexico and Pennsylvania 494 00:33:02,960 --> 00:33:09,040 constitutions do specifically have free and equal elections clause. 495 00:33:09,040 --> 00:33:14,600 Do you think that has any impact on whether we should follow Pennsylvania and New Mexico? 496 00:33:14,600 --> 00:33:18,720 I do and I think, I can't remember if it's the Pennsylvania decision or the first North 497 00:33:18,720 --> 00:33:22,280 Carolina decision that explores the history of that clause. 498 00:33:22,280 --> 00:33:26,360 It's extremely interesting there in other state constitutions they are very specific 499 00:33:26,360 --> 00:33:29,360 to elections and your ability to go cast a vote. 500 00:33:29,360 --> 00:33:34,640 And so there was far more history in those cases to connect to that constitutional text 501 00:33:34,640 --> 00:33:41,560 admittedly broad with a right to have fairer districts, however one expert might define 502 00:33:41,560 --> 00:33:43,200 fairer districts. 503 00:33:43,200 --> 00:33:47,240 Here the history points in entirely the opposite direction. 504 00:33:47,240 --> 00:33:49,520 There's precious little of it in the briefs here. 505 00:33:49,520 --> 00:33:54,200 There were more than 100 pages about it in Johnson and the history boils down to it. 506 00:33:54,200 --> 00:33:57,280 This state's constitutional convention in 1848. 507 00:33:57,280 --> 00:34:01,760 There was a lot of talk about gerrymandering and there was a lot of discussion about whether 508 00:34:01,760 --> 00:34:07,480 the way Wisconsin's first congressional districts had been drawn was fair to have a very compact 509 00:34:07,480 --> 00:34:11,960 district in the southeast of the state and the sprawling district capturing 20 counties 510 00:34:11,960 --> 00:34:13,520 in the rest of the state. 511 00:34:13,520 --> 00:34:18,120 And the solution to that then answers the question before this court now. 512 00:34:18,120 --> 00:34:22,920 The solution was the people voted through their delegates at the convention and then 513 00:34:22,920 --> 00:34:29,640 through ratifying the constitution and that's been the unchanged history for over 100 years 514 00:34:29,640 --> 00:34:34,480 in this state until 2011 when parties started bringing partisan gerrymandering claims. 515 00:34:34,560 --> 00:34:43,040 So I wanted to just follow up with the Chief Justice's question about the 2011 maps. 516 00:34:43,040 --> 00:34:52,040 My recollection of the history here is that I think Democrats controlled the legislature 517 00:34:52,040 --> 00:34:55,720 entirely from 2006 to 2006 to 2010. 518 00:34:55,720 --> 00:34:58,880 There was a Democratic governor at that time. 519 00:34:58,880 --> 00:35:04,200 Then in the 2010 elections Republicans won the governorship in both houses of the legislature 520 00:35:04,200 --> 00:35:11,280 and using maps that were in place at that time and then it was that legislature which 521 00:35:11,280 --> 00:35:18,400 actually enacted the law that we are dealing with here at 44 in 2011. 522 00:35:18,400 --> 00:35:24,600 And so it was not the quote rigged maps or any later maps that were enacted for example 523 00:35:24,600 --> 00:35:28,000 after our Johnson decision that are at issue here. 524 00:35:28,000 --> 00:35:32,600 But that was in fact a series of legislature that was chosen with maps that clearly were 525 00:35:32,600 --> 00:35:36,520 quite competitive and led to both Republicans and Democrats controlling both chambers. 526 00:35:36,520 --> 00:35:37,520 Is that accurate? 527 00:35:37,520 --> 00:35:43,120 Yeah the points well taken your honor and the finish the point I would say those the maps 528 00:35:43,120 --> 00:35:47,720 that others have called rigged I won't endorse that language today have since also been replaced 529 00:35:47,720 --> 00:35:51,560 through the democratic process where the legislature passed maps and the democratic governor 530 00:35:51,560 --> 00:35:52,560 signed them. 531 00:35:52,560 --> 00:35:56,560 But yes for purposes of the congressional districts which we're here to talk about today 532 00:35:56,560 --> 00:35:59,480 the Congress members didn't enact that map. 533 00:35:59,480 --> 00:36:03,560 The people's representatives in the small districts that make up the state legislature 534 00:36:03,560 --> 00:36:08,960 did and that's exactly what the Constitution has envisioned would happen until 1787 and 535 00:36:08,960 --> 00:36:12,520 so to bring us back to what was going on in Johnson. 536 00:36:12,520 --> 00:36:17,120 In Johnson the court was not enacting a new map. 537 00:36:17,120 --> 00:36:19,840 The court was doing what it always does Justice Taylor. 538 00:36:19,840 --> 00:36:26,520 It was remedying a constitutional wrong of mal apportionment and going no further. 539 00:36:26,520 --> 00:36:33,320 And it was a standard that has no it's not embedded in Wisconsin law. 540 00:36:33,320 --> 00:36:39,560 It comes from a federal case which comes from an interpretation of voting rights act. 541 00:36:39,560 --> 00:36:44,320 There's just no I wasn't here when it was done but it seems disconnected. 542 00:36:44,320 --> 00:36:49,120 Your honor if the standard your honor is referring to as the least changes standard that's the 543 00:36:49,120 --> 00:36:54,600 approach the US Supreme Court has taken to redistricting cases always and for purposes 544 00:36:54,600 --> 00:36:59,720 of this congressional redistricting case certainly that standard is allowable under 545 00:36:59,720 --> 00:37:04,040 the elections clause lest this court rest from the legislature. 546 00:37:04,040 --> 00:37:05,040 It's the legislature. 547 00:37:05,040 --> 00:37:08,000 Who was supposed to change the least? 548 00:37:08,000 --> 00:37:09,000 Pardon? 549 00:37:09,000 --> 00:37:13,480 What was supposed to change the least and least change? 550 00:37:13,480 --> 00:37:17,960 For a mal apportionment case I think the way the opinion shook out in Johnson 2 for the 551 00:37:17,960 --> 00:37:20,120 congressional districts makes perfect sense. 552 00:37:20,120 --> 00:37:22,040 We looked at core retention scores. 553 00:37:22,040 --> 00:37:27,320 We moved the fewest number of people to repopulate with people the districts. 554 00:37:27,320 --> 00:37:32,200 Of course other parties in Johnson had differing arguments but your honor back to the first 555 00:37:32,200 --> 00:37:38,080 question whether or not your honor thought that was unworkable to use core retention 556 00:37:38,080 --> 00:37:45,120 a metric that you know legislators use all the time isn't the same as the argument plaintiffs 557 00:37:45,120 --> 00:37:51,440 have brought this court which is they are asking this court to hold it's not just unworkable. 558 00:37:51,480 --> 00:37:58,360 It's unconstitutional to defer to the legislature when remedying a mal apportionment claim. 559 00:37:58,360 --> 00:38:04,480 And I can think of a rule no better suited for an elections clause problem than to say 560 00:38:04,480 --> 00:38:09,280 in a mal apportionment case it's the courts and not the legislature that must decide what 561 00:38:09,280 --> 00:38:11,560 the political balance should be in districts. 562 00:38:11,560 --> 00:38:21,160 That is a really I think disingenuous reading of more right that's not what Moore said. 563 00:38:21,760 --> 00:38:30,240 Moore said that certainly state courts can utilize traditional principles of judicial 564 00:38:30,240 --> 00:38:35,080 review in reviewing the actions of their legislature. 565 00:38:35,080 --> 00:38:41,440 What we're not supposed to do is go outside the bounds of judicial review it's not our 566 00:38:41,440 --> 00:38:49,920 pot we do not make policy here we're not we don't consider that we consider the constitution 567 00:38:49,920 --> 00:38:54,640 and the text of our constitution and whether there's a constitutional harm. 568 00:38:54,640 --> 00:39:04,080 And that was very clearly stated in Moore in rucho itself the majority looks to state 569 00:39:04,080 --> 00:39:10,640 courts to address some of these issues of gerrymandered districts. 570 00:39:10,640 --> 00:39:18,000 So there's nothing unusual or strange about this court examining whether an act of the 571 00:39:18,000 --> 00:39:25,440 legislature causes a constitutional harm it's what we do every day it's our function. 572 00:39:25,440 --> 00:39:31,400 Well the elections clause point I was about how it would be a highly unusual to hold that 573 00:39:31,400 --> 00:39:37,640 this court is prohibited from using the last enacted maps as a starting point from using 574 00:39:37,640 --> 00:39:41,760 a lease changes approach because that's what the Supreme Court did in white it's what the 575 00:39:41,760 --> 00:39:45,800 Minnesota Supreme Court did in hip hurt in the Oklahoma case in the South Carolina case 576 00:39:45,800 --> 00:39:51,240 in the New Hampshire case I'm sure there are more and so that remedial approach would 577 00:39:51,240 --> 00:39:57,760 be highly unusual because the court isn't enacting a new map it's remedying mal apportionment 578 00:39:57,760 --> 00:40:04,320 in a lease changes way surely that's allowable under the elections clause now separate and 579 00:40:04,320 --> 00:40:10,960 apart from that as for the partisan gerrymandering claim no court has ever held to a final judgment 580 00:40:10,960 --> 00:40:15,440 that the map is a partisan gerrymandered or that or that partisan gerrymandering is 581 00:40:15,440 --> 00:40:21,600 a cognizable claim under the Wisconsin Constitution and so I do think it puts the cart before 582 00:40:21,600 --> 00:40:26,360 the horse to say plaintiffs have presented a constitutional harm partisan gerrymandering 583 00:40:26,360 --> 00:40:31,080 don't we have to remedy it first we have to ask have plaintiffs done the hard work to 584 00:40:31,080 --> 00:40:38,280 present this court with new text and new history and new reasons not already rejected in Johnson 585 00:40:38,280 --> 00:40:42,840 one okay I want to take you back to this already rejected in Johnson one Johnson one 586 00:40:42,840 --> 00:40:47,520 did not have the claim of extreme partisan gerrymandering in front of us what was in 587 00:40:47,520 --> 00:40:53,960 front of us was a map creating a map and the question that was asked is should this court 588 00:40:53,960 --> 00:41:00,360 in doing so consider partisanship that is very different question partisanship no one 589 00:41:00,360 --> 00:41:06,320 here is saying or thinking that you the partisanship doesn't come into play when we're make when 590 00:41:06,360 --> 00:41:11,920 the legislature makes maps of course it does we're talking about a claim that it has gone 591 00:41:11,920 --> 00:41:20,120 so far that extreme partisanship has gone so far so as to dilute the vote and and that 592 00:41:20,120 --> 00:41:26,560 claim can be the claim they're making the claim of that that can be found in our Constitution 593 00:41:26,560 --> 00:41:31,440 those important rights to democracy and the democracy principle that set forth in their 594 00:41:31,440 --> 00:41:36,720 briefs so when you sit here and say well we already decided in Johnson one I was there 595 00:41:36,720 --> 00:41:41,240 and we didn't decide it and they may have it may have been an opinion that the majority 596 00:41:41,240 --> 00:41:45,920 wrote and oftentimes things are in our opinions that aren't squarely in front of the court 597 00:41:45,920 --> 00:41:50,480 we give that what weight we give it but it was not an issue that has ever been brought 598 00:41:50,480 --> 00:41:55,440 to our court aside from as was pointed out we did not take a vehicle of an original action 599 00:41:55,440 --> 00:42:01,240 petition this case was filed in the circuit court just like every other case starts out 600 00:42:01,240 --> 00:42:07,880 in the circuit court and usually in our district so I want to push back on that and it seems 601 00:42:07,880 --> 00:42:14,200 like you're giving an awful lot of reliance on a couple of statements a couple of paragraphs 602 00:42:14,200 --> 00:42:18,520 about an issue that was not squarely in front of the court yes turn or sort of take one 603 00:42:18,520 --> 00:42:21,920 of your last points first and then to address the heart of what was an issue at Johnson 604 00:42:21,960 --> 00:42:26,560 one the fact that this case started in circuit court I actually think irrespective of a debate 605 00:42:26,560 --> 00:42:32,480 on partisan fairness is the easiest grounds to say while we might reconsider it or while 606 00:42:32,480 --> 00:42:37,800 we might consider it in another case we can't consider it in this case because this injunction 607 00:42:37,800 --> 00:42:43,560 exists by virtue of an exercise of our original jurisdiction and now a circuit court has been 608 00:42:43,560 --> 00:42:49,080 asked to put that injunction on trial and that turns upside down this the judicial 609 00:42:49,080 --> 00:42:54,040 are they being asked to issue a declaratory judgment and don't courts issue declaratory 610 00:42:54,040 --> 00:42:58,920 judgments all the time well initially no you're honored the complaints very clear they wanted 611 00:42:58,920 --> 00:43:03,640 the circuit court to enjoin this court's injunction and it's up to this court to decide whether it 612 00:43:03,640 --> 00:43:08,560 wishes that to continue not just in this case but in all future cases as for the declaratory 613 00:43:08,560 --> 00:43:14,240 judgment the same fundamental problem still persists fear like academically that sure sounds 614 00:43:14,240 --> 00:43:18,520 like an advisory proceeding because there's nothing that the court could do alongside the 615 00:43:18,520 --> 00:43:24,200 declaratory judgment to enjoin this court's injunction but so I know you want to make a 616 00:43:24,200 --> 00:43:30,080 second point but it sort of feels like what you would have your friends on the other side do is 617 00:43:30,080 --> 00:43:36,800 just taste chase their tails around indefinitely I mean they they have come at this several 618 00:43:36,800 --> 00:43:45,760 different ways to be to be fair they have asked for let's see reconsideration they filed a motion 619 00:43:45,760 --> 00:43:53,680 for relief from the judgment they filed an original action and then they filed the complaint 620 00:43:53,680 --> 00:44:03,280 and circuit court I may have left out something actually like I did I feel like it wouldn't matter 621 00:44:03,280 --> 00:44:07,480 which way they came at this you would say no that's not good enough and they have tried they have 622 00:44:07,480 --> 00:44:13,440 come at it like at least three or four different ways your honor I disagree I think they come they 623 00:44:13,600 --> 00:44:19,400 came at it with a motion for reconsideration or a motion for relief from judgment and I don't 624 00:44:19,400 --> 00:44:23,600 think there's any dispute that that's actually the most typical way for this court to address 625 00:44:23,600 --> 00:44:29,600 its pending or its final injunctions was to reopen Johnson itself then they came at it just like 626 00:44:29,600 --> 00:44:35,600 the Clark petitioners and asked this court to revisit its original jurisdiction injunction with 627 00:44:35,600 --> 00:44:42,080 another original jurisdiction action and and and that this court denied those requests doesn't 628 00:44:42,080 --> 00:44:46,640 mean that then we can invert the hierarchy of the judicial branch in this state and allow a circuit 629 00:44:46,640 --> 00:44:55,840 court to put your injunction on trial but it goes back to a justice I'm not seeing it it's it's a 630 00:44:55,840 --> 00:45:02,400 declaratory judgment well sure they would be declaring that this court acted unconstitutionally in 2022 631 00:45:02,400 --> 00:45:09,840 in Johnson too I I can find no authority and plaintiffs have pointed to no authority of any court any 632 00:45:09,920 --> 00:45:14,960 circuit court in this state having ever done so how about a certain trial court that declares 633 00:45:14,960 --> 00:45:22,160 something our court did did was unconstitutional in the criminal setting what if a trial court 634 00:45:22,160 --> 00:45:29,520 said what if there was a violation of the Constitution and we said it didn't occur and it goes back 635 00:45:29,520 --> 00:45:35,200 and we later learned that the council was ineffective and all of a sudden there's an issue in in front 636 00:45:35,280 --> 00:45:40,480 of the court I mean there's all there's a myriad of ways in which cases that we have found to be 637 00:45:41,680 --> 00:45:49,360 constitutional or that we have ruled on then are potentially later found otherwise I mean what 638 00:45:49,360 --> 00:45:53,760 you're basically saying is that once we decide something no one else can ever review it including 639 00:45:53,760 --> 00:45:59,040 us no you're honored this court can and while I don't want to devolve into a discussion of habeas 640 00:45:59,040 --> 00:46:03,920 what the what a habeas case is asking is actually for a separate writ they are not even talking 641 00:46:03,920 --> 00:46:08,240 habeas I'm just talking about ineffective assistance the council in our state I think I 642 00:46:08,240 --> 00:46:11,920 I could probably find cases where that's happened where this court has said that something was 643 00:46:11,920 --> 00:46:17,360 constitutional and it later turns out that actually it wasn't right there's a well trodden collateral 644 00:46:17,360 --> 00:46:21,840 attack often called writs of habeas corpus on final criminal judgments but that's not undoing 645 00:46:21,840 --> 00:46:27,280 the criminal judgment it's granting a writ of habeas corpus for purposes of this case your honor of 646 00:46:27,360 --> 00:46:33,840 course this court could exercise its original jurisdiction again if it wanted to just as it 647 00:46:33,840 --> 00:46:40,240 did in Clark so long as that original action was pursuant to the usual norms of judicial procedure 648 00:46:40,240 --> 00:46:47,440 so council let me just pick up on that point because if we were to find that there's a 649 00:46:47,520 --> 00:46:54,800 justiciable claim here and to remand it to the three-judge panel to take evidence and determine 650 00:46:54,800 --> 00:47:02,880 whether the illegal standard for that claim is met and to find a constitutional violation 651 00:47:04,000 --> 00:47:11,280 I'm just not following you in determining why it is that this this three-judge panel 652 00:47:12,080 --> 00:47:20,400 does not have a jurisdiction or the authority to hold such a trial and draw such a conclusion 653 00:47:20,400 --> 00:47:28,160 on the evidence based on something that was said in Johnson 2 in which such a claim was not squarely 654 00:47:28,160 --> 00:47:34,880 in front of the court can you answer that please yes your honor so first on the on the most 655 00:47:34,960 --> 00:47:41,280 fundamental procedural procedural point I'm not aware of a circuit court putting on trial a final 656 00:47:41,280 --> 00:47:45,680 injunction of this court in another case right the circuit court would have to read it's not 657 00:47:45,680 --> 00:47:51,680 putting an injunction on trial it is looking at the maps that are currently in place and making a 658 00:47:51,680 --> 00:47:59,200 determination about whether there's a partisan gerrymander in those maps an issue that this court did not 659 00:47:59,200 --> 00:48:05,280 consider because it had no evidence at that point of partisan gerrymandering why why are you 660 00:48:05,280 --> 00:48:12,080 saying that the wisconsin law or the wisconsin constitution would prohibit an examination of that 661 00:48:12,080 --> 00:48:20,000 issue now for maps that are going to be used for future elections well the the maps just to be 662 00:48:20,000 --> 00:48:26,080 very clear are in a fine they exist by they were adopted by this final judgment they were adopted 663 00:48:26,080 --> 00:48:33,840 by this court without consideration for whether the maps were created with the partisan gerrymander 664 00:48:33,840 --> 00:48:37,680 sure so to answer that question directly and justice dalot i apologize the heart of your 665 00:48:37,680 --> 00:48:43,680 question directly i too was here in johnson and and the parties were asked because some parties had 666 00:48:43,680 --> 00:48:50,080 raised whether the wisconsin constitution requires districts to be politically fair and the parties 667 00:48:50,080 --> 00:48:54,720 submitted as i mentioned over a hundred pages of briefing on that question and there are more 668 00:48:54,720 --> 00:49:02,560 than three dozen um paragraphs of legal analysis in the johnson one opinion about why we cannot 669 00:49:02,560 --> 00:49:08,400 find anywhere in the wisconsin constitution a right to political fairness and all the questions that 670 00:49:08,400 --> 00:49:13,840 such a right should it proceed in court cases would raise as opposed to should it proceed in the halls 671 00:49:13,840 --> 00:49:19,280 of congress with anti-partisan gerrymandering legislation and you don't see any any sunlight 672 00:49:19,360 --> 00:49:25,520 between a right to political fairness and a claim that that something is so unfair it is 673 00:49:25,520 --> 00:49:30,160 violated of our constitution political fairness sounds to me like you know what if you got a 674 00:49:30,160 --> 00:49:34,720 republican in charge they might draw the maps more a little more republican a democrat the same thing 675 00:49:35,440 --> 00:49:41,680 that is not how can that possibly be the same thing as this is so unfair it rises to a level of a 676 00:49:41,680 --> 00:49:46,160 constitutional harm which is extreme partisan gerrymandering which is what we're being asked 677 00:49:46,160 --> 00:49:51,520 about not political fairness well your honor again having litigated these cases the difference 678 00:49:51,520 --> 00:49:57,440 between the two is not clear and that is why you see states like florida saying we're just not 679 00:49:57,440 --> 00:50:02,400 considering it at all it's either considered it's there's either politics in the map or there's not 680 00:50:02,400 --> 00:50:08,640 but there's no way there's no way to assess in a judicially manageable way whether there's 681 00:50:08,640 --> 00:50:14,560 just enough politics but not too much because what that means is in the eye of the beholder absent 682 00:50:14,560 --> 00:50:19,200 some constitutional direction that this is too much and this is just enough it's like what 683 00:50:19,200 --> 00:50:24,640 you're asking us to do is to stick our hat in the sand and not your honor because it's not your 684 00:50:24,640 --> 00:50:31,040 honor it feels that way i am not your honor but i i sure i want i want to be emphatic about this 685 00:50:31,040 --> 00:50:36,480 this is the adversarial system and plaintiffs have to come to this court with arguments and history 686 00:50:36,480 --> 00:50:42,000 justice ballot just as you remarked in your concurrence in the mcmc case that maybe just maybe there's 687 00:50:42,000 --> 00:50:46,880 some history yet to be discovered out there that shows there's a right to partisan gerrymandering 688 00:50:46,880 --> 00:50:52,480 or shows there's this right living in wisconsin's equal protection clause but it's not there in these 689 00:50:52,480 --> 00:50:58,080 briefs and as much as it pains me to say it i would urge the court to compare these briefs to the 690 00:50:58,080 --> 00:51:04,000 briefs and clark and the arguments that led this court and clark that were historically rooted 691 00:51:04,000 --> 00:51:09,280 they grappled with old precedents that weren't about mortgages or farmland but about districts 692 00:51:09,360 --> 00:51:14,400 themselves and what continuity meant it helped that the words contiguity were there well your 693 00:51:14,400 --> 00:51:21,040 honor i was never going to be there i can't i can't concede that my contiguity argument is not 694 00:51:21,040 --> 00:51:27,440 one i still think about every day and i do think that but boy was not a well fought fight your 695 00:51:27,440 --> 00:51:32,800 honor and and it was there it was there and that is an express requirement in the constitution 696 00:51:33,360 --> 00:51:37,760 that this constitution isn't about 697 00:51:37,760 --> 00:51:43,120 constitution isn't about express requirements right the constitution is written broadly 698 00:51:43,120 --> 00:51:50,400 what you're talking about a document that came right after that in 1848 right and and it and it 699 00:51:50,400 --> 00:51:56,800 and it set broad principles that justice taylor has been talking about so it's it's not we don't 700 00:51:56,800 --> 00:52:01,680 look for every single it's it's not this isn't connecting the dots like can we find the word 701 00:52:01,680 --> 00:52:06,960 here and then it means something and if we don't find the exact word here the principle must not 702 00:52:06,960 --> 00:52:11,760 exist i think the legal scholars lay this out really well in their amicus brief i think justice 703 00:52:11,760 --> 00:52:16,160 pennielated out really well in his concurrence and cunning him which is that there are broad 704 00:52:16,160 --> 00:52:21,040 principles throughout the wisconsin constitution and not all of those principles allows this court 705 00:52:21,040 --> 00:52:26,720 to subject legislative action to strict scrutiny um in the mcgrail case about the ballots the 706 00:52:26,720 --> 00:52:31,600 legislative action was okay because it was reasonable even though it affected the right to vote 707 00:52:31,840 --> 00:52:37,520 and if we go back to 1848 the messy work of whether the what the district should look like 708 00:52:37,520 --> 00:52:42,960 was done by the political branches and the delegates and then later the people's representatives 709 00:52:42,960 --> 00:52:49,360 and so there's just no similar history that was it as was that issue in clark to allow this court 710 00:52:49,360 --> 00:52:56,480 or to to invite this court to step into that political thicket now i mean deciding what is fair 711 00:52:56,560 --> 00:53:02,640 whether it's extremely unfair or fair has plagued the federal courts for so long until we get to 712 00:53:02,640 --> 00:53:08,560 rucho and it's likewise plagued the state courts absent some bright light will show us something 713 00:53:08,560 --> 00:53:14,560 the fact that these issues have been raised repeatedly and that courts have struggled with 714 00:53:14,560 --> 00:53:22,240 them repeatedly doesn't that in some sense show that there is a problem there is a problem that 715 00:53:22,240 --> 00:53:29,440 is infecting you know our political landscape not just in wisconsin but probably across the country 716 00:53:29,440 --> 00:53:36,800 voters struggle with that i think any you could pick just about anybody off the street in wisconsin 717 00:53:36,800 --> 00:53:43,040 and ask them do you think a legislator legislators should be able to draw a map in a way that 718 00:53:43,040 --> 00:53:48,960 locks in a particular political party they would say no doesn't it show us that there is some 719 00:53:49,040 --> 00:53:54,000 underlying problem there the fact that courts have struggled with this for decades now i i think 720 00:53:54,000 --> 00:53:59,360 two things are true at once the that they're there some voters could think there is a problem 721 00:53:59,360 --> 00:54:03,600 and that courts have struggled with it so much means that the that it's not the courts problem 722 00:54:03,600 --> 00:54:09,760 to solve and instead it's been congress's problem to solve for example in the 1840s when congress 723 00:54:09,760 --> 00:54:15,840 required single member congressional districts as a bulwark to gerrymandering it's a problem for 724 00:54:15,840 --> 00:54:21,360 voters to solve with fair districts amendments it's a problem for congress potentially to solve 725 00:54:21,360 --> 00:54:27,840 now later on it's congress is constantly asked by the way to pass legislation to eliminate partisan 726 00:54:27,840 --> 00:54:33,120 gerrymandering congress passed and it's a hard thing to accomplish when you have a gerrymandered 727 00:54:33,600 --> 00:54:38,320 body but let me just turn to another point i want to return to a point you made a few minutes ago 728 00:54:38,320 --> 00:54:46,400 about distinguishing our case from other courts that have found a justiciable claim for partisan 729 00:54:46,400 --> 00:54:52,640 gerrymandering such as new mexico and it seemed to me you were leaning pretty heavily into the fact 730 00:54:52,640 --> 00:54:59,120 that the new mexico constitution just as one example has a explicit clause protecting free 731 00:54:59,120 --> 00:55:05,280 and equal elections i know i think the new mexico case rests on their equal protection clause and 732 00:55:05,280 --> 00:55:09,840 there it was a different state that you had sovania in north carolina okay thank you 733 00:55:10,560 --> 00:55:17,280 in any event point i wanted to raise is is it your belief that because the wisconsin constitution 734 00:55:17,280 --> 00:55:23,760 lacks an explicit clause protecting fair and equal elections that therefore the wisconsin 735 00:55:23,760 --> 00:55:31,520 constitution has no protection for fair and equal elections no your honor that's not our position 736 00:55:31,600 --> 00:55:40,480 because clearly constitutions are generally composed of broad principles and this constitution in 737 00:55:40,480 --> 00:55:49,280 wisconsin is replete with phrases that point to the importance of popular sovereignty the consent 738 00:55:49,280 --> 00:55:58,480 of the governed correct correct so how is that different in substance than another state constitution 739 00:55:58,560 --> 00:56:07,280 that includes a clause such as fair and equal elections aren't those protections inherent 740 00:56:07,280 --> 00:56:15,440 in the clauses that protect popular sovereignty in wisconsin i well as i mentioned before there 741 00:56:15,440 --> 00:56:20,960 is a unique history to a free and equal elections clause and what those were the the evils that 742 00:56:20,960 --> 00:56:26,880 were perpetuated before america that those were meant to guard against specific to voting in elections 743 00:56:27,440 --> 00:56:32,640 but in wisconsin just as everywhere else for these federal congressional districts 744 00:56:32,640 --> 00:56:37,920 there is an absolute equality requirement at this point you know this court was asked to 745 00:56:37,920 --> 00:56:43,040 to entertain an original action last year because the congressional districts deviated by one 746 00:56:43,040 --> 00:56:51,520 additional person and as this court said in cunning him that that that promise of equality 747 00:56:51,520 --> 00:56:58,080 of an equally weighted vote that is how people effectuate their right to vote that is how votes 748 00:56:58,080 --> 00:57:04,800 are not diluted and of course wisconsin protects that and also through our separation of powers 749 00:57:04,800 --> 00:57:10,720 wisconsin protects the right to vote the founders assigned congressional redistricting power to 750 00:57:10,720 --> 00:57:15,440 the legislature and keeping with the people's representatives who are closest to them the 751 00:57:15,440 --> 00:57:20,080 legislature now in these territorial districts can carry out the will of the people 752 00:57:21,680 --> 00:57:28,160 now as for port struggling with this justice crofford i think it's very telling that even 753 00:57:28,160 --> 00:57:34,480 coming here today council equivocated about what their test would be and if council can't identify 754 00:57:34,480 --> 00:57:39,680 what their test would be to me that's proof positive that there is no judicially manageable 755 00:57:39,680 --> 00:57:44,160 standard hiding i would i would i would agree with you it's frustrating that they have an 756 00:57:44,160 --> 00:57:51,040 articulated a test and i certainly wish they would have that being said um let's talk about workability 757 00:57:51,040 --> 00:57:58,480 going forward in the event that we find um both of the claims both the partisan and anti-competitive 758 00:57:58,480 --> 00:58:05,840 gerrymandering cognizable what are your thoughts about consolidating the gerrymandering claims 759 00:58:06,400 --> 00:58:14,320 and having just one trial um again it's inconceivable to me that there could be a trial in this posture 760 00:58:14,320 --> 00:58:19,840 but but to take your question you know assuming all of that of course i think the cases would need 761 00:58:19,840 --> 00:58:24,720 to be consolidated um i've participated other councils can participated in for example the 762 00:58:24,720 --> 00:58:30,000 alabama congressional redistricting case those were consolidated at the trial court for purposes 763 00:58:30,000 --> 00:58:36,720 of trial proceedings um and again i can't really conceive of how you have a new injunction in joining 764 00:58:36,720 --> 00:58:41,920 this courts injunction but of course you only want to do that one time versus two times and so they 765 00:58:41,920 --> 00:58:47,760 should proceed together um but i don't want to lose sight of my latches point two we're talking 766 00:58:47,840 --> 00:58:54,400 about a lot of procedure a lot of costs and we are well over halfway into the decennial 767 00:58:54,960 --> 00:59:00,000 and as federal courts and other courts have held or the Illinois Supreme Court just held 768 00:59:00,800 --> 00:59:05,840 sometimes plaintiffs are just too late because congressional districts that the census is about 769 00:59:05,840 --> 00:59:12,160 to come and in the the prejudice here well let me start with the delay i think should is clear 770 00:59:12,160 --> 00:59:18,160 from Brennan plaintiffs waited arguably 15 years to challenge act 44 is unconstitutional 771 00:59:18,160 --> 00:59:21,680 they waited four and a half years since the or they waited three years since the congressional 772 00:59:21,680 --> 00:59:26,320 districts were settled but i do want to point to the prejudice point uh or i do want to 773 00:59:26,320 --> 00:59:30,160 discuss the prejudice point just as pro to say what's because it goes to the trial and everything 774 00:59:30,160 --> 00:59:35,840 will that be costly absolutely but what's also costly and what's recognized in these cases we've 775 00:59:35,840 --> 00:59:42,480 cited on our latches argument is the ensuing cost to the state to the counties and to voters 776 00:59:43,040 --> 00:59:48,400 should this court agree that the congressional districts need to change again maybe it's before 777 00:59:48,400 --> 00:59:53,520 the 2028 elections or the 2030 elections and then of course the congressional districts will change 778 00:59:53,520 --> 00:59:59,760 again in 2032 well can't the congressional maps change anytime how how can your latches argument 779 00:59:59,760 --> 01:00:03,200 a