McCrory v. Harris (15-1262)

argument 15-1262

McCrory v. Harris

Supreme Court of the United States 1h 2m 5 speakers 8 chapters transcribed 4 days ago official recording ↗

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What constitutional issues are raised by North Carolina’s Congressional District 12?

Paul D. Clement 0:00

We'll hear argument in Case 15-1262, McCrory v. Harris. Mr. Clement. Mr. Chief Justice, it may have pleased the Court. This case involves the constitutionality of two congressional districts in North Carolina that should be familiar to the Court because they've been before the Court on multiple prior occasions. Even though there are two congressional districts here and they're both North Carolina congressional districts, the issues presented by the two districts are actually quite distinct. With respect to Congressional District 12, it is different from both the House of Delegate districts in the previous case and Congressional District 1 because this was not a district that was drawn with an avowed intent to create a majority-minority district to comply with the Voting Rights Act.

Paul D. Clement 0:45

Rather, with respect to Congressional District 12, this was avowedly a political draw. Now, if that all sounds familiar, it's because it's the exact same dynamic that was before this Court in Cromartie 2. And in Cromartie 2, this court, in reversing a district court on the clear error standard, concluded that when the state actually said that this was a political draw, that race did not predominate over politics in the drawing of this district. And that is essentially the exact same dynamic that is before this court now with one major difference. This is a much easier case for this court to reverse than Cromartie 2 was, because even before this court gets to the clear error standard of review, there is a clear legal error here that was created by my friends on the other sides and the district court's failure to abide by the teaching of Cromartie 2.

Paul D. Clement 1:41

I think Cromartie 2 was about as clear as it could have been that in a case where you have a majority-minority district or something approximating it, and you have race and politics highly correlated, and you have somebody challenging the state's suggestion that this is a political and not a racial draw, what the plaintiffs must show, not can show, not may show, not it would be nice that they show, must show, is that there are alternative ways to that the legislature could have accomplished its political goals without a comparable influence on race. Well, Mr.

Anthony M. Kennedy 2:19

Clement, that passage in Grimardi 2 says, in a case like this one, and is pretty clearly following off analysis of in a case with purely circumstantial evidence rather than direct evidence of race-based districting. I think you would have heard it, and it would have sounded different if the Court had really meant that in every case where the question was, is this politics or is this race, there was a requirement to present maps. That passage just would have read a lot differently.

Paul D. Clement 2:53

I respectfully disagree, Justice Kagan, for at least two reasons. One is there was direct evidence in Cromartie 2. And indeed, the direct evidence is eerily similar. In Cromartie 2, you had evidence that the map drawer himself had taken race into account with the treatment of the African-American community in Greensboro, which is Guilford County.

Stephen G. Breyer 3:17

You're talking about that. I guess that's why I say I was the problem. What I wrote was, in a case such as this one. And then people can argue, what does that mean, in a case such as this one? By the time we reach the Alabama case, there is a need seen by a majority of the court to try to bring clarity. We're speaking as a court. Not every individual gets his own way or should. And so if we go back into an area and try to reconcile the cases and try to come up with in a complicated area, a set of standards that will prevent us from being turning into the 19th Court of Evidence to consider some highly detailed matters and so forth, you know, all the problems here. I would take that, or at least I'd start taking that last case, the Alabama case, as at least trying to set the way in which a district court should go about deciding a case such as this one.

Stephen G. Breyer 4:21

Did I not do that?

Paul D. Clement 4:23

No, in the following respect, which is Alabama and Cromartie 2 are different cases. And I'll take your point that Alabama is this court's last best guidance on how to deal with a case like Alabama and like Congressional District 1 where you have a state that says, why did we do it?