Supreme Court Leans Toward Alabama in Voting Rights Dispute

cigaretteman

HR King
May 29, 2001
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In Supreme Court arguments on Tuesday, members of the court’s conservative majority seemed to be searching for a narrow way to uphold a congressional map drawn by Alabama lawmakers that a lower court had said diluted the power of Black voters, violating the Voting Rights Act.
Based on their questioning, which was subdued and limited, the court’s conservatives seemed likely to reject some of the state’s most aggressive arguments, which would impose profound new limits on how the 1965 act applies in redistricting cases.
The court’s three liberal members pushed hard to curb the damage to the law, which Justice Elena Kagan called “one of the great achievements of American democracy.” She added that “in recent years, this statute has not fared well in this court,” a reference to decisions in 2013 and 2021 that undercut the law’s effectiveness in protecting minority voters.
Justice Ketanji Brown Jackson said the law had to be understood in the context of the history of the 14th Amendment, adopted after the Civil War, which was meant to protect formerly enslaved Black people. “That’s not a race-neutral or race-blind idea,” she said.

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Justice Kagan said she feared the new case was the third part of a trilogy. “You’re asking us to cut back substantially on 40 years of precedent,” she told Edmund G. LaCour Jr., Alabama’s solicitor general.
He argued, in essence, that the law was meant to cover only intentional discrimination on the basis of race, a position that was not well received by some of the court’s conservatives.
“My understanding of our cases is that you don’t have to show intent,” said Chief Justice John G. Roberts Jr.


Justice Samuel A. Alito Jr., the most active participant among the court’s conservatives and the author of last year’s voting rights decision, indicated that Mr. LaCour had gone too far. “You have made a number of arguments, some of them quite far-reaching,” Justice Alito said, adding that he would focus on whether the voting district at issue was “reasonably configured.”
Justice Clarence Thomas said very little, and Justice Neil M. Gorsuch said nothing at all. Chief Justice Roberts and Justices Brett M. Kavanaugh and Amy Coney Barrett asked mainly neutral questions.

“If one just listened to the oral argument, one might think that these justices are up for grabs in this case,” Richard L. Hasen, a law professor at the University of California, Los Angeles, said of those three justices. But he cautioned that questioning can be misleading and that the court may well rework the leading precedent to make it harder to challenge voting maps.
The case, Merrill v. Milligan, No. 21-1086, came from Alabama, which has seven congressional districts, and concerns Section 2 of the Voting Rights Act. The voting-age population in the state is about 27 percent Black.
In November 2021, Alabama’s Legislature, which is controlled by Republicans, redrew the congressional map to take account of the 2020 census. It maintained a single district in which Black voters make up a majority.
That district has long elected a Democrat, while the state’s other six districts are represented by Republicans.
After Black voters and advocacy groups challenged the map under the Voting Rights Act, a unanimous three-judge panel of the Federal District Court in Birmingham ruled that the Legislature should have fashioned a second district “in which Black voters either comprise a voting-age majority or something quite close to it.”
The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.
Meet The Times’s Supreme Court Reporter
Adam Liptak, who has been covering the Supreme Court since 2008, started at The Times as a copy boy in 1984. He left to attend Yale Law School, became a practicing lawyer and worked in The Times’s corporate legal department before returning to the newsroom. Learn about how he approaches covering the court.
Following the Beat of the Court
March 17, 2022


The panel found that voting in the state is racially polarized and that it would be possible to draw “a second reasonably configured district” to allow Black voters to elect their favored candidates.

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In February, the Supreme Court temporarily blocked the lower court’s ruling by a 5-to-4 vote, ensuring that this fall’s election would take place using the Legislature’s map, the one with a single district in which Black voters were in the majority.
The justices also agreed to hear an appeal of the ruling on its merits, which is what was argued on Tuesday.
In dissenting from the February order, Chief Justice Roberts said the lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Still, he wrote, the Supreme Court’s precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
Section 2 bans any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
At the argument on Tuesday, Justice Kagan said the case was straightforward. “Under our precedents,” she said, “it’s kind of a slam dunk.”
Civil rights leaders and some Democrats say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.

 
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Aardvark86

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So let me start by saying that I am far from a voting rights law practitioner. But, as is my practice, I do try to follow the cases of the day at Scotus. In this case, I did a quick review of the merits briefs, listened to part of the argument, and when that became a little too obtuse, decided to see if reading the transcript made things any clearer. So with that said, a couple of observations.

1. When I first read AL's brief, my reaction was, "I get that there's something weird about plaintiffs' modeling expert not being able to draw a second MM district unless intentionally focusing on race, and I'm not sure why states should always need to maximize MM districts, but this brief sure smells like it's overreaching in what it's seeking." That's becoming increasingly common from some of the advocacy group cases out there, and the legal advocacy is suffering for it. Just because you think your side "controls" the court doesn't mean they're going to buy all the shit you're selling.
2. Indeed, for all of the sky-is-falling/nazis-have-taken-over rhetoric featured in pretty much every story leading up to this argument, it became quite clear, very early in the argument, that the AL SG was overreaching, and that none of the members of the court were buying what he was trying to sell them. So, as I've always emphasized, yes, the justices come with worldviews and judicial philosophies, but they are smart people who do try to handle the cases professionally. (Note, you are all more than welcome to rub this in my face if the court ultimately fully embraces AL's approach, but to paraphrase a popular meme, calm the **** down and carry on).
3. I will confess to not fully understanding the more limited argument of the state, which Justice Alito finally steered the argument to, which more of the justices seem to be interested in, and which is the basis for most of the morning-after, VRA gets gutted speculation (though to me, even that speculation was more than what the argument suggested).
4. This was my first opportunity to listen to Justice Jackson at argument. (I'd hoped to listen to the CWA case monday but was traveling to a client). A few common rookie tendencies that most new justices display (long speeches without questions a la a district court judge, occasionally speaking over more senior justices or not following the chief's lead on timing matters, asking questions in rebuttal) which I got a chuckle over. But she was really impressive in her preparedness and thoughtfulness, and asked some great (i.e., hard) questions of counsel premised on originalist arguments.
5. As always, I frequently disagree with Kagan but am just super-impressed by her; my second favorite justice after G. On the other hand, I frequently disagree with Soto, and think she's a complete dolt and a mean one at that. On the other side of things, Alito's a little smarter than I've given him credit for, but he's really turning into quite the hack. Kav is growing on me by contrast: he has a really refreshing knack of letting counsel say their piece, and then cutting right to the heart of the issue, and I do appreciate how respectful he is of counsel.
 

TheCainer

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Sep 23, 2003
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In Supreme Court arguments on Tuesday, members of the court’s conservative majority seemed to be searching for a narrow way to uphold a congressional map drawn by Alabama lawmakers that a lower court had said diluted the power of Black voters, violating the Voting Rights Act.
Based on their questioning, which was subdued and limited, the court’s conservatives seemed likely to reject some of the state’s most aggressive arguments, which would impose profound new limits on how the 1965 act applies in redistricting cases.
The court’s three liberal members pushed hard to curb the damage to the law, which Justice Elena Kagan called “one of the great achievements of American democracy.” She added that “in recent years, this statute has not fared well in this court,” a reference to decisions in 2013 and 2021 that undercut the law’s effectiveness in protecting minority voters.
Justice Ketanji Brown Jackson said the law had to be understood in the context of the history of the 14th Amendment, adopted after the Civil War, which was meant to protect formerly enslaved Black people. “That’s not a race-neutral or race-blind idea,” she said.

Advertisement
Continue reading the main story


Justice Kagan said she feared the new case was the third part of a trilogy. “You’re asking us to cut back substantially on 40 years of precedent,” she told Edmund G. LaCour Jr., Alabama’s solicitor general.
He argued, in essence, that the law was meant to cover only intentional discrimination on the basis of race, a position that was not well received by some of the court’s conservatives.
“My understanding of our cases is that you don’t have to show intent,” said Chief Justice John G. Roberts Jr.


Justice Samuel A. Alito Jr., the most active participant among the court’s conservatives and the author of last year’s voting rights decision, indicated that Mr. LaCour had gone too far. “You have made a number of arguments, some of them quite far-reaching,” Justice Alito said, adding that he would focus on whether the voting district at issue was “reasonably configured.”
Justice Clarence Thomas said very little, and Justice Neil M. Gorsuch said nothing at all. Chief Justice Roberts and Justices Brett M. Kavanaugh and Amy Coney Barrett asked mainly neutral questions.

“If one just listened to the oral argument, one might think that these justices are up for grabs in this case,” Richard L. Hasen, a law professor at the University of California, Los Angeles, said of those three justices. But he cautioned that questioning can be misleading and that the court may well rework the leading precedent to make it harder to challenge voting maps.
The case, Merrill v. Milligan, No. 21-1086, came from Alabama, which has seven congressional districts, and concerns Section 2 of the Voting Rights Act. The voting-age population in the state is about 27 percent Black.
In November 2021, Alabama’s Legislature, which is controlled by Republicans, redrew the congressional map to take account of the 2020 census. It maintained a single district in which Black voters make up a majority.
That district has long elected a Democrat, while the state’s other six districts are represented by Republicans.
After Black voters and advocacy groups challenged the map under the Voting Rights Act, a unanimous three-judge panel of the Federal District Court in Birmingham ruled that the Legislature should have fashioned a second district “in which Black voters either comprise a voting-age majority or something quite close to it.”
The unsigned decision was joined by Judge Stanley Marcus, who ordinarily sits on the U.S. Court of Appeals for the 11th Circuit, in Atlanta, and was appointed by President Bill Clinton; and by Judges Anna M. Manasco and Terry F. Moorer, both appointed by President Donald J. Trump.
Meet The Times’s Supreme Court Reporter
Adam Liptak, who has been covering the Supreme Court since 2008, started at The Times as a copy boy in 1984. He left to attend Yale Law School, became a practicing lawyer and worked in The Times’s corporate legal department before returning to the newsroom. Learn about how he approaches covering the court.
Following the Beat of the Court
March 17, 2022


The panel found that voting in the state is racially polarized and that it would be possible to draw “a second reasonably configured district” to allow Black voters to elect their favored candidates.

Advertisement
Continue reading the main story


In February, the Supreme Court temporarily blocked the lower court’s ruling by a 5-to-4 vote, ensuring that this fall’s election would take place using the Legislature’s map, the one with a single district in which Black voters were in the majority.
The justices also agreed to hear an appeal of the ruling on its merits, which is what was argued on Tuesday.
In dissenting from the February order, Chief Justice Roberts said the lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Still, he wrote, the Supreme Court’s precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.”
Section 2 bans any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
At the argument on Tuesday, Justice Kagan said the case was straightforward. “Under our precedents,” she said, “it’s kind of a slam dunk.”
Civil rights leaders and some Democrats say the redistricting process often disadvantages growing minority communities. Republican state officials say the Constitution allows only a limited role for the consideration of race in drawing voting districts.

How do all of these types of cases keep ending up at SCOTUS? It's like there is no precedent which gets followed anymore or any "settled law".

Given that, now that Roe has been reversed, will we keep seeing more abortion cases end up in SCOTUS? Or is it now "settled"? There have been a rash of those related cases in the last couple of decades and it would seem odd if suddenly there were no more cases on that subject.
 

Aardvark86

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Jan 23, 2018
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How do all of these types of cases keep ending up at SCOTUS? It's like there is no precedent which gets followed anymore or any "settled law".

Given that, now that Roe has been reversed, will we keep seeing more abortion cases end up in SCOTUS? Or is it now "settled"? There have been a rash of those related cases in the last couple of decades and it would seem odd if suddenly there were no more cases on that subject.
Well, the reality is a little more complicated.

First, attorneys can (and do) ethically assert claims, defenses, and other legal contentions that "are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." Fed. R. Civ. P. 11. So to begin with, the very concept of "settled law" is, frankly, a little illusory.

Second, in the big scheme of things, while many of the 50-70s era decisions are viewed as (and are) some of the landmark interpretations of our constitution, and at their core are more right than wrong, there's also a bit of reality to the point that they reflected sloppy judging and in many cases were overturning previous so-called settled law. And when that happens, you get tension, ambiguity, and the like in new cases.

Third, those ambiguities, etc. can be chinks in the overall armor. Sometimes, when tested, they result in incremental change, clarification, modification, or exceptions to the old rule. And sometimes, if enough of those incremental retrenchments occur, there comes a point that the structure itself becomes hard to hold together and you overrule it.

Finally, is some of this a function of simple political change? Sure it is, but (i) that's not a dirty word and (ii) it doesn't mean that political change isn't in fact informed by some coherent philosophy or thinking. As i've said before though, the most common way that politics reflects itself is not so much in the substance of the decisions as in the cases that get selected (and how/when they get selected).

So, as with everything else in life, a little dose of tolerance for ambiguity and change goes a long way.
 

St. Louis Hawk

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Feb 5, 2003
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Jackson asked some great questions - her 14th Amendment questions were tight. Kagan is the best writer on the Court. I confess I like Gorsuch most of the time.
 
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Aardvark86

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Jackson asked some great questions - her 14th Amendment questions were tight. Kagan is the best writer on the Court. I confess I like Gorsuch most of the time

I'll take NG's writing any day, even with its stylistic foibles like contractions. My bro in law (who went to high school with him) had dinner with him a year or two ago, and I asked him to (gently) prod him about that. Somewhat surprisingly, NG didn't seem to be "intentional" about it, but rather just sort of matter of factly noted that he was taught to write the way that one would speak.
 

St. Louis Hawk

HR Legend
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Feb 5, 2003
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I'll take NG's writing any day, even with its stylistic foibles like contractions. My bro in law (who went to high school with him) had dinner with him a year or two ago, and I asked him to (gently) prod him about that. Somewhat surprisingly, NG didn't seem to be "intentional" about it, but rather just sort of matter of factly noted that he was taught to write the way that one would speak.

Never understood the dislike for contractions in briefs. My older partners when I was an associate killed me for it.

Sometimes not using them makes your sentences sound like “see spot run.”
 

Aardvark86

HR All-American
Jan 23, 2018
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Never understood the dislike for contractions in briefs. My older partners when I was an associate killed me for it.

Sometimes not using them makes your sentences sound like “see spot run.”
Agreed, though it is a little jolting when you encounter it, after having had the formal writing style beaten into you over the years. :) it's like the other day when I was reading a certiorari petition and the petitioner actually used the word (?) "cert-worthy".
 

NCHawk5

HR Heisman
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Aug 7, 2019
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Never understood the dislike for contractions in briefs. My older partners when I was an associate killed me for it.

Sometimes not using them makes your sentences sound like “see spot run.”
Did not realize you swung that way, good for you man. I’m a friend of the community.
 

HawkInDC

HR All-State
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Oct 5, 2001
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Why do we have congressional districts?

Within a state, no matter how you district based on geography/population there is some disadvantage to some group, affiliation, opinion or race.

Since states get to set the districting, could a state use a form of state wide ranked choice to pick the representatives? Or is that unconstitutional?
 

St. Louis Hawk

HR Legend
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Feb 5, 2003
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Agreed, though it is a little jolting when you encounter it, after having had the formal writing style beaten into you over the years. :) it's like the other day when I was reading a certiorari petition and the petitioner actually used the word (?) "cert-worthy".

Cert-worthy? Nice. Well, let us not get carried away.

Sorry, let's not get carried away.
 

Finance85

HR Legend
Oct 22, 2003
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Jackson asked some great questions - her 14th Amendment questions were tight. Kagan is the best writer on the Court. I confess I like Gorsuch most of the time.
Yup, Gorsuch is my favorite, too. Much more of a federalist, strict constructionist, than Alito and Thomas.
 
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Finance85

HR Legend
Oct 22, 2003
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Why do we have congressional districts?

Within a state, no matter how you district based on geography/population there is some disadvantage to some group, affiliation, opinion or race.

Since states get to set the districting, could a state use a form of state wide ranked choice to pick the representatives? Or is that unconstitutional?
They can do whatever they want as long as it fits within the guidelines of the VRA and 14th Amendment. We should get a little more instruction on that when the NC case is decided by SCOTUS.
 

Aardvark86

HR All-American
Jan 23, 2018
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Why do we have congressional districts?

Within a state, no matter how you district based on geography/population there is some disadvantage to some group, affiliation, opinion or race.

Since states get to set the districting, could a state use a form of state wide ranked choice to pick the representatives? Or is that unconstitutional?
Technically, that's probably unconstitutional because, well, the Constitution specifies a process for redistricting on the house side. Now as to the Senate....

Edit: having looked at I, 2, I take that back at least as to the way I was thinking. I'm not so sure a state couldn't use ranked choice voting on a statewide basis. With that said, ironically enough, I would imagine that ranked choice voting could actually create 14th amendment problems in states where there are concentrations of minorities, but the minorities, well, are a minority of the electorate (eg, a place like AL might well elect 7 white representatives given the racial polarization of bloc voting there). Note also though, I don't know whether federal law might actually require geographic districts (notwithstanding the constitution)
 
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Finance85

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Technically, that's probably unconstitutional because, well, the Constitution specifies a process for redistricting on the house side. Now as to the Senate....

Edit: having looked at I, 2, I take that back at least as to the way I was thinking. I'm not so sure a state couldn't use ranked choice voting on a statewide basis. With that said, ironically enough, I would imagine that ranked choice voting could actually create 14th amendment problems in states where there are concentrations of minorities, but the minorities, well, are a minority of the electorate (eg, a place like AL might well elect 7 white representatives given the racial polarization of bloc voting there). Note also though, I don't know whether federal law might actually require geographic districts (notwithstanding the constitution)
I don't remember specifics, but it seems like there have been discussions in SCOTUS decisions that discuss the need to have 'tortured' districts drawn specifically for minorities. In Florida, that was done to create the district that Corrine Brown held. It was a sliver along the St. John's River up to Jacksonville.
 

HawkInDC

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I don't remember specifics, but it seems like there have been discussions in SCOTUS decisions that discuss the need to have 'tortured' districts drawn specifically for minorities. In Florida, that was done to create the district that Corrine Brown held. It was a sliver along the St. John's River up to Jacksonville.
I would imagine that ranked choice voting could actually create 14th amendment problems in states where there are concentrations of minorities, but the minorities, well, are a minority of the electorate (eg, a place like AL might well elect 7 white representatives given the racial polarization of bloc voting there). Note also though, I don't know whether federal law might actually require geographic districts (notwithstanding the constitution)

Thanks for the thoughtful response @Aardvark86 . My 30 seconds of research seemed to indicate what you noted in the edit. The constitution says how many representatives you get, not how the states choose to execute voting for them.

I think the minority problem actually becomes less of an issue. I am not entirely sure how ranked choice would work in the case where there are 7 seats to fill. But, when there is 1 winner ranked choice applies when you don't meet a 50% threshold. So in a 7 seat race that might be 14% instead. Any voting block would theoretically need to clear a 14% threshold statewide.

Even in AL there are still 35% dems and 25% AA population, dems only occupy 1 of 7 house seats. They *should* easily have 2 based on party affiliation. Gerrymandering works to the opposite effect that @Finance85 points out.

Where you live might be correlated with what you think, but it's hardly the best measure.

BTW, I don't see gerrymandering as a partisan issue. Neither party should do it and it is one of the major flaws in our current system.
 

Finance85

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Oct 22, 2003
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Thanks for the thoughtful response @Aardvark86 . My 30 seconds of research seemed to indicate what you noted in the edit. The constitution says how many representatives you get, not how the states choose to execute voting for them.

I think the minority problem actually becomes less of an issue. I am not entirely sure how ranked choice would work in the case where there are 7 seats to fill. But, when there is 1 winner ranked choice applies when you don't meet a 50% threshold. So in a 7 seat race that might be 14% instead. Any voting block would theoretically need to clear a 14% threshold statewide.

Even in AL there are still 35% dems and 25% AA population, dems only occupy 1 of 7 house seats. They *should* easily have 2 based on party affiliation. Gerrymandering works to the opposite effect that @Finance85 points out.

Where you live might be correlated with what you think, but it's hardly the best measure.

BTW, I don't see gerrymandering as a partisan issue. Neither party should do it and it is one of the major flaws in our current system.
It's kind of curious that people believe that districts must be drawn to reflect percentages of population based on any factor other than distribution within geography. Creating US House districts is a function of state legislatures based on state laws. It's part of the Democratic process for each state to elect representatives for that function, or determine another process such as commissions. Gerrymandering should be expected, as long as there's no discrimination against a protected class.

My opinion is going to be different than most because I still believe in the concept of government as defined in the Constitution, and within the constraints of the 9th, 10th, and 14th amendments. The federal government's thirst for power has grown exponentially since WW II.
 

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