Amicus Curiae Brief — Benancio Garcia, III, Appellant v. Steven Hobbs, Secretary of State of Washington, et al.

No. 23-467

In the Supreme Court of the United States

__________________

BENANCIO GARCIA, III,

v.

Appellant,

STEVEN HOBBS, SECRETARY OF STATE OF

WASHINGTON, ET AL.,

Appellees.

__________________

On Appeal from the United States District Court

for the Western District of Washington

__________________

Brief of Amici Curiae Susan Soto Palmer, Faviola

Lopez, Alberto Macias, Heliodora Morfin, and Caty

Padilla in Support of Appellees

__________________

Chad W. Dunn

Sonni Waknin

UCLA Voting Rights Project

3250 Public Affairs Bldg.

Los Angeles, CA 90095

Thomas A. Saenz

Ernest Herrera

Erika Cervantes

Mexican American Legal

Defense and Education Fund

643 S. Spring St., 11th Fl.

Los Angeles, CA 90014

Edwardo Morfin

Morfin Law Firm PLLC

2062 N. Proctor St., Ste. 205

Tacoma, WA 98407

Mark P. Gaber

Counsel of Record

Simone Leeper

Aseem Mulji

Benjamin Phillips

Campaign Legal Center

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2000

mgaber@campaignlegal.org

Annabelle E. Harless

Campaign Legal Center

55 W. Monroe St., Ste. 1925

Chicago, IL 60603

Counsel for Amici

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 3

I.

The Court lacks jurisdiction over this appeal ..... 3

A.

The district court’s order neither

granted nor denied an injunction .................. 4

B. Mr. Garcia’s claims of docket manipulation

by federal judges are meritless and

irrelevant ........................................................ 7

1.

The district court properly applied

constitutional avoidance ....................... 8

2.

The Soto Palmer case was filed first,

and Mr. Garcia’s counsel conceded that

his case “necessarily turn[ed]” on

resolution of the Soto Palmer case ...... 12

II. The Panel Properly Ruled that Mr. Garcia’s

Claim is Moot .................................................... 14

ii

A. The pending petition for certiorari before

judgment in a separate case does not suffice

to make this case not moot ........................... 14

B. Mr. Garcia’s claim for declaratory relief

cannot stand on mere speculation that the

remedial LD 15 will be a racial

gerrymander ................................................. 18

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) ............................................ 6

Alabama Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015) ........................................ 11, 16

Allen v. Milligan,

599 U.S. 1 (2023) .............................................. 9, 20

Allen v. Wright,

468 U.S. 737 (1984) .............................................. 16

Cardona v. Power,

384 U.S. 672 (1966) .............................................. 10

Caster v. Merrill,

No. 2:21-cv-1536, 2022 WL 264819 (N.D. Ala. Jan.

24, 2022) ........................................................... 9, 11

City of Los Angeles v. County of Kern,

581 F.3d 841 (9th Cir. 2009) .................................. 9

Cooper v. Harris,

581 U.S. 285 (2017) ........................................ 18, 20

Deposit Guaranty National Bank v. Roper,

445 U.S. 326 (1980) ................................................ 7

Diamond v. Charles,

476 U.S. 54 (1986) ................................................ 15

iv

Goldstein v. Cox,

396 U.S. 471 (1970) ................................................ 4

Gonzalez v. Automatic Employees Credit Union,

419 U.S. 90 (1974) .............................................. 4, 5

Hollingsworth v. Perry,

570 U.S. 693 (2013) ........................................ 15, 17

Katzenbach v. Morgan,

384 U.S. 641 (1966) .............................................. 10

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006) ................................................ 9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................ 15, 16

Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) .................................... 8, 10, 11

Mengelkoch v. Indus. Welfare Comm'n,

393 U.S. 83 (1968) .................................................. 5

Milligan v. Co-Chairs of Alabama Permanent

Legislative Committee on Reapportionment,

No. 23-12922-D, 2023 WL 6568350 (11th Cir. Oct.

3, 2023) ................................................................... 9

Mitchell v. Donovan,

398 U.S. 427 (1970) ................................................ 7

Moore v. Harper,

600 U.S. 1 (2023) .................................................... 7

v

MTM, Inc. v. Baxley,

420 U.S. 799 (1975) ............................................ 4, 5

North Carolina v. Covington,

138 S. Ct. 2548 (2018) .......................................... 20

Petteway v. Galveston County,

No. 3:22-CV-57, 2023 WL 6786025 (S.D. Tex. Oct.

13, 2023) ............................................................... 12

Republican National Committee v. Common Cause of

Rhode Island,

141 S. Ct. 206 (2020) ............................................ 17

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022) ................... 11

Singleton v. Allen,

2:21-cv-1291, 2023 WL 5691156 (N.D. Ala. Sept.

5, 2023) ................................................................... 9

Singleton v. Merrill,

582 F. Supp. 3d 924 (N.D. Ala. 2022) .................... 9

Stainback v. Mo Hock Ke Lok Po,

336 U.S. 368 (1949) ................................................ 4

Ted Cruz for Senate v. Fed. Election Comm'n,

No. 19-CV-908 (APM), 2019 WL 8272774 (D.D.C.

Dec. 24, 2019) ......................................................... 5

Thornburg v. Gingles,

478 U.S. 30 (1986) .................................................. 9

vi

United States v. Hays,

515 U.S. 737 (1995) .................................. 16, 18, 20

Virginia House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) .......................................... 17

Ward v. Dearman,

626 F.2d 489 (5th Cir. 1980) .................................. 6

Wilson v. City of Port Lavaca,

391 U.S. 352 (1968) ................................................ 5

STATUTES

28 U.S.C. § 1253 .......................................................... 3

1

INTERESTS OF AMICI CURIAE1

Amici curiae Susan Soto Palmer, Faviola Lopez,

Alberto Macias, Heliodora Morfin, and Caty

Padilla ("Soto Palmer Plaintiffs") are Latino voters in

Washington's Yakima Valley region. On August 10,

2023, the District Court for the Western District of

Washington found that Washington’s Legislative

District (LD) 15, also the subject of Mr. Garcia’s racial

gerrymandering challenge, diluted the votes of Latino

citizens in violation of Section 2 of the Voting Rights

Act. Soto Palmer Plaintiffs have an interest in

preserving the Soto Palmer trial court judgment, the

frustration of which is the explicit driving force of this

appeal.

SUMMARY OF ARGUMENT

Two cases involving the same Washington state

legislative district are before this Court in an appeal

and a petition for certiorari by parties represented by

the same counsel. In this case, Mr. Garcia sought an

injunction against the legislative district. In Trevino

v. Soto Palmer, No. 23-484 (“Soto Palmer”), the

intervenors sought to defend against an injunction

sought by plaintiffs in that matter. Although the

filings by Mr. Garcia and by the Soto Palmer

intervenors have purported to raise complex issues for

1 Pursuant to this Court’s Rule 37.6, counsel for Amici Curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amici curiae, their members, or their counsel has made a

monetary contribution intended to fund the preparation or

submission of this brief. The parties were provided notice more

than 10 days in advance of the filing of this brief.

2

this Court to consider, one issue is clear: neither case

should be before this Court.

This Court lacks jurisdiction over Mr. Garcia’s

appeal because the district court dismissed it for lack

of subject matter jurisdiction. A jurisdictional

dismissal by a three-judge district court does not

trigger this Court’s appellate jurisdiction under 28

U.S.C. § 1253 and thus Mr. Garcia’s appeal must be

heard by the Ninth Circuit, not this Court. Moreover,

the three-judge court correctly concluded that Mr.

Garcia’s case was moot—the district he sought to have

enjoined was enjoined—and this Court lacks

jurisdiction to entertain Mr. Garcia’s objection to why

the result he desired—invalidation of the district—

was obtained. Because this Court has no jurisdiction

to entertain Mr. Garcia’s appeal, the sole argument

supporting the Soto Palmer intervenors’ petition for

certiorari before judgment—consolidating the two

appeals before the same court—is without merit.

Even if the Court had jurisdiction of this appeal,

it should not proceed to the merits phase, particularly

not at this time. Mr. Garcia’s entire argument

contesting the mootness of his case rests upon the

possibility that his lawyers’ other clients—the Soto

Palmer intervenors—will succeed in their appeal of

the district court’s conclusion that the district violates

Section 2 of the Voting Rights Act. If his lawyers

succeed in overturning the injunction against the

district—again, the very relief Mr. Garcia wanted—

then Mr. Garcia contends his constitutional claim

against the district would revive. But this will not

occur because the Soto Palmer intervenors lack

3

standing to appeal, having not been ordered to do or

not do anything as a result of the injunction. There is

no Article III jurisdiction for this Court to entertain

bystanders’ objections to the district court’s

application of federal law. Because the condition upon

which Mr. Garcia’s appeal rests—a success by the

Soto Palmer intervenors on appeal—cannot come to

pass, the district court’s mootness determination in

this case is undeniably correct. If the Court concludes

it has jurisdiction to hear this appeal, it should

summarily affirm on those grounds. In any event, this

case should not be set for merits briefing given that it

depends entirely upon the possibility of success by the

Soto Palmer intervenors on appeal. If the Court

concludes it has jurisdiction and declines to

summarily affirm, it should at the very least hold this

case in abeyance pending resolution of the Soto

Palmer appeal.

Neither this case nor the Soto Palmer case belong

before this Court at this time. This appeal should be

dismissed for want of jurisdiction.

ARGUMENT

I.

The Court lacks jurisdiction over this

appeal.

This Court cannot hear Mr. Garcia’s appeal.

Under 28 U.S.C. § 1253, appeals to this Court from a

three-judge district court are allowed only “from an

order granting or denying . . . an interlocutory or

permanent injunction.” Because the district court did

not issue such an order, this Court lacks jurisdiction.

Mr. Garcia’s specious allegations of “docket

4

manipulation” cannot manufacture jurisdiction where

none exists under § 1253’s plain text.

A.

The district court’s order neither

granted nor denied an injunction.

The district court’s order in this case neither

granted nor denied an injunction because it never

actually reached the merits of Mr. Garcia’s

constitutional claim. Instead, the three-judge court

held that the claim was moot because the decision of

a different court provided Mr. Garcia all of his

requested relief on statutory grounds. There was

simply no potential injunction left for the three-judge

court to order or even consider. Because Mr. Garcia’s

appeal does not rest on an order granting or denying

an injunction, it is beyond the narrow set of cases

§ 1253’s text assigns to the Court’s mandatory docket

and the Court lacks jurisdiction to hear it.

Precedent compels this result. Section 1253 must

be construed narrowly pursuant to a longstanding

“congressional requirement of strict construction to

protect [the Court’s] appellate docket.” Stainback v.

Mo Hock Ke Lok Po, 336 U.S. 368, 375 (1949). And the

Court has consistently rejected interpretations of

§ 1253 that would expand the scope of its mandatory

docket. See, e.g., Goldstein v. Cox, 396 U.S. 471, 47778 (1970); Gonzalez v. Automatic Emp. Credit Union,

419 U.S. 90, 101 (1974); MTM, Inc. v. Baxley, 420 U.S.

799, 804 (1975).

Applying this strict construction, the Court set

out the following principle in Gonzalez: “when a threejudge court denies a plaintiff injunctive relief on

grounds which, if sound, would have justified

5

dissolution of the court as to that plaintiff, or a refusal

to request the convention of a three-judge court ab

initio, review of the denial is available only in the

court of appeals.” 419 U.S. at 101.2 Applying this

principle, the Court ruled in Gonzalez that § 1253 did

not allow direct appeal of a dismissal based on the

plaintiff’s lack of standing because that dismissal

would have justified either not convening the threejudge court in the first place or dissolving the threejudge court, “leaving final disposition . . . to a single

judge.” Id. at 99-100.

In MTM, the Court reaffirmed and extended this

principle, holding that a direct appeal under § 1253

from a denial of injunctive relief is not permissible

where the order below did not depend on the merits of

the constitutional claim. MTM, 420 U.S. at 804

(finding lower court’s application of Younger

abstention not directly appealable).

On other occasions, too, this Court has ruled that

it cannot directly review a three-judge-court order

dismissing a constitutional claim for lack of

jurisdiction, including jurisdictional bars (like

mootness) which can arise at any time after a threejudge court is convened. See, e.g., Wilson v. City of Port

Lavaca, 391 U.S. 352, 352 (1968); Mengelkoch v.

2 This principle is a logical extension of “the ‘well settled’ rule

that the ‘refusal to request the convention of a three-judge court,

dissolution of a three-judge court, and dismissal of a complaint

by a single judge are orders reviewable in the court of appeals,’

not in the Supreme Court.” Ted Cruz for Senate v. Fed. Election

Comm'n, No. 19-CV-908 (APM), 2019 WL 8272774, at *4 (D.D.C.

Dec. 24, 2019).

6

Indus. Welfare Comm'n, 393 U.S. 83, 84 (1968); see

also Ward v. Dearman, 626 F.2d 489, 491 (5th Cir.

1980) (“When . . . a three judge court dismisses a case

as moot, the appeal is to the court of appeals rather

than to the Supreme Court.”).

These cases foreclose mandatory jurisdiction

here, and Abbott v. Perez, 138 S. Ct. 2305 (2018), did

not overrule them, as Mr. Garcia suggests. In Abbott,

unlike Gonzalez and MTM, the lower court resolved the

merits of a constitutional claim against Texas’s

redistricting plans but stopped just short of expressly

enjoining the plans. Id. at 2322. The question was

whether the appeal was premature because no

injunction had yet been ordered. The Court held that

it still had jurisdiction under § 1253 because the lower

court had effectively ordered an injunction by

otherwise making clear that it would not allow the

unlawful plans to be in place during the next election.

Id. The Court also distinguished such orders from

those that neither grant nor deny an injunction, which

have “no practical effect whatsoever.” Id. at 2323.

And, as the Court made clear, its decision in Abbott

did not displace the strict rule that § 1253 jurisdiction

requires a grant or denial of an injunction (explicit or

effective) and was not intended to dramatically

expand the Court’s mandatory jurisdiction. Id. at

2324.

In any event, Abbott’s “practical effects” test does

not yield a different result in this case. To the extent

the district court’s order had any practical effect

whatsoever, it was to leave undisturbed the injunction

against LD 15 that the Soto Palmer court ordered.

7

That is, Mr. Garcia was effectively granted all of his

requested relief—the district he challenged as a racial

gerrymander has been permanently enjoined. Having

not had his requested injunction denied because the

district he challenges has already been enjoined in

another case, Mr. Garcia cannot now appeal, and least

of all to this Court. Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326, 333 (1980) (“A party who receives all

that he has sought generally is not aggrieved by the

judgment affording the relief and cannot appeal from

it.”). And his claim for declaratory relief alone cannot

sustain § 1253 jurisdiction. Mitchell v. Donovan, 398

U.S. 427, 431 (1970).3

Nor does this Court’s decision in Moore v. Harper,

600 U.S. 1 (2023), aid Mr. Garcia, as he contends. JS

2. In Moore, although the reasoning of the North

Carolina Supreme Court opinion on review had been

subsequently overruled, its injunction was still in

effect. Moore, 600 U.S. at 15-16. Here, there is no

possibility of the injunction against LD 15—again, the

outcome Mr. Garcia desired—changing. See infra Part

II.A. Mr. Garcia cannot direct his appeal to this Court.

B. Mr.

Garcia’s

claims

of

docket

manipulation by federal judges are

meritless and irrelevant.

The Court should reject Mr. Garcia’s attempt to

wriggle his way into the Court’s mandatory docket by

3 Mr. Garcia’s speculation that the now-enjoined LD 15 might be

replaced in the Soto Palmer remedial proceeding with a racially

gerrymandered district is wrong as a factual matter but more

importantly does not somehow render this case a live

controversy.

8

lobbing baseless accusations of “docket games” at

federal judges. JS 11. These claims are as distasteful

and hollow as they are irrelevant to the question of

§ 1253 jurisdiction. Courts have significant discretion

in managing their dockets. Here, the judges presiding

over Garcia properly applied constitutional avoidance

and judicial discretion to reach their conclusions. And

the timing of the district court’s decision—a major

focus of Mr. Garcia’s claim to jurisdiction—was both

justified as a procedural matter and ultimately

immaterial as a legal matter.

1.

The

district

court

properly

applied constitutional avoidance.

The district court panel properly applied

principles of constitutional avoidance and sound

judicial discretion in issuing its decision after the

order in Soto Palmer and declining to reach the then

moot constitutional question.4 The principle of

constitutional avoidance requires that courts not

adjudicate constitutional claims when the matter can

instead be decided on statutory grounds. See Lyng v.

4 Mr. Garcia asserts that “[t]his case boils down to twenty-nine

days—the period during which the panel majority could have

decided this ripe, live case on the merits, but declined.” JS 1. This

is absurd. Mr. Garcia’s real quarrel is clearly not with the Garcia

panel for failing to issue its decision in the twenty-nine days after

trial, but with the Soto Palmer court for issuing its opinion at

any point before Garcia. He says as much: “[a] single district

judge cannot divest a three-judge court of jurisdiction through

clever manipulation of the docket.” JS 4. But an appeal of the

Garcia mootness determination is simply not a proper vehicle for

Mr. Garcia to lodge an objection to the timing of the Soto Palmer

court’s order.

9

Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

445 (1988) (“A fundamental and longstanding

principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of

the necessity of deciding them.”). Consistent with this

principle, courts in redistricting cases routinely do not

reach constitutional claims. See, e.g., League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 442 (2006);

Thornburg v. Gingles, 478 U.S. 30, 38 (1986); City of

Los Angeles v. County of Kern, 581 F.3d 841, 846 (9th

Cir. 2009) ("[A] federal court should not decide federal

constitutional questions where a dispositive

nonconstitutional ground is available.").

Recently, in Allen v. Milligan, this Court affirmed

the judgments of both the three-judge panel and

single-judge court in the Northern District of Alabama

which declined to decide plaintiffs’ constitutional

claims after finding in favor of the plaintiffs on their

Section 2 claims. See Allen v. Milligan, 599 U.S. 1

(2023); Singleton v. Merrill, 582 F. Supp. 3d 924, 1035

(N.D. Ala. 2022) (citing to “the longstanding canon of

constitutional avoidance” in declining to reach

plaintiffs’ racial gerrymandering claims after finding

that the challenged districts violated Section 2 of the

VRA); Caster v. Merrill, No. 2:21-cv-1536, 2022 WL

264819, at *84 (N.D. Ala. Jan. 24, 2022) (same);

Singleton v. Allen, 2:21-cv-1291, 2023 WL 5691156, at

*74 (N.D. Ala. Sept. 5, 2023), appeal dismissed sub

nom; Milligan v. Co-Chairs of Alabama Permanent

Legis. Comm. on Reapportionment, No. 23-12922-D,

2023 WL 6568350 (11th Cir. Oct. 3, 2023) (“In light of

our decision to enjoin the use of the 2023 Plan on

statutory grounds, and because Alabama’s upcoming

10

congressional elections will not occur on the basis of

the map that is allegedly unconstitutional, we decline

to decide any constitutional issues at this time.”).

Mr. Garcia says “[i]t is not clear that the

constitutional avoidance canon can even be applied

across two separate cases.” JS 5-6 (emphasis in

original). But this Court has done just that. In

Cardona v. Power, 384 U.S. 672 (1966), this Court

remanded a constitutional challenge to New York’s

English literacy test for voting. Id. at 673. Because

this Court had simultaneously upheld the Voting

Rights Act’s statutory prohibition on literacy tests, see

Katzenbach v. Morgan, 384 U.S. 641 (1966), this Court

remanded Cardona on the suggestion that the

statutory prohibition upheld in Katzenbach might

render it unnecessary to reach the constitutional

question in Cardona. Cardona, 384 U.S. at 674.

Properly applying the principle of constitutional

avoidance led the Garcia court to decline to adjudicate

Mr. Garcia’s moot constitutional claim. The Soto

Palmer court first decided the statutory question and

issued its order invalidating LD 15 under the VRA.

The three-judge panel then determined, “before

addressing the constitutional issue, whether a

decision on that question could have entitled [Mr.

Garcia] to relief beyond that” which he would receive

as the de facto result of the adjudication of the

statutory claim in Soto Palmer. See Lyng, 485 U.S. at

446. As explained above and in the Garcia panel’s

opinion and order, Mr. Garcia could receive no further

relief. Op. and Order Dismissing Pls.’ Claim as Moot,

2-3, Garcia v. Hobbs, No. 3:22-cv-5152 (W.D. Wash.

11

Sept. 8, 2023), ECF No. 81. Because “no additional

relief would have been warranted, a constitutional

decision would have been unnecessary and therefore

inappropriate.” Lyng, 485 U.S. at 446. The Garcia

panel, therefore, properly applied the principle of

constitutional avoidance in declining to decide Mr.

Garcia’s moot constitutional question.

Turning this time-honored principle on its head,

Mr. Garcia insists that his constitutional claim

“should have been decided first” because “a

constitutional racial gerrymander claim alleges the

map was invalid from the moment it was enacted,

whereas a VRA claim alleges the map becomes vote

dilutive in effect at some point after its passage.” JS

4-5. He cites no authority for this distinction because

none exists. Racial gerrymanders and racially dilutive

redistricting plans under Section 2 are invalid at the

same moment: when they are enacted or otherwise

imposed. A racial gerrymander cannot exist until “the

boundaries of individual districts” exist. Alabama

Legislative Black Caucus v. Alabama, 575 U.S. 254,

262 (2015). And voters do not have standing to bring

a racial gerrymandering claim unless they can show

that they reside within “the boundaries of . . . specific

electoral districts.” Id. at 263 (emphasis in original).

Similarly, a map that has the effect of racial vote

dilution under Section 2 violates federal rights the

moment it is enacted or otherwise imposed. Like

racial gerrymandering claims, such cases are often

filed and adjudicated by trial courts shortly after the

map is enacted and well before an election can occur

under the challenged districts. See, e.g., Caster, 2022

WL 264819 at *84; Robinson v. Ardoin, 605 F. Supp.

12

3d 759, 858 (M.D. La. 2022); Petteway v. Galveston

Cnty., No. 3:22-CV-57, 2023 WL 6786025, at *55 (S.D.

Tex. Oct. 13, 2023), aff'd, 86 F.4th 214 (5th Cir. 2023),

reh'g en banc granted, opinion vacated, 86 F.4th 1146

(5th Cir. 2023).

2.

The Soto Palmer case was filed first,

and Mr. Garcia’s counsel conceded

that his case “necessarily turn[ed]”

on resolution of the Soto Palmer

case.

The sequencing of decisions by the Garcia and

Soto Palmer courts also makes sense as a procedural

matter. Soto Palmer was filed two months before

Garcia and was scheduled for trial before Garcia.

Indeed, the parties in Garcia, including Mr. Garcia,

agreed to extend all case deadlines to one month after

the corresponding dates in Soto Palmer. Garcia, No.

3:22-cv-5152, ECF No. 26. This schedule changed only

after the close of discovery in Soto Palmer, when

Judge Lasnik ordered a consolidated trial for judicial

efficiency but noted that he would still issue a decision

on the first-filed Section 2 claim before the three-judge

court considered Mr. Garcia’s constitutional claim.

Soto Palmer v. Hobbs, No. 3:22-cv-05035, ECF No. 136

at 5.

This expected sequence of judicial decisionmaking also aligned with the correct understanding of

every party, including Mr. Garcia’s counsel,5 that

“resolution of the claim in Garcia necessarily turns on

Mr. Garcia’s attorneys also represent the IntervenorDefendants in Soto Palmer.

5

13

the claims in [Soto Palmer].” Soto Palmer, No. 3:22CV-05035, ECF No. 109 at 3. As a legal matter,

though, the sequence and timing of decisions was

irrelevant to the substantive outcome. Even if the Soto

Palmer decision had been released on the same day or

after the Garcia decision, the three-judge court (which

included Judge Lasnik) could nevertheless have

held—soundly—that a forthcoming ruling in Soto

Palmer rendered Mr. Garcia’s constitutional claim

moot. Infra Sec. II.

The bottom line: Mr. Garcia waited months after

Soto Palmer to file his racial gerrymandering

challenge, stipulated to delay his own case to ensure it

would be decided after that case, and agreed that his

own claim would depend on the outcome in that case.

Full of regret, he now blames Article III judges for his

own strategic miscalculations.

Finally, Mr. Garcia’s claim that Judges Lasnik

and Estudillo “weaponize[d] docket management to

effectively evade this Court’s review” is nonsensical.

JS 13. No amount of docket manipulation could

actually insulate a decision from this Court’s

appellate review. If this appeal had proceeded to the

Ninth Circuit (as it should have), it could have still

made its way to this Court’s docket on writ of

certiorari. This would have also avoided Mr. Garcia’s

self-imposed concern that the appeals in Garcia and

Soto Palmer are proceeding on separate appellate

14

tracks.6 This Court has no jurisdiction under § 1253 to

entertain Mr. Garcia’s arguments on direct appeal.

II. The Panel Properly Ruled that Mr. Garcia’s

Claim is Moot.

If the Court finds that it has jurisdiction to hear

Mr. Garcia’s case on direct appeal, it should

summarily affirm the district court’s dismissal of Mr.

Garcia’s case as moot. First, the entire premise of the

argument that Garcia is not moot turns on the

longshot success of an appeal in a separate case in

which the petitioners lack standing to appeal. Second,

Mr. Garcia does not have a live case or controversy

arising from the speculative harm he may or may not

experience by the imposition of a currently non-extant

remedial district in separate litigation.

A. The pending petition for certiorari

before judgment in a separate case does

not suffice to make this case not moot.

The entire premise of Mr. Garcia’s argument that

his case is not moot hinges on the possibility of what

may happen in the Soto Palmer case on appeal. See JS

23. Indeed, contrary to his arguments elsewhere, Mr.

Garcia all but concedes that without a reversal there,

this case is moot. Id. at 23-25. However, the parties

bound by the Soto Palmer court’s judgement, the State

of Washington and Secretary Hobbs, have not

appealed that decision, and the time to file a notice of

Whatever burden Mr. Garcia claims from these dual-track

appeals is ultimately his own fault, or, more accurately, it is the

fault of his counsel, who filed the Soto Palmer appeal in the

Ninth Circuit but filed the Garcia appeal here.

6

15

appeal has lapsed. Recognizing this reality, Mr.

Garcia’s attorneys are attempting to keep this case

alive by appealing the Soto Palmer ruling on behalf of

their other clients and asking this Court to reinstate

a legislative district that they argued on behalf of Mr.

Garcia was unconstitutional. Putting aside the

dubious posture in which Mr. Garcia’s attorneys find

themselves as they attempt to serve the purported

interests of two sets of clients with opposite views of

the legality of the same legislative district, this

scheme suffers from a fatal flaw: the Soto Palmer

intervenors lack standing to appeal because they have

no legally cognizable interest.

To have standing, a litigant must demonstrate

“an invasion of a legally protected interest” that is

“concrete and particularized” and “actual or

imminent.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992) (internal quotations omitted).

Intervenors seeking to appeal must also meet this

Article III requirement. Hollingsworth v. Perry, 570

U.S. 693, 705 (2013) (“[S]tanding ‘must be met by

persons seeking appellate review, just as it must be

met by persons appearing in courts of first instance’”)

(internal citation omitted); Diamond v. Charles, 476

U.S. 54, 56, 68 (1986). This ensures that “the decision

to seek review. . . is not to be placed in the hands of

‘concerned bystanders,’ who will use it simply as a

‘vehicle for the vindication of value interests.’”

Diamond, 476 U.S. at 62 (internal citation omitted)—

or as here as a vehicle for their attorneys’ other client

to command the attention of this Court to review a

case that has been properly declared moot.

16

The Soto Palmer intervenors cannot establish

standing to appeal. In granting them only permissive

intervention in that case, the Soto Palmer district

court expressly found that “intervenors lack a

significant protectable interest in th[e] litigation.” No.

3:22-cv-05035, ECF No. 69 at 5. Two of the three,

Ybarra and Campos, do not even reside or vote in LD

15, and thus have no cognizable interest in the

district’s configuration. United States v. Hays, 515

U.S. 737, 744-45 (1995) (a voter who “resides in a

racially gerrymandered district … has been denied

equal treatment” but other voters “do[] not suffer

those special harms”); Ala. Legislative Black Caucus,

575 U.S. at 263; No. 3:22-cv-05035, ECF No. 191 at 4.

None of the three has alleged any improper racial

classification in that case—nor could they—and a

blanket interest in “proper application of the

Constitution and laws, and seeking relief that no more

directly and tangibly benefits [the intervenors] than it

does the public at large[,] does not state an Article III

case or controversy.” Lujan, 504 U.S. at 573-74; Allen

v. Wright, 468 U.S. 737, 754-55 (1984).

Neither does Intervenor Ybarra’s status as a state

legislator, in a district not being challenged in either

case, suffice to confer standing. Any interest in

avoiding delays to the election and knowing ahead of

time which voters will be in his district are not

particularized enough for Article III standing—every

party in the Soto Palmer litigation (and the public)

has an interest in an orderly election, and no

legislator is entitled to advance notice of his

constituents. Importantly, the current Soto Palmer

remedial schedule guarantees Ybarra would know his

17

district’s boundaries before the candidate filing

deadline. As such, granting the relief Mr. Garcia

seeks, including a stay of Soto Palmer, would harm

Ybarra. Nor does Ybarra have standing because of any

argument that the remedial process might make his

reelection campaign more costly or difficult. No

legislator is guaranteed reelection (let alone an easy

one), and to assert standing, a litigant "must do more

than simply allege a nonobvious harm.” Virginia

House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,

1951 (2019).

Moreover, the Soto Palmer district court has not

ordered the Soto Palmer intervenors “to do or refrain

from doing anything.” Hollingsworth, 570 U.S. at 705

(holding

that

non-governmental

intervenordefendants lack standing to appeal); Republican Nat’l

Comm. v. Common Cause of Rhode Island, 141 S. Ct.

206 (2020) (Mem.) (denying stay of consent decree

between state officials and plaintiffs because “no state

official has expressed opposition” and intervenor

“lack[s] a cognizable interest in the State’s ability to

enforce its duly enacted laws”) (internal quotations

omitted). Intervenors have no role in enforcing state

statutes or implementing any remedial plan.7 Thus,

the intervenors’ only interest in reversing the Soto

Palmer court’s order is “to vindicate the [] validity of

a

generally

applicable

[Washington]

law.”

Hollingsworth, 570 U.S. at 706. But this Court has

repeatedly held that “such a ‘generalized grievance,’

7 In fact, they did not even avail themselves of the opportunity to

submit a proposed remedial map, though they were permitted to

do so.

18

no matter how sincere, is insufficient to confer

standing.” Id. Neither do the Soto Palmer intervenors

have a concrete or imminent interest in the appeal of

the as-yet unchosen remedial plan. Any alleged

constitutional harm that would arise from the

remedial plan is purely speculative and not ripe for

litigation. See Cooper v. Harris, 581 U.S. 285, 290

(2017); Hays, 515 U.S. at 745.

Even if this Court had jurisdiction to decide this

appeal, Mr. Garcia’s sole argument depends upon the

success of appellants in a separate case who lack

standing to appeal. The only question before this

Court is thus: is the district Mr. Garcia sought to have

enjoined already enjoined, thus rendering his suit

moot? The answer is undeniably “yes,” and the Court

should summarily affirm on that basis if it does not

dismiss the appeal because it should have been

brought to the Ninth Circuit.

To the extent that any questions remain about

the finality of the Soto Palmer decision, however, this

case should be held in abeyance pending the

resolution of Soto Palmer.

B. Mr. Garcia’s claim for declaratory relief

cannot stand on mere speculation that

the remedial LD 15 will be a racial

gerrymander.

Mr. Garcia cannot sustain a live controversy by

speculating that the district court in another case will

impose a remedial plan that unconstitutionally

racially gerrymanders. That contention is factually

wrong, too speculative to support jurisdiction, and

19

must await a new claim against the imposed remedial

map.

The Soto Palmer remedial record directly

contradicts Mr. Garcia’s baseless assertion that it is

“inevitable” and an “imminent certainty” that the Soto

Palmer remedial process will result in an

unconstitutional racial gerrymander. JS 8, 20. The

Soto Palmer Plaintiffs—the only party to submit any

proposed remedial plans—have submitted five

proposed remedial plans, all of which were created by

a mapmaker who “did not consider race or racial

demographics in drawing the remedial plans” and

who “did not make visible, view, or otherwise consult

any racial demographic data while drawing districts.”

Dec. 1, 2023, Decl. of Dr. Oskooii at 4, Soto Palmer,

No. 3:22-CV-05035, ECF No. 245-1; Plaintiffs’ Br. in

Support of Remedial Proposals at 3-4, Soto Palmer,

No. 3:22-CV-05035, ECF No. 245. The purported

threat that the district court’s order would necessarily

result in “more racial gerrymandering,” JS 29,

therefore has not been realized and does not reflect

the reality of the ongoing Soto Palmer remedial

process. This alone should end Mr. Garcia’s claim that

he will inevitably face any harm from racial

gerrymandering arising from the remedial plan

enacted by the federal district court.

Even if the Soto Palmer district court were to

impose a remedial plan that considered race, as Mr.

Garcia’s counsel acknowledged in Soto Palmer

Intervenors’ Amended Answer, a legislative district is

not an unconstitutional racial gerrymander if the

VRA requires its race-conscious drawing. Intervenor-

20

Defs.’ Am. Answer at 34, Soto Palmer, No. 3:22-CV05035, ECF No. 103. To the extent Mr. Garcia now

argues that any remedial plan ordered to comply with

the VRA is a racial gerrymander, such an argument is

foreclosed by this Court’s precedent. See Milligan, 599

U.S. at 41. Furthermore, Mr. Garcia’s counsel has

conceded throughout this litigation that VRA

compliance is a compelling interest. See Compl.,

Garcia, No. 3:22-cv-5152, ECF No. 1 (“[C]omplying

with Section 2 of the Voting Rights Act is a compelling

interest …”); Soto Palmer, No. 3:22-CV-05035, ECF

No. 103 at 34 (same). This accords with the

longstanding practice of this court. Cooper v. Harris,

581 U.S. 285, 285 (2017).

Finally, even if the remedial map were to be

drawn on the basis of race, the fact remains that Mr.

Garcia would have to challenge that map.8 Mr. Garcia

has not challenged, and indeed cannot yet challenge,

a remedial district that does not yet exist. His

challenge of the invalidated LD 15 and the evidence

that he leveraged at trial in support of his claim that

the 2021 Washington Redistricting Commission

engaged in unconstitutional racial gerrymandering in

the creation of the invalidated LD 15 do not transfer

to a wholly different map imposed by a court. Mr.

Garcia’s reliance on North Carolina v. Covington, 138

S. Ct. 2548 (2018), on this point is misplaced. In

Covington, the plaintiffs contended that newly

redrawn district lines were “mere continuations” of

And Mr. Garcia would have to prove he has standing to

challenge that district. See United States v. Hays, 515 U.S. 737,

744-45 (1995).

8

21

prior lines which the district court found with

“sufficient circumstantial evidence” were drawn with

racial predominance. Id. at 2553. Here, the Soto

Palmer Plaintiffs’ remedial submissions—the only

ones received by the district court—bear no

resemblance to the version of LD 15 Mr. Garcia sought

to have enjoined, and the district court, having heard

the evidence, has cast serious doubt in any event on

Mr. Garcia’s allegations that the now-enjoined LD 15

was drawn predominantly on the basis of race. Garcia,

No. 3:22-cv-5152, ECF No. 81 at 4-5.

LD 15, the district challenged by Mr. Garcia, no

longer exists, and the predicate of his racial

gerrymandering claim—that Section 2 did not require

a Latino opportunity district in the Yakima Valley—

has been rejected. Mr. Garcia cannot now clutch at

speculative straws to claim his case is not moot. The

Soto Palmer remedial process, along with wellestablished precedent regarding VRA remedial

districts, demonstrate that Mr. Garcia’s “inevitable”

harm will almost certainly not come to pass; nor is it

even a certainty that he would have standing to

challenge it if it did. This is precisely why speculation

does not create an active stake in litigation both as a

general rule and as applied here to Mr. Garcia.

CONCLUSION

For the foregoing reasons, the Court should

dismiss Mr. Garcia’s appeal for lack of jurisdiction

because only the Ninth Circuit has jurisdiction to hear

it. If the Court concludes it has jurisdiction, it should

either summarily affirm the dismissal as moot or

alternatively hold this case in abeyance pending

22

resolution of the Soto Palmer appeal, upon which Mr.

Garcia’s appellate arguments in this case depend.

December 21, 2023

Respectfully submitted,

Chad W. Dunn

Sonni Waknin

UCLA Voting Rights Project

3250 Public Affairs Bldg.

Los Angeles, CA 90095

Mark P. Gaber

Counsel of Record

Simone Leeper

Aseem Mulji

Benjamin Phillips

Campaign Legal Center

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2000

mgaber@campaignlegal.org

Thomas A. Saenz

Ernest Herrera

Erika Cervantes

Mexican American Legal

Defense and Education Fund

643 S. Spring St., 11th Fl.

Los Angeles, CA 90014

Edwardo Morfin

Morfin Law Firm PLLC

2062 N. Proctor St., Ste. 205

Tacoma, WA 98407

Annabelle E. Harless

Campaign Legal Center

55 W. Monroe St., Ste. 1925

Chicago, IL 60603