Motion to Dismiss or Affirm — 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,

APPELLANT,

v.

STEVEN HOBBS, WASHINGTON SECRETARY OF STATE,

AND STATE OF WASHINGTON,

APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

MOTION TO DISMISS OR AFFIRM

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

PETER B. GONICK

CRISTINA SEPE

Deputy Solicitors General

ANDREW R.W. HUGHES

Assistant Attorney General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

Attorneys for State of Washington

i

QUESTIONS PRESENTED

For decades, this Court has held that when a

three-judge district court dismisses a case on

justiciability grounds, such as a lack of standing, the

proper avenue for appeal is to the Courts of

Appeal, not to invoke this Court’s appellate

jurisdiction under 28 U.S.C. § 1253. In this case,

the three-judge district court dismissed plaintiff’s

claim on justiciability grounds, finding the

claim moot because the plaintiff had already

received the relief he sought—invalidation of

Washington Legislative District 15—from another

case. Plaintiff thus faced no actual or imminent

injury.

The questions presented are:

1.

Whether this Court should overrule its

precedent holding that it lacks jurisdiction under 28

U.S.C. § 1253 to review a direct appeal where the

three-judge district court dismissed the case on

justiciability grounds.

2.

If the Court concludes that it has

jurisdiction, whether this Court should affirm the

three-judge district court’s dismissal of the case as

moot because the plaintiff had already received the

relief he requested through the ruling in another case,

eliminating any claim of injury or redressability in

this case.

ii

TABLE OF CONTENTS

INTRODUCTION ....................................................... 1

OPINION BELOW ..................................................... 4

JURISDICTION ......................................................... 4

STATEMENT ............................................................. 4

A.

The Washington Redistricting

Commission and Adoption of

Legislative District 15 ..................................... 4

B.

The Soto Palmer and Garcia Lawsuits ......... 10

C.

The District Court’s Order and the

Three-Judge Panel’s Decision ....................... 12

REASONS FOR DISMISSAL OR

AFFIRMANCE ......................................................... 14

A.

This Court Lacks Jurisdiction Over

This Appeal Under Gonzalez v. Automatic

Employee Credit Union.................................. 14

1.

Contrary to Appellant’s Claims,

This Court Has Not Silently

Overruled Gonzalez............................. 17

2.

Appellant Offers No Persuasive

Reason to Overturn Gonzalez

Now, and the Rule He Advances

Makes No Sense .................................. 19

3.

Appellant’s Attempts to

Distinguish Gonzalez Fail .................. 21

iii

B.

The District Court Correctly Dismissed

This Case as Moot .......................................... 23

C.

The Rule Appellant Suggests and

His Rationales for It Make No Sense ............ 31

CONCLUSION ......................................................... 34

iv

TABLE OF AUTHORITIES

Cases

Abbott v. Perez

138 S. Ct. 2305 (2018) .......................... 17-18, 21, 30

Allen v. Milligan

599 U.S. 1 (2023) ..............................................12, 30

Already, LLC v. Nike, Inc.

568 U.S. 85 (2013) ..................................................23

Alvarez v. Smith

558 U.S. 87 (2009) ..................................................24

Arizonans for Official English v. Arizona

520 U.S. 432 (1997) .................................... 16, 22, 26

Baker v. Carr

369 U.S. 186 (1962) ................................................27

Carney v. Adams

592 U.S. 53 (2020) ..................................................25

Carson v. American Brands, Inc.

450 U.S. 79 (1981) ..................................................18

Caster v. Merrill

No. 2:21-cv-1536-AMM,

2022 WL 264819 (N.D. Ala. Jan. 24, 2022),

aff’d sub nom. Allen v. Milligan

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

Clapper v. Amnesty Int’l USA

568 U.S. 398 (2013) ................................................26

Commodity Futures Trading Comm’n v.

Bd. of Trade of Chicago

701 F.2d 653 (7th Cir. 1983) ..................................26

v

Cooper v. Harris

581 U.S. 285 (2017) ................................................33

Enrico’s, Inc. v. Rice

730 F.2d 1250 (9th Cir. 1984) .......................... 28-29

Escambia County v. McMillan

466 U.S. 48 (1984) ..................................................20

Ex parte Poresky

290 U.S. 30 (1933) ..................................................16

Garcia v. Hobbs

No. 3:22-cv-05152-RSL-DGE-LJCV,

2023 WL 5822461 (W.D. Wash. Sept. 8, 2023) .......4

Genesis Healthcare Corp. v. Symczyk

569 U.S. 66 (2013) ............................................16, 26

Goldstein v. Cox

396 U.S. 471 (1970) ..........................................15, 21

Gonzalez v. Automatic Employees

Credit Union

419 U.S. 90 (1974) .................................. 2, 14-23, 31

Hollingsworth v. Perry

570 U.S. 693 (2013) ................................................22

Iron Arrow Honor Soc’y v. Heckler

464 U.S. 67 (1983) ............................................16, 22

League of United Latin Am. Citizens v. Perry

548 U.S. 399 (2006) ................................................20

Lewis v. Cont’l Bank Corp.

494 U.S. 472 (1990) ................................................26

Massachusetts v. EPA

549 U.S. 497 (2007) ................................................22

vi

Miller v. Johnson

515 U.S. 900 (1995) ................................................32

Montes v. City of Yakima

40 F. Supp. 3d 1377 (E.D. Wash. 2014) ..................6

Moore v. Harper

600 U.S. 1 (2023) ........................................ 24, 26-27

Moore v. Louisiana Bd. of Elementary &

Secondary Educ.

743 F.3d 959 (5th Cir. 2014) ..................................28

MTM, Inc. v. Baxley

420 U.S. 799 (1975) ................................................15

Murphy v. Hunt

455 U.S. 478 (1982) ................................................23

New York State Rifle & Pistol Ass’n, Inc. v.

City of New York

140 S. Ct. 1525 (2020) ............................................25

North Carolina v. Covington

138 S. Ct. 2548 (2018) ......................................14, 29

Nw. Austin Mun. Util. Dist. 1 v. Holder

557 U.S. 193 (2009) ..........................................20, 32

Phillips v. United States

312 U.S. 246 (1941) ................................................15

Rosado v. Wyman

304 F. Supp. 1354 (E.D.N.Y.),

appeal dismissed for want of jurisdiction,

395 U.S. 826 (1969) ................................................17

vii

Shalala v. Illinois Council on

Long Term Care, Inc.

529 U.S. 1 (2000) ....................................................19

Shaw v. Reno

509 U.S. 630 (1993) ................................................30

Soto Palmer v. Hobbs

No. 3:22-cv-05025-RSL,

2023 WL 5125390 (W.D. Wash. Aug. 10, 2023) ....12

Thornburg v. Gingles

478 U.S. 30 (1986) ..............................................6, 20

United States Parole Comm’n v. Geraghty

445 U.S. 388 (1980) ................................................16

United States v. Juvenile Male

564 U.S. 932 (2011) ..........................................24, 26

Whitmore v. Arkansas

495 U.S. 149 (1990) ................................................26

Wittman v. Personhuballah

578 U.S. 539 (2016) ................................................25

Constitutional Provisions

U.S. Const. art. III ...............................................14, 25

Wash. Const. art. II, § 43(2) ....................................4, 5

Statutes

28 U.S.C. § 1253 .............................2, 14, 17-18, 21, 23

28 U.S.C. 1292(a)(1) ..................................................18

Wash. Rev. Code § 44.05.100(1) ..................................5

Wash. Rev. Code § 44.05.100(2) ..................................5

Wash. Rev. Code § 44.05.100(3) ..................................5

viii

Wash. Rev. Code § 44.05.090 ......................................5

Other Authorities

H. Con. Res. 4407,

67th Leg., Reg. Sess. (Wash. Feb. 2, 2022)

(enacted) .................................................................10

1

INTRODUCTION

Plaintiff Benancio Garcia asks this Court to

overrule its own precedent just so that the Court can

then decide whether his case is moot, which it clearly

is. He makes this audacious request even though he

concedes that he will lose on the merits in the lower

court if the case is not moot, and even though his

requested relief cannot possibly impact Washington’s

2024 elections. The Court should decline to overturn

its precedent just to reach Garcia’s academic question.

After a bipartisan commission adopted

Washington’s 2020 redistricting plan and the

Washington Legislature ratified it in an overwhelming bipartisan vote, a group of plaintiffs filed a

Voting Rights Act case (Soto Palmer) challenging

Legislative District 15 in the plan. They claimed that

LD 15 illegally diluted Hispanic voting strength and

should be redrawn. Months later, Garcia filed this

case, claiming that the same district had been racially

gerrymandered and should be redrawn.

The district court in Soto Palmer held that

LD 15 violated Section 2 of the VRA and must be

redrawn. After the Legislature declined to propose a

new plan, the court began the process of adopting

a plan itself. All parties in that case and this one have

stipulated that to comply with Washington law and

logistical requirements, a new plan must be finalized

by March 25, 2024, to be used in the 2024 election.

After the Soto Palmer court invalidated LD 15

and ordered that it be redrawn, the district court in

this case dismissed Garcia’s claim as moot, concluding

2

that Garcia’s claimed injury had already been

remedied. Garcia then filed this appeal.

This Court should dismiss Garcia’s appeal for

lack of jurisdiction. In Gonzalez v. Automatic

Employees Credit Union, 419 U.S. 90 (1974), this

Court unanimously held that a dismissal on

jurisdictional grounds falls outside this Court’s

appellate jurisdiction under 28 U.S.C. § 1253. The

district court dismissed this case on jurisdictional

grounds, finding the case moot. Gonzalez therefore

controls. Garcia responds that this Court either

already has overruled Gonzalez sub silentio, that the

Court should overrule Gonzalez now, or that Gonzalez

is inapposite. These claims are untenable.

If the Court nonetheless concludes that it has

jurisdiction, it should affirm that Garcia’s claim is

moot. His complaint asked that LD 15 be invalidated

and redrawn. The Soto Palmer court ordered exactly

that, so there was no remaining injury the court in

this case could redress. Garcia argues that his case

remains a live controversy because the Soto Palmer

decision might be reversed. But that possibility comes

nowhere close to showing the actual or certainly

impending harm this Court requires for standing.

Mr. Garcia’s request that the Court overrule

precedent and revive his moot claim is particularly

weak because it is rooted in baseless policy concerns.

He claims that the Court must overrule Gonzalez and

review mootness holdings to prevent “docket games.”

But he offers no evidence that any such games

3

occurred here. Because Soto Palmer had resolved

Garcia’s asserted injury on statutory grounds, the

district court here concluded that there was no need

to reach his constitutional claim. This Court routinely

takes the same approach. This is not gamesmanship.

There is also no practical reason for this Court

to review this decision now, rather than leaving

review to the Court of Appeals, as Gonzalez dictates.

Even if the Court overturned Gonzalez, reviewed

Garcia’s claim, and reversed the lower court’s

mootness holding, any such holding would come well

after a new map has to be adopted for the 2024

election by the Soto Palmer court. And even if this

Court somehow managed to review and issue an

opinion before March 25, 2024, Garcia concedes that

he will lose his racial gerrymandering claim on the

merits on remand, so there still would be no impact on

the 2024 election.

In short, Garcia asks this Court to overturn

precedent just to decide his case, his case is clearly

moot, and even if this Court revived it, there would be

no impact. The Court should dismiss or affirm.1

1 Consistent with his position throughout this litigation,

Washington Secretary of State Steve Hobbs takes no position on

the merits of plaintiff’s claim. The Secretary’s interest in this

litigation is to ensure that election officials are able to meet

election deadlines. If new maps are to be implemented for the

2024 election cycle, those maps must be finalized and

transmitted to counties by March 25, 2024, as all parties have

stipulated. See ECF No. 64, at 12 ¶ 85, Garcia v. Hobbs, No. 3:22cv-05152-RSL-DGE-LJCV (W.D. Wash. May 24, 2023) (admitted

fact in parties’ agreed proposed pretrial order). The Secretary

takes no further position on the motion to dismiss or affirm.

4

OPINION BELOW

The opinion of the district court dismissing the

case as moot (App. A1-A47) is not yet published in the

Federal Supplement but is available at Garcia v.

Hobbs, No. 3:22-cv-05152-RSL-DGE-LJCV, 2023 WL

5822461 (W.D. Wash. Sept. 8, 2023).

JURISDICTION

As detailed below, this Court lacks jurisdiction.

Under 28 U.S.C. § 1253, this Court has appellate

jurisdiction over orders “granting or denying . . . an

interlocutory or permanent injunction in any civil

action, suit or proceeding required by any Act of

Congress to be heard and determined by a district

court of three judges.” The order appealed from does

not grant or deny an injunction, but dismisses the case

as moot. The order is a “final decision” over which the

court of appeals, not this Court, has jurisdiction.

STATEMENT

A.

The

Washington

Redistricting

Commission and Adoption of Legislative

District 15

Article II, section 43 of the Washington

Constitution provides for a bipartisan Washington

State Redistricting Commission to draw state

legislative

and

congressional

districts.

The

Commission consists of four voting members and one

non-voting chairperson. See Wash. Const. art. II,

§ 43(2). The voting members are appointed by the

legislative leaders of the two largest political parties

in each house of the Legislature. Wash. Const. art. II,

§ 43(2). For the 2021 redistricting cycle, the four

5

voting Commissioners were April Sims (appointed by

the House Democratic Caucus), Brady Piñero

Walkinshaw (appointed by the Senate Democratic

Caucus), Paul Graves (appointed by the House

Republican Caucus), and Joe Fain (appointed by the

Senate Republican Caucus).

Under Washington law, the Commission must

agree, by majority vote, to a redistricting plan by

November 15 of the redistricting year, and then

transmit the plan to the Legislature. Wash. Rev. Code

§ 44.05.100(1); Wash. Const. art. II, § 43(2). Thus, the

Commission cannot propose a plan without bipartisan

agreement amongst the Commissioners. Upon

submission of the plan by the Commission, the

Legislature has 30 days to amend the plan by a

two-thirds vote. Wash. Rev. Code § 44.05.100(2).

The redistricting plan becomes final upon the

Legislature’s approval of any amendment or after

expiration of the thirty-day window for amending the

plan, whichever occurs sooner. Wash. Rev. Code

§ 44.05.100(3).

Washington’s redistricting statute sets forth

requirements for redistricting plans, including that

district lines coincide with boundaries of political

subdivisions to the extent possible, that communities

of interest be kept together as much as practicable,

that city and county splits be kept to a minimum, and

that districts be contiguous and compact. Wash. Rev.

Code § 44.05.090.

6

In addition to state-law requirements, the 2021

Commission was the first in State history to

grapple with Section 2 of the Voting Rights Act (VRA).

The 2020 Census showed dramatic growth of

Washington’s Hispanic population, centered in the

Yakima Valley region in central Washington. ECF

No. 64, at 3-4, [Proposed] Pretrial Order, Garcia v.

Hobbs, No. 3:22-cv-05152-RSL-DGE-LJCV (W.D.

Wash. May 24, 2023).2 In the years leading up to 2021,

three separate cases found violations of the federal

Voting Rights Act or the Washington Voting Rights

Act related to local elections in that region. In Montes,

a federal district court concluded that Yakima’s

at-large voting system for city council elections

violated Section 2 of the VRA. Montes v. City of

Yakima, 40 F. Supp. 3d 1377 (E.D. Wash. 2014). The

court reviewed evidence regarding the three Gingles

factors and concluded that each was satisfied with

respect to Latino voters in Yakima. Id. at 1390-1407.

The Court also found that the totality of the

circumstances demonstrated that the City’s electoral

process was not equally open to Latino voters. Id. at

1408-14. In Glatt v. City of Pasco, a challenge to

Pasco’s at-large voting system, a federal district court

entered a consent decree in which the parties

stipulated to each Gingles factor as well

as a finding that the totality of the circumstances

showed an exclusion of Latinos from meaningfully

2 Filings from the Garcia v. Hobbs district court docket

will be short cited as Garcia, ECF No. __. Filings from the Soto

Palmer district court docket will be short cited as Soto Palmer,

ECF No. __.

7

participating in the political process. See ECF No. 16

¶¶ 15-22, Partial Consent Decree, Glatt v. City of

Pasco, No. 4:16-cv-05108-LRS (E.D. Wash. Sept. 2,

2016); see also ECF No. 40, at 29, Mem. Op. and

Order, Glatt v. City of Pasco, No. 4:16-cv-05108-LRS

(E.D. Wash. Jan. 27, 2017). And in Aguilar v. Yakima

County, No. 20-2-0018019 (Kittitas Cnty. Super. Ct.),

a challenge to the at-large voting system used in

Yakima County, the parties entered and the court

approved a settlement agreement finding that the

conditions for a violation of the Washington Voting

Rights Act, including a showing of racially polarized

voting, had been met in Yakima County. Garcia, ECF

No. 64, at 11.

On September 21, 2021, shortly after the

Commission received Census data, and shortly after

the Aguilar v. Yakima County settlement, the four

voting Commissioners publicly released their first

proposed legislative maps. Garcia, ECF No. 64, at 8,

11. The Senate Democratic Caucus then retained

Dr. Matt Barreto of the UCLA Voting Rights Project

to evaluate the extent of racially polarized voting in

the Yakima Valley and assess the proposed maps’

compliance with the VRA. App. A93. In his analysis,

Dr. Barreto concluded that there was “clear” evidence

“of racially polarized voting” in the Yakima Valley.

App. A109. He opined that to comply with the VRA,

the Commission needed to include a district with a

majority-Hispanic citizen voting age population

(CVAP) in that area that allowed Latino voters to elect

candidates of their choice. App. A110-A117.

8

Following this report, Commissioners Sims and

Walkinshaw released new proposed maps designed to

better comply with the VRA by increasing the

Hispanic CVAP in the Yakima Valley district that

eventually became LD 15, while also improving on the

previous maps in other respects. See Trial Exs. 196,

197; see also Garcia, ECF No. 73 (Trial Tr.), at 272:17–

273:13; Trial Ex. 200; Trial Ex. 195. Meanwhile,

Commissioners Fain and Graves obtained a legal

opinion from lawyers at Davis Wright Tremaine LLP,

who opined that a majority-minority district in the

Yakima Valley was not legally necessary. App. A119.

The opinion noted that it was primarily a legal

analysis and that the authors had not “conduct[ed]

factual research regarding demographic trends,

voting behavior, [or] election results[.]” App. A119.

At trial, each of the voting Commissioners

testified as to their priorities in negotiating and

drafting maps. Each Commissioner prioritized

complying with the Voting Rights Act, though as trial

made clear, they differed in their understanding of

what that meant. Garcia, ECF No. 73 (Trial Tr.), at

343:9–11; Trial Ex. 200; Garcia, ECF No. 75 (Trial

Tr.), at 757:24–758:1; ECF No. 74 (Trial Tr.), at

434:16–435:1. And finally, befitting a bipartisan

negotiation, the Commissioners sought to gain (or at

least not lose) partisan advantage through the

negotiations. Garcia, ECF No. 75 (Trial Tr.), at

707:20–23.

9

As the deadline for finalizing maps approached,

the Commissioners negotiated extensively in an effort

to reach bipartisan compromise, with Commissioners

Sims and Graves primarily tasked with negotiating

the legislative districts. Each Commissioner remained

committed to their overarching goals, and the sticking

points, including with respect to LD 15, primarily

centered on partisan performance. Garcia, ECF No.

75 (Trial Tr.), at 702:12–704:19. The racial makeup of

the district was just one of several factors in the

negotiations over LD 15. See, e.g., Garcia, ECF No. 75

(Trial Tr.), at 756:20–757:18; Garcia, ECF No. 73

(Trial Tr.), at 282:4–21; see also App. A5 n.4

(summarizing Commissioners’ testimony).

Following a chaotic final day and evening of

negotiations, the Commissioners ultimately voted

unanimously to approve a legislative redistricting

plan just before midnight. The plan consisted

primarily of an agreed set of partisan metrics, which

was then translated by staff into a map. Garcia,

ECF No. 73 (Trial Tr.), at 225:20–226:22, 326:11–21;

ECF No. 74 (Trial Tr.), at 495:10–16; ECF No. 75

(Trial Tr.) at 714:9–715:8. On November 16, 2021,

the Commission transmitted the final map to the

Legislature. Garcia, ECF No. 64 ¶ 73. In the final

map, LD 15 is 73% Hispanic and, according to

estimates based on the 2020 American Community

Survey, approximately 51.5% Hispanic by CVAP.

Garcia, ECF No. 64 ¶ 76.

The Legislature exercised its statutory

prerogative to make minor amendments to the Plan.

The Legislature made changes to LD 15 without

altering its demographic make-up. Garcia, ECF

No. 64 ¶ 75. On February 8, 2022, the Legislature

10

passed House Concurrent Resolution 4407,

adopting the amended redistricting plan. H. Con. Res.

4407, 67th Leg., Reg. Sess. (Wash. Feb. 2, 2022)

(enacted). Upon passage, the Legislature’s amended

redistricting plan became State law. Wash. Rev. Code

§ 44.05.100.

B.

The Soto Palmer and Garcia Lawsuits

On January 19, 2022, plaintiffs in Soto Palmer

v. Hobbs filed suit, alleging that LD 15 diluted

Hispanic voting strength in violation of Section 2 of

the Voting Rights Act. ECF No. 1, Complaint for

Declaratory and Injunctive Relief, Soto Palmer v.

Hobbs, No. 3:22-cv-05035-RSL (W.D. Wash. Jan. 19,

2022). The case was assigned to Judge Robert Lasnik

of the Western District of Washington. Nearly two

months later, on March 15, 2022, Garcia filed this

lawsuit, claiming that LD 15 was a racial

gerrymander in violation of the Fourteenth

Amendment, and requested a three-judge panel. His

case was assigned to Judge Lasnik, Chief Judge David

Estudillo of the Western District of Washington, and

Judge Lawrence VanDyke of the Ninth Circuit.

Two weeks after Garcia was filed, three

individuals—represented by the same counsel as

Garcia—moved to intervene in Soto Palmer to defend

LD 15 against the Soto Palmer Plaintiffs’ Section 2

claims. Soto Palmer, ECF No. 57. On May 6, 2022, the

Soto Palmer district court granted permissive

intervention to Intervenor-Defendants, Soto Palmer,

ECF No. 69, and ordered the State of Washington

joined as a party “to ensure that the Court has the

power to provide the relief plaintiffs request,” Soto

Palmer, ECF No. 68, at 5.

11

Since that time, the two cases have proceeded

in tandem as essentially a single dispute with three

parties: (1) the Soto Palmer Plaintiffs, challenging

LD 15 under Section 2 of the Voting Rights Act; (2) the

State of Washington; and (3) the Garcia Plaintiff/Soto

Palmer Intervenors, challenging LD 15 under the

Fourteenth Amendment and simultaneously/alternatively arguing that LD 15 complied with Section 2.3

But because Soto Palmer was filed first, the cases

proceeded on a staggered schedule, with Soto Palmer

going first. After Judge Lasnik initially continued the

case schedule in Soto Palmer, the Garcia parties

jointly requested (and received) a scheduling order

“extending all case dates to approximately one month

after the corresponding dates in Soto Palmer[.]”

Garcia, ECF No. 26, at 6. Later, following dueling

motions by the two sets of plaintiffs aimed at

streamlining the cases, Judge Lasnik found “that

judicial efficiency [would] best be served by hearing

the Section 2 and the equal protection claims

together,” and the court thus continued the Soto

Palmer trial to coincide with the Garcia trial. Soto

Palmer, ECF No. 136, at 5. However, to preserve the

priority of Soto Palmer, Judge Lasnik explained that

“[a]t the close of evidence at the consolidated trial, the

undersigned will issue a decision on the Section 2

claim, and the three-judge district court will then

consider the constitutional claim.” Soto Palmer, ECF

No. 136, at 5 4 (emphasis added). Ultimately, the two

3 The Secretary of State has not taken a position on the

merits of either case.

As Garcia notes, Judge Lasnik’s order goes on

to say that “[j]udgments in the two matters will be issued

on the same day so that the appeals, if any, can proceed

4

12

cases were heard together in a joint trial, with the first

day consisting of Soto Palmer-only evidence, heard by

Judge Lasnik, and the remaining days consisting of

joint evidence for both Soto Palmer and Garcia heard

by the three-judge panel (which included Judge

Lasnik). Soto Palmer, ECF Nos. 187, 198-201 (minute

entries); Garcia, ECF Nos. 68-70 (minute entries).

Trial ended June 8, 2023, with written closings

due July 12, 2023. Garcia, ECF No. 70.

C.

The District Court’s Order and the ThreeJudge Panel’s Decision

On August 10, 2023, Judge Lasnik issued a

Memorandum of Decision in Soto Palmer, finding that

LD 15 had the effect of discriminating against

Hispanic voters by denying them the equal right to

elect candidates of their choice. App. A51. Following

this Court’s reaffirmance of the Gingles framework in

Allen v. Milligan, 599 U.S. 1 (2023), Judge Lasnik

analyzed the Gingles factors and concluded that the

Soto Palmer Plaintiffs had satisfied them all. Soto

Palmer v. Hobbs, No. 3:22-cv-05025-RSL, 2023 WL

5125390, at *3-6 (W.D. Wash. Aug. 10, 2023). The

court then undertook the totality of the circumstances

analysis, finding that seven of the nine Senate Factors

together.” Jurisdictional Statement at 7-8 (alteration in

original). While the State cannot say for sure why that plan did

not come to fruition, Judge Lasnik presumably could not have

known that one panel member would author a lengthy dissent

that likely slowed down the process of issuing the decision in

Garcia. App. A11-A47. Garcia’s assertion that the decisions were

timed to advance some ulterior motive is pure speculation made

without citation to, or support in, the record. See Jurisdictional

Statement at 7-8.

13

supported “the conclusion that the bare majority

of Latino voters in LD 15 fails to afford them

equal opportunity to elect their preferred candidates.”

Id. at *11.

Pursuant to the Soto Palmer district court

decision (and subsequent orders), the parties are

currently engaged in the remedial process aimed at

adopting a new map for LD 15 and surrounding

districts. All parties have stipulated that the new map

must be adopted by March 25, 2024, in order to be

used in the 2024 election, given Washington’s

statutory deadlines for candidate filing and other

aspects of election administration. App. A89; Garcia,

ECF No. 64, at 12 (“Should the Court determine a new

legislative district map must be drawn as a remedy,

March 25, 2024 is the latest date a finalized legislative

district map must be transmitted to counties without

significantly disrupting the 2024 election cycle.”). On

December 1, 2023, as ordered by Judge Lasnik, the

Soto Palmer Plaintiffs proposed five remedial maps to

the district court, and the parties submitted three

candidates to serve as special master. Soto Palmer,

ECF Nos. 244-245.

Meanwhile, the Soto Palmer Intervenors

appealed Judge Lasnik’s decision on the merits, and

filed a Petition for Certiorari before Judgment in this

Court. Trevino v. Soto Palmer, U.S.S.C. No. 23-484.

The Garcia district court issued its opinion

September 8, 2023, dismissing this case as moot.

App. A1-A11. As the majority explained, Garcia

sought declaratory relief that LD 15, as enacted, was

unlawful, “an injunction ‘enjoining [Washington] from

enforcing or giving any effect to the boundaries of [ ]

14

[LD 15],’ ” and an order requiring “a new legislative

map be drawn.” App. A2-A3 (first alteration ours)

(quoting Garcia’s Amended Complaint). But Judge

Lasnik’s decision invalidating LD 15 and ordering a

new VRA-compliant map meant “the Court cannot

provide any more relief to Plaintiff.” App. A3; see also

App. A7 (“LD 15 will be redrawn and will not be used

in its current form for any future election. The Soto

Palmer court has therefore granted Plaintiff

complete relief for purposes of our mootness

analysis.”). And the court further explained that

“Plaintiff does not assert that any new district drawn

by the Washington State Redistricting Commission

. . . would be a ‘mere continuation[ ] of the old,

gerrymandered district[ ].’” App. A3 (ellipsis ours)

(quoting North Carolina v. Covington, 138 S. Ct. 2548,

2553 (2018)). The court therefore dismissed Plaintiff ’s

claims under Article III of the U.S. Constitution

without addressing the merits or ruling on Garcia’s

requested injunction. App. A2-A11. Judge VanDyke

dissented, disagreeing with the majority’s mootness

conclusion. App. A11-A47.

REASONS FOR DISMISSAL OR AFFIRMANCE

A.

This Court Lacks Jurisdiction Over This

Appeal Under Gonzalez v. Automatic

Employee Credit Union

This Court lacks jurisdiction over this appeal.

This Court’s mandatory appellate jurisdiction is

narrow, extending only to orders of three-judge

district courts “granting or denying . . . an

interlocutory or permanent injunction[.]” 28 U.S.C.

§ 1253. Fifty years ago, in Gonzalez, 419 U.S. at 100,

this Court unanimously held that a dismissal on

15

jurisdictional grounds falls outside of this Court’s

mandatory appellate jurisdiction. The three-judge

district court here dismissed this case on

jurisdictional grounds, finding the case moot. Garcia

claims that this Court must review that conclusion,

arguing that the Court either already has overruled

Gonzalez without saying so, that the Court should

overrule Gonzalez now, or that Gonzalez is inapposite.

None of these contradictory claims withstands

scrutiny. Dismissals based on mootness follow the

normal appellate path of review by the Courts of

Appeals, not mandatory review here.

For decades, this Court has held that “its

jurisdiction under the Three-Judge Court Act is to be

narrowly construed since ‘any loose construction of

the requirements of (the Act) would defeat the

purposes of Congress * * * to keep within narrow

confines [this Court’s] appellate docket.’ ” Goldstein v.

Cox, 396 U.S. 471, 478 (1970) (last alteration ours)

(quoting Phillips v. United States, 312 U.S. 246, 250

(1941)).

This Court has specifically made clear that it

has no jurisdiction to hear a direct appeal from a case

dismissed on standing or other jurisdictional grounds.

Gonzalez, 419 U.S. at 100; see also MTM, Inc. v.

Baxley, 420 U.S. 799 (1975) (declining direct review

where three-judge district court dismissed based on

Younger abstention doctrine). The Gonzalez Court

reasoned that where a three-judge panel could have

dissolved itself and left the dismissal to a single-court

judge, the decision to dismiss rather than dissolve was

one of “mere convenience or happenstance[,]” and that

its “mandatory docket must rest on a firmer

foundation[.]” Gonzalez, 419 U.S. at 101. After

16

recognizing that a “three-judge court is not required

where the district court itself lacks jurisdiction of the

complaint or the complaint is not justiciable in the

federal courts[,]” the Gonzalez Court found it had no

jurisdiction to hear a direct appeal from a dismissal

based on lack of standing. Gonzalez, 419 U.S. at 100

(citing Ex parte Poresky, 290 U.S. 30, 31 (1933)).

Gonzalez controls here. Just as in Gonzalez,

this case was dismissed by a three-judge panel on

jurisdictional grounds. See Gonzalez, 419 U.S. at 93.

Although the question in Gonzalez involved standing,

“[m]ootness has been described as the doctrine of

standing set in a time frame: The requisite personal

interest that must exist at the commencement of the

litigation (standing) must continue throughout its

existence (mootness).” Arizonans for Official English

v. Arizona, 520 U.S. 43, 68 n.22 (1997) (internal

quotation marks omitted) (quoting United States

Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980));

see also Genesis Healthcare Corp. v. Symczyk, 569 U.S.

66, 72 (2013) (holding that if a case becomes moot, “the

action can no longer proceed and must be dismissed”).

A federal court—whether a single judge or a threejudge panel—loses jurisdiction over a case when the

case becomes moot, and cannot properly retain

jurisdiction and decide the case. See Iron Arrow Honor

Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (“Federal

courts lack jurisdiction to decide moot cases because

their constitutional authority extends only to actual

cases or controversies.”).

If any doubt remained about how the holding in

Gonzalez applied to a case dismissed for mootness, as

here, Gonzalez itself answers that specific question by

17

citing with approval a case just like this one.

Gonzalez, 419 U.S. at 100 n.18 (citing Rosado v.

Wyman, 304 F. Supp. 1354 (E.D.N.Y.), appeal

dismissed for want of jurisdiction, 395 U.S. 826

(1969)). In Rosado, a three-judge panel dissolved itself

when the issue presented became moot, and this

Court dismissed an attempted direct appeal. Rosado,

304 F. Supp. at 1356; Rosado, 395 U.S. 826. Gonzalez

thus not only articulates a basic principle that

controls here, but also used as an example the specific

facts of this case.

Garcia attempts to avoid Gonzalez in several

ways. None is convincing.

1.

Contrary to Appellant’s Claims, This

Court Has Not Silently Overruled

Gonzalez

Garcia first makes the audacious argument

that this Court’s decision in Abbott v. Perez, 138 S. Ct.

2305 (2018), silently overruled Gonzalez. He claims

that Abbott created a no-exceptions rule requiring this

Court’s review any time a three-judge district court

dismisses a case or its decision otherwise results in

the failure to issue an injunction. Jurisdictional

Statement at 9. This argument overstates Abbott and

ignores this Court’s principle that it does not overturn

its precedent sub silentio.

In Abbott, this Court addressed a three-judge

court order that had the practical effect of enjoining

the use of Texas’s legislatively enacted districting

plan, even though the district court did not use the

term “injunction.” Abbott, 138 S. Ct. at 2321-22. In its

analysis, this Court explained that § 1253 jurisdiction

does not turn on whether a district court specifically

18

labels an order an injunction or a denial thereof, but

rather whether an order “has the same practical

effect as one granting or denying an injunction.”

Abbott, 138 S. Ct. at 2320-21 (extending to § 1253

the “ ‘practical effect’ inquiry” applied to 28 U.S.C.

1292(a)(1) by Carson v. American Brands, Inc., 450

U.S. 79 (1981)). The Court then explained that the

order before it had the effect of granting an injunction

because “the three-judge court did not intend to allow

the elections to go ahead under the plans it had just

condemned.” Abbott, 138 S. Ct. at 2322.

The Abbott Court did not address Gonzalez, let

alone suggest that it was overturning it. Nor did its

holding or rationale give any reason to question the

underpinnings of Gonzalez, which adopted a

straightforward principle that it makes no sense to

review a justiciability decision of a three-judge court

that could have been made by a single-judge court.

See Gonzalez, 419 U.S. at 101.

To the contrary, Abbott repeatedly emphasized

how narrow its holding was. The Court “reiterate[d]

that § 1253 must be strictly construed.” Abbott, 138

S. Ct. at 2324. The Court also emphasized that “[o]ur

holding here will affect only a small category of

additional cases.” Id. at 2323-24. These statements

are irreconcilable with Garcia’s view that Abbott

created a new bright-line rule overturning decades of

case law and substantially expanding this Court’s

mandatory appellate jurisdiction.

If all of that were not enough, Garcia’s

argument that Abbott overturned Gonzalez and

similar decisions of this Court without even hinting

that it was doing so also flies in the face of this Court’s

19

principle that it “does not normally overturn, or so

dramatically limit, earlier authority sub silentio.”

Shalala v. Illinois Council on Long Term Care, Inc.,

529 U.S. 1, 18 (2000). The Court should reject Garcia’s

claim that it ignored its own precedent and decisional

principles when it decided Abbott.

2.

Appellant Offers No Persuasive

Reason to Overturn Gonzalez Now,

and the Rule He Advances Makes No

Sense

Lacking any plausible argument that Abbott

overruled Gonzalez, Garcia suggests that this Court

should overrule Gonzalez now. But he offers no

compelling reason to do so, and the rule he advocates

leads to bizarre consequences.

Garcia never even attempts to explain why

Gonzalez was wrongly decided or to satisfy this

Court’s criteria for overturning precedent. Instead,

Garcia’s primary objection to Gonzalez appears to be

the unsupported notion that it allows lower courts to

use “strategic docket management” to avoid this

Court’s review. Jurisdictional Statement at 10. His

brief is replete with allegations that the three-judge

panel here engaged in such “docket games to divest

this Court of immediate appellate jurisdiction[.]”

Jurisdictional Statement at 11. But he offers no

evidence to support this charge or explanation of why

the lower court would have wanted that outcome.

By deciding the statutory VRA question first

and thereby negating the need to decide Garcia’s

constitutional claim, the lower court was following

this Court’s direction and example. This Court has

repeatedly held that it normally “ ‘will not decide a

20

constitutional question if there is some other ground

upon which to dispose of the case[.]’ ” Nw. Austin Mun.

Util. Dist. 1 v. Holder, 557 U.S. 193, 205 (2009)

(quoting Escambia County v. McMillan, 466 U.S. 48,

51 (1984)). And this Court has decided VRA claims

without reaching constitutional claims in many

redistricting cases. For example, in League of United

Latin American Citizens v. Perry, 548 U.S. 399, 442

(2006), this Court invalidated one of Texas’s

congressional districts based on Section 2 of the VRA,

and therefore declined to address appellants’

constitutional claims. See also Thornburg v. Gingles,

478 U.S. 30, 38 (1986) (noting that the district court

held North Carolina’s legislative redistricting plan

violated Section 2, and thus did not reach the

challengers’ Fourteenth and Fifteenth Amendment

claims); Caster v. Merrill, No. 2:21-cv-1536-AMM,

2022 WL 264819, at *84 (N.D. Ala. Jan. 24, 2022)”),

(issuing a preliminary injunction on statutory

grounds, and because Alabama’s congressional

elections would thus not occur based on a map that

was allegedly unconstitutional, declining “to decide

the constitutional claims asserted”), aff’d sub nom.

Allen v. Milligan, 599 U.S. 1 (2023).

Garcia’s argument, taken to its logical

conclusion, would also result in mandatory

jurisdiction in this Court for every order of a threejudge court dismissing a case in which an injunction

is sought. In his black-and-white world, an injunction

is either granted or denied, no matter how divorced

from the merits the decision of the three-judge court

is. Jurisdictional Statement at 10. His rule would

mean, for example, mandatory review in this Court of

a three-judge panel decision where the district court

21

dismissed the case as moot because the plaintiff died,

dismissed the case because the statute of limitations

had expired, or dismissed a case because the plaintiffs

named the wrong defendants. This extreme result is

contrary to this Court’s frequent admonition that its

jurisdiction under § 1253 is to be construed

“narrowly.” Abbott, 138 S. Ct. at 2324; Goldstein,

396 U.S. at 478. And it is contradicted by Abbott, the

very case relied on by Garcia: “It should go without

saying that our decision does not mean that a State

can always appeal a district court order holding a

redistricting plan unlawful. A finding on liability

cannot be appealed unless an injunction is granted

or denied, and in some cases a district court may

see no need for interlocutory relief.” Abbott, 138 S. Ct.

at 2324.

In short, Garcia offers no basis in logic,

precedent, or policy to overrule Gonzalez.

3.

Appellant’s Attempts to Distinguish

Gonzalez Fail

Garcia’s final attempt to avoid Gonzalez is a

failed attempt to distinguish the case. He offers two

supposed grounds, but neither withstands scrutiny.

First, Garcia argues that Gonzalez involved a

lack of standing from the outset of a case, while this

case involves a finding of mootness, Jurisdictional

Statement at 10-11, but there is no logical reason why

that should matter. As discussed above, mootness is

merely the doctrine of standing set in a time frame,

and courts lack jurisdiction to decide moot cases just

22

as they lack jurisdiction where standing is absent.

Arizonans for Official English, 420 U.S. at 68 n.22;

Iron Arrow Honor Soc’y, 464 U.S. at 70. Garcia implies

that mootness is a more complicated and easily

manipulated doctrine than standing, so district courts

cannot be trusted with such decisions. Jurisdictional

Statement at 4, 11. But even if that policy concern

were relevant, standing findings are often highly

complicated and contested,5 and mootness is often

quite obvious, as when a redistricting plaintiff moves

out of the district, dies, or otherwise exits the

litigation.

Garcia also attempts to avoid Gonzalez by

arguing that because Gonzalez did not create “a per se

rule that only merits dismissals are directly

reviewable by this Court[,]” that must mean that some

jurisdictional dismissals remained appealable.

Jurisdictional Statement at 12. But Gonzalez’s

understandable reluctance to create a per se rule

regarding all non-merits dismissals does not undo the

opinion’s actual reasoning and holding. In reality,

Gonzalez did establish a bright-line rule that controls

here: “We hold, therefore, that when a three-judge

5 See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 705-15

(2013) (holding that initiative sponsors granted leave to

intervene in the trial court to defend initiative lacked standing

to appeal adverse ruling striking down initiative,

notwithstanding answer to certified question from California

Supreme Court suggesting initiative sponsors would have

standing under California law); Massachusetts v. EPA, 549 U.S.

497, 521 (2007) (holding Massachusetts had standing to sue EPA

over failure to regulate greenhouse gases; dissenting opinion

noting past decisions’ allowance of “manipulable” standing

requirements).

23

court denies a plaintiff injunctive relief on grounds

which, if sound, would have justified dissolution of the

court as to that plaintiff . . . review of the denial is

available only in the court of appeals.” Gonzalez, 419

U.S. at 101. Whether it is possible to dismiss a case on

non-merits grounds that would fail this test is a

question for academics to ponder, or possibly some

future case, but it does not help Garcia. Here,

Gonzalez itself establishes that dismissal for lack of

standing or other justiciability grounds such as

mootness fall outside this Court’s mandatory

jurisdiction. Id. at 100.

In short, the Court should dismiss Garcia’s

appeal because it lacks jurisdiction.

B.

The District Court Correctly Dismissed

This Case as Moot

Even if this Court determined that it had

appellate jurisdiction under 28 U.S.C. § 1253 despite

the case having been dismissed on justiciability

grounds, the Court should summarily affirm the

district court because it correctly dismissed the case

as moot.

“A case becomes moot—and therefore no longer

a ‘Case’ or ‘Controversy’ for purposes of Article III—

‘when the issues presented are no longer “live” or the

parties lack a legally cognizable interest in the

outcome.’ ” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481

(1982) (per curiam)). “Throughout the litigation,

the party seeking relief must have suffered, or be

threatened with, an actual injury traceable to the

24

defendant and likely to be redressed by a favorable

judicial decision.” United States v. Juvenile Male, 564

U.S. 932, 936 (2011) (internal quotation marks

omitted); Alvarez v. Smith, 558 U.S. 87, 92 (2009)

(explaining that a plaintiff must retain a personal

stake “ ‘at all stages of review, not merely at the time

the complaint is filed’ ”). Thus, if an intervening

circumstance during the litigation addresses the

plaintiff ’s alleged injury and deprives him of a

personal stake in the lawsuit’s outcome, the case is

moot. Moore v. Harper, 600 U.S. 1, 14 (2023).

Garcia’s request for invalidation of LD 15 and

an injunction to redraw the map is now moot because

the earlier-decided Soto Palmer case already did just

that: it invalidated LD 15 and ordered a new map be

drawn. Below, Garcia asked the three-judge district

court to enjoin the State defendants from “enforcing

or giving any effect to the boundaries of [LD] 15[,]”

and “[o]rder the creation of a new valid plan . . . that

does not violate the Equal Protection Clause.” Garcia,

ECF No. 18, at 18 (Amended Complaint). But the Soto

Palmer district court earlier determined that LD 15

violated Section 2’s prohibition against vote dilution

and ordered that the district be redrawn. See App.

A85-A86. This means the boundaries of the current

LD 15 will not be given effect. Garcia’s requested relief

has already been granted, and he complains only

about why he received that relief. Such complaints do

not make a moot case justiciable.

It is true that Garcia also asked the district

court to declare LD 15 “an illegal racial

gerrymander[.]” Garcia, ECF No. 18, at 18. But given

the absence of a live controversy, such relief would be

an advisory opinion about a nonexistent legislative

25

map, which Article III forbids. See Carney v. Adams,

592 U.S. 53, 58 (2020) (a case must “embody a

genuine, live dispute between adverse parties,

thereby preventing the federal courts from issuing

advisory opinions”). The court below thus could not

provide any further relief to Garcia.

Based on intervening circumstances, this Court

reached a similar mootness conclusion in New York

State Rifle & Pistol Association, Inc. v. City of New

York, 140 S. Ct. 1525 (2020) (per curiam). There,

petitioners challenged a New York City rule regarding

the transport of firearms. Id. at 1526. After this Court

granted certiorari, the City amended its rule to allow

petitioners to transport firearms to second homes and

to shooting ranges outside of the city—mooting

petitioners’ claims for declaratory and injunctive

relief. Id. This Court vacated the judgment below

because the city’s amendment granted “the precise

relief that petitioners requested in the prayer for relief

in their complaint.” Id. So too here. Based on the Soto

Palmer order enjoining use of the current

LD 15 boundaries, Garcia received the relief he

requested in the prayer for relief in his complaint.

Garcia argues that his case is not moot because

if the decision in Soto Palmer is reversed on appeal,

“the originally enacted LD-15 would once again take

effect[.]” Jurisdictional Statement at 21. But that

argument misunderstands this Court’s mootness

doctrine. A plaintiff must demonstrate, throughout

the pendency of his case, that he is suffering an actual

injury that will be redressed by a favorable decision in

his case. See, e.g., Wittman v. Personhuballah, 578

U.S. 539, 543 (2016) (plaintiff must show all three

elements of standing “throughout the life of the

26

lawsuit”) (citing Arizonans for Official English, 520

U.S. at 67). “If an intervening circumstance deprives

the plaintiff of a ‘personal stake in the outcome of the

lawsuit,’ at any point during litigation, the action can

no longer proceed and must be dismissed as moot.”

Genesis Healthcare Corp., 569 U.S. at 72 (emphasis

added) (quoting Lewis v. Cont’l Bank Corp., 494 U.S.

472, 477-78 (1990)). The possibility that the outcome

of a different case will injure a plaintiff in the future

is far too speculative to demonstrate existing harm:

“ ‘threatened injury must be certainly impending to

constitute injury in fact’ ”—“ ‘allegations of possible

future injury’ are not sufficient.” Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 409 (2013) (emphasis in

original) (quoting Whitmore v. Arkansas, 495 U.S.

149, 158 (1990)). Thus, it is untenable to base

standing on the possibility that a different case might

be reversed. Cf. Juvenile Male, 564 U.S. at 937 (“[O]ne

can never be certain that findings made in a decision

concluding one lawsuit will not some day . . . control

the outcome of another suit. But if that were enough

to avoid mootness, no case would ever be moot.”

(alterations in original) (quoting Commodity Futures

Trading Comm’n v. Bd. of Trade of Chicago, 701 F.2d

653, 656 (7th Cir. 1983) (Posner, J.))).

Despite these foundational principles of

standing and mootness, Garcia claims support for his

radical position in several decisions of this Court and

lower courts, but none actually help him.

To support his novel theory, Garcia first cites

Moore v. Harper, but that case differed dramatically

from this one. There, the petitioners were asking for

reinstatement of North Carolina’s legislatively

enacted 2021 districting plan, which had been

27

invalidated by North Carolina state courts on state

law grounds. Moore, 600 U.S. at 12. The petitioners

argued that the federal Elections Clause prohibited

the North Carolina courts from reviewing and altering

the plan enacted by the legislature. Id. After this

Court granted review on that issue, the North

Carolina courts reversed course and held that state

courts would not review claims of partisan

gerrymandering under the state constitution. But the

North Carolina courts did not reinstate the 2021

legislatively enacted map. Id. at 13. This Court

therefore concluded that the North Carolina courts’

change of heart did not moot the case, because the

petitioners could still obtain the relief they sought—

reinstatement of the 2021 maps—by prevailing in the

Supreme Court. Indeed, the petitioners’ only “path to

complete relief ” (the use of the 2021 maps) “runs

through this Court,” and the petitioners therefore

retained a “personal stake” in the case. Id. at 15.

Moore’s posture is profoundly different from the

case here. In Moore, the only way the petitioners could

obtain the relief they wanted was if this Court heard

the case and ruled in their favor. Id. at 15. Here, by

contrast, Garcia has already obtained the relief he

originally requested: the district he challenged will

not be used in future elections. His claim is that he

may lose that relief and need it again if the decision

in another case (Soto Palmer) is reversed. But that is

not enough for Garcia to retain a “ ‘personal stake’ in

th[is] litigation.” Id. at 14 (quoting Baker v. Carr, 369

U.S. 186, 204 (1962)). Moore is inapplicable.

28

Garcia also cites several circuit cases for the

proposition that a case is not moot until a claim in

another forum is conclusive, but none of those cases

actually include that holding. See Jurisdictional

Statement at 23-24.

For example, Moore v. Louisiana Board of

Elementary & Secondary Education, 743 F.3d 959

(5th Cir. 2014), involved state court and federal court

challenges to the same Louisiana law. Days after a

federal district court issued a preliminary injunction

against the new law on federal grounds, a Louisiana

trial court invalidated the same law on state law

grounds, a decision that was soon affirmed by the

Louisiana Supreme Court. Moore, 743 F.3d at 962.

The Eleventh Circuit then unsurprisingly concluded

that the federal case was moot, because the law the

plaintiffs sought to enjoin had already been enjoined

on state law grounds in the state case. Id. at 963. The

court never said or implied anything about whether

the plaintiffs’ claim became moot after the state trial

court decision or only after the decision was affirmed

on appeal.

Similarly, in Enrico’s, Inc. v. Rice, 730 F.2d

1250 (9th Cir. 1984), the Ninth Circuit determined

that a state court of appeals decision, which

California’s supreme court had declined to review, had

rendered moot the equitable relief claims in the

federal case. Id. at 1253-54. Although one party

argued that a second, then-pending state court of

appeals case might deliver a contrary decision adverse

to that party, the Ninth Circuit thought it

29

“improbable” such a result would occur and concluded

the case was moot. Rice, 730 F.2d at 1254. The Rice

court explained it could not grant effective relief and

thus lacked jurisdiction. Id.

In short, none of the cases cited by Garcia held

that a separate decision invalidating a challenged law

must become final in order to moot another challenge

to the same law.

Garcia also inaptly relies on Covington to argue

that his request for injunctive relief remains live.

Jurisdictional Statement at 28 (citing Covington, 138

S. Ct. at 2553). He speculates that the remedy in Soto

Palmer may result in “continuations of the old,

gerrymandered districts[.]” Jurisdictional Statement

at 28 (quoting Covington, 138 S. Ct. at 2553). But in

Covington, unlike here, voters alleged North Carolina

had gerrymandered their districts, the state’s general

assembly redrew maps, and voters again objected to

those remedial maps alleging that the remedial maps

perpetuated the unconstitutional aspects of the

original plan. Covington, 138 S. Ct. at 2552-53. Here,

Garcia has not alleged (nor can he, given that no new

map has yet been drawn in Soto Palmer) that the

redrawn LD 15 will be a mere continuation of

the purportedly gerrymandered original boundary.

Id. at 2548. Garcia’s speculation that the remedial

map will still be an unconstitutional racial

gerrymander is particularly unfounded because

the district court—not the Legislature—will be

drawing the reconfigured LD 15 in Soto Palmer.

See App. A89-A91.

30

Garcia’s next speculative argument against

mootness—that the remedial map will result in “a

more racial gerrymandered district[,]” Jurisdictional

Statement at 29—is at odds with the remedies that

Section 2 of the VRA permits and this Court’s

precedent. As the Court has recognized, the VRA

“demands consideration of race” and “may justify the

consideration of race in a way that would not

otherwise be allowed.” Abbott, 138 S. Ct. at 2315;

see also Allen, 599 U.S. at 41 (“[F]or the last four

decades, this Court and the lower federal courts have

repeatedly applied the effects test of § 2 as interpreted

in Gingles and, under certain circumstances, have

authorized race-based redistricting as a remedy for

state districting maps that violate § 2.”). Section 2

does not violate the Equal Protection Clause, and

consideration of race in remedying a Section 2

violation “does not lead inevitably” to equal protection

concerns. Shaw v. Reno, 509 U.S. 630, 646 (1993). This

Court reaffirmed just last Term that drawing a

district to comply with Section 2 does not violate the

Constitution. See Allen, 599 U.S. at 41-42. There is

simply no basis for Garcia’s speculative assumption

that whatever remedial map the district court orders

will inevitably violate the Constitution.

Garcia also raises a workability concern about

the status of his case if the Soto Palmer decision is

reversed. Jurisdictional Statement at 26-27. This

concern is no different than in a typical case dismissed

on mootness grounds, in which it is always possible

that the reasons for mootness may change in the

future. Regarding the practicalities of pursuing both

cases on appeal, there is no reason his appeal of this

jurisdictional issue and the Intervenors’ appeal of the

31

Soto Palmer order cannot be consolidated onto the

same track before the Ninth Circuit, just as this case

and Soto Palmer were consolidated for purposes of

trial. And if the Ninth Circuit reverses in Soto Palmer,

it can also reverse the district court’s decision here.

Because a new legislative district map will be

entered based on the Section 2 violation found in Soto

Palmer, the three-judge court in this case was correct

to dismiss as moot and refrain from “unnecessarily

decid[ing] a constitutional issue where there are

alternate grounds available . . . .” App. A4.

C.

The Rule Appellant Suggests and His

Rationales for It Make No Sense

Garcia not only asks this Court to overturn

precedent to review his moot claim, he proposes two

new rules that contradict this Court’s jurisprudence,

lead to absurd consequences, and are rooted in

baseless policy concerns. While the sections above

describe some of these flaws, it is worth taking a step

back to emphasize how deeply problematic Garcia’s

arguments are when taken as a whole. The Court

should reject his extreme proposals.

Garcia’s first new proposed rule, detailed

above, supra at 20-21, is that the Court overrule

Gonzalez and hold that this Court must review any

dismissal by a three-judge district court, no matter

how divorced from the merits. Jurisdictional

Statement at 9-10. As already explained, that would

force this Court to review even the most mundane of

dismissals without any basis in statutory text,

precedent, or logic.

32

Second, Garcia claims that in any future case

where a redistricting plan is challenged under the

VRA and also under the Equal Protection Clause, the

racial gerrymandering claim “must be given priority”

and decided first. See Jurisdictional Statement at 4-5.

Garcia cites no case, treatise, constitutional principle,

or even law review article to support this radical

approach. And as noted above, this Court and lower

courts routinely exercise restraint by declining to

decide constitutional claims when cases can instead

be resolved under the VRA. Supra at 19-20. This is a

straightforward application of the broader principle

that courts should decide constitutional questions

only when necessary. See, e.g., Nw. Austin Mun. Util.

Dist. 1, 557 U.S. at 205.

Adopting Garcia’s contrary approach would

mean that courts would routinely have to decide racial

gerrymandering claims even where doing so is

unnecessary. This flatly contradicts this Court’s

repeated admonition that racial gerrymandering

claims are particularly fraught because they present

such profound evidentiary difficulties and intrusions

into the legislative process. See, e.g., Miller v.

Johnson, 515 U.S. 900, 916 (1995) (explaining that the

“evidentiary difficulty” of assessing whether a

decision was motivated by race, “together with the

sensitive nature of redistricting and the presumption

of good faith that must be accorded legislative

enactments, requires courts to exercise extraordinary

caution in adjudicating claims that a State has

drawn district lines on the basis of race”). Under

Garcia’s rule, courts considering redistricting

challenges would routinely have to decide whether the

state’s legislature engaged in intentional racial

33

gerrymandering, even if no such review were

necessary because the challenged map was invalid on

other grounds.

Garcia’s proposal is especially flawed because a

defendant may defeat a racial gerrymandering claim

by showing that racial considerations were necessary

to avoid Section 2 liability. See, e.g., Cooper v. Harris,

581 U.S. 285, 292 (2017). Thus, under Garcia’s

proposed rule, even if a court addressed the racial

gerrymandering claim first and found a problem, it

would still have to reach the Section 2 claim anyway.

So what possible sense does it make to decide the

constitutional question first?

Adopting Garcia’s extreme rules would be a

perilous step even if there were some good reason to

do so, but Garcia cites none. The two policy rationales

he offers are entirely unsupported.

First, Garcia claims that this Court must

review every dismissal, even jurisdictional ones, to

avoid “docket games” by lower courts. Jurisdictional

Statement at 10, 11. But as explained above,

supra at 20, he offers no evidence that anything of the

sort occurred here or has occurred in any other case.

His proposal is a bad solution in search of a

nonexistent problem.

Second, Garcia suggests that the Court must

adopt these rules to avoid creating “a roadmap for

future litigants.” Jurisdictional Statement at 11;

Jurisdictional Statement at 4 (arguing that unless the

Court orders constitutional claims to be “decided

first,” it will lead “inevitably to similar gamesmanship

in future cases”). But this concern is nonsensical. How

would a future litigant behave differently if the Court

34

simply follows its existing precedent? A plaintiff

considering bringing a Voting Rights Act claim would

have no way of knowing in advance: (1) whether

an unrelated plaintiff would file a constitutional

challenge to the same district months later; or

(2) whether the court would ultimately rule in his

favor on the VRA claim, thus mooting the

constitutional claim. Nothing about this case creates

any sort of improper “roadmap” for future litigants.

And there is no reason for this Court to upend its

precedent and constitutional avoidance doctrine to

address an imaginary issue.

CONCLUSION

The Court should dismiss this appeal for lack of

appellate jurisdiction. In the alternative, the Court

should summarily affirm the order dismissing the

case as moot.

RESPECTFULLY SUBMITTED.

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

PETER B. GONICK

CRISTINA SEPE

Deputy Solicitors General

ANDREW R.W. HUGHES

Assistant Attorney General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

December 22, 2023

360-753-6200