Respondents Brief — Jose Trevino, et al., Petitioners v. Susan Soto Palmer, et al.

No. 23-484

In the Supreme Court of the United States

__________________

JOSE TREVINO, ET AL.,

v.

Petitioners,

SUSAN SOTO PALMER, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari Before Judgment

to the United States Court of Appeals

for the Ninth Circuit

__________________

BRIEF IN OPPOSITION OF RESPONDENTS

SUSAN SOTO PALMER, ET AL.

__________________

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 Respondents

Susan Soto Palmer, et al.

i

QUESTIONS PRESENTED

1. Is a grant of certiorari before judgment

warranted where petitioners lack standing and

the petition is premised on a pending

jurisdictional statement in a separate case

where this Court lacks jurisdiction?

2. Should principles of constitutional avoidance,

docket management discretion, and settled law

on three-judge district courts be abandoned

where a constitutional claim was brought in a

separate case by a different party months after

a statutory claim?

3. Was the district court’s finding that the Gingles

preconditions were satisfied clearly erroneous

when it was based on unrebutted expert and lay

witness testimony about the compactness and

cohesiveness of the minority community?

4. Was the district court’s finding that the totality

of the circumstances do not afford an equal

opportunity for Latino voters to elect

candidates of choice clearly erroneous when it

was based on unrebutted expert and lay

testimony

about

past

and

current

discrimination?

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................iv

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................1

STATEMENT OF THE CASE ....................................2

I.

Redistricting in Washington State. ..................2

II. Washington enacts LD15 in violation of § 2

of the Voting Rights Act. ...................................3

III. Plaintiffs sue to invalidate LD15 as a

violation of § 2. ..................................................5

IV. Commissioner Graves recruits a plaintiff to

challenge LD15, which he drew, as a racial

gerrymander. .....................................................6

V. Parties represented by Mr. Garcia’s counsel

intervene to defend LD15. ................................7

VI. LD15 elects no Latino-preferred candidates

in 2022. ..............................................................7

VII. District court hears substantial evidence

that LD15 violates § 2. ......................................8

VIII. District court rules that LD15 violates § 2. . 11

ARGUMENT ............................................................. 12

I.

Intervenors lack standing to appeal............... 12

II. There are no exceptional circumstances

warranting a grant of certiorari before

judgment.......................................................... 16

iii

III. Soto Palmer and Garcia were properly

considered and decided below......................... 17

A. The single-judge district court properly

heard the § 2 challenge. ........................... 17

B. The Soto Palmer district court did not

err in issuing its decision before the

Garcia panel. ............................................ 20

IV. The district court did not err in finding a

violation of § 2. ................................................ 23

A. The district court did not clearly err in

finding Gingles I satisfied. ....................... 23

B. The district court did not clearly err in

finding Gingles II satisfied. ..................... 24

C. The district court did not clearly err in

finding Gingles III satisfied. .................... 26

D. The stark level of racially polarized

voting in the Yakima Valley region is

not attributable to partisanship. ............. 29

E. The district court did not clearly err in

its totality of the circumstances

analysis. .................................................... 32

F. The district court did not err in finding

that LD15 violated § 2 despite having a

majority HCVAP. ..................................... 37

CONCLUSION .......................................................... 39

iv

TABLE OF AUTHORITIES

Cases

Allen v. Milligan,

599 U.S. 1 (2023) .......................... 21, 28, 30, 33, 36

Arizona Minority Coalition for Fair Redistricting v.

Arizona Independent Redistricting Commission,

366 F. Supp. 2d 887 (D. Ariz. 2005) .................... 18

Chestnut v. Merrill,

356 F. Supp. 3d 1351 (N.D. Ala. 2019) ................ 18

Coleman v. Paccar, Inc.,

424 U.S. 1301 (1976) ............................................ 16

Dames & Moore v. Regan,

453 U.S. 654 (1981) .............................................. 17

Diamond v. Charles,

476 U.S. 54 (1986) ................................................ 13

Hagans v. Lavine,

415 U.S. 528 (1974) .............................................. 22

Hollingsworth v. Perry,

570 U.S. 693 (2013) ........................................ 13, 14

Johnson v. Ardoin, 18-625-SDD-EWD,

2019 WL 2329319 (M.D. La. May 31, 2019)........ 18

Kalson v. Paterson,

542 F.3d 281 (2d Cir. 2008) ................................. 19

Kingman Park Civic Association v. Williams,

348 F.3d 1033 (D.C. Cir. 2003) ............................ 37

v

League of United Latin American Citizens v.

Clements, 986 F.2d 728 (5th Cir. 1993)............... 32

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006) .............................................. 23

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................ 13, 14

Missouri State Conference of the NAACP v. FergusonFlorissant School District,

894 F.3d 924 (8th Cir. 2018) ................................ 37

Monroe v. City of Woodville,

881 F.2d 1327 (5th Cir. 1989) .............................. 37

Mount Soledad Memorial Association v. Trunk,

573 U.S. 954 (2014) .............................................. 16

Page v. Bartels,

248 F.3d 175 (3d Cir. 2001),

as amended (June 25, 2001) ................................ 19

Perez v. Abbott,

253 F. Supp. 3d 864 (W.D. Tex. 2017) ................. 37

Pope v. County of Albany,

687 F.3d 565 (2d Cir. 2012) ................................. 37

Republican National Commission v. Common Cause

Rhode Island, 141 S. Ct. 206 (2020) .................... 14

Ruiz v. City of Santa Maria,

160 F.3d 543 (9th Cir. 1998) ................................ 28

vi

Sanchez v. Bond,

875 F.2d 1488 (10th Cir. 1989) ............................ 25

Shelby County v. Holder,

570 U.S. 529 (2013) .............................................. 20

Thomas v. Reeves,

961 F.3d 800 (5th Cir. 2020) ................................ 18

Thornburg v. Gingles,

478 U.S. 30 (1986) . 2, 3, 9-11, 23, 24, 26, 28-30, 33,

34, 38

Trump v. New York,

141 S. Ct. 530 (2020) ............................................ 20

United States v. Hays,

515 U.S. 737 (1995) ........................................ 13, 15

United States v. Marengo County Commission,

731 F.2d 1546 (11th Cir. 1984) ............................ 32

United States v. Nixon,

418 U.S. 683 (1974) ............................................. 16

United States v. United Mine Workers of America,

330 U.S. 258 (1947) ............................................. 16

Virginia House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) .................................... 13, 15

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................. 16

Constitutional Provisions and Statutes

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

vii

Wash. Const. art. II, § 43(6) ........................................ 3

Wash. Const. art. II, § 43(7) ........................................ 3

RCW 44.05.100 ............................................................ 3

28 U.S.C. § 2284(a) .............................................. 17, 18

Supreme Court of the United States Rules

Rule

11………………………………………………………16-17

1

INTRODUCTION AND SUMMARY OF

ARGUMENT

The

Court

should

deny

Petitioners’

1

(“Intervenors”) invitation to bypass the normal

appeals process and grant certiorari before judgment.

This case falls far short of the extraordinary

circumstances that would warrant such a step.

First, the Court lacks jurisdiction to entertain

Intervenors’ appeal on the merits because they lack

standing to appeal. Neither the State of Washington

nor the Secretary of State—the governmental

defendants in the case—has appealed the district

court’s judgment. Only Intervenors—three citizens

who were granted permissive intervention and whom

the district court found have no legally protectable

interest—have appealed. Only one resides in the

district, and none has any role in implementing

elections.

Second, Intervenors ask this Court to bypass the

Ninth Circuit based solely on their counsel’s filing of

a direct appeal in this Court in the Garcia case. But

this Court lacks jurisdiction to hear that appeal

because it did not involve the grant or denial of an

injunction. With the premise for their request for

certiorari before judgment incorrect, Intervenors’

request is groundless.

Third, Intervenors’ contention that the district

court was required to decide the constitutional claim

raised in the Garcia matter before the Soto Palmer

Section 2 Voting Rights Act claim is meritless. The

1 Petitioners were intervenors-defendants in the district court.

2

district court properly applied constitutional

avoidance to decide this case first, and Intervenors

specifically requested that it do so.

Fourth, Intervenors have not shown any clear

error in the district court’s analysis of the merits of

Plaintiffs’ Section 2 claim. Their objections to the

Gingles analysis are belied by the record evidence and

their own expert’s testimony. Their attempt to make

this case about partisan politics is contrary to the

evidence and the district court’s factual findings. And

their totality of circumstances objections are likewise

unfounded.

Intervenors’ kitchen-sink approach to their

petition reveals the fundamental reality that the

district court adhered to this Court’s precedent and

issued findings of fact that are not clearly erroneous.

Intervenors have no standing to appeal its decision,

and their petition should be denied.

STATEMENT OF THE CASE

I.

Redistricting in Washington State.

Article II, section 43 of the Washington

Constitution assigns redistricting to a bipartisan

Commission consisting of four voting Commissioners

and one non-voting chair. The majority and minority

leaders in both legislative houses each appoint one of

the four voting Commissioners, who in turn vote to

appoint a chair. Wash. Const. art. II, § 43(2).

At least three Commissioners must approve state

legislative and congressional redistricting plans and

submit them to the Legislature no later than

November 15th of the redistricting year. Wash. Const.

3

art. II, § 43(6). The Legislature then has 30 days

during the next regular or special session to adopt, by

two-thirds vote, amendments affecting no more than

two percent of the population of any district. Id.

§ 43(7). The plans take effect upon amendment (if

any) or after the 30-day period expires, whichever

comes first. Id.; RCW 44.05.100.

II. Washington enacts LD15 in violation of § 2

of the Voting Rights Act.

The 2021 Commission included 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 Senate Republican Caucus).

In June 2021, the state Attorney General’s office

educated the Commissioners about § 2’s requirements

and recommended they consult a statistical expert to

assess racially polarized voting and identify minoritypreferred candidates to aid in drawing an opportunity

district where required. Ex.55 at 3:50, 39:12-45:7.

After the release of the Census Bureau’s P.L. 94-171

data, the four Commissioners began drawing

legislative districts and announced their first public

map proposals in September 2021.

Soon thereafter, the Senate Democratic Caucus

hired Dr. Matt Barreto to conduct a statistical

assessment of the Gingles preconditions. Doc.208 at

620:2-23. Dr. Barreto identified a large geographic

concentration of Latino voters in the Yakima Valley

region and ran ecological inference analyses of a dozen

prior election contests in the region from 2012 to

4

2020—all showing significantly polarized voting

between white and Latino voters. Ex.178 at 2-4, 1830. In every contest he analyzed, Dr. Barreto

identified the candidate preferred by Latino voters.

Id. at 31. He also offered four reasonably configured

maps that would give Yakima Valley Latinos a real

opportunity to elect candidates of their choice. Id. at

8, 35-38.

Every Commissioner received Dr. Barreto’s

analysis. Ex.214. In response, Commissioners Sims

and Walkinshaw released new public map proposals

that would have provided Latinos equal opportunity

to elect their preferred candidates. Exs.515-16.

Although Commissioners Sims and Walkinshaw

publicly encouraged their Republican counterparts to

agree to a VRA-compliant district in the Yakima

Valley region, they abandoned the effort privately as

“it became very clear, very quickly, that was not going

to happen.” Doc.209 at 790:10-14. More concerned

with securing partisan advantage elsewhere in the

state, the two Democratic Commissioners instead

gave Republican Commissioner Paul Graves the pen

to draw the Yakima Valley districts however he

pleased and assured him they would vote for whatever

districts he drew, regardless of racial makeup or

compliance with § 2. Id. at 790:15-20, 791:7-16.

Commissioner Graves set out to draw a district in

the Yakima Valley region that had a very slight

majority Hispanic citizen voting age population

(HCVAP) but would not in fact perform to elect Latino

candidates of choice—a scheme he hoped would

“protect against any lawsuit” brought under § 2.

5

Ex.388 at 5. The legislative redistricting plan he

ultimately drew, which the Commission approved and

the Legislature enacted, had no Latino opportunity

district. That plan’s LD15 had a HCVAP of about

50.02% (based on then-available CVAP estimates)

with boundaries that cracked Latino communities

along the Lower Yakima Valley, resulting in far less

than equal opportunity for Latinos to elect their

preferred candidates.

III. Plaintiffs sue to invalidate LD15 as a

violation of § 2.

In January 2022, Plaintiffs sued to challenge

LD15, which has the façade of an opportunity district

but results in dilution of Latino electoral opportunity

in violation of § 2. 2 Defendants included Secretary of

State Steven Hobbs (who took no position on the

merits) and the State’s legislative leaders (who were

dismissed). The State of Washington was later joined

to defend the maps. Pet.App.1-2. Plaintiffs moved for

a preliminary injunction to enjoin LD15’s use in the

2022 state legislative elections, which District Court

Judge Robert Lasnik denied on Purcell grounds.

Doc.66.

2 In addition to their discriminatory results claim, Plaintiffs also

assert that LD15 was intentionally drawn to dilute Latino voting

power in violation of § 2. The district court did not rule on this

claim.

6

IV. Commissioner Graves recruits a plaintiff to

challenge LD15, which he drew, as a racial

gerrymander.

In March 2022, a third party, Benancio Garcia III,

also filed suit against Secretary Hobbs to challenge

LD15 as a racial gerrymander under the Fourteenth

Amendment. The case was assigned to Judge Lasnik

as a related matter before going to a three-judge

district court per 28 U.S.C. § 2284. Pet.App.2.

Secretary Hobbs took no position, and the State was

joined as a defendant. Like Plaintiffs in this case, Mr.

Garcia sought to invalidate LD15 and have a new

valid plan enacted in its place. Garcia Doc.1 ¶¶72-77.

The circumstances surrounding Mr. Garcia’s

case, however, are unusual. His attorneys include

Rep. Drew Stokesbary, a state house member who

voted for the challenged legislative redistricting plan.

Rep. Stokesbary is a friend and former colleague of

Commissioner Graves. See Doc.209 at 719:1-15;

Doc.127-3 at 204:25-205:2. The trial record shows that

Commissioner Graves (who drew LD15) was also the

chief architect of Mr. Garcia’s claim challenging that

district. He worked not only to line up potential

counsel and raise funds to litigate the case but also

recruited Mr. Garcia himself as its sole plaintiff. See

Exs. 399-401. Despite testifying that he tried to “light

the fire” to have this racial gerrymandering claim filed

to forestall relief in Plaintiffs’ § 2 action, he did not

actually believe the claim was meritorious. Doc.127-3

at 287:4-6 (“Q: You don’t believe the maps are a racial

gerrymander, do you? A: No, I don’t think so.”).

7

V. Parties represented by Mr. Garcia’s counsel

intervene to defend LD15.

Two weeks after filing Garcia to challenge LD15,

Rep. Stokesbary filed a motion to intervene in this

case on behalf of Jose Trevino, Ismael Campos, and

LD13

state

representative

Alex

Ybarra

(“Intervenors”), all seeking to defend LD15. Doc.57.

The district court allowed permissive intervention,

but denied all three individuals intervention as of

right, finding that they lack a concrete interest in the

litigation. Doc.69 at 5.

VI. LD15 elects no Latino-preferred candidates

in 2022.

Discovery in Soto Palmer and Garcia proceeded

in tandem throughout 2022. Meanwhile, the LD15

primary and general elections took place in August

and November, respectively. No race was competitive.

Doc.208 at 641:8-642:2. Republican candidates for the

two open LD15 house seats ran entirely unopposed.

Id. In the Senate, 23-year incumbent Sen. Honeyford

waited until three days after the close of candidate

filing to announce his retirement and endorse

Republican Nikki Torres. Ex.407.

Sen. Torres also ran unopposed in the primary.

She faced nominal opposition in the general only

because someone managed to garner enough primary

write-in votes to appear on the ballot. Doc.191-8 (Dep.

of Adam Hall) at 255:15-256:25. That unserious

Democratic candidate, Lindsay Keesling, ran an

anemic campaign, spending $4,000 total, less than

five percent of Sen. Torres’s campaign. Id. at 247:23-

8

248:13, 249:6-250:3; Doc.208 at 604:6-605:21; 641:8642:2;

Turnout among Latinos in the off-cycle election

was also abysmal. Only 32.5% of voters who

participated were Latino despite comprising about

half the citizen voting age population, whereas 61.6%

of the electorate was white. At trial, Drs. Barreto and

Collingwood testified that the Latinos who did

participate supported Ms. Keesling while white voters

overwhelmingly preferred Sen. Torres. Doc.206 at

76:10-20; Doc.208 at 639:24-641:2; Ex.2; Ex.417.

Although Sen. Torres is herself Latina, she was not

the candidate of choice of Latinos in 2022. 3

VII. District court hears substantial evidence

that LD15 violates § 2.

After discovery closed, Soto Palmer was tried

concurrently with Garcia in June 2023, except that

this case’s trial began one day before the start of the

three-judge proceeding. Doc.136. The district court

“heard live testimony from 15 witnesses, accepted the

deposition testimony of another 18 witnesses,

considered as substantive evidence the reports of the

parties’ experts, [and] admitted 548 exhibits into

evidence”—all showing that LD15 results in less

opportunity for Latinos to elect candidates of their

choice. Pet.App.3.

On December 22, 2023, Sen. Torres filed a post-judgment

motion to intervene in the district court seeking no changes to

her district. Doc.253. She is represented by the same attorneys

simultaneously seeking to have the district invalidated in

Garcia.

3

9

To meet Gingles I, Plaintiffs’ expert Dr.

Collingwood provided three illustrative plans showing

it was easy to draw a “reasonably configured”

majority-Latino district in the Yakima Valley region.

Pet.App.12. Dr. John Alford, the State’s expert,

agreed, noting that they were “among the more

compact demonstration districts [he’d] seen in thirty

years.” Id. Witnesses familiar with the region

confirmed that Latinos there form a geographically

compact community of interest. Doc.208 (Dr. Barreto)

at 647:9-16, 658:4-24; Doc.209 (Gabriel Portugal) at

831:5-24, 847:24-848:16; Pet.App.13.

Every expert to have evaluated Gingles II,

including Intervenor’s expert Dr. Mark Owens,

"testified that Latino voters overwhelmingly favored

the same candidate in the vast majority of the

elections studied.” Pet.App.14. Dr. Loren Collingwood

used ecological inference to estimate the preferences

of Latino and white voters in 26 separate election

contexts from 2012 to the most recent LD15 election

in 2022. Doc.206 at 65:7-66:8, 76:4-77:8. He found that

Latinos voted cohesively for the same candidates in all

26 elections he analyzed and thus opined that there is

a “high” level of cohesion among Latino voters in the

Yakima Valley. Doc.206 at 66:9-24; Ex.1 at 14-15;

Ex.2 at 1. The State’s expert, Dr. Alford, replicated

these results. Ex.601 at 13-15; Doc.209 at 853:5-14,

855:1-3, 867:9-868:3. Intervenors’ expert, Dr. Owens,

also found cohesion among Latino voters in 10 of the

11 elections he analyzed from 2018-2020. Ex.1001 at

9; Doc.208 at 583:5-589:2. Dr. Barreto’s analysis also

found that Latino voters consistently preferred the

10

same candidates in the 12 elections he analyzed from

2012-2020. Doc.208 at 632:10-19; Ex.214 at 7-15.

Other testimony confirmed these findings.

Commissioner Graves’ map-drawer, Anton Grose,

testified that he would have had to “close[] [his] eyes”

while drawing districts in the region to not see the

clear pattern of strong cohesive Latino support for

certain candidates, and white support for opposing

candidates. Doc.207 at 381:8-15, 375:1-377:8, 380:1623, 393:25-394:1. Mr. Portugal testified that Latinos

in the region prefer the same candidates “because

they think that they best represent . . . Latino

concerns” and that Latinos in the region share

experiences that explain their cohesive political

preferences. Doc.209 at 828:13-15, 830:11-831:24,

832:11-13, 848:5-7, 849:14-16; 838:21. Plaintiffs’

expert Dr. Josué Estrada similarly found that Latinos

in the area have shared histories, migration patterns,

working conditions, and political movements, further

supporting a finding of Latino cohesion in the region.

Ex.4 at 10-21.

The court also heard substantial evidence of

white bloc voting, satisfying Gingles III. In 24 of the

26 elections he analyzed, Dr. Collingwood found levels

of racially polarized voting “at the 70- to 80-percent

level, on either side of the racial or ethnic divide,” and

that white voters bloc voted to defeat Latino-preferred

candidates. Doc.206 at 66:15-17; Ex.1 at 1, 17; Ex.2 at

1. He also conducted a performance analysis of ten

recent statewide elections and found that Latinopreferred candidates lose in seven out of ten elections

(70%) in LD15. Ex.1 at 18-25; Doc.206 at 72:17-73:13.

11

Dr. Alford confirmed these results, finding white bloc

voting. Doc.209 at 853:15-20, 867:20-23. Dr. Owens

neither examined white bloc voting for any election

beside the LD 15 senate contest in 2022 nor disputed

these findings. Doc.208 at 578:1-579:13.

Finally, the court heard expert and lay witness

testimony from several individuals familiar with the

Yakima Valley region’s history, political context, and

past and present-day discrimination against Latino

voters and candidates. This included Plaintiffs’ expert

Dr. Josué Estrada, a historian and specialist in Latino

voter suppression in Washington State; state senator

Rebecca Saldaña, who is regularly sought out by

Yakima Valley voters; Plaintiff Susan Soto Palmer,

former house candidate in LD14; Plaintiff Faviola

Lopez; and Gabriel Portugal, President of Tri-Cities

LULAC.

VIII. District court rules that LD15 violates § 2.

On August 10, 2023, the district court ruled that

LD15 violates § 2 and enjoined its use in future

elections. Pet.App.1. The court found all three Gingles

preconditions satisfied based on undisputed or mostly

consistent findings of Plaintiffs’, the State’s, and

Intervenors’ experts. Pet.App.12-16. The court also

did a searching assessment of each relevant Senate

Factor in the totality of the circumstances inquiry,

finding each weighed in Plaintiffs’ favor. Id. at 16-31.

Based on the “extensive record” and an intensively

local appraisal of “the distinct history of and

economic/social conditions facing Latino voters in the

Yakima Valley region,” the court concluded that the

12

enacted LD15 fails to afford Latinos equal opportunity

to elect their preferred candidates. Pet.App.30-31.

The remedial process is ongoing. The district

court ordered the State to adopt revised legislative

district maps for the Yakima Valley region by

February 7, 2024. Pet.App.35-36. In case the State

fails to do so, the court ordered the parties to submit

remedial proposals by December 1 and appointed a

special master to evaluate the submissions.

Pet.App.41; Doc.246. The court has made clear that

the goal of the remedial process is “to provide equal

electoral opportunities for both white and Latino

voters in the Yakima Valley region” keeping in mind

the social, economic, and historical conditions

discussed in the court’s opinion and traditional

redistricting principles. Doc.246.

On September 8, the three-judge court in Garcia

issued an opinion and order dismissing the racial

gerrymandering claim as moot given the Soto Palmer

court’s finding that LD15 violates § 2. Pet.App.43.

Intervenors did not file their Ninth Circuit appeal

until September 8. Doc.222. Nor did they move for a

stay until November 8, which the district court and

Ninth Circuit have since denied. Doc.242, Doc.247.

Intervenors filed their petition in this Court on

November 3.

ARGUMENT

I.

Intervenors lack standing to appeal.

Intervenors lack standing to appeal. To have

standing, a litigant must demonstrate “an invasion of

a legally protected interest” that is “concrete and

13

particularized” and “actual or imminent.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(internal quotations omitted). Appellants seeking to

defend on 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); Virginia House of

Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019)

(“As the [Supreme] Court has repeatedly recognized,

to appeal a decision that the primary party does not

challenge, an intervenor must independently

demonstrate standing”) (internal citation omitted).

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 v. Charles,

476 U.S. 54, 62 (1986) (internal citation omitted).

Intervenors’ appeal is such a vehicle. In granting

only permissive intervention, the district court

expressly found that “intervenors lack a significant

protectable interest in this litigation.” Doc.69 at 10.

Two of the three, Ybarra and Campos, do not even

reside or vote in LD15, and thus have no possible

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”).

Intervenors Campos and Trevino below asserted

an interest “in ensuring that any changes to the

14

boundaries of [their] districts do not violate their

rights to ‘the equal protection of the laws’” and “in

ensuring that Legislative District 15 and its adjoining

districts are drawn in a manner that complies with

state and federal law.” Doc.69 at 4. But neither has

alleged any improper racial classification—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.

Moreover, the district court has not ordered

Intervenors “to do or refrain from doing anything.”

Hollingsworth, 570 U.S. at 705 (holding that nongovernmental intervenor-defendants lack standing to

appeal); Republican Nat’l Comm. v. Common Cause

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.

Intervenor Ybarra’s status as a legislator (in an

unchallenged district) does not confer standing. His

asserted interests in avoiding delays in the election

and knowing in advance which voters will be in his

district are not particularized enough for Article III

standing—every party in this litigation (and the

public) has an interest in an orderly election—and no

15

legislator is entitled to advance notice of his

constituents. In addition, the district court’s remedial

schedule guarantees that Rep. Ybarra will know his

district’s boundaries before the candidate filing date.

Doc.230. Nor does Rep. Ybarra have standing because

of any argument that the remedial process might

make his reelection more difficult or costly. No official

is guaranteed reelection (let alone an easy one) or

particular district lines, and to assert standing a

litigant “must do more than simply allege a

nonobvious harm.” Bethune-Hill, 139 S. Ct. at 1951

(internal citation omitted). Similarly, individual

legislators have “no standing unless their own

institutional position, as opposed to their position as a

member of the body politic, is affected.” Newdow v.

United States Cong., 313 F.3d 495, 498-99 (9th Cir.

2002) (emphasis added). Nothing in this litigation

impacts Rep. Ybarra’s institutional position or

powers, and he is only one legislator of many, without

the ability to assert harm on behalf of others. BethuneHill, 139 S. Ct. at 1953-54.

Finally, Intervenors have no concrete or

imminent interest in any particular remedial map.

The district court has not yet adopted a remedy—any

allegation that Intervenors may be subject to racial

classification or that race predominated are purely

speculative. Doc.69 at 5 (“[I]t would be premature to

litigate a hypothetical constitutional violation . . .

when no such violative conduct has occurred”); Hays,

515 U.S. at 745 (“[A]bsent specific evidence” showing

a voter has been subject to racial classification, the

voter lacks standing). Most importantly, nothing

about Plaintiffs’ proposed remedial plans suggests

16

that race predominated. To the contrary, Plaintiffs’

map expert “did not consider race or racial

demographics in drawing the remedial plans.”

Doc.245-1 at 4. Thus, Plaintiffs’ plans would not

prompt, let alone fail, strict scrutiny. Intervenors

cannot seek a stay of a § 2 liability determination

because they anticipate disliking an as-yet-unknown

remedy.

II. There are no exceptional circumstances

warranting a grant of certiorari before

judgment.

Intervenors cannot satisfy the “very demanding

standard” for granting certiorari before judgment.

Mount Soledad Mem’l Ass’n v. Trunk, 573 U.S. 954,

954 (2014). Under Rule 11, a grant is appropriate

“only upon a showing that the case is of such

imperative public importance as to justify deviation

from normal appellate practice and to require

immediate determination.” Because Intervenors lack

standing, there is no basis to justify certiorari before

judgment and, more fundamentally, no exceptional

urgency or emergency is present.

A grant of certiorari before judgment is an

“extremely rare occurrence.” Coleman v. Paccar, Inc.,

424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in

chambers). Generally, such cases concern issues of

national security or national importance. See, e.g.,

United States v. Nixon, 418 U.S. 683, 686-87 (1974)

(Nixon tapes); Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 (1952) (nationalization of most

U.S. steel mills); United States v. United Mine

Workers of Am., 330 U.S. 258 (1947) (nationwide coal

17

miner strike); Dames & Moore v. Regan, 453 U.S. 654

(1981) (presidential powers related to Iran hostage

release). There is no exceptional urgency in this case

that would favor a grant. Intervenors themselves

waited three months after judgment below to file their

petition with this Court (and to request a stay below).

Their dilatory action bars them from now claiming a

manufactured emergency.

Intervenors’ sole justification for this Court’s

intervention is the pending jurisdictional statement

in Garcia. While Rule 11 might be appropriate when

the Court has accepted a similar case with similar

issues, the mere filing of a jurisdictional statement in

another case is insufficient. Moreover, Garcia is no

basis for a grant here because this Court lacks

jurisdiction to hear that appeal, and even if Garcia

proceeds, it will fail on the merits. 4

III. Soto Palmer and Garcia were properly

considered and decided below.

A. The single-judge district court properly

heard the § 2 challenge.

This case was properly tried before a single-judge

district court. 28 U.S.C. § 2284(a) provides that a

three-judge court shall be convened “when an action

is filed challenging the constitutionality of the

apportionment of congressional districts or the

4 See Brief of Amici Curiae Susan Soto Palmer et al., Garcia v.

Hobbs, No.23-467,

https://www.supremecourt.gov/DocketPDF/23/23467/294009/20231221134251328_Garcia%20Amicus%20Brief%2

0PDFA.pdf.

18

apportionment of any statewide legislative body.” A

suit involving only a statutory claim, as here, does not

trigger § 2284. See, e.g., Chestnut v. Merrill, 356 F.

Supp. 3d 1351, 1354 (N.D. Ala. 2019); Johnson v.

Ardoin, 2019 WL 2329319, at *3 (M.D. La. May 31,

2019); Ariz. Minority Coalition for Fair Redistricting

v. Ariz. Independent Redistricting Comm’n, 366 F.

Supp. 2d 887, 894-95 (D. Ariz. 2005). Courts have read

§ 2284 this way for good reason: it is what the text

says.

Intervenors claim that this reading of § 2284 is

wrong because the phrase “challenging the

constitutionality of” applies only to congressional not

legislative apportionment. Pet.19-20. In support, they

present an abridged version of the statute and cite a

single Fifth Circuit concurrence. Intervenors rely on

the concurrence’s use of a “series of interpretive

canons” to conclude that all claims against state

legislative districts trigger § 2284. Pet.20 (citing

Thomas v. Reeves, 961 F.3d 800, 817 (5th Cir. 2020)

(Willet, J., concurring)). But Judge Willet’s analysis

cannot bear that load, as Judge Costa explained in

detail. Id. at 801-10 (Costa, J., concurring). Basic

interpretation rules show that “challenging the

constitutionality

of”

applies

to

legislative

apportionment and congressional apportionment, and

the presence of an extra “the” in the provision is

irrelevant. This is so because of the “series-qualifier

principle,” which is “just a fancy label for describing

how a normal person would understand § 2284(a).” Id.

at 803.

19

This reading accords with the statute’s history. It

was enacted in the early 20th century to enable threejudge panels to hear constitutional challenges. Id. at

807. In 1976, to address the increasing burden on this

Court’s docket, Congress amended the statute by

“vastly reduc[ing] the category of cases for which a

three-judge court is mandated.” Kalson v. Paterson,

542 F.3d 281, 287 (2d Cir. 2008). It would thus make

little sense to interpret § 2284 to instead expand

three-judge courts to statutory claims, and to suggest

that Congress did so through an inartful deployment

of the word “the.” Thomas, 961 F.3d at 808. 5

Intervenors’ “avant-garde view,” id. at 802, would

mean a three-judge court is required for any challenge

to legislative districts, but only for a constitutional

challenge to congressional districts. That strange

result is nonsensical and contrary to the text and

history of § 2284. Perhaps that is why Intervenors

conceded below that Plaintiffs’ § 2 claim should

proceed only before a single-judge district court. E.g.,

Doc.109 at 3.

The only other authority Intervenors cite is a Third Circuit

opinion where the court speculated in dicta about the history

surrounding § 2284’s adoption, and held that in a case featuring

both statutory and non-frivolous constitutional challenges, they

must be heard together by a three-judge court. Page v. Bartels,

248 F.3d 175, 189-92 (3d Cir. 2001), as amended (June 25, 2001).

That is not the situation here.

5

20

B. The Soto Palmer district court did not err

in issuing its decision before the Garcia

panel.

The district court did not err by deciding this case

before Garcia. Intervenors assert that the Garcia

constitutional claim should have been decided before

the Soto Palmer § 2 claim—turning constitutional

avoidance on its head—because they contend that a

racial gerrymandering violation triggers an

immediate injury while a § 2 violation does not cause

any harm until the first election occurs under the

challenged map. Pet.17. Not so.

A § 2 violation is ripe for adjudication upon the

enactment of a dilutive districting plan. A claim is ripe

when it is “not dependent on contingent future events

that may not occur as anticipated, or indeed may not

occur at all.” Trump v. New York, 141 S. Ct. 530, 535

(2020) (internal quotation marks omitted). There is no

question as to whether an election will occur following

enactment of a plan, and a § 2 violation is shown by,

inter alia, analysis of past voting patterns and results.

No authority supports the proposition that courts

must refrain from adjudicating § 2 claims until the

dilutive election occurs. See, e.g., Shelby County v.

Holder, 570 U.S. 529, 537 (2013) (explaining that,

under § 2, “injunctive relief is available in appropriate

cases to block voting laws from going into effect”). And

even if Intervenors contention were correct, the trial

occurred after the 2022 election conducted under the

challenged plan, and Intervenors cite no authority

that would allow a court to dispense with adhering to

21

constitutional avoidance based upon the precise

sequence in which the alleged harms occurred.

Intervenors’ contention that the district court was

required to decide the Garcia claim first (or that this

Court should hold Soto Palmer in abeyance pending

Garcia), Pet.15, is belied by their opposite position

taken below. Intervenors asserted throughout this

litigation that “resolution of the claim in Garcia

necessarily turns on the claims in this case.” Doc.109

at 3. This is so because a finding that the VRA

requires the drawing of a minority opportunity

district directly affects a racial gerrymandering

challenge to the same district. See Cooper v. Harris,

581 U.S. 285, 285 (2017) (“This Court has long

assumed that one compelling interest is compliance

with the Voting Rights Act of 1965 (VRA or Act).”);

Allen, 599 U.S. at 41; Pet.App.43-44. And as a

practical matter, a constitutional challenge to a

district already enjoined for violating the VRA need

not be adjudicated. On this basis, Intervenors’ counsel

(on behalf of their other client, Mr. Garcia) even

requested a scheduling order “extending all case dates

[in Garcia] to approximately one month after the

corresponding dates in Soto Palmer.” Garcia, Doc.26

at 8. This Court should reject Intervenors’ request,

waived by their prior actions, to now step in and redo

everything in the opposite order. Pet.15. 6

6 Intervenors’ contention that empaneling a three-judge court for

this case “would have forestalled any attempts by the Soto

Palmer [c]ourt to divest the Garcia [c]ourt of jurisdiction,” is

meritless. Pet.21. Judge Lasnik did not “attempt” to “divest” the

Garcia court of jurisdiction. And a three-judge court would lack

jurisdiction, see supra, and constitutional avoidance principles

22

The Court should also reject Intervenors’ curious

claim that LD15 is a racial gerrymander. Pet.16-19.

In the district court below and on appeal, Intervenors

sought to defend the current map. They have testified

in support of the enacted plan and at no point have

indicated it is unlawful. See Doc.191-14 (Trevino Dep.)

at 21:5-7 (“Q: And would it be your goal that the map,

in fact, not change as a result of this litigation? A:

Yes.”); Doc.191-15 (Ybarra Dep.) at 121:4-10 (“Q: And

you voted in favor of the plan; correct? A: Yes. Q: And

can I assume that you stand by that vote? A: Yes. Q:

So do you understand the map that you voted on to be

an illegal racial gerrymander? A: No.”). Rep.

Stokesbary, one of their lawyers, also voted to adopt

the Commission’s map. 7 And while the Garcia district

court properly declined to issue an advisory opinion in

a case that was moot, it noted that the testimony on

this issue “weigh[ed] heavily against finding that race

predominated in the drawing of LD15,” citing the

testimony of every redistricting commissioner.

Pet.App.46-47, n.4.

Having failed below, Intervenors’ counsels’ new

goal appears to be to have LD15 reinstated so that

their other client can have it overturned in a different

would still apply even if that were not so. See Hagans v. Lavine,

415 U.S. 528, 544 (1974) ("[T]he coincidence of a constitutional

and statutory claim should not automatically require a singlejudge district court to defer to a three-judge panel . . . ”).

Roll

Calls

on

a

Bill:

HCR

4407,

https://app.leg.wa.gov/bi/RollCallsOnABill/RollCall?biennium=2

021-22&billNumber=4407.

7

23

case whose claim their clients in this case disclaim.

But Intervenors and their counsel cannot have it both

ways. The Court should decline their invitation to

untangle a “Gordian Knot,” Pet.8, of their own

making.

IV. The district court did not err in finding a

violation of § 2.

A. The district court did not clearly err in

finding Gingles I satisfied.

The district court properly found that Plaintiffs

satisfied both the numerosity and compactness

requirements of the first Gingles precondition.

Pet.App.8. Intervenors do not contest that Plaintiffs

met the numerosity requirement and that their

demonstrative districts are reasonably compact,

Pet.12, but instead argue that “the court erred by

considering only the compactness of the boundaries in

Plaintiffs’ demonstrative maps, and not the

compactness of Hispanic voters within those

boundaries.” Pet.26. This argument has no merit.

In League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006), the Court held that a Texas

congressional district stretching from the Mexican

border to Austin was not reasonably compact for § 2

purposes because of the “enormous geographic

distance” separating the two pockets of Latino

communities and the “disparate needs and interests”

of those communities. Id. at 435. In so doing, the Court

“emphasize[d] it is the enormous geographic[] distance

separating

the

Austin

and

Mexican-border

communities, coupled with the disparate needs and

interests in these populations—not either factor

24

alone—that renders District 25 noncompact for § 2

purposes.” Id.; see id. at 424 (concluding that another

district stretching 500 miles satisfied Gingles 1 where

its Latino population had shared interests).

Here, neither factor is present. The district court

concluded that the Latino population was

geographically proximate and connected, Pet.App.13,

unlike the 300 miles that separated the Latino

communities in LULAC, 548 U.S. at 424. And the

district court concluded, based upon the testimony at

trial, that the communities had shared “socio-economic

status, education, employment, health, and other

characteristics.” Id. at 424 (internal quotation marks

omitted); Pet.App.13. Intervenors do not acknowledge

this evidence, let alone show how the district court

clearly erred. Indeed, they do not challenge the district

court’s conclusion that their expert, Dr. Owens,

“acknowledged at trial that he does not know anything

about the communities in the Yakima Valley region

other than what the maps and data show,” Pet.App.13

n.7, and testified that he had no opinion on whether

LD15 was compact. Doc.208 at 599:10-15.

B. The district court did not clearly err in

finding Gingles II satisfied.

The district court did not clearly err in concluding

that Plaintiffs had satisfied Gingles prong two by

demonstrating political cohesion among the Yakima

Valley Latino voters.

To demonstrate that Latino voters are politically

cohesive, Plaintiffs must show that “a significant

number of minority group members usually vote for

the same candidates.” Gingles, 478 U.S. at 56.

25

Plaintiffs met this burden, establishing that “Latino

voter cohesion is stable” over “election types and

election cycles over the last decade.” Corr.Pet.App.

In contending otherwise, Intervenors omit that

“each of the experts who addressed [cohesion],

including Intervenors’ expert, testified that Latino

voters overwhelmingly favored the same candidate in

the vast majority of the elections studied.” Pet.App.14

(emphasis added). Plaintiffs’ expert, Dr. Collingwood,

found high levels of cohesion among Latino voters in

every one of the 26 elections he analyzed. Doc.206 at

66:9-24. The State’s expert, Dr. Alford, replicated the

analysis and got the same result, as had Dr. Barretto

in his own ecological inference analysis. Intervenor’s

expert Dr. Owens likewise found high levels of Latino

cohesion in 10 of the 11 elections he analyzed. Despite

Intervenors’ representation otherwise, Pet.29-30, this

pattern held true in partisan and nonpartisan

contests, general and primary elections, statewide,

state legislative, and local elections, and in races with

and without Spanish-surname candidates.

Abundant qualitative evidence, supra pp. 10-11,

confirmed these findings. See Sanchez v. Bond, 875

F.2d 1488, 1494 (10th Cir. 1989) (“The experiences

and observations of individuals involved in the

political process are clearly relevant to the question of

whether the minority group is politically cohesive”).

Intervenors call the district court’s cohesion

analysis “woefully short.” Pet.27. But where as here

the evidence is essentially uncontested, it is no

surprise that the district court did not belabor the

point.

26

C. The district court did not clearly err in

finding Gingles III satisfied.

The district court did not clearly err in concluding

that Plaintiffs satisfied Gingles III. Under the third

precondition, the court inquires whether “the white

majority votes sufficiently as a bloc to enable it—in

the absence of special circumstances…—to defeat the

minority’s preferred candidate.” Gingles, 478 U.S. at

51. Bloc voting is demonstrated by statistical analysis

of historical election data. Id. at 46. Intervenors did

not seriously dispute Gingles III, and the district court

properly found that Plaintiffs met their burden.

Corr.Pet.App; Pet.App.14-16.

The record established that white bloc voting in

the Yakima Valley region usually results in the defeat

of Latino-preferred candidates. Using multiple

statistical methods to validate his results, Dr.

Collingwood found that the region has a “very

sustained pattern of racially polarized voting.”

Doc.206 at 68:11-69:3. Indeed, white voters defeated

the Latino-preferred candidate in every state

legislative contest, local contest, and statewide

partisan contest he analyzed. Ex.1 at 7-8; Ex.2. Dr.

Collingwood’s performance analysis also revealed that

Latino-preferred candidates lose 7 of 10 elections in

LD15, which is “strong evidence of white bloc voting.”

Ex.1 at 18-25; Doc.206 at 72:17-73:13. Dr. Alford’s

analysis confirmed these results, finding that white

bloc voting defeats Latino-preferred candidates in

partisan contests (the type of contest that takes place

in LD15). Doc.209 at 853:15-20, 867:20-23. The

district court credited the analysis of Drs. Collingwood

27

and Alford and noted that Intervenors did not dispute

their data or opinions. Corr.Pet.App. Indeed,

Intervenors expert Dr. Owens did no analysis of white

voting patterns except for a single election contest,

Doc.208 at 579:10-13, and admitted he had no reason

to doubt that white voters overwhelm the preferences

of Hispanic voters. Id. at 601:4-11. Dr. Barreto

testified that the question of whether there is racially

polarized voting in the Yakima Valley is “not at all”

close. Id. at 646:15-647:8.

In response, Intervenors claim that the district

court “dismiss[ed] the election results in the only

contested election held in LD15,” referring to the 2022

Senate election between Nikki Torres and Lindsey

Keesling. Pet.27. But the district court considered the

2022 election in its analysis, and found that it

confirmed the overall statistical evidence, which

“shows that Latino voter cohesion is stable in the 70%

range across election types and election cycles over

the last decade.” Corr.Pet.App. This conclusion is

supported by the analysis of Drs. Collingwood and

Barreto, who found that voting in the 2022 Senate

election was racially polarized at levels consistent

with past elections. Doc.206 at 76:10-20; Doc.208 at

639:24-641:2, Ex.2; Ex.417. Both experts testified that

Latinos voted cohesively for Ms. Keesling, the losing

candidate, while white voters cohesively preferred Ms.

Torres, the winner. Id. Therefore, Intervenors’

constant refrain that Ms. Torres won by 35 points

simply highlights the harm—white bloc voting,

combined with an unequal opportunity to participate

in the political process, continues to deny cohesive

Latino voters an equal opportunity to elect a

28

candidate of choice in the Yakima Valley. 8 As this

Court recently held, the purpose of the Gingles

preconditions is to “show[] that a representative of

[the minority group’s] choice would in fact be elected.”

Allen, 599 U.S. at 19. That is not the case here.

More fundamentally, even if the 2022 election did

not confirm the pattern of racially polarized voting, it

is only one election. One contest cannot outweigh the

findings of all four experts in the case that Latino

voters cohesively prefer the same candidates, and that

those candidates are continually defeated by white

bloc voting over a decade of elections in the region.

See, e.g., Gingles, 478 U.S. at 57 (“a pattern of racial

bloc voting that extends over a period of time is more

probative of a claim that a district experiences legally

significant polarization than are the results of a single

election”).

This is particularly so because the 2022 election

in LD15 is subject to the “special circumstances”

doctrine, under which courts discount the probative

value of elections that are “not representative of the

typical way in which the electoral process functions.”

Ruiz v. City of Santa Maria, 160 F.3d 543, 557-58 (9th

Cir. 1998); Gingles, 478 U.S. at 75-76. The 2022

8 Intervenors assume that because Ms. Torres is Latina, she must

be the Latino-preferred candidate. But that assumption is as

offensive as it is incorrect. A minority candidate is not

automatically the minority candidate of choice. See, e.g., LULAC,

548 U.S. at 438-41 (redistricting diluted Latino voting strength

because Latino voters were near ousting non-Latino-preferred

Latino incumbent); Ruiz, 160 F.3d at 551 (“a candidate is not

minority-preferred simply because the candidate is a member of

the minority”) (collecting cases).

29

election in LD15 took place during the pendency of

VRA litigation and featured a severely underfunded

Latino-preferred candidate nominated as a write-in.

Gingles, 478 U.S. at 75-76 (finding such elections can

“work[] a one-time advantage . . . in the form of

unusual organized political support by white

leaders”). 9 Ms. Keesling, the write-in candidate in the

primary, spent only $4,000 in the general election,

less than five percent of what Sen. Torres spent on her

campaign. Doc.208 at 604:6-605:21, 641:8-642:2;

Doc.191-8 (Dep. of Adam Hall) at 247:23-248:13,

249:6-250:3, 255:15-256:25. Both house races in LD15

were also uncontested. Doc.208 at 641:8-642:2. As Dr.

Barreto testified, “when you see uncontested races, or

underfunded candidates, it’s because those elections

are not winnable for that [group].” Id. at 641:22642:2.

Intervenors do not show how the district court

erred, much less clearly so, in its Gingles III analysis.

D. The stark level of racially polarized

voting in the Yakima Valley region is not

attributable to partisanship.

The district court did not clearly err in rejecting

Intervenors’ contention that partisanship, not race,

9 Plaintiffs filed their lawsuit months before Ms. Torres declared

her candidacy, which was followed three days later by the

retirement of longtime white incumbent Jim Honeyford.

Honeyford then endorsed Ms. Torres. See, e.g., Nikki Torres

resigns from Pasco City Council to focus on state Senate run, The

Center

Square

(June

1,

2022),

https://www.thecentersquare.com/washington/article_8902dab6

-e203-11ec-a1a3-4b9e5f13bd74.html.

30

explained the racially polarized voting in the region.

Pet.28; see Pet.App.15-16, 33-35. A majority of this

Court has concluded that this type of causation

argument is not pertinent to assessing racially

polarized voting. Gingles, 478 U.S. at 51, 62-63, 74

(plurality) (the “legal concept of racially polarized

voting incorporates neither causation nor intent” and

“the reasons [Latino] and white voters vote differently

have no relevance to the central inquiry of § 2”); id. at

100 (O’Connor concurring) (agreeing, along with three

other justices, that where statistical evidence shows

minority political cohesion and assesses prospects of

winning, “defendants cannot rebut this showing by

offering evidence that the divergent racial voting

patterns may be explained in part by causes other

than race”); see also Allen, 599 U.S. at 19 (explaining

that the third Gingles precondition “establish[es] that

the challenged districting thwarts a distinctive

minority vote at least plausibly on account of race”

(internal quotation marks omitted) (bracket in

original)).

Intervenors provide no support for their

contention that that § 2 requires proof that a

“candidate’s race must be the causal factor for the

purported discrimination.” Pet.28 (emphasis added).

Indeed, § 2 is designed to determine whether an

electoral structure results in voters (not candidates) of

a protected class “having less opportunity than other

members of the electorate to participate in the

political process and to elect representatives of their

choice.” Gingles, 478 U.S. at 63.

31

In any event, the district court found that

Intervenors’ argument was factually incorrect,

Pet.App.34-35, and the Intervenors identify no clear

error in that conclusion. Indeed, Dr. Alford

persuasively testified that the electoral data reveals

that the racial polarization increases perceptibly in

the Yakima Valley when the candidates are

themselves Latino. Doc.209 at 853:21-854:15; Ex.601

at 13-14. And Dr. Collingwood's analysis

demonstrates, for example, that Latino-preferred

candidates with Spanish surnames also lose in

nonpartisan races. Doc.206 at 65:21-66:24; Ex.1 at 1415; Ex.2 at 1; see also Doc.208 at 590:15-592:14 (Dr.

Owens disclaiming evidence of partisan explanation

for polarization). And Intervenors’ counsels’ other

client, Mr. Garcia, testified to racial discrimination he

faced from the Washington State Republican Party as

a Latino candidate running for Congress in the

Yakima Valley. In Mr. Garcia’s own words, this

discrimination “greatly affected th[e] election, the

outcome, and suppressed the Latino vote.” Doc.197-1

at 75:2-79:7; 90:12-91:13. 10 The district court did not

clearly err in rejecting Intervenors’ partisanship

argument. Intervenors’ partisan fixation, which

ignores the “inequality in electoral opportunities in

the Yakima Valley region” for Latino voters,

Pet.App.35, rings hollow.

Mr. Garcia’s testimony demonstrates that even within the

Washington Republican Party, white Republicans are favored

over Latino Republicans.

10

32

E. The district court did not clearly err in

its totality of the circumstances analysis.

The district court’s totality of the circumstances

analysis was not clear error. In Allen, this Court

reasserted that the “essence of a § 2 claim” is when “a

certain electoral law, practice, or structure interacts

with social and historical conditions to cause an

inequality in the opportunities enjoyed by [minority]

and white voters.” Id. at 17 (internal quotation marks

and citation omitted). The district court conducted a

thorough analysis and applied the proper legal

standards in finding that the Yakima Valley region’s

Latino voters do not have an equal opportunity to elect

state legislative candidates of their choice.

Intervenors argue that the district court “failed to

identify the required causal connection between the

challenged map and the purported discriminatory

result.” Pet.33. They are wrong that Plaintiffs must

prove such a causal connection, but even so, Plaintiffs

did. Pet.App.33-35. Intervenors also argue that

Plaintiffs must demonstrate a causal connection

between certain Senate Factors and the ability of the

minority group to participate in the political process.

Pet.32-34. They are wrong again. See, e.g., LULAC v.

Clements, 986 F.2d 728, 750 (5th Cir. 1993)

(“[P]laintiffs must demonstrate both depressed

political participation and socioeconomic inequality,

but need not prove any causal nexus between the

two”); Marengo Cnty. Comm'n, 731 F.2d at 1567-69

(same for Senate Factors 1 and 5). However, Plaintiffs

met this burden anyway, and the district court issued

findings to that effect, conducting “an intensely local

33

appraisal” and a “searching practical evaluation of the

past and present reality” in the Yakima Valley. Allen,

599 U.S. at 19 (quoting Gingles, 478 U.S. at 79)

(internal quotation marks omitted). Pet.App.16–31.

Intervenors’ arguments otherwise lack merit. 11

For example, Intervenors complain that the

court’s analysis of the history of official discrimination

in the region considered only “usual burdens of

voting.” Pet.33. But the district court considered

extensive expert and lay testimony from multiple

witnesses, Doc.206 at 131–33; Ex.4 at 21–42,

establishing a long history of official, voting-related

racial discrimination including English literacy tests,

failure to provide federally-required bilingual election

materials, and dilutive at-large election systems.

None of these is “a usual burden of voting.”

Pet.App.17–19. The court catalogued these examples,

and explicitly rejected Intervenors argument that

causation is lacking, finding the evidence illustrated

“that historic barriers to voting have continuing

effects on the Latino population” and “prevent full

access to the electoral process.” Pet.App.18-19.

Or take Senate Factor 3—which intervenors

again claim focuses on “usual burdens on the right to

vote.” Pet.34. However, none of these are “usual

burdens,” nor are plaintiffs separately challenging

these practices. Rather, Factor 3 requires analysis

regarding “voting procedures which may enhance the

Intervenors cite NAACP v. Fordice, 252 F.3d 361 (5th Cir.

2001), as requiring a causal nexus. But Fordice simply required

a showing of depressed political participation, not causation. See

id. at 367-68.

11

34

opportunity for discrimination against Latino voters

in the Yakima Valley.” Pet.App.19-21. The court also

did not find that “off-year elections are per se

hindering the franchise.” Pet.34. Undisputed evidence

demonstrated that “Latino voter turnout is at its

lowest in off-year elections, enlarging the turnout gap

between Latino and white voters in the area.”

Pet.App.20. The court found that the state’s use of atlarge districts to elect two state representatives can

“further dilute minority voting strength” and cited to

Gingles’ explanation of the harm of at-large districts.

Pet.App.20.

Next, Intervenors complain that witness

testimony on Factor 5 was “hearsay” and that a

“causal connection” between disparities and

participation in the political process is missing.

Pet.34. But Intervenors lodged no such hearsay

objection at trial, and cannot now claim error. 12

Myriad witnesses, including expert Dr. Estrada, state

senator Saldaña, Plaintiff Susan Soto Palmer, and

Gabriel Portugal testified to the continuing effects of

past discrimination in the region, establishing “that

decades of discrimination against Latinos in the area

has had lingering effects, as evidenced by present-day

disparities with regard to income, unemployment,

poverty, voter participation, education, housing,

health, and criminal justice” and that these

“disparities hinder and limit the ability of Latino

voters to participate fully in the electoral process.”

Pet.App.21-22; Ex.4 at 46–63; Doc.207 at 296:9–17,

12 See Doc.206 at 22:8–23:24; 26:6–25; 198:20–199:14; 201:1–14,

Doc.207 at 293:15–25.

35

307:12–18; Doc.206 at 199:5–14; Doc.209 at 835:11–

19; Doc.209 at 840:18-841:14. Nor did Intervenors

dispute this evidence at trial. Pet.App.21. The court

thus concluded Intervenors’ causation argument was

“belied by the record,” and the factor “weighs heavily

in plaintiffs’ favor.” Pet.App.21-22.

In addition to past discrimination and existing

disparities, trial testimony from multiple witnesses

demonstrated that the region’s Latino population

participates in the political process at significantly

lower rates than the white population, as indicated by

lower voter turnout and registration rates. See, e.g.,

Doc.206 (Dr. Collingwood) at 50:2–4 (“[V]oter turnout

was also massively depressed, among the Latino

population, relative to the white population.”);

Doc.206 (Dr. Estrada) at 134:12-135:4 (“[T]he Latino

voter registration numbers there are lower, compared

to white…So in elections where…the Latino turnout

is already low…compounded with low voter

registration rates…this just adds to that effect of

lower voter turnout.”); Ex.1 at 29–32; Ex.4 at 43–45;

Pet.App.17-22. This evidence was undisputed.

Turning to Senate Factor 6, Intervenors take

issue with a racist incident that a Latino candidate

experienced while campaigning for votes. Pet.35. But

Intervenors ignore the court’s finding that numerous

candidates in the region have employed racial

appeals, using “dog-whistles,” which “avoid naming

race directly but manipulate racial concepts and

stereotypes to invoke negative reactions in and garner

support from the audience.” Pet.App.22-23. The court

noted that candidates utilized these racial appeals “to

36

equate ‘immigrant’ or ‘non-citizen’ with the

derogatory term ‘illegal’” and that the appeals “ma[de]

race an issue on the campaign trail” and increased

“the

possibility

of

inequality

in

electoral

opportunities.” Id. The court credited evidence offered

by multiple witnesses regarding racial appeals by

candidates and elected officials at the county and

state levels in the region. Doc.206 at 142:23–144:14;

Ex.4 at 63–69; Pet.App.22-23.

Ultimately, the district court directly tied the

presence of the Senate Factors in the region to the

racially discriminatory impact of LD15, finding that

“[e]specially in light of the evidence showing

significant past discrimination against Latinos, ongoing impacts of that discrimination, racial appeals in

campaigns, and a lack of responsiveness on the part of

elected officials, plaintiffs have shown inequality in

electoral opportunities in the Yakima Valley region.”

Pet.App.35. And even the State admitted “that under

the totality of the circumstances, Hispanic voters in

LD15 are less able to participate in the political

process and elect candidates of their choice than white

voters.” Doc.194 at 13–14. As such, Intervenors’

arguments are meritless, and the district court did not

err in its “intensely local appraisal” of the political

process in the Yakima Valley region. Allen, 599 U.S.

at 19. 13

Intervenors do not dispute the district court’s findings

regarding Senate Factors 7 or 8. Pet.App.24–27.

13

37

F. The district court did not err in finding

that LD15 violated § 2 despite having a

majority HCVAP.

It is well established that a majority-minority

district can dilute the minority’s voting power where,

as here, the minority lacks a real opportunity to elect

their candidates of choice. 14 See, e.g., Perez v. Abbott,

253 F. Supp. 3d 864, 880 (W.D. Tex. 2017) (“[T]he

existence of a majority HCVAP in a district does not,

standing alone, establish that the district provides

Latinos an opportunity to elect, nor does it prove nondilution.”); Pope v. Cnty. of Albany, 687 F.3d 565, 575

n.8 (2d Cir. 2012) (“[T]he law allows plaintiffs to

challenge legislatively created bare majority-minority

districts on the ground that they do not present the

‘real electoral opportunity’ protected by § 2”); Mo.

State Conference of the NAACP v. Ferguson-Florissant

Sch. Dist., 894 F.3d 924, 933 (8th Cir. 2018); Kingman

Park Civic Ass'n v. Williams, 348 F.3d 1033, 1041

(D.C. Cir. 2003); Monroe v. City of Woodville, 881 F.2d

1327, 1333 (5th Cir. 1989). The district court’s finding

regarding LD15 accords with this Court’s recognition

that it is “possible for a citizen voting-age majority to

lack real electoral opportunity.” LULAC, 548 U.S. at

428.

Intervenors’ asserted “mathematical reality” that

a majority HCVAP district necessarily provides

Latinos with equal opportunity ignores this

precedent, as well as the court’s VRA-required

14 When adopted, LD15 was 50.02% Hispanic CVAP. Doc.191 at

14.

38

“searching practical evaluation of the past and

present reality” in the Yakima Valley. Gingles, 478

U.S. at 79 (internal quotations omitted). As a part of

that evaluation, the court clearly explained that, in

the configured LD15, “[a] majority Latino CVAP of

slightly more than 50% is insufficient to provide equal

electoral opportunity where past discrimination,

current social/economic conditions, and a sense of

hopelessness keep Latino voters from the polls in

numbers significantly greater than white voters.”

Pet.App.35. 15 This finding accords with expansive

evidence presented at trial. Pet.App.32-33; Ex. 1; Ex.

2. Nor does the 2022 election of a non-Latinopreferred candidate in LD15 equate to equal

opportunity; that election, to the extent it is probative,

confirms that LD15 fails to provide the region’s

Latinos with an equal opportunity to elect candidates

of their choice. Supra IV.C.

The district court faithfully applied this Court’s

precedent and, in light of extensive and largely

undisputed evidence, did not err in finding that LD15

fails to afford Latino voters equal opportunity to elect

candidates of their choice under the totality of the

circumstances. The lower court’s decision is correct

and should be affirmed.

15 Intervenors’ assertion that Plaintiffs ought to have challenged

low Latino turnout under the Anderson-Burdick doctrine is

puzzling and ignores well-established precedent that voter

turnout should be considered in assessing the totality of the

circumstances. See supra IV.C.

39

CONCLUSION

For the foregoing reasons, the petition should

be denied.

December 29, 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