Reply 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.,

Petitioners,

V.

SUSAN SOTO PALMER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari Before Judgment to the

United States Court of Appeals for the Ninth Circuit

REPLY BRIEF OF PETITIONERS

JASON B. TORCHINSKY

Counsel of Record

PHILLIP M. GORDON

DREW C. ENSIGN

ANDREW PARDUE

CALEB ACKER

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808 (telephone)

(540) 341-8809 (facsimile)

jtorchinsky@holtzmanvogel.com

pgordon@holtzmanvogel.com

densign@holtzmanvogel.com

apardue@holtzmanvogel.com

cacker@holtzmanvogel.com

DALLIN B. HOLT

BRENNAN A. R. BOWEN

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

Esplanade Tower IV

2575 East Camelback Road

Suite 860

Phoenix, AZ 85016

(602) 388-1262 (telephone)

(540) 341-8809 (facsimile)

dholt@holtzmanvogel.com

bbowen@holtzmanvogel.com

ANDREW R. STOKESBARY

CHALMERS, ADAMS, BACKER

& KAUFMAN, LLC

701 Fifth Avenue, Suite 4200

Seattle, WA 98104

(206) 207-3920 (telephone)

dstokesbary@chalmersadams.com

Counsel for Petitioners

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

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

CONCLUSION .......................................................... 12

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) .................................... 6, 10

Ardoin v. Robinson,

142 S. Ct. 2892 (2022) .......................................... 2

Arizona State Legislature v. Arizona Independent

Redistricting Comm’n,

576 U. S. 787 (2015) ............................................. 3

Diamond v. Charles,

476 U. S. 54 (1986) ............................................... 2

Goodman v. Lukens Steel Co.,

482 U. S. 656 (1987) ......................................... 7, 9

Goosby v. Town Bd. of Town of Hempstead, N.Y.,

180 F.3d 476 (CA2 1999) .................................... 11

Hollingsworth v. Perry,

570 U. S. 693 (2013) ......................................... 3, 9

Johnson v. De Grandy,

512 U. S. 997 (1994) ............................................. 1

LULAC v. Clements,

999 F.2d 831 (CA5 1993) .................................... 11

LULAC v. Perry,

548 U. S. 399 (2006) ........................................... 11

Nipper v. Smith,

39 F.3d 1494 (CA11 1994) ................................... 11

iii

Raines v. Byrd,

521 U. S. 811 (1997) ......................................... 3, 5

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc.,

547 U. S. 47 (2006) ............................................... 2

Sanchez v. Colorado,

97 F.3d 1303 (CA10 1996) .................................. 11

Shaw v. Hunt,

517 U. S. 899 (1996) ......................................... 7, 9

Shirt v. Hazeltine,

461 F.3d 1011 (CA8 2006) .................................. 11

Sprint Communications Co. v. APCC Services, Inc.,

554 U. S. 269 (2008) ............................................. 6

Thornburg v. Gingles,

478 U. S. 30 (1986) ............................................. 11

United States v. Charleston County, S.C.,

365 F.3d 341 (CA4 2004) .................................... 11

Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) .............................. 2, 5, 6, 9

Warth v. Seldin,

422 U. S. 490 (1975) ............................................. 9

Wittman v. Personhuballah,

578 U. S. 53.............................................................5

ARGUMENT

“[T]he ultimate right of § 2 is equality of

opportunity, not a guarantee of electoral success for

minority-preferred candidates of whatever race.”

Johnson v. De Grandy, 512 U. S. 997, 1014 n. 11

(1994). Flouting this bedrock principle, the district

court invalidated a majority-minority Hispanic

citizen voting-age population district under Section 2

of the Voting Rights Act (“VRA”)—after it elected a

Hispanic Republican in a thirty-five-point landslide

over a White Democrat—because the district does

not reliably elect putative (majority-)minoritypreferred candidates—i.e., Democrats. That holding

makes a mockery of §2 and warrants this Court’s

review.

Because the §2 merits holdings are indefensible,

Respondents understandably focus their efforts on

jurisdictional arguments.

Those

efforts are

unavailing. Both Representative Alex Ybarra and

district resident Jose Trevino are injured by the

district court’s injunction and have standing to

challenge it. Specifically, Representative Ybarra has

Article III standing on at least two grounds: (1) one

of the remedial maps forces him into a primary in

which he would not have to participate but for the

district court’s decision; and (2) the other four

proposed alternative maps would make his

reelection campaign costlier and more difficult. Mr.

Trevino, as a resident of LD-15, has a constitutional

right not to have the boundaries of his district drawn

by impermissible and excessive consideration of

race—a result that the district court’s decision

effectively guarantees. Mr. Trevino thus also has

Article III standing to challenge that decision.

2

This case is inextricably linked with Garcia v.

Hobbs, No. 23-467, and this Court should therefore

consider them together. Accordingly, this Court

should follow the course it took recently in Ardoin:

grant the writ of certiorari before judgment, hold

this case in abeyance pending the outcome in Garcia,

and stay the remedial proceedings in Soto Palmer v.

Hobbs, No. 3:22-cv-05035. See Ardoin v. Robinson,

142 S. Ct. 2892 (2022). Certiorari before judgment is

rare, but less so in redistricting cases. Where, as

here, a related constitutional claim goes directly to

this Court, the §2 appeal sensibly should do the

same.

1. Petitioners have standing to seek appellate

review. “[A]n intervenor’s right to continue a suit in

the absence of the party on whose side intervention

was permitted is contingent upon a showing by the

intervenor that he fulfills the requirements of

Art[icle] III.” Diamond v. Charles, 476 U. S. 54, 68

(1986). That entails fulfilling the three traditional

elements: “(1) a concrete and particularized injury,

that (2) is fairly traceable to the challenged conduct,

and (3) is likely to be redressed by a favorable

decision.” Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945, 1950 (2019). “[T]he presence of one

party with standing is sufficient to satisfy Article

III’s case-or-controversy requirement.” Rumsfeld v.

Forum for Academic & Institutional Rights, Inc., 547

U. S. 47, 52 n. 2 (2006). Here, both Representative

Ybarra and Mr. Trevino independently and

individually have Article III standing. 1 Neither

1 Additionally, Washington Senator Nikki Torres has moved to

intervene in the Soto Palmer remedial proceedings, because the

Plaintiff-Respondents’ proposed remedy maps threaten to

3

claims any institutional injury nor undertakes to

defend the interests of the State of Washington.

2. Representative Ybarra first has standing

because the lower court’s decision and accompanying

orders will force him to compete in a primary against

two other incumbents if the district court adopts one

of the proposed remedial maps (Proposal 5). That is

a “‘direct stake’ in the outcome of their appeal” that

establishes standing. Hollingsworth v. Perry, 570

U. S. 693, 706 (2013).

For individual legislators, this Court has insisted

upon the existence of an individualized injury—i.e.,

a harm that “zeroe[s] in on an[] individual Member.”

Arizona State Legislature v. Arizona Independent

Redistricting Comm’n, 576 U. S. 787, 802 (2015).

Standing is established where a legislator has “been

singled out for specifically unfavorable treatment as

opposed to other Members of their respective bodies.”

Raines v. Byrd, 521 U. S. 811, 821 (1997). In

contrast, individual legislators may not assert an

institutional injury, i.e., a harm that “necessarily”

impacts all Members of the legislative body

“equally.” Arizona State Legislature, 576 U. S., at

802 (quoting Raines, 521 U. S., at 821).

Here, the district court’s injunction, along with

the proposed remedial maps occasioned as a direct

result of that injunction, singles out Representative

Ybarra for individualized injury. Remedial Proposal

5 moves Representative Chris Corry, an incumbent

redistrict her out of her own district, force primaries, and

destroy the majority-minority district she currently represents.

See Soto Palmer v. Hobbs, No. 3:22-cv-05035, ECF No. 253.

4

currently representing constituents in LD-14 of the

Enacted Plan, into LD-13, which already has two

incumbent House Members: Alex Ybarra and Tom

Dent. Trende Report, Soto Palmer, No. 3:22-cv05035, ECF No. 251, at 66. This awkward situation

would force Representative Ybarra into a lose-lose:

either (1) move out of his lifelong home in Quincy

into a district without an incumbent (e.g., proposed

LD-15); or (2) risk a primary contest against another

sitting

representative

of

his

own

party.

Representative Corry could challenge Representative

Ybarra for Position 2 (which Representative Ybarra

currently holds), or—if Representative Corry files for

Position 1—Representative Dent (the current

Position

1

incumbent)

might

challenge

Representative Ybarra for Position 2. 2

That contentious mess is the direct result of the

district court’s errant §2 decision and would not

occur but for that decision. These three incumbents

have “been singled out for specially unfavorable

2 Each Washington legislative district has two House seats,

labeled “Position 1” and “Position 2.” A candidate, when filing,

chooses which of the two Positions for which to run. For the

2024 election cycle, Representative Ybarra already filed for

Position 2 in enacted LD-13 on January 15, 2023 (available at

https://apollo.pdc.wa.gov/public/registrations/registration?regist

ration_id=50417), Representative Dent filed for Position 1 in

enacted LD-13 on August 1, 2023 (available at

https://apollo.pdc.wa.gov/public/registrations/registration?regist

ration_id=54249), and Representative Corry filed for Position 1

in enacted LD-14 on January 12, 2023 (available at

https://apollo.pdc.wa.gov/public/registrations/registration?regist

ration_id=50396). Were the district court to impose PlaintiffRespondents’ Remedial Plan 5, Representative Corry would

need to refile in remedial LD-13.

5

treatment as opposed to other Members of their

respective bodies.” Raines, 521 U. S., at 821. Being

redistricted out of one’s seat entirely by redistricting

(meaning the legislator’s home address is moved to a

different district or two districts are collapsed into

one, forcing a primary between two incumbents)

obviously qualifies as a deprivation of one’s seat. See

id. The proceedings below therefore work to deprive

Representative Ybarra of his very “seat . . . after

[his] constituents ha[ve] elected [him].” See id.

This Court has now twice reserved for future

determination whether “harms centered on more

difficult election campaigns are cognizable.”

Bethune-Hill, 139 S. Ct., at 1956 (citing Wittman v.

Personhuballah, 578 U. S. 539, 545 (2016)). This

Court should now answer that question in the

affirmative for situations like Representative

Ybarra’s, where redistricting leaves one particular

Member more vulnerable, because such redistricting

constitutes unfavorable treatment specific to that

individual Member, not impacting all Members

equally.

This Court in Wittman looked to “evidence that

an alternative to the Enacted Plan (including the

Remedial Plan) will reduce the relevant intervenors’

chances of reelection.” 578 U. S., at 545.

Representative Ybarra has shown just that.

3. Representative Ybarra’s reelection chances are

also directly harmed by Plaintiff-Respondents’

proposed remedial maps. If this Court agrees that

reduced reelection chances constitute an Article III

injury, the question is whether “an alternative to the

Enacted Plan (including the Remedial Plan) will

6

reduce the relevant intervenors’ chances of

reelection.” Id. For Representative Ybarra, that

means asking whether the Plaintiff-Respondents’

remedial maps offered in the district court would

trigger “costlier or more difficult election

campaigns,” Bethune-Hill, 139 S. Ct., at 1956.

Although this Court has not imposed a minimum

threshold of cost or difficulty, its standing principles

generally recognize that even “a dollar or two” of

injury establishes Article III standing. Sprint

Communications Co. v. APCC Services, Inc., 554

U. S. 269, 289 (2008).

Petitioners’ expert for the remedial proceedings

produced numbers showing that “[PlaintiffRespondents’] maps do not merely create a new,

more heavily Democratic district in southern

Washington. They do so by weakening several

Republican incumbents in unrelated portions of the

map.” Trende Report, ECF No. 251, at 40–41. One

such incumbent is Representative Ybarra. PlaintiffRespondents’ Proposals 1, 2, 3, and 4 increase the

estimated Democrat vote share in Representative

Ybarra’s home district of LD-13. Id., at 79–82.

Therefore, Representative Ybarra likely will have to

engage in additional spending (e.g., campaigning for

the new voters added to LD-13) and will, by

definition, face a more difficult reelection campaign

under each of those maps.

4. Like all Americans, Petitioner Jose Trevino

possesses an individual constitutional right under

the Equal Protection Clause not to be intentionally

and unjustifiably sorted by race. Abbott v. Perez, 138

S. Ct. 2305, 2314 (2018). The district court’s invasion

of that right through its decision therefore causes

7

him injury, giving him Article III standing to seek

appellate review to reverse it.

Mr. Trevino lives in enacted (and enjoined) LD15. From the beginning, Mr. Trevino has asserted he

has an individual Fourteenth Amendment right

affected by this §2 litigation, namely, not to be

gerrymandered on the basis of race or ethnicity. But

the district court’s decision will likely result in

intentional alteration of Mr. Trevino’s district on

race-based grounds, as the district court utilizes race

to remedy the purported §2 violation. As this Court

has recognized, “compliance with the Voting Rights

Act . . . pulls in the opposite direction” of the Equal

Protection Clause because it “insists that districts be

created precisely because of race.” Id. That is

particularly true in this litigation because the

political and demographic reality of the Yakima

Valley region makes such a redrawing impossible

without racial targets.

The district court’s race-based rejiggering of Mr.

Trevino’s district thus causes “fundamental injury”

to Mr. Trevino’s “individual rights.” Shaw v. Hunt,

517 U. S. 899, 908 (1996) (quoting Goodman v.

Lukens Steel Co., 482 U. S. 656, 661 (1987)). Indeed,

Respondents do not dispute that Mr. Trevino (like

Mr. Garcia in the related litigation) would have

Article III standing to challenge LD-15 as enacted by

the Washington Legislature as an unconstitutional

racial gerrymander. But the injury recognized in

Shaw does not disappear when the institution

wielding the racial gerrymandering pen is a court

rather than a legislature. Article III standing exists

to challenge the resulting gerrymander however it

arises.

8

A finding of a §2 violation thus triggers a racebased remedial process that alone grants standing to

individuals like Mr. Trevino who will be subject to

the resulting gerrymandering. The ongoing remedial

process occurring in this case, then, is not dispositive

as to standing, but it is illustrative. The district

court invalidated LD-15 and purported to order the

creation of a new map that safeguards victory for the

candidate supported by a majority of Hispanic voters

(i.e., a Democrat). And although the district court’s

decision obscures these central facts, PlaintiffRespondents’ proposed remedial maps make them

manifest. Specifically, in order to produce districts

more favorable to Democrats, Plaintiff-Respondents

ludicrously propose to remedy putative dilution of

Hispanic voting strength in LD-15 by diluting it

further. Tellingly, every one of the PlaintiffRespondents’ five proposals decreases the Hispanic

Citizen Voting Age Population (“HCVAP”) in the

proposed opportunity district from an estimated

52.6% in 2021 population numbers to anywhere from

46.9% to 51.7%. Trende Report, ECF No. 251, at 70.

None of this is accidental, but rather the surgical use

of racial gerrymandering and cynical exploitation of

the VRA to achieve partisan ends. See id., at 25

(“[T]he maps nevertheless carve out Hispanic areas

and Democratic areas with razor-like accuracy

across a wide swath of south-central Washington,

creating appendages that wrap into heavily Hispanic

and Democratic areas in order to build the district.”).

This Court has indicated that this sort of racial

sorting is per se harmful, regardless of justification:

“While appreciating that a racial classification

causes ‘fundamental injury’ to the ‘individual rights

9

of a person,’ we have recognized that, under certain

circumstances, drawing racial distinctions is

permissible where a governmental body is pursuing

a ‘compelling state interest.’” Shaw, 517 U. S., at 908

(citation omitted) (quoting Goodman, 482 U. S., at

661). That fundamental injury, justified or not (and

Petitioners will show on the merits that it was not

justified here), is a cognizable one establishing

Article III standing. And because “standing in no

way depends on the merits,” Warth v. Seldin, 422

U. S. 490, 500 (1975), it is sufficient for present

purposes that Mr. Trevino has more than plausibly

alleged that the district court’s race-based remedies

will violate his constitutional rights.

Hollingsworth v. Perry, 570 U. S. 693 (2013), does

not defeat Petitioners’ standing. Those intervening

proponents of the Proposition 8 ballot initiative

sought to defend that law by appealing when

California officials declined. Id., at 705. This Court

noted that the intervenors’ “only interest in having

the District Court order reversed was to vindicate

the constitutional validity” of a state law. Id., at 706.

Such interest was insufficient to maintain a live

Article III controversy because the intervenors had

no “‘personal stake’ in defending its enforcement

that [was] distinguishable from the general interest

of every citizen” of the state. Id., at 707.

Here, Mr. Trevino is not attempting to “stand in

for the State[,]” Bethune-Hill, 139 S. Ct., at 1951, to

vindicate the State’s sovereign and generalized

interest in the constitutional validity of a law. To the

contrary, he is asserting fundamental injury to his

individual rights. The State does not even possess

any such rights that Mr. Trevino could assert by

10

proxy. Instead, the likelihood of being sorted on the

basis of race gives Mr. Trevino precisely the sort of

“personal stake” in this litigation that supports

standing—a stake that is not shared by all

Washingtonians but only those within the Yakima

Valley at risk of that specific constitutional harm. In

this way, Mr. Trevino should be viewed as the

mirror-image

equivalent

of

a

Fourteenth

Amendment plaintiff seeking protection from

constitutional harm in federal court. Plaintiffs do not

stand in the shoes of the State; they seek only to

vindicate their individual rights. Because Mr.

Trevino’s Fourteenth Amendment right not to be

sorted by race “pull[ed] in the opposite direction” of

Soto Palmer’s Voting Rights Act claim, Abbott, 138

S. Ct., at 2314, he naturally intervened on the side of

the State. But now, regardless of the State’s

presence, the remedial proceedings work to deprive

Mr. Trevino of his individual rights, so he has

standing now to proceed.

5. Respondents cannot thus jurisdictionally

escape the district court’s legal and factual errors,

nor do they persuade that the district court acted

within the §2 jurisprudential norm.

First, and most basically, the district court erred

by finding an HCVAP majority-minority district,

where the majority-minority group has access to

voting and which is not a façade district, violates

§2—particularly where that district has most

recently elected a minority candidate in a hugely

lopsided victory. That error alone warrants this

Court’s review.

11

Other errors abound. Plaintiff-Respondents never

adduced a viable remedy, which two circuit courts

require for Gingles I. See Nipper v. Smith, 39 F.3d

1494, 1530–1531 (CA11 1994) (en banc), cert. denied,

514 U. S. 1083 (1995); Sanchez v. Colorado, 97 F.3d

1303, 1311 (CA10 1996), cert. denied, 520 U. S. 1229

(1997); see also Shirt v. Hazeltine, 461 F.3d 1011,

1025 (CA8 2006) (Gruender, J. concurring). Also on

that precondition, the district court focused on the

compactness of the district, not the compactness of

the minority population within the district—failing

to make any required findings about the spatial

distance between Hispanic communities in the

Yakima Valley region, instead relying on generalized

and ubiquitous experiences that would connect most

Hispanic communities across the country, contra

LULAC v. Perry, 548 U. S. 399, 433–435 (2006).

Fourth, the district court failed to determine

whether any polarized voting resulting in the

(majority-)minority-preferred

candidate

losing

elections was on account of race or on account of

partisanship, a question splitting the Justices of this

Court in Thornburg v. Gingles, 478 U. S. 30 (1986),

itself, and which has since caused a circuit split.

Contrast LULAC v. Clements, 999 F.2d 831, 856

(CA5 1993), with Goosby v. Town Bd. of Town of

Hempstead, N.Y., 180 F.3d 476 (CA2 1999), and

United States v. Charleston County, S.C., 365 F.3d

341 (CA4 2004).

Finally, in evaluating the totality of the

circumstances, the district court found a violation

based on facts that would apply to almost every

jurisdiction in the country: (i) the general history of

discrimination in the State’s past unconnected to the

present reality; (ii) moderate polarized voting in one

12

kind of election; (iii) some regular burdens of voting;

(iv) the admitted socioeconomic disparities between

Whites and Hispanics; (v) one instance of one

candidate invoking illegal immigration as a political

issue; (vi) past Hispanic electoral success less than

proportional to the Hispanic population in the

region; (vii) one-off instances of “white voter

antipathy”; and (viii) elected Republicans’ declining

to support all legislation the district court considered

Hispanic-supported. ECF No. 218, at 15–24. If those

ubiquitous conditions are enough to satisfy the

VRA’s totality requirement—and if a widespread

Hispanic population showing weak voting cohesion

satisfies the preconditions—it is difficult to imagine

a jurisdiction in America that is not currently in

violation.

The procedural posture also demands this Court’s

review. The docket decisions of the single-judge

district court in this case and a majority of the threejudge district court worked to deprive the latter of its

jurisdiction and abdicate its obligation to hear valid

constitutional claims.

The merits warrant this Court’s review as a

general matter, and the procedural morass warrants

this Court’s review before judgment.

CONCLUSION

For these reasons, Petitioners respectfully

request that this Court grant the writ of certiorari

before judgment, hold this case in abeyance pending

the outcome in Garcia, No. 23-467, and stay the

remedial proceedings in Soto Palmer v. Hobbs, No.

3:22-cv-05035.

13

January 2, 2024

Respectfully submitted,

JASON B. TORCHINSKY

Counsel of Record

PHILLIP M. GORDON

DREW C. ENSIGN

ANDREW PARDUE

CALEB ACKER

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808 (telephone)

(540) 341-8809 (facsimile)

jtorchinsky@holtzmanvogel.com

pgordon@holtzmanvogel.com

densign@holtzmanvogel.com

apardue@holtzmanvogel.com

cacker@holtzmanvogel.com

DALLIN B. HOLT

BRENNAN A. R. BOWEN

HOLTZMAN VOGEL

BARAN TORCHINSKY &

JOSEFIAK PLLC

Esplanade Tower IV

2575 East Camelback Road,

Suite 860

Phoenix, AZ 85016

(540) 341-8808 (telephone)

(540) 341-8809 (facsimile)

dholt@holtzmanvogel.com

bbowen@holtzmanvogel.com

14

ANDREW R. STOKESBARY

CHALMERS, ADAMS, BACKER &

KAUFMAN, LLC

701 Fifth Avenue, Suite 4200

Seattle, WA 98104

(206) 813-9322 (telephone)

dstokesbary@chalmersadams.com

Counsel for Petitioners