Petition for Writ of Certiorari — James Gimenez, Petitioner v. Franklin County, Washington, et al.

No. _______

IN THE

JAMES GIMENEZ,

v.

Petitioner,

FRANKLIN COUNTY, A WASHINGTON MUNICIPAL ENTITY,

CLINT DIDIER, RODNEY J. MULLEN, LOWELL B. PECK, IN

THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE FRANKLIN

COUNTY BOARD OF COMMISSIONERS, GABRIEL PORTUGAL,

BRANDON PAUL MORALES, JOSE TRINIDAD CORRAL, AND

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

PETITION FOR A WRIT OF CERTIORARI

Joel B. Ard

Bryan Weir

ARD LAW GROUP PLLC

Counsel of Record

P.O. Box 11633

Taylor A.R. Meehan

Bainbridge Island, WA 98110 Tiffany H. Bates

(206) 701-9243

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

bryan@consovoymccarthy.com

November 7, 2023

Counsel for Petitioner

i

QUESTION PRESENTED

In Thornburg v. Gingles, 478 U.S. 30 (1986), this

Court held that something more than the mere

existence of racially polarized voting was required for

an at-large voting system to implicate Section 2 of the

Voting Rights Act. Plaintiffs must also show that a

racial group is “sufficiently large and geographically

compact to constitute a majority in a single-member

district.” Id. at 50. This additional requirement is a

constitutional guardrail, ensuring that Section 2 does

not become a rule requiring “maximum possible

voting strength” for one minority group over another,

entangling courts in race-based inquiries and “racebased predictions.” Bartlett v. Strickland, 556 U.S. 1,

16, 18 (2009) (plurality opinion). Without it, Section 2

could be read to “‘unnecessarily infuse race into

virtually every redistricting, raising serious

constitutional questions.’” Id. at 21.

Washington recently adopted its own voting

rights act that expressly eschews the Gingles

“compactness” requirement. App. 73-74. Without that

requirement, a municipality must change from atlarge elections to districts when there is racially

polarized voting. Petitioner challenged the Act as

unconstitutional because it makes race the reason

why municipalities must change election systems.

App. 3. Applying only rational basis review, the

Washington Supreme Court held the Washington

Voting Rights Act is constitutional. App. 35-39.

The question presented is:

Whether the Washington Voting Rights Act is

subject to strict scrutiny.

ii

PARTIES TO THE PROCEEDING AND

RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Petitioner is James Gimenez. Petitioner was an

intervenor in the trial court and appellant in the

Supreme Court of Washington.

Respondents are Gabriel Portugal, Brandon Paul

Morales, Jose Trinidad Corral, and League of United

Latin American Citizens. Respondents were plaintiffs

in the trial court and respondents in the Supreme

Court of Washington.

Additional Respondents are Franklin County, a

Washington municipal entity, Clint Didier, Rodney J.

Mullen, and Lowell B. Peck in their official capacities

as members of the Franklin County Board of

Commissioners. Respondents were defendants in the

trial court and did not participate on appeal in the

Supreme Court of Washington.

Petitioner is unaware of any “directly related”

proceedings as defined in Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING AND

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES....................................... vi

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

OPINIONS BELOW .................................................... 4

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................... 5

STATEMENT OF THE CASE .................................... 5

A. Section 2 of the Voting Rights Act .................5

B. The Washington Voting Rights Act ...............8

C. Proceedings below ........................................11

REASONS FOR GRANTING THE PETITION ....... 14

I.

The constitutional issues presented in this

case are fundamental..........................................15

II. The WVRA and similar statutes in

other states are causing serious constitutional

harm ....................................................................23

III. This case is an ideal vehicle for summarily

reversing or resolving the question presented

on the merits .......................................................27

CONCLUSION .......................................................... 30

iv

APPENDIX

Appendix A

Opinion in the Supreme Court

of the State of Washington

(June 15, 2023) ........................ App. 1

Appendix B

Ruling Setting Award for Attorney

Fees and Expenses in the Supreme

Court of the State of Washington

(October 6, 2023).................... App. 46

Appendix C

Mandate in the Supreme Court

of the State of Washington

(July 7, 2023) ......................... App. 58

Appendix D

Joint Order Approving Settlement

and Order of Dismissal in the

Superior Court of the State of

Washington in and for the County

of Franklin

(May 9, 2022) ......................... App. 61

Appendix E

Order Denying Motion for Judgment

on the Pleadings in the Superior

Court of the State of Washington

in and for the County of Franklin

(January 3, 2022) ................... App. 68

Appendix F

Statutory Provisions .............. App. 72

52 U.S.C.A. § 10301 ............... App. 72

RCWA 29A.92.005 ................. App. 73

RCWA 29A.92.010 ................. App. 74

RCWA 29A.92.020 ................. App. 76

RCWA 29A.92.030 ................. App. 76

RCWA 29A.92.040 ................. App. 78

v

RCWA 29A.92.050 ................. App. 79

RCWA 29A.92.060 ................. App. 82

RCWA 29A.92.070 ................. App. 83

RCWA 29A.92.080 ................. App. 84

RCWA 29A.92.090 ................. App. 86

RCWA 29A.92.100 ................. App. 87

RCWA 29A.92.110 ................. App. 88

RCWA 29A.92.120 ................. App. 90

RCWA 29A.92.130 ................. App. 91

RCWA 29A.92.700 ................. App. 91

RCWA 29A.92.710 ................. App. 92

RCWA 29A.92.900 ................. App. 92

Appendix G

Defendants’ Memorandum in

Response to Plaintiffs’ Motion for

Summary Judgment in the Superior

Court of the State of Washington in

and for the County of Franklin

(September 7, 2021) ............... App. 93

Appendix H

Amended Complaint for Injunctive

Relief under the Washington Voting

Rights Act in the Superior Court of

the State of Washington in and for

the County of Franklin

(May 5, 2021) ....................... App. 116

vi

TABLE OF AUTHORITIES

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) ........................................ 5, 6

Abrams v. Johnson,

521 U.S. 74 (1997) ..................................................6

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ................................................5

Alabama Leg. Black Caucus v. Alabama,

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

Allen v. Milligan,

599 U.S. 1 (2023) .......... 1, 2, 5, 6, 18, 19, 21, 22, 27

Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) .................................... 4, 13, 21

Avery v. Midland Cnty.,

390 U.S. 474 (1968) .............................................. 16

Bartlett v. Strickland,

556 U.S. 1 (2009) ........................ 1, 2, 4, 7, 8, 18, 22

Bethune-Hill v. Va. State Bd. of Elections,

580 U.S. 178 (2017) .............................................. 21

Bush v. Vera,

517 U.S. 952 (1996) .................... 4, 6, 15, 16, 20, 22

City of Boerne v. Flores,

521 U.S. 507 (1997) .............................................. 22

Cooper v. Harris,

137 S. Ct. 1455 (2017) .......................................... 19

Darr v. Burford,

339 U.S. 200 (1950) .............................................. 29

vii

Edmonson v. Leesville Concrete Co., Inc.,

500 U.S. 614 (1991) .............................................. 18

Evans v. Stephens,

544 U.S. 942 (2005) .............................................. 29

Georgia v. Ashcroft,

539 U.S. 461 (2003) ................................................6

Gratz v. Bollinger,

539 U.S. 244 (2003) .................................. 15, 18, 19

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 27

Higginson v. Becerra,

786 F. App’x 705 (9th Cir. 2019).......................... 28

Jauregui v. City of Palmdale,

172 Cal. Rptr. 3d 333 (Cal. Ct. App. 2014) ...........9

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................2

Miller v. Johnson,

515 U.S. 900 (1995) ............................ 2, 6, 8, 15, 16

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009) .............................................. 17

Palmore v. Sidoti,

466 U.S. 429 (1984) .............................................. 27

Ricci v. DeStefano,

530 F.3d 88 (2d Cir. 2008) ................................... 29

Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) .............................................. 15

Sanchez v. City of Modesto,

51 Cal. Rptr. 3d 821 (Cal. Ct. App. 2006) ........... 29

viii

Shaw v. Hunt,

517 U.S. 899 (1996) .................................... 6, 15, 16

Shaw v. Reno,

509 U.S. 630 (1993) .............. 4, 5, 15, 16, 17, 18, 21

Strauder v. West Virginia,

100 U.S. 303 (1879) .............................................. 22

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard

Coll., 600 U.S. 181 (2023) ................ 2, 5, 15, 18, 19

Thornburg v. Gingles,

478 U.S. 30 (1986) ....... 1, 2, 4, 6, 7, 8, 13, 14, 17-22

White v. Regester,

412 U.S. 755 (1973) ............................................1, 6

Wis. Leg. v. Wis. Elections Comm’n,

595 U.S. 398 (2022) ................................ 6, 7, 15, 19

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV ............................................ 15

28 U.S.C. §1257(a) .......................................................4

52 U.S.C. §10301(a) .....................................................6

N.Y. Elec. Law §17-206 ............................................. 26

Or. Rev. Stat. §255.411 ............................................. 27

Va. Code §24.2-130 .................................................... 27

Wash. Rev. Code §29A.92.020................................... 10

Wash. Rev. Code §29A.92.030(2) ................................9

Wash. Rev. Code §29A.92.130(1) .............................. 14

ix

RULES

Sup. Ct. R. 10(c) ......................................................... 14

OTHER AUTHORITIES

1 Alexis de Tocqueville, Democracy in America

(Henry Reeve trans., Colonial Press 1899) ......... 16

Carolyn Abott & Asya Magazinnik, At-Large

Elections and Minority Representation in Local

Government, 64 Am. J. Pol. Sci. 717 (2020) ........ 11

Assem. Comm. on Judiciary, Analysis of Sen. Bill

No. 976 (2001-2002 Reg. Sess.)..............................9

Justus Caudell, CBC Meets with Ferry County

Commissioners on Election Complaint, Tribal

Trib. (Jan. 24, 2020) .............................................24

Shannon Cheng, Democracy Just Got Stronger in

Washington State, ACLU (Mar. 20, 2018) ..........23

City Council Staff Report, City of Citrus Heights

(Jan. 10, 2019) ......................................................26

CLC Wins State Voting Rights Act Case in Historic

Settlement, Campaign Legal Ctr.

(Aug. 31, 2021) ..................................................... 24

Travis Crum, Reconstructing Racially Polarized

Voting, 70 Duke L.J. 261 (2020) ...................... 1, 19

Steven Ellis, Wenatchee Is First City to Use New

Voting Rights Act to Ensure Better

Representation, Wash. State Wire

(Aug. 10, 2018) .....................................................23

x

Phil Ferolito, Yakima County Ordered to Pay

Nearly $272,000 in Voting Rights Case, Lower

than $2M Requested, The Spokesman-Review

(Dec. 28, 2021) ......................................................24

H.R., 3d reading analysis of H.R. Bill No. 1800

(2017-2018) ...........................................................22

Douglas Johnson, The California Voting Rights Act

and Districting: The Demographer’s Perspective,

Nat’l Demographics Corp. (May 9, 2016) ............26

Jared A. Kasschau, New York Communities

with At-Large Election Methods Facing

Challenges Under Voting Rights Act,

Harris Beech PLLC (Aug. 28, 2023) .............. 26, 27

Katie Lauer, Santa Clara Settles $4.5 Million

Lawsuit over Districted Elections, San Jose

Inside (Apr. 21, 2021)........................................... 26

Emily McCarty, Washington’s Latinx and Native

Voters Are Fighting for Their Votes to Matter,

Crosscut (Mar. 2, 2020)........................................24

Charlie Mounts, California’s Voting Rights Act

Continues to Force More Local Governments

into By-District Elections, Civic Bus. J.

(Sept. 19, 2022) ....................................................25

New York Senate Standing Comm. on Elections

(statement of Sen. Zellnor Myrie at 4:30-6:51) ...26

xi

Office of Gov. Hochul, Governor Hochul Signs

Legislative Package to Strengthen Democracy

and Protect Voting Rights, (Sept. 20, 2023) ........26

Jefferson Robbins, In 6-1 Vote, Wenatchee Chooses

to Elect Council Members by District, SourceOne (Aug. 10, 2018)..............................................23

Jefferson Robbins, Primary Elections Roundup:

What’s on your Ballot?, SourceOne

(July 22, 2019) ......................................................23

Santa Clarita Settles California Voting Rights Act

Lawsuit, Pub. CEO (Apr. 13, 2022) ..................... 25

The Federalist No. 17 (Alexander Hamilton)

(Jacob E. Cooke ed., 1961). ..................................16

Thy Vo, The Accidental Advocate, Voice of OC

(Dec. 8, 2020) ........................................................25

Wash. State Gov’t, Elections & Info. Tech. Comm.,

H. Bill Rep. H.B. 1800 (Jan. 16, 2018) ..................9

Rebecca White, After Settlement in Yakima, Voting

Rights Advocates Put County Governments on

Notice, Spokane Public Radio

(Sept. 3, 2021) ...................................................... 24

1

INTRODUCTION

Section 2 of the Voting Rights Act prohibits states

and localities from using at-large elections if they

“result in unequal access to the electoral process.”

Thornburg v. Gingles, 478 U.S. 30, 46 (1986). If a

plaintiff proves her Section 2 claim, then Section 2

may compel states or localities to replace at-large

elections with single-member districts. But she must,

in fact, prove it, and that is no easy feat. See Allen v.

Milligan, 599 U.S. 1, 29 (2023) (Ҥ 2 litigation in recent

years has rarely been successful”). At-large elections

are not “per se violative of § 2.” Gingles, 478 U.S. at

46; see also White v. Regester, 412 U.S. 755, 765-66

(1973) (at-large systems “are not per se

unconstitutional”) (italics added). Nor is it enough to

show voting is racially polarized. See Gingles, 478 U.S.

at 48-51 & nn.15-17. Rather, before plaintiffs can

insist that election schemes change for race-based

reasons, they must overcome the Gingles juggernaut.

See id. at 46, 50-51. They must show that a minority

group in the at-large district “is sufficiently large and

geographically compact to constitute a majority in a

single-member district,” otherwise “they cannot claim

to have been injured” by the at-large scheme. Id. at 50

& n.17.

This Gingles 1 requirement is a constitutional

guardrail, narrowing the statute’s scope to areas

where minority groups remain residentially

segregated. See Bartlett v. Strickland, 556 U.S. 1, 2122 (2009) (plurality opinion); Travis Crum,

Reconstructing Racially Polarized Voting, 70 Duke

L.J. 261, 279 (2020). Any lesser standard, and Section

2 would “‘raise[] serious constitutional questions,’”

2

mandating “districts drawn with race as ‘the

predominant factor’” without any logical endpoint.

Bartlett, 556 U.S. at 21-22 (plurality) (quoting League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

446 (2006); Miller v. Johnson, 515 U.S. 900, 916

(1995)). Race-based election policy would continue

indefinitely into the future, even “as residential

segregation decreases—as it has ‘sharply’ done since

the 1970s.” Allen, 599 U.S. at 28-29.

The guardrails are off in Washington. Enacted in

2018, the Washington Voting Rights Act (WVRA)

likewise bars minority vote dilution. But it has

different

rules.

Washington

requires

local

governments to dismantle existing at-large election

systems, such as county commissions elected at-large,

just because racially polarized voting exists. The law

excludes the Gingles 1 “compactness” requirement

from the inquiry. App. 76-78. Nor is any further proof

of past discrimination by the locality required—let

alone the sort of “specific, identified instances of past

discrimination that violated the Constitution or a

statute” that could justify a race-based change to

elections. Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll. (SFFA), 600 U.S.

181, 207 (2023). Put another way, the WVRA requires

no causal connection between the locality’s use of an

at-large scheme and the lack of electoral success—

only the correlation between whom voters vote for and

their race. But see Gingles, 478 U.S. at 50 (explaining

that if a district is “substantially integrated” such that

a minority group would not “constitute a majority in a

single-member district,” then “the multimember form

3

of the district cannot be responsible for minority

voters’ inability to elect its candidates”).

Since then, plaintiffs have sued throughout the

state to replace at-large elections with districts based

on racially polarized voting. In 2021, plaintiffs

challenged Franklin County’s at-large county

commission. All they had to show was voting was

racially polarized in the county. Not surprisingly, the

county admitted liability and abandoned its at-large

system to elect county commissioners to be replaced

with single-member districts. App. 96-97.

During the litigation, Petitioner James Gimenez,

a Hispanic Franklin County voter, intervened to

challenge the WVRA’s constitutionality. App. 2. He

argued that the WVRA violates the U.S.

Constitution’s Equal Protection Clause by requiring

local governments to change their election systems

based on race alone—i.e., the mere existence of

racially polarized voting. App. 3. When the appeal

reached the Washington Supreme Court, the Court

held the WVRA need only survive rational-basis

review and affirmed its constitutionality. App. 35-39.

This Court’s intervention is warranted, either by

summarily reversing the Washington Supreme Court

or by granting plenary review on the merits. The

Washington Supreme Court gave state law, affecting

Washington voters from Seattle to Spokane, a free

pass under the Equal Protection Clause. Contrary to

the court’s application of rational-basis review, state

laws that are either expressly race-based or are

“‘unexplainable on grounds other than race’” are

subject to “strict scrutiny” that is indeed “strict.”

4

Shaw v. Reno (Shaw I), 509 U.S. 630, 643-44 (1993)

(quoting Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 266 (1977)); Bush v. Vera, 517 U.S. 952,

978 (1996) (plurality opinion). That is the WVRA. In

its application, it makes race the only factor in

determining whether a locality may use an at-large

electoral system, and it is subject to strict scrutiny as

a result. Worse, it has no Gingles 1 guardrail to ensure

that the alleged harm—the inability to win elections—

is traceable to the government’s adoption of the atlarge scheme. See Gingles, 478 U.S. at 50 & n.17.

Washington’s is “a perilous enterprise,” “relying on a

combination of race and party” without more. Bartlett,

556 U.S. at 22 (plurality).

OPINIONS BELOW

The opinion of the Supreme Court of Washington

is reported at 1 Wash. 3d 629, 530 P.3d 994. It is

reproduced in the Appendix at 1-45. The joint order

approving settlement and order of dismissal in the

Superior Court of Washington is reproduced at App.

61-67. The order denying motion for judgment on the

pleadings in the Superior Court of Washington is

reproduced at App. 68-71.

JURISDICTION

The Supreme Court of Washington issued its

opinion on June 15, 2023. App. 1. This Court granted

an extension to file a petition for certiorari to and

including November 7, 2023. This Court has

jurisdiction under 28 U.S.C. §1257(a).

5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions

involved in this case are reproduced in the appendix.

STATEMENT OF THE CASE

A. Section 2 of the Voting Rights Act

For decades, this Court has struck a delicate

balance between the Equal Protection Clause and

compliance with the Voting Rights Act. The Equal

Protection Clause prohibits race-based action unless

it survives “a daunting two-step examination” of

“‘strict scrutiny.’” SFFA, 600 U.S. at 206 (quoting

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227

(1995)). Even when used for “remedial purposes,” such

race-based laws “may balkanize us into competing

racial factions; [they] threaten[] to carry us further

from the goal of a political system in which race no

longer matters.” Shaw I, 509 U.S. at 657. But

“compliance with the Voting Rights Act” seemingly

“pulls in the opposite direction: It often insists that

districts be created precisely because of race.” Abbott

v. Perez, 138 S. Ct. 2305, 2314 (2018).

“The concern that § 2” of the Voting Rights Act

“may impermissibly elevate race in the allocation of

political power within the States is, of course, not

new.” Allen, 599 U.S. at 41-42. Taking those concerns

head-on, this Court has eschewed limitless

application of the Voting Rights Act, lest lawmakers

be subject to “‘competing hazards of liability.’” Abbott,

138 S. Ct. at 2315. Time and again, this Court has

rejected that the Voting Rights Act could require

6

something that the Constitution would prohibit. See,

e.g., id. at 2334-35; Vera, 517 U.S. at 984-86; Shaw v.

Hunt (Shaw II), 517 U.S. 899, 907-08, 916-18 (1996);

Miller, 515 U.S. at 927-28; see also Georgia v. Ashcroft,

539 U.S. 461, 491 (2003) (Kennedy, J., concurring).

The Court has struck that balance with the

Gingles preconditions. Not long after Congress

amended §2 to prohibit voting practices that “result[]

in a denial or abridgement” of voting rights, App. 72

(52 U.S.C. §10301(a)), Gingles limited that amended

text to only those locales where its three

“preconditions” were met. See Gingles, 478 U.S. at 5051. “First, the ‘minority group must be sufficiently

large and geographically compact to constitute a

majority in a [single-member] district.’” Allen, 599

U.S. at 18 (cleaned up) (quoting Wis. Leg. v. Wis.

Elections Comm’n, 595 U.S. 398, 402 (2022) (per

curiam)). “‘Second, the minority group must be able to

show that it is politically cohesive.’” Id. (quoting

Gingles, 478 U.S. at 51). “And third, ‘the minority

must be able to demonstrate that the white majority

votes sufficiently as a bloc to enable it … to defeat the

minority’s preferred candidate.’” Id. (quoting Gingles,

478 U.S. at 51). The “second and third Gingles factors”

are referred to collectively as “racially polarized

voting.” Abrams v. Johnson, 521 U.S. 74, 92 (1997).

Importantly, Gingles rejected that all at-large

systems are “per se violative of § 2,” just as at-large

systems are not “per se unconstitutional.” Gingles, 478

U.S. at 46; White, 412 U.S. at 765 (italics added). For

the at-large system to come within Section 2’s

crosshairs, a plaintiff must prove the at-large system

has the effect of “dilut[ing] minority voting strength

7

by submerging [minority] voters into the white

majority, denying them an opportunity to elect a

candidate of their choice.” Bartlett, 556 U.S. at 11

(plurality); see Gingles, 478 U.S. at 51. And a plaintiff

cannot do so with proof of racially polarized voting

alone. Gingles, 478 U.S. at 50-51. The plaintiff must

clear Gingles 1, showing that the particular “minority

group” is “sufficiently large and [geographically]

compact to constitute a majority in a reasonably

configured district.” Wis. Legislature, 595 U.S. at 402

(per curiam). “Only when a geographically compact

group of minority voters could form a majority in a

single-member district has th[at] first Gingles

requirement been met.” Bartlett, 556 U.S. at 26

(plurality). Because only then can the minority group

show that they would have the potential to elect

representatives if the at-large scheme were replaced

with districts. Gingles, 478 U.S. at 50 n.17. Absent

that potential to form a majority in a single-member

district, the locality’s adoption of at-large elections

“cannot be responsible for minority voters’ inability to

elect its candidates.” Id. at 50.

In practice, the Gingles 1 requirement narrows

Section 2’s focus to areas of residential segregation

versus “a substantially integrated district.” Id. Two

decades after Gingles, in Bartlett, this Court rejected

calls to relax Gingles 1 and apply Section 2 to areas

where minority voters are too integrated or too few to

form a reasonably configured single-member district.

See Bartlett, 556 U.S. at 25-26 (plurality).

Constitutional concerns drove that decision: “To the

extent there is any doubt about whether § 2 calls for

the majority-minority rule, we resolve that doubt by

8

avoiding serious constitutional concerns under the

Equal Protection Clause.” Id. at 21. The Court refused

to “expand the reaches of § 2” with a relaxed

requirement that “would result in a substantial

increase in the number of mandatory districts drawn

with race as ‘the predominant factor motivating the

legislature’s decision.’” Id. at 21-22, 25 (quoting

Miller, 515 U.S. at 916).

B. The Washington Voting Rights Act

Washington passed its own version of the Voting

Rights Act in 2018. App. 5, 73-92. The WVRA

addresses “two types of voting discrimination:

‘abridgement’ and ‘dilution.’” App. 6. An “abridgement

of the right to vote refers to an electoral system or

practice that impairs voting rights on the basis of race,

color, or language minority group,” such as “the

requirement of the payment of a poll tax as a

precondition to voting or … the discriminatory use of

literacy tests.” App. 7 (cleaned up). That part of the

WVRA is not at issue in this case.

This case is about the WVRA’s “dilution” prong.

On that issue, the Washington Legislature adopted

rules that sharply differ from this Court’s rules for the

federal Voting Rights Act. The WVRA provides “a

broader range of redressable claims for vote dilution

than those recognized by Section 2.” App. 9. To enlarge

the WVRA’s scope, the Washington legislature went

even farther than this Court was asked to go (and

didn’t go) in Bartlett. It did so by expressly removing

the Gingles 1 showing required under the WVRA:

“[U]nlike Section 2, the WVRA specifically rejects the

first Gingles factor as a threshold requirement: ‘The

9

fact that members of a protected class are not

geographically compact or concentrated to constitute

a majority in a proposed or existing district-based

election district shall not preclude a finding of a

violation’” of the WVRA. App. 14 (quoting Wash. Rev.

Code §29A.92.030(2)); App. 77. 1

In practice, a political subdivision violates the

WVRA anywhere that voting is racially polarized,

without regard to whether minority voters are

sufficiently numerous and compact to make up a

majority of a proposed single-member district.

Plaintiffs need only show that “(a) [e]lections in the

political subdivision exhibit polarized voting; and (b)

[m]embers of a protected class or classes do not have

an equal opportunity to elect candidates of their choice

as a result of the dilution or abridgement of the rights

of members of that protected class or classes.” App. 7677. “Polarized voting,” in turn, “means voting in which

there is a difference, as defined in case law regarding

enforcement of the federal voting rights act, … in the

choice of candidates or other electoral choices that are

preferred by voters in a protected class, and in the

choice of candidates and electoral choices that are

preferred by voters in the rest of the electorate.” App.

1 The California Voting Rights Act served as a model for the

WRVA. See Wash. State Gov’t, Elections & Info. Tech. Comm., H.

Bill Rep. H.B. 1800, at 6 (Jan. 16, 2018). That law, too, sought to

“provide a broader basis for relief from vote dilution than

available under the federal Voting Rights Act,” Jauregui v. City

of Palmdale, 172 Cal. Rptr. 3d 333, 350 (Cal. Ct. App. 2014), and

to avoid the problem of this Court’s “[r]estrictive interpretations”

of Section 2, see Assem. Comm. on Judiciary, Analysis of Sen. Bill

No. 976 (2001-2002 Reg. Sess.), as amended Apr. 9, 2002, p.2.

10

75. And the WVRA defines a “protected class” as “a

class of voters who are members of a race, color, or

language minority group, as this class is referenced

and defined in the federal voting rights act.” App. 76.

Upon a finding of a violation of the WVRA, “[t]he

court may order appropriate remedies including, but

not limited to, the imposition of a district-based

election system.” App. 88. In other words, if there is

racially polarized voting in a county, the county

cannot elect commissioners at large. The WVRA also

gives courts the discretion to hold the political

subdivision

(and

intervenor-defendants

like

Petitioner) liable for attorneys’ fees and costs. App. 91.

Finally, the WVRA provides a “safe harbor” to

political subdivisions to induce early settlements

between challengers and political subdivisions. App.

83. Under the WVRA, a prospective plaintiff may not

commence an action until 90 days after providing

written notice to the political subdivision that its

method of conducting elections may violate the

WVRA. App. 82, 84-85. The political subdivision must

obtain “a court order stating that it has adopted a

remedy in compliance with [Washington Revised Code

Section] 29A.92.020” within the applicable safe

harbor window. Id. A political subdivision can limit its

exposure under the WVRA, as a result, only by quickly

adopting a new electoral system and obtaining court

approval. If the political subdivision does not obtain

11

such a court order, a prospective plaintiff may then

file an action. Id.

C. Proceedings below

Like many Washington localities, Franklin

County used an at-large voting system in general

elections to elect its county commissioners. App. 17.

Such at-large systems remain common across the

country. Carolyn Abott & Asya Magazinnik, At-Large

Elections and Minority Representation in Local

Government, 64 Am. J. Pol. Sci. 717, 717 (2020) (“As

of 2012, approximately 64% of U.S. cities relied

exclusively on at-large voting for their city council

elections.”). In April 2021, the League of United Latin

American Citizens and three voters challenged

Franklin County’s at-large system in Washington

Superior Court, arguing that such a system violated

the WVRA, because it “dilut[ed] the votes of Latino/a

voters.” App. 2, 117.

The challengers moved for partial summary

judgment. App. 18. Franklin County did not resist.

App. 18, 96-97. It stated that its review of the data

showed “the citizens of Franklin County exhibit

polarized voting” and the County could not “in good

faith oppose Plaintiffs’ current Motion for Summary

Judgment.” App. 95-96. Even though the County

explained “that the current election system was not

imposed to discriminate against any protected class”

and “has been used in Franklin County for decades,”

the County saw its only option as conceding liability

and switching to single-member districts. App. 96.

“[T]he patterns of polarized voting as recently as the

2020 general election make it clear that the current

12

system of electing county commissioners stands

contrary to the requirements of the WVRA.” App. 97.

That admission of liability, however, was “premised

on the assumption that the WVRA is valid and

constitutional.” App. 112.

Because of Franklin County’s capitulation,

Petitioner James Gimenez intervened to defend the

County’s existing system and to challenge the WVRA’s

constitutionality. App. 18-19. He moved to dismiss the

plaintiff’s claims and argued (among other things)

that the WVRA is unconstitutional because it requires

municipalities to implement electoral systems based

on race. App. 3, 19. The trial court denied Gimenez’s

motion, holding that “the WVRA does not violate the

Equal Protection Clause.” App. 70. The court

explained that it “finds no authority for the assertion

that the legislature’s decision not to include a

compactness requirement in the WVRA” could render

it unconstitutional. App. 71.

On May 9, 2022, the trial court approved a new

elections scheme for Franklin County. App. 63-66.

Beginning in 2024, “all future elections for the office

of Franklin County Commissioner shall be conducted

under a single-member district election system for

both primary and general elections.” App. 63. The

Court also approved an agreement for Franklin

County to pay the challengers $375,000 in attorney’s

fees and costs. App. 63-65. Petitioner, as the

remaining defendant, timely appealed to the

Washington Supreme Court. App. 3, 20. The

challengers “opposed Gimenez’s arguments on the

merits, but they agreed that direct review was

appropriate.” App. 20.

13

The Washington Supreme Court explained that

“[b]ecause the WVRA contemplates a broader range of

remedies than Section 2, a WVRA plaintiff can state a

redressable injury under a broader range of

circumstances than a Section 2 plaintiff. This is

reflected in the elements required to prove a WVRA

claim.” App. 13. Namely, “unlike Section 2, the WVRA

specifically rejects the first Gingles factor as a

threshold requirement: ‘The fact that members of a

protected class are not geographically compact or

concentrated to constitute a majority in a proposed or

existing district-based election district shall not

preclude a finding of a violation’” of the WVRA. App.

14.

Despite that guardrail, the Washington Supreme

Court concluded that the WVRA was constitutional.

App. 35-39. In the court’s view, it was constitutionally

permissible to require counties to replace at-large

elections with districts because of the existence of

racially polarized voting, no matter how residentially

segregated or how integrated those voters were. The

Court held “that Gimenez’s equal protection claim

triggers only rational basis review, which the WVRA

easily satisfies on its face.” App. 23; see also App. 35

(holding that the WVRA “triggers rational basis

review, not strict scrutiny”). It never contemplated

whether strict scrutiny ought to apply given the

WVRA’s per se prohibition on at-large elections for a

reason “unexplainable on grounds other than race.”

Arlington Heights, 429 U.S. at 266.

The Court then awarded plaintiffs fees against

Petitioner. App. 44, 46-57. “The WVRA allows, but

does not require, an award of ‘reasonable attorneys’

14

fees’” and costs to “‘the prevailing plaintiff or

plaintiffs.’” App. 40 (quoting Wash. Rev. Code

§29A.92.130(1)). “Here,” the court explained, “the

plaintiffs are the prevailing parties … and Gimenez’s

appeal forced the plaintiffs to spend an entire year

litigating this case after Franklin County settled their

WVRA claim.” App. 40-41. The court “therefore

exercise[d] [its] discretion to award plaintiffs’ request

for fees and costs attributable to their litigation

against Gimenez.” App. 41. The Court ordered

Petitioner to pay $67,055.86 to the challenges for

pursuing

his

claim

that

the

WVRA

is

unconstitutional. App. 57.

REASONS FOR GRANTING THE PETITION

Review is warranted because the Supreme Court

of Washington “decided an important question of

federal law that has not been, but should be, settled

by this Court.” Sup. Ct. R. 10(c). This case presents an

important question under the Equal Protection

Clause: whether a State’s use of racially polarized

voting to force localities to abandon at-large electoral

systems is subject to strict scrutiny. Applying only

rational-basis review, the Supreme Court of

Washington

disregarded

longstanding

equalprotection principles and this Court’s decisions

concerning race-based laws. The statute plainly

requires local governments to change election systems

based on race, without any further showing that atlarge systems are “responsible for minority voters’

inability to elect its candidates.” Gingles, 478 U.S. at

50. Perhaps the State has grounds for legislating with

such a broad brush, but it must be put to the test of

15

strict scrutiny. See SFFA, 600 U.S. at 206; Wis.

Legislature, 595 U.S. at 401 (per curiam).

I.

The constitutional issues presented in this

case are fundamental.

A. The Equal Protection Clause of the Fourteenth

Amendment provides that no State shall “deny to any

person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, §1. “The Framers

of the Fourteenth Amendment … desired to place

clear limits on the States’ use of race as a criterion for

legislative action, and to have the federal courts

enforce those limitations.” Shaw II, 517 U.S. at 908

(quoting Richmond v. J.A. Croson Co., 488 U.S. 469,

491 (1989). “At the heart of the Constitution’s

guarantee of equal protection lies the simple

command that the Government must treat citizens as

individuals, not as simply components of a racial,

religious, sexual or national class.” Miller, 515 U.S. at

911 (cleaned up).

The harms that occur from race-based laws are

well documented. “Race-based assignments ‘embody

stereotypes that treat individuals as the product of

their race, evaluating their thoughts and efforts—

their very worth as citizens—according to a criterion

barred to the Government by history and the

Constitution.’” Id. at 912. They “threaten[] to carry us

further from the goal of a political system in which

race no longer matters.” Shaw I, 509 U.S. at 657. And

even when used for remedial purposes, race-based

government action is subject to “the strictest of

judicial scrutiny.” Gratz v. Bollinger, 539 U.S. 244,

270 (2003) (citation omitted); see also Vera, 517 U.S.

16

at 978 (plurality opinion). That includes electoral

systems based on race, lest a legislator “believe[] his

primary obligation is to represent only the members

of a particular racial group.” Alabama Leg. Black

Caucus v. Alabama, 575 U.S. 254, 263 (2015) (cleaned

up); see, e.g., Miller, 515 U.S. at 917-20; Shaw I, 509

U.S. at 653-58; Shaw II, 517 U.S. at 906-18. The

Court’s decisions in this area “reflect the ‘core purpose’

of the Equal Protection Clause: ‘do[ing] away with all

governmentally imposed discrimination based on

race.’” SFFA, 600 U.S. at 206.

The Equal Protection Clause, of course, applies to

electoral systems at the local level too. See, e.g., Avery

v. Midland Cnty., 390 U.S. 474, 480 (1968) (“[I]t is now

beyond question that a State’s political subdivisions

must comply with the Fourteenth Amendment.”). And

“local assemblies of citizens constitute the strength of

free nations.” 1 Alexis de Tocqueville, Democracy in

America 60 (Henry Reeve trans., Colonial Press 1899).

“[W]ithout the spirit of municipal institutions, [a

nation] cannot have the spirit of liberty.” Id. Local

governments are responsible for law enforcement,

public education, libraries, sanitation, fire protection,

streets, local transportation, sewage, building codes,

zoning, parks and recreation, and countless other

basic functions of government. Municipalities, in sum,

tend to “all those personal interests and familiar

concerns to which the sensibility of individuals is [the

most] immediately awake.” The Federalist No. 17, at

107 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

Washington’s law implicates these constitutional

principles by requiring counties to replace at-large

elections with districts drawn, based on racially

17

polarized voting alone. After the WVRA’s passage in

2018, voters in one county may vote at-large while

voters in another county must be districted, and race

is the indispensable ingredient for deciding who votes

how.

Unlike the federal Voting Rights Act, the WVRA

turns on racially polarized voting. But racially

polarized voting is an observation about voters’

behavior, not discriminatory state action. Nw. Austin

Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 228

(2009) (Thomas, J., concurring in the judgment in part

and dissenting in part). It is the aggregated effect of

individual political choices. It reveals a correlation

between a voter’s race and his preferred candidates,

but it does not prove that race causes those

preferences. There are many reasons besides race that

might lead to racially polarized voting, such as

“education, economic status, or the community in

which they live.” Shaw I, 509 U.S. at 647. For that

reason, racially polarized voting alone is not sufficient

to mandate changes to election laws under the federal

Voting Rights Act. See Gingles, 478 U.S. at 50-51.

Something more is required—a federal plaintiff must

show the election law is “responsible for the minority

voters’ inability to elect its candidates.” Gingles, Id. at

50 & n.17 (emphasis added). The federal plaintiff does

not do so by pointing to racially polarized voting; she

does so by showing that “voters possess the potential

to elect representatives in the absence of the

challenged [law]” because they could form a majority

in a reasonably configured district. Id. at n.17

The Gingles 1 “compactness” requirement—

absent in Washington’s state-law analog—is a

18

constitutional guardrail, ensuring that Section 2 does

not become a rule requiring “maximum possible

voting strength” for one minority group over another.

Bartlett, 556 U.S. at 16 (plurality). It narrows the

scope of Section 2 and avoids judicial “inquiries based

on racial classifications and race-based predictions.”

Id. at 18. Without it, Section 2 would raise “serious

constitutional questions” by “unnecessarily infus[ing]

race into virtually every redistricting.” Id. at 21

(quotation marks omitted). That Gingles 1

requirement has long been the salve for the familiar

“concern that § 2 may impermissibly elevate race in

the allocation of political power within the States.”

Allen, 599 U.S. at 41.

But in Washington, by relying only on racially

polarized voting, the WVRA also assumes that race is

the only factor motivating a person’s vote and thus

reinforces pernicious stereotypes to dictate voting

systems that the government may adopt. See SFFA,

600 U.S. at 220. Forcing localities to abandon

longstanding

at-large

elections

for

small

municipalities or counties because votes are being cast

along racial lines “reinforces the perception that

members of the same racial group … think alike,

share the same political interests, and will prefer the

same candidates at the polls.” Shaw I, 509 U.S. at 647.

“If our society is to continue to progress as a

multiracial democracy,” however, “it must recognize

that the automatic invocation of race stereotypes

retards that progress and causes continued hurt and

injury.” Edmonson v. Leesville Concrete Co., Inc., 500

U.S. 614, 630-31 (1991). This is why strict scrutiny

applies to all race-based laws. See, e.g., Gratz, 539

19

U.S. at 270; Cooper v. Harris, 137 S. Ct. 1455, 1464

(2017).

The WVRA also has no “‘logical end point.’” SFFA,

600 U.S. at 221; see also Allen, 599 U.S. at 45

(Kavanaugh, J., concurring) (“[E]ven if Congress in

1982 could constitutionally authorize race-based

redistricting under § 2 for some period of time, the

authority to conduct race-based redistricting cannot

extend indefinitely into the future.”). As recently as

Allen, this Court explained that the federal Voting

Rights Act should have an endpoint as American

neighborhoods become more integrated. See Allen, 599

U.S. at 28-29. “[A]s residential segregation

decreases—as it has ‘sharply’ done since the 1970s—

satisfying … the compactness requirement” of Gingles

1 “‘becomes more difficult.’” Id. (quoting Crum, supra,

at 279 & n.105). But the WVRA has no similar

guardrail. Washington expressly eschews the

requirement that plaintiffs must prove a county’s atlarge elections are responsible for their inability to

elect candidates, see Gingles, 478 U.S. at 50 & nn.1617—meaning it will continue to require race-based

changes to elections so long as there is some

correlation between a person’s race and their

preferred candidates.

B. The Washington Supreme Court applied only

rational-basis review to that scheme. The absence of

any scrutiny is plainly wrong and should be

summarily reversed. See Wis. Legislature, 595 U.S. at

406 (per curiam). Because it refused to apply strict

scrutiny, the Court never asked whether there was “a

race-neutral alternative” to meet its goals, id.—for

instance, by asking why the State would not require

20

all jurisdictions, without regard to race, to move to

districts. Nor did the Court ask whether there was any

more “narrowly tailored” alternative, Vera, 517 U.S.

at 979 (plurality opinion)—for example, by requiring

only those jurisdictions with a sufficiently numerous

and compact minority population to move to districts,

analogous to the federal Voting Rights Act.

The Washington Supreme Court instead declared

that the law need only pass rational-basis review. But

the law is unquestionably race-based. The WVRA

commands Washington localities to abandon at-large

systems upon a showing of racially-polarized voting,

without any further requirement that the County is

responsible for any alleged dilution. See App. 76-78;

App. 88 (upon a finding of a violation of the WVRA,

“[t]he court may order appropriate remedies including

… the imposition of a district-based election system”);

App. 96-97 (admitting liability because there is

racially polarized voting in Franklin County). In other

words, the locality must change its electoral system

because the race of voters tends to correlate with the

selection of certain candidates—no matter what the

government’s role was in that. Gingles, 478 U.S. at 74.

For the WVRA to compel that race-based change to

Franklin County’s election system, the WVRA must

first withstand strict scrutiny, not mere rational-basis

review.

The Washington Supreme Court’s contrary view

demands this Court’s correction. The Court thought

strict scrutiny did not apply because “the WVRA on its

face does not classify voters on the basis of race.” App.

35. But that is only the beginning of the inquiry. The

Court never asked whether the WVRA’s command

21

that Franklin County change its electoral system is a

command “‘unexplainable on grounds other than

race.’” Shaw I, 509 U.S. at 643 (quoting Arlington

Heights, 429 U.S. at 266). It is. Under the statutory

scheme, such “racially polarized voting” is the reason

why a county like Franklin may be forced to abandon

its at-large system, while other counties without

racial diversity or without racially polarized voting

can keep at-large systems. Just as strict scrutiny

applies “if race for its own sake is the overriding

reason for choosing one [redistricting] map over

others,” Bethune-Hill v. Va. State Bd. of Elections, 580

U.S. 178, 190 (2017), strict scrutiny applies here

where race is the overriding reason for requiring one

electoral scheme over others.

There should be no debate that the WVRA

requires Washington localities to change election

systems for reasons explainable by race alone. The

Washington State Legislature jettisoned any

analogous Gingles 1 requirement—that minority

voters first show that they would be “‘sufficiently large

and geographically compact to constitute a majority in

a reasonably configured district,’” Allen, 599 U.S. at

18 (cleaned up)—precisely so that the reach of its state

law would extend beyond the reach of the federal

Voting Rights Act. App. 36; supra, at pp. 8-10. The

WVRA was intentionally designed to make it easier to

successfully

challenge

at-large

districts

by

eliminating the first Gingles factor. Id.; App. 77 (“The

fact that members of a protected class are not

geographically compact or concentrated to constitute

a majority in a proposed or existing district-based

election district shall not preclude a finding of a

22

violation.”). The WVRA thus overrides the “the

balance that is found in the federal law,” by allowing

a plaintiff to take down a county’s election system for

race-based reasons without any of the guardrails in

place for federal Voting Rights Act claims. H.R., 3d

reading analysis of H.R. Bill No. 1800 (2017-2018)

(remarks of Rep. Larry Haler at 1:01:43),

bit.ly/3Stqxrn.

Race is the raison d’etre for requiring Franklin

County, and any other racially diverse jurisdiction, to

replace at-large elections with districts. Washington

has not just relaxed the Gingles 1 requirement. It has

rid its state-law version of the Voting Rights Act of the

requirement altogether. But if Gingles 1 is critical for

“avoiding serious constitutional concerns under the

Equal Protection Clause” for the federal Voting Rights

Act, Bartlett, 556 U.S. at 21 (plurality), it is surely all

the more critical for a state-law version. That state

law is entitled to none of the deference afforded to

congressional legislation, including the federal Voting

Rights Act, enacted to enforce the Fourteenth and

Fifteenth Amendments. Compare Strauder v. West

Virginia, 100 U.S. 303, 306 (1879) (“Fourteenth

Amendment was framed and adopted” to preclude

“State laws [that] might be enacted or enforced to

perpetuate [racial discrimination],” with Allen, 599

U.S. at 41, and City of Boerne v. Flores, 521 U.S. 507,

536 (1997); Vera, 517 U.S. at 990-92 (O’Connor, J.,

concurring). Race is the trigger for the WVRA’s

mandatory remedies. The statute was expressly

enacted to override federal jurisprudence that

carefully limits the role of race in designing electoral

systems. It must be subject to strict scrutiny.

23

II. The WVRA and similar statutes in other

states are causing serious constitutional

harm.

Franklin County’s abandonment of its at-large

system in the face of allegations of racially polarized

voting is not an isolated event. The WVRA targets all

at-large election systems. And when Washington

enacted the WVRA, some praised the law as the

panacea for getting rid of at-large district elections.

See Shannon Cheng, Democracy Just Got Stronger in

Washington State, ACLU (Mar. 20, 2018),

perma.cc/85KC-F8KP.

The law is having its intended effect. The City of

Wenatchee was the first municipality to alter its

election system under the WVRA, and Wenatchee

Mayor Frank Kuntz “promoted the measure to protect

the city from voting-rights litigation.” Jefferson

Robbins, Primary Elections Roundup: What’s on your

Ballot?, SourceOne (July 22, 2019), perma.cc/NVN24TJT; Steven Ellis, Wenatchee Is First City to Use New

Voting Rights Act to Ensure Better Representation,

Wash. State Wire (Aug. 10, 2018), perma.cc/R5CWB22L. After a 6-1 council vote on the measure,

Wenatchee moved from an at-large system to a

primarily district-based one. Jefferson Robbins, In 61 Vote, Wenatchee Chooses to Elect Council Members

by

District,

SourceOne

(Aug.

10,

2018),

perma.cc/SL97-ZQU5. Notably, the “sole vote against

the measure came from the sole Hispanic

councilmember, Ruth Esparza—although the district

system was adopted in part to ensure more Hispanic

representation in city government.” Id.

24

Yakima County faced the first WVRA challenge

that proceeded to litigation. CLC Wins State Voting

Rights Act Case in Historic Settlement, Campaign

Legal Ctr. (Aug. 31, 2021), perma.cc/R23D-VQNN. It

ultimately settled the case by agreeing to move from

an at-large system to a single-member district system.

Id. Additionally, the court ordered Yakima County to

pay nearly $272,000 in attorney’s fees. Phil Ferolito,

Yakima County Ordered to Pay Nearly $272,000 in

Voting Rights Case, Lower than $2M Requested, The

Spokesman-Review (Dec. 28, 2021), perma.cc/Z7WHU3TM. Thirty-one other Washington counties use a

system similar to Yakima County’s, which means that

they are also at risk of WVRA challenges. Rebecca

White, After Settlement in Yakima, Voting Rights

Advocates Put County Governments on Notice,

Spokane

Public

Radio

(Sept.

3,

2021),

perma.cc/M5M4-TR9V.

Larger Washington counties “have voluntarily

changed their charters to district elections, including

King, Clark and Pierce Counties.” Id. Yet, “[m]ost

small counties, including several in central and

northeast Washington which have high percentages of

Latino and Indigenous residents,” continue to use atlarge districts. Id. One of those counties recently

received a WVRA complaint letter. Emily McCarty,

Washington’s Latinx and Native Voters Are Fighting

for Their Votes to Matter, Crosscut (Mar. 2, 2020),

perma.cc/PS23-LAFH; Justus Caudell, CBC Meets

with Ferry County Commissioners on Election

Complaint,

Tribal

Trib.

(Jan.

24,

2020),

perma.cc/ZF5D-JW4N. More Washington local

25

governments will face race-focused challenges under

the WVRA if this Court does not intervene.

This problem is not limited to Washington. Many

political systems in states with similar laws are

abandoning the at-large system in the face of

allegations of racially polarized voting. At least 500

political subdivisions have changed to by-district

elections because of the parallel California Voting

Rights Act, on which the WVRA was modeled. See

supra, at p. 9, n1. This includes 300 school districts,

170 cities, and 50 other special districts. See Charlie

Mounts, California’s Voting Rights Act Continues to

Force More Local Governments into By-District

Elections, Civic Bus. J. (Sept. 19, 2022),

perma.cc/CK4H-26L8.

That so many municipalities are abandoning their

at-large districts is not surprising. There is a “small

cottage industry of lawyers and advocacy groups”

dedicated to “suing jurisdictions under the [CVRA].”

Thy Vo, The Accidental Advocate, Voice of OC (Dec. 8,

2020), perma.cc/Y39Q-ZEQ4. They are funded by the

statutory fee-shifting provisions. And cities often

settle because “fighting [the] lawsuit would be

outrageously expensive with no possible successful

conclusion.” Santa Clarita Settles California Voting

Rights Act Lawsuit, Pub. CEO (Apr. 13, 2022),

perma.cc/Z5N7-FGZK. Those that try to defend

against these lawsuits have been forced to pay

staggering attorney’s fees, including, among others,

California’s Palmdale ($4.7 million), Santa Clara

($4.55 million), Modesto ($3 million), Anaheim ($1.2

million), Whittier (more than $1 million), and Santa

26

Barbara ($600,000). 2 Countless municipalities in

Washington will continue to be forced to abandon

their at-large electoral systems because of these racebased mandates absent the Court’s intervention.

Nor is California the only other state that has

adopted similar statutes requiring redistricting

because racially polarized voting exists. In 2022, for

example, the New York Legislature passed John R.

Lewis Voting Rights Act of New York (NYVRA), which

Governor Kathy Hochul described as the “most

expansive state level voting rights act in the country.”

Office of Gov. Hochul, Governor Hochul Signs

Legislative Package to Strengthen Democracy and

Protect

Voting

Rights,

(Sept.

20,

2023),

perma.cc/NK9F-CW2T.

Like

Washington

and

California, the NYVRA eliminates the compactness

requirement to show a dilution violation. See N.Y.

Elec. Law §17-206. Doing so was “an attempt for [the

legislature] to step up in the absence of federal action.”

New York Senate Standing Comm. on Elections

(statement of Sen. Zellnor Myrie at 4:30-6:51),

perma.cc/V4HZ-F7DW. And because “[m]ost of the

933 towns throughout New York State” as well as

“[m]ost villages and school districts” “utilize an atlarge system rather than a ward system,” those

entities will also be subject to lawsuits. Jared A.

2 See Douglas Johnson, The California Voting Rights Act and

Districting: The Demographer’s Perspective, Nat’l Demographics

Corp. 5 (May 9, 2016), perma.cc/YX68-8WL3; City Council Staff

Report, City of Citrus Heights 1-4 (Jan. 10, 2019),

bit.ly/2UjaUDa; Katie Lauer, Santa Clara Settles $4.5 Million

Lawsuit over Districted Elections, San Jose Inside (Apr. 21,

2021), perma.cc/EPA3-7RJW.

27

Kasschau, New York Communities with At-Large

Election Methods Facing Challenges Under Voting

Rights Act, Harris Beech PLLC (Aug. 28, 2023),

perma.cc/Q5LW-3P48.

Oregon and Virginia likewise have passed the

same basic law. Or. Rev. Stat. §255.411; Va. Code

§24.2-130. And other states like Michigan, New

Jersey, Maryland, and Illinois are considering similar

laws. That states are moving toward more race-based

decision-making today is particularly troubling. “A

core purpose of the Fourteenth Amendment was to do

away with all governmentally imposed discrimination

based on race.” Palmore v. Sidoti, 466 U.S. 429, 432

(1984). And “all governmental use of race must have a

logical end point.” Grutter v. Bollinger, 539 U.S. 306,

342 (2003). Yet Washington is ensuring that the use

of race in choosing between electoral systems will

increase at a time when it should be doing the

opposite. If under Section 2, “the authority to conduct

race-based redistricting cannot extend indefinitely

into the future,” Allen, 599 U.S. at 45 (Kavanaugh, J.,

concurring), the same is true for these proliferating

state-law analogs. They must be put to the test of

strict scrutiny.

III. This case is an ideal vehicle for summarily

reversing or resolving the question

presented on the merits.

This case presents an ideal vehicle for the Court

to address the question presented, either in a

summary reversal or by granting plenary review on

the merits. The constitutional issue is squarely

presented and ready for review. The Washington

28

Supreme Court’s opinion was the first, and now likely

the last, decision opining on the constitutionality of

the State’s recently enacted WVRA. The Court

definitively addressed tiers of scrutiny: only rationalbasis review applies. Absent this Court’s intervention,

that will be the last word on the federal

constitutionality of the state law affecting voters

statewide and precipitating a trend in other large

states. Granting the petition will allow the Court to

address the critically important threshold question of

whether WVRA should be subject instead to strict

scrutiny.

On this point, Respondents may latch on to the

Washington Supreme Court’s discussion of as-applied

versus facial challenges. “Without a doubt,” that court

explained, “the WVRA could be applied in an

unconstitutional manner, and it is subject to asapplied challenges.” App. 37. Respondents may argue

that means the Court should wait for an “as-applied”

case, as though there would be another case to reach

the Washington Supreme Court in a posture different

from that presented here. There will not be, nor is

there any basis for waiting for the Washington

Supreme Court to misapply this Court’s Equal

Protection Clause precedents again. This case is an

as-applied challenge in any event; it is the WVRA as

applied to Franklin County’s prior, at-large voting

scheme. It just so happens that the WVRA operates

the same as to all other at-large districts with racially

polarized voting. See supra, at pp. 22-24. Whatever

the label, the WVRA’s vote-dilution rules are subject

to strict scrutiny. The Washington Supreme Court

said it wasn’t. And only this Court can fix that error.

29

Finally, there is no reason to wait for further

developments in other lower courts. California courts

have made clear that future challenges to its

analogous California Voting Rights Act are also not

subject to strict scrutiny. Sanchez v. City of Modesto,

51 Cal. Rptr. 3d 821, 842 (Cal. Ct. App. 2006). So has

the Ninth Circuit, which also held that the California

Voting Rights Act “do[es] not trigger strict scrutiny.”

Higginson v. Becerra, 786 F. App’x 705, 707 (9th Cir.

2019). That court “failed to grapple with the questions

of exceptional importance raised” there by issuing an

unpublished decision. Ricci v. DeStefano, 530 F.3d 88,

101 (2d Cir. 2008) (Cabranes, J., dissenting from

denial of rehearing en banc). And this Court then

denied review of that unpublished decision. Now

Higginson’s reach has compounded: the Washington

Supreme Court treated the denial as essentially

binding in part because “the United States Supreme

Court denied certiorari.” App. 38. That denial, of

course, is of no consequence. See Evans v. Stephens,

544 U.S. 942, 942 & n.1 (2005) (Stevens, J., respecting

the denial of certiorari) (“a denial of certiorari is not a

ruling on the merits of any issue raised by the

petition”) (collecting cases); Darr v. Burford, 339 U.S.

200, 227 (1950) (Frankfurter, J., dissenting) (“Nothing

is more basic to the functioning of this Court than an

understanding that denial of certiorari is occasioned

by a variety of reasons which precludes the

implication that were the case here the merits would

go against the petitioner.”). Now with a published

decision from Washington’s highest court on the

constitutionality of its state law, the appropriate time

for this Court’s review is now.

30

Deferring review also exacerbates the financial

strain that challenging these laws imposes. Feeshifting provisions create a powerful incentive for

municipalities to surrender instead of appealing their

constitutional defenses to this Court. See supra at p.

25. The Supreme Court of Washington awarded

plaintiffs $67,055 in fees against Petitioner—a

Hispanic resident and voter in Franklin County—for

having the audacity to “force[] the plaintiffs to spend

an entire year litigating this case” so he could try to

vindicate the Equal Protection Clause’s promise of

colorblindness. App. 41. Few others will bear that

risk.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

Joel B. Ard

ARD LAW GROUP PLLC

P.O. Box 11633

Bainbridge Island, WA 98110

(206) 701-9243

Bryan Weir

Counsel of Record

Taylor A.R. Meehan

Tiffany H. Bates

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

bryan@consovoymccarthy.com

November 7, 2023

Counsel for Petitioner