Respondents Brief — James Gimenez, Petitioner v. Franklin County, Washington, et al.

Supreme Court briefFeb 28, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-500

In the

Supreme Court of the United States

JAMES GIMENEZ,

Petitioner,

FRANKLIN COUNTY, WASHINGTON, ET AL.,

Respondents.

On Petition for Writ of Certiorari to

the Supreme Court of Washington

BRIEF IN OPPOSITION

MARTIN J. SIEGEL, Director

CIANNE E. JIMENEZ

FAATIMA OVAIS

DAVID J. SEGAL

UNIVERSITY OF HOUSTON LAW

CENTER

APPELLATE CIVIL RIGHTS CLINIC

4170 Martin Luther King Blvd.

Houston, Texas 77204

(713) 743-2094

CHAD W. DUNN

Counsel of Record

SONNI WAKNIN

BERNADETTE REYES

UCLA VOTING RIGHTS PROJECT

3250 Public Affairs Building

Los Angeles, CA 90065

(310) 206-8431

chad@uclavrp.org

EDWARDO MORFIN

MORFIN LAW FIRM PLLC

7325 West Deschutes Avenue

Suite A

Kennewick, WA 99336-6705

(509) 380-9999

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTIONS PRESENTED

1. Whether the Court should entertain a facial

challenge to the Washington Voting Rights Act

even though that statute has several

constitutional applications not contested by

Petitioner.

2. Whether Petitioner has standing to complain of

racial gerrymandering though he doesn’t allege

he was placed in a specific, racially determined

district and hasn’t suffered any other injury.

3. Whether the Washington Voting Rights Act

violates the Equal Protection Clause where,

contrary to Petitioner’s main contention, the

law doesn’t force jurisdictions to abandon atlarge systems simply because of racially

polarized voting, but also requires a showing of

vote dilution and allows for other remedies that

would permit continued at-large voting.

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

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

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

STATEMENT OF THE CASE ....................................3

A. Statutory History .........................................3

B. The History of Vote Dilution and Racial

Tension in Franklin County ........................5

C. Procedural History .......................................7

ARGUMENT ..............................................................10

Gimenez’s Petition Offers a Poor Vehicle to

Review the WVRA...........................................10

A. As a Facial Challenge to the WVRA,

Gimenez’s Case is a Weak Candidate for

Review ........................................................11

B. Gimenez Lacks Standing ..........................18

C. There is No Circuit Split or Other

Compelling Reason to Grant Gimenez’s

Petition.......................................................25

II.

The Washington Supreme Court Correctly

Decided that the WVRA is Constitutional in

Any Case .........................................................27

CONCLUSION ..........................................................33

iii

TABLE OF AUTHORITIES

CASES

Ala. Legis. Black Caucus v. Ala.,

575 U.S. 254 (2015) .........................................21, 22

Allen v. Milligan,

599 U.S. 1 (2023) ....................................... 26, 30, 33

Allen v. Wright,

468 U.S. 737 (1984) ................................... 19, 22, 23

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ...........................................14

Ashwander v. TVA,

297 U.S. 288 (1936) ...............................................14

Ayotte v. Planned Parenthood of New England,

546 U.S. 320 (2006) ...............................................14

Baker v. Carr,

369 U.S. 186 (1962) ...............................................19

Bartlett v. Strickland,

556 U.S. 1 (2009) ...................................................31

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986) .........................................19, 24

Biden v. Neb.,

143 S. Ct. 2355 (2023) ...........................................18

Branch v. Smith,

538 U.S. 254 (2003) ...............................................15

Bush v. Vera,

517 U.S. 952 (1996) ...............................................33

Davis v. F.E.C.,

554 U.S. 724 (2008) ...............................................18

Dept. of Educ. v. Brown,

600 U.S. 551 (2023) ...............................................18

Gill v. Whitford,

585 U.S. 48 (2018) ......................... 19, 21, 22, 23, 24

Glatt v. City of Pasco,

No. 4:16-CV-05108-LRS

(E.D. Wash. Jan 27, 2017) ......................................4

Growe v. Emison,

507 U.S. 25 (1993) .................................................26

Heckler v. Mathews,

465 U.S. 728 (1984) ...............................................20

Higginson v. Becerra,

786 Fed. Appx 705, 2019 WL 6525204 (9th Cir.

2019)(mem.) ...........................................................25

Higginson v. Becerra,

140 S. Ct. 2807 (2020) ...........................................25

John Doe No. 1 v. Reed,

561 U.S. 186 (2010) ...............................................11

LULAC v. Perry,

548 U.S. 399 (2006) ...............................................32

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ...............................................18

Montes v. City of Yakima,

40 F. Supp. 3d 1377 (E.D. Wash. 2014) ..................4

Moore v. Beaufort Cnty.,

936 F.2d 159 (4th Cir. 1991) .................................15

N.C. v. Covington,

585 U.S. 969 (2018) ...............................................21

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701 (2007).....................................32

Powers v. Ohio,

499 U.S. 400 (1991) ...............................................24

Sanchez v. City of Modesto,

145 Cal. App. 4th 660 (2007) ................................25

Schuette v. Coal. to Def. Affirmative Action,

572 U.S. 291 (2014) ...............................................33

Shaw v. Hunt,

517 U.S. 899 (1996) ...............................................21

Shaw v. Reno,

509 U.S. 630 (1993) .........................................20, 31

Spencer v. Kemna,

523 U.S. 1 (1998) ...................................................19

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .........................................18, 19

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................... 26, 29, 30, 31

United States v. Euclid City Sch. Bd.,

632 F. Supp. 2d 740 (N.D. Ohio 2009) ..................15

United States v. Hays,

515 U.S. 737 (1995) ............................. 19, 20, 21, 23

United States v. Marengo Cnty. Comm’n,

731 F.2d 1546 (11th Cir. 1984) .............................15

United States v. Raines,

362 U.S. 17 (1960) .................................................14

United States v. Salerno,

481 U.S. 739 (1987) .........................................13, 14

United States v. Town of Lake Park,

No. 09-80507, 2009 WL 10727593 (S.D. Fla. Oct.

26, 2009) ................................................................15

United States v. Village of Port Chester,

704 F. Supp. 2d 411 (S.D.N.Y. 2010) ....................15

Voinovich v. Quilter,

507 U.S. 146 (1993) ................................... 13, 31, 32

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008) .........................................14, 17

Wis. Leg. v. Wis. Elect. Comm’n,

595 U.S. 398 (2022) ...............................................31

CONSTITION AND STATUTES

N.M. Stat. § 3-12-1.1 (2013) ......................................17

Wash. Rev. Code § 29A.92.005 ....................................4

Wash. Rev. Code § 29A.92.010 ..................................32

Wash. Rev. Code § 29A.92.020 ..................................16

Wash. Rev. Code § 29A.92.030 ........... 1, 3-5, 16, 28-30

Wash. Rev. Code § 29A.92.040 ....................................4

Wash. Rev. Code § 29A.92.050 ....................................4

Wash. Rev. Code § 29A.92.080 ....................................1

Wash. Rev. Code § 29A.92.110 ..........................1, 5, 15

RULES

Wash Sup. Ct. Civ. R. 24(a)(2) ..................................23

vii

OTHER AUTHORITIES

Johanna Bejarano, Franklin County Latino

Population

Wants

Redistricting

Information in Spanish, NWPB NEWS (Oct. 15,

2021),

https://www.nwpb.org/2021/10/15/franklincounty-latino-population-wants-moreredistricting-information-in-spanish/ .....................7

Kate Brown, Only Part of the Story Is Being Told

About the Police Shooting in Pasco, TIME (Mar.

3, 2015),

https://time.com/3729247/police-shootingpasco-history/ ...........................................................6

Jake Dorsey, Franklin County Coroner Posted a

‘White Power’ Meme. Some Say His Apology

Isn’t Enough, YAKIMA HERALD (Mar. 15, 2018),

https://www.yakimaherald.com/news/local/fran

klin-county-coroner-posted-a-white-powermeme-some-say-his-apology-isn-tenough/article_3b232aa8-2871-11e8-8f6b03319b4b7e81.html .................................................6

H.R. Doc. No. 107443, 64th Leg., Reg Sess. (Wash.

2015),

https://app.leg.wa.gov/committeeschedules/Ho

me/Document/107443 ............................................25

INTRODUCTION

In 2018, Washington exercised its sovereign

authority over its political subdivisions to enact the

Washington Voting Rights Act (WVRA). Modeled on

the federal Voting Rights Act and other state laws, the

WVRA allows local governments to modify their

election systems. Voters suffering from vote dilution

based on race and other factors can also seek relief in

court. Wash. Rev. Code § 29A.92.030; 29A.92.080.

This relief can take various forms, including singlemember districts, ranked choice voting, and

cumulative voting systems. See Wash. Rev. Code

§ 29A.92.110.

This case arose when Latino voters challenged

the election scheme for Franklin County, Washington,

under the WVRA because the at-large system used to

elect county commissioners diluted the votes of

Latinos and prevented them from electing candidates

of their choice. App. 116-139. The Latino voters and

Franklin County reached a settlement providing for

voting in districts rather than at-large, with the

districts drawn by the county’s own expert. Before the

trial court approved the settlement, however,

Petitioner James Gimenez, an isolated voter in

Franklin County, intervened to challenge the

constitutionality of the WVRA on its face. App. 2.

Gimenez made no complaints at all about the

actual district lines drawn by the county’s expert and

ultimately ordered by the court, nor does the record

disclose which district he will vote in. According to

Gimenez, the WVRA facially violates the Fourteenth

Amendment’s Equal Protection Clause because it

purportedly requires all Washington counties to

abandon their at-large systems on a showing of

racially polarized voting and nothing else. Pet. 3, 20.

Both the trial court and the Washington Supreme

Court rejected this argument. They held that Gimenez

was misrepresenting the statute; that vote dilution,

not just polarized voting, must also be shown before a

remedy is required; and that the law easily survives a

facial challenge because it has several plainly

constitutional applications not disputed by Gimenez.

App. 3-4, 22, 69-71.

Gimenez now reprises his complaint about the

WVRA in this Court. His petition suffers from fatal

threshold defects, however. First, he has repeatedly

asserted that his only challenge to the WVRA is a

facial one. See e.g., App. 2. Yet he doesn’t dispute that

the WVRA has several constitutional applications. For

example, he makes no challenge to the

constitutionality of non-districting remedies a court

could impose under the WVRA to address vote dilution

or abridgement. Because the WVRA is not

unconstitutional on its face, the Court will never reach

his specific complaint about newly fashioned districts

and should therefore deny the petition.

Second, Gimenez lacks standing to challenge

the WVRA. This Court has long held that only voters

actually assigned to racially gerrymandered districts

can challenge them, but there is no indication in the

record that this is true of Gimenez. In fact, he doesn’t

challenge the specific line-drawing performed by the

county or the trial court at all. Gimenez therefore does

not and cannot make any claim of particularized

injury caused by the WVRA that is not equally

applicable to any and all citizens of Franklin County

or the State of Washington.

Even aside from these threshold hurdles,

Gimenez’s actual complaint about the WVRA presents

no serious constitutional question. Gimenez claims

that districting can be ordered under the statute based

on racially polarized voting alone, but as the courts

below recognized, that simply isn’t true. App. 32. A

voter must also show vote dilution, which will not

automatically appear in every case of polarized voting.

Id. Gimenez also claims Washington has removed the

required constitutional “guardrail” of requiring

plaintiffs in vote dilution cases to show that remedial

voting districts would be compact. Actually, though,

Washington courts may consider compactness before

ordering an at-large jurisdiction to adopt districts.

Wash. Rev. Code § 29A.92.030. Gimenez identifies no

case of a court imposing a noncompact district,

including this one. In short, the WVRA easily meets

constitutional standards. If accepted, Gimenez’s

argument would undermine not only Washington’s

but all states’ sovereign right to govern their own

elections. This Court should reject it.

STATEMENT OF THE CASE

A. Statutory History

In 2018, the Washington Legislature enacted

the WVRA to “protect the rights of Washington voters

in local elections.” App. 5. Washington’s legislature

found that “local government subdivisions are often

prohibited from addressing” the recurring problem of

vote dilution “because of Washington laws that

narrowly prescribe the methods by which they may

elect members of their legislative bodies.” Wash. Rev.

Code § 29A.92.005. The legislature enacted the WVRA

“so that minority groups have an equal opportunity to

elect candidates of their choice or influence the

outcome of an election.” Id.

Before the legislature passed the WVRA, local

jurisdictions in Washington couldn’t voluntarily

change their electoral systems. As a result, two

jurisdictions were found liable for breaching Section 2

of the federal Voting Rights Act. Montes v. City of

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

v. City of Pasco, No. 4:16-CV-05108-LRS (E.D. Wash.

Jan 27, 2017). Before being found liable, the City of

Pasco – the county seat of Franklin County – actively

lobbied the Washington Legislature to permit districtbased voting in order to rectify its existing vote

dilution. Glatt, No. 4:16-CV-05108-LRS at ** 9-10.

The WVRA has three main provisions. First,

the law creates an avenue for local jurisdictions to

voluntarily change their electoral systems. This

change can, but is not required to, include districtbased election systems. If a jurisdiction decides to

implement district-based elections, it must follow

Washington law requiring reasonably equal

population and compact districts. Wash. Rev. Code

§ 29A.92.040(2) and 29A.92.050.

Second, the WVRA permits a voter to challenge

an electoral system for diluting the votes of a

particular minority. Wash. Rev. Code § 29A.92.030. As

under the federal Voting Rights Act, the plaintiff must

show that the applicable minority group “is politically

cohesive and that the majority group votes sufficiently

as a block to enable it usually to defeat the minority

preferred candidate.” App. 13-14. (cleaned up,

citations omitted). A voter seeking relief under the

WVRA must also show that “members of a protected

class or classes do not have an equal opportunity to

elect a candidate of their choice as a result of the

dilution or abridgement of the rights of members of

that protected class or classes.” App. 14; Wash. Rev.

Code § 29A.92.030(1)(b).

Third, the WVRA provides for a variety of

remedies, including implementation of a different

electoral system when necessary. Wash. Rev. Code

§ 29A.92.110. Because a court-ordered remedy can

include several different types of electoral systems,

some of which preserve at-large voting, courts need

not consider the compactness of newly drawn districts

unless and until the trial court orders them in the first

place. App. 11-14.

B. The History of Vote Dilution and Racial

Tension in Franklin County

Before enactment of the WVRA, Franklin

County elected its three county commissioners

through an at-large general election. 1 In May 2022,

the commissioners voted unanimously to implement

district-based elections. They decided to use the

district map drawn by the county’s own expert

demographer after input from the commission and the

community. Voters in Franklin County will begin to

1 Unlike the general elections, primary elections for the county

commission occur by district, and candidates are selected by

voters in each district. App. 120.

elect commissioners through district-based elections

starting in 2024.

Latinos constituted a majority of the total

population of Franklin County and one-third of the

voting age population by 2021, yet no Latino has ever

been elected to serve on the commission. That is due

in part to the county’s history of racial tension

between white and Latino residents. Although

Latinos, mostly Mexican Americans, were hired in the

1940s to work in Benton County, racial housing

covenants prevented them from residing there. 2

Instead, Latinos were forced to live fifty miles away in

Franklin County. In turn, Franklin County

segregated Latinos into East Pasco, an area without

basic sanitation and services. 3

As the Latino population grew, discrimination

against them persisted. Latinos face disparities in

almost all aspects of modern life including housing,

education, and income. App. 132-135. Franklin

County officials occasionally contributed to the rise of

racial tensions. For example, the Franklin County

Coroner shared a social media post promoting white

supremacy. 4 Most recently, many Latino residents

2 See Kate Brown, Only Part of the Story Is Being Told About the

(Mar.

Police

Shooting

Pasco,

TIME

https://time.com/3729247/police-shooting-pasco-history/.

2015),

3 Id.

4 Jake Dorsey, Franklin County Coroner Posted a ‘White Power’

Meme. Some Say His Apology Isn’t Enough, YAKIMA HERALD

(Mar. 15, 2018),

https://www.yakimaherald.com/news/local/franklin-countycoroner-posted-a-white-power-meme-some-say-his-apology-isn-tenough/article_3b232aa8-2871-11e8-8f6b-03319b4b7e81.html.

were unable to participate in the county’s redistricting

process because public meetings and materials were

not available in Spanish, despite the county’s Latino

majority. 5

C. Procedural History

Respondents, three Latino voters in Franklin

County, filed this lawsuit in Washington state court.

They alleged that at-large election of county

commissioners had the effect of diluting the votes of

Latino citizens and thereby preventing them from

electing their candidates of choice. App. 119-139.

After the Latino voters moved for summary

judgment, the county responded by conceding that it

could not “in good faith oppose” the motion because it

was “factually supported.” App. 96. It also noted that

one commissioner, Clint Didier, intended to intervene

in the suit in order to challenge the “validity and/or

constitutionality of the WVRA.” App. 112.

Although the trial court granted summary

judgment for the Latino voters, Franklin County then

claimed that its counsel had agreed to entry of

judgment without proper consent. CP 341. 6 The order

was therefore vacated. CP 349-50, 383. At that point,

Commissioner Didier sought to intervene but reversed

himself after the Latino voters objected. CP 297-302.

5 Johanna Bejarano, Franklin County Latino Population Wants

More Redistricting Information in Spanish, NWPB NEWS (Oct.

15, 2021), https://www.nwpb.org/2021/10/15/franklin-countylatino-population-wants-more-redistricting-information-inspanish/.

6 “CP” refers to the Clerk’s Papers, the full trial court record filed

in the Washington Supreme Court.

Instead, Gimenez moved to intervene and appended a

proposed pleading he styled as “Answer, Affirmative

Defenses

and

Counterclaim

IntervenorDefendants.” CP 260-266, CP 1317-1327. In this

proposed answer, which was never filed as a separate

document, Gimenez sought a “declaration that

the…WVRA is unconstitutional under both the state

and federal constitutions.” CP 1324. He claimed harm

“inasmuch as he will not be able to vote in a

commissioner district whose boundaries were drawn

based on race-neutral criteria,” and “he will not be

able to vote for commissioner to the county

commission on a county-wide basis.” CP 1325. The

court granted Gimenez’s motion to intervene, and he

filed a motion for judgment on the pleadings facially

challenging the constitutionality of the WVRA, which

was denied. App 68-71.

After further litigation, the county and the

Latino voters agreed to a settlement that provides for

general elections for commissioners to occur in singlemember districts drawn by the county’s own expert,

Dr. Peter Morrison. CP 1292-93. 7 The commissioners,

including Didier, approved the settlement, which the

trial court entered as an order. App. 61-67.

Gimenez, however, appealed the settlement to

the Washington Supreme Court, modeling his

argument at times verbatim on a prior unsuccessful

challenge to the California Voting Rights Act. App. 21,

Peter Morrison, PhD, retained by the county as an expert

consultant, has evaluated redistricting plans for over 50

jurisdictions and testified as an expert in at least 16 cases. CP

218–244.

26, 37. For example, in his reply, Gimenez emphasized

that he was bringing a facial challenge:

Even if [the Latino voters’] argument

could plausibly remove this case from the

scope of a facial challenge, it would only

be relevant if Mr. Gimenez urged that

the WVRA is unconstitutional because

of the remedy Plaintiffs sought and

settled on. He did not.

Reply Brief of Appellant, at 8, Portugal v. Franklin

County, 1 Wash.3d 629 (2023), (No. 100999-2), 2022

WL 18941638. (emphasis added and in original).

The Washington Supreme Court unanimously

upheld the WVRA, stating that the law “on its face

does not classify voters on the basis of race, nor does it

deprive anyone of the fundamental right to vote.” App.

35. The Court highlighted Gimenez’s “incorrect”

reading of the statute, noting that the WVRA

mandates “equal voting opportunities for members of

every race, color, and language minority.” App. 3, 35.

Thus, there was no “favor” granted to some racial

groups or penalty to others. App. 23. Rather, the Court

held that the WVRA, akin to other statutes barring

racial discrimination or “mandating equal voting

rights,” is subject to rational basis review, which it

easily satisfies. Id.

The Washington Supreme Court also rejected

Gimenez’s claim that the WVRA violates the Equal

Protection Clause by eliminating the compactness

requirement, a threshold element in claims under

Section 2 of the federal Voting Rights Act, as a

component of liability in vote dilution cases under the

Washington law. The Court noted that Gimenez failed

to “cite a single case – from any court – that actually

says what he claims.” App. 36. The Court also

emphasized that Gimenez brought a facial challenge

to the WVRA, which required him to prove the law “is

unconstitutional in all of its potential applications.”

App. 38-39. Gimenez admitted he could not meet that

burden. Id.

ARGUMENT

Gimenez’s Petition Offers a Poor Vehicle

to Review the WVRA

Two threshold defects in Gimenez’s petition will

preclude the Court from reaching the merits of his

constitutional attack on the WVRA. First, the only

type of challenge Gimenez preserved below is facial,

yet he doesn’t dispute that the WVRA has several

constitutional applications. As a result, the Court will

have no basis to consider his specific complaint about

newly created districts. Second, Gimenez lacks

standing. He does not, and cannot, claim to have been

sorted into a specific, racially gerrymandered district

or personally injured in any other way not applicable

to all citizens of Franklin County or Washington State.

Likewise, Gimenez has not been ordered to do or

refrain from doing something. He therefore lacks

standing. Nor is there a circuit split or any other

compelling reason to grant Gimenez’s petition. The

Court should therefore deny it.

A. As a Facial Challenge to the WVRA,

Gimenez’s Case is a Weak Candidate for

Review

There is no question that Gimenez’s challenge

is a facial one, despite the half-hearted stab he now

takes at calling it as-applied. When a “claim and the

relief that would follow… reach beyond the particular

circumstances” of the claimant, he must “satisfy our

standards for a facial challenge to the extent of that

reach.” John Doe No. 1 v. Reed, 561 U.S. 186, 194

(2010). Determining the nature of a party’s claim and

requested relief requires examination of the operative

pleading. See id.

Gimenez’s pleadings are his motion to intervene

and the counterclaim for declaratory and injunctive

relief he appended to that motion. 8 In these pleadings,

he repeatedly charges that the entirety of the WVRA

violates the Fourteenth Amendment and, as part of

his prayer for relief, seeks “A Declaration that the

WVRA is unconstitutional.” CP 260-261; CP 13241326. While Gimenez’s counterclaim was not

subsequently filed in the trial court as a separate

document, App. 40 n. 18, his lower court briefing also

made clear that his challenge is facial. 9 Furthermore,

Gimenez failed to include any of these documents in the

appendix to his petition. They can be found at CP 260-266 and

1318-1327.

Intervenor-Appellant’s Statement of Grounds for Direct

Review at 4, Portugal v. Franklin County, 1 Wash.3d 629 (2023)

(No.100999-2) (issues presented include “Does the WVRA violate”

the federal Constitution”); id. at

13–15

(debating

constitutionality of statute); Brief of Appellant at 1-4, 6, Portugal

v. Franklin County, 1 Wash.3d 629 (2023)(No. 100999-2), 2022

Gimenez’s appeal arises from the denial of his motion

for judgment on the pleadings – meaning that no facts

were ever adjudicated and Gimenez sought judgment

as a matter of law. Indeed, his reply brief to the

Washington Supreme Court forthrightly argued: “Mr.

Gimenez’s Facial Challenge is Appropriate.” Reply

Brief of Appellant at 7, Portugal v. Franklin County, 1

Wash.3d 629 (2023) (No.100999-2) 2022 WL 18941638

(emphasis added).

As important, Gimenez has continually elected

not to challenge the specific order and district map

entered by the trial court but rather to attack the

WVRA in the abstract, entirely disassociated from the

facts and outcome of this case. App. 2 (“We are not

asked to review the merits of… the parties’ settlement

agreement”). Rather than show that any voting

district ordered by the trial court in Franklin County

is actually a noncompact racial gerrymander, he

critiques the WVRA for permitting that result in

theory. Pet. 15-22. Consequently, the Washington

Supreme Court was correct in noting, “Gimenez did

not bring an as-applied challenge. He brought a facial

challenge.” App. 37.

Having described his own challenge in the

Washington Supreme Court as a facial one, Gimenez

WL 18144310. (WVRA’s facial meaning operates “in violation of”

the Fourteenth Amendment); id. at 5 (trial court erred in

concluding “the statute does not violate the state and federal

constitutions”); id. at 8 (acknowledging his motion sought “a

declaration that WVRA is unconstitutional”); id. at 35 (“WVRA

Violates U.S. Const. Amend. XIV”); id. at 53 (“WVRA is

unconstitutional”).

now changes tack, insisting for the first time that his

claim actually “is an as-applied challenge” because it

concerns “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.” Pet. 28

(emphasis in original). But Gimenez did not ask the

lower courts to enter relief as to “Franklin County’s

prior, at-large voting scheme” – he asked it to declare

the WVRA unconstitutional across the board, in all its

applications and throughout the State of Washington.

Nor is it accurate to say that the WVRA functions

identically “as to all other at-large districts with

racially polarized voting.” Id. As discussed below, the

WVRA permits a host of different remedies in voting

dilution cases, not just the creation of individual

districts. See infra. at 14-15. It also permits

consideration of compactness when drawing remedial

districts. See infra. at 15-16. How the law “operates,”

then, will depend entirely on the particulars of each

individual case. See, e.g., Voinovich v. Quilter, 507

U.S. 146, 155 (1993) (how a majority-minority district

will function “depends entirely on the facts and

circumstances of each case”). In this case, the county’s

own expert drew the map implemented as part of the

settlement.

“A facial challenge to a legislative Act is, of

course, the most difficult challenge to mount

successfully, since the challenger must establish that

no set of circumstances exists under which the Act

would be valid.” That a law might “operate

unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly

invalid.” United States v. Salerno, 481 U.S. 739, 745

(1987); accord Americans for Prosperity Found. v.

Bonta, 141 S. Ct. 2373, 2387 (2021). Facial challengers

therefore bear a “heavy burden.” Id.

Facial constitutional challenges also “run

contrary to the fundamental principle of judicial

restraint that courts should neither ‘anticipate a

question of constitutional law in advance of the

necessity of deciding it,’ nor ‘formulate a rule of

constitutional law broader than is required by the

precise facts to which it is to be applied.’” Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008) (quoting Ashwander v. TVA, 297 U.S. 288,

346-47 (1936) (Brandeis, J., concurring) (further

quotation omitted)). They “threaten to short circuit

the democratic process by preventing laws embodying

the will of the people from being implemented in a

manner consistent with the Constitution.” Id. at 451

(citing Ayotte v. Planned Parenthood of New England,

546 U.S. 320, 329 (2006)); accord United States v.

Raines, 362 U.S. 17, 21 (1960).

There are undoubtedly circumstances “under

which the [WVRA] would be valid,” Salerno, 481 U.S.

at 745, and Gimenez doesn’t claim otherwise. For

example, the Washington Supreme Court correctly

recognized that WVRA provides for a wide variety of

remedies for vote dilution besides the drawing of

single-member districts. App. 12. These include

limited voting, where a voter casts fewer votes than

available candidates; cumulative voting, where a voter

can cast multiple votes for a single candidate; and

ranked choice voting, where candidates are ranked in

order of preference and votes are transferred to lowerranked candidates not elected on first-place votes if a

majority is not reached. Id.; Wash. Rev. Code

§ 29A.92.110(1) (court “may order appropriate

remedies including, but not limited to, the imposition

of a district-based election system” (emphasis added));

id. (“If the court orders a district-based remedy…”

(emphasis added)). These alternate remedies have

been considered and employed in federal vote dilution

cases. 10

Obviously, as the Washington Supreme Court

commented, if these remedies are sought and

implemented, “a showing of geographical compactness

would be both irrelevant and unnecessary at any

stage.” App. 14. In other words, Gimenez is wrong to

claim that “if there is racially polarized voting in a

county, the county cannot elect commissioners atlarge.” Pet. 10. Actually, if there is racially polarized

voting and a showing of vote dilution, as required by

the statute, see infra. at 28-29; Wash. Rev. Code

See, e.g., Branch v. Smith, 538 U.S. 254, 309-10 (2003)

(O’Connor, J., concurring) (“a court could design an at-large

election plan that awards seats on a cumulative basis, or by some

other method that would result in a plan that satisfies” the

federal Voting Rights Act); Moore v. Beaufort Cnty., 936 F.2d 159

(4th Cir. 1991) (upholding limited voting system following

settlement); United States v. Marengo Cnty. Comm’n, 731 F.2d

1546, 1560 n. 24 (11th Cir. 1984) (noting cumulative voting and

preferential voting as potential remedies); United States v.

Village of Port Chester, 704 F. Supp. 2d 411 (S.D.N.Y. 2010)

(ordering use of cumulative voting); United States v. Euclid City

Sch. Bd., 632 F. Supp. 2d 740, 752 and n. 11 (N.D. Ohio 2009)

(approving at-large, limited voting system); United States v.

Town of Lake Park, No. 09-80507, 2009 WL 10727593 (S.D. Fla.

Oct. 26, 2009).

§ 29A.92.030(1)(b), a county may be able to continue

right along with its at-large system while

implementing limited voting, cumulative voting, or

ranked choice voting.

A court could also mandate a shift from at-large

elections to districts but ensure compactness in

drawing district lines. The WVRA eliminates

compactness as a threshold requirement for a dilution

claim but permits its consideration as “a factor in

determining a remedy. App. 14; Wash. Rev. Code

§ 29A.92.030(5). Compact single-member districts

represent another application of the statute which

Gimenez would necessarily concede is constitutional,

since his sole complaint is the statute’s supposed

disregard for compactness. Because Gimenez asserts

a facial challenge on an incomplete record, he is

unable to point to a single case, including Franklin

County, where a county in Washington has replaced

an at-large system with one or more noncompact

districts.

Further, the statute reaches vote abridgement,

not simply dilution. Wash. Rev. Code § 29A.92.020,

29A.92.030(1)(b). As the Washington Supreme Court

observed: “The WVRA protects voters from all forms of

abridgment, not just dilution. Gimenez does not

explain why a group must demonstrate compactness

to prove that their voting rights have been abridged

by, for instance, the discriminatory administration of

literacy tests.” App. 38. Yet another constitutional

application of the statute occurs, then, when a court

enjoins practices that abridge citizens’ votes but don’t

involve districting. Again, Gimenez doesn’t argue

otherwise.

Lastly, Gimenez’s challenge to the WVRA

raises all the red flags of striking down a statute on its

face. It rests entirely on speculation layered over a

“factually barebones record.” Wash. State Grange, 552

U.S. at 450. Because he ignores the actual court order

and district lines mandated in this case, it is pure

speculation as to whether any of the new districts

created in Franklin County are noncompact. For all

the record indicates, none are. By the same token,

there is no “necessity of deciding” the question

Gimenez presents, id., because there is no showing

that the result reached by the trial court commits the

sin his petition targets: a noncompact district. Any

decision would therefore risk “formulat[ing] a rule of

constitutional law broader than is required by the

precise facts to which it is to be applied” in Franklin

County. Id.

Above all, the decision Gimenez seeks from this

Court “threaten[s] to short circuit the democratic

process,” id. at 451, by undermining not only the will

of the people of Washington as embodied in the duly

enacted WVRA, but also the will the people of

Franklin County, whose elected commissioners chose

to comply with that law and implement district voting

in order to address palpable and longstanding vote

dilution. Washington is attempting to govern its own

political subdivisions as a matter of state law, and it

could have required all of them to use single-member

districts, as other states have. See, e.g., N.M. STAT.

§ 3-12-1.1 (2013).

Instead, the Washington

Legislature adopted a flexible approach, granting

localities multiple options so long as the jurisdiction is

mindful of possible dilution.

There is no reason for the Court to decide

Gimenez’s claim of facial invalidity. If the WVRA

produces an unconstitutional result in an actual case

put before the Court with a developed record and

without threshold defects, the Court can consider its

constitutionality then.

B. Gimenez Lacks Standing

Gimenez transparently lacks standing to

challenge the WVRA. There is little point in granting

certiorari simply to affirm the dismissal of his claim

for elementary lack of standing.

The Washington Supreme Court declined to

consider whether Gimenez has standing to challenge

the constitutionality of the WVRA, App. 39-40, but

this Court has “an obligation to assure [itself] of

litigants’ standing under Article III before proceeding

to the merits of a case,” since federal judicial power

extends only to actual cases and controversies. Dept.

of Educ. v. Brown, 600 U.S. 551, 560 (2023) (cleaned

up).

To have standing, “the plaintiff must have

suffered an injury in fact … fairly traceable to the

challenged conduct and likely to be redressed by the

lawsuit.” Biden v. Neb., 143 S. Ct. 2355, 2365 (2023);

Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60 (1992).

The injury must be “concrete, particularized, and

actual or imminent.” Davis v. F.E.C., 554 U.S. 724, 733

(2008). To be “particularized,” an injury “must affect

the plaintiff in a personal and individual way.”

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016)

(cleaned up); Lujan, 504 U.S. at n. 1. Put differently,

the plaintiff must show he has “a personal stake in the

outcome of the controversy.” Baker v. Carr, 369 U.S.

186, 204 (1962). Moreover, it is the plaintiff’s burden

to allege facts that, if proven, would establish

standing. Spokeo, 578 U.S. at 338; see also Gill v.

Whitford, 585 U.S. 48 (2018). These averments must

“affirmatively appear in the record” rather than be

“gleaned from the briefs and arguments” on appeal.

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

546-47 (1986); accord Spencer v. Kemna, 523 U.S. 1,

10-11 (1998).

Importantly here, the plaintiff’s personal stake

in the case cannot be shown by “assert[ing] a

generalized grievance against governmental conduct

of which [the plaintiff] does not approve.” United

States v. Hays, 515 U.S. 737, 745 (1995). Rather, this

Court “has repeatedly held that an asserted right to

have the Government act in accordance with law is not

sufficient, standing alone, to confer jurisdiction on a

federal court.” Allen v. Wright, 468 U.S. 737, 754

(1984).

These rules are no less applicable when, as

here, a party alleges a violation of the Fourteenth

Amendment’s Equal Protection Clause. In Allen, for

example, a nationwide class of Black parents of

children in public schools sued the IRS for failing to

ensure denial of tax-exempt status to discriminatory

private schools, as the tax code required. Id. at 739.

The asserted injury was “the mere fact of Government

financial aid to discriminatory private schools” and

the claim that the illegal exemptions “impair[ed] their

ability to have their public schools desegregated.” Id.

at 752-53. The Court found standing lacking because

the plaintiffs “complain[ed] simply that the

government is violating the law,” and because they

had not themselves suffered discrimination. Id. at 755.

Rather, only “those persons who are personally denied

equal treatment” have standing to assert a violation of

the Equal Protection Clause. Id. at 754; accord Heckler

v. Mathews, 465 U.S. 728, 739-40 (1984).

More specifically, this Court has repeatedly

held that a plaintiff only has standing to assert a claim

of the sort Gimenez presents – racial gerrymandering

of electoral districts under the Shaw v. Reno, 509 U.S.

630 (1993), line of cases – if he has been consigned to

the specific district being challenged, and not simply

some other newly configured district. That is true

even if all district lines change, as they inevitably do,

in the larger redistricting that occurred.

Hence, in Hays, this Court held that Louisiana

voters unable to show they lived in the specific

districts that had been racially gerrymandered lacked

standing. Hays, 515 U.S. at 744-45. “[W]here a

plaintiff does not live in such a district, he or she does

not suffer those special harms, and any inference that

the plaintiff has personally been subjected to a racial

classification would not be justified absent specific

evidence tending to support that inference,” the Court

clarified. Id. Without such a residency requirement, a

“plaintiff would be asserting only a generalized

grievance against governmental conduct of which he

or she does not approve.” Id. The plaintiffs’ assertion

of a global “right not to be placed into or excluded from

a district because of the color of their skin” was

unavailing in Hays because they failed to show “that

they have suffered such treatment.” Id. at 747

(emphasis in original).

The rule of Hays has been applied repeatedly

since. The Court invoked it a year later in Shaw v.

Hunt, where certain plaintiffs’ claims were rejected for

lack of standing because they offered no “specific

evidence that they personally were assigned to their

voting districts on the basis of race.” 517 U.S. 899, 904

(1996) (emphasis added). The Court also applied the

Hays rule in a case arising from redistricting in

Alabama. See Ala. Legis. Black Caucus v. Ala., 575

U.S. 254 (2015). That decision reiterates that racial

gerrymandering claims apply “district-by-district,”

and that race must have infected “the drawing of the

boundaries of one or more specific electoral districts.”

Id. at 262-263 (emphasis in original). This limitation

on standing ensures that the plaintiff has suffered a

particularized injury: “being personally subjected to a

racial classification.” Id. at 263 (cleaned up). Racial

gerrymandering “directly threaten[s] a voter who lives

in the district attacked. But they do not so keenly

threaten a voter who lives elsewhere in the State.” Id.

(emphasis in original); see also N.C. v. Covington, 585

U.S. 969, 976 (2018) (“[I]t is the segregation of the

plaintiffs – not the legislature’s line-drawing as such

– that gives rise to their claims…. [T]he plaintiffs have

standing to challenge racial gerrymanders only with

respect to those legislative districts in which they

reside”); Gill v. Whitford, 585 U.S. 48, 65-67 (2018) (no

standing for partisan gerrymandering claims because

plaintiffs did not proceed district-by-district and

alleged no facts “showing disadvantage to themselves

as individuals” (cleaned up)).

Gimenez patently flunks these basic tests of

standing. His pleading in the trial court, a motion to

intervene and answer and counterclaim asserting the

unconstitutionality of the WVRA, claims only that

“Intervenor will be harmed inasmuch as he will not be

able to vote in a commissioner district whose

boundaries were drawn based on race-neutral

criteria.” CP 1325. His motion to intervene asserts “an

interest in voting … in commissioner districts which

are not drawn on race-based lines,” and states that he

“wants to continue to vote in commissioner districts

whose boundaries are drawn on a race-neutral, not a

race-conscious basis.” CP 260-262. He makes no claim

of having been assigned to a specific district that was

racially gerrymandered. Indeed, he fails to mention or

complain about “the drawing of the boundaries of one

or more specific electoral districts” in Franklin County

at all, and completely ignores the specific voting map

ordered by the lower court. Ala. Legis. Black Caucus,

575 U.S. at 262. The record is silent about where

Gimenez lives or votes; for all one can tell, he resides

in a perfectly compact district not shaped by the race

of voters in any way.

Consequently, Gimenez cannot claim to have

been “personally denied equal treatment.” Allen, 468

U.S. at 755. Voting rights are “individual and personal

in nature,” Gill, 585 U.S. at 65 (quotation omitted),

and Gimenez has never alleged that his have been

limited. This accounts for the curiosity of his being

virtually absent from his own petition, which

describes him simply as a “Hispanic Franklin County

voter, [who] intervened to challenge the WVRA’s

constitutionality” but says nothing about any

particularized injury he might have suffered. Pet. 3.

Instead, Gimenez’s complaint is simply that the

WVRA “requires local governments” throughout the

entire state to “change election systems based on

race.” Pet. 14. This is nothing more than a nonspecific

complaint “that the government is violating the law,”

Allen, 468 U.S. at 755, or, put differently, “a

generalized grievance against governmental conduct

of which [Gimenez] does not approve.” Hays, 515 U.S.

at 745; Gill, 585 U.S. at 66. As such, it fails to confer

standing. 11

Nor could Gimenez claim standing on the basis

of somehow representing the interests of Franklin

County rather than his own. Pet. 12 (stating that

Gimenez “intervened to defend the County’s existing

system”). The duly elected government of Franklin

County was the defendant in this lawsuit and chose to

settle the case. In order to intervene as a matter of

right, Gimenez was required to demonstrate his own,

personal “interest relating to the… transaction which

is the subject of the action,” Wash Sup. Ct. Civ. R.

24(a)(2), which he did by asserting his individual

desire to vote in “commissioner districts which are not

drawn on race-based lines.” CP 260. His motion to

intervene urged the trial court to allow him to “join the

lawsuit” so that he could “defend his interests” – not

the county’s interests – “which [were] not adequately

represented by existing parties to the case.” CP 263.

(emphasis added). There is no basis in the record, such

as a proper and official endorsement from the

Franklin County Commission, permitting Gimenez to

It is true that, leaving race aside, Gimenez, like all Franklin

County voters, will have to vote in a specific district rather than

county-wide, but there is no constitutional harm in that and

Gimenez himself concedes that Washington could simply replace

all at-large systems in the state with districts without offending

the Constitution. Pet. 19-20.

litigate on the county’s ostensible behalf against the

wishes of its properly constituted government. See

Powers v. Ohio, 499 U.S. 400, 410 (1991) (“In the

ordinary course, a litigant must assert his or her own

legal rights and interests, and cannot rest a claim to

relief on the legal rights or interests of third parties.”).

Gimenez’s inability to borrow standing from

Franklin County in these circumstances is apparent

from Bender, where a school board member attempted

to appeal a judgment against the board in a First

Amendment lawsuit, though the board itself declined

to appeal. Bender, 475 U.S. at 538-39. There, as here,

the intermediate appellate court ignored the question

of standing, but this Court held that the board

member could not proceed: “Mr. Youngman’s status as

a School Board member does not permit him to ‘step

into the shoes of the Board’ and invoke its right to

appeal …. Generally speaking, members of collegial

bodies do not have standing to perfect an appeal the

body itself has declined to take.” Id. at 544. All the

more so, of course, for someone like Gimenez, who isn’t

even an elected member of county government and has

no authorization appearing in the record to litigate for

it.

“[T]his Court is not responsible for vindicating

generalized partisan preferences. The Court’s

constitutionally prescribed role is to vindicate the

individual rights of the people appearing before it.”

Gill, 585 U.S. at 72. Gimenez has no personal rights

to vindicate here because the record lacks any factual

allegation of particularized injury. The Court should

therefore deny his petition.

C. There is No Circuit Split or Other

Compelling Reason to Grant Gimenez’s

Petition

There is no other pressing reason to grant

Gimenez’s petition that might justify overlooking the

ways in which it represents a poor candidate for

certiorari. Lower courts have not divided on the

WVRA, or on state-level voting rights statutes more

generally. California’s voting rights law is not

identical to Washington’s, 12 but to the degree that

statute is relevant at all, lower courts have uniformly

rejected challenges to it. See Higginson v. Becerra, 786

Fed. Appx 705, 2019 WL 6525204

(9th Cir.

2019)(mem.); Sanchez v. City of Modesto, 145 Cal. App.

4th 660 (2007). These include a Ninth Circuit decision

where challengers made arguments word-for-word

identical to those here. App. 37. Yet that court found

the issues so obvious that the decision is unpublished.

See Higginson, 786 Fed. Appx. This Court then denied

review. See Higginson v. Becerra, 140 S. Ct. 2807

(2020).

Gimenez warns that “[m]any political systems

in states with similar laws are abandoning the atlarge system in the face of racially polarized voting.”

Pet 25. But this is hardly a reason to grant his

petition. After all, Gimenez concedes that there is no

constitutional barrier to a state simply replacing all

H.R. Doc. No. 107443, 64th Leg., Reg Sess. (Wash. 2015),

https://app.leg.wa.gov/committeeschedules/Home/Document/107

443.

at-large voting with districts. Pet. 19-20. And this

Court has acknowledged that at-large systems are

especially threatening to minority voting rights. See,

e.g., Thornburg v. Gingles, 478 U.S. 30, 47 (1986)

(“This Court has long recognized that multimember

districts and at-large voting schemes may operate to

minimize or cancel out the voting strength of racial

minorities in the voting population” (cleaned up));

accord Allen v. Milligan, 599 U.S. 1, 18 (2023) (“Such

a risk [of minority vote dilution] is greatest where

minority and majority voters consistently prefer

different candidates and where minority voters are

submerged in a majority voting population that

regularly defeats their choices” (quotations omitted));

Growe v. Emison, 507 U.S. 25, 40 (1993) (“We have,

however, stated on many occasions that multimember

districting plans, as well as at-large plans, generally

pose greater threats to minority-voter participation in

the political process than do single-member districts”).

Eradicating persistent racial discrimination may be

the reason some jurisdictions are abandoning at-large

voting rather than, as Gimenez none too subtly

implies, greedy civil rights lawyers. Pet. 25-26.

In the same vein, Gimenez decries that other

states are now passing their own voting rights laws,

though he cites only three: New York, Virginia, and

Oregon. Pet. 26-27. None of these laws have been

challenged, let alone generated conflicting decisions

this Court might feel the need to correct or harmonize.

Far better for the Court to wait and see if these laws

give rise to litigation and differing constitutional

interpretations. And far better to wait and see how

other states craft such laws before this Court wades

through the weighty federalism issues presented by a

federal court overriding state legislative choices

governing their subdivisions’ electoral systems. At

some point, if a real litigant who has actually been

harmed by a specific districting decision brings an asapplied challenge to one of these laws, the Court can

decide on review. For now, Gimenez’s parade of

horribles in other states is unconvincing.

II.

The Washington Supreme Court Correctly

Decided that the WVRA is Constitutional

in Any Case

Even if Gimenez’s petition presented a stronger

case for review, his actual complaint about the WVRA

presents no serious constitutional question.

First, as noted above, Gimenez has brought a

facial challenge to the WVRA. As a result, all Plaintiffs

have to show is that the law has any constitutional

application, and for the reasons discussed above there

is no question that it does, nor does Gimenez argue

otherwise. See supra, Point I(A). The Court therefore

will have no basis to reach Gimenez’s particular,

isolated and hypothetical complaint about the statute.

If the focus narrows only to the litigation of

dilution claims and the remedy of creating new

districts, the statute is still plainly constitutional.

That’s because Gimenez’s challenge is premised on a

basic misconstruction of the WVRA. Gimenez

repeatedly describes the law as “requiring counties to

replace at-large elections with districts drawn[] based

on racially polarized voting alone.” Pet. 16-17. “All

they had to show was voting was racially polarized in

the county,” he claims of the Latino voters. Pet. 3. 13

But the WVRA doesn’t mandate changes based only

on racially polarized voting – a plaintiff must also

show discrimination in the form of vote dilution.

Wash. Rev. Code § 29A.92.030(1)(b). As the

Washington Supreme Court correctly recognized:

[C]ontrary to Gimenez’s interpretation, a

political subdivision cannot be compelled

to do anything pursuant to the WVRA

based on the “single factor” of “racially

polarized voting”…. In fact, the plain

language of the WVRA provides that a

plaintiff

must

prove both that

“[e]lections in the political subdivision

exhibit

polarized

voting” and that

“[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 abridgment of the rights

of members of that protected class or

classes.” RCW 29A.92.030(1)(b)…. The

WVRA

does

not

compel

local

governments to do anything based

on race. Instead, the WVRA may compel

local governments to change their

See also Pet. at i (“Without that requirement [compactness],

a municipality must change from at-large elections to districts

when there is racially polarized voting.”); id. at 2 (“Washington

requires local governments to dismantle existing at-large election

systems… just because racially polarized voting exists.”); id. at 9

(“In practice, a political subdivision violates the WVRA anywhere

that voting is racially polarized.”).

electoral

systems

proven racial discrimination.

remedy

App. 32 (emphasis in original). 14

To make the point even clearer, the Washington

Supreme Court observed that the WVRA simply

“codifies the following, indisputable propositions:”

(1) voters can belong to a race, color, or language

minority group; (2) polarized voting is possible,

(3) polarized voting plus dilution can result in unequal

electoral opportunities; and (4) the law can remedy

discrimination based on effect as well as intent. App.

33-34. Rather than dispute this, Gimenez attacks a

straw man – a law that would require voting changes

without a showing of dilution, but which doesn’t

actually exist. Pet. 2. Similarly, Gimenez is equally

wrong that liability under the WVRA attaches

“without any further requirement that the County is

responsible for any alleged dilution.” Pet. 20. If vote

dilution is occurring, it is because the jurisdiction

devised and maintains a voting system, such as atlarge voting, long known to cause it. See supra. at 2526 (decisions recognizing that at-large systems pose

greatest threat of diluting minority votes).

It is possible, of course, to have polarized voting

without dilution, in which case there has been no

Mirroring the inquiry under Gingles, Washington courts may

also consider other factors beyond dilution and polarized voting

in assessing whether a violation of the WVRA has occurred, such

as the history of discrimination, the use of other discriminatory

voting practices, financial access, the effects of past

discrimination in other fields, and the use of racial appeals in

campaigns. Wash. Rev. Code §29A.92.030(7); Gingles, 478 U.S. at

43-45.

violation of the WVRA. Wash. Rev. Code

§ 29A.92.030(1)(b). That would be true whenever

members of a covered group are too few in number in

a particular jurisdiction to elect candidates of their

choice, despite polarized voting. Indeed, Gimenez

backhandedly acknowledges this in asserting that,

“[u]nder 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.” Pet. 21

(emphasis added). A county without racial diversity

will not have vote dilution, and as Gimenez concedes

here, that means no changes will be necessary even

though its voters are polarized. See Gingles, 478 U.S.

at 50 n. 17 (district where “minority group is so small

in relation to the surrounding white population” will

not be able to elect candidates of choice in any case).

Conversely, there may be counties where polarized

voting exists but members of the protected class are

nonetheless able to elect candidates of their choice

though, for example, a modest degree of crossover

voting. In that event, too, an at-large system would

present no potential violation of the WVRA because

there is no dilution.

Gimenez is also wrong to claim that

compactness

serves

indispensable

“constitutional guardrail” preventing violations of the

Fourteenth Amendment. Pet. 1-2, 17-18. Actually, the

compactness requirement in Gingles and later

decisions is a function of the terms of Section 2. See

Gingles, 478 U.S. at 50 n. 17 (describing compactness

as a necessary precondition to showing injury under

§ 2); accord Allen, 599 U.S. at 17 (“To succeed in

proving a § 2 violation under Gingles, plaintiffs must

satisfy three ‘preconditions,’” including compactness

(emphasis added)); Wis. Leg. v. Wis. Elect. Comm’n,

595 U.S. 398, 402 (2022) (Gingles “provided a

framework demonstrating a violation of that sort,” i.e.,

of § 2 (emphasis added)); Bartlett v. Strickland, 556

U.S. 1, 11 (2009) (“The [Gingles] Court identified three

‘necessary preconditions’ for a claim that the use of

multimember districts constituted actionable vote

dilution under § 2” (emphasis added)). As the

Washington Supreme Court noted, Gimenez “does not

cite a single case – from any court – that actually says

what he claims,” that is, that compactness is

constitutionally mandated. App. 36. On the contrary,

as that court observed, the line of cases Gimenez

invokes here, beginning with Shaw, adjudicated asapplied challenges to specific gerrymandered districts.

App. 36-37.

Gimenez relies heavily on the plurality opinion

in Bartlett in this regard, but that decision doesn’t

hold that compactness is an essential constitutional

“guardrail,” either. Pet. 1-2. Bartlett didn’t involve

noncompact majority-minority districts, it simply

rejected the very different claim that § 2 requires the

drawing of districts where minority voters can only

elect candidates of their choice with the help of

crossover votes from the majority. See Bartlett, 556

U.S. at 14-23. Even then, Bartlett was careful to note,

“[o]ur holding that § 2 does not require crossover

districts does not consider the permissibility of such

districts as a matter of legislative choice or discretion.”

Id. at 23. Other decisions have similarly observed that

states may devise remedial measures different from

those used to enforce § 2. See Voinovich, 507 U.S. at

156 (“Of course, the federal courts may not order the

creation of majority-minority districts unless

necessary to remedy a violation of federal law. But

that does not mean that the State’s powers are

similarly limited.

Quite the opposite is true.”);

LULAC v. Perry, 548 U.S. 399, 430 (2006) (“To be sure,

§ 2 does not forbid the creation of a noncompact

majority-minority district.”).

Ultimately, the WVRA doesn’t demand strict

scrutiny because it doesn’t “distribute[] burdens or

benefits on the basis of individual racial

classifications.” Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007). The

Washington Supreme Court correctly held that “the

WVRA on its face does not classify voters on the basis

of race, nor does it deprive anyone of the fundamental

right to vote.” App. 35. Instead, it “mandates equal

voting opportunities for members of every race, color,

and language minority group. Therefore, Gimenez’s

facial equal protection claim triggers rational basis

review, not strict scrutiny.” Id. And there is no

argument from Gimenez that the statute flunks the

rational basis test.

Rather than discriminate against individuals or

parcel out benefits or burdens according to

membership in a racial group, the WVRA equally

protects voters of all races, colors, and language

minorities, and therefore does nothing more than

prohibit discrimination in voting against everyone.

Wash. Rev. Code § 29A.92.010(6) (any person in class

of voters who are members of “a race”). That means

white voters suffering vote dilution can sue under the

WVRA, too – just like any other member of any other

race. Such a traditional remedial civil rights statute is

not “expressly race-based,” Pet. 3, and can hardly be

equated with the sort of official discrimination that

warrants strict scrutiny. See Schuette v. Coal. to Def.

Affirmative Action, 572 U.S. 291, 318 (2014) (Scalia,

J., concurring) (“I would further hold that a law

directing state actors to provide equal protection is (to

say the least) facially neutral, and cannot violate the

Constitution.”). As this Court has observed more than

once, mere consciousness of race in districting – in this

case, to remedy voting discrimination – is not

prohibited. See Allen, 599 U.S. at 30 (“When it comes

to considering race in the context of districting, we

have made clear that there is a difference between

being aware of racial considerations and being

motivated by them. The former is permissible; the

latter is usually not.” (cleaned up)); Bush v. Vera, 517

U.S. 952, 958 (1996) (plurality) (“Strict scrutiny does

not apply merely because redistricting is performed

with consciousness of race.”).

CONCLUSION

The petition for writ of certiorari suffers

significant threshold defects and lacks merit. This

Court should deny review.

Respectfully submitted,