Respondents Brief — Jose A. Trevino, et al., Petitioners v. Steven Hobbs, Secretary of State of Washington, et al.
Supreme Court briefJun 2, 2026
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No. 25-918
In the
Supreme Court
of the United States
_________________
JOSE TREVINO, ET AL.,
Petitioners,
v.
STEVEN HOBBS, SECRETARY OF STATE OF
WASHINGTON, ET AL.,
Respondents.
_________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
_________________
BRIEF IN OPPOSITION OF RESPONDENTS
SUSAN SOTO PALMER, ET AL.
_________________
Chad W. Dunn
Sonni Waknin
UCLA Voting Rights Project
3250 Public Affairs Bldg.
Los Angeles, CA 90095
Mark P. Gaber
Counsel of Record
Simone Leeper
Aseem Mulji
Benjamin Phillips
Isaac DeSanto
Thomas A. Saenz
Campaign Legal Center
Ernest Herrera
1101 14th St. NW, Ste. 400
Mexican American Legal
Defense and Education Fund Washington, DC 20005
(202) 736-2000
643 S. Spring St., 11th Fl.
mgaber@campaignlegal.org
Los Angeles, CA 90014
Annabelle E. Harless
Edwardo Morfin
Campaign Legal Center
Morfin Law Firm PLLC
2062 N. Proctor St., Ste. 205 55 W. Monroe St., Ste. 1925
Chicago, IL 60603
Tacoma, WA 98407
Counsel for Respondents Susan Soto Palmer, et al.
i
QUESTIONS PRESENTED
1. Whether an individual voter who was granted
only permissive intervention below, has no role in
implementing state elections, and has not established
harm, traceability, or redressability to the lower
court’s liability decision or remedial decision on the
basis of vote dilution, lacks standing to appeal.
2. Whether a candidate who does not reside in or
represent the district at issue, was granted only
permissive intervention below, has no role in
implementing state elections and does not challenge
the counting of votes in his election, who was only
helped and not harmed in any way by his new district,
and
who
cannot
establish
traceability
or
redressability to the lower court’s liability or remedial
decisions, has standing to appeal.
3. Where Intervenors forfeited their racial
gerrymandering claim against the remedial map
below, race was not considered at all in the drawing of
the map, and the district court’s selection of the map
was not driven by race such that race could not
predominate, does the map trigger strict scrutiny
under the Equal Protection Clause.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................i
TABLE OF AUTHORITIES ....................................... iv
INTRODUCTION ........................................................ 1
STATEMENT OF THE CASE .................................... 3
I.
Washington convenes a redistricting
commission .................................................... 3
II. Latino voters challenge LD15 under § 2 ...... 4
III. Intervenors enter the case to defend LD15
while their counsel litigates to invalidate it
....................................................................... 5
IV. The district court invalidates LD15
under § 2 ........................................................ 7
V. The district court selects a remedial map
drawn without consideration of race ............ 8
VI. The Ninth Circuit unanimously rejects
intervenors’ appeal ...................................... 11
REASONS FOR DENYING THE PETITION .......... 13
I.
Intervenors lack standing to appeal the
district court’s liability order and the
remedial map on the basis of vote dilution
..................................................................... 15
A. Intervenors lack standing to appeal the
district court’s liability order ............... 15
B. Rep. Ybarra lacks standing to appeal as
a candidate ........................................... 20
C. Intervenors lack standing to challenge
the remedial map on the basis of vote
dilution ................................................. 26
iii
D. Intervenors’ political aims do not confer
standing ................................................ 28
II. Intervenors forfeited their racial
gerrymandering challenge to the remedial
map .............................................................. 30
III. The Ninth Circuit correctly upheld the
remedial map under settled precedent ...... 31
CONCLUSION .......................................................... 35
Appendix
Appendix A - Excerpts from Remedial Hearing
Transcript, 3/8/24 ............................................... 1a
Appendix B - Ex. 399 (Text Thread with Paul
Graves, Benancio Garcia, and
Maia Espinoza, 3/1/22) ..................................... 12a
Appendix C - Ex. 400 (Text Thread with Benancio
Garcia and Paul Graves, 3/2/22) ...................... 14a
Appendix D - Ex. 401 (3/4-7/22 Email Thread with
Drew Stokesbary, Rob Maguire, Adam Kincaid,
David Nordlinger, and Harry Korrell Re Connect
Re Washington State) ...................................... 18a
Appendix E - Ex. 405 (3/28-4/21/22 Email Thread
with Drew Stokesbary, et al. Re Status of
Redistricting Litigation) .................................. 21a
Appendix F - Ex. 437 (Citizen Action Defense Fund
One Pager on Washington Redistricting
Litigation) ......................................................... 39a
iv
TABLE OF AUTHORITIES
Cases
Pages
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) ................................................ 21
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ................................................ 16
Bost v. Illinois State Board of Elections,
607 U.S. 71 (2026) ................................................ 25
Camreta v. Greene,
563 U.S. 692 (2011) .............................................. 18
Cooper v. Harris,
581 U.S. 285 (2017) .............................................. 31
Deposit Guaranty National Bank v. Roper,
445 U.S. 326 (1980) .............................................. 18
Diamond v. Charles,
476 U.S. 54 (1986) .................................... 16, 18, 29
Federal Election Commission v. Cruz,
596 U.S. 289 (2022) .............................................. 23
Gill v. Whitford,
585 U.S. 48 (2018) .......................................... 22, 28
Holder v. Hall,
512 U.S. 874 (1994) .............................................. 19
Hollingsworth v. Perry,
570 U.S. 693 (2013) ........................................ 16, 29
v
Lance v. Coffman,
549 U.S. 437 (2007) .............................................. 25
League of United Latin American Citizens v. Perry,
548 U.S. 399 (2006) .............................................. 27
Louisiana v. Callais,
146 S. Ct. 1131 (2026) ............. 13, 14, 27, 28, 30-34
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .............................................. 15
Miller v. Johnson,
515 U.S. 900 (1995) .............................................. 32
Puckett v. United States,
556 U.S. 129 (2009) .............................................. 30
Rucho v. Common Cause,
588 U.S. 684 (2019) ........................................ 24, 29
Rumsfeld v. Forum for Academic and Institutional
Rights, Inc.,
547 U.S. 47 (2006) ................................................ 21
Thornburg v. Gingles,
478 U.S. 30 (1986) ................................................ 27
TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) .............................................. 16
Trevino v. Palmer,
144 S. Ct. 873 (2024) (mem.) ........................... 8, 17
Virginia House of Delegates v. Bethune-Hill,
587 U.S. 658 (2019) ........................................ 16, 22
vi
Wesberry v. Sanders,
376 U.S. 1 (1964) .................................................. 27
Wittman v. Personhuballah,
578 U.S. 539 (2016) ........................................ 22, 24
Constitutional Provisions
Wash. Const. art. II, § 43(1) ........................................ 3
Wash. Const. art. II, § 43(2) ........................................ 3
Wash. Const. art. II, § 43(5) ........................................ 3
Wash. Const. art. II, § 43(6) ........................................ 3
Statutes
RCW 44.05.090(1) ...................................................... 33
RCW 44.05.090(2) ........................................................ 3
RCW 44.05.090(5) .................................................. 3, 33
RCW 44.05.100 ............................................................ 3
Other Authorities
14th Legislative District, Yakima County,
https://perma.cc/HRW8-V6UM (last visited May
31, 2026) ............................................................... 27
Aug. 6, 2024 Primary Results, Legislative District 13,
Washington Secretary of State,
https://perma.cc/P6F9-E66J (last visited May 31,
2026) ..................................................................... 23
vii
Candidates: Legislative District 13-House,
Washington Public Disclosure Commission,
https://perma.cc/KFX7-C52T (last visited May 31,
2026) ..................................................................... 23
Petition for Writ of Certiorari Before Judgment,
Trevino v. Soto Palmer, No. 23-484
(U.S. Nov. 3, 2023) ............................................... 26
Primary 2026, VoteWA, https://perma.cc/DJ7AVNMC (last visited May 31, 2026) ................ 23, 24
Sup. Ct. R. 10 ............................................................. 31
1
INTRODUCTION
The Petition does not warrant review. After the
district court found Washington’s Legislative District
15 (“LD15”) violated § 2 of the Voting Rights Act and
ordered a remedial map to replace it, neither the State
of Washington nor the Secretary of State charged with
administering legislative districts chose to appeal.
Only Petitioners (“Intervenors”)—two citizens
granted only permissive intervention below because
they lacked any legally protectable interest in the
suit—seek this Court’s review. But their Petition
suffers from fatal foundational defects and is a poor
vehicle for this Court’s consideration. Intervenors lack
standing to appeal all but their second question
presented, and this Court should not reach that
question because Intervenors forfeited it below.
First, Intervenors ask this Court to reconsider
their standing to appeal the district court’s § 2 liability
decision and the remedial decision, on the alleged
basis of vote dilution in the remedial map. But
Intervenors—who lacked standing from the moment
they intervened in this case—had the burden to prove
a concrete, personal injury traceable to and
redressable by those decisions. Applying settled law
in line with this Court’s precedent, the Ninth Circuit
found they could not. Intervenors can show no injuryin-fact, nor sufficiently link any alleged harm to the
lower court’s decisions. This includes Rep. Ybarra,
who lacks standing as a candidate to challenge
decisions that did not disadvantage him in any way,
especially since all his elections since the liability
decision have been uncontested. At bottom,
Intervenors ask this Court to hold that their mere
disagreement with the lower court’s decisions is
2
sufficient grounds to establish standing to appeal. But
this Court’s firmly established precedent has already
decided the answer to that question is no.
Intervenors then seek reconsideration of their
“claim” that the remedial map violates the Equal
Protection Clause. This Court should decline review
because Intervenors failed to ever raise it in the
district court and thus forfeited it. Ignoring their
waiver, Intervenors ask this Court to abandon the
longstanding requirement that a plaintiff challenging
a redistricting plan as a racial gerrymander must
prove that race predominated in its design. But this
Court need not revisit what triggers strict scrutiny in
redistricting to deny review. The remedial map
plainly cleared predominance—or any other
threshold—because it was drawn without any
consideration of race and selected by the district court
based on traditional redistricting factors alone.
Finally, this case is a poor vehicle for either
question given its bizarre posture and Intervenors’
shifting, contradictory positions. Intervenors entered
this litigation purportedly to defend LD15’s enacted
boundaries but remarkably now claim that LD15 was
in fact illegal all along. A liability decision striking
down a district that Intervenors themselves call
unlawful and replacing it with a map drawn without
consideration of race is the relief they request, not an
injury—and moots any live claims. Moreover, as their
own counsel has acknowledged, Intervenors’
involvement in this litigation is solely to pursue their
partisan preferences in LD15, which disproves
standing and attempts a transparent end-run around
this Court’s precedent. The petition should be denied.
3
STATEMENT OF THE CASE
I.
Washington
commission.
convenes
a
redistricting
Washington assigns state legislative redistricting
to a bipartisan Commission, with legislative leaders
appointing four voting Commissioners, who then
select a non-voting Chair. Wash. Const. art. II, §§
43(1), (2). At least three voting Commissioners must
approve a redistricting plan by November 15 of the
redistricting year. Id. §§ 43(2), (6). The Legislature
can enact minor amendments by two-thirds vote, after
which (amended or not) the plan becomes law. Id.;
RCW 44.05.100.
The state constitution requires that districts
contain substantially equal population and, to the
extent reasonable, be contiguous, compact, and follow
natural, artificial, or political-subdivision boundaries.
Wash. Const. art. II, § 43(5). State law further directs
that districts, insofar as practical, respect “areas
recognized as communities of interest”; minimize
county and municipal splits; comprise convenient,
contiguous, and compact territory; and avoid precinct
splits. RCW 44.05.090(2). No redistricting plan may
be drawn “purposely to favor or discriminate against
any political party or group.” Wash. Const. art. II, §
43(5); RCW 44.05.090(5).
In 2021, Washington convened a Commission
whose voting members included Democratic
appointees April Sims and Brady Walkinshaw and
4
Republican appointees Paul Graves and Joe Fain.
Doc.191 ¶¶ 70-71.1
II. Latino voters challenge LD15 under § 2.
During
the
redistricting process,
every
Commissioner received a statistical analysis that
analyzed the Gingles preconditions in the Yakima
Valley area and identified the Latino-preferred
candidate in a dozen recent elections, to aid the
Commissioners in drawing a district affording Latino
voters an equal opportunity to elect their candidates
of choice. Doc.208 at 620:2-23; Ex.214.
Consistent with the analysis, all four voting
Commissioners traded proposals for a district in the
Yakima Valley that would allow an equal opportunity
to elect Latino-preferred candidates. Ex.1 at 28. But
as negotiations progressed, they gave Commissioner
Graves free rein, and he and his staff dismantled the
very opportunity district he had earlier proposed.
Doc.209 at 790:15-20, 791:7-16. In successive
iterations, he removed heavily Latino cities and
surgically excised pockets of Latino voters ensuring
the district the Commission finally adopted retained
a bare majority Hispanic citizen voting age population
(HCVAP) of 50.02% but would no longer elect Latinopreferred candidates.2 Ex.487; Ex.1 at 28. The
Commission also numbered the district “15” rather
than “14,” placing state senate elections in off-years,
when the Latino-white turnout gap is widest. Ex.1 at
1 Lower court docket items are cited as “Doc.[#]”; trial exhibits
are cited as “Ex.[#].”
2 Petitioners incorrectly assert (at 6) that LD15’s HCVAP was
52.6%. According to the estimates the Commissioners used
during the redistricting process, LD15’s HCVAP was 50.02%.
Doc.191 ¶ 97.
5
29-32. After the Commission adopted the plan, the
Legislature approved it with immaterial changes.
Doc.191 ¶¶ 82-84.
In January 2022, Plaintiffs sued to challenge
LD15 under § 2, alleging that it dilutes Latino
electoral opportunity and was drawn with intent to do
so behind the façade of an opportunity district.
Defendants included Secretary of State Steven Hobbs
(who took no position on the merits), state legislative
leaders (since dismissed), and the State of
Washington (later joined to defend the map).
III. Intervenors enter the case to defend LD15
while their counsel litigates to invalidate it.
In March 2022, state representative Drew
Stokesbary moved to intervene on behalf of
Intervenors to defend LD15. App.225. Mr. Trevino is
a Yakima Valley voter; Rep. Ybarra represents LD13,
a different district altogether. The district court
allowed permissive intervention but denied
intervention as of right, finding that both lacked a
protectable interest in LD15’s boundaries and had
identified no “direct and concrete injury” likely to
result if the § 2 claim succeeded. App.90.3
Their intervention was just one strand of a
tangled partisan web of connections concerning LD15.
Two weeks earlier, Rep. Stokesbary—who had himself
voted to enact LD15—filed a separate suit on behalf of
Benancio Garcia III to challenge LD15 as a racial
gerrymander under the Fourteenth Amendment.
App.199-244. But the record revealed that
3 The same applied to a third intervenor, who did not defend his
standing at the Ninth Circuit and is not party to this appeal.
App.15.
6
Commissioner Graves—who drew LD15—was himself
involved in creating that challenge for partisan ends:
he recruited Garcia as a plaintiff and raised funds for
the suit, all while disavowing that LD15 was a racial
gerrymander.
Supp.App.12a-20a.
Commissioner
Graves and Rep. Stokesbary, both directors of the
Citizen Action Defense Fund (CADF), made their
partisan purpose crystal clear in creating what a
CADF fundraising memo called “a two-pronged legal
effort”: challenging LD15 in Garcia while opposing the
§ 2 claim here, so that if Garcia succeeded, “LD15
could be redrawn to stay reliably Republican until
2030.” Supp.App.39a-42a; Supp.App.36a. The memo
also told prospective donors that fully litigating this
case could “present several legal questions to a
friendly Supreme Court that would give the Court an
opportunity to reshape how the VRA operates across
the country.” Supp.App.40a.
The web grew more tangled still as the cases
proceeded toward trial. Seven months after seeking
intervention to defend LD15, Intervenors’ counsel
moved to add a crossclaim challenging LD15 as a
racial gerrymander—even though Intervenors
themselves had testified under oath that they wanted
LD15 unchanged and did not believe it was
gerrymandered. App.243; Doc.127-1 at 121:4-10;
Doc.127-2 at 21:1-11. Intervenors’ counsel then told
the court that if their new crossclaim were allowed,
Mr. Garcia would dismiss his claim—even though Mr.
Garcia testified he was unaware of this proposal and
would do no such thing. Doc.150; Doc.191-7 at 47:848:2, 50:2-17, 59:12-61:14. After the State initiated an
ethics inquiry, Intervenors’ counsel filed an “errata”
recasting Mr. Garcia’s testimony in their favor, which
the court struck in its entirety as a “sham.” Doc.173.
7
The court denied leave to add the crossclaim as
untimely, prejudicial, and duplicative of Garcia, but
in the interest of judicial efficiency, ordered the two
cases consolidated for trial, which took place in June
2023. App.82-85. The Soto Palmer trial began before
a single-judge district court, and the remaining
evidence was presented over three more days before
the three-judge district court empaneled for Garcia’s
equal protection claim, of which the Soto Palmer judge
was a member.
IV. The district court invalidates LD15 under
§ 2.
On August 10, 2023, the Soto Palmer district court
ruled that LD15 violated § 2’s prohibition on
discriminatory results—a decision based on an
“extensive record,” including the live testimony of 15
witnesses, the deposition testimony of 18 witnesses,
and 548 admitted exhibits. App.45.
The court found all three Gingles preconditions
satisfied: Latino voters in the Yakima Valley are
undisputedly numerous and compact enough to form
a majority in a reasonably configured district; they are
politically cohesive; and white bloc voting usually
defeats Latino-preferred candidates. App.54-59. The
record showed, moreover, that polarization in the
Yakima Valley is attributable to race, not just
partisanship. See infra Part IV.
The court also found that LD15 diluted the Latino
vote under the totality of the circumstances. App.74.
Those circumstances included discriminatory “official
election practices and procedures” maintained “as
recently as the last few years,” App.61, overt racial
appeals in recent elections, and persistent
8
suppression of Latino participation, especially among
agricultural workers due to fear of retribution from
white land-owning employers, App.65. Mr. Garcia also
testified to intra-party racial discrimination he
experienced running for elected office in the region.
Although the district court did not reach Plaintiffs’
separate claim of intentional discrimination, the
“extensive record” premising the decision also
strongly indicated that Commissioners intentionally
drew an LD15 that diluted Latino voting strength
while remaining nominally majority-HCVAP. See
infra Part IV.
On September 8, 2023, the three-judge court
dismissed the Garcia racial gerrymandering
challenge to LD15 as moot. Because the Soto Palmer
decision meant LD15 “will be redrawn and will not be
used in its current form for any future election,” the
court reasoned that Mr. Garcia had already obtained
all the relief he sought. App.106.
Intervenors alone appealed the § 2 liability
decision; the State and the Secretary declined. Before
remedial proceedings began in the district court,
Intervenors filed a petition for certiorari before
judgment to bypass the Ninth Circuit, which this
Court denied. Trevino v. Palmer, 144 S. Ct. 873 (2024)
(mem.). They then filed a motion to hold their liability
appeal in abeyance pending the district court’s
remedial proceedings, which the Ninth Circuit
granted. No. 23-35595, Docs.48, 59.
V. The district court selects a remedial map
drawn without consideration of race.
After its liability decision, the district court first
afforded the State an opportunity to adopt a new plan
9
through Washington’s constitutional redistricting
process. App.32. When the State declined, the court
set remedial briefing deadlines for the parties to file
remedial maps, expert reports, and briefs, along with
responses and replies, to have a lawful map in place
by the Secretary of State’s requested date of March 25,
2024. The court also appointed a special master to
evaluate the submissions. Id.
Plaintiffs timely submitted five remedial map
proposals drawn by their expert, Dr. Kassra Oskooii.
Id. Dr. Oskooii drew every map blind to race and
politics: he removed all racial and political data from
the mapping software and considered neither in
drawing districts. Doc.245-1 at 4-5; Supp.App.5a-8a.
Beginning from the enacted map, he made only the
changes necessary to unite the Yakima Valley
population centers the court had identified as a
community of interest, while adhering to
Washington's redistricting criteria, equal-population
requirements, and other communities of interest,
including the Yakama Nation Reservation. Doc.245-1
at 4-5. No other party submitted proposed remedial
maps by the court's deadline.
After Intervenors filed a response criticizing the
proposals, Plaintiffs filed slightly revised versions
that eliminated nearly all incumbent displacement in
the districts surrounding LDs14 and 15. App.32,
Doc.254-1.
Assisted by the special master, the court reviewed
the maps, briefs, and expert reports, and heard oral
argument, at which it informed the parties it was
leaning toward Plaintiffs’ Map 3A. At Intervenors’
request, the court also scheduled an evidentiary
hearing focused on that map, inviting supplemental
10
briefing, expert reports, and the participation of the
Yakama Nation. All parties—the State, Intervenors,
the Yakama Nation, and court alike—identified the
importance of keeping the Yakama Nation
Reservation, together with its off-reservation trust
lands and fishing villages, in a single district to the
extent practicable. App.32-35. In the lead-up to the
hearing, Intervenors filed a map of their own, but
their expert testified it was not meant to remedy the
§ 2 violation, Supp.App.11a, and it split the Yakama
Nation Reservation between two districts, failing to
respect the Nation’s basic request, as well as the
State’s preferences. Id. at 9a. Following the
evidentiary hearing, the court directed miniscule
alterations to Map 3A, which thereafter became Map
3B. App.33-34.
On March 15, 2024, the district court ordered in
place Plaintiffs’ Map 3B, which included a new LD14
that remedied the § 2 violation while respecting
traditional redistricting criteria—including the
priority of the State to unite the Yakama Nation
Reservation with its off-reservation trust lands along
the Washington-Oregon border. App.32-35. Map 3B
was not drawn or adopted to favor either political
party and, preserved the prior map’s slight
Republican lean. App.40-41. The remedial map did
not reconfigure Rep. Ybarra’s LD13 to make it more
Democratic. Doc.254-1 at 43. And Intervenors offered
no objection or evidence that any change to LD13
would make Rep. Ybarra’s reelection any more
difficult—in fact, he ran unopposed in 2024 for
reelection in LD13 and spent less doing so than in his
2022 campaign under the prior map. Throughout the
remedial proceedings, despite ample opportunity,
11
Intervenors never argued that the remedial map or
any proposed remedial map was a racial gerrymander.
Intervenors alone appealed the remedial order; the
State and the Secretary declined. The Ninth Circuit
consolidated Intervenors’ liability and remedial
appeals and denied their motion to consolidate those
appeals with Garcia. No. 24-1602, Docs.22.1, 37.1.
VI. The Ninth Circuit unanimously rejects
intervenors’ appeal.
Applying settled Article III principles, the Ninth
Circuit held that neither Intervenor had proven
standing to challenge the § 2 liability determination.
Mr. Trevino’s alleged injury—racial classification
from being moved from LD15 to LD14—was traceable
only to the remedial map’s drawing, not to the
antecedent liability ruling, which was never shown to
classify or treat him unequally based on his race.
App.10-12. Rep. Ybarra’s alleged candidate injuries
failed for the same reason and, if he had cognizable
harms at all, they were either in the past or too
speculative as to future elections in which he may not
even run. App.13-15.
The Ninth Circuit likewise held that neither
Intervenor had standing to press a § 2 vote dilution
claim against the remedial map. App.15. The only
possible “evidence” of a dilution injury they proffered
was the “bare assertion” of decline in the remedial
LD14’s HCVAP. App.17. From that, the court could
not infer “the vote of Jose Trevino, the only Intervenor
who lives in the new LD14, has been diluted” because
dilution, by law, does not arise from the sole fact of
being Hispanic and having to vote alongside fewer
Hispanics. Id.
12
The Ninth Circuit held that Mr. Trevino—the only
Intervenor who lived in the allegedly racially
gerrymandered district—had standing to challenge
the remedial LD14. App.17-18. But the court observed
that he had likely forfeited that claim by never raising
it in the district court. App.19.
In exercising its discretion to reach the merits, the
court held that Mr. Trevino’s racial gerrymandering
claim would fail anyway because race did not
“predominate[]” in the drawing of the remedial map.
App.20-21 (citing Cooper v. Harris, 581 U.S. 285, 292
(2017)). The court recognized that the remedial map
was drawn to unite communities of interest, including
the Yakama Nation, while avoiding gratuitous
changes to the enacted plan and adhering to legal and
traditional redistricting criteria. App.21, 28, 29.
Based on its review of the record, the Ninth Circuit
also found that the district court ultimately selected
Map3A compared to other remedial proposals because
“it was most ‘consistent with traditional redistricting
criteria’” and the State’s nonracial policy goals.
App.25. As for the district court’s recognition that the
remedial map united a recognized community of
interest in the Yakima Valley sharing numerous
tangible interests beyond race, the Ninth Circuit
found this “far from sufficient to show that race
predominated.” App.27. And “[e]ven if race . . . were ‘a
motivation’ in the district court’s actions, which it was
not, that motivation alone would not trigger strict
scrutiny.” App.28. Upon finding Intervenors’ other
objections to the remedial map “not germane to the
issue of racial predominance,” App.29-30, the Ninth
Circuit affirmed the district court’s remedial order.
13
REASONS FOR DENYING THE PETITION
Denial is warranted for a host of reasons. Most
fundamentally, the Petition has a glaring
jurisdictional defect. Intervenors—two individuals
who have nothing to do with enforcing Washington’s
state legislative districts and have suffered no injuryin-fact, let alone one traceable or redressable to the
lower court’s liability decision—lack standing to
appeal both the liability decision and the remedial
decision on the basis of vote dilution.4 Moreover,
Intervenors
failed
to
raise
their
racial
gerrymandering claim against the remedial map in
the district court, forfeiting the basis for their second
question presented, which this Court should not use
its discretion to reach.
Beyond these threshold deficiencies, this Court
should deny review because Intervenors identify no
circuit split on the questions presented, the remedial
district challenged as a racial gerrymander was
drawn and adopted without considering race, and on
all issues both courts below engaged in correct and
straightforward application of settled precedent that
also comports with this Court’s recent decision in
Louisiana v. Callais, 146 S. Ct. 1131 (2026).
Intervenors’ hyperbolic concern about procedural
“manipulat[ion]” is unfounded because no such
manipulation occurred. Pet.16. As this Court’s
4 Intervenors claim (at 15) that their alleged injuries from the
liability determination are “uncontested,” but that is false.
Respondents contested Intervenors’ alleged injuries from the
moment they intervened below. Doc.64. Intervenors never
proved any harms they allege, and both courts below rejected
Intervenors’ allegations of injury stemming from the liability
decision. App.10; Doc.318.
14
precedent establishes, litigants who face actual harm
can seek relief, and those with only generalized
grievances properly cannot.
Moreover, Intervenors offer no basis to conclude
that the standing questions raised here are recurring.
They identify no prior case presenting similar
questions and no reason to expect any. That is
unsurprising because this case reaches the Court, as
the Ninth Circuit put it, “in an unusual posture.”
App.2.
Unlike most § 2 cases, here the government did
not appeal. Instead, the appeal was taken by
Intervenors—one of whom does not even live in the
relevant district—who have assumed shifting,
incoherent positions throughout the litigation. In
essence, they entered this case purporting to defend
LD15 but now insist that their desired outcome is to
challenge LD15 as a racial gerrymander. But if
invalidating LD15 is the goal, the liability decision
they seek to undo achieved it. A decision delivering
the relief Intervenors now seek cannot be the source
of cognizable harm. To the extent their positions can
be explained at all, it is by the partisan goals
Intervenors’ counsel and Commissioner Graves
acknowledged in writing at the outset: to produce
more Republican seats in the Yakima Valley with the
help of a “friendly Supreme Court.” Supp.App.40a.
But this Court does not so easily permit litigants to
“sidestep [its] holding in Rucho that partisangerrymandering claims are not justiciable in federal
court.” Callais, 146 S. Ct. at 1158 (quoting Alexander
v. S.C. State Conf. of the NAACP, 602 U.S. 1, 21
(2024)).
15
This unusual petition also makes for a poor
vehicle to clarify candidate standing. Rep. Ybarra
neither represents nor resides in the district at issue
in this case, and no decision below had any bearing on
his prospects as a candidate in the neighboring LD13.
And Rep. Ybarra’s independent standing to challenge
the remedial map need not be resolved because the
Ninth Circuit found Mr. Trevino already had
standing. The substantive outcome of the appeal
would not change even if this Court reviewed Rep.
Ybarra’s standing, making it a poor vehicle for such
review.
In short, this case presents proper application of
settled precedent amid tangled facts of Intervenors’
own making. The decision below remains correct
following Callais, and Intervenors lack standing to
raise or have forfeited the questions they ask this
Court to take up. Review should be denied.
I.
Intervenors lack standing to appeal the
district court’s liability order and the
remedial map on the basis of vote dilution.
A. Intervenors lack standing to appeal the
district court’s liability order.
The Ninth Circuit correctly held that Intervenors
lack standing to appeal the district court’s liability
determination. To establish standing, a litigant must
demonstrate “an invasion of a legally protected
interest” that is “concrete and particularized” and
“actual or imminent.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (internal quotations omitted). “As
th[is] Court has repeatedly recognized, to appeal a
decision that the primary party does not challenge, an
intervenor
must
independently
demonstrate
16
standing.” Va. House of Delegates v. Bethune-Hill, 587
U.S. 658, 663 (2019); Hollingsworth v. Perry, 570 U.S.
693, 705 (2013). This ensures that “the decision to
seek review . . . is not to be placed in the hands of
‘concerned bystanders,’ who will use it simply as a
‘vehicle for the vindication of value interests.’”
Diamond v. Charles, 476 U.S. 54, 62 (1986) (citation
omitted); Arizonans for Off. Eng. v. Arizona, 520 U.S.
43, 65 (1997) (“An intervenor cannot step into the
shoes of the original party unless the intervenor
independently ‘fulfills the requirements of Article
III.’” (quoting Diamond, 476 U.S. at 68)).
Because the State and Secretary appealed neither
the district court’s liability decision nor the remedial
map and Intervenors filed separate appeals of both
orders each asserting various claims, the Ninth
Circuit carefully evaluated the standing of each
Intervenor “on a claim-by-claim basis.” App.10
(citation omitted). This was a standard application of
this Court’s precedent. See TransUnion LLC v.
Ramirez, 594 U.S. 413, 431 (2021) (“[S]tanding is not
dispensed in gross; rather, [litigants] must
demonstrate standing for each claim that they press
and for each form of relief that they seek.”). And in
doing so, the Ninth Circuit correctly held that no
Intervenor had standing to appeal the liability
finding.
Intervenors take issue with this analysis,
complaining (at 15) that it allows courts to “deprive
litigants of standing” to appeal liability rulings via
delayed remedial proceedings. But Intervenors
delayed their own liability appeal, filing a motion to
hold it in abeyance pending the district court’s
remedial proceedings, which the Ninth Circuit
17
granted. No. 23-35595, Docs.48,59. In doing so, they
told the Ninth Circuit that delaying their liability
appeal “will conserve private, public, and judicial
resources and will not cause meaningful prejudice to
anyone.” No. 23-35595, Docs.48 at 2. Intervenors
cannot now claim that their own conduct injures
them.
Relatedly, Intervenors worry (at 19) that an
“adverse liability determination” might be shielded
from review because of bifurcated proceedings. But
avenues existed for review of the liability decision,
and Intervenors utilized them—appealing the
liability decision, seeking to stay it at the Ninth
Circuit, and seeking to overturn it in a petition for
certiorari before judgment from this Court. In
opposing each of these efforts, Soto Palmer
Respondents argued that Intervenors lacked standing
to appeal as well as other merits flaws, and
Intervenors’ stay and certiorari efforts were denied.5
Intervenors’ may disagree with those outcomes, but
this chain of events could not “deprive[]” them “of
standing,” Pet.19, that they never had. Intervenors
then voluntarily paused their own liability appeal. It
was thus Intervenors’ foundational jurisdictional
defects and own litigation choices—not any
bifurcation of proceedings by the district court—that
doomed their appeal.
Moreover, holding remedial proceedings after a
liability finding is not only typical but consistent with
5 See No. 23-35595, Doc.45 (Ninth Circuit denying Intervenors’
request to stay liability decision); Trevino v. Palmer, 144 S. Ct.
873 (2024) (mem.) (denying Intervenors’ attempt to overturn the
district court’s liability finding through a petition for certiorari
before judgment).
18
the court’s duty to give the State the first opportunity
to remedy a § 2 violation. Nor is it unusual for an
appellate court to find that a litigant has standing to
appeal one aspect of a case but not another. See, e.g.,
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 340
(1980) (finding standing to appeal denial of class
certification
but
not
underlying
merits
determination); Camreta v. Greene, 563 U.S. 692, 703
(2011) (addressing standing to appeal qualified
immunity determination separately from standing to
appeal underlying constitutional violation). In reality,
the liability ruling here is only “adverse” to
Intervenors in that they disagree with it. But “[A]
disagreement, however sharp,” does not establish
standing. Diamond, 476 U.S. at 62.
Intervenors also complain (at 17) that in making
this determination, the Ninth Circuit “skipped over
the injury-in-fact element.” That is false. For example,
the Ninth Circuit correctly observed that “[i]n the
context of a racial-gerrymandering claim, ‘racial
classification itself is the relevant harm.’” App.10
(quoting Alexander, 602 U.S. at 38). Intervenors failed
to show that the district court’s liability
determination classified them based on their race, and
“barely argue[d] that the determination classified
anyone.” App.11. Nor did Trevino “allege[] that the
liability determination ‘required [him] to do anything
or to refrain from doing anything’ because of his race
or otherwise.” Id. (quoting Food & Drug Admin. v. All.
for Hippocratic Med., 602 U.S. 367, 385 (2024)).
Moreover, Intervenors failed completely to
demonstrate traceability or redressability as to the
liability finding. App.10-13. They contend (at 19) that
the liability determination and the remedial map are
19
“inextricably intertwined,” such that standing to
challenge one automatically creates standing to
challenge the other. Not so. Even if it were possible in
some instances to trace a racial classification injury to
a liability determination, Intervenors bear the burden
of tracing their specific alleged harm to the district
court’s liability determination. App.11 (citing West
Virginia v. EPA, 597 U.S. 697, 718 (2022)). Here, they
have “not done so.” App.12.
While Intervenors argue (at 18) that liability
under § 2 “involves consideration of race,” this fact
alone cannot establish Article III causation between
the § 2 liability finding and the racial classification
harms alleged against a later-enacted remedy. That is
because a § 2 liability decision does not itself classify
any individual on the basis of race, and once the use
of a map is enjoined under § 2, the ensuing remedy
need not necessarily consider race at all. See, e.g.,
Holder v. Hall, 512 U.S. 874, 909-10 (1994) (Thomas,
J., concurring) (noting viability of race-neutral voting
systems as possible § 2 remedies). At the time of the
liability determination in this case and Intervenors’
appeal from that decision, there was nothing
inevitable about any specific remedial map, nor even
that the court would impose a map at all. App.12-13
n.3. The only inevitability was that the enacted LD15
would be replaced. And the remedy the district court
ultimately ordered was, as the Ninth Circuit found, a
new map drawn without any consideration of race.
App.28.
Intervenors thus also lack standing for the
additional and independent reason that the liability
decision provided the outcome they now say they
wanted all along: LD15 replaced with a new map,
20
drawn blind to race. At earlier stages of this litigation,
Intervenors’ “avowed purpose was to defend the
existing boundaries” of the enacted map. App.81.
They later changed their tune and now claim that the
enacted map “constitute[ed] a racial gerrymander
that violate[d] equal protection,” and desire it
replaced. Pet.1. And it has been. Intervenors thus lack
standing because they are not harmed by a decision
invalidating a map they believe is unconstitutional.6
B. Rep. Ybarra lacks standing to appeal as
a candidate.
Rep. Ybarra lacks standing to appeal the lower
courts’ decisions based on his status as a candidate for
a simple reason: his candidacy has not been harmed
by either decision. Nor is any alleged injury traceable
to the liability decision. Rep. Ybarra does not reside in
or represent the challenged district, he has done no
more than simply allege non-existent harms, and
based on his own testimony, the remedial map helps
rather than harms his candidacy in LD13. Indeed,
this Court need not even reach Rep. Ybarra’s standing
to appeal the remedial decision. The Ninth Circuit
declined to do so because it found that Mr. Trevino
had standing to appeal on remedy, and “the presence
of one party with standing is sufficient to satisfy
Article III’s case-or-controversy requirement.”
6 For a similar reason, the Ninth Circuit correctly affirmed the
dismissal of Garcia as moot. App.99. As the Garcia district court
said: “Since LD15 has been found to be invalid and will be
redrawn (and therefore not used for further elections), the Court
cannot provide any more relief to [Garica].” App.102. Now that
Intervenors make the same arguments as Mr. Garcia, they lack
standing for the same reason Mr. Garcia’s claim was moot—the
district they challenge is gone.
21
Rumsfeld v. Forum for Acad. & Institutional Rts., Inc.,
547 U.S. 47, 52 n.2 (2006).
Intervenors claim the Ninth Circuit erred in
finding that Rep. Ybarra lacked standing because it
should have assessed redressability from when
Respondents first filed their lawsuit. Pet.20. That
argument makes little sense, as Rep. Ybarra’s
permissive intervention was not granted until four
months later. App.86. It is also legally wrong—Article
III standing is required at every step of litigation,
including when a party seeks post-judgment relief.
See Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91
(2013) (holding that standing is necessary at “all
stages” of litigation). The district court also assessed
his interests at the time of intervention, and found
that he, like all Intervenors, lacked any harm
amounting to an injury-in-fact. App.90 (finding that
“intervenors have no right or protectable interest in
any particular redistricting plan or boundary lines,”
“have no role to play in the redistricting process,” “do
not allege that their right to vote or to be on the ballot
will be impacted by this litigation,” and have not
“identified any direct and concrete injury that has
befallen or is likely to befall them”); App.96 (allowing
only permissive intervention and not intervention as
of right); Doc.318 at 6-8. All the “interests” Rep.
Ybarra claimed at intervention were purely
speculative or generalized grievances insufficient to
establish Article III standing. See, e.g., App.233
(alleging an interest in ensuring legislative districts
“compl[y] with state and federal law.”).
In any event, no matter when Rep. Ybarra’s
standing is assessed, the Ninth Circuit found he
lacked it. App.2, 13-17. On appeal, the Ninth Circuit
22
considered the only standing arguments Rep. Ybarra
presented to it: alleged “increased campaign
expenditures and reduced chances of reelection” from
the remedial map. App.13. Rep. Ybarra did not allege
these harms at the time of his intervention—because
the remedial map did not exist—and the allegations
have nothing to do with defending against a § 2
liability decision. App.13-17, 232-233. Indeed, the first
time Rep. Ybarra even arguably sought relief from a
court was his appeal to the Ninth Circuit, not at the
time of his initial intervention as a defendant. And the
Ninth Circuit found that whether considering harms
Rep. Ybarra alleged in the past or future, all were “too
tenuous” to support his standing to challenge the
liability decision—at any time. App.2, 13-15 (holding
that “[t]he liability order had no assured impact
whatsoever on LD13.”).
Moreover, no elected official is guaranteed
particular district lines—which change at a minimum
after each decennial census—and Rep. Ybarra never
did more than allege harms.7 That has never been
enough to establish Article III standing. Gill v.
Whitford, 585 U.S. 48, 69 (2018) (“The facts necessary
to establish standing, however, must not only be
alleged . . . but also proved”); Bethune-Hill, 587 U.S.
at 662-663; Wittman v. Personhuballah, 578 U.S. 539,
543-45 (2016) (a litigant must do more than “simply
allege a nonobvious harm.”). Intervenors recycle the
argument that Rep. Ybarra was harmed because his
neighboring LD13 was slightly reconfigured in the
7 If any change in district lines or constituents was enough to
establish standing, every legislator would be able to sue over
changes to their district at least every ten years (and likely more
frequently). That cannot be so.
23
remedial map and he thus must be able to challenge
the liability decision. Pet.20-21. But they do not show
how Rep. Ybarra was injured, or how any alleged
injury is traceable to the liability decision. App.13-15.
That is because Rep. Ybarra was not injured.
App.13-15. He ran unopposed in LD13 both under the
remedial map in 2024 and in his current race for state
senate.8 It was thus impossible for Rep. Ybarra to
have reduced reelection chances. Intervenors
nevertheless alleged that he would expend additional
resources voluntarily campaigning for a seat he was
guaranteed to win, but provided no evidence for this
claim. See Fed. Election Comm’n v. Cruz, 596 U.S. 289,
297 (2022) (litigants cannot “manufacture standing by
voluntarily” incurring costs). In reality, Rep. Ybarra
spent less campaigning under the remedial map in
2024 than he did in 2022, when he was also running
unopposed under the prior map.9 Nor is the partisan
lean of Rep. Ybarra’s district any different in the
remedial map: LD13 went from 63.85% Republican in
the enacted plan to 63.21% Republican in Map 3B.
App.14. Intervenors provide no evidence to explain
why this 0.64% difference in partisan performance in
a district that still favors the Republican by over 13%
(and is uncontested) means that Rep. Ybarra will face
a more difficult election campaign. This Court has
rejected just such an argument, holding that an
assertion of a more difficult reelection was not enough
8 Aug. 6, 2024 Primary Results, Legislative District 13, Wash.
Sec’y of State, https://perma.cc/P6F9-E66J (last visited May 31,
2026); see also Primary 2026, VoteWA, https://perma.cc/DJ7AVNMC (last visited May 31, 2026).
9 See Candidates: Legislative District 13-House, Wash. Pub.
Disclosure Comm’n, https://perma.cc/KFX7-C52T (last visited
May 31, 2026).
24
to sustain an appeal when the Congressmen making
the assertion had “not identified record evidence
establishing their alleged harm.” Wittman, 578 U.S.
at 545; see also Rucho v. Common Cause, 588 U.S. 684,
721 (2019) (holding that federal courts have no Article
III jurisdiction to adjudicate disputes about the
partisan composition of districts).
If anything, the record suggests that the remedial
map better reflects Rep. Ybarra’s wishes for his own
district boundaries: it adds specific communities to his
district that he testified he desired and removes areas
he did not. Doc.127-1 at 79:12-80:11. Indeed, Rep.
Ybarra successfully won reelection under the
remedial map and is now catapulting from that
victory to run unopposed for state senate.10 Thus, even
if Rep. Ybarra experienced any harm—he did not—it
is now moot. Intervenors have not established any
injury to Rep. Ybarra sufficient to establish standing
to challenge the lower court’s liability or remedial
decisions. Based on his own testimony, the new map
helps rather than harms Rep. Ybarra’s election
interests.11
See Primary 2026, VoteWA, https://perma.cc/DJ7A-VNMC
(last visited May 31, 2026) (showing Rep. Ybarra running
uncontested). As the Ninth Circuit noted, the 2024 election—
where Rep. Ybarra experienced no harm—was well over by the
time the case was heard and the court issued its decision. App.13
(noting no remedy could redress any injury).
11 Intervenors state that Rep. Ybarra’s new LD13 has a different
racial makeup, but do not explain how that fact alone could
possibly cause him harm. They cannot and do not claim that
LD13 was racially gerrymandered. Given that the entire
remedial map was drawn without consideration of race,
Intervenors could not meet that burden and do not try.
10
25
Nor does this Court’s decision in Bost v. Illinois
State Board of Elections suddenly provide Rep. Ybarra
the harm he’s been missing from the start. 607 U.S.
71 (2026). In a single paragraph, Intervenors claim
Rep. Ybarra suffered an injury from a “deprivation of
fair process” because his alleged interpretation of the
legality of the original LD15 differs from that of a
lower court. Pet.23. But in Bost, this Court recognized
candidate standing to challenge departures from preordained vote-counting rules. 607 U.S. at 79. Even if a
law’s potential effect on a candidate’s electoral
prospects constitutes a cognizable injury within the
limited scope of Bost—i.e., candidates’ standing to
challenge rules affecting the “counting of votes in
their elections,” 607 U.S. at 82—it most certainly is
not a cognizable Article III injury for redistricting
claims. Rep. Ybarra has not alleged that any
negligible changes to LD13 in the remedial map
resulted in an inaccurate count of votes or impacted
the integrity of his election in his uncontested race.
Moreover, Intervenors’ gloss on “deprivation of
fair process” under Bost would make it meaningless.
Bost does not hold that any candidate that disagrees
with a lower court’s legal interpretation (a generalized
grievance) has standing. See, e.g., Lance v. Coffman,
549 U.S. 437, 439, 442 (2007) (per curiam) (finding no
standing where the only injury alleged was that “the
law . . . has not been followed”); but see Pet.23 (alleging
harm because “the district court[] depart[ed] from the
law”). If that were true, any litigant who might lose
could establish legal harm. Nor, again, did the district
court’s liability decision necessarily mean LD13, a
district adjacent to the challenged district, would be
changed in any way. App.13-15. And, as explained
above, the changes to Rep. Ybarra’s district in the
26
remedial map did not hurt him—in fact they helped
him. As a result, none of the harms endorsed by the
Bost Court flow from Rep. Ybarra’s allegations, and
Rep. Ybarra cannot establish standing.
C. Intervenors lack standing to challenge
the remedial map on the basis of vote
dilution.
Neither Intervenor has standing to challenge the
remedial map on the basis of vote dilution. App.16-17.
As a threshold matter, neither Intervenor sufficiently
alleged vote dilution, let alone an injury sufficient to
establish it. Id. Nor did they bring such a claim
against any remedial district. App.15. Indeed,
Intervenors feeble attempt to undo the remedial map
“contradict[s] the heart of their position” throughout
this entire litigation, that § 2’s requirements have not
been met in the Yakima Valley. App.15.
Intervenors only argument is that their vote has
been diluted solely because the HCVAP of the
remedial district differs slightly from the original
LD15. Pet.21.12 On that basis, they claim this case
“will become a vehicle by which race-based vote
dilution can be increased rather than reduced.” Id. at
26 (emphasis in original). But this claim egregiously
misunderstands the law. Even before Callais, this
12 Curiously, Intervenors originally told this Court that the issue
on appeal would be whether a remedial district required too
many Latino voters. Petition for Writ of Certiorari Before
Judgment at 8, Trevino v. Soto Palmer, No. 23-484 (U.S. Nov. 3,
2023) (the “result of this litigation is a court-ordered remedial
map that must essentially be comprised of a supermajority of
Latinos”). Now they argue the opposite—that the district court’s
remedial district with less than a super-majority is illegal. This
about-face demonstrates the lack of merit in their arguments.
27
Court’s precedent did not allow a litigant to allege vote
dilution, let alone establish harm, solely based on a
district’s demographics. See, e.g., Thornburg v.
Gingles, 478 U.S. 30, 66 (1986) (setting out the Gingles
test and holding that courts must “take a ‘functional’
view of the political process and conduct a searching
and practical evaluation of reality” in determining § 2
liability) (internal citation omitted). Neither
Intervenor even attempted to demonstrate that the
change in HCVAP in the remedial district meant the
value of their vote was “contract[ed]” in any way,
Wesberry v. Sanders, 376 U.S. 1, 7 (1964) (describing
vote dilution), or that they lacked an equal
opportunity to participate in the political process.13
App.17. Nor can such a bare assertion based on
demographics alone suffice to establish vote dilution
post-Callais. 146 S. Ct. at 1159-60; see also App.17
(“We decline to infer from Intervenors’ allegations
that the vote of Jose Trevino . . . has been diluted
merely because he is Hispanic and will now vote
alongside fewer Hispanics.”).
More fundamentally, Rep. Ybarra does not reside
in, vote in, or represent the remedial district, and thus
13 Intervenors also argue that because prior LD15 state senator
Nikki Torres is Latina, she must be the Latino-preferred
candidate. That assumption is as offensive as it is incorrect.
Under this Court’s own precedent, a minority candidate is not
automatically the minority candidate of choice. League of United
Latin American Citizens v. Perry, 548 U.S. 399, 438-41 (2006).
The record established that Ms. Torres was not the Latino
candidate of choice. Ex.2. And under Intervenors’ own theory,
there could be no vote dilution in the remedial district, which in
2024 elected Latina Republican Gloria Mendoza as a state
representative (along with two other Republicans). See 14th
Legislative District, Yakima County, https://perma.cc/HRW8V6UM (last visited May 31, 2026).
28
has no standing to challenge it. He certainly has not
alleged or shown that his vote has been diluted in
LD13—nor could he. At bottom, neither Intervenor
even attempted to allege that they could satisfy the
Gingles preconditions and totality analysis, let alone
Callais’ reformulation of those factors in relation to
the remedial map. Callais, 146 S. Ct. at 1159-60.
Rather, all the evidence in the record demonstrates
that the remedial map, drawn without consideration
of race at all, in fact complies with Callais and
provides all voters with an equal opportunity to elect
candidates of their choice. App.21, 28. Intervenors
lack standing to challenge any remedial district for
vote dilution.
D. Intervenors’ political aims do not confer
standing.
Intervenors’ primary purpose in this litigation is
to pursue their partisan aims for LD15, which
disproves any standing to appeal. See Whitford, 585
U.S. at 72 (“this Court is not responsible for
vindicating generalized partisan preferences”).
Though Intervenors attempt to disguise their partisan
aim as various harms, the goal is no secret; they
openly outlined their partisan purpose in writing.
Supp.App.30a, 40a-41a. But as this Court reiterated
just weeks ago, “partisan gerrymandering claims are
not justiciable in federal court.” Callais, 146 S. Ct. at
1163. If Intervenors’ partisan aims are not properly
screened out at the jurisdictional phase, “and a § 2
claim is cynically used as a tool for advancing a
partisan end, the VRA’s noble goal will be perverted.”
Id. For these reasons, Intervenors lack standing to
appeal either of the decisions below.
29
The standing requirement exists to ensure that
Article III courts adjudicate only actual cases and
controversies and to prevent third parties from using
federal courts to vindicate only partisan or policy
interests. See Hollingsworth, 570 U.S. at 715; Rucho,
588 U.S. at 718 (holding that claims based on partisan
results of elections are nonjusticiable in federal
courts). However, the level of partisan advantage in
LD15 has been the basis for Intervenors’ involvement
in this suit from the start.
In preparing to intervene in this litigation,
Intervenors’ counsel Rep. Stokesbary made crystal
clear that the purpose of intervention was to further
those partisan interests. In writing, Mr. Stokesbary
noted his (unfounded) concern that this case could
result in a “safe Democratic district in Central WA.”
Supp.App.30a. To combat this, he circulated a memo
to solicit funds for Intervenors’ participation in Soto
Palmer, stating that intervention had “as much to do
with the political context as the legal issues.”
Supp.App.24a-27a. The “legal implications” included
the effect of the VRA on partisan outcomes and how
the case could be used to allow “a friendly Supreme
Court” to “reshape how the VRA operates across the
country,” while the “political implications” included
ensuring that “LD15 could be redrawn to stay reliably
Republican until 2030.” Supp.App.40a-41a. These
undeniably partisan aims demonstrate that
Intervenors’ involvement has always been a “vehicle
for the vindication of value interests,” a far cry from
any injury sufficient for Article III standing.
Diamond, 476 U.S. at 62 (internal citation omitted).
Intervenors’ “cannot circumvent” the State’s
preferences or Article III’s standing requirement “by
30
dressing their political . . . claims in racial garb.”
Callais, 146 S. Ct. at 1158. Their partisan aims
undermine their standing here.
II. Intervenors
forfeited
their
racial
gerrymandering challenge to the remedial
map.
Though the Ninth Circuit held that at least one
Intervenor had standing to press their “equal
protection claim” against the remedial map,
Intervenors forfeited that claim by failing to properly
raise and preserve it below. This Court therefore
should not reach Intervenors’ second question
presented. Despite numerous opportunities over
months of remedial proceedings in the district court,
Intervenors never once contended that any proposed
remedial map, including the selected map, was a
racial gerrymander in violation of the Equal
Protection Clause. App.32-33, 35-41. The Ninth
Circuit, though it opted to address the merits, said as
much, finding the claim “likely forfeit[ed].” App.2, 1920.
Forfeiture is reason enough to deny review. A
litigant who believes an error has occurred “must
object in order to preserve the issue,” and if “he fails
to do so in a timely manner, his claim for relief from
the error is forfeited.” Puckett v. United States, 556
U.S. 129, 134 (2009). The rule is not a technicality. It
prevents litigants from “sandbagging” (holding an
objection in reserve and pressing it only after the case
doesn’t go their way) and ensures the district court,
ordinarily “in the best position to determine the
relevant facts,” has a chance to address it. Id.
31
Intervenors had every opportunity to make their
racial gerrymandering objection to the remedial map
in the trial court and declined. See App.35-41
(considering
Intervenors’
objections,
racial
gerrymandering none among them). Instead, they
raised it for the first time on appeal and now seek this
Court’s discretionary review. The Ninth Circuit,
which has mandatory appellate jurisdiction, still
addressed the claim on its merits. But this Court’s
review on certiorari “is not a matter of right, but of
judicial discretion,” and a petition is granted “only for
compelling reasons.” Sup. Ct. R. 10.
A claim
Intervenors never attempted to raise, let alone prove,
in the forum best suited to assess it provides no such
reason.
III. The Ninth Circuit correctly upheld the
remedial map under settled precedent.
Even if Intervenors had preserved their racial
gerrymandering claim against the remedial map, the
Ninth Circuit correctly held that they failed to clear
the threshold requirement of racial predominance.
App.21. Intervenors ask (at 25) to dispense with that
requirement, but they offer no basis to do so. As this
Court put it just weeks ago in Callais, “in
gerrymandering cases a challenger must show that
race
was
the
government’s
predominant
consideration.” 146 S. Ct. at 1147 (emphasis added).14
Race
predominates
where
the
mapdrawer
“purposefully establishe[s] a racial target,” Cooper v.
Intervenors’ reliance (at 24-25) on Students for Fair
Admissions, Inc. v. President and Fellows of Harvard Coll., 600
U.S. 181 (2023), is therefore misplaced. That decision governs
race-based admissions, not the inquiry applicable to redistricting
claims like this one.
14
32
Harris, 581 U.S. 285, 299 (2017), or “subordinate[s]
traditional race-neutral districting principles . . . to
racial considerations.” Miller v. Johnson, 515 U.S.
900, 916 (1995). Absent racial predominance, strict
scrutiny does not apply.
First, Intervenors cannot satisfy that standard—
nor any standard less than predominance—because
race did not “play[] a role in the drawing of district
lines.” Callais, 146 S. Ct. at 1161 (quoting Alexander,
602 U.S. at 8). Indeed, race was not considered at all
in drawing the remedial map and did not drive the
district court’s selection of it. Unlike in Callais, where
the state intentionally set a 50%-plus racial target in
drawing the district at issue, 146 S. Ct. at 1161, the
mapdrawer here referenced no racial data and drew
every proposed map based on statutory and
traditional criteria alone. Doc.245-1; App.21. The
district court then selected among those maps for
race-neutral reasons: traditional redistricting criteria
and the State’s goals of keeping tribal lands together
and avoiding cross-Cascades districts. App.25, 28
(holding that race “was not” a motivation).
Intervenors’ claim (at 25) that strict scrutiny
applies because the district court “focused on” a
Latino community of interest “in drawing the
remedial map” is wrong on multiple levels. Plaintiffs’
expert drew the map (not the district court) and drew
it race-blind. The district court’s recognition of that
community is “far from sufficient” to trigger strict
scrutiny. App.27. “A State is free to recognize
communities that have a particular racial makeup,
provided its action is directed toward some common
thread of relevant interests.” Miller, 515 U.S. at 920.
The district court expressly found the Yakima Valley
33
community is defined by far more than race—a shared
rural and agricultural economy, common labor and
housing concerns, language, and religious and
cultural practices. App.55. Keeping it whole also
followed Washington’s statutory directive that district
lines coincide with communities of interest. RCW
44.05.090(1).
Intervenors’ alternative theory (at 25), that the
map was selected based on “politics rather than race,”
would foreclose their racial gerrymandering claim
entirely, if true. See Callais, 146 S. Ct. at 1156-57. But
it is not true: Plaintiffs’ expert drew the map without
reference to political data consistent with
Washington’s prohibition on favoring any political
party, RCW 44.05.090(5), and the map preserved the
enacted plan’s pro-Republican lean. App.29, 40-41.
Second, even if strict scrutiny applied (it does
not), the district court’s § 2 liability decision would
supply a compelling interest under Callais. 146 S. Ct.
at 1143. With respect to Gingles I, there are numerous
maps in the record that meet Callais’ requirements,
including all the remedial proposals drawn race-blind
while meeting all the State’s “legitimate districting
objectives,” including political goals. 146 S. Ct. at
1159; App.21.
Regarding Gingles II and III, the district court
rejected as factually unsound the contention that
partisanship rather than race explained polarization
in the region. App.77-78. The State’s expert testified
that there is “a real ethnic effect on voting in this
area” as distinct from a partisan one. Doc.209 at
853:15-854:15. Plaintiffs’ expert found racial
polarization and white bloc voting in numerous
nonpartisan races. Ex.1 at 15-16. And Intervenors’
34
own expert identified evidence of cohesive Latino
voting preferences distinct from partisanship in an
election where Latino voters preferred a Republican
over a Democrat, but that candidate lost due to white
voting patterns. App.56 n.8 & 77 n.14. Mr. Garcia also
testified to racial discrimination he faced within the
state Republican Party running for office as a Latino
Republican in the region. Doc.191-7 at 75:2-77:13,
90:12-92:15. This is strong evidence of “intra-party
racial-bloc voting,” demonstrating minority voters
have “less opportunity than their majority
counterparts because of race, not just because of
partisan affiliation.” Callais, 146 S. Ct. at 1159
(internal quotation omitted).
Furthermore, “current conditions” in the Yakima
Valley “show an objective likelihood of intentional
discrimination based on the totality of circumstances.”
Id. at 1162. Those circumstances include, for example,
discriminatory “official election practices and
procedures” maintained “as recently as the last few
years,” App.61, overt racial appeals in recent
elections, and persistent suppression of Latino
participation, especially among agricultural workers
due to fear of retribution from white land-owning
employers. App.65. Other extensive record evidence
established that the Commissioners purposefully
drew an LD15 that would not elect known Latinopreferred candidates while remaining nominally
majority-HCVAP, including various draft maps,
contemporaneous statements during negotiations,
and evidence of significant departures from ordinary
process. See, e.g., Ex.487.
In short, the second question presented is one
Callais has already answered in favor of affirming the
35
district court’s remedial order. It does not merit
review.
CONCLUSION
For the foregoing reasons, the Petition should be
denied.
June 2, 2026
Respectfully submitted,
Chad W. Dunn
Sonni Waknin
UCLA Voting Rights Project
3250 Public Affairs Bldg.
Los Angeles, CA 90095
Mark P. Gaber
Counsel of Record
Simone Leeper
Aseem Mulji
Benjamin Phillips
Isaac DeSanto
Campaign Legal Center
1101 14th St. NW, Ste. 400
Washington, DC 20005
(202) 736-2000
mgaber@campaignlegal.org
Thomas A. Saenz
Ernest Herrera
Mexican American Legal
Defense and Education Fund
643 S. Spring St., 11th Fl.
Los Angeles, CA 90014
Edwardo Morfin
Morfin Law Firm PLLC
2062 N. Proctor St., Ste. 205
Tacoma, WA 98407
Annabelle E. Harless
Campaign Legal Center
55 W. Monroe St., Ste. 1925
Chicago, IL 60603
Counsel for Respondents Susan Soto Palmer, Alberto
Marcias, Faviola Lopez, Caty Padilla, and Heliodora
Morfin.
APPENDIX
i
TABLE OF APPENDICES
Page
A PPENDIX A — EXCERPTS FROM REMEDIAL HEARING TRANSCRIPT, 3/8/24 . . . . . 1a
APPENDIX B — EX. 399 (TEXT THREAD
WITH PAUL GRAVES, BENANCIO GARCIA,
AND MAIA ESPINOZA, 3/1/22) . . . . . . . . . . . . . . 12a
APPENDIX C — EX. 400 (TEXT THREAD
WITH BENANCIO GARCIA AND PAUL
GRAVES, 3/2/22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14a
APPENDIX D — EX. 401 (3/4-7/22 EMAIL
THREAD WITH DREW STOKESBARY,
ROB MAGUIRE, ADAM KINCAID, DAVID
NORDLINGER, AND HARRY KORRELL RE
CONNECT RE WASHINGTON STATE) . . . . . . . 18a
APPENDIX E — EX. 405 (3/28-4/21/22 EMAIL
THREAD WITH DREW STOKESBARY,
ET AL. RE STATUS OF REDISTRICTING
LITIGATION) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21a
APPENDIX F — EX. 437 (CITIZEN ACTION
DEFENSE FUND ONE PAGER ON WASHINGTON REDISTRICTING LITIGATION) . . . . 39a
1a
Appendix
A
APPENDIX A
— EXCERPTS
FROM
REMEDIAL HEARING TRANSCRIPT, 3/8/24
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
C22-5035-RSL
SUSAN SOTO PALMER, et al.,
Plaintiffs,
v.
STEVEN HOBBS, et al.,
Defendants.
JOSEPH TREVINO, et al.,
Intervenor-Defendants.
March 8, 2024 — 1:30 p.m.
EVIDENTIARY HEARING
VERBATIM REPORT OF PROCEEDINGS
BEFORE THE HONORABLE ROBERT S. LASNIK
UNITED STATES DISTRICT JUDGE
2a
Appendix A
APPEARANCES:
For the Plaintiffs:
Annabelle Harless
Campaign Legal Center
55 W. Monroe Street, Suite 1925
Chicago, IL 60603
Simone Leeper
Aseem Mulji
Benjamin Phillips
Campaign Legal Center
1101 14th Street N.W., Suite 400
Washington, DC 20005
Ernest Israel Herrera
Mexican American Legal Defense
and Educational Fund
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
[2] For Defendant
Steven Hobbs:
Karl David Smith
Attorney General’s Office
P.O. Box 40100
1125 Washington Street S.E.
Olympia, WA 98504-0100
For Defendant
Cristina Sepe
State of Washington: Andrew Hughes
Attorney General’s Office
800 Fifth Avenue
Suite 2000
Seattle, WA 98104
3a
Appendix A
For the IntervenorDefendants:
Caleb Acker
Holtzman Vogel Baran Torchinsky
& Josefiak PLLC
15405 John Marshall Highway
Haymarket, VA 20169
Dallin Holt
Holtzman Vogel Baran Torchinsky
& Josefiak PLLC
2575 E. Camelback Road, Suite 860
Esplanade Tower IV
Phoenix, AZ 85016
Andrew Stokesbary
Chalmers Adams Backer &
Kaufman LLC
701 Fifth Avenue, Suite 4200
Seattle, WA 98104
[3] EXAMINATION INDEX
EXAMINATION OF
LOREN
DIRECT EXAMINATION
COLLINGWOOD
BY MS. HARLESS
CROSS-EXAMINATION
BY MR. HOLT
KASSRA A.R.
DIRECT EXAMINATION
OSKOOII
BY MR. MULJI
CROSS-EXAMINATION
BY MR. HOLT
PAGE
6
10
24
40
4a
Appendix A
CATY PADILLA
SEAN TRENDE
KASSRA A.R.
OSKOOII
SEAN TRENDE
CROSS-EXAMINATION
BY MS. SEPE
DIRECT EXAMINATION
BY MR. PHILLIPS
CROSS-EXAMINATION
BY MR. STOKESBARY
DIRECT EXAMINATION
BY MR. ACKER
CROSS-EXAMINATION
BY MS. HARLESS
REDIRECT EXAMINATION
BY MR. ACKER
DIRECT EXAMINATION
BY MR. MULJI
CROSS-EXAMINATION
BY MR. HOLT
DIRECT EXAMINATION
BY MR. ACKER
56
58
62
71
86
100
104
113
117
EXHIBIT INDEX
EXHIBITS ADMITTED
533 – 538
PAGE
69
*
*
*
KASSRA A.R. OSKOOII—Direct (Mulji)
[28] evaluated proposed congressional maps, and then,
eventually, the enacted or adopted Florida congressional
maps.
5a
Appendix A
Q Let’s turn now to this case. Can you please tell us
what you were retained to do here?
A Yes. I was asked to rely on Washing ton’s
redistricting criteria and traditional redistricting
principles to craft a Legislative District 14 that unites
population centers from East Yakima to Pasco, along
the Yakima Valley, which form a community interest, as
identified by the court. And I was very specific as to not
rely on any racial and ethnic data or otherwise view it or
reference it, and the same goes for any political, electoral,
or partisan analytics data.
Q And before we delve into any one specific map,
would you mind explaining your general approach? How
did you sit down to start, when you started this task?
A So in a case of remedial scenario, the way it works,
I started with an Enacted Map for Washington State, and
I attempted to introduce only changes that were necessary
to craft the Legislative District 14, remedial Legislative
District 14.
Q You mentioned a couple of things you did not
consider. One of them was political data and election data.
How did you shield yourself from that data while drawing
maps?
A So I relied on Dave’s Redistricting Application
for drawing these remedial proposals, and it’s very
simple, actually, when it comes to political or partisan
analytics. Before you start [29] drawing the lines, there’s
6a
Appendix A
a “Settings” tab, where you can click out or remove any
political or partisan data, and that’s what I did.
Q The same question for racial demographic data.
How do you shield your eyes from that?
A Yeah. You can take out racial and ethnic
demographic data breakdowns by county, cities, VTDs,
or blocks by removing, essentially, two tabs on each side
of the application.
Q I would like to turn to page 17 of your January
5th report, which was filed at Docket No. 245-1. And, for
the record, that’s ECF Page No. 18. And I will wait for
us to get there.
MR. MULJI: Docket No. 245-1. Apologies, Your
Honor, technical difficulties. And I gave away my binder,
but actually—thank you.
And my apologies. That’s actually Docket No. 277
that I’m asking about, at page 17. Oh. No, I’m sorry. I
was correct. 254-1. I’m getting my numbers all mixed up.
It’s up. Wonderful.
Q For clarity of the record, I’m pulling up page
17 of 254-1, a filed document, and that’s your March or
your—I’m sorry, your January 5th report. Do you see
that on your screen now?
A
Yeah, I see a report. Yes.
7a
Appendix A
Q Okay. And do you see a couple of maps there on
your screen?
A
Yes. I see one at least.
Q
I’m going to actually just use the ELMO here.
*
*
*
[32] Q Now, perhaps this goes without asking, but for
clarity of the record, did race predominate in the drawing
of any maps that you submitted in this case?
A No. Since I did not have access to race and
ethnicity data while drawing, it wasn’t even a factor for it
to even predominate.
Q Let’s turn now to Map 3A, and we will try to pull
it up on the screen.
MR. MULJI:
There we go. Thank you.
Your Honor, my colleague has pulled up the HTML
version of Map 3 that was submitted to the court by e-mail.
Q
Dr. Oskooii, do you see Map 3A on your scene?
A
Yes, I do.
Q All right. And is the approach that you just
described a little earlier the same approach you used to
draw up Map 3A?
8a
Appendix A
A
Yes.
Q Now, you also drew a map labeled “Map 3.” Can
you explain the difference between Map 3A and Map 3?
A Yeah. There is a very minor difference between
3 and 3A. 3A is introduced with incumbent pairing based
on updated addresses that I received.
Q Now, turning specifically to District 14 in this
map, is the version of LD 14 in Map 3A the same as the
LD 14 in Map 3?
A
Yes, it is.
Q And what’s distinctive about this particular
configuration of
*
*
*
[39] mentioned an issue with the Hanford Nuclear Site.
Can you say more about that?
A Yes. I believe that intervenors have argued in
the past that the Hanford Nuclear Site is of strategic
importance to the city of Richland for various reasons, and
the only thing that I can note is that the Hanford Nuclear
Site is segregated from the city of Richland in Dr. Trende’s
map, but that is not the case in Map 3A.
Q How does Dr. Trende’s map compare with yours
in terms of compactness?
9a
Appendix A
A Yes. In terms of compactness, Dr. Trende and I
have consistently used two compactness scores, PolsbyPopper and Reock. And when it comes to Polsby-Popper,
we achieve the same compactness score; however, on the
Reock metric, Map 3A scores higher, which means—which
is indicative of a more compact map.
Q And, finally, how does Dr. Trende’s map compare
in its treatment of the Yakima Nation’s stated concerns
in this case?
A Yes. Another issue, if I may say, of Legislative
District 15 in Dr. Trende’s map is that it actually cuts a
portion of the Yakima Nation Reservation and segregates
it from LD 14 and puts it in LD 15. And this is not just an
issue of like trapped polygons or zero-population areas,
because that can be addressed and resolved. There are
actually people who live on that section. In fact, that
section is within the municipal boundaries of Union Gap,
so I presume perhaps Dr. Trende did not [40] want to
cut through Union Gap and wanted to maintain that
municipality, and that’s why that happened. But as I show
in Map 3A, that can totally be avoided, and that Union
Gap can be kept whole and not cutting into the Yakima
Nation Reservation.
Q Dr. Oskooii, thank you for your patience with me
and for being here today.
MR. MULJI:
And I will pass the witness.
THE COURT:
Thanks, Mr. Mulji.
10a
Appendix A
Okay. Who’s got this witness? Also Mr. Holt. Okay.
MR. HOLT:
I do, Your Honor.
THE COURT:
MR. HOLT:
my papers here.
Great.
Give me just a minute here to pick up
CROSS-EXAMINATION
BY MR. HOLT:
Q
Good morning, Dr. Oskooii. How are you?
A
Good morning.
Q
Nice to see you again.
A
Good to see you again too.
Q So before we kind of work through the questions I
wanted to talk to you about today, I’m just going to touch
on a few things that you just barely covered with plaintiffs’
counsel, if that’s okay.
Now, you brought up the fact that Dr. Trende’s
illustrative map cracked community of interest by splitting
off Toppenish and
*
*
*
11a
Appendix A
SEAN TRENDE—Cross (Harless)
[95] subdivision splits, correct?
A That’s right. If there’s a subdivision that has to
be included at the boundary, then I guess that would be
inexplicable. But I also know from having drawn a lot of
maps that if you get one of these little bulges sticking
out, in my experience, you try to also include precincts
surrounding it, to keep those bulges from occurring.
Q In your initial report, you claim that plaintiffs’
Map 3 shifted census blocks in 28 out of the state’s 39
counties, correct?
A
Yeah. That was a mistake.
Q And the remedial district in your map is labeled
15, not 14, right?
A
I think that’s right.
Q And this means the state Senate election in your
remedial district will be held in an off year, where there’s
no presidential or gubernatorial election, correct?
A Well, if that were—so I guess phrasing it as a
remedial district, that would be true. I mean, the main
goal with drawing that map was just to see if it were
possible, like I said, to keep the interests of the Yakima
Nation intact while still drawing a district that would
perform. So if, as an actual remedial map, that were a
problem, you could flip the numbers on it. But, yeah, it
would occur in an off-year election as currently numbered.
*
*
*
12a
APPENDIX B —Appendix
EX. 399 B
(TEXT THREAD
WITH PAUL GRAVES, BENANCIO GARCIA,
AND MAIA ESPINOZA, 3/1/22)
13a
Appendix B
14a
Appendix
C THREAD WITH
APPENDIX C — EX.
400 (TEXT
BENANCIO GARCIA AND PAUL GRAVES, 3/2/22)
15a
Appendix C
16a
Appendix C
17a
Appendix C
18a
D EMAIL THREAD
APPENDIX D — EX.Appendix
401 (3/4-7/22
WITH DREW STOKESBARY, ROB MAGUIRE,
ADAM KINCAID, DAVID NORDLINGER, AND
HARRY KORRELL RE CONNECT
RE WASHINGTON STATE)
From:
Sent:
Monday, March 7, 2022 8:17 AM PST
To:
robmaguire@dwt.com
Subject: Re: Connect re Washington state
Drew Stokesbary
Stokesbary PLLC
1003 Main St., Suite 5
Sumner, WA 98390
www.stokesbarypllc.com
On Mar 7, 2022, at 7:48 AM, Maguire, Robert
<robmaguire@dwt.com> wrote:
Rob Maguire
Davis Wright Tremaine LLP
Begin forwarded message:
From: “Maguire, Robert” <robmaguire@dwt.com>
Date: March 4, 2022 at 10:40:34 AM PST
To: Adam Kincaid <adam@thenrrt.org>
Cc: “Nordlinger, David” <DavidNordlinger@dwt.com>,
harrykorrell@dwt.com
Subject: RE: Connect re Washington state
Hi Adam -
19a
Appendix D
It’s nice to meet you. Please let me know if you have a few
minutes to talk today about Washington redistricting
litigation plans. Thanks.
Rob Maguire | Davis Wright Tremaine LLP
920 Fifth Avenue, Suite 3300 | Seattle, WA 98104
Tel: (206) 757-8094 | Fax: (206) 757-7094
Email: robmaguire@dwt.com | Website: www.dwt.com
Anchorage | Bellevue | Los Angeles | New York |
Portland | San Francisco | Seattle | Washington, D.C.
-----Original Message----From: Paul Graves <paul@enterprisewashington.org>
Sent: Friday, March 4, 2022 7:09 AM
To: Adam Kincaid <adam@thenrrt.org>;
Maguire, Robert <robmaguire@dwt.com>;
Nordlinger, David <DavidNordlinger@dwt.com>
Subject: Connect re Washington state
[EXTERNAL]
Rob, David, Adam,
Rob and David are lawyers at Davis Wright Tremaine
here in Seattle, getting up to speed on the redistricting
litigation. Adam r uns the National Republican
redistricting trust, and it’s foundation, the Fair Lines
America Foundation, which I believe can serve as a
financing vehicle for this work. I’ll let you three connect.
20a
Appendix D
Paul Graves
President, Enterprise Washington
206-818-5607
Sent from my phone
21a
E
APPENDIX E — Appendix
EX. 405 (3/28-4/21/22
THREAD WITH DREW STOKESBARY, ET AL.
RE STATUS OF REDISTRICTING LITIGATION)
From:
Date:
To:
Drew Stokesbary
April 21, 2022 9:04:53 AM (-07)
John Braun; JT Wilcox; Jim Troyer;
Caleb Heimlich
Subject:
Re: Status of Redistricting Litigation
Attachments: Redistricting Litigation Memo.pdf;
Thanks everyone for the feedback on the slide deck, it
was helpful.
Along similar lines, here’s an updated “legal memo” I put
together as well. The idea here was to create something
a little more high-level than the slide deck, as well as a
document that could be sent to interested parties as a
standalone document (i.e., without me or somebody else
needing to walk them through slide by slide). At least
for now, it seems wise to keep CADF’s logo off these
materials given Paul’s involvement in the Commission
and CADF. Anyway, I’ve already had a couple folks ask
for something like this so let me know if you have any
thoughts or suggestions when you have a chance.
Thanks,
Drew
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
22a
Appendix E
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Tuesday, April 19, 2022 at 3:50 PM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>,
Caleb Heimlich <calebheimlich@wsrp.org>
Subject: Re: Status of Redistricting Litigation
Here’s a slide deck I put together for prospective
donors, etc. Let me know if you have any suggestions on
conveying relevant info—always a challenge to provide
the appropriate level of detail of complex issues for folks
with little-to-know context.
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Tuesday, April 19, 2022 at 10:12 AM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>,
Caleb Heimlich <calebheimlich@wsrp.org>
Subject: Re: Status of Redistricting Litigation
23a
Appendix E
EXCITING NEWS: we found a national donor willing to
match up to $250k for the litigation effort. In conjunction
with this, Jason Torchinsky, a partner at Holtzman Vogel
with extensive experience in redistricting litigation, would
agree to join the case as co-counsel.
Of course, that means we still need to raise at least $250k
locally. But hopefully the prospect of a matching donation
and respected national counsel will provide sufficient
donor impetus.
I’ve been putting together a short slide deck to present
to prospective donors; should have that wrapped up in
coming days.
Let me know if you have any thoughts or suggestions on
how to proceed.
-Drew
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
24a
Appendix E
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Wednesday, April 13, 2022 at 9:08 AM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>,
Caleb Heimlich <calebheimlich@wsrp.org>
Subject: Re: Status of Redistricting Litigation
Preliminary Injunction is DENIED.
Billig and Jinkins are dismissed as defendants.
Reading rest of order now.
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Tuesday, April 12, 2022 at 3:35 PM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>,
Caleb Heimlich <calebheimlich@wsrp.org>
Subject: Re: Status of Redistricting Litigation
25a
Appendix E
Fair Lines America Foundation has set up a Washington
affiliate that will pay 100% of its proceeds to litigation
expenses here in WA. We can provide this form to
interested donors, which has check and wiring info
included.
They are a 501(c)(3) organization so contributions are taxdeductible. This may also be useful for certain trusts and
family foundations.
Their only request is that, to safeguard their 501(c)(3)
status, that we let them review any written solicitations
we might want to send.
Sent from my iPhone
On Apr 12, 2022, at 1:05 PM, Drew Stokesbary <drew@
citizenactiondefense.org> wrote:
Hearing on preliminary injunction just concluded.
No decision yet, but judge said he would have an opinion
issued by close-of-business tomorrow, April 13.
I’m not sure what to predict at this point, as I’m pretty
sure my own internal biases and my anxiety are drowning
my ability to rationally read the judge.
The judge was definitely skeptical about the makeup of
the defendants.
He also wanted to mostly focus on the timing issues.
I think the unfortunate news there is that the AAG
26a
Appendix E
representing Hobbs only gave very measured answers
in response to timing concerns. She mostly pointed to
precinct revisions that would need to take place, and
seemed to say the window for counties to do that was still
open for another week or two.
The judge did permit me to address some arguments for
a few minutes (I wasn’t timing, but it was probably more
than 5 and less than 10). I got through about half of my
arguments before he decided to move on (nobody else had
a time limit, but of course, since the motion to intervene
hasn’t been granted yet, I’m not a party yet).
The one comment from the judge that concerns me
deeply (and it was before I had a chance to speak) is
when he said something along the lines of he agrees that
“plaintiffs are likely to succeed on the merits of there
being discrimination.” It was kind of a throwaway line in
context—it was in the middle of some other remarks in the
middle of the hearing. But a “likelihood of success on the
merits” is one of a few things you have to show to obtain
a preliminary injunction, so I’m not sure if he was saying
that he thinks plaintiffs are likely to succeed on the merits
of this whole claim, or just with respect to the narrower
issue of whether discrimination exists in Yakima.
So anyway, an 18 hour reprieve and then potentially
another very furious appeal.
Drew Stokesbary
President
Citizen Action Defense Fund
27a
Appendix E
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Friday, April 8, 2022 at 5:03 PM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>,
Caleb Heimlich <calebheimlich@wsrp.org>
Subject: Re: Status of Redistricting Litigation
Here’s a very high level “memo” describing the litigation
that could potentially be shared with donors.
Let me know what you all think. It has as much to do
with the political context as the legal issues. I can add
or subtract things, and/or fashion it as more of a typical
“legal memo” if it seems like that would be more effective.
Btw, please don’t circulate quite yet, I need to run by my
board first. But wanted to get your thoughts/suggestions
in the meantime.
-Drew
Drew Stokesbary
President
28a
Appendix E
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Friday, April 8, 2022 at 1:17 AM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>,
Caleb Heimlich <calebheimlich@wsrp.org>
Subject: Re: Status of Redistricting Litigation
Another (quick) update—I filed the attached response
to plaintiffs’ motion for preliminary injunction with the
Court just now. It’s as exhaustive as possible given the
space constraints (and, frankly, accomplishes what a team
of AAGs should have done if their clients weren’t acting
like political hacks).
I don’t expect any more updates this week. By Monday,
plaintiffs have to file any response to my motion to
intervene. I expect they’ll do so but their arguments are
likely weak.
Then of course, Tuesday is the preliminary injunction
hearing.
-Drew
29a
Appendix E
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Tuesday, April 5, 2022 at 8:11 PM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>
Subject: Re: Status of Redistricting Litigation
I wanted to give a brief update:
As promised, last Tuesday I filed a Motion to Intervene
in Palmer v. Hobbs (which you can read here).
Then on Friday, the Court scheduled a hearing on the
Plaintiffs’ Motion for Preliminary Injunction. That hearing
will be next Tuesday, April 12 at 10:00 AM. As a reminder,
the Plaintiffs have requested the Court (a) prohibit the
Secretary of State from conducting any elections under
the Commission’s approved legislative maps and (b) order
that plaintiffs’ proposed legislative map be implemented
for all elections, beginning with 2022 elections.
30a
Appendix E
Although the judge has not ruled on my Motion to
Intervene (and likely will not until next Friday, April 15 at
the earliest), his assistant indicated that he would permit
me to participate in the preliminary injunction hearing on
Tuesday unless the parties strenuously object. I am also
furiously working through a brief opposing preliminary
injunction so that the judge will have a comprehensive
written record contesting the merits of the plaintiffs’
claims. I’m hoping to finish that by tomorrow.
In light of this, we should begin fundraising urgently:
• If the plaintiffs’ request for injunction is granted,
we would want to immediately appeal. (If we don’t
appeal, their map would create a safe Democratic
district in Central WA for the 2022 elections, and
jumble several incumbents between the 14th and
15th districts).
• If the plaintiffs’ request for injunction is denied,
they could appeal immediately and we would want
to defend against that. (They have the right to an
immediate appeal and other redistricting attorneys
I’ve spoken with this week think the plaintiffs
would be likely to do so.)
• Either way, we should be prepared to participate
in an immediate appeal.
I am skeptical we can retain competent appellate counsel
or co-counsel on a pro bono basis. I expect any firm,
large or small, will need to see at least some fundraising
31a
Appendix E
progress before agreeing to an engagement. I’ve made
a small handful of preliminary inquiries, but I do not
yet have any commitments. Just like how the statewide
business community views the importance of a candidate’s
early in-district funding, it sounds like national donors to
redistricting litigation prefer to see some level of in-state
support before they get involved. I’m happy to help in
fundraising however it’s helpful, but I’m not sure I have
the bandwidth, leverage or persuasiveness to do it alone.
Let me know if you have any questions, or any thoughts
on next steps for this.
Best,
Drew
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
From: Drew Stokesbary <drew@citizenactiondefense.org>
Date: Monday, March 28, 2022 at 10:00 PM
To: John Braun <JohnBraun@braunnorthwest.com>,
JT Wilcox <jtwilcox111@gmail.com>,
Jim Troyer <jamestroyer@comcast.net>
Subject: Status of Redistricting Litigation
32a
Appendix E
I’m not sure what you hear from the Legislature’s
attorneys, but here’s a comprehensive update of where
both cases are at and what my litigation plans are (please
keep this confidential though):
Palmer v. Hobbs (original case, spearheaded by UCLA VRP)
• On Feb. 23, Billig and Jinkins filed a motion to be
dismissed as plaintiffs. Honestly they’re correct and
the court should grant this, but the plaintiffs filed a
brief opposing it and the court hasn’t issued a ruling
yet.
• On Feb. 25, Plaintiffs filed a motion for preliminary
injunction.
• Hobbs, as promised, didn’t dispute any of plaintiffs’
VRA claims, but he at least argued that the court
shouldn’t stop elections and that if his office doesn’t
have a new map by March 28 (today), then it’s too
late to implement a new map done this election
cycle.
• Jinkins and Billig didn’t really contest any of
plaintiffs’ claims either. They at least explained to
the court what all the applicable legal standards
were, and 1-2 times did some light pushback on
what plaintiffs’ said the law was. But they didn’t
make any effort to apply the law to the facts in
the case, much less suggest any shortcomings in
plaintiffs’ argument. The whole thing read like a
memo from an intern/summer associate trying to
summarize the law for their boss.
33a
Appendix E
• Last Friday, plaintiffs filed their “reply” to the
defendants’ responses. For the first time, they
presented an actual statewide proposal, which
I’ve attached here. I haven’t had a chance to look
through it carefully yet (and I’m not even sure if
they’ve provided it in a format other than a halfpage PDF), but a cursory glance suggests they
leave the westside districts intact and are just
rejiggering Eastern WA boundaries.
• Briefing on that motion closed Friday, so the court
could conceivably rule on it at any point now. For
reasons described below, I’m hoping they wait a
little longer.
• Last Thursday, Hobbs petitioned the court to require
that plaintiffs add the State itself, the Redistricting
Commission, and/or the individual Commissioners
as parties to the lawsuit. I’m genuinely curious how
plaintiffs respond to this, because I can’t think how you
could argue against this with a straight face. Briefing
on this closes April 8, at which point the court could
issue a ruling.
• Tomorrow morning (just awaiting one signature),
I’ll be filing a motion to intervene on behalf of four
individuals—Jose Trevino, the mayor of Granger;
Elpidia Saavedra, the mayor of Toppenish; Mel
Campos, the brother of Paul Campos; and Alex Ybarra.
I think it’s a really strong motion and will frankly
be shocked if the court denies it. But assuming they
grant it, we’ll have a great opportunity to engage in
34a
Appendix E
the litigation and influence it in ways that the other
parties won’t. If plaintiffs ultimately fail, it will be
because of us.
• I’m also working on a response brief opposing plaintiffs’
motion for preliminary injunction, which hopefully I
can finish before the court issues a ruling (as mentioned
above, it became eligible for a ruling starting today).
This will also be a strong brief. Assuming I can get it
submitted before the preliminary injunction ruling,
and that the injunction is denied, it will be obvious to
everyone that our brief is what persuaded the court,
not any of Hobbs/Billig/Jinkins’ briefs.
• Once the motion to intervene is granted, I also plan
to file a motion to dismiss the case. There are several
grounds for this, most notably being that the VRA
doesn’t contain a private right of action. For years
courts just assumed this, and only recently did it begin
to get litigated. A federal court in Arkansas just issued
a comprehensive opinion explaining why the VRA does
not have a private right of action. Even if the court
rejects the motion, there might still be an opportunity
to appeal to the Ninth Circuit and then the Supreme
Court and have it consolidated with that Arkansas
case (which just got appealed to the Eighth Circuit).
There’s another argument too—that the VRA doesn’t
apply to redistricting. This is something Clarence
Thomas has been writing in his concurrences/dissents
for the past decade, and now Gorsuch is joining with
him. While we won’t win at the trial court with this
argument, there’s a low but nonzero chance if we get it
35a
Appendix E
to the Supreme Court, the conservative bloc will adopt
Thomas’s arguments.
• Once these initial briefs (motion to inter vene,
opposition to motion for preliminary injunction and
motion to dismiss) are filed in the next couple of weeks,
the next steps will depend largely on how the court
has ruled.
• If we lose on the preliminary injunction, we can
appeal to the Ninth Circuit, and will probably want
to.
• If we win on preliminary injunction (that is, it’s
denied), then plaintiffs can appeal to the Ninth
Circuit but they probably won’t want to.
• If we win on motion to dismiss, the other side will
surely appeal to the Ninth Circuit.
• If we lose on motion to dismiss, we don’t have a right
to appeal to the Ninth Circuit (the district court
could, but doesn’t have to, let us), but we might want
to try.
• If both motions are denied, and nobody appeals,
then the case will proceed. At that point, we’ll likely
need to hire a statistician and/or demographer to
poke holes in plaintiffs’ arguments.
• At some point, we could try to move for summary
judgement. We’d certainly have a sound basis to do
36a
Appendix E
so, but entirely possible the court wouldn’t agree.
If that motion is granted, it would be appealed to
the Ninth Circuit by the plaintiffs.
• If no motion for summary judgement is granted,
then at some point (currently scheduled to be
early January 2023), we’d have a trial, the results
of which the loser would almost certainly want to
appeal.
Garcia v. Hobbs (new case, I represent Garcia)
• I filed the complaint in this case about two weeks ago.
• Legal argument is that the LD15 was drawn primarily
on account of race, which violates the 14th Amendment.
The practical outcome, if successful, is an order to
draw new maps in Yakima area that ignore race, which
would let us re-draw LD15 in a way that is much safer.
• This case is kind of in a holding pattern now.
• Because of how aggressively UCLA plaintiffs are
pursuing the Palmer case, and how unaggressively
the present defendants are defending the case,
getting involved in Palmer is the more urgent
priority.
• Once we get the initial round of filings taken
care of in Palmer, I can put together a motion
for preliminary injunction in Garcia (but given
how soon elections are coming, it’s unlikely to be
granted).
37a
Appendix E
• A big value of having this case on the books, and
complaint already written and filed, is that we
could consolidate the two cases together if it’s
advantageous. At this point, that might happen for
two reasons:
• A federal law says that any case challenging
the constitutionality of redistricting is entitled
to be heard by a panel of 3 judges, and appeals
from the panel go straight to the Supreme
Court. Palmer is a statutory challenge, not
a constitutional one, so we likely won’t get a
3-judge panel. But if we consolidate the cases,
we’d likely get the 3-judge panel meaning
appeals go straight to the Supreme Court
(which is better for us than going through the
Ninth Circuit).
• If at any point we think it would be better to
have the Redistricting Commission involved
in the Palmer case to defend the maps, the
intervenors could countersue them on the same
grounds as the Garcia complaint. Rather than
asking the judge to do this (which Hobbs is
doing), we could force it to happen.
To sum it all up, there’s a relative flurry of motions and
filings taking place now. Initial rulings on those motions
could start to come in literally any day now. Depending on
how those initial rulings go, there might be an immediate
flurry of appellate work to do, or things might slow down
as the case proceeds methodically to trial.
38a
Appendix E
Happy to answer any questions (assuming they don’t
violate attorney-client privilege).
-Drew
Drew Stokesbary
President
Citizen Action Defense Fund
1003 Main St, Suite 5
Sumner, WA 98390
P: (206) 486-0795
C: (206) 207-3920
E: drew@citizenactiondefense.org
W: www.citizenactiondefense.org
39a
F
APPENDIX F —Appendix
EX. 437 (CITIZEN
ACTION
DEFENSE FUND ONE PAGER ON WASHINGTON
REDISTRICTING LITIGATION)
CITIZEN ACTION DEFENSE FUND
Washington Redistricting Litigation
Factual Background
In November 2021, the Redistricting Commission approved
new legislative district maps. During their deliberations,
a left-wing advocacy group threatened litigation unless
there was a majority-Latino district created in the Yakima
Valley. As a result, the Commission reached a political
compromise, drawing a Yakima-Pasco district (LD15) that
was 50.02% Latino and 50.39% Republican.
Litigation Background
The group sued anyway, alleging the legislative maps
violate the Voting Rights Act (VRA). They ask the court to
impose a new map, beginning with the 2022 elections, that
creates a 59% Democrat district in Central Washington.
The lawsuit only names three Democrat elected officials
as defendants—the Secretary of State, Speaker of the
House and Senate Majority Leader—none of whom were
involved in drawing the original maps. The Secretary of
State has notified the court he “takes no position” on the
merits of the VRA claim and the Speaker and Majority
Leader have moved to be dismissed as defendants. The
Redistricting Commission has declined to intervene to
defend their maps.
40a
Appendix F
Citizen Action Defense Fund (CADF) is supporting a twopronged legal effort. First, a group of Latino voters have
filed a motion to intervene in the original case (Palmer v.
Hobbs), where they are opposing plaintiffs’ VRA claims
and legal arguments. Second, another Latino voter has
filed a separate lawsuit (Garcia v. Hobbs) alleging the 15th
District is unconstitutional and should be redrawn on an
entirely race-blind basis.
Legal Implications
At its absolute core, the Palmer case is about whether
the VRA can used to mandate a particular partisan
outcome. Because there is very little Ninth Circuit caselaw
interpreting the VRA, failing to forcefully contest this
lawsuit could result in troubling legal precedents that
would apply to future Washington VRA cases.
Conversely, if Palmer is fully litigated, it could eventually
present several legal questions to a friendly Supreme
Court that would give the Court an opportunity to reshape
how the VRA operates across the country. Most VRA
cases involve challenges to politically-gerrymandered
districts. But Palmer is unique in that it challenges a
swing district produced through political compromise.
Because there would be few equity concerns facing the
Court, it could use the case as the basis to find that the
VRA locks a private right of enforcement, doesn’t apply
to redistricting, or even is unconstitutionally vague.
41a
Appendix F
Political Implications
If Palmer is successful, an entire legislative district will
be “flipped” for the remainder of the decade, and perhaps
beyond. If both lawsuits fail, LD15 will lean Republican
for the near future but become increasingly difficult to
hold. If Garcia is successful, LD15 could be redrawn to
stay reliably Republican until 2030.
Next Steps
The Court is holding a preliminary injunction hearing in
Palmer on April 12. Whether the injunction is granted or
denied, the intervenors are preparing for an immediate
appeal to the Ninth Circuit. It could take 1-2 years to fully
resolve both cases, but the maps for the 2022 cycle will
likely be finalized by mid-May.
The total litigation budget remains indeterminate, but is
currently estimated to be at least $250,000. A significant
amount of legal work has already been performed, but
much work remains, including drafting motions, taking
depositions and preparing appellate briefs. Co-counsel as
well as a statistician and/or demographer will likely need
to be retained.
About CADF
CADF is a nonprofit organization dedicated to promoting
free markets, limited government and the constitutional
rights of all Washingtonians through strategic litigation.
It is led by Drew Stokesbary (President and Director)
and Paul Graves and Dann Mead Smith (both Directors).
42a
Appendix F
To protect their privacy, CADF does not publicly disclose
its donors, nor are we legally required to. For tax-exposed
donors, CADF expects to enter into a partnership with
a 501(c)(3) tax-exempt organization to help fund this
litigation.
To learn more, contact Drew Stokesbary at drew@
citizenactiondefense.org.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.