[00:00:01] Speaker 03: Good morning, Your Honors. [00:00:02] Speaker 03: May it please the Court. [00:00:03] Speaker 03: My name is Dallin Holt. [00:00:04] Speaker 03: I'm with the law firm of Holtzman Vogel, and I'm here on behalf of the Soto Palmer Appellant Interveners. [00:00:10] Speaker 03: I will be handling the argument for the consolidated Palmer matters, and my colleague Caleb Acker will handle the argument for Mr. Garcia and the related matter that follows this. [00:00:19] Speaker 03: I would like to reserve five minutes for rebuttal. [00:00:23] Speaker 03: As far as redistricting cases go, [00:00:25] Speaker 03: This matter is unique for two primary reasons. [00:00:28] Speaker 03: First, it is unique here because plaintiffs successfully used section two of the VRA to claim that an existing majority minority district by Hispanic citizen voting age population, or HCVAP, that provided equal access to the polls did not provide an equal opportunity for Hispanic voters in the Acoma Valley to elect their candidates of choice. [00:00:54] Speaker 03: Second, this case is doubly unique in that for the first time in a section two vote delusion context, plaintiffs proposed and the district court adopted a remedial map in an attempt to cure Hispanic vote delusion by further diluting the Hispanic vote in the remedial district by injecting white Democrats and Native Americans and decreasing the amount of Hispanics in the district. [00:01:18] Speaker 03: went from 52.6% of HCVAP to 50.2% of HCVAP, more than 2% of a shift. [00:01:27] Speaker 05: And just to clarify for the... But still remaining the majority, correct, with respect to the Hispanic? [00:01:34] Speaker 03: Yes, Your Honor. [00:01:35] Speaker 03: And there might be some reference to various numbers. [00:01:39] Speaker 03: The process, when the litigation started, the census releases data every year. [00:01:45] Speaker 03: And so this litigation has been going on for a while, and as more census data has been released, we've been able to go from 2019 numbers to 2020 to 2021. [00:01:54] Speaker 03: So all the numbers are looking back, but this gives us a more realistic and accurate representation. [00:01:59] Speaker 03: So the 52.6 and 50.2 are using the 2021 US census numbers. [00:02:07] Speaker 03: In doing this unique remedial district, the district court admitted that quote, the Latino citizen voting age population of LD 14, that's the remedial district, [00:02:21] Speaker 03: is less than that of the HCVAP in the enacted district. [00:02:26] Speaker 03: However, the court said that such dilution was necessary for Hispanic voters to, quote, elect candidates of their choice to the state legislature, close quote. [00:02:40] Speaker 03: So after all, who knows better than what the Hispanic electorate wants in the Yakima Valley than the non-Hispanic voters in Yakima Valley? [00:02:48] Speaker 03: And all of this was done under the backdrop [00:02:51] Speaker 03: of the enacted LD-15 electing a Latina Republican, Nikki Torres, in the Yakima Valley, the only district in question here, to the State Senate by more than 35 points in a contested election against a white Democratic candidate. [00:03:08] Speaker 03: Many of these cases rely on pronostications of what will happen in the future. [00:03:12] Speaker 03: We have the unique ability [00:03:14] Speaker 03: we actually have elections that took place under both the enacted map and the remedial map. [00:03:20] Speaker 03: We don't need to guess about what will happen because we know what did happen. [00:03:24] Speaker 03: And it elected a Latino Republican by 35 points. [00:03:29] Speaker 03: Given this precarious position, it is little wonder why both the state and the Sotomayor plaintiffs use the majority of their pages not defending the merits and the remedy, but by arguing that the appellate intervenors lack appellate standing. [00:03:45] Speaker 03: For that point, I would like to start with discussing appellate standing for the interveners. [00:03:55] Speaker 03: Interveners, under current Ninth Circuit precedent, if they are able to show independent individualized harm and a personal stake in the matter, they are able to show separate and apart standing to move forward and appeal this case. [00:04:12] Speaker 03: This is in the Atee [00:04:14] Speaker 03: in the Itay matter from 2016. [00:04:18] Speaker 03: The matter is factually very similar to ours. [00:04:22] Speaker 03: In Itay, we're dealing with Maui County, Hawaii. [00:04:28] Speaker 03: A ballot initiative was passed that placed a moratorium on genetically engineered farming. [00:04:37] Speaker 03: Lawsuits followed that challenged that government action. [00:04:41] Speaker 03: The mayor and the city council [00:04:43] Speaker 03: were opposed to the initiative in the first place. [00:04:46] Speaker 03: As such, they did not defend the constitutional ballot measure. [00:04:51] Speaker 03: Some interveners that owned farms, organic farms, that would have been harmed by the repeal of this ordinance intervened. [00:05:00] Speaker 03: The district court struck down the government action, the initiative, for preemption purposes, and the government chose not to appeal. [00:05:11] Speaker 03: So the interveners appealed. [00:05:14] Speaker 03: The government made the there, made the exact same argument that Soto Palmer plaintiffs and the government makes here that if they don't appeal it, nobody can. [00:05:25] Speaker 05: Well, moving past that, with respect to Mr. Trevino, who was supposedly classified by race in the drawing of the remedial map. [00:05:40] Speaker 05: So with respect to liability, and then we can talk about remedy, what [00:05:45] Speaker 05: I don't see what the asserted harm of the racial classification being traceable to the liability determination. [00:05:53] Speaker 05: So perhaps you can give us that foundation. [00:05:57] Speaker 03: Yes, Your Honor. [00:05:58] Speaker 03: I'm happy to do that. [00:05:59] Speaker 03: Now, as the Court knows, we have two matters here that are consolidated, the merits and the remedy. [00:06:06] Speaker 05: And I think that's... And this question first is dealing with the merits with the liability. [00:06:12] Speaker 03: Yes, Your Honor. [00:06:15] Speaker 03: It is impossible to separate the finding of dilution in the merits case that led to the drawing of the remedy. [00:06:27] Speaker 03: Now, it is not the finding or the being able to justify whether or not somebody was rightfully sorted by race. [00:06:38] Speaker 03: Supreme Court has held over and over again that the act of sorting by race [00:06:44] Speaker 03: is sufficient for Article 3 injury, the act. [00:06:49] Speaker 03: As such, Palmer plaintiffs, their request of the district court was to sort voters by race in the Yakima Valley. [00:07:01] Speaker 03: Mr. Trevino lived in LD-15 and he lived in the remedial LD-14. [00:07:06] Speaker 03: He was a member of the race that was, that if granted, would be racially sorted. [00:07:13] Speaker 03: So the court has [00:07:14] Speaker 03: Supreme Court has always held that it is an individualized harm under the 14th Amendment for these individuals that are going to be sorted by race. [00:07:23] Speaker 03: And that's enough to get you through the door. [00:07:25] Speaker 03: You can get a seat at the table. [00:07:26] Speaker 02: Well, let me ask you about this. [00:07:28] Speaker 02: To me, this is the most important question in your case. [00:07:31] Speaker 02: Yes. [00:07:31] Speaker 02: is that, so let's say there's a declaration that the original map was violated, the Voting Rights Act or violated, whatever the violation is, and the remedy is we're going to redraw the map by one inch. [00:07:46] Speaker 02: That's the remedy. [00:07:47] Speaker 02: And so in effect, there is no effect on Mr. Trevino at all. [00:07:51] Speaker 02: It's literally a one-inch change in the map. [00:07:54] Speaker 02: In that instance, how would the harm of the violation, the liability declaration, [00:08:01] Speaker 02: What redress would your client be seeking if the map was moved one inch? [00:08:07] Speaker 03: Again, it is the harm of actual sorting of race. [00:08:11] Speaker 02: So we have to look at what is... Right, but what remedy? [00:08:14] Speaker 02: So let's assume that happened. [00:08:15] Speaker 02: What remedy would your client be seeking in that instance? [00:08:19] Speaker 02: If what the effect of it was, was the map being moved by one inch? [00:08:23] Speaker 03: that he not be sorted by race, that whatever remedy is. [00:08:27] Speaker 02: So let's assume that happened. [00:08:28] Speaker 03: Yes. [00:08:29] Speaker 02: So what relief is he seeking? [00:08:31] Speaker 02: It happened. [00:08:32] Speaker 02: It was a bad map. [00:08:34] Speaker 02: And a declaration is a bad map. [00:08:37] Speaker 02: What is the injury at that point? [00:08:39] Speaker 02: What relief and complaint would he be seeking? [00:08:43] Speaker 03: The relief, as an intervener, there's no question of the relief he asked, because there's pleadings below where Mr. Trevino asked [00:08:54] Speaker 03: that the court do not find, excuse me, that the court not find dilution. [00:09:00] Speaker 03: And because of that, that the court not sort him on the basis of race. [00:09:03] Speaker 02: But normally, go ahead. [00:09:05] Speaker 02: Normally when we have a lawsuit and someone is injured by what someone does, they say, I'm injured and here's how my injury is redressed. [00:09:13] Speaker 02: Yes. [00:09:13] Speaker 02: And so I'm trying to figure out, if the map is effectively not changed, how is his [00:09:20] Speaker 03: injury redress what what what relief what would make him whole just a declaration that this was a bad thing or or is there something else he's asking for no the mr. Trevino be made whole to not be sorted on the basis of race and so what we have here is the uncontested facts that the commissioners passed LD 15 [00:09:43] Speaker 03: and the uncompromisable criteria was race. [00:09:47] Speaker 03: It was Hispanic CVAP. [00:09:49] Speaker 03: That was negotiated back and forth between the Republican and the Democrat commissioners. [00:09:54] Speaker 03: Palmer plaintiffs argued that they didn't go far enough. [00:09:58] Speaker 03: They needed to sort it further. [00:10:00] Speaker 03: Mr. Trevino did not want to be sorted by race. [00:10:04] Speaker 03: And so as an intervener defendant, he was coming in to protect his own individual interests. [00:10:10] Speaker 05: But as to his individual interests, [00:10:14] Speaker 05: Are you alleging that Mr. Trevino suffered vote dilution? [00:10:20] Speaker 03: No, that he was sorted on the basis of race. [00:10:22] Speaker 05: Okay, well that's what's confusing here. [00:10:23] Speaker 05: So you're not asserting a vote dilution claim? [00:10:27] Speaker 03: As it pertains to the remedy, yes. [00:10:29] Speaker 05: Okay, but as to the liability, no. [00:10:33] Speaker 03: Yeah, you cannot separate the liability. [00:10:36] Speaker 05: But on [00:10:37] Speaker 05: Even on remedy, is there any case where a racial classification alone is sufficient to support standing for a vote dilution? [00:10:50] Speaker 03: Yes, Your Honor. [00:10:51] Speaker 03: When you look at Shaw 2, Alexander, Covington, all of these cases, under Shaw 2, it is a fundamental injury to the individual rights of a person. [00:11:00] Speaker 03: Alexander, the racial classification itself is the relevant harm. [00:11:06] Speaker 03: Covington. [00:11:07] Speaker 03: It is the segregation of plaintiffs, not the government's line drawing. [00:11:11] Speaker 05: And doesn't it, does that belong to him individually rather than as a group according to Shaw? [00:11:17] Speaker 03: Yes. [00:11:17] Speaker 05: So it has to trace to him. [00:11:24] Speaker 05: The vote dilution. [00:11:25] Speaker 03: Yes, the 14th Amendment is an individual right as SHA-2 held. [00:11:29] Speaker 03: The fact that thousands of people are being sorted on the basis of race does not automatically convert that to a generalized grievance. [00:11:36] Speaker 03: It just makes a lot of people that have a personal interest in this case. [00:11:41] Speaker 05: So then I had another question because it seemed the other ground that you're arguing apart from vote dilution, at least as to the remedy had to do with an equal protection claim, correct? [00:11:53] Speaker 03: Yes, your honor. [00:11:54] Speaker 05: Okay. [00:11:55] Speaker 05: So I'm looking at your objections to the, I guess they were the initial objections in December to the judge's proposal. [00:12:11] Speaker 05: And then the only thing I, and I didn't see any objection there or claim of equal protection. [00:12:18] Speaker 05: So where do I look in the record to find the preservation [00:12:23] Speaker 05: of the equal protection claim. [00:12:26] Speaker 03: As regards to Mr. Trevino? [00:12:28] Speaker 03: Yes. [00:12:29] Speaker 05: Or anybody. [00:12:31] Speaker 05: Interveners, I should say. [00:12:33] Speaker 05: I mean, it seems that Mr. Campos kind of falls out. [00:12:36] Speaker 05: You haven't really argued too much about that person. [00:12:39] Speaker 05: And we can talk separately about Mr. Barra and his election. [00:12:42] Speaker 05: So it kind of falls to Mr. Trevino. [00:12:45] Speaker 03: Yes, Your Honor. [00:12:45] Speaker 03: I would direct the court to Mr. Trevino's motion to intervene in the court below. [00:12:53] Speaker 03: He makes it very clear that he is intervening to protect his 14th Amendment right to not be sorted by race. [00:13:03] Speaker 03: Now, there might be some other reasons why he was there. [00:13:07] Speaker 03: And yes, he would have loved to have the government standing by him to defend his personal rights. [00:13:13] Speaker 03: But the fact that the government chose not to do that does not automatically convert that to Mr. Trevino standing in place for the government. [00:13:21] Speaker 03: When the court looks to a tate, it is very clear [00:13:24] Speaker 03: There are cases such as Bethune Hill and Hollingsworth that stand for the proposition, the correct proposition, that you cannot stand in place for the government where the government is the only party that is harmed. [00:13:35] Speaker 05: So once you have these hearings on the map and we're narrowing in now on what the shape of the table is going to be, where does he make it clear to the court that he's asserting an equal protection claim? [00:13:52] Speaker 03: Well, the remedy flows from the order of the court, where the court made it abundantly clear that his fundamental goal was to combine Hispanic communities of interest in the Yakima Valley. [00:14:04] Speaker 03: That was not hidden. [00:14:05] Speaker 03: It was openly talked about on the record over and over again. [00:14:09] Speaker 03: And again, the harm here is being sorted by race. [00:14:12] Speaker 03: It is not being sorted. [00:14:15] Speaker 03: Wrongly by race or rightly by race or if there's a good faith sorting by race the fact that there was a racial sorting of any kind The court has held over and over again. [00:14:25] Speaker 03: The Supreme Court has held over and over again. [00:14:27] Speaker 03: That is sufficient for Article 3 standing purposes For that intervener to be able to come in because that harm is individual now just real quick just 30 seconds your honor, I just wanted to touch on the basis of the actual remedy itself that [00:14:44] Speaker 03: The attempts to cure dilution by further diluting. [00:14:52] Speaker 03: Never been done before. [00:14:57] Speaker 03: Further, this is a textbook case per Upham Supreme Court case that this district was not narrowly tailored. [00:15:06] Speaker 03: 13 out of 49 of the legislative districts were altered in the remedial map when only one district was part of the plaintiff's claims. [00:15:16] Speaker 03: Upham, where the Supreme Court found that district court abused discretion in drawing a remedial map, that changed four out of 27 when the claim only involved two. [00:15:32] Speaker 03: The downstream changes in our case [00:15:34] Speaker 05: Greatly outweigh what the court found was not narrowly tailored in Upham further And when you say the downstream changes you mean the changes that flow over to other districts as well Yes, your honor outside of the Yakima Valley that was right at the Yakima Valley. [00:15:48] Speaker 05: Yes, so It's basically a two-to-one revision in the map for Upham. [00:15:59] Speaker 03: Yes, your honor, right [00:16:02] Speaker 03: How how should the district court have changed 14 and 15 to comply with section 2 without somehow altering the neighbor the neighbors Yeah, the benefit that we have here your honor have to do that of course there is going to be some change You got to get population from somewhere right and we acknowledge that but it needs to be done in the most narrowly tailored possible way and we have the benefit here that the [00:16:24] Speaker 03: plaintiffs submitted over 10 possible remedial maps. [00:16:29] Speaker 03: Every single one of those other maps that their experts testified on the record were full and complete remedies were less disruptive than the enacted map. [00:16:40] Speaker 03: And by less disruptive, I look at, let me pull up just one of the proposal five, five A, there was some variations so that moved to a five and a five A, was the most modest of the plaintiff's proposed maps. [00:16:56] Speaker 03: In map five, it moved only 190,000 people compared to over 500,000 people that were moved in the enacted remedy map. [00:17:05] Speaker 03: It changed only four districts as opposed to 13 districts. [00:17:10] Speaker 03: It only redrew districts in the Yakima Valley region. [00:17:13] Speaker 03: It did not go across the entire state as the remedial map did. [00:17:17] Speaker 05: Impacted in... I read all of your arguments and the one question I had really [00:17:24] Speaker 05: is in effect you're asking us to reweigh the district court's findings. [00:17:28] Speaker 05: I mean, obviously, there's a plethora of possible maps. [00:17:33] Speaker 05: You're not happy with the one chosen. [00:17:35] Speaker 05: District court came up with one particular one. [00:17:38] Speaker 05: But wouldn't we be reweighing the evidence? [00:17:42] Speaker 03: No, Your Honor. [00:17:46] Speaker 03: a legal error that the court would review, then over what standard did the court apply when he was drawing the map? [00:17:52] Speaker 03: And that is a de novo review. [00:17:53] Speaker 03: This is not a matter of evidence. [00:17:56] Speaker 03: The court failed to follow his requirement to enact a map that was narrowly tailored and that followed the policy interests of the state, meaning drawing districts that don't overly favor one political party to the other. [00:18:11] Speaker 03: over 10 districts where the partisan makeup were changed to favor the Democratic Party. [00:18:16] Speaker 03: Two of those districts were flipped by two to three percentage points from performing Republican districts to performing Democrat districts. [00:18:25] Speaker 03: Neither one of those districts were in the Yakima Valley. [00:18:28] Speaker 03: And the plaintiff's other illustrative maps made it very clear that it was not required to do that, to enact a remedy, but yet the court still did that. [00:18:36] Speaker 03: And so we would ask that the court [00:18:39] Speaker 03: at the very least, ensure that the court follows the guidelines to have a narrowly tailored map that only makes the number of changes that are possible. [00:18:47] Speaker 03: With that, of course, no further questions. [00:18:49] Speaker 05: I do have one question. [00:18:51] Speaker 05: Have you dropped your challenge to the fact that this should have been a three-judge court rather than a single-judge court? [00:18:57] Speaker 03: No, Your Honor. [00:18:57] Speaker 03: We have not dropped that challenge. [00:19:00] Speaker 05: At the outset, you had said, [00:19:03] Speaker 05: You of course demanded a three-judge court with respect to the constitutional claims, but you had said, interveners do not demand a three-judge court to hear the plaintiff's statutory claims. [00:19:14] Speaker 05: So now I'm hearing or reading in your brief something different, and your argument suggests something different. [00:19:21] Speaker 03: As you get a litigation, there were decisions that had to be made to not fight everything. [00:19:26] Speaker 03: However, this is as it pertains to the standing of this court and jurisdiction of this court, and that cannot be waived. [00:19:32] Speaker 03: So today, I could have spent up here for hours discussing the various jingles factors and Senate factors. [00:19:39] Speaker 03: But we still very much believe this unique situation we are in with these potential colliding opinions of a three-judge panel in a district court, we're here because of the misapplication of that. [00:19:51] Speaker 03: These should have both involved maps that were statewide legislative district maps. [00:19:57] Speaker 03: Those should have both been heard by a three-judge panel, and it would have [00:20:00] Speaker 03: solve the confusion that we have right now by having both of them heard at the same time by the same panel. [00:20:07] Speaker 05: I don't find it too confusing, but we'll find out when we have a second argument. [00:20:10] Speaker 03: Thank you. [00:20:13] Speaker 04: the council council council for bill. [00:20:20] Speaker 04: I just wanted to let you know all of your time is almost totally used up. [00:20:28] Speaker 04: I'll give you two minutes for a bottle. [00:20:41] Speaker 01: Good morning, your honors. [00:20:42] Speaker 01: I may have pleased the court. [00:20:43] Speaker 01: I'm Andrew Hughes on behalf of the state of Washington. [00:20:46] Speaker 01: I'm going to start by addressing why interveners lack standing. [00:20:49] Speaker 01: Then I'll turn things over to Ms. [00:20:50] Speaker 01: Harless to address the merits. [00:20:52] Speaker 01: And I want to take standing in two pieces because intervenors bring two separate appeals. [00:20:57] Speaker 01: So they need to establish standing independently for each. [00:21:01] Speaker 01: On the liability appeal, they lack standing because the court's liability order does not require intervenors to do or refrain from doing anything. [00:21:10] Speaker 01: It doesn't affect any legally protectable interest. [00:21:14] Speaker 01: on the remedy appeal, their problem is twofold. [00:21:17] Speaker 01: First, interveners waived their gerrymandering argument because they never raised it in the remedial proceedings below. [00:21:23] Speaker 01: And second, no intervener colorably alleges an injury from the remedial map. [00:21:29] Speaker 01: Their appeals should accordingly be dismissed. [00:21:32] Speaker 01: Now, on liability, interveners concede that the court order doesn't require anything of them. [00:21:38] Speaker 01: Instead, they claim they have standing to challenge the liability order because the subsequent remedy order allegedly interests them. [00:21:46] Speaker 01: But Judge McKeown in your questions hit the nail on the head. [00:21:49] Speaker 01: Standing is not dispensed in gross. [00:21:52] Speaker 01: They can't hinge their standing in one appeal on an order they're challenging in a separate subsequent appeal. [00:21:59] Speaker 01: They argue that the remedial map flows inexorably from the liability appeal to try to get around this pretty significant problem. [00:22:07] Speaker 05: Well, as I heard their argument, of course, I don't want to reframe it. [00:22:11] Speaker 05: We'll let the council do that. [00:22:12] Speaker 05: But they said, you're just straight up, the harm is being sorted by race. [00:22:18] Speaker 05: That was done on the liability side, therefore standing. [00:22:23] Speaker 05: And I think we're speaking to Mr. Trevino. [00:22:25] Speaker 01: I understand from the briefing that the sorting that Mr. Trevino now complains of is the remedial map. [00:22:31] Speaker 01: And probably reason number one why I understand that is because... That was what they argued. [00:22:36] Speaker 01: He ended up being to defend legislatively enacted LD15. [00:22:41] Speaker 01: So for him to now claim he was injured by being sorted in that district is just flatly inconsistent. [00:22:46] Speaker 01: So on this remedial point, interveners try to suggest that Section 2 remedies inevitably raise 14th Amendment concerns. [00:22:54] Speaker 01: At any time you remedy a Section 2 violation, you're sorting voters. [00:22:59] Speaker 01: But the Supreme Court has rejected this argument time and again, most recently in Milligan. [00:23:05] Speaker 01: They also argue that the alleged gerrymandering flows from the liability map. [00:23:10] Speaker 01: But Judge Owens, you gave a good example, I think, of why that's true and why that's not necessarily true with your one-inch hypothetical. [00:23:16] Speaker 01: And I'd like to give some other examples. [00:23:18] Speaker 01: So first, if the court had simply adopted Mr. Trevino's proposed remedial map, and he did propose a remedial map, he obviously wouldn't have been injured. [00:23:27] Speaker 01: He wouldn't be here today. [00:23:28] Speaker 01: So that would have been a remedial map that would not have, by his own light, sorted him. [00:23:32] Speaker 01: Secondly, the court could have adopted a remedy in which Mr. Trevino's house, Granger, Washington, was not in the remedial district, the now allegedly gerrymandered district, in which case he's obviously not subject to any alleged sorting. [00:23:47] Speaker 01: So this notion that the remedy flowed inexorably from the liability determination is simply not true. [00:23:54] Speaker 05: But he is in LD-14, correct? [00:23:57] Speaker 01: In the current one, yes. [00:23:58] Speaker 05: In the current one, and Granger falls within that, correct? [00:24:01] Speaker 01: It does, yes. [00:24:02] Speaker 01: But if you look at cases like Alliance for Hippocratic Medicine, he basically has to show that it was inevitable, that the court's ruling would have inevitably led to this action that he now claims him harm. [00:24:15] Speaker 01: And for the reasons I've just discussed, he can't do that. [00:24:17] Speaker 02: Now, he cited an argument, opposing counsel, I think the Shaw case, [00:24:21] Speaker 02: I think that's the name. [00:24:22] Speaker 02: I'm going to make sure I've got the right one. [00:24:24] Speaker 02: Can you speak to that case and to why? [00:24:26] Speaker 01: Yeah, Shaw versus Hunt. [00:24:27] Speaker 01: So I understood him to refer to Shaw for the purpose simply that a racial sorting is an individual injury. [00:24:33] Speaker 01: And I don't disagree with that. [00:24:35] Speaker 01: It's just that he's failed to show it here. [00:24:37] Speaker 01: Well, it's two things. [00:24:38] Speaker 01: First, it has nothing to do with the liability order, which he's appealing. [00:24:42] Speaker 01: Secondly, even on the remedial point, he still has to show that he was, in fact, racially sordid. [00:24:47] Speaker 01: He has to raise a colorable claim that he was, in fact, racially sordid to even get in the door of this courtroom, and he hasn't done that. [00:24:54] Speaker 01: And I'll get to that in a moment, but let me just very quickly raise a point that Judge McKeown raised about waiver. [00:25:01] Speaker 01: And I see I'm running short on time, so I'm going to try and speak quickly, but not too quickly. [00:25:05] Speaker 01: So Interveno's first problem on the remedial order is that they never argued that any of the remedial maps offered by plaintiffs were racial gerrymandering. [00:25:14] Speaker 01: There was full briefing. [00:25:17] Speaker 01: Their response to plaintiffs' remedial maps, Washington SCR 50, I invite you to take a look. [00:25:22] Speaker 01: There's no whisper in there that Mr. Trevino is being racially gerrymandered, that this map violates equal protection. [00:25:31] Speaker 01: At intervener's request, the court held an evidentiary hearing in which the court said, I want to focus on map 3A. [00:25:39] Speaker 01: They introduced, interveners introduced an expert declaration. [00:25:43] Speaker 01: They had, they deposed witnesses. [00:25:46] Speaker 01: They examined witnesses. [00:25:47] Speaker 01: They had their own expert witness. [00:25:49] Speaker 01: No whisper that there was a gerrymandering claim. [00:25:54] Speaker 01: And finally, they submitted. [00:25:55] Speaker 05: Well, on that point, it might be just a whisper. [00:25:57] Speaker 05: I don't know how. [00:25:58] Speaker 05: we would characterize it, but in the transcript of that hearing, I thought they pointed to these questions on FER7 about whether council consulted racial and political data or whether they were given guidance on how to draw the map. [00:26:16] Speaker 05: Is that enough to raise the equal protection claim? [00:26:20] Speaker 01: No, because they'd never objected that this was a gerrymandered map, nor did they elicit any actual evidence, nor do they cite any such evidence in their brief. [00:26:29] Speaker 05: And when I asked counsel about that, he said, well, you really have to go back to the complaint, because we did allege in broad terms equal protection. [00:26:38] Speaker 01: They alleged, when they sought to intervene, that they were intervening to protect their generalized rights under the 14th Amendment. [00:26:47] Speaker 01: What Judge Lasnik held correctly, I'll note, is that they couldn't intervene. [00:26:52] Speaker 01: They had no legally protectable interest, because all they were alleging is a general interest in being treated equally under the 14th Amendment, which fair enough. [00:27:02] Speaker 01: But there was at that point no basis to suggest that any remedial map, because there was no remedial map, that the proceedings would implicate their 14th Amendment rights at all. [00:27:11] Speaker 01: So they are permissive interveners, is that correct? [00:27:14] Speaker 01: They are merely permissive interveners, yes, Your Honor. [00:27:17] Speaker 01: I do want to indulge any questions you have, but I'm also now cutting into Ms. [00:27:21] Speaker 01: Harless's time. [00:27:21] Speaker 01: So unless there are any questions, I would like to turn over the mic to Ms. [00:27:25] Speaker 01: Harless. [00:27:26] Speaker 04: No questions here. [00:27:28] Speaker 01: Thank you so much. [00:27:28] Speaker 01: I really appreciate your time. [00:27:39] Speaker 00: May I please the court Annabelle Harless on behalf of the Soto Palmer at police. [00:27:44] Speaker 00: So I want to address first a couple of the things intervenors council raised, including plaintiffs ability to even challenge a district that has a majority Hispanic citizen voting age population. [00:27:56] Speaker 00: because that is one of the main arguments they make here on appeal. [00:27:59] Speaker 00: But that argument flies in the face of Supreme Court precedent as well as that of numerous other circuit courts across the country in addition to Congress's intent behind Section 2. [00:28:10] Speaker 00: The 1982 amendments to Section 2 arose out of cases where minority voters had a numerical advantage [00:28:19] Speaker 00: but still the court found vote dilution based on totality of the circumstances in an effects test. [00:28:27] Speaker 00: Six other circuits also allow plaintiffs to challenge a district with a majority minority population for vote dilution under section two, including the second, fifth, seventh, eighth, eleventh, and DC circuits, with none of the narrow restrictions that interveners have sought to impose here. [00:28:46] Speaker 05: There is something. [00:28:48] Speaker 05: may be counterfactual here where you have a resorting of the district, LD15 to LD14. [00:28:57] Speaker 05: And the concern, of course, is the impact or the ability for minority voters to have a fair vote. [00:29:05] Speaker 05: But you end up with less minority voters. [00:29:08] Speaker 05: So that's one of their challenges. [00:29:10] Speaker 05: They gave us the statistics, 52.6, 50.2 approximately. [00:29:16] Speaker 05: So how do you defend that? [00:29:19] Speaker 00: Well, first of all, that statistic is wrong. [00:29:22] Speaker 00: The plaintiff's remedial district has a 51% Hispanic citizen voting age population using the 2022 numbers. [00:29:29] Speaker 00: And the enacted district has a 52% Hispanic citizen voting age population. [00:29:33] Speaker 00: And so there's a 1% difference between those districts. [00:29:37] Speaker 05: So you're saying that LD14 has 1% more than LD14? [00:29:41] Speaker 05: 15 undercurrent statistics? [00:29:44] Speaker 00: One percent less. [00:29:45] Speaker 00: One percent less. [00:29:46] Speaker 00: They gave a two percent less. [00:29:49] Speaker 05: It was a margin. [00:29:50] Speaker 05: It was a small amount, but my question kind of really remains the same, and that is you reduced the percentage of Hispanic voters, correct? [00:30:01] Speaker 05: Not you, but the proposed map. [00:30:04] Speaker 00: So the Hispanic citizen voting age population demographic number is less in the remedial map. [00:30:12] Speaker 00: But that's because Section 2 doesn't require a demographic target. [00:30:17] Speaker 00: It requires equal access and equal opportunity. [00:30:20] Speaker 00: And so that's not how courts determine whether vote dilution is illegal. [00:30:23] Speaker 05: I mean, I know there's no bright line test. [00:30:25] Speaker 05: We've already been told that, right? [00:30:27] Speaker 00: There's no bright line test, but courts generally look to assess electoral opportunity in the district, and the Supreme Court has done so when analyzing equal opportunity and looks at election results. [00:30:42] Speaker 00: And it's done that in the Lulag versus Perry cases and the Abbott versus Perez case. [00:30:46] Speaker 00: And here, plaintiff's expert and the state's expert found that under legislative district 15, Latino preferred candidates usually lost in 70% of the races. [00:30:58] Speaker 00: But under the remedial district, Latino preferred candidates won in eight out of eight elections. [00:31:03] Speaker 00: So there's no doubt, even intervenors' expert testified that the remedial district provides equal opportunity to Latino voters. [00:31:10] Speaker 00: So the Hispanic citizen voting age population demographic alone does not determine whether there's equal opportunity. [00:31:18] Speaker 05: What about the number of districts affected? [00:31:21] Speaker 05: Again, there's no strict number that we've gotten, but you're going to have to jiggle some districts. [00:31:27] Speaker 05: And they're saying too many jiggled. [00:31:30] Speaker 00: Well, the district that required being remedies in the center of the state of Washington, and it's a large, sparsely populated area, and each of those districts, Legislative District 14 and Legislative District 15, are surrounded by five or six other districts. [00:31:46] Speaker 00: So once you start moving the boundaries of those districts, you are inevitably going to create a ripple effect that works its way out while you're adjusting for equal population, other traditional redistricting criteria like compactness and contiguity. [00:31:59] Speaker 00: And so the district court found that the map 3B that it adopted at the remedial phase best balanced all of the traditional redistricting criteria and that those changes were necessary. [00:32:09] Speaker 00: to comply with the state's policy objectives, like uniting as much of the Yakama reservation with its off-reservation lands. [00:32:17] Speaker 05: I was going to ask you about that. [00:32:18] Speaker 05: What role the tribe, well, the Yakama tribe played in terms of its population in drawing the map. [00:32:27] Speaker 05: What consideration did the district court give that? [00:32:31] Speaker 00: So the district court weighed, well, the district court didn't draw the map. [00:32:37] Speaker 00: I understand. [00:32:39] Speaker 05: The district court was looking at the panoply of maps. [00:32:43] Speaker 00: The maps are weighed uniting as much as possible of the Yakama Nation with its off-reservation trust lands with equal population, uniting the Latino community of interest, compactness, contiguity. [00:32:58] Speaker 00: It was essentially a factor that was considered in balancing the district and making sure that all criteria were complied with. [00:33:09] Speaker 05: But... I would appreciate your comment with the vote dilution [00:33:14] Speaker 05: Is still a little bit murky for me from both sides in terms of so with respect to the remedial Phase is it your understanding that that mr. Trevino has a vote dilution claim No, your honor mr. Trevino. [00:33:33] Speaker 00: I mean mr. Trevino doesn't have any claim, but he certainly doesn't have a vote dilution claim, and he hasn't alleged one He is alleging that the remedial map is [00:33:45] Speaker 00: I guess I'm not 100% sure what he's alleging because I don't think he has established any kind of harm. [00:33:50] Speaker 00: But what he is saying is that the remedial map is a racial gerrymander. [00:33:55] Speaker 05: It violates equal protection in his view, correct? [00:33:58] Speaker 00: Yes. [00:33:58] Speaker 00: But he didn't raise that claim below. [00:34:00] Speaker 00: And what interveners refer to in their motion to intervene is simply a generalized grievance asking the court to comply with the law. [00:34:10] Speaker 00: But it was not an objection in any way to plaintiff's remedial maps, which were not even in existence until two years after that. [00:34:17] Speaker 00: So there's just no way that his intervention papers can establish standing to challenge the remedial district. [00:34:23] Speaker 00: Intervenors Council also jumped to narrow tailoring, but he hasn't even shown that race predominated in the drawing of the district, nor could they because they've waived that claim and don't have standing to bring it, but. [00:34:40] Speaker 00: Plaintiffs mapped our didn't even look at race when he was drawing the remedial districts didn't consider racial demographics Wasn't otherwise aware of the demographics of the region And so it's not even clear how mr. Trevino can establish that he was racially sorted in the remedial district I [00:35:04] Speaker 00: I also wanted to address intervener's argument about causation at the racially polarized voting stage. [00:35:12] Speaker 00: Interveners attempt to insert a causation requirement into the third jingles precondition. [00:35:18] Speaker 00: But again, there's no legal precedent from the Supreme Court or this court that actually imposes such a requirement on plaintiffs. [00:35:27] Speaker 05: Do we have any other court other than the Fifth Circuit that has done that? [00:35:30] Speaker 00: No, Your Honor. [00:35:32] Speaker 00: And the Fifth Circuit's approach to that is in tension with Jingle's and the recent Milligan decision because in Milligan, the Supreme Court held that [00:35:42] Speaker 00: establishing the third Jingle's precondition shows that the challenge districting scheme thwarts the minority vote at least plausibly on the basis of race. [00:35:53] Speaker 00: And requiring consideration of causation at the Jingle's precondition stage, as the Fifth Circuit does, is in direct conflict with that holding. [00:36:04] Speaker 00: This court has also held in vote dilution claims that establishment of racial block voting provides the requisite causal link between the discriminatory practice and the discriminatory result or the voting procedure and the discriminatory result including in the Gomez old person one and the Blaine County cases and Six other circuits take this approach as well and allow for consideration of partisanship only at the totality of the circumstances phase [00:36:31] Speaker 00: The district court faithfully followed this precedent here and applied the Jingle's preconditions as set out by the Supreme Court and this court. [00:36:40] Speaker 00: And it was undisputed at the district court that voting in the region is racially polarized. [00:36:45] Speaker 00: All four experts, including interveners and states expert who looked at the issue, found that Latino voters cohesively preferred the same candidate in all but one race and that white voters routinely block vote against Latino preferred candidates. [00:37:01] Speaker 00: and the district court considered interveners partisanship argument correctly at the totality of the circumstances phase and found it unavailing and interveners can identify no clear error in that conclusion on appeal and That's because as the state's expert who normally testifies on behalf of state governments defending against section 2 claims testified at trial the evidence shows that there's quote a real ethnic effect on voting in this area and [00:37:29] Speaker 00: An intervener's own expert found that even where Latino voters cohesively preferred a Hispanic Republican candidate, such as the 2020 superintendent of public instruction race, that candidate lost due to white voting patterns. [00:37:44] Speaker 00: The record here simply does not demonstrate that partisanship is the best explanation for racially polarized voting in the Yakima Valley, and the district court did not err on that basis. [00:37:55] Speaker 00: I want to jump to Another argument that interviewers council made which is about the narrow tailoring of the district again We think we don't even get to this point because they've waived their racial gerrymandering claim They don't have talent standing to bring the claim they have not shown that race for dominated But if we are addressing narrow tailoring the district is narrowly tailored because there's no evidence that the district court is [00:38:25] Speaker 00: There's no evidence that race even predominated in the drawing of the district lines. [00:38:31] Speaker 00: Contrary to intervener's comments a moment ago, the map didn't make partisan changes. [00:38:39] Speaker 00: The partisan balance of the state legislative map remains the same. [00:38:43] Speaker 00: It still has a modest Republican tilt. [00:38:46] Speaker 00: No districts were flipped from one party to the other. [00:38:49] Speaker 00: Intervenors' own expert testified that one of the district's intervenors' council was referring to, Legislative District 12, retained a Republican edge, and the other district he mentioned was classified as a toss-up and remained a toss-up. [00:39:05] Speaker 00: and Washington state law encourages competitive districts in redistricting and nothing that the district court here did changed that in adopting the remedial map. [00:39:17] Speaker 00: interveners council also brought up map 5a as an alternative that could have been adopted to map 3b but the district court found that map 3b best complied with traditional criteria while remedying the violation and interveners are simply disagreeing with that decision but map 5a [00:39:36] Speaker 00: didn't unify as much of the Yakama Nation with the off-reservation trust lands, which is something the interveners themselves raised below as an important consideration. [00:39:46] Speaker 00: And that is the reason why the district court found that Map 5A [00:39:51] Speaker 00: was not sufficient as a remedy. [00:39:53] Speaker 04: Council, if you want an extra two minutes, I'm giving that to the appellant. [00:40:04] Speaker 04: So if you want us to add two minutes. [00:40:09] Speaker 00: Thank you. [00:40:10] Speaker 05: I don't think I need an extra two minutes. [00:40:12] Speaker 05: I have maybe one last question for you. [00:40:15] Speaker 05: And that is this shape of the district, which [00:40:21] Speaker 05: The interveners say is really inexplicable or unexplainable, I guess is their term, except by racial grounds. [00:40:29] Speaker 05: And we've seen odd shaped districts in cases, you know, Shaw, Bush, et cetera. [00:40:39] Speaker 05: What is the legal principle for whether a shape is too inexplicable or unusual? [00:40:50] Speaker 05: and where to draw the line for the court. [00:40:53] Speaker 00: I think a lot of the time on the court is talking when courts are analyzing the shape they're looking at how the district [00:41:00] Speaker 00: category complied with other traditional redistricting criteria and whether the populations within that district you know are Closed together or there's no there's no bright line rule for the shape of this one is Too crazy and the shape of this one's fine, but here the shape of the district the reason for the shape of the district is in the record [00:41:23] Speaker 00: And it's because of the location of the Yakima reservation and the off reservation trust lands. [00:41:29] Speaker 00: And that is the main factor that has shaped the shape of the remedial district. [00:41:34] Speaker 00: And so interveners themselves requested that those lands be added to the district. [00:41:40] Speaker 00: And that is what made the shape the way it is. [00:41:42] Speaker 00: And so it's misleading at best that they are now claiming the shape is based on a racial target rather than complying with the state's policy objectives. [00:41:57] Speaker 00: Latino voters in the Yakima Valley have long been shut out of the political process. [00:42:05] Speaker 00: After evaluating the extensive record below, the district court found that Legislative District 15 diluted Latino voting strength in violation of Section 2, and after a robust remedial process, the court selected a tailored remedial map that remedies the violation while respecting the state's policy objectives, complying with traditional redistricting criteria, and state and federal law. [00:42:27] Speaker 00: This court should affirm the lower court's decisions, which give Latino voters a voice in state legislative elections in the region. [00:42:35] Speaker 03: Thank you counsel Thank you your honors, I appreciate the extra two minutes to respond very quickly first Standing cannot be waived that is Contrary to what is being said here the standing cannot be waived now the procedural history below was a little more complicated as it pertains to the remedy and [00:43:08] Speaker 03: There was an objection at the very first opportunity to object to the map that we knew was going to be enacted. [00:43:13] Speaker 03: It was not until February 9, weeks after all briefing on the remedy had closed, that the court indicated he was considering map 3A. [00:43:23] Speaker 03: At the next hearing, as Judge McCown previously stated, there was an objection on the record. [00:43:30] Speaker 03: There were questions that went in to what context race was sorted and used [00:43:36] Speaker 03: and identifying this, and that was on the March 8th. [00:43:40] Speaker 05: Now... Is that the only place that I can look to, to see what was raised? [00:43:47] Speaker 05: Do you have any other citations? [00:43:50] Speaker 03: In the briefing, Your Honor. [00:43:52] Speaker 03: We, it's kind of all over the place in that the remedial districts simply further sort by race, every single one of them. [00:44:00] Speaker 03: And that is core of all the briefing that we filed. [00:44:03] Speaker 03: At the point though, we did not have, we didn't know what the court was going to adopt. [00:44:07] Speaker 05: No, but there were signals put out there as to what was going on. [00:44:13] Speaker 05: And was there anything that would have prevented you from filing an objection like you did before, now that you knew which way the wind was blowing? [00:44:21] Speaker 05: Because the problem that I'm having, just to be honest with you, is trying to dig through this whole record and find out where the equal protection claim was preserved. [00:44:35] Speaker 05: You've pointed to that one spot in the colloquy, the cross-examination. [00:44:43] Speaker 05: But I don't see anything else, so I'm looking for more. [00:44:46] Speaker 03: Yes, Your Honor. [00:44:47] Speaker 03: It's very clear. [00:44:50] Speaker 03: Mr. Hughes misstated, if I may request a few extra seconds to answer this question. [00:44:56] Speaker 03: Thank you. [00:44:57] Speaker 03: Mr. Hughes misstated what Mr. Trevino intervened to do. [00:45:01] Speaker 03: He says he intervened to defend the enacted map. [00:45:06] Speaker 03: Mr. Trevino intervened because he did not want to be sorted on the basis of race. [00:45:11] Speaker 03: That is why he intervened. [00:45:13] Speaker 03: And plaintiffs were asking the court to sort him on the basis of race. [00:45:19] Speaker 03: And again, as the court has held, it is the racial sorting itself, not the justification that leads to it that is sufficient for Article III standing. [00:45:28] Speaker 03: And the court's fundamental goal of drawing the remedial district was to combine Hispanic communities in central Washington. [00:45:36] Speaker 03: The tentacles of the octopus slithering along the bottom of the ocean floor was not to combine the Yakima reservation. [00:45:43] Speaker 05: That just is not- There is no ocean out there. [00:45:45] Speaker 05: You understand that, right? [00:45:46] Speaker 03: I understand that, Your Honor. [00:45:48] Speaker 03: But there are neither other dragons or salamanders. [00:45:52] Speaker 03: But anyways, and I would note that the Accommodation, the court referenced earlier, they filed and were opposed to the remedial map. [00:46:01] Speaker 03: If there's no other questions. [00:46:02] Speaker 04: Thank you. [00:46:03] Speaker 04: No further questions. [00:46:05] Speaker 03: Thank you. [00:46:05] Speaker 04: We appreciate the strong arguments of both parties. [00:46:12] Speaker 04: In that case, Palmer will now be submitted and the parties will vote for us in due course.