Dueling gerrymandering cases in Washington state land before Ninth Circuit

SEATTLE (CN) — The fate of Washington's congressional voting map is in the hands of a three-judge panel of the Ninth Circuit, which heard dueling cases Thursday concerning a map which critics say intentionally split Hispanic voters into several districts and diluted their voting power. 

Arguments before the panel centered on whether a remedial map, drawn after a federal judge determined the previous one violated the Voting Rights Act of 1965, went too far in adjusting district lines.

In August 2023, U.S. District Judge Robert Lasnik, a Bill Clinton appointee, determined that the legislative map based on the 2020 census impaired the ability of Hispanic voters in the Yakima Valley and Pasco areas to elect their preferred candidates, violating the 1965 Voting Rights Act. He approved new boundaries for several districts in a remedial map in March 2024.

It was a win for Hispanic voters from Yakima Valley, including plaintiff Susan Soto Palmer. A Republican state representative and two voters who intervened as defendants, opposing the proposed redistricting, unsuccessfully appealed to the U.S. Supreme Court.

Before the Ninth Circuit, Dallin Holt, an attorney with the Phoenix-based Holtzman Vogel law firm, represented Jose Trevino, one of the Republican intervenors.

Holt argued that the remedial map favors Democrats and accused the voter plaintiffs of submitting a map that only exacerbated their vote dilution. 

“After all, who knows better than what the Hispanic electorate wants in the Yakima Valley than the non-Hispanic voters in Yakima Valley?” Holt posited sarcastically.

U.S. Circuit Judge John Owens, a Barack Obama appointee, asked how the intervenors would proceed if the court opted to remedy the map issue by redrawing a map that was only slightly altered.

“What relief would make him whole? Just a declaration that this was a bad thing, or is there something else he’s asking for?” Owens asked.

“Mr. Trevino would be made whole to not be sorted on the basis of race,” Holt responded. 

He argued it was that aspect that gave Trevino grounds to intervene and assert a violation of his 14th Amendment right to equal protection. Plus, the court erred when it created a map that wasn’t narrowly tailored to the state’s interests. 

“The court made it abundantly clear that his fundamental goal was to combine Hispanic communities of interest in the Yakima Valley,” Holt argued. “The harm here is being sorted by race.”

The Washington attorney general’s office meanwhile argued that neither Trevino nor the other intervenors have standing to bring the appeal because they didn’t establish liability and because the court order doesn’t require anything of them. 

“He has to raise a colorable claim that he was, in fact, racially sorted to even get in the door of this courtroom. And he hasn't done that,” attorney Andrew Hughes said. “They are merely permissive intervenors.”

Anabelle Harless, an attorney with the Chicago-based Campaign Legal Center representing the group of Hispanic voters, argued that the intervenors themselves had admitted the remedial district provides equal opportunity to Latino voters.

U.S. District Judge Margaret McKeown, a Bill Clonton appointee, asked why the redrawn map affected as many districts as it did.

“There's no strict number that we've gotten, but you're gonna have to jiggle some districts. And they're saying too many jiggled,” McKeown said.

Harless responded that moving a boundary in one district creates a ripple effect throughout the state while adjusting for equal population and other redistricting criteria. 

"Those changes were necessary to comply with the state's policy objectives, like uniting as much of the Yakima Reservation with its off-reservation lands,” Harless said. 

She also pushed back against the notion that the remedial map was created to favor a political party.

"No districts were flipped from one part to the other,” she said. 

The court then turned its attention to Benancio Garcia III, a Hispanic voter who accused the state of unconstitutionally districting him based on his ethnicity. The lower court declined to rule until it issued a decision in the first case — and ultimately dismissed his equal protection claim as moot after adopting the remedial map. 

On appeal, Garcia argues the claim is not moot, and further says the remedial map only exacerbated the race-based districting at issue. If the appellate court were to reverse the lower court ruling in Palmer's suit and vacate the injunction against the original legislative district map, Garcia argues his case should be remanded, too — but the sides disagree.

"Right now, the state's position, as we understand it, is that the reversal in Palmer potentially would ‘un-moot’ this case,” said Caleb Acker, also an attorney with Hotlzman Vogel, because then the original map would be back in play.

“Our view is that that means it’s not moot at all. There’s no such thing as ‘un-moot’ under Supreme Court law.”

McKeown asked why Garcia’s case shouldn’t be removed from submission pending the outcome of the first case. "It's not that his case wouldn't be heard, but the shape of this case is gonna change or not change,” she said.

Acker, in turn, argued that Garcia would be immediately harmed if the original district were back in play and his case was delayed.

“He lives in a racially gerrymandered district, and he would be voting in a racially gerrymandered district,” Acker said. 

Cristina Sepe, assistant attorney general, argued the case concerning Garcia is moot and he has no remaining relief to pursue. 

Should the court reverse the Palmer case, then the state agreed that Garcia’s case should be reversed as well to see through his equal protection challenge to the original district.

Acker argued that the nature of an injunction means the district map could “snap back,” and the harm still threatens Garcia.

The panel, which also included Clinton appointee U.S. Circuit Judge Ronald Gould, did not indicate when it would rule.