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05/18/2021 03D Copies of the Judge's Orders in the Montes v. City of Yakima lawsuit and discussion on housing segregationBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 3.D. For Meeting of: May 18, 2021 ITEM TITLE: Copies of the Judge's Orders in the Montes v. City of Yakima lawsuit and discussion on housing segregation SUBMITTED BY: Sara Watkins, City Attorney SUMMARY EXPLANATION: At the May 4, 2021 Council meeting, City Council instructed staff to provide a copy of the Judge's decision in the Montes v. City of Yakima lawsuit and have a discussion on housing segregation. Attached are two decisions. The first is the order granting summary judgment to the Plaintiffs, Mr. Montes, et al., on their Voting Rights Act claims. The second is the Judge's Final Injunction and Remedial Districting Plan which determined the seven voting districts for the City Council positions. Also attached is the Complaint filed by the Plaintiffs against the City. ITEM BUDGETED: NA STRATEGIC PRIORITY: Neighborhood and Community Building APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: ATTACHMENTS: Description Upload Date Type Order on Cross -Motions fear Curnrraary JudgmerA 5/5/2021 Backup Material Final Injunct'lon and Remedial Districting Plan 5/5/2021 Backup Material ® t cxnplaht 5/5/2021 Backup Material Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 2 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ROGELIO MONTES, et al., NO: 12-CV-3108-TOR Plaintiffs, ORDER ON CROSS -MOTIONS FOR V. SUMMARY JUDGMENT CITY OF YAKIMA, et al., Defendants. BEFORE THE COURT are cross -motions for summary judgment (ECF Nos. 64 & 67), and motions by the Plaintiffs to exclude the expert testimony of Dr. Stephan Themstrom (ECF No. 62) and to strike the Second Supplemental Expert Report of Peter Morrison (ECF Nos. 88 & 89). These matters were heard with telephonic oral argument on August 18, 2014. The Plaintiffs were represented by Abha Khanna and Kevin J. Hamilton of Perkins Coie, LLC. Defendants were represented by Francis S. Floyd and John A. Safarli of Floyd Pflueger & Ringer, P.S. The United States of America, specially appearing through T. Christian ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 1 we, 3 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Herren, Jr., Bryan L. Sells and Victor J. Williamson of the Voting Rights Section of the Civil Rights Division of the U.S. Department of Justice, filed a Statement of Interest pursuant to 28 U.S.C. § 517. ECF No. 99. Subsequent to the hearing, the parties filed responses to the United States' Statement of Interest (ECF Nos. 100 & 106). The Court has reviewed the briefing and the record and files herein and is fully informed. This is an action to remedy an alleged violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Plaintiffs contend that the City of Yakima's at -large voting system deprives Latinos of the right to elect representatives of their choosing to the Yakima City Council. In support of this contention, Plaintiffs note, inter alia, that no Latino has ever been elected to the City Council in the 37-year history of the current system —despite the fact that Latinos account for approximately one-third of the City's voting -age population and approximately one -quarter of its citizen voting -age population. Plaintiffs ask the Court to enjoin the City from utilizing its current voting system in future elections and to order that the City implement a system that complies with Section 2. The parties have filed cross -motions for summary judgment. For the reasons discussed below, the Court concludes that there are no genuine issues of material fact concerning the dilutive effect of the City's election system on Latino votes. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 2 we, 4 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Because City Council elections are not "equally open to participation" by .members of the Latino minority, Plaintiffs are entitled to summary judgment. FACTS The City of Yakima ("City") utilizes an at -large election system to fill the seven seats on the Yakima City Council. Four of these seats, designated Positions 1, 2, 3 and 4, have residency restrictions attached. Candidates running for one of these seats must reside in a geographic district corresponding to their seat number. The remaining three seats, designated Positions 5, 6 and 7, have no residency restriction. Candidates running for one of these seats may reside anywhere within the City. Each seat is allotted a four-year term. Terms are staggered, with elections to fill seats with expiring terms held every two years. Elections follow a "numbered post" format, meaning that candidates file for a particular seat and compete only against other candidates who are running for the same seat. In the event that more than two candidates file for a particular seat, the City conducts a primary election to narrow the field to the top two candidates. If the seat is one of the four residency -restricted seats, only voters who reside in the district corresponding to that seat may vote in the primary. If the seat is unrestricted, all voters residing within the City may cast a vote. The two candidates with the highest vote totals in the primary will then advance to a general election. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 3 we, 5 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The general election is essentially a collection of individual at -large races (three or four, depending upon which terms are expiring in a given election year). The two candidates running for each seat compete head -to -head, with the candidate amassing the most votes winning the seat. All registered voters may cast one vote in each head -to -head race, regardless of whether the seat at issue is residency - restricted. In order to win election under this system, a candidate must garner a simple majority of the votes cast in his or her head -to -head race. SUMMARY JUDGMENT STANDARD Summary judgment may be granted to a moving party who demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving parry bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute concerning any ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 4 we, 0 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 such fact is "genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 1 378 (2007). Only evidence which would be admissible at trial may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). DISCUSSION 1 I. Overview of Section 2 of the Voting Rights Act Section 2 of the Voting Rights Act of 1965 ("VRA"), prohibits states and their political subdivisions from utilizing voting practices or procedures which result in "a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). This legislation is designed to "help effectuate the Fifteenth Amendment's guarantee that no citizen's vote shall `be denied or abridged . . . on account of race, color, or previous condition of servitude." Voinovich v. Quitter, 507 U.S. 146, 152 (1993) (quoting U.S. Const. amend. XV, § 1). A violation of § 2 occurs when, based upon the totality of the circumstances, the challenged electoral process is "not equally open to participation by members of a [racial minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b) ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 5 we, 0 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (emphasis added). "The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and [majority] voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47 (1986). Section 2 does not confer a right to proportional representation, but rather a right to participate equally in the political process. See 42 U.S.C. § 1973(b) ("[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."); Gingles, 478 U.S. at 79 (core inquiry in § 2 case is "whether the political process is equally open to minority voters"); Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998) ("Section 2 guarantees a fair process, not an equal result.") (emphasis in original). For this reason, claims brought under § 2 are commonly referred to as "vote dilution" claims. Gingles is the seminal case applying § 2. In Gingles, the Supreme Court identified three "necessary preconditions" which a plaintiff must satisfy in order to proceed with a vote dilution claim. First, the plaintiff must demonstrate that his or her minority group is "sufficiently large and geographically compact to constitute a majority in a single -member [voting] district." Gingles, 478 U.S. at 50. Second, he or she must establish that the minority group is "politically cohesive." Id. at 51. Third, the plaintiff must "demonstrate that the white majority votes sufficiently as ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 6 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 8 1 a bloc to enable it ... usually to defeat the minority's preferred candidate." Id. In 2 other words, a § 2 plaintiff must make a prima facie showing that "a bloc voting 3 majority [will] usually be able to defeat candidates supported by a politically 4 cohesive, geographically insular minority group." Id. at 49 (emphasis in original). 5 The plaintiff is not required to demonstrate that the challenged system is designed 6 to discriminate against minority voters, or that the majority intentionally engages 7 in racial bloc voting; he or she need only show that the system has "the effect of 8 denying [the minority] the equal opportunity to elect its candidate of choice." 9 Voinovich, 507 U.S. at 155 (emphasis in original); see also Smith v. Salt River 10 Project Agr. Imp. & Power Dist., 109 F.3d 586, 594 (9th Cir. 1997) ("Section 2 11 requires proof only of a discriminatory result, not of discriminatory intent."). 12 If the plaintiff satisfies each of the Gingles preconditions, he or she must 13 then prove that, under "the totality of [the] circumstances," minority voters have 14 less opportunity than members of the majority group to participate in the political 15 process and to elect representatives of their choice. 42 U.S.C. § 1973(b). Gingles 16 identifies seven factors relevant to this consideration, each of which is drawn from 17 a report of the Senate Judiciary Committee accompanying the 1982 amendments to 18 the VRA. These so-called "Senate Factors" are as follows: 19 (1) The history of voting -related discrimination in the jurisdiction; 20 (2) The extent to which voting in the elections of the jurisdiction is racially polarized; ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 7 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 9 1. (3) The extent to which the jurisdiction has used voting practices or 2 procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election 3 districts, majority vote requirements, and prohibitions against bullet voting; 4 (4) The exclusion of members of the minority group from candidate 5 slating processes; 6 (5) The extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and 7 health, which hinder their ability to participate effectively in the political process; 8 (6) The use of overt or subtle racial appeals in political campaigns; 9 and 10 (7) The extent to which members of the minority group have been elected to public office in the jurisdiction. 11 12 Gingles, 478 U.S. at 44-45. When relevant to the particular claim being asserted, a 13 court may also consider the extent to which elected officials have been responsive 14 to the particularized needs of the minority group, and the policy underlying the 15 challenged voting practice or procedures. Id. at 45. 16 The Senate Factors "are neither comprehensive nor exclusive," and other 17 relevant factors may always be considered. Id. Further, "there is no requirement 18 that any particular number of factors be proved, or that a majority of them point 19 one way or the other." -1d. (citation omitted). The ultimate inquiry is whether, 20 under the totality of the circumstances, the challenged electoral process "is equally ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 8 we, 10 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 open to minority voters." Id. at 79 (citation omitted). This inquiry requires both a "searching practical evaluation of the past and present reality," and an "intensely local appraisal of the design and impact of the contested electoral mechanisms." Id. (citation omitted). Once again, a discriminatory result is all that is required; intent to discriminate is not a relevant consideration. Voinovich, 507 U.S. at 155; Smith, 109 F.3d at 594. 1 II. Expert Witness Challenges A. Motion to Exclude Dr. Thernstrom Plaintiffs move to exclude the testimony of Dr. Stephan Thernstrom, Defendants' Senate Factors expert, on the grounds that (1) Dr. Thernstrom is not qualified to opine about racial dynamics and socio-economic disparities between Latinos and non -Latinos in Yakima; (2) his opinions are not adequately supported by objective facts and data; and (3) his conclusions are not the product of reliable principles and methods. Admissibility of expert witness testimony is governed by Federal Rule of Evidence 702. The rule provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on. sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 9 we, m 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court directed trial courts to perform a "gatekeeping" function to ensure that expert testimony conforms to Rule 702's admissibility requirements. 509 U.S. 579, 597 (1993). Daubert identifies four non-exclusive factors a court may consider in assessing the relevance and reliability of expert testimony: (1) whether a theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate and the existence and maintenance of standards controlling the theory or technique's operation; and (4) the extent to which a known technique or theory has gained general acceptance within a relevant scientific community. Id. at 593-94. These factors are not to be applied as a "definitive checklist or test," but rather as guideposts which "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). The ultimate objective is to "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. Having reviewed the record, the Court concludes that Dr. Thernstrom's opinions are admissible for the limited purpose for which they are offered. The ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 10 we, 12 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 primary focus of Dr. Thernstrom's testimony is to point out flaws in the opinions of Plaintiffs' Senate Factors experts, Dr. Luis Fraga and Dr. Frances Contreras, about how racial dynamics and socio-economic disparities have the effect of denying Latinos equal access to the electoral process. See ECF No. 63-1, Exhibit B, at 2. In other words, Dr. Thernstrom's only objective is to "poke holes" in Dr. Fraga's and Dr. Contreras's theories; with a handful of inconsequential exceptions, he does not offer his own substantive opinions about the extent to which Latinos in Yakima are disadvantaged in accessing the electoral process. See, e.g., Thernstrom Report, ECF No. 63-1, Exhibit B, at 43 ("What caused this [drop in median household income among Latinos] in the opening decade of this century? Latinos were catching up in the 1990s and then falling back in the 2000-2010 decade. Why? I don't have enough evidence to be sure of the answer, but Dr. Fraga's generalized discrimination theory is too vague to be of any use."). The Court finds that Dr. Thernstrom is qualified by his training and experience as a tenured professor, academic researcher, and frequently published author to offer these opinions. The Court further finds that his opinions are grounded in sufficient data and are derived from reasonably reliable methodology. Accordingly, Plaintiffs' motion to exclude Dr. Thernstrom's testimony is denied. // ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 11 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 13 1 B. Motion to Strike Second Supplemental Report of Dr. Morrison 2 Plaintiffs move to strike the Second Supplemental Declaration of Dr. Peter 3 Morrison on the ground that the opinions offered therein were disclosed after the 4 discovery cutoff and in support of a reply memorandum to which Plaintiffs had no 5 opportunity to respond. ECF No. 89. Although the subject declaration was indeed 6 untimely and submitted under circumstances that did not permit a response, the 7 Court finds that Plaintiffs have not been prejudiced. The sole purpose of the 8 declaration is to demonstrate that Plaintiffs did not balance "electoral equality" 9 among districts when creating their proposed districting plans. ECF No. 86-1. 10 There is no factual dispute on this score, as Plaintiffs' expert, Mr. William Cooper, 11 concedes that he attempted to equalize districts on the basis of total population 12 rather than eligible voting population. The only disputed issue involves a purely 13 legal question: whether districts which are approximately equal in total population, 14 but which differ in eligible voting population, violate the "one person, one vote" 15 principle embodied in the Equal Protection Clause. For the reasons discussed in 16 Section III.A, infra, the Court concludes that any disparities among districts in 17 eligible voting population are not fatal to Plaintiffs' claim. To the extent a better 18 balancing of electoral equality among districts is required, it can be accomplished 19 at the remedial stage of these proceedings. The motion to strike Dr. Morrison's 20 Second Supplemental Report is therefore denied. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 12 we, 14 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 111. Plaintiffs Have Satisfied the Gingles Preconditions A. Latinos are a "sufficiently large and egg aphically coMpact" minority group to form a majority in a hypothetical single -member voting district. The first Gingles precondition requires that a minority group be "sufficiently large and geographically compact" to form a majority of voters in a single -member district. Gingles, 478 U.S. at 50. Stated more plainly, the question is: Are there enough minority voters, and are they sufficiently concentrated geographically, to form a majority of all eligible voters within a single -member voting district? If the answer is yes, the first Gingles precondition is satisfied; if the answer is no, the entire claim fails as a matter of law. The plaintiff must draw a hypothetical district which satisfies these requirements using real demographic data. The exercise of requiring a § 2 plaintiff to draw a hypothetical "minority" district serves two related purposes. First, it serves to link the alleged injury (the minority group's inability to elect representatives of its choosing) to the alleged cause (the challenged voting system). As the Supreme Court explained in Gingles: Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice. ... Thus, if the minority group is spread evenly throughout a multimember district, or if, although geographically compact, the minority group is so small in relation to the surrounding white population that it could not constitute a majority in a single -member district, these minority voters cannot maintain that they would have been able to elect representatives of their choice in the absence of the [challenged] electoral structure. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 13 we, W 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 478 U.S. at 50 n.17 (emphasis in original). Second, drawing a minority district in which minority voters represent more than 50% of all eligible voters confirms that an effective remedy can be fashioned. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480 (1997) ("Because the very concept of vote dilution implies —and, indeed, necessitates —the existence of an `undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark `undiluted' voting practice."); Holden v. Hall, 512 U.S. 874, 881 (1994) (plurality opinion) ("[W]here there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive under § 2."); Barnett v. City of Chicago, 141 F.3d 699, 702 (7th Cir. 1998), cent. denied, 524 U.S. 954 (1998) ("[T]he plaintiff must show that there is a feasible alternative to the defendant's map, an alternative that does a better job of balancing the relevant factors, although the fine-tuning of the alternative can be left to the remedial stage of the litigation."). In short, if no workable minority district can be drawn, "there has neither been a wrong nor can there be a remedy." Growe v. Emison, 507 U.S. 25, 41 (1993). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 14 we, 16 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Courts analyzing vote dilution claims under § 2 typically divide the first Gingles precondition into two sub -criteria: numerosity and compactness. The numerosity criterion is satisfied when minority voters form "a numerical, working majority of the voting -age population" in the proposed district. Bartlett v. Strickland, 556 U.S. 1, 13 (2009); see also id. at 19-20 ("[A] party asserting § 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent."). In the Ninth Circuit, the appropriate measure of "voting -age population" is the citizen voting age population ("CVAP")i.e., the number of persons who are actually eligible to cast a vote. Romero v. City of Pomona, 883 F.2d 1418, 1425-26 (9th Cir. 1989) (holding that "eligible minority voter population," rather than total minority population, is the better measure of numerosity under Gingles 1 because it more accurately predicts whether minority voters could actually elect representatives of their choosing if the challenged voting system were abolished), abrogated on other grounds by Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1363 (9th Cir. 1990) (en banc); Cano v. Davis, 211 F. Supp. 2d 1208, 1233 (C.D. Cal. 2002) aff'd, 537 U.S. 1100 (2003) ("The Ninth Circuit, along with every other circuit to consider the issue, has held that CVAP is the appropriate measure to use in determining whether an additional effective majority -minority district can be created.") (citing Romero, 883 F.2d at 1426). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 15 we, 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Compactness, the second criterion, refers to the geographical dispersion of minority voters within the jurisdiction. League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 433 (2006). In essence, this criterion measures whether minority voters are sufficiently concentrated geographically to facilitate the creation of a single voting district in which minority voters outnumber majority voters. Gingles, 478 U.S. at 50 & n.17. Compactness in the § 2 context is not to be confused with compactness in the context of a challenge under the Equal Protection Clause to the manner in which voting districts have been apportioned. LULAC, 548 U.S. at 433. In the equal protection context, "compactness focuses on the contours of district lines to determine whether race was the predominant factor in drawing those lines"—i.e., to determine whether voting districts were deliberately "gerrymandered" along racial lines. Id. The compactness inquiry under § 2, by contrast, focuses more generally on whether the proposed minority district reasonably comports with "traditional districting principles" such as contiguousness, population equality, maintaining communities of interest, respecting traditional boundaries, and providing protection to incumbents. See id.; Shaw v. Reno, 509 U.S. 630, 647 (1993); Easley v. Cromartie, 532 U.S. 234 (2001). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 16 we, 18 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1. Numerosity Having thoroughly reviewed the record, the Court concludes that Plaintiffs have carried their burden of establishing that a district can be drawn in which the Latino citizen voting age population ("LCVAP") comprises more than 50% of the district's total eligible voters. Using the most recent data available from the U.S. Census Bureau's American Community Survey ("ACS" ),i Plaintiffs' expert, Mr. William Cooper, generated five separate "plans" which break the City of Yakima into seven individual voting districts. The parties agree that this is the appropriate number of districts because it corresponds to the number of seats on the City Council. Two of these plans, designated "Illustrative Plan 1" and "Illustrative Plan 1 2," were prepared using Mr. Cooper's preferred statistical methodology (referred to by Mr. Cooper as "Method 1"). The other three plans, labeled "Hypothetical Plan A," "Hypothetical Plan B" and "Hypothetical Plan C," were prepared using statistical methodology favored by Defendants' Gingles 1 expert, Dr. Peter Morrison ("Method 2"). The following represents the LCVAP in one of the seven 1 Mr. Cooper's Second Supplemental Declaration analyzes data published in the 2008-2012 American Community Survey 5-Year Estimates. ECF No. 66-2 at T 2 & n.1. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 17 we, 19 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 hypothetical voting districts —"District 1 "—across all five plans using both experts' preferred statistical methodology: Percentage of Eligible Latino Voters ("LCVAP") in "District 1" Method 1 Method 2 Illustrative Plan 1 54.51 52.52 Illustrative Plan 2 54.70 52.67 Hypothetical Plan A 55.53 53.27 Hypothetical Plan B 59.30 56.31 Hypothetical Plan C 60.91 57.48 Cooper Second Supplemental Decl., ECF No. 66-2, Exhibit 5, at ¶ 11, Fig. 2. As the table above clearly illustrates, there are at least five possible single - member voting districts which satisfy the numerosity requirement. Given that three of these options utilize the statistical methodology favored by Defendants' own expert, there are no genuine issues of material fact for trial as to numerosity.2 2 The Court need not resolve the dispute concerning statistical methodology at this juncture. To establish liability for a § 2 violation, Plaintiffs need only demonstrate that it is possible to draw a minority district which satisfies the Gingles 1 criteria. That has been established using both Mr. Cooper's and Dr. Morrison's preferred statistical methods. To the extent that there remains a live dispute about which method is "better," the Court will resolve it during the remedy phase of the case. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 18 we, 20 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Moreover, to the extent that Dr. Morrison disputes the accuracy of the underlying ACS data, see Morrison Decl., ECF No. 79-2, Exhibit J, at' 36-37, his objection is not well -taken. Although U.S. Census data may not be perfectly accurate, it is routinely relied upon in § 2 cases. See, e.g., Bartlett, supra; Growe, supra; Romero, supra. In any event, Defendants cannot be heard to complain about the accuracy of the ACS data because they have neither identified nor analyzed a more reliable data set. See Benavidez v. City of Irving, 638 F. Supp. 2d 709, 729-30 (N.D. Tex. 2009) ("[I]n Section 2 cases, Census figures are presumptively accurate until proven otherwise.") (citing Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 853-54 (5th Cir. 1999)). Accordingly, the Court concludes that numerosity has been conclusively established on a materially undisputed factual record. See Barnett, 141 F.3d at 702 ("The plaintiff is not required to propose an alternative map that is `final' in the `final offer' arbitration sense, where the parties cannot modify their offers once they have denominated them final and the tribunal is confined to choosing which of the final offers is better and cannot formulate its own, best remedy.") ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 19 we, 21 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2. Compactness Plaintiffs have also demonstrated that the LCVAP is sufficiently "compact" to facilitate the creation of a reasonably compact minority district. At the outset, it bears noting that a substantial majority of the City of Yakima's Latino population lives in an area east of 16th Avenue. This area encompasses roughly one-third of the City's entire geographic area (9.78 square miles out of 28 square miles total). Cooper Decl., ECF No. 66-1, Exhibit 4, at 27 & Fig. 5. Census data from 2010 reveals that nearly three -fourths (72.54%) of the City's Latino population resides in this area. Id. at 27 & Fig. 5. Not surprisingly, this area is also home to a substantial portion of the Latino voting age citizen population, as evidenced by the fact that all 2010 Census block groups with a LCVAP of 40% or higher are located east of 16th Avenue. Id. at � 27 & Fig. 6. It is not difficult to create a sufficiently compact minority district from an area with such a high percentage of eligible Latino voters. Indeed, Mr. Cooper has generated several compelling examples. See, e.g., Cooper Decl., ECF No. 66-1, Exhibit 4, at TT 50-56 & Figs. 10, 11; Cooper Supplemental Decl., ECF No. 66-2, Exhibit 6, at �� 27-32 & Fig. 8. As Plaintiffs correctly note, the compactness of the minority districts in these proposals is easily confirmed by simply looking at the maps of the proposed districts (District 1 in orange is the minority district): ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 20 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Yakima City Council Illustrative Plan I Yak" - 1kistofive Plan AWtVAef AfE53 I --- Hgw 0 .6 U 1.8 Yakima City Council Illustrative Plan 2 Yak" - 1kistofive Plan aff%%W Area ,—,Hgw 0 .6 1.2 1.8 ML-S ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT - 21 we, 23 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Even Hypothetical Plan A, which Mr. Cooper created using Dr. Morrison's preferred statistical methodology, contains a minority voting district that is reasonably compact on its face: Yakima City Council Hypothetical Flan A ma FyaiheticalPlan 4 G 12 113 M1SIZS Moreover, Mr. Cooper's statistical analysis confirms that the proposed districts are sufficiently compact. Using a statistical measure known as the Reock test,3 Mr. Cooper determined that the districts in each of his five proposed plans 3 Mr. Cooper describes the Reock test as follows: The Reock test is an area -based measure that compares each district to a circle, which is considered to be the most compact shape possible. For each district, the Reock test computes the ratio of the area of the district to the area of the minimum enclosing circle for the district. The measure is always between 0 and 1, with 1 being the most compact. The Reock test computes one number for each district and the minimum, maximum, mean and standard deviation for the plan. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 22 we, 24 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 were (1) more compact on average than the districts in the existing City of Yakima 2011 Plan; (2) more compact than one -quarter of the districts in the Washington State Legislature Plan; and (3) comparably compact to the plans utilized in Pasco, Spokane and Tacoma. Cooper Second Supplemental Decl., ECF No. 66-2, Exhibit 5, at ¶T 15-19. With this compelling and undisputed evidence, Plaintiffs have satisfied the compactness component of the first Gingles precondition. Defendants disagree with the above conclusion on four separate grounds. First, they argue that Plaintiffs have ignored the principle of "electoral equality," which Defendants describe as the principle that "a citizen's vote should carry about the same weight as any other citizen's vote regardless of where a citizen resides." ECF No. 77 at 10 (citing Reynolds v. Sims, 377 U.S. 533, 579 (1964)). In support of this argument, Defendants note that Plaintiffs' seven proposed voting districts, while roughly equivalent in total population size, are disproportionate in terms of citizen voting -age population. According to Defendants, this imbalance "would invariably cause the votes of eligible voters in [the minority district] to carry far more weight than a vote in another district." Morrison Decl., ECF No. 79-2, Exhibit J, at T 39. Dr. Morrison explains the situation as follows: [A]ny Latino majority-CVAP district encompassing 1/7th (14.3%) of the City's total population can encompass at most 8.4% of the City's Cooper Second Supplemental Decl., ECF No. 66-2, Exhibit 5, at 7 n.7. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 23 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 25 1 voting -age citizen population. That 8.4% of eligible voters would necessarily exercise 14.3% of the power in electing City Council 2 members —in effect, "one person, 1.7 votes." Conversely, the remaining 91.6% of the eligible voters across the City would exercise 3 only 85.7% of the power in electing City Council members—i.e., "I person, 0.94 votes." 4 5 Morrison Decl., ECF No. 79-2, Exhibit J, at � 39 (emphasis in original). Based 6 upon this ostensible imbalance in "voting power," Defendants urge the Court to 7 deny Plaintiffs' motion and grant summary judgment in their favor. ECF No. 77 at 8 11; ECF No. 67 at 5-15. 9 The Court is not persuaded that this alleged violation of the "one person, one 10 vote" principle requires dismissal of Plaintiffs' claim. As Plaintiffs correctly note, 11 Defendants are short on authority for the proposition that an imbalance in citizen 12 voting -age population, as opposed to an imbalance in total population, is relevant 13 to the "one person, one vote" calculus. Indeed, Reynolds v. Sims, the primary case 14 on which Defendants rely, appears to foreclose such an argument: 15 By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean 16 that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its 17 legislature, as nearly of equal population as is practicable. 18 19 Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, 20 so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 24 we, 26 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Reynolds, 377 U.S. at 577, 579 (emphasis added); accord Mahan v. Howell, 410 U.S. 315, 321 (1973) (identifying "equality of population among the districts" as the basic constitutional principle embodied by the Equal Protection Clause); Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (explaining that "equal representation for equal numbers of people" is the objective of the Equal Protection Clause). In fact, the only authority offered by Defendants that lends much credence to their electoral equality argument is a dissenting opinion filed by Judge Kozinski in Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cent. denied, 498 U.S. 1028 (1991). Judge Kozinski's dissent attempts to answer the following question: "Does a districting plan that gives different voting power to voters in different parts of the county impair the one person one vote principle even though raw population figures are roughly equal?" Id. at 780 (Kozinski, J., dissenting). After reviewing a host of decisions applying the one person, one vote principle in the context of an equal protection challenge, Judge Kozinski posits that "a careful reading of the [Supreme] Court's opinions suggests that equalizing the total population is viewed not as an end in itself, but as a means of achieving electoral equality" —that is to say, a balance of "voting power" among eligible voters. Id. at 783. In the end, however, Judge Kozinski acknowledges that there is equal support for the contrary view: that population equality across voting districts is the ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 25 we, 27 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I hallmark of the Equal. Protection Clause's one person, one vote guarantee. Id. at Defendants' reliance upon the Kozinski dissent is unavailing for several reasons. First, the dissent is a minority opinion which does not carry the force of law. Whatever the merits of Judge Kozinski's analysis, this Court is bound by the majority opinion, which flatly rejects the argument that voting districts must be equalized on the basis of eligible voters rather than total population. Garza, 918 F.2d at 774 (emphasis added); accord Chen v. City of Houston, 206 F.3d 502, 522- 23 (5th Cir. 2000), cent. denied, 532 U.S. 1046 (2001) (rejecting argument that voting districts must be apportioned on the basis of citizen voting age population (CVAP) rather than total population in order to comply with the Equal Protection Clause). Second, the Kozinski dissent is of limited relevance because it arises in the context of an equal protection challenge. To prevail on an equal protection challenge, a plaintiff must prove intentional dilution of a minority group's voting strength through racial gerrymandering. See, e.g., Garza, 918 F.2d at 766. Because "[t]he Gingles requirements were articulated in a much different context than [Garza] presents," id. at 770, it would be inappropriate to import an equal "voting power" requirement into the Gingles framework. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 26 we, 2s 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Third, the concerns identified by Judge Kozinski are not especially germane at this stage of the proceedings. Whereas the Kozinski dissent speaks primarily to the appropriate remedy for a violation of the Voting Rights Act and/or the Equal Protection Clause, the singular focus of the instant cross -motions for summary judgment is whether Plaintiffs can establish a § 2 violation in the first instance. Although they are unwilling to admit it (see ECF No. 77 at 12), Defendants are essentially arguing that Gingles requires Plaintiffs to come forward with a districting plan that perfectly harmonizes every "traditional districting principle," including electoral equality, in order to establish liability. That is simply not the law. Gingles requires a § 2 plaintiff to prove, by a preponderance of the evidence, that it would be possible to draw a district in which eligible minority voters make up more than 50% of the total voting population. In making that showing, the plaintiff must submit a districting plan which reasonably incorporates traditional districting principles such as contiguousness, maintaining population equality, respect for traditional district boundaries, and protection of incumbents. The thrust of the cases discussing the relevance of these traditional districting principles is that the plaintiff may not ignore them altogether when drawing a minority district that meets the compactness requirement. See LULAC, 548 U.S. at 433 (explaining that the compactness inquiry "should take into account traditional districting principles") (emphasis added) (quotation and citation omitted); Shaw, 509 U.S. at ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 27 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 29 1 647 (explaining that total "disregard" of traditional districting principles would be 2 evidence of intentional discrimination in a racial gerrymandering challenge under 3 the Equal Protection Clause); Bush v. Vera, 517 U.S. 952, 979 (1996) (explaining 4 that "the district drawn in order to satisfy § 2 must not subordinate traditional 5 districting principles to race substantially more than is 'reasonably necessary' to 6 avoid § 2 liability") (emphasis added). 7 What the first Gingles precondition does not require is proof that a perfectly 8 harmonized districting plan can be created. Indeed, conditioning a § 2 plaintiffs 9 right to relief upon his or her ability to create a letter-perfect districting plan would 10 put the cart before the horse. See Clark v. Roemer, 777 F. Supp. 445, 463 (M.D. 11 La. 1990) ("The determination of vote dilution begins with examining the existing 12 election district and the existing number of positions. Whether a court ought to 13 consider changes in either, as a part of the remedy should a violation be found, is 14 no part of determining whether there is vote dilution, for if there is vote dilution it 15 is the existing district which must be its cause[.]") (emphasis in original). In short, 16 if the plaintiff proves by a preponderance of the evidence that a workable remedy 17 can be fashioned, the first Gingles precondition is satisfied. 18 Having carefully reviewed the record, the Court concludes that there are no 19 genuine issues of material fact for trial concerning Plaintiff's ability to make this 20 showing. While Plaintiffs' proposed districting plan might not perfectly harmonize ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 28 we, 30 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 each and every traditional districting principle, it is simply not required to. In that regard, "[i]t bears recalling ... that for all the virtues of majority -minority districts as remedial devices [for § 2 violations], they rely on a quintessentially race - conscious calculus aptly described as the `politics of second best."' Johnson v. De Grandy, 512 U.S. 997, 1020 (1994) (citation omitted). To whatever extent the proposal requires fine -tuning —including potential adjustments to achieve a higher degree of electoral equality between districts —these minor adjustments can be "left to the remedial stage of the litigation." Barnett, 141 F.3d at 702. Next, Defendants argue that Plaintiffs' proposed districting plan "violates Section 2's prohibition on minority vote dilution." ECF No. 67 at 1. Specifically, Defendants contend that "the voting power of eligible voters from ethnic and racial minorities (including Latinos) would be systematically devalued if they lived outside of Districts 1 and 2." ECF No. 67 at 13. In support of this argument, they assert that "a State may not trade off the rights of some members of a racial group against the rights of other members of that group." ECF No. 67 at 14 (quoting LULAC, 548 U.S. at 437). Because the proposed districting plan "confer[s] additional voting power on certain members of a minority group while diluting the voting power of other members," Defendants argue, ECF No. 67 at 14, Plaintiffs have "merely replace[d] one alleged violation of Section 2 with another sure violation," ECF No. 77 at 13. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 29 we, 31 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 This argument misapprehends the very essence of the § 2 remedy. If a minority group successfully proves that a jurisdiction's voting system gives its members less opportunity than majority voters to participate in the political process and to elect representatives of their choosing, see 42 U.S.C. § 1973(b), it is entitled to the creation of a single -member voting district in which eligible minority voters account for more than 50% of the total voting population, see, e.g. Bartlett, 556 U.S. at 13. The purpose of creating such a district is to afford minority voters an equal opportunity to meaningfully participate in the electoral process —in essence, to remove any unfair structural barriers to minority voters being able to elect representatives of their choosing. Voinovich, 507 U.S. at 154 ("Placing [minority] voters in a district in which they constitute a sizeable and therefore `safe' majority ensures that they are able to elect their candidate of choice."). Once that remedy is implemented, there is no longer a violation of § 2. Hence, the argument that Plaintiffs have merely "replaced one Section 2 violation with another" does not hold water. Moreover, creating a minority district to remedy a § 2 violation will always result in a dilution of minority voting strength in the remaining districts. See Voinovich, 507 U.S. at 1.54 ("[C]reating majority -black districts necessarily leaves fewer black voters and therefore diminishes black voter influence in predominantly white districts."). The dilution of minority votes in other districts is an inevitable ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 30 we, 32 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 byproduct of the § 2 remedy, and there is nothing improper about it. See Gomez v. City of Watsonville, 863 F.2d 1407, 1414 (9th Cir. 1988) ("The fact that the proposed remedy does not benefit all of the Hispanics in the City does not justify denying any remedy at all."); Campos v. City of Baytown, Tex., 840 F.2d 1240, 1244 (5th Cir. 1988) ("The fact that there are members of the minority group outside the minority district is immaterial. All that is required is that the minority group be `sufficiently large and geographically compact to constitute a majority in a single member district."') (emphasis in original) (quoting Gingles, 478 U.S. at 50). After all, if a finding of vote dilution among minorities residing in the non - remedial district were sufficient to defeat a § 2 claim, it would be mathematically impossible for a plaintiff to ever establish liability under the Gingles framework. Finally, Defendants argue that Plaintiffs "unconstitutionally gerrymandered" their proposed voting districts. ECF No. 67 at 15. This argument is essentially a derivative of the "electoral equality" argument addressed above. See ECF No. 67 at 16 (arguing that the redistricting plans "establish that [Plaintiffs] made no attempt whatsoever to balance electoral equality with other race -neutral traditional districting principles," and that "electoral equality was subordinated to [Plaintiffs'] predominant goal of using ethnicity" to define the borders of their proposed districts). As such, this argument is rejected for the reasons previously stated. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 31 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 33 1 Moreover, assuming for the sake of argument that the proposed districting 2 plan must survive strict scrutiny under an equal protection analysis because it 3 favors race over all other traditional districting criteria, see ECF No. 67 at 15-17, 4 that does not preclude a finding of liability for a § 2 violation. As a district court 5 presented with an identical argument deftly explained: 6 The first problem with [this] argument is that [it] assume[s] that if race was [the] primary consideration in crafting the Illustrative Plan, 7 the plan automatically fails as a racial gerrymander under the Equal Protection Clause. This argument ignores the applicable framework 8 of an equal -protection claim. Upon a finding that a plan 44 subordinate[s] traditional race -neutral districting principles, 9 including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared 10 interests, to racial considerations," Miller v. Johnson, 515 U.S. 900, 916 (1995), the district is not simply rejected as a racial gerrymander. 11 Instead, the court applies strict scrutiny to determine if the plan pursues a compelling state interest and is narrowly tailored to achieve 12 that interest. Shaw v. Hunt, 517 U.S. 899, 905 (1996). 13 In Shaw . . . the Court assumed that compliance with § 2 can constitute a compelling state interest. The Court [has also] warned, 14 however, that "the district drawn in order to satisfy § 2 must not subordinate traditional redistricting principles to race substantially 15 more than is 'reasonably necessary' to avoid § 2 liability." [Bush v. Vera, 517 U.S. 952, 979 (1996)].... Thus, contrary to [defendants'] 16 contention, it is possible that a district created to comply with § 2 that uses race as the predominant factor in drawing district lines may 17 survive strict scrutiny. 18 19 The second problem with [this] argument is that it would have the Court collapse an equal -protection inquiry into the first Gingles prong 20 and hold that if the Illustrative Plan fails under the Equal Protection Clause, it is not a permissible remedy. However, even if the ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 32 we, 34 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Illustrative Plan was drawn predominantly on racial lines . . . to determine whether it passes strict scrutiny, the court must know whether the district is necessary to avoid § 2 liability. Otherwise, the court cannot evaluate whether a plan drawn primarily along racial lines is nonetheless permissible because it does not "subordinate traditional districting principles to race substantially more than is `reasonably necessary' to avoid § 2 liability." Vera, 517 U.S. at 979. In other words, the court must first determine whether Gingles is met before ensuring that the proposed remedy complies with the Equal Protection Clause. Ga. State Conference of NAACP v. Fayette Cnty. Bd. of Counn 'rs, 950 F. Supp. 2d 1294, 1304-06 (N.D. Ga. 2013). For the reasons so cogently explained in Fayette County, the Court "will not determine as part of the first Gingles inquiry whether [the proposed districting plan] subordinates traditional redistricting principles to race." 950 F. Supp. 2d at 1 1306. If Defendants believe that the present proposal cannot pass muster under the Equal Protection Clause, they may raise that issue during the remedial phase of the proceedings. As noted above, however, the Court questions whether a districting plan that fails to balance voting strength among districts of approximately equal population size would violate the one person, one vote mandate. Plaintiffs' motion for summary judgment on the first Gingles precondition is granted. Defendants' motion for summary judgment on the same is denied. // // ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 33 we, 35 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 B. Latinos are a "politically cohesive" minority group. The second Gingles precondition focuses on whether the minority group is "politically cohesive." Gingles, 478 U.S. at 51. The relevant inquiry is "whether the minority group has expressed clear political preferences that are distinct from those of the majority." Gomez, 863 F.2d at 1415. To satisfy this requirement, the plaintiff must demonstrate that "a significant number of minority group members usually vote for the same candidates." Gingles, 478 U.S. at 56. Political cohesiveness must be proven with statistical evidence of historical voting patterns. See Gomez, 863 F.2d at 1415 ("[W]hether a racial group is politically cohesive depends on its demonstrated propensity to vote as a bloc for candidates or issues popularly recognized as being affiliated with the group's particularized interests") (emphasis in original) (quotation and citation omitted). Election results from within the challenged voting system are most probative, although results from "exogenous" elections may also be considered. United States v. Blaine Cmy., 363 F.3d 897, 912 (9th Cir. 2004). Plaintiffs have proffered statistical analyses performed by their voting expert, Dr. Richard Engstrom, of the voting patterns of both Latinos and non - Latinos in ten recent contests (nine elections and one ballot measure). These ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 34 we, 36 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 contests were apparently selected because they featured a Latino candidate ,4 or, in the case of the ballot measure, an issue of presumed importance to Latinos. The contests analyzed were as follows: (1) the 2009 City Council primary for Position 5; (2) the 2009 City Council general election for Position 5; (3) the 2009 City Council primary for Position 7; (4) the 2009 City Council general election for Position 7; (5) the 2011 City Council primary for Position 2; (6) the 2013 City Council primary for Position 5; (7) the 2013 City Council primary for Position 7; (8) the 2012 Supreme Court election for Position 8; (9) the 2013 Yakima School Board general election; and (10) the 2011 vote on Proposition 1 (which involved a proposal to change the voting system for City Council elections to a district -based system with seven voting districts). Using a statistical analysis known as ecological inference ("EI"), Dr. Engstrom analyzed which candidates (both Latino and non -Latino) were favored by which voting groups (both Latinos and non -Latinos) in each of the ten contests. His analysis paints a clear picture of Latino voter cohesion. Five of the contests 4 A candidate need not be a member of the minority group in order to qualify as a "minority preferred" candidate for purposes of the political cohesiveness inquiry. Ruiz, 160 F.3d at 551. "The minority community may prefer a white candidate just as the white community may prefer a minority candidate." Id. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 35 we, 37 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 analyzed —the 2009 City Council primary and general elections for Positions 5 and 1 7, the 2011 vote on Proposition 1, the 2013 School Board election and the 2012 Supreme Court election —are particularly illustrative. 1. 2009 City Council Election (Position 5) Three candidates ran for Position 5 in the 2009 City Council election. The candidates were Sonia Rodriguez, a Latina who had been appointed to serve as the Position 5 representative prior to the election, and Sharon Madson and Dave Ettl, both of whom are non -Latino. A primary election was held to narrow the field to the top two candidates. Mr. Ettl and Ms. Rodriguez were the top two finishers, having received 47.5% and 38.2% of the votes, respectively. Based upon his EI analysis, Dr. Engstrom concluded that Ms. Rodriguez received an estimated 52.9% of votes cast by Latino voters. Ms. Rodriguez received only an estimated 37.3% of votes cast by non -Latinos. Mr. Ettl, by contrast, received an estimated 49.4% of votes cast by non -Latino voters. Ms. Rodriguez and Mr. Ettl subsequently squared off in the general election for Position 5. Ms. Rodriguez was again the candidate of choice among Latino voters, having received an estimated 92.8% of their votes. Among non -Latino voters, Ms. Rodriguez received only an estimated 42.6% of the votes. Despite her strong support among Latino voters, Ms. Rodriguez lost the election with only 47.8% of the total votes. Engstrom Report, ECF No. 66-1, Exhibit 2, at'i1 17-19. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 36 we, 38 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2. 2009 City Council Election (Position 7) There were four candidates for Position 7 in the 2009 City Council election. Benjamin Soria, who is Latino, ran against Mitchell Smith, Bill Lover, and T.J. Davis, all of whom are non -Latino. Mr. Lover and Mr. Soria finished first and second in the top -two primary. Of the votes cast by Latino voters during this primary, Mr. Soria received an estimated 59.5%. Among the votes cast by non - Latino voters, Mr. Soria received only an estimated 31.0%. Mr. Soria was the strong favorite among Latino voters in the ensuing general election, with an estimated 92.7% of that group's votes. Despite this strong support, Mr. Soria was defeated by a wide margin, having received only 35.0% of the total votes cast. Mr. Soria received only an estimated 30.5% of votes cast by non -Latino voters. Engstrom Report, ECF No. 66-1, Exhibit 2, at 11t 20-22. 3. 2011 Vote on Proposition 1 Proposition 1 involved a proposal to change the voting system for City Council elections to a district -based system with one voting district for each of the seven City Council seats. Dr. Engstrom's EI analysis revealed that Latino voters overwhelmingly favored this proposal: an estimated 98.2% voted for it. Non - Latino voters, by contrast, did not favor the proposal; only an estimated 38.4% voted in favor. Proposition 1 was ultimately defeated by a margin of 58.5% in favor and 41.5% opposed. Engstrom Report, ECF No. 66-1, Exhibit 2, at 26. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 37 we, 39 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 4. 2013 School Board General Election Two candidates competed in the 2013 School Board general election: Graciela Villanueva, a Latina, and Jeni Rice, a non -Latino. Ms. Villanueva had been appointed to the School Board prior to the election. Although Ms. Rice announced in September that she had withdrawn from the election, she ended up winning the race with 61.2% of the total votes cast. Ms. Villanueva received an estimated 70% of the votes cast by Latinos and only an estimated 35% of votes cast by non -Latinos. Engstrom Supplemental Report, ECF No. 66-2, Exhibit 10, at T 9; Alford Supplemental Report, ECF No. 66-2, Exhibit 11, at 1-2. 5. 2012 Supreme Court Election Two candidates ran for Position 8 on the Washington Supreme Court in 1 2012: Steven Gonzalez, a Latino, and Bruce Danielson, a non -Latino. This was a state-wide, non -partisan election. Neither candidate had any strong ties to the City of Yakima. Based upon his EI analysis, Dr. Engstrom concluded that Mr. Gonzalez received 63.2% of the votes cast by Latino voters residing within the City of Yakima. Among non -Latino voters, by contrast, Mr. Gonzalez received only an estimated 36.9% of votes. Mr. Gonzalez was beaten by Mr. Danielson in Yakima, but fared much better statewide and won the election. Engstrom. Report, ECF No. 66-1, Exhibit 2, at ¶T 27-28. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 38 we, 40 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The results above are plainly indicative of "a significant number of [Latino voters] usually voting] for the same candidates." Gingles, 478 U.S. at 56. In each of these contests, the Latino candidate or issue won more than 50% of the votes cast by Latino voters. In the case of the 2009 City Council general elections for Positions 5 and 7 and the 2011 vote on Proposition 1, Latino support of the Latino candidate (issue) exceeded 90%. Tellingly, in only one of the ten contests analyzed (the 2013 City Council primary for Position 7), did the Latino candidate not garner a majority of votes cast by Latino voters. See Engstrom Supplemental Report, ECF No. 66-2, Exhibit 10, at T 6. Defendants do not contest Dr. Engstrom's mode of analysis. In fact, their voting expert, Dr. John Alford, agrees that the EI method produces the most accurate measure of voter preferences. Alford Dep., ECF No. 66-1, Exhibit 3, at Tr. 101-04. Dr. Alford further acknowledges that Dr. Engstrom analyzed the best available data and that his analysis is statistically sound. Id. at Tr. 104, 135, 179. Nevertheless, Dr. Alford takes exception to Dr. Engstrom's ultimate conclusion: that the data reflect strong Latino voter cohesion. Id. at Tr. 134-35. In a nutshell, Dr. Alford's position is that the confidence intervals surrounding Dr. Engstrom's s A confidence interval is a statistical measure of reliability which provides a range of values within which the actual value will fall 95% of the time. For example, if Candidate A is estimated to have received 75% of the votes cast by Latinos with a ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 39 we, 41 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 estimates of Latino candidate preferences are too broad to support a reliable conclusion about whether Latino voters are politically cohesive. See id. at Tr. 117- 19, 134. In other words, Dr. Alford agrees with the result reached by Dr. Engstrom —that Latino candidates (or issues) received more than 50% of votes cast by Latinos in nine out of the ten contests analyzed —but disputes whether that result is supported by enough raw data to warrant a conclusion that a significant number of Latino voters usually vote for the same candidates (or issues). Dr. Alford's concerns, while legitimate from a statistics standpoint, do not defeat a finding of Latino voter cohesion. As an initial matter, all of the contests which Dr. Alford identifies as having insufficiently reliable confidence intervals are City Council primary elections. Alford Dep., ECF No. 66-1, Exhibit 3, at Tr. 117-18. This is significant because each of these primaries featured three or four candidates, as opposed to only two candidates in the general elections. Because the primary votes were spread across three or four candidates, there were fewer data points per candidate to analyze than in the general elections. This resulted in confidence interval of 60% to 90%, we can be confident, to a 95% degree of certainty, that Candidate A did in fact receive between 60% and 90% of the Latino votes. Thus, the narrower the confidence interval, the more reliable the estimate; the broader the confidence interval, the less reliable the estimate. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 40 we, 42 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 broader confidence intervals. When votes were divided among the two surviving candidates in the general elections (in the two races in which Latino candidates advanced), the confidence intervals became much narrower: Results by Latino Candidate in 2009 City Council Elections Estimated Percentage of Latino Votes (Confidence Interval) Position 5 — Rodriguez Position 7 - Soria Primary 52.9 (15.1— 2®) 59.5 (16.5 — 83.8) General 92.8 (77®2 — .2) 92.7 (7 .1— 98.4) Engstrom Report, ECF No. 66-1, Exhibit 2, at 15. The significance of this data is that we can be confident, to a 95% degree of certainty, that the Latino candidate received at least three-quarters of the votes cast by Latino voters when the City Council seat was on the line in the general election. Furthermore, the broad confidence intervals assailed by Dr. Alford can most likely be attributed to low Latino voter turnout. As Dr. Engstrom explains: The confidence intervals reported ... are narrower for the estimates of the non -Latino voter behavior than that of Latinos. This is to be expected given the differences in the relative presence of Latinos and non -Latinos across the precincts in Yakima. The percentage of all of the ballots returned that were returned by Latino voters in Yakima ranged from 2.9 [percent] to 1.0.4 [percent] in these elections, and the highest percentage of Latinos among those returning ballots in any of the precincts has ranged from 18.6 to 41.9 across the elections. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 41 we, 43 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Engstrom Report, ECF No. 66-1, Exhibit 2, at i 29. As Plaintiffs correctly note, the Ninth Circuit has prohibited district courts from discounting statistics about a minority group's candidate preferences on the basis of low voter turnout. See Gomez, 863 F.2d at 1416 ("The district court erred by focusing on low minority voter registration and turnout as evidence that the minority group was not politically cohesive."). This makes good sense; "if low voter turnout could defeat a section 2 claim, excluded minority voters would find themselves in a vicious cycle: their exclusion from the political process would increase apathy, which in turn would undermine their ability to bring a legal challenge to the discriminatory practices, which would perpetuate low voter turnout, and so on." Blaine Cnty., 363 F.3d at 911. In view of this authority, the Court respectfully declines Defendants' invitation to reject Dr. Engstrom's analysis on the basis of the challenged confidence intervals. In sum, Plaintiffs have made a strong showing that Latino voters in Yakima have "clear political preferences that are distinct from those of the majority," Gomez, 863 F.2d at 1415, and that a significant number of them "usually vote for the same candidates," Gingles, 478 U.S. at 56. Because no rational factfinder could conclude otherwise on this record, Plaintiffs are entitled to summary judgment on the second Gingles precondition. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 42 we, 44 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 C. The non -Latino maiority votes sufficiently as a bloc to enable it to usuall defeat the Latino minority's preferred candidate. The third Gingles precondition focuses on whether the majority "votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate. Gingles, 478 U.S. at 51. This inquiry is an extension of the second Gingles precondition that essentially asks whether the majority can usually overcome the political cohesiveness of the minority group. Id. at 56; Growe, 507 U.S. at 40. The degree of majority bloc voting required to satisfy this precondition "will vary from district to district according to a number of factors." Gingles, 478 U.S. at 56. In general, however, a majority bloc vote that "normally will defeat the combined strength of minority support plus [majority] `crossover' votes rises to the level of legally significant [majority] bloc voting." Id. Like political cohesiveness of a minority group, majority bloc voting must be proven with historical data. Id. at 46. At the outset, it bears noting that no Latino candidate has ever been elected to the Yakima City Council in the history of the current at -large voting system. This is powerful evidence that the non -Latino majority will "usually" defeat the Latino minority's preferred candidate. Given that Latinos now represent roughly one-third of the City's voting age population and roughly one -quarter of its citizen voting age population, one would certainly expect this group to have had some ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 43 we, 45 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 success in electing a candidate of its choosing over the past 37 years if the political process was "equally open to minority voters." Gingles, 478 U.S. at 79. The ability of the majority to "usually" defeat the minority's preferred candidate is also borne out by the statistical evidence. Once again, the 2009 City Council races involving Ms. Rodriguez and Mr. Soria are instructive. As noted above, Ms. Rodriguez initially ran against two non -Latinos, Sharon Madson and Dave Ettl, in a top -two primary election. Ms. Rodriguez and Mr. Ettl advanced to the general election with 38.2% and 47.5% of the total votes, respectively. Of the votes cast by Latino voters, Ms. Rodriguez received an estimated 52.9%. Among the votes cast by non -Latino voters, however, Ms. Rodriguez received only an estimated 37.3%. In the ensuing general election, Ms. Rodriguez won an estimated 92.8% of the votes cast by Latino voters. Despite this overwhelming level of support, Ms. Rodriguez lost the election, having received only 47.8% of the total votes. This loss can be attributed to the fact that Ms. Rodriguez received only an estimated 42.6% of "crossover" votes from non -Latino voters. Engstrom Report, ECF No. 66-1, Exhibit 2, at ¶� 17-19. Mr. Soria's campaign played out in a similar fashion. In the primary, Mr. Soria competed against three non -Latino candidates: Mitchell. Smith, Bill Lover and T.J. Davis. Mr. Lover finished first with 54.4% of the total votes, and Mr. Soria finished second with 31.8%. Mr. Soria received an estimated 59.5% of votes ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 44 we, 46 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 cast by Latino voters, but only an estimated 31.0% of the votes cast by non - Latinos. In the general election, Mr. Soria garnered an estimated 92.7% of Latino votes. Notwithstanding this strong support, Mr. Soria was defeated by the non - Latino candidate, who garnered 65% of the total votes. Like Ms. Rodriguez, Mr. Soria lost as a result of low crossover voting among non -Latino voters —in this instance, an estimated 30.5%. Engstrom Report, ECF No. 66-1, Exhibit 2, at T� 20-22. Non -Latino bloc voting was also prevalent in many of the other contests. Proposition 1 was almost universally supported by Latino voters in 2011 (98.2%), but was defeated as a result of low crossover voting by non -Latinos (38.4%). Engstrom Report, ECF No. 66-1, Exhibit 2, at T 26. Justice Steven Gonzalez was the clear favorite among Latino voters in the 2012 Supreme Court election (63.2%), but lost in Yakima due to low non -Latino crossover (36.9%). Id. at 11 27-28. Graciela Villanueva had strong support among Latino voters in the 2013 School Board election (70.1%), but was defeated by a non -Latino opponent, who had dropped out of the race prior to the election, because of low crossover by non - Latinos (35.2%). Alford Supplemental Report, ECF No. 66-2, Exhibit 11, at 2. Even the remaining three City Council elections appear to have been influenced by low crossover voting. In a three -person primary in 2011, Rogelio Montes received 53.5% of Latino votes, but garnered only 13.4% of non -Latino ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 45 we, 47 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 votes. Engstrom Report, ECF No. 66-1, Exhibit 2, at �24-25 Isidro "Sid" Reynaga, who won 67.4% of Latino votes in a three -person primary in 2013, received only 15.3% of the votes cast by non -Latinos. Engstrom Supplemental Report, ECF No. 66-2, Exhibit 10, at ' 5. Neither candidate made it out of his respective primary. Enrique Jevons, the lone Latino candidate who did not receive a majority of Latino votes in the contests analyzed (39.2%), received only 11.4% of non -Latino votes in his 2013 primary.6 He too was defeated. Finally, it is important to note that the reliability of the crossover data above is not disputed. Unlike some of the confidence intervals associated with the Latino voting preference data, the confidence intervals pertaining to the non -Latino voting patterns are consistently narrow (presumably because the estimates of crossover voting percentage are based upon a much larger sample size). As Dr. Alford testified during his deposition, the only dispute relative to the crossover data is how it should be interpretedi. e., whether the undisputed percentages of crossover votes are indicative of majority bloc voting. Alford Dep., ECF No. 66-1, Exhibit 3, at Tr. 145-47. Contrary to Defendants' assertions, the fact that Dr. Alford and 6 The candidate favored by Latino voters in this race, Carol Folsom -Hill (49.7%), also received poor crossover support from non -Latinos (34.2%). Engstrom Supplemental Report, ECF No. 66-2, Exhibit 10, at' 6. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 46 we, 48 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Dr. Engstrom have reached differing conclusions on that issue of law does not preclude summary judgment. Against this great weight of undisputed evidence, Defendants argue that Plaintiffs cannot satisfy the majority bloc voting precondition because "low voter turnout among Latinos," rather than low crossover voting among non -Latinos, was the true cause of the Latino candidates' defeats. ECF No. 77 at 20. Defendants concede that the Ninth Circuit's decisions in Gomez and Blaine County foreclose low voter turnout arguments in the context of the political cohesiveness inquiry (Gingles 2), but argue that low voter turnout can still be relevant when analyzing whether the majority votes as a bloc (Gingles 3). ECF No. 77 at 20, n.10. This argument is unavailing because the second and third Gingles inquiries are two sides of the same coin; both must be examined in tandem to determine whether the minority group's votes have been unlawfully diluted. As the Supreme Court explained in Growe, "the `minority political cohesion' and `majority bloc voting' showings [work together] to establish that the challenged districting thwarts a distinctive minority vote by submerging it in a larger [majority] voting population." 507 U.S. at 40 (citation omitted). Accordingly, the Ninth Circuit's prohibition on weighing the impact of low voter turnout applies equally to both inquiries, as allowing low voter turnout to be considered at the third step would ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 47 i is t' Document t: Filed is 4 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 produce the same untenable result as allowing it to be considered at the second. Gomez, 863 F.2d at 1416 & n.4; Blaine Cnty., 363 F.3d at 911. In the final analysis, there is only one rational conclusion to be drawn from the undisputed evidence recounted above: that the non -Latino majority in Yakima routinely suffocates the voting preferences of the Latino minority. In reaching this conclusion, the Court does not mean to suggest that non -Latinos are deliberately conspiring to outvote their Latino colleagues, or that the City has engaged in any wrongdoing. To reiterate, intent is not a relevant consideration in a § 2 case; all that matters is that the challenged election system has "the effect of denying [the minority] [an] equal opportunity to elect its candidate of choice." Voinovich, 507 U.S. at 155 (emphasis in original). Nonetheless, Plaintiffs have made a compelling showing that the non -Latino majority "votes sufficiently as a bloc to enable it ... usually to defeat the [Latino] minority's preferred candidate," Gingles, 478 U.S. at 51, and no rational finder of fact could conclude otherwise. Plaintiffs are therefore entitled to summary judgment on the third Gingles precondition. IV. The Totality of the Circumstances (as Framed by the Senate Factors) Demonstrates that the City's Electoral Process is not Equally Open to Participation by Latino Voters The Gingles framework is merely a screening tool designed "to help courts determine which claims could meet the totality -of -the -circumstances standard for a ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 48 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 50 1 § 2 violation." Bartlett, 556 U.S. at 21. Consequently, satisfying the three Gingles 2 preconditions does not result in a finding of liability. Id. To establish liability, the 3 plaintiff must ultimately show that, under the "totality of [the] circumstances," 4 members of a minority group have less opportunity than the majority to participate 5 in the political process and to elect representatives of their choosing. 42 U.S.C. 6 § 1973(b). Nonetheless, "it will be only the very unusual case in which the 7 plaintiffs can establish the existence of the three Gingles factors but still have 8 failed to establish a violation of § 2 under the totality of circumstances." Jenkins v. 9 Red Clay Consol. Sch. Dist. Bd. ofEduc., 4 F.3d 1103, 1135 (3d Cir. 1993). 10 In analyzing whether the totality of the circumstances test has been satisfied, 11 courts look to the non -exhaustive "Senate Factors" identified in Gingles. These 12 factors include (1) prior history of voting -related discrimination; (2) the degree of 13 racially polarized voting; (3) the presence of voting practices or procedures that 14 tend to subjugate the minority group's voting preferences, such as unusually large 15 voting districts, majority vote requirements, and preclusion of so-called "single- 16 shot" or "bullet" voting strategies; (4) the exclusion of minority group members 17 from the candidate slating process; (5) the extent to which the minority group bears 18 the effects of past discrimination in areas that tend to hinder its members' ability to 19 participate effectively in the political process; (6) the use of subtle or overt racial 20 appeals in political campaigns; and (7) the extent to which members of the ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 49 we, 51 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 minority group have succeeded in being elected to public office. Gingles, 478 U.S. at 44-45. In an appropriate case, a court may also consider (8) the extent to which elected officials have been responsive to the particularized needs of the minority group; and (9) the policy underlying the challenged voting practice or procedures. The above factors "are neither comprehensive nor exclusive," and there is "no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Id. (citation omitted). The touchstone of the inquiry is simply whether, under the totality of the circumstances, the challenged electoral process "is equally open to minority voters." Id. at 79 (citation omitted). This necessarily requires a "searching practical evaluation of the past and present reality" within the jurisdiction. Id. Further, a reviewing court must always make an "intensely local appraisal of the design and impact of the contested electoral mechanisms." Id. (emphasis added) (citation omitted). Before analyzing the Senate Factors, it will be helpful to revisit the process by which City Council members are elected. As noted above, the City of Yakima Charter provides for elections specific to each of the seven City Council seats. This is known as a "numbered post" system because candidates run for a specific seat (post), and voting is conducted on a seat -by -seat basis. Eligibility to vote in primary elections depends upon whether the vacant seat is residency restricted. If ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 50 we, 52 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the seat is residency restricted, only voters residing in the district assigned to that seat may cast a vote. If the seat is not residency restricted, by contrast, voting is open to all registered voters. The candidates with the top two vote totals advance to the general election. General elections are a contest between two candidates for each open seat. Unlike in primary elections, eligibility to vote does not depend upon whether the open seat is residency restricted; at the general election stage, all registered voters cast a ballot for each seat. By way of example, if Positions 1, 3 and 7 are up for election, registered voters (regardless of where they live) cast one vote for one of the two candidates running for each of the three positions. Under this system, the candidate who earns a majority of the votes cast in his or her head -to -head race will win the seat. Against this backdrop, the Court will proceed to the totality of the circumstances analysis under the non-exclusive Senate Factors. At the outset, the Court rejects Defendants' protestations that the record is not sufficiently developed to resolve the issue of liability on summary judgment. See, e.g., ECF No. 77 at 22 (asserting that would be "premature" for the Court to weigh the Senate Factors on summary judgment and that granting the motion would "prevent[] Defendants from presenting the full body of evidence in support of their case"). While it is true that the Court must make a "searching practical evaluation" of the political realities and perform an "intensely local appraisal" of ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 51 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 53 1 the challenged voting system, Gingles, 478 U.S. at 79, the fact -specific nature of 2 those inquiries does not relieve Defendants of their obligation to come forward 3 with "specific facts showing that there is a genuine issue for trial," Celotex Corp. v. 4 Catrett, 477 U.S. 317, 324 (1986) (quotation omitted). Defendants cannot avoid 5 summary judgment by vaguely asserting that they have additional unspecified 6 evidence to present at trial. The Court expressly finds that the record is sufficiently 7 developed and not materially disputed to warrant a ruling on summary judgment. 8 A. History of Voting -Related Discrimination 9 The first Senate Factor focuses on "the extent of any history of official 10 discrimination in the state or political subdivision that touched the right of the 11 members of the minority group to register, to vote, or otherwise to participate in 12 the democratic process." Gingles, 478 U.S. at 36-37. Plaintiffs have proffered two 13 instances of past discrimination against Latinos which they believe are relevant to 14 the totality of the circumstances analysis. First, they note that the Yakima County 15 Auditor persisted in administering literacy tests to Latino voters for several years 16 after the passage of the Voting Rights Act of 1965, despite having been directed by 17 the Washington Attorney General to discontinue the practice. ECF No. 64 at 33- 18 34. Second, Plaintiffs note that Yakima County was sued by the U.S. Department 19 of Justice in 2004 for failing to provide Spanish -language voting materials and 20 ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 52 we, 54 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 voter assistance as required by Section 203 of the Voting Rights Act. ECF No. 64 at 34-35. The Court finds the first example only marginally relevant because it arose many years ago in the context of newly -enacted legislation limiting (and later prohibiting) the use of literacy tests by federal and state election authorities. See ECF No. 66-2, Exhibit 16; Oregon v. Mitchell, 400 U.S. 112 (1970). The second example is more probative. As recently as ten years ago, Yakima County was sued by the federal government for failing to provide Spanish -language voting materials and voter assistance to Spanish-speaking voters. These proceedings terminated in the entry of a consent decree. ECF No. 66-2, Exhibit 18. Although Yakima County did not admit liability, it did agree to take several steps to ensure its future compliance with Section 203, including the implementation of a `Bilingual Election Program" managed by a full-time "Program Coordinator." ECF No. 66-2, Exhibit 18, at 12-14. The Court finds that this factor weighs slightly in Plaintiffs' favor. B. Extent of Racially Polarized Voting The second Senate Factor is "the extent to which voting in the elections of the state or political subdivision is racially polarized." Gingles, 478 U.S. at 37. The concept of "racially polarized voting" encompasses the second and third Gingles preconditions —whether the minority group votes cohesively and whether ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 53 we, 55 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the majority votes sufficiently as a bloc to usually defeat the minority's preferred candidate. Gingles, 478 U.S. at 56; Ruiz, 160 F.3d at 543. This factor, along with the seventh factor (extent of minority electoral success) are "the most important Senate factors" when the challenged electoral process allows all voters within the jurisdiction to cast a vote for any candidate running for any open position. Blaine Cnty., 363 F.3d at 903 (citing Gingles, 478 U.S. at 51 n.15); see also McMillan v. Escambia Cnty., 748 F.2d 1037, 1043 (5th Cir. 1984) ("Although no factor is indispensable, the legislative history of the amendment to section 2 indicates that racially polarized voting will ordinarily be the keystone of a dilution case.") For the reasons discussed above in conjunction with the second and third Gingles preconditions, there can be no serious dispute that voting in Yakima is racially polarized. In nine out of the ten contests analyzed, the Latino candidate received more than 50% of the votes cast by Latino voters. In the dispositive (i.e., non -primary) elections, support ranged from 63.2% (Supreme Court Position 8) to 98.2% (Proposition 1). The two Latino City Council candidates who made it out of their primary elections received a remarkable 92.7% and 92.8% of the votes cast by Latinos in the general election. Despite having received such strong support from Latino voters, the Latino candidate was defeated in every single race as a result of bloc voting by the non - Latino majority. In the dispositive elections, support for the Latino candidate (or ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 54 we, 56 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Latino -preferred issue) among non -Latino voters ranged from 30.5% (2009 City Council Position 7) to 42.6% (2009 City Council Position 5).' These low levels of "crossover" support are highly indicative of majority bloc voting in this particular context; they demonstrate that, when presented with a choice between a Latino candidate and a non -Latino candidate, approximately 60% to 70% of non -Latino voters will vote for the non -Latino candidate. As the evidence reflects, this degree of majority bloc voting routinely results in the Latino candidate being defeated — even when he or she has the overwhelming support of Latino voters. This factor weighs strongly in favor of a finding of vote dilution. C. Presence of Suspect Voting Practices or Procedures The third Senate Factor looks to "the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti -single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group." Gingles, 478 U.S. at 37. Plaintiffs contend that four features of the City's electoral system render the Latino minority's votes particularly susceptible to dilution: (1) the use Support of the Latino -preferred candidate in the City Council primaries was even lower, ranging from 13.4% (2011 City Council Position 2) to 37.3% (2009 City Council Position 5). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 55 we, 57 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 of numbered posts; (2) an effective majority vote requirement; (3) the staggering of terms; and (4) the residency restrictions attached to four of the seven positions. ECF No. 64 at 35-38. The Court agrees that two of these features —the numbered post system and the effective majority vote requirement —cause substantial dilution of the Latino minority's votes.8 As many courts have recognized, a numbered post system "enhances [the minority group's] lack of access because it prevents a cohesive political group from concentrating on a single candidate." Rogers v. Lodge, 458 U.S. 613, 627 (1982). The dilutive effect of a numbered post system is best illustrated by way of a comparison to a "pure" at -large system. In a pure at -large system, all candidates compete against each other in a single contest for a set number of open seats. Voters are allowed a number of votes corresponding to the number of open seats (n), but may only cast one vote for any given candidate. At the end of the race, the candidates with the n highest vote totals fill the open seats. 8 The Court finds that staggering of terms does not further enhance minority vote dilution in a numbered post system with an effective majority vote requirement. Further, the Court concludes that the incremental dilutive effect of the residency restrictions attached to Positions 1, 2, 3 and 4 is minimal. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 56 we, 58 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Minority voters can increase their voting strength in a pure at -large system. by voting cohesively for one specific candidate. If the majority distributes its votes sufficiently across the entire field of candidates, the minority's preferred candidate will have a good chance of finishing among the top vote -getters. In essence, the objective of this strategy is to help the minority candidate beat out enough of his or her competitors to finish "in the money." Minority voters can further maximize their voting strength in a pure at -large system by withholding their remaining votes (the so-called "single -shot" strategy). This reduces the total number of votes cast in the election, thereby increasing the relative weight of the votes amassed by the minority's chosen candidate. In a numbered post system, by contrast, seats are elected separately. Candidates run in separate races and compete only against other candidates who are running for the same seat. Voters may cast only one vote in each seat -specific race. In order to win a seat, a candidate must win his or her race outright (either by a plurality or majority of votes, depending upon the jurisdiction). This system blunts the effectiveness of voting cohesively for one candidate. First, it forces the minority's chosen candidate to compete against fewer candidates than if the election were purely at -large. This results in the majority's votes being distributed among fewer total candidates, which has the effect of making it more difficult for the minority candidate to separate himself or herself from the pack. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 57 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 59 1 Second, this system neutralizes the single -shot voting strategy. Because seats are 2 elected separately, declining to cast a vote in the races for the other seats does not 3 increase the relative strength of the vote cast for the minority candidate in his or 4 her seat -specific race. Finally, the minority candidate must win his or her race 5 outright. When the degree of majority bloc voting is high and the number of 6 candidates competing is low, winning the race outright can prove very difficult. 7 The dilutive effect of the City's numbered post system is further intensified 8 by the fact that only two candidates are allowed to compete for each seat in the 9 general election. As noted above, the number of candidates competing in a seat- 10 specific race directly impacts the effectiveness of a cohesive voting strategy; the 11 fewer the number of candidates, the more difficult it becomes for the minority's 12 chosen candidate to win the race outright. The odds are particularly long when the 13 race is between only two candidates, since the minority candidate must effectively 14 win a majority of the total votes. 15 Here, it is undisputed that Latinos account for approximately one -quarter of 16 the City of Yakima's total citizen voting -age population. Under a best -case 17 scenario —which assumes that all eligible Latinos are registered to vote, that they 18 all turn out to vote in the election, and that they all vote for the same candidate —a 19 Latino -preferred candidate would need at least one-third (33.3%) of the non- 20 ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 58 we, 60 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Latino majority's votes to win a City Council seat.9 The reality, of course, is that not all eligible Latinos are registered to vote, that not all Latinos who are registered actually turn out to vote, and that not all participating Latinos vote the same candidate. As previously discussed, in the two general elections which featured a Latino candidate running against a non -Latino candidate, 92% of Latinos voted for the Latino candidate. Using this level of cohesion as a benchmark, the Latino - preferred candidate would need at least 36% of the non -Latino majority's votes to win.10 If one were to further accept Defendants' assertion that registered Latino voters turn out for elections at a rate of less than 40%, see ECF No. 77 at 20, the minimum percentage of non -Latino majority votes required to win an election seat 9 Assume a total of 10,000 voters, 2,500 of whom are Latino and 7,500 of whom are non -Latino. The Latino candidate would receive all 2,500 Latino votes and would need another 2,501 non -Latino votes to reach a simple majority of 5,001 votes. This represents 33.3% of the non -Latino votes (2,501 _ 7,500 = 0.333). 10 The Latino candidate would receive 2,300 Latino votes (2,500 X 0.92 = 2,300), and would need another 2,701 non -Latino votes to reach a simple majority of 5,001 votes. This represents 36% of the non -Latino votes (2,701 _ 7,500 = 0.360). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 59 we, m 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 jumps to 42% (based upon a conservative estimate of 70% non -Latino voter turnOut). I I In performing these calculations, the Court does not mean to suggest that City Council elections can be reduced to a mere numbers game. After all, statistics cannot possibly account for the many human variables that influence a political election —least of all the qualifications and experience of the individual candidates. Instead, the purpose of this exercise is simply to illustrate how Latino voters are inherently disadvantaged by the framework of the current system. The bottom line is that, under the current system, it is mathematically impossible for Latino voters to elect a candidate of their choosing to the City Council unless (1) all Latino voters vote for the same candidate; and (2) a minimum of one-third of the non - Latino majority also votes for that candidate. When considered in conjunction with the degree of racial bloc voting noted above, this is a prime example of an 11 Accounting for turnout rates, there are 6,250 voters, 1,000 of whom are Latino (40% turnout) and 5,250 of whom are non -Latino (estimated 70% turnout). The Latino candidate would receive 920 Latino votes (1,000 X 0.92 = 920), and would need another 2,206 non -Latino votes to reach a simple majority of 3,126 votes. This represents 42% of the non -Latino votes (2,206 _ 5,250 = 0.420). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 60 we, 62 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 electoral system that is not "equally open to minority voters." Gingles, 478 U.S. at 1 79. This factor weighs very strongly in Plaintiffs' favor. D. Exclusion of Minorities from Candidate Slating Process The fourth Senate Factor asks "whether the members of the minority group have been denied access" to a candidate slating process. Gingles, 478 U.S. at 37. This factor is not applicable because the City of Yakima does not utilize a candidate slating process. E. Lingering Effects of Past Discrimination The fifth Senate Factor is "the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process." Gingles, 478 U.S. at 37. Plaintiffs offer the following statistics from the 2010-2012 ACS 3-Year Estimates as evidence that Latinos continue to bear the effects of discrimination in Yakima: (1) that Latinos are three times more likely to live below the poverty line than white residents; (2) that median family income for Latinos is less than half the median family income for white families; (3) that the rate of home ownership among Latinos is less than half than that among their white counterparts; (4) that 55% of Latinos lack a high. school diploma, in comparison to only 12% of the white population; (5) that 57% of Latino adults do not have health insurance, in comparison to only 18% of their ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 61 we, 63 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 white counterparts; (6) that Latinos account for only 15% of City of Yakima employees, despite the fact that Latinos represent 33% of the City's working -age population. ECF No. 64 at 39-40. Defendants do not dispute these statistics. They do, however, disagree with Plaintiffs about (1) the extent to which the socio-economic disparities between Latinos and whites can be attributed to discrimination; and (2) the extent to which these disparities adversely impact Latinos' ability to participate in the political process. ECF No. 77 at 28-30. The Court agrees with Plaintiffs that these data are probative of whether the electoral process is "equally open to participation" by Latinos. 42 U.S.C. § 1973(b). While not conclusive proof, marked disparities in socio-economic status are circumstantial evidence of discrimination. Moreover, it can hardly be disputed that depressed socio-economic conditions have at least some detrimental effect on participation in the political process. For purposes of the § 2 totality of the circumstances inquiry, a correlation between the two is sufficient. See Benavidez, 638 F. Supp. 2d at 727 ("Where disproportionate educational, employment, income level, and living conditions can be shown[,] and where the level of minority participation in politics is depressed, `plaintiffs need not prove any further causal nexus between their disparate socio-economic status and the depressed level of political participation."') (quoting Teague v. Attala ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 62 we, 64 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Cnty, 92 F.3d 283, 294 (5th Cir. 1996)). This factor weighs slightly in Plaintiffs' favor. F. Use of Subtle or Overt Racial Appeals in Campaigns The sixth Senate Factor examines "whether political campaigns have been characterized by overt or subtle racial appeals." Gingles, 478 U.S. at 37. Having reviewed the record, the Court is not persuaded that political campaigns in Yakima have been characterized by racial "appeals" to the voting base. While race was admittedly discussed in the media in connection with the 2009 City Council race between Ms. Rodriguez and Mr. Ettl, there is insufficient evidence that either candidate attempted to sway voters with race -based appeals. This factor is neutral. G. Extent of Minority Electoral Success The seventh Senate Factor looks to "the extent to which members of the minority group have been elected to public office in the jurisdiction." Gingles, 478 U.S. at 37. Here, it is undisputed that no Latino candidate has ever been elected to the City Council in the 37 years that the current voting system has been in place. Furthermore, the only Latina to have ever been appointed to the City Council, Ms. Rodriguez, was defeated by a non -Latino challenger when she subsequently ran for election. These circumstances weigh "heavily in favor of vote dilution." Fayette Cnty., 950 F. Supp. 2d at 1320 (collecting cases). ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 63 we, W 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Defendants contend that the significance of this factor is diminished by the "electoral success of Latinos in neighboring or encompassing local jurisdictions," as evidenced by (1) the election of Jesse Palacios to the Board of Yakima County Commissioners in 1998 and 2002; and (2) the election of Vickie Ybarra to the Board of Directors of the Yakima School District in 2003. ECF No. 77 at 24. The Court does not find these "exogenous" election results particularly relevant. As Plaintiffs correctly note, this Senate Factor focuses on the extent to which minority candidates have been elected to public office "in the jurisdiction." Gingles, 478 U.S. at 37. The jurisdiction at issue here is the City of Yakima. Elections that presumably draw voters from all of Yakima County or the entire Yakima School District (the borders of which Defendants have not identified) do not provide much insight into the ability of Latino voters to elect candidates of their choosing to the City Council. See Sanchez v. State of Colo., 97 F.3d 1303, 1324-25 (10th Cir. 1996) (explaining that with regard to the seventh Senate Factor, "exogenous elections —those not involving the particular office at issue —are less probative than elections involving the specific office that is the subject of the litigation") (quotation and citation omitted). Moreover, even if one were to assume a substantial overlap in voting bases, there is no evidence that these other elections follow the same format as City Council elections. As noted above, Gingles directs courts to closely scrutinize the ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 64 we, 66 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 "design and impact of the contested electoral mechanisms." 478 U.S. at 79 (emphasis added). The results of elections which do not follow the same format are not particularly relevant to establishing vote dilution within the challenged electoral mechanism. On balance, the above factors weigh firmly in Plaintiffs' favor. The existing record, undisputed in all material respects, supports only one rational conclusion: that under the totality of the circumstances, City Council elections are not "equally open to participation" by Latino voters. 42 U.S.C. § 1973(b). The numbered post system, with its effective majority vote requirement, places Latino voters at a steep mathematical disadvantage, even when their voting strength is perfectly optimized. This built-in disadvantage "interacts with social and historical conditions to cause an inequality." Gingles, 478 U.S. at 47. Because non -Latino voters consistently vote for non -Latino candidates (at a rate of 60% to 70%), the chances of a Latino - preferred candidate earning enough "crossover" votes to win a City Council seat are very slim. Indeed, no Latino candidate has ever been elected under this system. Having established that the Latino minority's votes are being unlawfully diluted, Plaintiffs are entitled to summary judgment. V. Remedy In their Complaint, Plaintiffs pray for an injunction "[e]njoining Defendants .. from administering, implementing, or conducting any future elections for the ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 65 we, m 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 City of Yakima under the current method of electing City Council members," as well as an order directing "the implementation of an election system for the Yakima City Council that complies with Section 2 of the Voting Rights Act." ECF No. 1 at 9-10, ¶¶ 2-3. Having successfully established liability, Plaintiffs are entitled to these remedies. The Court respectfully directs the parties to meet and confer and submit the following on or before October 3, 2014: (1) A joint proposed injunction; and (2) A joint proposed remedial districting plan. In the event that the parties are unable to agree on the terms of either item above, they may submit separate proposals. If necessary, the Court will contact the parties to schedule a hearing to resolve any remaining disputed issues. 1. Plaintiffs' Motion to Exclude Expert Testimony of Stephan Thernstrom (ECF No. 62) is DENIED. 2. The parties' stipulated motion to expedite (ECF No. 88) is GRANTED. Plaintiffs' Motion to Strike Second Supplemental Expert Report of Peter Morrison (ECF No. 89) is DENIED. 3. Plaintiffs' Motion for Summary Judgment (ECF No. 64) is GRANTED. 4. Defendants' Motion for Summary Judgment (ECF No. 67) is DENIED. ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 66 Case 2:12-cv-03108-TOR Document 108 Filed 08/22/14 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 5. The telephonic pretrial conference scheduled for September 11, 2014 at 9:00 a.m., as well as the bench trial scheduled to begin on September 22, 2014, are hereby VACATED. The deadlines for filing pretrial pleadings and the pretrial order are also VACATED. 6. The parties shall meet and confer and submit a joint proposed injunction and a joint proposed remedial districting plan on or before October 3, 2014. The District Court Executive is hereby directed to enter this Order and ORDER ON CROSS -MOTIONS FOR SUMMARY JUDGMENT — 67 i is t'+r -• i 69 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ROGELIO MONIES, et al., Plaintiff, u CITY OF YAKIMA, et al., Defendants. NO: 12-CV-3108-TOR FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN BEFORE THE COURT are the parties' proposed injunctive orders (ECF Nos. 113 and 1.1.7) and amicus curiae's third alternative (ECF No. 126). This matter was submitted for consideration without oral argument. The Court has reviewed the briefing, the record, and files herein, and is fully informed. This is an action to remedy a violation of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301 (previously codified at 42 U.S.C. § 1973). Plaintiffs filed suit in 2012 alleging that Yakima's existing at -large electoral system diluted Latino FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 1 i is t'+r -• i 70 voting strength and deprived Latinos of their right to elect representatives of their choosing for Yakima city council. On August 22, 2014, the Court granted Plaintiffs' Motion for Summary Judgment, concluding that there was no genuine issue of material fact, that the Latino minority's votes were being unlawfully diluted under the at -large voting system, and that Plaintiffs were entitled to judgment as a matter of law. ECF No. 108. The Court directed the parties to meet, confer, and submit a joint proposed injunction and remedial districting plan. However, the parties were unable to reach an agreement on a joint proposal and have submitted competing remedial districting plans. The Court also accepted an amicus curiae brief from FairVote, a non-profit organization that proposes a third alternative plan.' ECF No. 126. The Court summarizes the existing electoral system and these proposed plans. A. Yakima Demographics According to the 2010 Census, the City of Yakima ("City") had a population of 91,067. ECF No. 90 at i 15. The Latino population was 37,587, or 41.27% of the total population. ECF No. 65 at 13. The non -Latino white population was 1 FairVote explains that its mission "is to inform and advocate for fairer political. representation through reforms that include election methods other than winner - take -all systems." ECF No. 126 at 2 n.1. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 2 i is t'+r -• i m 47,523, or 52.18% of the total population. Id. Using the 2008 2012 ACS 5-Year Estimates, Plaintiffs have calculated the Latino citizen voting -age population (CVAP) to be 22.66% of the total CVAP in Yakima and rising. ECF Nos. 65 at ¶ 23; 118-1 at 3, 12-13. Defendants' expert has calculated the Latino CVAP to be 22.97%. ECF No. 114 at 4-5. Defendants' expert and Plaintiffs' expert do not agree on the exact manner by which to calculate the Latino CVAP. Id. at 2 n.1. The slight difference between their calculations, however, is not material to the Court's ultimate resolution of this case. B. The Existing Electoral System in Yakima The City currently utilizes an at -large election system to fill the seven seats on the Yakima City Council. Four of these seats, designated Positions 1, 2, 3 and 4, are geographically -defined and have residency restrictions attached. Candidates running for one of these seats must reside in a geographic district corresponding to their seat number. Such districts are generally called "single -member districts." The remaining three seats, designated Positions 5, 6 and 7, have no residency restrictions. Candidates running for one of these seats may reside anywhere within the City. All seats are allotted a four-year term. Terms for all seven seats are staggered, with elections to fill expiring terms held every two years. Elections follow a "numbered post" format, meaning that candidates file for a particular seat and compete only against other candidates who are running for the FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 3 Case 2:12-cv-03108-TOR Document 143 Filed 02/17/15 72 same seat. In the event that more than two candidates file for a particular seat, the City conducts a primary election to narrow the field to the top two candidates. If the seat is one of the four single -member district seats, only voters who reside in the district corresponding to that seat may vote in the primary. If the seat is an unrestricted at -large seat, all voters residing within the City may cast a vote. The two candidates with the highest vote totals in the primary will then advance to a general election. The general election is essentially a collection of individual at -large races (three or four, depending upon which terms are expiring in a given election year). The two candidates running for each seat compete head -to -head, with the candidate amassing the most votes winning the seat. All registered voters in the City may cast one vote in each head -to -head race, regardless of whether the seat at issue is residency -restricted. In order to win election under this system, a candidate must garner a simple majority of the votes cast in his or her head -to -head race. As the Court held, this system unlawfully dilutes the votes of Latinos. ECF No. 108. This system, which essentially converts each of the seven city council seats to a city-wide majority -takes -all election, has the effect of denying Latinos the equal opportunity to participate in the political process and to elect candidates of their choice. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 4 i is t'+r -• i 73 C. Defendants' Proposed Plan Defendants, the City of Yakima, Mayor Micah Cawley, and the other six members of the Yakima City Council, have proposed a remedial electoral system that would include five single -member district positions and two at -large positions. ECF No. 113. Like the existing system, the five single -member district seats would follow a numbered -post format whereby a candidate files for a particular seat. A candidate could only seek election in the district within which he or she resides. If more than two candidates file for any given single -member district seat, the City would hold a primary and the top two candidates would advance to the general election. Unlike the current system, only voters living within the geographic district would be allowed to vote for a particular single -member district candidate in the general election —the same voting restrictions imposed at the primary. The candidate who receives a simple majority in the general election would be elected to the council. Under Defendants' proposal, the two at -large positions would be filled in a single election by way of "limited voting."2 There would be no primary for the at For a discussion of limited voting, see generally Richard L. Engstrom, Cumulative and Limited Voting: Minority Electoral Opportunities and More, 30 ST. Louis U. PUB. L. REV. 97 (2010); Todd Donovan & Heather Smith, FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 5 i is t'+r -• i 74 large seats. Instead, each candidate who filed for office would appear on a single ballot at the general election. Id. at 3. Each voter in the City would cast a single vote for any of the candidates listed. The two candidates who receive the most votes would be elected to the two at -large positions.3 Under this proposal, all council members would be elected to staggered, four-year terms, and all council members currently serving would be allowed to serve out the remainder of their terms. In 2015, four of the five single -member district seats would stand for election. In 2017, the fifth single -member district seat and the two at -large seats would stand for election. The City would continue to employ a Council -Manager form of city government. Proportional Representation in Local Elections: A Review, WASH. STATE INST. FOR PUB. POLICY (Dec. 1994). 3 Defendants have abandoned an earlier proposed aspect of their plan to name the candidate who receives the most votes in the at -large election as Mayor and the candidate with the second -most votes as Assistant Mayor. ECF No. 136 at 1. Under the current proposal, the Mayor would be elected from among the council members at the first council meeting in accordance with the Yakima City Charter. ECF No. 119. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 6 i is t'+r -• i ER Under Defendants' proposed plan, the City would be geographically divided into five districts of roughly equal population. Id. at 5. One of those districts, District 1, would be a majority Latino district, which Defendant's term an "opportunity district." The District 1 seat would stand for election in 2015. The Defendants' plan also includes what they term an "influence district," District 5, which would have a "substantial" Latino CVAP. Id. at 9-10. Defendants propose that District 5's council member would not stand for election until 2017. The relevant demographics of the districts in Defendants' plan are as follows: District Total Pop. Total CVAP Latino CVAP Latino share of CVAP 1 18,363 7,305 3,905 53.46% 2 18,579 13,074 11581 12.09% 3 17,917 12,981 11377 10.61 % 4 18,422 12,583 21559 20.34% 5 17,786 91061 3,212 35.45% ECF No. 1.14 at 4. D. FairVote's Proposed Plan FairVote has submitted a proposal to the Court that is a variation of the Defendants' proposed plan. ECF No. 126. Under FairVote's proposal, Yakima FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 7 i is t'+r -• i 76 would be divided into four single -member districts and would elect three at -large seats in a single limited voting election. Like Defendants' plan, FairVote proposes a plan they contend would include one majority Latino geographic district. Under FairVote's plan, the single vote, limited voting method would be used to elect three council members in an at -large election, with no primary, and the first, second, and third place finishers would all be elected to the city council. FairVote argues that this method "better promotes meaningful participation by all voters, fair representation in a diverse community, and self-correcting flexibility as the composition of electorates change." Id. at 5. FairVote advocates for three at -large council seats, instead of two as Defendants have suggested, because the percentage of votes needed to elect a minority candidate to one of the available seats would decrease, thereby increasing the likelihood of a minority candidate's success. The percentage of votes that a minority candidate must have in order to be guaranteed to win one of the open seats is known as the "threshold of exclusion." Mathematically, the threshold of exclusion is calculated as one divided by the sum of the number of seats available plus one, plus one vote: Threshold of Exclusion = + 1 vote (seats + 1) FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 8 i is t'+r -• i m In an election with two at -large seats available, as Defendants have suggested, the threshold of exclusion is 33.3% plus one vote. FairVote observes that under Defendants' plan, the threshold of exclusion is too high for a Latino - preferred candidate to win either one of the seats. Id. at 7. With only 19.9 % of the registered voters, as FairVote estimates, the Latino vote cannot meet the 33.3% plus one vote, threshold of exclusion needed in order to win an at -large seat on the council. Id. at 11. In an election with three at -large seats available, as FairVote advocates, the threshold of exclusion drops to 25% plus one vote. Id. FairVote contends that Defendants' plan should be modified to include three at -large, non -staggered seats so that "a Latino -preferred candidate could be reliably elected to at least one of those three at -large seats." Id. at 12. FairVote suggests that if voters unequally split their votes between the majority -preferred candidates and there are cross -over votes (non -Latino voters casting their votes for Latino -preferred candidates), a minority preferred candidate can be elected. See id. at 8, I 1-12. FairVote did not provide a proposed district map for the four single -member districts it proposes. In their reply briefing, Defendants have provided the Court with a proposed four -district map in order to implement FairVote's plan. ECF No. 138-2. That map includes one district with a significant Latino CVAP population (49.26%), but not a majority. Id. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 9 i is t'+r -• i 7s E. Plaintiffs' Proposed Plan Plaintiffs have proposed the plan they introduced in their Motion for Summary Judgment. ECF No. 117. Plaintiffs' plan would follow a numbered post format. The plan would create seven single -member districts and no at -large seats. Like Defendants' proposed single -member districts, a candidate could only seek election in the district within which he or she resides. If more than two candidates file for any given single -member district seat, the City would hold a primary and the top two candidates would advance to the general election. Also like Defendants' plan, and unlike the current system, only voters living within the geographic district would be allowed to vote for a particular single -member district candidate in the general election. The candidate who receives a simple majority in the general election would be elected to the council. Under Plaintiffs' plan, council members would have four-year, staggered terms. However, unlike Defendants' plan, Plaintiffs have proposed that all seven seats stand for election in 2015. The staggered system would be preserved by having even -numbered seats stand for election again in 2017 for full four-year terms; odd -numbered seats would stand for election again in 2019. The relevant demographics of Plaintiffs' proposed plan are as follows: H H FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 1.0 i is t'+r -• i 79 District Total Pop. Total CVAP Latino CVAP Latino share of CVAP 1 12,533 4,998 2,625 52.52% 2 13,358 5,527 2,506 45.34% 3 12,859 8,653 2,181 25.21 % 4 13,175 7,676 2,075 27.03% 5 12,683 8,702 1,071 1.2.31 % 6 13,176 91625 685 7.12% 7 13,283 91823 11491 15.81 % ECF No. 114 at 5.4 4 These numbers are taken from Defendants' calculations of the demographics of Plaintiffs' proposed districts. Plaintiffs' calculations indicate the districts contain CVAP percentages of 54.51% (Dist. 1), 46.31% (Dist. 2), 24.80% (Dist. 3), 26.69% (Dist. 4), 12.21 % (Dist. 5), 7.11 % (Dist. 6), and 15.14% (Dist. 7). ECF No. 118-1 at 3. The Court uses Defendants' numbers in evaluating all the proposed plans to provide numerical consistency. The slight difference between the parties' calculations is not material to the Court's resolution of this case. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — l I. i is t'+r -• i ME DISCUSSION I. Whether the Court owes deference to Defendants' proposed plan The Supreme Court has often "recognized that `reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so."' White v. Weiser, 412 U.S. 783, 794-95 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)); accord Garza v. Cnty. of L.A., 918 F.2d 763, 776 (9th Cir. 1990). "[I]n choosing among plans, a district court should not pre-empt the legislative task nor `intrude upon state policy any more than necessary."' Weiser, 412 U.S. at 795 (quoting Whitcomb v. Chavis, 403 U.S. 124, 160 (1971)). Thus, when choosing between two possible plans, "[t]he only limits on judicial deference to state apportionment policy ... [are] the substantive constitutional and statutory standards to which such state plans are subject." Upham v. Seamon, 456 U.S. 37, 42 (1982) (per curiam) (discussing Weiser). A district court must therefore defer to a lawful legislative plan that fully remedies a violation of Section 2 of the Voting Rights Act. On the other hand, any legislative plan which would fail to survive a challenge under the standards applicable to Section 2 does not remedy the violation and deserves no such deference. Id. at 40- 41 (affirming that "a court must defer to the legislative judgments the plans reflect" FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 12 i is t'+r -• i m absent "any finding of a constitutional or statutory violation with respect to those districts"). Therefore, the Court must first evaluate Defendants' plan to determine (1) whether it is a lawful legislative plan, and (2) whether it fully remedies the Section 2 violation —that is, whether Defendants' proposed plan would survive a Section 2 challenge in its own right. If the Court concludes that the plan is both a lawful legislative act and that it remedies the violation, the Court must accept the plan. However, if the Court concludes either that Defendants' proposed plan is not a lawful legislative act or that it does not fully remedy the violation, the Court may not afford the plan any deference. See id. at 39 ("Although a court must defer to legislative judgments on reapportionment as much as possible, it is forbidden to do so when the legislative plan would not meet the special standards of population equality and racial fairness that are applicable to court -ordered plans."); Garza, 918 F.2d at 776 (concluding that the district court was not required to defer to a plan because "the proposal was not an act of legislation; rather, it was a suggestion by some members of the Board") A. Conflict with Washington State law Plaintiffs contend that Defendants' plan deserves no deference because the proposed limited voting election scheme is unlawful under Washington State law. Defendants' counter that Washington State law does not "expressly forbid" their FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 13 i is t'+r -• i 82 proposed plan, and "in any event, a state statute may `give way' to remedy a Section 2 violation." ECF No. 136 at 2. District courts are not required to defer to a plan that is not a lawful act of legislation. See Wise v. Lipscomb, 437 U.S. 535, 545 (1978) (White, J.); Garza, 918 F.2d at 776. Where a proposed plan runs contrary to controlling state law, that "plan [is] not the equivalent of a legislative Act of reapportionment performed in accordance with the political processes of the community in question." Wise, 437 U.S. at 545. The Supreme Court was split over this issue in Wise. Justice White wrote an opinion stating that a district court need not defer to the plan proposed by the city of Dallas because Dallas did not have authority under state law to reapportion itself. Id. at 544-45 (discussing E. Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976)). Justice Powell wrote a concurring opinion stating that district courts must defer to "local legislative judgments ... even if ... [the Court's] examination of state law suggests that the local body lacks authority to reapportion itself." Id. at 547. The Court finds persuasive the Tenth Circuit's evaluation of these competing contentions in Large v. Fremont County, 670 F.3d 1133 (IOth Cir. 2012). Specifically, "federal courts owe their deference first and foremost to legislators of sovereign States, and only through them to local governmental FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 14 i is t'+r -• i 83 entities." Id. at 1.1.42. As such, the Court owes its deference to the policy choices made by Washington State in defining electoral systems allowable at the local level. If the plan proposed by Defendants conflicts with the policy choices of the Washington State legislature, it is owed no deference. s Defendants are correct that state law must sometimes yield to afford an effective remedy under the Voting Rights Act. The Supremacy Clause requires that state law be abrogated where doing so is necessary to remedy a violation of the 5 Moreover, Justice Powell's concurring opinion noted a difference between lawful procedure and lawful effect, stating that where "the specific plans proposed ... would have unlawful effect" legislative judgment is tainted and "the normal presumption of legitimacy afforded the balances in legislative plans ... could not be indulged." 437 U.S. at 549. As such, Justice Powell was asserting that legislation with lawful effect must be afforded deference regardless of the propriety of the process of implementation because of the inherent power of elected bodies to legislate when the need arises. However, where the result of legislation has an unlawful effect, no deference is due. The case sub judice falls within the latter category. Defendants' plan is owed no deference under either standard articulated in Wise because, as the Court explains infra, it has an unlawful effect. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 15 i is t'+r -• i 84 Voting Rights Act. See Arizona v. Inter Tribal Council of Ariz. Inc., 1.33 S.Ct. 2247, 2256 (2013) ("[Federal legislation] so far as it extends and conflicts with the regulations of the State, necessarily supersedes them." (quoting Ex part Siebold, 100 U.S. 3711384 (1879)); Large, 670 F.3d at 1145 ("In remedial situations under Section 2 where state laws are necessarily abrogated, the Supremacy Clause appropriately works to suspend those laws because they are an unavoidable obstacle to the vindication of the federal right." (emphasis in original)). However, where it is not necessary to abrogate state law, see Weiser, 412 U.S. at 795, the Court must respect the legislation of the State of Washington. Plaintiffs point to two statutory provisions which call into question the validity of the limited voting scheme Defendants propose. ECF No. 127 at 4-5, 6- 7. First, RCW 35.18.020(2) provides that "councilmembers may be elected on a citywide or townwide basis, or from wards or districts, or any combination of these alternatives. Candidates shall run for specific positions." Plaintiffs contend this last sentence is incompatible with a limited voting electoral format where candidates run in a general election for any of two or three at -large positions. ECF No. 127 at 4-5. In opposition, Defendants contend that (1) this is a tortured reading of the statute, (2) the at -large positions will be specific, numbered seats, and (3) "candidates will obviously intend to run for a particular seat on the City FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 16 i is t'+r -• i Eli Council, regardless of whether the candidates know in advance which of the two [or three] seats they will ultimately win." ECF No. 136 at 1-2. Second, RCW 29A.52.210 provides that city, town, and district primaries shall be nonpartisan and shall be held on the first Tuesday in August (pursuant to RCW 29A.04.311). It also provides that "[t]he purpose of this section is to establish the holding of a primary ... as a uniform procedural requirement to the holding of city, town, and district elections. These provisions supersede any and all other statutes, whether general or special in nature, having different election requirements." RCW 29A.52.210. Plaintiffs argue this section of state law is incompatible with Defendants' proposed limited voting primary because there would be no primary elections in the proposed plan; everyone who filed for office would appear on the final ballot at the general election. ECF No. 127 at 6-7. Plaintiffs contend a combined reading of these two statutes allows for "only three types of city council elections in a city -manager system such as that used in Yakima: at -large elections in which candidates run for specific seats, district - based elections in which candidates run for specific seats, or a mixture of the two;" and each would require a primary to narrow the field down to two candidates. Id. at 7. The cited statutes cast grave doubt upon the legality of Defendants' proposed plan. The Court is especially concerned with the lack of a primary in FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 17 i is t'+r -• i 86 face of the clear dictate of the Washington. State legislature that primaries be "a uniform procedural requirement to the holding of city, town, and district elections." RCW 29A.52.210. Defendants have not offered a reading of this statute that is compatible with their proposed plan. Instead, they rely on the absence of any express prohibition to "limited voting" in the relevant statutes as evidence that such a system is not disallowed under Washington State law. Further, Defendants rely on cases from other states which have allowed limited voting but ignore that those states did not have laws similar to Washington's. While Washington State law is silent about limited voting, it is not silent on requiring primaries. Defendants have not reconciled this clear requirement with their proposed plan. The Court also takes notice of a report by the Washington State Institute for Public Policy issued in 1994 upon the request of "[s]everal members of Washington's House of Representatives ... to summarize the research on the role single member districts and other electoral arrangements may play in local government in increasing both voter turnout and representation of minority groups." Todd Donovan & Heather Smith, Proportional Representation in Local Elections: A Review, WASH. STATE INST. FOR PUB. POLICY (Dec. 1994), available at http://www.wsipp.wa. og v/ReportFile/1181. This report discussed limited and cumulative voting systems and suggested their use may facilitate minority FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 18 i is t'+r -• i m representation. Irrespective of the virtues that limited voting could bring to cities like Yakima, however, the Washington State legislature has not yet implemented any form of limited or cumulative voting. "[A]ny remedy for a Voting Rights Act violation must come from within `the confines of the state's system of government."' Dillard v. Baldwin Cnty. Comm'rs, 376 F.3d 1260, 1268 (11th Cir. 2004) (quoting Nipper v. Smith, 39 F.3d 1494, 1533 (1 Ith Cir. 1994) (en banc)). Where a proposed system finds no legal footing, nor occupies "a traditional and accepted place" in the states' election law landscape, a federal court does not have the authority to "impose it on a state government, regardless of the theoretical prospect of increasing minority voting strength." Id; accord Large, 670 F.3d at 1148 ("[W]here a local governmental body's proposed remedial plan for an adjudged Section 2 violation unnecessarily conflicts with state law, it is not a legislative plan entitled to deference by the federal courts." (emphasis in original)). The Court will not impose an electoral scheme that unnecessarily conflicts with state law, especially when Defendants' proposed plan also does not provide a presently effective remedy to the Section 2 violation. B. Full and Effective Remedy Under Defendants' proposed electoral system, Yakima would have five geographic districts and two at -large positions. The Court concludes that FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 19 i is t'+r -• i as Defendants' proposal would not fully remedy the Section 2 violation. i. At -Large Positions First, the at -large system, as proposed by the Defendants, does not afford a Latino -preferred candidate a chance to obtain one of the two seats available. As FairVote succinctly pointed out, with only 19.9 % of the registered voters as FairVote estimates, or 22.97% CVAP as Defendants estimate, the Latino vote cannot meet the 33.3% plus one vote threshold of exclusion needed in order to win one of the at -large council seats. ECF No. 126 at 11. Defendants' proposed at - large plan is flawed in the same manner as the current electoral system because it dilutes the Latino vote against the majority population. Defendants tout their proposed plan as superior because they estimate the city-wide Latino CVAP will be 30.9% by 2021, giving Latinos a more powerful position in such a city-wide, at -large election. ECF Nos. 129 at 12; 131 at' 7. This is not the correct measure for evaluating a Section 2 violation. Under the totality of the circumstances, "the proper inquiry is whether changing demographics demonstrate that Hispanics presently have the ability to elect [candidates of their choice], not whether they will have this ability in the future." Ruiz v. City of'Santa Maria, 160 F.3d 543, 555 (9th Cir. 1998) (per curiam). The demographics of Yakima are changing, and time will tell if further balancing of the electoral map will be required after the 2020 census. However, future FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 20 i is t'+r -• i 89 demographics are irrelevant to the Court's present inquiry. The only relevant fact is that Defendants' proposed two -seat at -large plan does not afford the Yakima Latino population a present ability to participate in the political process. ii. Single Member Districts Second, Defendants' proposal for five geographic districts does not itself remedy the Section 2 violation. The percentage of Latino CVAP in District 1 would be 53.46%, giving Latinos a majority district where they have a chance to elect a representative of their choice. Defendants calculate the percentage of Latino CVAP in District 5 would be 35.45%, which Defendants contend makes that District an "influence district" where Latinos would constitute a "substantial" percentage of the CVAP. ECF No. 113 at 4, 10. But 35.45% is hardly enough of an influence to provide an equal opportunity to elect a Latino -preferred candidate, especially where, as the Court has found, the non -Latino majority has historically voted as a bloc against Latino candidates. ECF No. 108 at 43-48. Defendants contend that because District 1 in their proposed plan contains a higher percentage of Latinos than District 1 in Plaintiffs' proposed plan, their plan provides a better opportunity for Latinos to elect candidates of their choice. However, the packing (concentration) of a minority population into one district can minimize the influence that minorities will have in neighboring districts. See Voinovich v. Quilter, 507 U.S. 146, 154 (1993) ("[W]e have recognized that FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 21 i is t'+r -• i 90 `[d]ilution of racial minority group voting strength may be caused `either' by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority.' (quoting Thornburg v. Gingles, 478 U.S. 30, 46 n.I 1 (1986)). Under Defendants' plan, the Latino population in District 1 would be 53.46% of the CVAP. In the other districts, the Latino CVAP would be 12.09%, 10.61 %, 20.34%, and 35.54%. None of these other districts would presently give the Latino population an equal opportunity to elect a Latino -preferred candidate or to truly influence the results of any district elections. Like their attempts to strengthen the city-wide portion of their proposal, Defendants also assert that by 2020, Latinos will constitute 45.5% of the population in District 5. Again, the proper measure is the demographics as they affect Latino's opportunity to elect candidates now, not what changing demographics may yield in the future. Ruiz, 160 F.3d at 555. As such, in the system proposed by Defendants, Latinos would only have the present ability to elect a candidate in one of the five geographic districts. iii. Rough Proportionality Defendant's proposed system would also not afford Latinos a fair opportunity to obtain a number of seats roughly proportional to their population. An acceptable remedy need not maximize the electoral opportunities of a minority FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 22 i is t'+r -• i m group, Johnson v. De Grandy, 512 U.S. 997, 1017 (1994), nor does a minority population have a right to proportional representation, 52 U.S.C. § 10301(b). However, the Supreme Court has identified rough proportionality as a relevant fact, in the totality of circumstances, when determining "whether members of a minority group have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Johnson, 512 U.S. at 1000 (internal quotation marks and citation omitted). In fact, this Court would fail in its duty were it not "to ask whether the totality of facts, including those pointing to proportionality, showed that the new scheme would deny minority voters equal political opportunity." Id. 1013-14 (footnote omitted). An electoral scheme does not violate Section 2 "where, in spite of continuing discrimination and racial bloc voting, minority voters form effective voting majorities in a number of districts roughly proportional to the minority voters' respective shares in the voting -age population." Id. at 1000. Defendants assert that the Latino CVAP in Yakima is 22.97%. With seven city council positions, Latinos should, mathematically, hold 1.6 seats to be proportional to their share of the CVAP. As such, the Court finds that, in the totality of the circumstances, a factor to consider is whether a proposed plan provides equal electoral opportunity for the Latino population to attain one of the seven city council seats along with a genuine possibility to obtain a second seat. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 23 i is t'+r -• i 92 As the Court has explained, Defendants' proposal only gives the Latino population an opportunity to attain one of the seven seats. Latinos are excluded from an equal opportunity in the two city-wide, at -large seats. These two seats effectively preserve the status quo that the Court has concluded violates Section 2 as it continues to allow non -Latino candidates to dominate those elections on a city-wide majority -takes -all basis. While Latinos would achieve a single majority geographic district, they would be excluded from having a present ability to influence any other district seat. There is no genuine possibility that Latino voters could elect a second candidate of their choosing. Rough proportionality is a significant indicator of whether an electoral plan provides an adequate remedy to a Section 2 violation, and Defendants' plan does not provide a present opportunity for Latinos to obtain roughly proportional representation. Significantly, Defendants do not contend that their plan provides proportionality. Instead, Defendants state that "to the extent this Court is concerned with adopting a plan that contains a number of immediate election opportunities commensurate with the population of eligible Latino voters in the City, FairVote's proposal provides immediate proportionality ...." ECF No. 129 at 22. Thus, Defendants assert, the Court should adopt FairVote's plan because it "immediately offers two positions in which Latinos have a meaningful opportunity to elect their candidate of choice." Id.; see also ECF No. 136 at 7 ("If this Court is FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 24 i is t'+r -• i 93 concerned with providing immediate proportionality, then this Court should adopt the proposal set forth in FairVote's amicus curiae brief and the map attached to this reply [ECF No. 138-2].") iv. FairVote's Alternative FairVote's plan, while providing Latinos a slightly better chance at equal representation in the at -large seats, suffers even more problems than Defendants' plan. First, its use of limited voting is prohibited by the same legal impediment as Defendants' plan. Second, while FairVote would employ three city-wide at -large seats, dropping the threshold of exclusion to 25%, that number is still too high for a Latino -preferred candidate to win any one of the seats. With only 19.9% of the registered voters, as FairVote estimates, the Latino vote cannot meet the 25% plus one vote threshold of exclusion needed in order to win a seat on the council.h Third, FairVote's proposal of four single -member districts only includes one district that contains a significant Latino CVAP population (49.26%). This is not a majority and, while it may be significantly influential, it does not presently assure Latinos an equal opportunity to elect a candidate of their choice. See Bartlett v. Strickland, 556 U.S. 1, 13 (2009) ("Placing [minority] voters in a district in which 6 The same holds true even if the Court applies the 22.97% Latino CVAP Defendants have calculated. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 25 i is t' Document -• 02/17/15 they constitute a sizeable and therefore `safe' majority ensures that [minorities] are able to elect their candidate of choice." (quoting Voinovich, 507 U.S. at 154)). Under FairVote's proposal, in total, Latinos would not presently have an equal opportunity to elect even a single candidate of their choice. In the particular circumstances of this case, the use of a hybrid at -large and single -member district electoral system yields the same fractured and unequal access to political office that is present in the current electoral system. This Court concludes that neither Defendants' nor FairVote's proposals offer a legally acceptable remedy under the circumstances of this case. II. The Court Must Impose a Legally Acceptable Plan In the absence of a valid legislative plan, the duty falls on the district court to impose a constitutionally acceptable plan that will remedy the Section 2 violation. Chapman v. Meier, 420 U.S. 1, 27 (1975). In choosing among possible remedial plans, a court must implement a plan that most closely approximates any proposed legislative plan, while still satisfying constitutional requirements and preventing a renewed Section 2 violation. See Weiser, 412 U.S. at 795-97. When a district court is required to fashion a remedy, the Supreme Court has directed the use of single -member districts unless there are compelling reasons not to use them. See Chapman, 420 U.S. at 18-19 (reaffirming "an emphasis upon single -member FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 26 i is t'+r -• i W districts in court -ordered plans" absent "insurmountable difficulties" or "particularly pressing features calling for [another type of electoral system]"). Plaintiffs' proposed plan would create seven single -member districts. One of those districts, District 1, would have a majority -Latino CVAP (52.52%). District 2 in Plaintiffs' plan also has a substantial Latino population, in which Latinos constitute 45.34% of the CVAP. Latinos would constitute a quarter or more of the CVAP in two other districts (3 and 4). Plaintiffs' proposed plan affords Latinos the present ability to elect a Latino -preferred candidate in District 1 and a genuine possibility to elect a Latino -preferred candidate in District 2. This provides rough proportionality, as was discussed supra. Plaintiffs' proposal also avoids concentrating the Latino population into a single geographic district which would minimize the ability of Latinos to influence districts in which they are not the majority. Plaintiffs' proposal is lawful and meets the objectives of remedying the Section 2 violation. The boundaries of the single -member districts reflected in Plaintiffs' Illustrative Plan 1 are reasonably compact and are not in derogation of traditional redistricting principles. The total population deviation among districts is 6.33%, and therefore the proposed districts comply with the one person, one vote requirement of federal law. See Brown v. Thomson, 462 U.S. 835, 842-43 (1983) (concluding that an apportionment plan with a maximum population deviation under 10% is only a minor deviation from mathematical equality among voting FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 27 i is t'+r -• i 96 districts and is a prima facie indication that the districts are acceptable); Reynolds, 377 U.S. at 579 ("[T]he overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen."). Defendants contend the creation of majority -minority districts "sacrifices the voting opportunities of most Latinos at the expense of Latinos who are fortunate enough to reside in Plaintiffs' Districts I and 2." ECF No. 136 at 7. The Court previously rejected this argument when it found a Section 2 violation in this case. ECF No. 108 at 29-31. "Districting plans with some members of the minority group outside the minority -controlled districts are valid," and "[t]he fact that the proposed remedy does not benefit all of the Hispanics in the City does not justify denying any remedy at all." Gomez v. City of Watsonville, 863 F.2d 1407, 1414 (9th Cir. 1988).7 In light of the fact that the alternative proposed remedies 7 Defendants contend that Gomez is inapplicable in evaluating remedies because it only applies to satisfying the first Gingles factor. ECF No. 129 at 17 n.10; see also ECF No. 108 (Court's Order applying the three Section 2 preconditions articulated in Thornburg v. Gingles, 478 U.S. 30 (1986), to the facts of this case). Defendants argue further that Gomez "does not detract from Defendants' position that their plan is superior because [their proposed plan] extends an avenue of empowerment to all eligible Latino voters in the City." Id. As the Court has explained, FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 28 i is t'+r -• i m perpetuate the Section 2 violation, the Court concludes that the use of single- member districts is a valid remedy, even though some Latinos may live outside the majority -Latino districts, because it affords the Latino population an effective remedy, imperfect as it may be. Defendants also object to Plaintiffs' proposed plan because they assert it amounts to gerrymandering. ECF No. 129 at 23. Defendants allege that the districts are drawn with race as the predominant factor and that the plan is not the least restrictive means by which to remedy the Section 2 violation. The Court previously rejected this argument as well. ECF No. 108 at 31-33. To the extent that race plays a role in the districting of Yakima, it does so both in Defendants' proposed plan and in Plaintiffs' proposed plan. Such consideration is only natural Defendants' plan does not afford a viable opportunity for Latinos to elect a councilmember in the at -large elections, and therefore it does not empower all Latinos in Yakima to elect a representative of their choice. Further, while Gomez specifically involved determining whether there was a Section 2 violation, the cited discussion came in the context of determining whether a valid remedial district could be formed (Gingle's first factor). 863 F.2d at 1413-14. The Court finds the Ninth Circuit's reasoning in evaluating the validity of the proposed districts in Gomez persuasive in evaluating the validity of the proposed remedies in this case. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 29 i is t'+r -• i 98 in remedying a historic denial of voting rights, but ensuring compliance with Section 2 is a compelling state interest. See Bush v. Vera, 517 U.S. 952, 977-78 (1996). It does not follow that Defendants' proposed remedy is "narrower" than Plaintiffs' proposed remedy. Districting that factors in race must not do so "more than is `reasonably necessary' to avoid § 2 liability." Id. at 979. Plaintiffs' proposed plan —which factors in traditional districting concepts, such as compactness and equal population —does not factor in race more than is necessary. Finally, Defendants object to the Plaintiffs' proposed plan because it would require all the city council seats to stand for election in 2015. Defendants assert that several factors compel the Court to avoid "invalidating" the elections of councilmembers who would not otherwise be up for election in 2015. ECF No. 136 at 11. Assuming that the Court is "invalidating" the elections of the FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 30 i is t'+r -• i 99 councilmembers,' the Court may do so where an unequal election system has substantially infringed upon a protected group's ability to affect the outcome of an election. See, e.g., Toney v. White, 488 F.2d 310, 315 (5th Cir. 1973) (en banc). In determining how and when remedial measures should be implemented, the Court must "consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles." Reynolds, 377 U.S. at 585. In this case, the constitutional infraction is one that goes to the core of the rights of citizens: the ability to equally participate in the political process. Latinos have been denied the equal opportunity to elect representatives of their choice in Yakima. This is balanced against the minor disruptive effect of requiring all city council positions to stand for election in 2015. Plaintiffs' remedial plan would not 8 The Court is not "invalidating" the elections because it is not requiring all. candidates elected under the current system to immediately vacate their posts. All councilmembers will maintain their positions until completion of the normal election cycle this year. The fact that three councilmembers will have to stand for early election this year is not as much an invalidation of their appointment, but a matter of effectively and efficiently introducing an electoral system compliant with Section 2 of the Voting Rights Act of 1965. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 31. i is t'+r -• i 100 call for immediate elections but would hold elections as normally scheduled for 2015. Cf. Toney, 488 F.3d at 316. Four councilmembers' positions are set to expire naturally in 2015 anyway. Thus, immediate implementation will cut three councilmembers' positions short by two years (effective January 1, 2016). Those council members may attempt to regain their seats under the new, constitutionally - valid electoral system. Further, the remedial electoral system herein ordered takes into account the mechanics and complexities of Washington State's election laws. Unlike the proposed at -large, limited voting system, the use of single -member districts is well - accepted as a valid electoral system in Washington, as is the procedure of modifying staggered councilmember positions at the next scheduled general election cycle. See RCW 35.18.020(2)—(4) (affording for initial staggering of terms and, upon changes in the number of council seats, for staggering at the next general election cycle). Finally, this year's election cycle is not imminent.9 Cf. Reynolds, 377 U.S. at 585. The City and its residents will have ample time to implement the remedial electoral system herein ordered. The only issue created in 2015 is a broader 9 The primary election will occur in. August, nearly six months after the issuance of this Order. RCW 29A.04.311. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 32 i is t'+r -• i 101 electoral field during the initial implementation phase. Given the long-standing Section 2 violation, a broad electoral field only serves to assure that each citizen of voting age has the appropriate opportunity, under the new electoral scheme, to have his or her voice heard now. This compelling remedial goal outweighs any slight inconvenience to those three candidates that will be displaced after having been elected under a flawed system.10 H H 10 In support of their argument, Defendants cite Soules v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1.1.76 (9th Cir. 1988). Soules was not an equal - protection or Voting Rights Act case. However, even under Soules, a court may invalidate an election after taking into account "equitable considerations in fashioning the appropriate remedy," and upon a proper balancing of the "severity of the alleged constitutional infraction" against the "countervailing equitable factors such as the extremely disruptive effect of election invalidation and the havoc it wreaks upon local political continuity." Id.; see also Montana Chamber of Commerce v. Argenbright, 226 F.3d 1049 (9th Cir. 2000). As the Court's discussion indicates, the equitable factors in this case support implementing the new electoral system in its entirety during the next electoral cycle. FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 33 i is t'+r -• i 102 ENFORTIETITRWINFFM 1 � 1 �1 1. Plaintiffs' Motion for Entry of Proposed Remedial. Plan and Final Injunction (ECF No. 117) is GRANTED. Defendants' Proposed Remedial Redistricting Plan(s) and Injunction (ECF No. 113, 129, 136) are DENIED. 2. The City of Yakima is permanently enjoined from administering, implementing, or conducting any future elections for the Yakima City Council in. which members of the City Council are elected on an at -large basis, whether in a primary, general, or special election. 3. Beginning with the elections for the Yakima City Council to be held in 2015, and including the August 4, 2015 primary election and the November 3, 2015 general election, all elections for the Yakima City Council will be conducted using a system in which each of the seven members of the City Council is elected from a single -member district. Each councilmember must reside in his or her district, and only residents of a given district may vote for the councilmember position for that district. 4. The Court hereby adopts, as a remedy for the Section 2 violation, Plaintiffs' proposed Illustrative Plan 1. Maps and tables showing the boundaries of the new seven single -member districts and their populations are attached as Exhibit A. 5. Defendants shall take all steps necessary to implement the seven FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 34 i is t'+r -• i 103 single -member district plan attached as Exhibit A in order to allow single -member district based elections to proceed in 2015 and thereafter, provided that the City of Yakima may revise those districts based on annexations, de -annexations, and population changes reflected in the decennial census and at appropriate times in the future when necessary to conform to state and federal law. 6. In order to preserve the current staggered election plan for members of the City Council, the odd numbered districts will be set for a four-year election cycle and the even numbered districts will be set initially for a two-year term and thereafter for a four-year election cycle. 7. This judgment is binding upon all parties and their successors. Future redistricting shall be done in a manner that complies with the terms and intent of this Judgment and the Court's August 22, 2014 Order, continues to provide for single -member districts, and complies with Section 2 of the Voting Rights Act. 8. Any requests by Plaintiffs for costs and fees shall be determined by the Court in accordance with Fed. R. Civ. P. 54(d). The District Court Executive is hereby directed to enter this Order, enter Judgment accordingly, and provide copies to counsel. DATED February 17, 2015. lee THOMAS United States District Judge FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN — 35 i is t'+r -• i 104 FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN - 36 FINAL INJUNCTION AND REMEDIAL DISTRICTING PLAN - 37 District Population Deviation %oeviatwn 1 12533 -497 '381% u 13358 328 2�52% o 12858 '171 '1,31% 4 13175 145 111% 5 12683 -347 -2a6% s 13176 146 112% Total 91067 Ideal 13030 Total Deviation 6.33% Yakima City Council --illustrative Plan I msp %oisp mmnmv ee2e 7&81% 10227 9713 7271% 10505 4385 3418% 5297 5724 43.45% 6761 naaa 28.82% 4464 1820 13.81% 2648 2641 1e.88% 3642 37587 41.27% 43544 Group Group Quarters Group Quarters Quarters % Minority mm,meramu College Dorms Military 81�60% o o o 78,64% 273 o o 4119% n 91 o 51.32% 778 O o 3520% o o o 2010% o o o 2742% 58 n o % Latino mLanno 18+m*onJ nxo+m* % Latino Registered (of all Citizens (all o/smm 18+—pp 18+x/sn. m18+msp. Indian om/ndian 18+ Minority m18+ Minority cVAp registered) ages) 1 7604 5335 70A6% 185 2.56% 5748 75�59% 54�51% 5278% 71�83% u 8545 5639 65.99% 182 2.13% 6182 72,35% 4631% 5135% 6326% 3 9377 2564 2734% 222 237% 3200 34A3% 24�80% 18A8% 3222% 4 9716 3523 36.26% 334 144% 4301 4427% 26.68% 25.24% 34.57% 5 9801 2152 21,86% 247 2.52% 2755 28A1% 1221% 14.48% 20A7% a 10175 1083 18.64% 125 1.23% 1612 15.84% 711% 6.e1% 1139% 7 10069 1541 15,30% 172 171% 2199 21.84% 1514% 10,59% 23.24% Total 85287 21837 33.45% 1477 2.28% 25937 39.82% 22.06% 18.56% 34.34% Notes: (1)Group quarters data are from the 2o10Advance Group Quarters File released bythe Census Bureau unApril oo.2o11 (2) With post -Census 2010 annexation affecting Districts 6 and 7, current city population is 91,208. Deviation is calculated based on idealdistrict size of1o.Oou(81.2o@9)� (3) % LCVAP calculated by disaggregating 2008-2012 ACS block group estimates for 18+ citizen Hispanics and Non -Hispanics to 2010 census blocks. (4) % Latino registered based on Spanish surname match to registered voter list current through mid -March r014 (5) % Latino citizen calculated by disaggregating 2008-2012 ACS block group estimates for citizen Hispanics and Non -Hispanics *o2o10census blocks. ^ � PagelD.1 Page 1 of 11 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Sarah A. Dunne, WSBA No. 34869 La Rond Baker, WSBA No. 43610 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 Telephone: (206) 624-2184 Email: dunne(&,aclu-wa.oriz lbakergaclu-wa.org Kevin J. Hamilton, WSBA No. 15648 Noah Guzzo Purcell*, WSBA No. 43492 Perkins Coic LLP 1201 Third Avenue, Suite 4900 Seattle WA 98101-3099 Telephone: (206) 359-8000 Email: khamilton(&,Perkinscoie.com J 2-)Jjerkinsc6ie.com UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ROGELIO MONIES and MATEO ARTEAGA, Plaintiffs, is CITY OF YAKIMA, MICAH CAWLEY, in his official capacity as Mayor of Yakima, and MAUREEN ADKISON, SARA BRISTOL, KATHY COFFEY, RICK ENSEY, DAVE ETTL, and BILL LOVER, in their official capacity as members of the Yakima City Council, Defendants. COMPLAINT - Page I No. COMPLAINT AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.2 Page 2 of 11 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 "wk,111111111 1111111*11110010 1. This Complaint is a challenge to the at -large election system utilized by the City of Yakima, Washington to elect members of its City Council. This at -large scheme impermissibly dilutes the Latino, vote, does not allow for equal participation by Latinos in the election process, and thus violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 11. JURISDICTION 2. This is an action for injunctive and declaratory relief under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 3. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4). Venue is proper under 28 U.S.C. § 1391. 111. PARTIES 4. Plaintiffs Rogelio Montes and Mateo Arteaga ("Plaintiffs") are Latinos, registered voters, and residents of the City of Yakima. 5. Plaintiffs desire to participate in the electoral and political processes of the City of Yakima on an equal basis with all other residents. 6. Defendant City of Yakima is a governmental entity that maintains an electoral system comprised of residency district and at -large positions COMPLAINT - Page 2 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.3 Page 3 of 11 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 for the Yakima City Council ("the City Council"). All City Council positions are elected in an at -large general election. 7. Defendants Micah Cawley, the Mayor of the City of Yakima, Maureen Adkison, Sara Bristol, Kathy Coffey, Rick Ensey, Dave Ettl, and Bill Lover are the current elected members of the City Council. The City Council has authority to set voting districts. The City Council members are each sued in their official capacity only. IV. FACTS 8. The City Council is comprised of seven members. All positions for the City Council are elected using an at -large election process. Four City Council members are nominated in a non -partisan top -two primary in four residency districts and then elected via an at -large general election process. The remaining three City Council members are elected on a purely at -large basis. 9. The City Council positions have staggered terms and therefore staggered elections occur every two years. The last general elections for the residency district positions were held on November 8, 2011. The last general elections for the at -large positions were held on November 3, 2009. COMPLAINT - Page 3 AME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.4 Page 4 of 11 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10. The City of Yakima's at -large election process, which is used for both residency district and city-wide council member seats, violates Section 2 of the Voting Rights Act because it impermissibly dilutes the Latino vote, consistently allows the white majority's bloc voting to defeat the candidates preferred by Latino voters, and deprives Latinos of an equal opportunity to elect representatives of their choice. This election system does not allow the city's Latino residents to participate equally in the political process. 11. The Latino community in the City of Yakima is sufficiently numerous and geographically compact such that one or more properly apportioned single -member electoral districts can be drawn in which Latinos would constitute an effective majority of eligible voters. 12. Latinos in the City of Yakima are a politically unified group that votes cohesively as a bloc. 13. Bloc voting patterns prevail in City Council elections. White voters consistently vote as a bloc to elect candidates favored by the white community and defeat the Latino community's representatives of choice. This racially polarized voting results in the limited representation of or indifference to the Latino community's interests on the City Council. COMPLAINT - Page 4 AME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.5 Page 5 of 11 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14. As a result of racially polarized bloc voting, no Latino candidate has ever won an election for a seat on the City Council, and the sole Latino appointed to serve on the City Council, Sonia Rodriguez, could not retain her seat in the next at -large election, even with the advantage of incumbency. 15. According to the 2010 Census conducted by the U.S. Census Bureau, the City of Yakima has a total population of 91,067 and a voting -age population of 65,287. 16. With 37,587 Latinos residing within the City of Yakima, Latinos comprise approximately 41.3% of the city's population. 17. With 21,837 Latinos of voting age residing within the City of Yakima, Latinos comprise approximately 33.4% of the city's voting -age population. 18. It is possible to draw a single -member district plan for the Yakima City Council that contains at least one compact single -member district with a Latino citizen voting -age population ("LCVAP") majority. 19. Historically, Latinos in the City of Yakima have been subjected to official and private discrimination on the basis of race and ethnicity in employment, education, health services, and housing. There has also been discrimination against Latinos in their efforts to exercise the • NA ♦ I M � . ti AME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.6 Page 6 of 11 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 franchise and to participate equally with other residents in the political process. 20. As a result of historical discrimination against Latinos in education, housing, employment, and health services, many Latinos in the City of Yakima have a lower socioeconomic status. 21. According to the 2010 American Community Survey (ACS) 1-Year Estimates, the poverty rate for Latino residents of the city of Yakima is over three times higher than the rate for non -Hispanic white residents (38.3% to 12.4%). In 2010, the mean income for Latino residents in the city was $10,392, while the mean income for non -Hispanic whites was $30,865. 22. According to the 2010 ACS 1-Year Estimates, educational disparities between Latino and non -Hispanic white residents in the City of Yakima are stark. 53.7% of Latino residents 25 years of age and over have less than a high school degree or the equivalent (e.g., GED), as compared to 1.2.7% of their non -Hispanic white counterparts. The percentage of Latinos with less than a high school degree is more than four times higher than the corresponding rate for non -Hispanic white residents. COMPLAINT - Page 6 AME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.7 Page 7 of 11 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 23. According to the 2010 AC 1-Year Estimates, while 13.1 % of non - Hispanic white residents of the city of Yakima lack health insurance, 34.9% of Latinos lack the same. 24. The historical discrimination and resulting lowered socioeconomic status have hindered Latinos' ability to participate effectively in the political process. This contributes to the lack of Latino representation on the Yakima City Council. The at -large election scheme, historical and ongoing discrimination, and the disproportionate weakness of Latino political participation are all mutually reinforcing. Together, these factors have combined to allow elected officials to remain unresponsive to the needs and complaints of the Latino community in Yakima without fear of consequence at the polls. 25. Additionally, racial bloc voting by the white majority is encouraged and perpetuated by appeals to vote based on racial bias against Latinos. 26. The City of Yakima's election process is also characterized by the use of practices and procedures that impair Latino electoral success. This includes, but is not limited to, the at -large election procedure in the general election for all City Council seats. The reason for the continued use of an at -large system for all elections, including those AME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 1 Fifth Ave, Suite COMPLAINT - Page 7 9OSeattle, WA9816430 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.8 Page 8 of 11 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 for City Council members nominated by residency districts, is tenuous at best and does not serve a purpose that is more compelling than ensuring all Yakima residents have a meaningful opportunity to participate in the electoral process. 27. The at -large method of elections, history of discrimination, and racially polarized voting have left Latinos with less opportunity than other residents to participate in the city's political process and to elect representatives of their choice. COUNT ONE VIOLATION OF SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 28. The allegations contained in. Paragraphs 1 through 27 are hereby incorporated in Count One of the Complaint as if set forth herein. 29. The Latino community in the City of Yakima is sufficiently numerous and geographically compact such that one or more properly apportioned single -member electoral districts can be drawn in which Latinos would constitute an effective majority of eligible voters. 30. Latinos in the City of Yakima constitute a politically unified group that votes cohesively as a bloc. 31. Racially polarized voting persists in Yakima City Council elections. White voters consistently vote as a bloc to elect candidates favored by AIME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.9 Page 9 of 11 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the white community and defeat the Latino community's representatives of choice. 32. Under the totality of the circumstances, the at -large method of electing members of the Yakima City Council denies Latino citizens in the City of Yakima an opportunity to participate in the political process and elect representatives of their choice equal to that afforded other members of the electorate, thereby diluting Latino voting strength. 33. This vote dilution violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that the Court enter an order: 1. Declaring that the at -large method of electing Yakima City Council members violates Section 2 of the Voting Rights Act of 1965; 2. Enjoining Defendants, their agents and successors in office, and all persons acting in concert with any of these individuals, from administering, implementing, or conducting any future elections for the City of Yakima under the current method of electing City Council members; COMPLAINT - Page 9 AIME.RICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.10 Page 10 of 11 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. Ordering the implementation of an election system for the Yakima City Council that complies with Section 2 of the Voting Rights Act of 1965; 4. Retaining jurisdiction of this action and granting Plaintiffs any further relief which may in the discretion of this Court be necessary and proper to ensure that timely and lawful procedures are used in elections for the Yakima City Council; 5. Granting Plaintiffs the attorneys' fees and costs they incur, pursuant to 42 U.S.C. § 19731(e) and 42 U.S.C. § 1988; and 6. Granting any other relief that the Court may determine to be just and equitable. DATED this 22nd day of August, 2012. Respectfully submitted, ACLU OF WASHINGTON FOUNDATION By: s/ Sarah Dunne s/ La Rond Baker WSBA No. 43 610 ACLU of Washington Foundation 901 Fifth Avenue, Suite 630 Seattle, WA 98164 206.624.2184 dunne ac u-wa.org lbakerLa)aclu-wa.oTg COMPLAINT - Page 10 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Case 2:12-cv-03108-TOR ECF No. 1 filed 08/22/12 PagelD.11 Page 11 of 11 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/ Joaquin Avila* Pro H-ac Vi.ce application pending The Law Finn of Joaquin Avila P.O. Box 33687 Seattle, WA 98133 206.724.3731 s/ Laughlin McDonald* Pro Ha-c- —Vice application pending ACLU Foundation, Inc. Voting Rights Project 230 Peachtree Street, Suite 1440 Atlanta, GA 30303-1227 404.523.2721 lmcdonald(&.aclu.orii s/ Kevin J. Hamilton WSBA #15648 s/ Noah Guzzo Purcell* WSBA #43492 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 206.359.8000 khamiltongperkinscoie.com npurcell La)perkinscoie.com * Application for admission to the Eastern District of Washington pending. COMPLAINT - Page 11 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184 Distributed at the . 3p Meeting Relevance of Montes/ACLU vs. City of Yakima to Continued Racial and Economic Segregation of Housing in Yakima Order on Cross-Motions for Summary Judgment Page 8 Gingles...the plaintiff must demonstrate that his or her minority group is "sufficiently large and geographically compact to constitute a majority in a single-member [voting] district." (5) The extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; When relevant to the particular claim being asserted, a court may also consider the extent to which elected officials have been responsive to the particularized needs of the minority group, and the policy underlying the challenged voting practice or procedures. Id. at 45. Ill. Plaintiffs Have Satisfied the Gingles Preconditions A. Latinos are a "sufficiently large and geographically compact" minority group to form a majority in a hypothetical single-member voting district. E. Lingering Effects of Past Discrimination The fifth Senate Factor is "the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process." Gingles, 478 U.S. at 37. Plaintiffs offer the following statistics from the 2010-2012 ACS 3-Year Estimates as evidence that Latinos continue to bear the effects of discrimination in Yakima: (1) that Latinos are three times more likely to live below the poverty line than white residents; (2) that median family income for Latinos is less than half the median family income for white families; (3) that the rate of home ownership among Latinos is less than half than that among their white counterparts; (4) that 55% of Latinos lack a high school diploma, in comparison to only 12% of the white population; (5) that 57% of Latino adults do not have health insurance, in comparison to only 18% of their white counterparts; (6) that Latinos account for only 15% of City of Yakima employees, despite the fact that Latinos represent 33% of the City's working-age population. ECF No. 64 at 39-40. Citations extracted by Kay Funk, MD Yakima City Council Business Meeting May18, 2021