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STATEMENT OF INTEREST OF THE UNITED
STATES OF AMERICA- 1
MICHAEL C. ORMSBY
United States Attorney
Eastern District of Washington MOLLY J. MORAN
Acting Assistant Attorney General Civil Rights Division
T. CHRISTIAN HERREN, JR BRYAN L. SELLS
VICTOR J. WILLIAMSON
Attorneys Voting Section
Civil Rights Division
U.S. Department of Justice Room 7264 NWB
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Telephone: (202) 305-0036
Facsimile: (202) 307-3961 firstname.lastname@example.org Attorneys for the United States
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
ROGELIO MONTES and
CITY OF YAKIMA, et al.,
Case No. 12-CV-3108-TOR
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
The United States respectfully submits this Statement of Interest pursuant to
28 U.S.C. § 517, which authorizes the Attorney General to attend to the interests of
1 the United States in any pending suit. Given the Attorney General’s broad authority
2 to enforce the Voting Rights Act, see 42 U.S.C. § 1973j(d), the United States has a
3 strong interest in the resolution of this matter, which implicates the interpretation of
4 Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Specifically, this case raises
5 important questions about the appropriate population standard that a plaintiff should
6 use when drawing illustrative election districts to establish that a city’s at-large
7 election system dilutes minority voting strength in violation of Section 2.
8 The defendants argue, among other things, that a plaintiff cannot prevail under
9 Section 2 unless its illustrative districts contain approximately equal numbers of
10 people and approximately equal numbers of eligible voters. The limited purpose of
11 this Statement is to explain why defendants’ interpretation of Section 2 lacks merit
12 and therefore cannot support a grant of summary judgment in their favor. This
13 Statement does not address any other issue pending before this Court.
14 I. BACKGROUND
15 The City of Yakima is governed by a seven-member city council. Members
16 are elected at large to staggered four-year terms, and the city holds elections every
17 two years. The city also uses a non-partisan top-two primary election system to
18 nominate candidates for the general election. Candidates for four seats are
19 nominated by election within four single-member residency districts, and candidates
20 for the other three seats are nominated at large.
21 According to the 2010 Census, the city has a total population of 91,067
22 persons. Latinos make up 41.3% of the city’s total population and 33.4% of the
23 city’s voting-age population. According to estimates from the 2008-2012 American
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 2
1 Community Survey, Latinos constitute approximately 22.7% of the city’s citizen
2 voting-age population.
3 Plaintiffs allege that no Latino candidate has ever been elected to the Yakima
4 city council.
5 * * *
6 Two Latino voters brought this suit in 2012. They allege that the city’s at-
7 large method of electing its city council violates Section 2 by diluting the votes of
8 Latino citizens. Compl., ECF No. 1.
9 Under Section 2, a claim of vote dilution ordinarily requires proof of three
10 threshold conditions set forth in Thornburg v. Gingles, 478 U.S. 30, 47-49 (1986).1
11 The first of these so-called Gingles preconditions requires the minority group “to
12 demonstrate that it is sufficiently large and geographically compact to constitute a
13 majority in a single-member district.” Id. at 50.
14 To establish the first Gingles precondition in this case, the plaintiffs
15 seven illustrative redistricting plans, each containing seven single-member districts,
16 and each including at least one district in which Latino citizens would constitute a
17 majority of the citizen voting-age population of that district. Ps.’ Mot. Summ. J.,
18 ECF No. 64 at 17; Ps.’ Statement of Undisputed Facts re Mot. Summ J., ECF No. 65
19 at 8-9.
20 The first five of the plaintiffs’ illustrative redistricting plans used total
21 population as the basis for apportioning the districts, so that each district in those
23 1 This Statement of Interest does not address the second and third Gingles
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 3
1 five plans contains approximately equal numbers of persons. Even though those
2 districts are relatively equal in total population, there are differences among the
3 plaintiffs’ illustrative districts in citizen voting-age population. The majority-Latino
4 districts contain fewer citizens of voting age than the majority-Anglo districts.
5 The plaintiffs’ sixth and seventh illustrative redistricting plans used total
6 citizen population and total citizen voting-age population, respectively, as the basis
7 for apportioning the districts. Each district in those two plans contains
8 approximately equal numbers of citizens or citizens of voting age. In those plans,
9 however, there are differences among the districts in total population. The majority-
10 Latino districts in those plans contain more total population than the majority-Anglo
12 On July 1, 2014, the parties filed cross motions for summary judgment.
13 Among other things, the defendants argue that they are entitled to summary
14 judgment because the plaintiffs have not satisfied the first Gingles precondition.
15 They contend that the first Gingles precondition requires the plaintiffs to use both
16 total population and citizen voting-age population when drawing illustrative
17 redistricting plans, so that each district in an illustrative plan is approximately equal
18 in both total population and citizen voting-age population. Defs.’ Mot. Summ. J.,
19 ECF No. 67.
20 II. SUMMARY JUDGMENT STANDARD
21 Under Rule 56 of the Federal Rules of Civil Procedure, a court shall grant
22 summary judgment “if the movant shows that there is no genuine dispute as to any
23 material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
24 Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 4
1 deciding whether there is a genuine issue of material fact, the court must draw all
2 justifiable inferences in the nonmoving party’s favor and accept the nonmoving
3 party’s evidence as true. Anderson, 477 U.S. at 255. To determine which facts are
4 “material,” a court must look to the substantive law on which each claim rests.
5 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A “genuine issue” is one whose
6 resolution could establish an element of a claim or defense and, therefore, could
7 affect the outcome of the action. Id.
8 III. ARGUMENT
9 The plaintiffs’ use of total population as the basis for the apportionment of
10 illustrative redistricting plans is consistent with Supreme Court and Ninth Circuit
11 precedent and is therefore an appropriate method of apportionment to satisfy the first
12 Gingles precondition. See Reynolds v. Sims, 377 U.S. 533 (1964) (holding that
13 districts may be apportioned based on total population); Garza v. County of Los
14 Angeles, 918 F.2d 763 (9th Cir. 1990) (holding, specifically in the Section 2 context,
15 that districts must be apportioned based on total population rather than voting-age
16 population when the difference matters). As a result, the Court should reject the
17 defendants’ argument and deny their motion for summary judgment on this issue.
18 A. Illustrative plans that use total population as the basis for apportioning
19 single-member districts are not unconstitutional.
20 No court has ever required a plaintiff to use anything other than total
21 population as the basis for apportioning single-member districts in order to satisfy
22 the first Gingles precondition in a vote-dilution case. The Supreme Court and lower
23 courts have ruled on the issue of what apportionment bases for redistricting single-
24 member districts are appropriate, holding that using total population as the basis for
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 5
1 apportionment is acceptable. Moreover, the Ninth Circuit requires it in some
3 Using Total Population to Apportion Districts is Permissible Under
4 Supreme Court Precedent.
5 In Reynolds and its progeny, the Supreme Court consistently has recognized
6 that it is permissible for a municipality to apportion based on total population rather
7 than citizen voting age population in order to satisfy the Equal Protection Clause’s
8 one-person, one-vote requirement. The Reynolds Court held that “the Equal
9 Protection Clause requires that the seats in both houses of a bicameral state
10 legislature must be apportioned on a population basis.” 377 U.S. at 568. Although
11 total population figures were the basis of comparison among the districts at issue in
12 that case, the Court did not address whether total population figures would be the
13 only permissible measure of the “population” in drawing district lines. As the Court
14 later noted in Burns v. Richardson, 384 U.S. 73, 91 (1966), the discussion in
15 Reynolds “carefully left open the question what population was being referred to,”
16 addressing “substantial equivalence in terms of voter population or citizen
17 population, making no distinction between the acceptability of such a test and a test
18 based on total population.” See Reynolds, 377 U.S. at 577.
19 The rule of population equality “is a principle designed to prevent debasement
20 of voting power.” Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969). But the Court
21 in Reynolds indicated that the principle of one-person, one-vote serves the dual
22 ideals of equality of representation and voter equality. See, e.g., Reynolds, 377 U.S.
23 at 565-566 (“the achieving of fair and effective representation for all citizens is
24 concededly the basic aim of legislative apportionment”); id. at 565 (“Full and
25 effective participation by all citizens in state government requires, therefore, that
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 6
1 each citizen have an equally effective voice in the election of members of his state
2 legislature.”). In many cases, the goals of one-person, one-vote and voter equality
3 will be advanced regardless of whether a jurisdiction draws district lines based on
4 total population figures or citizen voting age population figures because each figure
5 is often a good proxy for the other. But in some cases, such as here, the choice
6 between the two sets of numbers will have a material effect on how districts may be
8 The Supreme Court has never held that jurisdictions must use one particular
9 measure of population in state or local districting; it has instead indicated that that
10 choice should be left to states. In Burns, the Court rejected an argument that the
11 Equal Protection Clause’s guarantee of one-person, one-vote required the State of
12 Hawaii to use total population figures rather than registered voter figures in drawing
13 district lines. 384 U.S. at 92. It held, rather, that the decision whether to include
14 groups such as “aliens, transients, short-term or temporary residents, or persons
15 denied the vote for conviction of crime in the apportionment base by which [a
16 state’s] legislators are distributed and against which compliance with the Equal
17 Protection Clause is to be measured ... involves choices about the nature of
18 representation with which [the Court had] been shown no constitutionally founded
19 reason to interfere.” Id. The Burns reasoning demonstrates that a state is not
20 forbidden from using total population figures to draw districts.
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 7
1 The Ninth Circuit Has Held That Using Total Population to Apportion
2 Single-Member Districts is Appropriate, and, in Some Circumstances, Required.
The Ninth Circuit in Garza followed Supreme Court precedent in finding that
use of total population as a basis for apportionment is constitutionally permissible.2
In Garza, the county defendant challenged a court-ordered redistricting plan that
created a Hispanic majority district as a remedy for a violation of Section 2 of the
Voting Rights Act, arguing that the remedial plan unconstitutionally weighed votes
of citizens in that district more heavily than those in other districts. 918 F.2d at 773.
The majority in Garza rejected the county’s contention that under Reynolds, the
district court was required to formulate a remedy in which each one of the districts
had an equal number of eligible voters. Id. at 774-775. The Garza majority held
that although Supreme Court precedent “seems to permit states to consider the
distribution of the voting population as well as that of the total population in
constructing electoral districts,” 918 F.2d at 774 (citing Burns, 384 U.S. at 91-92), it
“does not ... require states to do so.” Id. (emphasis in original). Accordingly, the
Garza majority ruled that a court-approved plan designed to equalize the total
number of persons in each district satisfied Reynolds. Id.
19 2 Other than the Ninth Circuit, two other courts of appeals (the Fifth and the Fourth
20 Circuits) have also considered and rejected claims identical to defendants’ claims
21 that using total population as the basis for apportionment is unconstitutional. See
22 Chen v. City of Houston, 206 F.3d 502, 523 (5th Cir. 2000), cert. denied, 532 U.S.
23 1046 (2001) and Lepak v. City of Irving, 453 Fed.Appx. 522 (5th Cir. 2011), cert.
24 denied, 133 S.Ct. 1725 (2013); Daly v. Hunt, 93 F.3d 1212 (4th Cir. 1996).
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 8
1 The Garza majority further found that when it results in population inequality,
2 the use of citizen voting-age population as the basis for apportionment burdens the
3 right to equal representation and would therefore “constitute a denial of equal
4 protection.” Id. at 774-776. “The purpose of redistricting is not only to protect the
5 voting power of citizens” but also equally “to ensure equal representation for equal
6 numbers of people.” Id. at 775 (internal quotation marks and citations omitted).
7 B. Constitutional values are furthered by the use of total population.
8 The use of total population supports the constitutional values of equality and
9 of representative government. Population equality will not always accommodate the
10 twin goals of equality of representation and equality of voting power in precisely
11 equal measure. As the population of a district changes, the figures on which
12 apportionment is based are inherently imprecise. The inhabitants of a district who at
13 the time of apportionment may not be citizens or eligible to vote may become
14 eligible voters before reapportionment occurs. Gaffney v. Cummings, 412 U.S. 735,
15 744-746 & n.10.
16 The Supreme Court has explicitly recognized that population-based
17 redistricting need not precisely equalize voting power. Gaffney observed that even
18 though decennial apportionments are based primarily on census figures, “[t]he
19 proportion of the census population too young to vote or disqualified by alienage or
20 nonresidence varies substantially among the States and among localities within the
21 States.” 412 U.S. at 746-747. The Court noted that the 1970 Census, for example,
22 showed that “New York has a 29% variation in age-eligible voters among its
23 congressional districts, while California has a 25% and Illinois a 20% variation.” Id.
24 at 747 n.13. The Court recognized that population-based apportionment would by
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 9
1 necessity include individuals who were not eligible to vote, including “aliens,
2 nonresident military personnel, [and] nonresident students.” Id. at 747. Despite
3 these disparities, the Court was not concerned that the practice in these states of
4 apportioning districts on the basis of total population violated the Fourteenth
5 Amendment. On the contrary, the Court cited the inherent imprecision in
6 population-based apportionment as the reason why “[f]air and effective
7 representation ... does not depend solely on mathematical equality among district
8 populations. There are other relevant factors to be taken into account and other
9 important interests that states may legitimately be mindful of.” Id. at 748-749
10 (footnote omitted).
11 The rule of population equality is designed in part to prevent “diminution of
12 access to elected representatives.” Kirkpatrick, 394 U.S. at 531. Under the
13 representative form of government, an elected official represents all persons residing
14 within his or her district, whether or not they are eligible to vote and whether or not
15 they voted for the official in the preceding election. Davis v. Bandemer, 478 U.S.
16 109, 132 (1986) (plurality). Because elected officials represent all individuals in
17 their jurisdiction, population equality therefore “assures that all persons living within
18 a district – whether eligible to vote or not – have roughly equal representation in the
19 governing body.” Garza, 918 F.2d at 781.
20 Apportionment based on population equality recognizes the representative’s
21 role in providing services to the residents of the district. An elected official
22 therefore has a duty to ensure that the government addresses the concerns of his or
23 her constituents, regardless of their ability to vote, and ensure that his or her district
24 receives its fair share of equal government services. See, e.g., Garza, 918 F.2d at
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 10
1 781 (“[a] principle of equal representation serves important purposes,” including
2 assuring “that constituents have more or less equal access to their elected officials”
3 and assuring “that constituents are not afforded unequal government services
4 depending on the size of the population in their districts.”).
5 In sum, it is entirely appropriate for a jurisdiction to recognize that its government
6 represents all people, including those who are ineligible to vote or who choose not to
7 vote. See Reynolds, 377 U.S. at 560-561 (“the fundamental principle of
8 representative government is one of equal representation for equal numbers of
9 people, without regard to race, sex, economic status, or place of residence within a
11 C. Strict reliance on citizen voting age population would disrupt a broad
12 range of well-established and valid apportionment systems.
13 Redistricting manuals relied on by states and local jurisdictions across the
14 United States have long made clear that, in practice, total population is the standard
15 baseline used to draw districts that comply with the one-person, one-vote
16 requirement. For example, the “Guide to Redistricting” published by the Office of
17 the Secretary of State Certification and Training Program and the Washington State
18 Redistricting Commission, in partnership with the Washington County Election
19 Administrators, available at
20 http://www.sos.wa.gov/_assets/elections/RedistrictingGuide.pdf, revised October
21 2011, instructs that “[e]ach [county legislative authority] district shall comprise as
22 nearly as possible equal portions of the population of the county.” Yakima County’s
23 board of commissioner districts are, by ordinance, consistent with the criteria set
24 forth in RCW 29A.76.010(4), in that, among other criteria, “the commissioner
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 11
1 districts are as nearly equal in population as possible.” See Board of Yakima County
2 Commissioners Ordinance No. 9-2011, available at
3 http://www.yakimacounty.us/cmrs/ordinance/2011/9_2011.pdf. In fact, the City of
4 Yakima’s city charter requires, for its residency districts, that the “City shall be
5 divided ... into four districts as nearly equal in population as practicable.” Charter,
6 Ordinance No. 261, Article II, Section 1(B)(1), available at
8 Additional examples can be found in the manual on reapportionment
9 published by the National Conference of State Legislatures in advance of the 1990
10 redistricting cycle, which states that to measure population equality among districts,
11 “a logical starting point is the ‘ideal’ district population,” explaining that in “a
12 single-member district plan, the ‘ideal’ district population is equal to the total state
13 population divided by the total number of districts.” National Conference of State
14 Legislatures Reapportionment Task Force, Reapportionment Law: The 1990s at 18
15 (1989). This guidance was repeated during the 2000 redistricting cycle and 2010
16 redistricting cycle. See, e.g., J. Gerald Hebert et al., The Realist’s Guide to
17 Redistricting at 1 (2000) (“Perhaps the most fundamental requirement the law
18 imposes on redistricters is ‘population equality’.... In practical terms, population
19 equality means that each district in an apportionment plan should have roughly, if
20 not precisely, the same number of people as every other district.”); National
21 Conference of State Legislatures, Redistricting Law 2000 at 21 (1999) (same); J.
22 Gerald Hebert, et al., The Realist’s Guide to Redistricting at 1 (2d ed. 2010) (same);
23 National Conference of State Legislatures, Redistricting Law 2010 at 23 (2009)
24 (same). A ruling that the use of total population as an apportionment measure is
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 12
1 unconstitutional not only would conflict with binding precedent, but also would be
2 disruptive to normal redistricting.
3 IV. CONCLUSION
4 The plaintiffs’ use of total population as the basis for drawing districts
5 satisfies the first Gingles precondition because it is constitutionally acceptable as an
6 apportionment method under binding Supreme Court precedent and is
7 constitutionally mandated here under binding Ninth Circuit precedent. Accordingly,
8 this Court should deny the defendants’ motion for summary judgment on that issue.
9 RESPECTFULLY SUBMITTED this 18th day of August, 2014.
MICHAEL C. ORMSBY MOLLY J. MORAN
11 United States Attorney Acting Assistant Attorney General
12 Eastern District of Washington Civil Rights Division
13 s/Pamela J. DeRusha s/ Victor J. Williamson
14 PAMELA J. DeRUSHA T. CHRISTIAN HERREN, JR. Assistant United
States Attorney BRYAN L. SELLS
15 United States Attorney’s Office VICTOR J. WILLIAMSON
16 Post Office Box 1494 Attorneys Spokane, Washington
99210-1494 Voting Section
17 (509) 353-2767(Tel) Civil Rights Division
18 (509) 353-2766(Fax) U.S. Department of Justice
USAWAE.PDerushaECF@usdoj.gov Room 7264 NWB
Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 305-0036
Facsimile: (202) 307-3961
Counsel for the United States
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 13
CERTIFICATE OF SERVICE
I hereby certify that on August 18, 2014, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system, which will send notification of such filing to the email
addresses indicated on the Court’s Electronic Mail Notice List.
/s/Pamela J. DeRusha
PAMELA J. DeRUSHA
Assistant United States Attorney
United States Attorney’s Office
Post Office Box 1494
Spokane, Washington 99210-1494
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA- 14