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Montes v. City of Yakima

United States District Court, E.D. Washington

August 22, 2014

ROGELIO MONTES, et al., Plaintiffs,
CITY OF YAKIMA, et al., Defendants

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For Rogelio Montes, Plaintiff: Joaquin Guadalupe Avila, LEAD ATTORNEY, PRO HAC VICE, Law Office of Joaquin G Avila, Shoreline, WA; Kevin J Hamilton, LEAD ATTORNEY, Abha Khanna, Perkins Coie - SEA, Seattle, WA; La Rond Baker, Sarah Anne Dunne, LEAD ATTORNEYS, ACLU of Washington Foundation, Seattle, WA; William B Stafford, Perkins Coie LLP, Seattle, WA.

For Mateo Arteaga, Plaintiff: Kevin J Hamilton, LEAD ATTORNEY, Abha Khanna, Perkins Coie - SEA, Seattle, WA; La Rond Baker, Sarah Anne Dunne, LEAD ATTORNEYS, ACLU of Washington Foundation, Seattle, WA; Moffatt Laughlin McDonald, LEAD ATTORNEY, PRO HAC VICE, American Civil Liberties Union Foundation, Atlanta, GA; William B Stafford, Perkins Coie LLP, Seattle, WA.

For City of Yakima, Micah Cawley, in his official capacity as Mayor of Yakima, Maureen Adkison, in her official capacity as a member of the Yakima City Council, Sara Bristol, in her official capacity as a member of the Yakima City Council, Kathy Coffey, in her official capacity as a member of the Yakima City Council, Rick Ensey, in his official capacity as a member of the Yakima City Council, Dave Ettl, in his official capacity as a member of the Yakima City Council, Bill Lover, in his official capacity as a member of the Yakima City Council, Defendants: Francis S Floyd, John A Safarli, Floyd, Pflueger & Ringer PS, Seattle, WA.

For United States, Interested Party: Pamela Jean DeRusha, U S Attorney's Office - SPO, Spokane, WA.

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THOMAS O. RICE, United States District Judge.

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 Thernstrom (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 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. Because City Council elections are not " equally open to participation" by members of the Latino minority, Plaintiffs are entitled to summary judgment.


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

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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.

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 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 party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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).


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

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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. Quilter, 507 U.S. 146, 152, 113 S.Ct. 1149, 122 L.Ed.2d 500 (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) (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, 106 S.Ct. 2752, 92 L.Ed.2d 25 (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 a bloc to enable it . . . usually to defeat the minority's preferred candidate." Id. In other words, a § 2 plaintiff must make a prima facie showing that " a bloc voting majority [will] usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group." Id. at 49 (emphasis in original). The plaintiff is not required to demonstrate that the challenged system is designed to discriminate against minority voters, or that the majority intentionally engages in racial bloc voting; he or she need only show that the system has " the effect of denying [the minority] the equal opportunity to elect its candidate of choice." Voinovich, 507 U.S. at 155 (emphasis in original); see also Smith v. Salt River Project Agr. Imp. & Power Dist., 109 F.3d 586, 594 (9th Cir. 1997) (" Section 2 requires proof only of a discriminatory result, not of discriminatory intent." ).

If the plaintiff satisfies each of the Gingles preconditions, he or she must then prove that, under " the totality of [the] circumstances," minority voters have less opportunity than members of the majority group to participate in the political process and to elect representatives of their choice. 42 U.S.C. § 1973(b). Gingles identifies

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seven factors relevant to this consideration, each of which is drawn from a report of the Senate Judiciary Committee accompanying the 1982 amendments to the VRA. These so-called " Senate Factors" are as follows:

(1) The history of voting-related discrimination in the jurisdiction;
(2) The extent to which voting in the elections of the jurisdiction is racially polarized;
(3) The extent to which the jurisdiction has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting;
(4) The exclusion of members of the minority group from candidate slating processes;
(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;
(6) The use of overt or subtle racial appeals in political campaigns; and
(7) The extent to which members of the minority group have been elected to public office in the jurisdiction.

Gingles, 478 U.S. at 44-45. 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.

The Senate Factors " are neither comprehensive nor exclusive," and other relevant factors may always be considered. Id. Further, " 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 ultimate inquiry is whether, under the totality of the circumstances, the challenged electoral process " is equally 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.

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;

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(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.

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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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 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.

B. Motion to Strike Second Supplemental Report of Dr. Morrison

Plaintiffs move to strike the Second Supplemental Declaration of Dr. Peter Morrison on the ground that the opinions offered therein were disclosed after the discovery cutoff and in support of a reply memorandum to which Plaintiffs had no opportunity to respond. ECF No. 89. Although the subject declaration was indeed

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untimely and submitted under circumstances that did not permit a response, the Court finds that Plaintiffs have not been prejudiced. The sole purpose of the declaration is to demonstrate that Plaintiffs did not balance " electoral equality" among districts when creating their proposed districting plans. ECF No. 86-1. There is no factual dispute on this score, as Plaintiffs' expert, Mr. William Cooper, concedes that he attempted to equalize districts on the basis of total population rather than eligible voting population. The only disputed issue involves a purely legal question: whether districts which are approximately equal in total population, but which differ in eligible voting population, violate the " one person, one vote" principle embodied in the Equal Protection Clause. For the reasons discussed in Section III.A, infra, the Court concludes that any disparities among districts in eligible voting population are not fatal to Plaintiffs' claim. To the extent a better balancing of electoral equality among districts is required, it can be accomplished at the remedial stage of these proceedings. The motion to strike Dr. Morrison's Second Supplemental Report is therefore denied.

III. 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.

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.

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, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (" Because the very concept of vote dilution implies--and, indeed, necessitates--the existence of an 'undiluted' practice against which the ...

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