Glatt v. City of Pasco et al

Filing 16

PARTIAL CONSENT DECREE. Signed by Senior Judge Lonny R. Suko. (SK, Case Administrator)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

7
8

BERTHA ARANDA GLATT,

9
10

No. 4:16-CV-05108-LRS

Plaintiff,
v.

11
12

PARTIAL CONSENT DECREE

CITY OF PASCO, et al.,
Defendants.

13
PARTIAL CONSENT DECREE

14
15

A Complaint has been filed by the above Plaintiff alleging that the current

16

at-large method of electing members of the Pasco City Council violates Section 2

17
18

of the Federal Voting Right Act by diluting the electoral power of Pasco’s Latino

19

voters and thereby depriving Latinos of an opportunity to fully participate in the

20

political process and to elect candidates of their choice to the Pasco City Council.

21
FACTUAL STIPULATION – LIABILITY

22
23

The above-named Plaintiff and Defendants stipulate and agree as follows:

24

Background

25
26

1.

Defendant City of Pasco, Washington, is a municipal corporation

27

organized under the laws of the State of Washington as an optional-code city

28

subject to Chapter 35A of the Revised Code of Washington. Defendants Rebecca
PARTIAL CONSENT DECREE - 1

1
2

Francik, Robert Hoffmann, Thomas Larsen, Saul Martinez, Matthew Watkins, and
Al Yenney, are current members of the Pasco City Council. The City Council has

3
4

statutory authority to set voting districts subject to the state law. The City

5

Councilmembers are each sued in their official capacity only.

6
7

2.

The Pasco City Council consists of seven (7) City Councilmembers

8

serving staggered four-year terms. The next municipal election will be in

9

November 2017, at which time four (4) seats on the Pasco City Council will be up

10
11
12
13

for election.
3.

Five (5) City Councilmembers are currently nominated in a non-

partisan, top-two primary in five (5) territorial election districts. For territorial

14
15

election districts, only a resident of that voting district may be a candidate for, or

16

hold office as, a Councilmember of that district, and only voters of the district may

17

vote at the primary election to nominate candidates for the City Councilmember

18
19

for that district. Candidates for the two (2) at-large City Council positions are

20

determined at the primary election in a non-partisan, top-two primary by residents

21

of the entire City of Pasco.

22
23

4.

During the general election, voters of the entire City vote to elect a

24

Councilmember for each of the respective territorial election districts, as well as

25

the two at-large Council positions (i.e., all Councilmembers are elected on an at-

26
27

large basis).

28
PARTIAL CONSENT DECREE - 2

1
2

5.

The City has, within the last legislative session, sought a change to the

State law to allow for district-based voting. In the absence of a change in the State

3
4

law, the City, and in anticipation of the 2015 municipal election cycle, sought to

5

amend Pasco Municipal Code (PMC) 1.10.010 to provide for district-based

6
7

elections. The City requested that the Franklin County Auditor implement district-

8

based voting. The Auditor responded to Pasco’s request in a letter dated April 17,

9

2015, claiming that because implementing a district-based election system would

10
11
12
13

violate Wash. Rev. Code 35A.12.180, the Auditor was unable to conduct an
election under Pasco’s proposed district-based election system.
6.

On May 4, 2015, the Pasco City Council enacted Resolution No. 3635

14
15

declaring its intent to pursue a district-based election system for City

16

Councilmembers, and further declaring its continuing intent to provide equal

17

voting opportunities for all of its citizens, and to provide equitable and proportional

18
19
20
21

representation.
7.

At the behest of the City of Pasco, Washington State Senator Pam

Roach submitted a request to the Washington State Attorney General regarding the

22
23

authority of cities subject to RCW 35A.12.180 (which includes the City of Pasco)

24

to change their own election systems. On January 28, 2016, the Washington State

25

Attorney General rendered an Opinion which noted that:

26
27
28

Thus, RCW 35A.12.180 specifically denies to code cities the authority
to restrict voting by ward at the general election. Therefore, a local
ordinance that provided for general elections by ward would conflict
with RCW 35A.12.180 and be preempted by state law. (Attorney
PARTIAL CONSENT DECREE - 3

1
2
3

General Opinion at pg. 5.) In sum, Code cities in Washington that
believe they may be in violation of the VRA face difficult decisions
and potential legal risk regardless of what course they choose.
(Attorney General Opinion at pg. 10).

4

Violation of Section 2 of the Federal Voting Rights Act

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

8.

This action is for the enforcement of Section 2 of the Federal Voting

Rights Act, which provides in part as follows:
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on
account of race or color, or in contravention of the guarantees set forth
in Section 1973b(f)(2) of this title, as provided in subsection (b) of
this section.
(b) A violation of subsection (a) of this section is established if,
based on the totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or political
subdivision are not equally open to participation by members of a
class of citizens protected by subsection (a) of this section 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. The extent to which members of a protected class have
been elected to office in the State or political subdivision is one
circumstance which may be considered: Provided, That nothing in this
section establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.

22
23

9.

The Federal Voting Rights Act is designed to “help effectuate the

24

Fifteenth Amendment’s guarantee that no citizen’s right to vote shall be denied or

25

abridged . . . on account of race, color, or previous condition of servitude.”

26
27

Voinovich v. Quilter, 507 U.S. 146, 152 (1993).

28
PARTIAL CONSENT DECREE - 4

1
2

10.

A violation of the Voting Rights Act occurs when, based upon the

totality of the circumstances, the challenged electoral process is “not equally open

3
4

to participation by members of a [racial minority group] in that its members have

5

less opportunity than other members of the electorate to participate in the political

6
7
8
9
10
11
12
13
14
15
16
17

process and to elect representatives of their choice.” 42 U.S.C. § 1973(b).
11.

The City of Pasco is an optional municipal code city subject to Wash.

Rev. Code 35A.12.180, the pertinent portion of which states as follow:
Wards shall be redrawn as provided in chapter 29.76 RCW. Wards
shall be used as follows: (1) Only a resident of the ward may be a
candidate for, or hold office as, a councilmember of the ward; and (2)
only voters of the ward may vote at a primary to nominate candidates
for a councilmember of the ward. Voters of the entire city may vote at
the general election to elect a councilmember of a ward, unless the
city had prior to January 1, 1994, limited the voting in the general
election for any or all council positions to only voters residing within
the ward associated with the council positions. If a city had so limited
the voting in the general election to only voters residing within the
ward, then the city shall be authorized to continue to do so.

18
19

12.

Due to voting trends, the result of the statutorily mandated at-large

20

election has been non-Latino dominance in electing City Council members.

21

Pasco’s large Latino population is sufficiently numerous and compact to form a

22
23

majority in at least one single-member district, is political cohesive, and the non-

24

Latino majority votes sufficiently as a block to defeat a Latino preferred candidate.

25

See Thornburg v. Gingles, 478 U.S. 30 (1986).

26
27
28

13.

As this court held in Montes v. Yakima, “state law must sometimes

yield to afford an effective remedy under the Voting Rights Act. The Supremacy
PARTIAL CONSENT DECREE - 5

1
2

Clause requires that state law be abrogated where doing so is necessary to remedy
a violation of the Voting Rights Act.” Montes v. Yakima, No. 12-CV-3108-TOR,

3
4

Final Injunction and Remedial Districting Plan, ECF No. 143 (Feb. 17, 2015)

5

(citing Arizona v. Inter Tribal Council of Ariz. Inc., 133 S. Ct. 2247, 2256 (2013)).

6
7

“Federal legislation so far as it extends and conflicts with the regulations of the

8

State, necessarily supersedes them.” Ex Parte Siebold, 100 U.S. 371, 384 (1879).

9

Thus, “[i]n remedial situations under Section 2 where state laws are necessarily

10
11

abrogated, the Supremacy Clause appropriately works to suspend those laws

12

because they are an unavoidable obstacle to the vindication of the federal right.”

13

Large v. Fremont Cnty., 670 F.3d 1133, 1145 (10th Cir. 2012).

14
15

14.

As such, a number of federal courts have invalidated at-large election

16

systems and approved or given full deference to remedial plans that include single-

17

member districts, even when the adoption of such a plan conflicted with state law.

18
19

See, e.g., United States vs. City of Euclid, 580 F. Supp. 2d 584 (E.D. Ohio 2008);

20

Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1437 (11th Cir.

21

1987), cert. denied, 488 U.S. 960; United States v. Osceola County, 474 F. Supp.

22
23

2d 1254 (M.D. Fla 2006). Similarly here, this Court is specifically authorized to

24

order an election system that conflicts with state law in order to fully remedy the

25

City’s Voting Rights Act violation.

26
27
28

15.

Since the implementation of Pasco’s current election system in 1978,

the population of the City of Pasco has grown dramatically. During that period,
PARTIAL CONSENT DECREE - 6

1
2

there has been a substantial increase in the number of Latino residents. Today,
Latino residents are estimated to be approximately half of the City’s population.

3
4

The Latino population in the City of Pasco is sufficiently numerous and

5

geographically compact to constitute a majority of the citizen voting age

6
7
8
9
10
11
12
13

population in at least one election district.
16.

Latinos in the City of Pasco are a politically unified group that votes

cohesively as a bloc. In contests between Latino and non-Latino candidates for the
City Council, statistical analyses show that Latino voters consistently vote for
Latino candidates.
17.

The majority of voters in Pasco are white and have historically

14
15
16
17

engaged in bloc voting favoring non-Latino candidates.
18.

There is a pattern of racially polarized voting in the City of Pasco City

Council elections. The voting patterns and the presently mandated at-large general

18
19

election of all City Council candidates make it very difficult for the Latino

20

community to elect candidates of their choice. Although other minority candidates

21

have been elected to the City Council, as a result of racially-polarized bloc voting,

22
23

no Latino candidate has ever won an opposed election to the Pasco City Council.

24

The first Latina to serve on the City Council was Luisa Torres. She was appointed

25

to the Council in 1989. Luisa ran for election in 1989 but was defeated by a non-

26
27

Latino candidate. The only other Latino to serve on the City Council was also first

28
PARTIAL CONSENT DECREE - 7

1
2

appointed to the City Council, Saul Martinez. He subsequently ran unopposed,
which enabled him to retain his seat.

3
4
5
6
7
8
9
10
11
12
13

19.

In 2015, six Latinos ran for two positions on City Council. Despite

strong support of Latino voters, the two Latinas who survived the primary election
were both defeated in the November 2015 general election.
20.

While there is no evidence of any discriminatory motive or intent by

the non-Latino population in exercising their own rights to vote, such intent is not
necessary to a violation of Section 2 of the Voting Rights Act. There is no
evidence that non-Latinos are deliberately conspiring to outvote Latinos.
21.

The Latino population in the City of Pasco is sufficiently numerous

14
15
16
17

and geographically compact to constitute a majority of the citizen voting age
population in at least one election district.
22.

Under the Senate Factors or “the totality of the circumstances”

18
19

analysis, there is sufficient evidence of disparities to show inequality in

20

opportunities between the white and Latino populations and that the existing at-

21

large election system for the Pasco City Council has excluded Latinos from

22
23

meaningfully participating in the political process and diluted their vote such that

24

Latinos are unable to elect candidates of their choice to the City Council. Thus, the

25

election system by which Pasco elects its City Councilmembers, which is

26
27
28

mandated by state statute, and voting trends in Pasco results in a violation Section
2 of the Voting Rights Act.
PARTIAL CONSENT DECREE - 8

1
2

23.

It is in the best interest of the residents of the City of Pasco to enter

into this Partial Consent Decree, thus avoiding protracted, costly, and potentially

3
4

divisive litigation. Defendants have the authority to settle litigation in good faith

5

for further expenditure of public funds and defense thereof is not likely to be in the

6
7

interest of the public.

8

NOW, THEREFORE, based upon the stipulated evidence presented in this

9

case and as memorialized above, IT IS HEREBY, ORDERED, ADJUDGED,

10
11
12
13

AND DECREED that:
1.

This Court has jurisdiction over these actions pursuant to 42 U.S.C.

1973 and 28 U.S.C. 1345.

14
15

2.

Under the Supremacy Clause of Article VI of the Constitution of the

16

United States this Court has the power to impose a remedy otherwise contrary to

17

applicable state statutes. This Court also has the authority to approve a settlement

18
19

or issue a consent decree that abrogates or modifies state law if doing so is

20

necessary to remedy a violation of Section 2 of the Voting Rights Act. Perkins v.

21

City of Chicago Heights, 47 F.3d 212, 216 (7th Cir. 1995).

22
23

3.

Wash. Rev. Code 35A.12.180 mandates that Pasco elect its City

24

Councilmembers in at-large elections. Due to voting trends in Pasco, the City’s

25

current election system dilutes the Latino population’s voting power in violation of

26
27

Section 2 of the Voting Rights Act.

28
PARTIAL CONSENT DECREE - 9

1
2

4.

In order to remedy the City of Pasco’s Section 2 violation, the City

must adopt a new election system. Implementation of the new election system will

3
4

necessarily abrogate Washington State law, but must do so only as much as

5

necessary to remedy the Section 2 violation. Large, 670 F.3d at 1145 (“[I]n

6
7

remedial situations under Section 2 where State laws are necessarily abrogated, the

8

supremacy clause appropriately works to suspend those laws because they are an

9

unavoidable obstacle to the vindication of the Federal right.”).

10
11

5.

Defendants admit that, due to voting trends, Pasco’s current election

12

system results in unlawful dilution of the Latino population’s vote in violation of

13

Section 2 of the Voting Rights Act. As such, a new election system must be

14
15

imposed. Pasco does not have the authority to affirmatively change its election

16

system because Wash. Rev. Code 35A.12.180 bars such alterations. However, this

17

Court has the authority to impose an election system that remedies that violation.

18
19

6.

The Court reviewed the Parties’ stipulation of facts as reflected in this

20

Partial Consent Decree, and finds that the stipulations are sufficient to support

21

finding that Pasco’s current City Council election system unlawfully dilutes the

22
23

Latino population’s vote in violation of Section 2 of the Voting Rights Act, 42

24

U.S.C. § 1973.

25

7.

Except as inconsistent with or specifically altered by the terms of this

26
27
28

Partial Consent Decree or any subsequent orders from this Court, all state laws
shall continue to govern elections for the City Council of the City of Pasco.
PARTIAL CONSENT DECREE 10

1
2

8.

Defendants, and their officers, agents, and successors in office, and all

persons acting in concert with them, are enjoined from administering,

3
4

implementing, or conducting future elections for the Pasco City Council under the

5

current at-large election method or any other election method that violates Section

6
7
8
9
10
11
12
13

2 of the Voting Rights Act.
9.

The Court reserves jurisdiction of this matter to determine and impose

the appropriate election system to remedy the current violation of Section 2 of the
Voting Rights Act.
10.

It is further ordered, that to provide for effective opportunities for full

participation in the 2017 municipal election cycle, the Parties shall, in good faith

14
15

efforts, meet and confer no later than September 15, 2016 to determine whether the

16

Parties can agree upon a remedial option for compliance with Section 2 of the

17

Voting Rights Act. If the Parties cannot reach agreement, the Parties shall each

18
19

submit their proposed remedial districting plans to the Court on or before October

20

15, 2016. The Parties shall respond to the proposed remedial plans on or before

21

November 1, 2016. The Parties shall present a reply regarding the proposed

22
23
24
25

remedial plans by November 15, 2016. A hearing before this Court on the
proposed remedial redistricting plans may be set by the Court.
11.

No attorney fees or costs are awarded for this liability phase of the

26
27

case or work performed by Plaintiff prior to the filing of the Complaint; however,

28
PARTIAL CONSENT DECREE 11

1
2

the Court reserves the award of reasonable attorney fees and costs for the remedial
phase of this case.

3
4

ENTERED THIS 2nd day of September, 2016.

5
6

Lonny R. Suko
__________________________________
LONNY R. SUKO
SENIOR U.S. DISTRICT COURT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Presented by:
/s/Leland B. Kerr
Leland B. Kerr, WSBA No. 6059
[e-mail]
KERR LAW GROUP
7025 W. Grandridge Blvd., Suite A
Kennewick, Washington 99336
Telephone: [phone]
Facsimile: [phone]
/s/John A. Safarli
John A. Safarli, WSBA No. 44056
[e-mail]
FLOYD, PFLUEGER & RINGER, P.S.
200 W. Thomas Street, Suite 500
Seattle, Washington 98119
Telephone: [phone]

22
23

Attorneys for Defendants, City of Pasco et al.

24
25
26
27
28

/s/Emily Chiang
Emily Chiang, WSBA No. 50517
[e-mail]
La Rond Baker, WSBA No. 43610
[e-mail]
PARTIAL CONSENT DECREE 12

1
2
3
4
5
6
7
8
9
10
11
12

Breanne Schuster, WSBA No. 49993
[e-mail]
AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, Washington 98164
Telephone: [phone]
/s/Brendan V. Monahan
Brendan V. Monahan, WSBA No. 22315
[e-mail]
STOKES LAWRENCE VELIKANJE
MOORE & SHORE
120 N. Naches Avenue
Yakima, Washington 98901-2757
Telephone: [phone]
Attorneys for Plaintiff, Bertha Aranda Glatt

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PARTIAL CONSENT DECREE 13