[00:00:00] Speaker 02:
Yes, your honor.

[00:00:01] Speaker 02:
Good morning, your honors, and may it please the court.

[00:00:04] Speaker 02:
I do plan to try to reserve five minutes of my time for rebuttal.

[00:00:09] Speaker 02:
As my colleagues stated, my name is Caleb Acker, and I'm here today on behalf of Mr. Garcia in his appeal in this final case of the day.

[00:00:19] Speaker 02:
Both the state and Mr. Garcia agree were this court or the Supreme Court to reverse Soda Palmer on liability

[00:00:29] Speaker 02:
and vacate the injunction against LD-15, Mr. Garcia's case should be remanded for continuation of proceedings below on the merits.

[00:00:40] Speaker 02:
Both parties agree there.

[00:00:43] Speaker 02:
Where the parties disagree is what that means for this case right now.

[00:00:48] Speaker 02:
The state's position as we understand it

[00:00:50] Speaker 02:
is that the reversal in Palmer potentially would unmoot this case.

[00:00:56] Speaker 02:
In other words, the case is dead now but would come back to life.

[00:01:01] Speaker 00:
Because then Legislative District 15 would be back on the table?

[00:01:05] Speaker 02:
Yes, that is their view, that it would be unmooted.

[00:01:09] Speaker 02:
Our view is that that means it's not moot

[00:01:12] Speaker 02:
at all.

[00:01:13] Speaker 02:
There's no such thing as unmootness.

[00:01:16] Speaker 02:
Under the Supreme Court's law, if it's possible that a court could grant relief, then a case is not moot.

[00:01:25] Speaker 02:
And under the Morvey-Harper principle that we have cited,

[00:01:29] Speaker 02:
the Supreme Court stated if they had reversed in that case, the map would have sprung back as they phrased it, again, take effect.

[00:01:38] Speaker 02:
And so we say similarly here, if the injunction were lifted, LD 15 and its harms alleged by Mr. Garcia would spring back into effect.

[00:01:49] Speaker 00:
So if that's the case, and I understand you can't unmoot a case argument,

[00:01:56] Speaker 00:
Is there any reason why this case, that is Garcia, shouldn't be withdrawn from submission pending the outcome of the Palmer case?

[00:02:09] Speaker 02:
Your honor, thank you for that question, and I did intend to spend the majority of my argument on that exact question today.

[00:02:14] Speaker 02:
So we have about six or seven arguments on that exact point.

[00:02:19] Speaker 02:
And we think, and to be clear, the state has asked in the past for Garcia to be put in abeyance pending the result in Soto Palmer.

[00:02:28] Speaker 02:
They raised it in some motions practice.

[00:02:30] Speaker 02:
This court did not rule on that, and our position is that

[00:02:34] Speaker 02:
Obeyance is or withholding it for submission However, you want to phrase it is not the correct way to go here for the following reasons first of all It is if the case is not moot this court or depending on the procedure the court below do have jurisdiction as the Supreme Court has noted

[00:02:56] Speaker 02:
the federal courts do have a virtually unflagging responsibility to hear cases within their jurisdiction.

[00:03:02] Speaker 02:
So not hearing Mr. Garcia's case would be the exceptional case.

[00:03:06] Speaker 00:
And we don't... Well, that doesn't mean that his case wouldn't be heard.

[00:03:09] Speaker 00:
We do this all the time where there's leapfrogging of cases based on issues.

[00:03:17] Speaker 00:
So it's not that his case wouldn't be heard, but the shape of his case

[00:03:24] Speaker 00:
is going to change or not change, right?

[00:03:27] Speaker 02:
I agree with that, Your Honor, but there are problems to delaying it.

[00:03:33] Speaker 00:
What would the problems be?

[00:03:35] Speaker 02:
Sure.

[00:03:35] Speaker 02:
As I mentioned, if LD15 snaps back, then the harm to Mr. Garcia snaps back that he's alleged he lives in a racially gerrymandered district

[00:03:44] Speaker 02:
and he would be voting in a racially gerrymandered district.

[00:03:49] Speaker 02:
And if this court were to delay his case in that way, those harms could snap back at an unspecified time in the future that could leave Mr. Garcia flat-footed for, say, the election in 2026 or 2028.

[00:04:05] Speaker 02:
And to the point that we're talking about, potentially... Maybe I'm not understanding why that would be the case.

[00:04:12] Speaker 02:
Well, for a potential reversal in Soto Palmer, that would bring LD15 back.

[00:04:18] Speaker 02:
The fact remains is that could be a long ways out, Your Honor.

[00:04:22] Speaker 00:
Well, I don't know.

[00:04:23] Speaker 00:
What if we did it tomorrow?

[00:04:26] Speaker 02:
Your Honor, in that case, if you reverse Soto Palmer tomorrow on liability, then Mr. Garcia's case absolutely should continue below.

[00:04:37] Speaker 02:
That is a reversal in Soto Palmer such that

[00:04:40] Speaker 00:
What if we affirmed tomorrow?

[00:04:43] Speaker 02:
We affirmed tomorrow the interveners in Soto Palmer would have the choice to take that to the Supreme Court and if I could spin out a hypothetical, let's say that this court dismissed on standing in Soto Palmer and the interveners took that to the Supreme Court.

[00:04:57] Speaker 02:
The Supreme Court granted cert on standing and then remanded back to this court and this court then affirmed on merits or remedy and that went to the Supreme Court

[00:05:08] Speaker 02:
You can see I'm spinning out the hypothetical to see that this could be a long time in the future that Mr. Garcia's case would just be sitting there.

[00:05:15] Speaker 02:
And the secretary did file a brief in this case to point out we're talking about future elections and they are a coming.

[00:05:23] Speaker 02:
I mean it's 2026.

[00:05:24] Speaker 00:
But what happens as a practical matter to LD15 during all this time?

[00:05:30] Speaker 00:
Let's take your second scenario where

[00:05:35] Speaker 00:
There's a standing issue, goes to the Supreme Court, comes back.

[00:05:38] Speaker 00:
Then there's a liability issue, goes to the Supreme Court, and comes back.

[00:05:43] Speaker 00:
LD 15 is still gone, right?

[00:05:46] Speaker 02:
It is enjoined, Your Honor.

[00:05:48] Speaker 00:
Yes, it's enjoined.

[00:05:49] Speaker 00:
So then what happens to your case?

[00:05:53] Speaker 00:
If it's an enjoined law, what are you going to go to trial?

[00:05:59] Speaker 00:
What are you going to go to court on against a district that's enjoined?

[00:06:05] Speaker 02:
Well, your honor, on remand, if it remained and joined on remand, Mr. Garcia could press his claims.

[00:06:13] Speaker 00:
I do think that a... And just let me understand what are those claims, just so I can understand.

[00:06:19] Speaker 02:
Well, Your Honor, it would still be against LD 15.

[00:06:23] Speaker 02:
And there's two reasons that I think what you brought up would not be a problem to address your question exactly.

[00:06:31] Speaker 02:
Number one is the specific facts of this case procedurally, which is if you did remand, it is quite clear what would happen, which is that the district court, a majority of the panel, would enter an order

[00:06:47] Speaker 02:
finding that race did not predominate.

[00:06:50] Speaker 02:
They made very clear they would do so, and Judge Van Dyke would likely resubmit his dissent in full.

[00:06:57] Speaker 02:
For that reason, since we already had a joint trial, there would be no fact finding, and it would be purely legal.

[00:07:03] Speaker 02:
And so the question of the fact that LD15 remains enjoined would not be a particular issue in the case on remand for that reason.

[00:07:13] Speaker 03:
Would there be anything that would prevent you, let's say that this court said, you know what, LD15 is enjoined, this case is moot.

[00:07:22] Speaker 03:
Is there anything that would prevent your client from filing a new lawsuit, let's say 15 snaps back.

[00:07:28] Speaker 03:
Is there anything that would prevent your client from filing a new lawsuit at that time?

[00:07:32] Speaker 03:
you're saying dismisses moot and then ld15 does snap right couldn't they just file a new lawsuit then the harms are the same harms now you may even have more information to put into your complaint your honor i agree that is a possibility that my client absolutely could do i would have to move to amend or file a whole new lawsuit right

[00:07:54] Speaker 02:
But we think that it can go now simultaneously.

[00:07:57] Speaker 02:
And for the reasons that I said, pushing it off into the future makes it uncertain of whether or not my client would be forced to, say, vote in a racially gerrymandered district.

[00:08:07] Speaker 00:
But during the whole time that the process plays out, your client is going to vote or not vote in the district in which he is, right?

[00:08:22] Speaker 02:
Yes, Your Honor.

[00:08:22] Speaker 00:
So I'm still having trouble understanding, you know, you say, well, one possibility is you could say, well, it's not moot, therefore we remand.

[00:08:35] Speaker 00:
And then the two judges who've stated their view you think would probably reiterate their view as well as the dissenting judge.

[00:08:47] Speaker 00:
And they would say race didn't predominate, right?

[00:08:51] Speaker 00:
And you wouldn't have a new trial, right?

[00:08:55] Speaker 00:
There wouldn't be a trial on that.

[00:08:57] Speaker 00:
You're saying that's purely a legal issue.

[00:08:59] Speaker 02:
Right.

[00:09:00] Speaker 02:
The trial that we held covered both predominance and strictly correct.

[00:09:03] Speaker 02:
It's sufficient.

[00:09:04] Speaker 02:
Correct.

[00:09:04] Speaker 00:
Yes.

[00:09:04] Speaker 00:
Covered it.

[00:09:04] Speaker 00:
So you don't need a new trial.

[00:09:07] Speaker 00:
You just need a determination not based on mootness.

[00:09:13] Speaker 02:
Yes, Your Honor.

[00:09:14] Speaker 03:
And the reason I asked the question was there's nothing procedurally, like some law of the case doctrine or something like that, that would prevent your client from pursuing this case if 15 comes back, that you're aware of.

[00:09:25] Speaker 03:
I'm going to ask the state the same question, that there's no procedural bars that would prevent your client from refiling if that were a scenario.

[00:09:32] Speaker 02:
Your Honor, not at this time that we know of.

[00:09:34] Speaker 02:
But as I stated, our desire is to go now.

[00:09:37] Speaker 03:
No, I understood.

[00:09:39] Speaker 03:
I just wanted to make sure that there were no other

[00:09:43] Speaker 03:
roadblocks for your client to pursue this claim against 15.

[00:09:46] Speaker 03:
If 15 snaps back, to use your language, I think is a good way to put it, that there's no civil procedure trick that I haven't thought of that would prevent you from litigating if it snaps back.

[00:09:57] Speaker 03:
Well, Your Honor, if there is, I haven't thought of it either.

[00:10:00] Speaker 03:
Okay, good.

[00:10:00] Speaker 03:
I just want to make sure I understand.

[00:10:02] Speaker 00:
Let me ask this.

[00:10:03] Speaker 00:
If you file a new lawsuit, does it go back to the same three-judge panel?

[00:10:12] Speaker 02:
Your Honor, I don't know if we move to amend the complaint.

[00:10:16] Speaker 00:
That's easy.

[00:10:17] Speaker 02:
Yeah, yeah.

[00:10:17] Speaker 02:
Then it would.

[00:10:18] Speaker 00:
Correct.

[00:10:19] Speaker 00:
But I'm asking if you filed a new lawsuit.

[00:10:23] Speaker 02:
I think that would be up to the Ninth Circuit in setting the three judgements.

[00:10:29] Speaker 02:
I think they would be able to set a new panel if desired.

[00:10:35] Speaker 02:
That's to my understanding.

[00:10:38] Speaker 02:
Your honors, I see that I'm into my rebel time.

[00:10:41] Speaker 02:
I'd like to reserve the rest if there are no more questions and turn it over to the state.

[00:10:45] Speaker 03:
Thank you, Cass.

[00:11:07] Speaker 01:
May it please the court, Christina Sepe on behalf of the state of Washington.

[00:11:10] Speaker 01:
The three-judge district court correctly dismissed Mr. Garcia's equal protection challenge to LD-15 as moot.

[00:11:17] Speaker 01:
That's because Mr. Garcia asked that LD-15 be enjoined and redrawn.

[00:11:22] Speaker 01:
But because of the Soto Palmer decision in validating LD 15 that district no longer Existed and there was no remaining relief that the Garcia district court could give this court should affirm the dismissal But judge McKeon I'd like to go to your question about whether or not this court could just hold this case while it decides Soto Palmer and the state agrees that the court can do that and

[00:11:43] Speaker 01:
And if it affirms in Soto Palmer, it just doubly makes clear that this case is moot.

[00:11:48] Speaker 01:
There's no relief that could be given.

[00:11:50] Speaker 01:
But agree that if the court does reverse in Soto Palmer, that it should reverse in this case to litigate LD15 and the equal protection challenge that Mr. Garcia has brought.

[00:12:00] Speaker 00:
One of the things that they asked in their complaint is they wanted a new valid plan that doesn't violate the equal protection clause.

[00:12:11] Speaker 00:
It seems to me you could argue that

[00:12:14] Speaker 00:
A claim for a new valid plan is different from an invalidated 15.

[00:12:21] Speaker 00:
And that could be a claim they would pursue.

[00:12:23] Speaker 00:
Why not?

[00:12:24] Speaker 01:
That's true, Your Honor.

[00:12:25] Speaker 01:
They did ask that the plan did not violate the equal protection clause.

[00:12:30] Speaker 01:
And that's precisely what happened here with a district court who found a section two violation and remedied that section two violation.

[00:12:39] Speaker 01:
We know from the Supreme Court's precedence, like in Allen versus Milligan,

[00:12:43] Speaker 01:
that that kind of race consciousness is permissible because the VRA itself requires the consideration of race.

[00:12:49] Speaker 01:
And so it follows that a remedy to a section two violation would also consider race in such a way that would not violate the equal protection clause.

[00:12:58] Speaker 01:
But I'd like to also focus on the other request for relief that Mr. Garcia had made in his complaint at ER 124.

[00:13:04] Speaker 01:
And that's that he wanted an injunction that permanently enjoined the state from enforcing or giving effect to the boundaries of LD 15.

[00:13:12] Speaker 01:
And following the Soto Palmer liability order, there's no longer that LD 15 to enjoin.

[00:13:17] Speaker 01:
He also wanted declaratory relief that LD-15 is an illegal racial gerrymander.

[00:13:23] Speaker 01:
But because LD-15 had been invalidated, all that would be left for the three-judge district court below would be to give an advisory opinion on that.

[00:13:31] Speaker 01:
And so for those reasons, the case is good.

[00:13:32] Speaker 00:
Well, he would say, well, yeah, they might have invalidated LD-15, but nothing is final yet.

[00:13:43] Speaker 00:
So why should he be saddled?

[00:13:46] Speaker 00:
with that determination when he can go forward in a separate lawsuit.

[00:13:51] Speaker 01:
So we're looking at whether or not there's jurisdiction through the pendency of the case, and at the time that the district court rendered its decision in Garcia, there was no longer an LD-15 for it to make decisions over.

[00:14:03] Speaker 01:
So I agree with Judge Owens that there are other opportunities for Mr. Garcia should LD-15 snap back or spring back.

[00:14:11] Speaker 01:
That might be through filing a new complaint against the district.

[00:14:15] Speaker 01:
It may be moving to reopen the judgment in a Rule 60B motion.

[00:14:20] Speaker 01:
to amend the complaint, but none of that has happened.

[00:14:24] Speaker 03:
At this point, you don't see any procedural bars to that?

[00:14:29] Speaker 00:
No, Your Honor.

[00:14:30] Speaker 03:
Okay, just so, okay.

[00:14:31] Speaker 03:
These are videoed.

[00:14:32] Speaker 03:
I just want to make sure we're clear about that.

[00:14:34] Speaker 03:
Okay.

[00:14:34] Speaker 00:
What about if we were determined that it's moot at this stage, what about remanding for possible amendment of the pleadings?

[00:14:50] Speaker 00:
Because I don't know what might else be in their head about possible claims.

[00:14:55] Speaker 01:
I think one obvious one that they insist maintains Mr. Garcia's remedy or injury is his disagreement with the remedial map that the district court had entered and that makes his injury persist through the pendency of this case, but very clearly he has made no allegations to that remedial map.

[00:15:15] Speaker 00:
But what if we remanded with the opportunity to amend?

[00:15:19] Speaker 01:
I think that's a possibility your honor, but again we're looking at whether or not the district court was correct and whether or not the case was live and clearly at the time that it had rendered its decision the case was not live based off of the relief that Mr. Garcia had specifically requested in his complaint again at ER 124.

[00:15:37] Speaker 01:
So Mr. Garcia likens this case to Moore v. Harper, which the Supreme Court decided a few years ago.

[00:15:45] Speaker 01:
But that case is markedly different from this one.

[00:15:48] Speaker 01:
They're the only way that the petitioners could obtain the relief that they requested, that is reinstatement of the 2021 redistricting map.

[00:15:55] Speaker 01:
was if the Supreme Court came to a decision regarding their elections clause claim.

[00:16:01] Speaker 01:
But here, Mr. Garcia has already obtained the relief that he wanted.

[00:16:04] Speaker 01:
That is, that the district he challenged would not be used in future elections.

[00:16:09] Speaker 01:
And that's what makes this case different.

[00:16:11] Speaker 00:
He also says that, in effect, he still segregated on the basis of race.

[00:16:18] Speaker 00:
So if you looked at the North Carolina v. Covington case, that could be

[00:16:24] Speaker 00:
a live claim.

[00:16:26] Speaker 00:
Why wouldn't that remain a non-moot claim for him individually?

[00:16:32] Speaker 01:
We disagree based off of how this remedial map process played out.

[00:16:37] Speaker 01:
We're looking at a decision, a different decision maker.

[00:16:40] Speaker 01:
That is the Soto Palmer District Court creating a remedial map with different motivations and different purposes.

[00:16:48] Speaker 01:
Those are highly fact-intensive, sensitive inquiries that a district court undertakes and looking at whether or not rates are dominated.

[00:16:55] Speaker 01:
Mr. Garcia's allegations were to the redistricting commission, to the legislature in how LD15 was formulated.

[00:17:02] Speaker 01:
There are no allegations as to LD 14 and the process that the district court undertook in You know entering a remedy to solve the section 2 violation.

[00:17:11] Speaker 01:
Those are very Two different decision makers at two different motivations and reasons And that's what makes this case not live because none of those allegations had been made to the remedial district

[00:17:25] Speaker 01:
If the court has no further questions, we ask that the court affirm the dismissal and the state would not object to this court holding this case in advance while it first decides Soto Palmer.

[00:17:38] Speaker 01:
Thank you.

[00:17:40] Speaker ?:
Thank you.

[00:17:46] Speaker 02:
I appreciate the state not taking all of its time.

[00:17:49] Speaker 02:
I cannot make the same promise, Your Honor.

[00:17:51] Speaker 02:
A few points in rebuttal.

[00:17:53] Speaker 02:
The state once again said the sentence LD 15 no longer exists.

[00:17:57] Speaker 02:
They said that in their brief.

[00:17:59] Speaker 02:
And I just want to make the point that an enjoined law still exists in enjoined form.

[00:18:05] Speaker 02:
It's not like it's void under the Constitution such that it's gone from the books.

[00:18:09] Speaker 02:
It's enjoined and can snap back if the injunction is lifted.

[00:18:13] Speaker 02:
So I want to make that clear that is the nature of an injunction against a law as in this place.

[00:18:19] Speaker 02:
Secondly, going on to the question of holding abeyance or refiling at a later time, my client does have a concern about the timing of that in terms of the time from when the refiling would happen or the abeyance would stop and then relief there, whereas if it continued right now, our view is the time could be quicker for relief.

[00:18:42] Speaker 02:
And so that is one reason that we would prefer to keep going on the route that we are going down.

[00:18:48] Speaker 02:
Beyond that, the state doubled down on this idea of unmootness.

[00:18:53] Speaker 02:
We just don't think that that's a concept, that a case can be not alive and then alive.

[00:18:59] Speaker 02:
And the state also missed the point of Moore v. Harper.

[00:19:04] Speaker 02:
The point that we are making, as the Supreme Court said in Moore v. Harper, is that a decision of the court could snap a map back into effect

[00:19:15] Speaker 02:
such that the harms are also there so that the case is not moot.

[00:19:19] Speaker 02:
And the court said in Morby Harper, were we to reverse, they ended up affirming, but were we to reverse, then the map would again take effect.

[00:19:28] Speaker 02:
And that's the situation here that we are arguing is why.

[00:19:32] Speaker 00:
So what do you think is the best case for this proposition?

[00:19:36] Speaker 00:
Well, they're saying that there's a judgment of the district court.

[00:19:42] Speaker 00:
You're saying, well, it's not a final, final judgment because we haven't gone to the Supreme Court or even to the Ninth Circuit and back at this point.

[00:19:51] Speaker 00:
So what's your best case for the proposition that only a final, final judgment could moot other proceedings?

[00:19:59] Speaker 02:
Your Honor, we pointed in our papers to a couple of lower court cases that talk about final or ultimate, and a secondary source that talks about the ultimate judgment.

[00:20:09] Speaker 02:
But we think the language in Morvey-Harper itself, where they say through the federal, the appellate process.

[00:20:16] Speaker 02:
And the idea we take that to mean is the appellate processes in the federal courts is District Court, Ninth Circuit, Supreme Court.

[00:20:23] Speaker 02:
And once the Supreme Court fully speaks on the fate of LD-15, that's it.

[00:20:29] Speaker 02:
That's the way our constitutional system works.

[00:20:31] Speaker 02:
So we're using Morvey-Harper to defend what we think to be a pretty baseline logical proposition that when the Supreme Court would speak on the injunction against LD-15, that is the final word on the question.

[00:20:46] Speaker 00:
If we were to determine the case is moot but remanded

[00:20:53] Speaker 00:
in case there were supplemental or amended pleadings.

[00:20:58] Speaker 00:
Are there claims or supplemental claims that would be brought in an amended pleading if we were to determine this is moot now?

[00:21:08] Speaker 02:
By my client?

[00:21:09] Speaker 00:
Yes.

[00:21:09] Speaker 02:
Your Honor, I can't speak exactly as to what my client would choose to do if it were remanded in that.

[00:21:15] Speaker 00:
Let's just imagine your hypothetical client or you're the lawyer.

[00:21:20] Speaker 00:
Sure.

[00:21:21] Speaker 00:
Are there claims?

[00:21:22] Speaker 00:
Are there potential

[00:21:23] Speaker 00:
Claims for amendment or your dad also have already been encompassed in the lawsuit Your honor it depends if you're referring to the claim against LD 15 or if it would be remanded for a claim against say the remedial district It's just if we were to say At this stage, it's moot But it's remanded a la New York rifle to see if there's any amendments

[00:21:47] Speaker 02:
Your Honor, I do not think there would be any amendments in the claim against LD15 in the sense that Mr. Garcia asked for the declaratory judgment and the relief of the Equal Protection Clause and an injunction against LD15, and then we had a full trial on those issues.

[00:22:04] Speaker 02:
But as to the remedial map, obviously that is a full... He's never had that chance to argue that point.

[00:22:10] Speaker 02:
Correct, Your Honor.

[00:22:13] Speaker 02:
I see my time is coming to an end.

[00:22:14] Speaker 02:
If there are any other questions?

[00:22:17] Speaker 02:
No questions.

[00:22:19] Speaker 02:
Thank you very much, Your Honors.