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Case 2:12-cv-03108-TOR
Document 164
Filed 03/19/15
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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ROGELIO MONTES, et al.,
NO: 12-CV-3108-TOR
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Plaintiffs,
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ORDER DENYING
RECONSIDERATION
v.
CITY OF YAKIMA, et al.,
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Defendants.
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BEFORE THE COURT are FairVote’s Motion for Reconsideration (ECF
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No. 156) and Defendants’ Motion for Reconsideration (ECF No. 162). Defendants
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are represented by Francis S. Floyd. FairVote is represented by Christopher G.
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Emch and Andrew P. Spencer. This matter was submitted for consideration
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without oral argument. The Court has reviewed the briefing, the record, and files
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herein, and is fully informed.
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BACKGROUND
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On August 22, 2014, the Court granted Plaintiffs’ motion for summary
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judgment, concluding that the existing electoral system in Yakima violated Section
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2 of the Voting Rights Act, 52 U.S.C. § 10301, and ordered the parties to jointly
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file a proposed remedial districting plan. ECF No. 108. The parties did not come
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to agreement on a districting plan and submitted opposing plans. ECF Nos. 113;
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117. FairVote proposed a third remedial plan as amicus curiae. ECF No. 126. On
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February 17, 2015, the Court issued a Final Injunction evaluating the proposed
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plans and adopting Plaintiffs’ plan as the only plan which effectively remedied the
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Section 2 violation. ECF No. 143. Defendants and FairVote now request the
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Court to reconsider the Final Injunction. ECF Nos. 156; 162.
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DISCUSSION
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Federal Rule of Civil Procedure 59(e) allows a court to consider a motion to
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alter or amend a judgment filed within twenty-eight days of the entry of judgment.
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“Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is
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presented with newly discovered evidence, (2) the district court committed clear
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error or made an initial decision that was manifestly unjust, or (3) there is an
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intervening change in controlling law.” Zimmerman v. City of Oakland, 255 F.3d
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734, 740 (9th Cir. 2001). In such a motion, a district court need not consider legal
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arguments made for the first time or facts introduced for the first time unless they
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were previously unavailable. Id. Federal Rule of Civil Procedure 60(b)(6) allows
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a court to relieve a party from a judgment for “any other reason that justifies
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relief.” Relief under Rule 60(b)(6) requires the movant to show “extraordinary
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circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
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In the Court’s November 2, 2012, scheduling order, the Court notified the
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parties that “Motions to Reconsider are disfavored. Motions must show manifest
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error in the prior ruling or reveal new facts or legal authority which could not have
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been brought to the Court’s attention earlier. . . . No response to a motion for
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reconsideration shall be filed unless required by the Court. No motion for
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reconsideration shall be granted without such a request by the Court.” ECF No. 24
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at 7–8. For the following reasons, the Court denies the motions to reconsider
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without requesting a response from Plaintiffs.
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Defendants assert first that the Court’s Final Injunction was manifestly
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unjust because it requires three council members to stand for election two years
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earlier than they would have under the current, unconstitutional electoral system.
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The Court thoroughly considered the equitable factors in reaching its conclusion.
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While Defendants may disagree with the Court’s evaluation, they have not shown
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that the Court’s conclusion was unjust given the compelling remedial goal of
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providing a complete remedy to the Section 2 violation before the upcoming
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elections.1 Defendants’ propose a new alternative method of implementation to
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allow three council members who have been elected under a flawed system to
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retain their seats for two more years. ECF No. 162 at 4–5 (proposing that Mayor
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Cawley and Council members Ettl and Lover remain through 2017 and that
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districts 2, 4, and 7 would then be up for election). The Court rejects this proposal
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because that would effectively bar residents in three newly created districts
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(districts 2, 4, and 7) from even participating in the electoral process for another
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two years. That is not an effective remedy to the long standing Section 2 violation
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here.
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Defendants assert second that the Court clearly erred by not sua sponte
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incorporating a primary into Defendants’ proposed at-large electoral scheme. ECF
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No. 162 at 6–8. Defendants contend that this would have created an electoral
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The Court notes Defendants’ concern that “the available time to introduce
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Plaintiffs’ plan is short.” ECF No. 162 at 5. The Court shares this concern and
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directs Defendants’ attention to the Court’s order that “Defendants shall take all
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steps necessary to implement the seven single-member district plan” before the
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August primaries. ECF No. 34 at 34–35. The Court has issued this Order in an
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expedited manner to provide the City with the maximum opportunity to prepare for
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the upcoming elections.
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system that conforms to Washington law. FairVote joins this argument in regard
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to its own proposed at-large electoral system. ECF No. 156 at 4–5. Neither party
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presented this argument in their proposed remedy or in their responses to
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Plaintiffs’ contention that a primary is required by Washington law. The Court
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will not consider arguments presented for the first time in a motion to reconsider.
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Zimmerman, 255 F.3d at 740. Moreover, including a city-wide primary for
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Defendants’ proposed two-seat at-large district would result in a virtually identical
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electoral system to the current system which the Court concluded
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unconstitutionally diluted the Latino vote. See ECF No. 108. As such, it would
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not be an effective remedy to the Section 2 violation, but would simply perpetuate
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the dilution of the Latino vote.
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Third, Defendants and FairVote contend the Court did not properly apply the
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threshold of exclusion to their proposed at-large electoral systems. ECF Nos. 156
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at 5–7; 162 at 8–10. They argue that the Court did not factor in how cross-over
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voting would reduce the Latino vote required to elect Latino-preferred candidates.
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In reaching its conclusions in the Final Injunction, the Court considered, but
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rejected, this argument. In this litigation, the parties have presented evidence that
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cross-over voting has occurred in Yakima, but the estimated percentage of cross-
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over voting varies greatly. Defendants and FairVote failed to marshal sufficiently
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consistent and persuasive evidence to show that cross-over voting is so prevalent in
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Yakima that it will necessarily afford Latinos a genuine opportunity to elect a
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candidate. Isolated results from two at-large elections in which a Latino candidate
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came in second place are too uncertain for the Court’s remedy to be premised upon
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them. The plans presented by Defendants and FairVote require a substantial
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amount of cross-over voting in order to be effective remedies to the Section 2
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violation.2 The record does not clearly establish such cross-over voting occurs on a
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regular basis at a sufficiently high rate. The Court concluded that the rates were
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too variable to be the deciding factor in determining an effective remedy. The
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parties have not shown the Court clearly erred in reaching this conclusion.
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Finally, FairVote contends that the Court clearly erred in concluding that
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FairVote’s proposed plan was not an effective remedy because the district map
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provided to represent that plan did not include a majority Latino CVAP district.
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ECF No. 156 at 8–9. FairVote argues that it “unequivocally proposed that one of
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the single-seat districts be ‘majority-Latino.’” Id. at 8. FairVote also argues that it
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was the City, not FairVote, who drew the map submitted to the Court, and that a
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majority Latino CVAP district could be drawn. Id. at 8–9. However, no such map
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was submitted to the Court in the substantial amount of briefing related to the
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proposed plans. The Court will not consider new evidence of a potential district
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This holds especially true for Defendants’ proposed two-seat at-large system.
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that could have, but was not presented prior to the Final Injunction—a motion to
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reconsider is not an opportunity to submit potential remedial maps. See
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Zimmerman, 255 F.3d at 740 (“[A] party that fails to introduce facts in a motion or
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opposition cannot introduce them later in a motion to amend by claiming that they
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constitute ‘newly discovered evidence’ unless they were previously unavailable.”).
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Moreover, providing a majority Latino CVAP district would fix only one of the
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problems the Court identified with FairVote’s proposed plan. Without also
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addressing the other problems, a proposed plan with a majority Latino CVAP
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district would still not be a complete remedy for the Section 2 violation.
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Defendants and FairVote have not established that the Court committed
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clear error in the Final Injunction. They have also not established extraordinary
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circumstances warranting relief from the Final Injunction and Judgment.
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ORDER DENYING RECONSIDERATION ~ 7
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ACCORDINGLY, IT IS HEREBY ORDERED:
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1. FairVote’s Motion for Reconsideration (ECF No. 156) is DENIED.
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2. Defendants’ Motion for Reconsideration (ECF No. 162) is DENIED.
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3. The hearing set for April 16, 2015 without oral argument is vacated as
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moot.
The District Court Executive is hereby directed to enter this Order and
provide copies to counsel.
DATED March 19, 2015.
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THOMAS O. RICE
United States District Judge
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