The Yakima City Council voted 5-2 today to file an appeal in the ACLU voting rights case.   The head shaking, finger wagging, insult parade has started in earnest so allow me to explain why -FROM MY PERSPECTIVE -we did what we did and what we hope the outcome will be.

TIM SLOAN/AFP/Getty Images

Most of us still have the courage of our original conviction.  We still believe in our case. The ACLU is nothing to play around with.  If you are going to go to court against them you better have a good case and we feel we did and we do but it is complex and not easily understood by most of us non-Lawyer types!

So-- The problem is that there isn’t definitive case law to automatically hand us a victory. An outdated 60 year old standard needs to be changed.

The judge could have used the fact that there is no definitive case law in one of two ways.  He could have acknowledged the truth in our argument about changes in society just as was done in the 1960’s and looked for a precedent setting solution, as they did in the 60’s, with the 14th amendment –one person-one vote parameters in mind  –or— he could do what he did, encouraged by the Obama Justice Department, take the easy way out by saying there was no precedent - so we had no case.  Fair enough. He held the line for those who appointed him.  But his decision to allow the status quo doesn’t change the fact that the country’s status quo - current demographic trends will result in more and more cases such as ours. **More on that out of Texas in a moment.

So what is our case?  The ACLU charged the council with a violation of section 2 of the Voting Rights Act. There are 3 factors required to prove such a case.  They are called “gingles factors” based on a previous case Thornburg V. Gingles.  To win such a case the protected minority – in our case Hispanics-

1.) must vote as a block or favor the same candidates a majority of the time

2.)the white vote is sufficient to cancel out the block voting

3.)and demographers must be able to draw district lines to a degree that they can create a reasonable district that has a 51% Hispanic population.

If that 3 phase circumstance exists, you are in violation….even if you didn’t intend to do it, just the potential of it makes you guilty.

Our case was a counter claim that the Hispanic population in Yakima was not so compact and that a demographer could not draw reasonable lines and make such a 51% Hispanic district --without violating the 14th Amendment to the Constitution.

The 14th Amendment provides the principle of one person/one vote.  That meant each vote had to be equal in its impact with any other vote from any other district and the way to reach that outcome was determined to be -- an evenly divided population between districts.

This video clip provides the a fantastic history and demonstrates the tremendous impact on the nation of the one person/one vote principle.

Remember, before the first reapportionment cases in the 1960‘s the country was way out of whack as to district populations and votes counting equally.  The voting rights act and the supreme court cases at that time provided the means to electoral equality.  The voting rights act worked well 100 years after the civil war to reapportion African-American and white voters but It is our contention that we are now out of whack again.

This time, some 60 additional years later, the issue is Hispanic and white voters.  The problem as we see it in terms of Electoral Equality is due to the inconsistent demographic realities of large non citizen populations.  In the ACLU’s remedy for Yakima we have, for example, two districts of nearly equal population but the white majority district has twice as many citizen voting age people as does the Hispanic majority district .  That means the voters in the Hispanic majority district carry twice the impact of the white majority district voters and that is a violation of one person/one vote.   The judge has in effect, ordered a constitutional violation.

Remember, the original fix for the conditions of the time (1960’s) was to simply mandate evenly populated districts.  BUT - Times have changed and even populations numbers no longer automatically guarantee the equality of one person/one vote.  With today’s Hispanic population makeup, (2010+)  it takes even numbers of Citizen Voting Age People  (CVAP) to insure electoral equality.  That cannot be reached given the actual population spread in Yakima.

So if all that is true, why didn’t the council win?

Simple.  The solution for the post civil war problem was to fill the districts with “equal numbers of people”  -and- nobody was visionary enough to anticipate millions of migrating Hispanics, so “Equal numbers of People” was sufficient for then and has became the accepted standard now.

Under that standard, the judge in our case didn’t have to consider Electoral Equality.  He could have, but he chose not to.  We think the Supreme Court will see it differently.

Just as that decisions of the 1960’s changed the country forever,  it’s now time to change again, to reflect the realities of today’s Hispanic demographics.  Here is what Chief Justice John Roberts said after last year’s high court decision in Shelby vs. Holder, another Voting Rights case.  “Our country has changed, while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

The “current conditions”  in our case is a Hispanic population distribution that results in a federal judge’s remedy in which one district’s vote counts nearly twice as much as another’s…that is a 14th Amendment violation.  The judge says it’s an acceptable byproduct of using the total population standard .  We say the total population standard must now be changed to Citizen Voting Age Population to insure the constitutional protection for one person/one vote.

We aren’t alone in that perspective.  In a case out of Texas, the state and the governor are being sued over electoral equality in districting for the state’s 31 state senators.  Those bringing the case in Evenwel v. Abbot were turned down on the same basis of “evenly distributed total population standard”  with the same result of violating one person/one vote.

(they were also the successful legal team in the Shelby vs Holder case that rocked section five of the Voting Rights Act)

Because it was a 3 judge panel that ruled in the case, the Texas case can bypass the circuit appeals court and go right to the steps of the supreme court.  The supreme court is expected to decide if they will hear the case by the end of May.

How does that affect us?

By filing our appeal we can lend credence to the Texas case claim that this is a widespread and growing situation that needs to be addressed once and for all by writing supportive briefs.

We keep our options open as we watch the progress of the Texas case.  The cost to appeal is $600 bucks up front…no more money than that need be spent until possibly late summer to move our case forward IF condition warrant.  So during the next few months we’ll see how the high court treats Texas.  If they get shot down, then we would expect the same since our issues are the same, at which point we would cancel our appeal and settle up.    If the court votes to hear the Texas case it reinforces our  decision to continue which will cost about 100-thousand.  Do we spend that to get out of a 2 point 8 million dollar bill?  I would say yes.  More importantly do we spend that to stand for the constitution.  I would say yes.

So Texas is the key but it’s only a key - IF WE APPEAL.  If we don’t, we are done Friday, we cannot reopen the case, we lose the right to future appeal and we owe 2.8 million.

Appealing doesn’t “drag this on”.  It provides the best chance to get the bill reduced, get the case reversed or both.   Second to Worst case scenario—Texas loses and we drop the appeal and pay what we owe now..    Worst case scenario…Texas gets heard so we are encouraged to press on with our appeal and then we lose or don’t get heard and the cost of the appeal is 100-grand more than we owe now.

So we appealed to have options to continue with what we think is an extremely important and potentially precedent setting case in hopes of preserving the protections of the 14th Amendment and saving taxpayer money.  If Yakima then wants to revisit a redistricting plan, it can, based on the current realities of  Hispanic distribution and on it’s own schedule without violating state law in removing duly elected representatives.

Here’s a quote from a website reviewing the Texas case – after  an adverse judgment in November, the plaintiffs have now asked the Supreme Court to hear the case. Many observers expect the court to affirm the decision below without holding oral argument. If it does so, it would resolve the issue once and for all because the decision would be a judgment on the merits. On the other hand, if the Court surprises and sets argument in the case next term, it would signal a potential radical reworking of how redistricting is done in the United States.