Case: 11-10194
Document: 00511443702
Page: 1
Date Filed: 04/12/2011
NO. 11-10194
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
KEITH A. LEPAK, MARVIN RANDLE, DAN CLEMENTS, DANA BAILEY,
KENSLEY STEWART, CRYSTAL MAIN, DAVID TATE, VICKI TATE,
MORGAN MCCOMB, AND JACQUALEA COOLEY
Appellants,
v.
CITY OF IRVING, TEXAS
Appellee,
v.
ROBERT MOON, RACHEL TORREZ MOON, MICHAEL MOORE,
GUILLERMO ORNELAZ, GILBERT ORNELAZ, AND AURORA LOPEZ
Intervenor DefendantsAppellees.
On Appeal from Civil Action No. 3:10-cv-277 in the United States District Court,
Northern District of Texas, Dallas Division
APPELLANTS’ RECORD EXCERPTS
Kent D. Krabill
Texas Bar No. 24060115
Jeremy A. Fielding
Texas Bar No. 24040895
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-981-3800
Facsimile: 214-981-3839
ATTORNEYS FOR APPELLANTS
Case: 11-10194
Document: 00511443702
Page: 2
Date Filed: 04/12/2011
INDEX
Tab
Description
Page No.
Docket
No.
USCA5 1-12
N/A
1
District Court Docket Sheet – Northern
District of Texas (Dallas)
2
Plaintiffs’ Notice of Appeal to The United
States Court of Appeals for the Fifth Circuit
USCA5 1432 –
1433
57
3
Memorandum and Opinion Order
USCA5 1425 –
1430
55
4
Final Judgment
USCA5 1431
56
5
Certificate of Service for Notice of Appeal
USCA5 1438
59
OPTIONAL CONTENTS
6
Original Complaint
USCA5 13 – 18
1
7
Defendants’ Original Answer
USCA5 29 – 33
7
8
Order granting motion to intervene
USCA5 88
15
9
Final Judgment
USCA5 198 –
202
26
10
Defendant City of Irving’s Response to
Plaintiffs’ First Set of Interrogatories
USCA5 255 –
266
26
11
Election results
USCA5 361 –
365
26
1
Case: 11-10194
Document: 00511443702
Page: 3
Date Filed: 04/12/2011
Respectfully submitted,
/s/ Kent D. Krabill
Kent D. Krabill
Texas Bar No. 24060115
Jeremy A. Fielding
Texas Bar No. 24040895
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-981-3800
Facsimile: 214-981-3839
ATTORNEYS FOR APPELLANTS
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing document was served by certified mail on counsel of record below on
April 12, 2011.
C. Robert Heath
BICKERSTAFF, HEATH, DELGADO
& ACOSTA, LLP
3711 S. MoPac Expressway
Building One, Suite 300
Austin, Texas 78746
Nina Perales
Iván Espinoza-Madrigal
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.
110 Broadway, Suite 300
San Antonio, Texas 78205
/s/ Kent D. Krabill
Kent D. Krabill
2
Case: 11-10194
Document: 00511443702
Page: 4
Tab I
Date Filed: 04/12/2011
Case: 11-10194
Document: 00511443702
Page: 5
Date Filed: 04/12/2011
STICKNEY, CLOSED, APPEAL
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:10-cv-00277-P
Lepak et al v. City of Irving, Texas
Assigned to: Judge Jorge A Solis
Referred to:
Demand: $0
Lead Docket: None
Related Cases: None
Cases in other court: None
Cause: 28:1331 Fed. Question
Date Filed: 2/11/2010
Jury Demand: None
Nature of Suit: 441 Civil Rights: Voting
Jurisdiction: Federal Question
Plaintiff
Keith A Lepak
represented by Kent D Krabill
Lynn Tillotson Pinker & Cox LLP
2100 Ross Ave
Suite 2700
Dallas, TX 75201
US
214/981-3800
Fax: 214/981-3839
Email: kkrabill@lynnllp.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
Lynn Tillotson Pinker & Cox LLP
2100 Ross Ave
Suite 2700
Dallas, TX 75201
US
214/981-3800
Fax: 2141981-3839
Email: jfielding @ lynnllp.com
ATTORNEY TO BE NOTICED
John T Cox, HI
Lynn Tillotson Pinker & Cox LLP
2100 Ross Ave
Suite 2700
Dallas, TX 75201
US
214/981-3805
Fax: 214/981-3839
Email: tcox@lyrmllp.com
ATTORNEY TO BE NOTICED
USCA5 1
Case: 11-10194
Marvin Randle
Document: 00511443702
Page: 6
Date Filed: 04/12/2011
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Dan Clements
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Dana Bailey
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Kensley Stewart
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Crystal Main
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
USCA5 2
Case: 11-10194
Document: 00511443702
Page: 7
Date Filed: 04/12/2011
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
David Tate
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Vicki Tate
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Morgan McComb
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Jacqualea Cooley
representedby Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
USCA5 3
Case: 11-10194
Document: 00511443702
Page: 8
Date Filed: 04/12/2011
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Joe Sissom
represented by Kent D Krabill
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeremy A Fielding
(See above for address)
ATTORNEY TO BE NOTICED
John T Cox, III
(See above for address)
ATTORNEY TO BE NOTICED
Vo
Defendant
City of Irving, Texas
represented by C Robert Heath
Bickerstaff Heath Delgado Acosta LLP
3711 S. Mopac Expressway
Building One
Suite 300
Austin, TX 78746
USA
512/472-8021
Fax: 5121320-5638
Email: bheath @ bickerstaff.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Charles R Anderson
Irving City Attorney’s Office
825 W Irving Blvd
Irving, TX 75060
USA
972/721-2541
Email: canderso @ci.irving.tx.us
ATTORNEY TO BE NOTICED
Vo
Intervenor Defendant
Robert Moon
represented by Nina Perales
Mexican American Legal Defense &
Educational Fund Inc
USCA5 4
Case: 11-10194
Document: 00511443702
Page: 9
Date Filed: 04/12/2011
110 Broadway
Suite 300
San Antonio, TX 78205
USA
210/224-5476
Fax: 210/224-5382 FAX
Email: nperales @maldef.org
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal
Mexican American Legal Defense &
Educational Fund
110 Broadway
Suite 300
San Antonio, TX 78205
US
210/224-5476
Fax: 210/224-5382
Email: iespinoza@maldef.org
ATTORNEY TO BE NOTICED
Rachel Torrez Moon
represented by Nina Perales
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal
(See above for address)
ATTORNEY TO BE NOTICED
Michael Moore
represented by Nina Perales
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal
(See above for address)
ATTORNEY TO BE NOTICED
GuiHermo Ornelaz
represented by Nina Perales
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal
(See above for address)
ATTORNEY TO BE NOTICED
Gilbert Ornelaz
represented by Nina Perales
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal
(See above for address)
USCA5 5
Case: 11-10194
Document: 00511443702
Page: 10
Date Filed: 04/12/2011
ATTORNEY TO BE NOTICED
Aurora Lopez
represented by Nina Perales
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal
(See above for address)
ATTORNEY TO BE NOTICED
Vo
Amicus
United States of America, Amicus
Curiae
represented by Anna Marks Baldwin
US Department of Justice - Civil Rights
Div - Voting Section
950 Pennsylvania Ave NWB
Room 7201
Washington, DC 20530
US
202/305-4278
Email: Anna.Baldwin @ usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jared Michael Slade
US Department of Justice - Civil Rights
Div - Voting Section
950 Pennsylvania Ave NWB
Room 7269
Washington, DC 20530
US
202/305-4733
Email: Jared.Slade @ usdoj.gov
ATTORNEY TO BE NOTICED
T Christian Herren, Jr
US Department of Justice
Civil Rights Division
PO Box 66128
Washington, DC 20035-6128
USA
202/514-6196
Filing Date
2/11/2010
(p.13)
#
1
Docket Text
COMPLAINT against City of Irving, Texas filed by Keith A Lepak, Marvin
Randle, Dan Clements, Dana Bailey, Kensley Stewart, Crystal Main, David Tate,
USCA5 6
Case: 11-10194
Document: 00511443702
Page: 11
Date Filed: 04/12/2011
Vicki Tate, Morgan McComb, Jacqualea Cooley, Joe Sissom. Summons(es) not
requested at this time. Ineach Notice of Electronic Filing the filer receives, the
judge assignment is indicated in the subject line, and a link to the Judges Copy
Requirements is provided. The court reminds the filer that any required copy of this
and future documents must be delivered to the judge, in the manner prescribed,
within three business days of filing. (Filing fee $350; Receipt number
05390000000003121795) (Krabill, Kent) Modified on 2/11/2010 (klm). (Entered:
2/11/2010)
2/11/2010
(p.19)
2
Request for Clerk to issue Summons filed by Dana Bailey, Kensley Stewart,
Crystal Main, David Tate, Vicki Tate, Morgan McComb, Jacqualea Cooley, Joe
Sissom, Keith A Lepak, Marvin Randle, Dan Clements. (Krabill, Kent) (Entered:
2/15/2010)
2/15/2010
(p.21)
2/16/2010
(p.23)
ADDITIONAL ATTACHMENTS Civil Cover Sheet to [1] Complaint by Plaintiffs
Dana Bailey, Kensley Stewart, Crystal Main, David Tate, Vicki Tate, Morgan
McComb, Jacqualea Cooley, Joe Sissom, Keith A Lepak, Marvin Randle, Dan
Clements. (Krabill, Kent). (Entered: 2/11/2010)
4 Summons Issued as to City of Irving, Texas. (skt) (Entered: 2/16/2010)
CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by
Dana Bailey, Kensley Stewart, Crystal Main, David Tate, Vicki Tate, Morgan
McComb, Jacqualea Cooley, Joe Sissom, Keith A Lepak, Marvin Randle, Dan
Clements. (Krabill, Kent) (Entered: 2/18/2010)
2118/2010
(p.25)
2/19/2010
(p.27)
6
SUMMONS Returned Executed as to City of Irving, Texas; served on 2/17/2010.
(mfw) (Entered: 2/19/2010)
3/9/2010
(p.29)
7
Defendant’s Original ANSWER to [1] Complaint,,, filed by City of Irving, Texas
(Heath, C) (Entered: 3/9/2010)
3/9/2010
(p.34)
8
CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by
City of Irving, Texas. (Heath, C) (Entered: 3/9/2010)
3/17/2010
(p.36)
Order for Scheduling Order Proposal: Proposed Scheduling Order due by
9 4/20/2010. (Ordered by Judge Jorge A Solis on 3/17/2010) (svc) (Entered:
3/18/2010)
4/2/2010
(p.38)
4/20/2010
(p.67)
10
MOTION to Intervene as Defendants filed by Robert Moon, Rachel Torrez Moon,
Michael Moore, Guillermo Omelaz, Gilbert Ornelaz, Aurora Lopez with
Brief/Memorandum in Support. (Attachments: # (1) Exhibit A). Party Robert
Moon, et al. added. (Perales, Nina) (Entered: 4/2/2010)
11
Proposal for contents of scheduling and discovery orderby Dana Bailey, City of
Irving, Texas, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main,
Morgan McComb, Marvin Randle, Joe Sissom, Kensley Stewart, David Ti~te, Vicki
Tate. (Krabill,Kent) (Entered: 4/20/2010)
USCA5 7
Case: 11-10194
4/2712010
(p.70)
Document: 00511443702
Page: 12
Date Filed: 04/12/2011
AMENDED COMPLAINT against All Defendants filed by Jacqualea Cooley,
Vicki Tate, David Tate, Marvin Randle, Kensley Stewart, Crystal Main, Morgan
McComb, Dan Clements, Keith A Lepak, Joe Sissom, Dana Bailey. (Attachments:
# (1) Exhibit(s) A) (Krabill, Kent) (Entered: 4/27/2010)
SCHEDULING ORDER: This case is scheduled for NON-JURY TRIAL on this
Court’s two-week docket beginning 2/7/2011 09:00 AM before Judge Jorge A
Solis. Pretrial Conference set for 1/21/2011 01:30 PM before Judge Jorge A Solis.
Joinder of Parties due by 5/21/2010. Amended Pleadings due by 5/21/2010.
Discovery due by 9/21/2010. Joint Report due by 10/5/2010. Motions due by
10/21/2010. Pretrial Order due by 1/14/2011. Pretrial Materials due by 1/14/2011.
(See Order) (Ordered by Judge JorgeA Solis on 413012010) (dnc) (Entered:
413012010)
4/30/2010
(p.78)
13
5/5/2010
(p.81)
Supplemental Document by Aurora Lopez, Rachel Torrez Moon, Robert Moon,
Michael Moore, Gilbert Ornelaz, Guillermo Ornelaz as to [10] MOTION to
14
Intervene as Defendants Exhibit A (Amended Answer in Response to Plaintiffs
Amended Complaint). (Perales, Nina) (Entered: 5/5/2010)
5112/2010
(p.88)
15
ORDER granting [10] Motion to Intervene. (see order) (Ordered by Judge Jorge A
Solis on 5/12/2010) (axm) (Entered: 5/12/2010)
5/12/2010
(p.89)
16
Defendant-Intervenors’ ANSWER to [12] Amended Complaint, filed by Aurora
Lopez, Rachel Torrez Moon, Robert Moon, Michael Moore, Gilbert Ornelaz,
Guillermo Omelaz. (tin) (Entered: 5/13/2010)
17
Plaintiffs’ Rule 26 Initial Pretrial Disclosures filed by Dana Bailey, Dan Clements,
Jacqualea Cooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin
Randle, Joe Sissom, Kensley Stewart, David Tate, Vicki Tate. (Krabill, Kent)
(Entered: 5/28/2010)
18
Application for Admission Pro Hac Vice with Cert. of Good Standing for Attorney
Ivan Espinoza-Madrigal (Filing fee $25; Receipt number 0539-3301440) filed by
Aurora Lopez, Rachel Torrez Moon, Robert Moon, Michael Moore, Gilbert
Ornelaz, Guillermo Ornelaz (Attachments: # (1) Exhibit(s) Certificate of Good
Standing, # (2) Proposed Order) (Espinoza-Madrigal, Ivan) (Entered: 6/7/2010)
19
ORDER granting [18] Application for Admission Pro Hac Vice of Ivan
Espinoza-Madrigal. Clerk shall deposit application fee to the Non-Appropriated
Fund of this Court. If not already done, Applicant must register as an ECF User
within 14 days (LR 5.1(f)). (Ordered by Judge Jorge A Solis on 6/15/2010) (axm)
(Entered: 6/17/2010)
20
Plaintiffs’Pretrial Disclosures/Rule 26(a)(2) Expert Disclosures filed by Dana
Bailey, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main, Morgan
McComb, Marvin Randle, Joe Sissom, Kensley Stewart, David Tate, Vicki Tate.
(Attachments: # (1) Exhibit(s) 1) (Krabill, Kent) (Entered: 6/18/2010)
5/28/2010
(p.95)
6/7/2010
(p.103)
6/15/2010
(p.lO8)
6/18/2010
(p.109)
7/16/2010
(p.149)
AMENDED COMPLAINT against All Defendants filed by Jacqualea Cooley,
Vicki Tate, David Tate, Marvin Randle, Kensley Stewart, Crystal Main, Morgan
McComb, Dan Clements, Keith A Lepak, Dana Bailey. (Attachments: # (1)
USCA5 8
Case: 11-10194
Document: 00511443702
Page: 13
Date Filed: 04/12/2011
Exhibit(s) A) (Krabill, Kent) (Entered: 7116/2010)
7/30/2010
(p. 159)
I ANSWER to [21] Amended Complaint filed by Aurora Lopez, Rachel Torrez
22 Moon, Robert Moon, Michael Moore, Gilbert Omelaz, Guillermo Ornelaz (Perales,
Nina) (Entered: 7/30/2010)
23
Plaintiffs’ Rule 26(a)(2) Supplemental Expert Pretrial Disclosures filed by Dana
Bailey, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main, Morgan
McComb, Marvin Randle, Kensley Stewart, David Tate, Vicki Tate. (Attachments:
# (1) Exhibit(s) Exh 1) (Krabill, Kent) (Entered: 9/14/2010)
24
MOTION for Summary Judgment filed by Dana Bailey, Dan Clements, Jacqualea
Cooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe
Sissom, Kensley Stewart, David Tate, Vicki Tate (Attachments: # (1) Proposed
Order) (Krabill, Kent) (Entered: 9/27/2010)
9/27/2010
(p.177)
25
Brief/Memorandum in Support filed by Dana Bailey, Dan Clements, Jacqualea
Cooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe
Sissom, Kensley Stewart, David Tate, Vicki Tate re [24] MOTION for Summary
Judgment (Krabill, Kent ) (Entered: 9/27/2010)
9/27/2010
(p.196)
Appendix in Support filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith
A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
26 Stewart, David Tate, Vicki Tate re [25] Brief/Memorandum in Support of Motion
for Summary Judgment .(Attachments: # (1) Additional Page(s)) (Krabill, Kent)
(Entered: 9/27/2010)
9/14/2010
(p.166)
9/27/2010
(p.171)
10/5/2010
(p.398)
27
JOINT REPORT OF SETTLEMENT CONFERENCE REPORT filed by Dana
Bailey, City of Irving, Texas, Dan Clements, Jacqualea Cooley, Keith A Lepak,
Aurora Lopez, Crystal Main, Morgan McComb, Rachel Torrez Moon, Robert
Moon, Michael Moore, Gilbert Ornelaz, Guillermo Ornelaz, Marvin Randle, Joe
Sissom, Kensley Stewart, David Tate, Vicki Tate. (Krabill, Kent) Modified on
10/6/2010 Orb). (Entered: 10/5/2010)
10/21/2010
(p.400)
28
MOTION for Summary Judgment filed by City of Irving, Texas (Heath, C)
(Entered: 10/21/2010)
10/21/2010
(p.403)
29
Brief/Memorandum in Support filed by City of Irving, Texas re [28] MOTION for
Summary Judgment (Heath, C) (Entered: 10/21/2010)
10/21/2010
(p.423)
Appendix in Support filed by City of Irving, Texas re [29] Brief/Memorandum in
Support of Motion (Attachments: # (1) Additional Page(s)) (Heath, C) (Entered:
30
1012112010)
1012112010
(p.549)
31
RESPONSE filed by City of Irving, Texas re: [24] MOTION for Summary
Judgment (Heath, C) (Entered: 1012112010)
32
Unopposed MOTION To Appear as Amicus Curiae filed by United States (DOJ)
with Brief/Memorandum in Support. (Attachments: # (1) Exhibit(s) Memorandum,
# (2) Exhibit(s) Appendix, # (3) Proposed Order). Party United States added.
(Baldwin, Anna) (Entered: 10/21/2010)
10121/2010
(p.552)
USCA5 9
Case: 11-10194
10/21/2010
(p.589)
10/21/2010
(p.593)
10/21/2010
(p.735)
Document: 00511443702
Page: 14
Date Filed: 04/12/2011
33
MOTION for Summary Judgment and Response to Plaintiffs’ Summary Judgment
Motion filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon, Michael
Moore, Gilbert Omelaz, Guillermo Ornelaz with Brief/Memorandum in Support.
(Perales, Nina) (Entered: 10/21/2010)
34
Appendix in Support filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon,
Michael Moore, Gilbert Omelaz, Guillermo Ornelaz re [33] MOTION for
Summary Judgment and Response to Plaintiffs’ Summary Judgment Motion
(Attachments: # (1) Additional Page(s) Appendix Part 2 of 4, # (2) Additional
Page(s) Appendix Part 3 of 4, # (3) Additional Page(s) Appendix Part 4 of 4, # (4)
Declaration(s) of Nina Perales in Support) (Perales, Nina) (Entered: 10/21/2010)
35
Brief/Memorandum in Support filed by Aurora Lopez, Rachel Torrez Moon,
Robert Moon, Michael Moore, Gilbert Ornelaz, Guillermo Ornelaz re [33]
MOTION for Summary Judgment and Response to Plaintiffs’ Summary Judgment
Motion (Attachments: # (1) Proposed Order) (Perales, Nina) (Entered: 10/21/2010)
10/21/2010
RESPONSE filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon, Michael
Moore, Gilbert Omelaz, Guillermo Ornelaz re: [24] MOTION for Summary
Judgment. (see doc. 33 for image) (tin) (Entered: 10/22/2010)
10/28/2010
(p.792)
36
Agreed MOTION to Combine Response and Reply filed by Dana Bailey, Dan
Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main, Morgan McComb,
Marvin Randle, Joe Sissom, Kensley Stewart, David Tate, Vicki Tate
(Attachments: # (1) Proposed Order) (Krabill, Kent) (Entered: 10/28/2010)
10/29/2010
(p.797)
37
Joint MOTION to Abate filed by City of Irving, Texas, Rachel Torrez Moon,
Robert Moon, Michael Moore, Gilbert Ornelaz, Aurora Lopez, Guillermo Ornelaz
(Heath, C) Modified on 11/1/2010 (skt). (Entered: 10/29/2010)
39
ORDER granting [37] Joint Motion to Abate. All actions listed on the scheduling
order in this cause that are to occur on or after 1/14/2010, including the trial setting,
are ABATED. (See Order) (Ordered by Judge Jorge A Solis on 11/1/2010) (dnc)
(Entered: 11/2/2010)
38
ORDER granting [36] Agreed MOTION to Combine Response and Reply.
Plaintiffs may combine their Reply to Defendant’s Response in Opposition to
Plaintiffs’ Motion for Summary Judgment and their Response to Defendant’s
Motion for Summary Judgment in one brief, which will be due on November 10,
2010. (see order) (Ordered by Judge Jorge A Solis on 11/2/2010) (tln) (Entered:
11/2/2010)
1111/2010
(p.801)
11/212010
(p.802)
11/2/2010
***Clerk’s Notice of delivery: (see NEF for details) Docket No:38. Tue Nov 2
12:08:34 CDT 2010 (crt) (Entered: 11/2/2010)
11/2/2010
***Clerk’s Notice of delivery: (see NEF for details) Docket No:39. Tue Nov 2
13:21:45 CDT 2010 (crt) (Entered: 11/2/2010)
11/3/2010
(p.804)
40
ORDER granting [32] Motion to Appear as Amicus Curiae. (See Order) (Ordered
by Judge Jorge A Solis on 11/3/2010) (skt) (Entered: 11/4/2010)
USCA5 10
Case: 11-10194
Document: 00511443702
Page: 15
Date Filed: 04/12/2011
11/3/2010
(p.805)
41
BRIEF for the United States of America as Amicus Curiae. (skt) (Entered:
11/4/2010)
11/3/2010
(p.820)
48
Appendix in Support filed by United States of America re [41] Brief. (mfw)
(Entered: 11/23/2010)
11/4/2010
***Clerk’s Notice of delivery: (see NEF for details) Docket No:40. Thu Nov 4
08:54:20 CDT 2010 (crt) (Entered: 11/4/2010)
11/10/2010
(p.836)
42
RESPONSE filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith A
Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
Stewart, David Tate, Vicki Tate re: [28] MOTION for Summary Judgment
(Krabill, Kent) (Entered: 11/10/2010)
43
Brief/Memorandum in Support filed by Dana Bailey, Dan Clements, Jacqualea
Cooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe
Sissom, Kensley Stewart, David Tate, Vicki Tate re [42] Response/Objection to
Defendant’s Motionfor Summary Judgment (Krabill, Kent) (Entered: 1111012010)
11/10/2010
(p.839)
11/10/2010
(p.862)
Appendix in Support filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith
A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
Stewart, David Tate, Vicki Tate re [43] Brief/Memorandum in Support of Motion,
(Attachments: # (1) Additional Page(s)) (Krabill, Kent) (Entered: 11/10/2010)
11/10/2010
(p.1070)
45
RESPONSE filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith A
Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
Stewart, David Tate, Vicki Tate re: [33] MOTION for Summary Judgment and
Response to Plaintiffs’ Summary Judgment Motion (Krabill, Kent) (Entered:
11/10/2010)
46
Brief/Memorandum in Support filed by Dana Bailey, Dan Clements, Jacqualea
Cooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe
Sissom, Kensley Stewart, David Tate, Vicki Tate re [45] Response/Objection, to
Defendant-Intervenors’ Motion for Summary Judgment (Krabill, Kent) (Entered:
11110/2010)
47
Appendix in Support filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith
A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
Stewart, David Tate, Vicki Tate re [46] Brief/Memorandum in Support of Motion,
(Attachments: # (1) Additional Page(s)) (Krabill, Kent) (Entered: 11/10/2010)
11/10/2010
(p.1073)
11/10/2010
(p.1099)
11/10/2010
REPLY filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith A Lepak,
Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley Stewart,
David Tate, Vicki Tate re: [24] MOTION for Summary Judgment. (see doc 42 &
45 for image) (axm) (Entered: 11/12/2010)
11/2312010
(p. 1307)
49 REPLY filed by City of Irving, Texas re: [28] MOTION for Summary Judgment
(Heath, C) (Entered: 11/23/2010)
11/29/2010
(p.1317)
REPLY filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon, Michael
Moore, Gilbert Ornelaz, Guillermo Ornelaz re: [33] MOTION for Summary
USCA5 11
Case: 11-10194
Document: 00511443702
Page: 16
Date Filed: 04/12/2011
Judgment (Attachments: # (1) Exhibit(s) Exhibits 1 and 2) (Perales, Nina) (Entered:
11/29/2010)
1/5/2011
(p.1367)
MOTION for Leave to File Supplemental Material in Support of Motion for
51 Summary Judgment filed by City of Irving, Texas (Attachments: # (1) Exhibit(s))
(Heath, C) (Entered: 1/5/2011)
1/10/2011
(p. 1408)
ORDER granting [51] Defendant’s Motion for Leave to File Supplemental Material
52 Supporting Motion for Summary Judgment. (See Order) (Ordered by Judge Jorge
A Solis on 1/10/2011) (skt) (Entered: 1/10/2011)
1/20/2011
(p.1409)
53
RESPONSE filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith A
Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
Stewart, David Tate, Vicki Tate re: [52] Order on Motion for Leave to File
(Krabill, Kent) (Entered: 1/20/2011)
54
Amended RESPONSE filed by Dana Bailey, Dan Clements, Jacqualea Cooley,
Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom,
Kensley Stewart, David Tate, Vicki Tate re: [52] Order on Motion for Leave to File
(Krabill, Kent) (Entered: 1/20/2011)
55
Memorandum Opinion and Order granting [28] Motion for Summary Judgment
filed by City of Irving, Texas and Denying [33] Motion for Summary Judgment,
filed by Gilbert Omelaz, Michael Moore, Rachel Torrez Moon, Guillermo Ornelaz,
Robert Moon, Aurora Lopez, [24] Denying as moot Motion for Summary
Judgment, filed by Joe Sissom, Kensley Stewart, Vicki Tate, Crystal Main, Dana
Bailey, Jacqualea Cooley, Morgan McComb, Dan Clements, Keith A Lepak,
Marvin Randle, David Tate. (Ordered by Judge Jorge A Solis on 2/11/2011) (svc)
(Entered: 2/15/2011)
56
FINAL JUDGMENT: The court declares that the City of Irving’s electoral plan for
single member districts does not violate the 14th Amendment of the United States
Constitution. (Ordered by Judge Jorge A Solis on 2/11/2011) (svc) (Entered:
2/15/2011)
2/16/2011
(p.1432)
57
NOTICE OF APPEAL to the Fifth Circuit as to [55] Memorandum Opinion and
Order,, [56] Judgment by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith A
Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley
Stewart, David Tate, Vicki Tate. Filing fee $455, receipt number 0539-3723512.
T.O. form to appellant electronically at Transcrit~t Order Form or US Mall as
appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed.
(Krabill, Kent) (Entered: 2/16/2011)
2/25/2011
(p.1434)
58 BILL OF COSTS by City of Irving, Texas. (Heath, C) (Entered: 2/25/2011)
1/20/2011
(p.1417)
2/11/2011
(p.1425)
2/11/2011
(p.1431)
2/25/2011
(p.1438)
59
USCA Case Number 11-10194 in USCA5 for [57] Notice of Appeal,, filed by Joe
Sissom, Kensley Stewart, Vicki Tate, Crystal Main, Dana Bailey, Jacqualea
Cooley, Morgan McComb, Dan Clements, Keith A Lepak, Marvin Randle, David
Tate. (dnc) (Entered: 2/28/2011)
USCA5 12
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Tab 2
Date Filed: 04/12/2011
Case: 11-10194
Document: 00511443702
Page: 18
Date Filed: 04/12/2011
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEITH A. LEPAK, MARVIN RANDLE,
DAN CLEMENTS, DANA BAILEY,
KENSLEY STEWART, CRYSTAL MAIN,
DAVID TATE, VICKI TATE,
MORGAN MCCOMB, AND
JACQUALEA COOLEY,
Plaintiffs,
Vo
C.A. NO. 3:10-cv-00277-P
CITY OF IRVING, TEXAS,
Defendant,
Vo
ROBERT MOON, RACHEL TORREZMOON, MICHAEL MOORE,
GUILLERMO ORNELAZ, GILBERT
ORNELAZ, AND AURORA LOPEZ
Defendant-Intervenors.
PLAINTIFFS’ NOTICE OF APPEAL TO
THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
TO THE HONORABLE COURT:
Notice is hereby given that Plaimiffs Keith A. Lepak, Marvin Randle, Dan Clements,
Dana Bailey, Kensley Stewart, Crystal Main, David Tate, Vicki Tate, Morgan McComb, and
Jacqualea Cooley (collectively "Plaintiffs") in the above named case hereby appeal to the United
States Court of Appeals for the Fifth Circuit from the Final Judgmem of the United States
District Court for the Northern District of Texas - Dallas Division entered in this action on
February 11, 2011.
PLAINTIFFS’ NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
02257-901
PAGEI
USCA5 1432
Case: 11-10194
DATED:
Document: 00511443702
Page: 19
Date Filed: 04/12/2011
February 16, 2011
/s/Kent D. Krabill
Kent D. Krabill
State Bar No. 24060115
Jeremy A. Fielding
State Bar No. 24040895
John T. Cox III
State Bar No. 24003722
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-981-3800
Facsimile: 214-981-3839
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of February, 2011, a true copy of the foregoing
was served by the Court’s ECF system to all counsel of record in this case.
/s/Kent D. Krabill
Kent D. Krabill
4820-3115-1624, v. 1
PLAINTIFFS’NOTICE OFAPPEALTO THE UNITED STATES COURT OF APPEALSFORTHEFIFTHCIRCUIT
02257-901
PAGE 2
USCA5 1433
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Tab 3
Date Filed: 04/12/2011
Case: 11-10194
Document: 00511443702
Page: 21
Date Filed: 04/12/2011
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEITH A. LEPAK, MARVIN RANDLE,
DAN CLEMENTS, DANA BAILEY,
KENSLEY STEWART, CRYSTAL
MAIN, DAVID TATE, VICKI ’lATE,
MORGAN McCOMB, m~d JACQUALEA
COOLEY,
Plaintiffs,
Vo
CITY OF IRVING, TEXAS,
CIVIL ACTION NO.
3:10-CV-0277-P
Defendant,
ROBERT MOON, RACHEL TORREZMOON, MICHAEL MOORE,
GUILLERMO ORNELAZ,
GILBERT ORNELAZ and AURORA
LOPEZ,
Defendant-lntervenors.
MEMORANDUM OPINION AND ORDER
Now betbre the Court are (1) Plaintiffs’ motion for summary judgment (Docket # 25); (2)
City of Irving’s motion for sunmam2 judgment (Docket # 29); (3) Defendant-Intervenors’ motion
for summary judgment (Docket # 3 5); and (4) the United States’s brief as amicus curaie (Docket #
41). After careful consideration of the facts, briefing and applicable law, the Court hereby GRANTS
the City of Irving’s motion for summary judgmem.
USCA5 1425
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Date Filed: 04/12/2011
BACKGROUND
After conducting a bench trial in Benavidez v. City of Irving, this Court held that the City of
Irving ("City" or "Irving") violated Section 2 of the Voting Rights Act by electing its city council
members on an at-large basis. ]’he Court found the City’s at-large system effectively denied
Hispanic voters an equal opportunity to elect representatives of their choice. See City ofb"ving v.
Benavidez, 638 F. Supp. 2d 709, 732 (N.D. Tex. 2009). As a result of the ruling, the parties agreed
on a new election plan (the "Plan") that divided the City into six single-member districts, two atlarge districts, and a single mayor. The Plan divides the City into six districts that are relative in total
population. However, while the total population numbers are roughly equal between districts, the
CVAP (citizen voting age population) in District 1 is much less than the CVAP in the other districts.
DISCUSSION
According to Plaintiffs, the Plan substantially dilutes the votes of Irving’s citizens by
weighing votes differently depending on where a person lives. They argue the Plan violates the
"one-person, one-vote" equal protection principle of the Fourteenth Amendment because the
districts’ sizes are based on total population rather than on CVAP. Plaintiffs explain that because
District l has approximately half the CVAP as at least two other districts, the council member fi’om
District I can be elected with approximately half as many votes as the council members of the other
districts. Plaintiffs conclude that because the voters in District 1 have nearly twice as much voting
power as the voters in the other districts, the City is impermissibly weighing the votes of citizens
differently merely because of where they reside. At the core of this dispute is whether the City is
constitutionally permitted to draw districts based on equal populations as opposed to equal numbers
of voters.
2
USCA5 1426
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Date Filed: 04/12/2011
In their briefing, Plaintiffs repeatedly cite to Reynolds v. Shns for the principle that "[w]ith
respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the
same relation regardless of where they live." 377 U.S. 533, 565 (1.964).~ From this passage,
Plaintiffs conclude districts must be drawn to contain equal numbers of citizens with the ability to
vote. They insist that the Court has unequivocally held the one-person, one-vote requirement is
premised on the principle of electoral equality. (Docket # 25 at 11.)
The United States, as amicus curiae, argues the Supreme Court also recognized in Reynolds
v. Sims that total population is an appropriate baseline to use and satisfies the one-person, one-vole
principle. (Docket # 32-1 at 2-3 citing 377 U.S. at 542 n.7 & 545-46.) Reynolds states that "[a]s
a basic constitutional standard, the Equal Protection Clause requires that the [seats] must be
apportioned on a population basis." Reynolds, 377 U.S. at 568. The United States further explains
that each and every jurisdiction in Texas, some 340 state, county, and municipality, that has applied
for prectearance to the Department. of Justice under Section 5 of the Voting Rights Act uses total
population in the districting process as the basis for determining whether population is equal among
districts. (Docket # 32-2.)
The Reynolds court and others like it that have used the terms "citizens" and "persons"
interchangeably were not dealing with whether the one-person, one-vote principle requires citizenvoter equality or representational equality. Rather, they were "dealing with situations in which total
population was presumptively an acceptable proxy for potentially eligible voters." Chen v. City of
Houston, 206 F.3d at 525 (5th Cir. 2000),
~ Plaintiffs also quote the Reynol&’ passage: "The basic principle ofrepresemative government remains
and must remain un.changed - the weight of a citizen’s vote cannot be made to depend on where he lives." 377 U.S.
at 567.
USCA5 1427
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One case that has addressed this precise issue is the Fifth Circuit case of Chen v. City qf
Houston, in which the plaintiffs argued the city violated the "one-person, one-vote" requirement
when it designed its districts to equalize total population instead of CVAP mad when the city knew
certain districts had extremely high ratios of noneitizens. Chert, 206 F.3d 502, 522. The Fifth
Circuit recognized the "Supreme Court has been somewhat evasive in regard to which population
must be equalized," Chen, 206 F.3d at 524. The court acknowledged there is "ample language in
the [Supreme Court] opinions that strongly implies that it is the right of the individual potential voter
that must be protected." !at.. at 525. "But....
other language can be found flaat implies that
representational equality is the ideal."
ld After conducting an in-depth analysis of the laws and
legislative history governing the case, the Chen court held that the choice between using total
population or CVAP should be left to the legislative body ~br determination.
The Fourth and Ninth Circuits have also addressed the issue, with the same outcome. The
Ninth Circuit found that total population is a permissible method for measuring population when
known significant concentrations of those not eligible to vote exist. See Garza v. County of Los
Angeles, 9t 8 F.2d 763,775-76 (9th Cir. 1990). The Fourth Circuit, when dealing with the analogous
issue of districting when people below the voting age were unevenly distributed, stated that the
choice between total population or a measurement of potential voters must be left to the legislative
body. See Dalyv. Hunt, 93 F.3d 1212, t227 (4th Cir. 1996).
Plaintiffs try to distinguish Chen from this case by arguing in a footnote that the variance
between population and voters in Chen is considerably less than the variance in this case. They
contend the "City of Houston had not diluted the vote of citizens by approximately half, as the City
of Irving has done here. Rather, the Chen court simply noted that the ’maximum variance’ of CVAP
USCA5 1428
Case: 11-10194
Document: 00511443702
Page: 25
Date Filed: 04/12/2011
between the City of Houston’s districts ’exceeds [a] ten percent threshold.’" (Docket # 25 at 15 n.
18.) Plaintiffs inlet the City of Houston’s variance between population and eligible voters was just
slightly more than ten percent, whereas here, the varimace is considerably higher. Plaintiffs then
contend the Chen court called the CVAP vote dilution claim "extremely close and difficult."
(Docket # 25 at 15 n. 18.)
First, the inference Plaintiffs make - that the maximum variance in Chen was close to ten
percent- is not supported by the actuat evidence. The petition ~br writ of certiorari in Chen states
that, when measured by CVAP, the maximum deviation between districts in the challenged Houston
plan was 32.5%. Appellate Pet. Chen v. City of Houston (No. 99-1946), 2000 WL 34014393 at *3.
Second, the Fifth Circuit did not characterize its CVAP decision as a close call. It described
the racial gerrymandering claim (Shaw claim) as "extremely close and difficult." Chen, 206 F.3d
at 505. Later in the opinion, the court does acknowledge that "while this [CVAP] issue is a close
question, we find that the choice of population figures is a choice left to the political process." Id.
at 523. However, the "close question" was not whether the amount of vote dilution was extreme
enough to warrant judiciai intervention. The "close question" rel~rred to whether the courts should
intervene in the selection of a population baseline. The Fifth Circuit held they should not. Id
The Court also rejects Plaintiffs’ attempt to limit the Chen holding to "the specific
circumstances of that case." (Docket/4 25 n. 18.) Though the court does state at the beginning of
its opinion that "the use of total population to track the size of the districts does not, under these
circumstances, violate the Equal Protection Clause," it concludes its opinion with the following
language, "But in [the] face of the lack of more definitive guidance fi-om the Supreme Court, we
conclude that this eminently political question has been left to the political process." (3~en, 206 F.3d
USCA5 1429
Case: 11-10194
Document: 00511443702
Page: 26
Date Filed: 04/12/2011
at 505, 528. Plaintiffs have not demonstrated that, under these circumstances, the Fifth Circuit
would require this court to intervene in the political process and judicially mandate Irving to track
the size of the districts by CVAP instead of by population.
For these reasons, the Court hereby GRANTS summary judgment for the City of Irving,
DENIES summary judgment for Plaintiffs, and DENIES Defendant-lntervenors’ motion for
summary judgment as MOOT.
It is SO ORDERED, this t’/J"~ day of February 2011.
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE
6
USCA5 1430
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Tab 4
Date Filed: 04/12/2011
Case: 11-10194
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Date Filed: 04/12/2011
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEITH A. LEPAK, et al.,
Plaintiffs,
§
§
v.
§
CITY OF IRVING, TEXAS,
§
Defendant,
§
v.
§
ROBERT MOON, et al.,
§
Defendants-Intervenors.
NO: 3:10-CV-277-P
§
FINAL JUDGMENT
Pursuant to the Court’s Order of February I 1,2011, final judgment is issued as follows:
(1) The court declares that the City of Irving’s electoral plan for single member
districts does not violate the 14th Amendment of the United Stales Constitution;
(2)
Plaintiffs’ request for injunctive relief is denied; and
(3)
Costs are assessed against Plaintiffs.
Signed this/I"4~’~ day of February, 201 I.
UNITED STATES DISTRICT JUDGE
USCA5 1431
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Tab 5
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U.S. District Court
11-10194
Northern District of Texas
Notice of Electronic Filing .................... -..
The following transaction was entered by Krabill, Kent~.liht 1:31 PM CST and filed
on
2/16/2011
Case Name:
Lepak et al v. City of I~ig, Texas
Case Number:
3:10-cv-00277-P ~/
’I
Filer:
Keith A Lepak
Marvin Randle
Dan Clements
,Dana Bailey
Kensley Stewart
Crystal Main
David Tate
Vieki Tate
Morgan MeComb
Jacqualea Cooley
Joe Sissom
WARNING: CASE CLOSED on 02111/2011
Document Number:
Docket Text:
NOTICE OF APPEAL to the Fifth Circuit as to [55] Memorandum Opinion and Order,, [56]
Judgment by Dafla Bailey, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal
Main, Morgan McComb, Marvin Randle, Joe Sissom, Kensley Stewart, David Tate, Vicki
Tate. Filing fee $455, receipt number 0539-3723512. T.O. form to appellant electronically
at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to
parties not electronically noticed. (Krabill, Kent)
file://C:\UserskmeourseaLAppData\Local\Tempknotes41Bg84\-web1427.htm
USCA5 1438
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Tab 6
Date Filed: 04/12/2011
Case: 11-10194
Document: 00511443702
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Date Filed: 04/12/2011
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEITH A. LEPAK, MARVIN RANDLE,
DAN CLEMENTS, DANA BAILEY,
KENSLEY STEWART, CRYSTAL MAIN,
DAVID TATE, VICKI TATE,
MORGAN MCCOMB,
JACQUALEA COOLEY,
AND JOE SISSOM,
C.A. NO.
Plaintiffs,
Vo
CITY OF IRVING, TEXAS,
Defendant.
ORIGINAL COMPLAINT
TO THE HONORABLE COURT:
Plaintiffs Keith A. Lepak, Marvin Randle, Dan Clements, Dana Bailey, Kensley
Stewart, Crystal Main, David Tare, Vicki Tate, Morgan McComb, Jacqualea Cooley, and
Joe Sissom (collectively "Plaintiffs") file this Original Complaint against Defendant City
of Irving, Texas ("Irving" or the "City"), and in support thereof would respectfully show
the Court as follows:
I.
1.
INTRODUCTION
This is an action challenging the constitutionality of Irving’s recently-
adopted electoral plan for single-member city council positions. Under the threat of a
judicial fiat, Irving discarded its existing at-large arrangement and created six singlemember districts of ostensibly equal population size. One of these districts was
specifically designed to be a majority Hispanic district. To "equally" apportion Irving’s
population into these six districts, however, the City used raw population numbers alone,
ORIGINAL COMPLAINT
02257-901/237029
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Document: 00511443702
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Date Filed: 04/12/2011
deliberately failing to equalize citizens of voting age populations within each district. In
so doing, the City created a district (the majority Hispanic district) where the number of
voting age citizens is roughly half the number of voting age citizens in several other
districts. Because it takes a majority in each district to elect a city council member, this
means that the council member from the majority Hispanic district can be elected on the
basis of approximately half as many votes as the council members from these remaining
districts. Put differently, the vote of a citizen residing in the majority Hispanic district is
worth nearly twice as much as the vote of a citizen in another district just a few streets
away.
2.
Irving’s electoral scheme thus violates the "one person, one vote"
principle of the Fourteenth Amendment of the United States Constitution, which
(according to the United States Supreme Court) strictly prohibits "weighting the votes of
citizens differently, by any method or means, merely because of where they happen to
reside .... ,1 Indeed, by adopting this electoral plan, Irving has run directly afoul of what
the Supreme Court refers to as "the basic principle of representative government" specifically, that "the weight of a citizen’s vote cannot be made to depend upon where he
lives.’’2 Accordingly, the Plaintiffs - citizens of Irving whose votes will be substantially
diluted under Irving’s plan - are compelled to bring this action.
II.
3.
PARTIES
Plaintiffs are individuals who are citizens of Irving and reside and are
domiciled in Districts 3, 4, 5, 6, and 7 of the current city council electoral plan.
4.
Defendant City of Irving, Texas is a municipality and may be served by
delivering a copy of the summons and of the complaint to the mayor, clerk, or secretary
of the City of Irving, Texas, 825 W. Irving Boulevard Irving, Texas 75060.
Reynolds v. Sims, 377 U.S. 533, 563 (1964).
21d. at 567.
ORIGINAL COMPLAINT
02257-901/237029
Page 2
USCA5 14
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Document: 00511443702
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Date Filed: 04/12/2011
Ill. JURISDICTION AND VENUE
This Action arises under Article 4, Section 2, Clause 1 of the United States
Constitution, and the Fourteenth Amendment thereto.
o
This Court has original jurisdiction pursuant to 28 U.S.C. 1331, 1343(a)(3)
and (4).
7.
Venue exists under 28 U.S.C. 1391(b) in that all Defendants reside in the
Northern District of Texas, and the injuries to the civil rights of Plaintiffs are sustained in
the Northern District of Texas.
8.
Plaintiffs have standing to bring this suit as each resides in one of the five
Irving single-member city council districts whose votes are substantially diluted under
Irving’s electoral plan.
9.
Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. 2201
and 2202, and Federal Rules of Civil Procedure 57 and 65.
IV. FACTS
10. On November 6, 2007, Manuel A. Benavidez brought suit against the City
of Irving, its mayor, and its city council members challenging the legality of Irving’s atlarge electoral system under Section 2 of the Voting Rights Act. Benavidez alleged that
the at-large electoral system had the effect of diluting the voting power of the Hispanic
voters, and, consequently, denied them an opportunity to elect a representative of their
choice.
11. To prove his claim under the Voting Rights Act, Benavidez presented
what he called Plan 6-2-1 to the court. This proposed plan would break up the eight atlarge city council seats into six single-member districts, two at-large districts, and a
single mayor. One of these single-member districts was torturously gerrymandered to
create what Benavidez claimed would be a majority Hispanic district.
ORIGINAL COMPLAINT
02257-901/237029
Page 3
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12. Irving vigorously resisted Benavidez’ claims. Among other things, Irving
argued that the majority Hispanic district urged by Benavidez would contain a much
smaller number of citizens of voting age than the remaining five districts. Irving
contended this would unconstitutionally dilute the votes of the citizens in these five
districts. The court (improperly) rejected this argument, ultimately finding that Irving’s
at-large electoral system violated the Voting Rights Act.
13. Faced with the prospects of a judicially-imposed electoral scheme
followed by a long and expensive appeal, Irving acquiesced. It accordingly agreed to
adopt a substantially similar version of Plan.6-2-1 (the "Plan"). This Plan was recently
given pre-approval by the United States Department of Justice and will be in place in the
next set of Irving council member elections.
14. The Plan divides the City of Irving into six districts based on total
population. District 1 is the majority Hispanic district. Even though District 1 is roughly
equal to the other five districts with respect to total population, there is a significant
disparity between the number of citizens of voting age in District 1 and the remaining
districts. This disparity is a direct function of the fact that, according to the latest census
data, approximately 60% of the Hispanic residents of Irving are not citizens.
15. The greatest disparity exists between District 1 and Districts 5 and 6.
According to the Plan, 13,168 of the 20,930 persons of voting age living in District 1 are
Hispanic. Factoring in the census finding that 60% of Irving’s Hispanic residents are
non-citizens yields an estimated total of 13,029 citizens of voting age residing in District
1. In contrast, when the same calculation is applied to Districts 5 and 6, it produces
citizens of voting age populations of 22,932 and 23,884, respectively.
16.
The Plan thus substantially dilutes the votes of Irving’s citizens,
weighting each one differently based solely upon where he or she lives. Indeed, the votes
ORIGINAL COMPLAINT
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of citizens living in District 1 are worth nearly twice as much as the votes of citizens
residing in Districts 5 and 6.
17. This result directly violates the "one-person, one-vote" equal protection
principal at the heart of the Fourteenth Amendment. As the Supreme Court has observed,
"with respect to the allocation of legislative representation, all voters, as citizens of a
State, stand in the same relation regardless of where they live.’’3 Accordingly,
"[w]eighting the votes of citizens differently, by any method or means, merely because of
where they happen to reside, hardly seems justifiable.’’4
18. Yet "weighting the votes of citizens differently . . . merely because of
where they happen to reside’’5 is precisely what the Plan does here.This Plan is
unconstitutional and cannot stand.
V. CAUSES OF ACTION
A.
Fourteenth Amendment Claim: One Person~ One Vote
19. The Plaintiffs reallege and incorporate by reference each and every
allegation contained in the preceding paragraphs of this Complaint.
20. By weighting the votes of its citizens differently merely because of where
they happen to reside, Irving has violated the Equal Protection clause of the Fourteenth
Amendment. As a result of the Plan, the votes of a citizen living on one street in Irving
will be worth nearly twice as much as the vote of another citizen living on another street
only a few hundred feet away. This is unconstitutional.
VI. PRAYER
Plaintiff hereby requests that this Court award the following relief:
ao
Declare the City of Irving’s current 6-2-1 Plan for the election of
city council members to be unconstitutional and of no further force
and effect;
3Id at 565.
4 Id.
at 563.
ORIGINAL COMPLAINT
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Award reasonable attorneys fees, including costs and both
consulting and testifying expert witness fees and expenses against
all Defendants, as authorized by law under 42 U.S.C. 1983, 42
U.S.C. 1988, and 42 U.S.C. 1973l(e).
Co
Such other and further relief, both special and general, at law or in
equity, to which Plaintiffs may be justly entitled.
DATE: February 11, 2010
Respectfully submitted,
/s! Kent D. Krabill
Kent D. Krabill
State Bar No. 24060115
Jeremy A. Fielding
State Bar No. 24040895
John T. Cox III
State Bar No. 24003722
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-981-3800
Facsimile: 214-981-3839
ATTORNEYS FOR PLAINTIFFS
ORIGINAL COMPLAINT
0225%901/237029
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DMSION
KEITH A. LEPAK, MARVIN RANDLE,
DAN CLEMENTS, DANA BAILEY,
KENSLEY STEWART, CRYSTAL
MAIN, DAVID TATE, VICKI TATE,
MORGAN McCOMB, JACQUALEA
COOLEY AND JOE SISSOM,
CIVIL ACTION NO. 3-10-CV-OO277-P
Plaintiffs
CITY OF IRVING, TEXAS,
Defendant
DEFENDANTS’ ORIGINAL ANSWER
Defendant for answer to Plaintiffs’ Original Complaint alleges:
In regard to paragraph 1 of the Original Complaint, defendant admits the first sentence,
which merely describes the nature of the complaint. Defendant denies the allegations of
the second and third sentences. In regard to the remaining sentences in the paragraph,
defendant admits that the districts were drawn to be relatively equal in terms of total
population; however, in regard to the remaining allegations of those sentences, there are
insufficient allegations to permit the defendant either to admit or deny the allegations so,
accordingly, they are denied.
Defendant denies the allegations in paragraph 2 of the Original Complaint.
Defendant is without information to admit or deny the allegations of paragraph 3 of the
Original Complaint.
USCA5 29
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Defendant admits the factual allegations of paragraph 4 of the Original Complaint.
Defendant admits..~.at..~.p.l.~_.ti.’.~ ..h..~y~..~9..~ ~g~...~.. ~.s...~a....u.s..e....~..~..~t.~.. ~ig~as.. ~.~_ ................................
United States Constitution but deny that those provisions are violated or necessarily
relevant.
Defendant admits that this ease is brought under the United States Constitution and that
the quoted statutory provisions are the jurisdictional authority for such eases.
Although denying that plaintiffs have suffered any injury, defendant admits that it resides
in the Northern District of Texas.
o
Defendant is without information to admit or deny the allegations of paragraph 8 of the
Original Complaint.
°
Paragraph 9 merely indicates the relief being sought by the plaintiff and to that extent
need not be admitted.or denied. Defendant denies that the plaintiffs are eutifled to any
relief.
Defendant admits the allegations of paragraph I0 of the Original Complaint.
Defendant denies that Mr. Benavidez presented a 6-2-I plan to prove his claim under the
Voting Rights Act. Assuming that the plan referred to in paragraph 11 is the plan that
was offered as a settlement plan and approved by the court, defendant admits the second
sentence of paragraph I I of the Original Complaint. Without accepting the
characterization of the plan as being torturously gerrymandered, defendant is without
information to admit or deny that Mr. Benavidez claimed one district would be a majority
Hispanic district. It does admit that Mr. Benavidez, through his attorney, advised that one
proposed district "contains the area with the highest percentage of Hispanic citizens of
2
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voting age, while also recognizing the significant number of Hispanic voters who live
outside that area."
12.
Defendant admits the first sentence of paragraph 12 of the Original Complaint. In regard
to the second sentence, defendant denies that a six-district plan was ever submitted during
the trial of cause number B:07 CV 1850-P. Defendant denies that it made the argument
set out in the third sentence of paragraph of paragraph 12 of the Original Complaint in
regard to any six,district plan and, thus, denies the allegations of that sentence and the
fourth sentence.
13.
Without admitting the rationale for the decision, defendant denies that it adopted a 5-2-1
plan but admits that it agreed to propose such a plan to the district court as part of a
settlement agreement. Defendant admits the last sentence of paragraph 1B of the Original
Complaint.
14.
In regard to paragraph 14 of the Original Complaint and, on the assumption that the plan
referenced in paragraph 14 is the plan submitted to the district court as part of a
settlement of the case, defendant admits the first two sentences of paragraph 14. In
regard to the third sentence, the term "significant" is undefined and ambiguous, so
defendant can neither admit nor deny that the disparity is significant. With that
qualification, defendant admits the remainder of the third sentence. Defendant denies the
fourth sentence of paragraph 14, which refers to Hispanic residents and not to adult
Hispanic residents.
15.
In regard to paragraph 15 of the Original Complaint and assuming the disparity
referenced is in citizen-voting-age population, defendant denies the allegations of the first
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sentence and admits the allegations of the second sentence. In regard to the third and
fourth sentences, defendant denies that the calculation described in those sentences is an
appropriate one or will produce the number of citizens of voting-age population.
16.
In regard to the allegations of paragraph 16 of the Original Complaint, the first sentence is
premised on the meaning of "substantially," which is an ambiguous and undefined term.
Because the allegation is not sufficiently specific, defendant can neither admit nor deny it.
In regard to the allegations of the second sentence, the allegations do not provide
sufficient information to measure the number of voters or eligible voters and, thus,
defendant is without sufficient information either to admit or deny them.
17.
Defendant denies the allegations of paragraph 17 of the Original Complaint.
18.
Defendant denies the allegations of paragraph 18 of the Original Complaint.
19.
Paragraph 19 merely re-alleges prior allegations and does not require a separate response.
20.
Defendant denies the allegations of paragraph 20 of the Original Complaint.
21.
Defendant denies that the plaintiffs are entitled to the relief set out in the Prayer.
22.
All allegations in the Original Complaint that are not admitted are denied.
Respectfully submitted,
CHARLES R. ANDERSON
City Attorney
State Bar No. 01170500
CITY OF IRVING, TEXAS
825 W. Irving Boulevard
Irving, Texas 75060
Telephone: 972-721-2541
Facsimile: 972-721-2750
4
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C. ROBERT HEATH
State Bar No. 09347500
BICKERSTAFF HEATH
DELGADO ACOSTA LLP
3711 S. MoPac Expressway
Building One, Suite 300
Austin, Texas 78746
Telephone: (512) 472-8021
Facsimile: (512) 320-5638
By:
/s/ C. Robert Heath
C. ROBERT HEATH
Attorneys for Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served on counsel
of record listed below through the Court’s Notice of Electronic Filing and by certified mail, return
receipt requested, on this the 9~ day of March, 2010:
Kent D. Krabill
Jeremy A. Fielding
John T. Cox II1
LYNN TILLOTSON PI2,W.ER & COX, LLP
2100 Ross Ave., Suite 2700
Dallas, Texas 75201
Telephone: (214) 981-3800
Facsimile: (214) 981-3839
/s/ C. Robert Heath
C. ROBERT HEATH
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!N THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEITH A. LEPAK et al.,
Plaintiffs,
§
§
v.
§
CITY OF IRVING, TEXAS,
§
Defendant.
CIVIL ACTION NO.
3:10-CV-0277-P
§
ORDER
This is an action challenging the constitutionality of Irving’s recently-adopted electoral plan
for single-member city council positions. The defendant is the City of Irving. Certain Irving
residents who are in favor of the new redistricting plan ("Defendant Intervenors") filed a motion to
intervene. (Docket #10.) Though Plaintiffs oppose the motion, they did not file a response.
Defendant City of Irving consents to the intervention.
After review of the motion, the Court hereby GRANTS Defendant Intervenors’ motion to
intervene (Docket #10). IT IS FURTHER ORDERED that the Clerk of the Court shall enter
Defendant Intervenors’ proposed amended answer, which has been filed on the docket as Docket
#14.
It is SO ORDERED, this 12th day of May 2010.
UNITED STATES DISTRICT JUDGE
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Filed 02/02/2010 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MANUEL A. BENAVIDEZ,
Plaintiff
THE CITY OF IRVING, TEXAS and
HERBERT A. GEARS, THOMAS D.
SPINK, ELIZABETH (BETH) VAN
DUYNE, ALLAN E. MEAGHER, LEWIS
PATRICK, ROSE CANNADAY, RICK
STOPPER, SAM SMITH, and JOE
PHILIPP, in their official capacities,
CIVIL ACTION NO. 3:07 CV 1850-P
Defendants
FINAL JUDGMENT
Pursuant to the Court’s Order filed July 15, 2009, the Court’s initial judgment entered
that same day, the Memorandum of Agreement of the parties dated September 3, 2009, and the
Courts finding that the election system and districting plan set forth in this judgment was
precleared by the Attorney General of the United States pursuant to section 5 of the Voting
Rights Act, 42 U.S.C. § 1973c, on February 3, 2010, the Court issues judgment as follows:
1.
The City of Irving’s current at-large method of electing members to the City Council in
which all eight members of the council and the mayor are elected by the voters of the
entire city violates section 2 of the Voting Rights Act.
2.
The City of Irving is enjoined from administering, implementing, or conducting any
future City Council elections under a system where all members of the City Council are
elected at-large.
App. 001
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Beginning with the election to be held on the uniform election date in May 2010,
elections in the City of Irving will be conducted using a system in which six members of
the council are elected from single-member districts and the mayor and two members of
the council are elected at-large.
The six council districts will be as described in Exhibit 1 attached to and incorporated in
this judgment; provided, however, that the City of Irving may revise those districts
following the 2010 federal census arid at appropriate times in the future to reflect
population change and to conform to state and federal law.
Places 1, 2, and 7 will be on the ballot on the uniform election date in May 2010. Places
3, 5, and the Mayor will be on the ballot on the uniform election date in May 2011.
Places 4, 6, and 8 will be on the ballot on the uniform election date in May 2012. Should
Texas law change the uniform election date, the positions will be on the ballot on the
uniform dection date that most closely conforms to the schedule set out in this judgment.
=
Persons now in office may continue to serve through the expiration of their current terms
of office without regard to whether they reside in the district they represent. Any person,
including current incumbents, filing to run for a district position must reside in that
district to the extent required by state law and the Irving City Charter, in particular,
chapter 141 oftbe Texas Election Code and article IV, § 2(b) of the City Charter;
provided, however, that the durational residency requirement in the City Charter for
places 6 and 7 shall be interpreted as imposing the same requirement as is currently set in
the City Charter for places 1-5, while the durational residency requirement for places 2
and 8 shall be interpreted as having the same requirement as is currently set in the City
Charter for places 6, 7, and 8.
App. 002
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Attorneys’ fees in the amount of $200,000, which amount is inclusive of attorneys’ fees,
expenses, costs, and any other monetary liability of the City of Irving to plaintiff arising
from the claims presented in this litigation, arc awarded to plaintiff.
IT IS SO ORDERED,
Signed this 3~d day of February 2010.
J~RG~-A. S(~LI~
UNITED STATES DISTRICT JUDGE
Approved as to form and content:
.s_/_William A. Brewer IIl
William A. Brewer III
Michael L. Smith
Michael Veeser
BICKEL & BREWER STOREFRONT, P.L.L.C.
1717 Main Street, Suite 4800
Dallas, Texas 75201
Attorneys for Plaintiff
s/C. Robert Heath
C. Robert Heath
BICKERSTAFF HEATH
DELGADO ACOSTA LLP
3711 S. MoPa~ Expressway
Building One, Suite 300
Austin, Texas 78746
Charles R. Anderson
City Attorney
CITY OF IRVING, TEXAS
825 W. Irving Boulevard
Irving, Texas 75060
Attorneys for Defendants
App. 003
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Case 3:07-cv-01850-P Document 89-2 Filed 02/02/2010 Page I of 54
City of Irving - Plan 6-2-t
Legend
MANUEL A. BENAVIDEZ V. OTHE CITY OF IRVING, TEXAS
CML ACTION NO, 3:07 CV 1850-P
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City of Irving
-Plan 6-2-t 2000 Census Total and Voting/~a Population
ii
District
18~
0.58~& 219~ g.Og~
Bla0kVAPI SdT~dd
5
App. 005
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Tab 10
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEITH A. LEPAK, MARVIN RANDLE,
DAN CLEMENTS, DANA BAILEY,
KENSLEY STEWART, CRYSTAL
MAIN, DAVID TATE, VICKI TATE,
MORGAN M¢COMB, JACQUALEA
COOLEY AND JOE SISSOM,
Plaintiffs
CITY OF IRVING, TEXAS,
CML ACTION NO. 3:10-cv-00277-P
Defendaut
ROBERT MOON, RACHEL TORREZMOON, MICHAEL MOORE,
GUILLERMO ORNELAZ, GILBERT
ORNELAZ AND AURORA LOPEZ,
Defendan ts-lntervenors
DEFENDANT CITY OF IRVING’S RESPONSE TO
PLAINTIFFS’ FIleT SET OF INTERROGATORIES
TO:
Plaintiffs Keith A. Lepak, Marvin Randle, Dart Clernents, Dana Bailey, Kensley Stewart,
Crystal Main, David Tate, Vi~ki Tare, Morgan McComb, Jacqualea Cooley and Joe
Sissom by and through their attorneys of record, Kent D. Krabill, Jeremy A. Fielding and
John T. Cox tiT, Lynn Tillotson Pinker & Cox, LLP, 2100 Ross Avenue, Suite 2700,
Dallas, Texas 75201.
Pursuant to Rule 33, FED. R. CIv. P., Defendant City of Irving makes this response to
Plaintiffs’ First Set ofhterrogatories.
App. 058
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Interrogatory No. I:
Based on the Current Demographic Data, please state the Hispanic CVAP, Anglo CVAP,
Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, other
CVAP, and total CVAP for Irving City Council District 1.
RESPONSE:
Please see exhibit 1 to this response to interrogatories.
The interrogatory requests that the answer be based on Current Demographic Data, which
is defined as "the demographic data used to create the City of Irving ]Plan 6-2-1, which was
attached as Exhibit 1 to and incorporated into the Final Judgment in Civil Action No. 3:07-CV1850-P." That plan Was drawn to have districts that are relatively in total population. The total
population used for drawing the districts comes fxom the 2000 Census 100 percent count
information. That information source does not contain information on citizen-voting-age
population. To answer your question on the citizen-voting-age population for each district, we
have relied on Special Tabulation 56 that is prepared by the Bureau of the Census and that comes
fxom 2000 Census "long form" data. Long form data comes fi’om a sample. The Special
Tabulation data is reported at the block group level and is subject to rounding and suppression.
The citizen-voting-age population for each racial and ethnic group in the block group is assigned
to the various blocks in that block group according to the ratio of the voting-age population of the
racial or ethnic groups in each block to the voting-age populatio~x of those racial or ethnic groups
in the block group. The block level data is then aggregated to single-member district.
Your inquiry asks for the citizen-voting-age population for American Indians, Asian,
Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small’, Special
Tabulation 56 does not report them separately but, rather, combines them into the Other category.
2
App. 059
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Accordingly, the citizen-voting-age population for those groups is combined into the Other
category in Exhibit 1.
Interrogatory No. 2:
Based on the Current Demographic Data, please state the Hispanic CVAP, Anglo CVAP,
Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, other
CVAP, and total CVAP for Irving City Council District 3.
RESPONSE:
Please see exhibit 1 to this response to interrogatories.
The interrogatory requests that the answer be based on Current Demographic Data, which
is defined as "the demographic data used to create the City of Irving Plan 6-2-1, which was
attached as Exhibit 1 to and incorporated into the Final Judgment in Civil Action No. 3:07-CV1850-P." That plan was drawn to have districts that are relatively.in total population. The total
population used for drawing the districts comes from the 2000 Census 100 percent count
information. That information source does not contain information on citizen-voting-age
population. To answer your question on the citizen-voting-age population for each district, we
have relied on Special Tabulation 56 that is prepared by the Bureau of the Census and that comes
from 2000 Census "long form" data. Long form data comes from a sample. The Special
Tabulation data is reported at the block group level and is subject to rounding and suppression.
The citizen-voting-age population for each racial and ethnic group in the block group is assigned
to the various blocks in that block group according to the ratio of the voting-age population of the
racial or ethnic groups in each block to the voting-age population of those racial or ethnic groups
in the block group. The block level data is then aggregated to single-member, district.
App. 060
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Your inquiry asks for the citizen-voting-age population for American Indians, Asian,
Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small, Special
Tabulation 56 does not report them separately but, rather, combines them into the Other category.
Accordingly, the citizen-voting-age population for those groups is combined into the Other
category in Exhibit 1.
Interrogatory No. 3:
Based on the Current Demographic Data, please state the Hispanic CVAP, Anglo CVAP,
Black CVAP, American Indian CVAP, Asian CVAP, Hawah’an Pacific Islander CVAP, other
CVAP, and total CVAP for Irving City Council District 4.
RESPONSE:
Please see exhibit 1 to th~s response to interrogatories.
The interrogatory requests that the answer be based on Current Demographic Data, which
is defined as "the demographic data used to create the City of Irving Plan 6-2-1, which was
attached as Exhibit 1 to and incorporated into the Final Judgment in Civil Action No. 3:07-CV1850-P." That plan was drawn to have districts that are relatively in total population. The total
population used for drawing the districts comes from the 2000 Census I00 percent count
information. That information source does not contain information on citizen-voting-age
population, To answer your question on the citizen-voting-age population for each district, we
have relied on Special Tabulation 56 that is prepared by the Bureau of the Census and that comes
from 2000 Census "long form" data, Long form data comes from a sample. The Special
Tabulation data is reported at the block group level and is subject to rounding and suppression.
The citizen-voting-age population for each racial and ethnic group in the block group is assigned
4
App. 061
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to the various blocks in that block group according to the ratio of the voting-age population of the
racial or ethnic groups in each block to the voting-age population of those racial or ethnic groups
in the block group. The block 1v1 data is then aggregated to single-member district.
Your inquiry asks for the citizen-voting-age population for American Indians, Asian,
Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small, Special
Tabulation 56 does not report them separately but, rather, combines them into the Other category.
Accordingly, the citizen-voting-age population for those groups is combined into the Other
category in Exhibit 1.
Interrogatory No. 4:
Based on the CutTent Demographic Data, pleasv state the Hispanic CVAP, Anglo CVAP,
Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, other
CVAP, and total CVAP for Lwing City Council District 5.
~ RgSPONSE:
Please sev exhibit 1 to this response to interrogatories.
The interrogatory requests that the answer be based on Current Demographic Data, which
is defined as "the demographic data used to create the City of Irving Plan 6-2-1, which was
attached as Exhibit 1 to and incorporated into the Final Judgment in Civil Action No. 3:07-CV1850-P." That plan was drawn to have districts that are relatively in total population. The total
population used for drawing the districts comes from the 2000 Census 100 percent count
information. That information source does not contain information on citizen-voting-age
population. To answer your questio~n on the citizen-voting-age population for each district, we
have relied on Special Tabulation 56 that is prepared by the Bureau of the Census and that comes
App. 062
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fi’om 2000 Census "long form" data. Long form data comes fi’om a sample. The Special
Tabulation data is reported at the block group level and is subject to rounding and suppression.
The citizen-voting-age population for each racial and ethnic group in the block group is assigned
to the various blocks in that block group according to the ratio of the voting-age population of the
racial or ethnic groups in each block to the voting-age population of those racial or ethnic groups
in the block group. The block level data is then aggregated to single-member disU’ict.
Your inquiry asks for the citizen-voting-age population for American Indians, Asian,
Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small, Special
Tabulation 56 does not report them separately but, rather, combines them into the Other category.
Accordingly, the citizen-voting-age population for those groups is combined into the Other
category in Exhibi~ I.
Interrogatory No. 5:
Based on the Current Demographic Data, please state the Hispanic CVAP, Anglo CVAP,
Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, other
CVAP, and total CVAP for Irving City Council District 6.
RESPONSE:
Please see exhibit 1 to this response to interrogatories.
The interrogatory requests that the answer be based on Current Demographic Data, which
is defined as "the demographic data used to create the City of Irving Plan 6-2-1, which was
attached as Exhibit 1 to and incorporated into the Final Judgment in Civil Action No. 3:07-CV1850-P." That plan was drawn to have districts that are relatively in total population. The total
population used for drawing the districts comes from the 2000 Census 100 percent Count
App. 063
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information. That information source does not contain information on citizen-voting-age
population. To answer your question on the citizen-voting-age population for each district, we
have relied on Special Tabulation 56 that is prepared by the Bureau of the Census and that comes
from 2000 Census "long form" data. Long form data comes from a sample. The Special
Tabulation data is reported at the block group level and is subject to rounding and suplxession.
The citizen-voting-age population for each racial and ethnic group in the block group is assigned
to the various blocks in that block group according to the ratio of the voting-age population of the
racial or ethnic groups in each block to the voting-age population of those racial or ethnic groups
in the block group. The block level data is then aggregated to single-member district.
Your inquiry asks for the citizen-voting-age population for American Indians, Asian,
Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small, Special
Tabulation 56 does not report them separately but, rather, combines them into the Other category.
Accordingly, the citizen-voting-age population for those groups is combined into the Other
category in Exhibit 1.
Interrogatory No. 6:
Based on ~e Current Demographic Data, please state the Hispanic CVAP, Anglo CVAP,
Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, other
CVAP, and total CVAP for Irving City Council District 7.
RESPONSE:
Please see exhibit 1 to this response to interro, gatories.
The interrogatory requests that the answer be based on Current Demographic Data, which
is defined as "the demographic data used to create the City of ~ing Plan 6-2-1, which was
7
App. 064
USCA5 261
Case: 11-10194
Document: 00511443702
Page: 60
Date Filed: 04/12/2011
attached as Exhibit 1 to and incorporated into the Final Judgm~t in Civil Action No. 3:07-CV1850-P." That plan was drawn to have districts that are relatively in total population. The total
population used for drawing the districts comes from the 2000 Census 100 percent count
information. That information source does not contain information on citizen-voting-age
population. To answer your question on the citizen-voting-age population for each district, we
have relied on Special Tabulation 56 that is prepared by the Bureau of the Census and that comes
from 2000 Census "long form" data. Long form data comes from a sample. The Special
Tabulation data is reported at the block group level and is subject to rounding and suppression,
The citizen-voting-age population for each ra~ial and ethnic group in the bIock group is assigned
to the various blocks in that block group according to the ratio of the voting-age p~pulation of the
racial or ethnic groups in each block to the voting-age population of those racial or ethnic groups
in the block group. The block level data is then aggregated to single-member district.
Your inquiry asks for the citizen-votlng-age population for American Indians, Asian,
Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small, Special
Tabulation 56 does not report them separately but, rather, combines them into the Other ’category.
Accordingly, the citizen-voting-age population for those groups ’is combined into the Other
category in Exhibit 1.
8
App. 065
USCA5 262
Case: 11-10194
Document: 00511443702
Page: 61
Date Filed: 04/12/2011
VERIFICATION
STATE OF TEXAS
§
COUNTY OF TRAVIS
§
Sherry McCall, being duly sworn, upon her oath deposes and says:
"1. I am a GIS Specialist with BickerstaffHeath Delgado Acosta LLP, counsel for
Defendant City of Irving.
2. I have read the interrogatories, and the foregoing answers to them are true
according to the best of my knowledge, information and belief."
App. 066
USCA5 263
Case: 11-10194
Document: 00511443702
Page: 62
Date Filed: 04/12/2011
Respectfully submi~d,
CHARLES R. ANDBRSON
City Attorney
State Bar No. 01170500
CITY OF IRVING, TEXAS
825 W. Inring Boulevard
Irving, Texas 75060
Telephone: 972-721-2541
Facsimile: 972-721-2750
C. ROBERT HEATH
State Bar No. 09347500
BICKERSTAFF HEATH DELGADO ACOSTA LL~
3711 S. MoPac Expressway
Building One, Suite 300
Austin, Texas 78746
Telephone: (512) 472-8021
dttorney~ for Defendants
I0
App. 067
USCA5 264
Case: 11-10194
Document: 00511443702
Page: 63
Date Filed: 04/12/2011
I hereby certify that a true and correct copy of the foregoing document was served on counsel
of record listed below by el~ctronic transmission and by United States mail, certified, return receipt
requested, on this th~__~day of lune, 2010 as follows:
Kent D. Krabill
kkrabill@,lyrml|p.com
lcr~my A. Fielding
ifieldi rm~,,lvnnllp.com
~ohn T. Cox I~
tcox@[ynnllp.com
LYNN TILLOTSON PINKER ~l; COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Xttorney~ for Plaintiffa
Nina Perales
n.verales(~maldef.om
Ivan Espinoza-Madrigal
iespinoz _a@~. ~de£or.g
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
1 I0 Broadway St., Suite 300
San Antonio, Texas 78205
Attorney for Defendants.Intervenora
11
App. 068
USCA5 265
Case: 11-10194
Document: 00511443702
Page: 64
Date Filed: 04/12/2011
Exhibit I ..... ............ ........
City of Irving
Settlement 6-2-1 Plan
2000 Census Total and Voting Age Population/Special Tabulation 56 Dedved Citizenship Data
Plan
8-2-t
Total Population Total VAP~
Total
CVAPm
Hispanic
CVAP
Anglo
CVA~
CVAP
Other* CVAP
20,93C
11,231
5~628
935
25,276
20,617
2,808 .... 1,!,,,770
4r934
22,635
19,161
2,8721
1,4~302
976
33~126
28~000
19~673
2~463
13~8tl
2~2,32
30:674
~,167
19:9201
1,382
14,9(J8
2,080
1.482
,23,368
~,785
2,858
13,171
! ,058
698
143,395
108,387
1~6o7
73,678
12,217
5,988
..... 31,642
31,993
,
19t,613
PL94-tTt
PL94-t71
t00%
t00%
524
I~009
Special
Tab
,M
to m.o.k
to Block
Tab
Tab
Dedved
to Block
to Bl(mk ,,
Tab
, , ,to Block
¯Other Citizens is compdsed of a comblna~on ~)f Amed(:an Indian, Asian, Hawa!lardPacific Islander a~l Other.
"Voting Age Popuiation
¯**Ci~en Voting Age Population
"
Some totals may not add to 100% due to rourldlng,
6~010
APi~. 069
USCA5 266
Case: 11-10194
Document: 00511443702
Page: 65
Tab 11
Date Filed: 04/12/2011
Case: 11-10194
SUMMARY REPT-GRODP DETAIL
Document: 00511443702
Page: 66
2010 Joint Election
May 8, 2010
Dallas County, Texas
UI~OFFIC~AL RESULTS
Run Date:05/13/10 12:33
Report SL45A
TOTAL VOTES
PRECINCTS C06NTED (OF 670) .....
REGISTERKD VOTERS - TOTAL .....
BALLOTS CAST - TOTAL .......
VOTER TDRI~ODT - TOTAL ......
Date Filed: 04/12/2011
570
786,889
39,017
%
EV-In Person
Election Day
Prov EV_ED
Page 001
ED_~DA
100 .O0
17,993
313
4.96
20,670
14
27
Balch Sprlngs-Council P1 2 At-Lg
VOTE FOR 1
(WITH 23 OF 23 PRECINCTS COUNTED)
Wanda Adams ..........
Donna M. Taulbee ........
Matthew Vincent Patrick ......
Julle Greer ..........
Total .........
78
58
58
187
381
20.47
15.22
15.22
49.08
33
25
34
89
181
1
0
0
2
3
44
33
24
96
197
0
0
0
0
O
0
0
0
0
0
Ealoh Sprlngs-Dist 4
VOTE FOR 1
(WITH 4 OF 4 PRECINCTS COUNTED)
Linda L. Pineda ........
Charlene Rushing ........
Kerrnda Sanders ........
Total .........
13
22
8
43
30.23
51.16
18.60
3
11
4
0
0
0
10
11
4
25
0
0
0
0
0
0
0
Balch Springs-D~st 6
VOTE FOR 1
(WITH 6 OF 6 PRECINCTS COUNTED)
Ed Grant ...... ¯ .....
Carria J. M~rshall .......
Total .........
29
45
74
39.19
60.81
19
23
42
0
0
1]
10
22
32
0
0
0
O
O
0
43.75
56.25
26
24
50
O
0
0
16
38
46
0
0
0
0
0
0
255
255
0
9~
193
290
0
0
0
Balch Sprzngs-Dist 3 Recall Election
VOTE FOK 1
(WITH 4 OF 4 PRECINCTS COUNTED)
Yes ............
Total .........
54
96
Cedar Hill-Mayor
VOTE FOR
(WITH 19 OE 19 PRECINCTS COUNTED)
Rob Franke
Total .........
541
541
i00.00
281
281
Cedar Hill-CouncziMember P1 3
VOTE FOR l
(WITH 19 OF 19 PRECINCTS COUNTEDJ
Michael Qu1idon ........
~allace Swayze .........
Total .........
224
355
579
38.69
61.31
124
160
284
3
2
5
o
o
App. 164
USCA~ 361
Case: 11-10194
SUM~4J~Y REPT-GROUP DETAIL
Document: 00511443702
Page: 67
Date Filed: 04/12/2011
~q~OFFICIAL RESULTS
201~ Joint Election
May 8, 2010
Dallas County, Texas
Run Date:05/13/10 12:33 PM
Report EL45A
TOTAL VOTES
EV-In Person
Electaon Day
Prov EV ED
Page 002
ED ADA
Cedar Hili-Councll Member P1 5
VOTE FOR 1
(WITH 19 OF 19 PRECINCTS COUNTED)
Stephen Mason
Total .........
456
456
100.00
Cockrell Hill-Mayor
VOTE FOR 1
(WITH 1 OF 1 PRECINCTS COUNTED)
Luia D. Carrera ........
Bill Douglas .........
Total .........
163
lOO
263
61.98
38.02
55
34
89
9
18
57
155
1
0
1
0
0
0
Cockrell Hill-Alderman P1 1
VOTE FOR 1
{WITH 1 OF 1 PRECINCTS COUNTED}
MlrlamRour~guez ........
Adabelle Rodri~ez .......
Total
121
148
269
44.98
55.02
54
37
91
13
5
18
54
105
159
o
1
i
0
0
0
cockrell Hill-Alderman P1 2
~)TE FOR 1
(WITH I OF 1 PRECINCTS COUNTED)
C.P. Slayton .........
Sam Rodriguez .........
Total .......
0 .
131
142
273
47.99
52.01
62
17
52
iii
163
0
1
1
0
0
0
DeSoto-Mayor
VOTE FOR 1
tWITE 26 OF 26 PRECINCTS CODNTED)
Carl O. Sherman ........
Carl L. W~lliams
Total .........
1,376
1,135
2,511
54.80
45.20
744
674
1,410
2
7
9
630
454
1,084
o
o
0
0
0
DeSoto-Council Member ~i 3
VOTE FOR 1
(WITH 26 OF 26 PRECINCTS COUNTED)
Paul F. Benson .........
Denxse Valentine
Total .........
333
2,078
2,411
13.81
86.19
196
1,178
1,374
3
6
9
134
894
1,028
0
0
0
0
0
0
DeSoto-Council Member Pl 5
VOTE FOR
(WITH 26 OF 26 PRECINCTS COUNTED)
Sandy Respess .........
Total .........
1,918
1,918
i00.00
1,14~
1,14~
212
212
239
239
91
770
770
App. 165
USCA5 362
Case: 11-10194
SUPIV~RY REPT-GROOP DETAIL
Document: 00511443702
Page: 68
2010 Joint Election
May 8, 2010
Dallas ~ounty, Tsxas
UNOFFICIAL RESOLT$
Bun Date:05/13/10 12:33 PM
Report EL45A
TOTAL VOTES
DeSoto-Council PI 6 Enex
VOTE FOR I
(WITH 26 0~’ 26 PRECINCTS COUNTED)
Thelonlaus ~Theo" Pe~gh ......
Linda Lamer
James E. Colller, Jr
James Zander .........
Total .........
Date Filed: 04/12/2011
276
360
6Q0
1,184
2,420
%
11.40
14.88
24.79
48.93
EV-In Person
135
205
296
743
1,379
EV-Mail Election Day
1
3
1
4
9
140
152
3U3
437
1,032
~rov EV_ED
Page 003
EDADA
0
0
0
0
0
0
0
0
O
0
96
67
163
0
0
0
0
717
DeSots-Council P1 70nex
VOTE FOR 1
(WITH 26 OF 26 PRECINCTS COUNTED)
Total .........
1,832
1,050
Duncanville D~strict 04
VOTE FOR 1
(WITH 5 OF 5 PRECINCTS COUNTED)
Grady W. S~xithey, Jr .......
Charles A. Card ........
Total .........
220
113
333
66.07
33.93
123
46
169
Farmers Branch-Council Member
VOTE FOR
(WITH 18 OF 18 PRECINCTS COUNTED)
Matt Wenthold .........
Tlm Scott ..........
Total .........
1,315
1,519
2,834
46.40
53.60
591
841
1,432
7
2
9
1,393
0
0
0
0
0
0
Farmers Branch-Council MeTaber P1 4
VOTE FOR I
(WITH 18 OF 18 PRECINCTS COUNTED)
Kat Holmes ..........
Brenda Brodrlck ........
Davi~ B. Koch .........
Total .........
537
919
1,389
2,845
18.88
32.30
4B.82
196
467
774
1,437
2
?
0
9
339
445
615
1,399
0
0
0
0
0
0
0
0
Garland District 05
VOTE FOR I
(WITH 20 OF 20 PRECINCTS CODNTED)
Joh~ D. Wlllls .........
Davld McNeely .........
Total .........
686
273
959
71.53
28.47
210
82
292
0
4
476
187
663
0
0
0
0
0
0
Glenn Helghts-Mayor
VOTE FOR
IWITH 2 OF 2 PBECINCTS COUNTED)
Victor Perelra .........
Tlsh Tillis ..........
Dorothy M. Loney ........
Total .........
141
8
61
210
67.14
3.81
29.05
55
3
18
76
0
0
0
0
85
5
43
133
0
0
0
0
1
o
o
1
774
i
0
1
App. 166
USCA5 363
Case: 11-10194
SHMMARY R~PT-GROUP DETAIL
Document: 00511443702
Page: 69
2010 Joint Election
May 8, 2010
Dallas County, Texas
Run Date:05/13/10 12:53 PM
Date Filed: 04/12/2011
UNOFFICIAL RESULTS
Report EL45A
TOTAL VOTES
%
EV-In Person
KV-Mail
Election Day
Glenn Heights-Council Member P1 2
VOTE £OR 1
(WITH 2 OF 2 PRECINCTS COUNTED)
Leon Tare ..........
Total .........
155
155
100,00
59
59
0
0
96
96
Glenn Heights-Council Member P1 4
VOTE FOR 1
(WITH 2 OF 2 PRECINCTS COUNTED}
Mary Ann Chancellor . . . ; . , .
Total ~ ........
159
159
100.00
61
61
0
0
98
98
Glenn Heights-Counczl Member P1 6
VOTE FOB 1
(~ITH 2 OF 2 PRECINCTS COONTED)
Daniel Freeman .........
Total .........
154 100.00
154
58
58
0
0
96
96
Grand Prairie District 04
VOTE FOR 1
(WITH 4 OF 4 PRECINCTS COUNTEDJ
Jeffrey B. sodoma ........
Richard J. Fregoe ........
Total .........
34
103
137
24.82
75.18
16
37
53
0
21
11
18
54
72
Hutch~na-Mayor
VOTE FOR 1
(WITH 5 OF 5 PRECINCTS COUNTED}
Artis Johnson
Total .........
163
163
100.00
59
59
2
2
102
102
Hutchins-Council Vote for Two
VOTE FOR 2
(WITH 5 OF 5 PP~ECINCTS COUNTED)
James L. Spesce ........
Pat Miller ..........
Rhenett {Na-Na} Gardner ......
Alex L. Love .........
Harry B. Gross .........
Cecile Marie Gardner .......
Saundra J, King ........
Total .........
46
87
21
92
65
51
29
391
11.76
22,25
5.37
23.53
16.62
13.04
7.42
13
58
8
31
24
18
Ii
143
0
0
2
0
2
0
0
4
Irving-Co~ncxl Member Dist 01
VOTE FOR 1
(WITH 14 OF 14 PRECINCTS COONTED)
Trlnl C. Gonzalez ........
M~ke Gallaway .........
Total .........
210
239
449
46.77
53.23
79
156
235
5
8
13
Prov EV_ED
Page 004
ED ADA
o
o
o
0
1
1
33
49
11
61
39
33
18
244
0
0
0
O
0
0
0
0
0
0
0
0
0
0
O
0
125
75
200
0
0
0
1
1
App. 167
USCA5 364
Case: 11-10194
S~ARY REPT-GROUP DETAIL
Document: 00511443702
Page: 70
201~ Joxnt Election
May 8, 2010
Dallas County, Texas
Date Filed: 04/12/2011
UNOFFICY~AL RESULTS
Run Date:05/13/10 12:33 PM
Report ELA5A
TOTAL VOTES
%
EV-In Person
EV-Mail Election Day
Irvlng-Council P1 2 At-Lg
VOTE FOR
IWITH 89 OF 89 PRECXNCTS COUNTED)
Roy Santoscoy
Tom Sp~nk
Total .........
3,617
3,178
6,795
53.23
46.77
1,979
1,848
3,827
23
27
50
1,614
1,381
2,915
xr~ing-Co~ncll Member DISE 7
VOTE POE 1
(WITH 19 OF 19 PRECINCTS CODNTED|
Kim L~mberg ..........
Sam C. Smith .........
Gerald Farris
Total
435
567
554
1,556
27.96
36.44
35.60
244
334
320
898
3
5
1
9
3,094
3,532
6,626
46.69
53.31
1,806
1,936
3,742
3,371
3,118
6~489
51.95
48.05
3,104
3,442
6,546
Prov EV_ED
i
1
2
0
1
1
188
228
233
649
o
o
o
o
o
15
54
49
1,272
1,560
2,832
1
1
2
o
I
i
1,965
1,704
3,669
18
30
48
i,~86
1,383
2,769
2
2
8
1
I
47.42
52.58
1,795
1,898
3,693
16
31
47
1,292
1,511
2,803
1
1
2
0
I
I
2,785
3,811
6,596
42.22
5~.~8
1,613
2,111
3,724
21
29
5~
1,150
1,669
2,819
2
0
1
1
241
301
542
4q.46
55.54
166
189
355
8
5
13
~7
107
174
0
0
0
Irving - Prop 1
VOTE FOR 1
(WITH 89 OF 89 PRECINCTS COUNTED)
Total .........
Irving - Prop 2
VOTE FOE
(WITH 89 OF 89 PRECINCTS COUNTED)
YES
Total .........
Irving - Prop 3
VOTE FOR
(WITH 89 OF 89
YES
Page 005
ED ADA
PRECINCTS COUNTED)
Total .........
Irving - Prop 4
VOTE FOR
(WITH 89 OF 88 PRECINCT5 COURTED)
Total
Lancaster DlstrlOt
VOTE FOR
(WITH 8 OF 8 PRECINCTS COUNTED)
Carol Strain-Burk
Walter Weaver .........
Total .........
App. 168
USCA5 365