IN THE UNITED STATES COURT OF APPEALS KEITH A. LEPAK ...redistricting.lls.edu/files/5th lepak 20110412 record.pdfOn Appeal from Civil Action No. 3:10-cv-277 in the United States District

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 Defendants-Appellees.

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: 1 Date Filed: 04/12/2011

1

INDEX

Tab Description Page No. Docket No.

1 District Court Docket Sheet – Northern District of Texas (Dallas) USCA5 1-12 N/A

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


2

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


Tab I


STICKNEY, CLOSED, APPEAL

U.S. District CourtNorthern District of Texas (Dallas)

CIVIL DOCKET FOR CASE #: 3:10-cv-00277-P

Lepak et al v. City of Irving, TexasAssigned to: Judge Jorge A SolisReferred to:Demand: $0Lead Docket: NoneRelated Cases: NoneCases in other court: NoneCause: 28:1331 Fed. Question

Date Filed: 2/11/2010Jury Demand: NoneNature of Suit: 441 Civil Rights: VotingJurisdiction: Federal Question

Plaintiff

Keith A Lepak represented byKent D KrabillLynn Tillotson Pinker & Cox LLP2100 Ross AveSuite 2700Dallas, TX 75201US214/981-3800Fax: 214/981-3839Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Jeremy A FieldingLynn Tillotson Pinker & Cox LLP2100 Ross AveSuite 2700Dallas, TX 75201US214/981-3800Fax: 2141981-3839Email: jfielding @ lynnllp.comATTORNEY TO BE NOTICED

John T Cox, HILynn Tillotson Pinker & Cox LLP2100 Ross AveSuite 2700Dallas, TX 75201US214/981-3805Fax: 214/981-3839Email: [email protected] TO BE NOTICED

USCA5 1


Marvin Randle

Dan Clements

Dana Bailey

Kensley Stewart

Crystal Main

represented by

represented by

represented by

represented by

represented by

Kent D Krabill(See above for address)LEAD ATTORNEYATTORNEY 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











USCA5 2


David Tate

Vicki Tate

Morgan McComb

Jacqualea Cooley

represented by

represented by

represented by

representedby














USCA5 3


Joe Sissom represented by





Vo

Defendant

City of Irving, Texas represented byC Robert HeathBickerstaff Heath Delgado Acosta LLP3711 S. Mopac ExpresswayBuilding OneSuite 300Austin, TX 78746USA512/472-8021Fax: 5121320-5638Email: bheath @ bickerstaff.comLEAD ATTORNEYATTORNEY TO BE NOTICED

Charles R AndersonIrving City Attorney’s Office825 W Irving BlvdIrving, TX 75060USA972/721-2541Email: canderso @ci.irving.tx.usATTORNEY TO BE NOTICED

Vo

Intervenor Defendant

Robert Moon represented by Nina PeralesMexican American Legal Defense &Educational Fund Inc

USCA5 4


110 BroadwaySuite 300San Antonio, TX 78205USA210/224-5476Fax: 210/224-5382 FAXEmail: nperales @maldef.orgLEAD ATTORNEYATTORNEY TO BE NOTICED

Rachel Torrez Moon represented by

Ivan E Espinoza-MadrigalMexican American Legal Defense &Educational Fund110 BroadwaySuite 300San Antonio, TX 78205US210/224-5476Fax: 210/224-5382Email: [email protected] TO BE NOTICED

Nina Perales(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED

Michael Moore represented by

Ivan E Espinoza-Madrigal(See above for address)ATTORNEY TO BE NOTICED


GuiHermo Ornelaz represented by



Gilbert Ornelaz represented by



Ivan E Espinoza-Madrigal(See above for address)

USCA5 5


Aurora Lopez represented by

ATTORNEY TO BE NOTICED



Vo

Amicus

United States of America, AmicusCuriae

represented byAnna Marks BaldwinUS Department of Justice - Civil RightsDiv - Voting Section950 Pennsylvania Ave NWBRoom 7201Washington, DC 20530US202/305-4278Email: Anna.Baldwin @ usdoj.govLEAD ATTORNEYATTORNEY TO BE NOTICED

Jared Michael SladeUS Department of Justice - Civil RightsDiv - Voting Section950 Pennsylvania Ave NWBRoom 7269Washington, DC 20530US202/305-4733Email: Jared.Slade @ usdoj.govATTORNEY TO BE NOTICED

T Christian Herren, JrUS Department of JusticeCivil Rights DivisionPO Box 66128Washington, DC 20035-6128USA202/514-6196

Filing Date

2/11/2010(p.13)

#

1

Docket Text

COMPLAINT against City of Irving, Texas filed by Keith A Lepak, MarvinRandle, Dan Clements, Dana Bailey, Kensley Stewart, Crystal Main, David Tate,

USCA5 6


2/11/2010(p.19)

2/15/2010(p.21)

Vicki Tate, Morgan McComb, Jacqualea Cooley, Joe Sissom. Summons(es) notrequested at this time. Ineach Notice of Electronic Filing the filer receives, thejudge assignment is indicated in the subject line, and a link to the Judges CopyRequirements is provided. The court reminds the filer that any required copy of thisand future documents must be delivered to the judge, in the manner prescribed,within three business days of filing. (Filing fee $350; Receipt number05390000000003121795) (Krabill, Kent) Modified on 2/11/2010 (klm). (Entered:2/11/2010)

2

ADDITIONAL ATTACHMENTS Civil Cover Sheet to [1] Complaint by PlaintiffsDana Bailey, Kensley Stewart, Crystal Main, David Tate, Vicki Tate, MorganMcComb, Jacqualea Cooley, Joe Sissom, Keith A Lepak, Marvin Randle, DanClements. (Krabill, Kent). (Entered: 2/11/2010)

Request for Clerk to issue Summons filed by Dana Bailey, Kensley Stewart,Crystal Main, David Tate, Vicki Tate, Morgan McComb, Jacqualea Cooley, JoeSissom, Keith A Lepak, Marvin Randle, Dan Clements. (Krabill, Kent) (Entered:2/15/2010)

2/16/20104 Summons Issued as to City of Irving, Texas. (skt) (Entered: 2/16/2010)(p.23)

2118/2010(p.25)

CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT byDana Bailey, Kensley Stewart, Crystal Main, David Tate, Vicki Tate, MorganMcComb, Jacqualea Cooley, Joe Sissom, Keith A Lepak, Marvin Randle, DanClements. (Krabill, Kent) (Entered: 2/18/2010)

2/19/2010 6 SUMMONS Returned Executed as to City of Irving, Texas; served on 2/17/2010.(p.27) (mfw) (Entered: 2/19/2010)

3/9/20107

Defendant’s Original ANSWER to [1] Complaint,,, filed by City of Irving, Texas(p.29) (Heath, C) (Entered: 3/9/2010)

3/9/20108

CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by(p.34) City of Irving, Texas. (Heath, C) (Entered: 3/9/2010)

Order for Scheduling Order Proposal: Proposed Scheduling Order due by3/17/2010 9 4/20/2010. (Ordered by Judge Jorge A Solis on 3/17/2010) (svc) (Entered:(p.36)

3/18/2010)

4/2/2010 10(p.38)

114/20/2010(p.67)

MOTION to Intervene as Defendants filed by Robert Moon, Rachel Torrez Moon,Michael Moore, Guillermo Omelaz, Gilbert Ornelaz, Aurora Lopez withBrief/Memorandum in Support. (Attachments: # (1) Exhibit A). Party RobertMoon, et al. added. (Perales, Nina) (Entered: 4/2/2010)

Proposal for contents of scheduling and discovery orderby Dana Bailey, City ofIrving, Texas, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main,Morgan McComb, Marvin Randle, Joe Sissom, Kensley Stewart, David Ti~te, VickiTate. (Krabill,Kent) (Entered: 4/20/2010)

USCA5 7


4/2712010(p.70)

4/30/2010(p.78)

AMENDED COMPLAINT against All Defendants filed by Jacqualea Cooley,Vicki Tate, David Tate, Marvin Randle, Kensley Stewart, Crystal Main, MorganMcComb, Dan Clements, Keith A Lepak, Joe Sissom, Dana Bailey. (Attachments:# (1) Exhibit(s) A) (Krabill, Kent) (Entered: 4/27/2010)

13

SCHEDULING ORDER: This case is scheduled for NON-JURY TRIAL on thisCourt’s two-week docket beginning 2/7/2011 09:00 AM before Judge Jorge ASolis. 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 by10/21/2010. 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)

5/5/2010(p.81) 14

Supplemental Document by Aurora Lopez, Rachel Torrez Moon, Robert Moon,Michael Moore, Gilbert Ornelaz, Guillermo Ornelaz as to [10] MOTION toIntervene as Defendants Exhibit A (Amended Answer in Response to PlaintiffsAmended Complaint). (Perales, Nina) (Entered: 5/5/2010)

5112/201015

ORDER granting [10] Motion to Intervene. (see order) (Ordered by Judge Jorge A(p.88) Solis on 5/12/2010) (axm) (Entered: 5/12/2010)

Defendant-Intervenors’ ANSWER to [12] Amended Complaint, filed by Aurora5/12/2010(p.89) 16 Lopez, Rachel Torrez Moon, Robert Moon, Michael Moore, Gilbert Ornelaz,

Guillermo Omelaz. (tin) (Entered: 5/13/2010)

5/28/201017(p.95)

Plaintiffs’ Rule 26 Initial Pretrial Disclosures filed by Dana Bailey, Dan Clements,Jacqualea Cooley, Keith A Lepak, Crystal Main, Morgan McComb, MarvinRandle, Joe Sissom, Kensley Stewart, David Tate, Vicki Tate. (Krabill, Kent)(Entered: 5/28/2010)

6/7/201018(p.103)

Application for Admission Pro Hac Vice with Cert. of Good Standing for AttorneyIvan Espinoza-Madrigal (Filing fee $25; Receipt number 0539-3301440) filed byAurora Lopez, Rachel Torrez Moon, Robert Moon, Michael Moore, GilbertOrnelaz, Guillermo Ornelaz (Attachments: # (1) Exhibit(s) Certificate of GoodStanding, # (2) Proposed Order) (Espinoza-Madrigal, Ivan) (Entered: 6/7/2010)

6/15/2010 19(p.lO8)

ORDER granting [18] Application for Admission Pro Hac Vice of IvanEspinoza-Madrigal. Clerk shall deposit application fee to the Non-AppropriatedFund of this Court. If not already done, Applicant must register as an ECF Userwithin 14 days (LR 5.1(f)). (Ordered by Judge Jorge A Solis on 6/15/2010) (axm)(Entered: 6/17/2010)

6/18/2010 20(p.109)

Plaintiffs’Pretrial Disclosures/Rule 26(a)(2) Expert Disclosures filed by DanaBailey, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main, MorganMcComb, Marvin Randle, Joe Sissom, Kensley Stewart, David Tate, Vicki Tate.(Attachments: # (1) Exhibit(s) 1) (Krabill, Kent) (Entered: 6/18/2010)

7/16/2010(p.149)

AMENDED COMPLAINT against All Defendants filed by Jacqualea Cooley,Vicki Tate, David Tate, Marvin Randle, Kensley Stewart, Crystal Main, MorganMcComb, Dan Clements, Keith A Lepak, Dana Bailey. (Attachments: # (1)

USCA5 8


Exhibit(s) A) (Krabill, Kent) (Entered: 7116/2010)

7/30/2010I ANSWER to [21] Amended Complaint filed by Aurora Lopez, Rachel Torrez

22 Moon, Robert Moon, Michael Moore, Gilbert Omelaz, Guillermo Ornelaz (Perales,(p. 159) Nina) (Entered: 7/30/2010)

9/14/2010 23(p.166)

Plaintiffs’ Rule 26(a)(2) Supplemental Expert Pretrial Disclosures filed by DanaBailey, Dan Clements, Jacqualea Cooley, Keith A Lepak, Crystal Main, MorganMcComb, Marvin Randle, Kensley Stewart, David Tate, Vicki Tate. (Attachments:# (1) Exhibit(s) Exh 1) (Krabill, Kent) (Entered: 9/14/2010)

9/27/2010 24(p.171)

MOTION for Summary Judgment filed by Dana Bailey, Dan Clements, JacqualeaCooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, JoeSissom, Kensley Stewart, David Tate, Vicki Tate (Attachments: # (1) ProposedOrder) (Krabill, Kent) (Entered: 9/27/2010)

9/27/2010 25(p.177)

9/27/2010 26(p.196)

Brief/Memorandum in Support filed by Dana Bailey, Dan Clements, JacqualeaCooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, JoeSissom, Kensley Stewart, David Tate, Vicki Tate re [24] MOTION for SummaryJudgment (Krabill, Kent ) (Entered: 9/27/2010)

Appendix in Support filed by Dana Bailey, Dan Clements, Jacqualea Cooley, KeithA Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, David Tate, Vicki Tate re [25] Brief/Memorandum in Support of Motionfor Summary Judgment .(Attachments: # (1) Additional Page(s)) (Krabill, Kent)(Entered: 9/27/2010)

10/5/201027(p.398)

JOINT REPORT OF SETTLEMENT CONFERENCE REPORT filed by DanaBailey, City of Irving, Texas, Dan Clements, Jacqualea Cooley, Keith A Lepak,Aurora Lopez, Crystal Main, Morgan McComb, Rachel Torrez Moon, RobertMoon, Michael Moore, Gilbert Ornelaz, Guillermo Ornelaz, Marvin Randle, JoeSissom, Kensley Stewart, David Tate, Vicki Tate. (Krabill, Kent) Modified on10/6/2010 Orb). (Entered: 10/5/2010)

10/21/2010 28 MOTION for Summary Judgment filed by City of Irving, Texas (Heath, C)(p.400) (Entered: 10/21/2010)

10/21/2010 29 Brief/Memorandum in Support filed by City of Irving, Texas re [28] MOTION for(p.403) Summary Judgment (Heath, C) (Entered: 10/21/2010)

10/21/2010 Appendix in Support filed by City of Irving, Texas re [29] Brief/Memorandum in30 Support of Motion (Attachments: # (1) Additional Page(s)) (Heath, C) (Entered:

(p.423) 1012112010)

1012112010 31 RESPONSE filed by City of Irving, Texas re: [24] MOTION for Summary(p.549) Judgment (Heath, C) (Entered: 1012112010)

10121/2010 32(p.552)

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)

USCA5 9


10/21/201033(p.589)

10/21/2010 34(p.593)

10/21/2010 35(p.735)

MOTION for Summary Judgment and Response to Plaintiffs’ Summary JudgmentMotion filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon, MichaelMoore, Gilbert Omelaz, Guillermo Ornelaz with Brief/Memorandum in Support.(Perales, Nina) (Entered: 10/21/2010)

Appendix in Support filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon,Michael Moore, Gilbert Omelaz, Guillermo Ornelaz re [33] MOTION forSummary Judgment and Response to Plaintiffs’ Summary Judgment Motion(Attachments: # (1) Additional Page(s) Appendix Part 2 of 4, # (2) AdditionalPage(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)

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 JudgmentMotion (Attachments: # (1) Proposed Order) (Perales, Nina) (Entered: 10/21/2010)

RESPONSE filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon, Michael10/21/2010 Moore, Gilbert Omelaz, Guillermo Ornelaz re: [24] MOTION for Summary

Judgment. (see doc. 33 for image) (tin) (Entered: 10/22/2010)

10/28/201036(p.792)

Agreed MOTION to Combine Response and Reply filed by Dana Bailey, DanClements, 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)

Joint MOTION to Abate filed by City of Irving, Texas, Rachel Torrez Moon,10/29/2010(p.797) 37 Robert Moon, Michael Moore, Gilbert Ornelaz, Aurora Lopez, Guillermo Ornelaz

(Heath, C) Modified on 11/1/2010 (skt). (Entered: 10/29/2010)

1111/201039(p.801)

11/21201038(p.802)

ORDER granting [37] Joint Motion to Abate. All actions listed on the schedulingorder 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)

ORDER granting [36] Agreed MOTION to Combine Response and Reply.Plaintiffs may combine their Reply to Defendant’s Response in Opposition toPlaintiffs’ Motion for Summary Judgment and their Response to Defendant’sMotion 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)

***Clerk’s Notice of delivery: (see NEF for details) Docket No:38. Tue Nov 211/2/201012:08:34 CDT 2010 (crt) (Entered: 11/2/2010)

***Clerk’s Notice of delivery: (see NEF for details) Docket No:39. Tue Nov 211/2/2010

13:21:45 CDT 2010 (crt) (Entered: 11/2/2010)

11/3/201040

ORDER granting [32] Motion to Appear as Amicus Curiae. (See Order) (Ordered(p.804) by Judge Jorge A Solis on 11/3/2010) (skt) (Entered: 11/4/2010)

USCA5 10


11/3/2010 41 BRIEF for the United States of America as Amicus Curiae. (skt) (Entered:(p.805) 11/4/2010)

11/3/2010 48 Appendix in Support filed by United States of America re [41] Brief. (mfw)(p.820) (Entered: 11/23/2010)

***Clerk’s Notice of delivery: (see NEF for details) Docket No:40. Thu Nov 411/4/201008:54:20 CDT 2010 (crt) (Entered: 11/4/2010)

11/10/2010(p.836) 42

RESPONSE filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith ALepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, David Tate, Vicki Tate re: [28] MOTION for Summary Judgment(Krabill, Kent) (Entered: 11/10/2010)

11/10/2010(p.839)

43

Brief/Memorandum in Support filed by Dana Bailey, Dan Clements, JacqualeaCooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, JoeSissom, Kensley Stewart, David Tate, Vicki Tate re [42] Response/Objection toDefendant’s Motionfor Summary Judgment (Krabill, Kent) (Entered: 1111012010)

11/10/2010(p.862)

Appendix in Support filed by Dana Bailey, Dan Clements, Jacqualea Cooley, KeithA Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, 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 ALepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, David Tate, Vicki Tate re: [33] MOTION for Summary Judgment andResponse to Plaintiffs’ Summary Judgment Motion (Krabill, Kent) (Entered:11/10/2010)

11/10/2010(p.1073) 46

Brief/Memorandum in Support filed by Dana Bailey, Dan Clements, JacqualeaCooley, Keith A Lepak, Crystal Main, Morgan McComb, Marvin Randle, JoeSissom, Kensley Stewart, David Tate, Vicki Tate re [45] Response/Objection, toDefendant-Intervenors’ Motion for Summary Judgment (Krabill, Kent) (Entered:11110/2010)

11/10/2010(p.1099) 47

Appendix in Support filed by Dana Bailey, Dan Clements, Jacqualea Cooley, KeithA Lepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, 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

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 49 REPLY filed by City of Irving, Texas re: [28] MOTION for Summary Judgment(p. 1307) (Heath, C) (Entered: 11/23/2010)

11/29/2010(p.1317)

REPLY filed by Aurora Lopez, Rachel Torrez Moon, Robert Moon, MichaelMoore, Gilbert Ornelaz, Guillermo Ornelaz re: [33] MOTION for Summary

USCA5 11


Judgment (Attachments: # (1) Exhibit(s) Exhibits 1 and 2) (Perales, Nina) (Entered:11/29/2010)

MOTION for Leave to File Supplemental Material in Support of Motion for1/5/201151 Summary Judgment filed by City of Irving, Texas (Attachments: # (1) Exhibit(s))(p.1367)

(Heath, C) (Entered: 1/5/2011)

ORDER granting [51] Defendant’s Motion for Leave to File Supplemental Material1/10/2011(p. 1408) 52 Supporting Motion for Summary Judgment. (See Order) (Ordered by Judge Jorge

A Solis on 1/10/2011) (skt) (Entered: 1/10/2011)

1/20/201153(p.1409)

RESPONSE filed by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith ALepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, David Tate, Vicki Tate re: [52] Order on Motion for Leave to File(Krabill, Kent) (Entered: 1/20/2011)

1/20/2011 54(p.1417)

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)

2/11/2011 55(p.1425)

Memorandum Opinion and Order granting [28] Motion for Summary Judgmentfiled 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 SummaryJudgment, filed by Joe Sissom, Kensley Stewart, Vicki Tate, Crystal Main, DanaBailey, 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)

2/11/2011 56(p.1431)

FINAL JUDGMENT: The court declares that the City of Irving’s electoral plan forsingle member districts does not violate the 14th Amendment of the United StatesConstitution. (Ordered by Judge Jorge A Solis on 2/11/2011) (svc) (Entered:2/15/2011)

2/16/201157(p.1432)

NOTICE OF APPEAL to the Fifth Circuit as to [55] Memorandum Opinion andOrder,, [56] Judgment by Dana Bailey, Dan Clements, Jacqualea Cooley, Keith ALepak, Crystal Main, Morgan McComb, Marvin Randle, Joe Sissom, KensleyStewart, 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 asappropriate. Copy of NOA to be sent US Mail to parties not electronically noticed.(Krabill, Kent) (Entered: 2/16/2011)

2/25/2011 58 BILL OF COSTS by City of Irving, Texas. (Heath, C) (Entered: 2/25/2011)(p.1434)

2/25/2011 59(p.1438)

USCA Case Number 11-10194 in USCA5 for [57] Notice of Appeal,, filed by JoeSissom, Kensley Stewart, Vicki Tate, Crystal Main, Dana Bailey, JacqualeaCooley, Morgan McComb, Dan Clements, Keith A Lepak, Marvin Randle, DavidTate. (dnc) (Entered: 2/28/2011)

USCA5 12


Tab 2


UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEITH A. LEPAK, MARVIN RANDLE,DAN CLEMENTS, DANA BAILEY,KENSLEY STEWART, CRYSTAL MAIN,DAVID TATE, VICKI TATE,MORGAN MCCOMB, ANDJACQUALEA COOLEY,

Plaintiffs,

Vo

CITY OF IRVING, TEXAS,

Defendant,

Vo

ROBERT MOON, RACHEL TORREZ-MOON, MICHAEL MOORE,GUILLERMO ORNELAZ, GILBERTORNELAZ, AND AURORA LOPEZ

Defendant-Intervenors.

C.A. NO. 3:10-cv-00277-P

PLAINTIFFS’ NOTICE OF APPEAL TOTHE 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 CIRCUIT02257-901

PAGEI

USCA5 1432


DATED: February 16, 2011

/s/Kent D. KrabillKent D. KrabillState Bar No. 24060115Jeremy A. FieldingState Bar No. 24040895John T. Cox IIIState Bar No. 24003722LYNN TILLOTSON PINKER & COX, LLP2100 Ross Avenue, Suite 2700Dallas, Texas 75201Telephone: 214-981-3800Facsimile: 214-981-3839

ATTORNEYS FOR PLAINTIFFS


I hereby certify that on this 16th day of February, 2011, a true copy of the foregoingwas served by the Court’s ECF system to all counsel of record in this case.

4820-3115-1624, v. 1

/s/Kent D. KrabillKent D. Krabill

PLAINTIFFS’NOTICE OFAPPEALTO THE UNITED STATES COURT OF APPEALSFORTHEFIFTHCIRCUIT02257-901

PAGE 2

USCA5 1433


Tab 3


IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEITH A. LEPAK, MARVIN RANDLE,DAN CLEMENTS, DANA BAILEY,KENSLEY STEWART, CRYSTALMAIN, DAVID TATE, VICKI ’lATE,MORGAN McCOMB, m~d JACQUALEACOOLEY,

Plaintiffs,

Vo


Defendant,

ROBERT MOON, RACHEL TORREZ-MOON, MICHAEL MOORE,GUILLERMO ORNELAZ,GILBERT ORNELAZ and AURORALOPEZ,

Defendant-lntervenors.

CIVIL ACTION NO.3:10-CV-0277-P

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


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 at-

large 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


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 citizen-

voter 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 remainsand 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


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.

representational equality is the ideal."

"But.... other language can be found flaat implies that

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


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


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. SOLISUNITED STATES DISTRICT JUDGE

6

USCA5 1430


Tab 4


IN THE UNITED STATES DISTRICT COURTNORTHERN 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


Tab 5


Page 1 of 2

Activity in Case 3:10-cv-00277-P Lepak et al v.ecf txndto:Courtmail02/16/20I 1 01:32 PMShow Details

of Appeal

This is an automatic e-marl message generated by the CM/ECF system.RESPOND to this e-mail because the mail box is unattended.***NOTE TO PUBLIC ACCESS USERS*** JudicialConference of the United States policy ~permits attorneys of record and parties in a ease (including pro se litigants)to receive one freeelectronic copy of all documents filed electronically, if receipt is required by law or directed by theflier. PACER access fees apply to all other users. To avoid later charges, download a copy of eachdocument during this first viewing. However, ff the referenced document is a transcript, the freecopy and 30 page limit do not apply.

U.S. District Court 11-10194Northern District of Texas

Notice of Electronic Filing .................... -..

The following transaction was entered by Krabill, Kent~.liht 1:31 PM CST and filedon2/16/2011Case Name: Lepak et al v. City of I~ig, TexasCase Number: 3:10-cv-00277-P ~/ ’IFiler: Keith A Lepak

Marvin RandleDan Clements,Dana BaileyKensley StewartCrystal MainDavid TateVieki TateMorgan MeCombJacqualea CooleyJoe Sissom

WARNING: CASE CLOSED on 02111/2011Document 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, CrystalMain, Morgan McComb, Marvin Randle, Joe Sissom, Kensley Stewart, David Tate, VickiTate. Filing fee $455, receipt number 0539-3723512. T.O. form to appellant electronicallyat Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail toparties not electronically noticed. (Krabill, Kent)

file://C:\UserskmeourseaLAppData\Local\Tempknotes41Bg84\-web1427.htmUSCA5 1438

2/16/2011


Tab 6



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,

Plaintiffs,

Vo


Defendant.

C.A. NO.

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. INTRODUCTION

1. 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 single-

member 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 Page 102257-901/237029

USCA5 13


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. PARTIES

3. 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.


USCA5 14


Ill. JURISDICTION AND VENUE

This Action arises under Article 4, Section 2, Clause 1 of the United States

Constitution, and the Fourteenth Amendment thereto.

This Court has original jurisdiction pursuant to 28 U.S.C. 1331, 1343(a)(3)o

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 at-

large 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 at-

large 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.


USCA5 15


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


USCA5 16


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

3Id at 565.4 Id. at 563.

ORIGINAL COMPLAINT02257-901/237029

Declare the City of Irving’s current 6-2-1 Plan for the election ofcity council members to be unconstitutional and of no further forceand effect;

Page 5

USCA5 17


Co

Award reasonable attorneys fees, including costs and bothconsulting and testifying expert witness fees and expenses againstall Defendants, as authorized by law under 42 U.S.C. 1983, 42U.S.C. 1988, and 42 U.S.C. 1973l(e).

Such other and further relief, both special and general, at law or inequity, to which Plaintiffs may be justly entitled.

DATE: February 11, 2010 Respectfully submitted,

/s! Kent D. KrabillKent D. KrabillState Bar No. 24060115Jeremy A. FieldingState Bar No. 24040895John T. Cox IIIState Bar No. 24003722LYNN TILLOTSON PINKER & COX, LLP2100 Ross Avenue, Suite 2700Dallas, Texas 75201Telephone: 214-981-3800Facsimile: 214-981-3839

ATTORNEYS FOR PLAINTIFFS

ORIGINAL COMPLAINT0225%901/237029

Page 6

USCA5 18


Tab 7



DALLAS DMSION

KEITH A. LEPAK, MARVIN RANDLE,DAN CLEMENTS, DANA BAILEY,KENSLEY STEWART, CRYSTALMAIN, DAVID TATE, VICKI TATE,MORGAN McCOMB, JACQUALEACOOLEY AND JOE SISSOM,

Plaintiffs


Defendant

CIVIL ACTION NO. 3-10-CV-OO277-P

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


o

o

°

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.

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

USCA5 30


12.

13.

14.

15.

voting age, while also recognizing the significant number of Hispanic voters who live

outside that area."

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.

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.

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.

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

USCA5 31


16.

17.

18.

19.

20.

21.

22.

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.

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.

Defendant denies the allegations of paragraph 17 of the Original Complaint.


Paragraph 19 merely re-alleges prior allegations and does not require a separate response.


Defendant denies that the plaintiffs are entitled to the relief set out in the Prayer.

All allegations in the Original Complaint that are not admitted are denied.

Respectfully submitted,

CHARLES R. ANDERSONCity AttorneyState Bar No. 01170500CITY OF IRVING, TEXAS825 W. Irving BoulevardIrving, Texas 75060Telephone: 972-721-2541Facsimile: 972-721-2750

4

USCA5 32


C. ROBERT HEATH

State Bar No. 09347500BICKERSTAFF HEATHDELGADO ACOSTA LLP3711 S. MoPac ExpresswayBuilding One, Suite 300Austin, Texas 78746Telephone: (512) 472-8021Facsimile: (512) 320-5638

By: /s/ C. Robert HeathC. ROBERT HEATH

Attorneys for Defendants


I hereby certify that a true and correct copy of the foregoing document was served on counselof record listed below through the Court’s Notice of Electronic Filing and by certified mail, returnreceipt requested, on this the 9~ day of March, 2010:

Kent D. KrabillJeremy A. FieldingJohn T. Cox II1LYNN TILLOTSON PI2,W.ER & COX, LLP2100 Ross Ave., Suite 2700Dallas, Texas 75201Telephone: (214) 981-3800Facsimile: (214) 981-3839

/s/ C. Robert HeathC. ROBERT HEATH

USCA5 33


Tab 8


!N THE UNITED STATES DISTRICT COURTFOR 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

USCA5 88


Tab 9


Case 3:07-cv-01850-P Document 89 Filed 02/02/2010 Page 1 of 3


DALLAS DIVISION

MANUEL A. BENAVIDEZ,

Plaintiff

THE CITY OF IRVING, TEXAS andHERBERT A. GEARS, THOMAS D.SPINK, ELIZABETH (BETH) VANDUYNE, ALLAN E. MEAGHER, LEWISPATRICK, ROSE CANNADAY, RICKSTOPPER, SAM SMITH, and JOEPHILIPP, in their official capacities,

Defendants

CIVIL ACTION NO. 3:07 CV 1850-P

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. 001USCA5 198


Case 3:07-cv-O1850-P Document 89 Filed 02/02/2010 Page 2 of 3

=

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. 002USCA5 199


Case 3:07-cv-01850-P Document 89 Filed 02/02/2010 Page 3 of 3

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.

Approved as to form and content:

J~RG~-A. S(~LI~UNITED STATES DISTRICT JUDGE

.s_/_William A. Brewer IIlWilliam A. Brewer IIIMichael L. SmithMichael VeeserBICKEL & BREWER STOREFRONT, P.L.L.C.1717 Main Street, Suite 4800Dallas, Texas 75201Attorneys for Plaintiff

s/C. Robert HeathC. Robert HeathBICKERSTAFF HEATHDELGADO ACOSTA LLP3711 S. MoPa~ ExpresswayBuilding One, Suite 300Austin, Texas 78746

Charles R. AndersonCity AttorneyCITY OF IRVING, TEXAS825 W. Irving BoulevardIrving, Texas 75060

Attorneys for Defendants

App. 003USCA5 200


Case 3:07-cv-01850-P Document 89-2 Filed 02/02/2010 Page I of 54

City of Irving - Plan 6-2-t

MANUEL A. BENAVIDEZ V. OTHE CITY OF IRVING, TEXASCML ACTION NO, 3:07 CV 1850-P

Legend

USCA5 201


City of Irving-Plan 6-2-t -

District

2000 Census Total and Voting/~a Populationii

18~ 0.58~& 219~ g.Og~

5

Bla0kVAPI SdT~dd

App. 005USCA5 202


Tab 10



DALLAS DIVISION

KEITH A. LEPAK, MARVIN RANDLE,DAN CLEMENTS, DANA BAILEY,KENSLEY STEWART, CRYSTALMAIN, DAVID TATE, VICKI TATE,MORGAN M¢COMB, JACQUALEACOOLEY AND JOE SISSOM,

Plaintiffs


Defendaut

ROBERT MOON, RACHEL TORREZ-MOON, MICHAEL MOORE,GUILLERMO ORNELAZ, GILBERTORNELAZ AND AURORA LOPEZ,

Defendan ts-lntervenors

CML ACTION NO. 3:10-cv-00277-P

TO:

DEFENDANT CITY OF IRVING’S RESPONSE TOPLAINTIFFS’ FIleT SET OF INTERROGATORIES

Plaintiffs Keith A. Lepak, Marvin Randle, Dart Clernents, Dana Bailey, Kensley Stewart,Crystal Main, David Tate, Vi~ki Tare, Morgan McComb, Jacqualea Cooley and JoeSissom by and through their attorneys of record, Kent D. Krabill, Jeremy A. Fielding andJohn 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. 058USCA5 255


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, otherCVAP, 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-CV-

1850-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. 059USCA5 256


Accordingly, the citizen-voting-age population for those groups is combined into the Other

category in Exhibit 1.

Interrogatory No. 2:


RESPONSE:



is defined as "the demographic data used to create the City of Irving Plan 6-2-1, which was


1850-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




from 2000 Census "long form" data. Long form data comes from a sample. The Special




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. 060USCA5 257



Hawaiian/Pacific Islanders, and Others. Because those groups are comparatively small, Special





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, otherCVAP, and total CVAP for Irving City Council District 4.

RESPONSE:

Please see exhibit 1 to th~s response to interrogatories.




1850-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


population, To answer your question on the citizen-voting-age population for each district, we


from 2000 Census "long form" data, Long form data comes from a sample. The Special



4

App. 061USCA5 258




in the block group. The block 1�v�1 data is then aggregated to single-member district.







Based on the CutTent Demographic Data, pleasv state the Hispanic CVAP, Anglo CVAP,Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, otherCVAP, and total CVAP for Lwing City Council District 5.

~ RgSPONSE:

Please sev exhibit 1 to this response to interrogatories.







population. To answer your questio~n on the citizen-voting-age population for each district, we


App. 062USCA5 259


fi’om 2000 Census "long form" data. Long form data comes fi’om a sample. The Special





in the block group. The block level data is then aggregated to single-member disU’ict.





category in Exhibi~ I.



RESPONSE:






population used for drawing the districts comes from the 2000 Census 100 percent Count

App. 063USCA5 260






Tabulation data is reported at the block group level and is subject to rounding and suplxession.











Based on ~e Current Demographic Data, please state the Hispanic CVAP, Anglo CVAP,Black CVAP, American Indian CVAP, Asian CVAP, Hawaiian Pacific Islander CVAP, otherCVAP, and total CVAP for Irving City Council District 7.

RESPONSE:

Please see exhibit 1 to this response to interro, gatories.


is defined as "the demographic data used to create the City of ~ing Plan 6-2-1, which was

7

App. 064USCA5 261


attached as Exhibit 1 to and incorporated into the Final Judgm~t in Civil Action No. 3:07-CV-







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



Your inquiry asks for the citizen-votlng-age population for American Indians, Asian,


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


8

App. 065USCA5 262


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. 066USCA5 263


Respectfully submi~d,

CHARLES R. ANDBRSONCity AttorneyState Bar No. 01170500CITY OF IRVING, TEXAS825 W. Inring BoulevardIrving, Texas 75060Telephone: 972-721-2541Facsimile: 972-721-2750

C. ROBERT HEATHState Bar No. 09347500BICKERSTAFF HEATH DELGADO ACOSTA LL~3711 S. MoPac ExpresswayBuilding One, Suite 300Austin, Texas 78746Telephone: (512) 472-8021

dttorney~ for Defendants

I0

App. 067USCA5 264


I hereby certify that a true and correct copy of the foregoing document was served on counselof record listed below by el~ctronic transmission and by United States mail, certified, return receiptrequested, on this th~__~day of lune, 2010 as follows:

Kent D. Krabillkkrabill@,lyrml|p.comlcr~my A. Fieldingifieldi rm~,,lvnnllp.com~ohn T. Cox I~tcox@[ynnllp.comLYNN TILLOTSON PINKER ~l; COX, LLP

2100 Ross Avenue, Suite 2700Dallas, Texas 75201Xttorney~ for Plaintiffa

Nina Peralesn.verales(~maldef.omIvan Espinoza-Madrigaliespinoz _a@~. ~de£or.gMEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND1 I0 Broadway St., Suite 300San Antonio, Texas 78205Attorney for Defendants.Intervenora

11

App. 068USCA5 265


Exhibit I ..... ............ ........

City of IrvingSettlement 6-2-1 Plan

2000 Census Total and Voting Age Population/Special Tabulation 56 Dedved Citizenship Data

Plan8-2-t

Total Population

..... 31,642

Total VAP~

20,93C

25,276

22,635

TotalCVAPm

11,231

20,617

19,161

HispanicCVAP

28~000

~,167

, ,23,368

2,808

2,8721

AngloCVA~

5~628

.... 1,!,,,770

1,4~302

33~126 19~673 13~8tl

30:674 19:9201 14,9(J8

~,785

108,387

Tab

to m.o.�k

31,993

143,395

PL94-t71

t00%

2~463

1,382

2,858

1~6o7Special

,M

to Block

19t,613

PL94-tTt

t00%

13,171

73,678

Tab

Dedvedto Block

CVAP

935

4r934

976

2~2,32

2,080

! ,058

12,217

Tab

to Bl(mk ,,

Other* CVAP

524

I~009

1.482

698

5,988

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~. 069USCA5 266


Tab 11


SUMMARY REPT-GRODP DETAIL

Run Date:05/13/10 12:33

2010 Joint ElectionMay 8, 2010Dallas County, Texas

TOTAL VOTES

PRECINCTS C06NTED (OF 670) ..... 570REGISTERKD VOTERS - TOTAL ..... 786,889BALLOTS CAST - TOTAL ....... 39,017VOTER TDRI~ODT - TOTAL ......

Balch Sprlngs-Council P1 2 At-LgVOTE FOR 1

(WITH 23 OF 23 PRECINCTS COUNTED)Wanda Adams .......... 78Donna M. Taulbee ........ 58Matthew Vincent Patrick ...... 58Julle Greer .......... 187

Total ......... 381

%

100 .O0

4.96

20.4715.2215.2249.08

EV-In Person

UI~OFFIC~AL RESULTS

Report SL45A

Election Day Prov EV_ED

Ealoh Sprlngs-Dist 4VOTE FOR 1

(WITH 4 OF 4 PRECINCTS COUNTED)Linda L. Pineda ........ 13Charlene Rushing ........ 22Kerrnda Sanders ........ 8

Total ......... 43

30.2351.1618.60

17,993 313 20,670 14

Balch Springs-D~st 6VOTE FOR 1

(WITH 6 OF 6 PRECINCTS COUNTED)Ed Grant ...... ¯ .....Carria J. M~rshall .......

Total .........

294574

39.1960.81

33253489

181

Balch Sprzngs-Dist 3 Recall ElectionVOTE FOK 1

(WITH 4 OF 4 PRECINCTS COUNTED)Yes ............

Total .........5496

43.7556.25

3114

Cedar Hill-MayorVOTE FOR

(WITH 19 OE 19 PRECINCTS COUNTED)Rob Franke

Total .........541541

i00.00

192342

Cedar Hill-CouncziMember P1 3VOTE FOR l

(WITH 19 OF 19 PRECINCTS COUNTEDJMichael Qu1idon ........~allace Swayze .........

Total .........

224355579

38.6961.31

262450

10023

000

001]

O00

281281

44 033 024 096 0

197 O

10 011 04 0

25 0

10 022 032 0

16 038 046 0

255 0255

124 3 9~ 0160 2 193 0284 5 290 0

Page 001

ED_~DA

27

00000

000

OO0

000

o

o

App. 164USCA~ 361


SUM~4J~Y REPT-GROUP DETAIL

Run Date:05/13/10 12:33 PM

201~ Joint ElectionMay 8, 2010Dallas County, Texas

TOTAL VOTES

Cedar Hili-Councll Member P1 5VOTE FOR 1

(WITH 19 OF 19 PRECINCTS COUNTED)Stephen Mason

Total .........456456

100.00

EV-In Person

239239

Cockrell Hill-MayorVOTE FOR 1

(WITH 1 OF 1 PRECINCTS COUNTED)Luia D. Carrera ........Bill Douglas .........

Total .........

163lOO263

61.9838.02

553489

Cockrell Hill-Alderman P1 1VOTE FOR 1

{WITH 1 OF 1 PRECINCTS COUNTED}MlrlamRour~guez ........Adabelle Rodri~ez .......

Total

121148269

44.9855.02

543791

cockrell Hill-Alderman P1 2~)TE FOR 1

(WITH I OF 1 PRECINCTS COUNTED)C.P. Slayton .........Sam Rodriguez .........

Total ....... 0 .

131142273

47.9952.01

62

91

DeSoto-MayorVOTE FOR 1

tWITE 26 OF 26 PRECINCTS CODNTED)Carl O. Sherman ........Carl L. W~lliams

Total .........

1,3761,1352,511

54.8045.20

744674

1,410

DeSoto-Council Member ~i 3VOTE FOR 1

(WITH 26 OF 26 PRECINCTS COUNTED)Paul F. Benson .........Denxse Valentine

Total .........

3332,0782,411

13.8186.19

1961,1781,374

DeSoto-Council Member Pl 5VOTE FOR

(WITH 26 OF 26 PRECINCTS COUNTED)Sandy Respess .........

Total .........1,9181,918

i00.00 1,14~1,14~

918

135

18

17

279

369

Electaon Day

212212

57155

54105159

52iii163

630454

1,084

134894

1,028

770770

~q~OFFICIAL RESULTS

Report EL45A

Prov EV ED

101

o1i

011

o

o

000

Page 002

ED ADA

000

000

000

000

000

App. 165USCA5 362


SUPIV~RY REPT-GROOP DETAIL

Bun Date:05/13/10 12:33 PM

DeSoto-Council PI 6 EnexVOTE FOR I

(WITH 26 0~’ 26 PRECINCTS COUNTED)Thelonlaus ~Theo" Pe~gh ......Linda LamerJames E. Colller, JrJames Zander .........

Total .........

DeSots-Council P1 70nexVOTE FOR 1

(WITH 26 OF 26 PRECINCTS COUNTED)

Total .........

Duncanville D~strict 04VOTE FOR 1

(WITH 5 OF 5 PRECINCTS COUNTED)Grady W. S~xithey, Jr .......Charles A. Card ........

Total .........

Farmers Branch-Council MemberVOTE FOR

(WITH 18 OF 18 PRECINCTS COUNTED)Matt Wenthold .........Tlm Scott ..........

Total .........

Farmers Branch-Council MeTaber P1 4VOTE FOR I

(WITH 18 OF 18 PRECINCTS COUNTED)Kat Holmes ..........Brenda Brodrlck ........Davi~ B. Koch .........

Total .........

Garland District 05VOTE FOR I

(WITH 20 OF 20 PRECINCTS CODNTED)Joh~ D. Wlllls .........Davld McNeely .........

Total .........

Glenn Helghts-MayorVOTE FOR

IWITH 2 OF 2 PBECINCTS COUNTED)Victor Perelra .........Tlsh Tillis ..........Dorothy M. Loney ........

Total .........

2010 Joint ElectionMay 8, 2010Dallas ~ounty, Tsxas

TOTAL VOTES % EV-In Person

276 11.40 135360 14.88 2056Q0 24.79 296

1,184 48.93 7432,420 1,379

1,832 1,050

220 66.07 123113 33.93 46333 169

1,315 46.40 5911,519 53.60 8412,834 1,432

537 18.88 196919 32.30 467

1,389 4B.82 7742,845 1,437

686 71.53 210273 28.47 82959 292

UNOFFICIAL RESOLT$

Report EL45A

EV-Mail Election Day ~rov EV_ED

13149

1401523U3437

1,032

774

00000

i01

9667

163

729

00

717

1,393

2?09

000

339445615

1,399

04

0000

476187663

141 67.14 55 0 858 3.81 3 0 5

61 29.05 18 0 43210 76 0 133

000

0000

Page 003

EDADA

000O0

00

000

0000

000

1oo1

App. 166USCA5 363


SHMMARY R~PT-GROUP DETAIL

Run Date:05/13/10 12:53 PM

Glenn Heights-Council Member P1 2VOTE £OR 1

(WITH 2 OF 2 PRECINCTS COUNTED)Leon Tare ..........

Total .........

Glenn Heights-Council Member P1 4VOTE FOR 1

(WITH 2 OF 2 PRECINCTS COUNTED}Mary Ann Chancellor . . . ; . , .

Total ~ ........

Glenn Heights-Counczl Member P1 6VOTE FOB 1

(~ITH 2 OF 2 PRECINCTS COONTED)Daniel Freeman .........

Total .........

Grand Prairie District 04VOTE FOR 1

(WITH 4 OF 4 PRECINCTS COUNTEDJJeffrey B. sodoma ........Richard J. Fregoe ........

Total .........

Hutch~na-MayorVOTE FOR 1

(WITH 5 OF 5 PRECINCTS COUNTED}Artis Johnson

Total .........

Hutchins-Council Vote for TwoVOTE 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 .........

Irving-Co~ncxl Member Dist 01VOTE FOR 1

(WITH 14 OF 14 PRECINCTS COONTED)Trlnl C. Gonzalez ........M~ke Gallaway .........

Total .........

2010 Joint ElectionMay 8, 2010Dallas County, Texas

TOTAL VOTES % EV-In Person KV-Mail Election Day

155 100,00 59 0 96155 59 0 96

159 100.00 61 0 98159 61 0 98

154 100.00 58 0 96154 58 0 96

34 24.82 16 0 18103 75.18 37 21 54137 53 11 72

163 100.00 59 2 102163 59 2 102

46 11.76 13 0 3387 22,25 58 0 4921 5.37 8 2 1192 23.53 31 0 6165 16.62 24 2 3951 13.04 18 0 3329 7.42 Ii 0 18

391 143 4 244

210 46.77 79 5 125239 53.23 156 8 75449 235 13 200

UNOFFICIAL RESULTS

Report EL45A

Prov EV_ED

ooo

000O0000

000

Page 004

ED ADA

011

000000O0

1

1

App. 167USCA5 364


S~ARY REPT-GROUP DETAIL

Run Date:05/13/10 12:33 PM

Irvlng-Council P1 2 At-LgVOTE FOR

IWITH 89 OF 89 PRECXNCTS COUNTED)Roy SantoscoyTom Sp~nk

Total .........

xr~ing-Co~ncll Member DISE 7VOTE POE 1

(WITH 19 OF 19 PRECINCTS CODNTED|Kim L~mberg ..........Sam C. Smith .........Gerald Farris

Total

Irving - Prop 1VOTE FOR 1

(WITH 89 OF 89 PRECINCTS COUNTED)

Total .........

Irving - Prop 2VOTE FOE

(WITH 89 OF 89 PRECINCTS COUNTED)YES

Total .........

Irving - Prop 3VOTE FOR

(WITH 89 OF 89 PRECINCTS COUNTED)YES

Total .........

Irving - Prop 4VOTE FOR

(WITH 89 OF 88 PRECINCT5 COURTED)

Total

Lancaster DlstrlOtVOTE FOR

(WITH 8 OF 8 PRECINCTS COUNTED)Carol Strain-BurkWalter Weaver .........

Total .........

201~ Joxnt ElectionMay 8, 2010Dallas County, Texas

TOTAL VOTES % EV-In Person EV-Mail Election Day

3,617 53.23 1,979 23 1,6143,178 46.77 1,848 27 1,3816,795 3,827 50 2,915

435 27.96 244 3 188567 36.44 334 5 228554 35.60 320 1 233

1,556 898 9 649

3,094 46.69 1,806 15 1,2723,532 53.31 1,936 54 1,5606,626 3,742 49 2,832

3,371 51.95 1,965 18 i,~863,118 48.05 1,704 30 1,3836~489 3,669 48 2,769

3,104 47.42 1,795 16 1,2923,442 52.58 1,898 31 1,5116,546 3,693 47 2,803

2,785 42.22 1,613 21 1,1503,811 5~.~8 2,111 29 1,6696,596 3,724 5~ 2,819

241 4q.46 166 8 ~7301 55.54 189 5 107542 355 13 174

UNOFFICY~AL RESULTS

Report ELA5A

Prov EV_ED

i12

o

112

2

2

112

2

000

Page 005

ED ADA

011

oooo

oIi

81I

0II

011

App. 168USCA5 365


Documents

IN THE UNITED STATES COURT OF APPEALS KEITH A. LEPAK ...redistricting.lls.edu/files/5th lepak 20110412 record.pdfOn Appeal from Civil Action No. 3:10-cv-277 in the United States District