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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
Case: 11-10194 Document: 00511443702 Page: 2 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 3 Date Filed: 04/12/2011
Tab I
Case: 11-10194 Document: 00511443702 Page: 4 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 5 Date Filed: 04/12/2011
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
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
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
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
Kent D Krabill(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED
USCA5 2
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David Tate
Vicki Tate
Morgan McComb
Jacqualea Cooley
represented by
represented by
represented by
representedby
Jeremy A Fielding(See above for address)ATTORNEY TO BE NOTICED
John T Cox, III(See above for address)ATTORNEY TO BE NOTICED
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
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
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
Kent D Krabill(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED
Jeremy A Fielding(See above for address)ATTORNEY TO BE NOTICED
USCA5 3
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Joe Sissom represented by
John T Cox, III(See above for address)ATTORNEY TO BE NOTICED
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
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
Case: 11-10194 Document: 00511443702 Page: 8 Date Filed: 04/12/2011
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
Nina Perales(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED
GuiHermo Ornelaz represented by
Ivan E Espinoza-Madrigal(See above for address)ATTORNEY TO BE NOTICED
Nina Perales(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED
Gilbert Ornelaz represented by
Ivan E Espinoza-Madrigal(See above for address)ATTORNEY TO BE NOTICED
Nina Perales(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal(See above for address)
USCA5 5
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Aurora Lopez represented by
ATTORNEY TO BE NOTICED
Nina Perales(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED
Ivan E Espinoza-Madrigal(See above for address)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
Case: 11-10194 Document: 00511443702 Page: 10 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 11 Date Filed: 04/12/2011
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
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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
Case: 11-10194 Document: 00511443702 Page: 13 Date Filed: 04/12/2011
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
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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
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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
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Tab 2
Case: 11-10194 Document: 00511443702 Page: 17 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 18 Date Filed: 04/12/2011
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
CERTIFICATE OF SERVICE
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
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Tab 3
Case: 11-10194 Document: 00511443702 Page: 20 Date Filed: 04/12/2011
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
CITY OF IRVING, TEXAS,
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
Case: 11-10194 Document: 00511443702 Page: 21 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 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
Case: 11-10194 Document: 00511443702 Page: 22 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 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
Case: 11-10194 Document: 00511443702 Page: 23 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 24 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: 25 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. SOLISUNITED STATES DISTRICT JUDGE
6
USCA5 1430
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Tab 4
Case: 11-10194 Document: 00511443702 Page: 27 Date Filed: 04/12/2011
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
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Tab 5
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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
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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
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Tab 6
Case: 11-10194 Document: 00511443702 Page: 31 Date Filed: 04/12/2011
IN THE 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,JACQUALEA COOLEY,AND JOE SISSOM,
Plaintiffs,
Vo
CITY OF IRVING, TEXAS,
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
Case: 11-10194 Document: 00511443702 Page: 32 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. 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.
ORIGINAL COMPLAINT Page 202257-901/237029
USCA5 14
Case: 11-10194 Document: 00511443702 Page: 33 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.
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.
ORIGINAL COMPLAINT Page 302257-901/237029
USCA5 15
Case: 11-10194 Document: 00511443702 Page: 34 Date Filed: 04/12/2011
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 Page 402257-901/237029
USCA5 16
Case: 11-10194 Document: 00511443702 Page: 35 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 36 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 37 Date Filed: 04/12/2011
Tab 7
Case: 11-10194 Document: 00511443702 Page: 38 Date Filed: 04/12/2011
IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS
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
CITY OF IRVING, TEXAS,
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
Case: 11-10194 Document: 00511443702 Page: 39 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 40 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 41 Date Filed: 04/12/2011
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.
Defendant denies the allegations of paragraph 18 of the Original Complaint.
Paragraph 19 merely re-alleges prior allegations and does not require a separate response.
Defendant denies the allegations of paragraph 20 of the Original Complaint.
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
Case: 11-10194 Document: 00511443702 Page: 42 Date Filed: 04/12/2011
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
CERTIFICATE OF SERVICE
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
Case: 11-10194 Document: 00511443702 Page: 43 Date Filed: 04/12/2011
Tab 8
Case: 11-10194 Document: 00511443702 Page: 44 Date Filed: 04/12/2011
!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
Case: 11-10194 Document: 00511443702 Page: 45 Date Filed: 04/12/2011
Tab 9
Case: 11-10194 Document: 00511443702 Page: 46 Date Filed: 04/12/2011
Case 3:07-cv-01850-P Document 89 Filed 02/02/2010 Page 1 of 3
IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS
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: 11-10194 Document: 00511443702 Page: 47 Date Filed: 04/12/2011
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: 11-10194 Document: 00511443702 Page: 48 Date Filed: 04/12/2011
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: 11-10194 Document: 00511443702 Page: 49 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 50 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 51 Date Filed: 04/12/2011
Tab 10
Case: 11-10194 Document: 00511443702 Page: 52 Date Filed: 04/12/2011
IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS
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
CITY OF IRVING, TEXAS,
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
Case: 11-10194 Document: 00511443702 Page: 53 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 54 Date Filed: 04/12/2011
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, otherCVAP, 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-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 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. 060USCA5 257
Case: 11-10194 Document: 00511443702 Page: 55 Date Filed: 04/12/2011
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, otherCVAP, 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-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 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. 061USCA5 258
Case: 11-10194 Document: 00511443702 Page: 56 Date Filed: 04/12/2011
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 1�v�1 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, otherCVAP, 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-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 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. 062USCA5 259
Case: 11-10194 Document: 00511443702 Page: 57 Date Filed: 04/12/2011
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, otherCVAP, 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-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 from the 2000 Census 100 percent Count
App. 063USCA5 260
Case: 11-10194 Document: 00511443702 Page: 58 Date Filed: 04/12/2011
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, otherCVAP, 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. 064USCA5 261
Case: 11-10194 Document: 00511443702 Page: 59 Date Filed: 04/12/2011
attached as Exhibit 1 to and incorporated into the Final Judgm~t 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 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. 065USCA5 262
Case: 11-10194 Document: 00511443702 Page: 60 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. 066USCA5 263
Case: 11-10194 Document: 00511443702 Page: 61 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 62 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 63 Date Filed: 04/12/2011
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
Case: 11-10194 Document: 00511443702 Page: 64 Date Filed: 04/12/2011
Tab 11
Case: 11-10194 Document: 00511443702 Page: 65 Date Filed: 04/12/2011
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
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App. 164USCA~ 361
Case: 11-10194 Document: 00511443702 Page: 66 Date Filed: 04/12/2011
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
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App. 165USCA5 362
Case: 11-10194 Document: 00511443702 Page: 67 Date Filed: 04/12/2011
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
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App. 166USCA5 363
Case: 11-10194 Document: 00511443702 Page: 68 Date Filed: 04/12/2011
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
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App. 167USCA5 364
Case: 11-10194 Document: 00511443702 Page: 69 Date Filed: 04/12/2011
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
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App. 168USCA5 365
Case: 11-10194 Document: 00511443702 Page: 70 Date Filed: 04/12/2011