Keith Lepak v. City of Irving Texas , 453 F. App'x 522 ( 2011 )

Case: 11-10194 Document: 00511695507 Page: 1 Date Filed: 12/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 14, 2011
No. 11-10194
Lyle W. Cayce
Clerk
KEITH A. LEPAK; MARVIN RANDLE; DAN CLEMENTS; DANA BAILEY;
KENSLEY STEWART; CRYSTAL MAIN; DAVID TATE; VICKI TATE;
MORGAN MCCOMB; JACQUALEA COOLEY,
Plaintiffs - Appellants
v.
CITY OF IRVING TEXAS,
Defendant - Appellee
ROBERT MOON; RACHEL TORREZ MOON; MICHAEL MOORE;
GUILLERMO ORNELAZ; GILBERT ORNELAZ; AURORA LOPEZ,
Intervenor Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
U.S.D.C. No. 3:10-cv-00277-P
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
This case presents the question of whether the “one person, one vote”
principle embodied in the Fourteenth Amendment’s Equal Protection Clause
requires the City of Irving, Texas, to apportion its city council election districts
to equalize the citizen voting age population (“CVAP”), as opposed to equalizing
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-10194 Document: 00511695507 Page: 2 Date Filed: 12/14/2011
No. 11-10194
the total population of each district. The plaintiffs contend that the
constitutionally mandated measure is CVAP, and thus, the City’s current
apportionment plan, which was drawn with districts of relatively equal total
population, but unequal CVAP, is unconstitutional.
We confronted this exact argument in Chen v. City of Houston, 206 F.3d
502 (5th Cir. 2000), and held that equalizing total population, but not CVAP, of
each district, does not violate the Equal Protection Clause. Id. at 505; see also
id. at 528. The Appellants do not attempt to distinguish Chen, nor do they argue
that there has been any intervening contrary or superseding decision of the
Supreme Court or this court sitting en banc. Instead, they merely argue that
Chen was wrongly decided. However, we are not at liberty to overrule Chen as
the Appellants desire. See, e.g., Burge v. Parish of St. Tammany, 187 F.3d 452,
466 (5th Cir. 1999) (“It is a firm rule of this circuit that in the absence of an
intervening contrary or superseding decision by this court sitting en banc or by
the United States Supreme Court, a panel cannot overrule a prior panel’s
decision.” (citing Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998))).
Accordingly, we AFFIRM the district court’s grant of the City’s motion for
summary judgment.1
1
We disagree with the Intervenors’ arguments that this appeal is not justiciable under
Article III of the Constitution. See Reno v. Bossier Parish School Board, 528 U.S. 320, 327-28
(2000) (holding that even though the challenged apportionment plan would almost certainly
be superseded by a new plan before the next election, the case nonetheless presented a live
Article III case or controversy because the challenged plan “will serve as the baseline against
which [the] next voting plan will be evaluated for the purposes of [§ 5] preclearance”); Baker
v. Carr, 369 U.S. 186, 204-08 (1962) (holding that the alleged dilution of an individual voter’s
power to elect representatives provides that voter with standing). Because there are plaintiffs
with standing, and they seek only injunctive relief, we need not address the Intervenors’
argument that Appellants who reside in Districts 4 and 7 lack standing. See Crawford v.
Marion Cnty. Election Bd., 553 U.S. 181, 189 n.7 (2008) (“We . . . agree with the unanimous
view of [the Seventh Circuit] that [some of the petitioners] have standing to challenge the
validity of [the state law requiring voters to present photo identification] and that there is no
need to decide whether the other petitioners also have standing.”), aff’g 472 F.3d 949, 951 (7th
Cir. 2007) (“Only injunctive relief is sought, and for that only one plaintiff with standing is
required . . . .” (citing Tex. Democratic Party v. Benkiser, 459 F.3d 582, 585-86 (5th Cir. 2006))).
2