Case: 09-20534 Document: 00511215879 Page: 1 Date Filed: 08/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2010
No. 09-20534 Lyle W. Cayce
Clerk
LILLIE ANN LOPEZ; JANA YOUNG,
Plaintiffs–Appellants
v.
CITY OF HOUSTON; PETER BROWN; SUE LOVELL; MELISSA
NORIEGA; RONALD GREEN; JOLANDA JONES; TONI LAWRENCE;
JARVIS JOHNSON; ANNE CLUTTERBUCK; WANDA ADAMS; MIKE
SULLIVAN; M. J. KAHN; PAM HOLM; JAMES G. RODRIGUEZ; BILL
WHITE; ANNISE D. PARKER,
Defendants–Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Appellants, a group of minority voters residing in Houston, Texas (“the
City”) allege constitutional and statutory violations stemming from changes in
the way the City calculates its population for purposes of redistricting and
adding city council seats. The district court dismissed the case as frivolous.
Because we hold that appellants’ claims are not justiciable, we affirm.
Case: 09-20534 Document: 00511215879 Page: 2 Date Filed: 08/26/2010
No. 09-20534
FACTS AND PROCEEDINGS
As amended in 1979, Article V, § 2 of the City’s charter provides that two
additional single-member city council districts are to be created if the council
determines, pursuant to the charter, that the City’s population is greater than
or equal to 2.1 million people. Article V, § 3 provides that, in each election year,
the City Council must investigate and determine the population in each of the
districts “based upon the best available data, including, but not limited to, the
most recent federal census” for the purpose of determining whether the districts
are out of proportion. In February 2009, before the 2009 city elections, the
council determined that the population was 1,953,631 for the purposes of Article
V, § 3. This figure represented the City’s population as reported by the most
recent federal census, taken in 2000.
In 2004, Article VI-a of the charter was amended to add § 7, which limits
the growth of the City’s annual revenue based in part on the rate of change in
the City’s population. This rate of change is determined by using annual
population data “obtained from the State of Texas’s State Data Center” and is
“adjusted every ten years to the City’s official census per the United States
Department of Commerce—Bureau of the Census.” The State Data Center
estimated the population of Houston to be 2,139,408 as of July 1, 2007. While
this was not a determination of the population pursuant to Article V, § 3,
appellants claim that it should be considered a population determination made
“pursuant to the charter,” triggering the required addition of two council seats.
Appellants filed suit arguing that the council’s February 2009
determination of the City’s population violated §§ 2 and 5 of the Voting Rights
Act, 42 U.S.C. § 1973c et seq., the Equal Protection Clause of the Fourteenth
Amendment, and the Fifteenth Amendment. They sought an order enjoining the
November 2009 elections until the City Council added two seats and redistricted.
The City filed a motion to dismiss for failure to state a claim, and appellants
2
Case: 09-20534 Document: 00511215879 Page: 3 Date Filed: 08/26/2010
No. 09-20534
filed a first amended complaint. The City then supplemented its motion to
dismiss, which the district court granted.1 The district court later denied
appellants’ motion to alter the judgment and another motion to file a proposed
second amended complaint. While the case was pending the election was held,
without any increase in the number of council seats. Appellants timely appealed.
STANDARD OF REVIEW
We review a district court’s grant of a motion to dismiss for failure to state
a claim de novo. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440
n.8 (5th Cir. 2000). Jurisdictional issues such as mootness and ripeness are legal
questions for which review is de novo. See Bayou Liberty Ass’n v. U.S. Army
Corps of Eng’rs, 217 F.3d 393, 396 (5th Cir. 2000) (citing Harris v. City of
Houston, 151 F.3d 186, 189 (5th Cir. 1989)); Groome Res. Ltd. v. Parish of
Jefferson, 234 F.3d 192, 198-99 (5th Cir. 2000).
DISCUSSION
As the basis for their Voting Rights Act claims, appellants assert that the
City Council has adopted two changes with respect to voting without obtaining
the required “preclearance.” The first is that, under Article V, § 3 of the charter,
any determination of the City’s population—even one made under Article VI-a,
which did not exist at the time Article V, § 3 was written—triggers the two-
member increase described in Article V, § 2. Appellants assert that the City
Council has instituted a new policy to permit only determinations made under
Article V, § 3 to trigger the increase. The second alleged change is that, formerly,
1
Under the Voting Rights Act, a change in a “standard, practice, or procedure with
respect to voting” must be “pre-cleared” by either declaratory judgment by the U.S. District
Court for the District of Columbia or by submitting the proposed changes to the U.S. Attorney
General. Actions under § 5 of the Voting Rights Act are heard by a three-judge court in
accordance with 28 U.S.C. § 2284, whose decisions are immediately appealable to the Supreme
Court. See 42 U.S.C. § 1973c(a). However, a district court judge may dismiss a claim prior to
referring it to a three-judge court if the claim is “‘wholly insubstantial’ and completely without
merit.” LULAC v. Texas, 113 F.3d 53, 55 (5th Cir. 1997) (per curiam).
3
Case: 09-20534 Document: 00511215879 Page: 4 Date Filed: 08/26/2010
No. 09-20534
the City used the “best available data” to determine population, including but
not limited to the decennial census. Appellants claim that this practice has
changed and that now the City Council only looks at the federal census figures.
They argue that this second change means that even though the charter
provides for possible redistricting every two years, practically it can only happen
every ten years when new census data becomes available. Appellants argue that
these are changes in a “standard, practice, or procedure with respect to voting”
within the meaning of § 5 of the Voting Rights Act and thus require
preclearance. Without conceding that it has changed any practice or procedure
related to voting, the City argues that appellants’ claims are not justiciable
because they have been rendered moot by the passing of the 2009 city council
election.
Appellants contend that their claims are not moot, even though the 2009
election has passed, for two reasons. First, because they seek invalidation of the
2009 election and a new election after the addition of two new city council seats,
appellants argue that there is a viable remedy for their injury. Second, they
argue that the failure to use the “best available data” in addition to census data
precludes mid-decade redistricting, which constitutes an ongoing injury
regardless of whether the 2009 election has occurred. We conclude that
appellants’ claims are not justiciable, because they are, respectively, moot and
not ripe.
“[T]o qualify as a case for federal court adjudication, a case or controversy
must exist at all stages of the litigation, not just at the time the suit was filed.”
Bayou Liberty Ass’n, 217 F.3d at 396. Invalidation of a past election can, in some
instances, be a viable remedy that will save a claim from mootness even if the
election has passed. See NAACP v. Hampton Cnty. Election Comm’n, 470 U.S.
166, 181-82 (1985) (permitting a claim to proceed when plaintiffs sought election
invalidation). But such invalidation is an extraordinary remedy that can only be
4
Case: 09-20534 Document: 00511215879 Page: 5 Date Filed: 08/26/2010
No. 09-20534
employed in exceptional circumstances, usually when there has been egregious
defiance of the Voting Rights Act on the part of the covered entity. See Watkins
v. Mabus, 502 U.S. 954 (1991) (mem.), aff’g in part, vacating as moot in part 771
F. Supp. 789 (S.D. Miss. 1991); see also Harris, 151 F.3d at 189-91 (dismissing
as moot a voting law case in which the complained-of election had passed); 25
A M. J UR. 2 D Elections § 133 (2010) (noting that invalidation of an election is a
“drastic remedy” that should only be employed where the government action
“constitutes deliberate defiance” of the Act). Appellants have made no claim of
the kind of egregious or invidious discrimination that would make invalidation
of the 2009 election an appropriate remedy.
Nor is this claim saved from mootness because it is “capable of repetition,
yet evading review.” This exception to the mootness doctrine has two prongs: “(1)
the challenged action was in its duration too short to be fully litigated prior to
its cessation or expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action again.” Weinstein
v. Bradford, 423 U.S. 147, 149 (1975). Under the second prong, the party
invoking jurisdiction must show a “demonstrated probability” or “reasonable
expectation,” not merely a “theoretical possibility,” that it will be subject to the
same government action. Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th
Cir. 2010). The appellants bear the burden of proving both prongs. See id.; Davis
v. FEC, ___ U.S. ___, 128 S. Ct. 2759, 2769 (2008).
Here, the City has not formed a policy that it will follow in future similar
circumstances that are likely to repeat. Rather, in this case, the decennial U.S.
Census will report the population of the City before the next city elections on
November 8, 2011. See 13 U.S.C. § 141(a) (requiring census figures to be released
no later than April 1, 2011). At that time, one of three things will occur. One, the
census may determine that the City’s population is less than 2.1 million, in
which case the City will determine based on information that is definitively the
5
Case: 09-20534 Document: 00511215879 Page: 6 Date Filed: 08/26/2010
No. 09-20534
“best available” that the charter does not require the addition of two new council
seats.2 Two, the census may report that the population has reached 2.1 million
and the City will add the new seats pursuant to the charter, in which case the
appeal will be moot because the relief requested will be provided. Three, the
census might report that the population has reached 2.1 million and the City will
choose to violate its own charter and not add the seats, in which case the
appellants will have standing to challenge that decision. However, the City
pledged in its briefs before the district court, and before this court, that it
intended to add the seats should the 2010 Census determine that the population
reached 2.1 million. In any case, merely showing that the government will “have
an opportunity to act in the same allegedly unlawful manner in the future” is not
enough to satisfy the second prong of the exception without a reasonable
expectation that the government will act in that manner. Libertarian Party, 595
F.3d at 217. Appellants have not shown that there is a reasonable expectation
that the City will choose to violate its charter. Any claims based on the City’s
failure to redistrict or add new council seats prior to the 2009 election are moot.
Likewise, appellants’ claims that mid-decade redistricting will not occur
because of the City’s new decision to use old census data, rather than the “best
available data,” in determining its population, are not yet ripe. Ripeness is a
2
This outcome seems unlikely. Both the Census Bureau and the State of Texas
estimate that Houston’s population passed 2.1 million as of 2007. At oral argument, the City
conceded that it was likely that the 2010 Census would show that Houston’s present
population is well above 2.1 million. It might be argued that even if the 2010 Census finds that
the City’s population does not exceed 2.1 million, the City could and should still use other data
to “check” the Census for an undercount, which would make the claims not moot. This would
mean construing the charter as requiring the City to use other data to make a determination
of its population even in the face of a recent, definitive determination of that population by the
Census. This interpretation of the charter strains credulity, and in any event appellants did
not make this argument. Further, there is still no “reasonable expectation” that the appellants
will be subject to the same government action, because both parties seem to agree that the
2010 Census is almost certain to determine that Houston’s population is now more than 2.1
million.
6
Case: 09-20534 Document: 00511215879 Page: 7 Date Filed: 08/26/2010
No. 09-20534
component of subject matter jurisdiction, because a court has no power to decide
disputes that are not yet justiciable. See Sample v. Morrison, 406 F.3d 310, 312
(5th Cir. 2005) (per curiam). “A court should dismiss a case for lack of ‘ripeness'
when the case is abstract or hypothetical.” Monk v. Huston, 340 F.3d 279, 282
(5th Cir. 2003). To determine whether claims are ripe, we evaluate (1) the fitness
of the issues for judicial resolution, and (2) the potential hardship to the parties
caused by declining court consideration. Texas v. United States, 497 F.3d 491,
498 (5th Cir. 2007), cert. denied, 129 S. Ct. 32 (2008). These prongs must be
balanced, Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 296 (5th Cir. 1998),
and “[a] case is generally ripe if any remaining questions are purely legal ones.”
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583,
587 (5th Cir. 1987). “[E]ven where an issue presents purely legal questions, the
plaintiff must show some hardship in order to establish ripeness.” Cent. & S.W.
Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000). In this sense, the doctrines
of ripeness and standing “often overlap in practice, particularly in an
examination of whether a plaintiff has suffered a concrete injury.” Texas, 497
F.3d at 496. If the purported injury is “contingent [on] future events that may
not occur as anticipated, or indeed may not occur at all,” the claim is not ripe for
adjudication. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81
(1985) (quotation omitted).
We hold that the issues presented by appellants are not yet ripe for
judicial review. As noted above, new census figures will be available prior to the
next election, giving the City the opportunity to redraw and rebalance council
districts based on data that is the “best available,” which means that appellants
will suffer no hardship because we decline to consider their claims at this time.
At some point in the future, if the City persists in relying on census data that
has become outdated and refuses to redraw districts mid-decade, appellants may
be able to allege a non-frivolous claim that is ripe, and because it is capable of
7
Case: 09-20534 Document: 00511215879 Page: 8 Date Filed: 08/26/2010
No. 09-20534
repetition, yet evading review, also escapes the trap of becoming moot after each
passing city council election. But this is an event that “may not occur as
anticipated, or indeed may not occur at all,” id., which means that the claim is
merely abstract or hypothetical, and thus too speculative to be fit for judicial
review at this time.
CONCLUSION
The judgment of the district court is AFFIRMED.
8