The Project on Fair Representation sent this release via email:

Yesterday, the plaintiffs in Keith Lepak et. al. v. City of Irving, Texas petitioned the U.S. Supreme Court to grant certiorari and overturn the lower court decision which upheld the constitutionality of the City’s new council districts. The new Plan resulted from an agreement between the City and a Hispanic activist who successfully challenged the City’s at-large election system as a violation of Section 2 of the Voting Rights Act. The new Plan created six single-member districts, one of which was drawn with the purpose of giving Hispanics an opportunity to elect a candidate of their choice. The petition is attached.

The Petitioners, concerned voters residing in various council districts, argue that while the new district’s total population numbers are roughly equal, the Plan creates substantial disparities in citizen-voting age populations (CVAP). For example, the Plan’s Hispanic District 1 contains 11,231 citizens of voting age, while District 3 contains 20,617 and District 6 contains 19,920 citizens of voting age. This disparity means that the vote of those in District 1 eligible to cast a ballot is worth nearly twice as much as those of voters residing elsewhere in the City. This major mal-apportionment violates the Petitioners one-person, one-vote right to have their vote weighted equally to that of other citizens.

In opposing the lawsuit, the City sought and won summary judgment on the grounds that whether to use CVAP, citizen population or total population as the districting base is a policy choice left to the discretion of the City.

The Petitioners argue that the one-person, one-vote principle guarantees an equal vote to all electors. The Supreme Court has explained that the Equal Protection Clause requires that each qualified voter must be given an equal opportunity to participate in elections and thus, “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior College Dist of Metro Kansas City.

The United States filed an amicus brief and sought argument time in the court of appeals. The brief noted that this case raises “important questions regarding the appropriate population standard a locality should use when drawing its election districts in compliance with the Equal Protection Clause principles established in Reynolds v. Sims.”

The Petitioners argue that Lepak should be granted certiorari for a number of reasons.

First, the Supreme Court has not determined whether total population or voter population is the proper basis for assessing whether the population differences between districts violates the one-person, one-vote principle. In a similar case out of the Fifth Circuit, Chen v. City of Houston, Justice Thomas dissented from a denial of certiorari asserting that by not deciding this issue, the Court has “left a critical variable in the requirement undefined.” Moreover, the dissent noted that, “[t]he one-person, one-vote principle may, in the end, be of little consequence if [the Court] decide[s] that each jurisdiction can choose its own measure of population. But as long as [the Court] sustain[s] the one-person, one-vote principle, [it has] an obligation to explain to States and localities what it actually means.”

Second, the circuits are divided. On the one hand, the Ninth Circuit requires state and localities within its jurisdiction to use total population for purposes of one-person, one-vote compliance. On the other hand, the Fourth Circuit and Fifth Circuit allow states and localities to choose either total population or a voter-based approach without any judicial check as to whether that choice complies with the Constitution.

Finally, the Supreme Court should decide this issue given the tension it creates between Section 2 of the VRA and the one-person, one-vote principle. Specifically, to prevail in a Section 2 vote dilution case, a minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. Courts thus use CVAP to evaluate whether a minority constituency possesses electoral power in a particular geographic area.

Using total population for one-person, one-vote purposes but CVAP for purpose of analyzing Section 2 thus creates intolerable conflict between the Fourteenth Amendment and Section 2 of the VRA. It cannot be the case that courts must look to CVAP figures in finding a Section 2 violation, but may (or must) ignore CVAP figures entirely in assessing whether the new districts they are creating comply with the one-person, one-vote requirement.

The Project on Fair Representation (POFR) is a not-for-profit legal defense foundation based in Alexandria, Virginia that provided counsel to the plaintiffs. In addition to Lepak v. City of Irving, POFR has provided counsel in two cases currently before the Supreme Court, Fisher v. Univ. of Texas and Shelby Co. Ala. v. Holder.