IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20534

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.

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2010

Lyle W. Cayce

Clerk

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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

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filed a first amended complaint. The City then supplemented its motion to

dismiss, which the district court granted. The district court later denied

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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 twomember 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,

Under the Voting Rights Act, a change in a “standard, practice, or procedure with 1

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).

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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

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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

AM. JUR. 2D 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

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“best available” that the charter does not require the addition of two new council

seats. Two, the census may report that the population has reached 2.1 million

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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

This outcome seems unlikely. Both the Census Bureau and the State of Texas 2

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” thatthe 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.

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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

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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.

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