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29present apportionment satisfies the Equal ProtectionClause,” id. at 93, but that using total population, in lightof the high concentration of military and other transientpersons on Oahu, would have been “grossly absurd anddisastrous,” id. at 94 (quotation omitted). Burns is onlyexplainable as rejecting total population as a mandatorybasis for redistricting.At base, reliance on total population as the startingpoint for reapportionment is plainly unconstitutional whenit leads to a grossly unequal distribution of eligible voters.In many cases, the use of total population will sufficientlyprotect the Fourteenth Amendment rights of voters as“eligible voters will frequently track the total populationevenly.” Chen, 206 F.3d at 525. But where, as here, largenumbers of persons ineligible to vote are concentratedin certain geographic locations, supra at 9-10, the use oftotal population does not fairly protect the voters’ right toan equally weighted vote. Gaffney v. Cummings, 412 U.S.735, 746 (1973) (“[I]f it is the weight of a person’s vote thatmatters, total population … may not actually reflect thatbody of voters whose votes must be counted and weighedfor the purposes of reapportionment, because ‘censuspersons’ are not voters.”).In Chen, which the lower court was bound to followin this case, the Fifth Circuit sought to avoid this issueby concluding that the choice between total populationand eligible voters is a political question that is thereforejudicially unreviewable. Chen, 206 F.3d at 525. But theFifth Circuit’s political-process approach is no moreviable than the “access” theory that currently reignsin the Ninth Circuit. This question has been settled formore than 50 years. As noted above, Baker held that the
30Tennessee voters’ dilution challenge to apportionment was“justiciable, and if discrimination is sufficiently shown,the right to relief under the equal protection clauseis not diminished by the fact that the discriminationrelates to political rights.” 369 U.S. at 209-10 (citation andinternal quotations omitted); Reynolds, 377 U.S. at 556(reaffirming Baker).Moreover, Reynolds squarely rejected the veryreasoning that the Fifth Circuit adopted in Chen:We are told that the matter of apportioningrepresentation in a state legislature is acomplex and many-faceted one. We are advisedthat States can rationally consider factors otherthan population in apportioning legislativerepresentation. We are admonished not torestrict the power of the States to imposediffering views as to political philosophy ontheir citizens. We are cautioned about thedangers of entering into political thickets andmathematical quagmires. Our answer is this:a denial of constitutionally protected rightsdemands judicial protection; our oath and ouroffice require no less of us.Id. at 566.Accordingly, “any alleged infringement of the rightof citizens to vote must be carefully and meticulouslyscrutinized.” Id. at 562; Connor, 431 U.S. at 416 (“TheEqual Protection Clause requires that legislativedistricts be of nearly equal population, so that eachperson’s vote may be given equal weight in the election of
Page 3 and 4: iiPARTIES TO THE PROCEEDINGAND RULE
Page 5: ivTable of ContentsPageREASONS FOR
Page 11: xCited AuthoritiesStatutes and Othe
Page 14 and 15: 1PETITION FOR A WRIT OF CERTIORARIP
Page 16 and 17: 3The Court should grant the petitio
Page 18 and 19: 5has “an obligation to explain to
Page 20 and 21: 7because the City has substantially
Page 22 and 23: 9City of IrvingPopulation, Voting A
Page 24 and 25: 11The district court granted summar
Page 26 and 27: 13I. This Petition Presents An Impo
Page 28 and 29: 15First, the issue has increasingly
Page 30 and 31: 17wards had far more eligible voter
Page 32 and 33: 19or practice, they cannot claim to
Page 34 and 35: 21This case—in which the choice b
Page 36 and 37: 23two, five, or ten, or one-half.
Page 38 and 39: 25In Chen, the Fifth Circuit reache
Page 40: 27Importantly, then, the Fourteenth
Page 45 and 46: 32Under the Plan, as noted above, D
Page 47 and 48: 34slightly larger than 9.9%—prese
Page 49 and 50: 1aAppendix AAPPENDIX
Page 51 and 52: 2aAppendix APER CURIAM: *This case
Page 53 and 54: 4aAPPENDIX B — Appendix MEMORANDU
Page 55 and 56: 6aAppendix Bpopulation numbers are
Page 57 and 58: 8aAppendix Bwhich total population
Page 59 and 60: 10aAppendix Bthe court does acknowl
Page 61 and 62: 12aAppendix CON PETITION FOR REHEAR
Page 63 and 64: 14aAppendix DIrving’s at-large el
Page 65 and 66: 16aAppendix Dother things, the at-l
Page 67 and 68: 18aAppendix DThornburg v. Gingles,
Page 69 and 70: 20aAppendix Dfailed to establish a
Page 71 and 72: 22aAppendix Dcomplying with the Gin
Page 73 and 74: 24aAppendix Done-hundred percent co
Page 75 and 76: 26aAppendix Dhis opinion that would
Page 77 and 78: 28aAppendix Dto estimate the 2008 H
Page 79 and 80: 30aAppendix Dvotes of Hispanics hav
Page 81 and 82: 32aAppendix Daverage household size
Page 83 and 84: 34aAppendix DDr. Rives attempts to
Page 85 and 86: 36aAppendix Dwith sampling error ac
Page 87 and 88: 38aAppendix DIn his expert report,
Page 89 and 90: 40aAppendix DAs Dr. Rives pointed o
Page 91 and 92:
42aAppendix DC. Gingles II & III-Ra
Page 93 and 94:
44aAppendix Dthis methodology canno
Page 95 and 96:
46aAppendix Dthat the confidence th
Page 97 and 98:
48aAppendix Dto Dr. Alford’s hypo
Page 99 and 100:
50aAppendix DD. Totality of the Cir
Page 101 and 102:
52aAppendix DThe Court concludes th
Page 103 and 104:
54aAppendix DNotably, James Dickens
Page 105 and 106:
56aAppendix D1231, 1245-46, 173 L.E
Page 107 and 108:
58aAppendix D2. Proof of Changed De
Page 109 and 110:
60aAppendix DPlaintiff has not empl
Page 111 and 112:
62aAppendix Dthe way in which the v
Page 113 and 114:
64aAppendix Dthe requirement that t
Page 115 and 116:
66aAPPENDIX E — RELEVANT Appendix
Page 117:
68aAppendix Eof insurrection or reb
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