MS Tea Party Amicus Brief on Redistricting
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UNITEDSTATESDISTRICTCOURT
FORTHESOUTHERNDISTRICTOFMISSISSIPPIJACKSONDIVISION
MISSISSIPPI STATE CONFERENCE OF
THE NATIONAL ASSOCIATION FOR
ADVANCEMENTOFCOLOREDPEOPLE,
THOMAS,PLUNKETT,RODWOULLARD
& HOLLIS WATKINS, On Behalf ofThemselves&OthersSimilarlySituated
VS.
HALEYBARBOUR,inHisOfficialCapacity
asGovernor of the State ofMississippi, J IM
HOOD, inHisOfficialCapacity asAttorney
General of the State of Mississippi, &
DELBERT HOSEMANN, in His Official
CapacityasSecretaryofStateof theStateof
Mississippi,asMembersoftheStateBoardof
Election Commissioners; THE MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE
COMMITTEE; THE MISSISSIPPI
DEMOCRAT PARTY EXECUTIVECOMMITTEE; and CONNIECOCHRAN,in
HerOfficial Capacity asChairman of Hinds
County, Mississippi Board of Election
Commissioners, on Behalf of Herself & All
OthersSimilarlySituated
APPORTIONMENT AND ELECTIONSCOMMITTEE OF THE MISSISSIPPI
HOUSEOFREPRESENTATIVES;
MISSISSIPPI STATE SENATE
DEMOCRATIC CAUCUS AND STATE
DEMOCRATICSENATORS,inTheir
PLA
CivilActionNo.3:11
DEFEN
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MOTIONFORLEAVETOFILEAMICUSCURIAEBRIEFOFTHEMISSISSIPPITEAPARTY
COMESNOWtheMississippiTeaParty( MSTP ),byandthroughun
counsel,andfilesthismotionforleavetofiletheamicuscuriaebriefattached
Exhibit A andinsupportwouldshowasfollows:
1. The Mississippi Tea Party is a duly formed organization ecorporate form in theStateofMississippi. It is solely responsible for the fu
contentoftheamicuscuriaebrief itseekstofileinthiscause. SeeDeclarati
Nicholson,ChairmanoftheMississippiTeaParty,attachedheretoasExhibit B
2. OnMarch17,2011,Plaintiffsinthisactionfiledtheircomplaintdeclaration that the existing apportionment plans for the Mississippi Se
Mississippi House of Representatives, which were passed and approved in
unconstitutionally malapportioned and violate the 14th Amendment to
Constitution,aswellasassociatedfederalvotingrightslaw.
3. Since its filing,boththepartiesoriginallynamed inthisaction
whohavebeenpermittedtointervenehaveassertedavarietyof legaltheories
suggestedavarietyofpoliticalremedies.
4. In the course of thepleadings submittedby the parties, threep
positionsemerged. First,certainpartiesurgedthattheplanwhichpassedtheS
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forconsiderationandshouldbedismissed. Third,certainpartiesargued in fa
Court,itself,drawingnewlines.
5. OnApril29,2011,theCourtissuedanOrderindicatinganincli
issue an order that the redistricting plans adopted respectively by the
RepresentativesandtheSenateduringtheregular2011session( the2011Pla
beadoptedas the interimcourt-orderedplan foruse in the2011elections.
wentontosaythat [t]hisproposedinterimremedyappearstobenecessaryinth
the acknowledgment of all parties that the existing state legislative dis
unconstitutionallymalapportioned.
6. If soordered,the inclinationof theCourtwould notonly have
impact on the 2011 elections, it would permanently alter the legislative pr
timeline for the completion of redistricting and encourage an increase
redistrictinglitigation.
7. GiventhegravityofthedecisionbeforetheCourt,theMSTPre
requests the Court to grant leave for it to file the attached amicus curiae
consideration, and if the Court deems it necessary or warranted, to prese
argumentatthescheduledhearingonMay10,2011.
8. Theattachedbriefdoesnotseektoregurgitateargumentsmade
parties,buttooffernewperspectiveandanalysisontheissuespresentlybefore
andtoproposeadditionalremediesconstitutionallyavailabletotheCourt. Sp
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impacton254 thatwill necessarily result from theCourt sassumingjurisdi
(4)presuming theCourtdoesassumejurisdiction,constitutionally acceptable
including(i)permittingtheremainderofthereapportionmentprocessspelledo
to be implemented and/or (ii) permitting elections to be held under exis
formulatedandapprovedin2002.
9. TheMSTPstronglybelievesthattheargumentsandauthorityc
attached brief would aid in the Court s decision making. Unlike the
participating in this litigation, the MSTP has no interest in getting itself e
reelectedanddoesnotaspiretoanypositionofauthoritywithintheLegislature
MSTP s desire to preserve and promote federalism, separation of po
bicameralismthatmotivatesittobeappointedanamici.
10. TheMSTPwouldfurthernotethatitiswithintheinherentautho
Courttogrant leave to file theattachedamicus curiae brief and thatnumero
courtsfromacrossthenationshavesoheld. SeeHarrisv.Pernsley,820F.2d
(3dCir.1987)(recognizingthatpermittingfriendsofcourtmaybeadvisablew
party can contribute to court s understanding of matter in question); Mobi
Water,Sewer&FireProtectionAuthority,Inc.v.MobileAreaWater&Sewe
Inc.,F.Supp.2d1342(S.D.Ala.2008)(permittingamicuscuriaebriefstobe
v.MinistryofStateSecurity,557F.Supp.2d131,136(D.D.C.2008) ( Dist
have inherent authority to appoint or denyamici );Smithv.ChryslerFin.Co
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TimeshareResales, Inc. v.Stuart, 764 F. Supp. 1495, 1500-01 (S.D.Fla. 19
district court has broad inherent authority to appoint amici curiae, or frien
court, toassistinaproceeding );NewsandSun-SentinelCo.v.Cox,700F.Su
(S.D.Fla.1988)( Inasmuchasanamicusisnotapartyanddoesnotrepresentt
butparticipatesonly forthebenefitof thecourt,it issolelywithinthediscret
court to determine the fact, extent, and manner of participation by the ami
generallyTafasv.Dudas,511F.Supp.2d652 (E.D.Va.2007);Linkerv.Cu
Machinery,Inc.,594F.Supp.894,897(E.D.Pa.1984);Donovanv.Gillmor,53
154,159(N.D.Ohio1982).
11. MSTP would also point out that this honorable Court has already
intervention by the followingparties: TheApportionmentandElectionsCom
the Mississippi House of Representatives, the Mississippi State Senate D
Caucus and State Democratic Senators in their Individual Capacities, and
Burton, Sidney Bondurant, Becky Currie, and Mary Ann Stevens. Leave
amicuscuriaebrief isgenerallygrantedmoreliberallythanauthoritytointerv
e.g., Tutein v. Daley, 43 F.Supp.2d 113 (D.Mass. 1999) (denying NAS m
intervenebutthenstating, NASmayseekleavetofileamicuscuriaebriefsa
duringthislitigation. )
WHEREFORE,PREMISESCONSIDERED, theMSTP respectfully
thattheCourtgrant lifeandpermit it to file theamicuscuriae brief attached
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RespectfullySubmitted,
THEMISSISSIPPITEAPARTY
By:/s/RussellLatinoIII
RussellLatinoIII(MSBar#102281)
P.O.Box2656
Madison,MS39110
(601)-605-6931(601)-605-6901
RichardE.WilbournIII(MSBar#853RichardWilbourn&Associates,PLLC
P.O.Box1278
Madison,MS39130-1278
O)601-853-8500F)601-607-3737
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CERTIFICATEOFSERVICE
I, Russell Latino III, on this, the 5th
day ofMay, do hereby certify th
causedatrueandcorrectcopyoftheforegoingmotionforleavetofileanamic
brieftobeservedonthebelowinterestedpartiesviatheECFsystem:
CarrollEdwardRhodes,Esq.
LawOfficesofCarrollRhodes
P.O.Box588Hazelhurst,MS39083
JohnF.Hawkins,Esq.
Hawkins,Stracener&Gibson,PLLC
P.O.Box24627
Jackson,MS39225-4627
StephenLeeThomas,Esq.
JackL.Wilson,Esq.
BradleyArantBoultCummings,LLP
P.O.Box1789
Jackson,MS39215-1789
JustinL.Matheny,Esq.
HaroldE.Pizzetta,III,Esq.
MississippiAttorneyGeneral sOffice
P.O.Box220
Jackson,MS39205-0220
[email protected] [email protected]
RobertL.Gibbs,Esq.
MatthewW.Allen,Esq.
Brunini,Grantham,Grower&Hewes
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Wise,Carter,Child&Caraway
401EastCapitolStreet,Suite600
P.O.Box651Jackson,MS39201
SamuelL.Begley,Esq.
BegleyLawFirm
P.O.Box287
Jackson,[email protected]
CrystalWiseMartin,Esq.
HindsCountyBoardofSupervisors
P.O.Box686
Jackson,MS39205-0686
RobertB.McDuff,Esq.
767NorthCongressSt.
Jackson,MS39202
R.AndrewTaggart,Jr.,Esq.
ClayB.Baldwin,Esq.
Taggart,Rimes&Usry,PLLC
P.O.Box3025
Madison,MS39130
CoryT.Wilson,Esq.
WilloughbyLawGroup,PLLC602SteedRd.,Suite110
Ridgeland,MS39157
Thisthe5thdayofMay,2011.
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISION
MISSISSIPPI STATE CONFERENCE OF
THE NATIONAL ASSOCIATION FOR
ADVANCEMENT OF COLORED PEOPLE,
THOMAS, PLUNKETT, ROD WOULLARD
& HOLLIS WATKINS, On Behalf ofThemselves & Others Similarly Situated
VS.
HALEY BARBOUR, in His Official Capacity
as Governor of the State of Mississippi, JIM
HOOD, in His Official Capacity as Attorney
General of the State of Mississippi, &DELBERT HOSEMANN, in His Official
Capacity as Secretary of State of the State of
Mississippi, as Members of the State Board of
Election Commissioners; THE MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE
COMMITTEE; THE MISSISSIPPI
DEMOCRAT PARTY EXECUTIVE
COMMITTEE; and CONNIE COCHRAN, in
Her Official Capacity as Chairman of Hinds
County, Mississippi Board of Election
Commissioners, on Behalf of Herself & all
Others Similarly Situated
PLA
Civil Action No. 3:11
DEFE
AMICUS CURIAEBRIEF OF THE MISSISSIPPI TEA PARTY
IN SUPPORT OF DISMISSAL FOR LACK OF JURISDICTION
Of Counsel:
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IF THE TIMING MECHANISM FOR REDISTRICTING CONTAINEARTICLE 13, 254 OF THE CONSTITUTION OF THE STATE OF MIS
IS CONSTITUTIONAL, PURSUANT TO THE FOURTEENTH AMEND
OF THE U.S. CONSTITUTION, PLAINTIFFS LACK ARTICLE III STA
& THE COURT LACKS JURISDICTION. TO ASSUME JURISDICTI
THIS MATTER IS TO DENY THE ENFORCEABILITY OF CERTA
PORTIONS OF 254 & EFFECTIVELY AMEND THE MISSISSIP
CONSTITUTION.
COMES NOW the Mississippi Tea Party1
( MSTP ), by and through un
counsel, and files this amicus curiae brief in support of dismissal for lack of ju
Alternatively, should the Court assume jurisdiction, the MSTP would offer tw
which are consistent with the U.S. and Mississippi Constitutions, not p
addressed.
I. PREFACE
As a preface to the argument presented below, it is worth noting that
MSTP and its members hold certain political viewpoints, as each of the parti
action do, it is not the intent of this brief to assess the efficacy of any specific red
plan or to analyze the electoral implications of enacting any specific plan. Ra
the intent of this brief to address important issues of federalism, separation o
bicameralism and constitutional process which have not been fully vetted a
warrant substantial consideration by the Court prior to rendering any decisio
matter.
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II. SUMMARY OF ARGUMENT
In every federal case, the party or parties bringing the suit must establish
to prosecute the action. Elk Grove Unified School District v. Newdow, 542 U
(2004) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). In this case,
standing, and the Court s jurisdiction, hinges entirely on the enforceability of
254 of the Constitution of the State of Mississippi. If applied as clearly word
would require the Legislature, or in the event of the Legislature s failur
determined commission, to complete legislative redistricting in the year 201
process outlined in 254 does not violate the U.S. Constitution or con
associated federal law, then this lawsuit is entirely premature and the Co
jurisdiction to grant any relief. Conversely, the assumption of jurisdiction by
would amount to a finding that 254, either in form or application, violates
Constitution or conflicts with associated federal law.
Just as the Court s jurisdiction hinges on the singular issue of
enforceability, the enforceability of 254 hinges on a single question namely
the period provided by 254 to complete legislative redistricting (in 2012)
manner violates the U.S. Constitution or conflicts with associated fede
Fortunately for the Court, the parties and the people of Mississippi, there exists
Supreme Court precedent that answers that question. The answer, as dem
below, is that 254 is entirely enforceable. Accordingly, the claims asserted by
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Constitution or associated federal law, the most appropriate and least intrusiv
would be to truncate the timetable, but permit the remainder of the redistrictin
spelled out in 254 to be set into motion specifically, to allow the Governo
special apportionment session, and if no plan is passed out of that session, to co
five-member commission referenced in 254 to apportion the Legislature.
option, which could work in conjunction with setting the remainder of 254 in
would be to permit the 2011 elections to occur based upon the lines drawn and
in 2002. As described below, permitting the 2011 elections to occur under exi
until such time that redistricting can be completed is consistent with e
precedent.
Lastly, certain parties to this litigation have urged that this Court im
House and Senate redistricting plans that passed their own respective ch
2011 session, but failed to garner the support of the opposite chamber. On its
may seem like a practical and expedient suggestion. However, the reality i
imposition of these plans would encroach upon the Constitution of the
Mississippi, would result in the subversion of the legislative process an
encourage future discord between the chambers and future litigation before this
III. ARGUMENT
A. Plaintiffs Lack Article III Standing to Pursue Claims
1. 254 of the Constitution of the State of Mississippi Doe
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Fourteenth Amendment of the U.S. Constitution to include an equal po
standard for congressional and legislative districts, respectively. This st
commonly known as the one person, one vote guarantee. The Supreme Cour
on equal population required that legislative redistricting occur on a periodic
order to satisfy the one person, one vote guarantee and, as a result,
redistricting became closely tied to the decennial U.S. census. Justin Levitt & M
McDonald, Taking the Re out of Redistricting: State Constitutional Prov
Redistricting Timing, 95 GEO.L.J. 1247, 1252-53 (2007).
In the years following Wesberry and Reynolds, states began to i
processes for redistricting that complied with the equal population stand
November of 1979, Mississippi amended Art. 13, 254 of its Constitution to p
reapportionment following the decennial census. See Watkins v. Mabus, 771
789, 791 (1991). 254 provides, in pertinent part, that:
The legislature shall at its regular session in the second year following the 19
decennial census and every ten (10) years thereafter, and may, at any other timby joint resolution, by majority vote of all members of each house, apportion t
state in accordance with the constitution of the state and of the United States in
consecutively numbered senatorial and representative districts of contiguoterritory. The senate shall consist of not more than fifty-two (52) senators, a
the house of representatives shall consist of not more than one hundred twen
two (122) representatives, the number of members of each house to
determined by the legislature.
MISS.CONST. Art. 13, 254.
The plain and unambiguous language of 254 required the Legi
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required to redistrict in 1992, 2002, 2012, 2022, and so on. The plain and una
language of 254 permitted the Legislature to redistrict at any other time.
crucial distinction. The Legislature shall, or is required to, redistrict in i
session two years following the decennial census. The Legislature ma
permitted, but not required, to redistrict at any other time.
In two of the three decades since the adoption of 254, the Legisl
performed its duty to redistrict in the required second year following the
census, only once electing to pass a redistricting plan in advance of the const
established deadline. In keeping with the requirement of the newly minted
Legislature adopted an apportionment plan in 1982 following the 1980 decenni
In 1991, the Legislature acted upon the provision of 254 which permitted, b
require, the Legislature to redistrict in advance of the second year following the
census. See Watkins, 771 F. Supp. At 791-92 ( [T]he Mississippi Legislatur
required by 254 to reapportion the Legislature until 1992 ). After the 2000 c
Legislature did not complete redistricting until required to do so in 20022.
The plain language of 254 makes abundantly clear that the Legislature
its 2012 regular session to complete redistricting. Accordingly, the argumen
Court should assert jurisdiction because the Legislature failed to satisfy its duty
Mississippi Constitution in 2011 is wholly without merit.
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2. 254 of the Constitution of the State of Mississippi
Violate the U.S. Constitution or Conflict with Associate
Law
The question then becomes whether 254, in form or application, vi
U.S. Constitution or conflicts with associated federal law. More specifically, th
is whether waiting until the 2012 regular session to complete redistricting, pur
254, violates the U.S. Constitution or conflicts with associated federal law.
The seminal decision on the constitutional requirement of periodic redis
the aforementionedReynolds case. InReynolds, the Court expressly addressed
of redistricting:
That the Equal Protection Clause requires that both houses of a state legislatube apportioned on a population basis does not mean that States cannot adosome reasonable plan for periodic revision of their apportionment schem
Decennial reapportionment appears to be a rational approach to readjustment
legislative representation in order to take into account population shifts agrowth. Reallocation of legislative seats ever 10 years coincides with t
prescribed practices in 41 of the States Limitations on the frequency
reapportionment are justified by the need for stability and continuity in t
organization of the legislative system, although undoubtedly reapportioning more frequently than every 10 years leads to some imbalance in the population
districts toward the end of the decennial period and also to the development
resistance to change on the part of some incumbent legislators. In substance, do not regard the Equal Protection Clause as requiring daily, monthly, annual
biennial reapportionment, so long as a State has a reasonably conceived plan f
periodic readjustment of legislative representation. While we do not intend
indicate that decennial reapportionment is a constitutional requisi
compliance with such an approach would clearly meet the minim
requirements for maintaining a reasonably current scheme of legislatirepresentation.
Reynolds, 377 U.S. at 583-84. Only if reapportionment were accomplished
frequency, would it be constitutionally suspect. Id. at 584. 254 adopts an
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Ripeness is a doctrine drawn both from Art. III limitations on judic
and from prudential reasons for refusing to exercise jurisdiction. Natl Park H
Assoc. v. Dept. of Interior, 538 U.S. 803, 808 (2003) (citing Reno v. Catho
Servs., Inc., 509 U.S. 43, 57, n. 18 (1993)). It is designed to prevent the court
avoidance of premature adjudication, from entangling themselves in
disagreements over administrative policies, and also to protect the agencies fro
interference until an administrative decision has been formalized and its effect
concrete way by the challenging parties. Natl Park Hospitality Assoc., 538 U.
09 (citingAbbott Laboratories v. Gardner, 387 U.S. 136, 14849 (1967)). A cl
ripe for adjudication if it rests upon contingent future events that may not
anticipated, or indeed may not occur at all. Thomas v. Union Carbide Ag
Products Co., 437 U.S. 568, 580-81 (1985) (quoting 13A Charles A. Wright,
Miller, & Edward H. Cooper, Federal Practice and Procedure 3532, p. 112 (19
In this case the parties urging the Court to assume jurisdiction
misunderstanding of what constitutes an actionable injury in a reapportionment
assumption made is that alleged malapportionment, in and of itself, is suffici
assumption is inconsistent withReynolds (discussedsupra) and with subsequen
from this very Court. The only actionable injury would be if redistricting
completed in 2012 in the method prescribed by 254 orif a redistricting plan p
prior to preclearance/implementation was found to have violated the one man,
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In Fairley v. Forrest County, this Court considered whether to ca
elections following the 1991 election of county supervisors under a 1983 re
plan that violated the one-man, one vote principle of the Fourteenth Amend
to population shift) where a plan based on 1990 census had not yet been formu
approved. Fairley v. Forrest County, 814 F. Supp. 1327 (1993). The court
ultimately determined that no special elections were required, and in doing so
poignant and topical question about the timing of redistricting:
Deviation from population norms can occur in any district at any timFor instance: A census is taken; a redistricting plan is legislative
adopted; it is pre-cleared; the next election is held; the next year, the neday, the next week, the next month a major disaster occurs-a large indus
in town closes, thousands relocate; a flood wipes out a community, peoprelocate; a toxic hazard develops, people move-do these situatio
mandate reapportionment because there is 50% deviation from the noreven though it is seven years until the next census? A constitutiona
impermissible deviation exists. It can be proven by demographers. Dothat require special elections and redistricting even before the next censu
Fairley, 814 F. Supp. at 1339. The question posed by theFairley Court is in m
sage-like. Take for instance Hurricane Katrina, which ravaged the Mississ
Coast and resulted in the displacement of thousands. Had a challenge to
apportionment in 2005 been raised, three years after the formulation and appro
2002 redistricting plan, would the Court have had jurisdiction? According to t
excepting the Secretary of State, the answer to that question must be yes.
minds, all that is required for a justiciable injury is alleged malapportionment
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week, month, year, etc., after a redistricting plan is formulated and approved.
that the Court could conceivably be log-jammed with an endless string of challe
would bring the legislative process to a grinding halt. The reality is tha
malapportionment as an actionable injury, in and of itself, is an all or nothing pr
If allowed, there is no difference between assuming jurisdiction based on an all
malapportionment one month after a plan is approved or in year nine of an
plan.
In Watkins, mentioned supra, this Court noted that for obvious re
[equal population] principle does not and indeed cannot require
mathematical exactness. Watkins, 771 F. Supp. at 802 (citing Brown v. Tho
U.S. 835, 842 (1983)). The Watkins Court went on to explain that:
[I]t is clear that, because of the swiftness with which population can shand the high cost of creating new election districts, a state may condu
elections for a reasonable amount of time with districts whose deviatioare higher than constitutionally optimal.
Id. In this sense, Watkins is consistent with the Reynolds Court, which an
highlighted above, the question posed by theFairley Court:
Limitations on the frequency of reapportionment are justified by the need
stability and continuity in the organization of the legislative system, althou
undoubtedly reapportioning no more frequently than every 10 years leads
some imbalance in the population of districts toward the end of the decennperiod and also to the development of resistance to change on the part of som
incumbent legislators. In substance, we do not regard the Equal Protecti
Clause as requiring daily, monthly, annual or biennial reapportionment, so loas a State has a reasonably conceived plan for periodic readjustment of legislat
representation. While we do not intend to indicate that decennial reapportionm
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elections for failure to state a claim upon which relief may be granted, with c
Reynolds, and stating that [w]e recognize that legislative reapportionment is
a matter for legislative consideration and determination, and that judicial relief
appropriate only when a legislature fails to reapportion according to federal con
requisites in a timely fashion after having had an adequate opportunity to do so
In sum: (1) 254 provides a process that does not require the com
redistricting until 2012; (2) the process provided by 254 is entirely consisten
U.S. Constitution; (3) malapportionment alone does not create an actionable inj
the U.S. Supreme Court has expressly stated that a decennial redistricting plan
meets the minimal constitutional requirements; and, thus, (4) Plaintiffs lack
meaning the Court lacks jurisdiction. There is no way to predict, with any
certainty, whether the legislature or, if necessary, the five-member appo
commission will complete the task of redistricting in 2012, and, to be sure, n
if/they will not. The lawsuit is premature. Allegations of possible future inju
satisfy the requirements of Art. III. A threatened injury must be certainly imp
constitute injury in fact. Whitmore, 495 U.S. at 158 (citingBabbit v. Farm Wo
U.S. 289, 298 (1970) (internal citations omitted)).
B. If the Court Assumes Jurisdiction, the Most Appropriate
Intrusive Remedy it Could Fashion Would be to Trun
Timetable Found in 254 & Permit the Remainder
Apportionment Process Contained in 254 to Occur
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out of basic tenets of federalism and the doctrine of separation of powers, s
Court assume jurisdiction, it should truncate the timetable contained in 254 a
the apportionment process contained therein to occur. Specifically, 254 plain
what must be done in the event the Legislature adjourns without apportioning its
Should the legislature adjourn, without apportioning itself as requirhereby, the governor by proclamation shall reconvene the legislatu
within thirty (30) days in special apportionment session which shall nexceed thirty (30) consecutive days, during which no other business sh
be transacted, and it shall be the mandatory duty of the legislature to adoa joint resolution of apportionment. Should a special session not adop
joint resolution of apportion as required hereby, a five-memcommission consisting of the chief justice of the supreme court
chairman, the attorney general, the secretary of state, the speaker of thouse of representatives and the president pro tempore of the senate sh
immediately convene and without one hundred eighty (180) days of tadjournment of such special apportionment session apportion t
legislature, which apportionment shall be final upon filing with the offiof the secretary of state. Each apportionment shall be effective for t
next regularly scheduled elections of members of the legislature.
MISS. CONST. Art. 13, 254. Should the Court assume jurisdiction, it sho
Governor Barbour to call a special apportionment session. Should that appo
session fail, the apportionment commission referenced in 254 should then con
The U.S. Supreme Court has repeatedly held that redistricting and reapp
legislative bodies is a legislative task which the federal courts should make ev
not to preempt. Wise v. Lipscomb, 437 U.S. 535, 539-40 (1978) (citing Connor
431 U.S. 407, 414-15 (1977); Chapman v. Meier, 420 U.S. 1, 27 (1975); G
Cummings, 412 U.S. 735, 749 (1973);Burns v. Richardson, 384 U.S. 73, 84-8
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than for the federal court to devise and order into effect its own plan. Wise, 4
540;see also Watkins
, 771 F. Supp. at 793 (citingMcDaniel v. Sanchez
, 452
138 (1981), for proposition that reapportionment is primarily the duty and resp
of the State through its legislature or other body, rather than of a federal court )
In light of the fact that redistricting is a legislative task, and not a judic
would make sense to permit the Legislature to complete the task of reappo
consistent with the alternative measures contained in 254 (special session/con
five-member panel).
Those parties that have urged the Court simply to impose the 2011 H
Senate plans, as well as those parties that are urging the Court to draw its o
may well retort that the Legislature had an opportunity to complete redistrictin
and failed. This response ignores a couple basic realities. First, in the 2011 se
legislature was operating under the accurate belief that according to 254 it
2012 to complete redistricting. Second, in accepting the 2012 deadline
completion of redistricting and as a result of this lawsuit, no special appo
session was called. In the absence of a special apportionment session, there co
failure to complete redistricting, and in the absence of legislative failure in
apportionment session during the second year after the decennial census, there
no convening of the five-member commission. In short, the stimuli to tr
alternative mechanisms spelled out in 254 by which to accomplish redistrictin
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C. Should the Court Assume Jurisdiction, It Would be Constit
Permissible to Allow for the 2011 Elections to Occur U
Existing Lines Drawn and Approved in 2002
While Watkins is inapposite on the question of the Court s jurisdicti
matter4, it is instructive should the Court hold that the timing mechanism in
unenforceable and assume jurisdiction. In Watkins, faced with insufficient time
to formulate a new redistricting plan before the 1991 elections, the Court ord
elections be held under the plan adopted in 1982 based on the 1980 decenni
Watkins, 771 F. Supp. 789. Watkins is not unique in this chosen remedy. I
discussed supra, the court determined that special elections were not const
required after a 1991 county supervisor election was held based upon lines
following the 1980 decennial census. A nearly identical decision was reached i
of Bryant v. Lawrence County. Bryant v. Lawrence County, 814 F. Supp. 13
(S.D. Miss. 1993) ( This Court is of the opinion that when a political body is
under a constitutional plan (one pre-cleared by the Justice Department and not c
in Court, or either agreed to by the parties to litigation and then pre-cleared by t
Department, as is the situation in this case) that such body must have a reason
after each decennial census in order to develop another plan and have it pre-c
the Justice Department ).
Sister circuits have also reached the conclusion that it is permissibl
elections based on a previous decennial census while redistricting based on
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elected under malapportioned plan where such is caused by population shift
over ten year period and governing body does not have time to reapportion
census data is available and before next election occurs); Ramos, discussedsup
Supp. at 1357, affd, 976 F.2d at 340 (dismissing lawsuit requesting special
following 1991 election using redistricting plan based on 1980 decennial census
bothFrench andRamos recognized that with four year terms of office, this pre
circumstance would occur every twenty years. InFrench, the court noted:
In any system of representative government, it is inevitable that somelections for four-year or longer terms will occur on the cusp of t
decennial census. The terms inevitably will last well into the next decadand depending on shifts in population in the preceding decade, t
representation may be unequal in the sense that the districts no longmeet a one-person, one-vote test under the new census
We do not believe that considerations of mathematical equality
representation or the presumption in favor of redistricting every ten yeaoutweigh considerations concerning the validity of four-year terms, t
settled expectations of voters and elected officials, the costs of telections, and the need for stability and continuity in office.
French, 963 F.2d at 891-92. TheRamos Court explained it this way:
The four-year terms that Chicago alderman serve merely indicate th
every fifth election (i.e. when the election years falls on the same year ththe new census data becomes available) likely will result in a four-ye
delay in using the new census data. But this simple consequence of twdifferent schedules (i.e. census every ten years, elections every four) do
not diminish the voting power of any protected minority; there is merelyfour-year lag that occurs every other decade between redistricting a
elections.
Ramos, 976 F.2d at 341. In other words, not only have the Sixth and Sevent
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election before using the new plan. While this may not be a position this Court
to take, it highlights the fact that using the 2002 plan as an interim plan in 2011
all, an extreme position.
Allowing the 2002 plan to be used for the 2011 elections is consis
established precedent and could be used an alternative to, or in conjunction with
the completion of the process laid out in 254 (as advocated in Sec. III, B su
using the 2002 plan for the 2011 elections, both the Legislature and the Court w
additional time to engage the public and conduct necessary research and a
ensure that the redistricting plan formulated based upon the 2010 decenni
complied with the one man, one vote standard.
D. Imposition of the House & Senate Plans Would Hav
Negative Impact on the Process of Redistricting
Certain parties to this litigation have urged this Court to impose the H
Senate redistricting plans that passed their own respective chambers in
session, but failed to garner the unconditional support of the opposite chambe
surface, this may seem like a practical and expedient suggestion. However, the
that the imposition of these plans would encroach upon the Mississippi Co
would result in the subversion of the legislative process and would encoura
discord between the chambers and future litigation before this Court.
To illustrate this concern it helps to look at the legislative wrangling w
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in the Senate, the resolution was voted down in the Elections Committee. On
2011, Senator Terry Burton introduced J.R. 201, entitled, A Joint Reso
Redistrict the Mississippi State Senate. On March 10, 2011, J.R. 201 passed th
Upon arrival in the House, J.R. 201 was amended to include the House plan
failed to garner support in the Senate. Then, and only then, did the House app
Senate plan on March 15, 2011. J.R. 201 was then returned to the Senate for
determine if the Senate concurred. In anticipation of the vote, House Spe
McCoy publicly threatened that if the Senate failed to concur and instea
conference, he would not appoint conferees and end the legislative process. O
March 17, 2011, the Senate declined to concur. Lt. Governor Phil Bryant
conferees, as is the customary practice. As previously announced, House
McCoy refused. On that same day, the present lawsuit was filed. These are fa
are not in dispute and which have been previously cited in the Mississippi D
Executive Committee s Opposition to Secretary Hosemann s Motion to Dism
53).
At the time of adjournment, neither plan had received approval of
chamber standing alone on its own merits something definitively required by
the Mississippi Constitution in order to enact a redistricting plan. MISS.CONST
254 ( The legislature shall at its regular session in the second year following
decennial census and every ten (10) years thereafter by joint resolution, by
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representatives ); see generally MISS. CONST. Art. 4, 59 (requiring passag
chambers for enactment of legislation).
As discussed above, should the Court assume jurisdiction, the message b
to the Legislature and the people of Mississippi is that the deadline for red
contained in 254 is a fiction. Should the Court assume jurisdiction and im
House and Senate plans that did not obtain required approval from the
chamber, the message being sent is that not only is the timetable in 254 a m
the bicameral legislative process required therein is, as well. It is positive rein
to those in the Legislature who might thwart the requirements of the M
Constitution, pick up their ball and head to court. It will discourage future co
between the chambers, may have the effect of precluding the alternative m
redistricting contained in 254 from ever occurring (special session and fiv
commission) and may well lead to long term reliance on judicial intervention i
legislative compromise on what is, undoubtedly, a legislative task. It is for the
that the MSTP feels that the adoption of the Court s inclination, even in th
could have a lasting, negative impact on redistricting in Mississippi.
IV. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, the Mississippi T
respectfully urges the Court to hold that the timing mechanism contained in
enforceable, that Plaintiffs lack standing and to dismiss this case for lack of ju
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session). Additionally, as an alternative to, or in conjunction with, permitting
of 254 to be set into effect, the Court would be well within the boun
established precedent holding the 2011 elections under existing and approved l
2002.
Respectfully Submitted,
THE MISSISSIPPI TEA PARTY
By: /s/ Russell Latino IIIRussell Latino III (MS Bar # 102281)
P.O. Box 2656Madison, MS 39110
(601)-605-6931 (T)(601)-605-6901 (F)
Richard E. Wilbourn III (MS Bar # 853Richard Wilbourn & Associates, PLLC
P.O. Box 1278Madison, MS 39130-1278
(601)-853-8500(601)-607-3737
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CERTIFICATE OF SERVICE
I, Russell Latino III, on this, the 5th
day of May, do hereby certify th
caused a true and correct copy of the foregoing amicus curiae brief to be serv
below interested parties via the ECF system:
Carroll Edward Rhodes, Esq.Law Offices of Carroll Rhodes
P.O. Box 588Hazelhurst, MS 39083
John F. Hawkins, Esq.Hawkins, Stracener & Gibson, PLLC
P.O. Box 24627Jackson, MS 39225-4627
Stephen Lee Thomas, Esq.Jack L. Wilson, Esq.
Bradley Arant Boult Cummings, LLPP.O. Box 1789
Jackson, MS [email protected]
Justin L. Matheny, Esq.Harold E. Pizzetta, III, Esq.
Mississippi Attorney General s OfficeP.O. Box 220
Jackson, MS [email protected]
Robert L. Gibbs, Esq.Matthew W. Allen, Esq.
Brunini, Grantham, Grower & Hewes
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Michael B. Wallace, Esq.Charles S. Seale, Esq.
Wise, Carter, Child & Caraway401 East Capitol Street, Suite 600
P.O. Box 651Jackson, MS 39201
[email protected]@wisecarter.com
Samuel L. Begley, Esq.
Begley Law FirmP.O. Box 287
Jackson, MS [email protected]
Crystal Wise Martin, Esq.
Hinds County Board of SupervisorsP.O. Box 686
Jackson, MS [email protected]
Robert B. McDuff, Esq.
767 North Congress St.Jackson, MS 39202
R. Andrew Taggart, Jr., Esq.Clay B. Baldwin, Esq.
Taggart, Rimes & Usry, PLLCP.O. Box 3025
Madison, MS [email protected]
Cory T. Wilson, Esq.Willoughby Law Group, PLLC
602 Steed Rd., Suite 110Ridgeland, MS 39157
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