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8/6/2019 Redistricting Amicus Brief
http://slidepdf.com/reader/full/redistricting-amicus-brief 1/22
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MISSISSIPPI STATE CONFERENCE OF
THE NATIONAL ASSOCIATION FOR
ADVANCEMENT OF COLORED PEOPLE,
THOMAS, PLUNKETT, ROD WOULLARD
& HOLLIS WATKINS, On Behalf of
Themselves & Others Similarly Situated
VS.
HALEY BARBOUR, in His Official Capacity
as Governor of the State of Mississippi, JIMHOOD, 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
PLAINTIFFS
Civil Action No. 3:11-cv-00159
DEFENDANTS
AMICUS CURIAE BRIEF OF THE MISSISSIPPI TEA PARTY
IN SUPPORT OF DISMISSAL FOR LACK OF JURISDICTION
Of Counsel:
Russell Latino III (MS Bar # 102281)
Post Office Box 2656
Madison, MS 39110
601-605-6931 (T)
601-605-6901 (F)
russ@russlatino.com
Richard S. Wilbourn (MS Bar # 8537)
Post Office Box 1278
Madison, MS 39130-1278
601-853-8500 (T)
601-607-3737 (F)
rwilbournIII@yahoo.com
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IF THE TIMING MECHANISM FOR REDISTRICTING CONTAINED IN
ARTICLE 13, § 254 OF THE CONSTITUTION OF THE STATE OF MISSISSIPPI
IS CONSTITUTIONAL, PURSUANT TO THE FOURTEENTH AMENDMENT
OF THE U.S. CONSTITUTION, PLAINTIFFS LACK ARTICLE III STANDING& THE COURT LACKS JURISDICTION. TO ASSUME JURISDICTION IN
THIS MATTER IS TO DENY THE ENFORCEABILITY OF CERTAIN
PORTIONS OF § 254 & EFFECTIVELY AMEND THE MISSISSIPPI
CONSTITUTION.
COMES NOW the Mississippi Tea Party1
( MSTP ), by and through undersigned
counsel, and files this amicus curiae brief in support of dismissal for lack of jurisdiction.
Alternatively, should the Court assume jurisdiction, the MSTP would offer two options,
which are consistent with the U.S. and Mississippi Constitutions, not previously
addressed.
I. PREFACE
As a preface to the argument presented below, it is worth noting that while the
MSTP and its members hold certain political viewpoints, as each of the parties to this
action do, it is not the intent of this brief to assess the efficacy of any specific redistricting
plan or to analyze the electoral implications of enacting any specific plan. Rather, it is
the intent of this brief to address important issues of federalism, separation of powers,
bicameralism and constitutional process which have not been fully vetted and which
warrant substantial consideration by the Court prior to rendering any decision in this
matter.
1The Mississippi Tea Party is a non-partisan statewide organization existing and organized under the laws
of the State of Mississippi. It is dedicated to the promotion of three political/economic philosophies: (1)
constitutionally limited government; (2) fiscal responsibility; and (3) free market enterprise.
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II. SUMMARY OF ARGUMENT
In every federal case, the party or parties bringing the suit must establish standing
to prosecute the action. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 11
(2004) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). In this case, Plaintiffs
standing, and the Court s jurisdiction, hinges entirely on the enforceability of Art. 13, §
254 of the Constitution of the State of Mississippi. If applied as clearly worded, § 254
would require the Legislature, or in the event of the Legislature s failure, a pre-
determined commission, to complete legislative redistricting in the year 2012. If the
process outlined in § 254 does not violate the U.S. Constitution or conflict with
associated federal law, then this lawsuit is entirely premature and the Court lacks
jurisdiction to grant any relief. Conversely, the assumption of jurisdiction by the Court
would amount to a finding that § 254, either in form or application, violates the U.S.
Constitution or conflicts with associated federal law.
Just as the Court s jurisdiction hinges on the singular issue of § 254 s
enforceability, the enforceability of § 254 hinges on a single question namely, whether
the period provided by § 254 to complete legislative redistricting (in 2012) in some
manner violates the U.S. Constitution or conflicts with associated federal law?
Fortunately for the Court, the parties and the people of Mississippi, there exists definitive
Supreme Court precedent that answers that question. The answer, as demonstrated
below, is that § 254 is entirely enforceable. Accordingly, the claims asserted by Plaintiffs
are not ripe for adjudication.
However, even if the Court were to find that § 254 is unenforceable because the
timetable presented therein is in some manner contrary to rights extended by the U.S.
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Constitution or associated federal law, the most appropriate and least intrusive remedy
would be to truncate the timetable, but permit the remainder of the redistricting process
spelled out in § 254 to be set into motion specifically, to allow the Governor to call a
special apportionment session, and if no plan is passed out of that session, to convene the
five-member commission referenced in § 254 to apportion the Legislature. Another
option, which could work in conjunction with setting the remainder of § 254 into action,
would be to permit the 2011 elections to occur based upon the lines drawn and approved
in 2002. As described below, permitting the 2011 elections to occur under existing lines
until such time that redistricting can be completed is consistent with established
precedent.
Lastly, certain parties to this litigation have urged that this Court impose the
House and Senate redistricting plans that passed their own respective chambers in
2011 session, but failed to garner the support of the opposite chamber. On its face, this
may seem like a practical and expedient suggestion. However, the reality is that the
imposition of these plans would encroach upon the Constitution of the State of
Mississippi, would result in the subversion of the legislative process and would
encourage future discord between the chambers and future litigation before this Court.
III. ARGUMENT
A. Plaintiffs Lack Article III Standing to Pursue Claims
1. § 254 of the Constitution of the State of Mississippi Does Not
Require the Legislature to Complete Redistricting Until Its
Regular Session in 2012
In 1964, the U.S. Supreme Court decided the cases of Wesberry v. Sanders, 376
U.S. 1 (1964) and Reynolds v. Sims, 377 U.S. 533 (1964). These cases interpreted the
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Fourteenth Amendment of the U.S. Constitution to include an equal population
standard for congressional and legislative districts, respectively. This standard is
commonly known as the one person, one vote guarantee. The Supreme Court s rulings
on equal population required that legislative redistricting occur on a periodic basis in
order to satisfy the one person, one vote guarantee and, as a result, legislative
redistricting became closely tied to the decennial U.S. census. Justin Levitt & Michael P.
McDonald, Taking the “ Re” out of Redistricting: State Constitutional Provisions on
Redistricting Timing , 95 GEO. L.J. 1247, 1252-53 (2007).
In the years following Wesberry and Reynolds, states began to implement
processes for redistricting that complied with the equal population standard. In
November of 1979, Mississippi amended Art. 13, § 254 of its Constitution to provide for
reapportionment following the decennial census. See Watkins v. Mabus, 771 F. Supp.
789, 791 (1991). § 254 provides, in pertinent part, that:
The legislature shall at its regular session in the second year following the 1980
decennial census and every ten (10) years thereafter, and may, at any other time,
by joint resolution, by majority vote of all members of each house, apportion thestate in accordance with the constitution of the state and of the United States into
consecutively numbered senatorial and representative districts of contiguousterritory. The senate shall consist of not more than fifty-two (52) senators, and
the house of representatives shall consist of not more than one hundred twenty-
two (122) representatives, the number of members of each house to be
determined by the legislature.
MISS. CONST. Art. 13, § 254.
The plain and unambiguous language of § 254 required the Legislature to
apportion the state in the second year following the 1980 decennial census. The first year
after the 1980 decennial census was, of course, 1981. The second year after the 1980
decennial census was, of course, 1982. The plain and unambiguous language of § 254
required that the Legislature redistrict every ten (10) thereafter, so that it would be
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required to redistrict in 1992, 2002, 2012, 2022, and so on. The plain and unambiguous
language of § 254 permitted the Legislature to redistrict at any other time. This is a
crucial distinction. The Legislature “shall,” or is required to, redistrict in its regular
session two years following the decennial census. The Legislature “may,” or is
permitted, but not required, to redistrict at any other time.
In two of the three decades since the adoption of § 254, the Legislature has
performed its duty to redistrict in the required second year following the decennial
census, only once electing to pass a redistricting plan in advance of the constitutionally
established deadline. In keeping with the requirement of the newly minted § 254, the
Legislature adopted an apportionment plan in 1982 following the 1980 decennial census.
In 1991, the Legislature acted upon the provision of § 254 which permitted, but did not
require, the Legislature to redistrict in advance of the second year following the decennial
census. See Watkins, 771 F. Supp. At 791-92 ( [T]he Mississippi Legislature was not
required by § 254 to reapportion the Legislature until 1992 ). After the 2000 census, the
Legislature did not complete redistricting until required to do so in 20022.
The plain language of § 254 makes abundantly clear that the Legislature has until
its 2012 regular session to complete redistricting. Accordingly, the argument that the
Court should assert jurisdiction because the Legislature failed to satisfy its duty under the
Mississippi Constitution in 2011 is wholly without merit.
2As indicated in the Mississippi Democratic Executive Committee s Opposition to the Secretary of State s
Motion to Dismiss, the respective 2002 House and Senate plans appear on the web page of the Standing
Joint Legislative Committee on Reapportionment and Redistricting of the Mississippi State Legislature.
www.msjc.state.ms.us ( Joint Committee ).
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2. § 254 of the Constitution of the State of Mississippi Does Not
Violate the U.S. Constitution or Conflict with Associated Federal
Law
The question then becomes whether § 254, in form or application, violates the
U.S. Constitution or conflicts with associated federal law. More specifically, the question
is whether waiting until the 2012 regular session to complete redistricting, pursuant to §
254, violates the U.S. Constitution or conflicts with associated federal law.
The seminal decision on the constitutional requirement of periodic redistricting is
the aforementioned Reynolds case. In Reynolds, the Court expressly addressed the timing
of redistricting:
That the Equal Protection Clause requires that both houses of a state legislature
be apportioned on a population basis does not mean that States cannot adoptsome reasonable plan for periodic revision of their apportionment schemes.
Decennial reapportionment appears to be a rational approach to readjustment of
legislative representation in order to take into account population shifts andgrowth. Reallocation of legislative seats ever 10 years coincides with the
prescribed practices in 41 of the States Limitations on the frequency of
reapportionment are justified by the need for stability and continuity in the
organization of the legislative system, although undoubtedly reapportioning nomore frequently than every 10 years leads to some imbalance in the population of
districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators. In substance, wedo not regard the Equal Protection Clause as requiring daily, monthly, annual or
biennial reapportionment, so long as a State has a reasonably conceived plan for
periodic readjustment of legislative representation. While we do not intend to
indicate that decennial reapportionment is a constitutional requisite,
compliance with such an approach would clearly meet the minimal
requirements for maintaining a reasonably current scheme of legislative
representation.
Reynolds, 377 U.S. at 583-84. Only if reapportionment were accomplished with less
frequency, would it be constitutionally suspect. Id. at 584. § 254 adopts an approach
that requires that redistricting be completed every ten years in the second year after the
decennial census an approach which, according to the Supreme Court, is rational.
Most significantly, the Reynolds Court stated that while decennial reapportionment is not
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Ripeness is a doctrine drawn both from Art. III limitations on judicial power
and from prudential reasons for refusing to exercise jurisdiction. Nat ’ l Park Hospitality
Assoc. v. Dept. of Interior , 538 U.S. 803, 808 (2003) (citing Reno v. Catholic Social
Servs., Inc., 509 U.S. 43, 57, n. 18 (1993)). It is designed to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties. Nat ’ l Park Hospitality Assoc., 538 U.S. at 808-
09 (citing Abbott Laboratories v. Gardner , 387 U.S. 136, 14849 (1967)). A claim is not
ripe for adjudication if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all. Thomas v. Union Carbide Agricultural
Products Co., 437 U.S. 568, 580-81 (1985) (quoting 13A Charles A. Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice and Procedure § 3532, p. 112 (1984)).
In this case the parties urging the Court to assume jurisdiction evince a
misunderstanding of what constitutes an actionable injury in a reapportionment case. The
assumption made is that alleged malapportionment, in and of itself, is sufficient. This
assumption is inconsistent with Reynolds (discussed supra) and with subsequent authority
from this very Court. The only actionable injury would be if redistricting was not
completed in 2012 in the method prescribed by § 254 or if a redistricting plan passed and
prior to preclearance/implementation was found to have violated the one man, one vote
standard3
(i.e. Watkins, 771 F. Supp. at 791-92).
3It is for this reason, as adequately explained by the Secretary of State, that Watkins has no bearing on the
jurisdictional question before the Court. There, the Legislature had acted and its actions drew 14th
Amendment and Voting Rights Act scrutiny. Here, no plan has been proposed and no plan is yet due to be
proposed under § 254. However, should the Court interpret Watkins as requiring redistricting prior to the
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In Fairley v. Forrest County, this Court considered whether to call special
elections following the 1991 election of county supervisors under a 1983 redistricting
plan that violated the one-man, one vote principle of the Fourteenth Amendment (due
to population shift) where a plan based on 1990 census had not yet been formulated and
approved. Fairley v. Forrest County, 814 F. Supp. 1327 (1993). The court in Fairley
ultimately determined that no special elections were required, and in doing so, posed a
poignant and topical question about the timing of redistricting:
Deviation from population norms can occur in any district at any time.For instance: A census is taken; a redistricting plan is legislatively
adopted; it is pre-cleared; the next election is held; the next year, the nextday, the next week, the next month a major disaster occurs-a large industry
in town closes, thousands relocate; a flood wipes out a community, peoplerelocate; a toxic hazard develops, people move-do these situations
mandate reapportionment because there is 50% deviation from the norm,even though it is seven years until the next census? A constitutionally
impermissible deviation exists. It can be proven by demographers. Doesthat require special elections and redistricting even before the next census?
Fairley, 814 F. Supp. at 1339. The question posed by the Fairley Court is in many ways
sage-like. Take for instance Hurricane Katrina, which ravaged the Mississippi Gulf
Coast and resulted in the displacement of thousands. Had a challenge to legislative
apportionment in 2005 been raised, three years after the formulation and approval of the
2002 redistricting plan, would the Court have had jurisdiction? According to the parties,
excepting the Secretary of State, the answer to that question must be yes. In their
minds, all that is required for a justiciable injury is alleged malapportionment.
What are the implications of adopting such a position? It means that so long as
there is alleged malapportionment, the Court always has jurisdiction whether a day,
second year following the decennial census, as per § 254, and, thus, conferring jurisdiction, then Watkins is
simply errant and is inconsistent with the U.S. Supreme Court precedent discussed above and the action of
the Legislature in 1982 and 2002.
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week, month, year, etc., after a redistricting plan is formulated and approved. It means
that the Court could conceivably be log-jammed with an endless string of challenges that
would bring the legislative process to a grinding halt. The reality is that treating
malapportionment as an actionable injury, in and of itself, is an all or nothing proposition.
If allowed, there is no difference between assuming jurisdiction based on an allegation of
malapportionment one month after a plan is approved or in year nine of an approved
plan.
In Watkins, mentioned supra, this Court noted that for obvious reasons, the
[equal population] principle does not and indeed cannot require absolute,
mathematical exactness. Watkins, 771 F. Supp. at 802 (citing Brown v. Thomson, 462
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 shiftand the high cost of creating new election districts, a state may conduct
elections for a reasonable amount of time with districts whose deviationsare higher than constitutionally optimal.
Id. In this sense, Watkins is consistent with the Reynolds Court, which answers, as
highlighted above, the question posed by the Fairley Court:
Limitations on the frequency of reapportionment are justified by the need for
stability and continuity in the organization of the legislative system, although
undoubtedly reapportioning no more frequently than every 10 years leads tosome imbalance in the population of districts toward the end of the decennial
period and also to the development of resistance to change on the part of some
incumbent legislators. In substance, we do not regard the Equal Protection
Clause as requiring daily, monthly, annual or biennial reapportionment, so longas a State has a reasonably conceived plan for periodic readjustment of legislative
representation. While we do not intend to indicate that decennial reapportionmentis a constitutional requisite, compliance with such an approach would clearlymeet the minimal requirements for maintaining a reasonably current scheme of
legislative representation.
Reynolds, 377 U.S. at 583-84; see also Ramos v. Illinois, 781 F. Supp. 1353, 1357 (N.D.
Ill 1991.), aff ’ d , 976 F.2d 335, 340 (7th
Cir. 1992) (dismissing lawsuit requesting special
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elections for failure to state a claim upon which relief may be granted, with citation to
Reynolds, and stating that [w]e recognize that legislative reapportionment is primarily
a matter for legislative consideration and determination, and that judicial relief becomes
appropriate only when a legislature fails to reapportion according to federal constitutional
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 completion of
redistricting until 2012; (2) the process provided by § 254 is entirely consistent with the
U.S. Constitution; (3) malapportionment alone does not create an actionable injury where
the U.S. Supreme Court has expressly stated that a decennial redistricting plan clearly
meets the minimal constitutional requirements; and, thus, (4) Plaintiffs lack standing,
meaning the Court lacks jurisdiction. There is no way to predict, with any degree of
certainty, whether the legislature or, if necessary, the five-member apportionment
commission will complete the task of redistricting in 2012, and, to be sure, no way to
if/they will not. The lawsuit is premature. Allegations of possible future injury do not
satisfy the requirements of Art. III. A threatened injury must be certainly impending to
constitute injury in fact. Whitmore, 495 U.S. at 158 (citing Babbit v. Farm Workers, 442
U.S. 289, 298 (1970) (internal citations omitted)).
B. If the Court Assumes Jurisdiction, the Most Appropriate & Least
Intrusive Remedy it Could Fashion Would be to Truncate the
Timetable Found in § 254 & Permit the Remainder of the
Apportionment Process Contained in § 254 to Occur
As argued above, the assumption of jurisdiction in this case is effectively a
finding that the timing mechanism for redistricting in § 254 is unenforceable. There is no
basis for such a finding. However, should the Court assume jurisdiction, this does not
mean that the remainder of § 254 is also unenforceable. As a matter of prudence arising
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out of basic tenets of federalism and the doctrine of separation of powers, should the
Court assume jurisdiction, it should truncate the timetable contained in § 254 and permit
the apportionment process contained therein to occur. Specifically, § 254 plainly directs
what must be done in the event the Legislature adjourns without apportioning itself:
Should the legislature adjourn, without apportioning itself as requiredhereby, the governor by proclamation shall reconvene the legislature
within thirty (30) days in special apportionment session which shall notexceed thirty (30) consecutive days, during which no other business shall
be transacted, and it shall be the mandatory duty of the legislature to adopta joint resolution of apportionment. Should a special session not adopt a
joint resolution of apportion as required hereby, a five-membercommission consisting of the chief justice of the supreme court as
chairman, the attorney general, the secretary of state, the speaker of thehouse of representatives and the president pro tempore of the senate shall
immediately convene and without one hundred eighty (180) days of theadjournment of such special apportionment session apportion the
legislature, which apportionment shall be final upon filing with the officeof the secretary of state. Each apportionment shall be effective for the
next regularly scheduled elections of members of the legislature.
MISS. CONST. Art. 13, § 254. Should the Court assume jurisdiction, it should order
Governor Barbour to call a special apportionment session. Should that apportionment
session fail, the apportionment commission referenced in § 254 should then convene.
The U.S. Supreme Court has repeatedly held that redistricting and reapportioning
legislative bodies is a legislative task which the federal courts should make every effort
not to preempt. Wise v. Lipscomb, 437 U.S. 535, 539-40 (1978) (citing Connor v. Finch,
431 U.S. 407, 414-15 (1977); Chapman v. Meier , 420 U.S. 1, 27 (1975); Gaffney v.
Cummings, 412 U.S. 735, 749 (1973); Burns v. Richardson, 384 U.S. 73, 84-85 (1966)).
When a federal court declares an existing apportionment scheme unconstitutional, it is
therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the
legislature to meet constitutional requirements by adopting a substitute measure, rather
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than for the federal court to devise and order into effect its own plan. Wise, 437 U.S. at
540; see also Watkins, 771 F. Supp. at 793 (citing McDaniel v. Sanchez , 452 U.S. 130,
138 (1981), for proposition that reapportionment is primarily the duty and responsibility
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 judicial task, it
would make sense to permit the Legislature to complete the task of reapportionment
consistent with the alternative measures contained in § 254 (special session/convening of
five-member panel).
Those parties that have urged the Court simply to impose the 2011 House and
Senate plans, as well as those parties that are urging the Court to draw its own lines,
may well retort that the Legislature had an opportunity to complete redistricting in 2011
and failed. This response ignores a couple basic realities. First, in the 2011 session, the
legislature was operating under the accurate belief that according to § 254 it had until
2012 to complete redistricting. Second, in accepting the 2012 deadline for the
completion of redistricting and as a result of this lawsuit, no special apportionment
session was called. In the absence of a special apportionment session, there could be no
failure to complete redistricting, and in the absence of legislative failure in a special
apportionment session during the second year after the decennial census, there could be
no convening of the five-member commission. In short, the stimuli to trigger the
alternative mechanisms spelled out in § 254 by which to accomplish redistricting did not
occur or were preempted.
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C. Should the Court Assume Jurisdiction, It Would be Constitutionally
Permissible to Allow for the 2011 Elections to Occur Under the
Existing Lines Drawn and Approved in 2002
While Watkins is inapposite on the question of the Court s jurisdiction in this
matter4, it is instructive should the Court hold that the timing mechanism in § 254 is
unenforceable and assume jurisdiction. In Watkins, faced with insufficient time in which
to formulate a new redistricting plan before the 1991 elections, the Court ordered that
elections be held under the plan adopted in 1982 based on the 1980 decennial census.
Watkins, 771 F. Supp. 789. Watkins is not unique in this chosen remedy. In Fairley,
discussed supra, the court determined that special elections were not constitutionally
required after a 1991 county supervisor election was held based upon lines approved
following the 1980 decennial census. A nearly identical decision was reached in the case
of Bryant v. Lawrence County. Bryant v. Lawrence County, 814 F. Supp. 1346, 1354
(S.D. Miss. 1993) ( This Court is of the opinion that when a political body is operating
under a constitutional plan (one pre-cleared by the Justice Department and not challenged
in Court, or either agreed to by the parties to litigation and then pre-cleared by the Justice
Department, as is the situation in this case) that such body must have a reasonable time
after each decennial census in order to develop another plan and have it pre-cleared by
the Justice Department ).
Sister circuits have also reached the conclusion that it is permissible to hold
elections based on a previous decennial census while redistricting based on the most
recent decennial census is being completed. See French v. Boner , 786 F. Supp. 1328
(M.D. Tenn. 1992), aff ’ d 963 F.2d 890, 891-92 (recognizing that there was no
constitutional duty to conduct special elections every time government officials are
4 See supra, footnote 3.
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elected under malapportioned plan where such is caused by population shift occurring
over ten year period and governing body does not have time to reapportion after new
census data is available and before next election occurs); Ramos, discussed supra, 781 F.
Supp. at 1357, aff ’ d , 976 F.2d at 340 (dismissing lawsuit requesting special elections
following 1991 election using redistricting plan based on 1980 decennial census). In fact,
both French and Ramos recognized that with four year terms of office, this precise set of
circumstance would occur every twenty years. In French, the court noted:
In any system of representative government, it is inevitable that someelections for four-year or longer terms will occur on the cusp of the
decennial census. The terms inevitably will last well into the next decade;and depending on shifts in population in the preceding decade, the
representation may be unequal in the sense that the districts no longermeet a one-person, one-vote test under the new census
We do not believe that considerations of mathematical equality in
representation or the presumption in favor of redistricting every ten yearsoutweigh considerations concerning the validity of four-year terms, the
settled expectations of voters and elected officials, the costs of theelections, and the need for stability and continuity in office.
French, 963 F.2d at 891-92. The Ramos Court explained it this way:
The four-year terms that Chicago alderman serve merely indicate that
every fifth election (i.e. when the election years falls on the same year thatthe new census data becomes available) likely will result in a four-year
delay in using the new census data. But this simple consequence of twodifferent schedules (i.e. census every ten years, elections every four) does
not diminish the voting power of any protected minority; there is merely afour-year lag that occurs every other decade between redistricting and
elections.
Ramos, 976 F.2d at 341. In other words, not only have the Sixth and Seventh Circuits
said that it is permissible to use a redistricting plan based off of a prior decennial census
while a new plan is being drawn for back-to-back elections, but moreso, that it is
permissible to use the older redistricting plan and wait four years until the next regular
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election before using the new plan. While this may not be a position this Court is willing
to take, it highlights the fact that using the 2002 plan as an interim plan in 2011 is not, at
all, an extreme position.
Allowing the 2002 plan to be used for the 2011 elections is consistent with
established precedent and could be used an alternative to, or in conjunction with, ordering
the completion of the process laid out in § 254 (as advocated in Sec. III, B supra). By
using the 2002 plan for the 2011 elections, both the Legislature and the Court would have
additional time to engage the public and conduct necessary research and analysis to
ensure that the redistricting plan formulated based upon the 2010 decennial census
complied with the one man, one vote standard.
D. Imposition of the “House” & “Senate” Plans Would Have Lasting
Negative Impact on the Process of Redistricting
Certain parties to this litigation have urged this Court to impose the House and
Senate redistricting plans that passed their own respective chambers in the 2011
session, but failed to garner the unconditional support of the opposite chamber. On the
surface, this may seem like a practical and expedient suggestion. However, the reality is
that the imposition of these plans would encroach upon the Mississippi Constitution,
would result in the subversion of the legislative process and would encourage future
discord between the chambers and future litigation before this Court.
To illustrate this concern it helps to look at the legislative wrangling which took
place over redistricting in 2011. On March 1, 2011, Representative Tommy Reynolds
introduced J.R. 1, entitled A Joint Resolution to Reapportion the House of
Representatives of the State of Mississippi in Accordance with Section 254, Mississippi
Constitution of 1890. On March 4, 2011, the House passed the resolution. Upon arrival
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representatives ); see generally MISS. CONST. Art. 4, § 59 (requiring passage of both
chambers for enactment of legislation).
As discussed above, should the Court assume jurisdiction, the message being sent
to the Legislature and the people of Mississippi is that the deadline for redistricting
contained in § 254 is a fiction. Should the Court assume jurisdiction and impose the
House and Senate plans that did not obtain required approval from the opposite
chamber, the message being sent is that not only is the timetable in § 254 a mirage, but
the bicameral legislative process required therein is, as well. It is positive reinforcement
to those in the Legislature who might thwart the requirements of the Mississippi
Constitution, pick up their ball and head to court. It will discourage future cooperation
between the chambers, may have the effect of precluding the alternative means for
redistricting contained in § 254 from ever occurring (special session and five-member
commission) and may well lead to long term reliance on judicial intervention in place of
legislative compromise on what is, undoubtedly, a legislative task. It is for these reasons
that the MSTP feels that the adoption of the Court s inclination, even in the interim,
could have a lasting, negative impact on redistricting in Mississippi.
IV. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, the Mississippi Tea Party
respectfully urges the Court to hold that the timing mechanism contained in § 254 is
enforceable, that Plaintiffs lack standing and to dismiss this case for lack of jurisdiction.
Should the Court reject this argument, the MSTP respectfully requests that the Court
truncate the timetable contained in § 254 and order Governor Barbour to set in motion the
remaining process contained therein for redistricting (calling a special apportionment
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session). Additionally, as an alternative to, or in conjunction with, permitting remainder
of § 254 to be set into effect, the Court would be well within the boundaries of
established precedent holding the 2011 elections under existing and approved lines from
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)
russ@russlatino.com
Richard E. Wilbourn III (MS Bar # 8537)Richard Wilbourn & Associates, PLLC
P.O. Box 1278Madison, MS 39130-1278
(601)-853-8500(601)-607-3737
rwilbournIII@yahoo.com
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CERTIFICATE OF SERVICE
I, Russell Latino III, on this, the 5th
day of May, do hereby certify that I have
caused a true and correct copy of the foregoing amicus curiae brief to be served on the
below interested parties via the ECF system:
Carroll Edward Rhodes, Esq.Law Offices of Carroll Rhodes
P.O. Box 588Hazelhurst, MS 39083
crhode@bellsouth.net
John F. Hawkins, Esq.Hawkins, Stracener & Gibson, PLLC
P.O. Box 24627Jackson, MS 39225-4627
john@hsglawfirm.net
Stephen Lee Thomas, Esq.Jack L. Wilson, Esq.
Bradley Arant Boult Cummings, LLPP.O. Box 1789
Jackson, MS 39215-1789sthomas@babc.com
jwilson@babc.com
Justin L. Matheny, Esq.Harold E. Pizzetta, III, Esq.
Mississippi Attorney General s OfficeP.O. Box 220
Jackson, MS 39205-0220 jmath@ago.state.ms.us
hpizz@ago.state.ms.us
Robert L. Gibbs, Esq.Matthew W. Allen, Esq.
Brunini, Grantham, Grower & HewesP.O. Drawer 119
Jackson, MS 39205-0119rgibbs@brunini.com
mwallen@brunini.com
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Michael B. Wallace, Esq.Charles S. Seale, Esq.
Wise, Carter, Child & Caraway401 East Capitol Street, Suite 600
P.O. Box 651
Jackson, MS 39201mbw@wisecarter.com css@wisecarter.com
Samuel L. Begley, Esq.
Begley Law FirmP.O. Box 287
Jackson, MS 39205sbegley1@bellsouth.net
Crystal Wise Martin, Esq.
Hinds County Board of SupervisorsP.O. Box 686
Jackson, MS 39205-0686cmartin@co.hinds.ms.us
Robert B. McDuff, Esq.
767 North Congress St.Jackson, MS 39202
rbm@mcdufflaw.com
R. Andrew Taggart, Jr., Esq.Clay B. Baldwin, Esq.
Taggart, Rimes & Usry, PLLCP.O. Box 3025
Madison, MS 39130andy@tru-law.com
clay@tru-law.com
Cory T. Wilson, Esq.Willoughby Law Group, PLLC
602 Steed Rd., Suite 110Ridgeland, MS 39157
cory@wlglegal.com
This the 5th
day of May, 2011.
/s/ Russell Latino IIIRussell Latino III
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