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8/7/2019 Burton's Proposed Answer and Counterclaim
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MISSISSIPPI STATE CONFERENCE OF THE PLAINTIFFS
NAACP, et al.
VS. CIVIL ACTION NO. 3:11-cv-159-TSL-MTP
HALEY BARBOUR, et al. DEFENDANTS
AND
SENATOR TERRY C. BURTON DEFENDANT/ INTERVENOR
ANSWER, DEFENSES AND COUNTERCLAIMOF SENATOR TERRY C. BURTON
State Senator Terry C. Burton answers the Complaint filed in this matter as
follows:
JURISDICTION
1. Defendant admits that this Court has jurisdiction of this action. The
remaining allegations of paragraph 1 state legal conclusions to which no response is
required; to the extent a response is necessary, the remaining allegations are denied.
VENUE
2. Defendant admits that venue is proper in this Court.
PARTIES
3. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 3.
4. The allegations of paragraph 4 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
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Exhibit "D"
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5. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 5.
6. The allegations of paragraph 6 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
7. The allegations of paragraph 7 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
13. Admitted.
14. Admitted.
15. The allegations of paragraph 15 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
16. The allegations of paragraph 16 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
FACTS
17. Admitted.
18. Admitted.
19. Admitted.
20. Admitted.
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21. The allegations of paragraph 21 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
22. Admitted.
23. Admitted.
24. Admitted.
25. Admitted.
26. Admitted.
27. Admitted.
28. Admitted.
29. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate [Exhibit A-1 of the Complaint, Docket No. 1-1], the paragraph
is Admitted.
30. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
31. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
32. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
33. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
34. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
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35. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
36. To the extent the numbers are consistent with the Benchmark Plan for the
Mississippi State Senate, the paragraph is Admitted.
37. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 37.
38. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 38.
39. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 39.
40. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 40.
41. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 41.
42. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 42.
43. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 43.
44. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 44.
45. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 45.
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46. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 46.
47. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 47.
48. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 48.
49. The allegations of paragraph 49 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
50. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 50.
51. Defendant lacks knowledge and information sufficient to admit or deny
the allegations of paragraph 51.
52. The allegations of paragraph 52 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
53. The allegations of paragraph 53 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
54. The allegations of paragraph 54 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
55. The allegations of paragraph 55 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
56. The allegations of paragraph 56 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
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57. The allegations of paragraph 57 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
58. The allegations of paragraph 58 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
59. Denied.
60. To the extent the paragraph refers to the Senate redistricting plan entitled
Joint Resolution 201, as passed by both chambers of the Mississippi Legislature in the
2011 regular session, the paragraph is admitted.
61. To the extent that all changes to existing district plans for the Mississippi
Legislature are subject to the requirements of Section 5 of the Voting Rights Act of 1965,
the paragraph is admitted.
62. The allegations of paragraph 62 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
63. The allegations of paragraph 63 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
64. The allegations of paragraph 64 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
65. Denied.
66. Denied.
67. The allegations of paragraph 67 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
68. Denied.
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CAUSES OF ACTION
COUNT I 14thAMENDMENT EQUAL PROTECTION (ONE PERSON ONE
VOTE)
69. The allegations of paragraph 69 state legal conclusions to which no
response is required; to the extent a response may be required, the allegations are denied.
COUNT II 14TH AMENDMENT EQUAL PROTECTION (RACE)
70. Denied.
COUNT III SECTION 5 OF THE VOTING RIGHTS ACT
71. Denied.
COUNT IV SECTION 2 OF THE VOTING RIGHTS ACT
72. Denied.
COUNT V MISSISSIPPI CONSTITUTION (1890)
73. Denied.
CAUSATION AND INJURY
74. Denied.
EQUITABLE RELIEF
DECLARATORY JUDGMENT
75. Defendant denies the allegations of the first sentence of paragraph 75.
Defendant admits the allegations of the first part of the second sentence of paragraph 75
that this Court may, if necessary, issue a declaratory judgment that the existing districts
for the Mississippi Senate and Mississippi House of Representatives are
unconstitutionally malapportioned. Defendant denies the remaining allegations of
paragraph 75.
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INJUNCTIVE RELIEF
76. Defendant admits that a three-judge court should be convened pursuant to
28 U.S.C. 2284. Defendant denies the remaining allegations of paragraph 76.
OTHER EQUITABLE RELIEF
77. Defendant denies that plaintiffs are entitled to the relief requested in
paragraph 77.
Defendant denies the allegations of the final unnumbered request for relief except
that this Court may, if necessary, issue a declaratory judgment that the existing districts
for the Mississippi Senate and Mississippi House of Representatives are
unconstitutionally malapportioned.
COUNTERCLAIM
Senator Terry C. Burton hereby files this his Counterclaim for declaratory relief
against the Mississippi Conference of the National Association for the Advancement of
Colored People (NAACP), and alleges as follows:
1. Counterclaimant Terry C. Burton is a qualified elector of Newton County,Mississippi and a duly elected member of the Mississippi State Senate, having served
continuously in that body since 1992. Senator Burton currently serves as Chairman of
the Senate Elections Committee (the Senate Committee), and as Chairman of the
Standing Joint Legislative Committee on Reapportionment and Redistricting (the Joint
Committee). SeeAffidavit of Senator Terry C. Burton, attached as Exhibit A to Sen.
Burtons Motion to Intervene, and incorporated by reference.
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2. Counter-Defendant, the Mississippi State Conference of the NAACP is acivil rights organization which has members who are citizens and registered voters
throughout the State of Mississippi.
3. The NAACP filed its initial action against the members of the MississippiBoard of Election Commissioners (namely Governor Haley Barbour, Attorney General
Jim Hood, and Secretary of State Delbert Hosemann), the Mississippi Republican Party
Executive Committee, the Mississippi Democratic Party Executive Committee, and
others on March 17, 2011.
4.
The NAACP has requested this Court draw new districts for both the
Mississippi Senate and Mississippi House of Representatives to be used in future
elections.
5. Senator Burton moved to intervene as a party Defendant on April 12,2011, which motion was granted on April __, 2011.
6. This Court has jurisdiction over Sen. Burtons Counterclaim under 28U.S.C. 1331, 1343, 2202, and 2284; and the doctrine of pendent jurisdiction.
7. As the parties have responded to the NAACPs initial complaint, thisCourt has in personam jurisdiction over the parties, and venue is proper.
8. Sen. Burton seeks a declaratory judgment that is narrower than the instantaction and only concerns the district lines for the State Senate as approved by both the
Mississippi State Senate and the Mississippi State House of Representatives, and the
timely conduct of elections for the Mississippi Legislature in 2011. See Certified Copies
of both the Senate and House roll call votes and the associated approved Senate Plan
passed as Joint Resolution 201, including amendments, attached to Sen. Burtons Motion
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to Intervene as Exhibit B and Exhibit C respectively, and incorporated herein by
reference.
9. The Mississippi State Senate passed the Senate Plan on March 10, 2011 bya vote of 44 Yeas 7 Nays.
10. The Mississippi State House of Representatives passed the Senate Plan onMarch 15, 2011 by a vote of 68 Yeas 53 Nays.
11. No plan of redistricting for the State House of Representatives received amajority vote of both chambers of the Mississippi Legislature during the 2011 Regular
Session, so no joint resolution of redistricting of both chambers of the Legislature was
adopted, as required by 254 of the Mississippi Constitution of 1890.
12. Sen. Burton seeks judgment from this Court, declaring that the Senate
Plan, as passed by both chambers of the Mississippi Legislature under Joint Resolution
201, is the lawful plan and map for State Senate districts to be utilized for the 2011
Senate elections, and further declaring that the 2011 elections for the Mississippi
Legislature shall proceed under the timelines set out in Mississippi law for the
qualification of candidates, for party primaries, and for the general election.
13. The Mississippi State Senate acted during the 2011 Regular Session of the
Mississippi Legislature in accordance with its duty to reapportion itself under the
direction of both the United States Constitution and the Mississippi Constitution of 1890,
and in full compliance with the controlling federal and state statutes. The United States
Supreme Court has emphatically stated that such a lawful act by a states legislative body
is preferable to any plan that might be drawn by the courts. Therefore this Court should
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adopt the Senate district lines as drawn by the Mississippi State Senate and approved by
majority votes in both chambers of the Mississippi Legislature.
WHEREFORE, PREMISES CONSIDERED, Sen. Burton seeks declaratory
judgment from this Court that the 2011 elections for the Mississippi Legislature proceed
without interruption under Mississippi law, and that the Mississippi State Senate elections
take place utilizing the district lines in the map and plan approved by the majority of both
chambers of the Mississippi Legislature in the form of Joint Resolution 201 of the 2011
Regular Session of the Mississippi Legislature.
Respectfully submitted, this the ____ day of _________, 2011.
SENATOR TERRY C. BURTON
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