Hosemann's Rebuttal to Responses to Hosemann's Motion to Dismiss (NAACP v Barbour)

8/7/2019 Hosemann's Rebuttal to Responses to Hosemann's Motion to Dismiss (NAACP v Barbour)

1/9

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONMISSISSIPPI STATE CONFERENCE OF THENATIONAL ASSOCIATION FOR ADVANCEMENTOF COLORED PEOPLE, THOMAS PLUNKETT,ROD WOULLARI), and HOLLIS WATKINS' on behalfof themselves and all others similarly situated PLAINTIFFSVS. CIVL ACTION NO. 3:11-cv-00159-CWR-FKBHALEY BARBOUR, in his official capacity asGovernor of the State of Mississippi, JIM HOOD,in his official capacity as Attorney General of theState of Mississippi, and DELBERT HOSEMANN,in his official capacity as Secretary of State of theState of Mississippi, as members of the State Boardof Election Commissioners; THE MISSISSIPPIREPUBLICAN PARTY EXECUTIVE COMMITTEE;THE MISSISSIPPI DEMOCRATIC PARTY EXECUTIVECOMMITTEE; and CONNIE COCHRAN, in her officialcapacity as Chairman of the Hinds County, MississippiBoard of Election Commissioners, on behalf of herselfand all others similarly situated DEFENDANTS

REBUTTAL TO RESPONSES OF MISSISSPPI STATE CONFERENCEOF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLOREDPEOPLE, MISSISSIPPI HOUSE OF REPRESENTATIVES APPORTIONMENT ANDELECTIONS COMMITTEE. AND MISSISSIPPI DEMOCRATIC EXECUTIVECOMMITTEE, IN OPPOSITION TOSECRETARY OF STATE'S MOTION TO DISMISSThe Motion to Dismiss of the Secretary of State of the State of Mississippi, Delbert

Hosemann ("the Secretary'), should be granted because this matter is not ripe for adjudication.' The

I ln at attempt at ease of reference and to avoid reciting information that wouldundoubtably occur were the Secretary to file separate rebuttals to the three parties that haveopposed the Motion to Dismiss, the Secretary files this collective rebuttal to the responses ofMississippi State Conference for the National Association for the Advancement of ColoredPeople ("NAACP"), the Mississippi House of Representatives Apportionment and Elections":,::"ttn."

("Apportionment and Elections Committee" or "Committee"), and the Mississippi

Case 3:11-cv-00159-TSL -MTP Document 59 Filed 04/13/11 Page 1 of 9


2/9

matter is not ripe because the Mississippi Legislature ("Legislature") has not yet adopted aredistricting plan. The Legislature must be afforded a reasonable amount of time within which toadopt a new redistricting plan based upon Census data released on February 3'd of this year.2 Article13, $ 254 of the Mississippi Constitution explicitly grants the Legislature until 2012 to adopt a newredistricting plan based upon this new Census data. Thus the Mississippi Constitution establisheswhat is a reasonable amount of time to redistrict after receiving Census data. This court may notusurp this constitutional provision without declaring it unconstitutional. Because $ 254 isconstitutional and the Legislature has time to redistrict, holding elections this fall under thelegislative districts drafted and implemented in 2002 wlll not violate the one-man, one-voteprinciple. Thus, the NAACP's claims are not ripe for adjudication. Accordingly, this matter shouldbe dismissed.

ARGUMENT1. Unlike the Legislature in Zalfttns and other Authorities Cited by the Parties. theLegislature Has Not Yet Adopted a Plan

The governmental bodies responsible for redistricting in LVatkins and other authorities citedby the parties in response to the Motion to Dismiss had done just that - i.e., they had enacted a newredistricting plan. See, e.g., Watkins v. Mabus,77TF. Supp. 189,792 (S.D. Miss. 1991) (stating"the Legislature, as noted above, reapportioned itself in 1991, the year after the census"). Because

Democratic Party Executive Committee ("MDPEC"). Defendant Connie Cochran also filed aresponse to the motion, but it does not appear she either opposes or supports the motion as shesimply states that "[t]here exists sufficient facts and law in the record to enable the Court...torender a decision.. .." See Cochran Response at p. I (docket entry no. 54).2 Press Release, United States Census Bureau, available athttp:/ l20l0.census. gov/news/releases/operations/cb I I -cn 1 4.html.

0l 171033



3/9

the govemmental bodies responsible for redistricting in those cases had enacted a new redistrictingplan, the matters were unquestionably ripe for judicial consideration. But that is not the case herewhere no plan has been passed at all.

The Apportionment and Elections Committee and MDPEC argue that because the 1991 planat issue in Watkins drew the objection of the United States Attomey General, it was a legallyunenforceable plan. Therefore, they argue, the present situation is no different than Wqtkins becausein both cases the court had no legally enforceable plan before it. That argument, however,completely disregards the fact that in Watkins the Legislature had in fact passed a plan - which iswhat gave the Court jurisdiction. Id. at 792.That the 1991 plan later drew the objection of theAttorney General is immaterial to the jurisdictional question of ripeness.

The 1991 plan was only materialrn Watkins because the Court could not consider that planas a viable plan to enter for redistricting for remedial relief. It was not material to the initial questionofjurisdiction, as the Court had jurisdiction the second the 1991 plan passed.3

The NAACP cites Carstens v. Lamm,543 F. Supp. 68 (D. Colo. 1982), for the argument that"the legislature has reached an impasse which the parties are not capable ofresolving. Consequently,the case is ripe for adjudication." See NAACP Response, p. 6, tl2 (docket entry no. 48). But inCarstens, "[t]he Legislature ha[d] passed three different redistricting proposals, all of which were

3 The plaintiffs in Watkins, in fact, filed the suit after submission of the 1991 plan butbefore the Attorney General objected. Id. at792. The Committee's and MDPEC's responsesseem to suggest that ripeness in lilatkins was "caused" by a Section 5 objection. SeeCommittee's Responsa,p.Z,lines 4-6 (docket entry no. 51); MDPEC's Response, p. 8, lines l-2(docket entry no. 54). The flip-side of that argument is that if the Attomey General had notobjected to the plan, then the Court would not have had jurisdiction to hear the case. That is notthe case as the plaintiffs surely could have maintained an action based upon a plan that did notreceive an objection, even if that suit might ultimately have been meritless.



4/9

subsequently vetoed by [the Governor]." Id. at 76. FurtherTnore, the parties were on record at aNovember 6'h (here it is April 13th) hearing at which the parties responsible for redistricting agreedthat it 'would do neither side any...good to negotiate...further.' Id.

That is not the case here where no plan has been passed at all. Time remains for a plan tobe created under Article 13, $ 254 of theMississippi Constitution. Therefore, the matter is not ripe.a2. The Legislature must be Afforded a Reasonable Amount of Time within which foDevelop a Redistricting Plan. and the Mississippi Constitution Permits it Until 2012to do so

Courts addressine the time-frame within which local sovemments must redistrict themselveshave held that holding elections under the lines drawn after the preceding Census does not violatethe one-man, one-vote principle. See, e.g., Bryant v. Lawrence County, Mississippi, Sl4 F. Supp.1346,1354 (S.D. Miss. 1993). The court in Bryant addressed the precise issue of "how long shoulda legislative body have to redistrict after decennial census information becomes available." Id. at1353 (noting that it was not aware of a United States Supreme Court or Fifth Circuit Court ofAppeals decision that addressed this specific issue, but that the Sixth and Seventh Circuits hadrecently addressed the issue). The plaintiffs in Bryant werc challenging the use of a supervisordistrict plan formulated in 1984 in the 1991 supervisor elections, after the 1990 census data becameavailable. In holding that it was constitutional to use the 1984 plan in the 1991 elections and that

4 The NAACP cites a number of cases for the proposition that the court need only affordthe legislature the opportunity to act before asserting jurisdiction. See Response at pp. 6-7. TheSecretary simply notes he disagrees with this interpretation of the case law, For example, Wise v.Lipscomb,437 U.S. 535 (U.S. T978) appears to stand for the proposition that once a court hasdeclared an existing apportionment scheme unconstitutional, then "it is, therefore, appropriate,whenever practicable, to afford a reasonable opportunity for the legislature to meetconstitutional requirements by adopting a substitute measure rather than for the federal court todevise and order into ffict its own plan)' Id. at 540 (emphasis added).



5/9

a governing body must have a reasonable amount of time after the Census data becomes availablein which to redistrict. the Court stated the followine:

This Court is of the opinion that when a political body is operating under aconstitutional plan (one pre-cleared by the Justice Department and not challenged inCourt, or either agreed to by the parties to litigation and then pre-cleared by theJustice Department as is the situation in this case) that such body must have areasonable time after each decennial census in orderto develop anotherplan and haveit pre-cleared by the Justice Department. Elections held under such a previouslypre-cleared plan, in the year that new census data becomes available, but beforeredistricting can take place, should not be set aside and new elections ordered.

Id. at L354.Article 13, g 254 of the Mississippi Constitution explicitlypermits the Legislature until 2012

to draw new legislative districts. To date, it has not done so. Bryant and the legal authorities onwhich it relies suggest that a reasonable amount of time has not passed from which it can be statedthat the Legislature has to have drawn a redistricting map based upon Census data only recentlyreleased. Id. at 1353-534. Here, Census data was released on February 3,2011 and the instantlawsuit was filed on March 17 ,2011, prior to the end of the Legislative session. There were a mere42 days after Census data was released when Plaintiffs came to this court asking the court to takeover the constitutional duty of the Mississippi Legislature. There was hardly any time for theLegislature to complete its task before the Plaintiffs concluded they would not.

The one-man, one-vote principle is no less applicable in local elections than it is in stateelections, and therefore the rational of Bryant should apply here as well.5 See also Watkins, at 802(stating "a state may conduct elections for a reasonable amount of time with districts whose

s This position of the Secretary is consistent with that of the Attorney General of the Stateof Mississippi in the recent redistricting suits filed concerning local elections. .9ee Exhibit "A" atpp. 10-1 1. The Attorney General has not stated a position in this matter.



6/9

deviations are higher than constitutionally optimal. For example, the House Committee noted thatthe legislative districts in Mississippi have been malapportioned for a number ofyears since the 1980census."). If the one-man, one-vote principle is not violated by holding elections under localredistricting plans based upon Census data from the preceding Census, then the same principleshould not somehow be violated when elections are held for the state legislature in the same year asthe local elections under lines drawn from the same preceding Census. See Exhibit "A" at 10(arguing "Federal law does not require it to implement 2010 Census data, in the middle of the 201 1election cycle, to avoid a 'one person, one vote' violation").3. Because the Legislature has not Passed a Redistricting Plan and Because HoldinsElections Under the 2002 Lines Will Not Violate the One-Man. One-Vote Principle.the Matter is not Ripe

As stated earlier, the Mississippi Legislature has not yet adopted a redistricting plan basedon Census datedreleased onFebruary3'd ofthis year. This canbe expectedbecause Census datawasreleased on February 3,2011 and the instant lawsuit was filed on March 17 ,2011, a mere 42 daysafter the Census data was release. When the People of the State of Mississippi adopted Art. 1 3, $254they wanted to provide a sufficient time period for redistricting. They concluded that the Legislatureneeded until "the second year following the 1980 decennial census and every ten (10) thereafter" toadopt a redistricting plan. This is the essence of Art. 1 3, $ 254. This section is mandatory and states"The legislature shall..."(emphasis added). While the Legislature made some attempts atredistricting this year (which they are allowed to do), their constitutional duty to do so is actuallynext year.

Plaintiffs are incorrect to refer to Art. 13, 5 254 as "administrative remedies," Indeed, thisis a constitutional requirement. Not only does it direct the Legislature to redistrict in 20l2,but it0l | 7t033



7/9

also set up steps that must be taken if the Legislature comes to an impasse. This court must allow$ 254 to be carried out before it can step in. If the court steps in now, it will effectively render $ 254unconstitutional. There is no doubt that $ 254 is constitutional and must be complied with.

CONCLUSIONThe Supreme Court of the United States stated in Wise that "[t]he Court has repeatedly held

that redistricting and reapportioning legislative bodies is a legislative task which the federal courtsshould make every effort not to pre-empt." Id. at 539.

This Mississippi Legislature is the body responsible for drawing Mississippi's legislativedistricts. It has until the conclusion of the 2012Lesislative session to do so. Unless and until theLegislature has proven that it cannot or will "", ,; out its Constitutional duty, the matter is notripe for adjudication and therefore this Court lacks subject matter jurisdiction. Accordingly, inmaking "every effort not to pre-empt" the Legislature's legisl ativetask,Id., the Court should dismissthis matter.

Respectfully submitted, this the 13'h day of April, 20TT.DELBERT HOSEMANN, in his official capacityas Secretary of State of the State of Mississippi,as member of the State Board of ElectionCommissioners

By: /s/ Robert L. Gibbs



8/9

OF COUNSEL:Robert L. Gibbs, MSB #4816Matthew W. Allen, MSB #101605BRLrNlNt, Gn-q.NrHaM, GnowER & Hewes, PLLC190 East Capitol Street, Suite 100 (39201)Post Office Drawer 119Jackson, Mississippi 39205Telephone: (601) 948-3101Facsimile: (601) 960-6902Email: [email protected]: [email protected]



9/9

CERTIFICATE OF SERVICEI, Robert L. Gibbs, hereby certify that on April 13, 2011,I electronically filed the foregoing

with the Clerk of the Court using the ECF system which sent notification of such liling to thefollowing:

Canoll Rhodes, Esq.Email: [email protected] B. Wallace, Esq.Charles Stevens Seale, Esq.Email: [email protected] : [email protected] Wise Martin, Esq.cmartin@co. hinds. ms. usRobert B. McDuff, Esq.Email : rbm@mcdufflaw. comSamuel L. Begley, Esq.Email : sbegleyl @bellsouth.net

SO CERTIFIED, this the 13th day of Apr|l,20Tl.

Harold Pizzetta,Esq.Justin L. Matheny, Esq.Email : hpizz@ago. state. ms. usEmail : jmath@ago. state. ms. usJohn F. Hawkins, [email protected] L. Thomas, Esq.Jack L. Wilson, Esq.Email: [email protected]: [email protected] B. Baldwin, Esq.R. Andrew Taggart, Jr.Email : [email protected]: [email protected]

/s/ Robert L. Gibbs

0t r 71033


Documents

Hosemann's Rebuttal to Responses to Hosemann's Motion to Dismiss (NAACP v Barbour)