MS Tea Party Amicus Brief on Redistricting

8/6/2019 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

Case 3:11-cv-00159-TSL -EGJ -LG Document 99 Filed 05/05/11 Pa


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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

[email protected]

RichardE.WilbournIII(MSBar#853RichardWilbourn&Associates,PLLC

P.O.Box1278

Madison,MS39130-1278

O)601-853-8500F)601-607-3737

[email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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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

[email protected]

JohnF.Hawkins,Esq.

Hawkins,Stracener&Gibson,PLLC

P.O.Box24627

Jackson,MS39225-4627

[email protected]

StephenLeeThomas,Esq.

JackL.Wilson,Esq.

BradleyArantBoultCummings,LLP

P.O.Box1789


[email protected]

[email protected]

JustinL.Matheny,Esq.

HaroldE.Pizzetta,III,Esq.

MississippiAttorneyGeneral sOffice

P.O.Box220


[email protected] [email protected]

RobertL.Gibbs,Esq.

MatthewW.Allen,Esq.

Brunini,Grantham,Grower&Hewes

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Wise,Carter,Child&Caraway

401EastCapitolStreet,Suite600

P.O.Box651Jackson,MS39201

[email protected]

[email protected]

SamuelL.Begley,Esq.

BegleyLawFirm

P.O.Box287

Jackson,[email protected]

CrystalWiseMartin,Esq.

HindsCountyBoardofSupervisors

P.O.Box686


[email protected]

RobertB.McDuff,Esq.

767NorthCongressSt.

Jackson,MS39202

[email protected]

R.AndrewTaggart,Jr.,Esq.

ClayB.Baldwin,Esq.

Taggart,Rimes&Usry,PLLC

P.O.Box3025

Madison,MS39130

[email protected]

[email protected]

CoryT.Wilson,Esq.

WilloughbyLawGroup,PLLC602SteedRd.,Suite110

Ridgeland,MS39157

[email protected]

Thisthe5thdayofMay,2011.

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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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:

Case 3:11-cv-00159-TSL -EGJ -LG Document 99-1 Filed 05/05/11 Pa


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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


C 3 11 00159 TSL EGJ LG D t 99 1 Fil d 05/05/11 P


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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


Case 3 11 c 00159 TSL EGJ LG Doc ment 99 1 Filed 05/05/11 Pa


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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.


Case 3:11 cv 00159 TSL EGJ LG Document 99 1 Filed 05/05/11 Pa


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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)

[email protected]

Richard E. Wilbourn III (MS Bar # 853Richard Wilbourn & Associates, PLLC

P.O. Box 1278Madison, MS 39130-1278

(601)-853-8500(601)-607-3737

[email protected]



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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

[email protected]

John F. Hawkins, Esq.Hawkins, Stracener & Gibson, PLLC

P.O. Box 24627Jackson, MS 39225-4627

[email protected]

Stephen Lee Thomas, Esq.Jack L. Wilson, Esq.

Bradley Arant Boult Cummings, LLPP.O. Box 1789

Jackson, MS [email protected]

[email protected]

Justin L. Matheny, Esq.Harold E. Pizzetta, III, Esq.

Mississippi Attorney General s OfficeP.O. Box 220


[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


Crystal Wise Martin, Esq.

Hinds County Board of SupervisorsP.O. Box 686


Robert B. McDuff, Esq.

767 North Congress St.Jackson, MS 39202

[email protected]

R. Andrew Taggart, Jr., Esq.Clay B. Baldwin, Esq.

Taggart, Rimes & Usry, PLLCP.O. Box 3025

Madison, MS [email protected]

[email protected]

Cory T. Wilson, Esq.Willoughby Law Group, PLLC

602 Steed Rd., Suite 110Ridgeland, MS 39157

[email protected]

Case 3:11-cv-00159-TSL -EGJ -LG Document 99-2 Filed 05/05/11 Page 1 of 2


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Case 3:11-cv-00159-TSL -EGJ -LG Document 99-2 Filed 05/05/11 Page 2 of 2


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Documents

MS Tea Party Amicus Brief on Redistricting