Redistricting Amicus Brief

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)

[email protected]

Richard S. Wilbourn (MS Bar # 8537)

Post Office Box 1278

Madison, MS 39130-1278

601-853-8500 (T)

601-607-3737 (F)

[email protected]



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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



20

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)

[email protected]

Richard E. Wilbourn III (MS Bar # 8537)Richard Wilbourn & Associates, PLLC

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

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

[email protected]



21

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

[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

Jackson, MS 39205-0220 [email protected]

[email protected]

Robert L. Gibbs, Esq.Matthew W. Allen, Esq.

Brunini, Grantham, Grower & HewesP.O. Drawer 119


[email protected]



22

Michael B. Wallace, Esq.Charles S. Seale, Esq.

Wise, Carter, Child & Caraway401 East Capitol Street, Suite 600

P.O. Box 651

Jackson, MS [email protected] [email protected]

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]

This the 5th

day of May, 2011.

/s/ Russell Latino IIIRussell Latino III

Redistricting Amicus Brief

Documents

Transcript of Redistricting Amicus Brief