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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE PLAINTIFFS

NAACP, et al.

VS. CIVIL ACTION NO. 3:11-cv-159-TSL-EGJ-LG

HALEY BARBOUR, et al. DEFENDANTS

AND

SENATOR TERRY C. BURTON INTERVENOR

RESPONSE IN OPPOSITION TO MOTION

FOR APPOINTMENT OF EXPERT BY THE
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE

INTRODUCTION

State Senator Terry C. Burton submits this response in opposition to the motion

by the Mississippi Republican Party Executive Committee (“Republican Party”) to

appoint an expert to immediately begin drawing new legislative district lines and ignore

plans submitted by the parties.

ARGUMENT

I. The Court Should Defer to the Legislative Process in Redistricting Matters.

This Court has been asked by the Republican Party to ignore plans submitted by

the parties, to appoint an expert, and to immediately begin drawing reapportionment

maps for use in the 2011 legislative elections. That request flies in the face of well-

settled law that a court should defer to the legislative process to the greatest extent

possible when considering the remedial courses of action necessary to correct

unconstitutional apportionment maps.

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Courts have long held that the job of reapportionment is one for state legislatures,

and this Court should defer this task to the Mississippi Legislature if at all possible.

“From the beginning, we have recognized that „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.‟” White v. Weiser,

412 U.S. 783, 794-95 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964))

(emphasis added).

The Mississippi Legislature has not failed to “reapportion according to

constitutional requisites.” Id. In stark contrast, the work of the Mississippi Legislature in

the 2011 regular session showed both chambers fully respecting federal constitutional

and statutory law. The stalemate over the House Plan was not a product of

unconstitutional motives by purpose or effect, but simply disagreements arising out of the

inherent political and partisan nature of the reapportionment process. The United States

Supreme Court has recognized that the political nature of reapportionment proceedings is

the very reason why federal courts should defer the task to the legislatures of the states.

“Traditionally, the determination of electoral districts within a State has been a matter left

to the legislative branch of the state government. Apart from the doctrine of separation

of powers and the federal system prescribed by the Constitution, federal judges are ill

equipped generally to review legislative decisions respecting redistricting.” Davis v.

Bandemer, 478 U.S. 109, 184-85 (1986) (Powell, J., concurring).

In this case, there remains only the issue of whether the Legislature still has time

to reapportion itself in time for the 2011 elections. The legal precedent is clear that

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where there exists time for a legislature to reapportion itself, the federal courts should

defer performance of the task to that body of government. Chapman v. Meier, 420 U.S.

1, 27 (1975) (citations omitted) (“We say once again what has been said on many

occasions: reapportionment is primarily the duty and responsibility of the State through

its legislature or other body, rather than of a federal court.”).

II. Adequate Time Remains for the Legislature to Reapportion Itself.

In keeping with the guidance that courts should defer to the legislature whenever

possible in redistricting, this Court may allow the State of Mississippi an appropriate

period of time within which to correct the malapportionment of the current district lines

in both chambers of the Mississippi Legislature. See Abrams v. Johnson, 521 U.S. 74, 78

(1997) (court deferred to legislature to draw new plan, then intervened only after

legislature failed to act.). In view of Sen. Burton‟s sworn testimony by affidavit before

this Court that legislative leaders continue to work toward a legislative solution to the

current redistricting impasse, even a very short time period of deference by this Court

could result in the preferred result under the law – for the State, rather than this Court, to

craft Mississippi‟s legislative district lines. See Affidavit of Senator Terry C. Burton,

attached to Motion to Intervene [56] as Exhibit “A”.

Of course, there is no guarantee that the Legislature would be called into special

session by the Governor if time were allowed by this Court, § 121, Miss. Const. of 1890,

or that if called back, the Legislature would adopt a joint resolution of redistricting as

provided by the State‟s constitutional requirement for a legislative plan of

reapportionment to be adopted as law. §254, Miss. Const. of 1890.

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But even if not, this case is in no worse posture than is currently true, and

adequate time still would remain for this Court to impose an interim remedy for the 2011

elections to proceed according to the State‟s statutory timeline.

III. The Court Has Available a Legislatively Enacted Plan for the State Senate.

If a state legislature either fails to act according to Constitutional principles, or

there is insufficient time for a legislature to act, courts must then step in and fashion a

constitutional remedy that will allow pending elections to progress unabated. When a

court takes on this “unwelcome task,” it remains guided by the principle to defer to plans,

in whole or in part, crafted and submitted by the people. See League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 415 (2006) (quoting Wise v. Lipscomb, 437 U.S. 535,

540 (1978)).

Courts draw a distinction between reapportionment plans that are “legislatively

enacted” and those that are judicially crafted and imposed. The purpose of this

distinction is recognition by the courts that legislative actions are an expression of the

will of the people that should not only take precedence over the imposed will of a federal

court, but also receive greater latitude in areas such as population deviation. Connor v.

Finch, 431 U.S. 407, 407 (1977) (quoting Meier, supra at 26-27) (“A court is held to

stricter standards than a state legislature in devising a legislative reapportionment plan,

and . . . „must ordinarily achieve the goal of population equality with little more than de

minimis variation.‟”).

Should this Court determine that there is insufficient time to afford the

Mississippi Legislature any additional time to reapportion itself, or if the Court grants

additional time and the State does not take advantage of the opportunity to redraw its own

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lines, this Court has before it a plan for the Mississippi State Senate that has been

legislatively enacted for the purposes of imposing an interim remedy. The Senate Plan

submitted by Senator Burton, having been approved by majority votes of each chamber

of the Mississippi Legislature, and comporting with all constitutional and Voting Rights

Act requirements, is a “legislatively enacted plan” under the law of redistricting as

crafted by the Supreme Court. See Affidavit of Senator Terry C. Burton, attached to

Motion to Intervene [56] as Exhibit “A”; see also Certified Copies of both the Senate and

House roll call votes and the associated approved “Senate Plan” passed as Joint

Resolution 201, including amendments, attached to Motion to Intervene [56] as Exhibit

“B” and Exhibit “C” respectively.

The United States Supreme Court looked at the issue of whether a proposed

redistricting plan should be considered “legislatively enacted” in the case of Wise v.

Lipscomb, 437 U.S. 535 (1978). In Wise, the Court considered whether a

reapportionment plan presented by the Dallas City Council if adopted by the trial court

was legislatively enacted, or was judicially created. In the Court‟s plurality opinion,

Justice White wrote that the plan was in fact legislatively enacted even though the Dallas

City Council did not have the authority to reapportion itself. Justice Powell (joined by

the Chief Justice, Justice Blackmun, and Justice Rehnquist), writing in a concurring

opinion, went further to say that whether the council had the power to reapportion itself

was irrelevant in a determination of whether the plan was legislatively enacted. “The

essential point is that the Dallas City Council exercised a legislative judgment, reflecting

the policy choices of the elected representatives of the people, rather than the remedial

directive of a federal court.” Wise, 437 U.S. at 548. In short, a majority of the Court in

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Wise expressly found that a redistricting plan, even if not perfectly adopted according to

state law, was still a “legislative plan” if approved by a legislative body of the state.

The Court once again took up this issue in McDaniel v. Sanchez, 452 U.S. 130

(1981). “As Justice Powell pointed out in Wise v. Lipscomb, [citations omitted], the

essential characteristic of a legislative plan is the exercise of legislative judgment. The

fact that particular requirements of state law may not be satisfied before a plan is

proposed to a federal court does not alter this essential characteristic.” McDaniel, 452

U.S. at 152.

In the case now pending, the Senate Plan, passed by both chambers of the

Mississippi Legislature and presented to this Court by Senator Burton, is most certainly

an expression of the will of the people through the “exercise of legislative judgment.” Id.

Granted, the Senate Plan did not pass all the state law requirements to be considered law

in Mississippi, because it was not part of a joint resolution adopted by the Mississippi

Legislature as required by §254 of Mississippi‟s Constitution. Under the directives of

Wise and Sanchez, though, the Senate Plan is quite clearly a “legislatively enacted plan”

for purposes of this Court‟s consideration and use.

The Senate Plan was considered by the elected members of the Mississippi

Legislature, voted upon, and in its entirety passed by both the Senate and the House of

Representatives. The Senate Plan on its face meets the requirements of the United States

Constitution and the Voting Rights Act of 1965. Consequently, the Senate Plan as

presented to this Court is considered, for purposes of its utilization as a remedial interim

plan, a legislatively enacted plan. It is entitled to deference by this Court and should be

used in lieu of any plan that might be judicially created and imposed. Perry, 548 U.S. at

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416 (“[a]s the Constitution vests redistricting responsibilities foremost in the legislatures

of the States and in Congress, a lawful, legislatively enacted plan should be preferable to

one drawn by the courts”).

IV. Interim Remedies Imposed by the District Court Do Not Require Preclearance.

Though the use of a legislative plan by a court in an state covered by the Voting

Rights Act typically requires preclearance of that plan by the United States Attorney

General, McDaniel v. Sanchez, 452 U.S. 130, 153 (1981), this Court has broad discretion

when acting under its equitable powers to craft interim remedies for unconstitutionally

malapportioned legislative districts. In response to the concern that the preclearance

requirement for permanently imposed legislative maps will inevitably cause problems for

courts dealing with redistricting litigation, the Supreme Court provided a relief valve for

interim use. “The district courts…have ample power to fashion interim remedies to avoid

problems of this character.” Id. at 153, n.35 (1981) (emphasis added).

The Fifth Circuit makes use of that very relief valve in cases such as this. In

Campos v. City of Houston, the court held that a district court could adopt as an interim

measure even a plan to which the Attorney General (or the Department of Justice) had

objected, rather than precleared. 968 F.2d 446, 451 (5th Cir. 1992), cert. denied, 113

S.Ct. 971 (1993). Although the court found that the district court erred in that case, it

was for the separate reason that the district court used the objectionable plan when an

alternative plan had received the approval of the Attorney General and had, in fact, been

precleared. But the Fifth Circuit in Campos went so far as to say the district court could

even have used an unconstitutional plan for interim purposes. Id. at 451 (citing Upham v.

Seamon, 456 U.S. 37 (1982)). Under the authority of both Sanchez and Campos, it is

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well within the discretion of this Court to use the legislatively enacted Senate Plan as an

interim remedy for use in the 2011 election cycle. And that is just what the Court should

do on the facts before it.

CONCLUSION

Senator Terry Burton respectfully requests that this Court defer to the Mississippi

Legislature to reapportion itself pursuant to state and federal law by a date certain, failing

in which, that the Court show deference to the legislative process and order use of the

Senate Plan as presented to the Court as an interim remedy to be used for the 2011

primary and general elections for the Mississippi State Senate.

Respectfully submitted, this the 26th day of April, 2011.

SENATOR TERRY C. BURTON

BY: /s/ CLAY B. BALDWIN

R. ANDREW TAGGART, JR., MSB # 7422

CLAY B. BALDWIN, MSB # 103478
TAGGART, RIMES & USRY, PLLC
1022 Highland Colony Pkwy, Suite 101
Ridgeland, MS 39157
Telephone: (601) 898-8400
Facsimile: (601) 898-8420
Andy@tru-law.com
Clay@tru-law.com

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CERTIFICATE OF SERVICE

I, Clay B. Baldwin, one of the attorneys for Senator Terry C. Burton, do hereby

certify that I have electronically filed the foregoing with the Clerk of Court using the

ECF system which sent notice of such filing to all attorneys of record in this matter.

THIS, the 26th day of April, 2011.

/s/ Clay B. Baldwin

Clay B. Baldwin