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 PLAINTIFFS

VS. Civil Action No. 3:11-cv-00159

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 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) Richard S. Wilbourn (MS Bar # 8537)
Post Office Box 2656 Post Office Box 1278
Madison, MS 39110 Madison, MS 39130-1278
601-605-6931 (T) 601-853-8500 (T)
601-605-6901 (F) 601-607-3737 (F)
russ@russlatino.com rwilbournIII@yahoo.com
 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.

1
The 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.

2
 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.

3
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

4
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 the
state in accordance with the constitution of the state and of the United States into
consecutively numbered senatorial and representative districts of contiguous
territory. 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

5
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.

2
As 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”).

6
 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 adopt
some 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 and
growth. 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 no
more 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, we
do 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

7
necessarily a constitutional “requisite,” a state that performs decennial reapportionment

“would clearly meet the minimal requirements for maintaining a reasonably current

scheme of legislative representation.” In other words, a system which provides for

decennial reapportionment is unequivocally in compliance with the requirements of the

U.S. Constitution. At present, the State of Mississippi is in year nine (9) of an

apportionment plan set into place in 2002. Accordingly, in both form and application, §

254’s requirement that redistricting be complete in 2012 is consistent with the U.S.

Constitution, which in turn guides related federal voting rights law.

3. Plaintiffs Lack Standing and the Court Lacks Jurisdiction

Art. III, § 2 of the U.S. Constitution limits the exercise of judicial power to

‘cases’ and ‘controversies.’ Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).

The controversy must be definite and concrete, touching the legal relations of parties

having adverse legal interests. Haworth, 300 U.S. at 240-41 (internal citations omitted).

In Whitmore v. Arkansas, the Supreme Court explained:

To establish an Art. III case or controversy, a litigant first must clearly

demonstrate that he has suffered an “injury in fact.” That injury, we have
emphasized repeatedly must be concrete in both a qualitative and temporal
sense. The complainant must allege an injury to himself that is “distinct
and palpable,” Warth v. Seldin, 422 U.S. 490, 501 (1975), as opposed to
merely “[a]bstract,” O’Shea v. Littleton, 414 U.S. 488, 494 (1974), and the
alleged harm must be actual or imminent, not “conjectural” or
“hypothetical.” Los Angeles v. Lyons, 461 U.S. 94, 101-02 (1983). Further,
the litigant must satisfy the “causation” and “redressability” prongs of the
Art. III minima by showing that the injury “fairly can be traced to the
challenged action” and “is likely to be redressed by a favorable decision.”
Simon v. E. Kentucky Welfare Rights Organization, 426 U.S. 26, 38
(1976); Valley Forge Christian College v. Am. United for Separation of
Church & State, 454 U.S. 464, 472 (1982).

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).

8
 “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).

3
It 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

9
 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 next
day, the next week, the next month a major disaster occurs-a large industry
in town closes, thousands relocate; a flood wipes out a community, people
relocate; 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. Does
that 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.

10
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 shift
and the high cost of creating new election districts, a state may conduct
elections for a reasonable amount of time with districts whose deviations
are 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 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, we do 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; 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

11
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

12
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 required

hereby, the governor by proclamation shall reconvene the legislature
within thirty (30) days in special apportionment session which shall not
exceed thirty (30) consecutive days, during which no other business shall
be transacted, and it shall be the mandatory duty of the legislature to adopt
a joint resolution of apportionment. Should a special session not adopt a
joint resolution of apportion as required hereby, a five-member
commission consisting of the chief justice of the supreme court as
chairman, the attorney general, the secretary of state, the speaker of the
house of representatives and the president pro tempore of the senate shall
immediately convene and without one hundred eighty (180) days of the
adjournment of such special apportionment session apportion the
legislature, which apportionment shall be final upon filing with the office
of 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

13
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.

14
 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.

15
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 some

elections 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 longer
meet 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 years
outweigh…considerations…concerning the validity of four-year terms, the
settled expectations of voters and elected officials, the costs of the
elections, 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 that
the new census data becomes available) likely will result in a four-year
delay in using the new census data. But this simple consequence of two
different schedules (i.e. census every ten years, elections every four) does
not diminish the voting power of any protected minority; there is merely a
four-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

16
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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in the Senate, the resolution was voted down in the Elections Committee. On March 8,

2011, Senator Terry Burton introduced J.R. 201, entitled, “A Joint Resolution to

Redistrict the Mississippi State Senate.” On March 10, 2011, J.R. 201 passed the Senate.

Upon arrival in the House, J.R. 201 was amended to include the House plan that had

failed to garner support in the Senate. Then, and only then, did the House “approve” the

Senate plan on March 15, 2011. J.R. 201 was then returned to the Senate for a vote to

determine if the Senate concurred. In anticipation of the vote, House Speaker Billy

McCoy publicly threatened that if the Senate failed to concur and instead invited

conference, he would not appoint conferees and end the legislative process. On or about

March 17, 2011, the Senate declined to concur. Lt. Governor Phil Bryant appointed

conferees, as is the customary practice. As previously announced, House Speaker

McCoy refused. On that same day, the present lawsuit was filed. These are facts which

are not in dispute and which have been previously cited in the Mississippi Democratic

Executive Committee’s Opposition to Secretary Hosemann’s Motion to Dismiss. (Doc.

53).

At the time of adjournment, neither plan had received approval of the other

chamber standing alone on its own merits—something definitively required by § 254 of

the Mississippi Constitution in order to enact a redistricting plan. MISS. CONST. Art. 13,

§ 254 (“The legislature shall at its regular session in the second year following the 1980

decennial census and every ten (10) years thereafter…by joint resolution, by majority

vote of all members of each house, apportion the state”). The requirement, at its core, is

a requirement of bicameralism. See MISS. CONST. Art. 4, § 33 (“The legislative power of

this state shall be vested in a legislature which shall consist of a senate and a house of

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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

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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 III

Russell Latino III (MS Bar # 102281)
P.O. Box 2656
Madison, MS 39110
(601)-605-6931 (T)
(601)-605-6901 (F)
russ@russlatino.com

Richard E. Wilbourn III (MS Bar # 8537)

Richard Wilbourn & Associates, PLLC
P.O. Box 1278
Madison, MS 39130-1278
(601)-853-8500
(601)-607-3737
rwilbournIII@yahoo.com

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 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 588
Hazelhurst, MS 39083
crhode@bellsouth.net

John F. Hawkins, Esq.

Hawkins, Stracener & Gibson, PLLC
P.O. Box 24627
Jackson, MS 39225-4627
john@hsglawfirm.net

Stephen Lee Thomas, Esq.

Jack L. Wilson, Esq.
Bradley Arant Boult Cummings, LLP
P.O. Box 1789
Jackson, MS 39215-1789
sthomas@babc.com
jwilson@babc.com

Justin L. Matheny, Esq.

Harold E. Pizzetta, III, Esq.
Mississippi Attorney General’s Office
P.O. Box 220
Jackson, MS 39205-0220
jmath@ago.state.ms.us
hpizz@ago.state.ms.us

Robert L. Gibbs, Esq.

Matthew W. Allen, Esq.
Brunini, Grantham, Grower & Hewes
P.O. Drawer 119
Jackson, MS 39205-0119
rgibbs@brunini.com
mwallen@brunini.com

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 Michael B. Wallace, Esq.
Charles S. Seale, Esq.
Wise, Carter, Child & Caraway
401 East Capitol Street, Suite 600
P.O. Box 651
Jackson, MS 39201
mbw@wisecarter.com
css@wisecarter.com

Samuel L. Begley, Esq.

Begley Law Firm
P.O. Box 287
Jackson, MS 39205
sbegley1@bellsouth.net

Crystal Wise Martin, Esq.

Hinds County Board of Supervisors
P.O. Box 686
Jackson, MS 39205-0686
cmartin@co.hinds.ms.us

Robert B. McDuff, Esq.

767 North Congress St.
Jackson, MS 39202
rbm@mcdufflaw.com

R. Andrew Taggart, Jr., Esq.

Clay B. Baldwin, Esq.
Taggart, Rimes & Usry, PLLC
P.O. Box 3025
Madison, MS 39130
andy@tru-law.com
clay@tru-law.com

Cory T. Wilson, Esq.

Willoughby Law Group, PLLC
602 Steed Rd., Suite 110
Ridgeland, MS 39157
cory@wlglegal.com

This the 5th day of May, 2011.

/s/ Russell Latino III

Russell Latino III

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