Case 3:11-cv-00159-TSL -MTP Document 56-4 Filed 04/12/11 Page 1 of 11

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-MTP

HALEY BARBOUR, et al. DEFENDANTS

AND

SENATOR TERRY C. BURTON DEFENDANT/ INTERVENOR

ANSWER, DEFENSES AND COUNTERCLAIM

OF SENATOR TERRY C. BURTON

State Senator Terry C. Burton answers the Complaint filed in this matter as

follows:

JURISDICTION

1. Defendant admits that this Court has jurisdiction of this action. The

remaining allegations of paragraph 1 state legal conclusions to which no response is

required; to the extent a response is necessary, the remaining allegations are denied.

VENUE

2. Defendant admits that venue is proper in this Court.

PARTIES

3. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 3.

4. The allegations of paragraph 4 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

Exhibit "D"
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5. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 5.

6. The allegations of paragraph 6 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

7. The allegations of paragraph 7 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

8. Admitted.

9. Admitted.

10. Admitted.

11. Admitted.

12. Admitted.

13. Admitted.

14. Admitted.

15. The allegations of paragraph 15 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

16. The allegations of paragraph 16 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

FACTS

17. Admitted.

18. Admitted.

19. Admitted.

20. Admitted.

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21. The allegations of paragraph 21 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

22. Admitted.

23. Admitted.

24. Admitted.

25. Admitted.

26. Admitted.

27. Admitted.

28. Admitted.

29. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate [Exhibit “A-1” of the Complaint, Docket No. 1-1], the paragraph

is Admitted.

30. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

31. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

32. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

33. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

34. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

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35. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

36. To the extent the numbers are consistent with the Benchmark Plan for the

Mississippi State Senate, the paragraph is Admitted.

37. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 37.

38. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 38.

39. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 39.

40. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 40.

41. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 41.

42. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 42.

43. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 43.

44. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 44.

45. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 45.

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46. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 46.

47. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 47.

48. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 48.

49. The allegations of paragraph 49 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

50. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 50.

51. Defendant lacks knowledge and information sufficient to admit or deny

the allegations of paragraph 51.

52. The allegations of paragraph 52 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

53. The allegations of paragraph 53 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

54. The allegations of paragraph 54 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

55. The allegations of paragraph 55 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

56. The allegations of paragraph 56 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

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57. The allegations of paragraph 57 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

58. The allegations of paragraph 58 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

59. Denied.

60. To the extent the paragraph refers to the Senate redistricting plan entitled

Joint Resolution 201, as passed by both chambers of the Mississippi Legislature in the

2011 regular session, the paragraph is admitted.

61. To the extent that all changes to existing district plans for the Mississippi

Legislature are subject to the requirements of Section 5 of the Voting Rights Act of 1965,

the paragraph is admitted.

62. The allegations of paragraph 62 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

63. The allegations of paragraph 63 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

64. The allegations of paragraph 64 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

65. Denied.

66. Denied.

67. The allegations of paragraph 67 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

68. Denied.

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CAUSES OF ACTION

COUNT I – 14th AMENDMENT EQUAL PROTECTION (ONE PERSON ONE

VOTE)

69. The allegations of paragraph 69 state legal conclusions to which no

response is required; to the extent a response may be required, the allegations are denied.

COUNT II – 14TH AMENDMENT EQUAL PROTECTION (RACE)

70. Denied.

COUNT III – SECTION 5 OF THE VOTING RIGHTS ACT

71. Denied.

COUNT IV – SECTION 2 OF THE VOTING RIGHTS ACT

72. Denied.

COUNT V – MISSISSIPPI CONSTITUTION (1890)

73. Denied.

CAUSATION AND INJURY

74. Denied.

EQUITABLE RELIEF

DECLARATORY JUDGMENT

75. Defendant denies the allegations of the first sentence of paragraph 75.

Defendant admits the allegations of the first part of the second sentence of paragraph 75

that this Court may, if necessary, issue a declaratory judgment that the existing districts

for the Mississippi Senate and Mississippi House of Representatives are

unconstitutionally malapportioned. Defendant denies the remaining allegations of

paragraph 75.

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INJUNCTIVE RELIEF

76. Defendant admits that a three-judge court should be convened pursuant to

28 U.S.C. § 2284. Defendant denies the remaining allegations of paragraph 76.

OTHER EQUITABLE RELIEF

77. Defendant denies that plaintiffs are entitled to the relief requested in

paragraph 77.

Defendant denies the allegations of the final unnumbered request for relief except

that this Court may, if necessary, issue a declaratory judgment that the existing districts

for the Mississippi Senate and Mississippi House of Representatives are

unconstitutionally malapportioned.

COUNTERCLAIM

Senator Terry C. Burton hereby files this his Counterclaim for declaratory relief

against the Mississippi Conference of the National Association for the Advancement of

Colored People (“NAACP”), and alleges as follows:

1. Counterclaimant Terry C. Burton is a qualified elector of Newton County,

Mississippi and a duly elected member of the Mississippi State Senate, having served

continuously in that body since 1992. Senator Burton currently serves as Chairman of

the Senate Elections Committee (the “Senate Committee”), and as Chairman of the

Standing Joint Legislative Committee on Reapportionment and Redistricting (the “Joint

Committee”). See Affidavit of Senator Terry C. Burton, attached as Exhibit “A” to Sen.

Burton’s Motion to Intervene, and incorporated by reference.

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2. Counter-Defendant, the Mississippi State Conference of the NAACP is a

civil rights organization which has members who are citizens and registered voters

throughout the State of Mississippi.

3. The NAACP filed its initial action against the members of the Mississippi

Board of Election Commissioners (namely Governor Haley Barbour, Attorney General

Jim Hood, and Secretary of State Delbert Hosemann), the Mississippi Republican Party

Executive Committee, the Mississippi Democratic Party Executive Committee, and

others on March 17, 2011.

4. The NAACP has requested this Court draw new districts for both the

Mississippi Senate and Mississippi House of Representatives to be used in future

elections.

5. Senator Burton moved to intervene as a party Defendant on April 12,

2011, which motion was granted on April __, 2011.

6. This Court has jurisdiction over Sen. Burton’s Counterclaim under 28

U.S.C. §§ 1331, 1343, 2202, and 2284; and the doctrine of pendent jurisdiction.

7. As the parties have responded to the NAACP’s initial complaint, this

Court has in personam jurisdiction over the parties, and venue is proper.

8. Sen. Burton seeks a declaratory judgment that is narrower than the instant

action and only concerns the district lines for the State Senate as approved by both the

Mississippi State Senate and the Mississippi State House of Representatives, and the

timely conduct of elections for the Mississippi Legislature in 2011. See 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 Sen. Burton’s Motion

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to Intervene as Exhibit “B” and Exhibit “C” respectively, and incorporated herein by

reference.

9. The Mississippi State Senate passed the Senate Plan on March 10, 2011 by

a vote of 44 Yeas – 7 Nays.

10. The Mississippi State House of Representatives passed the Senate Plan on

March 15, 2011 by a vote of 68 Yeas – 53 Nays.

11. No plan of redistricting for the State House of Representatives received a

majority vote of both chambers of the Mississippi Legislature during the 2011 Regular

Session, so no joint resolution of redistricting of both chambers of the Legislature was

adopted, as required by §254 of the Mississippi Constitution of 1890.

12. Sen. Burton seeks judgment from this Court, declaring that the Senate

Plan, as passed by both chambers of the Mississippi Legislature under Joint Resolution

201, is the lawful plan and map for State Senate districts to be utilized for the 2011

Senate elections, and further declaring that the 2011 elections for the Mississippi

Legislature shall proceed under the timelines set out in Mississippi law for the

qualification of candidates, for party primaries, and for the general election.

13. The Mississippi State Senate acted during the 2011 Regular Session of the

Mississippi Legislature in accordance with its duty to reapportion itself under the

direction of both the United States Constitution and the Mississippi Constitution of 1890,

and in full compliance with the controlling federal and state statutes. The United States

Supreme Court has emphatically stated that such a lawful act by a state’s legislative body

is preferable to any plan that might be drawn by the courts. Therefore this Court should

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adopt the Senate district lines as drawn by the Mississippi State Senate and approved by

majority votes in both chambers of the Mississippi Legislature.

WHEREFORE, PREMISES CONSIDERED, Sen. Burton seeks declaratory

judgment from this Court that the 2011 elections for the Mississippi Legislature proceed

without interruption under Mississippi law, and that the Mississippi State Senate elections

take place utilizing the district lines in the map and plan approved by the majority of both

chambers of the Mississippi Legislature in the form of Joint Resolution 201 of the 2011

Regular Session of the Mississippi Legislature.

Respectfully submitted, this the ____ day of _________, 2011.

SENATOR TERRY C. BURTON

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