Case 3:11-cv-00159-TSL -EGJ -LG Document 72 Filed 04/21/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE PLAINTIFFS

NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE, THOMAS PLUNKETT, ROD
WOULLARD, and HOLLIS WATKINS, on behalf of themselves
and all others similarly situated

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

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, and 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 DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; and CONNIE COCHRAN, in her official
capacity as Chairman of the Hinds County, Mississippi
Board of Election Commissioners, on behalf of herself
and all others similarly situated DEFENDANTS

AND

APPORTIONMENT AND ELECTIONS COMMITTEE

OF THE MISSISSIPPI HOUSE OF REPRESENTATIVES;
MISSISSIPPI STATE SENATE DEMOCRATIC CAUCUS
AND STATE DEMOCRATIC SENATORS, in their individual
capacities; and TERRY C. BURTON INTERVENORS

PLAINTIFFS’ MOTION TO DISMISS

AND ANSWER TO THE COUNTERCLAIM
FILED BY TERRY C. BURTON

COME NOW the plaintiffs, the Mississippi State Conference of the National Association for

the Advancement of Colored People (“NAACP”), Thomas Plunkett, Rod Woullard, and Hollis

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Watkins, on behalf of themselves and all others similarly situated,1 and file this motion to dismiss

and answer to the counterclaim filed by Intervenor Terry C. Burton, as follows:

MOTION TO DISMISS

Plaintiffs, pursuant to Fed. R. Civ. P. 12(b)(6), move to dismiss the counterclaim filed

against them on grounds that the requested relief cannot be granted by the plaintiffs. The plaintiffs

are individual voters and a civil rights organization. The plaintiffs are not legislators and have no

responsibility for redistricting the Mississippi legislature. That responsibility rests with the

Intervenor and other legislators. Wise v. Lipscomb, 437 U. S. 535 (1978), McDaniel v. Sanchez, 452

U. S. 130 (1981).

ANSWER TO COUNTERCLAIM

1. Plaintiffs admit Paragraph 1 of the counterclaim.

2. Plaintiffs admit Paragraph 2 of the counterclaim.

3. Plaintiffs admit Paragraph 3 of the counterclaim.

4. Denied as stated. Plaintiffs admit that they request the court to draw new lines for

the legislature, but plaintiff also requests the court to declare that the current districts are

unconstitutionally malapportioned and then afford the legislature a reasonable opportunity to remedy

the constitutional violation, or, if elections are imminent and the legislature fails to act, then

plaintiffs request the court to fashion a remedy which could include drawing new lines, accepting

a plan offered by the plaintiffs, or if there is insufficient time to fashion a court remedy to allow

elections to be held under the current districts, as an interim remedy for one year and then fashion

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Plaintiffs filed the case as a class action. However, plaintiffs have not filed a formal
motion for class certification yet.

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a remedy next year if the legislature again fails to properly redistrict.

5. Plaintiffs admit Paragraph 5 of the counterclaim.

6. Denied as stated. Plaintiffs agree the court has jurisdiction over the case, however

plaintiffs have no responsibility for drawing legislative districts.

7. Plaintiffs admit Paragraph 7 of the counterclaim.

8. Denied as stated. Plaintiffs agree that the legislative plans passed but not adopted by

the 2011 Session of the Mississippi Legislature are preferable to the current districts. However, the

court cannot implement those plans until they have been precleared. In McDaniel v. Sanchez, the

Supreme Court held that “[i]t was ...error for the District Court to act on the county’s proposed plan

before it had been submitted to the Attorney General or the United States District Court for the

District of Columbia for preclearance.” McDaniel v. Sanchez, supra, at 153. The Supreme Court also

noted that district courts “have ample power to fashion interim remedies to avoid problems” of

dilatory tactics by incumbents to refuse to redistrict until suit is filed and then offer the legislative

plan as a remedy. McDaniel v. Sanchez, supra, at 153, fn. 35. The court has power to order any

party, including the Mississippi Attorney General, to submit the plan for preclearance by a date

certain. The court could then schedule another status conference or hearing after the United States

Attorney General or federal district court in Washington, D. C. has had ample opportunity to review

the plans. If the plans are precleared, then the court could order use of the plans as an interim

remedy. The plans would have to be an interim remedy because the deviation in both the house and

senate plans is almost 10%. Any court-ordered permanent plan should attempt to achieve population

equality with de minimis deviation. McDaniel v. Sanchez, supra; Connor v. Finch, 431 U. S. 407

(1977).

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9. Plaintiffs admit Paragraph 9 of the counterclaim.

10. Plaintiffs admit Paragraph 10 of the counterclaim.

11. Plaintiffs admit Paragraph 11 of the counterclaim.

12. Denied as stated. Plaintiffs agree that the legislative plans passed but not adopted by

the 2011 Session of the Mississippi Legislature are preferable to the current districts. However, the

court cannot implement those plans until they have been precleared. In McDaniel v. Sanchez, the

Supreme Court held that “[i]t was ...error for the District Court to act on the county’s proposed plan

before it had been submitted to the Attorney General or the United States District Court for the

District of Columbia for preclearance.” McDaniel v. Sanchez, supra, at 153. The Supreme Court also

noted that district courts “have ample power to fashion interim remedies to avoid problems” of

dilatory tactics by incumbents to refuse to redistrict until suit is filed and then offer the legislative

plan as a remedy. McDaniel v. Sanchez, supra, at 153, fn. 35. The court has power to order any

party, including the Mississippi Attorney General, to submit the plan for preclearance by a date

certain. The court could then schedule another status conference or hearing after the United States

Attorney General or federal district court in Washington, D. C. has had ample opportunity to review

the plans. If the plans are precleared, then the court could order use of the plans as an interim

remedy. The plans would have to be an interim remedy because the deviation in both the house and

senate plans is almost 10%. Any court-ordered permanent plan should attempt to achieve population

equality with de minimis deviation. McDaniel v. Sanchez, supra; Connor v. Finch, 431 U. S. 407

(1977).

13. Denied as stated. Plaintiffs agree that the legislative plans passed but not adopted by

the 2011 Session of the Mississippi Legislature are preferable to the current districts. However, the

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court cannot implement those plans until they have been precleared. In McDaniel v. Sanchez, the

Supreme Court held that “[i]t was ...error for the District Court to act on the county’s proposed plan

before it had been submitted to the Attorney General or the United States District Court for the

District of Columbia for preclearance.” McDaniel v. Sanchez, supra, at 153. The Supreme Court also

noted that district courts “have ample power to fashion interim remedies to avoid problems” of

dilatory tactics by incumbents to refuse to redistrict until suit is filed and then offer the legislative

plan as a remedy. McDaniel v. Sanchez, supra, at 153, fn. 35. The court has power to order any

party, including the Mississippi Attorney General, to submit the plan for preclearance by a date

certain. The court could then schedule another status conference or hearing after the United States

Attorney General or federal district court in Washington, D. C. has had ample opportunity to review

the plans. If the plans are precleared, then the court could order use of the plans as an interim

remedy. The plans would have to be an interim remedy because the deviation in both the house and

senate plans is almost 10%. Any court-ordered permanent plan should attempt to achieve population

equality with de minimis deviation. McDaniel v. Sanchez, supra; Connor v. Finch, 431 U. S. 407

(1977).

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WHEREFORE, PREMISES CONSIDERED, the plaintiffs submit their response to the

counterclaim filed by Intervenor Burton.

This the 21st day of April, 2011.

Respectfully submitted,
MISSISSIPPI STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,
THOMAS PLUNKETT, ROD WOULLARD,
and HOLLIS WATKINS, on behalf of
themselves and all others similarly situated

/s/ Carroll Rhodes

CARROLL RHODES, ESQ., MSB # 5314
LAW OFFICES OF CARROLL RHODES
POST OFFICE BOX 588
HAZLEHURST, MS 39083
TEL.: (601) 894-4323
FAX: (601) 894-1464
e-mail: crhode@bellsouth.net

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CERTIFICATE OF SERVICE

I, Carroll Rhodes, do hereby certify that I have this date electronically filed the foregoing
Answer to Counterclaim with the Clerk of Court using the ECF system which sent notification of
such filing to the following:

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

mbw@wisecarter.com css@wisecarter.com

Samuel L. Begley, Esq.

sbegley1@bellsouth.net

Robert B. McDuff, Esq.

rbm@mcdufflaw.com

Harold Pizetta, Esq. Justin L. Matheny, Esq.

hpizz@ago.state.ms.us jmath@ago.state.ms.us

Crystal Martin, Esq.

cmartin@co.hinds.ms.us

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

jwilson@babc.com sthomas@babc.com

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

rgibbs@brunini.com mwallen@brunini.com

John F. Hawkins, Esq.

john@hsglawfirm.net

This the 21st day of April, 2011.

/s/ Carroll Rhodes

CARROLL RHODES