Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE

NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, ET AL. PLAINTIFFS

VS. CIVIL ACTION NO. 3:11CV159-TSL-EGJ-LG

HALEY BARBOUR, in his official capacity as

Governor of the State of Mississippi, ET AL. DEFENDANTS

and

THE APPORTIONMENT AND ELECTIONS COMMITTEE

OF THE MISSISSIPPI HOUSE OF REPRESENTATIVES,
SENATOR TERRY C. BURTON, and SENATE DEMOCRATIC
CAUCUS INTERVENORS
______________________________________________________________________________

MOTION TO ADOPT 2011 LEGISLATIVE PLAN AS

INTERIM REMEDY FOR 2011 ELECTIONS ONLY
______________________________________________________________________________

Defendant Jim Hood, in his official capacity as Attorney General of the State of Mississippi

and as Member of the State Board of Election Commissioners (“Attorney General”), files this

Motion to Adopt the 2011 Legislative Plan as the Court’s Interim Remedy for the 2011 Election

Only.

INTRODUCTION

The plaintiffs’ only claim is that the current (adopted in 2002) legislative districting plan

violates “one person, one vote.” All parties agree those lines are constitutionally inappropriate in

light of 2010 census data. The only issue this Court must resolve now is the interim remedy that will

alleviate the “one person, one vote” problem for 2011 elections.

The overall 2011 legislative plan for both the House and Senate districts (the “2011 plan”)
 Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 2 of 7

fixes the “one person, one vote” problem. The 2011 plan is entitled to deference as a product of the

Legislature. It can be implemented with the least disruption to the State’s election machinery and

without modification of the election schedule. It best serves the public interest. Furthermore, as

only an interim remedy, parties opposed to the 2011 plan can try to change it later, when the State

is not faced with impending elections. The 2011 plan is the best interim remedy for the “one person,

one vote” problem facing the Court.

DEFER TO THE 2011 PLAN FOR AN INTERIM REMEDY

When fashioning interim redistricting relief for impending elections, the Court must reconcile

the “requirements of the Constitution with the goals of state political policy.” Connor v. Finch, 431

U.S. 407, 414 (1977). The 2011 plan satisfies both requirements, i.e., it meets “one person, one

vote” and represents Mississippi political policy. The plan’s population deviations are less than ten

percent (10%). Meanwhile, nothing evidences state political policy better than the product of

countless hours of work by the Standing Joint Legislative Committee for Redistricting, approved by

each house of the Legislature to which each portion of the plan applies.

Federal law supplies the ultimate reason why the 2011 plan is the best interim remedy here.

Redistricting plans formulated by a state legislature must be afforded deference in federal court:

[w]e have adhered to the view that state legislatures have “primary jurisdiction” over
legislative reapportionment...a federal district court, in the context of legislative
reapportionment, should follow the policies and preferences of the State, as
expressed in statutory and constitutional provisions or in the reapportionment plans
proposed by the state legislature, whenever adherence to state policy does not detract
from the requirements of the Federal Constitution.... In fashioning a reapportionment
plan or in choosing among plans, a district court should not preempt the legislative
task nor “intrude upon state policy any more than necessary.”

White v. Weiser, 412 U.S. 783, 795 (1973) (emphasis added) (internal citations omitted). See also

-2-
 Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 3 of 7

Upham v. Seamon, 456 U.S. 37, 43-44 (1982) (court should give deference to constitutional aspects

of legislative plan over court-ordered plan). In this case, together with the lack of any other

reasonable alternatives, such as a nebulous proposal for the Court to draw lines from scratch or

running on the current ones, deference due the 2011 plan makes it the best choice for interim relief.

Litigants opposing the 2011 plan argue it is not legislative policy because all state law

requirements for adoption were not met. But that argument does not “follow the law,” it ignores the

law. The 2011 plan was adopted by each house to which it applies, even though it was not officially

adopted by both houses through a joint resolution.

Given the exigent circumstances here, the Court can rely on the legislative judgment

represented by the 2011 plan and implement it for the time being. A state law defect in the 2011

plan is not a valid reason to disregard the Legislature’s work over the past many months. As the

United States Supreme Court has explained: “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 v. Sanchez, 452 U.S. 130, 152 (1981).1 In other words, federal law only requires evidence

of legislative judgment in a plan’s substance for it to qualify as a viable interim remedy.

Other federal courts facing similar facts have held as much. For example, in Tallahassee

Branch of NAACP v. Leon County, Florida, the Eleventh Circuit approved a plan that skipped over

a state law requirement for adoption. 827 F.2d 1436 (11th Cir. 1987), cert. denied, 488 U.S. 960.

1
McDaniel also suggests that, for a jurisdiction covered by Section 5 of the Voting Rights Act such as
Mississippi, any legislative plan adopted by the Court should be pre-cleared with Department of Justice prior to
implementation. The Attorney General is ready and able to present the 2011 plan for pre-clearance. 425 U.S. at
153. If the Court orders the 2011 plan as interim relief within a reasonable time, there is no reason that pre-clearance
cannot be achieved well in advance of the impending election deadlines, including the current June 1 qualifying
deadline.

-3-
 Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 4 of 7

In response to a vote dilution challenge, the government in Leon County devised a new

apportionment plan and, as required by state law, submitted it to a public referendum. Id. at 1437.

Voters rejected the plan, so the government drew up a subsequent plan but did not put it to a

referendum. Id. The plan was proposed to the district court, adopted, and approved by the Eleventh

Circuit on appeal. Id. at 1440. It did not matter that the referendum required by state law was not

held. Id. at 1438. Deference was afforded the plan even tough state law procedures were not fully

followed. See also Navajo Nation v. Arizona Indep. Redistricting Comm’n, 230 F.Supp.2d 998,

1008 (D. Ariz. 2002) (deference to legislative plan adopted without compliance with state law in face

of impending elections).

This Court is facing the same circumstances that confronted the Tallahassee NAACP court.

A procedural impediment to adoption of the 2011 plan does not make it irrelevant. Quite the

contrary, the Court should defer to the legislative judgment reflected in the 2011 plan because it is

the best available option for interim relief given the circumstances here.

THE 2011 PLAN IS AN APPROPRIATE INTERIM REMEDY

As interim relief only, the 2011 plan also satisfies any objections on account of the

population deviations contained in it. The Court should not listen to arguments that a “court-

ordered” plan must meet a “higher” deviation standard, or that “court-drawn” plans must adhere to

any particular party’s cherry-picked criteria. That is not the law applicable to this Court’s interim

remedy. The Court is facing exigent circumstances, with election deadlines looming ahead.

When pressed for time, there is nothing wrong with ordering an interim plan that has a

population deviation of just under ten percent (10%). A legislatively proposed plan can be adopted

on an interim basis where it does not violate the “ten percent” standard by which any other legislative

-4-
 Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 5 of 7

plan would be judged. See, e.g., Johnson v. Miller, 929 F.Supp. 1529, 1563 (S.D. Ga. 1996); Straw

v. Barbour County, 864 F.Supp. 1148, 1155 (M.D. Ala. 1994). The 2011 plan fits within the

applicable “one person, one vote” standard and its adoption as an interim remedy is justified by the

circumstances.

Moreover, this Court’s first hand experience demonstrates the 2011 plan is acceptable interim

relief. In 1991, the interim solution was to run on old lines with over one hundred ten percent

(110%) deviation for House districts and over forty-two percent (42%) deviation for Senate districts.

See Watkins v. Mabus, 771 F.Supp. 789, 791 (S.D. Miss. 1991), aff’d in part and vacated in part as

moot, 502 U.S. 954. If a plan so clearly out-of-line with “one person, one vote” was acceptable in

1991, then a plan with an overall deviation of less than ten percent (10%) in both houses is the best

option as an interim remedy for 2011.

THE 2011 PLAN IS THE MOST EFFICIENT INTERIM REMEDY

Adoption of the 2011 plan as interim relief comports with federal law, common sense, and

dollars and cents. The State’s legal bill will be reduced because further litigation regarding the

appropriate interim remedy would not be required. No expert fees would be taxed to Mississippians.

The election machinery can more easily be adapted to the 2011 plan, as opposed to a brand new plan

(that some argue should have no regard for current districts whatsoever). The voting public and

candidates will have a reasonable time to participate in the election process without having to move

any election deadlines. Additionally, and not least, this Court’s resources would be conserved by

reducing the amount of time spent entangled with the state’s election process. The 2011 plan affords

the most efficient interim remedy.

-5-
 Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 6 of 7

CONCLUSION

Adoption of the 2011 plan as an interim remedy would protect the federal “one person, one

vote” rights of Mississippi’s citizens and be consistent with the deference due to the legislative plan.

Accordingly, the Court should enter an order requiring adoption of the plan and instructing the

Attorney General to submit the 2011 plan to Department of Justice for Section Five pre-clearance

within a reasonable time from this writing.2

THIS the 27th day of April, 2011.

Respectfully submitted,

JIM HOOD, IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL FOR
THE STATE OF MISSISSIPPI AND AS
MEMBER OF THE STATE BOARD
OF ELECTION COMMISSIONERS

By: S/Justin L. Matheny

Harold E. Pizzetta, III (Bar No. 99867)
hpizz@ago.state.ms.us
Justin L. Matheny (Bar No. 100754)
jmath@ago.state.ms.us

Office of the Attorney General

Civil Litigation Division
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3860
Facsimile: (601) 359-2003

2
The Attorney General respectfully requests that the Court dispense with the requirement of filing a
separate Memorandum of Law pursuant to L.U.R.Civ. 7(b)(4) as the issues and authority are fully set forth above.

-6-
 Case 3:11-cv-00159-TSL -EGJ -LG Document 89 Filed 04/27/11 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been filed
electronically with the Clerk of Court and thereby served on the following persons who have
appeared as counsel of record:

Carroll Edward Rhodes Samuel L. Begley

chrodes@bellsouth.net sbegley1@bellsouth.net

Jack L. Wilson Crystal W. Martin

jwilson@babc.com cmartin@co.hinds.ms.us

Robert L. Gibbs Stephen L. Thomas

rgibbs@brunini.com sthomas@babc.com

Michael B. Wallace Matthew W. Allen

mbw@wisecarter.com mwallen@brunini.com

Robert B. McDuff Charles Stevens Seale

rbm@mcdufflaw.com css@wisecarter.com

R. Andrew Taggart, Jr. Clay B. Baldwin

andy@tru-law.com clay@tru-law.com

John F. Hawkins Cory T. Wilson

john@hsglawfirm.net cory@wlglegal.com

Charles Stevens Seale

css@wisecarter.com

THIS the 27th day of April, 2011.

S/Justin L. Matheny
Justin L. Matheny

-7-