Case 3:11-cv-00159-TSL -EGJ -LG Document 91 Filed 04/27/11 Page 1 of 5

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 FOR AN ORDER

DIRECTING THE MISSISSIPPI ATTORNEY GENERAL
TO SUBMIT THE 2011 HOUSE AND SENATE PLANS
PASSED BY EACH CHAMBER OF THE LEGISLATURE
TO THE UNITED STATES ATTORNEY GENERAL FOR § 5 REVIEW,
OR, FOR ALTERNATIVE RELIEF

Plaintiffs, the Mississippi State Conference of the National Association for the Advancement

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of Colored People (“NAACP”), Thomas Plunkett, Rod Woullard, and Hollis Watkins, on behalf of

themselves and all others similarly situated, (“plaintiffs”), moves the Court to grant the following

interim relief:

1. An order directing the Mississippi Attorney General to immediately submit the 2011

House and Senate plans passed by each Chamber of the Mississippi Legislature to the United States

Attorney General for § 5 review. The argument for this motion are contained in plaintiffs’ motion

for preliminary injunction, plaintiffs’ rebuttal to the Republican Party’s and Governor’s response to

plaintiffs’ motion for a preliminary injunction, and plaintiffs’ response to Bondurant’s, Currie’s, and

Stevens’ amended motion to intervene. Those arguments are incorporated herein.

2. Federal courts should, when possible, order the use of state plans that have been precleared

as a remedy to malapportioned districts. Watkins v. Mabus, 771 F. Supp. 789 (S. D. Miss.) (three-

judge court), aff’d in part and vacated and reversed in part, 502 U. S. 954 (1991); Wise v. Lipscomb,

437 U. S. 535 (1978); McDaniel v. Sanchez, 452 U. S. 130 (1981); Smith v. Clark, 189 F. Supp. 2d

529 (S. D. Miss. 2002) (three-judge court), aff’d 538 U. S. 254 (2003).

3. Plaintiffs are aware that the Fifth Circuit held in 1992 that courts may utilize

unprecleared plans as an interim remedy to plans that are constitutionally infirm. Campos v. City of

Houston, 968 F. 2d 446, 451 (5th Cir. 1992), cert. denied, 113 S. Ct. 971 (1993). However, the

United States Supreme Court subsequently held that courts should not use unprecleared plans. Lopez

v. Monterey County, 519 U. S. 9 (1996). The Supreme Court reached the same holding, shortly

before Campos was decided. Clark v. Roemer, 500 U. S. 646 (1991). Consequently, the court should

order the Mississippi Attorney General to submit the 2011 House and Senate plans for § 5 review

prior to implementing the plans as interim plans.

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4. If the plans are expeditiously precleared by the United States Attorney General, the

court should implement them as an interim remedy to the malapportionment. Alternatively, if the

plans are not expeditiously precleared, then the court should order the parties to submit proposed

remedies and appoint an expert to evaluate those remedies. If the plans offered by the parties do not

involve policy choices of the legislature and are acceptable by the court, then the court should

implement the plan as an interim remedy. If the plans offered by the parties involve policy choices

of the legislature, then the court should not use the plans unless they have been precleared. If the

court does not find any of the plans offered by the parties to be acceptable, or, if acceptable, but the

plans involve legislative policy choices and the plans have not been precleared, then the court should

not use those plans as an interim remedy. If the court is unable to use plans offered by the parties

as an interim remedy, then the court should draw its own plans if there is sufficient time. If,

however, there is insufficient time for the court to draw its own plan, then as a final option, the court

should utilize the malapportioned plans as an interim remedy and schedule a remedy hearing early

in 2012. Watkins v. Mabus, supra; Smith v. Clark, supra; White v. Weiser, 412 U. S. 783 (1973).

5. The 2011 Senate map is attached hereto as Exhibit “1.”

6. The 2011 Senate report is attached hereto as Exhibit “2.”

6. The 2011 House map and report is attached hereto as Exhibit “3.”

WHEREFORE, PREMISES CONSIDERED, plaintiffs respectfully move to issue an order

directing the Mississippi Attorney General to immediately submit the 2011 House and Senate plans

passed by each Chamber of the Mississippi Legislature to the United States Attorney General for §

5 review.

Since the authorities for this motion are contained herein and in plaintiffs’ motion for a

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preliminary injunction, plaintiffs’ rebuttal to the Republican Party’s and Governor’s response to

plaintiffs’ motion for a preliminary injunction, and plaintiffs’ response to Bondurant’s, Currie’s, and

Stevens’ amended motion to intervene, plaintiffs request leave of court from the requirement of

filing a separate memorandum of authorities.

This the 27th 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
Motion for an Interim Remedy 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 27th day of April, 2011.

/s/ Carroll Rhodes

CARROLL RHODES