Exhibit to Hosemann's Rebuttal to Responses to Hosemann's Motion to Dismiss (NAACP v Barbour)

8/7/2019 Exhibit to Hosemann's Rebuttal to Responses to Hosemann's Motion to Dismiss (NAACP v Barbour)

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Case 3: 11-cv-00 119-WHB -LRA Document 16 Filed 03/18/11 Page 1 of 28

IN THE UNTED STATES DISTRCT COURT. FOR THE SOUTHERN DISTRCT OF MISSISSIPPI

JACKSON DMSION

MAISON COUNTY BOAR OFSUPERVISORS and JOHN W. ROBINSON, III PLAINTIFFS

VS. CIVIL ACTION NO. 3:iicv119-WH-LRA

STATE OF MISSISSIPPI,. LEE WESTBROOK, in her offcialcapacity as MAISON COUNTY CIRCUITCLERK and MAISON COUNTY REGISTRAMAISON COUNTY REPUBLICAN EXECUTIVECOMMTTEE, AND MAISON COUNDEMOCRATIC EXECUTIVE COMMTTEE DEFENDANTS

MEMORAUM OF AUTHORITIES SUPPORTINGTHE STATE OF MISSISSIPPI'S RESPONSE IN OPPOSITION

TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Jim Hood, Attorney General for the State of Mississippi ("Attorney General"), fies this

Memorandum Supportng the State of Mississippi's Response in Opposition to Plaintiffs' Motion

for Preliminary Injunction (Docket No. 15).

I. Introduction.

Every fifth county election cycle - for offices with four year terms - occurs in the same year

that population data is released in the decennial federal census cycle. The unavoidable combination

of those two cycles every twenty years does not yield an automatic "one person, one vote" violation

for anyone. Neverteless, plaintiffs Madison County Board of Supervisors ("Madison Board") and

John W. Robinson, III ("Robinson") (collectively "plaintiffs") have filed this lawsuit makng that

faulty claim.

Plaintiffs, relying exclusively on that il-reasoned "one person, one vote" argument, have

EXHIBIT

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Case 3:11-cv-00119-WHB -LRA Document 16 Filed 03/18/11 Page 2 of 28

requested that this Cour issue a judgment: (1) declarig its curent supervsor distrct lines are

unconstitutional; (2) declarng that the Mississippi Legislatue's statutory qualifying deadline for

county candidates is unconstitutional, as applied to plaintiffs; and (3) enjoining the county candidate

qualifying deadline mandated by the Mississippi Legislatue. The Cour previously denied

plaintiffs' request for a temporar restrainng order encompassing their requested relief. Now, the

Cour should simlarly deny plaintiffs' request for a prelimiary and permanent injunction and

dismiss all their claims.

The Madison Board does not have stading to bring this lawsuit. Additionally, federal cour

in Mississippi, and elsewhere, have ruled that actionable "one person, one vote" violations are not

produced when census cycles and election cycles converge. See, e.g., Bryant v. Lawrence County,

Mississippi, 814 F.Supp. 1346 (S.D. Miss. 1993); Fairley v. Forrest County, Mississippi, 814

F.Supp. 1327 (S.D. Miss. 1993). The same pattern which taes place every twenty years is at the

hear of plaintiffs' claims here. It does not render the curent county election distrcts, or the

Legislature's established election deadlines, unconstitutional on account of "one person, one vote,"

or any other federal law. It does not warant the declaratory and injunctive relief that the plaintiffs

seek.

This Court should follow the opinions from previous federal cours that have faced the same

issue, and deny plaintiffs' relief, instead of interferig with Madison County's political process.

Plaintiffs' motion for declaratory and injunctive relief should be denied and their claims should be

dismissed with prejudice.

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Case 3: 11-cv-00 119-WHB ~LRA Document 16 Filed 03/18/11 Page 3 of 28

. Facts.

A. Background and Procedural Facts.

1. The Madison Board's Redistricting Committee and Statements to the Public.

The Madison County election cycle began on Januar 1, 2011 when qualifying for county

offces opened. See Miss. CODE ANN. 23-15-299(2). The Madison Board planed to use the

curent supervisor distrct lines in its 2011 elections. (See Steven G. Watson, Candidates watchdog

redistrcting, MADISON COUNTY JOURNAL, March 2, 2011, Ex. "D"). On February 4, 2011, the 2010

United States Census data became available to the county. (Complaint at ~ 2, Docket No. i).

On Februar 22, 2011, the Madison Board held a public meeting to discuss redistrcting. (See

Steven G. Watson, County may redistrict before election, MADISON COUNTY JOURNAL, Februar

23,2011, Ex. "A").' The meeting was a follow-up to an anouncement that a commttee had been.

formed to consider redistrcting of the county's election distrcts. Members of the five-person

commttee formed by the Board included supervisor Tim Johnson, supervisor Karl Bank, county

admnistrator Brad Sellers, Board attorney Eric. Hamer, and Circuit Clerk Lee Westbrook. (See

Steven G. Watson, Residents 'don't trustsupervisors, MADISON COUNTY JOURNAL, Februar 23,

2011, Ex. "B"). The Madison Board openly acknowledged that putting more than two supervisors

on the commttee would make committee meetings open to the public. (Id.).

At the February 22 meeting, some members of the public questioned the make-up of the

commttee. The Board attorney responded to concerns by saying that the county could fie a lawsuit

to move the qualifying deadline for the curent election cycle. (See Steven G. Watson, County may

, Unless otherwise noted, references to exhibits contained herein refer to those exhibits attached to theState's Response in Opposition to plaintiffs' Motion for Preliminary Injunction (Docket No. _J fied at the sametime as this Memorandum.

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redistrict before election, MADISON COUNTY JOURNAL, Februar 23, 2011, Ex. "A"). The Board

attorney explained that the Butler Snow fin had already filed a similar case in Hancock County and

could be associated so that Madison County would not have to "reinvent the wheeL." (Id.).

Following the public corients, the February 22 meeting culmated in a Madison Board vote to

fie this lawsuit. (Id.). The redistrcting process was expected to take several weeks. Meanwhile,

the Madison Board promised to hold multiple public hearngs and advise the public of any proposals .

or considerations. (Id. V

MadisonBoard's vote to fie a lawsuit, drew skepticism from the public and candidates for

office. (See Editorial, We don't trust the supervisors either, MADISON COUNTY JOURNAL, March 2,

2011, Ex. "C"; Steven G. Watson, Candidates watchdog redistricting, MADISON COUNTY JOURNAL,

March 2, 2011, Ex. "D"). As of this writing, the Madison Board stil has not decided on a specific

plan for new lines. A public hearng is curently set for March 21, 2011 to discuss plans that might

be submitted to the Departent of Justice for pre-clearance. (See Lucy Weber, Madison supes eye

redistrict options, THE CLARION-LEDGER, March 15,2011, Ex. "E").

2. The Similar Hancock County Lawsuit.

Longbefore this laWsuit was fied, on December 14, 2010, the Hancock County Board of

Supervisors ("Hancock Board") filed a nearly identical challenge to the Mississippi Legislatue's

county election qualifying deadline. The case is pending before Chief Judge Louis Guirola, Jr. (See

Civil Action No. 1:1Ocv564-LG-RH at Complaint, Docket No.1). The Hancock Board is

represented in that lawsuit by the Butler Snow law firm, and at least one of the Butler Snow

2 Offcial actions of the Madison Board at the February 22 mec;ting are also evidenced by the Board'sminutes. (See Minutes of the Board of Supervisors, February 22, 2011, Ex. "I," and online at -chttp://madison-co.com/images/admin/pdfs/745 _86447 _Minutes_2-22- 1 1_(Final).pdf. J.

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Case 3:11-cv-00119-WHB -LRA Document 16 Filed 03/18/11 Page 5 of28

attorneys in ths case has appeared in this case and the Hancock County case. On Februar 10,2011,

the Hancock Board filed a Motion for Declaratory Judgment Permanent Injunction, and Preliminar

Injunction. (See Civil Action No. 1:1Ocv564-LG-RH at Motion for Injunction, Docket No.1 I).

On February ll, 2011, a hearng was set for February 25,201 L (See Civil Action No. 1:1Ocv564-

LG-RHW at Februar 11,2011 Text Order).

The Attorney General subsequently was allowed to intervene and filed a Motion to Dismiss.

(See Civil Action No. 1:lOcv564-LG-RH at Order, Docket No. 14; Motion to Dismiss, Docket

Nos; 19 & 20V The February 25 hearing was canceled and the case was stayed pending a ruling

on the Motion to Dismiss, which is curently in the briefing process. (See Civil Action No.

1: 1Ocv564-LG-RH at Februar 22,2011 Text Order & Februar 25, 2011 TextOrder).

In addition to the pending Motion to Dismiss, a Motion to Consolidate cases has been filed.,

(See Civil Action NO.1: 1 Ocv564- LG- RH at Motion to Consolidate, Docket No. 27). The Motion

to Consolidate seeks to combine the Hancock County lawsuit, ths lawsuit, and several others that

have been fied by NAACP organizations in some Mississippi counties.4 As of this wrting, no

3 The Attorney General's Memorandum Supporting his Motion to Dismiss fied on February 23, 201 I in the

Hancock County action (Civil Action No. I: I Ocv564-LG-RHW, Docket No. 20J explains the numerous reasons thatHancock County's Board has no valid claims in that case. Many of those arguments likewise explain why plaintiffs'claims in this action have no merit. Indeed, the defendmt Madison County Republican Executive Committee hasseen fit to essentially duplicate that February 23, 201 I brief in support of its own arguments in opposition to theplaintiffs' complaint in this action. (See MCREC Mem., Docket No. 13J.

4 Various local branches of the NAACP and some individual voters have fied at least eight lawsuits in theSouthern District and eight lawsuits in the Northern District, as of this writing. The NAACP suits have been fiedagainst respective Mississippi county Boards of "Supervisors, and others, as defendants. The plaintiffs in theNAACP cases have made virtally the same allegations and requests for relief as those advanced by the MadisonBoard and the Hancock Board in their cases. The only substantive distinctions are the alignment of the parties, and

the statistical numbers before the courts with respect to each county involved. Notably, even though only a smallnumber of the county boards and other named defendants have responded to the NAACP complaints in those casesso far, several counties reportedly intend to resist the relief requested (i.e., moving the qualifying deadline andrequiring the counties to re-draw their supervisor district lines in the middle of the current election cycle). (See, e.g.,Civil Action No. 3:llcvI21-HTW -LRA, Answer and Defenses ofCopiah County Board of Supervisors, Docket No.13; Civil Action No. 5:11cv30-DPJ-FKB, Answer and Defenses of Adams County Board of Supervisors, Docket No.13). Meanwhile, other county boards have been weighing their options behind closed doors. (See, e.g., John Suratt,

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decision on the Motion to Consolidate has been issued by Chief Judge Guiola.

3. This Lawsuit and the Plaintiffs' Motion for TRO.

. Meanwhile, the Madison Board filed this lawsuit on February 25, 2011. (Complaint, Docket

No. I). The named defendants are the State of Mississippi, the Circuit Clerk/County Registrar, the

county Republican Executive Commttee, and the county Democratic Executive Commttee. (I d.).

The only substantive difference between this lawsuit and the Hancock County lawsuit is that

the Board has been joined by an additional plaintiff, individual Madison County voter and attorney.

John W. Robinson, III. Plaintiffs fied a Motion for Temporary Restraining Order and Prelimiar

Injunction along with their Complaint. (Motion for Temporary Restraining Order and Preliminar

Injunction, Docket No.2). On March 1, 2011, the Cour held a telephonic conference on the motion.

The Cour subsequently entered an order denying the plaintiffs' Motion for Temporary Restraing

Order and setting a briefing schedule on plaintiffs' claim for a preliminar injunction. (Order,

Docket No.3). The paries are scheduled to appear for a hearng on April 1, 2011. (Id.).

The March I, 2011 qualifying deadline established by the Mississippi Legislatue has now

passed. Candidates have qualified under the existing distrct lines. The names of candidates for

office have been published under the curent election boundares. (See Qualifing deadline for

county elections passes, all five supervisor races are contested, MADISON COUNTY JOURNAL, March

1, 2011, Ex. "G").

B. Facts Specific to the Merits of Plaintiffs' Claims.

The facts relevant to the merits are undisputed. Madison CountY maintains five supervisor

Amite hearings on new district lines set, ENTERPRISE-JOURNAL, March 8, 201 I, Ex. "F"J.

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distrcts as required by state constitution and statute. See Miss. CONST., ar. 6 170; Miss. CODE

ANN. 19-3-1. Those distrct boundaes are established by the county Board of Supervisors. See

Miss. CODE AN. 23-15-281 & -283. The curent Madison County supervisor voting distrct.

boundaries were drawn by the Madison Board. The boundares were adopted and pre-cIeared by

the Deparent of Justice in March 2003, based upon 2000 census population data. (See Plaintiffs'

Motion for TRO and Injunction at Ex. "A," Docket No. 2). The distrcts have not since been

adjudged to violate constitutional, or state or federal law.

The Census Bureau released its 2010 population data on or about February 4, 2011.

(Complaint at~2; Docket No.1). The plaintiffs allege there has been an increase and shifts in

population and voting age population iIi Madison County evidenced by the 2010 data. (Id. at ~~ 17-

18). As such, plaintiffs claim use of the curent distrct boundaries in the curent election cycle

would violate the "one person, one vote" principle. (Id. at ~ 20).

Madison County's compliance with the "OIle":person, one-vote" principle - derived from the

Foureenth Amendment - depends, in part, upon the percentage deviation of the population among

the five supervisor distrcts. According to the plaintiffs, the 2010 census data shows an overall

maximum deviation among the five supervisor distrcts of thirt-eight point twenty-one percent

(38.21 %). (Id. at~ 18). More specifically, the plaintiffs' proffered numbers show there isa high

deviation of nineteen point thirt-seven percent (19.37%) in district three and a low deviation of

. eighteen point eighty-four percent (18.84%) in distrct five. (Id. at ~~ 16-21)

Certin regulations and deadlines pertaining to county elections, are prescribed by the

Mississippi Legislatue. See Miss. CODE ANN. 23-15-1 et seq. The qualifying period for

supervisor candidates in each distrct is established by statute. County-wide distrct qualification

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Case 3:11-cv-00119-WHB -LRA Document 16 Filed03/18/11 Page 8 of 28

began on Januar 1,2011 and the deadline is March 1,2011. See Miss. CODE AN. 23-15-299(2).

. Par primar elections wil be held in August 2011 and the general election wil take place in

November 201 1. See Miss. CODE ANN. 23-15-191 & -193~

If new distrct . lines wil be used for 201 1 elections, the lines must be re-drawi and pre-

cleared by June 2, 2011. See MIss. CODE ANN. 23-15-285 (mandating any change in lines must

be done at least two months prior to anyelection). Other time considerations are relevant. Absentee

ballots must be prepared and printed: Absentee ballots must be available fort-five (45) days in

advance of the August 2 primaries (i.e., June 18,2011). See Miss. CODE ANN. 23-15-649.

Departent of Justice regulations require any new lines to he pre:'cleared pursuant to Section

Five of the Voting Rights Act of 1965. Deparent of Justice can take up to sixty (60) days to

approve lines. 28 C.F.R. 51.9(a). Departent ofJustice also may extend that time ifit requires

more information before pre-clearance, or if it objects to any part ofthe redistrcting plan. 28 C.F.R.

51.9(c).

Based on these facts, plaintiffs now seek a judgment: (1) declaring that the curent supervisor

distrct lines are unconstitutional; (2) declarg that the Mississippi Legislature's statutory qualifying

deadline for county candidates is unconstitutional, as applied to plaintiffs; and (3) enjoining the

Mississippi Legislatue's county candidate qualifying deadline. (Complaint at pp. 9-10, Docket No.

1). Additionally, and implicit in plaintiffs' relief, the Cour would have to establish a new qualifying

deadline. The relief should be denied and their claims should be dismissed with prejudice.

III. Legal Analysis.

A. The Madison Board Has Not Presented Any "Case or Controversy."

The Curt should first decline to hear Madison Board's case. Federal courts may not

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Case 3: 11-cv-00119-WHB -LRA Document 16 Filed 03/18/11 Page 9 of 28

consider a lawsuit that is not an "actual controversy," pursuant to Ar. il ofthe Constitution and th

Federal Declaratory Judgment Act, 28 U.S.C. 2201. Steffel v. Thompson, 415 U.S. 452, 458

(1974). The Madison Board has the burden of establishing an "actual controversy," i. e., its stading.See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The stadig doctre's core inquir is

"whether the litigant is entitled to have.the cour decide the merits ofthe dispute or of paricular

issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). To prove stading, "a plaintiff must show: (1)

it has suffered, or immnently wil suffer, a concrete and pariCularized injur~in-fact; (2) the injur

is fairly traceable to the defendant's conduct; and (3) a favorable judgment is likely to redress the

njury." Houston Chronicle Publg Co. v: City of League City, Tex., 488 F.3d 613, 617 (5th Cir.2007).. None of these elements are present here.

1. The Madison Board Does Not Have Standing to Represent Voters or Sue theDefendants on Fourteenth Amendment Grounds.

As an intial matter, federal law says that the Madison Board - as a political subdivision of

the State - does not have standing here to challenge Miss. Code An. 23-15-299(2) on behalf o

voters, or to sue the State and other political subdivisions. As explained by the Second Circui"(p)olitical subdivisions of a state may not challenge the validity of a state statute under th

Foureenth Amendment." City of New Yorkv. Richardson, 473 F.2d 923, 929 (2nd Cir. 1973), cert.

denied, 412 U.S. 950. The Fifth Circuit has consistently held the same. See Town of Ball v. Rapides

Parish Police Jury, 746 F.2d 1049, 1051 & n. 1 (5th Cir. 1984) (political subdivison did not have

standing to sue the state or another political subdivision under the F ourteenth Amendment); Appling

v. Municipal Electric Authority of Georgia, 621 F.2d 1301, 1307-08 (5th Cir. 1980) (political

subdivisions do not have same constitutional rights as individuals); City of Safety Harbor v

Birchfield, 529 F.2d 1251, 1254-55 (51h Cir. 1976) (municipal corporation could not assert

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constitutional civil rights challenge as a plaintiff). For this reason, the Madison Board does not have

standing to bring this action, whether it be allegedly on behalf of voters, or simply againt the state

or other political subdivisions lie the defendants.

2. The Madison Board Has No Injury-in-fact..

Even if Madison Board is allowed to brig Foureenth Amendment challenges against the

state or other political subdivisions, the Madison Board's claims specifically do not meet the well-

established three-par test for stading, The Madison Board has no injur-in:-fact. It is only

concerned about a possible voter challenge to the 2011 elections if the legislatively mandated

qualifying deadline is not moved. The Madison Board. has not been sued. Rather, the Madison

Board claims there isa threat offuture constitutional challenges to its 2011 elections, and costs that

the Board might incur if future special elections are held. (Complait at'r 38, Docket No.1). That

is not an "injury-in-fact." It is a merely a conjectural har.

The Madison Board's injur claim is insufficient. Federal law does not require it to

implement 20 i 0 census data, in the middle of the 2011 election cycle, to avoid a "one person, one

vote" violation. The United States Distrct Cour for the Southern Distrct of Mississippi previously

. addressed an actual controversy that is virtally identical to the circumstances here. That court

determned that the use of existing boundary lines in county elections would not violate the "one-

person, one-vote" principle when receipt of the "new" census data left insuffcient time to redistrct.

Bryant v. Lawrence County, Mississippi, 814 F.Supp. 1346 (S.D. Miss. 1993).

In Bryant, citizens of Lawrence County challenged a supervisor distrcting plan formulated

in 1984. /d. at 1348. The plan was utilized for supervisor elections in 1991 just after the 1990

census data was available. Id. at 1352. The County had attempted to redistrct based on the 1990

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Case 3: 11-cv-00119-WHB -LRA Document 16 Filed 03/18/11 . Page 11 of 28

data, but was unable to gain pre-clearance from the Deparent of Justice prior to the 1991. elections

in the four year cycle. Id. Voters sued Lawrence County on "one person, one vote," and other

grounds, to require special. elections with distrcts devised using the fresh 1990 data. Id.

After reviewing other federal decisions where similar census-timing issues were involved,

and resolved in favor of the local governents, the court flatly rejected the plaintiffs ' contention that

special elections were required due to a "one person, one vote" violation. The court explaied

when a political body is operating under a constitutional plan (one pre-cleared by theJustice Departent and not challenged in Court, or either agreed to by the paries to

.litigatioii and then pre-cleared by the Justice Deparent as is the situation in thscase) that such body must have a reasonable time after each decennal census in

order to develop another plan and have it pre..cleared by the Justice Deparent.Elections held under such a previously pre-cleared plan, in the year that new censusdata becomes available, but before redistrcting can take place, should not be setaside and new elections ordered.

/d. at 1354 (emphasis added). The Cour ultimately held there was no actionable "one person, one

vote" claim alleged by the plaintiffs in Bryant. Id.5

Here, the same reasoning applies to the facts facing the Madison Board. The curent

supervisor distrcts conform to a 2003 pre-cleared plan based on 2000 census data. If the Board

complies with the Mississippi Legislatue's directive, and proceeds on the statutory timetable for

the curent 2011 election cycle, then elections on lines drawn under the 2000 census wil not

produce a valid "one person, one vote" claim against the county. Using the curent lines would not

cause it any injur.

5 The plaintiffs may argue Bryant and the other cases regarding special elections are not relevant here, just

as they argued before the Court denied their Temporary Restraining Order. That argument is wrong and relies on adistinction without a difference. The plaintiffs fied this suit in the middle of the current election cycle before anyelections have actually taken place. Special elections are thus not part of the relief at issue. However, the reasonwhy special elections were not ordered in Bryant, and the other cases directly on point, is the same reason why therelief requested by plaintiffs here is not warranted. Elections on current lines, the same year as census data becomesavailable, are not susceptible to a valid ~'one person, one vote" challenge.

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3. The Madison Board Has No "Fairly Traceable" Injury.

The Madison Board claims its injur is a fear of expensive lawsuits and other costs

associated with election challenges. Even assuming that injur satisfies Arcle II, which it does

not, there is no proof that the injur has been (or would be) perpetrated by the defendants here. The

Madison Board is responsible for drawing the districtlines and compliance with "one person, one

vote," not the defendats. The Census Bureau collected the county census data and released it in

the middle of the curent election cycle. The Attorney General is not aware of any challenge, or

threat of any challenge, the defendants would make if the curent lines are not re-drawn

immediately. The Madison Board has not come forward with any proofthat such a challenge is

intended. The defendants are not the cause of the supposed injur the Madison Board complains

it is facing.

4. A Favorable Judgment Would Not Remedy the Madison Board's Alleged

Injury.

Again assuming the Madison Board could prove the other requirements for stading, which

they cannot, a declaratory judgment and injunction would not solve the problem the Madison Board

claims to face for at least three reasons. First, the Madison Board has not named any defendants that

might file suit against it. If-as it claims - the Madison Board's desire is to immunze itself against

a futue suit filed by anyone who is not a defendant, a judgment from the Court would not be

binding~ See, e.g., Fabela v. City of Farmers Branch, Texas, 2010 WL 4610143, at *2 (N.D. Tex.

Nov. 15, 2010) (rejecting res judicata defense to voting rights claim based on prior litigation of issue

against different paries).

Second, and similar, to the extent that the Board is concerned that it might be sued for "one

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person, one vote," no order of this Cour can prevent that contigency. An injunction or declaration

may provide a persuasive but not a legally binding defense to a futue action. It would not save the

Board from having to respond to a suit, if such an event ever occurs.6

Thrd, there is no proof-aside from speculation - that if the qualifyg date is moved by this

Court, the Madison Board wil be able to redraw its distrcts and get pre-clearance from the

Deparent of Justice in tie for the planed elections. The Cour should not simply assume that

modification of the Mississippi Legislatue's statutorily mandated deadlines wil produce a pre-

cleared plan in time to meet new deadlines prescribed by the Cour. See 28 C.F.R. 5L.9(a) & (c)

(sixty (60) days for Deparent of Justice consideration of redistrcting plans, and additional time

if objections are lodged or fuher information is requested).

Additionally, public discord created by the Madison Board's assembly of its Redistrcting

Committee, and other public comment issues, may cause fuher delays in putting together a valid

redistricting plan. (See, e.g., Steven G. Watson, Residents 'don't trut' supervisors, MADISON

COUNTY JOURNAL, Februar 23, 2011, Ex. "B"; Editorial, We don't trust the supervisors either,

Madison County Journal, March 2, 2011, Ex. "C"; Steven G. Watson, Candidates watchdog

redistricting, Madison County Journal, March 2,2011, Ex. "D"). There is no assurance the relief

sought by the Madison Board would remedy the problem it has invented for itself.

In sum, the Madison Board does not have any right to sue the defendants based on the

Fourteenth Amendment. Furthermore, the elements required for Article III standing are not present. .

6 Additionally, and itonically, if the Madison Board obtains a declaration that its current district lines are

unconstitutional, that would be an open invitation for suits should it be unable to secure a pre-cleared plan fromDepartment of Justice before June 2. Its choice to essentially advocate against itself in that regard relies on ahaphazard gamble that Department of Justice wil approve any new lines in time to hold timely primary elections thisSummer.

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The Cour lacks subject matter jursdiction as to the Madison Board's dispute. Accordingly, the

relief sought by the Madison Board should be denied and its claims should be dismissed by way of

surar judgment.

B. Plaintiffs' Motion for Declaratory and Injunctive Relief Should be Denied and Their

Case Dismissed With Prejudice.

As explained above, the Madison Board's claims should be dismissed altogether because it

has no standing to assert them. Additionally, and even assuming the Madison Board does have

standing, both of the plaintiffs' claims for relief should be denied, and their claims dismissed on the

merits.

1. Plaintiffs are not Entitled to Declaratory Relief.

As a staring point, under Count I oftheir Complaiiit, the plaintiffs have asked for a two-fold

declaration that holds: (1) the curent Madison County supervisor lines are unconstitutional ifused

in the 2011 elections; and (2) the Mississippi Legislatue's March 1 qualifying deadline is

unconstitutional as applied to Madison County. Under federal law , declaratory relief on either front

is inappropriate. Madison County's use of

the current supervisor distrct lines in the 2011 election

cycle would not create an actionable "one person, one vote" problem. Therefore, the Cour should

not alter the Legislatue's election time table. The Cour should not legislate from the bench for

Madison County by declarng the curent lines, or the Mississippi Legislatue's qualifying deadline,

unconstitutionaL.

In Reynolds v. Sims, the United States Supreme Court's landmark case regarding "one

person, one vote" rights, the Cour pointed out that reapportionment of election distrcts is primarily

a concern for the legislative branches and explained judicial relief is only appropriate when a

governental unit fails to reapportion "in a timely fashion after having had an adequate opportunity

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to do so." 377 U.S. 533, 586(1964) (emphasis added). Nobody can validly argue that Madison

county has had an adequate opportty to draw new.lnes, or could be faulted if new lies are not

used in the August and November 2011 elections. Even so, plaintiffs have inappropriately asked

this Cour to stretch the "one person, one vote" principle to achieve a desired political result.

The crucial issue is whether, if this federal Cour does not legislate new election deadlines

for Madison County, would the county violate "one person, one vote" in holding elections under the

curent lines? Stated differently, given the facts which plaintiffs forecast wil play out if the curent

supervisor lines are used, would they produce a valid "one person, one vote" challenge? The prior

federal courts that have examined the same issue, on identical facts, have flatly said "no." See

French v. Boner, 963 F.2d 890,891 (6th Cir. 1992), cert. denied, 506 U.S. 954; Ramos v. Illnois,

976F.2d335, 340-41 (7thCir. 1992); Republican Part of Oregon v. Keisling, 959 F.2d 144, 145-46

(9th Cir. 1992), cert. denied, 504 U.S. 914; Kahn v.Grifn, 2004 WL 1635846, at *6 (D. Minn. July

20,2004), certifed question answered by 71 N.W. 2d 815 (Min. 2005); Fairley, 814 F.Supp. at

1343-46; Bryant, 814 F.Supp. at 1354.

The same reasoning of all these other federal cours applies to the plaintiffs' Complaint.

Madison County's curent supervisor distrct lines conform to a pre-cleared plan based on 2000

census data. If the Madison County supervisor elections proceed under the current lines, and the

county continues to comply with the Mississippi Legislatue's statutory timetable for the ongoing

2011 election cycle, then nobody has a valid claim for "one person, one vote." The entire basis for

plaintiffs' claim for declaratory relief

(Count I) is misguided. Their motion should be denied andits declaratory judgment count should be dismissed by way of summary judgment.

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96JF.2d at 891 (no valid "one person, one vote" claim in year census data became available);

Ramos, 976 F.2d at 340-41 (no constitutional violation in four year delay of implementing new

Census data); Republican Party of Oregon, 959 F.2d at 145-46 (redistrcting causing temporary

dilution of voting power did not merit constitutional violation or require special elections); Kahn,

2004 WL 1635846, at *6 (alleged "one person, one vote" deviation did not require special elections);

Fairley, 814 F.Supp. at 1343-46 (no "one person, one vote" violation requiring special elections in

same year as new census data became available).

The same "one person, one vote" controversy arses every twenty years for elected offces

involving fpin year terms. Federal cours have recognzed that the issue is bound to occur every

fifth election cycle, yet unformly have held that the phenomenon does not create the automatic "one

person, one vote" violation as claimed by plaintiffs here. For example, in Ramos, the cour analyzed

that issue and held against the plaintiffs there:

(t)he four-year terms that Chicago aldermen serve merely indicate that every fifthelection (i.e. when the election year falls on the same year that the new census databecomes available) likely wil result in a four-year delay in using the new census

data. But this simple consequence of the two different schedules (i.e. census everyten years, elections every four) does not diminish the voting power of any protectedminority; there is merely a four-year time lag that occurs every other decade betweenredistrcting and elections. Thus, accepting their allegations as tre, we hold .that theplaintiffs can prove no set of facts that would lead us to believe that the Ilinoisredistrcting scheme denies any class of citizens full paricipation in Chicago'spolitical process.

Ramos, 976 F.2d at 339-41. Similarly, as another example, the Kahn court observed the problem

was a consequence of the combination of the election and census cycles and maintained the court

should not interfere with state regulation of elections:

(o)f more concern to the Cour, however, is the probability, recognized by plaintiffsat oral argument, that awarding plaintiffs the relief they seek in this instance wouldeffectively require a similar action at least every 20 years when the curent situation

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Case 3: 11-cv-00119-WHB -LRA Document 16. Filed 03/18/11 Page 18 of 28

is rpeated. It could require simlar action every 10 years in order to ensure that newcensus data is incorporated and put into action as soon as possible, and could requiremor frequent action if Minesota decides to redistrct on a more frequent schedule.As the Sixth Circuit noted, the only way to avoid such a problem would be to orderthe City to limit term of office and the election cycle-a signficant intederence inthe State's right to regulate its elections that would be inappropriate absent greaterprovocation.

Kahn, 2004 WL 1635846, at *6;. 7 (citing French, 963 F.2d at 891-92). . Established federal Jaw does

not allow anyone to ru to the courouse every twenty years to claim "one person, one vote"

violations. Precedent says the four year time lag between new census data and the next election

cycle does not diminsh anyone's constitutional voting rights.

Moreover, the size of the alleged deviation does not render elections under the curent

Madison lines per se invalid, as the plaintiffs erroneously believe. In French, where a total

deviation of over one hundred nineteen percent (119%) between two distrcts was at issue, the court

explained

in any system of representative governent, it is inevitable that some elections forfour-year or longer term wil occur on the cusp of the decennial census.

The terms inevitably wil last well into the next decade; and, depending on shifts inpopulation in the preceding decade, the representation may be unequal in the sensethat the distrcts no longer meet a one-person, one-vote test under the new census.

...Theprinciples of mathematical equality and majority rule are important, but weshould not allow them to outweigh all other factors in reviewing the time ofelections.

...We do not believe that considerations of mathematical equality in representationor the presumption in favor of redistrcting every ten years outweigh the

considerations outlined above concernng the validity offour-yearterms, the settledexpectations of voters and elected officials, the costs of the elections, and the needfor stability and continuity of office....

French, 963 F.2d at 891-92. The one hundred and nineteen percent (119%) in French simply did

not create a valid "one person, one vote" claim given the release of the census data was durng the

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election cycle.

Here, the facts are the same ths time around. The curent Madison County supervsor

distrct lines were approved by the Madison Board and pre-cleared by Deparent of Justice in

2003. Those lines have never been determined to violate anyone's "one person, one vote" right, or

any other constitutional rights. Just like in all the other federal cases involving similar facts, it

would not violate anyone's rights to use the curent lines in the 2011 Madison County supervisor

election cycle that is well underway.

More specifically, plaintiffs allege the population distrbution of Madison CoUnty has

changed since the 2000 Census. The 2010 figures came out little more than a month ago, and after

the 2011 election cycle commenced. Based on their numbers submitted to the Cour, the plaintiffs

claim Madison County currently has a deviation ~fthirt-eight point twenty-one (38.21 %) given the

current supervisor lines. An alleged high deviation of nineteen pointthirt-seven percent (19.3 7%)

exists in distrct thee and a low deviation of eighteen point eighty-four percent (18.84%) in distrct

five.7 These deviations are far smaller than French and akn to the deviations in Bryant and Fairley.

In any event, the timing of the release of the 2010 census data is actually dispositive here. The Cour

should follow the guidance provided by all the prior opinions on the subject and hold that plaintiffs

do not have a legally valid claim.

There is no credible arguent that using the curent supervisor lines would create an

actionable "one person, one vote" violation. The plaintiffs consequently cannot succeed on the

merits of their claims that the current lines are unconstitutional, or that deadlines must be moved to

7 In Fairley, Judge Pickering offered a statistical analysis explaining why deviations similar to the

percentages offered by the plaintiffs here actually reveal only a minimal variation in voter influence. 814 F.Supp. at1336-38. The math used in Fairley is equally applicable here and shows why the deviation claimed by plintiffs isnot as drastic as they complain.

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accommodate them. Therefore, plaintiffs' injunctive relief should be denied.

b. There is no Threat of Irreparable Injury.

Even assuming plaintiffs might succeed on the merits, which is not tre, the plaintiffs also

have not shown they would suffer irreparable harm from the use of the curent supervsor distrct

lines in the curent election cycle, or if the Cour does not change the deadlines applicable to the

2011 elections. The reasoning of the cases cited above explain why plaintiffs have no likeliood

of success on the merits and equally demonstrates why plaitiffs do not face any threat of irreparable

injur here. See French, 963 F.2d at 891; Ramos, 976 F.2d at 340-41; Republican Party of Oregon,

959 F.2d at 145-46; Kahn v.Grin, 2004 WL 1635846, at *6; Fairley, 814 F.Supp. at 1343-46;

Bryant, 814 F.Supp. at 1354. . Additionally, in Reynolds, cited above and repeatedly by plaintiffs,

the CoUr explained the reasons why plaintiffs have no ireparable injur here:

(r)eallocation of legislative seats every 10 years coincides with the prescribedpractice in 41 of the States, often honored more in the breach than the observance,however.... Limitations on the frequency of reapportonment are justified by theneed for stability and continuity in the organization of the legislative system,

although undoubtedly reapportoning no more frequently than every 10 years leads.to some imbalance in the population of distrcts toward the end of

the decennialperiod and also to the development of resistance to change on the part of someincumbent legislators. In substance, we do not regard the Equal Protection Clauseas requiring daily, monthly, annual or biennal reapportionment, so long as a Statehas a reasonably conceived plan for periodic readjustment of legislativerepresentation. While we do not intend to indicate that decennal reapportionmentis a constitutional requisite, compliance with such an approach would clearly meetthe minimal requirements for maintainig a reasonably curent scheme oflegislativerepresentation.

Reynolds, 377 U.S. at 583-84. Even the analysis of plaintiffs' best case explains they do not have

a valid "one person, one vote" concern just where new census data was released durng this year's

ongoing election cycle. Plaintiffs have not demonstrated any irreparable injury. The factor merits

denial of their claims for injunctive relief.

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c. Plaintiffs' Alleged Threat of Injury is Outweighed by Harm to Other

Interested Partes.

The balance of harms first weighs against injUnctive reliefbecause there is no threat of injur

to plaintiffs, as explained above. Beyond that fact, the defendants and other interested paries would

suffer more than plaintiffs if any injunction is imposed.

Candidates have already qualified under the existing lines. The names of candidates for

office have been published and classified according to the curent election boundares. (See

Qualifing deadline for county elections passes, all five supervisor races are contested, MADISON. .COUNTY JOURNAL, March 1,2011, Ex. "G"). Moving the qualifying deadline or mandating that new

lines be used in 2011 would create confusion for the defendants, and all resideIts of Madison

County. Meanwhile, there is no certainty that any qualifying delay, or other modification of

deadlines and a mandatory injunction, would produce a new pre-cleared plan in time. If new lines

are hastily put in place, all of the voters the plaintiffs claim to protect would suddenly not know who

is qualified, what distrct they wil be votlng in, and may not be able to have their input regarding

. redistrcting considered.

The Departent ofJustice regulations and Mississippi statutes. applicable to the redistrcting

and 2011 election processes evidence this point. Primares are due to be held on August 2.

Therefore, the lines must be re-drawn and pre-cleared by June 2, 2011. See Miss. CODE ANN. 23-

15-285 (explaining any change in lines must be done at least two months prior to any election).8 The

DepartentofJustice can take up to sixty (60) days to approve any plan. 28 C.F.R. 51.9(a). The

8 Other time considerations are also at issue and demonstrate why accelerating the Madison County

redistricting process would be problematic. Absentee voter ballots must be prepared and printed. Those ballotsmust be identical in form to the ballots used in the election and available forty-five (45) days in advance of theAugust 2 primary election (i.e:, June 18,201 I). Miss. Code Ann. 23-15-649.

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. Departent of Justice also may extend that time if it requires more inormation, or if it obj ects to

any par ofthe plan. 28 C.F.R. S1.9(c). Whle that process is in motion, the candidates (and the

voting public that the plaintiffs claim to be protecting), would not know their district lines or the

. candidates. Moreover, before Deparent of Justice even gets involved, if the Cour usurs the

Mississippi Legislatue and endorses a mad rush to reapportionment, public input would be

diminished.

In other words, shriing Madison County's redistrcting time frame - essentially self-

inficted by its Board - is more likely to create confsion and harm everyone, rather than fix any

problems. There is no proof, aside from speculation, that if the supervisor qualifying date is moved

by an order from this Cour or immediate redistrcting occurs, the Board wil be able to re-draw its

districts, keep the public informed, hold suffcient heargs, and get pre-clearance from the

Deparent of Justice in time for the elections. The Cour should not simply assume that ordering

more time for qualifying, or mandating a new time frame in which the process must be complete,

wil equate to approval of a new plan from Deparment of Justice. Defendants and everyone else

(including the plaintiffs) will be better served if the Madison Board takes its time to get Madison

County's redistrcting correct.9 Reasoned analysis ofthe balance of harms injunction factor weighs

heavily against granting plaintiffs' requested relief.

4. The Public Would be Harmed by an Injunction.

In addition to all the other factors that weigh against plaintiffs' requested injunctive relief,

9 Additionally, plaintiffs have failed t recognize or address the fact that the Department of Justice likely

requires pre-clearance of any injunction issued by this Court that would disrupt the election cycle. 28 C.F.R. 51. i 8(explaining changes affecting voting ordered by a federal court and/or subsequent changes by governmental bodynecessitated by court order subject to pre-clearance requirements). Obviously, this lawsuit, and the plaintiffs'motion for an injunction, have come way too late to derail the current election cycle.

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and contrar to the plaintiffs' allegations regarding their claimed interests, all of the citizens of

Madison County, and Mississippi, would be better served if the Cour does not interfere in the

county's 2011 election cycle. In a situation where the timing of the election cycle was at issue, a

three-judge redistrcting. panel of the United States Distrct Cour for the Southern Distrct of

Mississippi explained why the public interest would be hared if it enjoined a qualifying deadline

to enable the Legislatue to get pre-clearance from Deparent of Justice. See Smith v. Clark, 189

F.Supp.2d 529 (S.D. Miss. 2002)~

In Smith, the Cour was faced with a request to enjoin the qualifying deadline for

congressional elections in 2002, but the public interest factors identified there are equally relevant

now in the scenario involving Madison County:

...we are convinced that a postponement of (the qualifying) deadline would likelycreate confusion, misapprehension and burdens for the voters, for the politicalparies, and for the candidates. As we said in our (previous) order, many voters maywant to partcipate in the election process to a greater extent than mere voting. Theywant to know the candidates personally, to select their choice, to give money to theirselection, and to organize the people in their precincts or counties in the campaignfor their choice. Given that all previous distrcts are being cross-mixed by the loSsof one congressional representative, resolving these new problems wil take all thepre-primary.time that the present statute allows. If we delay the establishment ofelection distrcts and advance qualifyng dates, such voters who want to becomefully involved in the process wil not timely know in which distrct they are goingto be placed, and thus will not timely know where and with whom to becomeinvolved. The same situation wil exist for the candidates. Postponing the electionschedule means that the candidates and political paries would encounter campaignand election burdens - that is, significant time constraints on gettng acquainted withnew voters, establishing organzations in new election districts and the multiple newprecincts and counties therein, raising campaign fuds within the new distrcts,developing strategies for particular geographic areas, etc.

189 F.Supp.2d at 535-36. Just like in Smith, extending the qualifying deadline in Madison County

would be problematic and risks confusing voters and candidates. A candidate who qualifies after

the curent deadline (which has already passed) would be at risk of coming off the ballot. Voters

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who plan to vote for her, or give money to the campaign, would be hared by such a measure.

The same tye of reasoning applies to any proposal to have new supervsor distrcts in place

by a specific date in the middle of Madison County's curent election cycle. Shrnkg the time

frame in which voters and candidates can be certn of who is ruing, where they are rung, and

who candidates wil represent, would inappropriately cause much more har than it would good.

Specifically, uncertinty already exists because of the Madison Board's actions and would

only be exacerbated by giving plaintiffs an injunction. Originally, "(s)upervsors had planed to

delay the redistrcting and use existing distrct lines in the 2011 election because the 2010 census

numbers did not become available until (Februar)." (See Steven G. Watson, Candidates watchdog

redistricting, MADISON COUNTY JOURNAL, March 2, 2011, Ex. "D"). On March 1, 2011, the public

was told that the qualifying deadline passed and candidates were set to ru under the curent distrct

lines. (See Qualifing deadline for county elections passes, all five supervisor races are contested,

MADISON COUNTY JOURNAL, March 1,2011, Ex. "G"). Meanwhile, the Madison Board changed

its mind and now wants to rush to re-draw new lines. (See Steven G. Watson, Candidates watchdog

redistricting, MADISON COUNTY JOURNAL, March 2, 2011, Ex. "D").

Some view the Madison Board's flp-flop decision and this lawsuit as "erratic behavior (that)

is nothing more than a desperate ploy to help Karl Bans maintain his reign while sticking it to D.L.

Smith ~ and there's no easy way to do that." (See Editorial, We don't trst the supervisors either,

MADISON COUNTY JOURNAL, March 2,20 II, Ex. "C"). Others are concerned because re-drawing

the lines wil impact the distrcts where candidates may ru, and where they must campaign. (See

Steven G. Watson, Candidates watchdog redistricting, MADISON COUNTY JOURNAL, March 2, 2011,

Ex. "D"). Candidates have even said publicly that lines should not be re-drawn before the upcoming

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election because of the confsion new lines would create. (See Steven G. Watson, Smith could face

Redd in remap, MADISON COUNTY JOURNAL, March 16,2011, Ex. "H").IO If the Cour grants

injunctive relief, there are more potential problems than there would be in maintaining the status

quo. The Cour should head off the problems by denying plaintiffs' requested injunctive relief,

rather than causing more problems by granting it.

Additionally, the public interest of Mississippi as a whole cuts against granting plaintiffs'

requested injunctive relief. As discussed and noted above, a similar case filed by Madison County's

.lawyers is pending in Hancock County. There are also currently at least sixteen other cases fied in

the Nortern and Southern Distrcts by branches of the NAACP that involve the exact same

arguments and seek the same legal relief. Allowing Madison County - or any other counties - an

unwaranted exception to the Legislatue's qualifying deadline, or laying down an il-founded

precedent that Mississippi counties' election boundaries are unconstitutional (and must be redrawn

and pre-cleared immediately) in the middle of the curent election cycle, would throw elections

across the state into disaray. Moreover, given that this issue recurs every score of years due to the

intersection of four year terms of office and the release of decennal census data, uncertinty wil

envelop Mississippi's local elections every twenty years if the plaintiffs are permitted to succeed.

In sum, the public - in Madison County and state-w~de - wil be better served here if the

Madison Board follows the law established by the Mississippi Legislatue, the county's voters have

10 The March 16 news story also goes on to explain cite comments from the Board attorney that theMadison Board may not agree on a proposed plan at the upcoming March 21 hearing, but that the Madison Board'schances in this Court wil improve if an approved plan can be sent to Department of Justice before the Court's April1 hearing. Obviously, the Madison Board's recent rush to re-draw lines and push them through the processunfortunately runs the risk of skewing the process and short-cutting around public review and input.

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the certinty of elections under the curent pre-cleared lines, and the Madison Board taes adequate

time to get its redistrctig correct. The public interest weighs against an injunction in this case and

that is another reason the count for injunctive relief should be denied.

IV . Conclusion.

In sum, Madison County cannot be faulted under "one person, one vote" for being caught

in the convergence of the curent election cycle and release of offcial census data. But, by the same

token, its Board and one of its residents cannot abuse that phenomenon that occurs every twenty

years to undo an act of the Mississippi Legislatue or manufacture a private election time table.

The Cour should deny the Madison Board's motion, and dismiss its claims, because it has

no standig. Similarly, and even assumng the Madison Board has stading, both of the plaintiffs'

counts for declaratory and injunctive relief have no merit. The motion for prelimiar injunction

should be denied, and for the same reasons, the Court should dismiss the plaintiffs' claims with

prejudice by way of the Attorney General's separately fied motion for sumary judgment.

THIS the 18th day of March, 2011.

Respectfully submitted,

JIM HOOD, ATTORNY GENERA OFTHE STATE OF MISSISSIPPI ON BEHALFOF THE STATE OF MISSISSIPPI

Offce of the Attorney General

By: S/Justin L. Matheny

Harold E. Pizzetta, III (Bar No. 99867)hpizz~ago.state.ms. usJustin L. Matheny (Bar No. 100754)

jmath~ago.state.ms. us

Special Assistant Attorneys General

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P.O. Box 220Jackson, MS 39205Telephone: (601) 359-3680Facsimile: (601) 359-2003

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?:' .Case 3: 11-cv-00119-WHB -LRA Document 16 Filed 03/18/11 Page 28 of 28

CERTIICATE OF SERVICE

I hereby certify that the foregoing document has been filed electronically with the Clerk ofCour and thereby served on the followig persons:

Mark W. GarrgaTomme S. CardinMalissa WinfieldButler Snow 'mara Stevens & Canada, PLLCP.O. Box 6010Ridgeland, MS 39158-6010

Eric HamerHamer & AssociatesP.O. Box 2185Ridgeland, MS 39158

John W. Robinson, IIILaw Offices of John W. Robinson, III618 Cresent Blvd., Ste. 200Ridgeland, MS 29157

Cory T. WilsonWiloghby Law Group

P.O. Box 2305Madison, MS 39130

James H. HerrngHerrng, Long & Crews PCP.O. Box 344Canton, MS 39046

THIS the 18th day of March, 2011.

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S/Justin L. MathenyJustin L. Matheny


Exhibit to Hosemann's Rebuttal to Responses to Hosemann's Motion to Dismiss (NAACP v Barbour)

Documents