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Motion to Dismiss the Complaint by SOS Hoseman

Apr 08, 2018



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  • 8/7/2019 Motion to Dismiss the Complaint by SOS Hoseman


  • 8/7/2019 Motion to Dismiss the Complaint by SOS Hoseman


    United States Constitution, 42 U.S.C. $ 1983, Section 5 ofthe Voting Rights Act of 1965,42 U.S.C.$ 1973 (c), Section 2 of the Voting Rights Act of 1965,42 U.S.C. $ 1973 and Art. l2 $ 254, Miss.Const. (1890) and Art. 3 $ 14, Miss. Const. (1890). The plaintiffs seek a Declaratory Judgment thatthe defendants violated plaintiffs' rights and that the existing redistricting plans for the MississippiSenate and Mississippi House of Representatives are unconstitutionally malapportioned. Plaintiffsalso request that this Court issue a temporary restraining order until a three judge panel can beconvened. Because plaintiffs' claims are not ripe for adjudication the Court must grant the instantmotion to dismiss pursuant to Fed.R.Civ.P. l2(b)(l).

    STANDARD FOR Fed.R.Civ.P. 12(bXl)A district court may dismiss a complaint if the plaintiff fails to allege facts to support federal

    subject matter jurisdiction. Fed.R.Civ.P. 12(bX I ); Williamson v. Tucker ,645 F .2d 404,412-13 (5'hCir.), cert. denied 454 U.S. 897 (1981). A court may base its decision on the complaint alone, thecomplaint supplemented by undisputed facts evidenced in the record, or the complaint supplementedby undisputed facts plus the court's resolution of disputed facts. Ynclan v. Dept. of the Air Force,943F.2d 1388, 1390(5thCir. 1991). ThepartyassertingfederalsubjectmatterjurisdictionhastheburdenofproofonaRule l2(bXl)motiontodismiss. Rammingv.UnitedStates,23l F.3d 158, 160(5'h Cir. 1996).

    Ripeness is a necessary component of subject matter jurisdiction. Lopez v. City of Houston,617 F.3d 336 (5'h Cir. 2010). Lopezwas a redistricting case involving the City of Houston, Texas.The Court found that issues presented by appellants (plaintiffs) were not ripe for judicial review.Thus, it is clear that if a redistricting lawsuit is not ripe for judicial review, it must be dismissed forlack of subject matter jurisdiction.

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  • 8/7/2019 Motion to Dismiss the Complaint by SOS Hoseman


    PLAINTIFFS CLAIMS ARE NOT RIPE FOR ADJUDICATIONSecretary Hoseman does not dispute that the current legislative districts, drafted and

    implemented in2002, are malapportioned based on 20 I 0 census data. However, this fact alone doesnot permit this Court nor a three judge panel, to take away the responsibility of drawing legislativedistricts from the Mississippi Legislature, which is constitutionally mandated to draw lines. In factArticle 13, Section 254, of the Mississippi Constitution provides:

    The legislature shall at its regular session in the second yearfollowing the 1980 decennial census and every ten (10) yearsthereafter, and may, atany other time, byjoint resolution, by majorityvote of all members of each house, apportion the state in accordancewith the constitution of the state and of the United States intoconsecutively numbered senatorial and representative districts ofcontiguous tenitory. . . (emphasis added)

    According to the clear language ofthis constitutional provision, plaintiffs' claims are not ripeand will not be ripe until the Mississippi Legislature adjourns Sine Die concluding the 2012Legislative session, and all requirements of Section254 of the Mississippi Constitution of 1890 areexhausted.

    This section continues, "Should the legislature adjourn, without apportioning itself asrequired hereby, the governor by proclamation shall reconvene the legislature within thirty (30) daysin special apportionment session which shall not exceed thirty (30) consecutive days." Additionally,should the Legislature be unable to reach agreement on reapportionment during this time, a specialcommission consisting of the Chief Justice of the Supreme Court, Attorney General, Secretary ofState, Speaker of the House of Representatives and President Pro Tempore of the Senate shall beconvened and shall, within 180 days, reapportion the Legislature. Thus, before the Court can stepin and start drawing legislative districts, it should allow Article 13, Section 254 of the Mississippi

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    Constitution to take its course. As the Court stated in Watkins v. Mabus,771 F. Supp. 789 (S.D.Miss. 1991), "reapportionment is primarily the duty and responsibility of the state through itslegislature and other body, rather than of a federal court," McDaniel v. Sanchez,452U.S. 130, 138,101 S. Ct.2254,68 L. E., 724 (1981). The Legislature bears first responsibility for reapportioningitself and has not yet been given time to exact a plan of reapportionment. Wise v. Lipscomp, 437u.s.535, 539-40,57 L.E.2d4tt,98 S. Ct.2493 (t979).

    In Watkins vs Mabus this Court made special mention of the fact that under Art. 13, Section254, of the Mississippi Constitution the l99l Mississippi Legislature was not required to reapportionitself until 1992. However, the 1991 Legislature chose not to wait until 1992to reapportion itself,but did so in 1991, thus making the plaintiffs' claims ripe for adjudication. That is not the case here.As of today's date, the Mississippi Legislature has not approved a redistricting plan. Pursuant toSection 254 of the Mississippi Constitution, the Legislature is not required to act this year. It hasuntil the conclusion of the 2012Legislative session to act. Only if the Legislature fails to actin2012are the existing district lines unconstitutional. Until this occurs, this matter is not ripe and this Courthas no subject matter jurisdiction. Thus, plaintiffs have failed to meet their burden of proof inestablishing that their claims are ripe for adjudication.

    ALLOWING ELECTIONS TO PROCEED UNDER THE EXISTINGPLAN IS NOT UNCONSTITUTIONAL AS INTERIM RELIEFIn Watkins v. Mabus, this Court was faced with deciding whether to allow legislative

    elections to proceed under malapportioned legislative districts. Both the 1982 MississippiLegislative Plan and the plan adopted by the l99l Mississippi Legislature were challenged as beingunconstitutionally malapportioned.

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    The Court was faced with two plans, one plan (the 1982 plan) had been pre-cleared by theUnited States Attorney General and a second plan (the l99l plan) had not been pre-cleared. The1982 plan based on the 1990 census date was malapportioned. The Court expressed concern thatif it adopted a plan by one or more of the parties, that plan would have to be pre-cleared. Thus, theCourt was faced with only one plan that was pre-cleared, even though it was malapportioned. TheCourt stated:

    If elections are to be timely held, they must be held pursuant toexisting law - - the 1982 plan. Obviously, to not hold the elections onSeptember 17 and November 5 would have an unacceptable adverseimpact on the citizens of Mississippi. We find that it is preferable tohold elections on the dates already set for state elections. Conductingspecial elections after this court has had a time to draw its own planwould lead to a lower voter turnout and extra expense for the State,at a time when the court can take judicial notice of extreme budgetaryconstraints under which Mississippi, like numerous other States, isoperating. Further, the 1982 plan has the advantage of having beenadopted by the entire Legislature. It has not been modified by a fewlegislators, as here, after the Legislature adjourned.

    The plaintiffs in Watkins objected to the use of the 1982 plan on the ground that it violatedthe principle of one-person, one-vote. The Court, in rejecting this argument, stated "conductingelections using existing malapportioned districts will further a number of legitimate state policies.It will allow on-time elections, . . . and permit the Legislature or this Court to resolve the problemof redistricting in Mississippi with a full opportunity for hearings and input from the public."

    It is clear from the decision in Watkins that Article 13, Section 254 of the Constitution shouldbe allowed to occur and that allowing elections under the existing plan, which has been pre-cleared,will fuither legitimate state policies.

    Additionally, it is not a violation of the principle of "one person one vote" to utilize the

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    existing plan for interim relief. The Court in Watkins, cited Reynolds v. Sims, 377 U.S. 533,lzL.Ed2d 506, 84 S. Ct. 1362 (1964) for the proposition that courts faced with an illegal apportionmenton the eve of an election, frdy adopt interim plans that would not pass constitutional or statutorymuster if adopted on a perrnanent basis. The Court in Reynolds stated,

    Under certain circumstances, such as where an impending election isimminent and a State's election machinery is already in progress,equitable considerations might justif,, a court in withholding thegranting of immediately effective reliefin a legislative apportionmentcase, even though the existing apportionment scheme was foundinvalid.

    This Court has ruled similarly in cases involving elections on a local level. In Bryant v.Lawrence Countv. Mississippi, Sl4 F. Supp. 1346 (S.D. Miss. 1993) the Lawrence CountySupervisors attempted to redistrict itself in time for l99l supervisor's elections just after 1990census data became available. However, supervisors were unable to gain pre-clearance by theDepartment of Justice prior to the 1991 elections. Voters sued Lawrence County on "one person,one vote" and other grounds. Voters asked the Court to require a special election with new districtlines based on 1990 data. The Court stated.

    When a political body is operating under a constitutional plan (onepre-cleared by the Justice Department and not challenged in Court .. .) that body must have a reasonable time after each decennial censusin order to develop another plan and have it pre-cleared by the JusticeDepartment. Elections held under such a previously pre-cleared plan,in the year new census data become available, but before redistrictingcan take place, should not be set aside and new elections ordered. . .Id. at 1354.The Court ultimately held that there was no actionable "one person, one vote" claim.Because 1) the existing plan has been pre-cleared by the Justice Department,2) the census

    data only recently became available, 3) the Mississippi Legislature has not had sufficient time to

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    redistrict itself, and 4) Section 254 gives the Legislature until the close of the 2012 Legislativesession to timely complete the task of redistricting. "One person, one vote" is not violated.Therefore, as interim relief, the existing plan may be used for this yeat's Legislative elections.

    CONCLUSIONThe Mississippi Legislature is the body responsible for drawing Mississippi's legislative

    districts. They have until the conclusion of the 2012 Legislative session to accomplish this task.Unless and until the Legislature has proven that they cannot or will not carry out its constitutionalduty, this Court lacks subject matter jurisdiction to act. The existing plan, though malapportioned,has been pre-cleared. To conduct 201I Legislative races under the existing plan will fuither anumber of legitimate state policies, including allowing the Legislature to carry out its constitutionalresponsibility.

    The Court should dismiss this matter for lack of subject matter jurisdiction.Respectfully submitted, this the l" day of April, 2011.

    DELBERT HOSEMANN, in his official capacifyas Secretary of State of the State of Mississippi,as member of the State Board of ElectionCommissionersBv:/s/ Robert L. GibbsOF COUNSEL:Robert L. Gibbs, MSB #4816Matthew W. Allen, MSB #101605

    BRLlNrNr, GRnNrunv, GnowEn & HEwEs,190 East capitol Street, suite 100 (39201)Post Office Drawer I l9Jackson, Mississippi 39205Telephone: (601) 948-3 l0lFacsimile: (601) 960-6902Email: rgibbs@brunini.comEmail:


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    CERTIFICATE OF SERVICEI, Robert L. Gibbs, hereby certiff that on April I ,2011,I electronically filed the foregoing

    with the Clerk of the Court using the ECF system which sent notification of such filing to thefollowing:

    Carroll Rhodes, Esq.Post Office Box 588Hazlehurst, Mississippi 39083Email : crhode@bellsouth.netMichael e. w;lur., Esq.Charles Stevens Seale, Esq.Wise Carter Child & CarawayPost Office Box 651Jackson, MS 39201-0651Email : mbw@wisecarter.comEmail: css@wisecarter.comRobert B. McDuff, Esq.ROBERT B. MCDUFF767 North Congress StreetJackson, Mississippi 39202Email : rbm@mcduffl aw.comHarold Pizzetta, Esq.Justin L. Matheny, Esq.Office of the Attorney GeneralPost Office Box220Jackson, Mississippi 39205Emai I : hpizz@ago. state. m s. usEmail : jmath@ago. L. Begley, Esq.Begley Law Firm, PLLCPost Office Box 287Jackson, Mississippi 39205Email : sbegley I

    0t 16251 1

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  • 8/7/2019 Motion to Dismiss the Complaint by SOS Hoseman


    Stephen L. Thomas, Esq.Jack L. Wilson, Esq.Bradley Arant Boult Cummings LLPPost Office Box 1789Jackson, Mississippi 39215-l 789Email : sthomas@babc.comEmail : jwilson@babc.comSO CERTIFIED, this the 1" day of April, 2011.

    /s/ Robert L. Gibbs


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