Redistricting AG memo

8/7/2019 Redistricting AG memo

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

MADISON COUNTY BOARD OF

SUPERVISORS and JOHN W. ROBINSON, III PLAINTIFFS

VS. CIVIL ACTION NO. 3:11cv119-WHB-LRA

STATE OF MISSISSIPPI,

LEE WESTBROOK, in her official

capacity as MADISON COUNTY CIRCUIT

CLERK and MADISON COUNTY REGISTRAR,

MADISON COUNTY REPUBLICAN EXECUTIVE

COMMITTEE, AND MADISON COUNTY

DEMOCRATIC EXECUTIVE COMMITTEE DEFENDANTS

______________________________________________________________________________

MEMORANDUM OF AUTHORITIES SUPPORTING

THE STATE OF MISSISSIPPI’S RESPONSE IN OPPOSITION

TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

Jim Hood, Attorney General for the State of Mississippi (“Attorney General”), files this

Memorandum Supporting 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. Nevertheless, plaintiffs Madison County Board of Supervisors (“Madison Board”) and

John W. Robinson, III (“Robinson”) (collectively “plaintiffs”) have filed this lawsuit making that

faulty claim.

Plaintiffs, relying exclusively on that ill-reasoned “one person, one vote” argument, have

Case 3:11-cv-00119-WHB -LRA Document 16 Filed 03/18/11 Page 1 of 28



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requested that this Court issue a judgment: (1) declaring its current supervisor district lines are

unconstitutional; (2) declaring that the Mississippi Legislature’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 Legislature. The Court previously denied

plaintiffs’ request for a temporary restraining order encompassing their requested relief. Now, the

Court should similarly deny plaintiffs’ request for a preliminary and permanent injunction and

dismiss all their claims.

The Madison Board does not have standing to bring this lawsuit. Additionally, federal courts

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 takes place every twenty years is at the

heart of plaintiffs’ claims here. It does not render the current county election districts, or the

Legislature’s established election deadlines, unconstitutional on account of “one person, one vote,”

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

seek.

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

issue, and deny plaintiffs’ relief, instead of interfering with Madison County’s political process.

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

dismissed with prejudice.




Unless otherwise noted, references to exhibits contained herein refer to those exh ibits attached to the1

State’s Response in Oppo sition to plaintiffs’ Motion for Preliminary Injunction [Docket No. _ _] filed at the same

time as this Memorandum .

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II. 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 January 1, 2011 when qualifying for county

offices opened. See MISS. CODE ANN . §23-15-299(2). The Madison Board planned to use the

current supervisor district lines in its 2011 elections. [See Steven G. Watson, Candidates watchdog

redistricting , 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. 1].

On February 22, 2011, the Madison Board held a public meeting to discuss redistricting. [See

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

23, 2011, Ex. “A”]. The meeting was a follow-up to an announcement that a committee had been1

formed to consider redistricting of the county’s election districts. Members of the five-person

committee formed by the Board included supervisor Tim Johnson, supervisor Karl Banks, county

administrator Brad Sellers, Board attorney Eric Hamer, and Circuit Clerk Lee Westbrook. [See

Steven G. Watson, Residents ‘don’t trust’ supervisors, MADISON COUNTY JOURNAL, February 23,

2011, Ex. “B”]. The Madison Board openly acknowledged that putting more than two supervisors

on the committee 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

committee. The Board attorney responded to concerns by saying that the county could file a lawsuit

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




Official actions of the Madison Board at the February 22 meeting are also evidenced by the Board’s2

minutes. [See Minutes of the Bo ard of Supervisors, February 22, 2011, Ex. “I,” and online at <http://madison-

co.com/images/admin/pdfs/745_86447_Minutes_2-22-11_(Final).pdf>].

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redistrict before election, MADISON COUNTY JOURNAL, February 23, 2011, Ex. “A”]. The Board

attorney explained that the Butler Snow firm 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 comments, the February 22 meeting culminated in a Madison Board vote to

file this lawsuit. [Id.]. The redistricting process was expected to take several weeks. Meanwhile,

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

or considerations. [Id.].2

Madison Board’s vote to file 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 still has not decided on a specific

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

be submitted to the Department 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.

Long before this lawsuit was filed, on December 14, 2010, the Hancock County Board of

Supervisors (“Hancock Board”) filed a nearly identical challenge to the Mississippi Legislature’s

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

Civil Action No. 1:10cv564-LG-RHW 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




The Attorney General’s Memo randum Suppo rting his Motion to Dismiss filed on February 23, 2011 in the3

Hancock Coun ty action [Civil Action No. 1:10cv564-LG-RH W, Docket No. 20] explains the numerous reasons that

Hancock Coun ty’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 defendant Madison County Republican Executive Committee has

seen fit to essentially duplicate that February 23, 2011 brief in support of its own arguments in opposition to the

plaintiffs’ complaint in this action. [See MCREC M em., Docket No. 13].

Various local branches of the N AACP and some individual voters have filed at least eight lawsuits in the4

Southern District and eight lawsuits in the Northern District, as of this writing. The NAA CP suits have been filed

against respective Mississippi county Boards of Supervisors, and others, as defendants. The plaintiffs in the

NAA CP cases have made v irtually the same allegations and requests for relief as those advanced by the Madison

Board and the Han cock Board in their cases. The only substantive distinctions are the alignment of the parties, andthe statistical numbers before the courts with respect to each county involved. Notably, even though only a small

number of the county boards and other named defendants have responded to the NAAC P complaints in those cases

so far, several counties reportedly intend to resist the relief requested (i.e., moving the q ualifying deadline and

requiring the counties to re-draw their supervisor district lines in the middle of the current election cycle). [See, e.g.,

Civil Action No. 3:11cv121-HTW-LRA, Answer and Defenses of Copiah County Board of Supervisors, Docket No.

13; Civil Action No. 5:11cv30-D PJ-FKB, Answ er and Defenses of Adams County Board of Sup ervisors, Docket No.

13]. Meanwh ile, other county boards have been weighing their options behind closed doors. [See, e.g., John Suratt,

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

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

Injunction. [See Civil Action No. 1:10cv564-LG-RHW at Motion for Injunction, Docket No. 11].

On February 11, 2011, a hearing was set for February 25, 2011. [See Civil Action No. 1:10cv564-

LG-RHW at February 11, 2011 Text Order].

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

[See Civil Action No. 1:10cv564-LG-RHW at Order, Docket No. 14; Motion to Dismiss, Docket

Nos. 19 & 20]. The February 25 hearing was canceled and the case was stayed pending a ruling3

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

1:10cv564-LG-RHW at February 22, 2011 Text Order & February 25, 2011 Text Order].

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

[See Civil Action No. 1:10cv564-LG-RHW at Motion to Consolidate, Docket No. 27]. The Motion

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

have been filed by NAACP organizations in some Mississippi counties. As of this writing, no4








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began on January 1, 2011 and the deadline is March 1, 2011. See MISS. CODE ANN. § 23-15-299(2).

Party primary elections will be held in August 2011 and the general election will take place in

November 2011. See MISS. CODE ANN . §§ 23-15-191 & -193.

If new district lines will be used for 2011 elections, the lines must be re-drawn 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 any election). Other time considerations are relevant. Absentee

ballots must be prepared and printed. Absentee ballots must be available forty-five (45) days in

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

Department of Justice regulations require any new lines to be pre-cleared pursuant to Section

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

approve lines. 28 C.F.R. § 51.9(a). Department of Justice also may extend that time if it requires

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

§ 51.9(c).

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

district lines are unconstitutional; (2) declaring that the Mississippi Legislature’s statutory qualifying

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

Mississippi Legislature’s county candidate qualifying deadline. [Complaint at pp. 9-10, Docket No.

1]. Additionally, and implicit in plaintiffs’ relief, the Court 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 Court should first decline to hear Madison Board’s case. Federal courts may not




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consider a lawsuit that is not an “actual controversy,” pursuant to Art. III of the Constitution and the

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 standing.

See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The standing doctrine’s core inquiry is

“whether the litigant is entitled to have the court decide the merits of the dispute or of particular

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

it has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury

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

injury.” Houston Chronicle Publ’g Co. v. City of League City, Tex., 488 F.3d 613, 617 (5 Cir.th

2007). None of these elements are present here.

1. The Madison Board Does Not Have Standing to Represent Voters or Sue the

Defendants on Fourteenth Amendment Grounds.

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

the State – does not have standing here to challenge Miss. Code Ann. § 23-15-299(2) on behalf of

voters, or to sue the State and other political subdivisions. As explained by the Second Circuit,

“[p]olitical subdivisions of a state may not challenge the validity of a state statute under the

Fourteenth Amendment.” City of New York v. Richardson, 473 F.2d 923, 929 (2 Cir. 1973), cert.nd

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 (5 Cir. 1984) (political subdivison did not haveth

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

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

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

Birchfield , 529 F.2d 1251, 1254-55 (5 Cir. 1976) (municipal corporation could not assertth




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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 against the state

or other political subdivisions like the defendants.

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

Even if Madison Board is allowed to bring Fourteenth Amendment challenges against the

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

established three-part test for standing. The Madison Board has no injury-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 is a threat of future constitutional challenges to its 2011 elections, and costs that

the Board might incur if future special elections are held. [Complaint at ¶ 38, Docket No. 1]. That

is not an “injury-in-fact.” It is a merely a conjectural harm.

The Madison Board’s injury claim is insufficient. Federal law does not require it to

implement 2010 census data, in the middle of the 2011 election cycle, to avoid a “one person, one

vote” violation. The United States District Court for the Southern District of Mississippi previously

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

determined 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 insufficient time to redistrict.

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

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

in 1984. Id. 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 redistrict based on the 1990




The plaintiffs may argue Bryant and the o ther cases regarding special elections are not relevant here, just5

as they argued before the Court denied their Temporary Restraining Order. That argument is wrong and relies on a

distinction without a difference. The plaintiffs filed this suit in the middle of the current election cycle before any

elections have actually taken place. Special elections are thus not part of the relief at issue. Howev er, the reason

why sp ecial elections were not ordered in Bryant , and the other cases directly on point, is the same reason why the

relief requested by plaintiffs here is not warranted. Elections on current lines, the same year as census data becomes

available, are not susceptible to a valid “one person, o ne vote” challenge.

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data, but was unable to gain pre-clearance from the Department 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 districts 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 governments, the court flatly rejected the plaintiffs’ contention that

special elections were required due to a “one person, one vote” violation. The court explained

when a political body is operating under a constitutional plan (one pre-cleared by the

Justice Department and not challenged in Court, or either agreed to by the parties to

litigation and then pre-cleared by the Justice Department as is the situation in this

case) that such body must have a reasonable time after each decennial census in

order to develop another plan and have it pre-cleared by the Justice Department.Elections held under such a previously pre-cleared plan, in the year that new census

data becomes available, but before redistricting can take place, should not be set

aside and new elections ordered.

Id. at 1354 (emphasis added). The Court 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 current

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

complies with the Mississippi Legislature’s directive, and proceeds on the statutory timetable for

the current 2011 election cycle, then elections on lines drawn under the 2000 census will not

produce a valid “one person, one vote” claim against the county. Using the current lines would not

cause it any injury.




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3. The Madison Board Has No “Fairly Traceable” Injury.

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

associated with election challenges. Even assuming that injury satisfies Article III, which it does

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

Madison Board is responsible for drawing the district lines and compliance with “one person, one

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

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

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

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

intended. The defendants are not the cause of the supposed injury 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 standing, 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 immunize itself against

a future 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 parties).

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




Additionally, and ironically, if the Madison Bo ard obtains a d eclaration that its current district lines are6

unconstitutional, that would be an open invitation for suits should it be unable to secure a pre-cleared plan from

Department of Justice before June 2 . Its choice to essentially advocate against itself in that regard relies on a

haphazard gamble that Dep artment of Justice will approve any new lines in time to hold timely primary elections this

Summer.

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person, one vote,” no order of this Court can prevent that contingency. An injunction or declaration

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

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

Third, there is no proof – aside from speculation – that if the qualifying date is moved by this

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

Department of Justice in time for the planned elections. The Court should not simply assume that

modification of the Mississippi Legislature’s statutorily mandated deadlines will produce a pre-

cleared plan in time to meet new deadlines prescribed by the Court. See 28 C.F.R. § 51.9(a) & (c)

(sixty (60) days for Department of Justice consideration of redistricting plans, and additional time

if objections are lodged or further information is requested).

Additionally, public discord created by the Madison Board’s assembly of its Redistricting

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

redistricting plan. [See, e.g., Steven G. Watson, Residents ‘don’t trust’ supervisors, MADISON

COUNTY JOURNAL, February 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.




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The Court lacks subject matter jurisdiction 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

summary 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 starting point, under Count I of their Complaint, the plaintiffs have asked for a two-fold

declaration that holds: (1) the current Madison County supervisor lines are unconstitutional if used

in the 2011 elections; and (2) the Mississippi Legislature’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 district lines in the 2011 election

cycle would not create an actionable “one person, one vote” problem. Therefore, the Court should

not alter the Legislature’s election time table. The Court should not legislate from the bench for

Madison County by declaring the current lines, or the Mississippi Legislature’s qualifying deadline,

unconstitutional.

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

person, one vote” rights, the Court pointed out that reapportionment of election districts is primarily

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

governmental 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 opportunity to draw new lines, or could be faulted if new lines are not

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

this Court to stretch the “one person, one vote” principle to achieve a desired political result.

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

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

current lines? Stated differently, given the facts which plaintiffs forecast will play out if the current

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 (6 Cir. 1992), cert. denied , 506 U.S. 954; Ramos v. Illinois,th

976 F.2d 335, 340-41 (7 Cir. 1992); Republican Party of Oregon v. Keisling , 959 F.2d 144, 145-46th

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

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

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

The same reasoning of all these other federal courts applies to the plaintiffs’ Complaint.

Madison County’s current supervisor district 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 Legislature’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 and

its declaratory judgment count should be dismissed by way of summary judgment.




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2. The Plaintiffs are not Entitled to Injunctive Relief.

In order to be awarded preliminary and permanent injunctive relief (Count II), plaintiffs must

prove: (1) they are entitled to actual success on the merits; (2) they would suffer irreparable injury

due to no adequate remedy at law; (3) their alleged threat of injury is not outweighed by potential

harm to defendants and other interested parties; and (4) the public interest would be served by the

injunctive relief. VRC, LLC v. City of Dallas, 460 F.3d 607, 611 (5 Cir. 2006). See also Loisel v.th

Epps, 2008 WL 1925177, at *1 (S.D. Miss. April 30, 2008) (denying permanent injunctive relief);

Arista Records, LLC v. Stanley, 2007 WL 627839, at *3 (N.D. Miss. Feb. 26, 2007) (citing DSC

Comms. Corp. v. DGI Tech., Inc., 81 F.3d 597, 600 (5 Cir. 1996) (same). None of the requirementsth

for an injunction weigh in plaintiffs’ favor.

a. No Claim on the Merits.

The Fourteenth Amendment’s “one person, one vote” principle is not a rigid, absolute right

to vote in a supervisor district with a deviation of less than ten percent (10%) population for every

election. Plaintiffs’ claim for injunctive relief rests entirely upon that faulty premise. Plaintiffs do

not account for timing issues caused by the release of census data while the current election cycle

was already underway. There is no “one person, one vote” violation if candidates run on existing

pre-cleared district lines in the same year decennial census data becomes available.

In Bryant , discussed above, “one person, one vote” claims were not actionable when “old”

lines were used in a Census release year in spite of a total deviation of over twenty-three percent

(23%). Bryant , 814 F.Supp. at 1354. The court held that elections under a previously pre-cleared

plan, in the year census data became available, were not subject to a “one person, one vote”

challenge. Id. Numerous other federal courts have reached similar conclusions. See, e.g., French,




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963 F.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 (redistricting 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 arises every twenty years for elected offices

involving four year terms. Federal courts have recognized that the issue is bound to occur every

fifth election cycle, yet uniformly 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 court analyzed

that issue and held against the plaintiffs there:

[t]he four-year terms that Chicago aldermen serve merely indicate that every fifth

election (i.e. when the election year falls on the same year that the new census data

becomes available) likely will 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 protected

minority; there is merely a four-year time lag that occurs every other decade between

redistricting and elections. Thus, accepting their allegations as true, we hold that the

plaintiffs can prove no set of facts that would lead us to believe that the Illinois

redistricting scheme denies any class of citizens full participation in Chicago's

political 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 Court, however, is the probability, recognized by plaintiffs

at oral argument, that awarding plaintiffs the relief they seek in this instance would

effectively require a similar action at least every 20 years when the current situation




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is repeated. It could require similar action every 10 years in order to ensure that new

census data is incorporated and put into action as soon as possible, and could require

more frequent action if Minnesota decides to redistrict on a more frequent schedule.

As the Sixth Circuit noted, the only way to avoid such a problem would be to order

the City to limit terms of office and the election cycle-a significant interference in

the State's right to regulate its elections that would be inappropriate absent greater provocation.

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

not allow anyone to run to the courthouse 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 diminish anyone’s constitutional voting rights.

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

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 districts was at issue, the court

explained

in any system of representative government, it is inevitable that some elections for

four-year or longer terms will occur on the cusp of the decennial census.

The terms inevitably will last well into the next decade; and, depending on shifts inpopulation in the preceding decade, the representation may be unequal in the sense

that the districts no longer meet a one-person, one-vote test under the new census.

...The principles of mathematical equality and majority rule are important, but we

should not allow them to outweigh all other factors in reviewing the time of

elections.

...We do not believe that considerations of mathematical equality in representation

or the presumption in favor of redistricting every ten years outweigh the

considerations outlined above concerning the validity of four-year terms, the settled

expectations 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 during the




In Fairley, Judge P ickering offered a statistical analysis explaining why deviations similar to the7

percentages offered by the plaintiffs here actually reveal only a minimal variation in voter influence. 814 F.Supp. at

1336-38. The math used in Fairley is equally applicable here and shows w hy the deviation claimed by plaintiffs is

not as drastic as they complain.

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election cycle.

Here, the facts are the same this time around. The current Madison County supervisor

district lines were approved by the Madison Board and pre-cleared by Department 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 current lines in the 2011 Madison County supervisor

election cycle that is well underway.

More specifically, plaintiffs allege the population distribution 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 Court, the plaintiffs

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

current supervisor lines. An alleged high deviation of nineteen point thirty-seven percent (19.37%)

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

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

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

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 argument that using the current 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




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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 true, the plaintiffs also

have not shown they would suffer irreparable harm from the use of the current supervisor district

lines in the current election cycle, or if the Court does not change the deadlines applicable to the

2011 elections. The reasoning of the cases cited above explains why plaintiffs have no likelihood

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

injury 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. Griffin, 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 Court explained the reasons why plaintiffs have no irreparable injury here:

[r]eallocation of legislative seats every 10 years coincides with the prescribed

practice in 41 of the States, often honored more in the breach than the observance,

however.... Limitations on the frequency of reapportionment are justified by the

need for stability and continuity in the organization of the legislative system,

although undoubtedly reapportioning no more frequently than every 10 years leads

to some imbalance in the population of districts toward the end of the decennialperiod and also to the development of resistance to change on the part of some

incumbent legislators. In substance, we do not regard the Equal Protection Clause

as requiring daily, monthly, annual or biennial reapportionment, so long as a State

has a reasonably conceived plan for periodic readjustment of legislative

representation. While we do not intend to indicate that decennial reapportionment

is a constitutional requisite, compliance with such an approach would clearly meet

the minimal requirements for maintaining a reasonably current scheme of legislative

representation.

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 during this year’s

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

denial of their claims for injunctive relief.




Other time considerations are also at issue and demonstrate why accelerating the Madison County8

redistricting process would be problematic. Absentee voter ballots must be prepared and printed. Those ballots

must be identical in form to the ballots used in the election and available forty-five (45) days in advance of the

August 2 primary election (i.e., June 18, 2011). Miss. Code Ann. § 23-15-649.

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

Interested Parties.

The balance of harms first weighs against injunctive relief because there is no threat of injury

to plaintiffs, as explained above. Beyond that fact, the defendants and other interested parties 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 current election boundaries. [See

Qualifying 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 residents 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 district they will be voting in, and may not be able to have their input regarding

redistricting considered.

The Department of Justice regulations and Mississippi statutes applicable to the redistricting

and 2011 election processes evidence this point. Primaries 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). The8

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




Additionally, plaintiffs have failed to recognize or address the fact that the D epartment of Justice likely9

requires pre-clearance of any injunction issued by this Court that would disrupt the election cycle. 28 C.F.R. § 51.18

(explaining changes affecting voting ordered by a federal court and/or subsequent changes by governmental body

necessitated by co urt 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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Department of Justice also may extend that time if it requires more information, or if it objects to

any part of the plan. 28 C.F.R. § 51.9(c). While 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 Department of Justice even gets involved, if the Court usurps the

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

diminished.

In other words, shrinking Madison County’s redistricting time frame – essentially self-

inflicted by its Board – is more likely to create confusion 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 Court or immediate redistricting occurs, the Board will be able to re-draw its

districts, keep the public informed, hold sufficient hearings, and get pre-clearance from the

Department of Justice in time for the elections. The Court should not simply assume that ordering

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

will equate to approval of a new plan from Department 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 redistricting correct. Reasoned analysis of the balance of harms injunction factor weighs9

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,




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and contrary to the plaintiffs’ allegations regarding their claimed interests, all of the citizens of

Madison County, and Mississippi, would be better served if the Court 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 redistricting panel of the United States District Court for the Southern District of

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

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

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

In Smith, the Court 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 likely

create confusion, misapprehension and burdens for the voters, for the political

parties, and for the candidates. As we said in our [previous] order, many voters may

want to participate in the election process to a greater extent than mere voting. They

want to know the candidates personally, to select their choice, to give money to their

selection, and to organize the people in their precincts or counties in the campaign

for their choice. Given that all previous districts are being cross-mixed by the loss

of one congressional representative, resolving these new problems will take all thepre-primary time that the present statute allows. If we delay the establishment of

election districts and advance qualifying dates, such voters who want to become

fully involved in the process will not timely know in which district they are going

to be placed, and thus will not timely know where and with whom to become

involved. The same situation will exist for the candidates. Postponing the election

schedule means that the candidates and political parties would encounter campaign

and election burdens – that is, significant time constraints on getting acquainted with

new voters, establishing organizations in new election districts and the multiple new

precincts and counties therein, raising campaign funds within the new districts,

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 current 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 harmed by such a measure.

The same type of reasoning applies to any proposal to have new supervisor districts in place

by a specific date in the middle of Madison County’s current election cycle. Shrinking the time

frame in which voters and candidates can be certain of who is running, where they are running, and

who candidates will represent, would inappropriately cause much more harm than it would good.

Specifically, uncertainty already exists because of the Madison Board’s actions and would

only be exacerbated by giving plaintiffs an injunction. Originally, “[s]upervisors had planned to

delay the redistricting and use existing district lines in the 2011 election because the 2010 census

numbers did not become available until [February].” [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 run under the current district

lines. [See Qualifying 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 flip-flop decision and this lawsuit as “erratic behavior [that]

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

Smith – and there’s no easy way to do that.” [See Editorial, We don’t trust the supervisors either ,

MADISON COUNTY JOURNAL, March 2, 2011, Ex. “C”]. Others are concerned because re-drawing

the lines will impact the districts where candidates may run, and where they must campaign. [See

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

Ex. “D”]. Candidates have even said publicly that lines should not be re-drawn before the upcoming




The March 16 news story also goes on to explain cite comments from the Board attorney that the10

Madison Board may no t agree on a proposed plan at the upcoming M arch 21 hearing, but that the Madison Board’s

chances in this Court will improve if an app roved plan can be sent to Department of Justice before the Co urt’s April

1 hearing. Obviously, the Madison Board’s recent rush to re-draw lines and push them through the process

unfortunately runs the risk of skewing the process and short-cutting around pub lic review and input.

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

Redd in remap, MADISON COUNTY JOURNAL, March 16, 2011, Ex. “H”]. If the Court grants10

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

quo. The Court 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 filed in

the Northern and Southern Districts 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

unwarranted exception to the Legislature’s qualifying deadline, or laying down an ill-founded

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

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

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

intersection of four year terms of office and the release of decennial census data, uncertainty will

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

In sum, the public – in Madison County and state-wide – will be better served here if the

Madison Board follows the law established by the Mississippi Legislature, the county’s voters have




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the certainty of elections under the current pre-cleared lines, and the Madison Board takes adequate

time to get its redistricting 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 current election cycle and release of official 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 Legislature or manufacture a private election time table.

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

no standing. Similarly, and even assuming the Madison Board has standing, both of the plaintiffs’

counts for declaratory and injunctive relief have no merit. The motion for preliminary 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 filed motion for summary judgment.

THIS the 18 day of March, 2011.th

Respectfully submitted,

JIM HOOD, ATTORNEY GENERAL OF

THE STATE OF MISSISSIPPI ON BEHALF

OF THE STATE OF MISSISSIPPI

By: S/Justin L. Matheny

Harold E. Pizzetta, III (Bar No. 99867)[email protected]

Justin L. Matheny (Bar No. 100754)

[email protected]

Special Assistant Attorneys General

Office of the Attorney General




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P.O. Box 220

Jackson, MS 39205

Telephone: (601) 359-3680

Facsimile: (601) 359-2003




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CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been filed electronically with the Clerk of

Court and thereby served on the following persons:

Mark W. GarrigaTommie S. Cardin

Malissa Winfield

Butler Snow O’mara Stevens & Cannada, PLLC

P.O. Box 6010

Ridgeland, MS 39158-6010

Eric Hamer

Hamer & Associates

P.O. Box 2185

Ridgeland, MS 39158

John W. Robinson, III

Law Offices of John W. Robinson, III

618 Cresent Blvd., Ste. 200

Ridgeland, MS 29157

Cory T. Wilson

Willoghby Law Group

P.O. Box 2305

Madison, MS 39130

James H. HerringHerring, Long & Crews PC

P.O. Box 344

Canton, MS 39046

THIS the 18 day of March, 2011.th

S/Justin L. Matheny

Justin L. Matheny


Redistricting AG memo

Documents