UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION MISSISSIPPI STATE CONFERENCE OF THE NATIONAL ASSOCIATION FORADVANCEMENT OF COLORED PEOPLE, THOMAS, PLUNKETT, ROD WOULLARD & HOLLIS WATKINS, On Behalf ofThemselves & Others Similarly Situated VS. HALEY BARBOUR, in His Official Capacity as Governor of the State of Mississippi, JIM HOOD, in His Official Capacity as Attorney General of the State of Mississippi, & DELBERT HOSEMANN, in His Official Capacity as Secretary of State of the State ofMississippi, as Members of the State Board ofElection Commissioners; THE MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; THE MISSISSIPPI DEMOCRAT PARTY EXECUTIVE COMMITTEE; and CONNIE COCHRAN, in Her Official Capacity as Chairman of Hinds County, Mississippi Board of Election Commissioners, on Behalf of Herself & all Others Similarly Situated PLAINTIFFS Civil Action No. 3:11-cv-00159 DEFENDANTS AMICUS CURIAEBRIEF OF THE MISSISSIPPI TEA PARTY IN SUPPORT OF DISMISSAL FOR LACK OF JURISDICTION Of Counsel: Russell Latino III (MS Bar # 102281) Post Office Box 2656 Madison, MS 39110 601-605-6931 (T) 601-605-6901 (F) [email protected]Richard S. Wilbourn (MS Bar # 8537) Post Office Box 1278 Madison, MS 39130-1278 601-853-8500 (T) 601-607-3737 (F) [email protected]
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In the years following Wesberry and Reynolds, states began to implement
processes for redistricting that complied with the equal population standard. In
November of 1979, Mississippi amended Art. 13, § 254 of its Constitution to provide for
reapportionment following the decennial census. See Watkins v. Mabus, 771 F. Supp.
789, 791 (1991). § 254 provides, in pertinent part, that:
The legislature shall at its regular session in the second year following the 1980
decennial census and every ten (10) years thereafter, and may, at any other time,
by joint resolution, by majority vote of all members of each house, apportion thestate in accordance with the constitution of the state and of the United States into
consecutively numbered senatorial and representative districts of contiguousterritory. The senate shall consist of not more than fifty-two (52) senators, and
the house of representatives shall consist of not more than one hundred twenty-
two (122) representatives, the number of members of each house to be
determined by the legislature.
MISS. CONST. Art. 13, § 254.
The plain and unambiguous language of § 254 required the Legislature to
apportion the state in the second year following the 1980 decennial census. The first year
after the 1980 decennial census was, of course, 1981. The second year after the 1980
decennial census was, of course, 1982. The plain and unambiguous language of § 254
required that the Legislature redistrict every ten (10) thereafter, so that it would be
2. § 254 of the Constitution of the State of Mississippi Does Not
Violate the U.S. Constitution or Conflict with Associated Federal
Law
The question then becomes whether § 254, in form or application, violates the
U.S. Constitution or conflicts with associated federal law. More specifically, the question
is whether waiting until the 2012 regular session to complete redistricting, pursuant to §
254, violates the U.S. Constitution or conflicts with associated federal law.
The seminal decision on the constitutional requirement of periodic redistricting is
the aforementioned Reynolds case. In Reynolds, the Court expressly addressed the timing
of redistricting:
That the Equal Protection Clause requires that both houses of a state legislature
be apportioned on a population basis does not mean that States cannot adoptsome reasonable plan for periodic revision of their apportionment schemes.
Decennial reapportionment appears to be a rational approach to readjustment of
legislative representation in order to take into account population shifts andgrowth. Reallocation of legislative seats ever 10 years coincides with the
prescribed practices in 41 of the States 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 nomore frequently than every 10 years leads to some imbalance in the population of
districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators. In substance, wedo 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. Only if reapportionment were accomplished with less
frequency, would it be constitutionally suspect. Id. at 584. § 254 adopts an approach
that requires that redistricting be completed every ten years in the second year after the
decennial census an approach which, according to the Supreme Court, is rational.
Most significantly, the Reynolds Court stated that while decennial reapportionment is not
In Fairley v. Forrest County, this Court considered whether to call special
elections following the 1991 election of county supervisors under a 1983 redistricting
plan that violated the one-man, one vote principle of the Fourteenth Amendment (due
to population shift) where a plan based on 1990 census had not yet been formulated and
approved. Fairley v. Forrest County, 814 F. Supp. 1327 (1993). The court in Fairley
ultimately determined that no special elections were required, and in doing so, posed a
poignant and topical question about the timing of redistricting:
Deviation from population norms can occur in any district at any time.For instance: A census is taken; a redistricting plan is legislatively
adopted; it is pre-cleared; the next election is held; the next year, the nextday, the next week, the next month a major disaster occurs-a large industry
in town closes, thousands relocate; a flood wipes out a community, peoplerelocate; a toxic hazard develops, people move-do these situations
mandate reapportionment because there is 50% deviation from the norm,even though it is seven years until the next census? A constitutionally
impermissible deviation exists. It can be proven by demographers. Doesthat require special elections and redistricting even before the next census?
Fairley, 814 F. Supp. at 1339. The question posed by the Fairley Court is in many ways
sage-like. Take for instance Hurricane Katrina, which ravaged the Mississippi Gulf
Coast and resulted in the displacement of thousands. Had a challenge to legislative
apportionment in 2005 been raised, three years after the formulation and approval of the
2002 redistricting plan, would the Court have had jurisdiction? According to the parties,
excepting the Secretary of State, the answer to that question must be yes. In their
minds, all that is required for a justiciable injury is alleged malapportionment.
What are the implications of adopting such a position? It means that so long as
there is alleged malapportionment, the Court always has jurisdiction whether a day,
second year following the decennial census, as per § 254, and, thus, conferring jurisdiction, then Watkins is
simply errant and is inconsistent with the U.S. Supreme Court precedent discussed above and the action of
week, month, year, etc., after a redistricting plan is formulated and approved. It means
that the Court could conceivably be log-jammed with an endless string of challenges that
would bring the legislative process to a grinding halt. The reality is that treating
malapportionment as an actionable injury, in and of itself, is an all or nothing proposition.
If allowed, there is no difference between assuming jurisdiction based on an allegation of
malapportionment one month after a plan is approved or in year nine of an approved
plan.
In Watkins, mentioned supra, this Court noted that for obvious reasons, the
[equal population] principle does not and indeed cannot require absolute,
mathematical exactness. Watkins, 771 F. Supp. at 802 (citing Brown v. Thomson, 462
U.S. 835, 842 (1983)). The Watkins Court went on to explain that:
[I]t is clear that, because of the swiftness with which population can shiftand the high cost of creating new election districts, a state may conduct
elections for a reasonable amount of time with districts whose deviationsare higher than constitutionally optimal.
Id. In this sense, Watkins is consistent with the Reynolds Court, which answers, as
highlighted above, the question posed by the Fairley Court:
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 tosome imbalance in the population of districts toward the end of the decennial
period 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 longas a State has a reasonably conceived plan for periodic readjustment of legislative
representation. While we do not intend to indicate that decennial reapportionmentis a constitutional requisite, compliance with such an approach would clearlymeet the minimal requirements for maintaining a reasonably current scheme of
legislative representation.
Reynolds, 377 U.S. at 583-84; see also Ramos v. Illinois, 781 F. Supp. 1353, 1357 (N.D.