Case 3:11-cv-00159-CWR -FKB Document 41 Filed 04/01/11 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE

NATIONAL ASSOCIATION FOR ADVANCEMENT
oF coLoRED PEOPLE, THOMAS PLUNKETT,
ROD WOULLARI), and HOLLIS WATKINS, on behalf
of themselves and all others similarly situated PLAINTIFFS

VS. CIVIL ACTION NO. 3:ll-cv-00159-CWR-FKB

HALEY BARBOUR, in his official capacity as

Governor of the State of Mississippi, JIM HOOD,
in his official capacity as Attorney General of the
State of Mississippi, and DELBERT HOSEMANN,
in his official capacity as Secretary of State of the
State of Mississippi, as members of the State Board
of Election Commissioners; THE MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE COMMITTEE;
THE MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; and CONNIE COCHRAN, in her official
capacity as Chairman of the Hinds County, Mississippi
Board of Election Commissioners, on behalf of herself
and all others similarlv situated DEFENDANTS

MOTION TO DISMISS

COMES NOW Delbert Hosemann, in his official capacity as Secretary of State of the State

of Mississippi, and ex-officio member ofthe State Board of Election Commissioners, and moves this

Court to dismiss the Complaint, and for cause thereof would show the following:

BACKGROUND

On March 17 , 201l, the instant lawsuit was filed by the Mississippi Conference of the

National Association forthe Advancement of Colored People, Thomas Plunkett, Rod Woullard, and

Hollis Watkins. The Plaintiffs allege that the existing legislative districts, which were drafted and

implementedin2002,are unconstitutionally malapportioned and violate the l4'h Amendment ofthe

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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 that

the defendants violated plaintiffs' rights and that the existing redistricting plans for the Mississippi

Senate and Mississippi House of Representatives are unconstitutionally malapportioned. Plaintiffs

also request that this Court issue a temporary restraining order until a three judge panel can be

convened. Because plaintiffs' claims are not ripe for adjudication the Court must grant the instant

motion 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'h

Cir.), cert. denied 454 U.S. 897 (1981). A court may base its decision on the complaint alone, the

complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented

by undisputed facts plus the court's resolution of disputed facts. Ynclan v. Dept. of the Air Force,

943F.2d 1388, 1390(5thCir. 1991). Thepartyassertingfederalsubjectmatterjurisdictionhasthe

burdenofproofonaRule 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 for

lack of subject matter jurisdiction.

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PLAINTIFFS CLAIMS ARE NOT RIPE FOR ADJUDICATION

Secretary 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 does

not permit this Court nor a three judge panel, to take away the responsibility of drawing legislative

districts from the Mississippi Legislature, which is constitutionally mandated to draw lines. In fact

Article 13, Section 254, of the Mississippi Constitution provides:

The legislature shall at its regular session in the second year

following the 1980 decennial census and every ten (10) years
thereafter, and may, atany other time, byjoint resolution, by majority
vote of all members of each house, apportion the state in accordance
with the constitution of the state and of the United States into
consecutively numbered senatorial and representative districts of
contiguous tenitory. . . (emphasis added)

According to the clear language ofthis constitutional provision, plaintiffs' claims are not ripe

and will not be ripe until the Mississippi Legislature adjourns Sine Die concluding the 2012

Legislative session, and all requirements of Section254 of the Mississippi Constitution of 1890 are

exhausted.

This section continues, "Should the legislature adjourn, without apportioning itself as

required hereby, the governor by proclamation shall reconvene the legislature within thirty (30) days

in 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 special

commission consisting of the Chief Justice of the Supreme Court, Attorney General, Secretary of

State, Speaker of the House of Representatives and President Pro Tempore of the Senate shall be

convened and shall, within 180 days, reapportion the Legislature. Thus, before the Court can step

in 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 its

legislature 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 reapportioning

itself and has not yet been given time to exact a plan of reapportionment. Wise v. Lipscomp, 437

u.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, Section

254, of the Mississippi Constitution the l99l Mississippi Legislature was not required to reapportion

itself 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 to

Section 254 of the Mississippi Constitution, the Legislature is not required to act this year. It has

until the conclusion of the 2012Legislative session to act. Only if the Legislature fails to actin2012

are the existing district lines unconstitutional. Until this occurs, this matter is not ripe and this Court

has no subject matter jurisdiction. Thus, plaintiffs have failed to meet their burden of proof in

establishing that their claims are ripe for adjudication.

ALLOWING ELECTIONS TO PROCEED UNDER THE EXISTING

PLAN IS NOT UNCONSTITUTIONAL AS INTERIM RELIEF

In Watkins v. Mabus, this Court was faced with deciding whether to allow legislative

elections to proceed under malapportioned legislative districts. Both the 1982 Mississippi

Legislative Plan and the plan adopted by the l99l Mississippi Legislature were challenged as being

unconstitutionally malapportioned.
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The Court was faced with two plans, one plan (the 1982 plan) had been pre-cleared by the

United States Attorney General and a second plan (the l99l plan) had not been pre-cleared. The

1982 plan based on the 1990 census date was malapportioned. The Court expressed concern that

if it adopted a plan by one or more of the parties, that plan would have to be pre-cleared. Thus, the

Court was faced with only one plan that was pre-cleared, even though it was malapportioned. The

Court stated:

If elections are to be timely held, they must be held pursuant to

existing law - - the 1982 plan. Obviously, to not hold the elections on
September 17 and November 5 would have an unacceptable adverse
impact on the citizens of Mississippi. We find that it is preferable to
hold elections on the dates already set for state elections. Conducting
special elections after this court has had a time to draw its own plan
would lead to a lower voter turnout and extra expense for the State,
at a time when the court can take judicial notice of extreme budgetary
constraints under which Mississippi, like numerous other States, is
operating. Further, the 1982 plan has the advantage of having been
adopted by the entire Legislature. It has not been modified by a few
legislators, as here, after the Legislature adjourned.

The plaintiffs in Watkins objected to the use of the 1982 plan on the ground that it violated

the principle of one-person, one-vote. The Court, in rejecting this argument, stated "conducting

elections 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 problem

of 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 should

be 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 apportionment

on the eve of an election, frdy adopt interim plans that would not pass constitutional or statutory

muster if adopted on a perrnanent basis. The Court in Reynolds stated,

Under certain circumstances, such as where an impending election is

imminent and a State's election machinery is already in progress,
equitable considerations might justif,, a court in withholding the
granting of immediately effective reliefin a legislative apportionment
case, even though the existing apportionment scheme was found
invalid.

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 County

Supervisors attempted to redistrict itself in time for l99l supervisor's elections just after 1990

census data became available. However, supervisors were unable to gain pre-clearance by the

Department 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 district

lines based on 1990 data. The Court stated.

When a political body is operating under a constitutional plan (one

pre-cleared by the Justice Department and not challenged in Court .
. .) that 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 new census data become available, but before redistricting
can 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 Legislative

session 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.

CONCLUSION

The 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 constitutional

duty, 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 a

number of legitimate state policies, including allowing the Legislature to carry out its constitutional

responsibility.

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 capacify

as Secretary of State of the State of Mississippi,
as member of the State Board of Election
Commissioners

Bv:/s/ Robert L. Gibbs

OF COUNSEL:
Robert L. Gibbs, MSB #4816
Matthew W. Allen, MSB #101605
BRLlNrNr, GRnNrunv, GnowEn & HEwEs, PLLC
190 East capitol Street, suite 100 (39201)
Post Office Drawer I l9
Jackson, Mississippi 39205
Telephone: (601) 948-3 l0l
Facsimile: (601) 960-6902
Email: rgibbs@brunini.com
Email: mallen@brunini.com
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CERTIFICATE OF SERVICE

I, 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 the

following:

Carroll Rhodes, Esq.

Post Office Box 588
Hazlehurst, Mississippi 39083
Email : crhode@bellsouth.net

Michael e. w;lur., Esq.

Charles Stevens Seale, Esq.
Wise Carter Child & Caraway
Post Office Box 651
Jackson, MS 39201-0651
Email : mbw@wisecarter.com
Email: css@wisecarter.com

Robert B. McDuff, Esq.

ROBERT B. MCDUFF
767 North Congress Street
Jackson, Mississippi 39202
Email : rbm@mcduffl aw.com

Harold Pizzetta, Esq.

Justin L. Matheny, Esq.
Office of the Attorney General
Post Office Box220
Jackson, Mississippi 39205
Emai I : hpizz@ago. state. m s. us
Email : jmath@ago. state.ms.us

Samuel L. Begley, Esq.

Begley Law Firm, PLLC
Post Office Box 287
Jackson, Mississippi 39205
Email : sbegley I @bellsouth.net

0t 16251 1
Case 3:11-cv-00159-CWR -FKB Document 41 Filed 04/01/11 Page 9 of 9

Stephen L. Thomas, Esq.

Jack L. Wilson, Esq.
Bradley Arant Boult Cummings LLP
Post Office Box 1789
Jackson, Mississippi 39215-l 789
Email : sthomas@babc.com
Email : jwilson@babc.com

SO CERTIFIED, this the 1" day of April, 2011.

/s/ Robert L. Gibbs