Case 3:11-cv-00159-TSL -EGJ -LG Document 74 Filed 04/21/11 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE PLAINTIFFS

NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE, THOMAS PLUNKETT, ROD
WOULLARD, and HOLLIS WATKINS, on behalf of themselves
and all others similarly situated

VS. CIVIL ACTION NO. 3:11-cv-159TSL-EGJ-LG-MTP

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 similarly situated DEFENDANTS

AND

APPORTIONMENT AND ELECTIONS COMMITTEE

OF THE MISSISSIPPI HOUSE OF REPRESENTATIVES;
MISSISSIPPI STATE SENATE DEMOCRATIC CAUCUS
AND STATE DEMOCRATIC SENATORS, in their individual
capacities; and TERRY C. BURTON INTERVENORS

PLAINTIFFS’ REBUTTAL TO RESPONSE OF

MISSISSIPPI GOVERNOR HALEY BARBOUR
IN OPPOSITION TO THE MOTION FOR A PRELIMINARY INJUNCTION

Mississippi Governor Haley Barbour (“Governor Barbour”) argues that “[p]laintiffs’ motion

should be denied because plaintiffs fail to establish that such an injunction is in the public interest

and necessary to avoid irreparable harm.” [Governor Barbour Response, p. 2]. Governor Barbour

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relies on the Fifth Circuit’s decision in Chisom to support his argument. Chisom v. Roemer, 853 F.

2d 1186, 1188 (5th Cir. 1988). However, Chisom is distinguishable from the instant case primarily

because of the type of elections being challenged. In Chisom, the plaintiffs challenged state supreme

court elections. The State of Louisiana had only seven justices. An injunction enjoining the elections

could have raised questions about the validity of judicial decrees. The Fifth Circuit noted:

The core value of the law and its implementing judicial system is
stability-the ability reasonably to anticipate the results of actions
and proceedings, by individuals and by legal institutions. Staying
the election for a justice of the First Supreme Court District casts
a cloud over the Louisiana Supreme Court, as staying any judicial
election would cast a cloud over the affected court. The Louisiana
Constitution provides that the terms of the justices of its supreme
court are ten years. The term of Justice Calogero expires on December
31, 1998. If the regularly scheduled election did not go forward,
would Louisiana have seven justices on its highest court on
January 1, 1989? If the election is enjoined and Justice Calogero
continues to serve, will there by any question about the validity
of his actions as a justice?

Chisom v. Roemer, supra, at 1190. The present case does not involve the election of judges.

Furthermore, the Governor can call the legislature to a special session to draft a remedy to the plan

held unconstitutional by the court. The state election machinery has not begun to act concerning

legislative elections. The candidate qualification date is more than a month away and primary

elections are more than three months away. The facts in the present case are more similar to the facts

in Larios than Chisom. In Larios, a three-judge district court held”

Equally importantly, the practical effect of a stay would be that the

State of Georgia would conduct the 2004 election again using
unconstitutional apportionment plans. There will not be sufficient
time to implement new plans if this action is stayed pending
appeal. In fact, the 2002 elections have already been conducted
under the unconstitutional plans. If the court permits a stay, thereby
allowing the 2004 elections also to proceed pursuant to unconstitutional

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plans, the plaintiffs and many other citizens in Georgia will have
been denied their constitutional rights in two of the five elections1 to be
conducted under the 2000 census figures. We are mindful of the
Supreme Court’s advice in Reynolds that ‘once a State’s legislative
apportionment scheme has been found to be unconstitutional, it
would be the unusual case in which a court would justified in not
taking appropriate action to insure that no further elections are
conducted under the invalid plan. Reynolds, 377 U. S. at 585,
84 S. Ct. at 1393.

Larios v. Cox, 305 F. Supp. 2d 1335, at 1344 (N. D. Ga. 2004) (three-judge court) (per curiam).

Therefore, granting an injunction in the present case is in the best interest since there is sufficient

time for the Governor to call a special session of the legislature to remedy the malapportioned

districts, or for the court to fashion a remedy without interfering with the state election machinery.

Governor Barbour argues that plaintiffs’ assertion that there is sufficient time to fashion a

remedy “is, at best, speculative.” [Governor Barbour Response, p. 2]. The Watkins court did not

have sufficient time to fashion a remedy because plaintiffs’ complaint, in that case, was filed less

than three months before scheduled primary elections. Watkins v. Mabus, 771 F. Supp. 789 (S. D.

Miss.) (three-judge court), aff’d in part and vacated as moot in part, 502 U. S. 954 (1991).

Plaintiffs’ complaint, in the instant case, was filed four and one-half months before party primaries

and two and one-half months before the candidate qualification date. The Watkins court scheduled

a hearing and considered plans after the candidate qualification deadline, but the court did not have

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If the court did not fashion a remedy, plaintiffs and other voters would have voted in
malapportioned districts in 40% of the elections during that census decade. If an injunction does
not issue and a remedy is not fashioned for the malapportioned districts in the present case,
plaintiffs and other voters would have voted in 33% of the elections during this census decade.
Although the voters in Larios would have voted in a higher percentage of elections with
malapportioned districts than voters in the instant case, the percentage of voters voting in
malapportioned districts would still be substantial if an injunction is not issued and a remedy
fashioned. In other words, it is in the public interest for voters in legislative elections to vote in
districts that are not malapportioned. Larios v. Cox, supra.

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sufficient time to fashion its own remedy after finding the remedies offered by the parties to be

unacceptable. The court has considerably more time to fashion a remedy if the Governor refuses to

call a special session or the legislature refuses to act. The statement that there is sufficient time for

the court to fashion a remedy is not speculative.

Plaintiffs request an injunction prohibiting use of the current districts as a permanent remedy.

The plaintiffs do not request a stay of the elections. Instead, plaintiffs request that elections be held

as scheduled under a plan that satisfies the one-person, one-vote principle of the Equal Protection

Clause of the fourteenth amendment to the United States Constitution.2

Plaintiffs agree with Governor Barbour that there is a possibility the court will utilize the

current malapportioned districts as an interim remedy only for one year. Watkins v. Mabus, supra.

However, this possibility is the last option available for the court to consider after all other options

have failed. Id. However, plaintiffs submit that there is sufficient time for the legislature to act and

obtain preclearance of its plans, or failing that, there is sufficient time for the court to fashion its own

remedy. The use of current districts is the last option. See, Watkins v. Mabus, supra.

WHEREFORE, PREMISES CONSIDERED, plaintiffs respectfully move to issue a

preliminary injunction enjoining legislative elections using the current benchmark districts.

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Plaintiffs request that the court declare the current legislative districts unconstitutionally
malapportioned and grant them general relief. The request for general relief is broad enough to
include allowing the legislature to draw and obtain preclearance of remedial plans, Wise v.
Lipscomb, 437 U. S. 535 (1978), McDaniel v. Sanchez, 452 U. S. 130 (1981), or, using court
drawn plans if the legislature fails to present precleared plans and elections are imminent, Wise v.
Lipscomb, supra, Smith v. Clark, 189 F. Supp. 2d 529 (S. D. Miss. 2002) (three-judge court),
aff’d 538 U. S. 254 (2003), or, as a last resort, using the malapportioned districts as an interim
remedy if the legislature fails to obtain precleared plans and there is insufficient time for the
court to draw plans. Watkins v. Mabus, supra. If the Court utilizes the current malapportioned
districts as an interim remedy, the election results should be set aside and new elections ordered
within a year. See, Watkins v. Mabus, supra.

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Since the authorities for this motion are contained herein, plaintiffs request leave of court

from the requirement of filing a separate memorandum of authorities.

This the 21st day of April, 2011.

Respectfully submitted,
MISSISSIPPI STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,
THOMAS PLUNKETT, ROD WOULLARD,
and HOLLIS WATKINS, on behalf of
themselves and all others similarly situated

/s/ Carroll Rhodes

CARROLL RHODES, ESQ., MSB # 5314
LAW OFFICES OF CARROLL RHODES
POST OFFICE BOX 588
HAZLEHURST, MS 39083
TEL.: (601) 894-4323
FAX: (601) 894-1464
e-mail: crhode@bellsouth.net

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CERTIFICATE OF SERVICE

I, Carroll Rhodes, do hereby certify that I have this date electronically filed the foregoing
Rebuttal to Governor Haley Barbour’s Response to Motion for Preliminary Injunction with the Clerk
of Court using the ECF system which sent notification of such filing to the following:

Michael B. Wallace, Esq. Charles Stevens Seale, Esq.

mbw@wisecarter.com css@wisecarter.com

Samuel L. Begley, Esq.

sbegley1@bellsouth.net

Robert B. McDuff, Esq.

rbm@mcdufflaw.com

Harold Pizetta, Esq. Justin L. Matheny, Esq.

hpizz@ago.state.ms.us jmath@ago.state.ms.us

Crystal Martin, Esq.

cmartin@co.hinds.ms.us

Jack L. Wilson, Esq. Stephen Lee Thomas, Esq.

jwilson@babc.com sthomas@babc.com

Robert L. Gibbs, Esq. Matthew W. Allen, Esq.

rgibbs@brunini.com mwallen@brunini.com

John F. Hawkins, Esq.

john@hsglawfirm.net

This the 21st day of April, 2011.

/s/ Carroll Rhodes

CARROLL RHODES