Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

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 other similarly situated PLAINTIFFS

v. NO. 3:11-cv-159 TSL-EGJ-LG

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; TERRY C. BURTON, SIDNEY BONDURANT,
BECKY CURRIE and MARY ANN STEVENS INTERVENORS

______________________________________________________________________________

JOINT RESPONSE OF GOVERNOR HALEY BARBOUR AND THE MISSISSIPPI

REPUBLICAN PARTY EXECUTIVE COMMITTEE IN OPPOSITION TO MOTION
OF INTERVENOR HOUSE APPORTIONMENT AND ELECTIONS COMMITTEE
______________________________________________________________________________

Like a parricide suing to collect his parent’s life insurance, the intervenor House

Apportionment and Elections Committee (hereinafter the “House Committee”) asks this Court to
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 2 of 17

order into effect a redistricting plan for the House of Representatives that it could not sell to the

Mississippi Senate. [Dkt. 82]. Indeed, it is not even clear which House plan the House

Committee is trying to sell to this Court, because two different plans were adopted on the House

floor. Neither the House plan nor the Senate plan, which the House accepted only on the

condition that the Senate would not exercise its constitutional duty to scrutinize the House plan,

should be ordered into effect by this Court. Because the two unicamerally concocted plans fail

to satisfy Mississippi law or federal law, particularly the equitable considerations governing

judicially imposed remedial plans, Governor Haley Barbour and the Mississippi Republican

Party Executive Committee (hereinafter the “Republican Party”) urge this Court to deny the

motion.1

ARGUMENT

I. THE TWO PLANS ADOPTED SEPARATELY BY THE HOUSE AND SENATE

ARE NOT LEGISLATIVE PLANS TO WHICH THIS COURT SHOULD DEFER.

A. The Legislature has not adopted a redistricting plan by joint resolution as

§ 254 of the Mississippi Constitution requires.

The Mississippi Constitution very clearly mandates that state legislative redistricting be

accomplished by “joint resolution” of both Houses of the Legislature. Miss. Const. § 254. That

section also clearly requires that such joint resolution be passed by “majority vote of all members

of each house.” There are fifty-two (52) members of the Mississippi Senate and one hundred

twenty-two (122) members of the House (the membership of both houses of the Legislature is

also defined in § 254).

1
Plaintiffs [Dkt. 86] and the Mississippi Democratic Party Executive Committee [Dkt. 83] have
joined the House Committee’s motion. Attorney General Jim Hood has filed a motion seeking the same
relief. [Dkt. 89] Plaintiffs have also filed a motion asking the Court to order the Attorney General to
submit the un-enacted House and Senate Plans to the Department of Justice for review under § 5 of the
Voting Rights Act. [Dkt. 91] The arguments of those parties essentially duplicate those made by the
House Committee and should be rejected for the same reasons.
2
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 3 of 17

In the past, each House of the Legislature acting separately, following what has been

described as a “gentlemen’s agreement,” not defined in the Constitution or even in the rules

adopted by the Legislature regarding its operation and conduct, determined how to redistrict its

own membership. The full Legislature then adopted the separately-crafted redistricting plans for

each house as part of a joint resolution as required by § 254. That process did not occur this

year.

In fact, when the Senate refused to accept the House-passed plan and “invited

conference” (meaning that the Senate offered to and did appoint conferees to a conference

committee to attempt to work out differences and to come to agreement on a plan that might be

jointly adopted as required by § 254), the House, acting through its elected Speaker, refused to

confer and to appoint conferees.2 Later, near the end of the legislative session, the House

amended its earlier plan and voted to amend a Senate Concurrent Resolution to forward the

newly-passed House plan to the Senate for a vote. The Senate, based on the joint resolution

requirement of § 254, declined to consider or vote on the new House plan.3

Clearly, there is no “legislative plan” as defined by the Constitution upon which this

Court can rely. Indeed, “the failure of a bill to be enacted evidences a legislative policy that the

bill is not desired by the legislature.” Shayer v. Kirkpatrick, 541 F. Supp. 922, 932 (W.D. Mo.

1982) (three-judge court) (emphasis added). Therefore, this Court “cannot simply embrace as

2
Those facts are apparent from the legislative history attached by plaintiffs as Exhibit A to their
joinder in the House Committee motion [Dkt. 86]. Also, see House Resolution No. 93, “A Resolution
Urging the Speaker of the House of Representatives to Appoint Conferees on Joint Resolution 201, To
Negotiate a Redistricting Plan,” which was introduced by 55 Representatives on March 23 but died in
committee. A copy of H.R. 93 and its History of Actions are attached as Exhibit 1 and are available at
http://billstatus.ls.state.ms.us/2011/pdf/history/HR/HR0093.xml.
3
The affidavit of Chairman Reynolds, attached as Exhibit 1 to the response of the House
Committee in opposition to the Republican Party’s motion for appointment of expert [Dkt. 88], confirms
that this second House plan did not receive a vote in the Senate.
3
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 4 of 17

[its] own the bill that went the furthest or that experts believe would have or could have passed.”

Id. “Such action would be a massive intrusion into the legislative process.” Id. This Court

“would, in effect, be amending the rules for enacting legislation” in the State of Mississippi if it

granted the relief requested by the House Committee. Id. Ordering into effect plans that the

Legislature itself refused to enact cannot be justified as an act of deference to state policy. The

only state districting policies in force that have the actual approval of the Legislature are found

in Miss. Code Ann. § 5-3-101 (Rev. 2002). This Court should follow those policies, not the un-

enacted preferences of legislators who defaulted on their constitutional responsibility to

redistrict. Shayer, 541 F. Supp. at 932 (“Other than the state constitution’s compact and

contiguous requirements, state policies are difficult to discern. Following them is not required

by state law, so we have given the compact and contiguous requirements preeminence over all

other state policies.”).

For this Court to grant the House Committee’s motion also would ensure that § 254 will

never be applied as Mississippi voters intended. The court in Carstens v. Lamm, 543 F. Supp. 68

(D. Colo. 1982) (three-judge court), made this very point in refusing to adopt a plan that was

passed by both houses of the Colorado legislature but vetoed by the state’s governor. Id. at 78-

79. There, the plaintiffs argued that “[s]ince redistricting is primarily the responsibility of the

State Legislature,” the last plan enacted by the legislature (but vetoed by the governor)

“represents current state policy on redistricting and should receive priority during the Court’s

deliberations.” Id. at 78. The court rejected that argument because “[t]he Colorado Constitution

explicitly provide[d] that every bill passed by the General Assembly shall be signed by the

Governor before it becomes law.” Id. at 79. Apropos of this case, the court reasoned that “[t]o

take the [plaintiffs’] position to its logical conclusion, a partisan state legislature could simply

4
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 5 of 17

pass any bill it wanted, wait for a gubernatorial veto, file suit on the issue and have the Court

defer to its proposal.” Id. But the court refused to do so, explaining that it would “not override

the Governor’s veto when the General Assembly did not do so.” Id.

Here too, the Legislature has not adopted any redistricting plan according to the

procedures explicitly provided for in the Mississippi Constitution. Those legislators who

disagreed with the proposed plans—with good reason, see infra—prevented their adoption,

exercising an effective veto over the plans. Yet the House Committee now wants this Court to

adopt the plans anyway and override the requirements of § 254 of the Mississippi Constitution.

As Carstens points out, if the House and Senate can each achieve by judicial decree a

redistricting plan satisfactory to that body’s members, why would conferees ever be appointed to

attempt to reach a compromise on a joint resolution, as § 254 requires? To grant the House

Committee’s motion would guarantee that, every ten years, the Legislature will adjourn without

attempting to reach a compromise and that its members will troop before this Court to seek

enforcement of each body’s favored plan for itself. That is not what § 254 requires, and that is

not the proper role for a federal court charged with enforcing federal law.

B. Plans That The Legislature Refused To Adopt Are Not “Legislative” Plans.

At the April 22 status conference, citing Burns v. Richardson, 384 U.S. 73 (1966),

counsel for the House Committee argued that the House and Senate plans should be considered

“legislative” plans for purposes of the one-person, one-vote mandate despite the fact that the

Legislature refused to adopt them. Burns does not support the Committee’s counterintuitive

argument. Plans that the Legislature refuses to adopt are not “legislative” plans as a matter of

either law or logic.

In Burns, the district court held that the Hawaii state senate was unconstitutionally

malapportioned and ordered the Hawaii legislature to “enact three separate statutes”: one to
5
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 6 of 17

establish an interim apportionment plan for the 1966 elections and two others to amend the

Hawaii constitution as necessary to implement a permanent reapportionment plan. Id. at 80. The

full legislature subsequently enacted an interim apportionment plan, but the district court held

that the plan was unconstitutional not because it resulted in “population disparities” but solely

because it employed “multi-member … legislative districts.” Id. at 86. The Supreme Court held

that the district court erred in enjoining use of the interim plan because Equal Protection Clause

did not require use of single-member districts. Id. at 88. The Court also upheld Hawaii’s use of

registered voters as the basis for apportionment. See id. at 90-97.

Burns was decided nine years before the Court held “that unless there are persuasive

justifications, a court-ordered reapportionment plan of a state legislature must avoid use of

multimember districts, and, as well, must ordinarily achieve the goal of population equality with

little more than de minimis variation.” Chapman v. Meier, 420 U.S. 1, 26-27 (1975). Therefore,

Burns did not discuss the differences between the standards applicable to court-ordered plans and

those applicable to legislative plans. Nonetheless, the Court has since described Burns as having

“treated the proposed plan as a legislative plan, despite the fact that the Hawaii Legislature was

without power to reapportion itself absent a constitutional amendment.” McDaniel v. Sanchez,

452 U.S. 130, 143 n.21 (1981). In McDaniel, the Court went on to hold that the fact that a

reapportionment plan was devised by a county commission in response to an order of a federal

court did not change its character as a legislative plan for purposes of § 5 of the Voting Rights

Act. Id. at 146; see also Wise v. Lipscomb, 437 U.S. 535, 542-49 (1978) (opinions of White and

Powell, JJ.) (holding that a plan enacted by a city council in response to a federal court order was

a “legislative” plan and thus did not violate the rule against court-ordered multimember districts).

As the Court explained, “the essential characteristic of a legislative plan is the exercise of

6
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 7 of 17

legislative judgment. The fact that particular requirements of state law may not be satisfied

before a plan is proposed to a federal court does not alter this essential characteristic.”

McDaniel, 452 U.S. at 152 (citing Wise, 437 U.S. at 548 (Powell, J.): “The essential point is that

the Dallas City Council exercised a legislative judgment, reflecting the policy choices of the

elected representatives of the people….”).

Critically, in Wise, in McDaniel, and in Burns, the legislative body as a whole “exercised

a legislative judgment.” Wise, 437 U.S. at 548 (Powell, J). In Wise, “the Dallas City Council

exercised a legislative judgment” (id.) by adopting a resolution proposing a plan to the district

court and then by enacting an ordinance adopting the plan (see id. at 545-46 (White, J.)).

Likewise, in McDaniel, the County “Commissioners Court officially adopted the plan …

submit[ted] to the District Court.” 452 U.S. at 135. And in Burns, the Hawaii legislature as a

whole enacted the reapportionment plan at issue. 384 U.S. at 80-81. While particular state-law

requirements were not satisfied by the plans at issue in those cases, in each case there was an

unequivocal “exercise of legislative judgment” in response to a federal court order. McDaniel,

452 U.S. at 152. Here, in stark contrast, the Legislature has not exercised legislative judgment.

Indeed, the Legislature’s complete failure to act is the only reason this lawsuit is necessary, and

the only discernible “legislative judgment” is the Legislature’s unwillingness to enact either of

the plans that the House Committee now asks this Court to impose by court order. Because the

Legislature has not exercised judgment, Burns and progeny are inapposite, and the un-enacted

House and Senate plans cannot be considered “legislative” plans for purposes of one person, one

vote.

Put simply, a plan that the relevant legislative body has never approved is not a

“legislative” plan simply because it has some measure of support among legislators. Clark v.

7
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 8 of 17

Putnam County, 293 F.2d 1261, 1264-65 & n.13 (11th Cir. 2002). In Clark, the Eleventh Circuit

addressed an analogous situation:

The [Putnam County reapportionment] plan was approved by a

majority vote of the County’s Board of Commissioners, and,
pursuant to the Georgia Constitution, was presented to the
legislature for its approval. Regrettably, the legislature followed a
course not unfamiliar to those observing state action in matters of
this sort. In short, the legislature walked away from the issue;
defaulted its responsibility to deal with Georgia election matters;
and failed to take any action on the … plan.

Id. at 1264. After the Georgia legislature “defaulted its responsibility,” a federal district court

approved the plan on an “interim” basis. Id. The Eleventh Circuit concluded that although there

was a “substantial dispute” among the parties “as to whether the plan … constituted ‘court-

ordered’ redistricting, or ‘legislatively-drawn’ redistricting,” the plan could only be viewed as

court-ordered. Id. at 1265 n.13. The court reasoned:

While it is true that the county drew the plan which the district
court ultimately ordered, it is also true that the Georgia legislature
did not approve it, which left the plan null and void. Without court
intervention, there would be no … plan to challenge…. We shall
treat this plan as a court-ordered one, since it was.

Id.; see also id. at 1276 (applying the de minimis population deviation requirement applicable to

court-ordered plans).

Likewise in this case, while it is true that the respective Houses of the Legislature drew

the plans that the House Committee now urges this Court to adopt, “it is also true that the

[Mississippi] Legislature did not approve [them], which left the plan[s] null and void.” Id.

Moreover, “[w]ithout [the requested] court intervention” to adopt the plans on an “interim” basis,

there will be no further proceedings concerning those plans of the sort proposed by the House

Committee. [Dkt. 82]. Therefore, as in Putnam, this Court should treat the un-enacted House

and Senate plans as proposed court-ordered plans, since that is what they are.

8
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 9 of 17

II. THE TWO PLANS DO NOT MEET THE REQUIREMENTS FOR JUDICIALLY
IMPOSED REMEDIAL PLANS.

A. The two plans fail to satisfy the requirement of substantial population

equality.

Both legislative bodies and courts must satisfy the population equality requirement of the

Equal Protection Clause of the Fourteenth Amendment, but the constraints on remedial plans

imposed by the courts are significantly tighter. As the Supreme Court of the United States ruled

in an earlier appeal from this Court’s imposition of a redistricting plan for the Mississippi

Legislature, “unless there are persuasive justifications, a court-ordered reapportionment plan of a

state legislature … must ordinarily achieve the goal of population equality with little more than

de minimis variation.” Connor v. Finch, 431 U.S. 407, 414-15 (1977) (quoting Chapman v.

Meier, 420 U.S. 1, 26-27 (1975) (alteration omitted). The House Committee does not bother to

suggest what important state interests can justify the substantial deviations from absolute

equality found in both plans.

As the Republican Party explained at page 5 of its memorandum supporting its motion

for apportionment of expert [Dkt. 68; see also Dkt. 70 at 3], binding Fifth Circuit precedent

precludes this Court from imposing wide deviations by judicial decree. In Wyche v. Madison

Parish Police Jury, 635 F.2d 1151, 1159 (5th Cir. 1981), the court held that a deviation of 8.2%

in a court-ordered plan was “far more than de minimis” and therefore violated one person, one

vote. See also Chapman, 420 U.S. at 25-26 (refusing to assume that a 5.95% deviation in a

court-ordered plan would satisfy one person, one vote); Marshall v. Edwards, 582 F.2d 927, 937-

38 (5th Cir. 1978) (stating that “a maximum population deviation of 9.7 percent … would seem

to be unacceptably high” for a court-ordered plan); Colleton County Council v. McConnell, 201

F. Supp. 2d 618, 655, 660 (D.S.C. 2002) (devising state house and senate plans with deviations

9
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 10 of 17

of plus or minus 1%). Here, both plans far exceed the population deviations previously

permitted by the Fifth Circuit. Both House plans deviate 4.983% above and below the norm, for

a total deviation of 9.966%. The Senate plan is only a little better. The largest district is 4.672%

above the norm, and the smallest 4.726% below the norm, for a total deviation of 9.398%. See

Declaration of Thomas Brooks Hofeller, Ph.D. (“Hofeller Decl.”), ¶¶ 8-9, attached as Exhibit 2.

Neither plan reaches the 10% limit which typically invalidates a legislative plan, but neither can

remotely meet the standards for judicial plans.

Moreover, while a deviation in excess of the 10% “standard” referenced by the House

Committee [Dkt. 82 at 2] establishes that a true legislative plan is prima facie unconstitutional, a

deviation of slightly less than 10% “does not provide a safe harbor.” Fairley v. Hattiesburg, 584

F.3d 660, 675 (5th Cir. 2009) (emphasis added). Accordingly, the two plans, particularly the

House plan, would likely be unconstitutional even if they had been properly adopted under

§ 254. As the district court explained in Larios v. Cox, even legislative plans must justify

substantial deviations from population equality. 300 F. Supp. 2d 1320, 1339-53 (N.D. Ga.)

(holding that state legislative reapportionment plans with total population deviations of 9.98%

violated the one-person, one-vote principle by systematically under-populating certain districts

for partisan advantage), summarily aff’d, 542 U.S. 947 (2004). While partisan gerrymandering

by itself does not violate the Constitution, partisan gerrymandering cannot support population

deviations that would otherwise violate the Equal Protection Clause. In the original House plan,

districts presently having Democratic incumbents have average populations of 1.0% below the

norm. Districts with Republican incumbents average 1.3% above the norm. Hofeller Decl. ¶ 12.

In addition, the House plan has redrawn or relocated certain districts presently represented by

Republicans so that they have a black voting age population majority; excluding those districts,

10
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 11 of 17

the average population of the remaining Republican districts is 1.5% above the norm. Id.

Whether the over-representation of Democratic districts and under-representation of Republican

districts happened on purpose or by accident, it defeats any suggestion that the broad population

discrepancies in the House plan can be justified by neutral state policies.

Contrary to the arguments of the House Committee, it is not significant that the partisan

gerrymandering in this case is less “extreme” than that involved in Larios. [Dkt. 82]. Rather,

the point is that partisan interests cannot possibly supply a justification for unnecessary

population deviations. “[T]he Equal Protection Clause requires that a State make an honest and

good faith effort to construct districts, in both houses of its legislature, as nearly of equal

population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 577 (1964). Even a plan actually

adopted by a legislature does not comply with Reynolds’s requirement of “an honest and good

faith effort” if it systematically employs near-10% population deviations to promote partisan

interests. Certainly, it cannot satisfy the much higher standard of population equality applicable

to court-ordered plans.

One other point requires mention. The peculiarities of the House plans contain certain

details that are not immediately apparent from a mere analysis of the numbers. For instance, the

borders of District 121, represented by Democrat Diane Peranich, were substantially redrawn

with the effect of removing from her district the residence of Jeff Wallace, who had announced

an intention to challenge her. Declaration of Timothy Saler (“Saler Decl.”) ¶ 6, attached as

Exhibit 3. In fact, the House plan removes Mr. Wallace from District 121 by splitting the very

precinct in which he resides. Id. Mr. Wallace’s exclusion from District 121 is not an isolated

case. In three other instances, the House plan draws announced Republican challengers to

Democratic incumbents out of the incumbents’ districts. Id. ¶¶ 3-5. District 24, represented by

11
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 12 of 17

Republican Sid Bondurant, has a compactness measure of 0.36 under the plan presently in effect.

That measure was reduced to 0.16 under the first House plan and 0.11 under the second House

plan. Hofeller Decl. ¶ 6. Additional, similar examples are noted in an attached declaration. See

Hofeller Decl. ¶¶ 6-7. It is hard to escape the conclusion that the House Committee has pointed

the gun and is now asking this Court to pull the trigger. While politics may not be

unconstitutional, it is not a practice in which this Court should agree to engage.

B. The two plans do not meet the criteria set by Miss. Code Ann. § 5-3-101.

As also explained in the memoranda supporting the Republican Party’s motion for

appointment of expert [Dkt. 68 and 70], Mississippi has established neutral redistricting criteria

in Miss. Code Ann. § 5-3-101 (Rev. 2002). They are similar to the neutral criteria that federal

courts have traditionally applied in remedial orders, as this Court did in Smith v. Clark, 189 F.

Supp. 2d 529, 540-41 (S.D. Miss. 2002). This Court must employ those criteria except to the

extent necessary to comply with federal law. Both plans endorsed by the House Committee

deviate substantially from those criteria.

As demonstrated in the attached declaration, both plans deviate significantly from

accepted measures of compactness. For instance, a square district would have a compactness

measure of 0.64. Both House plans display a compactness measure of 0.33. Hofeller Decl. ¶ 5.

While some deviation from compactness may be expected in an effort to create minority districts

in compliance with § 5 of the Voting Rights Act, certain non-minority districts, now represented

by Republicans, are reduced to compactness measures such as 0.11 and 0.13. Id. ¶ 6. The

district of Democratic Representative Peranich, from which her likely opponent has been

excluded, now has a compactness measure of 0.16. Id. The Senate plan is better, with an

12
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 13 of 17

average compactness of 0.38, id. ¶ 7, but the House Committee does not even pretend that either

plan satisfies the compactness requirement of § 5-3-101.

Nor can it be said that either plan meets the statutory requirement of crossing county

lines, and other jurisdictional lines, as rarely as possible. Numerous counties could have been

divided into House districts without breaking county lines and without violating any provision of

federal law. As the attached declaration demonstrates, Warren County, Oktibbeha County, and

Lafayette County could each have two districts, but are divided into five, six, and four,

respectively. In the Senate plan, Pearl River County could stand alone as a single district, but,

like Gaul, it is divided into three parts. Hofeller Decl. ¶¶ 10-11.

The House Committee does not even acknowledge this Court’s obligation to effectuate

the policies set forth by statute in Mississippi, much less attempt to explain how its plan could

meet them. The inescapable conclusion is that the two plans do not even attempt to meet the

requirements of § 5-3-101, and therefore may not be used for remedial purposes by this Court.

III. ALTERNATIVELY, THIS COURT SHOULD ALLOW THE 2011 ELECTIONS

TO PROCEED UNDER THE EXISTING PLANS.

If, contrary to the suggestion set forth in the Republican Party’s motion for appointment

of expert [Dkt. 67], this Court chooses to impose an “interim” plan for the 2011 election, for

such a term as this Court shall see fit to set, then it should not use the two plans suggested by the

House Committee. Instead, the existing plans are superior in many respects.

In the first place, the two existing plans really are legislative plans. Unlike the plan now

endorsed by the House Committee, they really were adopted by a joint resolution of the entire

Mississippi Legislature, as the people of Mississippi required in § 254 of the Constitution. While

that expression of Mississippi policy is now almost a decade old, it at least has the benefit of

constitutional legitimacy.

13
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 14 of 17

Moreover, both plans were actually approved by the Attorney General of the United

States pursuant to § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Counsel for the House

Committee may have had good reason to assure the Court that federal approval of his client’s

plans can be obtained, but this Court can have no certainty in predicting the conduct of a party

not presently before the Court. By contrast, this Court knows for certain that the existing plans

have been approved as non-discriminatory.

Third, at least with regard to the House plan, the measure of compactness is even worse

under the new plans than under existing law. The existing plan has a compactness measure of

0.34. Both House plans endorsed by the House Committee reduce that measure to 0.33. By

contrast, the Senate plan remains stable at 0.38.

Worst of all, the evidence demonstrates that the House plans contain political agendas

that should be alien to any plan imposed by a federal court. See, e.g., Wyche, 635 F.2d at 1160

(“a court is forbidden to take into account the purely political considerations that might be

appropriate for legislative bodies”); Wyche v. Madison Parish Police Jury, 769 F.2d 265, 268

(5th Cir. 1985) (“Many factors, such as the protection of incumbents, that are appropriate in the

legislative development of an apportionment plan have no place in a plan formulated by the

courts.”). The record does not reflect the political agendas that may have motivated the adoption

of the existing plans a decade ago, but those quarrels are long past. Specific districts and specific

candidates will be disadvantaged by a House plan which the House Committee invites this Court

to adopt. This Court should decline the invitation.

CONCLUSION

For the reasons stated in the Republican Party’s motion to appoint expert [Dkt. 67], this

Court should adopt its own remedial plan for 2011 to elect a Legislature for a full four-year term.

14
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 15 of 17

Alternatively, this Court should employ the current plans in 2011 for such a term as this Court

may see fit. In no event should this Court order into effect the plans endorsed by the House

Committee in its motion.

Respectfully submitted, this the 29th day of April, 2011.

MISSISSIPPI REPUBLICAN PARTY GOVERNOR HALEY BARBOUR, IN HIS

EXECUTIVE COMMITTEE OFFICIAL CAPACITY AS GOVERNOR OF
THE STATE OF MISSISSIPPI AND AS A
MEMBER OF THE STATE BOARD OF
ELECTION COMMISSIONERS

/s/Michael B. Wallace s/Jack L. Wilson

MICHAEL B. WALLACE (MB No. 6904) STEPHEN L. THOMAS (MB No. 8309)
mbw@wisecarter.com sthomas@babc.com
C. STEVENS SEALE (MB No. 6688) JACK L. WILSON (MB No. 101482)
css@wisecarter.com jwilson@babc.com
JAMES D. FINDLEY (MB No. 103649) BRADLEY ARANT BOULT CUMMINGS LLP
jdf@wisecarter.com 188 East Capitol Street
WISE CARTER CHILD & CARAWAY Jackson, MS 39201
Post Office Box 651 Post Office Box 1789
Jackson MS 39201-0651 Jackson, MS 39215-1789
Telephone: (601) 968-5534 Telephone: (601) 948-8000
Facsimile: (601) 944-7738 Facsimile: (601) 948-3000

15
 
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 16 of 17

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court using
the ECF system which sent such notification of such filing to the following:

Carroll Rhodes, Esq.

Law Offices of Carroll Rhodes
Post Office Box 588
Hazlehurst, MS 39083-0588

Robert L. Gibbs, Esq.

Matthew W. Allen, Esq.
Brunini Grantham Grower & Hewes
Post Office Drawer 119
Jackson, MS 39205-0119

Samuel L. Begley, Esq.

Begley Law Firm
Post Office Box 287
Jackson, MS 39205-0287

Harold E. Pizzetta, III, Esq.

Justin L. Matheny, Esq.
Office of the Attorney General
Post Office Box 220
Jackson, MS 39205

Robert Bruce McDuff, Esq.

Robert McDuff Law Office
767 N. Congress Street
Jackson, MS 39202-3009

Crystal W. Martin, Esq.

Precious Martin Sr. & Associates
Post Office Box 373
Jackson, MS 39205-0373

R. Andrew Taggart, Jr., Esq.

Clay B. Baldwin, Esq.
Taggart, Rimes & Usry, PLLC
1022 Highland Colony Pkwy, Ste. 101
Ridgeland, MS 39157
 Case 3:11-cv-00159-TSL -EGJ -LG Document 92 Filed 04/29/11 Page 17 of 17

John F. Hawkins, Esq.

Hawkins Stracener & Gibson, PLLC
Post Office Box 24627
Jackson, MS 39225-4627

Cory T. Wilson, Esq.

Willoughby Law Group, PLLC
602 Steed Road
Suite 110
Ridgeland, MS 39157

This, the 29th day of April, 2011.

s/Jack L. Wilson
STEPHEN L. THOMAS (MB No. 8309)
sthomas@babc.com
JACK L. WILSON (MB No. 101482)
jwilson@babc.com
BRADLEY ARANT BOULT CUMMINGS LLP
188 East Capitol Street
Jackson, MS 39201
Post Office Box 1789
Jackson, MS 39215-1789
Telephone: (601) 948-8000
Facsimile: (601) 948-3000