Case 3:11-cv-00159-TSL -EGJ -LG Document 88 Filed 04/27/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE NAACP, ET AL.

Plaintiffs,

vs. No. 3:11-cv-159 (TSL)(FKB)

HALEY BARBOUR, ET AL.,

Defendants,
and

THE APPORTIONMENT AND ELECTIONS COMMITTEE

OF THE MISSISSIPPI HOUSE OF REPRESENTATIVES,
SENATOR TERRY C. BURTON, AND SENATE DEMOCRATIC
CAUCUS,

Intervenors.

RESPONSE OF INTERVENOR
HOUSE APPORTIONMENT AND ELECTIONS
COMMITTEE IN OPPOSITION TO THE MOTION OF THE
MISSISSIPPI REPUBLICAN PARTY TO APPOINT AN EXPERT

The Intervenor House Apportionment and Elections Committee opposes the motion

of the Mississippi Republican Party to appoint an expert to draw redistricting plans. This is

for several reasons, including the following:

1. Plans already exist which can be used as interim plans for the 2011 elections.

These are the 2011 House and Senate plans referenced by this Court in its order scheduling

a status conference. The drawing of 122 House districts and 52 Senate districts by a court-

appointed expert, with opportunity for review and input by the parties, will be difficult to

accomplish in time to give the public and potential candidates an opportunity to review the

districts prior to the June 1 qualifying deadline.1 The drawing of 174 legislative districts is

1
In Smith v. Clark, 189 F. Supp. 2d 503, 510 (S.D. Miss. 2002) (three-judge court) a
three-judge panel of this Court declined to postpone the March 1 congressional qualifying
deadline in Mississippi because postponement “would create confusion, misapprehension and
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much more time-consuming than the four congressional districts that were the subject of the

court-drawn congressional redistricting plan in Smith v. Clark.

2. As noted by Senator Burton in his opposition to the motion to appoint an expert,

the Supreme Court has made it clear that the more stringent standards for court-ordered plans

do not apply to plans involving the exercise of legislative judgment, even if those plans have

not satisfied all of the requirements of state law. See also, Burns v. Richardson, 384 U.S. 73,

85-86 (1966) (despite the fact that state law required a constitutional amendment and vote

of the people before any redistricting could take place, the Supreme Court ordered the

District Court to adopt H.B. 987 and the existing house apportionment as an interim plan,

saying the District Court should “adopt the plan as the court’s own” for purposes of the

upcoming election, but providing that it should not be used in future elections, particularly

if “constitutional deficiences in the interim plan are shown.”); Wise v. Lipscomb, 437 U.S.

535, 548 (1978) (opin. of Justice Powell) (noting that in Burns, a constitutional amendment

and vote of the people was required to redistrict under state law, and that even though the

legislature’s proposed plan had not been submitted to the voters, “this Court treated the plan

. . . as a legislative plan” and ordered that it be imposed).

3. Traditionally, the House and the Senate in Mississippi have designed their own

plans, with each house deferring to the other. Consistent with that deference, the Standing

Joint Legislative Committee on Reapportionment, composed of ten Senators and ten

Representatives, approved the House plan that ultimately passed the House and the Senate

plan that ultimately passed the Senate. Ultimately, the Senate passed the Senate plan and the

House agreed to the Senate plan out of deference without debating its merits. However,

burdens for the voters, for the political parties, and for the candidates.” The situation is even
more problematic for a June 1 qualifying deadline.
2
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despite the Joint Committee’s approval of both plans and the deference of the House to the

Senate plan, the Senate broke with tradition and did not approve the House plan. See Exhibit

1 (affidavit of Thomas U. Reynolds and attached Joint Committee minutes of March 3, 2011

and March 7, 2011). Senator Burton notes that both houses have approved the Senate plan.

While that technically is true, the House approval of the Senate plan resulted from the

tradition of deference. The subsequent failure of the Senate to show the same deference does

not make the House plan any less appropriate than the Senate plan as an interim remedy.

4. The Republican proposal for a court-appointed expert would not allow the expert

to consider such traditional redistricting criteria as avoiding contests between incumbents and

attempting to maintain the cores of pre-existing districts, see, Smith v. Clark, 189 F. Supp.

2d 529, 544-545 (S.D. Miss. 2002) (three-judge court), or other criteria previously used in

redistricting in Mississippi.

5. The Republican Party’s motion asks that the costs of any expert be borne by the

House Apportionment and Elections Committee. The motion provides no explanation as to

why that should be, and the Committee opposes that request.

Respectfully submitted,

s/Robert B. McDuff
ROBERT B. MCDUFF
Miss. Bar No. 2532
767 North Congress Street
Jackson, Mississippi 39202
(601) 969-0802
rbm@mcdufflaw.com

Counsel for Intervenor

House Apportionment and Elections Committee

3
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CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2011, I electronically filed the foregoing with the Clerk of the

Court using the ECF system which sent notification to the following:

Carroll Edward Rhodes Samuel Begley

LAW OFFICES OF CARROLL RHODES Begley Law Firm
P. O. Box 588 P.O. Box 287
Hazlehurst, MS 39083 Jackson, MS 39205

Stephen Lee Thomas

Jack L. Wilson John F. Hawkins
BRADLEY ARANT BOULT HAWKINS, STRACENER, & GIBSON,
CUMMINGS LLP PLLC
P.O. Box 1789 P.O. Box 24627
Jackson, MS 39215-1789 Jackson, MS 39225-4627

Michael B. Wallace
Charles Stevens Seale R. Andrew Taggart , Jr.
WISE CARTER CHILD & CARAWAY Clay B. Baldwin
P.O. Box 651 TAGGART, RIMES & USRY, PLLC
Jackson, MS 39205-0651 P. O. Box 3025
Madison, MS 39130
Harold Pizzetta, III,
Chief, Civil Litigation Division
Justin L. Matheny Cory T. Wilson
Office of the Attorney General WILLOUGHBY LAW GROUP, PLLC
P.O. Box 220 602 Steed Road
Jackson, MS 39205 Suite 110
Ridgeland, MS 39157
Robert L. Gibbs
Matthew W. Allen
BRUNINI, GRANTHAM, GROWER &
HEWES
P. O. Drawer 119
Jackson, MS 39205-0119

Crystal Wise Martin

Hinds County Board of Supervisors
Attorney
P. O. Box 686
Jackson, MS 39205-0686

This 27th day of April, 2011.

s/Robert B. McDuff
Counsel for Intervenor
House Apportionment and Elections Committee