Case: 11-60446
Document: 00511669489
Page: 1
Date Filed: 11/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 11-60446
HANCOCK COUNTY BOARD OF SUPERVISORS,
Plaintiff
v.
KAREN LADNER RUHR, in her official capacity as Hancock County Circuit Clerk and Hancock
County Registrar, ET AL,
Defendants
JIM HOOD, Attorney General for the Sate of Mississippi ex rel. the State of Mississippi,
Intervenor Defendant - Appellee
HAZELHURST, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all others similarly situated;
NANETE THURMOND-SMITH,
Plaintiffs - Appellants
v.
COPIAH COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; COPIAH COUNTY, MISSISSIPPI
DEMOCRATIC PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI BOARD OF
ELECTION COMMISSIONERS, EDNA STEVENS, in her official capacity as Circuit Clerk,
Defendants - Appellees
_______________________________________________
BRIEF OF INTERVENOR DEFENDANT-APPELLEE
ATTORNEY GENERAL JIM HOOD
______________________________________________
HAROLD E. PIZZETTA III (Bar# 99867)
Assistant Attorney General
JUSTIN L. MATHENY (Bar# 100754)
Special Assistant Attorney General
Office of the Attorney General
550 High Street, Suite 1200
Jackson, MS 39201
Phone: (601) 359-3680
Facsimile: (601) 359-2003
hpizz@ago.state.ms.us
jmath@ago.state.ms.us
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JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - appellee
REVEREND FRANK LEE; PIKE COUNTY, MISSISSIPPI BRANCH OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
on behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
PIKE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; PIKE COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; PIKE COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; ROGER GRAVES, in his
official capacity as Circuit Clerk, PIKE COUNTY, MISSISSIPPI DEMOCRATIC
PARTY EXECUTIVE COMMITTEE,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - Appellee
SIMPSON COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all
others similarly situated; L. J. CAMPER, on behalf of themselves and all others similarly
situated,
Plaintiffs - Appellants
v.
SIMPSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; SIMPSON
COUNTY MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE;
SIMPSON COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE
COMMITTEE; SIMPSON COUNTY MISSISSIPPI BOARD OF ELECTIONS
COMMISSIONERS; CINDY JENSEN, in her official capacity as Circuit Clerk,
Defendants - Appellees
v.
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
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Intervenor - Defendant - Appellee
AMITE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all
others similarly situated,
Plaintiffs - Appellants
v.
AMITE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; AMITE COUNTY,
MISSISSIPPI DEMOCRATIC EXECUTIVE COMMITTEE; AMITE COUNTY,
MISSISSIPPI REPUBLICAN EXECUTIVE COMMITTEE; AMITE COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SHARON WALSH, in her
official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - Appellee
WAYNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all
others similarly situated; LEAH PARSON, on behalf of themselves and all others
similarly situated,
Plaintiffs - Appellants
v.
WAYNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WAYNE COUTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; WAYNE
COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE;
WAYNE COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS;
ROSE BINGHAM, in her official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - Appellee
VICKSBURG, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, on behalf of itself and all others
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similarly situated,
Plaintiffs - Appellants
v.
WARREN COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WARREN
COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE;
WARREN COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS;
SHELLY ASHLEY-PALMERTREE, in his official capacity as Circuit Clerk,
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - Appellee
CLAIBORNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of
itself and all others similarly situated,
Plaintiff - Appellant
v.
CLAIBORNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; CLAIBORNE
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE;
CLAIBORNE COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE
COMMITTEE; CLAIBORNE COUNTY, MISSISSIPPI BOARD OF ELECTION
COMMISSIONERS; SAMMIE GOOD, in her official capacity as Circuit Clerk,
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - Appellee
ADAMS COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and all
others similarly situated; JACQUELINE MARSAW, on behalf of herself and all others
similarly situated,
Plaintiffs - Appellees
v.
ADAMS COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; ADAMS COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE, ADAMS
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COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE;
ADAMS COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS,
EDWARD WALKER, in his official Capacity as Circuit Clerk,
Defendants - Appellants
JIM HOOD, Attorney General for the State of Mississippi, ex rel., the State of Mississippi
Intervenor - Defendant - Appellee
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 11-60446
HANCOCK COUNTY BOARD OF SUPERVISORS,
Plaintiff
v.
KAREN LADNER RUHR, in her official capacity as Hancock County Circuit
Clerk and Hancock County Registrar, et al.,
Defendants
JIM HOOD, Attorney General for the Sate of Mississippi ex rel. the State of
Mississippi,
Intervenor Defendant - Appellee
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
1.
Hazlehurst, Mississippi Branch of the National Association for the
Advancement of Colored People; Nannette Thurmond-Smith; Pike County,
Mississippi Branch of the National Association for the Advancement of Colored
People; Frank Lee; Simpson County, Mississippi Branch of the National
Association for the Advancement of Colored People; L.J. Camper; Amite County,
i
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Mississippi Branch of the National Association for the Advancement of Colored
People; Glenn Wilson; Wayne County, Mississippi Branch of the National
Association for the Advancement of Colored People; Leah Parson; Vicksburg,
Mississippi Branch of the National Association for the Advancement of Colored
People; Claiborne County, Mississippi Branch of the National Association for the
Advancement of Colored People; Adams County, Mississippi Branch of the
National Association for the Advancement of Colored People; and Jacqueline
Marsaw, Appellants.
2.
Carroll Rhodes, Deborah McDonald, and Leonard McClellan,1 Counsel for
Appellants.
3.
Copiah County, Mississippi Board of Supervisors; Copiah County,
Mississippi Democratic Party Executive Committee; Copiah County, Mississippi
Republican Party Executive Committee; Copiah County, Mississippi Board of
Election Commissioners; Edna Stevens, in her official capacity as Copiah County
Circuit Clerk; Pike County, Mississippi Board of Supervisors; Pike County,
Mississippi Democratic Party Executive Committee; Pike County, Mississippi
Republican Party Executive Committee; Pike County, Mississippi Board of
Election Commissioners; Roger Graves, in his official capacity as Pike County
Circuit Clerk; Simpson County, Mississippi Board of Supervisors; Simpson
County, Mississippi Democratic Party Executive Committee; Simpson County,
Mississippi Republican Party Executive Committee; Simpson County, Mississippi
Board of Election Commissioners; Cindy Jensen, in her official capacity as
Simpson County Circuit Clerk; Amite County, Mississippi Board of Supervisors;
Amite County, Mississippi Democratic Party Executive Committee; Amite
County, Mississippi Republican Party Executive Committee; Amite County,
Mississippi Board of Election Commissioners; Sharon Walsh, in her official
capacity as Amite County Circuit Clerk; Wayne County, Mississippi Board of
Supervisors; Wayne County, Mississippi Democratic Party Executive Committee;
Wayne County, Mississippi Republican Party Executive Committee; Wayne
County, Mississippi Board of Election Commissioners; Rose Bingham, in her
official capacity as Wayne County Circuit Clerk; Warren County, Mississippi
Board of Supervisors; Warren County, Mississippi Democratic Party Executive
1
Mr. McClellan appeared as counsel for appellants in the District Court below but
passed away during the pendency of this appeal.
ii
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Committee; Warren County, Mississippi Republican Party Executive Committee;
Warren County, Mississippi Board of Election Commissioners; Shelly AshleyPalmertree, in her official capacity as Warren County Circuit Clerk; Claiborne
County, Mississippi Board of Supervisors; Claiborne County, Mississippi
Democratic Party Executive Committee; Claiborne County, Mississippi
Republican Party Executive Committee; Claiborne County, Mississippi Board of
Election Commissioners; Sammie Good, in his official capacity as Claiborne
County Circuit Clerk; Adams County, Mississippi Board of Supervisors; Adams
County, Mississippi Democratic Party Executive Committee; Adams County,
Mississippi Republican Party Executive Committee; Adams County, Mississippi
Board of Election Commissioners; and Edward Walker, in his official capacity as
Adams County Circuit Clerk, Appellees
4.
Elise Munn, Berry & Munn, PA, Counsel for Appellees Copiah County,
Mississippi Board of Supervisors; Copiah County, Mississippi Board of Election
Commissioners; and Edna Stevens.
5.
James D. Shannon, Shannon Law Firm, Counsel for Appellees Copiah
County, Mississippi Democratic Executive Committee and Copiah County,
Mississippi Republican Executive Committee.
6.
Wayne Dowdy and Dowdy & Cockerham, Counsel for Appellee Pike
County, Mississippi Board of Supervisors.
7.
Alfred Lee Felder, Counsel for Appellee Pike County, Mississippi
Democratic Executive Committee.
8.
Benjamin E. Griffith, Daniel J. Griffith, Michael S. Carr, Griffith & Griffith,
Counsel for Appellees Simpson County, Mississippi Board of Supervisors;
Simpson County, Mississippi Board of Election Commissioners; Cindy Jensen;
Wayne County, Mississippi Board of Supervisors; Rose Bingham; Warren County,
Mississippi Board of Supervisors; Warren County, Mississippi Board of Election
Commissioners; and Shelley-Ashley Palmertree.
9.
Robert Daniel Welch, Counsel for Appellees Simpson County, Mississippi
Board of Supervisors; Simpson County, Mississippi Board of Election
Commissioners; and Cindy Jensen.
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10. Cooper Martin Leggett and Leggett Law Office, PLLC, Counsel for
Appellees Wayne County, Mississippi Board of Supervisors and Rose Bingham.
11. James R. Sherard, Counsel for Appellees Warren County, Mississippi Board
of Supervisors; Warren County, Mississippi Board of Election Commissioners;
and Shelley-Ashley Palmertree.
12. Tommie Cardin, Leslie Scott, John H. Dollarhide and Butler Snow O’mara
Stevens & Cannada, Counsel for Appellees Amite County, Mississippi Board of
Supervisors and Claiborne County, Mississippi Board of Supervisors.
13. Bryan Callaway, Counsel for Appellees Adams County, Mississippi Board
of Supervisors; Adams County, Mississippi Board of Election Commissioners; and
Edward Walker.
14. Bobby L. Cox, Counsel for Appellee Adams County, Mississippi
Democratic Party Executive Committee.
15. Appellee-Intervenor Defendant Jim Hood, Attorney General for the State of
Mississippi ex rel. State of Mississippi.
16. Harold E. Pizzetta, III and Justin L. Matheny, Office of the Mississippi
Attorney General, Counsel for Appellee-Intervenor Defendant Jim Hood, Attorney
General for the State of Mississippi ex rel. State of Mississippi.
/s/ Justin L. Matheny
Justin L. Matheny, Counsel for
Jim Hood, Attorney General for the State of
Mississippi ex rel. State of Mississippi
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STATEMENT REGARDING ORAL ARGUMENT
The Attorney General believes the issues raised on this appeal are
straightforward and have been fully-addressed by the briefs submitted by the
parties. The Attorney General therefore respectfully submits that oral argument is
not necessary to aid the Court to address the issues presented, and in rendering its
opinion in this case.
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT REGARDING JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I.
The District Court Correctly Dismissed the Complaints for Lack
of Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
II.
The District Court Correctly Dismissed the Complaints on their
Merits in the Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
III.
A.
Release of New Census Data in 2011 did not Automatically
Produce an Actionable “One Person, One Vote” Claim. . . . . . . . . . 21
B.
The District Court Acted Within Its Discretion in Not
Awarding Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
The District Court Acted Within Its Discretion in Denying NAACP
Appellants’ Motions to Amend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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A.
Litigants Who Lack Standing Cannot Add New Parties and Cure
their Standing Defect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
B.
The Proposed Amendments Were Futile . . . . . . . . . . . . . . . . . . . . . 38
C.
NAACP Appellants’ Amendment “As A Matter of Course”
Argument is Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) . . . . . . . . . . . . . . . . . . 46
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TABLE OF AUTHORITIES
FEDERAL CASES
Aetna Cas. & Surety Co. v. Hillman, 796 F.2d 770 (5th Cir. 1986) . . . . . . . . . . 38
Bryant v. Lawrence County, Mississippi, 814 F.Supp. 1346
(S.D. Miss. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Cardona v. Oakland Unified Sch. Dist., California, 785 F.Supp. 837
(N.D. Cal. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Del-Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725
(5th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564
(5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
DSC Comms. Corp. v. DGI Tech., Inc., 81 F.3d 597 (5th Cir. 1996) . . . . . . . . . 35
Fairley v. Forrest County, Mississippi, 814 F.Supp. 1327
(S.D. Miss. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 27, 29, 31
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . 18
Federal Recovery Services, Inc. v. U.S., 72 F.3d 447 (5th Cir. 1995) . . . . . . 37-38
French v. Boner , 963 F.2d 890 (6th Cir. 1992), cert. denied,
506 U.S. 954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Georgia v. Ashcroft, 539 U.S. 461 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Graves v. City of Montgomery, 2011 WL 3503133
(M.D. Ala. Aug. 10, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
484 U.S. 49 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
viii
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Herdt v. Civil City of Jeffersonville, Indiana, 2011 WL 3273209
(S.D. Ind. July 29, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Kahn v. Griffin, 2004 WL 1635846 (D. Minn. July 20, 2004) . . . . . . . . . . . . . . 29
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . 17
Mahan v. Howell, 410 U.S. 315 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
NAACP v. Barbour, ____ U.S. ____, 2011 WL 6118830 (Oct. 31, 2011) . . . . . 32
NAACP v. Barbour, 2011WL 1870222 (S.D. Miss. May 16, 2011) . . . . . . . . . . 32
NAACP v. City of Kyle, Texas, 626 F.3d 233 (5th Cir. 2010) . . . . . . . . . . . . . . . 20
Nichols v. Alcatel USA, Inc., 532 F.3d 364 (5th Cir. 2008) . . . . . . . . . . . . . . . . . 35
Political Action Conference of Illinois v. Daley 976 F.2d 335
(7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Republican Party of Oregon v. Keisling, 959 F.2d 144 (9th Cir. 1992),
cert. denied, 504 U.S. 914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Reynolds v. Sims 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28
Smith v. Sperling, 354 U.S. 91 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) . . . . . . . . . . 18
Stripling v. Jordan Prod. Co., 234 F.3d 863 (5th Cir. 2000) . . . . . . . . . . . . . . . 38
Summit Office Park v. U.S. Steel Corp., 639 F.2d 1279
(5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40
U.S. v. Gonzalez, 592 F.3d 675 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 41
VRC, LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006) . . . . . . . . . . . . . . . . . 35
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Whitmire v. Victus, Ltd., 212 F.3d 885 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 37
FEDERAL STATUTES
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
42 U.S.C. § 1973(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
42 U.S.C.A. § 1973ff-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATE STATUTES
Miss. Code Ann. § 19-3-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Miss. Code Ann. § 23-15-265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Miss. Code Ann. § 23-15-281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Miss. Code Ann. § 23-15-285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,31,33
Miss. Code Ann. § 23-15-296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Miss. Code Ann. § 23-15-299(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Miss. Code Ann. §23-15-625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Miss. Code Ann. § 23-15-629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Miss. Code Ann. § 23-15-629(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
Miss. Code Ann. § 23-15-653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Miss. Code Ann. § 23-15-715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Miss. Code Ann. § 23-15-805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
FEDERAL RULES
Fed. R. App. P. 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fed. R. Civ. P. 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FEDERAL REGULATIONS
28 C.F.R. § 51.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
28 C.F.R. § 51.37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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STATEMENT REGARDING JURISDICTION
Pursuant to 28 U.S.C. § 1291, this Court has appellate jurisdiction to review
the District Court’s final judgment of dismissal of the claims asserted below based
on lack of standing and, alternatively, on the merits, and to review the District
Court’s order denying the appellants’ post-judgment motions pursuant to Rules 59
and 60. The complaints filed in the District Court below relied upon 28 U.S.C. §§
1331 and 1343 as the basis for federal jurisdiction.
STATEMENT OF THE ISSUES
1.
Article III standing only extends to litigants who can demonstrate an injury
in fact, that has a causal connection to the defendants’ conduct, and that
may be redressed by a favorable decision by the district court. The
appellants failed to meet this well-established standard, therefore, the first
and threshold issue on this appeal is whether the District Court below erred
in dismissing the appellants’ “one person, one vote” claims below for lack
of standing.
2.
Federal courts around the country have uniformly rejected “one person, one
vote” claims premised solely upon the release of new decennial Census data
immediately prior to scheduled elections. Government units must be
allowed sufficient time to complete their redistricting processes prior to
regularly scheduled elections, and should not be required to hastily redistrict
merely because new Census data becomes available in the middle of the
election cycle. The second issue on this appeal, should this Court hold
appellants had standing, is whether the District Court erred in alternatively
dismissing appellants’ “one person, one vote” claims and denying relief
because the appellee-defendant Mississippi counties had insufficient time to
complete the redistricting process prior to the 2011 election deadlines
established by state law.
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Litigants who lack standing may not amend their complaints solely to
include additional parties who would purportedly satisfy the requisite
standing elements. Further, district courts are not required to permit
amendments that would be futile. The third issue on this appeal is whether
the District Court abused its discretion in denying appellants’ inappropriate
attempts to amend their complaints.
STATEMENT OF THE CASE
This is an appeal from dismissal of eight consolidated cases each asserting
Fourteenth Amendment “one person, one vote” claims against eight Mississippi
counties. On February 28, 2011, the NAACP appellants2 filed eight separate
lawsuits in the United States District Court for the Southern District of Mississippi
against the county Boards of Supervisors, the county Clerk/Registrars, the county
Republican Executive Committees, the county Democratic Executive Committees,
and the county Boards of Election Commissioners in Adams, Amite, Claiborne,
2
The plaintiffs in the eight separate lawsuits filed in the District Court below, and who
are the Appellants on this appeal, include: Hazlehurst, Mississippi Branch of the National
Association for the Advancement of Colored People; Nannette Thurmond-Smith; Pike County,
Mississippi Branch of the National Association for the Advancement of Colored People; Frank
Lee; Simpson County, Mississippi Branch of the National Association for the Advancement of
Colored People; L.J. Camper; Amite County, Mississippi Branch of the National Association for
the Advancement of Colored People; Glenn Wilson; Wayne County, Mississippi Branch of the
National Association for the Advancement of Colored People; Leah Parson; Vicksburg,
Mississippi Branch of the National Association for the Advancement of Colored People;
Claiborne County, Mississippi Branch of the National Association for the Advancement of
Colored People; Adams County, Mississippi Branch of the National Association for the
Advancement of Colored People; and Jacqueline Marsaw. These appellants are collectively
referred to below as “NAACP appellants” unless otherwise indicated.
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Copiah, Pike, Simpson, Wayne and Warren counties3 requesting that the Court
declare the existing, pre-cleared district lines established by the respective Boards
of Supervisors following the 2000 Census unconstitutional for use in the 2011
election cycle. The claims were entirely premised upon release of 2010 Census
data on February 4, 2011, less than one month prior to the qualifying deadline for
3
The defendants in the eight separate lawsuits filed in the District Court below, and who
are Appellees on this appeal, include: Copiah County, Mississippi Board of Supervisors; Copiah
County, Mississippi Democratic Party Executive Committee; Copiah County, Mississippi
Republican Party Executive Committee; Copiah County, Mississippi Board of Election
Commissioners; Edna Stevens, in her official capacity as Copiah County Circuit Clerk; Pike
County, Mississippi Board of Supervisors; Pike County, Mississippi Democratic Party Executive
Committee; Pike County, Mississippi Republican Party Executive Committee; Pike County,
Mississippi Board of Election Commissioners; Roger Graves, in his official capacity as Pike
County Circuit Clerk; Simpson County, Mississippi Board of Supervisors; Simpson County,
Mississippi Democratic Party Executive Committee; Simpson County, Mississippi Republican
Party Executive Committee; Simpson County, Mississippi Board of Election Commissioners;
Cindy Jensen, in her official capacity as Simpson County Circuit Clerk; Amite County,
Mississippi Board of Supervisors; Amite County, Mississippi Democratic Party Executive
Committee; Amite County, Mississippi Republican Party Executive Committee; Amite County,
Mississippi Board of Election Commissioners; Sharon Walsh, in her official capacity as Amite
County Circuit Clerk; Wayne County, Mississippi Board of Supervisors; Wayne County,
Mississippi Democratic Party Executive Committee; Wayne County, Mississippi Republican
Party Executive Committee; Wayne County, Mississippi Board of Election Commissioners; Rose
Bingham, in her official capacity as Wayne County Circuit Clerk; Warren County, Mississippi
Board of Supervisors; Warren County, Mississippi Democratic Party Executive Committee;
Warren County, Mississippi Republican Party Executive Committee; Warren County,
Mississippi Board of Election Commissioners; Shelly Ashley-Palmertree, in her official capacity
as Warren County Circuit Clerk; Claiborne County, Mississippi Board of Supervisors; Claiborne
County, Mississippi Democratic Party Executive Committee; Claiborne County, Mississippi
Republican Party Executive Committee; Claiborne County, Mississippi Board of Election
Commissioners; Sammie Good, in his official capacity as Claiborne County Circuit Clerk;
Adams County, Mississippi Board of Supervisors; Adams County, Mississippi Democratic Party
Executive Committee; Adams County, Mississippi Republican Party Executive Committee;
Adams County, Mississippi Board of Election Commissioners; and Edward Walker, in his
official capacity as Adams County Circuit Clerk. These appellees are collectively referred to
below as the “County Appellees” unless otherwise indicated.
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Board of Supervisors candidates. The NAACP appellants further requested that
the District Court enjoin the statutorily mandated March 1 qualifying deadline, and
require the respective Boards to revise all of the targeted counties’ voting districts
on a fast-track timetable prior to the August 2 primary elections. Specifically,
each complaint expressly requested the following identical relief:
a.
A declaratory judgment, pursuant to 28 U.S.C. §§ 2201 and
2202, that the present apportionment scheme and the actions
and inactions of the defendants violate rights secured to
plaintiffs by the 14th amendment to the United States
Constitution;
b.
A temporary restraining order, preliminary injunction, and/or a
permanent injunction enjoining the defendants from conducting
elections under the existing redistricting plans for supervisor in
[each respective] county;
c.
A temporary restraining order and a preliminary injunction,
enjoining the candidate qualification deadline for March 1,
2011 for the office of supervisor in [each respective] County,
Mississippi for a short period of time in order to give the [each
respective] County, Mississippi Board of Supervisors an
opportunity to redistrict the supervisor districts and obtain
preclearance of the redistricting plan;
d.
A temporary restraining order, preliminary injunction, and/or a
permanent injunction requiring that any new redistricting plan
for supervisors in [each respective] County, Mississippi comply
with the 14th and 15th amendments to the United States
Constitution, 42 U.S.C. § 1983, and §§ 2 and 5 of the Voting
Rights Act of 1965, as amended and extended, 42 U.S.C. §§
1973(e) and 1973c;
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Award plaintiffs court costs and a reasonable attorneys fee
pursuant to 42 U.S.C. § 1973(e) and 1988....
[See Original Complaints, 3:11cv121 R. 6-16; 3:11cv122 R. 6-15; 3:11cv123 R. 717; 3:11cv124 R. 5-15; 4:11cv33 R. 7-17; 5:11cv28 R. 7-16; 5:11cv29 R. 5-14;
5:11cv30 R. 6-16].4
In early March 2011, the Attorney General moved to intervene as a
defendant in each of the respective lawsuits because the complaints each
challenged the constitutionality of the March 1 candidate qualifying deadline in
Mississippi Code Section 23-15-299(2) as applied to the respective county
supervisors races and use of the current supervisor lines in the 2011 election cycle.
[See Motions to Intervene, 3:11cv121 R. 51-62; 3:11cv122 R. 32-42; 3:11cv123
R. 37-48; 3:11cv124 R. 21-33; 4:11cv33 R. 33-43; 5:11cv28 R. 22-32; 5:11cv29
R. 30-40; 5:11cv30 R. 42-54]. None of the parties in any of the suits objected and
the Attorney General was allowed to intervene in each case. [Orders Granting
Intervention, 3:11cv121 R. 5 (Text Order); 3:11cv122 R. 4 (Text Order);
4
The record on appeal consists of eight volumes for Civil Action No. 1:10cv564 and one
volume for each of the eight individual civil actions filed by the NAACP appellants below prior
to their consolidation with Civil Action No. 1:10cv564. References to page numbers of the
record included in the volumes for Civil Action No. 1:10cv564 in this brief are designated by
page number as “R.__.” References to the record included in the volumes of the individual civil
actions are designated with the Civil Action Number followed by the page number, for example
“3:11cv121 R.___.” References to documents in the record included in the NAACP appellants’
Record Excerpts are designated by tab number and page number, where appropriate, as “R.E.
___.”
5
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3:11cv123 R. 66-67; 3:11cv124 R. 3 (Text Order); 4:11cv33 R. 5 (Text Order);
5:11cv28 R. 5 (Text Order); 5:11cv29 R. 53-54; 5:11cv30 R. 57-58].
On March 23, 2011, on motion of the Attorney General, the District Court
ordered consolidation of all eight NAACP lawsuits with Civil Action No.
1:10cv564-LG-RHW, and another similar case, pending in the Southern District
based on common questions of law. [Consolidation Order, R. 373-75].5 On March
25, 2011, the Attorney General moved to dismiss all eight of the NAACP
appellants’ complaints pursuant to Rules 12(b)(1) and 12(b)(6). [Motion to
Dismiss, R. 421-25]. The NAACP appellants opposed the motion to dismiss.
[Response in Opposition to Motion to Dismiss, R. 821-36]. On March 18, 23 and
24, and again on March 30 and 31, 2011, the NAACP appellants filed motions to
amend their complaints to include additional individual plaintiffs without adding
any other substantive allegations or claims. [Motions to Amend, R. 517-37, 57696, 597-613, 614-37, 739-59, 760-80, 781-97, 798-820; 3:11cv121 R. 99-120;
5
The NAACP appellants’ complaints were consolidated with two separate challenges to
the Mississippi Legislature’s qualifying deadline filed by plaintiff Boards of Supervisors in
Hancock County and Madison County asserting similar legal claims. The cases were
consolidated under the Civil Action Number for the Hancock County action since it had been
filed in December 2010. See Uniform Local Rule of the United States District Courts for the
Northern and Southern Districts of Mississippi 42. The Hancock and Madison County plaintiffs,
defendants, and intervenors did not appeal from the District Court’s final judgment as to those
two cases. The claims asserted in the Hancock and Madison county actions are not before the
Court on this appeal.
6
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3:11cv122 R. 71-89; 3:11cv123 R. 118-36; 3:11cv124 R. 49-67; 4:11cv33 R. 7394; 5:11cv28 R. 103-17; 5:11cv29 R. 129-43; 5:11cv30 R. 138-53].6 The
Attorney General opposed the motions to amend. [Responses in Opposition to
Motions to Amend, R. 1074-79, 1080-85, 1086-91, 1092-97, 1098-1103, 11041109, 1110-1115, 1116-1121].
On April 5, 2011, the District Court held a status conference with counsel
for the parties in the consolidated cases. At the status conference, the District
Court established briefing schedules for outstanding motions and announced its
intent to have an oral argument at a later date. [Scheduling Orders, R. 25-26 (Text
Orders)]. After all pending motions were briefed, the District Court conducted
oral argument on May 13, 2011.
On May 16, 2011, the District Court issued its Opinion and Order
dismissing the NAACP appellants’ claims, as well as the claims of all the other
plaintiffs that had been consolidated with them. [Memorandum Opinion and
6
Specifically, the NAACP appellants filed Motions for Leave to Amend in the Adams
County case on March 18, 2011. [Motions to Amend, 5:11cv30 R. 138-53, 154-69]. Motions for
Leave to Amend were filed in the Wayne County case on March 23, 2011. [Motions to Amend,
4:11cv33 R. 73-94, 98-118]. Motions for Leave to Amend were filed in the other six cases on
March 24, 2011. [Motions to Amend, 3:11cv121 R. 99-120; 3:11cv122 R. 71-89; 3:11cv123 R.
118-36; 3:11cv124 R. 49-67; 5:11cv28 103-17; 5:11cv29 R. 129-43]. Subsequently, following
consolidation, the District Court terminated all pending motions. [Order Terminating Pending
Motions, R. 21 (Text Order)]. The NAACP appellants re-filed the motions with respect to each
case on March 30 and 31, 2011.
7
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Order, R.E. 10]. The District Court reasoned that none of the NAACP appellants
had standing to assert a “one person, one vote” claim. [Id. at 1718-21]. Only one
individual plaintiff lived in an “under-represented” voting district and could thus
claim an injury-in-fact. [Id. at 1719-20]. Furthermore, even assuming an injury-infact, the NAACP appellants could not meet the other required elements for
standing. [Id. at 1720-21].
Alternatively, assuming standing, the District Court concluded that the
NAACP appellants failed to state a claim on the merits. After reviewing prior
decisions in the Southern District of Mississippi, and other federal courts around
the country, the District Court concluded that
[t]he parties do not dispute the need for the counties to redistrict
based on 2010 census data. But each county’s board of supervisors
must have adequate time to formulate a redistricting plan and obtain
preclearance from the Department of Justice before its failure to do so
results in a declaration that elections held using the existing plans are
unconstitutional.
[Id. at 1726]. The dispositive point, as framed by the District Court, was whether
the timing of release of Census data in the middle of the election cycle warranted
denial of the relief sought:
[c]ourts have generally accepted that some lag-time between release
of census data and redistricting is both necessary and constitutionally
acceptable, even when it results in elections based on malapportioned
districts in the years that census data is released.
8
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[Id.]. Accordingly, the District Court held that
[t]here is simply an insufficient amount of time for the County Boards
of Supervisors to receive and evaluate the 2010 decennial census
data, to redistrict each County in order to remedy any
malapportionment, and to comply with State election statutes. Under
the circumstances, and absent Justice Department preclearance of the
submitted plans, the 2011 elections in the affected Counties must be
conducted as they are presently configured.
[Id. at 1727]. Additionally, the District Court denied the NAACP appellants’
motions to amend their complaints for lack of standing, and, alternatively, because
any proposed amendments to add other individual plaintiffs would be futile. [Id. at
1728].
On May 20, 2011, the NAACP appellants filed a Rule 59 Motion to Amend
Judgment and a Rule 60 Motion for Relief from Judgment. [Rule 59 and 60
Motions, R. 1742-58, 1759-75]. On June 1, 2011, the NAACP appellants filed a
Motion for Stay and Injunction Pending Appeal. [Motion for Stay and Injunction
Pending Appeal, R. 1783-89].7 After briefing, the District Court denied all the
post-judgment motions in an order and text order issued June 13, 2011. [Order, R.
1839-41 and R. 38 (Text Order)]. On June 28, 2011, the NAACP appellants filed
7
Although the NAACP appellants’ brief takes the liberty of referring to their postjudgment motion filed on June 1, 2011 as a “Motion for Preliminary Injunction,” that motion did
not set forth any grounds to grant an injunction under FED . R. CIV . P. 65 or address the wellrecognized factors for a court to consider in analyzing preliminary injunctive relief.
9
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their Notice of Appeal to this Court, followed by an Amended Notice of Appeal on
June 29, 2011. [Amended Notice of Appeal, R.E. 20].8 The NAACP appellants
have never petitioned this Court for a Stay Pending Appeal pursuant to Fed. R.
App. P. 8(a)(2).
STATEMENT OF FACTS
The respective appellee Boards of Supervisors are the elected governing
bodies of Adams, Amite, Claiborne, Copiah, Pike, Simpson, Warren and Wayne
Counties in Mississippi. The appellee Republican and Democratic Executive
Committees for each county are charged with, among other things, conducting
primary elections. The appellee Election Commissioners and Circuit Clerks are
responsible for, among other things, conducting general elections, and supervising
candidate qualification and ballots. The organization appellants include local
8
In addition to the eight consolidated cases that are at issue on this appeal, other local
branches of the NAACP and individuals (represented by the same attorneys as the NAACP
appellants here) filed nearly identical complaints against eight counties in the Northern District
of Mississippi on or about February 28, 2011. The Attorney General intervened in each of those
cases, but they are not all in the same posture as those on this appeal, primarily because the cases
were not consolidated by the District Court in the Northern District. Two of the cases have been
dismissed by the District Court for the same reasons as those presented here, and have been
appealed to this Court. See Tunica County, Mississippi Branch of the NAACP v. Tunica County,
Mississippi Board of Supervisors (Cause No. 11-60674); Tallahatchie County, Mississippi
Branch of the NAACP v. Tallahatchie County (Cause No. 11-60676). One case was dismissed by
agreement of the parties. Panola County, Mississippi Branch of the NAACP v. Panola County,
Mississippi Board of Supervisors (United States District Court for the Northern District of
Mississippi, Civil Action No. 2:11cv00043-MPM-JMV). The other five cases are pending in the
United States District Court for the Northern District of Mississippi as of this writing.
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branches of the NAACP in each respective county. The individual appellants
claim to be registered voters in particular current supervisor districts in six of the
respective counties.
Each county at issue maintains five supervisor districts as required by the
Mississippi Constitution and statute. See MISS. CONST., art 6 § 170; MISS. CODE
ANN. § 19-3-1. Those district boundaries are established by each respective
county Boards of Supervisors. See MISS. CODE ANN. §§ 23-15-281 & -283. The
current county supervisor voting district boundaries in each county were adopted
by their respective Boards following the 2000 decennial Census and subsequently
pre-cleared by Department of Justice. It was undisputed in the District Court
below that the respective current supervisor districts in each county have not
previously been adjudged to violate constitutional, or state or federal law.
The 2011 election cycle for county supervisors in every county in
Mississippi opened with qualifying on January 1, 2011 and closed on the March 1,
2011 qualifying deadline. MISS. CODE ANN. § 23-15-299(2). The qualifying
deadline was established by the Mississippi Legislature, and pre-cleared by the
Department of Justice in 2007.
In each county, candidates for 2011 Board of Supervisors elections qualified
in the January 1 to March 1, 2011 window. Party primary elections were held in
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each county on August 2, 2011, with party run-offs completed (where necessary)
on August 23, 2011. The general election was held in each county – and all other
counties across the State of Mississippi – on November 8, 2011.9
Meanwhile, in early February 2011, in the middle of the qualification period
for candidates, the United States Census Bureau released its official 2010
Mississippi county population data. Based on those figures, the complaints filed
by the NAACP appellants in the District Court below alleged the 2010 figures
reveal a population change in each county at issue as shown by a comparison of
the 2010 data to 2000 data. [See Original Complaints, 3:11cv121 R. 6-16;
3:11cv122 R. 6-15; 3:11cv123 R. 7-17; 3:11cv124 R. 5-15; 4:11cv33 R. 7-17;
9
Several other deadlines and election requirements also had to be met by candidates and
officials in each of the respective counties at issue here over the months leading up to the 2011
elections. See, e.g., MISS. CODE ANN . § 23-15-296 (certified candidate lists due to Secretary of
State by March 3); MISS. CODE ANN . §§ 23-15-805, -807 (periodic campaign finance reports
filed with circuit clerks with deadlines of May 10, June 10, July 8, July 24, July 26, August 14,
August 16, October 10, October 30, November 1); MISS. CODE ANN . § 23-15-285 (any new
supervisor district lines must be in place by June 2); MISS. CODE ANN . §23-15-625 (absentee
ballot applications made available by Circuit Clerks by June 3); MISS. CODE ANN . § 23-15-715
(absentee ballots made available for primary voting by June 18); MISS. CODE ANN . § 23-15629(4) (circuit clerks to mail absentee ballots to voters on permanent physically disabled lists by
June 23); MISS. CODE ANN . § 23-15-265 (county executive committee to appoint pollworkers for
primary by July 19); MISS. CODE ANN . § 23-15-653 (absentee balloting for run-off elections by
August 13); MISS. CODE ANN . § 23-15-629 (absentee ballot applications for general election by
September 9); MISS. CODE ANN . § 23-15-715 (absentee ballots available for general election by
September 24); 42 U.S.C.A. § 1973ff-1 (absentee ballots for military and overseas voters
transmitted by September 24). It would have been difficult, if not impossible, to meet these
requirements and others without certainty as to the district lines under which candidates would be
running.
12
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5:11cv28 R. 7-16; 5:11cv29 R. 5-14; 5:11cv30 R. 6-16]. According to the
NAACP appellants, for each county, further comparison of the current population
figures to the current district lines demonstrated a deviation from the average
(total population divided by five) in each voting district. [Id.]. The NAACP
appellants’ complaints alleged the ideal number of people for an average
supervisor voting district under the census figures in each respective county, as
follows:
Adams
Amite
Claiborne
Copiah
Pike
Simpson
Warren
Wayne
6,459
2,624
1,921
5,890
8,081
5,501
9,755
4,149.
[Id.]. Based on the unverified 2011 Census figures as reported by the NAACP
appellants, an analysis of the data compared to the existing districts in each county
shows an existing top-to-bottom percentage deviation (i.e., the difference between
the highest deviation from the average and the lowest deviation from the average)
as follows:
Adams
Amite
Claiborne
Copiah
39.46 %
49.05 %
56.17 %
40.36 %
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Simpson
Warren
Wayne
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18.86 %
26.70 %
52.74 %
30.20 %.
[Id.]. According to the NAACP appellants’ allegations, the deviations existing in
each county required new district boundaries before the 2011 elections.10 The
NAACP appellants further complained that the Board appellees did not re-draw
their lines to comply with “one person, one vote” in time for the March 1, 2011
candidate qualifying deadline, in spite of the indisputable fact that the 2010
Census data was not published until February 2011, after the current election
cycles began.
Taking all of the facts as asserted by the NAACP appellants as true,
comparing them with the established Mississippi election laws, and considering all
of the prior federal “one person, one vote” decisions on point, the District Court
correctly dismissed the NAACP appellatnts’ complaints. Likewise, after
reviewing all of the facts and issues presented on this appeal, this Court should
reach the same conclusion and affirm the District Court’s opinion for the reasons
10
In an ordinary “one person, one vote” case – where timing of release of Census data in
relation to impending elections is not at issue – the deviation figures may be significant because a
prima facie case of denial of equal protection under the “one person, one vote” principle
generally exists where the maximum deviation between the most and least populated districts is
greater than 10% and the deviation is not based on legitimate considerations incident to a rational
state policy. See Mahan v. Howell, 410 U.S. 315, 325 (1973).
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set forth below.
SUMMARY OF THE ARGUMENT
There are several reasons why the District Court correctly dismissed the
NAACP appellants claims and its judgment should be affirmed. First, Article III
standing is only available to plaintiffs who demonstrate an injury in fact, caused
by the defendants’ conduct, that can definitely be redressed by a favorable
decision by the court. The NAACP appellants’ claims failed to meet these
standing requirements.
In seven of the eight counties at issue, the NAACP appellants failed to
include as plaintiffs, or even identify, any voter in an “under-represented” county
voting district to be used in the 2011 elections based upon 2010 Census data.
Accordingly, none of those appellants could claim any injury under the Fourteenth
Amendment’s “one person, one vote” principle. They simply failed to meet the
requisite injury requirement for standing and the District Court thus properly
dismissed their claims.
Furthermore, as to the one individual named plaintiff in an “overrepresented” county voting district, he failed to make the requisite showing that a
favorable decision from the District Court would certainly and adequately redress
his alleged injury. At the end of the day, the District Court correctly recognized
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that none of the NAACP appellants met all of the required elements for standing to
bring their claims.
Second, even assuming that any of the NAACP appellants had standing to
bring their claims, the District Court properly dismissed the claims on their merits
in the alternative. Contrary to the NAACP appellants’ argument, the release of
2010 Census data in the middle of the 2011 election cycle did not trigger an
automatic “one person, one vote” violation requiring an immediate remedy. All of
the numerous federal courts that have considered similar Census-timing issues
have held that, when new Census data is released in the middle of an established
and ongoing election cycle, governmental bodies must be afforded adequate time
to complete the redistricting process. It is well-established that there is no per se
“one person, one vote” violation based upon allegedly malapportioned districts
when Census data becomes available only months prior to a scheduled election. In
such case, other factors must be considered any may justify withholding of
immediate remedial relief.
Here, as determined by the District Court, the appellee-defendant Boards of
Supervisors did not have enough time to complete their redistricting processes and
meet all the 2011 election deadlines and requirements. The District Court thus,
assuming any of the NAACP appellants had standing, correctly dismissed their
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complaints on the merits.
Third, the District Court correctly denied the NAACP appellants’ attempts
to amend their complaints whether they had the right to do so under Rule 15(a)(1)
or not. The proposed amendments merely sought to add new plaintiffs who would
purportedly cure the standing deficiencies in the original complaints. It has long
been established that a plaintiff who lacks standing may not amend the complaint
to add new plaintiffs and thereby create standing. Since the NAACP appellants
did not have standing, they could not fix that problem by simply adding new
plaintiffs.
Furthermore, even assuming any of the NAACP appellants did have
standing, the District Court was not obligated to allow any futile complaint
amendments. Since the District Court correctly held in the alternative that none of
the claims had merit, then it likewise committed no reversible error in denying the
NAACP appellants’ proposed amendments. For all of these reasons, this Court
should affirm the District Court’s May 16, 2011 Opinion and Order.
ARGUMENT
I.
The District Court Correctly Dismissed the Complaints for Lack of
Standing.
Subject matter jurisdiction of federal courts only extends to “cases or
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controversies” under Article III of the Constitution. When a plaintiff lacks the
requisite standing to bring suit, there is no “case or controversy” over which the
court may exercise its jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). A lower court’s determination as to whether a “case or
controversy” exists is reviewed de novo on appeal. See Donelon v. La. Div. of
Admin. Law ex rel. Wise, 522 F.3d 564, 566 (5th Cir. 2008).
It is well-settled that the “irreducible constitutional minimum of standing
contains three elements”: “the plaintiff must have suffered an injury in fact;”
“there must be a causal connection between the injury and the conduct complained
of;” and “it must be likely...that the injury will be redressed by a favorable
decision.” Lujan, 504 U.S. at 560-61. In the District Court, the burden of proving
each element was on the NAACP appellants, who were the parties seeking to
invoke the federal court’s jurisdiction. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 103 (1998).
The District Court correctly dismissed the NAACP appellants’ complaints
for lack of standing. As an initial matter, certain individual NAACP appellants
clearly lacked any impending “one person, one vote” injury. According to this
Court, a citizen has no potential “one person, one vote” injury if he or she is
registered to vote in an “over-represented” voting district. Fairley v. Patterson,
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493 F.2d 598, 603 (5th Cir. 1974). In other words, if an individual lives and votes
in a district where the total population is less than the population of an ideal-sized
voting district, then he or she would suffer no “one person, one vote” injury from
an election based on that district configuration. The individual’s district is “underpopulated” and thus he or she is “over-represented.”
Five of the individuals named in the NAACP appellants’ complaints fell
into the “over-represented” category. In two counties at issue, no individual was
named as a plaintiff at all. Therefore, in seven of the eight counties at issue, the
complaint allegations themselves demonstrated a lack of constitutional injury
sufficient to invoke federal standing. Based on the NAACP appellants’ own
numbers, the following is a list of the individuals, their current voting district, the
“ideal” population per district, and the actual population of the individuals’ current
district:
County
Adams
Amite
Claiborne
Copiah
Pike
Simpson
Warren
Wayne
Plaintiff
Marsaw
Wilson
no individual plaintiff
Thurmond-Smith
Lee
Camper
no individual plaintiff
Parson
District
3
1
Ideal
6,459
2,624
Actual
6,061
2,514
3
4
4
5,890
8,081
5,501
5,811
8,574
5,193
1
4,149
3,769.
As a matter of undisputed fact, taken from the NAACP appellants’ own
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allegations, only Frank Lee in Pike County actually resided and would vote in an
“under-represented” district for the 2011 county supervisor elections. None of the
other individuals could possibly have standing to assert a “one person, one vote”
claim.
Next, as to the standing of the local branches of the NAACP named in each
complaint, those organizational NAACP appellants had a similar standing problem
as the individuals in “over-represented” districts and failed to include sufficient
allegations to invoke federal jurisdiction. In each complaint, the organization
NAACP appellants claimed a right on behalf of voters in numerous current
supervisor districts in the different counties but did not identify any single such
person. The organizations failed to sufficiently allege any particular voters who
they represent. They could not simply assert, in the abstract, that some of its
members might suffer a “one person, one vote” violation. See NAACP v. City of
Kyle, Texas, 626 F.3d 233, 237 (5th Cir. 2010). The complaints did not make a
sufficient showing of any “under-representation” injury for the organizational
NAACP appellants.
Last, individual NAACP appellant Frank Lee (who only appeared as a
plaintiff the Pike County action), was the only plaintiff-voter even allegedly
residing in an “under-represented” district. Assuming Lee could meet the
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threshold “under-representation” requirement (and/or that the organizational
NAACP appellants’ allegations were sufficiently definite to invoke claims on
behalf of unidentified constituents) the redressability element required for
standing was not met. The District Court explained that the standing of these
particular NAACP appellants was a “close call,” but resolved the standing issue
against them due to failure on the “redressability” element. [Memorandum
Opinion and Order, R.E. 10 at 1720-21]. The relief requested – i.e., moving the
qualifying deadline or other deadlines in the ongoing election cycle – might have
provided enough time for the entire redistricting process to be completed. But,
there was no certainty that moving deadlines would allow the process to be
completed in time for the scheduled elections. The District Court thus correctly
held that a favorable judgment would not remedy the alleged “one person, one
vote” violations claimed and properly dismissed each of the complaints for lack of
standing.11
II.
The District Court Correctly Dismissed the Complaints on their Merits
in the Alternative.
A.
Release of New Census Data in 2011 did not Automatically
11
The NAACP appellants may contend that they moved for injunctive relief to enjoin
elections held under the current lines, and, thus, an order from the District Court to that effect
would have provided an adequate remedy. However, as addressed below in Section II, B, the
NAACP appellants never actually sought any such relief.
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Produce an Actionable “One Person, One Vote” Claim.
Even assuming any of the NAACP appellants could properly assert Article
III standing, the District Court correctly dismissed all the claims in the alternative
on the merits. Dismissal pursuant to Rule 12(b)(6) is reviewed de novo on appeal.
See Del-Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725, 728 (5th Cir. 2011).
The NAACP appellants’ claims below depended entirely on the premise that
the Board of Supervisors districts in each of the Mississippi counties at issue were
malapportioned in light of 2010 Census data and therefore per se inappropriate for
2011 elections under the Fourteenth Amendment’s “one person, one vote”
principle.
However, alleged malapportionment does not end the inquiry. Election
districts – established pursuant to prior Census data, precleared by Department of
Justice, and that appear to have deviations of greater than 10% given new Census
data – are not controlling. Rather, the dispositive issue, addressed in the District
Court below and presented by the merits of this appeal, is: whether the “one
person, one vote” principle required the respective Boards of Supervisors, having
received new Census data in the middle of the current election cycle, to halt the
election process and hastily redistrict their supervisor district lines prior to the
2011 elections. The District Court held the answer was “no.” All of the other
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federal courts who have considered this same question have answered “no.” This
Court should likewise answer “no” and affirm the District Court’s judgment.
Several good reasons support the District Court’s conclusion that the subject
counties should not be forced to redistrict in this middle of the 2011 election
cycle. On two occasions nearly twenty years ago, the United States District Court
for the Southern District of Mississippi held there was no constitutional injury
where most-recent Census data was not available in time to redistrict prior to the
1991 elections. In Bryant v. Lawrence County, Mississippi, the relevant “one
person, one vote” facts were virtually identical those raised by the NAACP
appellants below. 814 F.Supp. 1346 (S.D. Miss. 1993). Bryant specifically held
that the use of “old” Census data and boundary lines in county elections did not
violate the “one person, one vote” principle when receipt of the “new” Census data
was received in the same year as a general election. Id. at 1354.
Citizens of Lawrence County challenged a supervisor districting plan
formulated in 1984. Id. at 1348. The plan was utilized for supervisor elections in
1991 and after the 1990 Census. Id. at 1352. The county had attempted to
redistrict based on the 1990 data, but was unable to gain pre-clearance from the
Department of Justice prior to the 1991 elections held every four years. Id. Voters
sued Lawrence County to require special elections with districts devised using the
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1990 data that was released during the election cycle in 1991. Id.
After reviewing other federal decisions where similar census-timing issues
occurred and the cases were resolved in favor of the local governments, the court
flatly rejected the Bryant plaintiffs’ contention that a “one person, one vote”
violation occurred. No remedy of enjoining elections, or requiring special
elections, was warranted. The court explained
[w]hen a political body is operating under a constitutional plan (one
pre-cleared by the Justice Department and not challenged in Court, or
either agreed to by the parties to litigation and then pre-cleared by the
Justice Department as is the situation in this case) that such 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 that new census data becomes available, but before
redistricting can take place, should not be set aside and new elections
ordered.
Id. at 1354 (emphasis added). In short, the Bryant court ultimately held there was
no actionable “one person, one vote” claim alleged by the plaintiffs. Id.
In Fairley v. Forrest County, Mississippi, the United States District Court
for the Southern District of Mississippi addressed the similar issue of “...how
much time should a governing body have to redistrict itself after a census report
demonstrates districts that were constitutionally apportioned, have become
malapportioned due to population shifts?” 814 F.Supp. 1327, 1330 (S.D. Miss.
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1993). Wisely, the Fairley court pointed out that certain time constraints must be
taken into account in answering that question:
[t]his question must be viewed with a realization that Congress has
mandated that such reapportionment plans must be pre-cleared by the
Justice Department in order to assure the plans are not discriminatory
under the Voting Rights Act of 1965. Besides pre-clearance, there
must also be factored in the reasonable time necessary to assimilate
the geographic information necessary for such reapportionment.
Furthermore, the fact that reapportionment is a political as well as a
constitutional process must also be taken into account. Those elected
to office by the voters must have time to balance different competing
political interests and discharge their constitutional responsibilities
under a representative form of government. All of this takes time.
The question before the Court is how much time should a governing
body have to obtain data, make political decisions, obtain preclearance, to assure there is no discrimination, and reapportion itself?
Id. Just like the Bryant case, and the facts before the District Court below in this
case, Forrest County had been unable to redistrict in time for elections held in the
same year that decennial Census data became available. Accordingly, after
exhaustively examining the authorities relevant to the issue, the Fairley court
determined that the plaintiffs were not entitled to any remedial relief based on new
Census data demonstrating lines used for the 1991 elections were malapportioned.
Id. at 1346.
While this Court had not previously decided the precise question presented
in Bryant and Fairley, and has not addressed that precise question since those
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opinions were issued, both cases relied on well-reasoned opinions from the United
States Supreme Court and other Circuits. Those decisions further support the
District Court’s holding below. For example, the United States Supreme Court’s
landmark decision in Reynolds v. Sims addressed the question of Census timing
and held that judicial relief for an alleged “one person, one vote” violation is only
appropriate when a legislative body fails to reapportion “in a timely fashion after
having had an adequate opportunity to do so.” 377 U.S. 533 (1964). According to
Reynolds, courts should not allow mathematical deviations to outweigh all other
factors when considering whether relief for alleged malapportionment is justified.
Id. at 583-85. When elections are imminent, and a state’s election process is
underway, courts should consider those factors in deciding whether or not any
relief is appropriate. Id. at 585.
Additionally, the Seventh Circuit’s decision in Political Action Conference
of Illinois v. Daley specifically addressed the issue of whether pre-election
redistricting was required in 1991 based on new Census data, given Chicago’s
system of holding elections every four years that coincided with the release of
Census data every fifth term. 976 F.2d 335 (7th Cir. 1992). The Seventh Circuit
concluded there was no actionable “one person, one vote” claim based on a failure
to redistrict the same year as the 1991 Census data became available. Id. at 34026
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41. The court reasoned that
[t]he 1990 census figures became available only two weeks before the
February 26, 1991 election. Redrawing Chicago’s ward for the
election using the new census data was not possible. Redistricting is
complex; obtaining new census data is merely the first step toward
developing and approving a new map for the City. Therefore the
critical question is whether the 1991 election, which was based on a
ward map approved in 1985 using 1980 census data, was valid under
Reynolds? Reynolds’ explicit language concerning the probable
“imbalance” in the map toward the end of the decennial period
demonstrates that Chicago’s 1991 election represents no
constitutional violation. We hold that the district court properly
dismissed the plaintiff’s constitutional claims for failure to state a
claim.
The four-year terms that Chicago aldermen serve merely indicate that
every fifth election (i.e. when the election year falls on the same year
that the new census data becomes available) likely will result in a
four-year delay in using the new census data. But this simple
consequence of the two different schedules (i.e. census every ten
years, elections every four) does not diminish the voting power of any
protected minority; there is merely a four-year time lag that occurs
every other decade between redistricting and elections. Thus,
accepting their allegations as true, we hold that the plaintiffs can
prove no set of facts that would lead us to believe that the Illinois
redistricting scheme denies any class of citizens full participation in
Chicago’s political process.
Id. at 340-41.
The Sixth Circuit’s decision in French v. Boner also considered the issue of
whether city elections on district lines that took place after most current Census
data was available, but before the city could implement a new apportionment plan,
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were constitutionally invalid. 963 F.2d 890 (6th Cir. 1992), cert. denied, 506 U.S.
954. Even though elections had been run on the “old” districts and a large
population deviation (over 119% between the most and least populated districts)12
existed, the Sixth Circuit held that proceeding under the “old” lines did not
produce a “one person, one vote” violation requiring a remedy. Id. at 892. The
reasons were that
[i]n any system of representative government, it is inevitable that
some elections for four-year or longer terms will occur on the cusp of
the decennial census. The terms inevitably will last well into the next
decade; and, depending on shifts in population in the preceding
decade, the representation may be unequal in the sense that the
districts no longer meet a one-person-one vote test under the new
census.
***
The Supreme Court has never drawn hard and fast rules about the
length of terms or how long after a decennial census year new
elections under the new census must be conducted. The principles of
mathematical equality and majority rule are important, but we should
not allow them to outweigh all other factors in reviewing the timing
of elections. In Reynolds v. Sims, 377 U.S. 533, 583, 585, 84 S.Ct.
1362, 1392-93, 1393-94, 12 L.Ed.2d 506 (1964), Chief Justice
Warren wrote that the Court was not imposing a rule that “decennial
reapportionment is a constitutional requirement,” although less
frequent apportionment “would assuredly be constitutionally
suspect.” The Court also noted that where “an impending election is
imminent and a state’s election machinery is already in progress,
12
See Fairley, 814 F.Supp. at 1341 (describing deviation between districts in the French
case as 119.78%).
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equitable considerations might justify a court in withholding the
granting of immediate relief in a legislative reapportionment case,
even though the existing apportionment scheme was found invalid.”
Reynolds, 377 U.S. at 585, 84 S.Ct. at 1394.
***
There must be some tolerances in the machinery of majority rule
under the Equal Protection Clause in order to take into account the
values outlines above, as well as the practicalities of the local
electoral processes established by states and cities for their own selfgovernment.
Id. at 891-92.
In addition to Daley and French, other federal courts have faced similar
timing questions and likewise held that – when the question of timing of Census
data is at issue – government units are not required to hastily redistrict. See
Republican Party of Oregon v. Keisling, 959 F.2d 144, 145-46 (9th Cir. 1992),
cert. denied, 504 U.S. 914 (redistricting causing temporary dilution of voting
power did not merit constitutional violation or require special elections); Kahn v.
Griffin, 2004 WL 1635846, at *6 (D. Minn. July 20, 2004), certified question
answered by 71 N.W. 2d 815 (Minn. 2005) (alleged “one person, one vote”
deviation did not require special elections); Cardona v. Oakland Unified Sch.
Dist., California, 785 F.Supp. 837, 843 (N.D. Cal. 1992) (dismissing “one person,
one vote” claims premised upon failure to redistrict for 1992 elections based on
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1990 Census data where accuracy of population data had not been resolved).
Furthermore, the reasoning employed by the District Court below, Bryant
and Fairley, and all of the other federal cases mentioned above, has likewise led
federal courts to dismiss “one person, one vote” claims in more recent cases. See
Graves v. City of Montgomery, 2011 WL 3503133, at *11-14 (M.D. Ala. Aug. 10,
2011) (dismissing “one person, one vote” claims against city for failure to
redistrict in response to 2010 Census data in light of impending elections); Herdt
v. Civil City of Jeffersonville, Indiana, 2011 WL 3273209, at *3-4 (S.D. Ind. July
29, 2011) (dismissing “one person, one vote” claim based upon alleged failure to
use most accurate population figures for most recent redistricting). In short, for
decades, every federal court considering the precise question on this appeal has
declined to grant “one person, one vote” relief and held newly available Census
data does not mandate that a governmental body hastily redistrict in advance of
imminent elections.
In this case, the facts considered by the District Court below – taken as true
for purposes of the Attorney General’s Motion to Dismiss, and taken as true for
purposes of de novo review on this appeal – fit neatly within the rationale of all
these federal court holdings. The qualification period for Mississippi Board of
Supervisor candidates in the subject counties opened on January 1, 2011 and
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closed on March 1, 2011. Primary elections took place on August 2, 2011, with
runoffs on August 23, 2011. The general election was held on November 8, 2011.
Prior to the elections, numerous deadlines and requirements had to be met.
As examples, absentee ballots had to be prepared, counties had to comply with
deadlines such as making those ballots available to military and overseas voters,
and other specific deadlines.13 Additionally, candidates campaigned for office
throughout 2011. Candidates and voters alike needed to know what district each
candidate would be running in, and where they would be voting. None of these
things could be accomplished effectively without certainty as to the districts that
would be used for the election.
Meanwhile, the 2010 Census data was not released until February 4, 2011,
in the middle of the qualification period. The counties needed time to analyze the
data, allow for public input, and to pass plans. Moreover, if plans could be passed
by the Boards of Supervisors in each county, they had to be pre-cleared by
Department of Justice pursuant to the Voting Rights Act (potentially adding a
period of 60 days or longer) before they could be used in any election.14 The
13
See footnote 8, supra.
14
Indeed, the complicating factors faced by the counties in this case due to timing of the
release of Census data were similar, if not the same, as those addressed in Fairley nearly twenty
years prior. See Fairley, 814 F.Supp. at 1330. Additionally, the process of gaining preclearance
from Department of Justice can take more than 60 days. Department of Justice has 60 days from
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process required many months and simply could not be completed in the short
time frame available prior to the 2011 elections.15
Rather than identifying any relevant authorities cutting against the District
Court’s conclusion, or pointing to any factual allegations not considered below
that support their argument, the NAACP appellants argue now – as they did in the
District Court – that any population deviation of greater than 10% in any voting
district automatically creates an actionable “one person, one vote” claim regardless
of any other facts or circumstances. Appellants’ Br. at 25-26.16 None of the cases
the date of a submission to grant preclearance, and if the 60 day period expires with no objection,
then the redistricting plan can be implemented. See 28 C.F.R. § 51.35. However, the process can
often take longer than 60 days. For example, if Department of Justice requests and receives
additional information, then a new 60 day clock may start depending upon certain conditions.
See 28 C.F.R. § 51.37.
15
Pursuant to MISS. CODE ANN . § 23-15-285 new lines cannot be used for supervisor
elections unless they are put in place 60 days prior to any election. Putting aside all of the other
election deadlines, the impact of the 60 day deadline was effectively that any new lines had to be
adopted, pre-cleared, and implemented by June 2, 2011. None of the counties involved in this
appeal were able to accomplish those tasks given that short time frame.
16
Notably, the NAACP appellants’ argument – that no plan is constitutional immediately
after the release of new census data – centers on a footnote in Georgia v. Ashcroft, 539 U.S. 461,
488 & n.2 (2003) and has failed to garner support in a recent and similar Census-timing case
involving redistricting of Mississippi’s Legislature. In NAACP v. Barbour, 2011WL 1870222, at
*8 (S.D. Miss. May 16, 2011) the plaintiffs were unable to persuade the three-judge district court
that Ashcroft’s footnote entitled them to remedial relief based solely on the fact that district lines
were malapportioned and regardless of the timing of release of Census data. The three-judge
panel’s decision was recently affirmed by the Supreme Court. NAACP v. Barbour, ____ U.S.
____, 2011 WL 6118830 (Oct. 31, 2011). The reasons the three-judge district court
distinguished Ashcroft earlier this year are likewise good grounds to hold that Ashcroft’s footnote
does not warrant a different result than the District Court below reached in this case.
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the NAACP appellants cite for that principle considered or discussed it in the
context of the time available to legislative bodies to redistrict following release of
new Census data. That is why the NAACP appellants’ argument misses the mark.
As explained by the District Court:
[t]he parties do not dispute the need for the counties to redistrict
based on 2010 census data. But each county’s board of supervisors
must have adequate time to formulate a redistricting plan and obtain
preclearance from the Department of Justice before its failure to do so
results in a declaration that elections held using the existing plans are
unconstitutional. Courts have generally accepted that some lag-time
between release of census data and redistricting is both necessary and
constitutionally acceptable, even when it results in elections based on
malapportioned districts in the years that census data is released. The
time frame here was a matter of weeks between the counties’ receipt
of new census information and the qualifying deadline. The
Constitution requires “reasonableness” from the boards of
supervisors. None of the counties has been able to complete the
redistricting process prior to expiration of the qualifying deadline,
despite some having made advance preparations to do so. There is
simply an insufficient amount of time for the County Boards of
Supervisors to receive and evaluate the 2010 decennial census data,
to redistrict each County in order to remedy any malapportionment,
and to comply with State election statutes.[17] Under the
17
The NAACP appellants’ contrary statement that some government bodies in
Mississippi were able to produce new redistricting plans in 2011 is only half-truth. Appellants’
Br. at 26. Some counties, such as Madison and Hancock, were able to put together plans in 2011
and gain preclearance. However, they were unable to do so prior to the qualifying deadline. The
Legislative plans mentioned by the NAACP appellants did not pass both houses of the
legislature, and thus they have never been submitted for preclearance. None of the counties
involved in this appeal had enough time to satisfy state law by passing plans and gain
preclearance prior to June 2, 2011, 60 days prior to the primary elections. See MISS. CODE ANN .
§ 23-15-285 (new supervisor lines may not be put in place later than 60 days prior to an election).
Furthermore, the issue is not whether – in a perfect world – the counties could get new plans in
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circumstances, and absent Justice Department preclearance of the
submitted plans, the 2011 elections in the affected Counties must be
conducted as they are presently configured.
[Memorandum Opinion and Order, R.E. 10 at 1726-27 (emphasis added)]. The
District Court properly found that the state policies of orderly and regular
elections, inherent in observance of its election schedules established by state law,
was good reason to find no “one person, one vote” violation would occur if current
lines were used for 2011 elections.
In summary, the “one person, one vote” principle does not give the NAACP
appellants a rigid, absolute right to vote in a supervisor district with a deviation of
less than 10% for every election. Rather, as correctly determined by the District
Court, their claims must take into account the timing of the release of Census data
and all the other factors inherent in the redistricting process. There is no
automatic “one person, one vote” violation if supervisor candidates run on “old”
pre-cleared district lines in the same year decennial Census data becomes
available. If this Court determines that any of the NAACP appellants have
standing, then the District Court’s alternative dismissal of the complaints on their
merits should be affirmed.
place. Rather, the issue is whether the Constitution reasonably requires that they do so when
Census data was released in the middle of the election cycle. As explained above, all the prior
cases addressing that distinction have said “no.”
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The District Court Acted Within Its Discretion in Not Awarding
Injunctive Relief.
The NAACP appellants’ brief argues that the District Court erred in failing
to enjoin elections on the existing supervisor district lines in the subject counties.
Appellants Br. at 23-27. It is highly questionable whether the NAACP appellants
properly moved for injunctive relief in the District Court. They never actually
filed a motion for injunctive relief.18 The District Court did not address any
motion for injunctive relief in its Memorandum Opinion and Order or in its Order
on post-judgment motions. [Memorandum Opinion and Order R.E. 10; Order, R.
1839-41]. Also, the NAACP appellants’ brief does not specifically address any of
the factors relevant to an injunctive relief inquiry.
Nevertheless, assuming that any injunctive relief issue was ever properly
before the District Court, in order to be awarded injunctive relief, plaintiffs must
18
Prior to consolidation in the District Court, the NAACP appellants filed motions for a
temporary restraining order in some of the individual cases. [Motions for TRO, 3:11cv121 R. 2235; 3:11cv122 R. 21-31; 3:11cv123 R. 23-36; 4:11cv33 R. 23-32; 5:11cv29 R. 20-29; 5:11cv30
R. 22-31]. After consolidation, all pending motions were terminated, and the NAACP appellants
did not file or re-file any motions for injunctive relief. After the District Court issued its
Memorandum Opinion and Order on May 13, 2011, the NAACP appellants filed post-judgment
motions under Rules 59 and 60. [Rule 59 and 60 Motions, R. 1742-75]. Subsequently, those
motions were denied by order entered June 13, 2011. [Order, R. 1839-41]. The NAACP
appellants also filed a Motion for Stay and Injunction Pending Appeal [Motion for Stay and
Injunction Pending Appeal, R. 1783-89] that was denied by text order on June 13, 2011. [Order,
R. 38 (Text Order)]. The NAACP appellants have not moved for an injunction or stay pending
appeal in this Court. Moreover, they never attempted to prove any of the required elements for
an injunction in the District Court.
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prove: (1) a likelihood of success on the merits; (2) they would suffer irreparable
injury due to no adequate remedy at law; (3) their alleged threat of injury is not
outweighed by potential harm to defendants and other interested parties; and (4)
the public interest would be served by the injunctive relief. See VRC, LLC v. City
of Dallas, 460 F.3d 607, 611 (5th Cir. 2006); DSC Comms. Corp. v. DGI Tech.,
Inc., 81 F.3d 597, 600 (5th Cir. 1996). On appeal, this Court reviews the denial of
injunctive relief for abuse of discretion. See Nichols v. Alcatel USA, Inc., 532 F.3d
364, 372 (5th Cir. 2008).
The NAACP appellants’ case fails the first injunctive relief element for the
reasons set forth above in Section II, A. The respective Boards of Supervisors
were not required to redistrict based upon new Census data released in the middle
of the 2011 election cycle. The NAACP appellants simply did not present an
actionable “one person, one vote” claim to the District Court and thus failed to
prove a “likelihood of success.”
Similarly, the NAACP appellants lack of a valid “one person, one vote”
claim on the facts they alleged in the District Court shows that they would not
(and by now, have not) suffered any irreparable harm from use of the current
supervisor district lines in 2011 elections. There was simply no proof of an
irreparable injury sufficient to support injunctive relief.
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The balance of harms element also weighed against any award of injunctive
relief. Any injunctive relief that would have altered election deadlines, or the
elections themselves, would have required the counties to rush to redistrict, caused
expensive delays, and had the potential to cause voter and candidate confusion.
Measured against the lack of a viable “one person, one vote” claim, it cannot be
said the balance of harms ever favored the NAACP appellants.
Last, the public interest weighed against any injunctive relief. An
injunction would have altered the public’s settled expectations regarding the
elections. The collective citizens’ interests in knowing who was running, where
they were running, and who candidates are running to represent, would have
inappropriately been frustrated if an injunction had issued. In sum, none of the
injunction factors ever weighed in favor of the NAACP appellants. If this Court
deems that they ever properly raised a claim for injunctive relief, then it should
hold the District Court did not abuse its discretion in refusing to grant it.
III.
The District Court Acted Within Its Discretion in Denying NAACP
Appellants’ Motions to Amend.
Last, the District Court correctly denied the various Motions for Leave to
Amend filed by the NAACP appellants. Each proposed amendment was designed
to add individual plaintiffs which would purportedly cure original plaintiffs’ lack
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of standing in several of the consolidated cases below.19 None of the proposed
amendments sought to add any new substantive allegations against any of the
defendants or the Attorney General.
A.
Litigants Who Lack Standing Cannot Add New Parties and Cure
their Standing Defect.
Denial of a motion to amend is reviewed on appeal for abuse of discretion.
Whitmire v. Victus, Ltd., 212 F.3d 885, 887 (5th Cir. 2000). The District Court did
not abuse its discretion in denying the NAACP appellants’ Motions for Leave to
Amend for several reasons.
Initially, it is well-settled that plaintiffs who do not have standing may not
amend their complaint to cure a standing defect. Federal Recovery Services, Inc.
v. U.S., 72 F.3d 447, 452-53 (5th Cir. 1995); Aetna Cas. & Surety Co. v. Hillman,
796 F.2d 770, 774 (5th Cir. 1986); Summit Office Park v. U.S. Steel Corp., 639
F.2d 1279, 1282 (5th Cir. 1981). As discussed above in Section I, the District
Court correctly held that all of the NAACP appellants below lacked standing.
Therefore, none of them could amend their complaints to cure their lack of
19
Motions to amend were filed by the NAACP appellants below pertaining to each
complaint consolidated by the District Court. [Motions to Amend, R. 517-37, 576-96, 597-613,
614-37, 739-59, 760-80, 781-97, 798-820; 3:11cv121 R. 99-120; 3:11cv122 R. 71-89; 3:11cv123
R. 118-36; 3:11cv124 R. 49-67; 4:11cv33 R. 73-94; 5:11cv28 R. 103-17; 5:11cv29 R. 129-43;
5:11cv30 R. 138-53]. Each proposed amendment simply sought to include additional individuals
as plaintiffs and did not propose to add any new allegations or claims.
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standing. When a plaintiff lacks standing, she may not amend the complaint and
control the litigation by substituting new plaintiffs, a new class, or a new cause of
action. Summit Office Park, 638 F.2d at 1282-83. See also Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 69 (1987)
(subject matter jurisdiction “depends on the state of things at the time of the action
brought”); Smith v. Sperling, 354 U.S. 91, 93 & n.1 (1957) (“jurisdiction is tested
by the facts as they existed when the action is brought”).
B.
The Proposed Amendments Were Futile.
Even assuming that any NAACP appellants had standing and thus could
properly amend their complaints, it is well-settled that district courts have
discretion to deny a proposed amendment if it would be futile. Stripling v. Jordan
Prod. Co., 234 F.3d 863, 872-73 (5th Cir. 2000). An amendment is futile if the
“amended complaint would fail to state a claim upon which relief could be
granted.” Id.
As explained in Section II, A, above, the District Court correctly held, in the
alternative, that none of the NAACP appellants’ claims had any merit. None of
the proposed new plaintiffs sought to be included by amending the complaints
would have presented any new claims or additional facts to support the existing
claims. The proposed new plaintiffs simply sought to assert the same claims that
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the District Court determined had no merit. As a consequence, the District Court
did not abuse its discretion in refusing to allow the amendments which would have
failed to state a claim just like the original ones.
C.
NAACP Appellants’ Amendment “As a Matter of Course”
Argument is Irrelevant.
Instead of explaining any reason why parties who lack standing should be
allowed to amend their complaints, or disputing that the District Court had
discretion to deny a futile amendment, the NAACP appellants merely claim that
their proposed amendments should have been allowed below as “a matter of
course” pursuant to Rule 15(a)(1). But the fact that they may have had a
procedural right to amend does not mean the District Court had to allow them to
exercise it.
If a plaintiff lacks standing, then the district court is not obligated to allow
an amendment to add new parties regardless of whether based upon a matter of
right under Rule 15 or not. The amendment “as a matter of course” distinction
claimed by the NAACP appellants here makes no difference. For example in
Summit Office Park, the plaintiffs attempted to amend their complaint “as a matter
of course” pursuant to Rule 15 and this Court affirmed the district court’s rejection
of the amendment:
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[t]he principal issue involved is not whether the complaint can be
amended as a matter of course, as urged by appellants, but under the
special circumstances here whether [the plaintiff] could offer an
amendment to the complaint at all. Since there was no plaintiff
before the court with a valid cause of action, there was no proper
party available to amend the complaint. Thus none of the appellants
had a right to file the amended complaint.
Summit Office Park, 639 F.2d at 1282. See also Hillman, 796 F.2d at 772
(affirming denial of complaint amendment for lack of jurisdiction even though
amendment sought as a matter of right). Accordingly, the District Court below
properly disallowed the NAACP appellants’ proposed amendments because of a
lack of standing, even though they now claim a right to amend “as a matter of
course.”
Furthermore, even assuming the NAACP appellants had standing, their
amendment “as a matter of course” argument is still irrelevant. If any of them did
have standing, their claims were properly dismissed on the merits in the
alternative. As the District Court held, and as explained above, any attempt to
amend their complaints would have been futile. When an amendment would be
futile, a district court cannot be said to have committed a reversible error, even
when the plaintiff would have a right to amend the complaint “as a matter of
course.” See, e.g., U.S. v. Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009).
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Either way, due to lack of standing or because the proposed amendments
would have been futile, the District Court correctly disallowed the NAACP
appellants’ proposed amendments. The NAACP appellants’ argument that they
had a right to amend “as a matter of course” under Rule 15 is immaterial and
should not change that result.
CONCLUSION
In conclusion, none of the NAACP appellants had standing in the District
Court. This Court should affirm the District Court’s dismissal for lack of
standing. Alternatively, if this Court finds that any of the NAACP appellants had
the requisite standing, it should affirm the District Court’s alternative dismissal of
their claims on the merits and denial of their motions to amend.
This the 17th day of November, 2011.
Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
FOR THE STATE OF MISSISSIPPI EX REL.
STATE OF MISSISSIPPI
/s/ Justin L. Matheny
HAROLD E. PIZZETTA III (Bar# 99867)
JUSTIN L. MATHENY (Bar# 100754)
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Counsel for Appellee-Intervenor Defendant Jim
Hood, Attorney General for the State of
Mississippi ex rel. State of Mississippi
Civil Litigation Division
Office of the Attorney General
550 High Street, Suite 1200
Jackson, Mississippi 39201
Telephone: (601) 359-3680
Facsimile: (601) 359-2003
hpizz@ago.state.ms.us
jmath@ago.state.ms.us
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Date Filed: 11/17/2011
CERTIFICATE OF SERVICE
This is to certify that I, Justin L. Matheny, Special Assistant Attorney
General for the State of Mississippi, have this date caused the foregoing brief to be
filed via the Court’s ECF System and thereby served on the following persons, and
have also served a copy of the foregoing brief on the following persons via United
States Postage Service, first-class postage prepaid:
Carroll Rhodes
Law Offices of Carroll Rhodes
P.O. Box 588
Hazlehurst, MS 39083
Deborah McDonald
P.O. Box 2038
Natchez, MS 39120
Bobby L. Cox
P.O. Box 892
Natchez, MS 39121
Bryan H. Callaway
P.O. Box 21
Natchez, MS 39121
Tommie S. Cardin
Leslie Scott
John H. Dollarhide
Butler Snow O’mara Stevens &
Cannada
P.O. Box 6010
Ridgeland, MS 39157-6010
Alfred Lee Felder
Felder Law Firm
P.O. Box 1261
McComb, MS 39649-1261
Elise B. Munn
Berry & Munn, PA
P.O. Drawer 768
Hazlehurst, MS 39083
C. Wayne Dowdy
Dowdy & Cockerham
215 East Bay Street
Magnolia, MS 39652
Charles M. Leggett
Cooper Martin Leggett
Leggett Law Office, PLLC
P.O. Box 384
Waynesboro, MS 39367-0384
44
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Benjamin E. Griffith
Daniel J. Griffith
Michael S. Carr
Griffith & Griffith
P.O. Drawer 1680
Cleveland, MS 38732
Page: 61
Date Filed: 11/17/2011
James R. Sherard
1010 Monroe Street
Vicksburg, MS 39183-2552
James D. Shannon
Shannon Law Firm
100 W. Gallatin St.
Hazlehurst, MS 39083-0869
This the 17th day of November, 2011.
/s/ Justin L. Matheny
Justin L. Matheny
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Date Filed: 11/17/2011
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance with Type-Volume Limitations, Typeface
Requirements, and Type Style Requirements.
1. This brief complies with the type-volume limitations of Fed.R.App.P.
32(a)(7)(B) because this brief contains less than 12,250 words, excluding the parts
of the brief exempted by Fed.R.App.P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed.R.App.P.
32(a)(6) because the brief has been prepared in a proportionally spaced typeface
using WordPerfect in Time New Roman 14 pt.
3. The undersigned understands that a material misrepresentation in
completing this certificate or circumvention of the type-volume limits may result
in this Court striking the brief and imposing sanctions.
Respectfully submitted, this the 17th day of November, 2011.
/s/ Justin L. Matheny
Justin L. Matheny
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United States
Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
November 18, 2011
Mr. Justin Lee Matheny
Office of the Attorney General
for the State of Mississippi
550 High Street, Walter Sillers Building
Jackson, MS 39201-0000
No. 11-60446, Hancock County Board of Supr, et al v. Karen Ruhr, et al
USDC No. 1:10-CV-564
USDC No. 3:11-CV-121
USDC No. 3:11-CV-122
USDC No. 3:11-CV-123
USDC No. 3:11-CV-124
USDC No. 4:11-CV-33
USDC No. 5:11-CV-28
USDC No. 5:11-CV-29
USDC No. 5:11-CV-30
The following pertains to your appellee’s brief electronically
filed on November 17, 2011.
You need to correct or add:
Title on the brief does not agree with the title of the case in
compliance with FED. R. APP. P. 32(a)(2)(C).(See below for the
court’s official case caption)
Once you have prepared your sufficient brief, you must email it
to: Misty_Fontenot@ca5.uscourts.gov for review. If the brief is
in compliance, you will receive a notice of docket activity
advising you that the sufficient brief has been filed.
Sincerely,
LYLE W. CAYCE, Clerk
By:_________________________
Misty L. Fontenot, Deputy Clerk
504-310-7716
cc:
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Ms.
Ms.
Mr.
Mr.
Michael Garner Berry
Bryan Howard Callaway
Jeremy P. Diamond
John Houston Dollarhide
Charles Wayne Dowdy
Alfred Lee Felder
Benjamin Elmo Griffith
Leonard J McClellan
Deborah Ann McDonald
Elise Berry Munn
Harold Edward Pizzetta III
Carroll E. Rhodes
Case: 11-60446
Document: 00511670665 Page: 2 Date Filed: 11/17/2011
*Brief Covers. THE CASE CAPTION(S) ON BRIEF COVERS MUST BE
EXACTLY THE SAME AS THE CASE CAPTION(S) ON THE ENCLOSED TITLE
CAPTION SHEET(S). YOU WILL HAVE TO CORRECT ANY MODIFICATIONS YOU
MAKE TO THE CAPTION(S) BEFORE WE SUBMIT YOUR BRIEF TO THE COURT.*
Case No. 11-60446
HANCOCK COUNTY BOARD OF SUPERVISORS,
Plaintiff
v.
KAREN LADNER RUHR, in her official capacity as Hancock County
Circuit Clerk and Hancock County Registrar; ET AL,
Defendants
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi
Intervenor Defendant - Appellee
HAZLEHURST, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and
all others similarly situated; NANETTE THURMOND-SMITH,
Plaintiffs - Appellants
v.
COPIAH COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; COPIAH COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; EDNA STEVENS, in her
official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi
Intervenor Defendant - Appellee
REVEREND FRANK LEE; PIKE COUNTY, MISSISSIPPI BRANCH OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on
behalf of themselves and all others similarly situated,
Plaintiffs - Appellants
v.
PIKE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; PIKE COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; PIKE COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; ROGER GRAVES, in his
official capacity as Circuit Clerk; PIKE COUNTY, MISSISSIPPI
DEMOCRATIC PARTY EXECUTIVE COMMITTEE,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi
Intervenor Defendant - Appellee
SIMPSON COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves
and all others similarly situated; L. J. CAMPER, on behalf of
themselves and all others similarly situated,
Case: 11-60446
Document: 00511670665
Plaintiffs - Appellants
Page: 3
Date Filed: 11/17/2011
v.
SIMPSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; SIMPSON COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; SIMPSON COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; SIMPSON COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; CINDY JENSEN, in her
official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi
Intervenor Defendant - Appellee
AMITE COUNTY, MISSISSIPPI BRANCH OF THE NATIIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, on Behalf of Themselves and
all others Similarly Situated; GLENN WILSON, on Behalf of
Themselves and all others Similarly Situated,
Plaintiffs - Appellants
v.
AMITE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; AMITE COUNTY,
MISSISSIPPI DEMOCRATIC EXECUTIVE COMMITTEE; AMITE COUNTY,
MISSISSIPPI REPUBLICAN EXECUTIVE COMMITTEE; AMITE COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SHARON WALSH, in Her
Official Capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi,
Intervenor Defendant - Appellee
WAYNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and
all others similarly situated; LEAH PARSON, on behalf of
themselves and all others similarly situated,
Plaintiffs - Appellants
v.
WAYNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WAYNE COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; WAYNE COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; WAYNE COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; ROSE BINGHAM, in her
official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi
Intervenor Defendant - Appellee
VICKSBURG, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, on behalf of itself and all others
similarly situated,
Plaintiffs - Appellants
v.
WARREN COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WARREN COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; WARREN COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SHELLY ASHLEY-
Case: 11-60446
Document: 00511670665 Page: 4 Date Filed: 11/17/2011
PALMERTREE, in his official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi,
Intervenor Defendant - Appellee
CLAIBORNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of itself and
all others similarly situtated,
Plaintiff - Appellant
v.
CLAIBORNE COUNTY, MISSISSIPPI BORD OF SUPERVISORS; CLAIBORNE
COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE;
CLAIBORNE COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE
COMMITTEE; CLAIBORNE COUNTY, MISSISSIPPI BOARD OF ELECTION
COMMISSIONERS; SAMMIE GOOD, in her official capacity as
Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi,
Intervenor Defendant - Appellee
ADAMS COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, on behalf of themselves and
all others similarly situated; JACQUELINE MARSAW, on behalf of
themselves and all others similarly situated,
Plaintiffs - Appellants
v.
ADAMS COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; ADAMS COUNTY,
MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; ADAMS COUNTY,
MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; ADAMS COUNTY,
MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; EDWARD WALKER, in
his official capacity as Circuit Clerk,
Defendants - Appellees
JIM HOOD, Attorney General for the State of Mississippi, ex rel.
the State of Mississippi,
Intervenor Defendant - Appellee