FILE D
AUG 1 8 2011
No. 11-82
-- :~ HE CLERKJ
In the
~upreme ~ourt o[ t~e ~niteb ~tate~
¯
MISSISSIPPI STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE et al.,
Appellants,
V.
HALEY BARBOUR, in his official capacity as
Governor of the State of Mississippi et al.,
Appellees.
On Appeal from Decisions Of The Three-Judge
Court Of The United States District Court For
The Southern District of Mississippi
MOTION TO DISMISS OR AFFIRM OF
GOVERNOR HALEY BARBOUR AND
THE MISSISSIPPI REPUBLICAN PARTY
EXECUTIVE COMMITTEE
Stephen L. Thomas
Counsel of Record
Jack L. Wilson
Michael B. Wallace
C. Stevens Seale
James D. Findley
BRADLEY ARANT BOULT
CUMMINGS LLP
WISE CARTER CHILD ~
CARAWAY
Post Office Box 1789
Jackson, MS 39215-1789
(601) 948-8000
sthomas@babc.com
Post Office Box 651
Jackson MS 39201-0651
(601) 968-5534
Counsel for Governor
Haley Barbour
Counsel for the Mississippi
Republican Party
Executive Committee
I
Blank Page
QUESTIONS PRESENTED
1. Whether the appeal should be dismissed because plaintiffs waived any claim that Section 254 of
the Mississippi Constitution is unconstitutional.
2. Whether the appeal should be dismissed because this Court lacks jurisdiction under 28 U.S.C. §
1253 and MTM, Inc. v. Baxley, 420 U.S. 799 (1975).
3. Whether the appeal should be dismissed because the denial of injunctive relief is or will soon be
moot and because it would be premature for this
Court to address an issue--whether special elections
will be necessary--on which the district court expressly reserved judgment.
4. Whether the district court’s order denying a
preliminary injunction should be affirmed because it
was not an abuse of discretion to conclude that Section 254 of the Mississippi Constitution is consistent
with Reynolds v. Sims, 377 U.S. 533 (1964), and,
therefore, that plaintiffs had not established a likelihood of success on the merits.
5. Whether the district court’s refusal to enjoin
use of the State’s current apportionment plans in
impending elections was an abuse of discretion given
that plaintiffs failed to offer valid alternative plans.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................
i
TABLE OF AUTHORITIES .......................................
iv
INTRODUCTION ........................................................
1
STATEMENT OF THE CASE ....................................
2
SUMMARY OF THE ARGUMENT ............................
7
ARGUMENT ...............................................................
9
I.
THE APPEAL SHOULD BE DISMISSED ..........
9
A. Plaintiffs Waived Any Challenge To The
Constitutionality Of Section 254 Of The
Mississippi Constitution ................................
9
B. The Court Lacks Jurisdiction ......................
10
C. Plaintiffs’ Appeal Is In Part Moot And
In Part Premature ........................................
12
II. IN THE ALTERNATIVE, THE DISTRICT
COURT’S RULING WAS NOT AN ABUSE
OF DISCRETION AND SHOULD BE
AFFIRMED ..........................................................
17
A. The District Court’s Order Denying A
Preliminary Injunction May Be
Reversed Only For An Abuse Of
Discretion ......................................................
18
in
Bo
Co
The Denial Of Preliminary Injunctive
Relief Was Not An Abuse Of Discretion
Because Plaintiffs Failed To Show That
Section 254 Is Inconsistent With The
Requirements Of Re.Fno]ds ~’. ,Fires .............
19
Even Aside From Plaintiffs’ Failure To
Establish A Likelihood of Success On
The Merits, The Denial Of Preliminary
Injunctive Relief Was Not An Abuse Of
Discretion Because Plaintiffs Failed To
Offer A Superior--Or Even Valid-Alternative Apportionment Plan .................
26
CONCLUSION ..........................................................
32
iv
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001) ............................................. 15
Animal Legal Def. Fund v. Shalala,
53 F.3d 363 (D.C. Cir. 1995) ...............................12
Ashcroft v. ACLU,
542 U.S. 656 (2004) ........................... 18, 19, 26, 31
Beens v. Sixty-Seventh Minn. Senate,
406 U.S. 187 (1972) ....................................... 21, 22
Brown v. Chote,
411 U.S. 452 (1973) ............................................. 18
Brown v. Thomson,
462 U.S. 835 (1983) ............................................. 29
Burns v. Richardson,
384 U.S. 73 (1966) ............................................... 30
Carstens v. Lamm,
543 F. Supp. 68 (D. Colo. 1982) ..........................28
Connor v. Finch,
431 U.S. 407 (1977) ................................... 4, 27, 29
Chapman v. Meier,
420 U.S. 1 (1975) ............................................. 4, 29
Clark v. Putnam County,
293 F.3d 1261 (llth Cir. 2002) ...........................30
V
Clark v. Roemer,
500 U.S. 646 (1991) ................................. 13, 14, 15
Cox v. Larios,
542 U.S. 947 (2004) ............................................. 31
Ely v. Klahr,
403 U.S. 108 (1971) ............................................. 13
French v. Boner,
786 F. Supp. 1328 (M.D. Tenn. 1992) ..........25, 26
French v. Boner,
963 F.2d 890 (6th Cir. 1992) ...............................25
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167 (2000) .............. 15
Georgia v. Ashcroft,
539 U.S. 461 (2003) ....................................... 22, 23
Gonzalez v. Employees Credit Union,
419 U.S. 90 (1974) ......................................... 10, 11
Harris v. City of Houston,
151 F.3d 186 (5th Cir. 1998) ...............................12
IBTCWHA, Local Union No. 2702 v. W. Air
Lines, Inc., 854 F.2d 1178 (9th Cir. 1988) ..........12
Jones v. Montague,
194 U.S. 147 (1904) ............................................. 12
Larios v. Cox,
300 F. Supp. 2d 1320 (N.D. Ga. 2004) ................ 31
vi
Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367 (1996) ............................................. 15
Mazurek v. Armstrong,
520 U.S. 968 (1997) ............................................. 18
McDaniel v. Sanchez,
452 U.S. 130 (1981) ....................................... 29, 30
McLane v. Mercedes-Benz of N. Am., Inc.,
3 F.3d 522 (1st Cir. 1993) ...................................12
Mickens v. Taylor,
535 U.S. 162 (2002) .............................................23
MTM, Inc. v. Baxley,
420 U.S. 799 (1975) ...................... i, 1, 7, 10, 11, 12
Political Action Conference of Ill. v. Daley,
976 F.3d 335 (7th Cir. 1992) ......................... 24, 25
Ry. Labor Executives Ass’n v. Chesapeake
W. Ry., 915 F.2d 116 (4th Cir. 1990) ..................12
Reynolds v. Sims,
377 U.S. 533 (1964) ......................................passim
Richardson v. McChesney,
218 U.S. 487 (1910) ............................................. 13
Schlesinger v. Councilman,
420 U.S. 738 (1975) .............................................12
Shalala v. Ill. Council on Long Term Care, Inc.,
529 U.S. 1 (2000) .................................................23
vii
Shayer v. Kirkpatrick,
541 F. Supp. 922 (W.D. Mo. 1982) ................27, 28
United States v. Alvarez-Sanchez,
10
511 U.S. 350 (1994) .............................................
Walters v. Nat’l Assn. of Radiation Survivors,
473 U.S. 305 (1985) .............................................
18
Watkins v. Fordice,
791 F. Supp. 646 (S.D. Miss. 1992) ....................
17
Watkins v. Mabus,
12
502 U.S. 954 (1991) .............................................
Whitcomb v. Chavis,
404 U.S. 124 (1971) .............................................
21
White v. Weiser,
412 U.S. 783 (1973) .............................................27
Winter v. Natural Res. Def. Council,
555 U.S. 7 (2008) .................................................
18
Wise v. Lipscomb,
437 U.S. 535 (1978) .............................................
30
Worldwide Street Preachers’Fellowship v.
Peterson, 388 F.3d 555 (7th Cir. 2004) ...............12
Wyche v. Madison Parish Police Jury,
635 F.2d 1151 (5th Cir. 1981) .............................29
Constitutional Provisions, Statues, and Rules
28 U.S.C. § 1253 ..............................................
i, 10, 11
viii
28 U.S.C. § 2284 .........................................................
3
MISS. CONST. art.
13, § 254 ...............................
passim
Supreme Court Rule 18.6 ...........................................
1
Other
11A C. WRIGHT, A. MILLER, ~ M. KANE,
FEDERAL PRACTICE AND PROCEDURE
§ 2948 (2d ed. 1995) ............................................
18
INTRODUCTION
Pursuant to Rule 18.6, Appellees Governor Haley
Barbour and the Mississippi Republican Party Executive Committee ("Republican Party") move to
dismiss this appeal or, alternatively, to affirm the
decision of the three-judge court. The appeal should
be dismissed for three distinct reasons: First, plaintiffs waived any claim that Section 254 of the Mississippi Constitution is unconstitutional by failing to
challenge Section 254 in the court below. Second,
this Court lacks jurisdiction over the appeal because
the district court’s denial of preliminary injunctive
relief was not dependent on its resolution of the merits of any constitutional claim. MTM, Inc. v. Baxley,
420 U.S. 799, 803-04 (1975). Third, the denial of preliminary injunctive relief related to Mississippi’s August 2011 legislative primaries and November 2011
general election is or will soon be moot, and plaintiffs’ attempt to raise the issue of special elections in
2012 is premature given that the district court expressly reserved judgment on the issue.
If the appeal is not dismissed, the district court’s
ruling should be affirmed summarily because the
denial of a preliminary injunction was not an abuse
of discretion. The district court’s determination that
Section 254 appears consistent with this Court’s opinion in Reynolds v. Sims, 377 U.S. 533 (1964), was
correct and--particularly given plaintiffs’ failure to
challenge Section 254--certainly was not an abuse of
discretion. In addition, the court’s refusal to enjoin
use of the State’s current apportionment plans could
not have been an abuse of discretion given that
plaintiffs presented no valid alternative plans.
2
STATEMENT OF THE CASE
Mississippi is one of only four states holding
statewide legislative elections in 2011. The qualifying deadline for legislative candidates was June 1,
2011. J.S. App. 12. Primary elections were held as
scheduled on August 2, 2011. Ibid. Run-offs in primary elections will be held on August 23, 2011. Ibid.
The general election is scheduled for November 8,
2011. Ibid.
Section 254 of the Mississippi Constitution establishes the timetable and process for legislative reapportionment in Mississippi. MISS. CONST. art. 13, §
254. It provides that the Legislature "shall" reapportion itself "at its regular session in the second
year following the ... decennial census" and that it
"may" reapportion itself "at any other time." Ibid.
Reapportionment must be accomplished by "joint
resolution" of the Legislature. Ibid. If the Legislature fails to reapportion itself by the end of "its regular session in the second year following the ... decennial census," then the Governor must call a special
legislative session limited to the issue of reapportionment. Ibid. If the special session fails to produce
a joint resolution on reapportionment, then a special
five-member commission consisting of the Chief Justice of the Mississippi Supreme Court, the Attorney
General, the Secretary of State, the Speaker of the
House of Representatives, and the President Pro
Tempore of the Senate must convene and adopt
reapportionment plans within 180 days. Ibid. Mississippi’s current apportionment plans were adopted
by joint resolution in 2002. See 2002 Miss. Gen.
Laws ch. 761 (J.R. 1), ch. 762 (J.R. 201).
The Legislature received 2010 census data in
February 2011. Although Section 254 does not require the Legislature to reapportion itself until 2012,
it attempted to do so during its 2011 session. Unfortunately, these efforts were unsuccessful. The House
passed two different plans for the House, but neither
obtained Senate approval. The Senate passed a plan
for the Senate, but the House conditioned its approval of the plan on Senate approval of the House plan,
which the Senate again rejected. The Senate invited
conference on the failed joint resolution and named
conferees, but the House refused to confer. The Legislature adjourned on April 7, 2011 without having
enacted reapportionment plans. J.S. App. 10-12.
On March 17, 2011 while the Legislature was
still in session--plaintiffs filed suit in the U.S. District Court for the Southern District of Mississippi,
alleging that, based on 2010 census data, Mississippi’s current apportionment plans violate the oneperson, one-vote mandate of the Equal Protection
Clause. J.S. App. 12, 14.1 Plaintiffs requested a preliminary injunction prohibiting the use of those plans
in Mississippi’s 2011 legislative elections. J.S. App.
14. After a three-judge court was convened, see 28
U.S.C. § 2284, plaintiffs asked the court to order the
State to use plans that were passed separately by the
respective houses of the Legislature during its 2011
session but never adopted by joint resolution, as required by Section 254 of the Mississippi Constitu1 Although plaintiffs’ complaint alleged "racial discrimination in
violation of the Equal Protection Clause" and violations of the
Voting Rights Act, they later represented to the court "that this
is only a ’one-person, one-vote’ case." J.S. App. 15 n.2.
tion. J.S. App. 14-15. The Attorney General and the
Mississippi Democratic Party Executive Committee,
as well as the Senate Democratic Caucus, the Democrat-controlled House Apportionment and Elections
Committee, and certain state senators as intervenors
also asked the Court to order the State to use the unenacted plans in the 2011 elections. J.S. App. 16-17.~
The Secretary of State, ioined by three state senators as intervenors, moved to dismiss the lawsuit-and opposed judicial imposition of the un-enacted
2011 plans---on the ground that the Federal Constitution, like Section 254 of the Mississippi Constitution, did not require reapportionmer~t until 2012.
See J.S. App. 15. Governor Barbour and the Republican Party also opposed imposition of the un-enacted
2011 plans on additional grounds. First, their imposition by court order would improperly override a legislative policy judgment not to enact them. Second,
the plans’ significant population deviations 9.96%
for the House and 9.6% for the Senate--would violate the rule that "a court-ordered reapportionment
plan of a state legislature ... must ordinarily achieve
the goal of population equality with little more than
de minimis variation." Connor v. Finch, 431 U.S.
407, 414 (1977) (quoting Chapman v. Meier, 420 U.S.
2 Notably, although the House Committee supported plaintiffs’
request for injunctive relief, the Committee also acknowledged
the existence of a "threshold question" whether the Federal
Constitution required reapportionment in 2011 and repeatedly
refused to take any position on the merits of that question. J.S.
App. 17-18. That is, the Committee urged the Court to impose
a remedy for the allegedly unconstitutional districts while taking no position as to whether there was, in fact, any unconstitutionality that needed remedying.
1, 26-27 (1975)). Third, because the significant population deviations in the House plan appeared driven
by partisan interests rather than legitimate districting criteria,3 it would not satisfy even the less stringent standards of population equality applicable to
legislatively enacted plans. Fourth, the plans did not
comply with state statutory districting policies. See
J.S. App, 16-17.
On April 29, 2011, the district court entered an
"Order and Notice" announcing that it was "inclined
to" adopt the un-enacted House and Senate plans "as
the interim court-ordered plan[s] for use in the 2011
elections." J.S. App. 28-31 The court suggested that
"[t]his proposed interim remedy appear[ed] to be necessary" because current districts were malapportioned "and because of the exigent circumstances,"
i.e., the fast-approaching election deadlines. J.S.
App. 29. The court scheduled a limited, one-day
hearing to permit parties to express their views on
the proposed remedy and offer relevant evidence.
J.S. App. 29-30. The court emphasized, however,
that it was considering "an interim remedy only, not
a permanent one," that would "be used only for the
3 Uncontradicted evidence established, for example, that in the
House plan, districts presently represented by Democrats were
under-populated by an average of 1.0%, while districts presently represented by Republicans were over-populated by an average of 1.3%. In addition, the House plan excluded at least four
Republican candidates from districts in which they had announced challenges to Democratic incumbents. In one instance,
this required splitting the very precinct in which the Republican candidate resided; in another case, the Democratic incumbent openly bragged to his local newspaper that he had succeeded in gerrymandering his would-be opponent out of the district, thereby saving himself "about $50,000" in reelection costs.
6
2011 elections." J.S. App. 30. Thus, the un-enacted
plans "would not be used again for any other election" unless duly enacted by the Legislature or, alternatively, "adopted as part of a permanent injunctive remedy in some future order of th[e] [c]ourt after
a full trial on the merits." Ibid. The court also proposed that it would "retain jurisdiction ... to order
further appropriate relief, upon motion of any party,
following completion of the [Second 254 reapportionment] process." Ibid.
On May 16, 2011, following the hearing on its
proposed interim remedy, the district court entered
an order declining to enjoin the State from using its
current apportionment plans. See J.S. App. 4-27.
The court noted that no party "ha[d] asked [the
court] to declare that Section 254 of the Mississippi
Constitution violates the United States Constitution." J.S. App. 21. The court also reasoned that
Section 254’s reapportionment timetable appeared to
be consistent with language from this Court’s decision in Reynolds v. Sims, 377 U.S. 533, 583-84
(1964). See J.S. App. 19-21. "In light of these considerations," the court held "that federal interference
in the Mississippi legislative redistricting process
[would be] premature at this time." J.S. App. 21.
The court also "retain[ed] jurisdiction ... to order
appropriate relief, including special elections, if appropriate, upon motion of any party following completion---or failure--of the process for redistricting ...
prescribed by ... Section 254." J.S. App. 24. The
court explained that if the Section 254 process produced new apportionment plans, and if any party
filed a motion requesting special elections under the
7
new plans, then the court would determine whether
special elections would be necessary. J.S. App. 2425. Alternatively, if the Section 254 process did not
produce new apportionment plans, the court indicated that it would schedule hearings and draw its
own plans. J.S. App. 25-26. The court subsequently
denied plaintiffs’ motions to reconsider or amend its
ruling. J.S. App. 2.
SUMMARY OF THE ARGUMENT
LA. The appeal should be dismissed because
plaintiffs waived any claim that Section 254 of the
Mississippi Constitution--which expressly permits
legislative reapportionment next year--is unconstitutional. As the district court explained, "none of the
parties asked [the court] to declare that Section 254
... violates the United States Constitution." J.So
App. 21. Plaintiffs not only failed to challenge Section 254--in their complaint, they specifically asked
the court to enforce Section 254. Having failed to advance that essential constitutional challenge in the
court below, plaintiffs should not be permitted to do
so for the first time in this Court.
LB. The appeal also should be dismissed because this Court lacks jurisdiction over it. An order
of a three-judge court denying injunctive relief is
immediately appealable to this Court "only where
such order rests upon resolution of the merits of the
constitutional claim presented below." MTM, Inc. v.
Baxley, 420 U.S. 799, 804 (1975) (emphasis added).
Here, the district court’s ruling does not rest on the
final resolution of any constitutional claim. Rather,
based in part on plaintiffs’ failure to challenge Section 254, the district court simply concluded that
"federal interference in the Mississippi legislative
redistricting process is premature at this time." J.S.
App. 21 (emphasis added). Such equitable determinations are not directly appealable to this Court.
I.C. Finally, the appeal should be dismissed because it is moot in part and premature in part. The
primaries that plaintiffs sought to enjoin will be
completed before this Court considers plaintiffs’ Jurisdictional Statement, and the general elections almost certainly will be held before this Court could
reach the merits of the case. Under no circumstances will the challenged apportionment plans be
used in any future elections. Accordingly, plaintiffs’
challenge to the district court’s denial of preliminary
injunctive relief is or will soon be moot. In addition,
plaintiffs’ demand for special elections is premature
because the district court expressly reserved judgment on the issue. Because plaintiffs’ appeal
presents no live controversy properly before this
Court on appeal, the appeal should be dismissed.
II. If the appeal is not dismissed, the district
court’s decision denying preliminary injunctive relief
should be affirmed because, for either of two, independent reasons, it was not an abuse of discretion.
First, the district court properly declined to interfere
in the Mississippi legislative redistricting process because Section 254 provides for reapportionment
"every 10 years"--a practice that, per Reynolds v.
Sims, "clearly meet[s] the minimal requirements" of
the one-person, one-vote principle. 377 U.S. 533,
583-84 (1964). Second, plaintiffs offered no viable
alternative apportionment plans only plans with
unconstitutional population deviations that the Leg-
islature itself considered but refused to enact. The
district court’s refusal to enjoin use of existing apportionment plans was hardly an abuse of discretion
given plaintiffs’ failure to offer valid alternatives.
ARGUMENT
I.
THE APPEAL SHOULD BE DISMISSED.
Plaintiffs Waived Any Challenge To The
Constitutionality Of Section 254 Of The
Mississippi Constitution.
As the district court explained, "[t]he plain language of [Section 254 of the] Mississippi Constitution
... demonstrates that under State law the Legislature is not required to reapportion itself until its
regular session in 2012." J.S. App. 19. Therefore, to
the extent that plaintiffs wished to pursue a claim
that the Federal Constitution required reapportionment in 2011, it was necessary for them to allege
that Section 254 violates the Federal Constitution.
They did not do so. As the district court observed,
"none of the parties ... asked [the court] to declare
that Section 254 of the Mississippi Constitution violates the United States Constitution." J.S. App. 21;
see also J.S. App. 20 n.4 ("None of the parties assert
that the policy embodied in Section 254 is not rational."). In fact, plaintiffs not only failed to challenge
Section 254--they asked the district court to enforce
Section 254. See Compl. ¶¶ 73-75, 77a (requesting
"[a] declaratory judgment that defendants have violated rights secured to plaintiffs by ... § 254"), 77b
(asking the court to "enjoin the defendants.from violating rights secured to plaintiffs by ... § 254").
10
Having failed to allege in the district court that
Section 254--which, by its clear terms, permits
reapportionment next year is unconstitutional,
plaintiffs should not be permitted to do so for the
first time in this Court. Only in "exceptional circumstances" will this Court "review[] a claim that
was waived below." United States v. AlvarezSanchez, 511 U.S. 350, 360 n.5 (1994). Because no
such "exceptional circumstances" are present here,
the Court should "adhere to [its] general practice and
decline to address" plaintiffs’ constitutional challenge
to Section 254 of the Mississippi Constitution. Ibid.
B. The Court Lacks Jurisdiction.
Although the denial of a preliminary injunction
"in any civil action ... required by any Act of Congress to be heard and determined by a district court
of three judges" is directly appealable to this Court,
28 U.S.C. § 1253, the Court has held "that the ’the
opaque terms and prolix syntax’" of this statutory
grant of appellate jurisdiction are "not capable of literal reading" and must be given "a narrow construction." MTM, Inc. v. Baxley, 420 U.S. 799, 803-04
(1975) (quoting Gonzalez v. Employees Credit Union,
419 U.S. 90, 96-97 (1974)). Therefore, "a direct appeal will lie to this Court under § 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such
order rests upon resolution of the merits of the constitutional claim presented below." MTM, 419 U.S. at
804 (emphasis added). This interpretation of the statute "lend[s] symmetry to the Court’s jurisdiction
since, in reviewing orders granting injunctions, the
Court is necessarily dealing with a resolution of the
11
merits"; it also permits "more detailed consideration"
of non-constitutional issues by the courts of appeals,
since this Court "disposes of most mandatory appeal
in summary fashion." Id. at 803 (quoting Gonzalez,
419 U.S. at 99). Moreover, "the congressional policy
behind the three-judge court and direct-review apparatus--the saving of state and federal statutes from
improvident doom at the hands of a single judge--[is]
not ... impaired by a narrow construction of § 1253."
MTM, 419 U.S. at 804. "A broad construction of the
statute, on the other hand, would be at odds with the
historic congressional policy of minimizing the mandatory docket of this Court in the interest of sound
judicial administration." Ibid.
Here, the district court’s ruling did not rest upon
resolution of the merits of any constitutional claim.
Rather, because "all parties to this litigation agree
that, based on the 2010 census data, the current apportionment scheme does not satisfy the one-person,
one-vote principle," the only question before the district court was "whether the federal courts should
impose a remedy at this time." J.S. App. 19 (emphasis added). The district court answered that question
in the negative, holding that, "[i]n light of [two] considerations" noted in its opinion, "federal interference in the Mississippi legislative redistricting
process is premature at this time." J.S. App. 21 (emphasis added). One of these considerations was
plaintiffs’ above-discussed failure to challenge the
constitutionality of Section 254. See ibid. The other
was that the approach to reapportionment set forth
in Section 254 appeared to the district court to be
consistent with this Court’s precedent. See ibid. "In
light of these considerations," ibid., the district court
12
concluded that the proper course would be to permit
the Section 254 reapportionment process to run its
course and then determine whether special elections
would be appropriate, see J.S. App. 24-27. Thus, the
district court’s ruling turned not on a determination
of constitutional issues but rather on an exercise of
its "equitable jurisdiction" (MTM, 420 U.S. at 803)4
in declining to enter an injunction "at this time" (J.S.
App. 19, 21). Because such equitable determinations
are not directly appealable to this Court, see MTM,
420 U.S. at 803-04, the appeal should be dismissed.
C. Plaintiffs’ Appeal Is In Part Moot And In
Part Premature.
It is well-settled that "[a]n appeal of the denial of
an injunction to prohibit an act is rendered moot by
the happening of the act.’’5 Therefore, the holding of
an election moots an appeal from an order denying
injunctive relief related to the election. Watkins v.
Mabus, 502 U.S. 954 (1991); Jones v. Montague, 194
U.S. 147 (1904). Indeed, this Court has addressed
the issue in this very context, holding that where
"[t]he thing sought to be prevented" elections in al4 "[T]he question of equitable jurisdiction ... [is] concerned ...
with whether consistently with the principles governing equitable relief the court may.exercise its remedial powers." Schlesinger v. Councilman, 420 U.S. 738, 754 (1975).
5 I~y. Labor Executives Ass’n v. Chesapeake W. Ry., 915 F.2d
116, 118 (4th Cir. 1990); accord, e.g., Worldwide Street Preachers" Fellowship v. Peterson, 388 F.3d 555, 558 (7th Cir. 2004);
Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1998);
Animal Legal Def. Fund v. Shalala, 53 F.3d 363, 365-66 (D.C.
Cir. 1995); McLane v. Mercedes-Benz of N. Am., Inc., 3 F.3d 522,
524 (lst Cir. 1993); IBTCWHA, Local Union No. 2702 v. W. Air
Lines, Inc., 854 F.2d 1178 (9th Cir. 1988).
13
legedly malapportioned districts "has been done,
and cannot be undone by any judicial action," "there
is nothing but a moot case." Richardson v. McChesney, 218 U.S. 487, 491 (1910).
Here, plaintiffs sought "an injunction requiring
compliance with the one-person one-vote mandate
before the August, 2011 primaries and the November, 2011 general election." J.S. 15. However, the
primaries are nearly completed--necessary runoffs
will be held on August 23--and, although the general
election has not been held as of the filing of this motion, it almost certainly will have been before the
Court could hear and decide the case.6 See, e.g., Ely
~ It is unclear whether plaintiffs still seek an injunction with
respect to the general election now that the primaries have
been held. If they did intend to pursue such relief on appeal,
they should have promptly requested an injunction pending
appeal. See, e.g., Clark v. Roemer, 500 U.S. 646, 651-52 (1991)
(noting that the Court granted in part plaintiffs’ emergency motion to enjoin elections pending appeal, which was filed a week
after the district court’s ruling). At minimum, given the impending elections, they should not have delayed seven weeks
after the district court’s order before filing their Jurisdictional
Statement. Moreover, plaintiffs have not opposed requests of
other appellees for additional time to file their responses to the
Jurisdictional Statement. Accordingly, those responses are not
due until September 19, 2011 almost four weeks after the
completion of the primaries on August 23. This Court has emphasized that "where an impending election is imminent and a
State’s election machinery is already in progress, equitable considerations [may] justify a court in withholding the granting of
immediately effective relief in a legislative apportionment case,
even [ii] the existing apportionment scheme [is] found invalid."
Reynolds v. Sims, 377 U.S. 533, 585 (1964). "In awarding or
withholding immediate relief, a court is entitled to and should
consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act
14
v. Klahr, 403 U.S. 108, 121 (1971) (Douglas, J., concurring) ("If an election case is filed in our summer
recess, we will not consider it until the first week in
October; and our effort to note the appeal, hear the
case, and decide it before November without disrupting the state election machinery is virtually impossible. The time needed is lacking."). Moreover, there
are no circumstances under which the challenged
apportionment plans will ever be used again. Before
the State’s next scheduled elections, the State will
enact new apportionment plans pursuant to Section
254, or, if it fails to do so, the district court will draw
its own plans. See J.S. App. 24-26. Accordingly, because the elections at issue have been held or will be
held soon and the plans at issue will never be used
again, plaintiffs’ appeal of the denial of injunctive
relief is moot or will soon become so.
Plaintiffs also challenge the district court’s purported failure to order special elections in 2012. J.S.
16-18. The problem with this argument, however, is
that the district court made no such ruling. Rather,
the court retained jurisdiction to permit any party to
file a motion requesting special elections after the
Section 254 reapportionment process concludes, and
it expressed no opinion as to whether special elections would be "appropriate." J.S. App. 24-26. Given
that there is "no order before [this Court] either denying or" ordering special elections, it would be
and rely upon general equitable principles." Ibid. Given plaintiffs’ leisurely approach to this appeal and the degree to which
"State’s election machinery is already in progress," injunctive
relief related to the November 2011 general elections would not
be appropriate even in the unlikely event that this Court could
decide the merits of the issue before it becomes moot.
15
"premature" for the Court to address that issue "in
the first instance." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 195
(2000) (refusing to address an issue on which the
lower court expressly reserved judgment). Similarly,
in Clark v. Roemer, 500 U.S. 646 (1991), even though
this Court concluded that the district court should
have enjoined the elections at issue, the Court declined to address the distinct question whether the
elections should be set aside, reasoning that the district court should address the issue "in the first instance." Id. at 659-60. The Court reasoned that "[a]
local district court is in a better position than this
Court to fashion relief, because the district court is
more familiar with the nuances of the local situation
and has the opportunity to hear evidence." Ibid. (internal quotation marks, alterations omitted). Here
too the question whether to employ the drastic remedy of setting aside elections should be addressed in
the first instance by the district court. Put simply,
"this is a court of final review and not first view."
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103,
110 (2001) (quoting Matsushita Elec. Indus. Co. v.
Epstein, 516 U.S. 367, 399 (1996) (Ginsburg, J., concurring in part and dissenting in part)).
Indeed, by complaining that "[lit is likely that
legislators elected in the malapportioned districts
will serve four year terms before the next election,"
J.S. 18 (emphasis added), plaintiffs implicitly concede that they are asking this Court to address an
issue that the district court has not. Plaintiffs ask
this Court to determine whether it is constitutionally
permissible for legislators to serve four-year terms
under Mississippi’s current apportionment plans but
16
must concede that the district court expressly reserved judgment on that very question. They ask the
Court to order special elections but must concede
that the district court has yet to rule on that very request. They assert that this Court should decide the
issue in the first instance because (1) they will lack
standing to request special elections at the appropriate time, (2) "the requirement to [make such a request] unnecessarily burdens" them, and (3) it may
be impractical to coordinate special elections with
scheduled 2012 primaries for federal officers. J.S.
16-17. None of these arguments presents .a valid
reason for this Court to abandon its role as "a court
of final review and not first view."
First, plaintiffs miss the mark in asserting that
"[i]f the legislature enacts reapportionment plans in
compliance with the one-person one-vote principle,
then no party will have standing to challenge those
plans and request relief." J.S. 16 n.15 (emphasis
added). Whether plaintiffs would have standing to
challenge the new plans is irrelevant. They plainly
have standing to file a motion challenging the continuing effect of Mississippi’s current plans, as the
district court has invited them to do.
Second, plaintiffs cite no authority for their argument that this Court should address issues not
passed upon below because requiring them to file a
motion would impose too much of a "burden" on
them. J.S. 16. Even less persuasive is their claim
that this Court should rule preemptively because
they might "somehow miss the 30-day window" allowed by the district court for filing such a motion.
J.S. 16 n.16. That plaintiffs would rather not file a
17
motion--or, improbably, that they might forget to do
so--is no reason for this Court to address issues on
which the district court reserved judgment.
Third, plaintiffs fail to explain why this Court
should reach an issue that the district court did not
simply because special election primaries--if they
are determined to be necessary--might be held on
dates other than primaries for federal elections. J.S.
17. Even assuming arguendo that special elections
are necessary, plaintiffs have no right to insist that
they be held on a particular day. If necessary, the
district court could scheduled primaries for an appropriate date, and the general elections could be
held in conjunction with the State’s regularly scheduled elections for federal officers in November 2012.
Indeed, that is precisely what occurred twenty years
ago. See Watkins v. Fordice, 791 F. Supp. 646, 64849 (S.D. Miss. 1992).
In summary, plaintiffs’ appeal is moot to the extent that it challenges the district court’s decision
not to enjoin elections that have now been held or
will soon be held, and it is premature to the extent
that it raises issues that the district court expressly
reserved for a later date. Because no part of plaintiffs’ appeal raises a live controversy properly before
this Court, the appeal should be dismissed.
II. IN THE ALTERNATIVE, THE DISTRICT
COURT’S RULING WAS NOT AN ABUSE OF
DISCRETION AND SHOULD BE AFFIRMED.
If this appeal is not dismissed, then the district
court’s challenged denial of a preliminary injunction,
18
see J.S. i, 1, should be affirmed because it was correct
and certainly was not an abuse of discretion.
A. The District Court’s Order Denying A
Preliminary Injunction May Be Reversed
Only For An Abuse Of Discretion.
"A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in
the public interest." Winter v. Natural Res. Def.
Council, 555 U.S. 7, 20 (2008). "It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis by
the Court) (quoting 11A C. WRIGHT, A. MILLER, ~ M.
KANE, FEDERAL PRACTICE AND PROCEDURE § 2948, pp.
129-130 (2d ed. 1995)).
"This Court, like other appellate courts, has always applied the abuse of discretion standard on review of a preliminary injunction." Ashcroft v. ACLU,
542 U.S. 656, 664 (2004) (quoting Walters v. Nat’l
Assn. of Radiation Survivors, 473 U.S. 305, 336
(1985) (O’Connor, J., concurring); accord Brown v.
Chote, 411 U.S. 452, 457 (1973). A statutory "grant
of appellate jurisdiction" does not alter that "established standard~ of appellate review." Ashcroft v.
ACLU, 542 U.S. at 664 (quoting WElters, 542 U.S. at
336 (O’Connor, J., concurring)). Accordingly, the district court’s ruling in this case should be affirmed
19
"[i]f the underlying constitutional question is close."
Ashcroft v. ACLU, 542 U.S. at 664.
B. The Denial Of Preliminary Injunctive
Relief Was Not An Abuse Of Discretion
Because Plaintiffs Failed To Show That
Section 254 Is Inconsistent With The Requirements Of Reynolds v. Sims.
The district court properly denied plaintiffs’ motion for a preliminary injunction because plaintiffs
failed to establish a substantial likelihood of success
on the merits. To the contrary, as the district court
explained, on-point language from this Court’s landmark opinion in Reynolds v. Sims, 377 U.S. 533, 58384 (1964), indicates that Section 254 of the Mississippi Constitution "clearly meet[s] the minimal requirements" of the Equal Protection Clause. Certainly, the court did not abuse its discretion in so
concluding at this preliminary stage of the litigation.
In Reynolds, this Court held that "the Equal Protection Clause requires that a State make an honest
and good faith effort to construct districts, in both
houses of its legislature, as nearly of equal population as is practicable." Id. at 577. The Court emphasized, however, that this "does not mean.that States
cannot adopt some reasonable plan for periodic revision of their apportionment schemes." Id. at 583.
The Court explained that "decennial reapportionment"--i.e., reapportionment "every 10 years"
"would clearly meet the minimal requirements" under the Constitution:
Decennial reapportionment appears to
be a rational approach to readjustment
20
of legislative representation in order to
take into account population shifts and
growth. Reallocation of legislative seats
every 10 years coincides with the prescribed practice in 41 of the States ....
Limitations on the frequency of reapportionment are justified by the need
for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no
more frequently than every 10 years
leads to some imbalance in the population of districts toward the end of the
decennial period .... In substance, we do
not regard the Equal Protection Clause
as requiring daily, monthly, annual or
biennial reapportionment, so long as a
State has a reasonably conceived plan
for periodic readjustment of legislative
representation. While we do not intend
to indicate that decennial reapportionmerit is a constitutional requisite, compliance with such an approach would
clearly meet the minimal requirements
for maintaining a reasonably current
scheme of legislative representation.
Id. at 583-84 (emphasis added).
This is precisely the approach of Section 254 of
the Mississippi Constitution: redistricting is required
every ten years in the second year after the decennial census. MISS CONST. art. 13, § 254. As Reynolds
explains, such an approach is "reasonable," "ration-
21
al," and "clearly meet[s] the minimal requirements"
of the Federal Constitution. 377 U.S. at 583-84.
Plaintiffs’ contrary claim (see J.S. 11) that the
Federal Constitution mandates reapportionment in
the year that new census data is released--and that
reapportionment every 10 years is not sufficient--is
not supported by the cases they cite. In Whitcomb v.
Chavis, 404 U.S. 124 (1971), this Court did approve a
district court’s order requiring statewide reapportionment in 1969 even though Indiana had enacted a
reapportionment plan just four years earlier in 1965.
See id. at 162-63. Notably, though, "the [d]istrict
[c]ourt did not order reapportionment as a result of
population shifts since ... 1965 ..., but only because
the disparities among districts which were thought
to be permissible [in 1965] had been shown by intervening decisions of this Court to be excessive." Id. at
163 (emphasis added). Moreover, the 1969 order was
not based on new census data; rather, both the 1965
and 1969 plans were based on 1960 census data,
since the next census was still a year away. See id.
at 136, 139, 141, 162. Thus, Whitcomb required
reapportionment prior to a decennial census. Moreover, it did so not in response to population shifts or
new census data but rather because the population
deviations under old census data were constitutionally excessive in light of subsequent decisions of this
Court. Accordingly, plaintiffs’ suggestion that Whitcomb "indicate[s] that decennial reapportionment
means reapportionment after a decennial census,"
J.S. 11 (emphasis added), is demonstrably incorrect.
Plaintiffs’ reliance on Beens v. Sixty-Seventh
Minnesota Senate, 406 U.S. 187 (1972), is similarly
22
misplaced because Beens did not address the question whether reapportionment was required following a new census. Rather, as the Court explained:
"The 1966 Minnesota apportionment legislation, the
[district] court found, in the light of the 1970 census
figures no longer provided a constitutionally acceptable apportionment of either house. No one challenges that basic finding here, and we have no reason
to rule otherwise." Id. at 195 (emphasis added).
Thus, the district court’s ruling ordering reapportionment was not challenged on appeal; the only issue before this Court was whether the district court
erred by imposing a remedy that included significant
reductions in the size of both houses of the state legislature. Id. at 188, 195. Beens is also distinguishable in that the legislature was required by the state
constitution to redistrict in the first year following
the census but failed to do so. See id. at 195. Therefore, unlike this case, Beens did not present the question whether a state’s adherence to a policy of reapportionment every ten years satisfies the Federal
Constitution. Rather, at most, it indicates that a
federal court may intervene after a state fails to
comply with its own redistricting timetable.
Finally, plaintiffs rely on the following language
from a footnote from Georgia v. Ashcroft:
When the decennial census numbers are
released, States must redistrict to account for any changes or shifts in population. But before the new census,
States operate under the legal fiction
that even 10 years later, the plans are
constitutionally apportioned. After the
23
new enumeration, no districting plan is
likely to be legally enforceable if challenged, given the shifts and changes in
a population over 10 years. And if the
State has not redistricted in response to
the new census figures, a federal court
will ensure that the districts comply
with the one-person, one-vote mandate
before the next election.
539 U.S. 461, 488 n.2 (2003) (emphasis added).
Given that Georgia v. Ashcroft was a Voting
Rights Act case, its discussion of the one-person, onevote mandate was dicta. This dicta should not be
read to overrule, sub silentio, Reynolds’s clear statement that reapportionment "every 10 years" as required by the Mississippi Constitution--"clearly
meet[s] the minimal requirements for maintaining a
reasonably current scheme of legislative representation." Reynolds, 377 U.S. at 583-84. "This Court
does not normally overturn, or so dramatically limit,
earlier authority sub silentio." Shalala v. Ill. Council
on Long Term Care, Inc., 529 U.S. 1, 18 (2000). Here
in particular, "[t]he notion that [this Court] created a
new rule sub silentio and in a case where certiorari
had been granted on an entirely different question,
and the parties had neither briefed nor argued the ...
issue is implausible." Mickens v. Taylor, 535 U.S.
162, 172 (2002).
Moreover, there is no unavoidable conflict between the footnoted dicta in Georgia v. Ashcroft and
Reynolds’s holding. Rather, a state fails to "redistrict~ in response to new census figures" (Georgia v.
24
Ashcroft, 539 U.S. at 488 n.2) only if it fails to comply
with a "reasonable plan for periodic revision of their
apportionment schemes," i.e., one that provides for
reapportionment "every 10 years" (Reynolds, 377
U.S. at 583). Because Mississippi has such a plan,
and because the State has until next year to comply
with that plan, the district court properly declined to
interfere in this year’s elections.
Notably, the district court’s interpretation of
Reynolds is consistent with the rulings of other lower
courts on the issue. In Political Action Conference of
Illinois v. Daley, 976 F.3d 335 (7th Cir. 1992), the
Seventh Circuit addressed the constitutionality of an
Illinois statute that required redistricting of Chicago’s wards by December of the year following the federal census. Id. at 337. Similar to Mississippi’s
schedule for electing legislators, Chicago elected its
alderman for four-year terms in 1987, 1991, 1995,
etc. It was therefore inevitable that every twenty
years alderman would be elected for new four-year
terms shortly after the release of new census data
that would likely show their wards to be malapportioned. Id. at 337-39. The plaintiffs argued that
Chicago’s failure to reapportion itself based on the
new census data in time for the 1991 elections violated the one-person, one-vote mandate, but the Seventh Circuit disagreed, relying on the abovediscussed passage from Reynolds:
[Reynolds] demonstrate[s] that the Illinois statutory scheme for reapportionment passes constitutional muster. Illinois requires decennial redistricting
that tracks the figures from the most
25
recent census. That Chicago elects its
aldermen to serve four-year terms causing a temporary delay in the implementation of the new census data every
twenty years does not transform Illinois’
scheme into an unconstitutional procedure. As ... Reynolds makes clear, decennial reapportionment satisfies the
Constitution, even though there undoubtedly will be "some imbalance" in
the population of each district towards
the end of the decennial period.
Id. at 339-40.
Similarly, relying on the same language from
Reynolds, the Sixth Circuit upheld Nashville’s municipal redistricting plan even though every twenty
years it, like Chicago’s plan, resulted in the election
of council members to new four-year terms shortly
after the release of new census data that would show
their districts to be malapportioned. French v. Boner, 786 F. Supp. 1328 (M.D. Tenn.), aff’d, 963 F.2d
890 (6th Cir.), cert. denied sub nom. French v. Metro.
Gov’t of Nashville and Davidson County, Tenn., 506
U.S. 954 (1992). As the district court in that case
explained, because Nashville had "a plan for decennial reapportionment," and because there was "no
dispute that [it] ... follow[ed that] plan," "under Reyholds, there [was] no constitutional violation." 786
F. Supp. at 1330-31. Nashville’s compliance with a
’"reasonably conceived plan’ of decennial reapportionment [was], of itself, sufficient to guarantee the
constitutionality of [its 1991] elections"--even if recently released census data showed the council dis-
26
tricts to be malapportioned. Id. at 1331 (quoting
Reynolds, 377 U.S. at 583). As that court put it, "[n]o
more is required" by the Federal Constitution. Id.
In summary, the district court’s ruling is consistent with the opinions of the Sixth Circuit and Seventh Circuit and, more important, follows directly
from Reynolds’s clear statement that reapportionment "every 10 years" "clearly meet[s] the minimal
requirements for maintaining a reasonably current
scheme of legislative representation." 377 U.S. at
583-84. The cases cited by plaintiffs are inapposite
and in no way undermine or conflict with Reynolds.
At minimum, because "the underlying constitutional
question is close," the district court’s determination
that plaintiffs are unlikely to succeed on the merits
cannot be an abuse of discretion. Ashcroft v. ACLU,
542 U.S. at 664. Therefore, if the appeal is not dismissed, the district court’s ruling should be affirmed
summarily.
Even Aside From Plaintiffs’ Failure To
Establish A Likelihood of Success On
The Merits, The Denial Of Preliminary
Injunctive Relief Was Not An Abuse Of
Discretion Because Plaintiffs Failed To
Offer A Superior--Or Even Valid-Alternative Apportionment Plan.
For the reasons discussed above, the district
court’s determination that Section 254 complies with
Reynolds was not an abuse of discretion. But in any
event, the court’s decision not to enjoin the use of
Mississippi’s existing apportionment plans also was
not an abuse of discretion because plaintiffs offered
27
no valid alternative plans for use in the 2011 elections. Plaintiffs urged the court to use plans that the
Legislature considered during its 2011 session but
never passed by joint resolution, as required by state
law. The Legislature’s judgment not to enact those
plans is a sufficient reason, in and of itself, for a federal court not to impose them on the State. Moreover, because the population deviations in the unenacted plans are constitutionally unacceptable, they
could not serve as a valid substitute for the State’s
current, validly enacted plans. In the absence of valid alternative plans, the district court’s decision not
to prohibit Mississippi from using its current plans
could not amount to an abuse of discretion.
This Court has "repeatedly emphasized that legislative reapportionment is primarily a matter for
legislative consideration and determination." Connor v. Finch, 431 U.S. 407, 414 (1977) (quotation
marks omitted). "[A] state legislature is the institution that is by far the best situated to identify and ...
reconcile traditional state policies," whereas "[t]he
federal courts ... possess no distinctive mandate to
compromise sometimes conflicting state apportionment policies in the people’s name." Id. at 414-15.
Therefore, "a district court should not pre-empt the
legislative task nor intrude upon state policy any
more than necessary." White v. Weiser, 412 U.S. 783,
795 (1973) (quotation marks omitted).
In this case, the Legislature’s unwillingness to
enact the reapportionment plans supported by plaintiffs "evidences a legislative policy that the [plans
were] not desired by the [L]egislature." Shayer v.
Kirkpatrick, 541 F. Supp. 922, 932 (W.D. Mo. 1982)
28
(three-judge court) (emphasis added). Accordingly, a
federal court should not to "simply embrace as [its]
own the bill that went the furthest." Ibid. "Such action would be a massive intrusion into the legislative
process." Ibid. The federal court would, "in effect, be
amending the rules for enacting legislation" in the
State. Ibid. The district court in this case properly
declined to take such a drastic step.
Moreover, judicial ratification of plans that failed
to obtain necessary legislative support would ensure
that Section 254 of the Mississippi Constitution
would never be applied as Mississippi voters intended. Section 254 very clearly requires that both
houses of the Legislature must approve any reapportionment plan. "To take [plaintiffs’] position to its
logical conclusion," however, one house "could simply
pass any bill it wanted," refuse to confer with the
other house, and then "file suit on the issue and have
[a federal court] defer to its proposal." Carstens v.
Lamm, 543 F. Supp. 68, 79 (D. Colo. 1982) (threejudge court). Indeed, that is essentially what was
attempted here, and the district court properly declined to "override" the Legislature and the state policy reflected in Section 254 of the Mississippi Constitution. Ibid. The court’s decision to "respect[] ... the
unchallenged laws of Mississippi" and the "Legislature of the State of Mississippi" by permitting elections under the State’s current, validly enacted plans
(J.S. App. 26) was hardly an abuse of discretion.
The un-enacted plans were not a valid alternative option for the district court not only because the
Legislature refused to enact them but also because
they do not meet the heightened standard of popula-
29
tion equality applicable to court-ordered plans. This
Court has held repeatedly that "a court-ordered
reapportionment plan of a state legislature ... must
ordinarily achieve the goal of population equality
with little more than de minimis variation." Connor
v. Finch, 431 U.S. 407, 414 (1977) (quoting Chapman
v. Meier, 420 U.S. 1, 26-27 (1975)). Thus, the rule of
thumb that population deviations of less than 10%
are "prima facie" constitutional in legislative plans
(see Brown v. Thomson, 462 U.S. 835, 842 (1983))
does not apply to court-ordered plans. Indeed, this
Court has refused to assume that a deviation of even
5.95% would be permissible. Connor, 431 U.S. at 418
n.17 (citing Chapman, 420 U.S. at 25-26 & n.17); see
also Wyche v. Madison Parish Police Jury, 635 F.2d
1151, 1159 (5th Cir. 1981) (holding that a deviation
of 8.2% was "far more than de minimis"). The deviations in the un-enacted plans 9.96% for the House
and 9.6% for the Senate clearly exceed the "de minimis" standard applicable to court-ordered plans.
Indeed, no party has argued that the un-enacted
plans could be implemented as "court-ordered plans."
Rather, some parties argued, counterintuitively, that
the plans should be judged under the more flexible
standard applicable to "legislative plans" even though
the Legislature refused to enact them. This argument
is incorrect. "[T]he essential characteristic of a legislative plan is the exercise of legislative judgment."
McDaniel v. Sanchez, 452 U.S. 130, 152 (1981). AIthough "[t]he fact that particular requirements of
state law may not be satisfied before a plan is proposed to a federal court does not alter this essential
characteristic," ibid., this Court has never indicated
that a plan may be treated as "legislative" despite
30
the legislature’s refusal to enact it. Rather, each
time the issue has arisen, there has been an unmistakable "exercise of legislative judgment" by the relevant body in approving the plan.7
Here, in stark contrast, the only discernible exercise of legislative judgment is the Legislature’s refusal to enact the plans that plaintiffs and, tellingly, several other parties who unsuccessfully supported the plans in the legislative process, see J.S.
App. 10-12, 16-18--urged the court to adopt. Accordingly, there were no "legislative plans" before the
district court; there were only proposed court-ordered
plans that, for the reasons discussed above, were not
viable or constitutional alternatives to Mississippi’s
current apportionment plans.S The district court’s
7 See id. at 135, 146 (holding that a plan "officially adopted" by
a county commission in response to a court order was a legislative plan); Wise v. Lipscomb, 437 U.S. 535, 542-49 (1978) (opinions of White and Powell, JJ.) (same as to a plan enacted by a
city council in response to a court order); Burns v. Richardson,
384 U.S. 73 (1966) (same as to a plan adopted by a state legislature in response to a court order, although state law required a
constitutional amendment to accomplish reapportionment).
s The Eleventh Circuit addressed an analogous issue, holding
that a county reapportionment plan was not a "legislative" plan
where state law required approval of both the county commission and the legislature, and the commission approved the plan
but the legislature did not. Clark v. Putnam County, 293 F.3d
1261, 1264-65 & n.13 (llth Cir. 2002). As that court explained:
While it is true that the county drew the plan which the
district court ultimately ordered, it is also true that the
Georgia legislature did not approve it, which left the
plan null and void. Without court intervention, there
would be no ... plan .... We shall treat this plan as a
court-ordered one, since it was.
Id. at 1265 n.13.
31
refusal to enjoin impending elections and impose
such plans was not an abuse of discretion.
Finally, even if the un-enacted House plan could
be treated as a "legislative plan," it still would not
have been a viable alternative to the current House
apportionment plan. The population deviation in the
House plan is 9.96%. The 10% standard is not a
"safe harbor," and near-10% deviations that appear
based on partisan interests rather than legitimate.
districting criteria do not satisfy one person, one
vote. See Larios v. Cox, 300 F. Supp. 2d 1320, 133953 (N.D. Ga.), summarily aff’d, 542 U.S. 947 (2004).
Here, it was undisputed that the House plan (1) systematically under-populated districts represented by
Democrats and over-populated districts represented
by Republicans and (2) gerrymandered announced
Republican candidates out of districts represented by
Democrats. See supra note 3. Such considerations
cannot justify the 9.96% population deviation in the
House plan. Accordingly, even if it could be viewed
as a "legislative plan" which, for the reasons discussed above, it cannot--it would not have been an
acceptable alternative to the current apportionment
plan. Thus, for yet another reason, the district court
did not abuse its discretion by declining to enjoin
elections to impose the un-enacted and unconstitutional plan.
In summary, for the reasons discussed above, the
district court correctly determined that Section 254
of the Mississippi Constitution is consistent with the
requirements of Reynolds v. Sims. See Section II.B,
supra. At minimum, because the "underlying consti-
32
tutional question is close," the district court’s refusal
to enjoin impending elections was not an abuse of
discretion. Ashcroft v. ACLU, 542 U.S. at 664. AIternatively, the district court’s decision not to interfere with elections was not an abuse of discretion because plaintiffs failed to offer any valid alternative
apportionment plans. Under these circumstances,
the court’s decision to respect state law and the Mississippi Legislature (see J.S. App. 26) certainly was
not an abuse of discretion. Accordingly, if this appeal is not dismissed (as it should be, see Part I, supra), the judgment of the three-judge court should be
affirmed summarily.
CONCLUSION
The appeal should be dismissed. Alternatively,
the judgment of the three-judge court should be affirmed summarily.
Respectfully submitted,
Stephen L. Thomas
Counsel of Record
Jack L. Wilson
Michael B. Wallace
C. Stevens Seale
James D. Findley
BRADLEY ARANT BOULT
WISE CARTER CHILD ~
CUMMINGS LLP
CARAWAY
Post Office Box 1789
Post Office Box 651
Jackson, MS 39215-1789 Jackson MS 39201-0651
(601) 948-8000
(601) 968-5534
sthomas@babc.com
Counsel for the Mississippi
Republican Party
Counsel for Governor
Haley Barbour
Executive Committee