No. 11-82
upreme q ourt of nitel 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
SECRETARY OF STATE DELBERT HOSEMANN
SECRETARY OF STATE
DELBERT HOSEMANN
MISSISSIPPI SECRETARY
OF STATE
Post Office Box 136
Jackson, MS 39205-0136
(601) 359-1350
JOSEPH A. SCLAFANI
Counsel of Record
WILLIAM E. "TREY" JONES
MATTHEW W. ALLEN
BRUNINI, GRANTHAM,
GROWER & HEWES, PLLC
Post Office Drawer 119
Jackson, MS 39205-0119
(601) 948-3101
j sclafani@brunini.com
Counsel for Secretary of
State Delbert Hosemann
ROBERT A. LONG
MARK W. MOSIER
COVINGTON ~ BURLING, LLP
1201 Pennsylvania Avenue, NW
Washington, D.C. 20004-2401
(202) 662-5612
ROBERT L, GIBBS
GIBBS WHITWELL, PLLC
1400 Meadowbrook Road
Jackson, MS 39211
(601) 487-2640
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT I402~ 342-2831
~lank Page
QUESTIONS PRESENTED
1. Whether the appeal should be dismissed
because Appellants’ request for injunctive relief is
substantially moot with respect to the 2011 elections
in Mississippi and premature with respect to whether
a special election should be ordered in 2012 (a question the district court has expressly reserved and
retained jurisdiction to decide).
2. Whether the district court’s decision~ declining to grant injunctive relief should be summarily
affirmed because the district court did not abuse its
discretion in concluding that Appellants have not
shown that they satisfy the requirements for a preliminary injunction.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................i
TABLE OF CONTENTS ......................................
ii
TABLE OF AUTHORITIES .................................
iv
INTRODUCTION ................................................1
STATEMENT OF THE CASE ..............................2
SUMMARY OF THE ARGUMENT ......................8
ARGUMENT ........................................................
10
I. THE APPEAL SHOULD BE DISMISSED
BECAUSE IT IS MOOT IN PART AND
PREMATURE IN PART ............................
10
A. The Appeal Is Substantially Moot .......10
B. The Appeal Is Also Premature In
Part ......................................................14
II. IN THE ALTERNATIVE, THE DISTRICT
COURT’S RULING SHOULD BE SUMMARILY AFFIRMED .................................
16
A. The Denial Of A Motion For A Preliminary Injunction May Be Reversed
Only Upon A Showing Of An Abuse Of
Discretion ............................................16
B. Appellants Have Failed To Meet
Their Burden To Establish That They
Are Likely To Prevail On The Merits
Of Their Equal Protection Claim ........ 17
ooo
111
TABLE OF CONTENTS - Continued
Page
C. Appellants Have Failed To Meet
Their Burden With Respect To The
Remaining Preliminary Injunction
Factors .................................................23
CONCLUSION .....................................................
26
iv
TABLE OF AUTHORITIES
Page
CASES
Ashland Oil, Inc. v. Caryl, 497 U.S. 916 (1990) ........22
Brockington v. Rhodes, 396 U.S. 41 (1969) ................10
Bryant v. Lawrence Co., 814 F. Supp. 1364 (S.D.
1993) ........................................................................21
French v. Bonner, 963 F.2d 890 (6th Cir.), cert.
denied, 506 U.S. 954 (1992) ........................20, 21, 24
Georgia v. Ashcroft, 539 U.S. 461 (2003) ...................22
Hall v. Beals, 396 U.S. 45 (1969) ...............................10
LULAC v. Perry, 548 U.S. 399 (2006) ........................17
McCreary County, Ky. v. ACLU of Ky., 545 U.S.
844 (2005) ................................................................16
NCAA v. Smith, 525 U.S. 459 (1999) .........................14
Political Action Conference of Illinois v. Daley,
976 F.3d 335 (7th Cir. 1992) .............................20, 21
Reynolds v. Sims, 377 U.S. 533 (1964) ..............passim
Sixty-Seventh Minnesota State Senate v. Beens,
406 U.S. 187 (1972) ...........................................21, 22
Upham v. Seamon, 456 U.S. 37 (1982) .............. 6, 7, 12
Watkins v. Mabus, 771 F. Supp. 789 (S.D. Miss.),
aff’d in part and vacated in part as moot,
502 U.S. 954 (1991) ..................................... 12, 13, 25
Whitcomb v. Chavis, 403 U.S. 124 (1971) ............ 21, 22
v
TABLE OF AUTHORITIES - Continued
Page
White v. Weiser, 412 U.S. 783 (1973) ..........................17
Winter v. NRDC, 555 U.S. 7 (2008) ........................2, 16
CONSTITUTIONAL PROVISIONS AND STATUTES
K.S.A. Const. Art. 10, § 1 ............................................18
ME Const. Art. 4, Pt. 1, § 2 ........................................19
ME Const. Art. 4, Pt. 2, § 2 ........................................19
MS Const. Art. 13, § 254 .....................................passim
MT Const. Art. 5, § 14 ................................................19
28 U.S.C. § 2884 ...........................................................5
RULES
Supreme Court Rule 18.6 .............................................1
Blank Page
INTRODUCTION
Pursuant to Supreme Court Rule 18.6, Appellee
Secretary of State of the State of Mississippi, Delbert
Hosemann, moves to dismiss this appeal or, alternatively, to summarily affirm the decision of the
three-judge district court. Appellants’ request for a
preliminary injunction is substantially moot. Three of
the four key election events - candidate qualification,
~primary elections, and run-off elections - have already
occurred, and the final event - the November 8, 2011
general election - is imminent. It is too late to re-start
the 2011 election process using judicially-imposed districts, and a decision to do so would be highly disruptive to governing the State and impractical by its
timing.
Moreover, Appellants’ request that this Court
decide whether a special election will be constitutionally required in 2012 is premature. The district court
has expressly reserved that issue and retained jurisdiction to decide it as soon as the 2012 redistricting
process is completed.
If the appeal is not dismissed, the district court’s
decision should be summarily affirmed because the
district court did not abuse its discretion in declining
Appellants’ request for injunctive relief. Appellants
failed to meet their burden with respect to any of the
preliminary injunction factors: (1) that they are likely
to succeed on the merits; (2) that they are likely to
suffer irreparable harm in the absence of preliminary
injunctive relief; (3) that the balance of equities tips
2
in Appellants’ favor; and (4) that an injunction at this
stage of the proceedings would further the public
interest. See Winter v. NRDC, 555 U.S. 7, 20 (2008).
First, Appellants have not shown they are likely
to succeed on the merits. As the district court concluded, Article 13, Section 254 of the Mississippi
Constitution is consistent with Reynolds v. Sims, 377
U.S. 533 (1964), and therefore Mississippi’s constitutional scheme for reapportionment does not violate
the Equal Protection Clause. Second, Appellants have
not shown they will suffer irreparable harm because
allowing the 2002 apportionment plan to remain in
effect until 2012 will not result in Appellants suffering any constitutional injury. Third, Appellants have
not shown the balance of equities tips in their favor
because enjoining an election at this late date would
cause severe harm to candidates, voters, and Mississippi’s election process, and that harm would be
greatly exacerbated by Appellants’ own litigation
strategy. Finally, and for similar reasons, Appellants
have not demonstrated an injunction at this stage of
the proceedings would serve the public interest.
STATEMENT OF THE CASE
Mississippi has adopted a comprehensive plan for
legislative reapportionment. Article 13, Section 254 of
the Mississippi Constitution provides, in relevant
part:
3
The legislature shall at its regular session in
the second year following the 1980 decennial
census and every ten (10) years thereafter,
and may, at any other time, by joint resolution, by majority vote of all members of
each house, apportion the state in accordance with the constitution of the state and
of the United States into consecutively numbered senatorial and representative districts
of contiguous territory .... Should the legislature adjourn, without apportioning itself as
required hereby, the governor by proclamation shall reconvene the legislature within
thirty (30) days in special apportionment
session which shall not exceed thirty (30)
consecutive days, during which no other business shall be transacted, and it shall be the
mandatory duty of the legislature to adopt a
joint resolution of apportionment. Should a
special apportionment session not adopt a
joint resolution of apportionment as required
hereby, a five-member commission consisting
of the chief justice of the supreme court as
chairman, the attorney general, the secretary
of state, the speaker of the house of representatives and the president pro tempore of
the senate shall immediately convene and
within one hundred eighty (180) days of the
adjournment of such special apportionment
session apportion the legislature, which apportionment shall be final upon filing with
the office of the secretary of state. Each apportionment shall be effective for the next
regularly scheduled elections of members of
the legislature.
4
MS Const. Art. 13, § 254 ("Section 254"). Section
254, by its plain terms, provides that the Mississippi
Legislature "shall" complete the redistricting process
by the second year after the decennial census is
completed.
Mississippi’s most recent legislative session began
on January 4, 2011. The federal government did not
release data from the 2010 Decennial Census until
February 3, 2011, a month after the Mississippi legislative session began. Although the Mississippi Legislature was already one-third of the way through its
2011 legislative session when the census data became
available, and Section 254 requires any redistricting
plan be adopted by joint resolution approved by a
majority of the members of both chambers, the Mississippi Legislature nevertheless attempted to carry
out the redistricting process in time for the next
statewide general election, scheduled for November 8,
2011.
During the remaining two months of the 2011
legislative session, the Mississippi House of Representatives passed two different redistricting plans for
the House. Neither plan was approved by the Senate.
The Senate passed a plan for the Senate, but the
House declined to approve the Senate plan unless the
Senate approved the House plan. The Senate invited
a conference, but the House declined to confer. The
legislative session expired on April 7, 2011 with no
redistricting plan in place. J.S. App. 12. Pursuant
to Section 254, the Mississippi Legislature has until
the end of the 2012 legislative session (which begins
5
on January 3, 2012) to complete the redistricting
process.
On March 17, 2011, before the legislative session
had even ended, Appellants filed suit in the United
States District Court for the Southern District of Mississippi. Appellants claimed that use of the existing
legislative apportionment scheme, based upon 2000
census data, in the upcoming 2011 elections violated
the one-person, one-vote principle of the Equal Protection Clause. J.S. App. 12 & 14. Appellants asked
the court to enjoin the use of those districts in the
2011 elections. J.S. App. 14.
Pursuant to 28 U.S.C. § 2884, a three-judge district court convened in April 2011. The parties advanced three different positions. Appellants contended
that the district court should impose the redistricting
plans that were separately adopted by the respective
chambers of the Mississippi Legislature. J.S. App. 1415. Attorney General Hood, the Mississippi Democratic Party Executive Committee, the Senate Democratic
Caucus, the House Apportionment and Elections Committee, and individual state senator intervenors supported this position (although the Attorney General
took the position that local government officials could
be elected in 2011 based on a 2002 apportionment
scheme). Governor Barbour and the Mississippi Republican Party argued that the district court should
draft and implement new districts with the help of
a court-appointed expert. The third position was advocated by Secretary Hosemann, who moved to dismiss the suit on the ground that the Mississippi
6
Constitution does not require redistricting until 2012,
and is consistent with federal constitutional requirements as described in Reynolds v. Sims.1 The Secretary also argued that, for similar reasons, the matter
was not ripe. See J.S. App. 15. Three state senators
joined the Secretary as intervenors.
On May 16, 2011, following a hearing, the district
court issued a Memorandum Opinion and Order agreeing with the position of the Secretary. The district
court noted "the Supreme Court has stated, time and
again, that federal courts must defer to state redistricting policies so long as those policies are not
inconsistent with federal constitutional and statutory
law." J.S. App. 5. Examining Section 254, the district
court concluded "Section 254 applied here does not
require reapportionment until next year, 2012. Unless
this provision violates the United States constitutional requirements for reapportionment, we must respect
its terms for reapportionment." J.S. App. 5. Turning
to the constitutional question, the district court, relying primarily on Reynolds and Upham v. Seamon, 456
U.S. 37, 41 (1982), concluded that because ten years
has not expired since the Mississippi Legislature last
redrew its legislative districts, no violation of the
United States Constitution or federal law has occurred. J.S. App. 19-21. As a result, the district court
concluded, "imposing an interim remedy would be
premature and inconsistent with the Supreme Court’s
Mississippi was last reapportioned in 2002.
7
holding in Reynolds (legislative reapportionment every
ten years satisfies the one-person, one-vote principle)
and Upham (federal courts must respect state law
on reapportionment unless such law is unconstitutional)." J.S. App. 7. The district court explained it
would permit the Mississippi Legislature to complete
its process for decennial reapportionment consistent
with Section 254, but the district court would retain
jurisdiction to consider a request for a special election
in 2012 following the completion of the redistricting
process. J.S. App. 7-8.
On June 1, 2011, the deadline for candidates to
qualify for the 2011 elections expired. On August 2,
2011, the Mississippi Republican and Democratic
Parties conducted primary elections, and 704,808
Mississippians went to the polls to cast their ballots.
On August 23, 2011, the parties conducted run-off
elections. The ballot for the November 8 statewide
legislative elections is now set, and the general election campaign is under way. Absentee ballots will be
transmitted (electronically and in paper form) on September 24 to members of the armed forces stationed
overseas that have requested ballots, and servicemen
and women can begin casting their votes on that date.
Finally, other Mississippians who will be unable to go
to the polls on November 8 also may apply for and
receive absentee ballots beginning on September 24,
and such absentee ballots may be cast anytime thereafter. Thus, voting in the general election will begin
on September 24.
8
SUMMARY OF THE ARGUMENT
L The appeal should be dismissed because it is
substantially moot. Three of the four key events in
Mississippi’s 2011 election process have already occurred. Because this Court cannot enjoin events that
have already occurred, any equitable challenge to
these events is moot. The general election campaign
is under way - indeed, absentee voting will begin on
September 24 - and it is too late in the election
process to order that the November 8, 2011 elections
be conducted using different legislative districts.
A decision by this Court on the federal constitutional issue is unlikely to have any practical effects.
If the Court notes probable jurisdiction and schedules
oral argument, a legislative redistricting plan would
likely supersede any judicially-imposed interim redistricting plan adopted as a result of this Court’s
decision. Even if this Court were to consider the constitutional issue on an expedited basis and conclude
that Appellants’ constitutional arguments had merit,
it would likely allow the November 8 elections to
proceed as scheduled.
The appeal should also be dismissed because it is
premature in part. Appellants ask this Court to decide whether the results of the 2011 election should
be set aside and a special election ordered in 2012
following completion of the reapportionment process
by the state legislature. The District Court has expressly retained jurisdiction and reserved decision on
this issue, and therefore it would be premature for
this Court to decide it.
II. If the appeal is not dismissed, the district
court’s decision denying preliminary injunctive relief
should be summarily affirmed. The district court did
not abuse.its discretion because Appellants failed to
show that they satisfy the demanding requirements
for injunctive relief. Indeed, Appellants do not even
discuss the preliminary injunction factors, or attempt
to show that they are satisfied here.
Appellants have not shown that they are likely
to succeed on the merits. Section 254 embodies a rational State policy for decennial reapportionment. As
this Court has recognized, "compliance with such an
approach would clearly meet the minimal requirements for maintaining a reasonably current scheme
of legislative representation." Reynolds v. Sims, 377
U.S. 533, 583-84 (1964). Indeed, Appellants have not
even alleged that Section 254 fails to reflect a rational
policy. Other federal courts have uniformly concluded
that analogous decennial reapportionment plans are
constitutional.
The remaining preliminary injunction factors also
support the district court’s decision denying Appellants’
request for relief. Appellants have failed to show that
preliminary injunctive relief is necessary to prevent
Appellants from suffering irreparable harm, that the
balance of equities tips in Appellants’ favor, or that a
preliminary injunction is in the public interest.
10
ARGUMENT
I.
THE APPEAL SHOULD BE DISMISSED
BECAUSE IT IS MOOT IN PART AND
PREMATURE IN PART.
A. The Appeal Is Substantially Moot.
An injunction proceeding becomes moot if the act
sought to be enjoined has already occurred. See, e.g.,
Brockington V. Rhodes, 396 U.S. 41, 143 (1969); Hall
v. Beals, 396 U.S. 45, 48 (1969). In this case, three of
the four key events in Mississippi’s 2011 election
process have already occurred: (a) the deadline for
candidates to qualify expired on June 1; (b) the primary elections were held on August 2 with 704,808
voters casting ballots; and (c) run-off elections were
held on August 23. The fourth event - the general
election scheduled for November 8 - is imminent. The
general election ballot has been set, and the election
campaign is under way. Absentee ballots will be transmitted (electronically and in paper form) on September 24 to members of the armed forces stationed
overseas that have requested ballots, and servicemen
and women can begin casting their votes on that date.
Finally, other Mississippians who will be unable to go
to the polls on November 8 als0 may apply for and
receive absentee ballots beginning on September 24,
and such absentee ballots may be cast anytime thereafter. Thus, voting in the general election will begin
on September 24.
It is too late to impose a court-ordered redistricting plan prior to the November 8 general election.
11
Even if this Court (or the district court) could adopt
such a plan in the short time remaining before November 8, re-drawing the legislative districts would
invalidate the primary elections that have already occurred on the basis of the 2002 redistricting, and there
is not nearly enough time to re-run the primary elections and conduct a general election campaign before
November 8. Accordingly, this appeal is substantially
moot.~
Moreover, it is doubtful whether a decision by
this Court at this stage of the case would have any
practical effects. If the Court were to note probable
jurisdiction and order briefing and oral argument, it
would be unlikely to issue a decision until well into
2012. The Mississippi Legislature’s 2012 session is
scheduled to begin on January 3, 2012 and end by
May 2012. There is no reason to conclude that the
2 To the extent that Appellants requested that the November
8 elections be conducted using the separate redistricting plans
adopted by the Mississippi House and Senate, this case is entirely moot, because it is not possible to re-run the entire election
process, including the primary elections, by November 8. To the
extent that Appellants requested that the November 8 elections
be enjoined until redistricting is completed, there is still a mootness problem because it is not clear that simply enjoining the
2011 elections would benefit Appellants. The Equal Protection
Clause does not require Mississippi’s redistricting process to be
completed in 2011. See Part II, infra. If the 2011 election were
enjoined, presumably the current members of the Mississippi
Legislature - elected based on the 2002 redistricting - would
continue to serve until the redistricting process is completed and
new elections are scheduled in 2012.
12
Mississippi Legislature will not meet its constitutional duty, pursuant to Section 254 of the Mississippi
Constitution, to adopt a reapportionment plan before
the end of the 2012 session. Thus, a decision by
this Court would likely be superseded by a legislative reapportionment plan before any election using a
judicially-created redistricting plan could be held. See
Watkins v. Mabus, 771 F.Supp. 789, 807 (S.D. Miss.
1991), affirmed in part and vacated in part as moot,
502 U.S. 954 (1991) (a judicial remedy is an interim
remedy, effective only until a legislative plan is
adopted and precleared by the Justice Department).
Second, even if the Court were to decide the
merits of Appellants’ constitutional claim on a very
expedited basis, and even if it were to conclude that
Appellants’ claim has merit, it would likely permit
the November 8 election to proceed as scheduled. This
Court has long recognized that, "under certain circumstances, such as where an impending election is
imminent and a State’s election machinery is already
in progress, equitable considerations might justify a
court in withholding the granting of immediately
effective relief in a legislative apportionment case,
even though the existing apportionment scheme was
found invalid." Reynolds, 377 U.S. at 585. See also id.
("With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election
process."); Upham v. Seamon, 456 U.S. at 44 ("[W]e
have authorized District Courts to order or permit
elections to be held pursuant to apportionment plans
that do not in all respects measure up to the legal
13
requirements, even constitutional requirements.")
(citations omitted). In Watkins v. Mabus, this Court
summarily affirmed, in relevant part, a three-judge
court decision that permitted an election to proceed
as scheduled because the court lacked adequate time
to impose a court-ordered redistricting plan. Watkins
v. Mabus, 502 U.S. 954 (1991). Indeed, Appellants
themselves acknowledge that the court is permitted
to utilize the current districts and an interim remedy
so long as new elections are ordered within one year.
J.S. App. 15.
In this case, Mississippi’s "election machinery is
already in progress" and the general election is
"imminent." Consequently, even if this Court decided
to consider Appellants’ constitutional argument on an
expedited basis and concluded it had merit, the Court
would likely allow the November 8 general election to
proceed as scheduled, subject to a court-ordered special election in 2012. An injunction at this late date
would cause grave disruption to Mississippi’s electoral process. Moreover, the timing of this appeal, and
the resulting mootness issues, stem largely from Appellants’ own litigation choices. Appellants did not file
a Jurisdictional Statement until July 15, 2011, two
months after the district court denied a preliminary
injunction. In addition, Appellants have not sought
an injunction pending appeal, either from the district
court or this Court.
In sum, three of the four key events in Mississippi’s 2011 electoral process have already occurred, it is
too late to impose judicial redistricting in time for the
14
November 8 elections, and it appears unlikely that a
decision by this Court at this stage of the case will
have any practical effect on the 2011 election. Accordingly, the appeal should be dismissed on mootness
grounds insofar as it is directed to the November
2011 elections.
B. The Appeal Is Also Premature In Part.
Appellants also ask this Court to decide whether
the results of the 2011 election should be set aside
and a special election ordered for 2012. See J.S.i.
Appellants’ request for relief is premature. The district court has expressly retained jurisdiction and
reserved decision on the question whether a special
election will be required after legislative redistricting
is completed in 2012. See J.S. App. 24 (’~vVe retain
jurisdiction of this case to order appropriate relief,
including special elections, if appropriate, upon
motion of any party, following completion - or failure
- of the process for redistricting of the Mississippi
Legislature prescribed by Article 13, Section 254 of
the Mississippi Constitution."). The district court
should be allowed to consider this question in the
first instance. See NCAA v. Smith, 525 U.S. 459, 470
(1999) ("[W]e do not decide in the first instance issues
not decided below.") There is no reason for this Court
to depart from this well-recognized principle.
Appellants erroneously assert that no party will
have standing to seek special elections following the
completion of the redistricting process. Specifically,
15
Appellants contend that "[i]f the legislature enacts
reapportionment plans in compliance with the oneperson one-vote principle, then no party will have
standing to challenge those plans and request relief."
J.S. 16 n.15 (emphasis added). Appellants miss the
point. The relevant issue, for purposes of this appeal,
is not whether the 2012 plan, utilizing 2010 census
data, will comply with the one-person, one-vote principle. Instead, the relevant issue is whether allowing
candidates elected in 2011, in districts drawn utilizing
2000 census data, to serve a full four-year term complies with the one-person, one-vote principle. There is
no reason to think that Appellants lack standing to
pursue such a challenge. Indeed, as noted above, the
district court expressly retained jurisdiction, following completion of the redistricting process under
Section 254, "to order appropriate relief, including
special elections, if appropriate .... "J.S. App. 24.
Appellants also argue, without citing any supporting authority, that the district court’s reservation
of jurisdiction over this issue is unacceptable because
it requires Appellants to file a motion with the district court within 30 days after the 2012 reapportionment plan is precleared in order to seek a special
election. J.S. 16 n.16. But relieving Appellants of the
need to file a simple motion does not even remotely
justify this Court’s resolution of an issue on which the
district court has reserved judgment. Accordingly,
Appellants’ request that this Court decide whether
the results of the 2011 election should be set aside
and a special election ordered for 2012 is premature.
16
II.
IN THE ALTERNATIVE, THE DISTRICT
COURT’S RULING SHOULD BE SUMMARILY AFFIRMED.
If the appeal is not dismissed, it should be summarily affirmed, because the district court acted
within its discretion in denying the motion for a
preliminary injunction.
Ao
The Denial Of A Motion For A Preliminary Injunction May Be Reversed Only
Upon A Showing Of An Abuse Of Discretion.
This Court reviews the denial of a preliminary
injunction for abuse of discretion. McCreary County,
Ky. v. ACLU of Ky., 545 U.S. 844, 867 (2005). To
obtain a preliminary injunction, Appellants must
bear the burden of establishing that: (1) they are
likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in their favor;
and (4) an injunction is in the public interest. Winter
v. NRDC, 555 U.S. 7, 20 (2008). Appellants .have
failed to carry this heavy burden. Indeed, Appellants’
Jurisdictional Statement does not even attempt to
make these required showings.
17
B. Appellants Have Failed To Meet Their
Burden To Establish That They Are
Likely To Prevail On The Merits Of
Their Equal Protection Claim.
The Equal Protection Clause requires that state
legislative districts be apportioned "on a population
basis." Reynolds v. Sims, 377 U.S. 533, 568 (1964). To
this end, the Equal Protection Clause permits States
to "adopt some reasonable plan for periodic revision of
their apportionment schemes." Id. at 583. "Limitations on the frequency of reapportionment are justifled by the need for stability and continuity in the
organization of the legislative system." Id. This Court
has long recognized that "[d]ecennial reapportionment appears to be a rational approach to readjustment of legislative representation in order to take
into account population shifts and growth," and that
"compliance with such an approach would clearly meet
the minimal requirements for maintaining a reasonably current scheme of legislative representation." Id.
at 583-84. See also LULAC v. Perry, 548 U.S. 399, 421
(2006) (plurality opinion) ("States operate under the
legal fiction that their plans are constitutionally
apportioned throughout the decade, a presumption
that is necessary to avoid constant redistricting, with
accompanying costs and instability.").
Further, "state legislatures have ’primary jurisdiction’ over legislative reapportionment." White v.
Weiser, 412 U.S. 783, 795 (1973) (citations omitted).
As the district court recognized: "[F]ederal courts
should not order around a state legislature unless the
18
legislature has acted in violation of the United States
Constitution. Indeed, the Supreme Court has stated,
time and again, that federal courts must defer to
state redistricting policies so long as those policies
are not inconsistent with federal constitutional and
statutory law." J.S. App. 5 (citing Upham v. Seamon,
456 U.S. 37, 41 (1982)).
Section 254 of the Mississippi Constitution embodies a rational approach to decennial reapportionment following receipt of census data. Section 254
allows the Mississippi legislature a reasonable period
of time - one full legislative session following receipt
of census data - to complete the complicated and timeconsuming process of redistricting. As discussed above,
the Mississippi Legislature was already a third of the
way through its 2011 legislative session when the
2010 census data was released. It is rational for
Mississippi, like other States, to allow its legislature
until the end of the first full legislative sessi on following receipt of census data to complete the reapportionment process. See, e.g., K.S.A. Const. Art. 10, § 1
(stating that the legislature "at its regular session in
1992, and at its regular session every ten years thereafter.., shall by law reapportion the state senatorial
districts and representative districts on the basis of
the population of the state as established by the most
recent census of population taken and published by
the United States bureau of the census.").
Other states have adopted schemes that provide
for a longer period of time to complete redistricting.
For instance, Maine’s legislature does not consider
19
redistricting until the legislative session occurring in
the year ending in "3" (in this instance 2013) following receipt of updated census data. See ME Const.
Art. 4, Pt. 1, § 2 and Pt. 2, § 2. The Montana Legislature will not have an opportunity to consider the
redistricting plan proposed by its Districting and
Apportionment Commission until the 2013 legislative session, and such plan will not become effective
until the 2014 election cycle. See MT Const. Art. 5,
§14.
Appellants have not even argued that Section
254 fails to reflect a rational policy for redistricting.
See J.S. App. 20 n.4. Nor did Appellants timely argue
to the district court that Section 254 violates the
United States Constitution. See J.S. App. 7 & 21.~
Specifically, the district court noted that "none of the
parties has asked us to declare that Section 254 of the
Mississippi Constitution violates the United States
Constitution." Id. Based on the failure of any party to
challenge the constitutionality or rational basis supporting the redistricting scheme embodied in Section
254, the district court held that "we cannot conclude
that a temporary delay in the implementation of new
census data, as contemplated by the application of
~ The Secretary incorporates by reference the arguments
raised by Governor Haley Barbour and the Mississippi Republican Party Executive Committee in their Motion to Dismiss or
Affirm that this appeal should be dismissed because Appellants
have waived any claim that Section 254 is unconstitutional. See
Motion to Dismiss or Affirm 9-10.
2O
Section 254 to the facts of this case, renders the
State’s reapportionment policy unconstitutional." Id.
Appellants have failed to raise any argument that
calls into question this finding of the district court.
Other courts, applying Reynolds, have uniformly
concluded that holding elections in an odd-numbered
year, prior to the completion of reapportionment, is
consistent with the Equal Protection Clause. In Political Action Conference of Illinois v. Daley, 976 F.3d 335
(7th Cir. 1992), the Seventh Circuit considered how
long after receiving decennial census data a legislative body should have before completing the reapportionment process:
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 plaintiffs’
constitutional claims for a failure to state a
claim upon which relief may be granted.
Id. at 340.
The Sixth Circuit reached a similar conclusion in
French v. Bonner, 963 F.2d 890, 891 (6th Cir.), cert.
21
denied, 506 U.S. 954 (1992). There, the court was presented with the question "whether the City [of Nashville, Tennessee] ha[d] a constitutional duty to rerun
the elections held just after the new decennial census
data became available in 1991 but before the old apportionment plan could be changed and a new one put
into effect prior to the impending election." Id. The
Sixth Circuit held that the City had no such constitutional duty. Id.; see also Bryant v. Lawrence Co., 814
F. Supp. 1346 (S.D. Miss. 1993) (relying on Daley and
French ).
The cases cited by Appellants in their Jurisdictional Statement are inapposite. In Whitcomb v.
Chavis, 403 U.S. 124 (1971), this Court approved the
district court’s order requiring reapportionment in
1969 because the 1965 legislative reapportionment
plan allowed unconstitutional disparities, as shown by
subsequent Supreme Court decisions. Both the 1965
reapportionment plan and the court-ordered 1969 reapportionment were based on the same 1960 census
data, not new census data released after 1960. Thus,
the Court held that the 1965 legislative reapportionment plan was unconstitutional from the outset.
In Sixty-Seventh Minnesota State Senate v. Beens,
406 U.S. 187 (1972) (per curiam), the primary issue
before the Court was whether the district court acted
within its discretion by departing from the Minnesota
statute fixing the number of state senators and representatives. The Court held that the district court had
exceeded its discretion. Moreover, the Minnesota
legislature (unlike the Mississippi legislature in this
22
case) had failed to comply with a state law requiring
that reapportionment be completed during the first
legislative session after a census. In addition, the
Minnesota legislature (unlike the Mississippi legisla4
ture) met only every other year.
Finally, Georgia v. Ashcroft, 539 U.S. 461,488 n.2
(2003), was a Voting Rights Act case, not a constitutional challenge under the Equal Protection Clause.
Appellants rely on a footnote to the Court’s opinion
which includes the statement: "[I]f 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." Appellants’ reliance on this statement is unwarranted. The statement was unnecessary to the Court’s
decision, and was made in response to a different
argument in the dissent (that the census numbers in
effect at the time redistricting was passed should not
be considered). This passing statement in a footnote
should not be read to overrule the Court’s clear statement in Reynolds that reapportionment "every 10
years" - as required by Section 254 of the Mississippi
Constitution - "clearly meet[s] the minimal requirements for maintaining a reasonably current scheme
4 Beens was a summary disposition, and therefore is not entitled to the same precedential effect as cases decided after full
briefing and oral argument. See, e.g., Ashland Oil, Inc. v. Caryl,
497 U.S. 916, 920 n.* (1990). Before the district court, moreover,
Appellants did not cite or rely on Beens or Whitcomb, except in
an "amended motion to amend order" and "amended motion for
relief from judgment."
23
of legislative representation." Reynolds, 377 U.S. at
583-84. Indeed, in the very same footnote the Court
"recognized that states operate under the legal fiction
that plans are constitutionally apportioned for ten
years." J.S. App. 23 (citing Ashcroft, 539 U.S. at 488
n.2). Here, the Mississippi legislature is obligated to
redistrict in response to the 2010 census by 2012, ten
years after its 2002 redistricting.
C. Appellants Have Failed To Meet Their
Burden With Respect To The Remaining Preliminary Injunction Factors.
Appellants have failed to meet their burden to
establish that the other three preliminary injunction
requirements are satisfied in this case.
First, they cannot show irreparable harm. Allowing the 2002 apportionment plan to remain in effect
until 2012 will not result in Appellants suffering any
constitutional injury. As discussed above, under wellestablished precedent, legislative plans are presumed
to be constitutional for ten years. Moreover, the district court expressly reserved jurisdiction to consider
timely motions filed by any party requesting a special
election following the completion of reapportionment
in 2012. Appellants thus are free to present their
arguments for a special election to the district court
at the appropriate time. Moreover, even if Appellants
were likely to suffer some irreparable harm from the
2011 election, a preliminary injunction would be unlikely to prevent it. As explained above, three of the
24
four critical events in the 2011 election process have
already occurred, and it is too late to conduct elections in 2011 using 2010 census data.
Second, Appellants have not shown the balance
of equities tips in their favor. A preliminary injunction would cause very serious and irreparable harm
to the State of Mississippi, its elected officials and
candidates for office, and its citizens. Hundreds of
candidates have qualified for statewide office and
have run in state primary and run-off elections. On
August 2, 704,808 Mississippians voted in party primary elections. The ballot for the November 8 election has been set, and candidates are now in the
midst of general election campaigns. Absentee ballots
will be transmitted to members of the armed forces
stationed overseas on September 24, and servicemen
and women may begin casting their votes on that date.
Enjoining the election at this late date would cause
severe harm to these candidates, to voters, and to
Mississippi’s election process.
Appellants’ decision not to seek an injunction
pending appeal, and to allow months to elapse before
they filed a Jurisdictional Statement, has greatly
exacerbated the harm that would result from a preliminary injunction. Rather than moving for a stay
pending appeal in May, before the election process
began, Appellants waited until the election process
was far advanced to seek this Court’s intervention.
In these circumstances, the balance of equities tips
strongly towards denial of a preliminary injunction.
Cf. French, 963 F.2d at 892 (’~We do not believe that
25
considerations of mathematical equality in representation or the presumption in favor of redistricting
every ten years outweigh the considerations ... concerning the validity of four-year terms, the settled
expectations of voters and elected officials, the costs
of elections, and the need for stability and continuity
of office.").
Finally, Appellants have not shown a preliminary
injunction is in the public interest. As the district
court noted, federal courts must adhere to state laws
as long as they are not inconsistent with federal constitutional and statutory requirements. J.A. App. 5.
Moreover, there is a strong public interest in avoiding
disruption of imminent elections. This interest is so
strong it can justify allowing an election to proceed
even when a court has found a constitutional violation. See Reynolds, 377 U.S. at 585 ("Under certain
circumstances, such as where an impending election is imminent and a State’s election machinery is
already in progress, equitable considerations might
justify a court in withholding the granting of immediately effective relief in a legislative apportionment
case, even though the existing apportionment scheme
was found invalid."); Watkins, 771 F. Supp. 802-03
(same). Here, the strong public interest in avoiding
disruption of imminent statewide elections weighs
heavily against the entry of a preliminary injunction.
26
CONCLUSION
For the foregoing reasons, the appeal should be
dismissed. Alternatively, the judgment of the district
court should be summarily affirmed.
Respectfully submitted,
SECRETARY OF STATE
DELBERT HOSEMANN
MISSISSIPPI SECRETARY
OF STATE
Post Office Box 136
Jackson, MS 39205-0136
(601) 359-1350
ROBERT A. LONG
MARK W. MOSIER
COVINGTON ~ PURLING, LLP
1201 Pennsylvania Avenue, NW
Washington, D.C. 20004-2401
(202) 662-5612
ROBERT L. GIBBS
GIBBS WHITWELL, PLLC
WILLIAM E. "TREY" JONES 1400 Meadowbrook Road
MATTHEW W. ALLEN
Jackson, MS 39211
(601) 487-2640
BRUNINI, GRANTHAM,
GROWER & HEWES, PLLC
Post Office Drawer 119
Jackson, MS 39205-0119
(601) 948-3101
j sclafani@brunini.com
Counsel for Secretary ~f
State Delbert Hosemann
JOSEPH A. SCLAFANI
Counsel of Record