Case 3:11-cv-00119-WHB -LRA Document 17 Filed 03/18/11 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MADISON COUNTY BOARD OF

SUPERVISORS and JOHN W. ROBINSON, III PLAINTIFFS

VS. CIVIL ACTION NO. 3:11cv119-WHB-LRA

STATE OF MISSISSIPPI,
LEE WESTBROOK, in her official
capacity as MADISON COUNTY CIRCUIT
CLERK and MADISON COUNTY REGISTRAR,
MADISON COUNTY REPUBLICAN EXECUTIVE
COMMITTEE, AND MADISON COUNTY
DEMOCRATIC EXECUTIVE COMMITTEE DEFENDANTS

______________________________________________________________________________

THE STATE OF MISSISSIPPI’S MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________________

Jim Hood, Attorney General for the State of Mississippi (“Attorney General”), files this, the

State of Mississippi’s Motion for Summary Judgment, pursuant to Rule 56, and states:

1. Summary judgment in favor of the State of Mississippi is appropriate in this matter

because there are no genuine issues of material fact and it is entitled to judgment as a matter of law.

Undisputed Material Facts

2. The following material facts are included in the Complaint and exhibits affixed to the

Attorney General’s Response to Plaintiffs’ Motion for Preliminary Injunction and are not disputed:

A. The Madison County election cycle began on January 1, 2011 when qualifying
for county offices opened. See MISS. CODE ANN . §23-15-299(2). The Madison
Board planned to use the current supervisor district lines in its 2011 elections. [See
Steven G. Watson, Candidates watchdog redistricting, MADISON COUNTY JOURNAL ,
March 2, 2011, Ex. “D”]. On February 4, 2011, the 2010 United States Census data
became available to the county. [Complaint at ¶ 2, Docket No. 1].

B. On February 22, 2011, the Madison Board held a public meeting to discuss
redistricting. [See Steven G. Watson, County may redistrict before election,
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MADISON COUNTY JOURNAL , February 23, 2011, Ex. “A”].1 The meeting was a
follow-up to an announcement that a committee had been formed to consider
redistricting of the county’s election districts. Members of the five-person
committee formed by the Board included supervisor Tim Johnson, supervisor Karl
Banks, county administrator Brad Sellers, Board attorney Eric Hamer, and Circuit
Clerk Lee Westbrook. [See Steven G. Watson, Residents ‘don’t trust’ supervisors,
MADISON COUNTY JOURNAL , February 23, 2011, Ex. “B”]. The Madison Board
openly acknowledged that putting more than two supervisors on the committee
would make committee meetings open to the public. [Id.].

C. At the February 22 meeting, some members of the public questioned the make-up
of the committee. The Board attorney responded to concerns by saying that the
county could file a lawsuit to move the qualifying deadline for the current election
cycle. [See Steven G. Watson, County may redistrict before election, MADISON
COUNTY JOURNAL , February 23, 2011, Ex. “A”]. The Board attorney explained that
the Butler Snow firm had already filed a similar case in Hancock County and could
be associated so that Madison County would not have to “reinvent the wheel.” [Id.].
Following the public comments, the February 22 meeting culminated in a Madison
Board vote to file this lawsuit. [Id.]. The redistricting process was expected to take
several weeks. Meanwhile, the Madison Board promised to hold multiple public
hearings and advise the public of any proposals or considerations. [Id.].2

D. Madison Board’s vote to file a lawsuit, drew skepticism from the public and
candidates for office. [See Editorial, We don’t trust the supervisors either, MADISON
COUNTY JOURNAL , March 2, 2011, Ex. “C”; Steven G. Watson, Candidates
watchdog redistricting, MADISON COUNTY JOURNAL , March 2, 2011, Ex. “D”]. As
of this writing, the Madison Board still has not decided on a specific plan for new
lines. A public hearing is currently set for March 21, 2011 to discuss plans that
might be submitted to the Department of Justice for pre-clearance. [See Lucy Weber,
Madison supes eye redistrict options, THE CLARION -LEDGER , March 15, 2011, Ex.
“E”].

E. Long before this lawsuit was filed, on December 14, 2010, the Hancock County
Board of Supervisors (“Hancock Board”) filed a nearly identical challenge to the
Mississippi Legislature’s county election qualifying deadline. The case is pending
before Chief Judge Louis Guirola, Jr. [See Civil Action No. 1:10cv564-LG-RHW at

1
Unless otherwise noted, references to exhibits contained herein refer to those exhibits attached to the
State’s Response in Opposition to plaintiffs’ Motion for Preliminary Injunction [Docket No. __] filed at the same
time as this Memorandum.

2
Official actions of the M adison Board at the February 22 meeting are also evidenced by the Board’s
minutes. [See Minutes of the Board of Supervisors, February 22, 2011, Ex. “I,” and online at <http://madison-
co.com/images/admin/pdfs/745_86447_Minutes_2-22-11_(Final).pdf>].

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Complaint, Docket No. 1]. The Hancock Board is represented in that lawsuit by the
Butler Snow law firm, and at least one of the Butler Snow attorneys in this case has
appeared in this case and the Hancock County case. On February 10, 2011, the
Hancock Board filed a Motion for Declaratory Judgment Permanent Injunction, and
Preliminary Injunction. [See Civil Action No. 1:10cv564-LG-RHW at Motion for
Injunction, Docket No. 11]. On February 11, 2011, a hearing was set for February
25, 2011. [See Civil Action No. 1:10cv564-LG-RHW at February 11, 2011 Text
Order].

F. The Attorney General subsequently was allowed to intervene and filed a Motion
to Dismiss. [See Civil Action No. 1:10cv564-LG-RHW at Order, Docket No. 14;
Motion to Dismiss, Docket Nos. 19 & 20]. The February 25 hearing was canceled
and the case was stayed pending a ruling on the Motion to Dismiss, which is
currently in the briefing process. [See Civil Action No. 1:10cv564-LG-RHW at
February 22, 2011 Text Order & February 25, 2011 Text Order].

G. In addition to the pending Motion to Dismiss, a Motion to Consolidate cases has

been filed. [See Civil Action No. 1:10cv564-LG-RHW at Motion to Consolidate,
Docket No. 27]. The Motion to Consolidate seeks to combine the Hancock County
lawsuit, this lawsuit, and several others that have been filed by NAACP
organizations in some Mississippi counties.3 As of this writing, no decision on the
Motion to Consolidate has been issued by Chief Judge Guirola.

H. Meanwhile, the Madison Board filed this lawsuit on February 25, 2011.
[Complaint, Docket No. 1]. The named defendants are the State of Mississippi, the
Circuit Clerk/County Registrar, the county Republican Executive Committee, and
the county Democratic Executive Committee. [Id.].

I. The only substantive difference between this lawsuit and the Hancock County
lawsuit is that the Board has been joined by an additional plaintiff, individual
Madison County voter and attorney John W. Robinson, III. Plaintiffs filed a Motion
for Temporary Restraining Order and Preliminary Injunction along with their

3
Various local branches of the NAACP and some individual voters have filed at least eight lawsuits in the
Southern District and eight lawsuits in the Northern District, as of this writing. The NAACP suits have been filed
against respective Mississippi county Boards of Supervisors, and others, as defendants. The plaintiffs in the
NAACP cases have made virtually the same allegations and requests for relief as those advanced by the Madison
Board and the Hancock Board in their cases. The only substantive distinctions are the alignment of the parties, and
the statistical numbers before the courts with respect to each county involved. Notably, even though only a small
number of the county boards and other named defendants have responded to the NAACP complaints in those cases
so far, several counties reportedly intend to resist the relief requested (i.e., moving the qualifying deadline and
requiring the counties to re-draw their supervisor district lines in the middle of the current election cycle). [See, e.g.,
Civil Action No. 3:11cv121-HTW -LRA, Answer and Defenses of Copiah County Board of Supervisors, Docket No.
13; Civil Action No. 5:11cv30-DPJ-FKB, Answer and Defenses of Adams County Board of Supervisors, Docket No.
13]. Meanwhile, other county boards have been weighing their options behind closed doors. [See, e.g., John Suratt,
Amite hearings on new district lines set, E N TER PRISE -J O U RN A L , March 8, 2011, Ex. “F”].

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Complaint. [Motion for Temporary Restraining Order and Preliminary Injunction,

Docket No. 2]. On March 1, 2011, the Court held a telephonic conference on the
motion. The Court subsequently entered an order denying the plaintiffs’ Motion for
Temporary Restraining Order and setting a briefing schedule on plaintiffs’ claim for
a preliminary injunction. [Order, Docket No. 3]. The parties are scheduled to appear
for a hearing on April 1, 2011. [Id.].

J. The March 1, 2011 qualifying deadline established by the Mississippi Legislature

has now passed. Candidates have qualified under the existing district lines. The
names of candidates for office have been published under the current election
boundaries. [See Qualifying deadline for county elections passes, all five supervisor
races are contested, MADISON COUNTY JOURNAL , March 1, 2011, Ex. “G”].

K. Madison County maintains five supervisor districts as required by state

constitution and statute. See MISS. CONST., art. 6 § 170; MISS. CODE ANN . § 19-3-1.
Those district boundaries are established by the county Board of Supervisors. See
MISS. CODE ANN . §§ 23-15-281 & -283. The current Madison County supervisor
voting district boundaries were drawn by the Madison Board. The boundaries were
adopted and pre-cleared by the Department of Justice in March 2003, based upon
2000 census population data. [See Plaintiffs’ Motion for TRO and Injunction at Ex.
“A,” Docket No. 2]. The districts have not since been adjudged to violate
constitutional, or state or federal law.

L. The Census Bureau released its 2010 population data on or about February 4,
2011. [Complaint at ¶2, Docket No. 1]. The plaintiffs allege there has been an
increase and shifts in population and voting age population in Madison County
evidenced by the 2010 data. [Id. at ¶¶ 17-18]. As such, plaintiffs claim use of the
current district boundaries in the current election cycle would violate the “one
person, one vote” principle. [Id. at ¶ 20].

M. Madison County’s compliance with the “one-person, one-vote” principle –

derived from the Fourteenth Amendment – depends, in part, upon the percentage
deviation of the population among the five supervisor districts. According to the
plaintiffs, the 2010 Census data shows an overall maximum deviation among the five
supervisor districts of thirty-eight point twenty-one percent (38.21%). [Id. at ¶ 18].
More specifically, the plaintiffs’ proffered numbers show there is a high deviation
of nineteen point thirty-seven percent (19.37%) in district three and a low deviation
of eighteen point eighty-four percent (18.84%) in district five. [Id. at ¶¶ 16-21].

N. Certain regulations and deadlines pertaining to county elections, are prescribed

by the Mississippi Legislature. See MISS. CODE ANN . § 23-15-1 et seq. The
qualifying period for supervisor candidates in each district is established by statute.
County-wide district qualification began on January 1, 2011 and the deadline is
March 1, 2011. See MISS. CODE ANN . § 23-15-299(2). Party primary elections will

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be held in August 2011 and the general election will take place in November 2011.
See MISS. CODE ANN . §§ 23-15-191 & -193.

O. If new district lines will be used for 2011 elections, the lines must be re-drawn
and pre-cleared by June 2, 2011. See MISS. CODE ANN . § 23-15-285 (mandating any
change in lines must be done at least two months prior to any election). Other time
considerations are relevant. Absentee ballots must be prepared and printed.
Absentee ballots must be available forty-five (45) days in advance of the August 2
primaries (i.e., June 18, 2011). See MISS. CODE ANN . § 23-15-649.

P. Department of Justice regulations require any new lines to be pre-cleared

pursuant to Section Five of the Voting Rights Act of 1965. Department of Justice
can take up to sixty (60) days to approve lines. 28 C.F.R. § 51.9(a). Department of
Justice also may extend that time if it requires more information before pre-
clearance, or if it objects to any part of the redistricting plan. 28 C.F.R. § 51.9(c).

Q. Based on these facts, plaintiffs now seek a judgment: (1) declaring its current
supervisor district lines are unconstitutional; (2) declaring that the Mississippi
Legislature’s statutory qualifying deadline for county candidates is unconstitutional,
as applied to plaintiffs; and (3) enjoining the Mississippi Legislature’s county
candidate qualifying deadline. [Complaint at pp. 9-10, Docket No. 1]. Additionally,
and implicit in plaintiffs’ relief, the Court would have to establish a new qualifying
deadline.

Reasons to Grant Summary Judgment

3. First, the Madison Board specifically lacks standing to bring this action because it

cannot challenge the validity of a state statute on Fourteenth Amendment grounds. The Madison

Board also lacks standing pursuant to an Article III analysis. It has proven no injury-in-fact, any

alleged injury-in-fact is not fairly traceable to the defendants, and the relief it seeks would not

remedy its alleged injury-in-fact. All of Madison Board’s claims should be dismissed with prejudice

for lack of standing.

4. Second, plaintiffs’ claim for declaratory relief is legally insufficient. The crucial

issue is whether, if this federal Court does not legislate new election deadlines for Madison County,

would the county violate “one person, one vote” in holding elections under the current lines. The

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prior federal courts that have examined the same issue, on identical facts, have flatly answered “no.”

See French v. Boner, 963 F.2d 890, 891 (6th Cir. 1992), cert. denied, 506 U.S. 954; Ramos v. Illinois,

976 F.2d 335, 340-41 (7th Cir. 1992); Republican Party of Oregon v. Keisling, 959 F.2d 144, 145-46

(9th Cir. 1992), cert. denied, 504 U.S. 914; Kahn v. Griffin, 2004 WL 1635846, at *6 (D. Minn. July

20, 2004), certified question answered by 71 N.W. 2d 815 (Minn. 2005); Fairley v. Forrest County,

Mississippi, 814 F.Supp. 1327, 1343-46 (S.D. Miss. 1993); Bryant, 814 F.Supp. 1346, 1354 (S.D.

Miss. 1993). All the plaintiffs’ claims for declaratory relief (Count I) should be dismissed with

prejudice.

5. Third, plaintiffs’ claim for injunctive relief is also legally insufficient. They have no

likelihood of success on the merits for the same reasons the requested declaratory relief is

inappropriate. Plaintiffs have not demonstrated they would suffer any irreparable injury if an

injunction is not granted. The balance of harms weighs against plaintiffs. Moreover, the public

interest would not be served by an injunction. All the plaintiffs’ claims for injunctive relief (Count

II) should be dismissed with prejudice.

6. The Attorney General’s Motion for Summary Judgment is supported by the

foregoing, the exhibits submitted in support of his Response in Opposition to Plaintiffs’ Motion for

Preliminary Injunction [Docket No. 15], and his Memorandum of Authorities in Support of his

Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction [Docket No. 16] that

discusses all of the relevant facts and addresses all of the issues germane to this Motion for

Summary Judgment. The Attorney General’s Memorandum of Authorities in Support of his

Response in Opposition to Plaintiff’s Motion for Preliminary Injunction [Docket No. 16] is

submitted in support of this Motion for Summary Judgment pursuant to L.U.Civ.R. 7(b)(4).

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FOR THESE REASONS, and those submitted in his Memorandum of Authorities in Support

of his Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction [Docket No. 16], the

Attorney General respectfully requests that the Court enter an order granting summary judgment and

dismissing the plaintiffs’ claims with prejudice.

THIS the 18th day of March, 2011.

Respectfully submitted,

JIM HOOD, ATTORNEY GENERAL OF

THE STATE OF MISSISSIPPI, EX REL.
THE STATE OF MISSISSIPPI

By: S/Justin L. Matheny

Harold E. Pizzetta, III (Bar No. 99867)
hpizz@ago.state.ms.us
Justin L. Matheny (Bar No. 100754)
jmath@ago.state.ms.us
Special Assistant Attorneys General
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3680
Facsimile: (601) 359-2003

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been filed electronically with the Clerk of
Court and thereby served on the following persons who have appeared of record:

Mark W. Garriga
Tommie S. Cardin
Malissa Winfield
Butler Snow O’mara Stevens & Cannada, PLLC
P.O. Box 6010
Ridgeland, MS 39158-6010

Eric Hamer
Hamer & Associates
P.O. Box 2185
Ridgeland, MS 39158

John W. Robinson, III

Law Offices of John W. Robinson, III
618 Cresent Blvd., Ste. 200
Ridgeland, MS 29157

Cory T. Wilson
Willoghby Law Group
P.O. Box 2305
Madison, MS 39130

James H. Herring
Herring, Long & Crews PC
P.O. Box 344
Canton, MS 39046

THIS the 18th day of March, 2011

S/Justin L. Matheny
Justin L. Matheny

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