Smith v. Clark, CIV.A. 3:01-CV-855WS.

• Decision Date: 26 February 2002
• Docket Number: No. CIV.A. 3:01-CV-855WS.,CIV.A. 3:01-CV-855WS.
• Citation: 189 F.Supp.2d 548
• Parties: John Robert SMITH, Shirley Hall, and Gene Walker, Plaintiffs, v. Eric CLARK, Secretary of State of Mississippi; Mike Moore, Attorney General for the State of Mississippi; Ronnie Musgrove, Governor of Mississippi; Mississippi Republican Executive Committee; and Mississippi Democratic Executive Committee, Defendants. Beatrice Branch; Rims Barber; L.C. Dorsey; David Rule; James Woodard; Joseph P. Hudson; and Robert Norvel, Intervenors.
• Court: U.S. District Court — Southern District of Mississippi

189 F.Supp.2d 548

John Robert SMITH, Shirley Hall, and Gene Walker, Plaintiffs, v. Eric CLARK, Secretary of State of Mississippi; Mike Moore, Attorney General for the State of Mississippi; Ronnie Musgrove, Governor of Mississippi; Mississippi Republican Executive Committee; and Mississippi Democratic Executive Committee, Defendants.

Beatrice Branch; Rims Barber; L.C. Dorsey; David Rule; James Woodard; Joseph P. Hudson; and Robert Norvel, Intervenors.

No. CIV.A. 3:01-CV-855WS.

United States District Court, S.D. Mississippi, Jackson Division.

February 26, 2002.

Arthur F. Jernigan, Jr., Watson & Jernigan, P.A., Jackson, MS, for John Robert Smith, Shirley Hall, Gene Walker.

T. Hunt Cole, Jr., Office of the Attorney General, Michael B. Wallace, Phelps Dunbar, John G. Jones, Jones & Funderburg, Herbert Lee, Jr., Lee & Associates, Robert B. McDuff, Robert B. McDuff, Attorney, Jackson, MI, for Eric Clark, Secretary of State of Mississippi, Mike Moore, Attorney General for the State of Mississippi, Ronnie Musgrove, Governor of Mississippi, the Mississippi Republican Party Executive Committee, Mississippi Democratic Party Executive Committee.

E. GRADY JOLLY, United States Circuit Judge, HENRY T. WINGATE, United States District Judge and DAVID C. BRAMLETTE, United States District Judge.

OPINION

E. GRADY JOLLY, Circuit Judge.

Today we have enjoined the defendants from implementing the congressional redistricting plan for the 2002 primary and general election that was adopted by the Hinds County, Mississippi chancery court. We have ordered the defendants to conduct said congressional elections based on this court's plan issued on February 4, 2002. The basis for this injunction and order is reflected in our opinion of February 19, that is, the failure of the timely preclearance under § 5 of the Voting Rights Act of the Hinds County Chancery Court's plan. The opinion that follows, holding that the adoption of the state court's plan is unconstitutional, for the reason that it violates Article I, Section 4 of the United States Constitution, is this court's alternative holding, in the event that on appeal it is determined that we erred in our February 19 ruling. Furthermore, inasmuch as the Intervenors are presently seeking a stay of this court's orders, it is expedient and efficient that the Supreme Court have before it the case as a whole, instead of truncated sub-parts.¹

I

Our order entered on January 15, 2002, and our opinion filed on February 19, 2002, contain the facts and procedural history of the case before us, and we refer to those documents for the background of this case. As we noted in our opinion of February 19 (footnote 7 on page 43), there remain, however, other constitutional questions raised by the plaintiffs as to the chancery court plan, that have remained dormant awaiting preclearance. Primarily, the plaintiffs have contended from the beginning of this lawsuit that under the United States Constitution, a state court may not constitutionally redistrict a state for United States congressional elections; that under the Constitution only the legislature can do so.²

The United States Constitution specifically provides in Article I, Section 4: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." (Emphasis supplied.) No case—or any other authority— has ever expressed doubt that this constitutional provision applies to congressional redistricting. Consequently, this provision is indisputably applicable to congressional redistricting in the state of Mississippi in 2002. Because the issue is squarely presented by the plaintiffs, we cannot—nor can any other court or any other party to the case before us—sidestep this express provision of the United States Constitution. The specific question we must confront is: What is the practical meaning of this constitutional provision, and how it is to be applied here, where the state chancery court—not the legislature—prescribed the "Places and Manner of holding Elections for ... Representatives ...."

In determining this question, we have looked to the plain meaning of the easily understood words of this section, and applied it to the facts before us. We have then looked to case authority, including authorities of the Supreme Court of the United States, the lower federal courts, and the state courts that have addressed this particular section of the Constitution. This review of authorities leads us to this conclusion: Although the constitutional provision may not require the state legislature itself to enact the congressional redistricting plan, the state authority that produces the redistricting plan must, in order to comply with Article I, Section 4 of the United States Constitution, find the source of its power to redistrict in some act of the legislature.

This predicate conclusion raises the next question that we must resolve: whether any enactment of the Mississippi legislature grants to the chancery court the power to redistrict the State of Mississippi for congressional elections. We find no such statute. Furthermore, no case of the Mississippi Supreme Court has ever indicated there is such a statute. We thus come to the final conclusion that the redistricting plan for congressional elections in 2002 produced by the Hinds County Chancery Court transgresses Article I, Section 4 of the United States Constitution, is therefore unconstitutional, and is consequently a nullity. We order it enjoined and direct that the said 2002 elections be conducted on the basis of the plan described in and attached to our February 4, 2002 order.

II

The Meaning of the Term "Legislature"

We turn now to investigate and resolve the meaning of the term "Legislature" as used in Article I, Section 4, to consider whether the chancery court can fall within the meaning of that term and to provide the appropriate remedy.

A The Constitutional Clause

To begin, we turn our attention specifically to the words of Article I, Section 4: Reviewing the plain language, the provision provides that the "Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof."³ Applying these words to the facts before us, everyone agrees that the legislature has not enacted a redistricting plan. Instead of the legislature, the chancery court has chosen the "Places and Manner" of conducting the congressional elections in Mississippi. It would surely seem, on the basis of the plain constitutional language, that the chancery court's order implementing its plan constitutes a violation of Article I, Section 4. But, the answer is not quite so simple. We therefore turn now to consider the cases that have considered the meaning of "Legislature."

B

Cases Considering the Term "Legislature"

Only a few cases have construed this constitutional term. One of the earliest Supreme Court cases is Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916). There, the constitution of the State of Ohio was amended in 1912 to vest the legislative power not only in the general assembly, but also in the people by way of popular referendum and initiative.⁴ Thus, the people could disapprove, by popular referendum, any law passed by the General Assembly. The General Assembly passed a congressional redistricting plan, which then was disapproved by referendum. In 1911, Congress had passed a Reapportionment Act, which allowed states which had the same or an increased number of congressional representatives to redistrict "in the manner provided by the laws thereof,"⁵ pursuant to Congress's authority under Article I, Section 4. A suit was brought in the Ohio Supreme Court, arguing that the referendum power was not validly part of the legislative power of the state and that the use of the referendum in this case violated Article I, Section 4. The Supreme Court of Ohio upheld the referendum procedure, noting that under the reserved powers in the Tenth Amendment to the United States Constitution, the people could determine the "character of [their] Legislature," and that "by the adoption of the amendment of 1912 [to the Ohio constitution] the people expressly limited this legislative power by reserving to themselves the power to reject any law by means of a popular referendum." Davis v. Hildebrant, 94 Ohio St. 154, 161-62, 114 N.E. 55 (Ohio 1916). The Supreme Court affirmed the holding of the Ohio Supreme Court, finding that the referendum provision did not violate state or federal law, or Article I, Section 4. Davis, 241 U.S. at 569-70, 36 S.Ct. 708. The Court stated that "so far as the state had the power to do it, the referendum constituted a part of the state Constitution and laws, and was contained within the legislative power." Id. at 568, 36 S.Ct. 708. As to the Reapportionment Act of 1911's provision for reapportionment according to the "laws" of a state, the Court held that "by inserting a clause plainly intended to provide that where, by the state Constitution and laws, the referendum was treated as part of the legislative power, the power as thus constituted should be held and treated to be the state legislative power for the purpose of creating congressional districts by law." Id. The Court further held that including the referendum within the state legislative power did not violate Article I, Section 4, as Section 4 allows Congress to make regulations for the choosing of Representatives, and Congress had expressly permitted states to reapportion according to the laws of the state. Id. at 569, 36 S.Ct. 708. In short, because the referendum invalidating the congressional districts was derived from the legislative power of the state constitution, it comported with the requirements of Article I, Section 4. Davis, however, demonstrates some flexibility in Article I, Section 4, because it suggests that the term "Legislature" is not confined to the...