Smith v. Clark

• Citation: 189 F.Supp.2d 503
• Decision Date: 15 January 2002
• Docket Number: No. CIV.A. 3:01-CV-855WS.,CIV.A. 3:01-CV-855WS.
• 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 and 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 503

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 and 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.

January 15, 2002.

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

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, 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, defendants.

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

ORDER

E. GRADY JOLLY, Circuit Judge.

This matter is before us on the plaintiffs' motion for preliminary injunction, as amended. In a previous order, we deferred ruling on that motion until January 7, 2002, in order to give the State authorities an opportunity to timely carry out their duty to reapportion Mississippi's congressional districts. We recognize that the primary responsibility for reapportionment lies with the State and that if the State can timely reapportion itself in a constitutionally acceptable manner, federal courts have no duties to draw congressional districts. Because, for reasons that follow, it now appears uncertain whether the State authorities can have a redistricting plan in place by March 1, 2002 (the deadline to qualify for candidacy for the United States House of Representatives in Mississippi, see Miss.Code Ann. § 23-15-299), we conclude that it is necessary to assert our jurisdiction and to take under advisement the plaintiffs' motion for preliminary injunction, and, in response to plaintiffs' motion, we will begin to draft a plan for reapportioning Mississippi's congressional districts in order to assure that the congressional election schedule as provided under the laws of the State of Mississippi is timely implemented under a plan that satisfies both the requirements of the Constitution and § 5 of the Voting Rights Act. We begin by setting out the background facts.

I

As a result of the 2000 Decennial Census, the number of congressional representatives allotted to the State of Mississippi has been reduced from five to four. The attempts of the Mississippi Legislature to reapportion the State's congressional districts —a process that began some several months ago—have been unsuccessful.

In October 2001, the Intervenors in this case filed an action in the Chancery Court for the First Judicial District of Hinds County, Mississippi, against Mississippi's Secretary of State, Attorney General, and Governor. The complaint alleged that the Legislative Standing Joint Congressional Redistricting Committee failed timely to submit Mississippi's new redistricting plan pursuant to Miss.Code Ann. § 5-3-129, and sought an injunction adopting and directing the implementation of a congressional redistricting plan.

On November 1, the plaintiffs, three Mississippi registered voters, filed this action in the United States District Court for the Southern District of Mississippi against the Mississippi Secretary of State, Attorney General, and Governor, as well as the Mississippi Republican Executive Committee and the Mississippi Democratic Executive Committee. The complaint alleged that Mississippi's districting plan dividing the State into five congressional districts cannot be enforced under federal law, and that any plan subsequently adopted by State authorities cannot be enforced until it has been precleared under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. The plaintiffs sought injunctive relief to ensure that the State of Mississippi has a constitutional congressional redistricting plan in place in time to comply with the March 1, 2002 candidate qualification deadline. Specifically, the plaintiffs asked us to enjoin enforcement of the current congressional districting plan, Miss. Code Ann. § 25-15-1037, and to order that, in the 2002 congressional election, Mississippi's congressional representatives be chosen by the electors of the State at-large or, alternatively, that we adopt a new congressional redistricting plan.

This three-judge court was appointed by the Chief Judge of the United States Court of Appeals for the Fifth Circuit, The Honorable Carolyn Dineen King, and was convened pursuant to 28 U.S.C. § 2284, which provides that a district court of three judges "shall be convened when ... an action is filed challenging the constitutionality of the apportionment of congressional districts."

In an order dated November 19, 2001, the Chancery Court urged the Legislature and the Governor to renew their efforts to enact and implement a congressional redistricting plan as soon as possible. On December 3, the Chancery Court entered a scheduling order allowing the parties until the end of December to complete discovery and scheduling trial on January 14, 2002.

On November 30, 2001, we conducted a hearing on the plaintiffs' motion for preliminary injunction, the State defendants' motion to dismiss, and two motions for intervention. We entered an order on December 5, in which we granted the motion for leave to intervene filed by the plaintiffs in the Chancery Court action. Recognizing that "the Constitution leaves with the States primary responsibility for apportionment of their federal congressional ... districts", Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), we deferred ruling on the plaintiffs' motion for preliminary injunction so that State authorities might have further opportunity to timely carry out their duty to reapportion Mississippi's congressional districts. We stated, however, that if it was not clear by January 7, 2002, that the State authorities can have a redistricting plan in place by March 1, we would assert our jurisdiction and proceed expeditiously to rule on plaintiffs' motion for preliminary injunction and, if necessary, draft and implement a plan reapportioning the State's four congressional districts.

On December 7, the Chancery Court entered an amended scheduling order, ordering that discovery be completed by December 13, and moving the trial date up to December 14.

On December 13, the Mississippi Supreme Court denied petitions for a writ of prohibition and a writ of mandamus filed by the State defendants and other petitioners challenging the Chancery Court's jurisdiction. In a two-page order, the Mississippi Supreme Court held that the Chancery Court had jurisdiction to conduct congressional redistricting and stated that "[a]ny congressional redistricting plan adopted by the chancery court ... will remain in effect, subject to any congressional redistricting plan which may be timely adopted by the Legislature." The Court cited no authority and gave no explanation for its ruling. In re Mauldin, No.2001-M-01891 (Miss. Dec. 13, 2001).

Trial commenced in the Chancery Court on December 14, and continued through December 18, with closing arguments on December 19. Eleven redistricting plans were submitted into evidence, and approximately twenty witnesses testified. The State defendants neither presented evidence, proposed any redistricting plans, nor participated at the trial. In an Opinion and Order issued on December 21, the Chancery Court adopted a plan as submitted by the plaintiffs (intervenors in this action). We are advised by the parties that the Chancery Court's judgment will be appealed to the Mississippi Supreme Court.

On December 17, the plaintiffs in this action moved for leave to amend their complaint and motion for preliminary injunction. The plaintiffs contend that the Chancery Court's entertaining of a congressional redistricting suit and the Mississippi Supreme Court's December 13 Order holding that the Chancery Court had jurisdiction constitute changes in practices and procedures with respect to voting, covered by the preclearance requirements of § 5 of the Voting Rights Act. The plaintiffs have asked us to enjoin the defendants from conducting any election using the current districting plan (which all parties agree is unenforceable), and to enjoin all actions to be taken pursuant to the Mississippi Supreme Court's December 13 order and the Chancery Court's judgment until such time as both have been approved by federal authorities pursuant to § 5 of the Voting Rights Act. In addition, the plaintiffs asserted that, irrespective of whether the plan adopted by the Chancery Court is precleared by federal authorities, the Chancery Court's action violates Article I, § 4 of the United States Constitution, which provides that "The Times, Places and Manner of Holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ...."¹ The plaintiffs contend that the Chancery Court's imposition of a redistricting plan usurps authority delegated to the Mississippi Legislature under Art. I, § 4. Finally, although they were not parties in the Chancery Court action, the plaintiffs assert that the Chancery Court violated the due process rights of parties to that action. The plaintiffs have requested that we order the election of congressional representatives by the electors of the State at-large, pursuant to Miss.Code Ann. § 23-15-1039 and 2 U.S.C. § 2a(c)(5) or, alternatively, that we devise a...