IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO

Transcription

1 Case: Document: Page: 1 Date Filed: 12/05/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO HANCOCK COUNTY BOARD OF SUPERVISORS, Plaintiff v. KAREN LADNER RUHR, in her official capacity as Hancock County Circuit Clerk and Hancock County Registrar, et al., Defendants JIM HOOD, Attorney General for e State of Mississippi ex rel. e State of Mississippi, Intervenor Defendant HAZELHURST, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of emselves and all oers similarly situated; NANETTE THURMOND-SMITH, Plaintiffs - Appellants BRIEF OF INTERVENOR DEFENDANT-APPELLEE ATTORNEY GENERAL JIM HOOD HAROLD E. PIZZETTA, III (Bar# 99867) JUSTIN L. MATHENY (Bar# ) Office of e Mississippi Attorney General 550 High Street, Suite 1200 Jackson, MS Phone: (601) Facsimile: (601) hpizz@ago.state.ms.us jma@ago.state.ms.us

2 Case: Document: Page: 2 Date Filed: 12/05/2013 PAMELA JEFFERSON; ROBERT CATCHINGS, v. Movants - Appellants COPIAH COUNTY, MISSISSIPPI BOARD OF SUPERVISORS, COPIAH COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; COPIAH COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; EDNA STEVENS, in her official capacity as Circuit Clerk, JIM HOOD, Defendants - Appellees Intervenor Defendant - Appellee REVEREND FRANK LEE, on behalf of himself and all oers similarly situated; PIKE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of emselves and all oers similarly situated, Plaintiffs - Appellants GREGORY PARTMAN, v. Movant - Appellant PIKE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; PIKE COUNTY MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; PIKE COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; ROGER GRAVES, in his official capacity as Circuit Clerk; PIKE COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE, Defendants - Appellees

3 Case: Document: Page: 3 Date Filed: 12/05/2013 JIM HOOD, Intervenor Defendant - Appellee SIMPSON COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of emselves and all oers similarly situated; L. J. CAMPER, on behalf of emselves and all oers similarly situated, LASTER SMITH, v. Plaintiffs - Appellants Movant - Appellant SIMPSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; SIMPSON COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; SIMPSON COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; SIMPSON COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; CINDY JENSEN, in her official capacity as Circuit Clerk, JIM HOOD, Defendants - Appellees Intervenor Defendant - Appellee AMITE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on Behalf of Themselves and all oers Similarly Situated; GLENN WILSON, on Behalf of Themselves and all oers Similarly Situated, HUGH MCGEE, Plaintiffs - Appellants Movant - Appellant

4 Case: Document: Page: 4 Date Filed: 12/05/2013 v. AMITE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; AMITE COUNTY, MISSISSIPPI DEMOCRATIC EXECUTIVE COMMITTEE; AMITE COUNTY, MISSISSIPPI REPUBLICAN EXECUTIVE COMMITTEE; AMITE COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SHARON WALSH, in Her Official Capacity as Circuit Clerk, JIM HOOD, Defendants - Appellees Intervenor Defendant - Appellee WAYNE COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of emselves and all oers similarly situated; LEAH PARSON, on behalf of emselves and all oers similarly situated, Plaintiffs - Appellants JIMMIE GREEN; DAVID JONES v. Movants - Appellants WAYNE COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WAYNE COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; WAYNE COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; WAYNE COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; ROSE BINGHAM, in her official capacity as Circuit Clerk, JIM HOOD, Defendants - Appellees Intervenor Defendant - Appellee

5 Case: Document: Page: 5 Date Filed: 12/05/2013 VICKSBURG, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of itself and all oers similarly situated, FANNIE TONTH, v. Plaintiff - Appellant Movant - Appellant WARREN COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; WARREN COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE; WARREN COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; WARREN COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; SHELLY ASHLEY-PALMERTREE, in his official capacity as Circuit Clerk, JIM HOOD, Defendants - Appellees Intervenor Defendant - Appellee ADAMS COUNTY, MISSISSIPPI BRANCH OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, on behalf of emselves and all oers similarly situated; JACQUELINE MARSAW, on behalf of emselves and all oers similarly situated, BRENDA PROBY v. Plaintiffs - Appellants Movant - Appellant ADAMS COUNTY, MISSISSIPPI BOARD OF SUPERVISORS; ADAMS COUNTY, MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE;

6 Case: Document: Page: 6 Date Filed: 12/05/2013 ADAMS COUNTY, MISSISSIPPI REPUBLICAN PARTY EXECUTIVE COMMITTEE; ADAMS COUNTY, MISSISSIPPI BOARD OF ELECTION COMMISSIONERS; EDWARD WALKER, in his official capacity as Circuit Clerk, JIM HOOD, Defendants - Appellees Intervenor Defendant - Appellee

7 Case: Document: Page: 7 Date Filed: 12/05/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO HANCOCK COUNTY BOARD OF SUPERVISORS, Plaintiff v. KAREN LADNER RUHR, in her official capacity as Hancock County Circuit Clerk and Hancock County Registrar, et al., Defendants JIM HOOD, Attorney General for e State of Mississippi ex rel. e State of Mississippi, Intervenor Defendant - Appellee CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies at e following listed persons and entities as described in e four sentence of Rule have an interest in e outcome of is case. These representations are made in order at e judges of is court may evaluate possible disqualification or recusal. 1. Hazlehurst, Mississippi Branch of e National Association for e Advancement of Colored People; Nannette Thurmond-Smi; Pike County, Mississippi Branch of e National Association for e Advancement of Colored People; Frank Lee; Simpson County, Mississippi Branch of e National Association for e Advancement of Colored People; L.J. Camper; Amite County, Mississippi Branch of e National Association for e Advancement of Colored People; Glenn Wilson; Wayne County, Mississippi Branch of e National Association for e Advancement of Colored People; Leah Parson; Vicksburg, Mississippi Branch of e National Association for e Advancement of Colored People; Adams County, Mississippi Branch of e National Association for e i

8 Case: Document: Page: 8 Date Filed: 12/05/2013 Advancement of Colored People; and Jacqueline Marsaw, Appellants. 2. Carroll Rhodes and Deborah McDonald, Counsel for Appellants. 3. Copiah County, Mississippi Board of Supervisors; Copiah County, Mississippi Democratic Party Executive Committee; Copiah County, Mississippi Republican Party Executive Committee; Copiah County, Mississippi Board of Election Commissioners; Edna Stevens, in her official capacity as Copiah County Circuit Clerk; Pike County, Mississippi Board of Supervisors; Pike County, Mississippi Democratic Party Executive Committee; Pike County, Mississippi Republican Party Executive Committee; Pike County, Mississippi Board of Election Commissioners; Roger Graves, in his official capacity as Pike County Circuit Clerk; Simpson County, Mississippi Board of Supervisors; Simpson County, Mississippi Democratic Party Executive Committee; Simpson County, Mississippi Republican Party Executive Committee; Simpson County, Mississippi Board of Election Commissioners; Cindy Jensen, in her official capacity as Simpson County Circuit Clerk; Amite County, Mississippi Board of Supervisors; Amite County, Mississippi Democratic Party Executive Committee; Amite County, Mississippi Republican Party Executive Committee; Amite County, Mississippi Board of Election Commissioners; Debbie Kirkland, in her official capacity as Amite County Circuit Clerk; Wayne County, Mississippi Board of Supervisors; Wayne County, Mississippi Democratic Party Executive Committee; Wayne County, Mississippi Republican Party Executive Committee; Wayne County, Mississippi Board of Election Commissioners; Rose Bingham, in her official capacity as Wayne County Circuit Clerk; Warren County, Mississippi Board of Supervisors; Warren County, Mississippi Democratic Party Executive Committee; Warren County, Mississippi Republican Party Executive Committee; Warren County, Mississippi Board of Election Commissioners; Shelly Ashley- Palmertree, in her official capacity as Warren County Circuit Clerk; Adams County, Mississippi Board of Supervisors; Adams County, Mississippi Democratic Party Executive Committee; Adams County, Mississippi Republican Party Executive Committee; Adams County, Mississippi Board of Election Commissioners; and Edward Walker, in his official capacity as Adams County Circuit Clerk, Appellees. 4. Elise Munn, Berry & Munn, PA, Counsel for Appellees Copiah County, Mississippi Board of Supervisors; Copiah County, Mississippi Board of Election Commissioners; and Edna Stevens. ii

9 Case: Document: Page: 9 Date Filed: 12/05/ James D. Shannon, Shannon Law Firm, Counsel for Appellees Copiah County, Mississippi Democratic Executive Committee and Copiah County, Mississippi Republican Executive Committee. 6. Wayne Dowdy and Dowdy & Cockerham, Counsel for Appellee Pike County, Mississippi Board of Supervisors. 7. Alfred Lee Felder, Counsel for Appellee Pike County, Mississippi Democratic Executive Committee. 8. Benjamin E. Griffi, Daniel J. Griffi, Michael S. Carr, Griffi & Griffi, Counsel for Appellees Simpson County, Mississippi Board of Supervisors; Simpson County, Mississippi Board of Election Commissioners; Cindy Jensen; Wayne County, Mississippi Board of Supervisors; Rose Bingham; Warren County, Mississippi Board of Supervisors; Warren County, Mississippi Board of Election Commissioners; and Shelley-Ashley Palmertree. 9. Robert Daniel Welch, Counsel for Appellees Simpson County, Mississippi Board of Supervisors; Simpson County, Mississippi Board of Election Commissioners; and Cindy Jensen. 10. Cooper Martin Leggett and Leggett Law Office, PLLC, Counsel for Appellees Wayne County, Mississippi Board of Supervisors and Rose Bingham. 11. James R. Sherard, Counsel for Appellees Warren County, Mississippi Board of Supervisors; Warren County, Mississippi Board of Election Commissioners; and Shelley-Ashley Palmertree. 12. Tommie Cardin, John H. Dollarhide and Butler Snow O mara Stevens & Cannada, Counsel for Appellee Amite County, Mississippi Board of Supervisors. 13. Jeremy P. Diamond, Counsel for Appellees Adams County, Mississippi Board of Supervisors; Adams County, Mississippi Board of Election Commissioners; and Edward Walker. 14. Appellee-Intervenor Defendant Jim Hood, Attorney General for e State of Mississippi ex rel. State of Mississippi. iii

10 Case: Document: Page: 10 Date Filed: 12/05/ Harold E. Pizzetta, III and Justin L. Maeny, Office of e Mississippi Attorney General, Counsel for Appellee-Intervenor Defendant Jim Hood, Attorney General for e State of Mississippi ex rel. State of Mississippi. S/Justin L. Maeny Justin L. Maeny, Counsel for Jim Hood, Attorney General for e State of Mississippi ex rel. State of Mississippi iv

11 Case: Document: Page: 11 Date Filed: 12/05/2013 STATEMENT REGARDING ORAL ARGUMENT The issues on is appeal are straightforward questions of law and fully addressed by e parties briefs. Furermore, even ough ese consolidated cases involve many parties and e litigation has a long and detailed procedural history, e relevant facts are not complicated or disputed. The Attorney General erefore respectfully submits at oral argument is not necessary to aid e Court in evaluating e issues presented, and is appeal should be placed on e Court s summary calendar for disposition. v

12 Case: Document: Page: 12 Date Filed: 12/05/2013 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i STATEMENT REGARDING ORAL ARGUMENT v TABLE OF CONTENTS TABLE OF AUTHORITIES vi viii STATEMENT REGARDING JURISDICTION STATEMENT OF THE ISSUES STATEMENT OF THE CASE AND RELEVANT FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. Standard of Review II. The District Court Correctly Held Appellants Lawsuits are Moot A. The 2011 Elections Mooted Appellants Claims B. Post-Election Relief does not Save Appellants from Mootness No Implicit Claims for Post-Election Relief Unauorized Amendments do not Revive Appellants Lawsuits Failed Pre-Election Relief Claims do not Automatically Entitle Appellants to Post-Election Relief III. The District Court Correctly Held e Capable of Repetition, Yet Evading Review Doctrine does not Apply vi

13 Case: Document: Page: 13 Date Filed: 12/05/2013 A. Appellants had Plenty of Time to Litigate B. Appellants Failed to Prove a Reasonable Expectation of Being Subject to e Same Conduct Again CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH RULE 32(a) vii

14 Case: Document: Page: 14 Date Filed: 12/05/2013 TABLE OF AUTHORITIES CASES Page Alabama v. U.S. Army Corps. of Eng rs, 382 F.Supp.2d 1301 (N.D. Ala. 2005) Bayou Liberty Ass n v. U.S. Army Corps of Eng rs, 217 F.3d 393 (5 Cir. 2000) , 30, 39 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) County of Morris v. Nationalist Movement, rd 273 F.3d 527 (3 Cir. 2001) DeFunis v. Odegaard, 416 U.S. 312 (1974) DiMaio v. Democratic National Committee, 555 F.3d 1343 (11 Cir. 2009) Fox v. Bd. of Trustees of e State Univ. of New York, 148 F.R.D. 474 (N.D. N.Y. 1993) Keller v. Gilliam, 454 F.2d 55 (5 Cir. 1972) Hall v. Beals, 396 U.S. 45 (1969) Hancock County Bd. of Supervisors v. Rhur, 487 Fed. Appx. 189 (5 Cir. 2012) passim Harris v. City of Houston, 151 F.3d 186 (5 Cir. 1998) , 30, 36 viii

15 Case: Document: Page: 15 Date Filed: 12/05/2013 Headwaters, Inc. v. Bureau of Land Management, Medford Dist., 893 F.2d 1012 (9 Cir. 1989) Herbert v. United States, 53 F.3d 720 (5 Cir. 1995) Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) Libertarian Party v. Dardenne, 595 F.3d 215 (5 Cir. 2010) Lopez v. City of Houston, 617 F.3d 336 (5 Cir. 2010) , 36 Mahan v. Howell, 410 U.S. 315 (1973) Matter of Kulp Foundry, Inc., rd 691 F.2d 1125 (3 Cir. 1982) Mauldin v. Fiesta Mart, 114 F.3d 1184, 1997 WL (5 Cir. 1997) McCary v. Ozark School Dist., 359 F.3d 1029 (8 Cir. 2004) Minnesota Humane Society v. Clark, 184 F.3d 795 (8 Cir. 1999) Mississippi State Conf. of NAACP v. Bryant, 133 S.Ct (2013) , Moore v. Leflore County Bd. of Election Comm rs, 351 F.Supp. 848 (N.D. Miss. 1971) Murphy v. Hunt, 455 U.S. 478 (1982) ix

16 Case: Document: Page: 16 Date Filed: 12/05/2013 Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) New Jersey Turnpike Auority v. Jersey Cent. Power and Light, rd 772 F.2d 25 (3 Cir. 1985) Payne v. Travenol Labs, Inc., 565 F.2d 895 (5 Cir. 1978) Procter & Gamble Co. v. Amway Corp., 376 F.3d 496 (5 Cir. 2004) Ramming v. United States, 281 F.3d 158 (5 Cir. 2001) Seafarers Int l Union of N. Am. v. National Marine Servs., Inc., 820 F.2d 148 (5 Cir. 1987) Shelby County, Alabama v. Holder, 133 S.Ct (2013) , 18, 23, 41 Smi v. Winter, 782 F.2d 508 (5 Cir. 1986) Spotts v. United States, 613 F.3d 559 (5 Cir. 2010) Taylor v. Monroe County Bd. of Supervisors, 394 F.2d 333 (5 Cir. 1972) Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517 (7 Cir. 2001) Tucker v. Burford, 603 F.Supp. 276 (N.D. Miss. 1985) Vivian Tankships Corp. v. State of Louisiana, 254 F.3d 1080, 2001 WL (5 Cir. 2001) x

17 Case: Document: Page: 17 Date Filed: 12/05/2013 Washington v. Allstate Ins. Co., 901 F.2d 1281 (5 Cir. 1990) Weinstein v. Bradford, 423 U.S. 147 (1975) Wilson v. Birnberg, 667 F.3d 591 (5 Cir. 2012) , 36 FEDERAL LAWS U.S. CONST., Art. III U.S. CONST., Amend. XIV U.S. CONST., Amend. XV U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C , U.S.C STATE LAWS MISS. CONST., Art. 6, MISS. CODE ANN MISS. CODE ANN xi

18 Case: Document: Page: 18 Date Filed: 12/05/2013 MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN , 42 MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN MISS. CODE ANN FEDERAL RULES Fed. R. App. P. 8(a)(2) , 39 Fed. R. Civ. P. 12(b)(1) , 16, Fed. R. Civ. P. 12(b)(6) , 25 Fed. R. Civ. P. 12(h)(3) , 34 Fif Circuit Local Rule FEDERAL REGULATIONS 28 C.F.R xii

19 Case: Document: Page: 19 Date Filed: 12/05/2013 STATEMENT REGARDING JURISDICTION Pursuant to 28 U.S.C. 1291, is Court has appellate jurisdiction to review e District Court s August 20, 2013 Final Judgment dismissing e claims asserted below as moot. Appellants timely filed eir Notice of Appeal on August 27, The complaints filed in e District Court below relied upon 28 U.S.C and 1343 as e basis for federal jurisdiction. STATEMENT OF THE ISSUES 1. Wheer e District Court correctly held Appellants lawsuits targeting e County Appellees 2011 Board of Supervisors elections and election deadlines are moot in light of e undisputed facts at ose elections have been held and deadlines have passed. 2. Wheer e District Court correctly held e capable of repetition, yet evading review exception to mootness does not apply to Appellants lawsuits, given at ey speculatively contend e same claims will accrue again under identical facts and circumstances twenty years from now when e election cycle for Mississippi supervisors may again coincide wi e release of decennial census data. STATEMENT OF THE CASE AND RELEVANT FACTS This is e second appeal from a dismissal of consolidated cases each asserting Fourteen Amendment one person, one vote claims against certain Mississippi counties. The first appeal resulted in an unpublished opinion, Hancock County Bd. of Supervisors v. Rhur, Cause No , 487 Fed. Appx. 189 (5 Cir. Aug. 31, 2012), at instructed e District Court as to how it 1

20 Case: Document: Page: 20 Date Filed: 12/05/2013 must proceed in evaluating e mootness issues presented on is second appeal. Background Each county in Mississippi maintains five supervisor voting districts as required by e Mississippi Constitution and statute. MISS. CONST., Art. 6, 170; MISS. CODE ANN The district boundaries are established by each county s Board of Supervisors. MISS. CODE ANN & The district boundaries utilized in e 2011 elections in each county at issue here were adopted by eir respective Boards following e 2000 decennial census and subsequently precleared by Department of Justice. It was undisputed in e District Court below at, when e 2011 elections occurred, ose respective supervisor districts in each county were less an ten years old and never previously adjudged to violate constitutional, or state or federal law. The 2011 election cycle for county supervisors in every county in Mississippi began wi qualifying between January 1, 2011 and e March 1, 2011 qualifying deadline. MISS. CODE ANN (2). The qualifying deadline was established by e Mississippi Legislature, and pre-cleared by e Department of Justice in In each county at issue here, candidates for 2011 Board of Supervisors elections qualified in e January 1 to March 1, 2011 window. On February 4, 2011, in e middle of e qualification period for candidates, e 2

21 Case: Document: Page: 21 Date Filed: 12/05/2013 United States Census Bureau released 2010 Mississippi county population data. The counties, rough eir respective Boards of Supervisors, began e process of redrawing voting district lines in response to e census data. Original District Court Proceedings 1 On February 28, 2011, e Appellants filed seven separate lawsuits in e United States District Court for e Souern District of Mississippi against e county Boards of Supervisors, e county Clerk/Registrars, e county Republican Executive Committees, e county Democratic Executive Committees, and e county Boards of Election Commissioners in Adams, Amite, Copiah, Pike, 2 Simpson, Wayne and Warren counties requesting at e District Court declare 1 The plaintiffs in e seven separate lawsuits filed and consolidated in e District Court below include: Hazlehurst, Mississippi Branch of e National Association for e Advancement of Colored People; Nannette Thurmond-Smi; Pike County, Mississippi Branch of e National Association for e Advancement of Colored People; Frank Lee; Simpson County, Mississippi Branch of e National Association for e Advancement of Colored People; L.J. Camper; Amite County, Mississippi Branch of e National Association for e Advancement of Colored People; Glenn Wilson; Wayne County, Mississippi Branch of e National Association for e Advancement of Colored People; Leah Parson; Vicksburg, Mississippi Branch of e National Association for e Advancement of Colored People; Adams County, Mississippi Branch of e National Association for e Advancement of Colored People; and Jacqueline Marsaw. In is brief, e plaintiffs below are collectively referred to as Appellants unless oerwise indicated. Additionally, Appellants Brief lists Pamela Jefferson, Robert Catchings, Gregory Partman, Laster Smi, Hugh McGee, Jimmie Green, David Jones, Fannie Ton, and Brenda Proby as Movant-Appellants. Those persons were listed as new plaintiffs in proposed amended complaints at e District Court never auorized Appellants to file and, us, were never actually parties to e District Court proceedings below. 2 The defendants in e seven separate lawsuits filed and consolidated in e District Court below, and who are Appellees on is appeal, include: Copiah County, Mississippi Board of Supervisors; Copiah County, Mississippi Democratic Party Executive Committee; Copiah 3

22 Case: Document: Page: 22 Date Filed: 12/05/2013 e en-existing, precleared district lines established by e respective Boards of Supervisors following e 2000 census unconstitutional for use in e 2011 election cycle. The claims were entirely premised upon release of 2010 census data on February 4, 2011, less an one mon prior to e qualifying deadline for Board of Supervisors candidates. Specifically, Appellants alleged e 2010 census figures demonstrated a population change in each county at issue as shown by a comparison of e 2010 data to 2000 data. [See Original Complaints, ROA , , County, Mississippi Republican Party Executive Committee; Copiah County, Mississippi Board of Election Commissioners; Edna Stevens, in her official capacity as Copiah County Circuit Clerk; Pike County, Mississippi Board of Supervisors; Pike County, Mississippi Democratic Party Executive Committee; Pike County, Mississippi Republican Party Executive Committee; Pike County, Mississippi Board of Election Commissioners; Roger Graves, in his official capacity as Pike County Circuit Clerk; Simpson County, Mississippi Board of Supervisors; Simpson County, Mississippi Democratic Party Executive Committee; Simpson County, Mississippi Republican Party Executive Committee; Simpson County, Mississippi Board of Election Commissioners; Cindy Jensen, in her official capacity as Simpson County Circuit Clerk; Amite County, Mississippi Board of Supervisors; Amite County, Mississippi Democratic Party Executive Committee; Amite County, Mississippi Republican Party Executive Committee; Amite County, Mississippi Board of Election Commissioners; Debbie Kirkland, in her official capacity as Amite County Circuit Clerk; Wayne County, Mississippi Board of Supervisors; Wayne County, Mississippi Democratic Party Executive Committee; Wayne County, Mississippi Republican Party Executive Committee; Wayne County, Mississippi Board of Election Commissioners; Rose Bingham, in her official capacity as Wayne County Circuit Clerk; Warren County, Mississippi Board of Supervisors; Warren County, Mississippi Democratic Party Executive Committee; Warren County, Mississippi Republican Party Executive Committee; Warren County, Mississippi Board of Election Commissioners; Shelly Ashley-Palmertree, in her official capacity as Warren County Circuit Clerk; Adams County, Mississippi Board of Supervisors; Adams County, Mississippi Democratic Party Executive Committee; Adams County, Mississippi Republican Party Executive Committee; Adams County, Mississippi Board of Election Commissioners; and Edward Walker, in his official capacity as Adams County Circuit Clerk. In is brief, e foregoing defendants below are collectively referred to as e County Appellees unless oerwise indicated. 4

23 Case: Document: Page: 23 Date Filed: 12/05/ , , , , ]. According to e Appellants, for each county, comparing e current population figures to e en-current district lines demonstrated a deviation from e average (total population divided by five) in each voting district. [Id.]. Appellants complaints alleged e ideal number of people for an average supervisor voting district under e census figures in each respective county, was as follows: Adams 6,459 Amite 2,624 Copiah 5,890 Pike 8,081 Simpson 5,501 Warren 9,755 Wayne 4,149. [Id.]. Based on e unverified 2011 census figures as reported by Appellants, an analysis of eir data compared to e en-existing districts in each county showed a percentage deviation (i.e., e difference between e highest deviation from e average and e lowest deviation from e average) as follows: Adams % Amite % Copiah % Pike % Simpson % Warren % Wayne %. [Id.]. Furer, according to Appellants, eir deviation calculations required new 5

24 Case: Document: Page: 24 Date Filed: 12/05/ district boundaries before e 2011 elections. The Appellants furer complained at e Board Appellees did not re-draw eir lines to comply wi one person, one vote in time for e March 1, 2011 candidate qualifying deadline, in spite of e indisputable fact at e 2010 census data was not published until February 2011, after e 2011 county election cycles began. [Original Complaints, ROA , , , , , , ]. Appellants requested at e District Court enjoin e statutorily mandated March 1 qualifying deadline, and require e respective Boards to revise all of e targeted counties voting districts on a fast-track timetable prior to e August 2, 2011 primary elections. Each complaint expressly requested e following identical relief: a. A declaratory judgment, pursuant to 28 U.S.C and 2202, at e present apportionment scheme and e actions and inactions of e defendants violate rights secured to plaintiffs by e 14 amendment to e United States Constitution; 3 In a more common one person, one vote case where timing of release of census data in relation to impending elections is not at issue e deviation figures may be significant because a prima facie case of denial of equal protection under e one person, one vote principle generally exists where e maximum deviation between e most and least populated districts is greater an 10% and e deviation is not based on legitimate considerations incident to a rational state policy. See, e.g., Mahan v. Howell, 410 U.S. 315, 325 (1973). In e past (almost) ree years of litigating ese cases, Appellants have often misconstrued such prima facie evidence of malapportionment as a per se rule of strict liability at invalidates any elections held after decennial census data is released, and automatically entitles any voter in an under-represented district to injunctive relief no matter what e circumstances. 6

25 Case: Document: Page: 25 Date Filed: 12/05/2013 b. A temporary restraining order, preliminary injunction, and/or a permanent injunction enjoining e defendants from conducting elections under e existing redistricting plans for supervisor in [each respective] county; c. A temporary restraining order and a preliminary injunction, enjoining e candidate qualification deadline for March 1, 2011 for e office of supervisor in [each respective] County, Mississippi for a short period of time in order to give e [each respective] County, Mississippi Board of Supervisors an opportunity to redistrict e supervisor districts and obtain preclearance of e redistricting plan; d. A temporary restraining order, preliminary injunction, and/or a permanent injunction requiring at any new redistricting plan for supervisors in [each respective] County, Mississippi comply wi e 14 and 15 amendments to e United States Constitution, 42 U.S.C. 1983, and 2 and 5 of e Voting Rights Act of 1965, as amended and extended, 42 U.S.C. 1973(e) and 1973c; e. Award plaintiffs court costs and a reasonable attorneys fee pursuant to 42 U.S.C. 1973(e), and 1988; and f. Grant plaintiffs general relief. [Id.]. In early March 2011, e Attorney General moved to intervene in e lawsuits because e complaints each challenged e constitutionality of e March 1 candidate qualifying deadline prescribed by state law, and oer established election deadlines, as applied to e respective county supervisors races and use of e current supervisor lines in e 2011 election cycle. [Motions to Intervene, 7

26 Case: Document: Page: 26 Date Filed: 12/05/2013 ROA , , , , , , ]. On March 23, 2011, e District Court consolidated all seven lawsuits wi Civil Action No. 1:10cv564-LG-RHW, and two oer similar cases, pending in e Souern District based on common questions of law. [Consolidation Order, 4 ROA ]. On March 25, 2011, e Attorney General moved to dismiss all of e Appellants complaints pursuant to Rules 12(b)(1) and 12(b)(6). [Motion to Dismiss, ROA ]. On April 5, 2011, e District Court held a status conference and established briefing schedules for outstanding motions. [Text Order, ROA ]. On May 13, 2011, e District Court held a hearing. [May 13, 2011 Hearing Transcript, ROA ]. On May 16, 2011, e District Court dismissed e Appellants claims, as well as all e claims in all e oer consolidated cases. [Memorandum Opinion 4 The District Court consolidated Appellants cases wi two separate challenges to e Mississippi Legislature s qualifying deadline filed by Boards of Supervisors in Hancock County and Madison County asserting similar legal claims. The Hancock and Madison County plaintiffs, defendants, and intervenors did not appeal from e District Court s May 16, 2011 decision in e first appeal involving ese consolidated cases. The consolidated lawsuits also initially included anoer case filed by Appellants counsel against county defendants in Claiborne County, Mississippi. Following e 2011 elections, e Claiborne County Board of Supervisors hired one of Appellants counsel as Board Attorney. Appellants counsel subsequently widrew from representing e Claiborne County plaintiff. The Claiborne County plaintiff did not appeal from e District Court s August 20, 2013 Final Judgment, erefore, e Claiborne County case is not included in is appeal. 8

27 Case: Document: Page: 27 Date Filed: 12/05/2013 and Order of Dismissal, ROA ]. The District Court reasoned at none of e Appellants had standing to assert a one person, one vote claim on several grounds. [Id. at pp. 3-11, ROA ]. Alternatively, assuming standing, e District Court held e complaints failed to state a claim on e merits. After reviewing prior decisions in e Souern District of Mississippi, and oer federal courts around e country, e District Court concluded at [t]he parties do not dispute e need for e counties to redistrict based on 2010 census data. But each county s board of supervisors must have adequate time to formulate a redistricting plan and obtain preclearance from e Department of Justice before its failure to do so results in a declaration at elections held using e existing plans are unconstitutional. [Id. at p. 16, ROA ]. The dispositive factors included wheer e timing of release of census data in e middle of e election cycle warranted dismissal because [c]ourts have generally accepted at some lag-time between release of census data and redistricting is bo necessary and constitutionally acceptable, even when it results in elections based on malapportioned districts in e years at census data is released. [Id.]. The District Court held at [t]here is simply an insufficient amount of time for e County Boards of Supervisors to receive and evaluate e 2010 decennial census data, to redistrict each County in order to remedy any malapportionment, and to comply wi State election statutes. Under 9

28 Case: Document: Page: 28 Date Filed: 12/05/2013 e circumstances, and absent Justice Department preclearance of e submitted plans, e 2011 elections in e affected Counties must be conducted as ey are presently configured. [Id. at p. 17, ROA ]. On June 28, 2011, Appellants filed a Notice of Appeal, followed by an Amended Notice of Appeal on June 29, [Amended Notice of Appeal, ROA ]. Appellants did not petition is Court for a Stay Pending Appeal pursuant to Fed. R. App. P. 8(a)(2), or seek expedited review, in conjunction wi eir appeal. Appellants First Appeal Appellants consolidated appeal was furer consolidated wi two oer appeals in similar lawsuits dismissed by e United States District Court for 5 Norern District of Mississippi in September The parties filed briefs, two 5 The Norern District cases were two of eight similar cases filed by e same counsel for Appellants, and in which e Attorney General has intervened. The two appealed cases involved similar one person, one vote claims, and were taken from September 2011 dismissals on e merits for e same reasons as e Souern District Court s alternative grounds. See Tunica County, Mississippi Branch of e NAACP v. Tunica County, Mississippi Board of Supervisors (5 Cir. Cause No ); Tallahatchie County, Mississippi Branch of e NAACP v. Tallahatchie County (5 Cir. Cause No ). The Tunica County Appellants voluntarily dismissed eir appeal because ey were satisfied wi e outcome of e 2011 elections. The Tallahatchie County case was subject to is Court s August 31, 2012 opinion, discussed below, and e District Court s judgment was vacated and remanded. As of is writing, e Tallahatchie County case and e now only remaining four oer similar cases pending in e United States District Court for e Norern District of Mississippi have been consolidated and stayed pending e outcome of is appeal. See Consolidation Order in Winston County NAACP v. Winston County Bd. of Supervisors, ND Civil Action 1:11cv59- MPM-JMV (Nov. 20, 2013). 10

29 Case: Document: Page: 29 Date Filed: 12/05/2013 sets of supplemental briefs, and presented oral argument on June 4, On August 31, 2012, in an unpublished opinion, is Court vacated e District Court s May 16, 2011 opinion and remanded e cases wi specific instructions for e District Court to address wheer e cases were moot. Hancock County, 487 Fed. Appx After reciting e cases procedural history, is Court analyzed e District Court s dismissal for lack of Article III standing. First, as to redressability, which e District Court found lacking, appellants were not required to show eir requested relief would certainly redress eir injuries; raer, ey were required to show at eir requested relief would likely (or substantially likely) redress eir injuries. Id. at 197 (emphasis in original). Consequently, is Court held at Appellees do not dispute at appellants complaints sought broad relief; appellees concede at appellants sued to declare e current supervisor district lines invalid, enjoin e qualifying deadlines, enjoin e elections, and enjoin e establishment of invalid lines. But is relief, had it been provided, would have very likely, if not unquestionably, redressed e plaintiffs claimed injuries. If e district court had enjoined e election deadlines and e elections, and e counties had redistricted to generate constitutionally proportional districts, and e elections were en held pursuant to ese constitutional districts, e plaintiffs one person, one vote injuries would very likely have been redressed. Id. Second, wi regard to associational standing at e District Court found absent, is Court determined at, to demonstrate a sufficient injury-in-fact, e 11

30 Case: Document: Page: 30 Date Filed: 12/05/2013 organizational Appellants were not required to identify any voters from an overpopulated, under-represented, district at e pleading stage. Id. at 198 (emphasis in original). The standing holdings were summarized as: Id. at 199. [o]verall, we hold at e NAACP plaintiffs and any individual plaintiff who is alleged to be a voter in an overpopulated, underrepresented district has adequately alleged facts supporting standing. We disagree wi ose portions of e district court orders dismissing e complaints for lack of standing. Next, is Court did not address e District Court s alternative determination at Appellants failed to state a claim on e merits. Instead, it questioned wheer e cases were moot, and explained at e issue could not be conclusively determined at at time: [b]ased on e record before us, however, we are unable to determine wheer is controversy is live. To illustrate, because e district court has not evaluated mootness in e first instance, we lack access to factual findings wi which to determine wheer e capable of repetition, yet evading review exception to mootness is applicable to is case. Alough we could assume is controversy will reoccur every twenty years when e election cycle and census publication coincide, we decline e invitation to engage in such speculation. Id. at 200 (citations omitted). Consequently, is Court s specific instructions for evaluating mootness on remand included at: [i]n an abundance of caution, and because more factual development is needed, we remand e consolidated cases to e district court so at it can determine wheer is controversy is moot or live. 12

31 Case: Document: Page: 31 Date Filed: 12/05/2013 If e district court determines is controversy is moot, e court must dismiss e case. Id. at Only after making e initial mootness determination, and if e District Court determined any live claims remain, e District Court was instructed to allow Appellants to pursue new potential claims: [i]f e district court determines at is controversy is live, e court must proceed to determine wheer appellants complaints after allowing for proper amendments adequately state a claim upon which post-election relief can be granted. Of course, new pleadings will be necessary; we do not forbid new counts. But if e district court determines at e appellants complaints have failed to state a claim for post-election relief, e court must dismiss e case. Id. at 201 (emphasis in original). In short, is Court did not reverse e District Court s determination at Appellants original complaints failed to state a claim on e merits. Raer, its opinion specifically postponed any determination in at regard: [a]t is time, en, we do not address ose portions of e district court orders dismissing e complaints based on eir failure to state a claim. We cannot leapfrog e justiciability inquiry to reach e merits of is case. Id. at 201. Accordingly, e District Court s May 16, 2011 Opinion and Order was vacated, and e cases remanded for consideration of mootness in accordance wi is Court s instructions. Id. 13

32 Case: Document: Page: 32 Date Filed: 12/05/2013 Intervening 2011 Elections While e original District Court and appeal proceedings took place in , e subject counties 2011 supervisor elections proceeded on e enexisting district lines. Party primary elections were held in each county on August 2, 2011, wi party run-offs completed (where necessary) on August 23, The general election was held in each county and all oer counties in Mississippi on November 8, Between e beginning of e election cycle and e 2011 elections, several oer deadlines and election requirements also had to be met by candidates and officials in each of e respective counties in e time leading up to e 2011 elections. See, e.g., MISS. CODE ANN (certified candidate lists due to Secretary of State by March 3); MISS. CODE ANN , -807 (periodic campaign finance reports filed wi circuit clerks wi deadlines of May 10, June 10, July 8, July 24, July 26, August 14, August 16, October 10, October 30, November 1); MISS. CODE ANN (any new supervisor district lines must be in place by June 2); MISS. CODE ANN (absentee ballot applications made available by Circuit Clerks by June 3); MISS. CODE ANN (absentee ballots made available for primary voting by June 18); MISS. CODE ANN (4) (circuit clerks to mail absentee ballots to voters on permanent physically disabled lists by June 23); MISS. CODE ANN. 14

33 Case: Document: Page: 33 Date Filed: 12/05/ (county executive committee to appoint pollworkers for primary by July 19); MISS. CODE ANN (absentee balloting for run-off elections by August 13); MISS. CODE ANN (absentee ballot applications for general election by September 9); MISS. CODE ANN (absentee ballots available for general election by September 24); 42 U.S.C. 1973ff-1 (absentee ballots for military and overseas voters transmitted by September 24). In January 2012, e newly-elected, and now current, supervisors in each county took office. Meanwhile, none of e subject counties had sufficient time to complete e redistricting process and obtain Department of Justice pre-clearance approval in time for use in e 2011 elections, much less in time for e qualifying deadlines. New lines had to be drawn, submitted to e public for comment, voted upon, and put rough e potentially lengy process of submission and approval by e Department of Justice or declaratory judgment from e United States District Court for e District of Columbia. See 42 U.S.C. 1973c (voting changes by covered jurisdictions may not take effect wiout preclearance or declaratory judgment); 28 C.F.R (procedures for processing preclearance submissions). The subject counties at needed to redraw supervisor lines based upon 2010 census data implemented new lines eier during e 2011 election cycle or after e newly-elected supervisors took office. 15

34 Case: Document: Page: 34 Date Filed: 12/05/2013 District Court Proceedings on Remand Nearly a year to e day after e 2011 general elections, on November 7, 2012, e District Court conducted a status conference and established deadlines for filing motions addressing mootness and requests for mootness-related discovery. On November 14, 2012, Appellants filed motions to amend eir complaints and for mootness-related discovery. [Motion to Amend Complaints, ROA ; Motion for Discovery, ROA ]. In December 2012, e Attorney General and County Appellees filed motions to dismiss on account of mootness pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3). [Motions to Dismiss, ROA , , , , , ]. The parties fully briefed all e motions. On June 25, 2013, e District Court requested supplemental briefs addressing e impact, if any, of e United States Supreme Court s decisions in Shelby County, Alabama v. Holder, 133 S.Ct (2013) (invalidating e Voting Rights Act s Section 4(b) coverage formula for Section 5 preclearance) and Mississippi State Conf. of NAACP v. Barbour, 2011 WL (S.D. Miss. May 16, 2011), aff d, 132 S.Ct. 532 (2011), and aff d sub. nom., Mississippi State Conf. of NAACP v. Bryant, 133 S.Ct (2013) (affirming ree-judge district court s denial of special elections relief in 2011 one person, one vote 16

35 Case: Document: Page: 35 Date Filed: 12/05/2013 Mississippi legislative redistricting case) on e District Court s mootness inquiry. [Order, ROA ]. In July 2013, e parties filed supplemental briefs in response to e Order. [Supplemental Briefs, ROA , , , , , , ]. On August 20, 2013, e District Court dismissed Appellants lawsuits as moot. [Order Granting Motion to Dismiss, ROA ]. After reciting e contentions presented by e parties in eir briefing and a prior hearing, e District Court found at e 2011 election cycle and elections had long since taken place, and elected supervisors in e counties took office in January [Id. at p. 6, ROA ]. Furer, it found e relief sought in Appellants complaints included: (1) a declaratory judgment at e counties supervisor apportionment schemes (as existing when e complaints were filed) violate e one person, one vote principle, (2) an injunction barring e counties from conducting eir 2011 elections on e en existing supervisor lines, (3) an injunction extending e 2011 statutory candidate qualification deadline indefinitely and until new district lines are implemented, (4) an injunction requiring at any new district lines conform wi applicable law[], (5) an attorney s fee award, and (6) general (but unspecified) relief. There is no request for special elections or any oer post election relief. [Id. (internal footnote omitted)]. Based on ose facts, e District Court held Appellants claims became moot when all e events ey sought to enjoin occurred. [Id. at p. 10, ROA