Case 3:11-cv-00159-TSL -EGJ -LG Document 62 Filed 04/14/11 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE

NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,
THOMAS PLUNKETT, ROD WOULLARD,
and HOLLIS WATKINS, on behalf of
themselves and all other similarly situated PLAINTIFFS

v. NO. 3:11-cv-159 CWR FKB

HALEY BARBOUR, in his official capacity as

Governor of the State of Mississippi, JIM HOOD,
in his official capacity as Attorney General of the
State of Mississippi, and DELBERT HOSEMANN,
in his official capacity as Secretary of State of the
State of Mississippi, as members of the State Board
of Election Commissioners; THE MISSISSIPPI
REPUBLICAN PARTY EXECUTIVE COMMITTEE;
THE MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE
COMMITTEE; and CONNIE COCHRAN, in her official
Capacity as Chairman of the Hinds County, Mississippi
Board of Election Commissioners, on behalf of herself
and all others similarly situated DEFENDANTS
______________________________________________________________________________

MOTION OF THE MISSISSIPPI REPUBLICAN PARTY

EXECUTIVE COMMITTEE TO STRIKE EXHIBITS
TO MOTION FOR PRELIMINARY INJUNCTION
______________________________________________________________________________

COMES NOW the Mississippi Republican Party Executive Committee (hereinafter “the

Republican Party”), one of the defendants in this action, and respectfully moves to strike from

evidence the exhibits to the motion for a preliminary injunction [Dkt. 18] filed by the National

Association for the Advancement of Colored People (hereinafter “NAACP”) and the individual

plaintiffs herein, and would show unto the Court in support thereof the following:

1. In order to evaluate the admissibility of the affidavit of Thomas Plunkett and the

documentary exhibits attached to the motion for preliminary injunction, this Court needs to
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determine which facts are in dispute. Plaintiffs’ complaint [Dkt. 1] requests a declaratory

judgment that the districts used to elect members of the Mississippi Senate and House of

Representatives since 2003 violate federal law. The answer of the Republican Party [Dkt. 9]

admits “that this Court may now enter a declaratory judgment that the existing redistricting plans

for the Mississippi Senate and Mississippi House of Representatives are unconstitutionally

malapportioned.” No defendant takes a contrary position. Even Secretary of State Delbert

Hosemann, at page 3 of his motion to dismiss [Dkt. 41], agrees “that the current legislative

districts, drafted and implemented in 2002, are malapportioned based on 2010 census data.”

2. The only dispute before this Court is not whether the existing districts are

malapportioned, but what to do about it. Plaintiffs’ motion does not seek the imposition of any

affirmative remedy; rather, it only seeks “a preliminary injunction enjoining legislative elections

using the current benchmark districts.” [Dkt. 18 at 15]. However, plaintiffs acknowledge, as

they must, that malapportioned districts can sometimes be used to conduct legislative elections,

because that is exactly what this Court did twenty years ago in Watkins v. Mabus, 771 F.Supp.

789 (S.D. Miss.), aff’d in part and vacated in part, 502 U.S. 954 (1991). That is exactly what

Secretary of State Hosemann’s motion to dismiss asks this Court to allow now.

3. Plaintiffs seek to distinguish Watkins in ¶18 of their motion for preliminary

injunction. “Unlike Watkins, the court, here, has sufficient time to conduct hearings, draft

criteria, and draft plans prior to the scheduled election without disrupting the state election

process.” This allegation is what plaintiffs must prove to distinguish Watkins and to secure a

preliminary injunction against the use of existing districts this year. The Republican Party

suspects that sufficient time will be available for this Court to draft a constitutional remedy,

particularly if the trial takes place during the last week of April, as many parties have requested.

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However, no trial is yet scheduled, and plaintiffs have offered no evidence to support their

assertion that a remedy can actually be drafted in time for candidates to qualify on June 1, 2011.

4. With these issues in mind, the exhibits to the motion for preliminary injunction

should be stricken for the principal reason that they are irrelevant to the issues before the Court.

The population characteristics of the existing districts are irrelevant, because all parties admit the

malapportionment. In order for this Court to approve new districts, it needs, not data on the old

districts, but census data for counties, precincts, and census blocks across the State. The relevant

evidence is completely absent from the motion for preliminary injunction.

5. Moreover, the documentary exhibits themselves are hearsay. The application of

census data to the existing districts was made by the Joint Legislative Committee on

Redistricting and Reapportionment, which is not a party to this litigation. The declaration of

Thomas Plunkett cannot and does not validate the hearsay attached to the motion. Thomas

Plunkett does not purport to be an expert, and his opinions on legal matters, as set forth in his

affidavit, are irrelevant and inadmissible.

6. The only potentially relevant exhibit attached to the motion for preliminary

injunction is a calendar prepared by Secretary Hosemann. If Secretary Hosemann will

authenticate the exhibit, the Republican Party would then have no objection to its consideration.

WHEREFORE, PREMISES CONSIDERED, the Republican Party respectfully moves

this Court to strike the exhibits to plaintiffs’ motion for preliminary injunction as being

inadmissible in evidence.

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Respectfully submitted, this the 14th day of April, 2011.

MISSISSIPPI REPUBLICAN PARTY

EXECUTIVE COMMITTEE

By: /s/Michael B. Wallace

MICHAEL B. WALLACE (MB No. 6904)
C. STEVENS SEALE (MB No. 6688)
JAMES D. FINDLEY (MB No. 103649)
WISE CARTER CHILD & CARAWAY
Post Office Box 651
Jackson MS 39201-0651
(601) 968-5534

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court using
the ECF system which sent such notification of such filing to the following:

Carroll Rhodes, Esq.

Law Offices of Carroll Rhodes
Post Office Box 588
Hazlehurst, MS 39083-0588

Robert L. Gibbs, Esq.

Matthew W. Allen, Esq.
Brunini Grantham Grower & Hewes
Post Office Drawer 119
Jackson, MS 39205-0119

Jack L. Wilson, Esq.

Stephen L. Thomas, Esq.
Bradley Arant Boult Cummings, LLP
Post Office Box 1789
Jackson, MS 39215-1789

Samuel L. Begley, Esq.

Begley Law Firm
Post Office Box 287
Jackson, MS 39205-0287

Harold E. Pizzetta, III, Esq.

Justin L. Matheny, Esq.
Office of the Attorney General
Post Office Box 220
Jackson, MS 39205

Robert Bruce McDuff, Esq.

Robert McDuff Law Office
767 N. Congress Street
Jackson, MS 39202-3009

Crystal W. Martin, Esq.

Precious Martin Sr. & Associates
Post Office Box 373
Jackson, MS 39205-0373

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R. Andrew Taggart, Jr., Esq.

Clay B. Baldwin, Esq.
Taggart, Rimes & Usry, PLLC
1022 Highland Colony Pkwy, Ste. 101
Ridgeland, MS 39157

This, the 14th day of April, 2011.

/s/ Michael B. Wallace

MICHAEL B. WALLACE