First, Burton argues that the Court should defer to the Legislature if there is still time for a plan to be legislatively enacted. Here's an excerpt from this portion of Burton's Response:
The Mississippi Legislature has not failed to “reapportion according to constitutional requisites.” White v. Weiser, 412 U.S. 783, 794-95 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)) In stark contrast, the work of the Mississippi Legislature in the 2011 regular session showed both chambers fully respecting federal constitutional and statutory law. The stalemate over the House Plan was not a product of unconstitutional motives by purpose or effect, but simply disagreements arising out of the inherent political and partisan nature of the reapportionment process. The United States Supreme Court has recognized that the political nature of reapportionment proceedings is the very reason why federal courts should defer the task to the legislatures of the states.Second, Burton argues that there is still time for the Legislature to enact a plan. Burton relies on his affidavit that negotiations are ongoing, and that the possibility exists for a legislative solution, to support this position.
On the third point, Burton argues that the Senate plan, while not passed as a Joint Resolution in accordance with Section 254 of the Mississippi Constitution of 1890 (which guides redistricting efforts), should be treated as a "legislatively enacted plan". This is likely one of the core issues with which the Court is struggling. I can't efficiently state this any more effectively than Taggart did, so I'll add this lengthy quote from the Response:
The United States Supreme Court looked at the issue of whether a proposed redistricting plan should be considered “legislatively enacted” in the case of Wise v. Lipscomb, 437 U.S. 535 (1978). In Wise, the Court considered whether a reapportionment plan presented by the Dallas City Council if adopted by the trial court was legislatively enacted, or was judicially created. In the Court‟s plurality opinion, Justice White wrote that the plan was in fact legislatively enacted even though the Dallas City Council did not have the authority to reapportion itself. Justice Powell (joined by the Chief Justice, Justice Blackmun, and Justice Rehnquist), writing in a concurring opinion, went further to say that whether the council had the power to reapportion itself was irrelevant in a determination of whether the plan was legislatively enacted. “The essential point is that the Dallas City Council exercised a legislative judgment, reflecting the policy choices of the elected representatives of the people, rather than the remedial directive of a federal court.” Wise, 437 U.S. at 548. In short, a majority of the Court in Wise expressly found that a redistricting plan, even if not perfectly adopted according to state law, was still a “legislative plan” if approved by a legislative body of the state.
The Court once again took up this issue in McDaniel v. Sanchez, 452 U.S. 130 (1981). “As Justice Powell pointed out in Wise v. Lipscomb, [citations omitted], the essential characteristic of a legislative plan is the exercise of legislative judgment. The fact that particular requirements of state law may not be satisfied before a plan is proposed to a federal court does not alter this essential characteristic.” McDaniel, 452 U.S. at 152.
In the case now pending, the Senate Plan, passed by both chambers of the Mississippi Legislature and presented to this Court by Senator Burton, is most certainly an expression of the will of the people through the “exercise of legislative judgment.” Id. Granted, the Senate Plan did not pass all the state law requirements to be considered law in Mississippi, because it was not part of a joint resolution adopted by the Mississippi Legislature as required by §254 of Mississippi's Constitution. Under the directives of Wise and Sanchez, though, the Senate Plan is quite clearly a “legislatively enacted plan” for purposes of this Court‟s consideration and use.
Burton's fourth point is that the Court, if imposing an interim plan, does not have to seek preclearance from the Justice Department under the Voting Rights Act. Burton cites several cases in that portion of his Response that I need to re-read before I pass judgment on the strength of that particular argument.
In closing, there is one issue that is likely front and center on the three judges' minds right now. The issue is whether the Court should defer to plans crafted by the Standing Joint Legislative Committee on Reapportionment Committee and passed out of each respective chamber of the Legislature after thousands of hours of work and a multitude of public hearings around the state. Burton, through Taggart, makes a very strong case for the Court doing just that.