Wednesday, May 11, 2011

What happened yesterday afternoon in the redistricting hearing

I didn't update what happened yesterday afternoon in the redistricting hearing, and my treatment of the Lennep testimony wasn't complete, so I will fix that now.  (Here's a link to the morning update.)

Madeline Lennep's morning testimony that enacting a new plan would be very difficult in light of the use of the Statewide Elections Management System (SEMS) was the Secretary of State's attempt to get the Court to decide to run under the old lines out of sheer practicality.  She was cross-examined by several attorneys, including Sam Begley, who represents the Mississippi Democratic Party.  Begley got Lennep to admit that she trained county officials from last fall through March on how to go about implementing redistricting plans this year.  Also, Lennep had helped to prepare a SEMS redistricting processing guide which was completed in March of this year and distributed to county elections officials.  Then Begley hit her with an RFP for support services for SEMS, dated last month.  The contract for SEMS support services was awarded to HP, Lennep's former employer, on April 28th.  So it's not like the Secretary of State's office hasn't contemplated implementing the redistricting plans.  Heck, they've even hired folks to help.

Lennep was also examined by AG Jim Hood regarding her conversations with circuit clerks.  Lennep admitted that she'd had conversations with circuit clerks as late as last Friday, and none of them told her they couldn't get the job done.  Further, no circuit clerk told Lennep that they'd prefer to have two elections. Under further cross by Hood, Lennep went on to reveal that she was paid $70/hour by the State for her contract work, and that last year she made approximately $100,000.  She also agreed that GIS information would greatly speed the implementation of new plans, especially if PEER would provide the new map information in a district layer format which could be applied directly over the top of the GIS maps.  (Remember this point.)

Under cross by John Hawkins, attorney for Senate Democrats, Lennep conceded that June 17th is the deadline for getting information into SEMS so that military absentee ballots can go out.

And that was all before lunch.

After lunch, the Copiah County Circuit Clerk testified. She serves as the president of the Circuit Clerks Association, and said it would only take a couple of weeks to make the changes required by the Joint Committee plans and insert the information into SEMS.  She said the supervisor districts in Copiah County are currently being redrawn, and that that redistricting will be much more involved than legislative redistricting. That being said, they have no plans to delay any elections in the supervisor races.  She said that the smaller counties in Mississippi might not have access to GIS information, but they also would not have to make as many changes.  The larger counties, which presumably would have the most changes to make, would have access to GIS information, almost completely automating the task of redistricting those counties.

The next witness was Chuck Carr of the Central Mississippi Planning and Development District in Jackson.  It's a GIS outfit that serves 7 central counties.  Thus far this year, CMPDD has worked with Madison, Rankin, Copiah, and Simpson counties on redistricting.  Carr said that CMPDD had GIS data for all 82 counties, which could presumably be used to aid all counties in the redistricting process.  That's huge, because if there's GIS data available for all counties, and PEER releases the map layer data (don't know why they wouldn't), then redistricting is all of a sudden much, much easier to implement.

It then came time for closing statements....

Carroll Rhodes, attorney for the NAACP, made an interesting argument that Section 5-3-103 of the Mississippi Code contemplates each chamber having control over its own redistricting process.  In particular, Rhodes focused on the language "The committees to which the plans are referred shall report their recommendations to their respective houses no later than the forty-fifth day of the legislative session." He contends that the words "their respective houses" means each house should have sole control of its maps. It is an interesting argument, and one I had not considered before.

Steve Thomas, representing Governor Barbour, argued that the Joint Committee plans are not "legislative plans" because they did not pass both chambers. He says that, as a result, if the Court were to implement the Joint Committee plans, they would be court-ordered plans. That's a significant distinction, he said, because courts must adhere to de minimis deviation when implementing their own plans. Judge Jolly interrupted Thomas at that point, and said "A court-ordered interim plan doesn't have to adhere to that, does it?" Thomas conceded it did not, and then shifted gears to another point, arguing that map drawing is easy, therefore the Court should give it a go. Thomas got animated at one point and said implementing the Joint Committee plans would "offend" him because the Court would be implementing a plan rejected by the Legislature. I don't believe the Court cared for Thomas saying they would "offend" him by ruling contrary to his position.

When Justin Matheny took the podium on behalf of the Attorney General, Jolly went to his concerns over language in Reynolds v. Sims, which Jolly said could be read to say that a plan must be 10 years old before a court could take remedial measures. Matheny argued that the presentment of decennial census numbers that prove malapportionment require the Court to take remedial measures.

Robert Gibbs then argued that the Court would have to find Section 254 of the Mississippi Constitution unconstitutional if the Court wished to implement plans this year. Jolly then used the only adjective I could recall him using all day, when he said that everyone agrees the current districts are "terribly malapportioned." I think this is a tip off that he believes the current districts are violative of one man, one vote, and that he will likely decide in favor of new lines.

After Gibbs finished, Russ Latino attempted to speak, and Jolly shut him down. Latino then left the room hurriedly, with Corey Wilson in tow. Latino represents the Mississippi Tea Party, who filed an amicus brief. Wilson represents House intervenors Sid Bondurant, Becky Currie, and Mary Ann Stevens. Those parties all want to run under the old lines, so presumably Wilson went back in carrying a bit of water for Latino. (As I've mentioned before, Hosemann's position, which Latino and Wilson are agreeing with, is the ideologically consistent "small government" conservative argument in this litigation.)

Steve Seale then began his argument on behalf of the Mississippi Republican Party, but he was quickly interrupted by Jolly, who asked "So what is your argument?" Jolly kept peppering Seale with questions, which kept Seale from getting on a roll in his argument. With respect to Section 254 of the Mississippi Constitution, Jolly asked "So who failed the constitutional process? The legislature or the Governor?" Jolly then went on to ask "Why should we get the state out of the mess it created for itself?"

Begley then summed up his position, and Corey Wilson followed him. Notably, Wilson made the statement that the current districts do not create a one man, one vote problem. That was a shocker to most folks in the room. Wilson's arguments were in line with his previous filings.

Rob McDuff then closed, and said he took no position on whether or not the Court had to order a remedy right now. He did say that if the Court were to order a remedy, that remedy should be the Joint Committee plans. This was a crafty argument, as it forces the Court to either decide that the current districts are not unconstitutionally malapportioned (presumably meaning only one election), or that they are and order new plans be implemented (presumably the publicly-vetted Joint Committee plans). The implementation of new plans would cure the one man, one vote problem, and furthermore, would allow the Legislature another shot at redistricting last year. That would likely avoid a "run twice" scenario, as those elected in the Joint Committee districts would be hard-pressed to vote to run in November of 2012.

Andy Taggart, on behalf of Sen. Terry Burton, went last. He pointed the Court to language in McDaniel v. Sanchez that he said addressed Jolly's concern over the Reynolds v. Sims language. Taggart argued forcefully on behalf of the Senate plan and the public input that went into its creation. When asked if the same arguments for adoption could be made about the House plan, Taggart said "Yes."

Judge Jolly then ended by saying that the Court would issue a ruling in time for everyone to make decisions about whether or not to run well in advance of the June 1 qualifying deadline. In light of that, I expect a ruling by the end of this week. As for what that ruling will be, I think it's quite obvious this Court will not be drawing lines as Gov. Barbour and the MSGOP wanted. The Court will either implement the Joint Committee plans or issue an order requiring elections to be held under the current "terribly malapportioned" districts. I'm handicapping this at 60/40 in favor of the Court implementing the Joint Committee plans, as they said they were inclined to do in their previous order. Nothing really happened at the hearing that, in my view, would sway the judges from that opinion.

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