Sen. Terry Burton asks Haley Barbour to call special session on redistricting

In a very interesting move, Sen. Terry Burton (R-Newton), the Chairman of the Joint Redistricting Committee, wrote Gov. Haley Barbour yesterday and asked him to call a special session to focus on redistricting.  Burton says he believes he and Rep. Tommy Reynolds (D-Charleston), the Vice-Chair of the Joint Redistricting Committee, can reach a compromise that will avoid having the federal three judge panel draw the lines.  Read the letter for yourself below:

Sen. Terry Burton's letter to Gov. Haley Barbour

*Scribd, which hosts the pdfs for this blog, has been slow to process new uploads this afternoon for some unknown reason.  If the link leads you to a page that says the document isn't available or is still processing, check back soon.

Sen. Terry Burton chimes in on the MSGOP's Motion to Appoint an Expert

Yesterday, Sen. Terry Burton (R-Newton) filed his Response in Opposition to Appointment of an Expert. Through Andy Taggart, his attorney, Burton argues several interesting points.

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.

Clarion-Ledger editorial again weighs in on redistricting, and where the legislative process currently stands

Today's Clarion-Ledger has an editorial on redistricting, which I believe fairly sums up the situation. In it, they say that Republicans want the courts to draw new maps (true) and that Lt. Gov. Phil Bryant (R) prevented the Senate from voting on a compromise plan sent over by the House late in the session (also true). Here's the money quote:

So, out of this whole dysfunctional, partisan mess, (Rep. Tommy) Reynolds and (Sen. Terry) Burton are attempting to salvage an agreement.

That is exactly what is happening, with more than a little help from other legislators of both parties. The editorial goes on to call on Speaker Billy McCoy (D-Rienzi) to approve whatever compromise Reynolds and Burton work out, and for Lt. Gov. Bryant to allow a vote. All indications are that Speaker McCoy is all for the compromise maps that are floating around right now, and that Lt. Gov. Bryant may be ready to fold his tent on this issue. We shall see.

Some say that Gov. Haley Barbour has to first agree to call a special session. I don't see Gov. Barbour as being willing to stand in the way if an agreement is reached. It just doesn't pay any dividends for him politically to do so.

As a side note, it is interesting that fiercely partisan Republicans are attacking the heck out of Sen. Terry Burton (R-Newton) right now as he attempts to work out a compromise.

NAACP responds to Sen. Terry Burton's Motion to Intervene

NAACP says "let him in, Judge":

NAACP's Response to Sen. Terry Burton's Motion to Intervene

My guess? He'll be allowed to intervene without much trouble.

Sen. Terry Burton's position, summarized

I've had a chance to glance through Sen. Terry Burton's various court filings in NAACP v. Haley Barbour, et al, and here's what he wants:

Intervention - Burton wants to be allowed to become a party to the suit so that he can have a seat at the table as the litigation moves forward. He, like the other successful intervenors before him, asks for both permissive intervention and intervention as of right. I believe he has a protectable interest in this litigation, and that his intervention should and will be granted.

Declaratory Judgment - Burton asks the court, in a counterclaim, to find that the Senate should be allowed to proceed to elections this year under the Burton plan. The reasoning is that the Burton Senate map passed both chambers, but didn't become law because of the House plan that was attached to it. It's an inventive argument, but one I believe destined to failure. If the court is to accept Burton's logic here, that the Burton plan's procedural death should be ignored, then the court must ask itself how far to take that logic. As the Mississippi Constitution of 1890 calls for the plans to be passed as a joint resolution, the court could just as easily allow both the House and Senate to run under the plans that passed each body. While that would be the easy path for the court, I do not believe that to be the court's task here. As I understand precedent in this area, the court does not get to make value judgments on proposed but not passed maps. The court gets to make a determination as to whether the current maps are unconstitutionally malapportioned. Then the court gets to assemble new maps with mathematically insignificant population deviation, and cannot take party or incumbent protection into account. That ties the court's hands and prevents them from choosing a plan with deviation north of 1-2%, which precludes the court from picking any current plan of which I am aware.

Sen. Terry Burton's Memorandum in Support of his Motion to Intervene

Here's Sen. Burton's memo in support of his Motion to Intervene. Burton is being represented by Andy Taggart, Clarion-Ledger columnist, author, and local lawyer.

Memo

Analysis as soon as I get a chance to read all of this.

***BREAKING*** - Sen. Terry Burton (R-Newton) seeks to intervene in NAACP v. Haley Barbour, et al

Sen. Burton's Motion to Intervene

Sen. Burton's Affidavit

Sen. Burton's Proposed Answer and Counterclaim

Senator Burton is seeking a declaratory judgment from the court allowing the Senate to run under the plan it passed. Interesting.... More to come

A summary of what happened in the Senate redistricting skirmish today, and what it may mean

This morning, Sen. Hob Bryan (D - Amory) offered a new resolution containing the Burton Senate map, and moved that the Senate consider the resolution as a "committee of the whole."  By acting as a committee of the whole, the resolution would not be sent to committee, where the Burton map had been unsuccessful before.  It takes a 2/3rd's vote to go into a committee of the whole.

Sen. Billy Hewes (R-Biloxi) made an effort to prevent such a vote, and the Senate was hastily adjourned for a brief period, during which Republican senators met in Lt. Gov. Phil Bryant's office to figure out how to proceed. Sen. Bryan's maneuver apparently caught GOP senators and Lt. Gov. Bryant by surprise, and they needed to caucus to figure out their plan.

Upon returning, Sen. Bryan resumed his speech in favor of going into a committee of the whole by affirming the need to keep the Burton plan out of the hands of Lt. Gov. Bryant, who double-referred the Burton plan earlier in an effort to kill it.  Sen. Bryan said that never before in our state's history had a redistricting plan been double-referred.

Next, Sen. Bryan spoke of the Legislature's duty to complete redistricting, and he cited what an unnamed GOP senator had said.  Referring to the House's refusal to go to conference on the matter, this unnamed GOP senator allegedly said that the public would now blame the House, and that the Senate could "wash its hands of it."  Bryan reminded the floor of the origin of that phrase, and how history has treated that person.  (He was speaking of course, of Pontius Pilate.)

After the speech, the vote was held, and the motion to enter the committee of the whole failed, with 25 nays and 23 yeas.  Sens. Briggs Hopson (R-Vicksburg) and Terry Burton (R-Newton) voted in favor of entering the committee of the whole.

So here's what all of this may mean:

First, the Senate Republicans had the opportunity to send a plan back over to the full House, which would give their Republican brethren in the House the opportunity to address their concerns over the House map on the floor.  In effect, this would have restarted the legislative process that has died.  That means the Senate GOP can no longer "wash their hands" of the redistricting process.

Second, Sen. Bryan either knew of some possibility for compromise on the House side or wanted to at least leave the door open for some.  Hewes and Bryant slammed that door.

Third, the number of nay votes was interesting, and that's all I'll say about that.

Redistricting winners and losers thus far (***Updated to include more potential losers***)

Here's a breakdown of the redistricting winners and losers thus far:

Winners


House Democrats - They've succeeded in creating a plan that does not gift wrap the Speaker's race for Republicans, and that's a big win.

Sen. Terry Burton - He's shown enormous backbone in resisting efforts by Lt. Gov. Phil Bryant to take over the redistricting process.  People love a winner, and that's what Burton is.  By rebuffing the Lt. Gov., Burton has grown in stature in a Mississippi Republican Party that is quickly entering its "Post-Haley" era.

GOP gubernatorial candidate Dave Dennis - Watching Phil Bryant stumble through this process has to be similar to what Kirk Fordice felt when Pete Johnson fumbled away the Republican nomination in 1991.  I have a feeling Dennis is waiting in the wings as this play reaches its finale.  He wins no matter how this turns out.

GOP lieutenant governor candidate Tate Reeves - See Dave Dennis above, as Reeves' primary opponent, Sen. Billy Hewes, has been caught up in the mess as a Bryant lieutenant in the redistricting process.

Losers

House Republicans - They were on the record as having helped draw districts that they favored, and the majority of them stood ready to vote for the House consensus plan.  Last-minute arm twisting from the MSGOP (on behalf of Lt. Gov. Phil Bryant) put them in the uncomfortable position of voting against a plan they created and really liked.  Because most of them had planned to vote for the House consensus plan until the last minute, they had no alternative plan ready.  That led to the late entry of the Republican alternative that seemed to garner only halfhearted support.

Lt. Gov. Phil Bryant - Being on the losing side of a battle this highly publicized is embarrassing enough.  But losing it while you are the leader of the Republican Senate and engaged in a race for the Republican gubernatorial nomination is a few very large degrees different.  It was an utter failure of leadership, and not very Barbour-like in a party desperately searching for its next Barbour.  Bryant created a huge opening for Dave Dennis to exploit.  And make no mistake about it, there is no "win" left for Bryant at this point in the game.  Bryant either loses the vote in the Senate and the plans go into effect, or he forces the state to spend millions on new elections and court battles.  Not a great position for a fiscal conservative to put himself in. Especially in a battle he chose to fight.

Sen. Billy Hewes - See above, except Hewes loses a bit less, as Bryant is getting most of the airtime while this mess is going down.  He's therefore less likely to catch as much flak from GOP primary voters, but he'll still catch a good bit if he's part of the reason the state has to spend millions of extra dollars.  If Tate Reeves is on his game, Hewes could pay dearly for voting to invite conference.

Sen. Joey Fillingane - Fillingane led the charge for Bryant on this, and burned a few bridges along the way with senators who now hold more sway than he does.

Potential losers (Updated at 5:24 p.m.)


Sen. Buck Clarke (R-Hollandale), Sen. Nolan Mettetal (R-Sardis), Sen. Briggs Hopson (R-Vicksburg), Sen. Ezell Lee (R-Picayune), and Sen. Lydia Chassaniol (R-Winona) - If the Senate does not concur and courts wind up drawing the lines, it's very tough to imagine a situation in which these senators manage to make it back, either because they will wind up in majority minority districts or because their districts will move to another part of the state altogether. If the Senate does not concur, these folks will be heading home.

As promised, more on the Bryan speech on the Senate floor yesterday

We followed the Senate redistricting debate live yesterday via Twitter, and remarked on Sen. Hob Bryan's (D-Amory) masterful speech. The limitations of Twitter, however, prohibited us from being able to show you the district comparisons that drew laughter and gasps from the floor over the Bryant plan. Let's look at what Sen. Bryan was discussing.

The fireworks started when Sen. Bryan mentioned that he'd overheard a fellow senator on talk radio complaining about the Burton plan for the Pine Belt, and how it had split four counties with one outrageously gerrymandered district that ran from the Pearl River County line north through the western portion of Lamar County, then through part of Forrest County, next through the heart of Covington County, and finally finishing its assault on the senses by amputating the northern half of Jefferson Davis County.  The caller was angry over this district, and said that he simply couldn't support the Burton plan due to such gerrymandering.  Sen. Bryan then placed Phil Bryant's plan for the Pine Belt on the screen:

Ummm, starts at Pearl River County line, check. Western portion of Lamar County, check. Part of Forrest County, check. Up through the middle of Covington County, check. Over to the northern half of...HEY WAIT A MINUTE!!! When that picture hit the screen, laughter erupted on the Senate floor, and Lt. Gov. Bryant looked physically ill.

Sen. Bryan then went on to speak about the Burton plan's treatment of the same area.  Here's District 41 under the Burton plan.  Notice how Jefferson Davis County is whole.

Then it came time to look at Lamar County under the Bryant plan.  Aside from the oddly-drawn district above, here's what Lamar County would have looked like under the Bryant plan (notice how this district goes into Forrest County):

And here's what Lamar County looks like under the Burton plan:

So, that's what sent the Bryant plan supporters scurrying for cover yesterday, leaving only 16 to stand by Bryant as the vote came down.

Republicans jumping ship on Phil Bryant

Andy Taggart, longtime Republican operative, wrote an open letter yesterday that denounced Lt. Gov. Phil Bryant's approach to redistricting.  Quoted in a lead story in the Clarion-Ledger, Taggart said he had:

"very grave concerns as a matter of basic fairness about the alternative plan's purposeful dilution of black votes in Forrest and Jefferson Davis County."

Taggart went on to warn that if the Legislature doesn't approve maps for both houses, then lawyers for the Justice Department will have significant input in drawing the maps. Accurately, Taggart deduces that would lead to maps more favorable to Democrats.

Then the story turns to Sen. Terry Burton (R-Newton), who says the Senate's plan makes more sense than Bryant's plan. One of the main differences between the Senate plan and Bryant's plan is the creation of a majority-minority district in the Hattiesburg area. Bryant refuses to draw such a district, even though Hattiesburg is a majority black city. Bryant's obstinance, should his plan pass, is what will lead to his plan's rejection by the Justice Department.

So that's one key Senate Republican and Gov. Fordice's Chief of Staff on the record against the Bryant plan. Let's see how many follow their lead.

Senate plan garners unanimous support so far

In front of a packed committee room, the Senate Subcommittee of the Standing Joint Legislative Committee on Reapportionment passed its plan without opposition. Immediately following, the Standing Joint Legislative Committee on Reapportionment (comprised of both Senate and House members) unanimously approved the Senate plan.

This followed arm wrestling between Lt. Gov. Phil Bryant (R) and Sen. Terry Burton (R-Newton), chair of both the Subcommittee and Committee mentioned above. Bryant wished to, and perhaps still will, offer his own plan that does not include a majority-minority district in the Hattiesburg area. Sen. Burton, perhaps anticipating a battle over that issue, said that one of the recurring themes at redistricting town meetings across the state was the desire for the creation of a majority-minority Senate district in Hattiesburg.

When this battle moves to the Senate floor, the question will be this: can Phil Bryant change the votes of the 5 Republicans on the Reapportionment Committee? If not, the plan passed today will in all likelihood pass.

Phil Bryant breaking his promise?

Bobby Harrison's got a great article up on the next step in the redistricting process.  As the Senate Legislative Redistricting Committee prepares to release the plan its been working on all year, Lt. Gov. Phil Bryant (R) is looking to unveil a competing plan.  The unprecedented move will no doubt be the source of Senate fireworks early this week.

Sen. Hob Bryan (D-Amory) is quoted in the article as saying, "No past lieutenant governor has ever done this - opposing a plan produced by his committee chair and to be working against his committee chair." For his part, Sen. Terry Burton (R-Newton) says he'll plow forward with the plan his bipartisan committee has drafted. Sen. Burton believes the committee's plan will be approved by the Department of Justice, while Bryant's will not. (The U.S. won't let Mississippi make changes to the electoral process without oversight because of Mississippi's horrid history of race relations.)

The fact that Bryant is crafting a plan that would be unfair to minorities isn't surprising. After all, he's spent the last few days expressing confusion over the federal law. The NEMS360 article says:

In an Associated Press story, Bryant, who is running for governor, was quoted as saying "So the Obama Justice Department's going to tell us how we ought to be doing things in Mississippi?"

He went on to say he "was offended by the fact that the federal government does not trust members of this Legislature to draw these lines."

I guess we shouldn't be shocked by Bryant's sudden realization that the United States of America doesn't trust Mississippians to draw their own lines. It's only been law since 1965, but Bryant's not exactly known within the GOP as the brightest bulb, so it could have slipped right by him.

Another thing that has apparently slipped by Bryant is the promise he made in 2008. Upon taking office, Bryant promised he wouldn't redistrict in a manner unfair to Democrats. In exchange for that Senate Democrats, who were then in the majority, agreed not to strip Bryant of his power. Here's what Harrison's article says:

When Bryant was elected lieutenant governor in 2007, the Senate was composed of 28 Democrats and 24 Republicans. For the commitment of the Democrats not to try to craft Senate rules to strip Bryant of many of his powers, which are derived from the Senate rules, Bryan said the new lieutenant governor pledged not to redistrict the Senate in a manner that harmed Democrats.

Bryan said he does not believe the plan proposed by the lieutenant governor honors that commitment.

Is breaking your promises any way to start a bid for Governor?