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Hinds County Republican Party v. Hinds County

United States District Court, S.D. Mississippi, Northern Division

January 8, 2020




         In this case, the Hinds County Republican Party and a Republican elected official in Hinds County allege that the County's Board of Supervisors violated state and federal law when it redrew the boundaries of several electoral districts. Having considered the evidence, the arguments, and the law, the Court presents its findings and conclusions below.

         I. Factual and Procedural History

         A. Background

         Hinds County is the largest county in Mississippi by population. The County is home to the City of Jackson (the State's most populous city), the State Capitol, and much of the machinery of State government, with all of the infrastructure that entails.

         Most of the County's residents are African-American. The remaining residents are largely Caucasian. The County has relatively few citizens of other races and nationalities.

         The evidence shows that most of the County's black residents vote to elect Democrats into office, while a great portion of the County's white residents vote to elect Republicans into office. Between the demographics and this bloc voting, most elected officials within Hinds County-such as the County Supervisors, the Mayor of Jackson, City Councilpersons, etc.-are African-American Democrats.

         Hinds County has five Supervisors. One Supervisor is elected from each of Districts One through Five. When this suit was filed, the Supervisors for Districts One, Two, Three, and Five were black Democrats. Supervisor Phil Fisher, from District Four, was a white Republican. Fisher is now the Mayor of Clinton, Mississippi.[1] The District Four Supervisor was a white Republican from before this suit was filed up until the November 2019 election.

         In the wake of the 2010 Census, the Board of Supervisors was required to redraw the boundaries of County-level elected offices. The Board hired Derrick Johnson as a consultant to amend the maps. A total of 119 precincts in the County could be adjusted. Johnson presented several different maps to the Board, Maps 1-4. The Chairman of the Hinds County Republican Party proposed an alternative map-Map 5. On February 28, 2011, the Board voted to approve Map 1.

         All agree that the County was due to be redistricted to some extent. Two of the five Supervisors' Districts were malapportioned after population shifts. It is the means of the redistricting, i.e., how the maps were drawn, that is disputed. The plaintiffs in this suit, the Hinds County Republican Party and Fisher, allege that the Board redistricted to frustrate white voters, white elected officials, and Republicans. The County responds that the majority of the Board redistricted in the interests of partisanship and incumbency: in other words, that they redrew the lines to beef up their districts with more Democrats, so as to increase the likelihood of their own reelection.

         The plaintiffs filed this case in September 2012, slightly less than a year after the county elections, but on the cusp of the elections for the County Election Commissioners. The Chairman of the Hinds County Republican Party acknowledged in his testimony that the suit was “last minute.” A four-day hearing on preliminary injunctive relief was held the following month. This Court denied the plaintiffs' motion from the bench. The election was upon us and the evidence was not strong enough to warrant an injunction. Accord Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014).

         There was significant doubt as to whether either side wished to proceed with the case after the hearing. In the first half of 2013, the parties failed for five months to contact chambers and schedule a pretrial conference. In the second half of 2013, the plaintiffs failed for five months to comply with the Scheduling Order, necessitating a Show Cause Hearing in 2014.

         The parties ultimately decided to take no discovery and, later, decided that a trial was unnecessary. They instead submitted their case for adjudication on the hearing record and additional evidence produced via affidavit. This case was paused for years while the parties ordered the hearing transcript, secured their affidavits, and filed their briefs.

         Unfortunately, this case then sat dormant for additional years as we awaited the Supreme Court's decisions in Gill v. Whitford, 138 S.Ct. 1916 (2018) and Rucho v. Common Cause, 139 S.Ct. 2484 (2019), cases the parties and the Court hoped might provide additional guidance in redistricting law.[2] The guidance that came was partial. Still, this Court is ultimately responsible for the delay in this case. The Court expresses its regret to the parties and the public for the length of time it took to reach a decision in this important matter.

         Despite the election having come and gone, and despite a new cycle of redistricting on the horizon, recent case law from the Fifth Circuit indicates that this dispute is not moot. See Thomas v. Bryant, No. 19-60133, Docket No. 142 (5th Cir. Sept. 23, 2019). The Court will begin by describing the evidence the plaintiffs presented at the hearing on preliminary injunctive relief. The defendants' evidence, to the extent it is relevant, will be mentioned where necessary.

         B. The Plaintiffs' Evidence

         The plaintiffs' attorney argued in his opening statement that the Supervisors engaged in “a decided, deliberate effort to violate the rights of white people.” More colloquially, he said, “they blackened up District 4 and 1.” At the time of the hearing, seven white people held County-level elected offices: Circuit Clerk Barbara Dunn, County Court Judge William Skinner, District One Election Commissioner Marilyn Avery, District Four Supervisor Phil Fisher, District Four Constable Jon Lewis, District Four Election Commissioner Connie Cochran, and District Four Justice Court Judge Jimmy Morton.[3]

         Commissioner Avery was the plaintiffs' first witness. She testified that she had served as Election Commissioner for approximately 16 years and had qualified to run for re-election in 2012. Out of the 119 Precincts in Hinds County, she said, the Supervisors had moved nine of them. All five Districts were affected in some way. In her District specifically, the Supervisors had taken out Precinct 1 and inserted Precincts 39 and 41. Commissioner Avery opposed the changes.

         Testimony cast doubt on whether redistricting would actually injure Commissioner Avery. She admitted that she had “not campaigned at all.” She did not elaborate, but a possible explanation for that is the various public controversies about Commissioner Avery and her colleagues that term.[4] We will return to Commissioner Avery later.

         The plaintiffs then called Pete Perry, the Chairman of the Hinds County Republican Party. Perry arrived with a wealth of general knowledge about Hinds County elections and had followed this redistricting process closely. He testified that the 2010 Census left Hinds County malapportioned, which means that redistricting was warranted. Perry also testified that racial bloc voting-an elemental fact of Mississippi history, all agreed-continues to the present day.

         Perry was apprehensive about this redistricting process because of the County's mapping consultant, Johnson. Perry objected to the County paying Johnson $40, 000 for the mapping effort[5] and feared that Johnson could not be impartial because he was then the Chairman of the Mississippi State Conference NAACP.[6]

         Perry became more concerned when two Supervisors made statements that he perceived to be racist. First, when District One Supervisor Graham was asked about the proposals at the Supervisors' February 28, 2011 meeting, he responded, “I'm not running to lose.” Graham, who is black, had won his 2007 race by approximately 90 votes. Graham also told Perry that he was only considering Maps 1, 2, and 3, all of which would have increased black voting age population (BVAP) in his district. Perry told the Court, “you're looking at 95, 98 percent of those [persons] going to vote for the Democratic candidate.”

         The second statement happened when Perry complained to the then-President of the Board, George Smith, about the unfairness of the redistricting process. Smith responded, “Pete, this is a black county. We have black leadership. We're going to hire black people. We're going to elect black people. Just get over it.” Perry testified that he “took offense” to that, believing that Smith was “telling me and all the other white people that were in the county and all the other Republicans that We're going to do what we want to do, and -- you know, We're going to do it and just, as he said, get over it.”

         Perry's concerns extended to the maps themselves. He described for the Court the defects he saw with the County's chosen map: it shuffled 23, 000 voters, split precincts, and split communities of interest.[7] Precinct 91, for example, moved from District Four to District Three, while Precinct 94 moved in the opposite direction. The net effect was to move “754 more black votes into District 4, ” Perry said. He thought that irrational: “by doing that you are adding people into District 4 where you need to be getting people out of” that District. In contrast, Perry's proposed map would have fixed the malapportionment, he says, by moving Precinct 22 “from District 3 to District 2” and moving “Precinct 91 from District 4 to District 3.”

         Still, Perry acknowledged that District 1 remained a “swing district.” He also acknowledged that after redistricting, the white voting age population (WVAP) in District 4 remained above 50%.[8]

         Perry then testified as to procedural problems he believed occurred during the redistricting process. He said that the maps had not been provided before the meeting for review by the public or by Supervisor Fisher (who was calling in from his deployment in Afghanistan), in violation of Mississippi's open meetings law. Perry then objected to the break the Board took before it voted on the proposed maps, saying that Supervisor Peggy Hobson Calhoun later admitted to him that Board members went into a back room and agreed on their vote in advance, which would be another violation of Mississippi's open meetings law. According to Perry, Supervisor Calhoun told him the following:

You know, we didn't adopt the plan that everybody agreed on to do. . . . When we went into recess, we all agreed that we were going to go back out and [Supervisor] Doug Anderson was going to make the motion to adopt plan 3. And we got out there and Doug wouldn't speak and Doug wouldn't speak. So, finally, I decided, well, you know, I like plan 1 better. They wanted plan 3. But of all the ones that were there, I thought plan 1 was the fairest one of the three. And so I made the motion for plan 1.

         At the time, the Supervisors had not gone into Executive Session. Perry added, “it wasn't anything that seemed unusual to her or, quite frankly, to me, because I'm used to seeing that happen.”

         Next, the plaintiffs called Judge Morton, the elected Justice Court Judge from District Four. He testified that he, Commissioner Avery, Commissioner Cochran, and Constable Lewis, all white Republicans, met with Johnson several days before the Supervisors' meeting to come up with Map 4. Judge Morton stated that they told Johnson what should be in the Map, and that Johnson did it. Johnson had presented their Map at the meeting, Judge Morton agreed.

         Constable Lewis then took the stand and confirmed all of Judge Morton's testimony. He added that Johnson was the one who had initiated the meeting with the white Republican group, and then had “kept in regular contact with us.” The meeting to draw the map took about four hours, he said.

         The last witness to testify for the plaintiffs was Supervisor Fisher. In part, Supervisor Fisher testified about his feelings of being excluded from the County's redistricting process. He was not consulted on the maps, he said. But Supervisor Fisher also spoke about what he believed to be a pattern of racial animus by his colleagues.

         For example, during a 2008 executive session discussion regarding minority contracting, Supervisor Fisher asked, “Why do we have a minority contractor here? Are they paid? . . . What do they do for the money they're paid for and who pays them?” To which Supervisor Anderson responded, “It doesn't matter who does the work as long as a black man gets paid.” Supervisor Fisher continued, “Supervisor Peggy Calhoun, Supervisor Doug Anderson, Supervisor Kenny Stokes have all said that . . . ‘We must do business with black businesses, black-owned businesses.'”

         Supervisor Fisher added more context to the redistricting issue in particular. In fall 2012, he said, his colleague during that term, Supervisor Stokes, asked him, “When are you white folks going to take this [redistricting plan] to court?”[9] Supervisor Fisher stated that he had spoken to the Department of Justice during the preclearance process and objected to the redistricting map's treatment of white persons.

         Supervisor Fisher then testified about what he believed to be the specific effects of the new map:

Q. And what does that do to your chances as a white Republican for winning?
A. Well, it severely hampers them. I have campaigned vigorously in black neighborhoods and in black cities in the 4th district trying to get black votes, okay, making the effort to get black votes; and it doesn't work out that way. Democrats vote for Democrats. Okay.

         After Supervisor Fisher's testimony, the plaintiffs rested. They later put on a brief rebuttal by calling Perry. This rebuttal, and their post-hearing affidavits, reinforced the events and themes already described in detail and need not be repeated.

         II. Legal Standard

         “In an action tried on the facts without a jury . . ., the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.” Fed.R.Civ.P. 52(a)(1).

         On appeal, “findings of fact are reviewed for clear error and legal issues are reviewed de novo.” Env't Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d 507, 515 (5th Cir. 2016) (quotation marks and citation omitted). “A finding is clearly erroneous when there is no evidence to support it, or if the reviewing court, after assessing all of the evidence, is left with the definite and firm conviction that a mistake has been committed.” Id. (quotation marks and citation omitted). A factual finding is not clearly erroneous when “there are two permissible views of the evidence.” Id. (quotation marks and citation omitted).

         III. Discussion

         A. Federal Claims

         The Court will take up the plaintiffs' federal claims in order of their strength.

         1. Partisan Gerrymandering

         In a partisan gerrymandering claim, “a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate . . . support into seats.” Rucho, 139 S.Ct. at 2499. Here, the plaintiffs say, the Board's redistricting process ...

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