BOBBY HARRISON: Federal judges hold the keys to legislative voting

By Bobby Harrison/NEMS Daily Journal

JACKSON – Secretary of State Delbert Hosemann has forcefully argued that it’s premature for Mississippi’s legislative redistricting to end up in the federal courts.
Lt. Gov. Phil Bryant, who presides over the Senate, has given Hosemann’s argument at least some verbal support.
The Legislature, due to partisan bickering, was unable to agree on a plan to redraw the 174 House and Senate districts during the 2011 session, which ended last month.
With the state facing legislative elections later this year, the issue is now before a three-judge federal panel.
In court filings and in newspaper commentaries, Hosemann has argued that the state Constitution gives the Legislature until the second year after the decennial census to redraw the districts. That means the issue could be taken up by the Legislature during the 2012 session and thus the federal court case is, as they say, not ripe.
And if the Legislature still cannot agree in 2012, the state Constitution calls for the establishment of a special commission, consisting of the chief justice of the Supreme Court, the attorney general, secretary of state, speaker of the House and Senate president pro tem, to draw the districts.
The Constitution mandates the districts be drawn in the second year following the census to adhere to population shifts, but says the Legislature may undertake the task at any time.
Thus, Hosemann argues that there is no reason for the federal courts to be involved in the contentious state matter.
But to make Hosemann’s scenario work, it seems the courts would have to be involved. Hosemann has said that legislators would run this year under the currently malapportioned districts and again in 2012 under a plan developed by the Legislature or by the special commission.
In a commentary to newspapers, Hosemann asks, “What other parts of the Constitution will be IGNORED for political expediency by a group seeking advantages for their own political agenda?”
The only problem is that Hosemann will have to ignore the Constitution to make his plan work. There is nothing in Mississippi’s Constitution specifying one-year terms for legislators. As a matter of fact, the Constitution states specifically that legislators are elected for four year terms.
How does the secretary of state want to deal with that? Perhaps by asking a court to set another election in 2012.
Some, even Hosemann’s attorney on the issue, Robert Gibbs of Jackson, have argued that perhaps legislative elections could be held this year – for a full four-year term – under the current, malapportioned districts.
But the federal panel and most others involved in the case seem to agree that the U.S. Constitution requires the districts to be close to equal in population, based on the latest census. Most also would concede the federal Constitution trumps the Mississippi Constitution.
The judges have issued an order saying they are “inclined” to use the plans adopted during the 2011 by each chamber to redraw their districts. The plans do not carry the force of law because a joint resolution containing both House and Senate plans was not adopted by both chambers.
While the plans did not make it all the way through the legislative process, the three-judge panel says it is “inclined” to use them for the 2011 eelctions.
The federal panel has set a hearing next week for those opposed to the plans passed during the session to argue why the judges should go against their initial inclination.
The Republican Party, for instance, is opposed to using the plans passed by the House and Senate and instead wants the judges to appoint a consultant to draw new districts.
It should be noted that hiring a consultant as the Republican Party wants or having two consecutive years of elections – as Hosemann has advocated – would be much more costly and would be much more confusing to voters than adopting the plans passed by the House members and senators during the 2011 session to redraw their districts.
If the judges stick to that original inclination, it appears Hosemann will at least get a portion of his wish. The Legislature will have an opportunity to draw new districts during the 2012 session. If the Legislature still cannot complete the task, presumably the special commission will be formed.
But it appears districts will be adopted in 2012 by either the Legislature or commission for elections in 2015 – unless the inclination of the judges changes.
Bobby Harrison is the Daily Journal’s Capitol Bureau Chief. Contact him at bobby.harrison@journalinc.com or call (601) 353-3119.