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In the United States District Court for the Southern District of Mississippi Northern Division

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In the United States District Court for the Southern District of Mississippi Northern Division Case 3:19-cv-00383-DPJ-FKB Document 31 Filed 08/19/19 Page 1 of 40 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION LESLIE-BURL McLEMORE; CHARLES HOLMES; JIMMIE ROBINSON, SR.; Civil Action RODERICK WOULLARD; BRENDA BOOTH; JORDAN MALONE; and Case No. 3:19-cv-383-DPJ-FKB TYLER YARBROUGH, Plaintiffs, v. DELBERT HOSEMANN, in his official capacity as the Mississippi Secretary of State; and PHILIP GUNN, in his official capacity as the Speaker of the Mississippi House of Representatives, Defendants. PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Case 3:19-cv-00383-DPJ-FKB Document 31 Filed 08/19/19 Page 2 of 40 TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 LEGAL STANDARD ..................................................................................................................... 5 ARGUMENT .................................................................................................................................. 6 I. Plaintiffs, as Individual African-American Voters, Have Standing to Challenge Discriminatory Laws That Disadvantage African-American Voters. .................................. 6 A. Because the Challenged Provisions Deny Plaintiffs (and Other African-American Voters) an Equal Opportunity to Participate in the Political Process and Elect their Candidates of Choice, Plaintiffs Have Alleged a Cognizable and Imminent Injury. ... 7 B. Plaintiffs’ Injuries Are Sufficiently Concrete and Individualized to Satisfy Article III’s Requirements. ..................................................................................................... 12 C. In Accordance with Controlling Supreme Court Precedent, Plaintiffs Have Standing to Challenge the Unequal Weighting of Their Votes Which Violates the One-Person, One-Vote Principle. .................................................................................................... 15 D. Plaintiffs’ Injuries are Imminent and Ripe for Adjudication Because, Absent Injunctive Relief, the Challenged Provisions Will Continue to Violate Plaintiffs’ Constitutional Rights and Deny Plaintiffs an Equal Opportunity to Participate in the Political Process. ......................................................................................................... 16 II. Plaintiffs Possess Prudential Standing Because Their Concrete and Individualized Vote- Dilution Injuries Fall Within the Voting Rights Act’s “Zone of Interests.” ...................... 20 III. Plaintiffs’ Intentional Discrimination and One-Person, One-Vote Claims Are Justiciable Under Longstanding Supreme Court Precedent. ............................................................... 24 IV. Plaintiffs Have Stated Claims for Relief Under the Fourteenth Amendment, Fifteenth Amendment, and Voting Rights Act. ................................................................................. 27 V. As the State Officers Responsible for Enforcing the Challenged Provisions, the Secretary and the Speaker Are Proper Defendants in this Lawsuit. .................................................. 29 A. The Secretary and the Speaker Enforce the Challenged Provisions, and an Injunction Against Those Actions Would Prevent the Dilution of Plaintiffs’ Votes................... 29 B. Neither the Governor nor the Attorney General Has Any Role in Implementing the Challenged Provisions, Thus Neither is a Necessary or Indispensable Party to this Litigation. ................................................................................................................... 31 - i - Case 3:19-cv-00383-DPJ-FKB Document 31 Filed 08/19/19 Page 3 of 40 TABLE OF CONTENTS Page VI. Under Ex parte Young, and Given the VRA’s Abrogation of State Sovereign Immunity, the Eleventh Amendment Does Not Bar Any of Plaintiffs’ Claims. ................................. 33 CONCLUSION ............................................................................................................................. 35 - ii - Case 3:19-cv-00383-DPJ-FKB Document 31 Filed 08/19/19 Page 4 of 40 INTRODUCTION Plaintiffs’ lawsuit challenges three state constitutional provisions that govern the election of candidates for statewide, state office (hereinafter, “statewide office”), despite the fact that they were enacted in 1890 with the specific intent to disrupt the political gains and diminish the voting strength of African Americans in Mississippi. See generally Am. Compl., ECF 26. These provisions require candidates for statewide office to win a majority of the popular vote and a majority of Mississippi House of Representatives (“House”) districts in order to be elected—and if no candidate satisfies both conditions, the House, rather than voters, decides the election. Id. ¶¶ 1-3, 28-30; MISS. CONST. art. V, §§ 140, 141, 143 (“Challenged Provisions”). To this day, this electoral system operates as the framers intended: it minimizes African-American voting strength, and, most glaringly, it requires an African-American-preferred candidate, on average, to obtain at least 55 percent of the popular vote in order to win a majority of House districts, while a white- preferred candidate can accomplish the same feat with only 45 percent of the popular vote. Id. ¶¶ 6, 41. Secretary Hosemann (“the Secretary”) and Speaker Gunn (“the Speaker”) do not dispute that the Challenged Provisions were enacted with discriminatory intent. Nor do they contest the fact that the Challenged Provisions allow white voters to elect their candidates of choice with significantly fewer total votes than would be required of African-American voters, thereby imposing a clear disadvantage on the ability of African Americans to participate in the political process and elect candidates of their choice. Their defense, and the crux of their Motion to Dismiss, is that the African-American-preferred candidates would have lost anyway (or that the candidates prevailed notwithstanding the discriminatory burden imposed by the State); that Plaintiffs, who are African-American voters in Mississippi, lack standing to challenge laws that diminish African- American voting strength; and that Plaintiffs’ race-discrimination claims are foreclosed by the - 1 - Case 3:19-cv-00383-DPJ-FKB Document 31 Filed 08/19/19 Page 5 of 40 Supreme Court’s partisan gerrymandering decision in Rucho v. Common Cause, 139 S. Ct. 2484 (2019). These arguments are groundless, among the other defenses they assert, because the United States Constitution and the Voting Rights Act (“VRA”) ensure that all citizens have an equal opportunity to participate in the political process and elect candidates of their choice regardless of the electoral outcome; these protections have long been enforced by individual voters challenging laws that dilute African-American voting strength; and Rucho simply has nothing to do with claims that allege race discrimination in the electoral process, or violations of the one-person, one-vote principle. Finally, the Court should reject Defendants’ attempt to invoke Eleventh Amendment immunity or cast themselves as improper parties to this lawsuit because the Mississippi Constitution tasks the Secretary and the Speaker, and no one else, with the responsibility of enforcing the Challenged Provisions. Plaintiffs’ constitutional claims plainly seek prospective injunctive relief to enjoin the Defendants from enforcing the Challenged Provisions—and thus fall under the exception set forth in Ex parte Young, 209 U.S. 123 (1908)—and Congress abrogated sovereign immunity in passing the VRA. Defendants’ Motion thus presents no plausible basis for dismissal and should be denied. BACKGROUND Plaintiffs—seven African-American voters in Mississippi, ECF 26, ¶¶ 19-25—challenge the State’s multi-step process for electing candidates to statewide office set forth in Sections 140, 141, and 143 of the Mississippi Constitution. Section 140 provides that, to win an election, a gubernatorial candidate must obtain a majority of the popular vote (the “Popular-Vote Rule”) and win at least a plurality of the vote in a majority of House districts (the “Electoral-Vote Rule”). MISS CONST. art. V, § 140; ECF 26 ¶ 28. Under Section 141, if no candidate satisfies the Popular- Vote and Electoral-Vote Rules, the Mississippi House of Representatives selects the winner among - 2 - Case 3:19-cv-00383-DPJ-FKB Document 31 Filed 08/19/19 Page 6 of 40 the two candidates who received the most popular votes (the “House-Vote Rule”). Id. § 141; ECF 26 ¶ 29. Section 143 applies this same multi-step structure to all elections for statewide offices in Mississippi. Id. § 143; ECF 26 ¶ 30. These Challenged Provisions were devised during Mississippi’s 1890 post-Reconstruction Constitutional Convention, where delegates spoke freely and publicly about their discriminatory intent, and were enacted specifically to prevent African-American voters from electing their candidates of choice to statewide office. ECF 26 ¶¶ 32-40. Whereas the prior constitution only required statewide candidates to obtain a plurality of the vote to be elected, MISS. CONST. art. V, § 2 (1868), the success of African-American candidates in statewide elections—and of African- American voters in electing their candidates of choice, ECF 26 ¶ 33—drove the framers of the 1890 Constitution to adopt
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