Hinds County Republican Party et al v. Hinds County, Mississippi et al

Filing 73

Memorandum Opinion and Order. Signed by District Judge Carlton W. Reeves on 1/8/20. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
HINDS COUNTY REPUBLICAN PARTY,
ET AL.
V.

PLAINTIFFS

CAUSE NO. 3:12-CV-653-CWR-FKB

HINDS COUNTY, MISSISSIPPI, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
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

1

Fisher was first elected Supervisor in 2007 and reelected without opposition in 2011. After resigning to become
Mayor of Clinton, an interim supervisor (Robert Walker) was appointed to that seat. Cheryl Lasseter, Hinds County
names two interim supervisors, WLBT, July 1, 2013, https://www.wlbt.com/story/22732646/hinds-county-namestwo-interim-supervisors/. Tony Greer, a Republican, was elected in a special election in 2013. Greer did not seek
reelection, but instead ran for Central District Public Service Commissioner. Jimmie E. Gates, Tony Greer
withdraws from Hinds County supervisor’s race, Clarion Ledger, Mar. 2, 2015, https://www.clarionledger.com/
story/politicalledger/2015/03/02/tony-greer-supervisor-public-service-commission/24256971/. Republican Mike
Morgan was elected Supervisor for District Four in 2015, defeating Vern Gavin, the former Hinds County
Administrator, by about 440 votes. Jimmie E. Gates, Is party or race more important? In January, there will be no
white officials on Board of Supervisors, a first in modern history, Clarion Ledger, Nov. 25, 2019, https://www.
clarionledger.com/story/news/politics/2019/11/20/race-political-party-hinds-county-mississippielections/2512260001/ [hereinafter Gates, Party or race?].

2

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

2

The Court, with the agreement of the parties, stayed this case on two separate occasions while waiting for the
decisions in these two cases. See Docket Nos. 66 and 69.

3

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.

3

Hinds County’s Circuit and Chancery Judges are elected to State offices.

4

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
effort5 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

4

See Ward Schaefer, Hinds Election Feud Heats Up, Jackson Free Press, Nov. 1, 2010 (“Graves also accused
District 1 Commissioner Marilyn Avery of grabbing her and calling her ‘the b-word,’ an allegation Avery reportedly
admitted at Wednesday’s meeting.”); Hinds County Election Commissioner Clark voted out of office, WAPT, Nov.
7, 2012 (“The commission has been plagued by bitter internal fighting. Commission leaders called it a clash of
personalities. But some county officials said all the fighting was stopping progress and led to the most recent
problem with the commission -- failing to get absentee ballots out on time.”).
5
The technology behind redistricting has improved so significantly in the last decade that expensive mapping
consultants may no longer be necessary. A college sophomore identified the § 2 violation in Thomas v. Bryant, for
example, and websites allow citizens to draw Congressional Districts with the click of a button. See Adam
Ganucheau, How a College Student Exposed Racial Gerrymandering, Prompted a Lawsuit and Forced Mississippi
to Redraw a Voting District, Miss. Today, Mar. 27, 2019, https://mississippitoday.org/2019/03/27/how-a-collegestudent-exposed-racial-gerrymandering-prompted-a-lawsuit-and-forced-mississippi-to-redraw-a-voting-district/;
Aaron Bycoffe et al., Mississippi – The Atlas of Redistricting, FiveThirtyEight, https://projects.fivethirtyeight.com
/redistricting-maps/mississippi/.
6
The video of the February 21, 2011 work session suggests that Perry and Johnson frequently disagree with each
other.

5

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.”

7

The defendants later put on testimony disputing that they split communities of interest.

6

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

8

The before-and-after summary statistics of the redistricting, which were introduced into evidence as D-1, are
attached to this opinion as Appendix A.

7

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.

9

It must be noted that at no time did Supervisors Smith and Stokes serve together; Stokes defeated Smith in the
Hinds County Democratic Primary of August 2, 2011.

8

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.

9

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 excessively favored
Democrats over Republicans, in violation of the Constitution.
The best fit of the evidence to the law is that the Hinds County Board of Supervisors
engaged in slight partisan gerrymandering. The majority of Supervisors—the Democrats—were
motivated to secure their respective reelections and moved a handful of precincts to accomplish
that end. The specific changes are shown in Appendix A to this opinion, but their degree can be
summarized by plaintiffs’ counsel, who said during questioning of a Supervisor, “when you take
a district that’s barely white, 51.89, and go to 50.68, that helps the Democrat, doesn’t it? By
increasing the black and decreasing the white percentage, that helps a Democrat, doesn’t it,
according to your own definition of who votes which way in this state?” His line of questioning
reveals how small the changes were. And, as the discussion in the next section will show, there is
insufficient evidence to prove that this slight change has impacted the capacity of white
Republicans to obtain elective office in Hinds County.
In any event, even if the Supervisors had engaged in more severe partisan redistricting,
all agree that the Supreme Court’s decision earlier this year in Rucho forecloses this theory of
relief. The Court acknowledged that “[e]xcessive partisanship in districting leads to results that
reasonably seem unjust,” id. at 2506, but concluded that such claims “present political questions
beyond the reach of the federal courts,” id. at 2506-07. “There are no legal standards discernible
in the Constitution for making such judgments, let alone limited and precise standards that are
clear, manageable, and politically neutral,” it reasoned. Id. at 2500.

10

The consequence of the Supreme Court’s ruling is not disputed by the parties. This claim
cannot proceed.
2.

Racial Gerrymandering

The plaintiffs next allege that the Supervisors discriminated on the basis of race in
violation of the Fourteenth Amendment.
“[T]he basic principle is straightforward: Racial and ethnic distinctions of any sort are
inherently suspect and thus call for the most exacting judicial examination. . . . This rule obtains
with equal force regardless of the race of those burdened or benefited by a particular
classification.” Miller v. Johnson, 515 U.S. 900, 904 (1995) (quotation marks and citations
omitted). In the voting rights context, this means that “redistricting legislation that is so bizarre
on its face that it is unexplainable on grounds other than race, demands the same close scrutiny
that we give other state laws that classify citizens by race.” Id. at 905 (quotation marks and
citation omitted).
The particular legal standard is as follows:
In Arlington Heights, the Supreme Court set out five nonexhaustive factors to
determine whether a particular decision was made with a discriminatory
purpose, and courts must perform a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available. Those factors include: (1) the
historical background of the decision, (2) the specific sequence of events leading
up to the decision, (3) departures from the normal procedural sequence, (4)
substantive departures, and (5) legislative history, especially where there are
contemporary statements by members of the decision-making body. Legislators’
awareness of a disparate impact on a protected group is not enough: the law must
be passed because of that disparate impact. The challengers bear the burden to
show that racial discrimination was a substantial or motivating factor behind
enactment of the law; if they meet that burden, the burden shifts to the law’s
defenders to demonstrate that the law would have been enacted without this factor.
Veasey v. Abbott, 830 F.3d 216, 230–31 (5th Cir. 2016) (en banc) (quotation marks and citations
omitted) (emphasis in original).

11

In this case, the crux of the plaintiffs’ race discrimination claim was the statements of the
Supervisors—two contemporaneous and one older—and the departures from the normal
procedural sequences. We begin with the statements.
Review of the video of the February 28 meeting shows that Supervisor Graham’s
comment about “not running to lose” has been taken out of context. At minute 55 of the
recording, he was asked whether a Republican would have a chance running in his District—not
whether a white person would have a chance. Supervisor Graham’s response was entirely
partisan, not racial.
Next is Supervisor Smith’s remark that “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.” The Court
will assume without finding that the comment was made. Even then, it is not possible to
determine whether it was a simple statement of fact or evidence of race discrimination. In
common terms—if we are speaking plainly, like regular people—Hinds County is “a black
county.” It does have black leadership. Statistically speaking, it will hire black people and elect
black people.10
The Fifth Circuit has been very cautious about when to interpret legislators’ statements as
racist statements, because “[p]roving the motivation behind official action is often a problematic
undertaking.” Veasey, 830 F.3d at 230.11 In speaking about a legislature, for example, the
appellate court has endorsed the Supreme Court’s statement that “[w]hat motivates one legislator

10

Mississippi’s population is dispersed in ways that results in casual references to “black” or “white” counties. For
example, plainly speaking, one may describe Tishomingo County as a “white” county, since more than 95% of its
citizens are white, and Jefferson County as a “black” county, as more than 85% of its residents are AfricanAmerican. See IndexMundi, Mississippi White Population Percentage, 2013 by County, https://www.
indexmundi.com/facts/united-states/quick-facts/mississippi/white-population-percentage#map (last visited Jan. 8,
2020); IndexMundi, Mississippi Black Population Percentage, 2013 by County, https://www.indexmundi.com
/facts/united-states/quick-facts/mississippi/black-population-percentage#map (last visited Jan. 8, 2020).
11
As a dissent explained, “inflammatory and unsupportable charges of racist motivation poison the political
atmosphere and tarnish the images of every legislator.” Veasey, 830 F.3d at 281–82 (Jones, J., dissenting).

12

to make a speech about a statute is not necessarily what motivates scores of others to enact it.”
Id. at 233 (citation omitted).
Perry’s offense is understandable. No one likes being told to “get over it.”12 But a
discourteous statement is not necessarily a racist statement. A belief that “the law was passed
with a discriminatory purpose” is not enough to sustain a claim. Id. at 234.
The last direct evidence supporting the constitutional claim concerns the 2008 exchange
between Supervisors Fisher and Anderson. As described above, Supervisor Fisher asked, “Why
do we have a minority contractor here? Are they paid?” Supervisor Anderson responded, “It
doesn’t matter who does the work as long as a black man gets paid.”
The parties skirmished about minority contracting throughout the hearing. The Court
suspects that it is part of a larger battle with more moving parts than were brought to light in this
suit concerning redistricting. Nevertheless, the Court finds that Supervisor Fisher’s statements
were insensitive – it is obvious why governments have minority contracting programs, and
obvious that they should be paid like any other contractor – and that Supervisor Anderson’s was
in fact racially discriminatory. Claiming that nothing else matters as long as a member of a
particular race is paid is the very definition of racism.
There is little evidence that Supervisor Anderson’s 2008 remark had any impact on the
2011 redistricting, however, much less the minority contracting program itself. Supervisor
Calhoun explained at the hearing before this Court that the data on “total dollars spent” show that
Hinds County “spend[s] far more monies with the white-majority vendors, suppliers and

12

Saying “get over it” is dismissive of criticism and tends to be counterproductive, as it prolongs the controversy.
See, e.g., Toluse Olorunnipa, ‘Get over it’: Mulvaney’s Twin Admissions put Trump at the Center of Emoluments
and Ukraine Controversies, Wash. Post, Oct. 17, 2019 (“Mulvaney’s retort to those charges came in a three-word
mantra that now forms the central theme of the White House impeachment response: ‘Get over it.’”); Adam Liptak,
Antonin Scalia, Justice on the Supreme Court, Dies at 79, N.Y. Times, Feb. 13, 2016 (“He was often asked about
the Bush v. Gore decision at public appearances. His stock response: ‘Get over it.’”).

13

consultants or what have you than we do blacks.” It is simply too difficult to credit that
Supervisor Anderson’s inappropriate statements had any bearing, on anything, to sustain this
claim of racial discrimination in violation of the Constitution.
What remains is the plaintiffs’ procedural objection, which they have also articulated as
independent state-law causes of action. The plaintiffs’ theory under Mississippi’s Open Meetings
Act is discussed in full below—and the Court believes it has merit. (The plaintiffs’ procedural
objections under Mississippi’s Election Code, also discussed below, cannot be sustained.)
Crediting the plaintiffs’ Open Meeting Act violation as supporting one of the Arlington
Heights factors, though, nevertheless leaves a record with inadequate evidence of
unconstitutional race discrimination. The redistricting of Hinds County’s five Districts is not
close to being so bizarre that it must be explained by racial discrimination, nor have the plaintiffs
put on statistical proof of such. Accordingly, this claim too cannot proceed.
3.

Section 2 of the Voting Rights Act

A political subdivision violates § 2 of the Voting Rights Act:
if, based on the totality of circumstances, it is shown that the political processes
leading to nomination or election in the State or political subdivision are not equally
open to participation by members of a class of citizens protected by subsection (a)
in that its members have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice.
52 U.S.C. § 10301(b). “The essence of a § 2 claim is that a certain electoral law, practice, or
structure interacts with social and historical conditions to cause an inequality in the opportunities
enjoyed by black and white voters to elect their preferred representatives.” Thornburg v. Gingles,
478 U.S. 30, 47 (1986).
The plaintiffs must begin by proving the three Gingles requirements. First is that “the
racial group is sufficiently large and geographically compact to constitute a majority in a single-

14

member district.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425 (2006)
(quotation marks and citation omitted). Second, the plaintiffs must prove that “the racial group is
politically cohesive.” Id. The third requirement is that “the majority votes sufficiently as a bloc to
enable it usually to defeat the minority’s preferred candidate.” Id. (brackets and ellipses omitted).
“[T]he Gingles factors cannot be applied mechanically and without regard to the nature of the
claim.” Voinovich v. Quilter, 507 U.S. 146, 158 (1993).
If these three factors are established, courts are then to consider “the Senate factors”:
1.

The extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic process;

2.

The extent to which voting in the elections of the state or political
subdivision is racially polarized;

3.

The extent to which the state or political subdivision has used unusually
large election districts, majority vote requirements, anti-single shot
provisions, or other voting practices or procedures that may enhance the
opportunity for discrimination against the minority group;

4.

If there is a candidate slating process, whether the members of the minority
group have been denied access to that process;

5.

The extent to which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as education,
employment and health, which hinder their ability to participate effectively
in the political process;

6.

Whether political campaigns have been characterized by overt or subtle
racial appeals; [and]

7.

The extent to which members of the minority group have been elected to
public office in the jurisdiction.

Gingles, 478 U.S. at 36–37 (quotation marks and citations omitted). The Senate factors are
“neither comprehensive nor exclusive,” and “there is no requirement that any particular number

15

of factors be proved, or that a majority of them point one way or the other.” Id. at 45 (quotation
marks and citation omitted).
In requiring federal courts to consider the totality of circumstances, Congress has
made clear that, again in the [Supreme] Court’s words, whether the political
processes are equally open depends upon a searching practical evaluation of the
past and present reality and on a functional view of the political process. At the
same time, federal courts are reluctant to interfere with legislative decisions,
especially when they are decisions by state or local legislative bodies, and when the
decisions concern issues as sensitive as those regarding who votes, how they vote,
and what districts they vote in.
Patino v. City of Pasadena, 230 F. Supp. 3d 667, 674–75 (S.D. Tex. 2017) (quotation marks and
citations omitted).
In this case, the § 2 claim fails at the third Gingles factor.
Set aside for a moment that white persons in Hinds County have historically not been
prevented from voting in the manner that African-Americans obviously were. See, e.g.,
Mississippi State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400, 402 (5th Cir. 1991)
(“Mississippi has a long history of using voter qualifications and registration procedures to
impede black citizens’ participation in the political process.”). That is not the threshold question.
The issue today is that the plaintiffs have not established, either by publicly available evidence or
expert statistical analysis, that African-American voters in Hinds County vote sufficiently as a
bloc to usually to defeat white voters’ preferred candidate.
We start with the evidence observable to any informed person paying attention.13 The
number of white County-level elected officials has substantially decreased in the years since this
case was filed. It is not obvious whether that happened as a result of the redistricting or of other
factors.

13

The Court will take judicial notice of who has been elected to office in Hinds County in the intervening years.

16

Commissioner Avery had won in 2004 and 2008 as a white Republican. She may have
lost in 2012 because of the voters’ perception of disarray mentioned earlier,14 or because she
failed to make any effort to campaign. Statistical evidence submitted by the plaintiffs after the
election, however, showed that it was not due to the redistricting. Even if Commissioner Avery
had run in 2012 in a district without Precincts 39 and 41—i.e., even if there had been no
redistricting—her opponent would have won with 50.8% of the vote.
Other departures of white elected officials are readily explainable by non-racial reasons.
Circuit Clerk Barbara Dunn retired after a long career in the public eye. Her base of support
turned out and helped install her deputy of 18 years, Zach Wallace, who is black, as the new
Clerk.15 Commissioner Cochran lost in 2015 by 112 votes.16 Constable Lewis lost in 2015 by
211 votes, in a race with a third-party candidate who siphoned off 215 votes.17 Judge Skinner
won reelection in 2014,18 then declined to run again in 2018. He instead threw his hat into the
ring for a Mississippi Court of Appeals spot, which meant he ran in a district covering one-fifth
of the state rather than just one county.
Until the most recent election cycle, District Four has continuously elected a white
Republican to its Justice Court seat (Judge Morton).19 Judge Morton did not seek reelection. In
the race for that open seat, Kenny Lewis, a Democrat, defeated his Republican opponent, Tiffany

14

Of the three Election Commissioners to face a challenge in November 2012, voters replaced two of them:
Commissioner Avery and Commissioner Clark, a black man. See WAPT, supra note 4.
15
Perry admitted that Dunn had defeated black opponents in the Democratic primary and the general elections.
Similar testimony was presented about Malcolm McMillin, Charles Barbour, Nicki Boland, and Lloyd Paxton.
16
Longtime Hinds County Election Commissioner loses race, WJTV, Nov. 21, 2016, https://www.wjtv.com
/news/longtime-hinds-county-election-commissioner-loses-race/.
17
Jimmie E. Gates, Hinds constable contests election, Clarion-Ledger, Nov. 24, 2015, https://www.clarionledger
.com/story/news/2015/11/24/longtime-constable-contests-election/76312814/.
18
Skinner lead both of his African-American opponents, one of whom was a former Circuit Judge, appointed by a
popular Republican governor, in the general election and he defeated that opponent in the run-off election. See
Hinds County, Past Election Results (Nov. 25, 2014), http://www.co.hinds.ms.us/pgs/apps/electionresults.asp.
19
Justice Court Judges run for office with partisan affiliations. See Miss. Code Ann. § 23-15-297(e); see also State
of Mississippi Judiciary, Admin. Office of Courts, About the Courts, https://courts.ms.gov/aboutcourts/
aboutthecourts.php (“Justice Court judges are the only Mississippi judges elected in partisan races.”).

17

Horton-Williams, 63%-37%. Both candidates are African-American. And for many decades, up
until two months ago, District Four continuously elected a white Republican to represent it on
the Board of Supervisors. We do not know whether Supervisor Mike Morgan lost in November
2019 because he changed his party affiliation to run as an Independent rather than as a
Republican,20 or because of the redistricting. Since the Democratic candidate won these two
elections, the plaintiffs may now have a stronger § 2 theory—they will be able to point to losses
in District Four’s Justice Court, Supervisor’s, and Election Commissioner’s races. Today’s
outcome does not foreclose that (or some other) showing.
The racial distribution of central Mississippians has seen substantial changes in recent
years. The record shows that in the 10 years between the 2000 and 2010 Censuses, for example,
the black population of Hinds County increased by approximately eight percentage points. The
Court suspects that that population shift has continued as white persons move to Madison and
Rankin Counties. There is not sufficient evidence that the reduction of white persons elected to
County-wide office is due to the redistricting as opposed to these demographic shifts.21
Plaintiffs did have another avenue by which to prove a violation of the Voting Rights
Act. In § 2 cases, plaintiffs can combat the allure of conventional wisdom, and thus prove their
theory of racial bloc voting, by introducing expert testimony of a statistical pattern of election

20

This possibility accords with the analysis of the defendants’ statistical expert, who explained that white voters in
Hinds County “voted much less along the lines of race and voted more along the lines of political party.” Morgan,
however, told a newspaper reporter that he lost because of Democratic turnout and not race. He explained that at the
top of the ballot the year he was first elected, the Democratic candidate running for Governor was a truck driver
running against a popular incumbent Governor. In the most recent election, though, a popular Democratic Attorney
General was running for the gubernatorial seat in a hotly-contested race, and a Democratic Jackson City Council
member was running for an open seat of the Public Service Commission district which contained Morgan’s district.
Gates, Party or race?, supra note 1.
21
The legislative race of House District 64 is illustrative. All but one of its precincts lies in Hinds County. Since
1987, Republican Bill Denny represented the area. In 2011, Denny defeated Democrat Dorsey Carson by about 13
points. No one ran against Denny in 2015. In 2019, however, a political newcomer, Democrat Shanda Yates,
defeated the eight-term incumbent with 51% of the vote. Ashton Pittman, It’s Official: Dem Shanda Yates Ousts 32Year Republican in Mississippi House, Jackson Free Press, Nov. 18, 2019.

18

results. The Fifth Circuit has, in fact, held in these cases that “a party must ‘fine tune’ any
statistical proof offered to prove discrimination.” Mabus, 932 F.2d at 410 (emphasis added).
Although the degree of fine-tuning is not clear, other precedent confirms the principle that
statistical evidence is critical to a successful showing. See Veasey, 830 F.3d at 250–51
(describing the “four distinct methods of analysis” utilized by the plaintiffs, as well as the expert
testimony proffered by the State).
For whatever reason, Plaintiffs chose not to invest in this type of evidence. Instead, Perry
brought a significant amount of credible information about Hinds County and Mississippi
elections to the witness stand. He has a facility with summary statistics. Yet there is a material
difference between summary statistics and the kind of specialized analysis—be it a regression or
even a t-test—conducted by academics and statisticians who testify as experts in voting cases.
See, e.g., id.; Thomas v. Bryant, 938 F.3d 134, 160 n.126 (5th Cir.) (collecting cases for the
proposition that “[ecological inference] analysis is widely recognized and accepted in voting
cases”), reh’g en banc granted, 939 F.3d 629 (5th Cir. 2019); Monroe v. City of Woodville,
Miss., 881 F.2d 1327, 1331 (5th Cir. 1989), opinion corrected on reh’g, 897 F.2d 763 (5th Cir.
1990) (criticizing plaintiffs’ expert for the “failure to provide a test of statistical significance”).
Perry does not have that level of expertise, and did not conduct a statistically significant analysis
showing that African-American voters in Hinds County vote sufficiently as a bloc to usually to
defeat white voters’ preferred candidate. Nor did the plaintiffs designate an expert to counter the
defendants’ statistical expert, Dr. D’Andra Orey, who conducted ecological regression and
ecological inference analyses for Hinds County.
For these reasons, the § 2 claim must also be dismissed.

19

4.

Other Federal Issues

The plaintiffs’ Amended Complaint presses other concerns related to federal law,
namely, an alleged 2,900-person undercount by the U.S. Census at three local universities, the
Supervisors’ failure to submit all proposed plans to the Department of Justice, and the
Supervisors’ failure to submit accurate information to the Department of Justice. The Amended
Complaint presents these issues as evidence of excessive partisanship but also demarcates them
as independent causes of action.
Taking all of these concerns as true, it is not obvious how federal law can remedy them in
this suit. Testimony revealed that any undercount must be (and so far has not been) taken up with
the U.S. Census Bureau, which is not a party to this action. And the concerns about the
Department of Justice raise a question about the adequacy of the federal government’s Voting
Rights Act preclearance process—a process which does not exist anymore, and arguably was not
legally binding from summer 2006-onward. See Shelby Cty., Ala. v. Holder, 570 U.S. 529
(2013).
For these reasons, the Court is not confident that anything can be done about these issues
under federal law, at least with these parties. That said, the undersigned does think that the
Supervisors’ actions with respect to the Department of Justice’s inquiries have some bearing on
the plaintiffs’ state-law claims, and will return to them in the below discussion.
B.

State Claims

Precedent suggests that the undersigned should proceed to adjudicate the plaintiffs’ statelaw claims. See Brookshire Bros. Holding v. Dayco Prod., Inc., 554 F.3d 595, 602 (5th Cir.
2009); Mendoza v. Murphy, 532 F.3d 342, 347 (5th Cir. 2008). That analysis is below.

20

1.

Open Meetings Act

The Mississippi Legislature has determined “that the formation and determination of
public policy is public business and shall be conducted at open meetings except as otherwise
provided herein.” Miss. Code Ann. § 25-41-1. The State’s Open Meetings Act defines “meeting”
as “an assemblage of members of a public body at which official acts may be taken upon a
matter over which the public body has supervision, control, jurisdiction or advisory power,
including an assemblage through the use of video or teleconference devices that conforms to
Section 25-41-5.” Id. § 25-41-3(b).
The statute continues,
An agenda and materials that will be distributed to members of the public body and
that have been made available to the staff of the public body in sufficient time for
duplication and forwarding to the members of the public body shall be made
available to the public at the time of the meeting. Votes taken during any meeting
conducted through teleconference or video means shall be taken in a manner that is
clearly audible or visible to all members of the public body and to members of the
public present at the public location.
Id. § 25-41-5(3).
“The Open Meetings Act was enacted for the benefit of the public and is to be construed
liberally in favor of the public. The philosophy of the Open Meetings Act is that all
deliberations, decisions and business of all governmental boards and commissions, unless
specifically excluded by statute, shall be open to the public.” Hinds Cty. Bd. of Sup’rs v.
Common Cause of Mississippi, 551 So. 2d 107, 110 (Miss. 1989) (quotation marks and citations
omitted).
In this case, the video of the Supervisors’ February 21 work session reveals objections
from members of the public as to the process by which the Board decided to redistrict. There

21

were no handouts provided at that work session, and citizens were upset that information was
posted to the County’s website only earlier that day.
These procedural concerns were not fixed in the intervening week; citizens voiced similar
objections at the February 28 meeting. When Supervisor Fisher – dialing in from Afghanistan –
expressed concern that Johnson’s recommended plans were not posted online, after an awkward
silence, County staff were forced to concede that Map 1 was not there. One member of the public
stood up and objected that this was the first time anyone had seen the plans; no one had had time
to digest them. Another member of the public agreed, saying the maps had not been provided at
the prior week’s planning session. A Supervisor tried to explain that the maps were completed
over the intervening weekend, but then couldn’t explain why Map 1 wasn’t on the website.
Rosemary Aultman, the then-Mayor of Clinton, stood up and explained how unfair it was that
the maps had not been provided for advance public review.
This evidence indicates that Hinds County’s failure to inform the public about Maps 1-4
before February 28 violated the spirit of the Open Meetings Act. The Court cannot, however,
conclude that the County violated the letter of the Act, as the statute requires only that materials
“be made available to the public at the time of the meeting.” Miss. Code Ann. § 25-41-5(3)
(emphasis added). The videos of the February 28 meeting show that the County did print and
display large-format versions of Maps 1-4 for the public to review at the meeting.
Even if there was no technical violation of the Open Meetings Act in that respect, the
Supervisors violated the Act during the recess of the February 28 meeting. Mississippi law is
clear that “‘deliberations . . . that go into the making of’ public policy are to be open to the
public.” Mayor & City Council & City of Columbus v. Commercial Dispatch, 234 So. 3d 1236,
1240 (Miss. 2017) (quoting Miss. Code Ann. § 25-41-1). The Court credits the party admission

22

of Supervisor Calhoun, as relayed through Perry’s testimony, that “[w]hen 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.” That is a prototypical violation of sunshine laws.
The County may object to this finding and assert that any agreement was immaterial
because Supervisor Calhoun changed her mind and moved to adopt Plan 1. That does not help
the County. The violation of State law was complete when the Supervisors went behind closed
doors and held “deliberations that ‘go into making’ or ‘lead to’ public policy . . . at a gathering of
board members.” Id. Those deliberations were not open to the public, and it cannot be seriously
argued that they met some other exemption within the Open Meetings Act, such as the
exemption for social gatherings. See Gannett River States Pub. Corp. v. City of Jackson, 866 So.
2d 462, 467 (Miss. 2004).
To be fair and thorough, Supervisor Calhoun denies having said this to Perry and further
denies having a private meeting. But Perry’s testimony was very specific, and a private meeting
would be consistent with the County’s dissembling in its § 5 preclearance communications to the
Department of Justice. Recall that County officials told DOJ that they didn’t have a copy of
Perry’s map—but they had refused to take a copy of Perry’s map when he offered it at the
meeting. The County then characterized the citizen who took the videos of the work session and
redistricting meeting as a “Republican operative,” as if that should somehow discourage DOJ’s
viewing of them. Since these videos are unedited and speak for themselves, the videographer’s
party affiliation is entirely gratuitous.22 Lastly, the County’s submissions to the Department of
Justice contained a number of inaccuracies. Though these issues are not a basis for liability under

22

“[T]he spirit of the [Open Meetings] Act is that a citizen spectator, including any representative of the press, has
just as much right to attend the meeting and see and hear everything that is going on as has any member of the board
or commission.” Hinds Cty., 551 So. 2d at 110 (citations omitted).

23

current federal law, they have bearing on whether the County sought to hide or discourage
meaningful review of its redistricting process.
For these reasons, the Court concludes that Hinds County violated the Mississippi Open
Meetings Act on February 28, 2011.
2.

Mississippi Election Code

Next, the plaintiffs contend that Hinds County violated the Mississippi Election Code
when it failed to provide sufficient information about its redistricting to the Mississippi Secretary
of State. They point to three Code sections.
First, Mississippi law requires each Board of Supervisors to “notify the Office of the
Secretary of State of the boundary of each supervisors district, sub-precinct and voting precinct
as then fixed and shall provide the office a legal description and a map of each supervisors
district, sub-precinct and voting precinct and shall indicate the voting place in each such district.”
Miss. Code Ann. § 23-15-281(1). Second, when redistricting occurs, state law requires the
Supervisors to “notify the Office of the Secretary of State and provide the Office of the Secretary
of State a legal description and a map of any boundary change. No change shall be implemented
or enforced until the requirements of this section have been met.” Id. § 23-15-283(1). Finally, “as
soon as practicable after any change is made in any supervisors district, sub-precincts, voting
precinct or any voting place, the board of supervisors shall cause the change to be entered on the
minutes of the board in such manner as to be easily understood.” Id. § 23-15-285. Westlaw
indicates that these statutes have never been analyzed by a court of law in any detail.
The record evidence for and against these allegations is scant. According to Exhibit D-5,
however, on September 20, 2012, Hinds County’s attorney sent Assistant Secretary of State for
Elections W. Heath Hillman a letter describing the County’s new redistricting plan “[i]n

24

accordance with Mississippi Code Sections 23-15-281 and 23-15-283, et seq.” The enclosures
referenced in the letter do not appear to be in evidence. The plaintiffs have not submitted any
evidence contradicting this letter. As a result, they do not have enough evidence to prove that the
County is out of compliance with the Election Code for any failure to communicate with the
Secretary of State’s office.
The plaintiffs’ remaining argument is that the County’s redistricting failed to comply
with § 23-15-285’s mandate that changes be published on the minutes “in such manner as to be
easily understood.” The plaintiffs contend that legal descriptions would have been better than the
maps the Supervisors attached to the minutes.
The Court must respectfully disagree. Maps are perhaps the simplest, easiest means for
members of the public to understand how electoral changes apply to them, and are superior (for
this purpose, at least) than formal legal descriptions. This bundle of claims must be dismissed.
C.

Remedies

Federal courts do not often order a remedy for a violation of Mississippi’s Open Meetings
Act. Such claims are usually adjudicated by a Chancery Court or the Mississippi Ethics
Commission. See Miss. Code Ann. § 25-41-15. But for the length of time this case has been here,
this Court would likely have declined supplemental jurisdiction over this claim in deference to
those bodies. Yet here we are.
The Mississippi Supreme Court has held that a violation of the Open Meetings Act “may
subject a board to an injunction or writ of mandamus,” but does “not void the actions” of the
board taken at the meeting. Shipman v. N. Panola Consol. Sch. Dist., 641 So. 2d 1106, 1116
(Miss. 1994). The scope of the injunction or writ is not entirely clear, but in one case the court
affirmed an order requiring “the Mayor and the City Council to refrain from further violations

25

and comply strictly with the Act.” Commercial Dispatch, 234 So. 3d at 1238 (quotation marks
and brackets omitted) (emphasis added).23
The undersigned is not sure it is appropriate for a federal court to issue an open-ended
injunction against a local governmental entity to require compliance with state law. Fortunately,
there appears to be an additional path of remedies in these cases.
According to the Mississippi Court of Appeals, “[i]f the court finds that a public body has
willfully and knowingly violated the provisions of this chapter, the court may impose a civil
penalty upon the public body in a sum not to exceed $100 plus all reasonable expenses incurred
to bring suit to enforce the Act.” LaCroix v. Marshall Cty. Bd. of Sup’rs, 28 So. 3d 650, 661 n.14
(Miss. Ct. App. 2009) (quotation marks and citation omitted).
Pursuant to this law, this Court expressly finds that the defendants’ violation of the Open
Meetings Act was willful and knowing. A $100 civil penalty is ordered and the plaintiffs shall
receive the expenses and attorney’s fees they reasonably incurred on this claim.
IV.

Conclusion
The plaintiffs are granted relief on their claim under Mississippi’s Open Meetings Act.

The remainder of their claims are dismissed. A Final Judgment shall issue shortly.
The plaintiffs’ motion for attorney’s fees (with supporting evidence) is due in 21 days.
SO ORDERED, this the 8th day of January, 2020.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

23
If the public body subsequently violates that order, a finding of contempt is warranted and attorney’s fees may be
awarded. Compare Common Cause, 551 So. 2d at 125 (awarding “fair and reasonable attorney’s fees” to the
plaintiffs where the public officials had violated a Chancery Court injunction) with Bd. of Trustees of State
Institutions of Higher Learning v. Mississippi Publishers Corp., 478 So. 2d 269, 282 (Miss. 1985) (disallowing
attorney’s fees); accord In re: Phil Wolfe, 2001 WL 283621 (Miss. A.G. op. Feb. 1, 2001).

26

APPENDIX A