Mississippi Advisory Opinions December 11, 2009: No. 2009-00620 (December 11, 2009)

No. 2009-00620.

Dear Representative Smith:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

1. Is Article 13, Section 254 of the Mississippi Constitution of 1890 still valid and binding?

2. If the answer to Question 1 is yes, when would the provision regarding the five-member reapportionment commission be applicable?

1. Yes.

2. The convening of the five-member reapportionment commission, as provided in Article 13, Section 254 of the Miss. Constitution of 1890, would be applicable in the event the Mississippi Legislature does not adopt a redistricting plan following a decennial census or at any other time the Legislature may apportion the state pursuant to Section 254.

Article 13, Section 254 of the Miss. Constitution of 1890, as noted in your letter, provides for the apportionment of Mississippi senatorial and representative districts.

In a 1966 decision of a three-judge federal court, all of the provisions of Sections 254 and 255 were declared to be unconstitutional and invalid for all future elections of members of the House of Representatives and the Senate of the Mississippi Legislature. Conner v. Johnson , 256 F.Supp. 962, 967 (1966).

In response to federal litigation, the Mississippi Legislature revised the Mississippi Constitution to provide for a more detailed redistricting process. See Fairley v. Forrest Co., MS , 814 F. Supp. 1327, 1338 (1993). Chapter 27, Laws of 1977 (Senate Concurrent Resolution No. 507), Second Extraordinary Session amended Section 254 and repealed Section 255. The 1977 amendment was ratified by the electorate on November 6, 1979 and was inserted by the Secretary of State on November 30, 1979. The U.S. Department of Justice precleared the amended changes on February 19, 1980.

Therefore in response to your first question, Section 254 of the Miss. Constitution of 1890 is valid and binding.

Section 254 also includes a provision for reapportionment in the event the Legislature does not adopt a redistricting plan. Specifically, Section 254 states in relevant part:

Should the legislature adjourn, without apportioning itself as required hereby, the governor by proclamation shall reconvene the legislature within thirty (30) days in special apportionment session which shall not exceed thirty (30) consecutive days, during which no other business shall be transacted, and it shall be the mandatory duty of the legislature to adopt a joint resolution of apportionment. Should a special apportionment session not adopt a joint resolution of apportionment as required hereby, a five-member commission consisting of the chief justice of the supreme court as chairman, the attorney general, the secretary of state, the speaker of the house of representatives and the president pro tempore of the senate shall immediately convene and within one hundred eighty (180) days of the adjournment of such special apportionment session apportion the legislature, which apportionment shall be final upon filing with the office of the secretary of state.

With respect to your second question, the five-member reapportionment commission, as provided in Article 13, Section 254 of the Mississippi Constitution of 1890, would be applicable in the event the Legislature does not adopt a restricting plan following a decennial census or at any other time the Legislature may apportion the state pursuant to Section 254.

Accordingly, it is the opinion of this office that Article 13, Section 254 of the Miss. Constitution of 1890, as amended, is valid and binding. The convening of the five-member reapportionment commission, as provided in Section 254, would be required if the Mississippi Legislature does not apportion the state following a decennial census or at any other time the Legislature may apportion the state pursuant to Section 254.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Margarette L. Meeks

Special Assistant Attorney General