Branch v. Smith
Opinion of the Court
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, and an opinion with respect to Parts III-B and IV, in which The Chief Justice, Justice Kennedy, and Justice Ginsburg join.
In these cases, we decide whether the District Court properly enjoined a Mississippi state court’s proposed congressional redistricting plan and whether it properly fashioned its own congressional reapportionment plan rather than order at-large elections.
I
The 2000 census caused Mississippi to lose one congressional seat, reducing its representation in the House of Representatives from five Members to four. The state legislature, however, failed to pass a new redistricting plan after the decennial census results were published in 2001. In anticipation of the March 1, 2002, state-law deadline for the qualification of candidates, see Miss. Code Ann. § 23-15-299 (Lexis 2001), appellant and cross-appellee Beatrice Branch and others (state plaintiffs) filed suit in a Mississippi State Chancery Court in October 2001, asking the state court to issue a redistricting plan for the 2002 congressional elections. In November 2001, appellee and cross-appellant John Smith and others (federal plaintiffs) filed a similar action under Rev. Stat. § 1979, 42 U. S. C. § 1983, in the United States District Court for the Southern District of Mississippi, claiming that the current districting plan, Miss. Code Aim. §23-15-
A three-judge District Court was convened pursuant to 28 U. S. C. § 2284. Initially the District Court did not interfere with the State Chancery Court’s efforts to develop a redistricting plan. In an order filed on December 5, 2001, Smith v. Clark, 189 F. Supp. 2d 502 (SD Miss.), the District Court permitted the state plaintiffs to intervene and deferred ruling on the federal plaintiffs’ motion for a preliminary injunction. In staying its hand, the District Court recognized that “ ‘the Constitution leaves with the States primary responsibility for apportionment of their federal congressional . . . districts,’ ” id., at 503 (quoting Growe v. Emison, 507 U. S. 25, 34 (1993)), but concluded that “if it is not clear to this court by January 7, 2002 that the State authorities can have a redistricting plan in place by March 1, we will assert our jurisdiction ... and if necessary, we will draft and implement a plan for reapportioning the state congressional districts,” 189 F. Supp. 2d, at 503; see also 189 F. Supp. 2d 503, 505-506 (SD Miss. 2002).
On the eve of the State Chancery Court trial, the Mississippi Supreme Court denied petitions for writs of prohibition and mandamus filed by a state defendant and others challenging the Chancery Court’s jurisdiction to engage in congressional redistricting. It held that the Chancery Court
Meanwhile, in January 2002, the District Court, expressing “serious doubts whether the Mississippi Supreme Court’s Order and the plan adopted by the Chancery Court pursuant to that order will be precleared prior to the March 1 candidate qualification deadline,” 189 F. Supp. 2d, at-508, had begun to develop its own redistricting plan, id., at 511. On February 4, 2002, it promulgated a redistricting plan to be used absent the timely preclearance of the Chancery Court plan. 189 F. Supp. 2d 512 (SD Miss.). On February 19, it ordered that, if the Chancery Court redistricting plan was not “precleared before the close of business on Monday, February 25, 2002,” then the District Court’s plan would fix the Mississippi congressional districts for the 2002 elections. 189 F. Supp. 2d 529, 548. February 25th came and went with no action by DOJ. On February 26, the District Court enjoined the State from using the Chancery Court plan and ordered use of the District Court’s own plan in the 2002 elections and all succeeding elections until the State produced
The State did not file a notice of appeal. On April 1,2002, DOJ informed the State in a letter that “it would be inappropriate for the Attorney General to make a determination concerning [the State’s preclearance] submission now” because the District Court’s injunction rendered the state-court plan incapable of administration. App. 29.
The state plaintiffs — intervenors in the District Court— filed a timely notice of appeal from the District Court and a jurisdictional statement. The federal plaintiffs filed a jurisdictional statement on conditional cross-appeal. We noted probable jurisdiction in both appeals and consolidated them. 536 U. S. 903 (2002).
II
At the outset we should observe two critical distinctions between these cases and the one that was before us in Growe v. Emison, 507 U. S. 25 (1993). In Growe, the Federal District Court had refused to abstain or defer to state-court redistricting proceedings. Id., at 30-31. In reversing, we reminded the federal courts of “ ‘what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.’” Id., at 34 (quoting Chapman v. Meier, 420 U. S. 1, 27 (1975)). We held that “[a]bsent evidence that these state branches will fail timely to perform
Section 5 of the Voting Rights Act provides that whenever a covered jurisdiction, such as Mississippi, see 30 Fed. Reg. 9897 (1965), “shall enact or seek to administer” a change in “any voting qualification or prerequisite to voting, or standard, practice, or procedure,” the State must obtain preclearance from the District Court for the District of Columbia or the Attorney General before the change may be enforced. 42 U. S. C. § 1973c. The Act requires preclearance of all voting changes, ibid.; see Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 38-39 (1978), and there is no dispute that this includes voting changes mandated by order of a state court, see, e. g., In re McMillin, 642 So. 2d 1336, 1339 (Miss. 1994). Rather, the controversy pertains to the proviso in § 1973c to the effect that, where the preclearance submission is made to the Attorney General, the voting change may be enforced if “the Attorney General has not interposed an objection within sixty days after such submission . . . .”
Appellants in No. 01-1437 (originally the state plaintiffs) assert that the District Court erred in believing that the Chancery Court’s plan lacked preclearance. It was automatically rendered enforceable, they contend, by DOJ’s failure to object within the 60-day period running from the state attorney general’s initial submission on December 26,2001— or, in the alternative, it was subsequently rendered enforce
A
Under § 5, a jurisdiction seeking administrative preclearance must prove that the change .is nondiscriminatory in purpose and effect. Reno v. Bossier Parish School Bd., 528 U. S. 320, 328 (2000). It bears the burden of providing the Attorney General information sufficient to make that proof, Georgia v. United States, 411 U. S. 526, 537-539 (1973), and failure to do so will cause the Attorney General to object, see ibid.; 28 CFR § 51.52(c) (2002). In DOJ’s view, however, incomplete state submissions do not start the 60-day clock for review. See §§51.27, 51.37. The regulations implementing §5 authorize a DOJ request for additional information from a jurisdiction that has initially “omitted information considered necessary for the evaluation of the submission.” § 51.37(a). If the jurisdiction responds by supplying the additional information (or stating that it is unavailable), the 60-day clock begins to run from the date the response is received. § 51.37(c). We have upheld these regulations as being “wholly reasonable and consistent with the Act.” Georgia v. United States, supra, at 541; accord, Morris v. Gressette, 432 U. S. 491, 504, n. 19 (1977).
DOJ’s February 14 request for additional information was within the Attorney General’s discretion under 28 CFR §51.37, thereby postponing the 60-day time period for objections until the requested information was received. The request was neither frivolous nor unwarranted. See Georgia v. United States, supra, at 541, n. 13. DOJ believed that the Mississippi Supreme Court’s Mauldin order, holding that the Chancery Court had jurisdiction to engage in redistricting, was a change in voting procedures, and it sought additional information demonstrating that this change would not have
B
Appellants contend that even if the State Chancery Court’s plan was not precleared by operation of law on February 25, 2002, it was precleared on April 22, 60 days after the state attorney general submitted the additional information requested. We think not.
Section 5 provides that “[w]henever a [covered jurisdiction] shall enact or seek to administer” a voting change, such a change may be enforced if it is submitted to the Attorney General and there is no objection by the Attorney General within 60 days. 42 U. S. C. § 1973c (emphasis added). Clearly the State Chancery Court’s redistricting plan was not “enacted” by the State of Mississippi. An “enactment” is the product of legislation, not adjudication. See Webster’s New International Dictionary 841 (2d ed. 1949) (defining “enact” as “[t]o make into an act or law; esp., to perform the legislative act with reference to (a bill) which gives it the validity of law”); Black’s Law Dictionary 910 (7th ed. 1999) (defining “legislate” as “[t]o make or enact laws”). The web of state and federal litigation before us is the consequence of the Mississippi Legislature’s failure to enact a plan. The Chancery Court’s redistricting plan, then, could be eligible for preclearance only if the State was “seeking] to administer” it.
Appellants’ argument — that their appeal, as intervenors, is sufficient to demonstrate that the State still “seek[s] to administer” the state-court plan — is invalid on its face. The actions of a private party are not the actions of a State and cannot satisfy the prerequisite to § 5 preclearance.
C
Since we affirm the injunction on the basis of the District Court’s principal stated ground that the state-court plan had not been precleared and had no prospect of being precleared in time for the 2002 election, we have no occasion to address the District Court’s alternative holding that the State Chancery Court’s redistricting plan was unconstitutional — a holding that the District Court specified was set forth to cover the eventuality of the principal stated ground’s being rejected on appeal — and therefore we vacate it as a basis for the injunction. The District Court’s alternative holding is not to be regarded as supporting the injunction we have affirmed on the principal ground, or as binding upon state and
Ill
Having determined that the District Court properly enjoined enforcement of the state-court redistricting plan, we turn to the propriety of the redistricting plan that the District Court itself adopted. Cross-appellees in No. 01-1596 (originally the state plaintiffs) and the United States, as amicus curiae, argue that the District Court was required to draw (as it did) single-member congressional districts; cross-appellants in No. 01-1596 (originally the federal plaintiffs) contend that it was required to order at-large elections for the congressional seats. We must decide whether, as cross-appellees contend, the District Court was governed by the provisions of 2 U. S. C. § 2c; or, as cross-appellants contend, by the provisions of 2 U. S. C. § 2a(c)(5).
A
Article I, §4, cl. 1, of the Constitution provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...It reserves to Congress, however, the power “at any time by Law [to] make or alter such Regulations, except as to the Places of chusing Senators.” Ibid. Pursuant to this authority, Congress in 1929 enacted the current statutory scheme governing apportionment of the House of Representatives. 2 U. S. C. §§2a(a), (b). In 1941, Congress added to those provisions a subsection addressing what is to be done pending redistricting:
“Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then*267 prescribed by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.” §2a(c).
In 1967,26 years after § 2a(c) was enacted, Congress adopted §2c, which provides, as relevant here:
“In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative . ..
The tension between these two provisions is apparent: Section 2c requires States entitled to more than one Repre
The problem with this reconciliation of the provisions is that the limited role it assigns to § 2c (governing legislative apportionment but not judicial apportionment) is contradicted both by the historical context of § 2c’s enactment and by the consistent understanding of all courts in the almost 40 years since that enactment. When Congress adopted § 2c in 1967, the immediate issue was precisely the involvement of the courts in fashioning electoral plans. The Voting Rights Act of 1965 had recently been enacted, assigning to the federal courts jurisdiction to involve themselves in elections. See 79 Stat. 439 (as amended and codified at 42 U. S. C. § 1973 et seq.). Even more significant, our decisions in Baker v. Carr, 369 U. S. 186 (1962), Wesberry v. Sanders, 376 U. S. 1 (1964), and Reynolds v. Sims, 377 U. S. 533 (1964), had ushered in a new era in which federal courts were overseeing efforts by badly malapportioned States to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards. In a world in which the role of federal courts in redistricting disputes had been transformed from spectating, see Colegrove v. Green, 328 U. S. 549 (1946) (opinion of Frankfurter, J.), to directing,
At the time Congress enacted §2c, at least six District Courts, two of them specifically invoking 2 U. S. C. §2a(c)(5), had suggested that if the state legislature was unable to redistrict to correct malapportioned congressional districts, they would order the State’s entire congressional delegation to be elected at large. On March 26, 1964, a three-judge District Court ordered that, pending enactment of a constitutional redistricting plan by the Michigan Legislature, all Michigan Representatives would be elected at large. Calkins v. Hare, 228 F. Supp. 824, 830 (ED Mich. 1964). On October 19, 1964, a three-judge District Court entered a similar order for the State of Texas. See Bush v. Martin, 251 F. Supp. 484, 489, and n. 11, 490, and n. 17 (SD Tex. 1966). On February 3,1965, a three-judge District Court in Arkansas, whose House delegation had decreased from six to four Members after the 1960 census, stated that under §2a(c)(5), “if the Legislature . . . had taken no action [after the 1960 apportionment] the congressmen would have been required to run at large,” and that the same reasoning would compel the court to require at-large elections if the legislature adopted malapportioned congressional districts. Park v. Faubus, 238 F. Supp. 62, 66 (ED Ark. 1965). On August 5, 1966, a three-judge District Court in Missouri, whose House delegation had decreased from 11 to 10 Members after the 1960 census, informed the State that if it was unable to redistrict in accordance with the Constitution, then pursuant to the “command of Section 2(a)(c) [sic],” “the congressional elections for Missouri will be ordered conducted at large until new and constitutional districts are created.” Preisler v. Secretary of State of Missouri, 257 F. Supp. 953, 981, 982 (WD Mo. 1966), aff’d, 385 U. S. 450 (1967) (per curiam,). In Meeks v. Anderson, 229 F. Supp. 271, 273-274 (Kan. 1964), and Baker v. Clement, 247 F. Supp. 886, 897-898 (MD Tenn. 1965), three-judge District Courts stayed their hands but
Nor have the courts ever thought so. To the contrary, every court that has addressed the issue has held that §2c requires courts, when they are remedying a failure to redistrict constitutionally, to draw single-member districts whenever possible. The first court to examine §2c, just two weeks after the statute was enacted, was the three-judge District Court in Missouri that had previously threatened to order at-large elections in accordance with § 2a(c)(5). In its decision on December 29, 1967, that court observed that the enactment of § 2c had “relieved [it] of the prior existing Congressional command to order that the 1968 and succeeding congressional elections in Missouri be held at large,” Preisler v. Secretary of State of Missouri, 279 F. Supp. 962, 969 (WD Mo. 1967), aff’d, 394 U. S. 626 (1969), and accordingly reversed its prior position and stated that it would fashion a districting plan if the State failed to fulfill its duty. Four years later, the Supreme Court of Virginia denied a writ of mandamus directing at-large elections to replace an allegedly unconstitutional Redistricting Act, on the ground that by reason of §2c “we cannot legally issue the writ.” Simpson v. Mahan, 212 Va. 416, 417, 186 S. E. 2d 47, 48 (1971). The next year the Supreme Court of California reached the same conclusion that §2c required it to establish single-member districts, see Legislature v. Reinecke, 6 Cal. 3d 595, 602-603, 492 P. 2d 385, 390 (1972), a conclusion that it reaffirmed in 1982, see Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d 638, 664, 639 P. 2d 939, 955 (1982). In Shayer v. Kirkpatrick, 541 F. Supp. 922, 926 (WD Mo.), aff’d sub nom. Schatzle v. Kirkpatrick, 456 U. S. 966 (1982), the District Court concluded that “nothing in section 2c suggests any limitation on its applicability,” and declined to order at-large elections
It bears noting that this Court affirmed two of the District Court decisions described above, see Preisler, supra, and Shayer, supra, one without discussing §2c, and one summarily. And in 1971 we observed in dictum that “[i]n 1967, Congress reinstated the single-member district requirement” that had existed before the enactment of §2a(c). Whitcomb v. Chavis, 403 U. S. 124, 159, n. 39 (1971).
Of course the implausibility (given the circumstances of its enactment) that §2e was meant to apply only to legislative reapportionment, and the unbroken unanimity of state and federal courts in opposition to that interpretation, would be of no consequence if the text of §2c (and of §2a(c)) unmistakably demanded that interpretation. But it does not. Indeed, it is more readily susceptible of the opposite interpretation.
The clause “there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled” could, to be sure, be so interpreted that the phrase “by law” refers only to legislative action. Its more common meaning, however, encompasses judicial decisions as well. See, e. g., Hope v. Pelzer, 536 U. S. 730, 741 (2002) (referring to judicial decisions as “established law” in qualified immunity context); Swidler & Berlin v. United States, 524 U. S. 399, 407 (1998) (referring to judicial decisions as “established law” in the attorney-client privilege context); United States v. Frady, 456 U. S. 152, 166 (1982) (referring to the judicially established standard of review for a 28 U. S. C. §2255 motion as “long-established law”); see
We think, therefore, that while §2c assuredly envisions legislative action, it also embraces action by state and federal courts when the prescribed legislative action has not been forthcoming. We might note that giving “by law” its less common meaning would cause the immediately following clause of §2c (“and Representatives shall be elected only from districts so established” (emphasis added)) to exclude all courts from redistricting, including even state courts acting pursuant to state legislative authorization in the event of legislative default. It is hard to see what plausible congressional purpose this would serve. When, as here, the situation (a decrease in the number of Representatives, all of whom were formerly elected from single-member districts) enables courts to prescribe at-large elections under paragraph (5) of §2a(c) (assuming that section subsists, see infra, at 273), it can be said that there is a constitutional fallback. But what would occur if the situation called for application of paragraphs (1) to (4) of §2a(c), none of which is constitutionally enforceable when (as is usual) the decennial census has shown a proscribed degree of disparity in the voting population of the established districts? The absolute prohibition of §2c (“Representatives shall be elected only from [single-member] districts [legislatively] established”) would be subject to no exception, and courts would (despite Baker v. Carr) be congressionally forbidden to act when the state legislature has not redistricted. Only when it is utterly unavoidable should we interpret a statute to require an unconstitutional result — and that is far from the situation here.
In sum, §2c is as readily enforced by courts as it is by state legislatures, and is just as binding on courts — federal or state — as it is on legislatures.
Having determined that in enacting 2 U. S. C. § 2c, Congress mandated that States are to provide for the election of their Representatives from single-member districts, and that this mandate applies equally to courts remedying a state legislature’s failure to redistrict constitutionally, we confront the remaining question: what to make of §2a(c)? As observed earlier, the texts of § 2c and § 2a(c)(5) are in tension. Representatives cannot be “elected only from districts,” § 2c, while being elected “at large,” §2a(c). Some of the courts confronted with this conflict have concluded that §2c repeals § 2a(c) by implication. See Shayer v. Kirkpatrick, 541 F. Supp., at 927; Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d, at 663-664, 639 P. 2d, at 954. There is something to be said for that position — especially since paragraphs (1) through (4) of § 2a(c) have become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional. (The unlikely exception is the situation in which the decennial census makes no districting change constitutionally necessary.) Eighty percent of the section being a dead letter, why would Congress adhere to the flotsam of paragraph (5)?
We have repeatedly stated, however, that absent “a clearly expressed congressional intention,” Morton v. Mancari, 417 U. S. 535, 551 (1974), “repeals by implication are not favored,” Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm’n, 393 U. S. 186, 193 (1968). An implied repeal will only be found where provisions in two statutes are in “irreconcilable conflict,” or where the latter Act covers the whole subject of the earlier one and “is clearly intended as a substitute.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936). So while there is a strong argument that §2c was a substitute for §2a(c), we think the better answer is that §2a(c) — where what it prescribes is constitutional (as it is with regard to paragraph (5)) — continues to apply.
If the more expansive (and more natural) interpretation of § 2a(c) is adopted, its condition can be met — and its demand for at-large elections suspended — by the very court that follows the command of §2c. For when a court, state or federal, redistricts pursuant to §2c, it necessarily does so “in the manner provided by [state] law.” It must follow the “policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature,” except, of course,
Thus, §2a(c) is inapplicable unless the state legislature, and state and federal courts, have all failed to redistrict pursuant to § 2c. How long is a court to await that redistricting before determining that § 2a(c) governs a forthcoming election? Until, we think, the election is so imminent that no entity competent to complete redistricting pursuant to state law (including the mandate of §2c) is able to do so without disrupting the election process. Only then may §2a(c)’s stopgap provisions be invoked. Thus, § 2a(c) cannot be properly applied — neither by a legislature nor a court — as long as it is feasible for federal courts to effect the redistricting mandated by § 2c. So interpreted, § 2a(c) continues to function as it always has, as a last-resort remedy to be applied when, on the eve of a congressional election, no constitutional redistricting plan exists and there is no time for either the State’s legislature or the courts to develop one. Cf. Carstens v. Lamm, 543 F. Supp., at 77-78.
There remains to be considered Mississippi’s at-large election provision, which reads as follows:
“Should an election of representatives in Congress occur after the number of representatives to which the state is entitled shall be changed, in consequence of a new apportionment being made by Congress, and before the districts shall have been changed to conform to the new apportionment, representatives shall be chosen as follows: In case the number of representatives to which the state is entitled be increased, then one (1) member shall be chosen in each district as organized, and the additional member or members shall be chosen by the electors of the state at large; and if the number of repre*276 sentatives shall be diminished, then the whole number shall be chosen by the electors of the state at large.” Miss. Code Ann. § 23-15-1039 (Lexis 2001).
There has been no interpretation of this provision by the Mississippi courts. We believe it was designed to track 2 U. S. C. §§2a(c)(2) and (5), and should be deemed operative when those provisions would be. That is to say, (1) the phrase “and before the districts shall have been changed to conform to the new apportionment” envisions both legislatively and judicially prescribed change, and (2) the statute does not come into play as long as it remains feasible for a state or federal court to complete redistricting. In these eases, the District Court properly completed the redistricting of Mississippi pursuant to 2 U. S. C. § 2c and thus neither Mississippi Code § 23-15-1039 nor 2 U. S. C. § 2a(e) was applicable.
IV
Justice O’Connor’s opinion concurring in part and dissenting in part (hereinafter dissent) agrees that the District Court properly acted to remedy a constitutional violation, see post, at 300-301, but contends that it should have looked to § 2a(e) rather than § 2c in selecting an appropriate remedy. We think not. We have explained why it makes sense for § 2c to apply until there is no longer any reasonable prospect for redistricting according to state law — whereupon §2a(c) applies. If, like the dissent, we were to forgo such analysis and simply ask, in the abstract, which of the two provisions has primacy, we would probably still select §2c — the only one cast in absolute, rather than conditional, terms. The dissent gives not the hint of a reason why it believes § 2a(c) has primacy. It says that “[t]he text of § 2a(c) directs federal courts to order at-large elections ‘[ujntil a State is redistricted in the manner provided by the law thereof.’ ” Post, at 301. But it is equally true that § 2c directs federal courts to redistrict absolutely and without qualification.
The dissent implicitly differentiates between federal and state courts — effectively holding that state courts may undertake the initial redistricting that would satisfy §2a(c)’s prerequisite, but federal courts may not. It presumably rests this distinction upon the belief that state courts are capable of redistricting “ ‘in the manner provided by the law thereof,’ ” whereas federal courts are not. See post, at 300, n. 1. To read that phrase as potentially including state— but not federal — courts, the dissent takes the word “manner” to refer to process or procedures, rather than substantive requirements. See ibid. (If the State’s process for redistricting includes courts, then and only then may courts redistrict, rendering §2a(c) inapplicable.) But such a reading renders the phrase “in the manner provided by the law thereof” redundant of the requirement that the State be “redistricted.” Of course the State has not been redistricted if districts have been drawn by someone without authority to redistrict. Should an ambitious county clerk or individual legislator sit down and draw up a districting map, no one would think that the State has, within the meaning of the statute, been “redistricted.” In our view, the word “manner” refers to the State’s substantive “policies and prefer-
The dissent claims that we have read the statutory phrase “[u]ntil a State is redistricted” to mean “[u]ntil. .. the election is so imminent that no entity competent to complete redistricting pursuant... to the mandate of § 2c ... is able to do so without disrupting the election process.” Post, at 298. From that premise, it proceeds to mount a vigorous (and, in the principles it espouses, highly edifying) “plain meaning” attack upon our holding. Unfortunately, the premise is patently false. We, no less than the dissent, acknowledge that
So despite the dissent’s ardent protestations to the contrary, see ibid., the dissent, no less than we, must confront the question “[h]ow long is a eourt to await that redistricting before determining that §2a(c) governs a forthcoming election?” Surely the dissent cannot possibly believe that, since “the text tells us ‘how long’ §2a(c) should govern,” ibid., a court can declare, immediately after congressional reapportionment, and before the state legislature has even had a chance to act, that the State’s next elections for Representatives will be at large. We say that the state legislature (and the state and federal courts) should be given the full time available-right up until the time when further delay will disrupt the election process — to reapportion according to state law. Since the dissent disagrees with that, we wonder what its own timeline might be. But to claim that there is no timeline — simply to assert that “[§]2a(c) contains no imminence requirement,” ibid. — is absurd.
The dissent suggests that our reading of § 2c runs afoul of the Court’s anticommandeering jurisprudence, see post, at 301-302, but in doing so the dissent fails to recognize that
Another straw man erected by the dissent is to be found in its insistence — as though in response to an argument of ours — that “[s]ince §2a(c) was enacted decades before the Baker line of eases, this subsequent development cannot change the interpretation of §2a(c).” Post, at 307. But we have never said that those cases changed the meaning of
“The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them .... If a thing contained in a subsequent statute, be within the reason of a former statute, it shall be taken to be within the meaning of that statute . . . ; and if it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” United States v. Freeman, 3 How. 556, 564-565 (1845).
That is to say, the meaning of § 2c (illuminated by the Baker v. Carr line of cases) sheds light upon the meaning of § 2a(c).
■Finally, the dissent gives the statutory phrase “redistricted in the manner provided by the law thereof” a meaning that is highly unusual. It means, according to the dissent, “redistricted as state law requires,” even when state law is unconstitutional — so that even an unconstitutional redistricting satisfies the “until” clause of § 2a(c), and enables § 2c to be applied. We know of no other instance in which a federal statute acknowledges to be “state law” a provision that violates the Supremacy Clause and is therefore a legal nullity. It is particularly peculiar for the dissent to allow an unconstitutional redistricting to satisfy the “until” clause when it will not allow a nonprecleared redistricting to satisfy the “until” clause (in those States subject to § 5 of the
* * *
The judgment of the District Court is
Affirmed.
Contrary to the dissent’s assertion, post, at 800, n. 1, our reading creates no conflict with Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 (1984). Here a federal court granted relief on the basis of federal law — specifically, the Federal Constitution. The District Court did not “instruc[t] state officials on how to conform their conduct to state law,” id., at 106; rather, it deferred to the State’s “policies and preferences” for redistricting, White v. Weiser, 412 U. S. 783, 795 (1973). Far from intruding on state sovereignty, such deference respects it.
Concurring Opinion
with whom Justice Stevens, Justice Souter, and Justice Breyer join as to Part II, concurring.
I
I join the Court’s opinion and the plurality opinion in Parts III-B and IV. The Court’s opinion makes clear why the District Court was correct to enjoin the redistricting plan developed by the Mississippi State Chancery Court as not pre-cleared under § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c. Ante, at 261-265. The Court then vacates the District Court’s alternative holding that the state-court plan violated Article I, §4, of the United States Constitution. Ante, at 265-266.
II
It seems appropriate to explain why, in my view, our ruling vacating the judgment is mandated by our earlier cases. There is precedent for our ruling. See Connor v. Waller,
The rule prescribed by Connor reflects the purposes behind the Voting Rights Act. Concerned that “covered jurisdictions would exercise their ingenuity to devise new and subtle forms of discrimination, Congress prohibited those jurisdictions from implementing any change in voting procedure without obtaining preclearance under § 5.” Hathorn v. Lovorn, 457 U. S. 255, 268 (1982). A jurisdiction covered by § 5 must seek approval of either the Attorney General of the United States or the United States District Court for the District of Columbia. See, e. g., Clark v. Roemer, 500 U. S. 646, 652 (1991); Lopez v. Monterey County, 519 U. S. 9, 12 (1996). Absent preclearance, a voting change is neither effective nor enforceable as a matter of federal law. Connor v. Waller, supra, at 656; Board of Supervisors, supra, at 645; Finch, supra, at 412; Wise, supra, at 542; Hathorn, supra, at 269; Clark, supra, at 652; post, at 311-312 (O’CONNOR, J., concurring in part and dissenting in part). The process, in particular the administrative scheme, is designed to “ ‘giv[e] the covered State a rapid method of rendering a new state election law enforceable.’” Georgia v. United States, 411 U. S. 526, 538 (1973) (quoting Allen v. State Bd. of Elections, 393 U. S. 544, 549 (1969)). To be consistent with the statutory scheme, the district courts should not entertain constitutional challenges to nonprecleared voting changes and in
The constitutional challenge presented to the District Court here fell within the ambit of the Connor rule. Our previous cases addressed contentions that the state reapportionment plan violated the one-person, one-vote principle or diluted minority voting strength. Connor v. Waller, 396 F. Supp. 1308, 1309 (SD Miss. 1975), rev’d, 421 U. S. 656 (1975) (per curiam); Board of Supervisors, supra, at 643-644; Wise, supra, at 538-539. In this litigation, appellees objected to the constitutionality of the state court’s assumption of authority to devise a redistricting plan. The fact that ap-pellees framed their constitutional argument to the state court’s authority to pass a redistricting plan rather than to the plan’s components does not make their claim reviewable. The plan was not yet precleared and so could not cause ap-pellees injury through enforcement or implementation.
In deciding to address the constitutional challenge the District Court was motivated by the commendable purpose of enabling this Court to examine all the issues presented by the litigation in one appeal. This approach, however, forces the federal courts to undertake unnecessary review of complex constitutional issues in advance of an Executive determination and so risks frustrating the mechanism established by the Voting Rights Act. In these cases, for instance, the District Court’s decision led to a delay in preclearance because the United States Attorney General (whether or not authorized to do so by the statute) refused to consider the state-court plan while the constitutional injunction remained in place. App. 28-29. The advance determination, moreover, can risk at least the perception that the Executive is revising the judgment of an Article III court. Adherence to the rule of Connor provides States covered by § 5 with time
Concurring Opinion
with whom Justice Souter and Justice Breyer join, concurring in part and concurring in the judgment.
In 1967 Congress enacted a brief statutory provision that banned at-large elections for Representatives. In my opinion the portion of that statute that is codified at 2 U. S. C. §2e impliedly repealed §2a(c). The reasons that support that conclusion also persuade me that the 1967 federal Act pre-empted Mississippi’s statutory authorization of at-large election of Representatives in Congress. Accordingly, while I join Parts I, II, and III-A of the Court’s opinion, I do not join Parts III-B or IV.
The question whether an Act of Congress has repealed an earlier federal statute is similar to the question whether it has pre-empted a state statute. When Congress clearly expresses its intent to repeal or to pre-empt, we must respect that expression. When it fails to do so expressly, the presumption against implied repeals, like the presumption against pre-emption, can be overcome in two situations: (1) if there is an irreconcilable conflict between the provisions in the two Acts; or (2) if the later Act was clearly intended to “cove[r] the whole subject of the earlier one.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936).
“AN ACT
“For the relief of Doctor Ricardo Vallejo Samala and to provide for congressional redistricting.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purposes of the Immigration and Nationality Act, Doctor Ricardo Vallejo Samala shall be held and considered to have been lawfully admitted to the United States for permanent residence as of August 30, 1959.
“In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of subsection (a) of section 22 of the Act of June 18, 1929, entitled ‘An Act to provide for apportionment of Representatives’ (46 Stat. 26), as amended, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representa*287 tives at Large to the Ninety-first Congress).” Pub. L. 90-196, 81 Stat. 581 (emphasis added).
The second paragraph of this statute enacts a general rule prohibiting States with more than one congressional Representative from electing their Representatives to Congress in at-large elections.
The first paragraph of the 1967 statute suggests an answer to the question why Congress failed to enact an express repeal of the 1941 law when its intent seems so obvious. The statute that became law in December 1967 was the final gasp in a protracted legislative process that began on January 17, 1967, when Chairman Celler of the House Judiciary Committee introduced H. R. 2508, renewing efforts made in the preceding Congress to provide legislative standards responsive to this Court’s holding in Wesberry v. Sanders, 376 U. S. 1 (1964), that the one-person, one-vote principle applies to congressional elections.
This bill generated great controversy and discussion. Importantly for present purposes, however, only two of the three components were discussed in depth at all. At no point, either in any of the numerous Conference Reports or lengthy floor debates, does any disagreement regarding the language expressly repealing §2a(c) or the single-member district requirement appear. Rather, the debate was confined to the gerrymandering requirement, the proportionality rule, and the scope and duration of the temporary exceptions to the broad prohibition against at-large elections.
The decision to attach what is now § 2c to the private bill reflected this deadlock. Indeed, proponents of this attachment remarked that they sought to take the uncontroversial components of the prior legislation to ensure that Congress would pass some legislation in response to Wesberry v. Sand
Justice O’Connor has provided us with a convincing exposition of the flaws in Justice Scalia’s textual interpretation of §2a(c)(5). See post, at 298-301 (opinion concurring in part and dissenting in part). Ironically, however, she has been misled by undue reliance on the text of statutes enacted in 1882, 1891, 1901, and 1911 — a period in our history long before the 1950’s and 1960’s when Congress enacted the voting rights legislation that recognized the central importance of protecting minority access to the polls. It was only then
Moreover, her analysis of the implied repeal issue apparently assumes that if two provisions could coexist in the same statute, one could not impliedly repeal the other if they were enacted in successive statutes. Thus, she makes no comment on the proviso in the 1967 statute that preserved at-large elections in New Mexico and Hawaii for 1968. This proviso surely supports the conclusion that it was the only exception intended by Congress from the otherwise total prohibition of at-large elections. The authorization of at-large elections in the 1882 statute cited by Justice O’Con-nor was also set forth in a proviso; although the words “provided that” are omitted from the 1891, 1901, and 1911 statutes, they just contain examples of differently worded exceptions from a general rule. It is also important to note that the text of the 1967 statute, unlike the four earlier statutes, uses the word “only” to create a categorical prohibition against at-large elections. As a matter of plain English, the conflict between that prohibition and §2a(c), which permitted at-large elections, is surely irreconcilable.
Justice O’Connor’s consideration of the legislative history of the 1967 statute fails to give appropriate consideration to the four bills that would have expressly repealed § 2a(e)(5). See supra, at 287-289. Those bills, coupled with the absence of any expression by anyone involved in the protracted legislative process of an intent to preserve at-large elections anywhere except in New Mexico and Hawaii, provide powerful support for the conclusion that, as a literal reading of the text of § 2c plainly states, Congress intended to enact a categorical prohibition of at-large elections. The odd circumstance that the final version of the prohibition was added to a private bill makes it quite clear that the omission
* * *
The history of the 1967 statute, coupled with the plain language of its text, leads to only one conclusion — Congress impliedly repealed § 2a(e). It is far wiser to give effect to the manifest intent of Congress than, as the plurality attempts, to engage in tortured judicial legislation to preserve a remnant of an obsolete federal statute and an equally obsolete state statute. Accordingly, while I concur in the Court’s judgment and opinion, I do not join Parts III-B or IV of the plurality opinion.
Compare Posadas, 296 U. S., at 503 (“There are two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act”), with Freightliner
The States of Hawaii and New Mexico were the only two States that met the statutory exception because they were “entitled to more than one Representative” and had “in all previous elections elected [their] Representatives at Large.” Pub. L. 90-196, 81 Stat. 581.
In 1965, the House of Representatives passed a bill identical, in all relevant respects, to the bill Representative Celler introduced in January 1967. See H. R. 5505, 89th Cong., 1st Sess. (1965).
Specifically, § 2a(e) would have been expressly repealed by the following language, present in all but the final version of H. R. 2508: “That section 22 of the Act of June 18, 1929, entitled ‘An Act to provide for the fifteenth and subsequent decennial censuses and to provide for apportionment of Representatives’ (46 Stat. 26), as amended, is amended as follows:
“Subsection (c) is amended by striking out all of the language in that subsection and inserting in place thereof the following:....” H. R. 2508, 90th Cong., 1st Sess., 1 (1967).
Senator Bayh introduced one amendment to the private bill that excluded Hawaii and New Mexico while Senator Baker offered another that had no exceptions. Senator Bayh characterized his amendment as follows: “What I have tried to do is to take that part of the conference report over which there was no dispute, or a minimal amount of dispute, and attach that part to the bill which is now the pending business.” 113 Cong. Rec. 31719 (1967). Senator Baker described his amendment as follows: “The measure makes no other provision. It has nothing to do with gerrymandering. It has nothing to do with compactness. It has nothing to do with census. It strictly provides in a straightforward manner that when there is more than one Member of the House of Representatives from a State, the State must be districted, and that the Members may not run at large. ... I believe that my amendment is the most straightforward and direct and simple way to get at the most urgent need in the entire field of redistricting, and that is to prevent the several States of the Union from being under the threat of having their Representatives to the U. S. House of Representatives stand for election at large.” Id., at 31718.
In a colloquy between Senators Bayh and Baker on the floor, they both agreed that the final amendment left no doubt as to its effect: “This will make it mandatory for all Congressmen to be elected by single-Member districts, whether the reapportionment is done by State legislatures or by a Federal court.” Id., at 31720 (remarks of Sen. Bayh).
Concurring in Part
with whom Justice Thomas joins, concurring in part and dissenting in part.
I join Parts I and II of the Court’s opinion because I agree that the Mississippi Chancery Court’s redistricting plan lacks preclearance. I join Part II-C because it is consistent with our decisions holding that federal courts should not rule on a constitutional challenge to a nonprecleared voting change when the change is not yet capable of implementation. See, e. g., Connor v. Waller, 421 U. S. 656 (1975) (per curiam); see also ante, p. 282 (Kennedy, J., concurring). I cannot join Part III or Part IV, however, because I disagree with the Court that 2 U. S. C. § 2c is a command to the States and I disagree with the plurality regarding the proper statutory construction of § 2a(c)(5).
I
First, I agree with the plurality’s somewhat reluctant conclusion that § 2c does not impliedly repeal § 2a(c)(5). Here, it is quite easy to read §§ 2c and 2a(e) together. A natural statutory reading of § 2a(c) gives force to both §§ 2c and 2a(c):
As both the plurality and Justice Stevens recognize, an implied repeal can exist only if the “provisions in the two acts are in irreconcilable conflict” or if “the later act covers the whole subject of the earlier one and is clearly intended as a substitute.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936). See also ante, at 273 (plurality opinion); ante, at 285 (Stevens, J., concurring in part and concurring in judgment). Indeed, “ ‘when two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.’” Radzanower v. Touche Ross & Co., 426 U. S. 148, 155 (1976) (quoting Morton v. Mancari, 417 U. S. 535, 551 (1974)). We have not found any implied repeal of a statute since 1975. See Gordon v. New York Stock Exchange, Inc., 422 U. S. 659. And outside the antitrust context, we appear not to have found an implied repeal of a statute since 1917. See Lewis v. United States, 244 U. S. 134. Because it is not difficult to read §§2a(c) and 2c in a manner that gives force to both statutes, §2c cannot impliedly repeal § 2a(c). See, e. g., United States v. Burroughs, 289 U. S. 159, 164 (1933) (“[I]f effect can reasonably be given to both statutes, the presumption is that the earlier is intended to remain in force”); Radzanower v. Touche Ross & Co., supra, at 155 (“Repeal is to be regarded as implied only if necessary to make the [later enacted law] work, and even then only to the minimum extent necessary. This is the guiding principle to reconciliation of the two statutory schemes” (alteration in original and internal quotation marks omitted)).
The previous versions of §§2c and 2a(c) confirm that an implied repeal does not exist here. Since 1882, versions of §§2c and 2a(c) have coexisted. Indeed, the 1882,1891,1901, and 1911 apportionment statutes all contained the single-member district requirement as well as the at-large default
Given this history of the two provisions coexisting in the same statute, I would not hold that §2c impliedly repeals § 2a(c). The two statutes are “capable of co-existence” because each covers a different subject matter. Morton v. Mancari, supra, at 551. Section 2c was not intended to cover the whole subject of §2a(c) and was not “clearly intended as a substitute” for §2a(c). Posadas v. National City Bank, supra, at 503. Section 2a(c) (requiring at-large elections) applies unless or until the State redistricts, and §2c (requiring single-member districts) applies once the State has completed the redistricting process.
This Court has in fact read the prior versions of §§2c and 2a(c) so that the two did not conflict. In Smiley v. Holm, supra, we recognized that under the 1911 version of these provisions, at-large elections were an appropriate remedy if the State was not properly redistricted in the first instance. See id., at 374 (“[Ujnless and until new districts are created, all representatives allotted to the State must be elected by the State at large”).
Justice Stevens argues that Congress intended to “ ‘cove[r] the whole subject’ ” of at-large redistricting when it enacted §2c in 1967. Ante, at 287 (quoting Posadas v. National City Bank, 296 U. S., at 503). But the 1967 enactment of § 2c simply restored the prior balance between the at-large mandate and the single-member district mandate that had existed since 1882. To hold that an implied repeal exists, one would have to conclude that Congress repeatedly enacted two completely conflicting provisions in the same statute. The better reading is to give each provision a separate sphere of influence, with § 2a(c) applying until a “State is redistricted in the manner provided by the law thereof,” and §2c applying after the State is redistricted. Because the 1967 version of §2c parallels the prior versions of §2c, and because of the longstanding coexistence between the prior versions of §§2a(c) and 2c, Justice Stevens’ argu
Justice Stevens’ strongest argument is that the legislative history indicates that “all parties involved were operating under the belief that the changes they were debating would completely replace §2a(c).” Ante, at 290. Yet Justice Stevens acknowledges that Congress could have expressly repealed §2a(c). See ante, at 287-288, 291-292. Justice Stevens thinks the evidence that Congress tried to expressly repeal §2a(c) four times cuts strongly in favor of an implied repeal here. See ante, at 292. But these four attempts to repeal §2a(c) were unsuccessful. It is difficult to conclude that Congress can impliedly repeal a statute when it deliberately chose not to expressly repeal that statute. In this case, where the two provisions have co-existed historically, and where Congress explicitly rejected an express repeal of §2a(c), I would not find an implied repeal of § 2a(c).
I would hold instead that Congress passed § 2c in 1967 to restore redistricting law to its pre-1941 status, when § 2a(c) became effective without any complementary provision regarding single-member districts. The floor statements and colloquy by Senators Baker and Bayh cited by Justice Stevens, see ante, at 290, n. 5, cannot overcome the strong presumption against implied repeals, especially given the historical evidence that §§2c and 2a(c) had peacefully coexisted since the 19th century. And as explained in more detail in Part II-B, infra, the circumstances leading up to the passage of § 2c in 1967 do not support a finding of implied repeal.
H-Í H-t
A
Although the plurality acknowledges that §2a(c) remains in full force, it inexplicably adopts a reading of §2a(c) that has no textual basis. Under §2a(c)(5), the State must conduct at-large elections “[ujntil a State is redistricted in the manner provided by the law thereof.” Instead of simply reading the plain text of the statute, however, the plurality invents its own version of the text of § 2a(c). The plurality holds that “[u]ntil a State is redistricted . . .” means “[u]ntil . . . the election is so imminent that no entity competent to complete redistricting pursuant to ... the mandate of § 2c [ ] is able to do so without disrupting the election process.” Ante, at 274, 275. But such a reading is not faithftil to the text of the statute. Like Justice Stevens, I believe that the Court’s interpretation of §2a(c) is nothing more than “tortured judicial legislation.” Ante, at 292. See also Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1185 (1989) (“[W]hen one does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation”).
Dictionary definitions confirm what the plain text says: “Until a State is redistricted in the manner provided by the law thereof” means “[u]ntil a State is redistricted in the manner provided by the law thereof.” The meaning of the word “until” is not difficult to understand, nor is it some specialized term of art. See Webster’s New International Dictionary 2794 (2d ed. 1957) (defining “until” to mean “[djuring the whole time before”); Webster’s Collegiate Dictionary 1297
Section 2a(c) contains no imminence requirement. It is not credible to say that “until a State is redistricted in the manner provided by the law thereof after any apportionment” means: “[u]ntil.. . the election is so imminent that no entity competent to complete redistricting pursuant to . . . the mandate of § 2c [] is able to do so without disrupting the election process.” Ante, at 275. The plurality characterizes §2a(c) as a “stopgap provisio[n],” but the text of §2a(c) is not so limited. Ibid. The plurality asks “[h]ow long is a court to await that redistricting before determining that § 2a(c) governs a forthcoming election?” Ibid. Yet the text provides no basis for why the plurality would ask such a question. Indeed, the text tells us “how long” § 2a(c) should govern: “[ujntil a State is redistricted in the manner provided by the law thereof.” (Emphasis added.) Under the plurality’s reading, however, §2a(c) would not apply even though § 2a(c) by its terms should apply, as the State has not yet “redistricted in the manner provided by the law thereof.” The language of the statute cannot bear such a reading. Cf. Holloway v. United States, 526 U. S. 1, 14 (1999) (Scalia, J., dissenting) (“No amount of rationalization can change the reality of this normal (and as far as I know exclusive) English usage. The word in the statute simply will not bear the meaning that the Court assigns”).
The dispositive question is what the text says it is: Has a State “redistricted in the manner provided by the law thereof”? 2 U. S. C. §2a(c). “Until a State is redistricted
The plurality seems to forget that in cases such as this one, a federal court has the power to redistrict only because private parties have alleged a violation of the Constitution or the Voting Rights Act. Sections 2a(c) and 2c do not create independently enforceable private rights of action them-, selves. Rather, both these provisions address the remedy that a federal court must order if it finds a violation of a constitutional or statutory right.
The plurality’s reading of § 2a(c) also fails on its own terms. As the plurality appears to acknowledge, ante, at 277, the plain text of §2a(c) requires courts to apply §2a(c) before applying §2c. Yet the plurality never justifies why, when it is interpreting §2a(c), it looks to §2c instead of reading the plain language of §2a(c) itself. If state law really includes federal law, as the Court maintains, both §§2c and 2a(c) are equally applicable. The text of § 2a(c) directs federal courts to order at-large elections “[ujntil a State is redistricted in the manner provided by the law thereof.” In deciding whether § 2c or § 2a(c) is applicable, it is no answer to escape the directive of §2a(c) by pointing to the text of §2c. Indeed, if one takes at face value the plurality’s statement that § 2a(c) “continues to apply,” ante, at 273, a court should not look at §2c until the State complies with the terms of §2a(c). Section 2a(c) is antecedent to § 2c, since § 2a(c) defines when at-large elections are appropriate.
Moreover, the Court’s interpretation of the interplay between §§2a(c) and 2c calls into question this Court’s anti-commandeering jurisprudence. See, e. g., New York v. United States, 505 U. S. 144, 166 (1992) (“We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts”); and Printz v. United States, 521 U. S. 898, 912 (1997) (Scalia, J.) (“[Sjtate legislatures are not subject to federal direction”). The plurality states that the anticommandeering jurisprudence is inapplicable to Article I, §4, because that section gives Congress the power to “Regulat[ej” the times, places, and manner of
The history of the prior versions of §2c shows that §2c has never been treated as an absolute command. States routinely used at-large elections under the previous iterations of § 2c, even though those versions of § 2c also stated that Representatives “shall be elected by districts.” Act of June 25, 1842, ch. 47, §2, 5 Stat. 491; Act of July 14, 1862, ch. 170, 12 Stat. 572; Act of Feb. 2, 1872, 17 Stat. 28; cf. supra, at 293-294 (documenting the 1882, 1891, 1901, and 1911 versions of § 2c). See also K. Martis, Historical Atlas of United
Unless the Court is willing to say that these States openly flouted federal law, the only way to read this history is to acknowledge that § 2c is not a statutory command. But see ante, at 275 (plurality opinion) (§2c is a “statutory com-man[d]”). Rather, §2c and its predecessors tell States what type of redistricting legislation they are allowed to pass (all others being prohibited). This reading also comports with the pre-1842 history of congressional elections. Before Congress passed its first version of § 2c in 1842, States routinely would elect more than one individual from a specific district. See Martis 4-5 (listing five States — Maryland, Massachusetts, New Jersey, New York, and Pennsylvania — that used multimember districts from the 3d Congress in 1793 through the 27th Congress in 1842). After the first version of §2e
An interpretation of §2a(c) which mandates that courts order at-large elections “[u]ntil a State is redistricted in the manner provided by the law thereof” does not mean that once a redistricting plan is in effect, § 2a(c) applies if a court later deems the apportionment plan invalid. The words of §2a(c) specifically refer to the process in which the State redistricts: “in the manner provided by the law thereof.” Section 2a(c) is no longer implicated after the State finishes its process of redistricting “in the manner provided by the law thereof after any apportionment.” When all required action by the State is complete, and when the state plan first becomes effective, the “State is redistricted in the manner provided by the law thereof.” Ibid.
B
Because the plurality’s construction of § 2a(c) has no statutory basis, the only way to understand the Court’s opinion is that the Court is overlooking the words of the statute for nontextual prudential reasons. Cf. A. Scalia, A Matter of Interpretation 18-23 (1997) (discussing the case of Church of Holy Trinity v. United States, 143 U. S. 457 (1892), and noting that “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former”).
The only other prudential reason why the plurality would distort the plain text of §2a(c) is to hold sub silentio that
Moreover, neither the plurality nor Justice Stevens can rely on the historical context of the pre-1967 cases to support their interpretations of §§ 2a(c) and 2c. This history in fact cuts against them. It is true that before 1967, some district courts threatened to impose at-large elections if the state redistricting plan were ruled unconstitutional. See ante, at 269-270 (majority opinion) (citing cases). In all these cases, however, a legislature had already redistricted “in the manner provided by the law thereof.” 2 U. S. C. § 2a(c).
The cases cited by the Court do not resolve the question of what happens when a State fails to redistrict “in the manner provided by the law thereof.” 2 U. S. C. §2a(c). The Court itself describes these pre-1967 cases as decisions where the courts “are remedying a failure to redistrict constitutionally.” Ante, at 270. I agree with the Court that when a court strikes down a State’s apportionment plan, §2c mandates that a court “draw single-member districts whenever possible.” Ibid. The historical context confirms that once a State is redistricted, and the court rules that the plan is unconstitutional, §2c ensures that courts not order at-large elections. Because in these pre-1967 cases the legislature had redistricted “in the manner provided by the law thereof,” § 2a(e) was not applicable. Thus, the Court cannot rely on these pre-1967 cases to support the notion that the
The Court also implies that it reads §2a(c) in the way it does because our decisions in Baker v. Carr, 369 U. S. 186 (1962), Wesberry v. Sanders, 376 U. S. 1 (1964), and Reynolds v. Sims, 377 U. S. 533 (1964), “ushered in a new era in which federal courts were overseeing efforts by badly malappor-tioned States to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards.” Ante, at 268. For Justice Stevens, these decisions explain why Congress passed §2c. See ante, at 287, 289-290. But these watershed opinions cannot change the meaning of §2a(c). First, a later development cannot change an unamended statute. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 780-784 (2000) (Scalia, J.). Since §2a(c) was enacted decades before the Baker line of cases, this subsequent development cannot change the interpretation of § 2a(c).
Second, the Court’s decision in Baker v. Carr, supra, rested in large part on the fact that courts were already involved in overseeing apportionment cases. Courts had been “directing” redistricting disputes since well before Baker. Ante, at 268. Indeed, the Court in Baker specifically acknowledged that “[a]n unbroken line of our precedents sustains the federal courts’ jurisdiction of the subject matter of federal constitutional claims of this nature.” 369 U. S., at 201-202 (citing cases, including Colegrove v. Green, 328 U. S. 549 (1946)). In Smiley v. Holm, 285 U. S., at 375, for exam-
In Wood v. Broom, 287 U. S. 1 (1932), the Court ruled on an issue strikingly similar to that in front of the Court today: the effect of the prior versions of §§2c and 2a(c) when the Mississippi congressional delegation was reduced by one seat. In fact, the District Court in Wood made a ruling on statutory grounds that would mirror the post-Baker constitutional review: “The District Court held that the new districts, created by the redistricting act, were not composed of compact and contiguous territory, having as nearly as practicable the same number of inhabitants, and hence failed to comply with the mandatory requirements of § 3 of the Act of August 8,1911.” 287 U. S., at 5. See also Hume v. Mahan, 1 F. Supp. 142 (ED Ky. 1932). Likewise, before Baker, state courts had enforced prior versions of §§2c and 2a(c). See, e. g., Moran v. Bowley, 347 Ill. 148, 179 N. E. 526 (1932); State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S. W. 2d 533 (1932). In short, while Baker and its progeny expanded the scope of federal court review, these cases did not change the fact that this Court recognized federal court jurisdiction over this subject matter at the time of § 2a(c)’s enactment. Therefore, the Baker line of cases could not have caused § 2a(c) to magically change meaning.
The plurality also seems to base its sub silentio holding of implied repeal on the fact that “[ejighty percent” of § 2a(c) is “dead letter.” Ante, at 273. But even assuming that the first four parts of § 2a(e) are currently unconstitutional, they were not necessarily unconstitutional when Congress passed § 2c in 1967. For instance, § 2a(c)(l) specifies that “[i]f there is no change in the number of Representatives, they shall be
This Court did not hold that a strict zero-deviation rule applied to redistricting cases until the 1983 decision of Karcher v. Daggett, 462 U. S. 725. Indeed, the decision of this Court in Wesberry v. Sanders, supra, stated only that congressional districts must be equal to each other “as nearly as is practicable.” Id., at 7-8. As Justice Stevens points out, after Wesberry, the House passed a bill in 1965 permitting congressional districts to deviate by as much as 15%. See ante, at 287-288. In 1967, in the same Congress that passed § 2c, the House passed a bill permitting congressional districts to deviate by as much as 10%. See ante, at 289. And it appears that at least with the State of New Mexico, the congressional apportionment plan did not change after the 1970 census. See Martis 247 (noting that New Mexico used its 1968 districting plan from the 91st through the 97th Congresses — in other words, from 1968 through 1983). These same principles also explain why as of 1967, §§ 2a(c)(2), 2a(c)(3), and 2a(c)(4) were similarly constitutional.
Even if parts of § 2a(c) would be unconstitutional today, a court can redistrict the existing district lines to make the districts constitutional while ordering an at-large election for the additional Representatives. Indeed, this approach best accords with the principle that a federal court’s “modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect.” Upham v. Seamon, 456 U. S. 37, 43 (1982) (per curiam). And even if only §2a(c)(5) were constitutional, the plurality correctly recognizes that §2a(c)(5) is easily severable from the rest of the statute. See ante, at 273.
Finally, the fact that a court must enter an order under §2a(c)(5) mandating at-large elections does not necessarily mean that the plan would violate §§2 or 5 of the Voting
In short, I cannot agree that the phrase “[u]ntil a State is redistricted in the manner provided by the law thereof” contains any sort of “imminence” requirement, a requirement without any statutory mooring. And although the plurality claims to hold that § 2c does not impliedly repeal § 2a(c), the plurality’s opinion makes sense only if § 2c serves as a partial implied repeal of § 2a(e). It is difficult to say, as the plurality does, that § 2a(c) “continues to apply,” ante, at 273, and also to say, as the plurality does, that § 2a(c) applies only if “the election is so imminent that no entity competent to complete redistricting pursuant to ... the mandate of § 2c [] is able to do so without disrupting the election process.” Ante, at 275. Unless and until Congress expressly repeals § 2a(c), I would hold that federal courts are required to order some form of at-large elections “[ujntil a State is redistricted in the manner provided by the law thereof after any apportionment.”
III
Having concluded that § 2a(c) applies [u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment,” it is necessary to consider the question
We have held that a “new reapportionment plan enacted by a State .. . will not be considered ‘effective as law,’ until it has been submitted and has received clearance under § 5.” Wise v. Lipscomb, 437 U. S. 535, 542 (1978) (plurality opinion) (quoting Connor v. Finch, 431 U. S. 407, 412 (1977)) (citation omitted). Accord, Connor v. Waller, 421 U. S., at 656 (an apportionment plan is “not now and will not be effective as laws until and unless cleared pursuant to §5”); Morris v. Gressette, 432 U. S. 491, 501-502 (1977) (“Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that legislation conforms to the Constitution and to the provisions of the Voting Rights Act”); Clark v. Roemer, 500 U. S. 646, 652 (1991); Hathorn v. Lovorn, 457 U. S. 255, 269 (1982) (“Our opinions repeatedly note that failure to follow [the preclearance procedures] renders the change unenforceable”). Indeed, in Hathorn v. Lovorn, we held that Mississippi itself could “not further implement [a] change until the parties comply with §5.” Id., at 270.
Preclearance is the final step in the process of redistricting. If the apportionment plan is not preeleared, it is not “effective as law,” and cannot be implemented. Under orn-ease law, then, a State is only redistricted once the clearance process is complete. Before a covered jurisdiction receives
The Mississippi Supreme Court has recognized that the redistricting process is not complete until the apportionment plan is cleared: “Voting changes subject to §5 ‘will not be effective as law until and unless cleared.’ ” In re McMillin, 642 So. 2d 1336, 1339 (Miss. 1994) (quoting Connor v. Waller, supra, at 656). In McMillin, the Mississippi Supreme Court held that a plan for nonpartisan judicial elections passed by the legislature was not yet effective because it had not been precleared. 642 So. 2d, at 1339. Consequently, the court ordered elections to occur under the old plan, which required partisan judicial elections. See ibid. (“Consequently, the statutes currently governing primary judicial elections and setting such elections for Tuesday, June 7, 1994, are the only enforceable provisions regarding said primaries”). Thus, despite the fact that the legislature had passed a law mandating nonpartisan judicial elections, despite the fact that the new law expressly repealed the old law, despite the fact that the Governor had signed the law, and despite the fact that the State had submitted the new law to the United States Attorney General for preelearance under §5, this new law was not operative for one reason: The United States Attorney General had not precleared this new law by the time of the new primary elections. See id., at 1338. Thus, at least in Mississippi, the old voting plan remains in effect until the new plan has been precleared.
Accordingly, the terms of § 2a(c)(5) should apply here, and the District Court should have ordered at-large elections for the entire state congressional delegation. Congress can expressly repeal §2a(c) quite easily. But it has not done so. This Court should not presume to act in Congress’ stead. And this Court should not read § 2a(c) in a manner divorced from any semblance of textual fidelity in order for it to reach what it deems to be the “correct” or more unintrusive re-
It does not matter whether § 2a(c) applies exclusively to legislative redistricting. Under the terms of § 2a(c), courts can be involved in the redistricting process. To the extent that courts are part of the “manner provided by the law thereof,” courts may redistrict. 2 U. S. C. §2a(c). And contrary to the plurality’s interpretation, the text of §2a(c) makes clear that this “manner” refers exclusively to state law. The manner in which a State redistricts can only refer to the process by which a State redistricts. Moreover, the plurality’s conflation of state and federal law is in substantial tension with this Court’s opinion in Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 (1984) (delineating a distinction between state and federal law when a federal court enters an injunction).
It is just as coercive for Congress to say that if the State does not comply with a legislative command, a federal court will enter an injunction making the State conform with Congress’ command. See, e. g., New York v. United States, 505 U. S. 144, 174-177 (1992) (striking down Congress’ “take title” provision because the choice between two unconstitutional choices is “no choice at all”). If § 2c is not a command, however, a State has the choice between passing redistricting legislation or using at-large elections. Section 2c merely limits the type of remedies that a federal court may adopt in response to a pre-existing violation of federal law. Neither it nor § 2a(c) affirmatively provides courts the authority to draw districts absent a violation. Rather, § 2a(c) specifies which remedy is appropriate for the constitutional violation. See 2 U. S. C. § 2a(c) (a court must order at-large elections “[ujntil a State is redistricted in the manner provided by the law thereof”).
Alabama (43d, 44th, 63d, 64th Congresses), Arkansas (43d, 48th Congresses), California (31st-38th, 48th Congresses), Colorado (58th-63d Congresses), Connecticut (58th-62d Congresses), Florida (43d, 63d Congresses), Georgia (28th, 48th Congresses), Iowa (29th Congress), Kansas (43d, 48th, 53d-57th, 59th, 60th Congresses), Idaho (63d-65th Congresses), Illinois (37th-42d, 53d, 63d-70th Congresses), Indiana (43d Congress), Louisiana (43d Congress), New York (43d, 48th Congresses), Maine (48th Congress), Michigan (63d Congress), Minnesota (35th-37th, 63d Congresses), Mississippi (28th, 29th, 33d Congresses), Missouri (28th, 29th Congresses), Montana (63d-65th Congresses), New Hampshire (28th, 29th Congresses), New Mexico (62d Congress), North Carolina (48th Congress), North Dakota (58th-62d Congresses), Ohio (63d Congress), Oklahoma (63d Congress), Pennsylvania (43d, 48th-50th, 53d-57th, 63d-67th Congresses), South Carolina (43d Congress), South Dakota (51st-62d Congresses), Tennessee (43d Congress), Texas (43d, 63d-65th Congresses), Utah (63d Congress), Virginia (48th Congress), Washington (53d-60th, 63d Congresses), West Virginia (63d, 64th Congresses), Wisconsin (30th Congress).
See, e. g., Calkins v. Hare, 228 F. Supp. 824, 825 (ED Mich. 1964) (“The plaintiffs have challenged the constitutionality of the congressional dis-tricting in this state”); Bush v. Martin, 251 F. Supp. 484, 488 (SD Tex. 1966) (“The question is whether the Texas 1965 Congressional Redistricting Act ... is constitutional”); Park v. Faubus, 238 F. Supp. 62, 63 (ED
Reference
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