OCTOBER TERM, 2002
Syllabus
BRANCH ET AL.
v. SMITH ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI
No. 01-1437. Argued December 10, 2002-Decided March 31,
2003*
After the 2000 census caused Mississippi to lose one
congressional seat, the state legislature failed to pass a new
redistricting plan. Anticipating a state-law deadline for
qualifying candidates, appellants and crossappellees (state
plaintiffs) filed suit in October 2001, asking the State Chancery
Court to issue a redistricting plan for the 2002 elections. In a
similar action, appellees and cross-appellants (federal plaintiffs)
asked the Federal District Court to enjoin the current plan and any
statecourt plan, and to order at-large elections pursuant to Miss.
Code Ann. § 23-15-1039 and 2 U. S. C. § 2a(c)(5) or, alternatively,
to devise its own redistricting plan. The three-judge District
Court permitted the state plaintiffs to intervene and concluded
that it would assert jurisdiction if it became clear by January 7,
2002, that no state plan would be in place by March 1. On the eve
of the state trial, the State Supreme Court ruled that the Chancery
Court had jurisdiction to issue a redistricting plan. The Chancery
Court adopted such a plan. On December 21, 2001, the state attorney
general submitted that plan and the Supreme Court's decision to the
Department of Justice (DOJ) for preclearance pursuant to § 5 of the
Voting Rights Act of 1965. DOJ requested additional information
from the State, noting that the 60-day review period would commence
once that information was received. The information was provided on
February 20, 2002. Meanwhile, the Federal District Court
promulgated a plan that would fix the State's congressional
districts for the 2002 elections should the state-court plan not be
precleared by February 25. When that date passed, the District
Court enjoined the State from using the state-court plan and
ordered that its own plan be used in 2002 and until the State
produced a precleared, constitutional plan. The court based the
injunction on the failure of the timely preclearance of the
state-court plan, but found, in the alternative, that the
state-court plan was unconstitutional. The State did not appeal.
DOJ declined to make a determination about the preclearance
submission because the District Court's injunction rendered the
state-court plan incapable of administration.
*Together with No. 01-1596,
Smith et al. v.
Branch et
al., also on appeal from the same court.
255
Held: The judgment is affirmed. 189 F. Supp. 2d 548,
affirmed.
JUSTICE SCALIA delivered the opinion of the Court with respect
to Parts I, II, and III-A, holding:
1. The District Court properly enjoined enforcement of the
statecourt plan. Pp. 261-266.
(a) There are two critical distinctions between these cases and
Growe v.
Emison, 507 U. S. 25. First, there
is no suggestion here that the District Court failed to allow the
state court adequate opportunity to develop a redistricting plan.
Second, the state-court plan here was subject to § 5 of the Voting
Rights Act. The controversy over whether the state-court plan was
precleared centers on § 5's proviso that whenever a covered
jurisdiction "shall enact or seek to administer" a voting change,
the change may be enforced if the Attorney General does not object
within 60 days. Pp. 261-263.
(b) DOJ's failure to object within 60 days of the state attorney
general's original submission did not render the state-court plan
enforceable on February 25. A jurisdiction seeking preclearance
must provide the Attorney General with information sufficient to
prove that the change is nondiscriminatory. DOJ regulations-which
are "wholly reasonable and consistent with the Act,"
Georgia
v.
United States, 411 U. S. 526,
541-provide that incomplete state submissions do not start the
60-day clock, and that the clock begins to run from the date that
requested information is received. DOJ's request here, which was
neither frivolous nor unwarranted, postponed the 60-day period. Pp.
263-264.
(c) The state-court plan was also not precleared 60 days after
the state attorney general submitted the requested information. The
State was "seek[ing] to administer" the changes within § 5's
meaning when its attorney general made his initial submission to
DOJ and when he provided additional information. However, when the
State failed to appeal the District Court's injunction, it ceased
"seek[ing] to administer" the state-court plan. The 60-day period
was no longer running, so the plan was not rendered enforceable by
operation of law. Because a private party's actions are not those
of a State, the state plaintiffs' appeal is insufficient to
demonstrate that the State still "seek[s] to administer" the plan.
Pp. 264-265.
(d) Since this Court affirms the injunction on the ground that
the state-court plan was not precleared and could not be precleared
in time for the 2002 election, the Court vacates the District
Court's alternative holding that such plan was unconstitutional.
pp. 265-266.
2. The District Court properly fashioned its own congressional
reapportionment plan under 2 U. S. C. § 2c. The tension between
256
Syllabus
§§ 2a(c)(5) and 2c is apparent: Pending redistricting, §
2a(c)(5) requires at-large elections if a State loses a
congressional seat, while § 2c, which was enacted 26 years later,
requires States with more than one Representative to use
single-member districts. Contrary to the federal plaintiffs'
contention, § 2c is not limited to legislative action, but also
applies to action by state and federal courts when the prescribed
legislative action has not been forthcoming. When §2c was adopted
in 1967, the issue was precisely the courts' involvement in
fashioning electoral plans. The Voting Rights Act had recently been
enacted, and this Court's decisions in,
e. g.,
Baker v.
Carr, 369 U. S. 186, had
ushered in a new era in which federal courts were overseeing
efforts by badly malapportioned States to conform their
congressional districts to one-person, onevote standards. Given the
risk that judges would simply order at-large elections, it is most
unlikely that § 2c was directed solely at legislative
apportionment. Nor has any court found §2c to be so limited. In
addition, § 2c's language is most susceptible of this
interpretation. Pp. 266-272.
JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY,
and JUSTICE GINSBURG, concluded in Part III-B that §2a(c)-where
what it prescribes is constitutional (as it is in paragraph
(5))-applies when a state legislature and the state and federal
courts have all failed to redistrict pursuant to § 2c. This
interpretation allows both §§ 2a(c) and 2c to be given effect.
Section 2a(c) governs the manner of any election held "[u]ntil a
State is redistricted in the manner provided by [state] law after
any apportionment." When a court redistricts pursuant to § 2c, it
necessarily does so in such a manner because it must follow the
State's "policies and preferences" for districting.
White v.
Weiser, 412 U.
S. 783, 795. A court may invoke § 2a(c)'s stopgap provision
only when an election is so imminent that redistricting pursuant to
state law (including § 2c's mandate) cannot be completed without
disrupting the election process. Mississippi's at-large provision
should be deemed operative when §§ 2a(c)(2) and (5) would be: The
state provision envisions both legislatively and judicially
prescribed change and does not come into playas long as it is
feasible for a state or federal court to complete redistricting.
Pp. 273-276.
JUSTICE STEVENS, joined by JUSTICE SOUTER and JUSTICE BREYER,
while agreeing that the District Court properly enjoined the
state-court plan's enforcement and promulgated its own plan under 2
U. S. C. § 2c, concluded that § 2c impliedly repealed § 2a(c) and
that the 1967 federal Act pre-empted Mississippi's statutory
authorization for at-large congressional elections. The presumption
against implied repeals, like that against pre-emption, is overcome
if there is an irreconcilable conflict between the two provisions
or if the later Act was clearly intended
257
to "cove[r] the whole subject of the earlier one."
Posadas v.
National City Bank,
296 U. S. 497, 503. By
prohibiting States with more than one Representative from electing
Representatives at-large, the 1967 Act unambiguously forbids
elections that § 2a(c)(5) would otherwise authorize. Thus, under
either of
Posadas' standards, the 1967 Act repealed the
earlier § 2a(c)(5) and pre-empted Mississippi's law. Any fair
reading of the history leading to the 1967 Act's passage shows that
the parties believed that the changes they were debating would
completely replace § 2a(c). The statute was the final gasp in a
protracted legislative process. Four versions of the original bill
expressly repealed § 2a(c), and there was no disagreement about
that provision. When that bill did not pass, its less controversial
parts, including what is now § 2c, were attached to a private bill.
The absence of any discussion, debate, or reference to the repeal
provision in the legislative process prevents its omission from the
final private bill as being seen as a deliberate choice by
Congress. pp. 285-292.
SCALIA, J., announced the judgment of the Court and delivered
the opinion for a unanimous Court with respect to Parts I and II,
the opinion of the Court with respect to Part III-A, in which
REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined, and an opinion with respect to Parts III -B
and IV, in which REHNQUIST, C. J., and KENNEDY and GINSBURG, JJ.,
joined. KENNEDY, J., filed a concurring opinion, in Part II of
which STEVENS, SOUTER, and BREYER, JJ., joined,
post, p.
282. STEVENS, J., filed an opinion concurring in part and
concurring in the judgment, in which SOUTER and BREYER, JJ.,
joined,
post, p. 285. O'CONNOR, J., filed an opinion
concurring in part and dissenting in part, in which THOMAS, J.,
joined,
post, p. 292.
Robert B. McDuff argued the cause for appellants in No.
01-1437 and cross-appellees in No. 01-1596. With him on the briefs
was
Pamela S.
Karlan.
James A. Feldman argued the cause for the United States as
amicus curiae supporting cross-appellees. With him on the brief
were Solicitor General Olson, Assistant Attorney General Boyd,
Deputy Solicitor General Clement, Mark L. Gross, and Kevin
Russell.
Michael B. Wallace argued the cause for appellees in No.
01-1437 and cross-appellants in No. 01-1596. With him
258
on the briefs were Arthur F. Jernigan, Jr., and Grant M.
Fox.t
JUSTICE SCALIA 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 Ann. § 23-15-
tBriefs of
amici curiae urging reversal in No. 01-1437
were filed for the National Association for the Advancement of
Colored People et al. by
J. Gerald Hebert and
Robert Rubin; and for the Nationalist Movement by
Richard
Barrett.
John P. Krill, Jr., filed a brief for Robert C. Jubelirer
et al. as
amici curiae urging affirmance in No. 01-1437.
259
1037 (Lexis 2001), dividing the State into five, rather than
four, congressional districts, was unconstitutional and
unenforceable. The federal plaintiffs asked the District Court to
enjoin the current redistricting plan, and subsequently asked it to
enjoin any plan developed by a state court (which they asserted
would violate Article I, § 4, of the Constitution, and, in any
event, could not be enforced until the state court's assertion of
redistricting authority was precleared under § 5 of the Voting
Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c), and asked
that it order at-large elections pursuant to Miss. Code Ann. §
23-15-1039 (2001) and 46 Stat. 26, 2 U. S. C. § 2a(c)(5), or,
alternatively, devise its own redistricting plan.
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
260
had jurisdiction to issue a redistricting plan.
In re
Mauldin, Civ. No. 2001-M-01891 (Dec. 13, 2001), App. to Juris.
Statement 1l0a. Following trial, on December 21,2001, the State
Chancery Court adopted a redistricting plan submitted by the state
plaintiffs. On December 26, the state attorney general submitted
that plan, along with the Mississippi Supreme Court's
Mauldin decision (which arguably changed the process for
drawing congressional districts by authorizing the Chancery Court
to create a redistricting plan), to the Department of Justice (DOJ)
for preclearance. On February 14, 2002, DOJ sent a letter to the
state attorney general requesting additional information about the
Mauldin decision, because "the information sent to date
regarding this change in voting procedure is insufficient .... "
App. to Juris. Statement 193a. The letter advised that the
"sixty-day review period will begin when we receive the information
specified."
Id., at 196a. The state attorney general
provided additional information on February 19 and 20, 2002.
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
261
a constitutional redistricting plan that was precleared. 189 F.
Supp. 2d 548, 559. The court said that the basis for its injunction
and order was "reflected in our opinion of February 19, that is,
the failure of the timely preclearance under § 5 of the Voting
Rights Act of the Hinds County Chancery Court's plan."
Id.,
at 549. However, "in the event that on appeal it is determined that
we erred in our February 19 ruling," the court put forth as its
"alternative holding" that Article I, § 4, of the United States
Constitution prohibited the State Chancery Court from issuing a
redistricting plan without express authorization from the state
legislature.
Ibid.
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 statecourt plan incapable of
administration. App. 29.
The state plaintiffs-intervenors in the District Courtfiled 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
262
that duty, a federal court must neither affirmatively obstruct
state reapportionment nor permit federal litigation to be used to
impede it." 507 U. S., at 34 (emphasis added). In the present
cases, unlike in
Growe, there is no suggestion that the
District Court failed to allow the state court adequate opportunity
to develop a redistricting plan. The second distinction is that the
state-court plan here, unlike that in
Growe, was subject to
§ 5 of the Voting Rights Act, 42 U. S. C. § 1973c. The District
Court rested its injunction of the state-court plan on the ground
that necessary preclearance had not been obtained. It is that
challenged premise that we examine first.
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, 2001or, in the alternative, it was
subsequently rendered enforce-
263
able by DOJ's failure to object within the 60-day period running
from the state attorney general's submission of additional
information on February 20, 2002. We consider each of these
contentions in turn.
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
264
the purpose or effect of denying or abridging the right to vote
on account of race, color, or membership in a language minority
group, as required under § 5. The fact that the District Court
identified the same issue as posing a hurdle to preclearance
further suggests that DOJ's request was not frivolous. 189 F. Supp.
2d, at 508-509. The request for more information was not frivolous
or unwarranted at the time it was made, regardless of whether it
ultimately develops that
Mauldin and the Chancery Court's
assertion of jurisdiction to redistrict are not voting changes that
required preclearance.
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 "seek[ing] to administer"
it.
265
There is no doubt that the State was "seek[ing] to administer"
the changes for which preclearance was sought when the Mississippi
attorney general made his initial submission to DOJ on December 26,
2001, and when he provided additional information regarding the
state-court plan on February 20, 2002. On February 26, 2002,
however, the District Court "enjoined [the State] from implementing
the congressional redistricting plan adopted by the [state court],"
189 F. Supp. 2d, at 559, and the State
never appealed that
injunction. Uncontrovertibly, the State was no longer "seek[ing] to
administer" the state-court plan, and thus the 60-day time period
for DOJ review was no longer running. The passing of 60 days from
the date of the State's February 20, 2002, submission of the
additional requested information had no legal significance, and the
state-court plan was not rendered enforceable by operation of
law.
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
266
federal officials should Mississippi seek in the future to
administer a redistricting plan adopted by the Chancery Court.
III
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-
268
sentative to elect their Representatives from single-member
districts, rather than from multimember districts or the State at
large. Section 2a(c), however, requires multimember districts or
at-large elections in certain situations; and with particular
relevance to the present cases, in which Mississippi, by reason of
the 2000 census, lost a congressional seat, § 2a(c)(5) requires
at-large elections. Cross-appellants would reconcile the two
provisions by interpreting the introductory phrase of § 2a(c)
("Until a State is redistricted in the manner provided by the law
thereof after any apportionment") and the phrase "established by
law" in § 2c to refer exclusively to
legislative
redistricting-so that § 2c tells the legislatures what to do
(single-member districting) and § 2a(c) provides what will happen
absent legislative actionin the present cases, the mandating
of at-large elections.
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,
269
the risk arose that judges forced to fashion remedies would
simply order at-large elections.
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
270
held forth the possibility of requiring at-large elections. With
all this threat of judicially imposed at-large elections, and (as
far as we are aware) no threat of a legislatively imposed change to
at-large elections, it is most unlikely that § 2c was directed
solely at legislative reapportionment.
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. 952, 969 (WD Mo. 1967), aff'd,
394 U. S. 526 (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, 185 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 Gal. 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
271
pursuant to § 2a(c)(5) because § 2c "appears to prohibit atlarge
elections." And in
Carstens v.
Lamm, 543 F. Supp. 68
(Colo. 1982), the District Court reached a substantially identical
result, although contemplating that § 2a(c) provided a "stop-gap
measure" in the "event that no constitutional redistricting plan
exists on the eve of a congressional election, and there is not
enough time for either the Legislature or the courts to develop an
acceptable plan,"
id., at 77, and n. 23.
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 § 2c 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
272
also § 2254(d)(1) ("clearly established Federal law, as
determined by the Supreme Court of the United States");
Marbury v.
Madison, 1 Cranch 137, 177 (1803) (it is
"the province and duty of the judicial department to say what the
law is").
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.
273
B
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.
274
Opinion of SCALIA, J.
Section 2a(c) is, of course, only
provisionally
applicable.
It governs the manner of election for Representatives in any
election held "[u]ntil a State is redistricted in the manner
provided by the law thereof after any apportionment." That language
clashes with § 2c only if it is interpreted to forbid judicial
redistricting unless the state legislature has first acted. On that
interpretation, whereas § 2c categorically instructs courts to
redistrict, § 2a(c)(5) forbids them to do anything but order
at-large elections unless the state legislature has acted. But
there is of course no need for such an interpretation. "Until a
State is redistricted" can certainly refer to redistricting by
courts as well as by legislatures. Indeed, that interpretation
would seem the preferable one even if it were not a necessary means
of reconciling the two sections. Under prior versions of § 2a(c),
its default or stopgap provisions were to be invoked for a State
"until the
legislature of such State ... [had]
redistrict[ed] such State." Act of Jan. 16, 1901, ch. 93, § 4, 31
Stat. 734 (emphasis added); see Act of Feb. 7, 1891, ch. 116, § 4,
26 Stat. 736 ("until such State be redistricted as herein
prescribed by the
legislature of said State" (emphasis
added)); Act of Feb. 25, 1882, ch. 20, § 3, 22 Stat. 6 ("shall be
elected at large, unless the
Legislatures of said States
have provided or shall otherwise provide" (emphasis added)). These
provisions are in stark contrast to the text of the current §
2a(c): "[u]ntil a State is redistricted in the manner provided by
the law thereof."
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,
275
when "adherence to state policy ... detract[s] from the
requirements of the Federal Constitution."
White v.
Weiser, 412 U.
S. 783, 795 (1973). Federal constitutional prescriptions, and
federal statutory commands such as that of § 2c, are appropriately
regarded, for purposes of § 2a(c), as a part of the state election
law.
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 elec-
tion 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
Opinion of SCALIA, J.
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 playas
long as it remains feasible for a state or federal court to
complete redistricting. In these cases, 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(c) 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(c) 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 '[u]ntil 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.
277
The dissent does contemplate a role for federal courts in
redrawing congressional districts, but only
"after a State
has been redistricted" in the first instance.
Post, at 300.
It is not entirely clear which entities the dissent considers
competent to do this initial redistricting-certainly the
legislature, and perhaps also state courts, but only if such
"courts are part of the 'manner provided by the law thereof.'"
Post, at 300, n. 1. But the dissent also says that "a court
should enforce § 2a(c)
before a 'State is redistricted in
the manner provided by the law thereof,' and a court should enforce
§ 2c
after a State" has been initially redistricted,
post, at 300which (if one takes the words at face value)
leaves no room for any court to do the initial redistricting. We
assume the dissent does not mean precisely what it has said.
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 statebut 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-
278
Opinion of SCALIA, J.
ences" for redistricting,
White v.
Weiser, 412 U.
S., at 795, as expressed in a State's statutes, constitution,
proposed reapportionment plans, see
ibid., or a State's
"traditional districting principles,"
Abrams v.
Johnson, 521 U.
S. 74, 86 (1997); see also
Upham v.
Seamon,
456 U. S. 37,
42-43 (1982)
(per curiam). Thus, when a federal court
redistricts a State in a manner that complies with that State's
substantive districting principles, it does so "'in the manner
provided by the law thereof.'" See
supra, at 274-275.* While
it certainly remains preferable for the State's legislature to
complete its constitutionally required redistricting pursuant to
the requirements of § 2c, see
Abrams, supra, at 101, or for
the state courts to do so if they can, see
Growe, 507 U. S.,
at 34, we have long since crossed the Rubicon that seems to impede
the dissent, see,
e. g., Baker v.
Carr, 369 U. S. 186 (1962).
When the State, through its legislature or other authorized body,
cannot produce the needed decision, then federal courts are "left
to embark on [the] delicate task" of redistricting,
Abrams,
supra, at 10l.
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
*Contrary to the dissent's assertion,
post, at 300, 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[tJ 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.
279
"the text tells us 'how long' § 2a(c) should govern:
'until a State is redistricted in the manner provided by the
law thereof,'"
post, at 299. The issue is not how long §
2a(c) governs, but how long a court (under the continuing mandate
of § 2a(c)) should wait before ordering an at-large election. The
dissent treats § 2a(c) as though it prescribes (in its application
to the facts of the present case) the immediate establishment of
statewide districts (i.
e., an at-large election) for all
Representatives. It prescribes no such thing. All it says is that
"[u]ntil [the] State is redistricted in the manner provided by the
law thereof," Representatives "shall be elected from the State at
large." The only point at which § 2a(c) issues a command-the only
point at which it bitesis at
election time. Only if,
at
election time, redistricting "in the manner provided by [state]
law" has not occurred, does § 2a(c) become operative.
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 court 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
280
Opinion of SCALIA, J.
the state legislature's obligation to prescribe the "Times,
Places and Manner" of holding congressional elections is grounded
in Article I, § 4, cl. 1, of the Constitution itself and not any
mere statutory requirement. Here, as acknowledged by the dissent,
the federal plaintiffs "alleged a constitutional violation"-failure
to provide for the election of the proper number of Representatives
in accordance with Article I, § 2, cl. l-"and the federal court
drew a plan to remedy that violation,"
post, at 301. In
crafting its remedy, the District Court appropriately followed the
"Regulations" Congress prescribed in § 2c-"Regulations" that
Article I, § 4, cl. 1, of the Constitution expressly permits
Congress to make, see
supra, at 266. To be sure, § 2c
"envisions legislative action,"
supra, at 272, but in the
context of Article I, § 4, cl. 1, such "Regulations" are
expressly allowed. In enacting § 2c (and § 2a(c), for that
matter), Congress was not placing a statutory obligation on the
state legislatures as it was in
New York v.
United
States, 505 U. S.
144 (1992); rather, it was regulating (as the Constitution
specifically permits) the manner in which a State is to fulfill its
pre-existing constitutional obligations under Article I, §§ 2 and
4. Our interpretation of § 2c no more permits a commandeering of
the machinery of state government than does the dissent's
understanding of § 2a(c). Under our view, if the State fails to
redistrict, then federal courts may do so. Under the dissent's
view, if the State fails to redistrict (and loses congressional
seats), then the federal courts
must order at-large
elections pursuant to § 2a(c)(5). See,
e. g., post, at
299-300. If our reading of § 2c runs afoul of any anticommandeering
principles, then the dissent commits the same sin.
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 cases, 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
281
§ 2a(c); we have said that they help to explain the meaning of §
2c, which
was enacted after they were decided. And it is, of
course, the most rudimentary rule of statutory construction (which
one would have thought familiar to dissenters so prone to
preachment on that subject, see,
e. g., post, at 298, 304,
307) that courts do not interpret statutes in isolation, but in the
context of the
corpus juris of which they are a part,
including later-enacted statutes:
"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 anyone 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
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
282
Voting Rights Act, 42 U. S. C. § 1973c). See
post, at
310-312. That is to say, in the dissent's view a redistricted State
is not "redistricted" within the meaning of § 2a(c) if the
districts have not been precleared, but it is "redistricted" even
if the districts are patently unconstitutional (so long as they
have been precleared, or the State is not subject to the
preclearance requirement). Section 2a(c), of course, has no
"preclearance exception." If redistricting "in the manner provided
by [state] law" is ineffective when a federal statute (§ 5
preclearance) has been disregarded, surely it is also ineffective
when the Federal Constitution has been disregarded. It is not we
but the dissent that reads into the text of § 2a(c) ("redistricted
in the manner provided by [state] law") distinctions that have no
basis in reality.
***
The judgment of the District Court is
Affirmed.
JUSTICE KENNEDY, 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 1\1. 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 precleared 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,
283
421 U. S. 656
(1975)
(per curiam); United States v.
Board of
Supervisors of Warren Cty., 429 U. S. 642, 646-647
(1977)
(per curiam); Connor v.
Finch, 431 U. S. 407, 412
(1977);
Wise v.
Lipscomb, 437 U. S. 535, 542 (1978)
(opinion of White, J.); see also
post, at 292 (O'CONNOR, J.,
concurring in part and dissenting in part). Once the District Court
found no preclearance, it was premature, given this statutory
scheme, for the court to consider the constitutional question.
Where state reapportionment enactments have not been precleared in
accordance with § 5, the district court "err[s] in deciding the
constitutional challenges" to these acts.
Connor v.
Waller, supra, at 656.
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
284
this way anticipate a ruling not yet made by the Executive. The
proposed changes are not capable of implementation, and the
constitutional objections may be resolved through the preclearance
process.
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
appellees 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 appellees 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
285
to remedy constitutional defects without the involvement of
federal courts. Given the statutory command of direct review to
this Court, it also helps to ensure that only constitutional issues
necessary to the resolution of the electoral dispute are brought to
us.
JUSTICE STEVENS, 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. § 2c 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 1\1.
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).1
1 Compare
Posadas, 296 U. S., at 503 ("There are two
well-settled categories of repeals by implication-(l) 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
286
Opinion of STEVENS, J.
As I read the 1967 statute it entirely prohibits States that
have more than one congressional district from adopting either a
multimember district or electing their Representatives in at-large
elections, with one narrow exception that applied to the 1968
election in two States. After a rather long and contentious
legislative process, Congress enacted this brief provision:
"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-
Corp. v.
Myrick, 514 U. S. 280, 287 (1995)
("[A] federal statute implicitly overrides state law either when
the scope of a statute indicates that Congress intended federal law
to occupy a field exclusively,
English v.
General Elec.
Co., 496 U. S.
72, 78-79 (1990), or when state law is in actual conflict with
federal law").
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.2 That the single exception to this congressional command
applied only to Hawaii and New Mexico, and only to the 1968
election, emphasizes the fact that the Act applies to every other
State and every other election. Thus, it unambiguously forbids
elections that would otherwise have been authorized by § 2a(c)(5).
It both creates an "irreconcilable conflict" with the 1941 law and
it "covers the whole subject" of at-large congressional elections.
Posadas, 296 U. S., at 503. Under either of the accepted
standards for identifying implied repeals, it repealed the earlier
federal statute. In addition, this statute pre-empts the
Mississippi statute setting the default rule as 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.3 The bill introduced by Representative
Celler in 1967 contained express language replacing
2The 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.
3 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).
288
Opinion of STEVENS, J.
§ 2a(c) in its entirety.4 H. R. 2508, as introduced, had three
principal components that are relevant to the implied repeal
analysis. First, the bill required single-member district
elections: "[T]here 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." H. R. 2508, 90th Cong., 1st Sess., 2 (1967).
Second, the bill limited gerrymandering, requiring each district to
"at all times be composed of contiguous territory, in as compact
form as practicable."
Ibid. Third, the bill required
proportional representation: "[N]o district established in any
State for the Ninetieth or any subsequent Congress shall contain a
number of persons, excluding Indians not taxed, more than 15 per
centum greater or less than the average obtained" by dividing the
population by the number of Representatives.
Ibid.
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.
4 Specifically, § 2a(c) 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).
289
The House Judiciary Committee amended the bill, limiting the
proportional differences between districts in all States to not
exceed 10 percent and creating an exception to the general rule for
the 91st and 92d Congresses (1968 and 1970 elections) that allowed
for "the States of Hawaii and New Mexico [to] continue to elect
their Representatives at large" and for the proportional
differences to be as large as 30 percent. H. R. Rep. No. 191, 90th
Cong., 1st Sess., 1-2 (1967). The House then passed this amended
bill. The Senate Judiciary Committee then amended this bill,
striking Hawaii from the exception and allowing for 35 percent,
rather than 30 percent, variation between districts during the 91st
and 92d Congresses. S. Rep. No. 291, 90th Cong., 1st Sess., 1
(1967). The bill went to conference twice, and the conference
recommended two sets of amendments. The first Conference Report,
issued June 27, 1967, recommended striking any exception to the
general rule and limiting proportional variation to 10 percent or
less. See H. R. Conf. Rep. No. 435, 90th Cong., 1st Sess., 1-2
(1965). After this compromise failed to pass either the House or
the Senate, the conference then recommended a measure that was very
similar to the second paragraph of the private bill eventually
passed-a general rule requiring single-member districts with an
exception, of unlimited duration, for Hawaii and New Mexico. H. R.
Conf. Rep. No. 795, 90th Cong., 1st Sess., 1 (1965). Importantly,
every version of the bill discussed in the House Report, the Senate
Report, and both Conference Reports contained a provision expressly
repealing § 2a(c). In spite of these several modifications, the
bill, as recommended by the last conference, failed to pass either
chamber.
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-
290
Opinion of STEVENS, J.
ers, 376 U.
S. 1 (1964).5 The absence of any discussion, debate, or
reference to the provision expressly repealing § 2a(c) in the
private bill prevents its omission from the final bill as being
seen as a deliberate choice by Congress. Any fair reading of the
history leading up to the passage of this bill demonstrates that
all parties involved were operating under the belief that the
changes they were debating would completely replace § 2a(c).
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
5 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 Congo 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).
291
that an important federal interest in prohibiting at-large
voting, particularly in States like Mississippi, became a matter of
congressional concern. This intervening and dramatic historical
change significantly lessens the relevance of these earlier
statutes to the present analysis.
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 atlarge elections in the 1882 statute cited by
JUSTICE O'CONNOR 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(c)(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
292
Opinion of O'CONNOR, J.
of a clause expressly repealing § 2a(c) was simply an
inadvertence. Canons of statutory construction-such as the
presumption against implied repeals or the presumption against
pre-emption-are often less reliable guides in the search for
congressional intent than a page or two of history.
***
The history of the 1967 statute, coupled with the plain language
of its text, leads to only one conclusion-Congress impliedly
repealed § 2a(c). 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.
JUSTICE O'CONNOR, 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(c) together. A natural statutory
reading of § 2a(c) gives force to both §§ 2c and 2a(c):
293
Section 2a(c) applies "[u]ntil a State is redistricted in the
manner provided by the law thereof." Section 2c applies
after a State has "redistricted in the manner provided by
the law thereof."
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 singlemember district
requirement as well as the at-large default
294
Opinion of O'CONNOR, J.
requirement. Compare Act of Feb. 25, 1882, ch. 20, § 3, 22 Stat.
6 ("[T]he number to which such State may be entitled
... shall
be elected by Districts ... , no one District electing more
than one Representative" (emphasis added)), with
ibid. (" ...
shall be elected at large, unless the Legislatures of said
States have provided or shall otherwise provide before the time
fixed by law for the next election of Representatives therein"
(emphasis added)); Act of Feb. 7, 1891, ch. 116, § 3, 26 Stat. 735
("[T]he number to which such State may be entitied ...
shall be
elected by districts" and "[t]he
said districts shall be
equal to the number of Representatives to which such State may
be entitled in Congress, no one district electing more than one
Representative" (emphasis added)), with § 4, 26 Stat. 736 ("[S]uch
additional Representative or Representatives
shall be elected by
the State at large" (emphasis added)); Act of Jan. 16, 1901,
ch. 93, § 3, 31 Stat. 734 ("[T]he number to which such State may be
entitled ...
shall be elected by districts" and "[t]he
said districts shall be equal to the number of
Representatives to which such State may be entitled in Congress, no
one district electing more than one Representative" (emphasis
added)), with § 4, 31 Stat. 734 ("[I]f the number hereby provided
for shall in any State be less than it was before the change hereby
made, then the whole number to such State hereby provided for
shall be elected at large, unless the legislatures of said
States have provided or shall otherwise provide before the time
fixed by law for the next election of Representatives therein"
(emphasis added)); Act of Aug. 8, 1911, ch. 5, § 3, 37 Stat. 14
("[T]he Representatives ...
shall be elected by districts"
and "[t]he
said districts shall be equal to the number of
Representatives to which such State may be entitled in Congress, no
one district electing more than one Representative" (emphasis
added)), with § 4, 37 Stat. 14 ("[S]uch additional Representative
or Representatives
shall be elected by the State at large
... until such State shall be redistricted in the manner provided
by the laws thereof").
295
JUSTICE STEVENS attempts to distinguish the prior versions of §
2a(c) because they contained slightly different language from the
present version of § 2a(c). See
ante, at 291. Even assuming,
however, that the 1882 version of § 2a(c) is slightly different
from the present version, the versions of § 2a(c) in effect in
1891, 1901, and 1911 are materially indistinguishable from the
present version. Indeed, the 1911 statute-the one in effect at the
time Congress enacted the present version of § 2a(c)-is almost word
for word the same as the current statute. Compare Act of Aug. 8,
1911, ch. 5, § 4, 37 Stat. 14 ("until such State shall be
redistricted in the manner provided by the laws thereof"), with 2
U. S. C. § 2a(c) ("[u]ntil a State is redistricted in the manner
provided by the law therof"). See also
Smiley v.
Holm, 285 U.
S. 355, 374 (1932) (noting that the 1911 version of § 2a(c)
would apply "unless and until new districts are created").
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 ("[U]nless and until new districts are created,
all representatives allotted to the State must be elected by the
State at large").
296
Opinion of O'CONNOR, J.
When the 1911 statute expired in 1929, Congress did not reenact
it. Instead, Congress passed § 2a(c), which took effect in 1941.
Because § 2a(c) concerned only at-large elections, no complementary
single-member district requirement existed from 1941 until 1967. In
1967, Congress enacted § 2c, which states in relevant part:
"[T]here 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 relevant language of this statute tracks the language of the
prior versions of § 2c. JUSTICE STEVENS' only distinction between
the prior versions of § 2c and this version of § 2c is that
Congress added the word "only" to the latest version of § 2c. See
ante, at 288. But this one word is a thin reed on which to
rest an implied repeal. JUSTICE STEVENS would hold that instead of
expressly repealing § 2a(c), Congress added the word "only" to §
2c. This oneword addition that does not change the meaning of the
statute is no basis for finding an implied repeal.
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-
297
ment that Congress "'clearly intended'" § 2c "'as a substitute'"
for § 2a(c) is untenable.
Ante, at 285, n. 1;
Posadas
v.
National City Bank, supra, at 503. Cf.
Regional Rail
Reorganization Act Cases, 419 U. S. 102, 134 (1974)
(" 'Presumably Congress had given serious thought to the earlier
statute .... Before holding that the result of the earlier
consideration has been repealed or qualified, it is reasonable for
a court to insist on the legislature's using language showing that
it has made a considered determination to that end' ").
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.
298
Opinion of O'CONNOR, J.
In short, because §§ 2a(c)(5) and 2c are capable of coexistence,
and because the history shows that § 2c does not cover the whole
subject of § 2a(c), I agree with the plurality that § 2c does not
impliedly repeal § 2a(c), and therefore that § 2a(c) "continues to
apply."
Ante, at 273.
II 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 "[u]ntil 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 faithful 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 "[d]uring the whole time before");
Webster's Collegiate Dictionary 1297
299
(10th ed. 1993) (defining "until" to mean "up to such time as"
or "[b]efore"). The word "redistricted" also is not hard to
comprehend.
Id., at 980 (defining "redistrict" to mean "to
divide anew into districts"); Black's Law Dictionary 1283 (7th ed.
1999) (defining "redistrict" to mean "[t]o organize into new
districts, esp. legislative ones; reapportion"). While the Court
employs dictionary definitions to interpret § 5 of the Voting
Rights Act of 1965, see
ante, at 264, it notably refrains
from using any dictionary definition for § 2a(c).
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:
"[u]ntil
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
300
Opinion of O'CONNOR, J.
in the manner provided by the law thereof after any
apportionment," a court cannot draw single-member districts.
Ibid. (emphasis added). The court must apply the terms of §
2a(c) and order at-large elections. If, however, the State is
redistricted "in the manner provided by the law thereof," § 2c
applies. Thus,
after a State has been redistricted, if a
court determines that the redistricting violates the Constitution
or the Voting Rights Act, the correct remedy for such a violation
is the § 2c procedure of drawing single-member districts that
comport with federal statutory law and the Constitution. But
"[u]ntil a State is redistricted in the manner provided by the law
thereof," § 2a(c)(5) mandates that a court order at-large
elections. In short, a court should enforce § 2a(c)
before a
"State is redistricted in the manner provided by the law thereof,"
and a court should enforce § 2c
after a State has been
"redistricted in the manner provided by the law thereof."
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 themselves. Rather, both these
provisions address the
remedy that a federal court must
order if it finds a violation of a constitutional or statutory
right.1 The federal plaintiffs in
1 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).
301
this litigation alleged a constitutional violation, and the
federal court drew a plan to remedy that violation. Having found a
constitutional violation, the federal court was required to fashion
the appropriate remedy of § 2c or § 2a(c) depending on whether the
"State is redistricted in the manner provided by the law thereof."
2 U. S. C. § 2a(c).
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 "[u]ntil 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 anticommandeering
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.) ("[S]tate 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[e]" the
times, places, and manner of
302
Opinion of O'CONNOR, J.
holding congressional elections. But of course, Article I, § 8,
uses similar language when it authorizes Congress to "regulate
Commerce ... among the several States." Whether the
anticommandeering principle of
New York and
Printz is
as robust in the Article I, § 4, context (the font of congressional
authority here) as it is in the Article I, § 8, context (the source
of congressional authority in those cases) is a question that need
not be definitively resolved here. In any event, the canon of
constitutional avoidance counsels strongly against the reading of
§§ 2c and 2a(c) adopted in Parts III and IV of the principal
opinion. The Court's reading of § 2c, see
ante, at
271-272-also adopted by JUSTICE STEVENSinvites a future facial
attack to the constitutional validity of §2c.2
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
2 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 "[u]ntil a State is redistricted in the
manner provided by the law thereof").
303
States Congressional Districts 1789-1983, pp. 4, 6 (1982)
(hereinafter Martis) (documenting 36 States that used atlarge
elections from the 28th Congress-after Congress passed the first
version of § 2c in 1842-through the 70th Congress, when the last
version of § 2c expired in 1929).3 Indeed, in
every Congress
from 1843 until 1929, at least one State used some form of at-large
representation.
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
comman[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 § 2c
3 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).
304
Opinion of O'CONNOR, J.
went into effect, however, States could no longer use
multimember districts. Rather, States could either redistrict using
single-member districts or use at-large elections. In short, § 2c
does not tell States that they must pass redistricting legislation.
Section 2c is instead a restriction on the
type of
legislation that a State may pass-a restriction completely
consistent with
New York and
Printz. And § 2a(c)
provides that at-large elections will be the default mechanism if
States choose not to pass redistricting legislation.
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
305
§ 2c impliedly repeals § 2a(c). Why else would the plurality
note the "tension" between the two statutes,
ante, at 273,
note that "[t]here is something to be said for [the implied repeal]
position,"
ibid., and engage in such a long exegesis about
the historical context surrounding the enactment of § 2c? See
ante, at 268-271 (majority opinion). The plurality adopts
the reading of § 2a(c) proposed by one District Court in a 1982
decision. See
Carstens v.
Lamm, 543 F. Supp. 68
(Colo. 1982). As the United States recognizes in its brief, the
reasoning of
Carstens is nothing less than a
partial
implied repeal of § 2a(c). See Brief for United States as
Amicus Curiae 29. ("Section 2c's unequivocal mandate that
Members of the House of Representatives should be elected from
single-member districts (except where exigencies of time render
that impracticable, see
Carston [sic] v.
Lamm, supra)
resolves that problem. It creates a workable and sensible regime
that faithfully fulfills Congress's purpose when it enacted Section
2c in 1967"); see also
id., at 10 ("While ... repeal by
implication is disfavored, so is failure to give a later-enacted
statute the full scope that its terms require").
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).4
4 See,
e. g., Calkins v.
Hare, 228
F. Supp. 824, 825 (ED Mich. 1964) ("The plaintiffs have challenged
the constitutionality of the congressional districting 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
306
Opinion of O'CONNOR, J.
Thus, Congress' response in enacting § 2(c) cannot be read to
target anything more than situations in which a State had already
"redistricted in the manner provided by the law thereof." And of
course, once a State was redistricted in this manner, § 2a(c) by
its terms would not apply. If anything, the enactment of § 2c in
1967 clarified that the statutory balance between §§ 2c and 2a(c)
that had existed in prior versions of the statute would continue to
exist.
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 atlarge elections. Because in these pre-1967
cases the legislature had redistricted "in the manner provided by
the law thereof," § 2a(c) was not applicable. Thus, the Court
cannot rely on these pre-1967 cases to support the notion that
the
Ark. 1965) ("It is alleged that Act 5 of the Second
Extraordinary Session of the Acts of the General Assembly of the
State of Arkansas for the year of 1961, being the Act which divides
the State of Arkansas into congressional districts, deprives
plaintiff and others similarly situated of their right to vote"
(citation omitted));
Preisler v.
Secretary of State,
257 F. Supp. 953, 955 (WD Mo. 1966) (The "plaintiffs contest
the constitutional validity of Missouri's 1965 Congressional
Redistricting Act");
Meeks v.
Anderson, 229 F. Supp.
271, 272 (Kan. 1964) ("The action was brought by qualified voters
in four of the five Congressional Districts of Kansas, seeking to
have Kansas Statutes, which is the last congressional
reapportionment by the Kansas Legislature, declared
unconstitutional" (citation omitted));
Baker v.
Clement, 247 F. Supp. 886, 888 (MD Tenn. 1965) ("This case
presents the question of whether the statute creating Tennessee's
nine congressional districts violates Article 1, Section 2 of the
Constitution of the United States").
307
historical context surrounding the enactment of § 2c renders §
2a(c) toothless. Indeed, it is unclear why the Court examines this
historical context at all. Cf.
Bank One Chicago, N.
A. v.
Midwest Bank &
Trust Co., 516 U. S. 264, 279 (1996)
(SCALIA, J., concurring in part and concurring in judgment) ("In my
view a law means what its text most appropriately conveys, whatever
the Congress that enacted it might have 'intended.' The law
is what the law
says, and we should content ourselves
with reading it rather than psychoanalyzing those who enacted
it").
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 malapportioned 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-
308
Opinion of O'CONNOR, J.
pIe, we specifically reached the redistricting question, and
held that the prior versions of §§ 2c and 2a(c) mandated atlarge
elections "in the absence of a redistricting act." We held that
at-large elections were required "in order to afford the
representation to which the State is constitutionally entitled, and
the general provisions of the Act of 1911 cannot be regarded as
intended to have a different import."
Ibid.
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 "[e]ighty percent" of § 2a(c) is
"dead letter."
Ante, at 273. But even assuming that the
first four parts of § 2a(c) are currently unconstitutional, they
were not necessarily unconstitutional when Congress passed § 2c in
1967. For instance, § 2a(c)(1) specifies that "[i]f there is no
change in the number of Representatives, they shall be
309
elected from the districts then prescribed by the law of such
State." While it is true today that no district could in all
probability remain exactly the same after an apportionment, it was
not true in 1967.
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
310
Opinion of O'CONNOR, J.
Rights Act, 42 U. S. C. §§ 1973, 1973c, or that traditional
winner-take-all elections are required on a statewide basis.
Rather, as cross-appellants acknowledge, Brief for CrossAppellants
in No. 01-1596, pp. 27-28; Tr. of Oral Arg. 47-48, a court could
design an at-large election plan that awards seats on a cumulative
basis, or by some other method that would result in a plan that
satisfies the Voting Rights Act. Cf.
Growe v.
Emison,
507 U. S. 25, 40
(1993);
Rogers v.
Lodge, 458 U. S. 613, 616-617
(1982);
Holder v.
Hall, 512 U. S. 874, 897-898,
908-912 (1994) (THOMAS, J., concurring in judgment);
Dillard
v.
Chilton County Bd. of Ed., 699 F. Supp. 870 (MD Ala.
1988); see also S. Issacharoff, P. Karlan, & R. Pildes, The Law
of Democracy 1091-1151 (rev. 2d ed. 2002); Pildes & Donoghue,
Cumulative Voting in the United States, 1995 U. Chi. Legal F. 241,
251-257.
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(c).
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
"[u]ntil 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
311
that the Court intentionally avoids: whether the State of
Mississippi here has been "redistricted in the manner provided by
the law thereof." If it has not, § 2a(c) applies, and the District
Court should have ordered at-large elections. If it has been
"redistricted," the District Court was correct to draw
single-member districts under § 2c. Under this Court's consistent
case law, and under Mississippi state law, a State is not
"redistricted" until the apportionment plan has been precleared
under § 5 of the Voting Rights Act, 42 U. S. C. § 1973c. Because
Mississippi's plan has not been precleared, I would hold that §
2a(c) applies.
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 precleared, it is not "effective
as law," and cannot be implemented. Under our case law, then, a
State is only redistricted once the clearance process is complete.
Before a covered jurisdiction receives
312
Opinion of O'CONNOR, J.
clearance, the Federal Government may force the State to make
changes to the redistricting plan. Once a State receives
preclearance, it may implement a voting change.
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 preclearance
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-
313
suIt. I therefore respectfully dissent from Part III-A of the
Court's opinion and Parts III-B and IV of the plurality
opinion.
Comments
Be the first to comment
Leave a Comment