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Supreme Court Addresses Redistricting Issues

Branch et al.v. Smith et al., No. 01-1437

 

On March 31, 2003, the Supreme Court upheld the power of federal courts to step in and draw voting district boundaries in cases where the legislative and the state judicial process have failed to do so. Beyond this, the nine justices were not able to come to agreement about the specifics of a proper remedy in this situation under the Voting Rights Act.

In Branch et al. v. Smith et al, the Court unanimously agreed that a federal district court properly blocked a state court redistricting plan and promulgated its own plan. The state court plan did not pass muster because it was not precleared by the Department of Justice as required by the Voting Rights Act.  However, the justices were split in their reasoning behind this holding, resulting in a multiplicity of opinions, with Justice Scalia announcing the judgment of the Court.

Background

The 2000 census, which demonstrated that Mississippi's population growth had not kept up with the rest of the nation, caused Mississippi's five congressional seats to be reduced to four.  Although both the Mississippi State House and Senate were controlled by the Democratic Party, internal strife prevented the two houses from coming to an agreement regarding redistricting.  Three different plans were submitted to the Mississippi legislature; all were eventually rejected.  

In October of 2001, a group of Democratic activists filed a lawsuit asking the Mississippi state court to issue a redistricting plan for the 2002 election.  In a similar action, a group of Republican activists filed a claim in federal district court, asking the court to enjoin any plan drafted by the state court and to order at-large elections pursuant to Mississippi state law, or alternatively, to devise its own redistricting plan.  On the eve of the state court trial, Mississippi's Supreme Court held that the lower state court had jurisdiction to prescribe a congressional redistricting plan.  In December of 2001, the state court adopted the redistricting plan submitted by the plaintiffs.  

Mississippi falls within the reach of Section 5 of the Voting Rights Act, because of its repetitive use of practices that disenfranchised African-Americans. Section 5 requires preclearance by the Department of Justice of redistricting plans, as well as other election practices.  On December 21, 2001, the Mississippi attorney general submitted the state court plan to the Justice Department for preclearance, requesting expedited preclearance by January 31, 2002, in advance of the usual 60-day review period.  On February 14, 2002, the Department of Justice requested more information from the State's attorney general with respect to the jurisdiction of the state court to create and implement a statewide redistricting plan., noting that the 60-day review period would begin to run from the day the attorney general made all the requested submissions.  The requested information was provided on February 20, 2002.

Meanwhile, on February 4, 2002, the federal district court determined that it would assert jurisdiction and set the Mississippi congressional districts for the 2002 election if the state court plan was not precleared by February 25.  When that date passed, the district court enjoined the implementation of the state court plan and ordered its own plan to be used, on the grounds that timely preclearance had not occurred. The district court also found, in the alternative, that the assertion of jurisdiction by the state court violated the state constitution. The state did not appeal.  Both sides asked the Supreme Court to grant certiorari and on June 10, 2002, the Court accepted both cases for review, consolidating them for oral argument.

Despite a Unanimous Judgment, a Multiplicity of Opinions

Justice Scalia announced the unanimous judgment of the Court, affirming the judgment of the federal district court enjoining the plan drawn up by the Mississippi state court on the grounds that it was not precleared by the Department of Justice, as required under Section 5.  The Court also unanimously vacated the district court's holding that the state court had no constitutional authority to adopt a congressional redistricting plan.   Beyond this, the justices were split. Justices Stevens and Kennedy each issued concurring opinions with respect to certain parts of the Court's opinion.  Justice O'Connor filed an opinion concurring in part and dissenting in part, in which Justice Thomas joined.

All justices agreed that the federal district court was correct in enjoining the redistricting plan promulgated by the Mississippi state court.  Acknowledging that reapportionment is still considered primarily the duty of the state, whether accomplished through its legislature or judiciary, Justice Scalia noted that it was nonetheless proper for the district court to enjoin enforcement of the state court plan on the grounds that necessary preclearance was not obtained; Section 5 contained no exceptions to the preclearance rule.  

Rejecting the contention that the failure of the Justice Department to object within the 60-day review period amounted to preclearance, the Court stated that the Justice Department's request for additional information postponed the 60-day review period and the 60-day clock did not begin to run until the state submitted the requested information on February 20, 2002.   The state court plan still was not precleared 60 days after the requested information was submitted.  But here the court said that when the state failed to appeal the injunction, it was no longer seeking to administer the state plan within the meaning of Section 5, the 60-day period was no longer running, and the plan was not rendered enforceable by operation of law. According to the Court, the intervention of the private plaintiffs was irrelevant because the law requires state action.  

The Court also unanimously held that the district court properly acted to remedy a constitutional violation, but could not agree on the proper remedy. The justices' disagreement revolved around the issue of whether the district court properly adopted a plan using single-member districts, as mandated by 2 U.S.C. § 2c, or whether at-large elections, as mandated by 2 U.S.C. § 2a(c)(5), were the appropriate remedy.  The majority of the Court, led by Justice Scalia, held that § 2c, which was adopted 26 years after § 2a(c)(5) was put into effect, was the controlling statute governing this case. According to Justice Scalia, while many believe that there is "tension" between § 2c and § 2a(c)(5), since representatives cannot be "elected only from districts" while being elected "at large," there was no legislative intent to repeal the earlier statute, either expressly nor by implication. The Court determined that 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.

Justice Scalia went on to state that "§ 2a(c)(5) is inapplicable unless the state legislature, state and federal courts, have all failed to redistrict pursuant to § 2c."  He opined that

§ 2a(c)(5) only comes into play when "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."  

Justice Kennedy wrote a concurring opinion, joined by Justices Stevens, Souter and Breyer. Justice Kennedy pointed to Court precedent established in Connor v. Waller, where the Court found that where no preclearance in accordance with § 5 takes place, the courts will not decide the constitutional challenges to the changes in the voting procedure scheme.  The plurality held that addressing constitutional issues before an executive determination would risk "frustrating the mechanism established by the Voting Rights Act."

Justice Stevens, joined by Justices Souter and Breyer, concluded that § 2c impliedly repealed § 2a(c)(5), so at-large elections would never be an option.

Justice O'Connor concurred in part, and dissented (joined by Justice Thomas) in part. In Justice O'Connor's view, relying heavily on prior opinions and writings of Justice Scalia, the Court should have ordered at-large elections pursuant to the authority of § 2a(c)(5), because the mandate to draw single-member districts applies only after the State had redistricted, noting that § 2a(c) expressly states that it would govern "unless a State is redistricted in the manner provided by the law thereof."  Because the plan submitted by the state court was not precleared, Mississippi had not redistricted in the manner provided by Mississippi law.  Justice O'Connor also noted in her dissent that Congress could easily repeal § 2a(c)(5), but had not done so.  Therefore, the Court had erred in accepting the redistricting plan drawn up by the district court and should have ordered at-large elections pursuant to the statutory language of 2 U.S.C. § 2a(c)(5).

Implications

The decision of the Court led to the implementation of the federal district court's redistricting plan, which is still in effect today.  In the ensuing election, Republican Rep. Chip Pickering was elected over the Democratic candidate, Ronnie Shows.  While the decision of the Court has certainly had significant short-term political implications for the state of Mississippi, the holding is not likely to have much legal effect on other congressional redistricting cases.  Neither the plurality opinion of Justice Scalia nor the concurring or dissenting opinions of Justices Stevens and O'Connor chose to comment on a broader question of whether the U.S. Constitution prohibits the state courts from drawing congressional redistricting plans where they are not expressly authorized to do so by the state legislature, holding that addressing this issue was unnecessary to the ruling.  

The Court did not at any point cite to the precedent established by Bush v. Gore, where Justice Rehnquist opined that state courts have no constitutional authority to adopt redistricting plans since Article I, Section 4 of the U.S. Constitution gives the authority to redistrict to the state legislature and not to the courts.  The majority opinion authored by Justice Scalia expressly vacated the district court's judgment, stating that it would not be binding on state or federal officials should Mississippi seek to administer the state court's redistricting plan in the future.  In this way, the Supreme Court avoided making a constitutional decision of precedential value in this case and thereby put to rest the question of whether state courts have the right to create redistricting plans in the absence of express authority from the state legislature.  

This issue is unlikely to disappear, however.  Because the Constitution requires that the representatives to Congress be apportioned among the states on the basis of population, according to the decennial census, the issue of congressional redistricting is likely to rear its head in the future.