Branch v. Smith - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 01-1437 Branch against Smith and a companion case will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: These cases are here on appeal from a three-judge court of the United States District Court for the Southern District of Mississippi.

After the 2000 census, Mississippi lost one congressional seat.

The state legislature, however, failed to pass a new redistricting plan.

Beatrice Branch asked a State Chancery Court to issue a redistricting plan for the 2002 elections.

That is one of the cases, Branch versus Smith.

In a similar action, John Smith asked the Federal District Court for the Southern District of Mississipi to enjoin the State's all districting plan and any State Court plan and to order at large elections pursuant to a provision of the Mississippi Code and 2 U.S.C. Section 2a(c)(5) or alternatively to devise its own redistricting plan.

The three-judge District Court temporarily deferred to the State Court, the State Chancery Court, but began crafting its own plan just in case.

The District Court set a deadline for the State Court to complete its plan and to have it precleared pursuant to Section 5 of the Voting Rights Act of 1965 afterwhich the District Court would act.

Specifically, if the State Court plan was not precleared by February 25, 2002 the Federal District Court said it would order its plan used for the 2002 congressional elections.

Well, the State Court did prepare a plan and the State submitted it to the Department of Justice for preclearance.

However, DOJ requested additional information from the State noting the 60-day review period would not commence until that additional information was received.

Such additional information was provided five days before the Federal District Court's February 25 deadline.

February 25, 2002 came and went without DOJ preclearing the State Court plan.

The Federal District Court therefore enjoined use of the State Court plan and ordered use of its own redistricting plan.

The District Court also held in the alternative that the State Court had violated Article I Section 4 of the United States Constitution by promulgating a plan.

The State did not appeal.

That is a crucial fact.

The Department of Justice refused to give the State Court plan further consideration because the District Court's injunction rendered the State Court plan incapable of administration.

Branch, who intervened in the District Court proceedings, filed this appeal contending that the Federal Court's injunction was improper because the State Court plan was automatically precleared either as a consequence of DOJ's failure to object within 60 days of the State's initial submission or as a consequence of DOJ's failure to object within 60 days of the State's subsequent submission.

Branch also appealed the District Court's holding that the State Court had violated Article I Section 4 of the constitution.

Smith cross appealed the District Court's decision to develop its own redistricting plan rather than order at large elections pursuant to 2 U.S.C. 2(a)(c) and Mississipi Code.

We noted probable jurisdiction in both matters and now that you understand the facts we affirm.

We unanimously hold that the District Court properly enjoined enforcement of the State Court plan.

A jurisdiction seeking preclearance under the Voting Rights Act must provide the Attorney General with information sufficient to prove that the change is nondiscriminatory.

DOJ's request for additional information in this case was neither frivolous nor unwarranted and therefore properly postpone the initial 60-day period.

The State Court plan was also not precleared 60 days after the state submitted the requested information, because the State was no longer at that point seeking to administer the State Court plan which is what is required for preclearance under the Voting Rights Act.

The State had failed to appeal the District Court's injunction and therefore the State Court plan was dead.

Because the private parties' action are not those of the State Branch's appeal is sufficient to demonstrate that the State was still seeking to administer the plan.

Since we affirm the injunction on the ground that the State Court plan was not precleared in time for 2002 election, we have no occasion to review the District Court's alternative Article I Section 4 holding and we vacate it as a basis for the injunction.

As for the cross appeal, we conclude that the District Court properly fashioned its own congressional re-apportionment plan under 2 U.S.C. Section 2(c), which requires that states be divided into congressional districts.

A plurality of the Court consisting of the Chief Justice, Justice Kennedy, Justice Ginsburg and I would hold that Section 2(a)(c) only applies when A State Legislature and courts have all failed to redistrict the state pursuant to Section 2(c).

This interpretation allows both Sections 2(a)(c) and Section 2(c) to be given effect.

Section 2(a)(c) governs the manner of any election held "until a state is redistricted in the manner provided by state law after any apportionment", but when a court redistricts pursuant to Section 2(c), it necessarily does so in such a manner, because it must follow the State's policies and preferences for the districting as we held in a case called White versus Weisser.

A court may invoke Section 2(a)(c)'s stop-gap provision only when an election is so eminent that redistricting cannot be completed without disrupting the election process.

As for Mississippi's at large election provision, it envisions both legislatively and judicially prescribed redistricting and does not come into play as long as it is feasible for a court to complete the redistricting.

Justice Stevens joined by Justice Souter and Justice Breyer concur in part and concur in the judgment.

While agreeing that the District Court properly enjoined the State Court plan's enforcement and promulgated its own under 2 U.S.C. Section 2(c), they conclude that Section 2(c) impliedly repealed Section 2(a)(c) and that Section 2-C therefore also preempts Mississippi's at large election provision.

Finally, Justice Kennedy has filed a concurring opinion joined in part by Justices Stevens, Souter and Breyer, and Justice O'Connor has filed an opinion concurring in part and dissenting in part in which Justice Thomas joins.