In today's opinion
in Branch v. Smith, the Supreme Court unanimously agreed that a federal
court was correct to impose a redistricting plan in Mississippi because a
rival state plan proposed by a Mississippi state court had not been
precleared by the Justice Department under section 5 of the Voting Rights
Act. The state court plan would have been precleared automatically had Justice
not objected within 60 days, but before that 60 days was up, Justice asked
for more information and started the 60 day clock again. (Some had accused
Justice of restarting the clock to aid Republicans (who benefited under the
federal court plan) and hinder Democrats (who would have benefited under
the state court plan).
Although the Justices were unanimous in holding that the federal court was
correct in failing to defer to the state court plan that had not been precleared,
they disagreed over the scope of federal statutes governing what the federal
court was to put in place. 2 USC section 2a(c)(5) seemed to mandate the use
of at-large districting, while later enacted 2 USC 2(c) seemed to require
the use of single member districts. A majority of the court said that the
federal court was to craft a plan with single member districts. Within that
majority, a plurality read 2a(c)(5) as being applied to only a very narrow
class of cases where "the state legislature, and state and federal courts
have all failed to redistrict...[the provision governs a forthcoming election
only when ] the election is so imminent that no entity competent to complete
redistricting pursuant to state law...is able to do so without disrupting
the election process." Plurality slip op. at 19. Three other Justices viewed
section 2(c) as repealing section 2a(c)(5) by implication. Two dissenting
Justices believed that section 2a(c)(5) should have applied in this case and
the district court "should have ordered at-large elections for the entire
state congressional delegation." Dissent slip. op. at 22.
Perhaps the most interesting part of this case is the precedent that is not
cited: Bush v. Gore. In the Branch federal court action, the
federal court put forward two reasons for implementing its plan. First, the
court stated (and the Supreme Court has now agreed) that the state court
plan could not be implemented without preclearance. As an alternative holding,
the federal district court made an argument (much like the concurring opinion
of Chief Justice Rehnquist in Bush v. Gore) that a state court
has no authority to adopt a redistricting plan, because Article I, section
4 of the United States Constitution gives only the state legislature,
not state courts, the power to redistrict. Because the Mississippi
legislature had not given that power to the state court, the state court
could not redistrict.
The Supreme Court unanimously declined to reach the alternative constitutional
holding, declaring that the issue was unnecessary to the ruling. "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 federal
officials should Mississippi seek in the future to administer a redistricting
plan adopted by the Chancery court."
So the Supreme Court put this genie back in the bottle for now. The question
is how long it will stay there. The issue arose once after Bush v. Gore
in the Torrecelli controversy, where it was claimed that the N.J. Supreme
Court was changing the rules for replacing Senate candidates on the ballot
without permission of the legislature. Expect the argument to be in the arsenal
of election lawyers as they look for ways to challenge state court rulings
governing federal elections.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html