(The Return of) Ignatz, by Sam Heldman

Sunday, December 08, 2002

Supreme Court

The first case for next Tuesday is a very complicated one about Congressional redistricting in Mississippi: Branch v. Smith. I can't find links on the free internet to the lower-court opinions; if you've got LEXIS or a law library, you can find relevant lower-court opinions at 189 F.Supp.2d 529 and 189 F.Supp.2d 548. The case raises a host of issues: some under Section 5 of the Voting Rights Act of 1965 (which forbids certain states and localities with a history of voting discrimination from implementing any change in voting procedures, until and unless that change has been "precleared" by the Justice Department), one under the Constitution, and another under a rather obscure federal statute about Congressional redistricting.

I am loathe to pretend to too much knowledge on these topics, when I know that Ed Still is probably reading; he knows more about this area of law than just about anybody. So if you see that he's disagreeing with me, you should probably believe him.

Long story short, in Southern states, redistricting after a census always involves (a) seeing whether the legislature will get its act together and enact a districting plan; and (b) seeing whether the Justice Department will "preclear" that plan; and (c) if either a or b goes awry, then there's a battle between those who want state courts to do the redistricting (in the current politics of the South in my experience, that tends to be Democrats) and those who want the federal courts to do it (currently, usually, Republicans) and (d) still the Justice Department's "preclearance" authority is a possible stumbling block for a plan adopted by a state judiciary.

Ok, now back to the case at hand. In Mississippi, the legislature didn't redistrict. A state court took jurisdiction and issued a plan, but the Justice Department refused to preclear it (actually, more precisely, sought more information about the issue and held off on announcing whether it would interpose an objection within the time period allotted by statute for DOJ review); and so the federal court, saying that the election was coming up soon and time was of the essence, imposed a different plan. Voters who preferred the state-court plan (call them, for ease of reference, "the voters", although there are voters on the other side of the case too) have appealed to the Supreme Court; and, as best I can piece it together, the folks who prefer the federal court plan have cross-appealed with a fall-back argument.

The voters, in order to overturn the federal injunction against the use of the state-court plan, seemingly have to convince the Court of BOTH of two things: that a state court can act on a matter of congressional redistricting, even though Art I. § 4 of the Constitution says that the state "legislature" should set the method of congressional elections; and that the DOJ's actions do not amount to a "failure to preclear" that would bar use of the state court plan. The first part of this has somewhat interesting echoes of Bush v. Palm Beach and Bush v. Gore, but I doubt that the Court will bar state courts from getting involved when the legislature defaults; thus the voters should clear this hurdle. As to the second part, the issues get somewhat complicated by the fact that the State has not appealed the injunction, and isn't trying to get the state-court plan precleared (the folks in power prefer the federal court plan). Does this mean that the federal court's plan will remain in force for the next ten years (barring action by the Miss. legislature)? Or should the DOJ be taken as having now having precleared the state court plan by failing to object to it within the time allotted to the DOJ by statute, such that the state court plan can and should be used in the next election cycle, even though the state officials apparently don't want that result? Complicated. My hunch is that the "right" answer is that the current election results will stand – and the decision below will be affirmed to that extent -- but that future elections will be done under the state-court plan rather than the federal court plan, meaning that reversal or vacatur of the injunction (in part) is the right answer. After all, the bottom line is that DOJ didn't object to it within the time allowed the DOJ by law. But will a majority of the Justices agree? Without any better clues, I make the hopeful assumption that they will do what I think is right without regard to whose political ox is being gored, and that they will therefore REVERSE in part, as to future elections. Maybe they will even say that the DOJ should get another chance to review and possibly object to the state court plan before it goes into effect for future elections? Complicated, complicated.

Maybe Ed Still will now post something informative about the case? If so, I hope that it doesn’t show that I am stunningly misinformed.

UPDATE: On thinking about this further, I think that there's a substantial chance that in fact the Court will dismiss the voters' appeal, saying that the voters have no standing to appeal the injunction, where the state itself did not appeal. See Diamond v. Charles. Oh, I don't know. Here's my revised prediction, written in pencil: dismiss the appeal, affirm on the cross-appeal.

posted by sam 7:24 AM 0 comments


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