BRANCH et al. v. SMITH et al.

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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 cross-
appellees (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 state-
court 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 addi-
tional 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 dis-
tricts 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 pre-
clearance 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.

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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 state-
court 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 when-
ever 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 gen-
eral’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 frivo-
lous 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 pro-
vided 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 re-
apportionment plan under 2 U. S. C. § 2c. The tension between

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256 BRANCH v. SMITH
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§§ 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 Repre-
sentative to use single-member districts. Contrary to the federal plain-
tiffs’ 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 deci-
sions 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, one-
vote standards. Given the risk that judges would simply order at-large
elections, it is most unlikely that § 2c was directed solely at legisla-
tive 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 pursu-
ant 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 op-
erative when §§ 2a(c)(2) and (5) would be: The state provision envisions
both legislatively and judicially prescribed change and does not come
into play as 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 con-
gressional elections. The presumption against implied repeals, like
that against pre-emption, is overcome if there is an irreconcilable con-
flict between the two provisions or if the later Act was clearly intended

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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 author-
ize. 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 proc-
ess. 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 opin-
ion 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 concur-
ring 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

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258 BRANCH v. SMITH
Opinion of the Court
on the briefs were Arthur F. Jernigan, Jr., and Grant M.
Fox.†
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 prop-
erly enjoined a Mississippi state court’s proposed congres-
sional 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 congres-
sional seat, reducing its representation in the House of Rep-
resentatives from five Members to four. The state legisla-
ture, however, failed to pass a new redistricting plan after
the decennial census results were published in 2001. In an-
ticipation 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 Dis-
trict Court for the Southern District of Mississippi, claiming
that the current districting plan, Miss. Code Ann. § 23–15–
†Briefs 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.

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1037 (Lexis 2001), dividing the State into five, rather than
four, congressional districts, was unconstitutional and unen-
forceable. 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 redistrict-
ing 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 redis-
tricting 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 rul-
ing on the federal plaintiffs’ motion for a preliminary injunc-
tion. In staying its hand, the District Court recognized that
“ ‘the Constitution leaves with the States primary responsi-
bility 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 Missis-
sippi Supreme Court denied petitions for writs of prohibition
and mandamus filed by a state defendant and others chal-
lenging the Chancery Court’s jurisdiction to engage in con-
gressional redistricting. It held that the Chancery Court

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had jurisdiction to issue a redistricting plan. In re Maul-
din, Civ. No. 2001–M–01891 (Dec. 13, 2001), App. to Juris.
Statement 110a. 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 Su-
preme Court’s Mauldin decision (which arguably changed
the process for drawing congressional districts by authoriz-
ing 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 re-
questing 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 pro-
vided additional information on February 19 and 20, 2002.
Meanwhile, in January 2002, the District Court, express-
ing “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 candi-
date 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, Feb-
ruary 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 elec-
tions and all succeeding elections until the State produced

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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 Febru-
ary 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 prohib-
ited the State Chancery Court from issuing a redistricting
plan without express authorization from the state legisla-
ture. 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 inappro-
priate for the Attorney General to make a determination
concerning [the State’s preclearance] submission now” be-
cause the District Court’s injunction rendered the state-
court plan incapable of administration. App. 29.
The state plaintiffs—intervenors in the District Court—
filed a timely notice of appeal from the District Court and a
jurisdictional statement. The federal plaintiffs filed a juris-
dictional 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 Dis-
trict 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 respon-
sibility of the State through its legislature or other body,
rather than of a federal court.’ ” Id., at 34 (quoting Chap-
man v. Meier, 420 U. S. 1, 27 (1975)). We held that “[a]bsent
evidence that these state branches will fail timely to perform

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262 BRANCH v. SMITH
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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 ade-
quate opportunity to develop a redistricting plan. The sec-
ond 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 preclear-
ance 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 stand-
ard, practice, or procedure,” the State must obtain preclear-
ance 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 pro-
viso in § 1973c to the effect that, where the preclearance sub-
mission 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 automat-
ically 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, 2001—
or, in the alternative, it was subsequently rendered enforce-

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able by DOJ’s failure to object within the 60-day period run-
ning from the state attorney general’s submission of addi-
tional information on February 20, 2002. We consider each
of these contentions in turn.
A
Under § 5, a jurisdiction seeking administrative preclear-
ance must prove that the change is nondiscriminatory in pur-
pose 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 imple-
menting § 5 authorize a DOJ request for additional in-
formation 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 un-
available), the 60-day clock begins to run from the date the
response is received. § 51.37(c). We have upheld these reg-
ulations as being “wholly reasonable and consistent with the
Act.” Georgia v. United States, supra, at 541; accord, Mor-
ris 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 objec-
tions until the requested information was received. The re-
quest 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

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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 devel-
ops that Mauldin and the Chancery Court’s assertion of ju-
risdiction 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 Feb-
ruary 25, 2002, it was precleared on April 22, 60 days after
the state attorney general submitted the additional informa-
tion requested. We think not.
Section 5 provides that “[w]henever a [covered jurisdic-
tion] 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 Web-
ster’s New International Dictionary 841 (2d ed. 1949) (defin-
ing “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 con-
sequence 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.

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There is no doubt that the State was “seek[ing] to adminis-
ter” 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 addi-
tional information regarding the state-court plan on Febru-
ary 20, 2002. On February 26, 2002, however, the District
Court “enjoined [the State] from implementing the congres-
sional redistricting plan adopted by the [state court],” 189
F. Supp. 2d, at 559, and the State never appealed that injunc-
tion. 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 Chan-
cery Court’s redistricting plan was unconstitutional—a hold-
ing that the District Court specified was set forth to cover
the eventuality of the principal stated ground’s being re-
jected 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 af-
firmed on the principal ground, or as binding upon state and

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266 BRANCH v. SMITH
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federal officials should Mississippi seek in the future to ad-
minister a redistricting plan adopted by the Chancery Court.
III
Having determined that the District Court properly en-
joined enforcement of the state-court redistricting plan, we
turn to the propriety of the redistricting plan that the Dis-
trict 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 plain-
tiffs) 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 con-
tend, 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, how-
ever, 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 ad-
dressing what is to be done pending redistricting:
“Until a State is redistricted in the manner provided
by the law thereof after any apportionment, the Repre-
sentatives 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 Represent-
atives, they shall be elected from the districts then

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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 de-
crease in the number of Representatives but the number
of districts in such State is equal to such decreased num-
ber 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 Repre-
sentatives 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 Rep-
resentatives, 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-

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sentative to elect their Representatives from single-member
districts, rather than from multimember districts or the
State at large. Section 2a(c), however, requires multimem-
ber districts or at-large elections in certain situations; and
with particular relevance to the present cases, in which Mis-
sissippi, 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 intro-
ductory phrase of § 2a(c) (“Until a State is redistricted in the
manner provided by the law thereof after any apportion-
ment”) 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 action—
in 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 contra-
dicted 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 elec-
tions. 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 over-
seeing 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,

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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 re-
district 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 con-
stitutional 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 legisla-
ture 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 redis-
trict 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

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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 im-
posed 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 redis-
trict constitutionally, to draw single-member districts when-
ever 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 Con-
gressional command to order that the 1968 and succeeding
congressional elections in Missouri be held at large,” Preis-
ler 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 Cal. v. Deukmejian, 30 Cal.
3d 638, 664, 639 P. 2d 939, 955 (1982). In Shayer v. Kirkpat-
rick, 541 F. Supp. 922, 926 (WD Mo.), aff ’d sub nom. Schatzle
v. Kirkpatrick, 456 U. S. 966 (1982), the District Court con-
cluded that “nothing in section 2c suggests any limitation
on its applicability,” and declined to order at-large elections

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pursuant to § 2a(c)(5) because § 2c “appears to prohibit at-
large 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 re-
districting 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 sum-
marily. And in 1971 we observed in dictum that “[i]n 1967,
Congress reinstated the single-member district require-
ment” 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 legis-
lative 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 deci-
sions 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

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also § 2254(d)(1) (“clearly established Federal law, as deter-
mined by the Supreme Court of the United States”); Mar-
bury 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 fed-
eral 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 act-
ing pursuant to state legislative authorization in the event
of legislative default. It is hard to see what plausible con-
gressional purpose this would serve. When, as here, the sit-
uation (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 para-
graph (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 constitu-
tionally enforceable when (as is usual) the decennial census
has shown a proscribed degree of disparity in the voting pop-
ulation of the established districts? The absolute prohibi-
tion 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 un-
avoidable should we interpret a statute to require an un-
constitutional 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.

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B
Having determined that in enacting 2 U. S. C. § 2c, Con-
gress 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 leg-
islature’s failure to redistrict constitutionally, we confront
the remaining question: what to make of § 2a(c)? As ob-
served 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 re-
peals § 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 postenact-
ment decisions of this Court) in virtually all situations
plainly unconstitutional. (The unlikely exception is the situ-
ation 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 fa-
vored,” 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 provi-
sions 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 pre-
scribes is constitutional (as it is with regard to paragraph
(5))—continues to apply.

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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 categori-
cally instructs courts to redistrict, § 2a(c)(5) forbids them to
do anything but order at-large elections unless the state leg-
islature has acted. But there is of course no need for such
an interpretation. “Until a State is redistricted” can cer-
tainly refer to redistricting by courts as well as by legisla-
tures. Indeed, that interpretation would seem the prefera-
ble 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 (empha-
sis 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 other-
wise 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 fol-
lows the command of § 2c. For when a court, state or fed-
eral, 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 statu-
tory and constitutional provisions or in the reapportionment
plans proposed by the state legislature,” except, of course,

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when “adherence to state policy . . . detract[s] from the re-
quirements of the Federal Constitution.” White v. Weiser,
412 U. S. 783, 795 (1973). Federal constitutional prescrip-
tions, 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 pur-
suant to § 2c. How long is a court to await that redistricting
before determining that § 2a(c) governs a forthcoming elec-
tion? 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 prop-
erly 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 func-
tion 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. Car-
stens 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 fol-
lows: 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 addi-
tional member or members shall be chosen by the elec-
tors of the state at large; and if the number of repre-

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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 legisla-
tively and judicially prescribed change, and (2) the statute
does not come into play as long as it remains feasible for a
state or federal court to complete redistricting. In these
cases, the District Court properly completed the redis-
tricting 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 dis-
senting 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 redis-
tricted 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.

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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 compe-
tent 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 300—
which (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 un-
dertake 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 state—
but 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 redis-
tricting includes courts, then and only then may courts redis-
trict, 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 “re-
districted.” 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 “man-
ner” refers to the State’s substantive “policies and prefer-

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ences” for redistricting, White v. Weiser, 412 U. S., at 795, as
expressed in a State’s statutes, constitution, proposed re-
apportionment plans, see ibid., or a State’s “traditional dis-
tricting 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 cer-
tainly remains preferable for the State’s legislature to com-
plete 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 au-
thorized body, cannot produce the needed decision, then fed-
eral courts are “left to embark on [the] delicate task” of re-
districting, Abrams, supra, at 101.
The dissent claims that we have read the statutory phrase
“[u]ntil a State is redistricted” to mean “[u]ntil . . . the elec-
tion 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 pat-
ently false. We, no less than the dissent, acknowledge that
*Contrary to the dissent’s assertion, post, at 300, n. 1, our reading cre-
ates 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[t] 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.

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“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) gov-
erns, 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 appli-
cation to the facts of the present case) the immediate estab-
lishment 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 bites—
is 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 con-
trary, 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 elec-
tion?” 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 reappor-
tionment, and before the state legislature has even had a
chance to act, that the State’s next elections for Representa-
tives 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

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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 acknowl-
edged by the dissent, the federal plaintiffs “alleged a consti-
tutional violation”—failure to provide for the election of the
proper number of Representatives in accordance with Arti-
cle I, § 2, cl. 1—“and the federal court drew a plan to remedy
that violation,” post, at 301. In crafting its remedy, the Dis-
trict Court appropriately followed the “Regulations” Con-
gress 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 legisla-
tive 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 per-
mits) 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 dis-
sent’s view, if the State fails to redistrict (and loses congres-
sional 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

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§ 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 con-
struction (which one would have thought familiar to dissent-
ers so prone to preachment on that subject, see, e. g., post, at
298, 304, 307) that courts do not interpret statutes in isola-
tion, 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 stat-
utes relate to the same thing, they ought all to be taken
into consideration in construing any one 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 declara-
tion 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
v. Carr line of cases) sheds light upon the meaning of § 2a(c).
Finally, the dissent gives the statutory phrase “redis-
tricted in the manner provided by the law thereof ” a mean-
ing that is highly unusual. It means, according to the dis-
sent, “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 sat-
isfy the “until” clause (in those States subject to § 5 of the

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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 dis-
tricts 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 pre-
clearance 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 inef-
fective 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”) dis-
tinctions that have no basis in reality.
* * *
The judgment of the District Court is
Affirmed.
Justice Kennedy, with whom Justice Stevens, Jus-
tice 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 IV. The Court’s opinion makes clear why the Dis-
trict Court was correct to enjoin the redistricting plan devel-
oped by the Mississippi State Chancery Court as not pre-
cleared under § 5 of the Voting Rights Act of 1965, 42 U. S. C.
§ 1973c. Ante, at 261–265. The Court then vacates the Dis-
trict 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 rul-
ing vacating the judgment is mandated by our earlier cases.
There is precedent for our ruling. See Connor v. Waller,

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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. Wal-
ler, supra, at 656.
The rule prescribed by Connor reflects the purposes be-
hind the Voting Rights Act. Concerned that “covered juris-
dictions would exercise their ingenuity to devise new and
subtle forms of discrimination, Congress prohibited those ju-
risdictions from implementing any change in voting proce-
dure 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 ef-
fective 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 statu-
tory scheme, the district courts should not entertain consti-
tutional challenges to nonprecleared voting changes and in

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284 BRANCH v. SMITH
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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 reappor-
tionment 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 ob-
jected to the constitutionality of the state court’s assumption
of authority to devise a redistricting plan. The fact that ap-
pellees 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 ap-
pellees injury through enforcement or implementation.
In deciding to address the constitutional challenge the Dis-
trict 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 com-
plex constitutional issues in advance of an Executive deter-
mination 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 be-
cause 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, more-
over, 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

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Opinion of Stevens, J.
to remedy constitutional defects without the involvement of
federal courts. Given the statutory command of direct re-
view to this Court, it also helps to ensure that only constitu-
tional issues necessary to the resolution of the electoral dis-
pute 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 opin-
ion 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 IV.
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 ex-
presses its intent to repeal or to pre-empt, we must respect
that expression. When it fails to do so expressly, the pre-
sumption 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 cate-
gories of repeals by implication—(1) where provisions in the two acts are
in irreconcilable conflict, the later act to the extent of the conflict consti-
tutes 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

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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 Representa-
tives 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 Repre-
sentatives of the United States of America in Con-
gress assembled, That, for the purposes of the Immigra-
tion and Nationality Act, Doctor Ricardo Vallejo Samala
shall be held and considered to have been lawfully ad-
mitted 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 Repre-
sentative 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 Con-
gress 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”).

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Opinion of Stevens, J.
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 Repre-
sentative from electing their Representatives to Congress in
at-large elections.2 That the single exception to this con-
gressional 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 other-
wise 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 re-
peal 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 Commit-
tee introduced H. R. 2508, renewing efforts made in the pre-
ceding 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 con-
gressional elections.3 The bill introduced by Representa-
tive Celler in 1967 contained express language replacing
2 The 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] Repre-
sentatives 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).

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§ 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, re-
quiring each district to “at all times be composed of contig-
uous 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 sub-
sequent Congress shall contain a number of persons, exclud-
ing 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. Im-
portantly 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 con-
fined to the gerrymandering requirement, the proportional-
ity rule, and the scope and duration of the temporary excep-
tions to the broad prohibition against at-large elections.
4 Specifically, § 2a(c) would have been expressly repealed by the follow-
ing 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 apportion-
ment 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).

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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 per-
cent. H. R. Rep. No. 191, 90th Cong., 1st Sess., 1–2 (1967).
The House then passed this amended bill. The Senate Judi-
ciary 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 confer-
ence recommended two sets of amendments. The first Con-
ference 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 com-
promise failed to pass either the House or the Senate, the
conference then recommended a measure that was very simi-
lar 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 recom-
mended 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 attach-
ment 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-

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ers, 376 U. S. 1 (1964).5 The absence of any discussion, de-
bate, 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 com-
pletely replace § 2a(c).
Justice O’Connor has provided us with a convincing ex-
position of the flaws in Justice Scalia’s textual interpreta-
tion 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 vot-
ing 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 ex-
cluded Hawaii and New Mexico while Senator Baker offered another that
had no exceptions. Senator Bayh characterized his amendment as fol-
lows: “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 Cong.
Rec. 31719 (1967). Senator Baker described his amendment as follows:
“The measure makes no other provision. It has nothing to do with gerry-
mandering. 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).

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that an important federal interest in prohibiting at-large vot-
ing, 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 appar-
ently 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 at-
large elections in the 1882 statute cited by Justice O’Con-
nor 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 ear-
lier 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 his-
tory of the 1967 statute fails to give appropriate consider-
ation 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 pro-
tracted legislative process of an intent to preserve at-large
elections anywhere except in New Mexico and Hawaii, pro-
vide 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

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of a clause expressly repealing § 2a(c) was simply an inadver-
tence. Canons of statutory construction—such as the pre-
sumption 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 lan-
guage of its text, leads to only one conclusion—Congress im-
pliedly 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 rem-
nant 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 con-
clusion 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):

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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 stat-
ute 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 stat-
utes, the presumption is that the earlier is intended to re-
main 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 princi-
ple 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 single-
member district requirement as well as the at-large default

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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 enti-
tled . . . 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 elect-
ing more than one Representative” (emphasis added)), with
§ 4, 26 Stat. 736 (“[S]uch additional Representative or Repre-
sentatives 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” (empha-
sis 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 Representa-
tives 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 Representa-
tive or Representatives shall be elected by the State at large
. . . until such State shall be redistricted in the manner pro-
vided by the laws thereof ”).

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Justice Stevens attempts to distinguish the prior ver-
sions of § 2a(c) because they contained slightly different lan-
guage 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 indis-
tinguishable 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 re-
peals § 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”).

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When the 1911 statute expired in 1929, Congress did not
reenact it. Instead, Congress passed § 2a(c), which took ef-
fect in 1941. Because § 2a(c) concerned only at-large elec-
tions, 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 estab-
lished by law a number of districts equal to the number of
Representatives to which such State is so entitled, and Rep-
resentatives shall be elected only from districts so estab-
lished, no district to elect more than one Representative
. . . .” The relevant language of this statute tracks the lan-
guage of the prior versions of § 2c. Justice Stevens’ only
distinction between the prior versions of § 2c and this ver-
sion 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 one-
word addition that does not change the meaning of the stat-
ute 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 enact-
ment 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 sepa-
rate 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-

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ment that Congress “ ‘clearly intended’ ” § 2c “ ‘as a substi-
tute’ ” 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) (“ ‘Pre-
sumably 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 show-
ing that it has made a considered determination to that
end’ ”).
Justice Stevens’ strongest argument is that the legis-
lative history indicates that “all parties involved were operat-
ing under the belief that the changes they were debating
would completely replace § 2a(c).” Ante, at 290. Yet Jus-
tice Stevens acknowledges that Congress could have ex-
pressly 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 stat-
ute. In this case, where the two provisions have co-existed
historically, and where Congress explicitly rejected an ex-
press 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 re-
garding single-member districts. The floor statements and
colloquy by Senators Baker and Bayh cited by Justice Ste-
vens, see ante, at 290, n. 5, cannot overcome the strong pre-
sumption against implied repeals, especially given the histor-
ical 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.

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In short, because §§ 2a(c)(5) and 2c are capable of co-
existence, 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 con-
duct 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 man-
ner provided by the law thereof.” The meaning of the word
“until” is not difficult to understand, nor is it some special-
ized term of art. See Webster’s New International Diction-
ary 2794 (2d ed. 1957) (defining “until” to mean “[d]uring the
whole time before”); Webster’s Collegiate Dictionary 1297

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(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 orga-
nize 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 nota-
bly 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 apportion-
ment” 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 character-
izes § 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 pro-
vided 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) Eng-
lish 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

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in the manner provided by the law thereof after any appor-
tionment,” 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 Constitu-
tion 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 man-
ner provided by the law thereof,” § 2a(c)(5) mandates that a
court order at-large elections. In short, a court should en-
force § 2a(c) before a “State is redistricted in the manner pro-
vided 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 them-
selves. 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 re-
districting. Under the terms of § 2a(c), courts can be involved in the re-
districting 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 dis-
tinction between state and federal law when a federal court enters an
injunction).

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this litigation alleged a constitutional violation, and the fed-
eral court drew a plan to remedy that violation. Having
found a constitutional violation, the federal court was re-
quired to fashion the appropriate remedy of § 2c or § 2a(c)
depending on whether the “State is redistricted in the man-
ner 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. In-
deed, 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 be-
tween §§ 2a(c) and 2c calls into question this Court’s anti-
commandeering 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 legisla-
tures are not subject to federal direction”). The plurality
states that the anticommandeering jurisprudence is inappli-
cable to Article I, § 4, because that section gives Congress
the power to “Regulat[e]” the times, places, and manner of

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holding congressional elections. But of course, Article I, § 8,
uses similar language when it authorizes Congress to “regu-
late 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 Stevens—
invites 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 itera-
tions 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 ver-
sions 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 ap-
propriate 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 ”).

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States Congressional Districts 1789–1983, pp. 4, 6 (1982)
(hereinafter Martis) (documenting 36 States that used at-
large 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 com-
man[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 Con-
gress 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, Massachu-
setts, 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 Con-
gresses), California (31st–38th, 48th Congresses), Colorado (58th–63d
Congresses), Connecticut (58th–62d Congresses), Florida (43d, 63d Con-
gresses), 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 Con-
gresses), 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), Ten-
nessee (43d Congress), Texas (43d, 63d–65th Congresses), Utah (63d Con-
gress), Virginia (48th Congress), Washington (53d–60th, 63d Congresses),
West Virginia (63d, 64th Congresses), Wisconsin (30th Congress).

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went into effect, however, States could no longer use multi-
member 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 redistrict-
ing legislation. Section 2c is instead a restriction on the
type of legislation that a State may pass—a restriction com-
pletely consistent with New York and Printz. And § 2a(c)
provides that at-large elections will be the default mecha-
nism 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 statu-
tory 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 not-
ing 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

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§ 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 plural-
ity 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 man-
ner 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 dis-
tricting in this state”); Bush v. Martin, 251 F. Supp. 484, 488 (SD Tex.
1966) (“The question is whether the Texas 1965 Congressional Redistrict-
ing Act . . . is constitutional”); Park v. Faubus, 238 F. Supp. 62, 63 (ED

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306 BRANCH v. SMITH
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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 any-
thing, the enactment of § 2c in 1967 clarified that the statu-
tory 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 constitution-
ally.” Ante, at 270. I agree with the Court that when a
court strikes down a State’s apportionment plan, § 2c man-
dates 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 at-
large elections. Because in these pre-1967 cases the legisla-
ture 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 congres-
sional 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. An-
derson, 229 F. Supp. 271, 272 (Kan. 1964) (“The action was brought by
qualified voters in four of the five Congressional Districts of Kansas, seek-
ing to have Kansas Statutes, which is the last congressional reapportion-
ment by the Kansas Legislature, declared unconstitutional” (citation omit-
ted)); 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”).

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historical context surrounding the enactment of § 2c renders
§ 2a(c) toothless. Indeed, it is unclear why the Court exam-
ines 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 psychoanalyz-
ing 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 malappor-
tioned States to conform their congressional electoral dis-
tricts 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 de-
velopment 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 specifi-
cally 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-

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ple, we specifically reached the redistricting question, and
held that the prior versions of §§ 2c and 2a(c) mandated at-
large 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 enti-
tled, 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 consti-
tutional review: “The District Court held that the new dis-
tricts, created by the redistricting act, were not composed of
compact and contiguous territory, having as nearly as practi-
cable 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 magi-
cally 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

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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 Kar-
cher v. Daggett, 462 U. S. 725. Indeed, the decision of this
Court in Wesberry v. Sanders, supra, stated only that con-
gressional 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 permit-
ting 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 “modi-
fications of a state plan are limited to those necessary to
cure any constitutional or statutory defect.” Upham v. Sea-
mon, 456 U. S. 37, 43 (1982) (per curiam). And even if only
§ 2a(c)(5) were constitutional, the plurality correctly recog-
nizes 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

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310 BRANCH v. SMITH
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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 Cross-
Appellants 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 judg-
ment); 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 ” con-
tains 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 man-
ner provided by the law thereof after any apportionment.”
III
Having concluded that § 2a(c) applies “[u]ntil a State is re-
districted in the manner provided by the law thereof after
any apportionment,” it is necessary to consider the question

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that the Court intentionally avoids: whether the State of
Mississippi here has been “redistricted in the manner pro-
vided 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 con-
forms to the Constitution and to the provisions of the Voting
Rights Act”); Clark v. Roemer, 500 U. S. 646, 652 (1991); Ha-
thorn v. Lovorn, 457 U. S. 255, 269 (1982) (“Our opinions
repeatedly note that failure to follow [the preclearance pro-
cedures] 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 redistrict-
ing. 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

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clearance, the Federal Government may force the State to
make changes to the redistricting plan. Once a State re-
ceives 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 man-
dating 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 Attor-
ney 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 ex-
pressly 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-

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sult. I therefore respectfully dissent from Part III–A of
the Court’s opinion and Parts III–B and IV of the plurality
opinion.