A motion for leave to file a petition for a writ of mandamus to
require the District Court for the Southern District of Mississippi
to adopt immediately a plan reapportioning the Mississippi
Legislature for the 1979 elections, as previously directed by this
Court, is granted. This is a better course than waiting (as the
District Court would do by staying its proceedings) to see if a
plan fashioned by the legislature is approved by May 7, 1979, in a
separate suit brought by the State under the Voting Rights Act of
1965 in the District Court for the District of Columbia, because,
in the unlikely event that a legislative plan should supersede the
court plan before May 7, potential candidates would have more than
a month before the June 7 filing deadline for the 1979 elections,
whereas, if the legislative plan does not go into effect and the
court plan is not filed until May 7, this Court will be faced with
requests for emergency review that, if granted, could force changes
only days before the June 7 deadline. Consideration of the petition
for a writ of mandamus, however, is continued for 30 days.
PER CURIAM.
Petitioners are plaintiffs in a suit seeking reapportionment of
the Mississippi Legislature. In the most recent of the Court's
decisions in this extended litigation,
Connor v. Finch,
431 U. S. 407,
431 U. S. 426
(1977), it reversed the Judgment of the District Court and directed
that court to draw a new reapportionment plan for the 1979
elections "with a compelling awareness of the need for its
expeditious accomplishment."
On remand, and after further proceedings, the parties developed
a settlement plan. Negotiations broke down, however, over the
wording of a consent decree. In the meantime, the State had adopted
a new statutory reapportionment plan fashioned by the legislature.
Because the Attorney General of the United States, acting pursuant
to the Voting Rights
Page 440 U. S. 613
Act of 1965, 42 U.S.C. § 1973c, refused to approve the
legislature's plan, the State brought suit under the Act in the
United States District Court for the District of Columbia, seeking
a declaration that the plan does not have a discriminatory purpose
or effect.
Acting on the state defendants' motion, the District Court in
this case determined to stay all proceedings until Judgment was
entered in the District of Columbia litigation. If upheld, the
statutory plan would supersede any court-ordered one.
See Wise
v. Lipscomb, 437 U. S. 535,
437 U. S.
539-542 (1978). Petitioners then submitted this motion
for leave to file a petition for a writ of mandamus to require the
District Court to adopt a plan. Petitioners contend that some
reapportionment scheme must be in effect by June 7, the filing
deadline for the 1979 elections. Petitioners argue that the
legislature's plan may not be in effect by that date, and that,
unless the court files its plan now, time limitations effectively
will preclude them from obtaining review of that order in this
Court. It is argued in response that immediate filing would be
unduly disruptive if the filed plan were supplanted before June 7.
The District Court has indicated, however, that, absent the
conclusion of the District of Columbia suit, it will order a plan
into effect on May 7.
The only issue here, therefore, is whether this Court should
require the District Court to file its plan now, rather than on May
7; we do not question the good faith of the District Court. We
believe, however, that the better course is to file its plan now.
In the unlikely event that a legislative plan should supersede the
court plan before May 7, potential candidates would have more than
a month to reassess their prospects. If, on the other hand, the
legislative plan does not go into effect and the court plan is
filed only on May 7, this Court will be faced with requests for
emergency review that, if granted, could force changes only days
before the June 7 deadline.
Page 440 U. S. 614
Leave to file the petition is therefore granted. The District
Court is instructed, forthwith and without further delay, to adopt
a final plan for the reapportionment of the Mississippi
Legislature. Our consideration of the petition for a writ of
mandamus is continued for 30 days.
See Connor v. Coleman,
425 U. S. 675,
425 U. S. 679
(1976).
It is so ordered.
* [REPORTER's NOTE: The petition for a writ of mandamus was
denied on May 21, 1979.
441 U. S.
792.]
MR. JUSTICE POWELL took no part in the decision of this
motion.
MR. JUSTICE MARSHALL, dissenting.
For 13 years, the three-judge District Court for the Southern
District of Mississippi has avoided implementing an apportionment
plan for that State which satisfies the requirements of the Equal
Protection Clause. The case now comes before us for the eighth
time, after the District Court chose to ignore our directive,
issued nearly 22 months ago, that it resolve this controversy
expeditiously. In my view, the Court cannot tolerate such defiance.
Accordingly, not only would I grant plaintiffs' motion, which the
United States supports, for leave to file a petition for writ of
mandamus, but I would issue the writ as well.
This litigation began in 1965, when private plaintiffs
successfully challenged the extreme population variances of the
existing legislative apportionment.
Connor v.
Johnson, 256 F.
Supp. 962 (1966). After the legislature enacted a
reapportionment that failed to meet constitutional standards, the
District Court formulated its own temporary plan for the 1967
quadrennial elections. Under the plan, 34 of the 52 house districts
and 10 of the 36 senate districts were multimember.
See Connor
v. Finch, 431 U. S. 407,
431 U. S. 410
n. 3 (1977). The variance from absolute population equality
Page 440 U. S. 615
between the largest and smallest house districts was 20.83%, and
the variance in senate districts was 23.24%.
Connor v.
Johnson, 265 F.
Supp. 492, 504-507 (1967). On appeal, this Court affirmed
without opinion use of the temporary plan.
386 U.
S. 483 (1967).
The District Court struck down a second legislative
reapportionment in 1971. In its place, the court devised a final
plan for the 1971 elections which authorized multimember
representation for most house districts and almost half of the
senate districts.
Connor v. Johnson, 330 F.
Supp. 506 (1971). The court failed to formulate a final plan
for the State's three largest counties, instead ordering interim
multimember representation in those areas.
Upon the plaintiffs' motion, this Court stayed the Judgment of
the District Court. Emphasizing that,
"when district courts are forced to fashion apportionment plans,
single-member districts are preferable to large multimember
districts as a general matter,"
because they more closely reflect voter preferences,
Connor
v. Johnson, 402 U. S. 690,
402 U. S. 692
(1971), we ruled that the District Court could have implemented
single-member districts for one of the three counties before the
June 4 filing deadline. We therefore instructed the court to extend
the deadline to June 14, 1971, and, "absent insurmountable
difficulties," to "devise and put into effect" a single-member
district plan for the county by that date.
Ibid. On
remand, however, the court did not institute single-member
districts, because it found that the difficulties were, in fact,
insurmountable.
Connor v. Johnson, 330 F. Supp. 521
(1971). This Court denied further interlocutory relief. 403 U.S.
928 (1971).
The case came here again on direct appeal after the 1971
elections. We unanimously concluded that the 18.9% variance between
the largest and smallest senate districts, and the 19.7% variance
between the largest and smallest house districts "raise[d]
substantial questions concerning the constitutionality
Page 440 U. S. 616
of the District Court's plan as a design for permanent
apportionment."
Connor v. Williams, 404 U.
S. 549,
404 U. S. 550
(1972). Nevertheless, the Court declined to invalidate elections
that had already been held.
Id. at
404 U. S.
550-551. Similarly, we found it unnecessary to determine
the prospective validity of the plan, because the District Court
had retained jurisdiction over the three counties in which it had
imposed interim multimember representation, and had stated that a
Special Master would be appointed in January, 1972, to consider
whether these counties could be divided into districts of
substantially equal population for the 1975 and 1979 elections.
Id. at
404 U. S. 551.
Reiterating our preference for single-member districts in
judicially fashioned apportionment plans, we summarily vacated and
remanded the case with directions that the proceedings before a
Special Master "go forward and be
promptly concluded."
Ibid. (emphasis added).
Despite our instructions, no Special Master was appointed.
See Connor v. Coleman, 425 U. S. 675,
425 U. S. 676
(1976). In April, 1973, over a year after our judgment had issued,
the Mississippi Legislature enacted a new reapportionment. The
plaintiffs immediately filed objections to the plan on April 18.
Almost two years later, in February, 1975, the District Court
finally held a hearing on those objections. While its decision was
pending, the court learned that the legislature was considering
revisions to the statutory plan. "Heeding the teachings" of
Chapman v. Meier, 420 U. S. 1 (1975),
that reapportionment is primarily the responsibility of state
legislatures, the District Court further delayed its decision for
the expected legislative action.
Connor v.
Waller, 396 F.
Supp. 1308, 1311 (1975). When the legislature finally acted in
April, 1975, the court dismissed the plaintiffs' complaint and
directed them to file an amended complaint addressing the new
reapportionment.
Ibid. The plaintiffs filed their
complaint, and the court entered judgment essentially approving the
1975 legislative plan.
Id. at 1332.
Page 440 U. S. 617
In June, 1975, this Court summarily and unanimously reversed.
Connor v. Waller, 421 U. S. 656. We
held that the Mississippi reapportionment Acts "are not now and
will not be effective as laws until and unless cleared pursuant to
§ 5" of the Voting Rights Act.
Ibid. Relying on the
unambiguous holdings of
Allen v. State Board of Elections,
393 U. S. 544
(1969), and
Perkins v. Matthews, 400 U.
S. 379 (1971), we ruled that the District Court had
erred in deciding the constitutional challenges to the Acts. Under
these cases, the only inquiry open to the court was whether § 5
covered a state enactment that had not received the requisite
federal scrutiny. 400 U.S. at
400 U. S.
383-384; 393 U.S. at
393 U. S.
558-561.
Georgia v. United States, 411 U.
S. 526 (1973), clearly had held that § 5 encompasses
reapportionment Acts, and the Mississippi Act clearly had not been
submitted for § 5 clearance. Particularly because two members of
the District Court were also on the court that had been reversed in
Perkins for overstepping the inquiries permitted by § 5,
see Perkins v. Matthews, 301 F.
Supp. 565 (SD Miss.1969), the District Court's undertaking to
resolve the constitutionality of this statute was inexcusable.
Our opinion also authorized the District Court to impose a
court-ordered reapportionment if it became appropriate to do so.
421 U.S. at
421 U. S. 657.
Four days after this decision, on June 9, 1975, Mississippi
submitted the 1975 Acts to the Attorney General pursuant to § 5.
The Attorney General immediately interposed his objection, thereby
foreclosing implementation of the plan, on the ground that the
State had not demonstrated the absence of a discriminatory purpose
or impact. Consequently, the District Court held hearings and
determined that there was insufficient time to formulate a final
plan before the August, 1975, primary. It therefore adopted a
temporary plan that was substantially similar to both the 1971
court-ordered plan previously vacated by this Court and the 1975
legislative plan challenged by the Attorney General. And, once
again, despite our admonitions in
Connor
Page 440 U. S. 618
v. Johnson, 402 U.S. at
402 U. S. 692,
and
Connor v. Williams, supra, at
404 U. S. 551,
the court's plan relied heavily on multimember districts. [
Footnote 1]
In imposing these temporary measures, the District Court
professed its intent to avoid unnecessary delay in preparing a
permanent plan for the 1979 state elections. The court's actions,
however, belied that representation. On August 1, 1975, the court
refused to establish a deadline for approval of a final plan,
although it articulated "its firm determination to have this matter
out of the way before February 1, 1976." App. to Pet. for Mandamus
in
Connor v. Coleman, O.T. 1975, No. 71184, p. 4a. On
January 26, 1976, the United States moved to set February 10, 1976,
as the date for a hearing on the permanent plan. The court,
however, denied the motion and deferred further deliberations until
this Court decided three pending cases involving reapportionment
issues.
See Connor v. Coleman, 425 U.S. at
425 U. S. 678.
[
Footnote 2]
On May 19, 1976, after two of the three cases had been decided,
we allowed the plaintiffs to file a petition for a writ of
mandamus, and directed the District Court to
"carry out the assurance given in its order of January 29, 1976,
to 'bring this case to trial forthwith . . .' and schedule a
hearing to be held within 30 days on all proposed permanent
reapportionment plans to the end of entering a final judgment
embodying a permanent plan reapportioning the Mississippi
Legislature in accordance with law to be applicable to the election
of legislators in the 1979 quadrennial elections, and also ordering
any necessary special elections to be held to coincide with the
Page 440 U. S. 619
November, 1976, Presidential and congressional elections, or in
any event, at the earliest practicable date thereafter."
Id. at
425 U. S. 679.
The District Court thereupon held the required hearing and entered
a judgment adopting a final plan.
This Court reversed the judgment on direct appeal, finding that
the plan
"fail[ed] to meet
the most elemental requirement of the
Equal Protection Clause in this area -- that legislative districts
be 'as nearly of equal population as is practicable.'"
Connor v. Finch, 431 U.S. at
431 U. S.
409-410 (citations omitted; emphasis added). In spite of
our previous holding that court-ordered reapportionment plans
ordinarily must achieve population equality with only
de
minimis variation, [
Footnote
3] our invalidation of legislative reapportionments with
variations of 5.97% and 13.1%, [
Footnote 4] and our strong suggestion in
Connor v.
Williams, 404 U.S. at
404 U. S. 550, that variations near 20% were
unacceptable, the District Court's plan countenanced maximum
population deviations of 16.5% in the senate districts and 19.3% in
the house districts. While the District Court had justified these
excessive deviations as preservative of existing political
boundaries, this Court found that the plaintiffs had submitted an
alternative plan that better served the state policy against
fragmenting county boundaries and came closer to achieving
population equality. 431 U.S. at
431 U. S. 420.
Moreover, we observed that
"unexplained departures from the results that might have been
expected to flow from the District Court's own neutral guidelines
can lead, as they did here, to a charge that the departures are
explicable only in terms of a
Page 440 U. S. 620
purpose to minimize the voting strength of a minority
group."
Id. at
431 U. S. 425.
Without stating explicitly whether such charges were justified, we
directed the court to draw legislative districts that were
"reasonably contiguous and compact . . . or explain precisely why,
in a particular instance, that goal cannot be accomplished."
Id. at
431 U. S.
425-426. Finally, we insisted in no uncertain terms that
the District Court resolve this litigation forthwith, stating:
"The task facing the District Court on remand must be approached
not only with great care, but with a compelling awareness of the
need for its expeditious accomplishment, so that the citizens of
Mississippi at long last will be enabled to elect a legislature
that properly represents them."
Id. at
431 U. S.
426.
On remand, the parties submitted proposed plans to the District
Court. A trial began on November 21, 1977, and concluded on
February 14, 1978. Approximately two months later, in April, 1978,
the Mississippi Legislature enacted a new reapportionment plan,
which was filed with the Attorney General. The Attorney General
registered his objection on July 31, 1978, and the next day, the
State brought suit in the District Court for the District of
Columbia seeking a declaratory judgment that the apportionment Act
did not have a discriminatory purpose or effect.
Meanwhile, in May, 1978, a Special Master previously appointed
by the court below filed a final plan. The court ordered a
settlement conference in June, and a plan was developed on which
all parties agreed. [
Footnote
5] On August 2, however, the defendants filed a motion, opposed
by the other
Page 440 U. S. 621
parties, to stay the proceedings until the conclusion of the § 5
litigation. Thereafter, in September, the negotiations broke down
when the State insisted that the parties agree not to introduce the
settlement plan as evidence before the D.C. court.
On October 12, 1978, the plaintiffs requested the District Court
to enter final judgment implementing the settlement plan. At a
hearing on November 29, 1978, the court, relying on
Wise v.
Lipscomb, 437 U. S. 535
(1978), stated it would "not
rush in with a court-ordered
plan . . . when a legislative plan [was] pending." Tr. 3-4
(emphasis added). The court therefore set no deadlines for
disposition of the plans before it. When counsel observed that
Connor v. Finch, 431 U.S. at
431 U. S. 426,
required expeditious action, the District Court appeared to
conclude that the intervening actions of the Mississippi
Legislature had somehow dissolved the mandate of this Court. Tr.
11-12.
The District Court reiterated at a hearing on January 2, 1979,
that "purely on the authority of
Wise v. Lipscomb, . . .
we've been waiting to see what the District Court in the District
of Columbia would do about the legislative plan."
Id. at
7. In their response to petitioners' motion, the judges of the
District Court have assured us that, if the D.C. court has not
acted by May 7, 1979, 31 days before the June 7 filing deadline for
the primary elections, they will implement a court-ordered
plan.
However, even assuming the District Court met its May 7
deadline, the delay would effectively preclude meaningful review by
this Court prior to the August primaries. Given the "painfully
protracted" course of this litigation,
Connor v. Finch,
supra at
431 U. S. 410,
and the dismal record of the District Court, I believe that
foreclosing appellate review of its plan before the 1979 primary
elections would simply afford the District Court another
opportunity to disregard our mandates. Furthermore, the District
Court's justifications for its latest
Page 440 U. S. 622
procrastination are as unfounded as those it has previously
invoked to evade its judicial responsibilities.
Wise v. Lipscomb provides no excuse for ignoring our
express directive in
Connor v. Finch, supra. To be sure,
MR. JUSTICE WHITE's opinion in
Lipscomb, which was joined
by MR. JUSTICE STEWART, noted that a federal court should give a
state legislature a "reasonable opportunity" to fashion an
acceptable plan before formulating one itself. 437 U.S. at
437 U. S. 540.
But this was no novel legal principle. Indeed, the District Court
had relied on a similar statement in
Chapman v. Meier, 420
U.S. at
420 U. S. 27,
when it stayed the proceedings in 1975 and then approved the
legislature's plan.
See supra at
440 U. S. 616.
Especially in light of this prior deference, the Mississippi
Legislature has had a reasonable opportunity to formulate an
acceptable plan over the 13 years of this litigation. In any case,
implementation of a court-ordered plan at this point will effect a
minimal intrusion on state prerogatives. The legislators have
already indicated their provisional approval of the settlement
plan, which is one of the options available to the court.
See n 5,
supra. And, if the D.C. court sustains the legislature's
reapportionment, that plan, unless stayed by this Court pending
appeal, would supersede whatever plan the Mississippi District
Court imposes and would govern the 1979 election. The District
Court could easily minimize any inconvenience in the transition by
implementing the settlement plan, which largely tracks the 1978
statutory reapportionment with respect to the majority of the
legislative district. Pet. for Mandamus 10 n. 2; Reply Brief for
Petitioners 2-3. [
Footnote 6]
Moreover, any administrative difficulties would not justify
imposition of another temporary, constitutionally infirm plan, as
occurred in previous elections.
Nor is there merit to the suggestion that the federal court will
exceed its judicial function by formulating a plan before
Page 440 U. S. 623
resolution of the § 5 litigation. The argument disregards, as
the District Court apparently did, MR. JUSTICE WHITE's statement in
Lipscomb: '
"Legislative bodies should not leave their reapportionment tasks
to the federal courts; but when those with legislative
responsibilities do not respond, or the imminence of a state
election makes it impractical for them to do so, it becomes the
'unwelcome obligation,'
Connor v. Finch, supra at
431 U. S. 415, of the
federal court to devise and impose a reapportionment plan pending
later legislative action."
"
* * * *"
". . . A new reapportionment plan enacted by a State, including
one purportedly adopted in response to invalidation of the prior
plan by a federal court, will not be considered 'effective as law'
. . . until it has been submitted and has received clearance under
§ 5. . . . Pending such submission and clearance, if a State's
electoral processes are not to be completely frustrated, federal
courts will at times necessarily be drawn further into the
reapportionment process and required to devise and implement their
own plans."
437 U.S. at
437 U. S. 540,
437 U. S. 542.
Awaiting the D.C. court's decision could well frustrate the State's
electoral processes. Such a course would deny the plaintiffs and
the United States an opportunity before the primary elections to
have us review the reapportionment plan of a court that has proved
demonstrably reluctant to follow our decisions. To permit this
delay would further compromise the rights of Mississippi voters by
requiring that special elections for vacancies be conducted under
ad hoc adaptations of the court's invalid 1975 plan.
See, e.g., Brief for United States 14; Reply Brief for
Petitioners 2 n. 2.
I believe that the District Court's reliance on
Wise v.
Lipscomb is a transparent attempt to avoid the unequivocal
command of this Court. Such intransigence, particularly after
Page 440 U. S. 624
13 years of malfeasance, warrants extraordinary sanctions. As we
have previously held:
"When a lower federal court refuses to give effect to, or
misconstrues our mandate, its action may be controlled by this
court, either upon a new appeal or by writ of mandamus. . . . It is
well understood that this court has power to do all that is
necessary to give effect to its judgments."
Baltimore & Ohio R. Co. v. United States,
279 U. S. 781,
279 U. S. 785
(1929).
Accord, United States v. Haley, 371 U. S.
18 (1962).
The petition should be granted and mandamus should issue
forthwith.
[
Footnote 1]
Forty-two of eighty-four house districts and 14 of 39 senate
districts were multimember. Brief for United States in
Connor
v. Coleman, O.T. 1975, No.75-1184, p.9.
[
Footnote 2]
The three cases were
United Jewish Organization v.
Carey, 430 U. S. 144
(1977),
Beer v. United States, 425 U.
S. 130 (1976), and
East Carroll Parish School Board
v. Marshall, 424 U. S. 636
(1976).
[
Footnote 3]
Chapman v. Meier, 420 U. S. 1,
420 U. S. 26-27
(1975).
[
Footnote 4]
Kirkpatrick v. Preisler, 394 U.
S. 526 (1969);
Wells v. Rockefeller,
394 U. S. 542
(1969). Of course, legislative apportionments are entitled to
greater deference than court-ordered plans.
Connor v.
Finch, 431 U. S. 407,
431 U. S. 415
(1977);
Wise v. Lipscomb, 437 U.
S. 535,
437 U. S. 541
(1978).
[
Footnote 5]
The Joint Apportionment Committee of the Mississippi Legislature
polled both houses and determined that a substantial majority of
legislators favored the settlement plan if the statutory plan did
not receive § 5 clearance. Pet. for Mandamus 10.
[
Footnote 6]
Significant differences remain, however, regarding the number of
Negro majority districts under the respective plans.
Id.
at 111, n. 2.