Growe v. Emison – Oral Argument – November 02, 1992

Media for Growe v. Emison

Audio Transcription for Opinion Announcement – February 23, 1993 in Growe v. Emison

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William H. Rehnquist:

We’ll hear argument next in No. 91-1420, Joan Growe v. James Emison.

Mr. Tunheim, you may proceed whenever you’re ready.

John R. Tunheim:

Thank you, Mr. Chief Justice, and may it please the Court:

Redistricting is a power and responsibility that is reserved to the States in the first instance.

This case presents the Court with an opportunity to illuminate that important principle and clarify the apparent confusion in the lower Federal courts.

I intend to direct my argument this morning to the abstention issue: did the Federal court err by refusing to abstain to an ongoing State judicial proceeding?

And the case presents perhaps one of the most stark examples of what can go wrong when there are jurisdictional disputes in the redistricting process.

We have a Federal court that has twice enjoined an ongoing State proceeding and enjoined a final valid judgment of a State court and wrote redistricting plans that absolutely ignored State law.

And I would like to focus on the proper role of the Federal courts in the unique context of the decennial responsibility of redrawing the election districts within the boundaries of the States.

You cannot have two sets of rules, one drawn by the State and one by the Federal courts.

The time pressures are extraordinary.

There must be a rule that is absolutely clear on allocation of responsibilities because at stake are really the vital State interests that are involved in elections, in ensuring the integrity of election districts within States, and at stake are really important principles of federalism.

Prior decisions of this Court have established and reaffirmed a bright line abstention rule to be followed by Federal courts in redistricting cases.

The rule is firmly grounded in the Constitution and by strong policy reasons.

Adherence to the rule would have eliminated the costly, wasteful, and duplicative proceedings that we had in this matter.

Now, any discussion of the abstention rule must start by reemphasizing what is unique about the redistricting process.

It is an inherent State function.

This Court has emphasized that Federal courts… emphasized over and over that Federal courts must defer to State legislatures to accomplish the redistricting task, and even when Federal courts do act, they must adhere and defer to State policies that have been developed.

This deference principle I believe is at the heart of the abstention doctrine for redistricting cases.

Now, this rule is limited to a relatively narrow window for the redistricting process, the roughly 10 months or so that States have after receipt of the census data and when they have to have district plans in place to run the first election after that time.

If there is a redistricting challenge in State courts, if there is such a challenge, the Federal court should abstain in favor of the State court action just as it must defer to the legislature.

Sandra Day O’Connor:

Well, Mr. Tunheim, I guess at least Scott v. Germano says that the Federal district court should set a timetable for the State action.

John R. Tunheim:

Yes.

Sandra Day O’Connor:

Do you concede that it is the role of the Federal court to do that much?

John R. Tunheim:

It… yes, I do, Your Honor.

The Federal court should under the rule retain jurisdiction to ensure that all constitutional and statutory provisions are adhered to by the State in the process.

Sandra Day O’Connor:

Now, in this case I take it the Federal district court did not set a timetable for the State to make congressional redistricting?

John R. Tunheim:

The Federal court in this case, Your Honor, set a timetable for the legislature to act.

The Federal court throughout the process ignored–

Sandra Day O’Connor:

On congressional redistricting?

John R. Tunheim:

–For the legislature to act on congressional and legislative redistricting.

Sandra Day O’Connor:

And for the State court?

John R. Tunheim:

The Federal court did not set a deadline for the State court because it essentially ignored the State court throughout the process.

It found properly that it must defer.

Sandra Day O’Connor:

And we have an election coming up tomorrow.

What congressional plan will be in effect tomorrow?

John R. Tunheim:

The election tomorrow is being operated pursuant to the stay of this Court.

Legislative districts will be, by virtue of the State court plan which–

Sandra Day O’Connor:

But congressional by the Federal district court plan.

John R. Tunheim:

–But congressional districts by the Federal.

Sandra Day O’Connor:

And do you say that this Court, if we think the district court erred with regard to the congressional plan, should set aside that election?

And then what would you do?

I mean, what is it you’re asking?

John R. Tunheim:

We are not asking this Court to take any action with respect to the election tomorrow.

The principle that we are urging on the Court is that the Federal court must abstain in favor of a State court, and in this case we had a State court that had an ongoing proceeding with respect to congressional redistricting.

In fact, in… at the later stage of the process after it had been enjoined several times, it finally issued a plan.

Sandra Day O’Connor:

Well, suppose we agree with you and say the district court erred.

What relief is it that you’re asking, please?

John R. Tunheim:

The relief that we’re asking with respect to congressional districts is that the Federal court decision be reversed and the matter be left for the State court to complete the process of congressional district that it… congressional redistricting that it worked on throughout the year.

So, in other words, for the 1994 elections, they would be run pursuant to a plan drawn by the State court or the State legislature if it chooses to pass a plan, but it would not impact the 1992 elections at all.

Byron R. White:

Well, the… that would happen if the State legislature acted anyway.

John R. Tunheim:

Yes, it would, Justice White, but the State court panel was proceeding in view of a valid–

Byron R. White:

Yes, the State… yes, but the State court isn’t about to insist on having its own plan govern the 1994 elections if the legislature has come up with a plan of its own that meets constitutional requirements.

John R. Tunheim:

–Absolutely.

The important principle is that all courts must defer to the legislature.

The legislature in this instance was unable to pass a congressional plan that was signed by the Governor, and so the State court proceeded to draw a congressional redistricting plan.

And it would be that plan that we would urge the Court to allow to go into effect to recognize the power and the responsibility of the State judiciary to address these issues under the abstention rule.

William H. Rehnquist:

Mr. Tunheim, in response to a question from Justice O’Connor, you said that the Federal district court should set a timetable for the… does that mean anything more than a deadline?

I mean, you’re not suggesting that the Federal court should tell the… that one house should pass a bill on such and such a day and another on another day, are you?

John R. Tunheim:

No, I’m not, Your Honor.

John R. Tunheim:

What I’m suggesting is what this Court in Germano suggested, that the Federal court retain jurisdiction and fix a reasonable time by which the State must complete the process in order to avoid Federal intervention.

William H. Rehnquist:

And if it isn’t done by that time, then the Federal court says, all right, we can’t wait any longer.

We’re going to go ahead.

Is that right?

John R. Tunheim:

That’s correct.

Antonin Scalia:

And your position is that that deadline applies not just to the State legislature, but also to the State courts, that you set a date and if the State hasn’t taken action by then either through its legislature or through its courts, then the Federal courts get in.

John R. Tunheim:

That’s correct.

And I believe that’s a reasonable administration of justice rule because administration of justice is an important concern in redistricting matters, especially with the very quick time line that must follow.

Byron R. White:

But in this case, the State court was working, wasn’t it?

John R. Tunheim:

The State court was proceeding.

It, in fact, entered a final valid judgment on legislative redistricting.

It was deferring to the legislature to give the legislature an opportunity to pass a congressional plan in January of 1992, and–

Byron R. White:

Was that beyond the deadline that the Federal court had–

John R. Tunheim:

–No.

The Federal court set a deadline of January 20 for the legislature, but the Federal court did not set a deadline for the State to complete the process.

Their deadline applied only to the legislature.

Byron R. White:

–Not for the congressional districting.

John R. Tunheim:

But for… well, for legislative redistricting and congressional redistricting, both of which are the power of the legislature to draw lines if they can accomplish that task.

Byron R. White:

I know.

Did the Federal court set a deadline for the legislature to act with respect to congressional districting?

John R. Tunheim:

Yes, January 20, the same date–

Byron R. White:

And was the State court willing to wait longer than that?

John R. Tunheim:

–The State court was proceeding through the process–

Byron R. White:

Yes or no?

John R. Tunheim:

–The State court did adhere to that date.

Yes, it did.

So, the answer to your question is yes.

The State court was prepared to review any congressional plan that the legislature would have passed.

It had already–

Byron R. White:

Prior to January 20.

John R. Tunheim:

–Well, it was waiting until the legislature had an opportunity in January.

It was represented to both courts that the legislature was going to meet in January and attempt to pass a congressional plan and attempt to pass a corrections bill for the legislative redistricting plan.

Byron R. White:

Before January 20?

John R. Tunheim:

Before January 20.

That’s correct.

David H. Souter:

I take it you would agree that the time set, let’s say, for State court action should be a time which would leave the Federal courts with time themselves to come up with a plan if the State courts don’t.

You agree to that, I take it.

John R. Tunheim:

Yes, I would, Justice Souter, although I must reemphasize the unique time pressures that are involved in redistricting.

And in many cases, it may not be possible for two court systems to both work on the redistricting process within this narrow 10-month window.

David H. Souter:

Right.

Well, that’s what I want to get at.

If that is the case, so that any date that would give the Federal courts time to begin, would not be a date which would give the State courts time to finish.

In a case like that, doesn’t it make sense to say that abstention really doesn’t have much of an application because if, indeed, that’s the case, then by abstaining, the only thing the Federal court is doing is just squeezing its own timeframe in?

And we know perfectly well that it’s going to get into the business of considering its own plan before the State courts could have acted.

So, in a case like that, why have any abstention?

John R. Tunheim:

Well, because of the unique nature of redistricting, which is a function that this Court has time and time again referred to as an important State function.

The–

David H. Souter:

Well, I know it, but I mean, how does that help you to get to an answer of my… to my question?

John R. Tunheim:

–Well, it helps because what is important for the Federal court to do is to leave sufficient time for the State to complete its process.

That includes the legislature if it so chooses to act–

David H. Souter:

Yes, but if I may interrupt you.

On the hypothesis that you and I are working on, the only effect of leaving that time is kind of a gesture of politeness because we’re assuming that the State courts aren’t going to have time to finish by the date at which the Federal courts are going to have to begin if there is no plan in place, so that the only thing we’re really doing is going through kind of a… sort of an after you, Alphonse scheme when you know perfectly well that the Federal courts are going to get into it before the States are going to finish anyway.

John R. Tunheim:

–Well, hopefully, that would not be the case that… if the Federal court would permit a State to go through the process, both legislative and through the State judiciary, and give them an opportunity to complete this process in the 10-month period of time, that is really what is at stake in the abstention rule.

Germano involved a situation in which there was a Federal court order that was issued before a State court order, and this Court–

William H. Rehnquist:

Well, that is a difference between this case… why should the Federal court have retained jurisdiction here since the State court proceedings were initiated before any Federal court proceedings were?

John R. Tunheim:

–Well, I would suggest that that was the rule that was suggested by this Court in Germano, that the court retain jurisdiction.

William H. Rehnquist:

Yes, but as you should point out in Germano, the Federal court proceedings came first.

Here the State court proceedings came first.

John R. Tunheim:

The only reason for the Federal court to retain jurisdiction is just simply to provide some kind of assurance that all concerns of voters will be resolved in the process.

William H. Rehnquist:

Well, what–

John R. Tunheim:

If a State court is ongoing, there really is no need for a Federal action.

William H. Rehnquist:

–Yes, and the Federal court cannot review the State court decree.

Why not… if a State court proceeding starts first in reapportionment, why not simply leave it to the State courts and appeal through their system and review here, just as you get through the Federal court system?

John R. Tunheim:

I would suggest to the Court that that is a better rule.

That wasn’t the rule suggested in Germano, but that–

William H. Rehnquist:

But Germano is different factually from this case.

John R. Tunheim:

–Germano is different factually, although I would… I would hesitate to think that a rule that provided for some sort of race to the courthouse would be the proper rule to apply.

Our argument is that this… that the power of the States to redistrict should be recognized both through the legislature and through the State court system and make the Federal court a reviewer of last resort and only if it’s necessary.

Byron R. White:

Are you… I gather you’re suggesting that… suppose the State court in this case had finished both jobs, both the legislative job and the congressional redistricting, and the… there was also a suit pending in the Federal court.

Now, could the Federal court then be asked to rule that the State court had misapplied the Constitution and actually review the decision of the State court?

I take it you think it could.

John R. Tunheim:

I suggest, Justice White, that it should not review the decision of the State court.

If there are different parties raising different claims in Federal court, then the proper rule under any abstention analysis is to look to whether the State court provided an adequate opportunity for all parties to have their issues resolved before the State court.

If that’s true, it’s the end of the case, and there’s no more need for Federal court–

Byron R. White:

This isn’t a question of res judicata exactly.

It’s whether or not the Federal court has the authority to say, well, the State court should have provided a minority district here and it didn’t.

And the State court had considered it and rejected the notion.

Now, can the Federal court displace the State court in that respect?

John R. Tunheim:

–Absolutely not.

The rule should be, as stated in Germano… and I recognize the factual situation is a little bit different here, in fact, more favorable to the State interests… the Federal court should not have an opportunity to review on the merits what the State court has done.

That appeal is through the–

Byron R. White:

Of course, the State court hadn’t finished the job when the Federal court ruled on congressional redistricting.

John R. Tunheim:

–Pardon?

I’m sorry.

Byron R. White:

The State court had not, as a matter of fact, finished the job on the congressional redistricting when the Federal court acted.

John R. Tunheim:

That is true, in part because of the first of the Federal injunctions which stopped the State court from proceeding forward.

John Paul Stevens:

What if… how would your rule apply to a case in which the plaintiff in the Federal action raises issues that were not raised in the State litigation?

For example, a State litigation might just challenge the redistricting under State constitutional provisions and never raise a question under the Voting Rights Act or the Constitution.

John R. Tunheim:

Well, certainly if there are no issues raised in the State court action with respect to the Voting Rights Act, which is not the case here, but were that to be the case, and there is still sufficient time for a Federal court to review those issues before the election, the Federal court should go ahead and review those because that’s an entirely separate action.

John Paul Stevens:

Or if they’re challenging a different part of the State.

John Paul Stevens:

Let’s say, they didn’t like the district in Minneapolis, but in the Federal action, they might have challenged something else.

Should the Federal court abstain or should it go ahead?

John R. Tunheim:

I would suggest that in that instance the State court should provide, as this Court did, an opportunity for anyone to come forward with their concerns, their one person/one vote concerns, in any part of the State and to resolve those in the State court.

John Paul Stevens:

Must the plaintiff challenge in the State court if the plaintiff prefers a Federal forum?

John R. Tunheim:

Well, certainly we wouldn’t argue a rule that forces a plaintiff to go to State court, although from the administration of justice standpoint, that may be the best rule under the narrow window of the redistricting process.

But if a plaintiff chooses to stay in Federal court, it may be that their concerns don’t get resolved until after the first election has run.

That’s a possible outcome because of the quick time involved in the process.

John Paul Stevens:

Of course, a lot of the time is not always attributable to the Federal proceeding.

Let me put it that way.

John R. Tunheim:

Absolutely.

There’s a lot that needs to be done in any redistricting process, and 10 months is really an insufficient time for it.

Antonin Scalia:

Mr. Tunheim, could you tell me… you made the comment, of course, the State court didn’t finish because it was enjoined.

Was the State court not proceeding at all during December?

It was not doing anything at all when the injunction was in effect.

John R. Tunheim:

The State court issued a final order on legislative redistricting after the Federal court issued its injunction in December.

The order was, of course, subject to the limits of the Federal injunction.

Both courts at that point were waiting for the legislature to come back into session in January to see whether there was any final legislative action.

So, both courts were waiting for that.

Once the legislature failed in January, then the State court proceeded to issue a valid final judgment and to proceed ahead on congressional redistricting.

It’s at that point that the Federal court once again stopped the State court by enjoining both its actions on congressional and legislative redistricting.

Antonin Scalia:

That was when?

John R. Tunheim:

In February.

Antonin Scalia:

February.

John R. Tunheim:

Right.

I would like to reserve the remaining time for rebuttal.

William H. Rehnquist:

Very well, Mr. Tunheim.

General Starr, we’ll hear from you.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court.

The interest of the United States in this case focuses on a different aspect of the proceedings below, namely the interpretation of the Voting Rights Act by the district court and specifically section 2 as amended in 1982.

Anthony M. Kennedy:

Do you take no position at all on the abstention argument that we’ve just heard?

Kenneth W. Starr:

We do not.

Abstention is obviously a fact-intensive inquiry.

The principles of this Court have, obviously, indicated the importance of State procedures and that this is a State function, but the fact-intensive nature of this is such that we take no position.

Our focus is on the merits portion of what the district court did, its interpretation of section 2, and our submission about section 2 is this, that the language of section 2, its purpose, and the underlying logic of voter dilution claims all combine to suggest that the preconditions identified by this court in the Gingles case should apply to single member district challenges as well as to the multimember district challenge at issue.

That is to say that minority plaintiffs or any challenger should show that there is a sufficiently large, geographically compact group of minority voters so as to constitute a majority within a particular district, and then that the voting behavior has been characterized by racial polarization on the part of both minorities and then a white voting block in response.

Above all, unless there is racial block voting… and as the district court mentioned, the three-judge majority mentioned, there is no evidence at all of racial polarization here… then there is no predicate for overturning State drawn districts on a dilution claim.

If we look to what the Voting Rights Act was intended to do and we go back to 1982, the purpose of that restoration in 1982 was to codify this Court’s decision in White against Regester and a wide variety of lower court cases, especially out of the Fifth Circuit, some 23 cases that preceded the City of Mobile v. Bolden.

In all of those cases, racial block voting was present, and when we focus on the logic of a dilution claim, unless there is political cohesiveness, then there is nothing about the State’s electoral structure that has interfered with that.

Not only in those cases was there block voting on the part of minority interests, but there was also racial block voting by the white majority that had the effect of cancelling out or of submerging the minority vote.

In addition, the concept of geographic compactness is closely related to the concept of what an electoral district is, that as this Court said in Gingles, unless there is geographic compactness and a large enough group to constitute a majority in the district, then a defeat at the polls is a result of the lack of numbers and not because of the kind of concerns that Congress was getting at in amending section 2.

Section 2 is getting at the deprivation of equal opportunity on account of race or color.

It is not getting at coalition politics, interest group politics.

It is getting at clearing the channels of politics, of the obstacles that prevent what the statute calls an equal opportunity to participate while guarding against the danger which was part of the great compromise of 1982 of analyzing section 2 in such a way that yields up essentially powerful tendencies in favor of proportional representation.

We believe at bottom that was the vision that was guiding the district court in this particular case.

John Paul Stevens:

General Starr, I know the Government doesn’t take a position on the threshold issues here, but does the section 2 analysis in a Federal proceeding depend at all on what may have happened with regard to section 2 issues in a State proceeding?

Kenneth W. Starr:

It is conceivable, it seems to me just in terms of the orderly administration of justice, that the district court might well be advised to look to the record of the proceedings in the State court case assuming that it had, in fact, had a trial, or at least there were evidentiary submissions and so forth.

John Paul Stevens:

Well, beyond looking at the record, supposing a State court disagreed with your analysis and found a section 2 violation that you would say was plainly wrong, would there be… would that judgment be entitled to full faith and credit in a parallel Federal proceeding, do you think?

Kenneth W. Starr:

Well, again, we have taken no position at all on that.

John Paul Stevens:

This is very important because we have ongoing litigation in two systems frequently, and I think the United States… it’s strange to me you don’t have a position on that issue.

Kenneth W. Starr:

Primarily because of the inherently fact-intensive nature of these proceedings.

That… I think the value… when we look at Scott against Germano and what this Court was trying to do, I think the Court was essentially saying to Federal courts please be respectful of State court proceedings, and as the Chief Justice indicated, once those State court proceedings are under way there is… and, in fact, what happened in Minnesota, as the Court knows, is that a special three-judge court was impaneled representing different parts of the State with then direct appeal to the Minnesota Supreme Court.

From all that appears, although we have no specific position here, it appears that the State court proceedings were going forward correctly.

Now, if there is concerns on the part of the United States with respect to what a State court might, in fact, do, we obviously are capable of intervening and participating in that litigation.

And obviously, if there is an… ultimately an incorrect interpretation of section 2 by the State court system, that obviously suggests that an appeal would… or certiorari might be appropriate in this Court.

The present dynamic is one that is quite frustrating because you have under the statute these three-judge district courts across the country with direct appeal to this Court, and at the same time you have this phenomenon of the parallel State proceedings.

It does seem to us that there is wisdom in the profederalism vision of Scott against Germano, but at the same time, we have not taken a specific position in terms of the judgment and whether it would be entitled to full faith and credit protection.

Back to section 2, if I may, just for a moment.

It does seem to us that when one analyzes the three-judge court’s opinion, what it essentially said was there is a lack of proportional representation, and the bottom line and what the court did there was to create a new district, that new Senate District 59, which no one in the redistricting process, that deliberative process, hearing from various interested groups and so forth, including minority groups, no one had been recommending–

Anthony M. Kennedy:

The court said there was no statistical evidence of political cohesiveness in the minority.

Was there any other evidence at all either in the State proceeding that it could take notice of or in the proceedings before it from which it might come to the conclusion that there was a politically cohesive force in the minority voting block?

Kenneth W. Starr:

–To the contrary.

I cannot confess intimate familiarity with the State court record, but what I do know is that the State court itself in these proceedings, this special three-judge court, heard evidence, considered this very point, and in fact, as you’ll see in the appellants’ brief, there is evidence quite to the contrary in Minnesota, that individuals, minority individuals, have been elected to various and sundry positions, including in the Twin Cities area, from overwhelmingly majority or white districts.

Anthony M. Kennedy:

How did the district court handle that?

As I read the footnote, footnote 30, it seems simply to make a presumption that this… that there’s usually going to be political cohesiveness.

Kenneth W. Starr:

Exactly right.

I think what Judge Lay and his colleague did on the district bench was simply cite a Law Review article.

That is exactly what this Court in Gingles said cannot be done, and it’s also what the Senate report at page 33 and 34 said cannot be done.

We don’t presume racial block voting in this country.

Sandra Day O’Connor:

General Starr, was there a Voting Rights Act challenge to the congressional redistricting brought in State court here?

Kenneth W. Starr:

I’m sorry.

I don’t know the answer to that.

The answer is, I am informed, no, in State court.

Sandra Day O’Connor:

And was there any section 2 Voting Rights Act challenge to the congressional plan brought in the Federal district court?

Kenneth W. Starr:

No.

Sandra Day O’Connor:

And so, what is the error there if there was one?

Kenneth W. Starr:

I’m not sure that there was in the congressional area, and I don’t think that there has been an appeal with respect to that.

Sandra Day O’Connor:

And you don’t… you take no position on that.

Kenneth W. Starr:

We take no position with respect to that.

Thank you.

Kenneth W. Starr:

I thank the Court.

William H. Rehnquist:

Thank you, General Starr.

Mr. Willis, we’ll hear from you.

Bruce Donald Willis:

Mr. Chief Justice, and may it please the Court:

I think the ultimate issue in this case is whether the Federal court properly issued both legislative and congressional redistricting plans for Minnesota in February of 1992.

And the appellees believe that this Court may determine that issue on the basis of the application of principles of Federal court jurisdiction and doctrines of Federal court abstention without having to determine whether the Federal court’s finding of a violation of section 2 of the Voting Rights Act was clearly erroneous, if this Court so chooses, because in issuing its plans, the Federal court indicated that it was affording the same relief that it would have afforded had it not found a section 2 Voting Rights Act violation.

And appellees further believe that such a determination of this matter may be made by this Court without disturbing any precedents of the Court.

And first of all, this Court has recognized on numerous occasions in cases such as Colorado River that a Federal court has a virtually unflagging duty adjudicate matters before it.

The Federal court in this case had jurisdiction, and it was obligated to adjudicate the constitutional and statutory claims of the plaintiffs before it.

William H. Rehnquist:

Well, how do you explain Scott v. Germano if you’re correct, Mr. Willis?

Bruce Donald Willis:

I don’t view, although I will have to admit, Chief Justice, that the… we bought into the language used by the appellants describing Scott v. Germano as an abstention case.

Bruce Donald Willis:

It properly read is not an abstention case.

It is a deferral case, but quite clearly, this Court told the Federal court in Illinois in that case that it should retain jurisdiction.

Abstention, as I read that term, means–

Byron R. White:

But that doesn’t tell you what should happen if a State court… after the Federal court holds its hand, if the State court decides the issue… do you think Gingles tells… or do you think Scott against Germano tells you that this Federal court can then sit in judgment of how the State court decided the issue?

Bruce Donald Willis:

–I’m not… I think that Scott v. Germano is an anomaly, and it is, as this Court knows, a case that arose as part of the spate of decisions across the country that followed Baker v. Carr and Reynolds v. Sims when virtually every redistricting plan in the country was rendered unconstitutional.

Byron R. White:

So, the main holding was, whether you call it abstention or what, it was the Federal court should not have proceeded to adjudicate the case while the State agencies were working.

Bruce Donald Willis:

I think the case has to be read that way, but it also has to be recognized that that case was brought 2 years in advance of an election, and I don’t think that it provides very efficient guidance for Federal courts today operating under the kinds of time constraints that Mr. Tunheim has described.

William H. Rehnquist:

Well, supposing the Minnesota State court had completed its redistricting plan and the plaintiffs in the Federal action said, well, this is all wrong.

They said there’s no voting rights violation.

We want you to say there is one.

They said it was consistent with the U.S. Constitution.

We want you to say it isn’t consistent.

Can the Federal court review the State plan on the merits?

Bruce Donald Willis:

I don’t think the Federal court reviews the State court plan on the merits, but I think the Federal court has an obligation to adjudicate the claims that are before it no matter what the State court has done.

William H. Rehnquist:

Even though it reaches a result in conflict with the State court–

Bruce Donald Willis:

Even if it reaches a–

William H. Rehnquist:

–on the same issues.

Bruce Donald Willis:

–Even if it reaches a result in conflict with the court on the same issues.

William H. Rehnquist:

That’s a rather strange result.

Bruce Donald Willis:

It strikes me, Your Honor, that this Court in its decision in New Orleans Public Service 3 years ago rather strongly stated that abstention principles… the Younger abstention principle that has been argued for application here in this case does not require abstention in deference to a State judicial proceeding reviewing legislative or executive action.

The Court went on to say… and I quote… it is true, of course, that the Federal court’s disposition of such a case may well affect or for practical purposes preempt a future or even a pending State court action, but there is no doctrine that the availability or even the pendency of State judicial proceedings excludes the Federal court.

Antonin Scalia:

But the Chief Justice’s question to you didn’t involve a future or pending State action.

It involved a completed State action.

And you’ve said that the Federal court could simply review and overturn the result of the State court action.

Bruce Donald Willis:

I said that the… in my judgment the Federal court could reach an inconsistent conclusion.

Antonin Scalia:

Do you know of any other area where this is so, where a Federal issue was presented to a State court, the State court decides it and rules upon it, and a Federal court has authority to review that same issue and come to a different conclusion?

Bruce Donald Willis:

Justice Scalia, we are… in this particular instance, we are dealing with a situation in which the Federal court and the State court, having simultaneous jurisdiction, you know, had claims before it.

The Federal court had no… the State court had arrived at no conclusion.

Antonin Scalia:

There are lots of areas where claims can be brought in either Federal or State courts.

State courts have jurisdiction over other Federal causes of action.

Antonin Scalia:

Do you know of any other area where… when the Federal cause of action has been resolved in the State court, the Federal court has authority to reconsider the matter and set aside the State court judgment?

Bruce Donald Willis:

Your Honor, it’s–

Byron R. White:

You might consider whether the parties are the same.

Bruce Donald Willis:

–Well, thank you, Your Honor, but–

[Laughter]

If we were talking about res judicata and preclusive effect, I mean, that… in this… if you’re talking about the facts of this case as opposed to an abstract legal principle, in this case there were different parties.

The parties in the Federal court were not the… all parties to the State action.

All of the appellants here were parties to both actions.

In fact, three of the appellants voluntarily intervened in the Federal action having been parties to the State action, so that the State court determination here did not have, in our judgment, preclusive effect on the parties to the Federal action.

I misunderstood your question and thought you were speaking in the… in a more abstract manner.

Sandra Day O’Connor:

Well, Mr. Willis, now here is it true that the State court suit was filed first?

Bruce Donald Willis:

That is true, Your Honor.

Sandra Day O’Connor:

And the State court acted in a timely fashion.

Bruce Donald Willis:

Your Honor, we would not concede that.

First of all… and let me correct a misapprehension that may exist.

The question was asked earlier if the Federal court had established a deadline by which not only the legislature, but by which State actions had to be taken.

The Federal court did so in an order on October 4, 1991 in which it established January 25, 1992 as the date by which the State of Minnesota shall enact both legislative and congressional redistricting plans.

Sandra Day O’Connor:

Well, enact plans.

That doesn’t refer to State court action, does it?

Bruce Donald Willis:

It depends on how one reads the State of Minnesota.

Sandra Day O’Connor:

Well, if one thinks that enactment of a plan refers to a legislative act, then it didn’t cover it.

Bruce Donald Willis:

It could be read that way, Your Honor.

Sandra Day O’Connor:

And if we read it that way, then the State court acted in a timely fashion perhaps.

At least that’s arguable.

Bruce Donald Willis:

That is arguable.

Sandra Day O’Connor:

And do the respondents claim that the State plan that was enacted for legislative districts is unconstitutional?

Bruce Donald Willis:

No, Your Honor.

We claim that it was not, however, entitled to deference by the Federal court because it was not a legitimate legislative enactment entitled to deference.

It was not reflective of State policy because it was in all… it was virtually identical to a plan that was specifically rejected as State policy 1 month later.

We have the unusual circumstance here of having a State judicial plan ordered 1 month before the legislature reconvened to attempt to… you know, to pass a legislative redistricting plans.

Bruce Donald Willis:

We have a judicial proceeding before the legislative action.

The legislature attempted to adopt in January of 1992 a plan that but for two Senate districts was identical to the plan the State court had ordered in December, and that was specifically rejected as State policy in Minnesota by virtue of the Governor’s veto and this Court’s–

Sandra Day O’Connor:

So, what we have left is the State court adopted plan.

Is that right?

For the–

Bruce Donald Willis:

–The State court adopted plan–

–Yes.

Bruce Donald Willis:

–still exists.

That’s correct.

Sandra Day O’Connor:

Yes, all right.

And that could be seen as the reflection of State policy in this case.

Bruce Donald Willis:

We argue that it is not a reflection of State policy in that it was virtually identical with the plan that was specifically rejected as State policy.

Antonin Scalia:

Well, suppose that that–

–It wasn’t rejected.

It was simply not enacted at all.

Bruce Donald Willis:

Well–

Antonin Scalia:

I mean, one can view the legislative… the legislature did not adopt a different plan.

So, all that happened when the legislative process was all done was that the plan announced by the State court remained in effect.

At the end of the day, that was the State plan.

Bruce Donald Willis:

–Except this Court has announced that in Minnesota specifically in dealing with redistricting specifically in the Smiley v. Holm case that State policy in Minnesota is reflected by valid legislative enactments, and that in Minnesota the Governor, as the chief executive officer, is a necessary element for a valid legislative enactment to occur.

William H. Rehnquist:

But that doesn’t completely answer the question we’re dealing with here.

So far as the Federal courts are concerned, perhaps a law passed by the legislature, signed by the Governor would have been the best evidence of State policy, but surely the… a plan adopted by a State court is better evidence of State policy than a plan adopted by the Federal court.

Bruce Donald Willis:

I would disagree, Chief Justice Rehnquist.

I don’t think that State policy, at least in Minnesota, is reflected by… is found in judicial enactments.

State policy in Minnesota is found in the valid enactments of the State legislature.

William H. Rehnquist:

You say the State court then was simply proceeding under the same restraints or laws that the Federal court would have to proceed.

It was not entitled to make any more policy choices than a Federal court would be?

Bruce Donald Willis:

I think that is correct.

And first of all, I don’t see that there is any greater reason for a Federal court to abstain in a matter involving voting rights than in a case involving any other basic civil rights.

And no one I think would suggest seriously that because there was a State forum available, that an individual challenging discriminatory educational practices or prison conditions or whatever could not have access to a Federal forum even though the State has a strong State interest in matters of that kind.

David H. Souter:

So, Germano should be overruled?

Bruce Donald Willis:

I don’t think it’s necessary to do that.

I don’t think it’s necessary to do that because Germano is… does not tell Federal courts to abstain, but I think Germano–

David H. Souter:

Well, it tells them to abstain for a while.

Bruce Donald Willis:

–It tells them to stay their hand, but it doesn’t tell them to… you know, to dismiss the case because there is a pending State court action.

David H. Souter:

But on your argument, I’m not sure why deferrals should be any more palatable than abstention.

Bruce Donald Willis:

Certainly in the timeframe involved in this case, deferral was… would not be more palatable than abstention, but the Court should recognize what the Federal court did here.

Not only… in attempting to follow the dictates of Germano, it established first January 20 and later January 25 as the date by which State action had to occur.

No one objected to that.

All of the parties agreed that a plan should be in effect ideally by early February, at latest by the first of March.

The Federal court recognized also the inherent potential for delay in the State appellate proceedings, you know, indicated that because it… you know, it was going to give the legislature an opportunity to act.

If the legislature did not make good on its representation that it would adopt a valid plan of both legislative and congressional redistricting, it would become law in January.

The Federal court knew it wasn’t going to have time to start at that point and get plans done.

William H. Rehnquist:

Well, why was delay in the State proceedings any more objectionable than delay in the Federal proceedings?

I mean, first you have the district court and then you have an appeal here.

So, it’s not as if the district court spoke with any final authority.

Bruce Donald Willis:

Well, except the Court also has to recognize that Congress has, by the enactment of section 2284, given Federal courts specifically jurisdiction over statewide legislative apportionment, as well as congressional apportionment, because they are both specifically mentioned in that section.

It also provides for a direct appeal to this Court from the determination of the three-judge panel.

The three-judge panel created in Minnesota was not created under any statute that relates to redistricting.

It was an ad hoc panel created by the constitutional authority of the Chief Justice of the State Supreme Court to move judges from one district to another.

Since it was not created pursuant to a special statute, there is no special statute regarding appeal, and on its face, the determination of that three-judge panel would be subject to Minnesota’s two-tiered appeal process and then possibly to this Court after determination by the Minnesota Supreme Court.

Harry A. Blackmun:

Mr. Willis, who were the judges on the State side?

Bruce Donald Willis:

On the… pardon me, Your Honor?

Harry A. Blackmun:

Who were the State judges, the three?

Bruce Donald Willis:

Judge Harriet Lansing of the Minnesota Court of Appeals, State District Court Judge William Walker from northwestern Minnesota, and State District Court Judge Kenneth Maas from the Stillwater area.

From where?

Bruce Donald Willis:

Stillwater or White Bear Lake.

David H. Souter:

Why should we consider the potential appellate process at all?

You’ve got a valid judgment once the State court acts, just as you’ve got a valid judgment once a three-judge Federal court acts.

Why isn’t that enough?

David H. Souter:

Why isn’t that the only thing that should be considered?

Bruce Donald Willis:

Because of the exigencies of the political processes in the State, you know, as the Attorney General has acknowledged.

It is essential that between the time that the legislative data are available early in the year following the census year, that the redistricting process both for legislative districts and for congressional districts be completed in such a fashion that the processes necessary to conduct the election in the even numbered year are in place.

David H. Souter:

You can conduct an election based on a… in this case, your three-judge State court decree.

There’s no difficulty in conducting an election.

You just wouldn’t have time to appeal it through the two tiers.

In other words, the State is providing a perfectly enforceable remedy, and you’re, of course, quite right that there isn’t time to appeal the correctness of that remedy perhaps in cases, in this case.

But I don’t see why that is a… as it were, a failing of the State court system which somehow should be considered in determining what the Federal courts should or should not do.

Bruce Donald Willis:

I think it is a consideration, Your Honor, and I think that taken together wich section 2284 an expression of congressional intent that Federal courts have jurisdiction over such cases and providing for immediate and direct appeal to the United States Supreme Court from the determinations of three-judge panels, that Congress has evidenced an intention that there be quick determination of redistricting issues.

William H. Rehnquist:

But, you know, this district court decree was entered when?

Last February?

Bruce Donald Willis:

The Federal district court decree?

Yes.

Bruce Donald Willis:

February 19.

William H. Rehnquist:

And we noted probable jurisdiction last spring.

Here it is November.

We’re hearing the case argued on the merits.

Maybe there will be an opinion out, you know, this winter or this spring.

And obviously, it wasn’t… this review wasn’t in time for the 1992 election.

Bruce Donald Willis:

No, but if… I would suggest, Your Honor, that if this Court were hearing the case after review by two tiers of the Minnesota appellate process and possible certiorari from the determination of the Minnesota Supreme Court that we would probably be sitting here at this time next year or certainly sometime very much later than this.

Antonin Scalia:

Mr. Willis, can I explore with you a little further the consequence of the State court decree if the State court proceeding had been allowed to go forward?

Let’s take it out of the voting rights context.

Suppose you have a shareholder dispute in a close corporation, and there’s some dispute as to how the stock should be divided.

And one of the three shareholders sues in State courts, and the State court says, well, it ought to be 60-20-20.

That’s how the stock ought to be divided, and a judgment is entered to that effect.

Meanwhile, another suit is begun in Federal court somehow, some basis of Federal jurisdiction.

Wouldn’t the suit in the Federal court which claims likewise an inequitable distribution… wouldn’t that suit have to start on the assumption that the current distribution is 60-20-20, the decree entered by the State court?

Bruce Donald Willis:

If you had an identity of parties involved.

Antonin Scalia:

No, even if you didn’t have an identity of parties.

If the court had the power to order, you know, statewide that there be… in the context of my example, that the corporate shares be divided that way, they would be divided that way.

Antonin Scalia:

Now, you could argue that that new arrangement is violative of Federal law, but wouldn’t that new arrangement be the status quo?

And why isn’t that the same here?

If that is true in that situation, why isn’t it here?

You can review the State court determination so long as there are new parties, but the status quo, what you must attack, is the current court decree, not the prior legislative districting that this legislature had established.

Why wouldn’t that be the situation?

Bruce Donald Willis:

Because here, Your Honor, in dealing with redistricting, this Court has said that, you know, the courts must defer to State policy, you know, in making their determinations regarding redistricting.

The hypothetical that you present I don’t perceive as having State policy implications.

Here the Federal court–

Antonin Scalia:

Okay.

It goes back to that.

I–

Bruce Donald Willis:

–Here the Federal court had determined that… you know, by the time it acted in February, I mean, it had a number of facts available to it.

It knew that what the State court had adopted in December was a plan that under Minnesota law, as interpreted by this court, had been specifically rejected as State policy in January.

It also had no congressional plan of any kind before it.

The legislature’s attempt to pass a legislative plan similarly was rejected as State policy by the veto of the Governor in January, and the State court had not generated a congressional plan.

And I would take issue with, by the way, the representation that in any way stays of the Federal court contributed to that circumstance.

As Mr. Tunheim acknowledged, in its December 9 order, the State court said that we are not going to act on congressional plans now.

We’re going to give the legislature a chance to act in January while at the same time not giving them a chance to act again in January on the legislative plans.

The legislature passed a congressional redistricting plan… a stay… that order was issued subject to an existing stay of the Federal panel.

The legislature passed its congressional plan on the 9th of January.

The Governor vetoed it in the 10th of January.

This Court vacated the stay on the 10th of January, so that all the State court had said it would do is wait till the legislature attempted to act by the 10th of January, it was known what was going to happen, and by the 10th of January the stay of the Federal court had been vacated by this Court.

William H. Rehnquist:

–And you don’t defend the district court’s decision to enter the stay here, do you?

Bruce Donald Willis:

I think that the district… absent the district court stay, the legislature likely would not have attempted to act on legislative redistricting.

I think the district court legitimately saw the issuance of a legislative redistricting plan a month before the legislature was scheduled to reconvene to consider redistricting as having a chilling effect on the legislative process in Minnesota.

This Court, obviously, did not agree that the stay was appropriate.

It was vacated without comment.

William H. Rehnquist:

So, whose view do you choose?

This Court’s or the district court’s?

Bruce Donald Willis:

I choose your view, Your Honor.

Bruce Donald Willis:

[Laughter]

Antonin Scalia:

Mr. Willis, did the State court during… in December, when the December stay was in effect, did they do any work at all on, you know, how they would themselves redistrict if the State legislature didn’t come up with anything?

Bruce Donald Willis:

The State court?

Antonin Scalia:

Yes.

Bruce Donald Willis:

I don’t know the answer to that question, Your Honor.

Antonin Scalia:

I think that’s somewhat relevant to whether the State court was dilatory later when the stay was finally lifted; that is, when the legislature had acted, the State comes in and says, well, we moved as fast as we could once the December stay was, in effect, eliminated by the legislative plan having been adopted.

If I thought that they could have gone ahead and done something during December, I might feel differently about it.

Do you think that they were able to proceed with contingency plans during December even though they couldn’t have violated the Federal district court–

Bruce Donald Willis:

I think the court itself could have proceeded with the development of contingency plans as the Federal court had done.

My recollection of the terms of the stay was simply that no action could be taken to implement such a plan and that the parties themselves were enjoined from participating in further proceedings of the State panel, but I think the State panel itself could have and perhaps did.

That was not something to which counsel were privy as I… you know, it may have been working on contingency plans.

Anthony M. Kennedy:

–The parties were enjoined from proceeding before the State court, and then you suggest that it’s appropriate for the State court to continue absent the representation of the parties?

That’s very curious.

Bruce Donald Willis:

Excuse me, no.

I was speaking only to the issue of whether the State court could itself have proceeded with the development of contingency plans subject to the stay.

The Federal court prepared contingency plans without… strike that.

The Federal court prepared contingency plans which were not to be made public until and unless they were needed.

There was input from counsel.

From the outset of the State court action, the State court concerned itself only with legislative plans, and congressional plans were not even mentioned until the order of December 9 in which the State court said we are going to wait until the legislature has an opportunity to act in January.

Sandra Day O’Connor:

Mr. Willis, you haven’t said much about the section 2 vote dilution claim.

Do you think that such a claim can be established absent proof of minority block voting?

Bruce Donald Willis:

Your Honor, we do not believe that the determination of the Federal district court was clearly erroneous, but as I–

Sandra Day O’Connor:

Wait a minute.

What I asked you was whether you believe that a vote dilution claim under section 2 can be established absent proof of minority block voting.

Bruce Donald Willis:

–I think that’s… that that is a stretch, Your Honor.

Sandra Day O’Connor:

That it cannot be.

Bruce Donald Willis:

It cannot be.

Sandra Day O’Connor:

But you think somehow there was such proof in this case.

Is that your position?

Bruce Donald Willis:

I think that the Federal court satisfied itself from an examination of voting patterns that there was racial block voting–

Anthony M. Kennedy:

Well, it said there’s no statistical evidence.

Bruce Donald Willis:

–But once again, Your Honor, I think that it is possible for this panel to deal with the issues in this case without making a determination of the propriety or impropriety of the section 2 Voting Rights Act violation, and I would encourage the Court to do so.

I think that the Court is going to have on its calendar on December 8 a case that will allow the Court to address those same issues, and I don’t think… I think that this case can be disposed of on the grounds of the application of principles of preclusion and that in this case the State court… or I mean, the Federal court had jurisdiction and obligation to act.

There is no principle of abstention that would require them not to act.

In fact, the Court’s pronouncements have been to the contrary, and that the court in issuing its plans of legislative and congressional redistricting properly exercised its broad remedial power and that–

Byron R. White:

It issued an injunction to protect its jurisdiction.

Is that–

Bruce Donald Willis:

–And to issue an injunction to protect its jurisdiction in connection with the issuance of its order.

But it… I mean, it issued a plan that complied with all of the directions of this Court regarding court ordered plans for de minimis population deviations.

It avoided the fracturing of minority voting populations.

It created compact districts.

It was drawn without consideration of the residence of incumbents, and faced with several alternatives for the City of Minneapolis on how best minority voting interests be protected, I don’t think that the Federal court’s decision to create a super majority-minority Senate district can be said to be clearly–

Sandra Day O’Connor:

–Well, suppose we think that the district court improperly found a section 2 Voting Rights Act violation.

Now, had the district court not found that or inasmuch as we might think it’s improper, should the Federal district court then have at least adopted the State court plan?

Bruce Donald Willis:

–Well, I think–

Sandra Day O’Connor:

Isn’t that what’s left?

There was no contention by respondents that the State court plan was unconstitutional.

So, why in the world wouldn’t the Federal district court resort to the State court plan if there’s no section 2 violation?

Bruce Donald Willis:

–Because the stay of the Federal court determined that the State court plan was not… it was not a valid reflection of State policy in that virtually identical plan had been specifically rejected during the 1992 legislative session in January.

William H. Rehnquist:

Thank you, Mr. Willis.

Mr. Tunheim, you have 1 minute remaining.

John R. Tunheim:

Thank you, Mr. Chief Justice.

A couple of concerns to address Justice Scalia’s concern about the delay involved in the State court consideration of congressional redistricting.

The State court had before it congressional redistricting from the beginning.

On August 16 it set the criteria by which it would review any congressional plan that would be enacted by the legislature.

It was stayed.

Its hand was stayed by the Federal injunction from early December until January 10 when that injunction was lifted here.

At that point, the State court once again moved forward on congressional redistricting, asking the parties to come forward and present their views on what the State court should do on congressional redistricting.

Any delay in that process is solely attributable to the injunctions that were imposed on the State court and on the parties by the Federal panel.

There’s no reason to believe… and the State court, in fact–

Thank you.

John R. Tunheim:

–Thank you, Your Honor.

William H. Rehnquist:

Your time has expired, Mr. Tunheim.

Thank you.

The case is submitted.