7. Federalism in Redistricting

Introduction

Race was the dominant issue for the U.S. Supreme Court when it dealt with redistricting in the 1990s. But there was a second kind of race that also was important: the race between the state and federal courts.

After the 1990 census, 20 states had suits in state courts concerning redistricting plans; 28 states had suits in federal court. Eleven states had suits in both state and federal courts on the same plan. New York had cases in four different federal courts and three different state courts. How should all this parallel litigation be coordinated?

The Race Between State And Federal Courts

In a 1965 case, Scott v. Germano, the Supreme Court had recognized that state courts have a significant role in redistricting and ordered the federal district court to defer action until the state authorities, including the state courts, had had an opportunity to redistrict.

In the 1990s, some federal district courts properly deferred action pending the outcome of state proceedings, but others did not.

In Minnesota, after a state court had issued a preliminary order correcting the technical errors in the legislative plan enacted by the Legislature, the federal district court enjoined the state court from issuing its final plan. The U.S. Supreme Court summarily vacated the injunction a month later. After the state court issued its final order on the legislative plan and had held its final hearing before adopting a congressional plan, the federal court threw out the state court's legislative plan, issued one of its own, and enjoined the secretary of state from implementing any congressional plan other than the one issued by the federal court. The federal court's order regarding the legislative plan was stayed pending appeal, but the congressional plan was allowed to go into effect for the 1992 election. After the election, the Supreme Court reversed.

In Growe v. Emison, the Court held that the district court had erred in not deferring to the state court. The Court repeated its words from several previous cases that “reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.” As the court said:

Minnesota can have only one set of legislative districts, and the primacy of the State in designing those districts compels a federal court to defer.

Rather than coming to the rescue of the Minnesota electoral process, the federal court had raced to beat the state court to the finish line, even tripping it along the way. It would have been appropriate for the federal court to have established a deadline by which, if the state court had not acted, the federal court would proceed. However, the Supreme Court found that the state court had been both willing and able to adopt a congressional plan in time for the elections. The Supreme Court reversed the federal court's decision in its entirety, allowing the state court's congressional plan to become effective for the 1994 election.

Federal Court Review Of State Court Decisions

Once a state court has completed its work, the Full Faith and Credit Act requires a federal court to give the state court's judgment the same effect as it would have in the state's own courts. A federal district court may not simply modify or reverse the state court's judgment. That may be done only by the U.S. Supreme Court on appeal from or writ of certiorari to the state's highest court. This principle is now known as the “Rooker-Feldman doctrine.”

Although the state court's judgment on a redistricting plan is not subject to review or direct attack in federal district court, the plan remains subject to collateral attack. That is, it may be attacked for different reasons or by different parties in federal court.

The judicial doctrines that establish limits on those collateral attacks are called res judicata and collateral estoppel. Res judicata translates literally as “the matter has been decided.” It means that a decision by a court of competent jurisdiction on a matter in dispute between two parties is forever binding on those parties and any others who were working with (“in privity with”) them. Res judicata applies when the parties are the same, the cause of action is the same, and the factual issues are the same. If the parties and the issues are the same, but the cause of action is different, the term “collateral estoppel” is used to describe the same concept. What this means for those who draw redistricting plans is that, if an issue was not raised and decided in state court, it is open for decision in a federal court. It also means that, if parties raise in federal court the same issue raised by different parties in state court, the federal court may come to a different conclusion.

How federal review of state court decisions may proceed is illustrated by the parallel litigation over Pennsylvania's congressional districts. In Nerch v. Mitchell, plaintiffs filed three suits in federal district court that paralleled a suit in state court, Mellow v. Mitchell, seeking to have the 1982 congressional plan invalidated and, in the absence of legislative action, a new plan drawn by the court. The three-judge federal court stayed its own proceedings pending the outcome of the state court proceedings.

After the Supreme Court of Pennsylvania adopted its congressional plan, the plaintiffs in the three suits challenged the plan on the grounds that its overall range of 57 persons violated the Equal Protection Clause of the Fourteenth Amendment and that the reduction of the African American population in District 2 (Philadelphia) and District 14 (Pittsburgh) violated Section 2 of the Voting Rights Act and the Fifteenth Amendment to the U.S. Constitution. Some of the plaintiffs had participated in the state court action and some had not. None of the plaintiffs in the state court action were African Americans who were entitled to vote in either of the districts challenged under Section 2.

The federal district court dismissed the complaints of the parties who had participated in the state court action on the basis of the Rooker-Feldman doctrine. But it also found that none of the parties to the state court action had had standing to raise the Section 2 claims, since none were African Americans who were entitled to vote in either of the challenged districts, and that it was therefore proper for the federal court to consider those claims when brought by African American voters in those districts.

In Johnson v. DeGrandy, where the Florida Supreme Court had rejected a series of challenges to the Legislature's legislative plan “without prejudice to the right of any protestor to question the validity of the plan by filing a petition in this Court alleging how the plan violates the Voting Rights Act,” the U.S. Supreme Court found that the parties to the state court proceeding had not had the “full and fair opportunity to litigate” that res judicata requires, that the judgment of the Florida Supreme Court was not final under state law, and that the parties to the state court suit were therefore not precluded from bringing the same claims in federal court. The United States was not barred by the Rooker-Feldman doctrine or by res judicata from bringing a Section 2 challenge in federal court, since it was not a party to the state court action.

Federal Court Deferral To State Remedies

After a federal court has determined that a state redistricting plan violates federal law, it will usually allow the state authorities a reasonable time to conform the plan to federal law. In North Carolina, Georgia and Texas, the federal district court that had struck down a congressional plan as a racial gerrymander allowed the legislature an opportunity to correct the plan at its next session. Only when the Georgia and Texas legislatures had failed to enact a corrected plan did the federal courts in those states impose plans of their own. In contrast, however, the federal district court in Florida imposed a legislative plan of its own within three hours of having struck down the plan enacted by the Legislature and approved by the Florida Supreme Court. The court's order imposing its plan was immediately stayed by the U.S. Supreme Court and eventually reversed on the merits without comment on the conduct of the district court in so hastily imposing a remedy.

If the state's legislative and judicial branches fail to conform a redistricting plan to federal law after having been given a reasonable opportunity to do so, a federal court may impose its own remedy. Even then, however, the federal court must follow discernible state redistricting policy to the fullest extent possible. The federal court must adopt a plan that remedies the violations but incorporates as much of the state's redistricting law as possible.

Representing The Legislature In Federal Court

Although the U.S. Supreme Court has been unanimous in holding that a federal court must defer to a state court that is in the process of redistricting, in Lawyer v. Department of Justice it split 5-4 on the question of what procedure a federal court should follow when deferring to a state legislature whose redistricting plan has come under attack.

Florida Senate District 21 (Tampa Bay) had been challenged in federal court on the ground that it violated the Equal Protection Clause of the U.S. Constitution. The district had been drawn by the Florida Legislature; the Justice Department had refused to preclear it because it failed to create a majority-minority district in the area; the governor and legislative leaders had refused to call a special session to revise the plan; the state Supreme Court, performing a review mandated by the Florida Constitution before the plan could be put into effect, had revised the plan to accommodate the Justice Department's objection; and the plan had been used for the 1992 and 1994 elections. A suit had been filed in April 1994, and a settlement agreement was presented for court approval in November 1995. The Florida attorney general appeared representing the State of Florida, and lawyers for the president of the Senate and the speaker of the House appeared representing their respective bodies. All parties but two supported the settlement agreement, and in March 1996 the district court approved it. Appellants argued that the district court had erred in not affording the Legislature a reasonable opportunity to adopt a substitute plan of its own. The Supreme Court did not agree.

Justice Stevens, writing for the majority, found that action by the Legislature was not necessary. He found that the state was properly represented in the litigation by the attorney general and that the attorney general had broad discretion to settle it without either a trial or the passage of legislation.

Justice Scalia, writing for the four dissenters, argued that:

The “opportunity to apportion” that our case law requires the state legislature to be afforded is an opportunity to apportion through normal legislative processes, not through courthouse negotiations attended by one member of each House, followed by a court decree.

Conclusion

Now that it is clear that the federal courts must defer to redistricting proceedings in a state court, legislatures will want to be prepared to defend their plans in state court. Once the state court proceedings are concluded, and even while they are in progress, legislatures must be prepared to defend the plans in federal court as well. In both courts, legislatures will want to remain on good terms with their attorney general.

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This page is maintained by the Redistricting Task Force for the National Conference of State Legislatures
Update:  10/31/03 (psw)
Comments: peter.wattson@senate.leg.state.mn.us