Cite as: 521 U. S. 567 (1997)
Scalia, J., dissenting
n. 13. "[T]he choice of an enforcement scheme—whether to rely on contractual remedies or to have an agreement entered as a consent decree—is itself made voluntarily by the parties." Id., at 523.
In today's case, by contrast, neither the appellant nor the other original plaintiffs (now appellees) could have concluded a binding out-of-court "redistricting agreement" with representatives of the Florida Legislature, or with the state attorney general—and the Court does not contend otherwise. The Florida Constitution, Art. III, § 16, requires the legislature to draw districts "by joint resolution," and provides no authority for the attorney general to do so.2 Any "redis-2 The Florida Legislature is explicitly required to reapportion "at its regular session in the second year following each decennial census." Fla. Const., Art. III, § 16(a). It seems obvious that the legislature is implicitly authorized to reapportion when its prior reapportionment has been held unconstitutional. See In re Constitutionality of Senate Joint Resolution 2G, 601 So. 2d 543, 544 (Fla. 1992); Tr. 29-30 (July 6, 1995) (view of counsel for the Florida House of Representatives); Record 93, at 2 (view of District 21's incumbent Senator). I cannot imagine any basis for asserting that anyone else, such as the attorney general, has authority to reapportion (by exercising his "settling authority," ante, at 577, n. 4), when the State's last reapportionment has not been invalidated. While the Court is correct that the attorney general has broad discretion in representing Florida in litigation, see ibid., neither the two cases it cites nor any I could find comes even close to permitting the attorney general to agree with a private citizen to redistrict the State. The Court also asserts, without citation, that "counsel for each legislative chamber confirmed . . . the authority of the attorney general to propose the settlement plan on the State's behalf." Ante, at 577-578. I am unaware of any such confirmation, and the record actually suggests there was none. See Tr. 29-30 (July 6, 1995) (view of counsel for the Florida House of Representatives); Record 93, at 2 (view of District 21's incumbent Senator).
Moreover, under the Florida Constitution the prescribed body to reap-portion when the legislature has failed to do so is the Florida Supreme Court. The Florida Constitution itself states this explicitly with regard to the legislature's failure to act after the decennial census, Fla. Const., Art. III, § 16; and the Florida Supreme Court has held that it has authority to reapportion (absent legislative action) in the event of Justice Department refusal of preclearance, and hence by implication in the event of
585
Page: Index Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: October 4, 2007