Branch v. Smith, 538 U.S. 254, 23 (2003)

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276

BRANCH v. SMITH

Opinion of Scalia, J.

sentatives shall be diminished, then the whole number shall be chosen by the electors of the state at large." Miss. Code Ann. § 23-15-1039 (Lexis 2001).

There has been no interpretation of this provision by the Mississippi courts. We believe it was designed to track 2 U. S. C. §§ 2a(c)(2) and (5), and should be deemed operative when those provisions would be. That is to say, (1) the phrase "and before the districts shall have been changed to conform to the new apportionment" envisions both legislatively and judicially prescribed change, and (2) the statute does not come into play as long as it remains feasible for a state or federal court to complete redistricting. In these cases, the District Court properly completed the redistricting of Mississippi pursuant to 2 U. S. C. § 2c and thus neither Mississippi Code § 23-15-1039 nor 2 U. S. C. § 2a(c) was applicable.

IV

Justice O'Connor's opinion concurring in part and dissenting in part (hereinafter dissent) agrees that the District Court properly acted to remedy a constitutional violation, see post, at 300-301, but contends that it should have looked to § 2a(c) rather than § 2c in selecting an appropriate remedy. We think not. We have explained why it makes sense for § 2c to apply until there is no longer any reasonable prospect for redistricting according to state law—whereupon § 2a(c) applies. If, like the dissent, we were to forgo such analysis and simply ask, in the abstract, which of the two provisions has primacy, we would probably still select § 2c—the only one cast in absolute, rather than conditional, terms. The dissent gives not the hint of a reason why it believes § 2a(c) has primacy. It says that "[t]he text of § 2a(c) directs federal courts to order at-large elections '[u]ntil a State is redistricted in the manner provided by the law thereof.' " Post, at 301. But it is equally true that § 2c directs federal courts to redistrict absolutely and without qualification.

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