Branch v. Smith, 538 U.S. 254, 26 (2003)

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Cite as: 538 U. S. 254 (2003)

Opinion of Scalia, J.

"the text tells us 'how long' § 2a(c) should govern: 'until a State is redistricted in the manner provided by the law thereof,' " post, at 299. The issue is not how long § 2a(c) governs, but how long a court (under the continuing mandate of § 2a(c)) should wait before ordering an at-large election. The dissent treats § 2a(c) as though it prescribes (in its application to the facts of the present case) the immediate establishment of statewide districts (i. e., an at-large election) for all Representatives. It prescribes no such thing. All it says is that "[u]ntil [the] State is redistricted in the manner provided by the law thereof," Representatives "shall be elected from the State at large." The only point at which § 2a(c) issues a command—the only point at which it bites— is at election time. Only if, at election time, redistricting "in the manner provided by [state] law" has not occurred, does § 2a(c) become operative.

So despite the dissent's ardent protestations to the contrary, see ibid., the dissent, no less than we, must confront the question "[h]ow long is a court to await that redistricting before determining that § 2a(c) governs a forthcoming election?" Surely the dissent cannot possibly believe that, since "the text tells us 'how long' § 2a(c) should govern," ibid., a court can declare, immediately after congressional reapportionment, and before the state legislature has even had a chance to act, that the State's next elections for Representatives will be at large. We say that the state legislature (and the state and federal courts) should be given the full time available—right up until the time when further delay will disrupt the election process—to reapportion according to state law. Since the dissent disagrees with that, we wonder what its own timeline might be. But to claim that there is no timeline—simply to assert that "[§ ]2a(c) contains no imminence requirement," ibid.—is absurd.

The dissent suggests that our reading of § 2c runs afoul of the Court's anticommandeering jurisprudence, see post, at 301-302, but in doing so the dissent fails to recognize that

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