Branch v. Smith, 538 U.S. 254, 49 (2003)

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302

BRANCH v. SMITH

Opinion of O'Connor, J.

holding congressional elections. But of course, Article I, § 8, uses similar language when it authorizes Congress to "regu-late Commerce . . . among the several States." Whether the anticommandeering principle of New York and Printz is as robust in the Article I, § 4, context (the font of congressional authority here) as it is in the Article I, § 8, context (the source of congressional authority in those cases) is a question that need not be definitively resolved here. In any event, the canon of constitutional avoidance counsels strongly against the reading of §§ 2c and 2a(c) adopted in Parts III and IV of the principal opinion. The Court's reading of § 2c, see ante, at 271-272—also adopted by Justice Stevens— invites a future facial attack to the constitutional validity of § 2c.2

The history of the prior versions of § 2c shows that § 2c has never been treated as an absolute command. States routinely used at-large elections under the previous iterations of § 2c, even though those versions of § 2c also stated that Representatives "shall be elected by districts." Act of June 25, 1842, ch. 47, § 2, 5 Stat. 491; Act of July 14, 1862, ch. 170, 12 Stat. 572; Act of Feb. 2, 1872, 17 Stat. 28; cf. supra, at 293-294 (documenting the 1882, 1891, 1901, and 1911 versions of § 2c). See also K. Martis, Historical Atlas of United

2 It is just as coercive for Congress to say that if the State does not comply with a legislative command, a federal court will enter an injunction making the State conform with Congress' command. See, e. g., New York v. United States, 505 U. S. 144, 174-177 (1992) (striking down Congress' "take title" provision because the choice between two unconstitutional choices is "no choice at all"). If § 2c is not a command, however, a State has the choice between passing redistricting legislation or using at-large elections. Section 2c merely limits the type of remedies that a federal court may adopt in response to a pre-existing violation of federal law. Neither it nor § 2a(c) affirmatively provides courts the authority to draw districts absent a violation. Rather, § 2a(c) specifies which remedy is appropriate for the constitutional violation. See 2 U. S. C. § 2a(c) (a court must order at-large elections "[u]ntil a State is redistricted in the manner provided by the law thereof").

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