Branch v. Smith, 538 U.S. 254, 52 (2003)

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

Opinion of O'Connor, J.

§ 2c impliedly repeals § 2a(c). Why else would the plurality note the "tension" between the two statutes, ante, at 273, note that "[t]here is something to be said for [the implied repeal] position," ibid., and engage in such a long exegesis about the historical context surrounding the enactment of § 2c? See ante, at 268-271 (majority opinion). The plurality adopts the reading of § 2a(c) proposed by one District Court in a 1982 decision. See Carstens v. Lamm, 543 F. Supp. 68 (Colo. 1982). As the United States recognizes in its brief, the reasoning of Carstens is nothing less than a partial implied repeal of § 2a(c). See Brief for United States as Amicus Curiae 29. ("Section 2c's unequivocal mandate that Members of the House of Representatives should be elected from single-member districts (except where exigencies of time render that impracticable, see Carston [sic] v. Lamm, supra) resolves that problem. It creates a workable and sensible regime that faithfully fulfills Congress's purpose when it enacted Section 2c in 1967"); see also id., at 10 ("While . . . repeal by implication is disfavored, so is failure to give a later-enacted statute the full scope that its terms require").

Moreover, neither the plurality nor Justice Stevens can rely on the historical context of the pre-1967 cases to support their interpretations of §§ 2a(c) and 2c. This history in fact cuts against them. It is true that before 1967, some district courts threatened to impose at-large elections if the state redistricting plan were ruled unconstitutional. See ante, at 269-270 (majority opinion) (citing cases). In all these cases, however, a legislature had already redistricted "in the manner provided by the law thereof." 2 U. S. C. § 2a(c).4

4 See, e. g., Calkins v. Hare, 228 F. Supp. 824, 825 (ED Mich. 1964) ("The plaintiffs have challenged the constitutionality of the congressional districting in this state"); Bush v. Martin, 251 F. Supp. 484, 488 (SD Tex. 1966) ("The question is whether the Texas 1965 Congressional Redistricting Act . . . is constitutional"); Park v. Faubus, 238 F. Supp. 62, 63 (ED

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