538 U.S. 254 (2003)

BRANCH ET AL.
v.
SMITH ET AL.

No. 01-1437.

Supreme Court of United States.

Argued December 10, 2002. Decided March 31, 2003.^[*] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.

*255 *256 *257 SCALIA, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, the opinion of the Court with respect to Part III-A, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts III-B and IV, in which REHNQUIST, C. J., and KENNEDY and GINSBURG, JJ., joined. KENNEDY, J., filed a concurring opinion, in Part II of which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 282. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER and BREYER, JJ., joined, post, p. 285. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p. 292.

Robert B. McDuff argued the cause for appellants in No. 01-1437 and cross-appellees in No. 01-1596. With him on the briefs was Pamela S. Karlan.

James A. Feldman argued the cause for the United States as amicus curiae supporting cross-appellees. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, Mark L. Gross, and Kevin Russell.

Michael B. Wallace argued the cause for appellees in No. 01-1437 and cross-appellants in No. 01-1596. With him *258 on the briefs were Arthur F. Jernigan, Jr., and Grant M. Fox.^[†]

JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, and an opinion with respect to Parts III-B and IV, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE GINSBURG join.

In these cases, we decide whether the District Court properly enjoined a Mississippi state court's proposed congressional redistricting plan and whether it properly fashioned its own congressional reapportionment plan rather than order at-large elections.

I

The 2000 census caused Mississippi to lose one congressional seat, reducing its representation in the House of Representatives from five Members to four. The state legislature, however, failed to pass a new redistricting plan after the decennial census results were published in 2001. In anticipation of the March 1, 2002, state-law deadline for the qualification of candidates, see Miss. Code Ann. § 23-15-299 (Lexis 2001), appellant and cross-appellee Beatrice Branch and others (state plaintiffs) filed suit in a Mississippi State Chancery Court in October 2001, asking the state court to issue a redistricting plan for the 2002 congressional elections. In November 2001, appellee and cross-appellant John Smith and others (federal plaintiffs) filed a similar action under Rev. Stat. § 1979, 42 U. S. C. § 1983, in the United States District Court for the Southern District of Mississippi, claiming that the current districting plan, Miss. Code Ann. § 23-15-1037 *259 (Lexis 2001), dividing the State into five, rather than four, congressional districts, was unconstitutional and unenforceable. The federal plaintiffs asked the District Court to enjoin the current redistricting plan, and subsequently asked it to enjoin any plan developed by a state court (which they asserted would violate Article I, § 4, of the Constitution, and, in any event, could not be enforced until the state court's assertion of redistricting authority was precleared under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c), and asked that it order at-large elections pursuant to Miss. Code Ann. § 23-15-1039 (2001) and 46 Stat. 26, 2 U. S. C. § 2a(c)(5), or, alternatively, devise its own redistricting plan.

A three-judge District Court was convened pursuant to 28 U. S. C. § 2284. Initially the District Court did not interfere with the State Chancery Court's efforts to develop a redistricting plan. In an order filed on December 5, 2001, Smith v. Clark, 189 F. Supp. 2d 502 (SD Miss.), the District Court permitted the state plaintiffs to intervene and deferred ruling on the federal plaintiffs' motion for a preliminary injunction. In staying its hand, the District Court recognized that "`the Constitution leaves with the States primary responsibility for apportionment of their federal congressional ... districts,'" id., at 503 (quoting Growe v. Emison, 507 U. S. 25, 34 (1993)), but concluded that "if it is not clear to this court by January 7, 2002 that the State authorities can have a redistricting plan in place by March 1, we will assert our jurisdiction ... and if necessary, we will draft and implement a plan for reapportioning the state congressional districts," 189 F. Supp. 2d, at 503; see also 189 F. Supp. 2d 503, 505-506 (SD Miss. 2002).

On the eve of the State Chancery Court trial, the Mississippi Supreme Court denied petitions for writs of prohibition and mandamus filed by a state defendant and others challenging the Chancery Court's jurisdiction to engage in congressional redistricting. It held that the Chancery Court *260 had jurisdiction to issue a redistricting plan. In re Mauldin, Civ. No. 2001-M-01891 (Dec. 13, 2001), App. to Juris. Statement 110a. Following trial, on December 21, 2001, the State Chancery Court adopted a redistricting plan submitted by the state plaintiffs. On December 26, the state attorney general submitted that plan, along with the Mississippi Supreme Court's Mauldin decision (which arguably changed the process for drawing congressional districts by authorizing the Chancery Court to create a redistricting plan), to the Department of Justice (DOJ) for preclearance. On February 14, 2002, DOJ sent a letter to the state attorney general requesting additional information about the Mauldin decision, because "the information sent to date regarding this change in voting procedure is insufficient...." App. to Juris. Statement 193a. The letter advised that the "sixty-day review period will begin when we receive the information specified." Id., at 196a. The state attorney general provided additional information on February 19 and 20, 2002.

Meanwhile, in January 2002, the District Court, expressing "serious doubts whether the Mississippi Supreme Court's Order and the plan adopted by the Chancery Court pursuant to that order will be precleared prior to the March 1 candidate qualification deadline," 189 F. Supp. 2d, at 508, had begun to develop its own redistricting plan, id., at 511. On February 4, 2002, it promulgated a redistricting plan to be used absent the timely preclearance of the Chancery Court plan. 189 F. Supp. 2d 512 (SD Miss.). On February 19, it ordered that, if the Chancery Court redistricting plan was not "precleared before the close of business on Monday, February 25, 2002," then the District Court's plan would fix the Mississippi congressional districts for the 2002 elections. 189 F. Supp. 2d 529, 548. February 25th came and went with no action by DOJ. On February 26, the District Court enjoined the State from using the Chancery Court plan and ordered use of the District Court's own plan in the 2002 elections and all succeeding elections until the State produced *261 a constitutional redistricting plan that was precleared. 189 F. Supp. 2d 548, 559. The court said that the basis for its injunction and order was "reflected in our opinion of February 19, that is, the failure of the timely preclearance under § 5 of the Voting Rights Act of the Hinds County Chancery Court's plan." Id., at 549. However, "in the event that on appeal it is determined that we erred in our February 19 ruling," the court put forth as its "alternative holding" that Article I, § 4, of the United States Constitution prohibited the State Chancery Court from issuing a redistricting plan without express authorization from the state legislature. Ibid.

The State did not file a notice of appeal. On April 1, 2002, DOJ informed the State in a letter that "it would be inappropriate for the Attorney General to make a determination concerning [the State's preclearance] submission now" because the District Court's injunction rendered the state-court plan incapable of administration. App. 29.

The state plaintiffs — intervenors in the District Court — filed a timely notice of appeal from the District Court and a jurisdictional statement. The federal plaintiffs filed a jurisdictional statement on conditional cross-appeal. We noted probable jurisdiction in both appeals and consolidated them. 536 U. S. 903 (2002).

II

At the outset we should observe two critical distinctions between these cases and the one that was before us in Growe v. Emison, 507 U. S. 25 (1993). In Growe, the Federal District Court had refused to abstain or defer to state-court redistricting proceedings. Id., at 30-31. In reversing, we reminded the federal courts of "`what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.'" Id., at 34 (quoting Chapman v. Meier, 420 U. S. 1, 27 (1975)). We held that "[a]bsent evidence that these state branches will fail timely to perform *262 that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it." 507 U. S., at 34 (emphasis added). In the present cases, unlike in Growe, there is no suggestion that the District Court failed to allow the state court adequate opportunity to develop a redistricting plan. The second distinction is that the state-court plan here, unlike that in Growe, was subject to § 5 of the Voting Rights Act, 42 U. S. C. § 1973c. The District Court rested its injunction of the state-court plan on the ground that necessary preclearance had not been obtained. It is that challenged premise that we examine first.

Section 5 of the Voting Rights Act provides that whenever a covered jurisdiction, such as Mississippi, see 30 Fed. Reg. 9897 (1965), "shall enact or seek to administer" a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure," the State must obtain preclearance from the District Court for the District of Columbia or the Attorney General before the change may be enforced. 42 U. S. C. § 1973c. The Act requires preclearance of all voting changes, ibid.; see Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 38-39 (1978), and there is no dispute that this includes voting changes mandated by order of a state court, see, e. g., In re McMillin, 642 So. 2d 1336, 1339 (Miss. 1994). Rather, the controversy pertains to the proviso in § 1973c to the effect that, where the preclearance submission is made to the Attorney General, the voting change may be enforced if "the Attorney General has not interposed an objection within sixty days after such submission...."

Appellants in No. 01-1437 (originally the state plaintiffs) assert that the District Court erred in believing that the Chancery Court's plan lacked preclearance. It was automatically rendered enforceable, they contend, by DOJ's failure to object within the 60-day period running from the state attorney general's initial submission on December 26, 2001 — or, in the alternative, it was subsequently rendered enforceable *263 by DOJ's failure to object within the 60-day period running from the state attorney general's submission of additional information on February 20, 2002. We consider each of these contentions in turn.

A

Under § 5, a jurisdiction seeking administrative preclearance must prove that the change is nondiscriminatory in purpose and effect. Reno v. Bossier Parish School Bd., 528 U. S. 320, 328 (2000). It bears the burden of providing the Attorney General information sufficient to make that proof, Georgia v. United States, 411 U. S. 526, 537-539 (1973), and failure to do so will cause the Attorney General to object, see ibid.; 28 CFR § 51.52(c) (2002). In DOJ's view, however, incomplete state submissions do not start the 60-day clock for review. See §§ 51.27, 51.37. The regulations implementing § 5 authorize a DOJ request for additional information from a jurisdiction that has initially "omitted information considered necessary for the evaluation of the submission." § 51.37(a). If the jurisdiction responds by supplying the additional information (or stating that it is unavailable), the 60-day clock begins to run from the date the response is received. § 51.37(c). We have upheld these regulations as being "wholly reasonable and consistent with the Act." Georgia v. United States, supra, at 541; accord, Morris v. Gressette, 432 U. S. 491, 504, n. 19 (1977).

DOJ's February 14 request for additional information was within the Attorney General's discretion under 28 CFR § 51.37, thereby postponing the 60-day time period for objections until the requested information was received. The request was neither frivolous nor unwarranted. See Georgia v. United States, supra, at 541, n. 13. DOJ believed that the Mississippi Supreme Court's Mauldin order, holding that the Chancery Court had jurisdiction to engage in redistricting, was a change in voting procedures, and it sought additional information demonstrating that this change would not have *264 the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, as required under § 5. The fact that the District Court identified the same issue as posing a hurdle to preclearance further suggests that DOJ's request was not frivolous. 189 F. Supp. 2d, at 508-509. The request for more information was not frivolous or unwarranted at the time it was made, regardless of whether it ultimately develops that Mauldin and the Chancery Court's assertion of jurisdiction to redistrict are not voting changes that required preclearance.

B

Appellants contend that even if the State Chancery Court's plan was not precleared by operation of law on February 25, 2002, it was precleared on April 22, 60 days after the state attorney general submitted the additional information requested. We think not.

Section 5 provides that "[w]henever a [covered jurisdiction] shall enact or seek to administer" a voting change, such a change may be enforced if it is submitted to the Attorney General and there is no objection by the Attorney General within 60 days. 42 U. S. C. § 1973c (emphasis added). Clearly the State Chancery Court's redistricting plan was not "enacted" by the State of Mississippi. An "enactment" is the product of legislation, not adjudication. See Webster's New International Dictionary 841 (2d ed. 1949) (defining "enact" as "[t]o make into an act or law; esp., to perform the legislative act with reference to (a bill) which gives it the validity of law"); Black's Law Dictionary 910 (7th ed. 1999) (defining "legislate" as "[t]o make or enact laws"). The web of state and federal litigation before us is the consequence of the Mississippi Legislature's failure to enact a plan. The Chancery Court's redistricting plan, then, could be eligible for preclearance only if the State was "seek[ing] to administer" it.

*265 There is no doubt that the State was "seek[ing] to administer" the changes for which preclearance was sought when the Mississippi attorney general made his initial submission to DOJ on December 26, 2001, and when he provided additional information regarding the state-court plan on February 20, 2002. On February 26, 2002, however, the District Court "enjoined [the State] from implementing the congressional redistricting plan adopted by the [state court]," 189 F. Supp. 2d, at 559, and the State never appealed that injunction. Uncontrovertibly, the State was no longer "seek[ing] to administer" the state-court plan, and thus the 60-day time period for DOJ review was no longer running. The passing of 60 days from the date of the State's February 20, 2002, submission of the additional requested information had no legal significance, and the state-court plan was not rendered enforceable by operation of law.

Appellants' argument — that their appeal, as intervenors, is sufficient to demonstrate that the State still "seek[s] to administer" the state-court plan — is invalid on its face. The actions of a private party are not the actions of a State and cannot satisfy the prerequisite to § 5 preclearance.

C

Since we affirm the injunction on the basis of the District Court's principal stated ground that the state-court plan had not been precleared and had no prospect of being precleared in time for the 2002 election, we have no occasion to address the District Court's alternative holding that the State Chancery Court's redistricting plan was unconstitutional — a holding that the District Court specified was set forth to cover the eventuality of the principal stated ground's being rejected on appeal — and therefore we vacate it as a basis for the injunction. The District Court's alternative holding is not to be regarded as supporting the injunction we have affirmed on the principal ground, or as binding upon state and *266 federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court.

III

Having determined that the District Court properly enjoined enforcement of the state-court redistricting plan, we turn to the propriety of the redistricting plan that the District Court itself adopted. Cross-appellees in No. 01-1596 (originally the state plaintiffs) and the United States, as amicus curiae, argue that the District Court was required to draw (as it did) single-member congressional districts; cross-appellants in No. 01-1596 (originally the federal plaintiffs) contend that it was required to order at-large elections for the congressional seats. We must decide whether, as cross-appellees contend, the District Court was governed by the provisions of 2 U. S. C. § 2c; or, as cross-appellants contend, by the provisions of 2 U. S. C. § 2a(c)(5).

A

Article I, § 4, cl. 1, of the Constitution provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...." It reserves to Congress, however, the power "at any time by Law [to] make or alter such Regulations, except as to the Places of chusing Senators." Ibid. Pursuant to this authority, Congress in 1929 enacted the current statutory scheme governing apportionment of the House of Representatives. 2 U. S. C. §§ 2a(a), (b). In 1941, Congress added to those provisions a subsection addressing what is to be done pending redistricting:

"Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then *267 prescribed by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large." § 2a(c).

In 1967, 26 years after § 2a(c) was enacted, Congress adopted § 2c, which provides, as relevant here:

"In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative...."

The tension between these two provisions is apparent: Section 2c requires States entitled to more than one Representative *268 to elect their Representatives from single-member districts, rather than from multimember districts or the State at large. Section 2a(c), however, requires multimember districts or at-large elections in certain situations; and with particular relevance to the present cases, in which Mississippi, by reason of the 2000 census, lost a congressional seat, § 2a(c)(5) requires at-large elections. Cross-appellants would reconcile the two provisions by interpreting the introductory phrase of § 2a(c) ("Until a State is redistricted in the manner provided by the law thereof after any apportionment") and the phrase "established by law" in § 2c to refer exclusively to legislative redistricting — so that § 2c tells the legislatures what to do (single-member districting) and § 2a(c) provides what will happen absent legislative action — in the present cases, the mandating of at-large elections.

The problem with this reconciliation of the provisions is that the limited role it assigns to § 2c (governing legislative apportionment but not judicial apportionment) is contradicted both by the historical context of § 2c's enactment and by the consistent understanding of all courts in the almost 40 years since that enactment. When Congress adopted § 2c in 1967, the immediate issue was precisely the involvement of the courts in fashioning electoral plans. The Voting Rights Act of 1965 had recently been enacted, assigning to the federal courts jurisdiction to involve themselves in elections. See 79 Stat. 439 (as amended and codified at 42 U. S. C. § 1973 et seq.). Even more significant, our decisions in Baker v. Carr, 369 U. S. 186 (1962), Wesberry v. Sanders, 376 U. S. 1 (1964), and Reynolds v. Sims, 377 U. S. 533 (1964), had ushered in a new era in which federal courts were overseeing efforts by badly malapportioned States to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards. In a world in which the role of federal courts in redistricting disputes had been transformed from spectating, see Colegrove v. Green, 328 U. S. 549 (1946) (opinion of Frankfurter, J.), to directing, *269 the risk arose that judges forced to fashion remedies would simply order at-large elections.

At the time Congress enacted § 2c, at least six District Courts, two of them specifically invoking 2 U. S. C. § 2a(c)(5), had suggested that if the state legislature was unable to redistrict to correct malapportioned congressional districts, they would order the State's entire congressional delegation to be elected at large. On March 26, 1964, a three-judge District Court ordered that, pending enactment of a constitutional redistricting plan by the Michigan Legislature, all Michigan Representatives would be elected at large. Calkins v. Hare, 228 F. Supp. 824, 830 (ED Mich. 1964). On October 19, 1964, a three-judge District Court entered a similar order for the State of Texas. See Bush v. Martin, 251 F. Supp. 484, 489, and n. 11, 490, and n. 17 (SD Tex. 1966). On February 3, 1965, a three-judge District Court in Arkansas, whose House delegation had decreased from six to four Members after the 1960 census, stated that under § 2a(c)(5), "if the Legislature ... had taken no action [after the 1960 apportionment] the congressmen would have been required to run at large," and that the same reasoning would compel the court to require at-large elections if the legislature adopted malapportioned congressional districts. Park v. Faubus, 238 F. Supp. 62, 66 (ED Ark. 1965). On August 5, 1966, a three-judge District Court in Missouri, whose House delegation had decreased from 11 to 10 Members after the 1960 census, informed the State that if it was unable to redistrict in accordance with the Constitution, then pursuant to the "command of Section 2(a)(c) [sic]," "the congressional elections for Missouri will be ordered conducted at large until new and constitutional districts are created." Preisler v. Secretary of State of Missouri, 257 F. Supp. 953, 981, 982 (WD Mo. 1966), aff'd, 385 U. S. 450 (1967) (per curiam). In Meeks v. Anderson, 229 F. Supp. 271, 273-274 (Kan. 1964), and Baker v. Clement, 247 F. Supp. 886, 897-898 (MD Tenn. 1965), three-judge District Courts stayed their hands but *270 held forth the possibility of requiring at-large elections. With all this threat of judicially imposed at-large elections, and (as far as we are aware) no threat of a legislatively imposed change to at-large elections, it is most unlikely that § 2c was directed solely at legislative reapportionment.

Nor have the courts ever thought so. To the contrary, every court that has addressed the issue has held that § 2c requires courts, when they are remedying a failure to redistrict constitutionally, to draw single-member districts whenever possible. The first court to examine § 2c, just two weeks after the statute was enacted, was the three-judge District Court in Missouri that had previously threatened to order at-large elections in accordance with § 2a(c)(5). In its decision on December 29, 1967, that court observed that the enactment of § 2c had "relieved [it] of the prior existing Congressional command to order that the 1968 and succeeding congressional elections in Missouri be held at large," Preisler v. Secretary of State of Missouri, 279 F. Supp. 952, 969 (WD Mo. 1967), aff'd, 394 U. S. 526 (1969), and accordingly reversed its prior position and stated that it would fashion a districting plan if the State failed to fulfill its duty. Four years later, the Supreme Court of Virginia denied a writ of mandamus directing at-large elections to replace an allegedly unconstitutional Redistricting Act, on the ground that by reason of § 2c "we cannot legally issue the writ." Simpson v. Mahan, 212 Va. 416, 417, 185 S. E. 2d 47, 48 (1971). The next year the Supreme Court of California reached the same conclusion that § 2c required it to establish single-member districts, see Legislature v. Reinecke, 6 Cal. 3d 595, 602-603, 492 P. 2d 385, 390 (1972), a conclusion that it reaffirmed in 1982, see Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d 638, 664, 639 P. 2d 939, 955 (1982). In Shayer v. Kirkpatrick, 541 F. Supp. 922, 926 (WD Mo.), aff'd sub nom. Schatzle v. Kirkpatrick, 456 U. S. 966 (1982), the District Court concluded that "nothing in section 2c suggests any limitation on its applicability," and declined to order at-large elections *271 pursuant to § 2a(c)(5) because § 2c "appears to prohibit at-large elections." And in Carstens v. Lamm, 543 F. Supp. 68 (Colo. 1982), the District Court reached a substantially identical result, although contemplating that § 2a(c) provided a "stop-gap measure" in the "event that no constitutional redistricting plan exists on the eve of a congressional election, and there is not enough time for either the Legislature or the courts to develop an acceptable plan," id., at 77, and n. 23.

It bears noting that this Court affirmed two of the District Court decisions described above, see Preisler, supra, and Shayer, supra, one without discussing § 2c, and one summarily. And in 1971 we observed in dictum that "[i]n 1967, Congress reinstated the single-member district requirement" that had existed before the enactment of § 2a(c). Whitcomb v. Chavis, 403 U. S. 124, 159, n. 39 (1971).

Of course the implausibility (given the circumstances of its enactment) that § 2c was meant to apply only to legislative reapportionment, and the unbroken unanimity of state and federal courts in opposition to that interpretation, would be of no consequence if the text of § 2c (and of § 2a(c)) unmistakably demanded that interpretation. But it does not. Indeed, it is more readily susceptible of the opposite interpretation.

The clause "there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled" could, to be sure, be so interpreted that the phrase "by law" refers only to legislative action. Its more common meaning, however, encompasses judicial decisions as well. See, e. g., Hope v. Pelzer, 536 U. S. 730, 741 (2002) (referring to judicial decisions as "established law" in qualified immunity context); Swidler & Berlin v. United States, 524 U. S. 399, 407 (1998) (referring to judicial decisions as "established law" in the attorney-client privilege context); United States v. Frady, 456 U. S. 152, 166 (1982) (referring to the judicially established standard of review for a 28 U. S. C. § 2255 motion as "long-established law"); see *272 also § 2254(d)(1) ("clearly established Federal law, as determined by the Supreme Court of the United States"); Marbury v. Madison, 1 Cranch 137, 177 (1803) (it is "the province and duty of the judicial department to say what the law is").

We think, therefore, that while § 2c assuredly envisions legislative action, it also embraces action by state and federal courts when the prescribed legislative action has not been forthcoming. We might note that giving "by law" its less common meaning would cause the immediately following clause of § 2c ("and Representatives shall be elected only from districts so established" (emphasis added)) to exclude all courts from redistricting, including even state courts acting pursuant to state legislative authorization in the event of legislative default. It is hard to see what plausible congressional purpose this would serve. When, as here, the situation (a decrease in the number of Representatives, all of whom were formerly elected from single-member districts) enables courts to prescribe at-large elections under paragraph (5) of § 2a(c) (assuming that section subsists, see infra, at 273), it can be said that there is a constitutional fallback. But what would occur if the situation called for application of paragraphs (1) to (4) of § 2a(c), none of which is constitutionally enforceable when (as is usual) the decennial census has shown a proscribed degree of disparity in the voting population of the established districts? The absolute prohibition of § 2c ("Representatives shall be elected only from [single-member] districts [legislatively] established") would be subject to no exception, and courts would (despite Baker v. Carr) be congressionally forbidden to act when the state legislature has not redistricted. Only when it is utterly unavoidable should we interpret a statute to require an unconstitutional result — and that is far from the situation here.

In sum, § 2c is as readily enforced by courts as it is by state legislatures, and is just as binding on courts — federal or state — as it is on legislatures.

*273 B

Having determined that in enacting 2 U. S. C. § 2c, Congress mandated that States are to provide for the election of their Representatives from single-member districts, and that this mandate applies equally to courts remedying a state legislature's failure to redistrict constitutionally, we confront the remaining question: what to make of § 2a(c)? As observed earlier, the texts of § 2c and § 2a(c)(5) are in tension. Representatives cannot be "elected only from districts," § 2c, while being elected "at large," § 2a(c). Some of the courts confronted with this conflict have concluded that § 2c repeals § 2a(c) by implication. See Shayer v. Kirkpatrick, 541 F. Supp., at 927; Assembly of State of Cal. v. Deukmejian, 30 Cal. 3d, at 663-664, 639 P. 2d, at 954. There is something to be said for that position — especially since paragraphs (1) through (4) of § 2a(c) have become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional. (The unlikely exception is the situation in which the decennial census makes no districting change constitutionally necessary.) Eighty percent of the section being a dead letter, why would Congress adhere to the flotsam of paragraph (5)?

We have repeatedly stated, however, that absent "a clearly expressed congressional intention," Morton v. Mancari, 417 U. S. 535, 551 (1974), "repeals by implication are not favored," Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U. S. 186, 193 (1968). An implied repeal will only be found where provisions in two statutes are in "irreconcilable conflict," or where the latter Act covers the whole subject of the earlier one and "is clearly intended as a substitute." Posadas v. National City Bank, 296 U. S. 497, 503 (1936). So while there is a strong argument that § 2c was a substitute for § 2a(c), we think the better answer is that § 2a(c) — where what it prescribes is constitutional (as it is with regard to paragraph (5)) — continues to apply.

*274 Section 2a(c) is, of course, only provisionally applicable. It governs the manner of election for Representatives in any election held "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment." That language clashes with § 2c only if it is interpreted to forbid judicial redistricting unless the state legislature has first acted. On that interpretation, whereas § 2c categorically instructs courts to redistrict, § 2a(c)(5) forbids them to do anything but order at-large elections unless the state legislature has acted. But there is of course no need for such an interpretation. "Until a State is redistricted" can certainly refer to redistricting by courts as well as by legislatures. Indeed, that interpretation would seem the preferable one even if it were not a necessary means of reconciling the two sections. Under prior versions of § 2a(c), its default or stopgap provisions were to be invoked for a State "until the legislature of such State . . . [had] redistrict[ed] such State." Act of Jan. 16, 1901, ch. 93, § 4, 31 Stat. 734 (emphasis added); see Act of Feb. 7, 1891, ch. 116, § 4, 26 Stat. 736 ("until such State be redistricted as herein prescribed by the legislature of said State" (emphasis added)); Act of Feb. 25, 1882, ch. 20, § 3, 22 Stat. 6 ("shall be elected at large, unless the Legislatures of said States have provided or shall otherwise provide" (emphasis added)). These provisions are in stark contrast to the text of the current § 2a(c): "[u]ntil a State is redistricted in the manner provided by the law thereof."

If the more expansive (and more natural) interpretation of § 2a(c) is adopted, its condition can be met — and its demand for at-large elections suspended — by the very court that follows the command of § 2c. For when a court, state or federal, redistricts pursuant to § 2c, it necessarily does so "in the manner provided by [state] law." It must follow the "policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature," except, of course, *275 when "adherence to state policy ... detract[s] from the requirements of the Federal Constitution." White v. Weiser, 412 U. S. 783, 795 (1973). Federal constitutional prescriptions, and federal statutory commands such as that of § 2c, are appropriately regarded, for purposes of § 2a(c), as a part of the state election law.

Thus, § 2a(c) is inapplicable unless the state legislature, and state and federal courts, have all failed to redistrict pursuant to § 2c. How long is a court to await that redistricting before determining that § 2a(c) governs a forthcoming election? Until, we think, the election is so imminent that no entity competent to complete redistricting pursuant to state law (including the mandate of § 2c) is able to do so without disrupting the election process. Only then may § 2a(c)'s stopgap provisions be invoked. Thus, § 2a(c) cannot be properly applied — neither by a legislature nor a court — as long as it is feasible for federal courts to effect the redistricting mandated by § 2c. So interpreted, § 2a(c) continues to function as it always has, as a last-resort remedy to be applied when, on the eve of a congressional election, no constitutional redistricting plan exists and there is no time for either the State's legislature or the courts to develop one. Cf. Carstens v. Lamm, 543 F. Supp., at 77-78.

There remains to be considered Mississippi's at-large election provision, which reads as follows: