In Re United States of America, Petitioner No. 83-2103 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of mandamus directing the three-judge court named herein to decide the preliminary injunction motion pending before it, filed by the government in July 1982, challenging the reapportionment of the lower house of the New Mexico legislature. Petition for a Writ of Mandamus to the United States District Court for the District of New Mexico and the Honorable Oliver Seth, Chief Judge, United States Court of Appeals for the Tenth Circuit, the Honorable Juan G. Burciaga, Judge, United States District Court for the District of New Mexico, and the Honorable Edwin L. Mechem, Judge, United States District Court for the District of New Mexico PARTIES TO THE PROCEEDING The following are plaintiffs before the district court: Frank I. Sanchez, Antonio Carrasco, Marcelino Polano, Edward Martinez, Yolanda Hermosillo, Patricia Manus, Robert Yazzie, Lorenzo Garcia, Lorenzo R. Sanchez, Merle Garcia, Jose F. Romero, Frank A. Jojola, Joe Madalena, Harry Early, Joseph Ansera, George Montoya, Clyde Leon, Mercel Bird, Benny Salas, Gilbert Pena, Gerald Nailor, Thelma Talachy, Joseph Calabaza, Lupe Duran, Donald Cata, Paul Tafoya, and Tony Reyna, individually and on behalf of others similarly situated. The United States intervened as a plaintiff before the district court. The following are defendants before the district court: Toney Anaya, Governor of New Mexico, Raymond Sanchez, Speaker of the House of Representatives of New Mexico, and Clara P. Jones, Secretary of State of New Mexico. The judges of the three-judge court are the Honorable Oliver Seth, Chief Judge, United States Court of Appeals for the Tenth Circuit, the Honorable Juan G. Burciaga, Judge, United States District Court for the District of New Mexico, and the Honorable Edwin L. Mechem, Judge, United States District Court for the District of New Mexico. TABLE OF CONTENTS Opinion below Jurisdiction Statutory provisions involved Statement Reasons for granting the writ Conclusion Appendix OPINION BELOW The district court has not issued an opinion. JURISDICTION This Court's jurisdiction is invoked pursuant to 28 U.S.C. 1651(a). STATUTORY PROVISIONS INVOLVED 28 U.S.C. 1651(a) provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C. 2284 provides in relevant part: (a) A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body. (b) In any action required to be heard and determined by a district court of three judges under subsection (a) of this section, the composition and procedure of the court shall be as follows: (1) Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of uhom shall be a circuit judge. The judges so designated, and the judge to whom the request was presented, shall serve as members of the court to hear and determine the action or proceeding. (2) If the action is against a State, or officer or agency thereof, at least five days' notice of hearing of the action shall be given by registered or certified mail to the Governor and attorney general of the State. The hearing shall be given precedence and held at the earliest practicable day. QUESTION PRESENTED Whether the district court has failed to perform its clear duty by not ruling on the government's motion, filed in July 1982, for a preliminary injunction to enjoin use of a reapportionment plan for the lower house of the New Mexico legislature on the ground that it violates the Voting Rights Act of 1965, as amended, and the Constitution. STATEMENT This action consists of five consolidated lawsuits that were filed by private parties between January and March 1982, challenging the reapportionment of seats in the New Mexico legislature following the 1980 census. The United States intervened in March 1982, alleging violations of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973. In April 1982, a three-judge court, convened pursuant to 28 U.S.C. 2284, held that the reapportionment resulted in constitutionally impermissible population variations between electoral districts. Sanchez v. King, 550 F. Supp. 13 (D.N.M.), aff'd mem., 459 U.S. 801 (1982). /1/ In July 1982, after the New Mexico legislature had enacted a new reapportionment scheme, the United States and private plaintiffs again sought preliminary injunctive relief to prevent implementation of the reapportionment on the ground that the new system discriminated against Indians and Hispanics in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act (App., infra, 1a-24a). The same three-judge court that had enjoined use of the prior apportionment heard evidence regarding the motions for a preliminary injunction on August 4-6, 12 and 13, 1982. At this hearing, the United States and private plaintiffs introduced evidence /2/ to establish that Indians in New Mexico have suffered a long history of discrimination; that they suffer high rates of illiteracy and often do not speak or understand English; that racial bloc voting persists in New Mexico; and that the legislature's redistricting scheme, by fragmenting Indian and Hispanic communities, will substantially deprive Indians and Hispanics of their right to equal access to participation in the State's political process. The State offered evidence to rebut each of these contentions and argued that the United States and private plaintiffs were attempting, contrary to the Constitution and the Voting Rights Act, to obligate it to maximize minority voting strength. The United States submitted proposed findings of fact to the court on August 27, 1982, and proposed conclusions of law on September 27, 1982. The defendants did not respond to these filings. The motions had sought to enjoin use of the reapportionment in a primary on August 30, 1982 and the general election in November 1982. The court, however, took the motions under advisement and has yet to issue a ruling. The 1982 primary and general election took place as scheduled. In September and October 1983, the private plaintiffs and the United States, concerned that the existing plan not be used for the 1984 elections, sent letters to the court advising it that the candidate filing period for the 1984 house primary election would open on April 3, 1984, and that the primary election was scheduled for June 5, 1984 (App., infra, 25a-26a, 27a-29a). On March 1, 1984, counsel for the United States, the private plaintiffs and the defendants sent the court a letter requesting an in camera conference in order to discuss resolution of the case (App., infra, 30a-31a). Counsel noted that "(w) ithout a decision in this case, the 1984 electoral process will proceed under a cloud of continuing claims of unconstitutionality" (ibid.). After the court failed to issue a ruling or otherwise take action in response to the letters, /3/ the United States, on March 19, 1984, filed a second motion for a preliminary injunction to block steps toward conducting the upcoming primary and general election under the challenged scheme (App., infra, 33a-35a). On May 9, 1984, the United States and private plaintiffs filed a request for oral argument on the second preliminary injunction motion (App., infra, 36a-38a). The court neither granted the request nor ruled on the motion. Finally, on June 1, 1984, the United States sought a temporary restraining order to prevent use of the 1982 house apportionment in the primary on June 5, 1984 (App., infra, 39a-45a). On June 1, 1984, the court denied the motion without opinion. The primary was held as scheduled under the challenged plan. REASONS FOR GRANTING THE WRIT This district court has now had the government's motion for a preliminary injunction under submission for 22 months. The 1982 election was held without action by the court and the 1984 election process is well underway. Unless the district court issues a decision within weeks, New Mexico may conduct another election under a system that the United States has challenged as violating the Voting Rights Act and the Fourteenth and Fifteenth Amendments. Prompt action, however, will yet provide sufficient time for all steps to be taken to allow the State to conduct the November election under a system that satisfies the Voting Rights Act and the Constitution. The district court's failure to decide the motion constitutes a clear failure to perform its duty, one that entitles the United States to the issuance of a writ of mandamus ordering the court to act. The United States has exhausted every means to extract a decision from the district court and has no further avenue for relief other than a petition for a writ of mandamus in this Court. A writ of mandamus is justified because it "will be in aid of the Court's appellate jurisdiction, * * * there are present exceptional circumstances warranting the exercise of the Court's discretionary powers, and * * * adequate relief cannot be had in any other form or from any other court" (Sup. Ct. R. 26). See, e.g., Kerr v. United States District Court, 426 U.S. 394, 403 (1976); Will v. United States, 389 U.S. 90, 96 (1967); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953). 1. The writ would clearly be in aid of this Court's appellate jurisdiction. The complaints in this case challenge, inter alia, the constitutionality of a statewide reapportionment plan. A three-judge court was properly convened under 28 U.S.C. 2284 and appeal from a decision on the merits of the government's constitutional claims will lie to this Court under 28 U.S.C. 1253. See Williams v. Simons, 355 U.S. 49 55-57 (1957) (mem. of Frankfurter, J.); Ex parte Republic of Peru, 318 U.S. 578 (1943); In re Massachusetts, 197 U.S. 482 (1905). Although it is to be invoked sparingly, mandamus is an appropriate means of compelling a court to act. See, e.g., Will v. United States, 389 U.S. at 95; Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). This Court long ago stated in Insurance Co. v. Comstock, 83 U.S. (16 Wall.) 258, 270 (1873) (footnote omitted): Repeated decisions of this Court have established the rule * * * that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause. See also Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661-662 (plurality opinion); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 352 (1976); McClellan v. Carland, 217 U.S. 268, 280 (1910). Recently, in Connor v. Coleman, 440 U.S. 612 (1979) (per curiam), this Court granted a motion for leave to file a petition for a writ of mandamus to compel a three-judge district court to adopt a plan for reapportioning the Mississippi legislature. The district court had stayed its proceedings to await a decision by the United States District Court for the District of Columbia in the State's action for a declaratory judgment pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. This Court concluded on March 26, 1979 that the district court's stated intention to file a plan by May 7, 1979, if the Section 5 litigation were not completed before then, would not leave sufficient time for review of the plan before the June 7 deadline for of the mandamus petition for 30 days, but ordered the district court to adopt a plan forthwith. A writ of mandamus accordingly may be employed to compel a three-judge court to decide a motion for a preliminary injunction in an apportionment case. 2. The United States has a clear and indisputable right to a prompt decision on its motion for a preliminary injunction, which warrants an exercise of this Court's discretionary power to issue the writ. Section 12(d) of the Voting Rights Act of 1965, 42 U.S.C. 1973j(d), authorizes the Attorney General to seek a temporary or permanent injunction to prevent a violation of Section 2 of the Act, 42 U.S.C. 1973. In an action such as this, challenging the constitutionality of the apportionment of a statewide legislative body, a three-judge court must be convened, pursuant to 28 U.S.C. 2284. Under Section 2284(b)(2), the hearing of an apportionment action "shall be given precedence and held at the earliest practicable day." The district court has violated the intent of this Section by its refusal to decide the preliminary injunction motion. Implicit in a grant of authority to seek or issue preliminary relief, moreover, is the requirement that "the grant or denial of the motion for preliminary injunction, should, * * * in every case, be promptly determined." Davis v. Board of School Commissioners, 318 F.2d 63, 64 (5th Cir.), cert. denied, 375 U.S. 894 (1963). Delay in acting on a proper request for relief that renders the relief ineffective amounts to the sort of "judicial 'usurpation of power,'" Will v. United States, 389 U.S. at 95, that warrants issuance of a writ of mandamus. See Connor v. Coleman, supra; Hall v. West, 335 F.2d 481 (5th Cir. 1964). Here, by failing to act on the government's motion for preliminary relief before the 1982 election and again before the start of the 1984 election cycle, the district court has failed to fulfill its clear duty to rule promptly on a request for injunctive relief. Its failure may have denied Indians and Hispanics their rights to participate fully in the 1982 election and, unless a decision is immediately forthcoming, it may do so again in 1984. We are aware that delay in adjudicating a claim may be the product of a full district court docket, and we freely concede that control of that docket should generally remain a matter of district court discretion. See Will v. Calvert Fire Insurance Co., 437 U.S. at 665. However, a delay of 22 months in considering a motion for a preliminary injunction exceeds the proper scope of that discretion, particularly when the court is aware that a timely decision is crucial to protect the voting rights of minorities in impending elections and where Congress has determined that actions such as this be promptly heard. Mandamus is an appropriate remedy for such a clear abuse of discretion. Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964). We emphasize that the district court has yet to rule on liability. Thus, the United States is not asking this Court or the district court to preempt a legislative solution to the inadequacies of the existing reapportionment. Rather, we are simply asking that this court direct the district court to perform its clear duty to decide whether the reapportionment violates the Voting Rights Act or constitutional standards. In view of the coming election and the important rights at stake, a prompt decision from the district court is necessary. /4/ 3. The United States has exhausted every avenue to urge the district court to act. The district court has allowed some 22 months and one full election cycle to pass without deciding the motion for a preliminary injunction. The government joined the private plaintiffs in notifying the court by letter in September 1983 and March 1984 that a new election cycle would begin in April 1984 (App., infra, 25a-26a, 30a-31a). When the court still had not acted in March 1984, the United States filed a second motion for a preliminary injunction (App., infra, 33a-35a). On June 1, 1984, the United States filed a motion for a temporary restraining order to prevent use of the challenged apportionment in the primary that was held on June 5, 1984 (App., infra, 39a-45a). The temporary restraining order was denied without opinion, and the court still has not acted on the preliminary injunction motion. Unless the three-judge court acts with dispatch, it will be impossible to fashion and implement relief in time to hold a second primary in those districts that may need to be redrawn and to conduct the general election in November 1984. /5/ This Court has recognized that mandamus is appropriate to compel a court to act in the face of a rapidly approaching election. Connor v. Coleman, 440 U.S. 612 (1979). Moreover, in the absence of a grant or denial of an injunction, the United States cannot file an appeal in this Court, nor is an appeal to the court of appeals possible. See 28 U.S.C. 1253, 1291; Gunn v. University Committee, 399 U.S. 383 (1970). In short, all avenues for obtaining from the district court a resolution of the government's constitutional and statutory claims are closed, with the exception of a petition for a writ of mandamus in this Court. CONCLUSION The petition for a writ of mandamus directing the district court to decide the government's July 1982 motion for a preliminary injunction should be granted. Respectfully submitted. REX E. LEE Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General JESSICA DUNSAY SILVER WILLIAM R. YEOMANS Attorneys June 84 /1/ The reapportionment relied on the total votes cast in each precinct as part of the formula to determine population. This system significantly undercounted population in heavily Indian and Hispanic areas where voter turnout is low. As a result, the maximum deviation of actual population from the population ideal was 94% for House districts. Sanchez v. King, supra. /2/ To avoid duplication, counsel for the United States and private plaintiffs agreed that the United States would focus on the northwest section of the State and private plaintiffs would concentrate on the remainder. /3/ In response to the letter of March 1, 1984, Judge Burciaga said he would have no objection to a meeting in camera between counsel and all three judges of the court (App., infra, 32a). The court, however, took no further action to arrange such a meeting. /4/ One of the principal underpinnings of this Court's limited issuance of writs of mandamus is its reluctance to engage in piecemeal review. Will v. United States, 389 U.S. at 96; Parr v. United States, 351 U.S. 513, 520-521 (1956). In this case, however, the United States seeks only an order that the district court decide a matter that is before it. We are not asking this Court to review any ruling or action of the district court that could be preserved for review after a decision on the merits. Indeed, we ask only that this Court order the district court to proceed to render such a decision. /5/ Prompt action by this Court on the petition will allow implementation of a new apportionment scheme in time to arrange for a qualifying period for candidates and a primary in those districts that must be redrawn. Since alternative plans have already been developed and appear in the record, the State or the district court, if necessary, will be able to adopt one quickly. If the district court acts promptly, assuming a two-week qualifying period, followed by a 30-day primary election campaign and a 30-day general election campaign, sufficient time remains to implement meaningful relief. For example, if the district court orders implementation of a new plan by August 15, a primary can be held in September and House members can be elected at the general election in November. We note that at least 23 states hold primary elections in September; there should be no insurmountable practical obstacles to affording relief in time for the November election. Of course, if the district court concludes that relief cannot be granted by November, it may choose to postpone the election in certain districts and to schedule a special election as soon as possible thereafter. See, e.g., Connor v. Coleman, 425 U.S. 675, 679 (1976) (per curiam); see also Upham v. Seamon, 456 U.S. 37 (1982) (per curiam). APPENDIX