# Motion — DeWitt v. Foley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1131%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1993 - **Citation:** 507 U.S. 901 ## Text In The ie ; . Supreme Court of the United States October Term, 1992 + TIMOTHY A. DeWITT, et al., 4 Appellants, Vv. THOMAS S&S. FOLEY, et al., : Appellees. ¢ On A From The United States | : @ ~ 'BEST AVAILABLE COPY QUESTION PRESENTED Is the requirement of 2 U.S.C § 2c that Representa- tives be elected in single-member districts a valid exercise of Congress’ authority to prescribe the “times, places and manner of holding elections” for its members under Art. I, § 4, of the Constitution? ii TABLE OF CONTENTS QUESTION PRESENTED . .i.5s0csuenucteedess gedua MOTION OF APPELLEES GOVERNOR OF CALI- FORNIA PETE WILSON AND SECRETARY OF STATE MARCH FONG EU TO AFFIRM ......... STATEMENT OF THE CASE... .......ccscecesccsses A. Summary of Material Facts... ..4....0cescieces B. Summary of Procedural History................ STATEMENT ......... ia eed Sh te bee TD, ae OY See ee eee. _tiess dees. ie bes aed ah App. 36 January 29, 1992. Additionally, the California Supreme Court has specifically declared that the relief plaintiffs seek — elections at-large - would tremendously increase the burdens and expenses of effective campaigning” and “seriously impede the casting of uniformed ballots.” Leg- islature v. Reinecke, (1972), sura, 6 Cal.3d at 603. Plaintiffs’ delay in filing this suit, seeking elections at-large of the 52-member congressional delegation would thus prejudice not only the named defendants who must conduct the election, but also all candidates for Congress and California’s entire electorate. Accordingly, the court should exercise its discretion to dismiss plain- tiffs’ actions based upon laches: “In determining whether the doctrine of laches should bar a lawsuit, all the particular circumstances of each case must be considered, including the length of delay, the reasons for it, its effect on the defendant, and the overall fair- ness of permitting the plaintiff to assert his or her action.” Citizens, Etc. v. Secretary, U.S. Dept. of Energy, supra, 683 F.2d at 1174. CONGRESS HAS AUTHORITY TO REQUIRE REPRE- SENTATIVES BE ELECTED BY DISTRICT This case turns entirely upon construction of article, I, section 4, clause 1, of the United States Constitution. Specifically, does Congress’ authority to prescribe the “times, places and manner” of elections for its Members give it the power to require election by district? App. 37 While defendant find no decision specifically addressing this question, the legislative history of article I, section 4, Congress’ long exercise of its powers there- under, and the recognition by the United States Supreme . Court of Congress’ actions for more than 150 years, all evince the clear intent, understanding and recognition that Congress does in fact have the authority to require Representatives to be elected by district. A. The Founders Intended For Congress To Ensure That Representatives Be Elected By District Alexander Hamilton, in The Federalist, termed article I, section 4, the most “completely defensible” provision of the entire Constitution: “Its propriety rests upon the evi- dence of this plain proposition, that every government ought to contain in itself the means of its own preserva- tion.” (The Federalist, No. 59 (Mentor 1961), at p. 362; emphasis in original). From initial conception through final ratification, those who debated, drafted, supported and opposed the Constitution all recognized that it gave Congress the power to require Representatives to be elected by district. James Madison’s Notes of Debates in the Federal Con- vention of 1787 chronicle that once the Great Compromise had been achieved, whereby the Senate would be elected by and represent the States and the House elected by and represent the People, the Federal Convention still had to determine the specifics of how the House should be elected. One view, advanced by George Mason and James Wilson of Virginia, was for direct “ . . . election by the people in large districts which would be most likely to App. 38 obtain men of intelligence and uprightness; subdividing the districts only for the accommodation of voters.” (Madison, Notes of Debates in the Federal Convention of 1787 (Norton 1987), at p. 85; emphasis added.) Others, such as Elbridge Gerry of Massachusetts and Roger Sherman of Connecticut, “ . . . opposed elections by the people in districts, as not likely to produce such fit men as elec- tions by the State Legislatures.” (Notes, supra, at p. 86; emphasis added.) Ultimately, it was concluded that the States had been given adequate deference through their selection of Senators; Representatives were to be elected directly by the People. The Committee of Detail then submitted draft lan guage to the Convention very similar to the final wording of the present article I, section 4: “The times and places and manner of hold- ing the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time be altered by the legislature of the United States.” (Notes, supra at p. 387.) This language was amended to limit Congress’ power over State legislatures in their selection of Senators. (/d. at 423.) Charles Pickney and John Rutledge of South Carolina then proposed amendments to remove Congress’ power over elections altogether. “The States they contended could and must be relied on in such cases.” (/bid.) Madison himself led the fight to maintain Congress’ authority: App. 39 “The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode. This view of the question seems to decide that the Legislature of the States ought not to have the uncontrolled right of regulating the times, places and manner of holding elec- tions. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district; these and many other points would depend on the Legislatures, and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candi- dates they wished to succeed. . .. What danger could there be in giving a controlling power to the National Legislature? Of whom was it to consist?” (Ibid; empahsis added.) Pickney’s amendments failed. The Constitution which the Convention presented to the States for ratification con- | tained article |, section 4, in its present form, giving Congress the “great latitude” fought for by Mason. Con- gress would have the power to determine, among other things, whether Representatives shall be elected by dis- trict. App. 40 With completion of the Convention's drafting, atten- tion shifted to the debates. Ironically, much of the oppo- nents’ attack against article I, section 4, raised the fear that Congress would abuse its power by requiring the very at-large election of Representatives which plaintiffs pray for: “The proposed Congress may make the whole state one district, and direct, that the capital (the city of New York, for instance) shall be the place for holding the election . . . They may declare that those members who have the greatest number of votes, shall be considered as duly elected; the consequence would be that the people, who are dispersed in the interior parts of the state, would give their votes for a variety of candidates, while any order, or professioii, residing in the populous places, by uniting their interests, might procure whom they pleased to be chosen - and by this means the representa- tives of the states may be elected by one-tenth part of the people who actually vote.” (“Brutus” Essay IV, to the People of the State of New York, November 29, 1787, The Anti-Federalist Papers (Ketcham ed. 1986) at p. 329. See also “Speech of Patrick Henry to the Virginia Ratify- ing Convention,” June 7, 1788 (id. at 215); “Centinel” No. I to the Freemen of Pennsylvania, October 5, 1787 (Id. at p. 235); and “Cato” Letter VII to the Citizens of the State of New York, January 3, 1788 (id. at p. 323). The opponents demanded that Congress’ power to regulate election of Representatives be totally eliminated, “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents.” | December 18, 1787, (id. at 240), or at least be limited to App. 41 instances “ .. . when the legislature of any state shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same.” “Additions Proposed By the Virginia Convention: A Proposed Bill of Rights,” June 27, 1788 (id. at 224). The Federalists, of course, defended Congress’ power. Hamilton maintained that article |, section 4, pro- vided essential “discretion power” over elections allow- ing Congress to modify procedures as necessary to meet any “change in the situation of the country.” The Federal- ist, No. 59, supra at p. 363. Madison in turn described the division of States into congressional districts, the method which he and others assumed would be adopted.® “The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives.” The Federalist No. 57, supra at p. 355; emphasis added. He believed this approach would assure that each Representative was acquainted with the interests of his own constituents, and that the House collectively would have the necessary breadth of knowledge: “Divide the largest State into ten or twelve districts and it will be found that there will be no peculiar local interests in either which would not be within the knowledge of the representative of the dis- trict.” The Federalist No. 56, supra at 347; emphasis added. Congress’ power under article I, section 4, was also cited as a check against abuses by State legislatures. As 5 See Wesberry v. Sanders, 376 U.S. 1, 15 (1963). App. 42 Mr. Parsons, delegate to the Massachusetts convention, explained: “They might make an unequal and partial division of the states into districts for the elec- tion of representatives, or they might even dis- qualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election.” 2 J.Elliot’s Debates on the Fed- eral Constitution 27 (1876); Oregon v. Mitchell, 400 U.S. 112, 120 (1970). The Constitution was, of course, eventually ratified with the language of article I, section 4, unchanged. The evolution of article I, section 4, as well as the supporting and opposing arguments, demonstrate that Congress’ authority to prescribe the “times, places and manner” of electing Representatives included, and still includes, the power to require election by district. Indeed, election by district was at the center of all debates: Should election by district be direct or indirect through the State legislatures? Should the power to set districts be given to the States or to Congress? And, would Congress abuse its power by imposing elections at-large instead of by district? One constant throughout the debates was the fact that article I, section 4, gave Congress the power to require election by district. oe App. 43 B. Congress Has Exercised Its Power To Require District Elections For 150 Years Without Chal- lenge For the first 50 years following ratification of the Constitution Congress took no action, resulting in great diversity among the States in the manner of choosing | Representatives. Colegrove v. Green, 328 U.S. 549, 555 (1945). Some states elected all of their Representatives on a single state ticket. United States v. Gradwell, 243 U.S. 476, 482 (1916). Then in 1842 Congress enacted its first law requiring election of Representatives by single-member districts. Act of June 25, 1844, § 2, 5 Stat. 491; Whitcomb v. Chavis, 403 U.S. 124, 158, n. 39 (1970); Colegrove v. Green, supra, 243 U.S. at 555 (1945); United States v. Gradwell, supra, 243 U.S. at 482. Congress acted to eliminate what was then known as the “general ticket system,” whereby every elector voted for as many names as the State was entitled to Represen- tatives in Congress. Congress concluded that the general ticket system worked an injustice to other States which did not use it, and within States using the system gave undue power to the majority political party by submerg- ing minority voters. Whitcomb v. Chavis, supra, 403 U.S. at 6 Representative Campbell, sponsor of the act, explained that “(I)n this, the popular branch of the Legislature, the true principle of the Constitution was, that minorities as well as majorities should be represented; but where the general ticket system prevailed, the voice of the minority was suppressed. Mr. Q’s motive in contending for this amendment, was a desire. to preserve the influence of the small States. Georgia, New Jersey, and Alabama, now elected by general ticket; comparatively small numbers of Representatives, yet, on all party questions, App. 44 157, fn. 13; Ex Parte Yarbrough, 110 U.S. 651, 660 (1883). Earlier commentators explained that Congress’ move to single-member districts: “Was recommended by the wisdom and jus- tice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the peo- ple in a state, through approaching perhaps to a majority, to be wholly overpowered by the com- bined action of the numerical majority, without any voice whatever in the national councils.” 1 Kent, Commentaries (12th ed. 1873) 230-231, n. (c).; Colegrove v. Green, supra, 328 U.S. at 553. Modern observers have simply said that Congress’ action in 1842 “signalled its belief that Representatives should they had a stronger voice than the largest states, who went on the district plan. While New Jersey, in such a case, made her voice tell as six, the voice of New York, numerous as was her delegation, told but as two. The large States, feeling this, would soon resort to the plan of a general ticket; and then what became of the influence of the small States? They must be lost, and swallowed up. Should New York, for example, resort to that system, though her population might be so equally divided that one party exceeded the other but by a single man, the prepon- derance of that one man would give to the State forty votes on that floor in favor of his side of the question; a power equal to one sixth of all the rest of the Union. On all the questions peculiar to Southern interests, the Northern States, owing to the district system, were now divided. While the Southern voted in solid phalanx; but let the general ticket prevail, and they would overwhelm the South. He had once doubted the constitu- tionality of the amendment; but, on fuller examination, his doubts had been removed - the constitutional objection was wholly technical.” 11 Cong. Globe 445 (April 26, 1842); 27th Cong. 2d Sess. 1842. App. 45 be representative.” Montano v. Lefkowitz, 575 F.2d 378, 385 (2nd Cir. 1978). There was no challenge to Congress’ decision in 1842 requiring election by single-member districts. However, 35 years later the United States Supreme Court did com- ment upon Congress’ action in a series of cases during the 1870’s and 1880’s dealing with election reforms enacted following the Civil War. Culminating in the United States Statutes of 1873-74, “Crimes Against the Elective Franchise and Civil Rights of Citizens,” Rev. Stats., §§ 5506 to 5532, Congress enacted a number of election reforms to protect the newly-freed black voters and implement the Fourteenth and Fifteenth Amendments. These provisions addressed abuses such as false registration, bribery, false returns and neglect of election duties by state and local officials. United States v. Gradwell, supra, 243 U.S. at 483. The United States Supreme Court sustained enactment of these laws as within Congress’ authority to prescribe the “times, places and manner” of elections pursuant to arti- cle I, section 4. The Court specifically cited as precedent Congress’ action 35 years’ earlier requiring single-mem- ber districts. In Ex Parte Siebold, 100 U.S. 371 (1879), several elec- tion judges who had been convicted of violating the new voting procedures challenged Congress’ authority to enact such laws. The Court upheld Congress’ action, explaining: “Congress has partially regulated the sub- ject heretofore. In 1842, it passed a law for the election of representatives by separate districts; App. 46 _ and, subsequently, other laws fixing the time of election, and directing that the elections shall be by ballot. No one will pretend, at least at the present day, that these laws were unconstitu- tional because they only partially covered the subject.” (Id. at 384; emphasis added.) The Court characterized Congress’ power under article I, section 4, as “plenary” (Id. at p. 388), stating: “The power of Congress, as we have seen, is paramount, and may be exercised at any time, and to any extent which it deems expedient... .” (Id. at p. 392) Following and citing Ex Parte Siebold, the Court in Ex Parte Yarbrough, supra, 110 U.S. 651, upheld other convictions under the Civil War election reforms. Again, the Court cited article I, section 4, and the action of Congress’ in 1842, requiring single- member districts: “But when, in the pursuance of a new demand for action, that body, as it did in the cases just enumerated, finds it necessary to make additional laws for the free, the pure, and the safe exercise of this right of voting, they stand upon the same ground and are to be upheld for the same reasons.” (Id. p. 662) Thus, by the 1870’s the validity of Congress’ action in 1842 requiring single-member districts was unquestioned and the Court dismissed the idea anyone would pretend “at the present day” that Congress had exceeded its authority 35 years before. The requirement of single-member districts contin- ued, with minor interruption, from 1842 until 1929. Cole- grove v. Green, supra, 328 U.S. at 555. Then, in the Act of June 18, 1929, Congress omitted the requirement that ie es on ah i nis = App. 47 districts be compact, contiguous and equal in population as to the new districts created under the Fifteenth Census. 46 Stat. 21, ch. 28. Although Congress did not expressly repeal the previous single-member district requirement of the Act of 1911, the Court ruled that this was the intent and result of Congress’ action in 1929. Wood v. Broom, 287 U.S. 1 (1932). Elimination of single-member districts of equal popu- lation inevitably led to disparity and malapportionment between districts.7 By 1963, some districts contained two to three times the population of others, forcing the Court to intervene and require equal representation. Wesberry v. Sanders, supra, 376 U.S. 1. Although the authority of Con- gress pursuant to article I, section 4, was not directly at issue in Wesberry, it was discussed at length by both the majority and dissent. The majority cited the Founders’ debates as clear intent that Congress was to have the power to assure equal representation: 7 Courts addressing redistricting plans during the hiatus in federal legislation requiring single-member districts acknowl- edged that election by district was “desirable,” “historically contemplated by the framers of the Constitution,” Norton v. Campbell, 359 F.2d 608, 611-612 (10th Cir. 1966), and “the better practice.” Exon v. Tiemann, 279 F.Supp. 603, 605 (D. Neb. 1967). States, of course, were free to adopt election by district, Norton at page 611, but federal courts could not order it: “It would be improper for this court to order the Legislature to provide for election by districts in the absence of an Act of Congress so requiring... . ” Exon, supra, at p. 605; emphasis added. App. 48 “Congress’ power, said John Steele at the North Carolina convention, was not to be used to allow Congress to create rotten boroughs; in answer to another delegate’s suggestion that Congress might use its power to favor people living near the seacoast, Steele said that Con- gress ‘most probably’ would ‘lay the State off into districts’ and if it made laws ‘inconsistent with the Constitution, independent judges will not uphold them, nor will the people obey them’ ” (Wesberry, supra, at 16; emphasis added.) The majority did not question Congress’ authority to require election by districts as one means to guarantee equal representation. Rather, the issue in Wesberry was the Court’s role given Congress’ failure to act. Justice Hanlan, in his dissent, argued that the author- ity of Congress under article I, section 4, was the very reason the Court should not act: “There is nothing to indicate any limitation whatsoever on this grant of plen- ary initial and supervisory power” (id. at 30). Justice Hanlan cited the same words by the Founders: “The debates in the ratifying conventions, as clearly as Madison’s statement at the Phila- delphia Convention [cite] indicate that under § 4, the State legislatures, subject only to the ultimate control of Congress, could district as they chose” (id. at 34). Disagreeing as to what role the Court should play, both the majority and dissent recognized that Congress had plenary authority under article I, section 4, to compel election by districts. Four years after Wesberry, Congress re-enacted the requirement of election by single-member districts in App. 49 1967 via the present 2 United States Code section 2c. 81 Stat. 581. Courts have characterized Congress’ debate in 1967 as “echoing the views of their predecessors of 1842 with respect to the representative nature of representa- tives,” Montano v. Lefkowitz, supra, 575 F.2d at 385, and having “made clear their distaste for at-large elections.” Shayer v. Kirkpatrick, supra, 541 F.Supp. at 927. Senator Howard Baker, one of the sponsors, explained on the Senate Floor, that single-member dis- tricts afford “maximum protection of the rights of all people and maximum responsiveness to their needs,” 113 Cong. Rec. 34365-66 (Nov. 30, 1967). He noted, “The concept of single-member districts for a unique and spe- cial reason has been a nonpartisan undertaking by Mem- bers on both sides of the aisle.® Ibid. As with Congress’ initial decision in 1842 requiring single-member districts, there was no direct challenge to re-enactment of single-member districts in 1967. How- ever, just as the United States Supreme Court cited Con- gress’ action in 1842 as precedent for the later election reforms of the 1870's. Ex Parte Siebold, supra, 110 U.S. 651, so too did the Court cite re-enactment of single-districts in 1967 as precedential authority for the Voting Rights Act Amendments of 1970. Pub. L. 91-285, 84 Stat. 314. The issue in Oregon v. Mitchell, supra, 400 U.S. 112, was Congress’ authority, pursuant to article I, section 4, 8 “The passages from the floor debate . . . indicate opposi- tion to at-large elections, rather than opposition to at-large elec- tions prompted by Wesberry.” Shayer v. Kirkpatrick, (1982) supra, 541 F.Supp. at 927. App. 50 to lower the voting age to 18. In his lead plurality opinion upholding Congress’ power, Justice Black explained: “The breadth of power-granted to Congress to make or to alter election regulations in national elections . . . is demonstrated by the fact that the Framers of the Constitution and the state legislatures which ratified it intended to grant to Congress the power to lay out or alter the boundaries of congressional districts ... and in Colegrove v. Green, 328 U.S. 549 (1946), no Justice of this Court doubted Congress’ power to rearrange the congressional districts according to population; the fight in that case revolved about the judicial power to compel redistricting. “Surely no voter qualification was more important to the Framers than the geographical qualification embodied in the concept of con- gressional districts . . . There can be no doubt that the power to alter congressional district lines is vastly more significant in its effect than the power to permit 18-year-old citizens to go to the polls and vote in all federal actions.” (Id. at 121-122; emphasis added.) Oregon was the Court's last occasion to address arti- cle I, section 4, and it was consistent with all of the Court’s previous comments. For 150 years Congress has exercised its power pursuant to article I, section 4, to require election of Representatives by district. For 100 years the Court has cited Congress’ enactment of district voting as precedent for other election laws premised upon article I, section 4. App. 51 C. Elections At-Large Are Disfavored Courts have long disfavored at-large elections, citing the same factors which moved Congress to require single- member districts: winner-take-all elections submerge minorities by overrepresenting the winning party, Whit-. comb v. Chavis, supra, 403 U.S. at 159; a preference for reflecting community interests as closely as possible, ibid; long and cumbersome ballots making intelligent choices difficult, Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 731 (1963); residents have no representative specifically responsible to them, ibid; and block voting by residents in multi-member districts results in undue representation relative to voters in single-member districts. Chapman v. Meier, 420 U.S. 1, 16 (1974); see also Thornburg v. Gingles, 478 U.S. 30, fn. 13 (1985). These problems would increase in a state the size of California: “[to] conduct statewide elections to fill . .. Congressional seats in a state of California’s geographical size and large population would not only tremendously increase the burdens and expenses of effective campaigning but, by increasing the choices confronting the elec- tors . . . would seriously impede the casting of informed ballots.” Legislature v. Reinecke, supra, 6 Cal.3d at 603; Assembly v. Deukmejian, 30 Cal.3d 638, 664 (1982). This long-standing preference for single-member elections has now been incorporated into the Court’s constitutional guidelines for apportioning congressional seats: “... the command of Art. I, § 2, that States create congressional districts which provide App. 52 equal representation for equal numbers of peo- ple permits only limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” Kirkpatrick v. Preisler (1968), supra, 394 U.S. at 531 (emphasis added); Wells v. Rockefeller (1968) 394 U.S. 542, 546; and White v. Weiser (1973), supra 412 U.S. at 790. And Congress may, pursuant to its authority under to article |, section 5, for judging qualifications of its own members, reject a delegation of Representatives-at-large. Colegrove v. Green (1945), supra 328 U.S. at 553. Finally, for the same reasons that congressional elec- tions must be by single-member districts, primary elec- tions to select the nominees must also be by single- member district: “If could not be seriously contended that a primary to chose nominees for the various con- gressional districts in a general election could validly be held on a statewide basis or, when a country contains several congressional districts, even on a countywide basis, with the victors assigned to the districts in some arbitrary fash- ion which might result . . . in the nominee’s being unresponsive to the desires of the voters in the district.” (Montano v. Lefkowitz (1978), supra, 575 F.2d at 385.) As to election of state legislatures, the Court has expressed the same disfavor for at-large elections. At- large elections are not unconstitutional per se under the Fourteenth and Fifteenth Amendments. Thornburg v. Gin- gles, supra, 478 U.S. at 48. However, single-member dis- tricts are “preferable,” Connor v. Williams, 402 U.S. 690, App. 53 692 (1970), and federal courts required to fashion state reapportionment plans are directed to use single-member districts “absent insurmountable difficulties.” Chapman v. Meier, supra. 420 U.S. at 18. D. The Court Should H _Dete ina- Tee Patent te Aa Pee Again, Alexander Hamilton characterized ealsiaa? authority under article I, section 4, as one of the most fundamental provisions of the entire Constitution — the means of Congress’ own preservation. State courts are bound by Congress’ determinations under this provision. Assembly v. Deukmejian, supra 30 Cal.3d at 662; Simpson ov. Mahan, 185 S.E.2d 47, 212 Va. 416 (1972). So too have federal courts honored the historic exercise by Congress of a power essential to the very existence of that co-equal branch. Some 60 years ago the Court admonished: “The practical construction of Article |, tion 4, is impressive. General oat justi dapasinny thee the lacten inane continuous interpretation in the course of offi- cial action under the law may aid in removing doubts as to its meaning. This is especially true in the case of constitutional provisions govern- ing the exercise of political rights and hence subject to constant and careful scrutiny.” Smiley v. Holm, 285 U.S. 355, 369, (1931). Has there been “long and continuous” interpretation of Congress’ authority to require election by single-member districts? Clearly - 150 years’ worth. Congress ordered election by district in 1842, and by 1879 Congress’ action was so accepted that the Court App. 54 would comment “No one will pretend, at least at the present day, that these laws were unconstitutional. .. . ” Ex Parte Siebold (1879), supra, 100 U.S. at 384. The “present day” which the court spoke of was under President Rutherford B. Hayes and Chief Justice Morrison R. Waite. Thirty-eight years later, the Court remarked that “any doubt” as to Congress’ power under article I, sec- tion 4, “has been settled by repeated decisions of this court,” United States v. Gradwell, supra, 243 at 482, citing Ex Parte Siebold and its progeny. The same result was reached again in 1931, Smiley v. Holm, supra, 285 U.S. at 366-67; and in 1940, United States v. Classic, 313 U.S. 299, 315 (1940); and in 1970: “ . . . a long line of decisions in this Court [have held] that Congress has ultimate super- visory power over congressional elections.” Oregon v. Mitchell, supra, 400 U.S. at 122; And again in 1975: “The constitutional power of Congress to regulate federal elec- tions is well established. ...” Buckley v. Valeo, 424 U.S. 1, 13 (1975). Analysis of almost two hundred years’ worth of debates from the Founders, the drafting evolution of article |, section 4, arguments in support and opposition to its ratification, its application by Congress, and the Court’s review of Congress’ actions all returns to Ham- ilton’s simple, basic premise: “A newly created national government could hardly have been expected to survive without the ultimate power to rule itself and to fill its offices under its own laws.” (Oregon v. Mitchell, supra, 400 U.S. at 112. App. 55 Article |, section 4, gives Congress plenary authority over the procedures to be followed in its Members, including the power to require that elections be by single- member districts. IV. PLAINTIFFS ARE NOT ENTITLED TO THREE JUDGE COURT Plaintiffs in this case claim they are entitled to a three-judge court, pursuant to 28 United States Code section 2284(a). Plaintiffs are mistaken. 28 United States Code section 2284(a), provides: “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 con- gressional districts or the apportionment of any statewide legislative body.” As this court has already recognized, the term “reappor- tionment” describes the process of allocating representa- tives among pre-established districts. California Democratic Congressional Delegation v. Eu, supra, slip. opin., p. 1, fn. 1: The term “redistricting” refers to the process of f liz- ing the boundaries of the districts. Id. Here, plaintiffs are not challenging the allocation of representatives among-pre-established districts, but rather, the constitutionality of pre-established districts, which has been discussed in Argument III. Consequently, plaintiffs are not entitled to a three- judge court. App. 56 CONCLUSION Congress’ direction in’‘2 United States Code section 2c that Representatives be elected in single-member dis- tricts is an appropriate exercise of Congress’ authority under article I, section 4, clause 1, of the Constitution prescribing the “times, places and manner of holding elections” for its own Members. Congress has exercised this authority for 150 years and the Supreme Court has recognized the validity of Congress’ action for over 100 years. As the supreme law of the land, Congress’ deter- mination is binding upon defendants Governor and Sec- retary of State of California. U.S. Const., art. VI, § 2. Plaintiffs pray for injunctive orders from this court barring defendants from implementing Congress’ direc- tion in the election of California’s congressional delega- tion. However, plaintiffs’ request for equitable relief is made with unclean hands. Plaintiffs sat moot through more than a year of public hearings and debate con- ducted by both the California Legislature and Supreme Court, soliciting comment from all interested parties in fashioning the State’s redistricting plan. Plaintiffs were on notice from the inception that the California Supreme Court would follow Congress’ requirement of single- member districts. Plaintiffs nevertheless waited to raise their objection until after the California Supreme Court had adopted the redistricting plan and the practical dead- line had passed for defendant Secretary of State to imple- ment the June 1992 elections. Plaintiffs can hardly argue that they were taken by surprise that district elections would be used, and their unreasonable and unjustifiable delay in bringing this action would work a severe harm to California’s entire electorate. App. 57 Plaintiffs have selected the wrong venue for bringing this action. Defendants’ official acts in carrying out their election duties are performed in Sacramento, in the East- ern District. Finally, plaintiffs are not entitled to a three- judge court. For these reasons defendants respectfully request that their motion be granted under Federal Rules of Civil Procedure 12(b) and (6) and that this complaint be dis- missed. DATED: Respectfully submitted, DANIEL E. LUNGREN Attorney General of the State of California LINDA A. CABATIC Supervising Deputy Attorney General ALLEN SUMNER Assistant Attorney General Attorneys for Defendants --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1131%3A2. Public record. Not legal advice.