*1 $52,123.52, 1,1981 period from June

through judgment, the date of com-

pounded annually. The court has calculat- average

ed an interest rate of from 9.5% average

1981 to and an rate of 7.25%

from 1986 to date. The addition of that $52,123.50 principal

interest to the sum of $121,472.06. judgment

results a total

Judgment accordingly. will be entered may application

Plaintiffs file an for costs fees, attorneys’ may which defendants

oppose.

IT IS SO ORDERED.

MEMBERS OF CALIFORNIA DEM DEL

OCRATIC CONGRESSIONAL

EGATION, al., Plaintiffs, et EU, al., Fong

March et Defendants. Legal

Mexican American Defense and Fund,

Educational on behalf of Sebas Benavidez, al.,

tian et Intervenors.

No. C-91-3383-FMS.

United States District

N.D. California.

March *2 Steinberg, Manella,

Jonathan H. Irell & Cal., Angeles, Hulett, Los Denise M. Mexi- Legal can American Defense & Educ. Fund, Francisco, Cal., Joaquin San G. Avi- la, Cal., Milpitas, plaintiffs. Miller, Counsel, Anthony L. Chief Rich- Nishite, Cox, Sacramento, ard S. Oliver S. Cal., for defendants. Remcho,

Joseph Remcho Johansen & Purcell, Francisco, Cal., Assembly San of Cal. State. Counsel, Gregory, Legislative

Bion Sac- ramento, Cal., for Senate of Cal. State. Cooper, Robert E. Dunn Gibson & Crutcher, Francisco, Cal., San for Califor- nia Governor. TANG, Judge,

Before Circuit SMITH and LEGGE, Judges. District AND OPINION JUDGMENT OF DISMISSAL LEGGE, Judge: District challenges This action involves various reapportionment1 or “reapportionment" process allocating representatives among pre- 1. The term describes the September 23, districts in the of Califor- On governor 1991the vetoed approved by plans. nia which has been the Califor- those An attempt to override the nia governor’s Court. Plaintiffs and inter- failed, vetoes legisla- and the prelimi- venors in this court for a moved ture recessed for the remainder of the *3 nary injunction implementation year. to restrain redistricting plan, of that and instead to later, days Two the Supreme California compel Secretary the of State California Court decided to original exercise its juris implement plans proposed by alternate diction; VI, 10; Cal. Const. Art. § Califor them. nia Education Authority Facilities v. 28,1992 January On this court denied the Priest, 593, 12 Cal.3d Cal.Rptr. 361, 116 preliminary injunction. motions Be- (1974); 526 P.2d 513 and issued a writ of urgency advising cause of the time the compelling mandate preparation the of a Secretary of State our decision so that redistricting plan. Eu, v. Wilson 54 Cal.3d primary the statewide elections scheduled 471, 280, Cal.Rptr. 286 816 P.2d 1306 held, for June 1992 could be there was not (1991). Supreme appointed then prepare time for this court to and special three public masters to hold hear publish opinion. opinion an This discusses ings, evidence, take arguments, hear and prelimi- the reasons for the denial of the redistricting plan recommend a to that nary injunctions, and further concludes court. The Supreme California Court di that this action should be dismissed. guided rected that the masters be vari standards,

ous including the Voting I. Act, 1971, 42 U.S.C. seq., et the § Constitution, United States the California census, Following the 1990 the State of Constitution, and state developed criteria adjust California was mandated to the prior litigation. Legislature Cali boundary lines of its districts for Reinecke, 396, v. 10 Cal.3d 110 Cal. legislative representatives state and for fornia 718, Rptr. 516 P.2d 6 The masters representatives to the United States Con assigned undertook their They tasks. re I, gress. U.S. Const. Article Cal. § assistance, public tained staff held hear XXI, Art. responsibility Const. 1. This § ings, accepted and arguments evidence and primarily legislature lies gov with and parties. 29, from interested On November ernor of the state. Assembly Deukmeji they report 1991 filed their and recommen an, 638, 297, Cal.Rptr. 30 Cal.3d Supreme dations with the California Court. Reinecke, Legislature P.2d 939 report plans Their redistricting included 595, 481, Cal.Rptr. Cal.3d 492 P.2d 385 legislative districts for both houses of (1972). However, they were unable legislature congres the state and for the agree. sional districts. 6, September On 1991 Governor Pete petition filed a Following presentation

Wilson with of their re- alleging port the failure of plans, the California legislative process produce briefing a redis- Court entertained further and ar- tricting plan following guments parties. 1990 census and from interested On Janu- requesting 27, ary the California Court to 1992 the California thereafter, jurisdiction. Shortly assume opinion, accepted issued its which masters, Legislature presented adopted plans proposed by governor redistricting plans. with three with certain modifications not relevant Vote," "redistricting" Holy established districts. The term Grail “OneMan-One for Sup.Ct.Rev. process formulating Despite

refers to the the bound- 219 n. 4. these differ- ences, however, Bandemer, aries of districts. See Davis v. the United States (e.g., Reynolds n. n. Court’s Sims, cases J., (1986) (Powell, concurring redistrict, (1964)) dissenting). legislators "reapportion- rather are often referred to as cases, reapportion, legislative commonly than state and federal ment” interchangeably. and the terms are used Dixon, districts. See The Warren Court Crusade basing their chal Eu, 4th districts. addition 1 Cal. here. Wilson lenge on the United States Constitution Cal.Rptr.2d 823 P.2d Act, intervenors also allege that the 1990 census undercounted II. population of California. This the Latino court was commenced The action intervene, motion to granted their proceed- while September the intervention to the issue limited but Supreme Court the California before congres plaintiffs; raised pending. The court declined to sional districts. also challenge based on hear the intervenors’ A. census, undercounting in alleged the 1990 *4 following: parties are The interested this court concludes that constitu because of the California are members Plaintiffs Voting Rights challenges Act tional and Delegation; that Congressional Democratic upon re redistricting must be based Representa- of the House members figures. Dag v. ported census Karcher Party belong to the Democratic who tives 731-32, 735-38, 751, 103 gett, 462 U.S. currently elected from dis- and are who 2660-62, 2670, 77 delegation’s The chal- in tricts California. (1983); Springfield L.Ed.2d 133 McNeil v. redistricting plans is directed lenge Cir.1988); (7th Dist., 851 F.2d Park districts, congressional at certain of Vista, Skorepa City Chula v. alleging they violate United (S.D.Cal.1989). F.Supp. Inter- Act. and Constitution the limit have moved to reconsider venors as representatives have withdrawn Several grant of the court’s of interven ed nature remain. number plaintiffs, but a substantial in of our conclusion that tion. But view March named defendant dismissed, The first motion should be the action Eu, Secretary Fong of State Califor- need not discussed. reconsideration be for presence in the case is Secretary nia. Eu’s attorneys application by An was formalistic, in that she is named as a defen- leave to and Dickerson for Messrs. Cochran responsibility her only because it is dant brief on behalf of file an amicus curiae adopted and to districts which are apply the citizens, contending that African-American using districts. the elections those conduct congressional districts undermine the new defendant, actively principal who has The representation of African Americans. to dis- injunctions and moved opposed the this court’s conclusion Again, because of Wilson, case, Pete the Governor dismissed, miss the the re- that the case should be governor of California. of the State standing need not quest curiae amicus plain- certain of has also moved to strike discussed. be record; filings from the view tiffs' to dismiss the considera- our decision B. necessary. is not tion of that motion challenges complaint Because the of the Cali- Assembly and the Senate constitutionality the redistricted con Legislature are also named as fornia State districts, judge court this three gressional con- They appeared, have defendants. pursuant to 28 U.S.C. convened was districts, in- congressional but testing the 2284(a). power to This court has the § assembly challenging the new state stead by the upon questions all raised pass districts. and state senate record, jurisdiction. including questions of Finch, F.Supp. Bartley was filed complaint A intervention 980, 92 S.Ct. by (E.D.Ky.1970), 404 U.S. represented citizens certain California aff'd (1971). The court is Legal American Defense the Mexican case before proceed joined The intervenors directed Fund. Educational may judge. The case single district court challenging certain con- plaintiffs in with or after a dispositive motions districts, challenged decided on and also be gressional Eu, See, e.g., full trial. Badham assembly and state senate certain state F.Supp. (N.D.Cal.1988) (motion dis districts based on the United States Consti- granted), miss 109 tution or Voting Rights Act. 28 U.S.C. aff'd Gingles 2284(a). However, governor § Edmisten, F.Supp. (E.D.N.C. moved to dismiss this action on the 1984) (bench held), trial part grounds of aff'd abstention. recog- Abstention part, rev’d in nizes that in certain circumstances a feder- court, al although having jurisdiction over dispute, should decline to exercise its C. jurisdiction in deference to the state courts. After this court was convened vari- Abstention is a balance of constitutional made, ous motions recognized were we federalism. It is upon based the principle necessity making rapid decisions comity between the federal and state Speed issues raised. important be- systems, upon recognition- that state cause the Secretary of State ad- courts are as able to litigants’ enforce fed- vised that the June 1992 elections could not eral as is a federal court. Younger be held unless all judicial decisions on redis- Harris, tricting were completed the end of Janu- County Middlesex ary. We therefore decided not to await *5 Assoc., v. Garden State Bar decision of the Supreme California Court 431, 2515, 2521, 102 S.Ct. analyzing case, before the issues in this but (1982). rather to convene hearing to schedule Any broad proceedings. further statement of the principle On December of abstention, agreed however, 1991 we issue rulings pending overly simplifies no the by Court; decision Supreme California difficult considerations in deciding when however, delay that was expressly not a abstention or should should applied. not be decision that this court would abstain from

proceeding. filing Schedules for of the A. set, record and authorities were gener- ally bymet parties. the interested We start general We with the princi copies received proposed ple masters’ that a federal court should exercise the plans and copies filings all by of jurisdiction given to it by the constitution parties with the California Court. by congress. or “Abstention from the ex argument An oral on all of the issues was jurisdiction,” ercise of federal the United held January on Being fully 1992. ad- instructed, States Court has “is by parties vised on the issues and au- exception, not the rule.” Colorado thorities in judges all of this court River Water Conservation v. United Dist. moving reviewed the opposing papers, States, 800, 813, arguments counsel, and the applica- 1244, fact The that ble authorities while the California Su- a state adjudicating court a claim does preme proceeding. case automatically not relieve a court of federal stated, “virtually its unflagging obligation

As ... jurisdiction given issued exercise January its decision on Con [it]” copy gress. of that court’s decision was Id. at immedi- The ately delivered study- pendency to this court. After of an action in a court “is state ing the decision of the no proceedings concerning bar to same Court, unanimously we determined matter in having jurisdic on Jan- the federal court uary deny 1992 to by plain- motions Consequently, tion....”. Id.

tiffs and preliminary intervenors for a in- “only exceptional warranted circum junction. stances where the order to the repair clearly to the state court would

III. important countervailing serve an inter There is no that County Allegheny doubt this court est.” v. Frank Ma challenges Co., 185, 188-89, over shuda grounds other for abstention asserted 3 L.Ed.2d governor. Supreme Court has stated find in cases such as this is not to “task generally pro Younger abstention for the substantial reason exercise some restraining courts from or hibits federal court; by the district substantially interfering pending state with rather, to ascertain whether the task is litigation. was a criminal circumstances, the ‘exceptional’ there exist case the criminal defendant asked which justifications,’ that can suffice ‘clearest enjoin prosecution a federal court to his juris- justify ... the surrender of ground that it the First and violated Hosp. Memorial diction.” Moses H. Cone Fourteenth Amendments. The United Mercury Corp., 460 U.S. 25- Constr. injunc Court denied both 927, 941-42, 74 L.Ed.2d 765 declaratory tive and relief. The Court rea (1983). (emphasis original). proceedings the state court soned adequate provide would an forum re Abstention cases adjudication of the constitutional claims. quires “special further consideration” and Permitting upon federal courts to intrude solicitude for the federal involved. prosecutions would entail Dist. Badham United States duplicative litigation and the attendant risk (9th Cir.1983). F.2d “[T]he conflicting judgments, would also but freely the candidate of right to vote great harm to relations between the work choice is of the essence of a demo one’s government and the states. society, cratic restrictions on that right representative underlying restraining at the heart of strike reason for Th[e] government. right equity interfering is fundamental be from courts with *6 preservative rights.” prosecutions by of all cause criminal is reinforced an [it is] Forssenius, 528, 537, consideration, v. 380 U.S. even more vital the notion Harman 1177, 1183, “comity,” proper respect 14 L.Ed.2d 50 that 85 S.Ct. for functions, recognition

state of the fact country up B. of a that the entire governments, separate Union of state Having general starting stated that of the that the and a continuance belief point, guided steps are then in our next we fare if the National Government will best by numerous cases which federal courts left States and their institutions are free voting rights have abstained matters. perform separate their functions in Germano, 407, v. 381 85 E.g., Scott U.S. separate ways. their 1525, (1965); 14 L.Ed.2d 477 Bad S.Ct. ham, 44, Poy 721 F.2d at Duncan v. 401 U.S. at 91 S.Ct. at 750. The avail thress, 691, (5th Cir.1981), by F.2d ability 657 697 of federal review means of a 1012, dismissed, petition 459 U.S. cert. United States 368, (1982); Bianchi v. Court is a sufficient answer to the concern 457, (2d Cir.1968). adjudica Griffing, 393 F.2d 461 that there be a federal forum for 3, rights. of federal Id. at 57 n. 91

tion (Brennan, J., concurring); C. S.Ct. at 750 n. 3. Co., Fidelity 263 Rooker v. Trust U.S. Germano, upon In reliance cf. Scott 44 L.Ed. S.Ct. 68 362 urges governor types four different of ab- (1923); Church God v. Worldwide dismissing stention as for this action. bases 888, (9th McNair, 805 F.2d 890-91 Cir. Because this court decides that it should 1986).2 authority Younger abstain under Harris, 37, 746, originated 401 91 Younger U.S. S.Ct. 27 While abstention prohibition against interfering L.Ed.2d 669 we need not discuss the with state exception, exception find cause 2. The Court carved out an bad faith nor do we for Younger prosecutions exception maintained as a for this court’s contin- basis 49, Younger, faith. at in bad 753; 401 U.S. 91 S.Ct. at jurisdiction. ued party see note 4. No here raises that infra

931 proceedings, criminal the doctrine evolved was pending before the state supreme apply proceedings to state civil as well. court while a similar federal action was See, e.g., Middlesex County being pursued. v. Garden The U.S. Supreme Court Assoc., 423, State Bar 457 U.S. held the federal court should have 2515, (1982)(state L.Ed.2d bar disci abstained in favor of the state proceedings: plinary proceeding); Trainor v. Hernan We believe that the District Court should dez, 434, 1911, 52 L.Ed.2d have stayed its hand. power The (1977) (state proceeding); attachment judiciary of a State to require reap- valid Vail, 327, Juidice portionment or to formulate a valid redis- (1977)(state contempt pro tricting plan has not only recog- been ceeding claim); in a private debt by nized this Court but appropriate Huffman ac- Pursue, Ltd., by tion such cases has been (1975) (quasi-criminal pro specifically encouraged. ceeding concerning public nuisance stat 381 U.S. at (citations 85 S.Ct. at 1527 ute). The Court has stated that omitted). policies underlying fully are Younger Court has recognized also applicable judicial to noncriminal proceed importance of state considerations in ings “important when state interests are other cases. See Thornburg Middlesex, involved.” U.S. v. Gingles, U.S. S.Ct. at 2521. Karcher v. Daggett, 462 Middlesex, the Court established a Here, S.Ct. at 2663. three-step inquiry determining when important state interests were specifically appropriate abstention is in defer- addressed masters and the Cali- ence (1) to a civil state proceeding: there fornia Eu, Court. See Wilson v. ongoing (2) an proceeding; state does the Cal.4th 4 Cal.Rptr.2d 386-87, proceeding implicate important state inter- 823 P.2d 552-53 ests; (3) adequate is there an opportu- The third test for Younger absten nity in the proceedings raise consti- adequate tion—an opportunity in the state challenges. tutional Id. proceeding to raise chal dispute here do not lenges present also Congress here. *7 did —is the first test Middlesex is satisfied. The not jurisdiction vest under the Voting proceeding state court was filed Rights Act in the federal courts exclusive before this federal lawsuit commenced. ly. State courts have concurrent jurisdic The fact that the state proceeding tion over claims under the United States concluded, has now been and was conclud Constitution and Voting Rights under the ed before this court issued its order of Lovorn, Act. See Hathorn 457 U.S. 28, 1992, January 268-71, does not alter this first 102 S.Ct. 72 L.Ed.2d test. The Ninth Circuit specifically has The United Supreme States held inquiry that the is the whether state Court expressly recognized has state that proceeding pending the federal are competent judicial systems courts before filed, suit was that the conclusion of the adjudication the of federal issues. Middle abstention, state case sex, does not avoid 457 U.S. at 102 S.Ct. at see that required. dismissal is still (“Minimal Beltran v. respect id. for the pro state California, 871 precludes F.2d 782-83 cesses ... presumption that (9th Cir.1988). safeguard the state courts will rights.”) (emphasis origi constitutional in Supreme States United Court deci- nal). Germano, sion in Scott v. 381 U.S. (1965), significant demon- It congress gave is that the requirement; strates the second courts jurisdiction state concurrent under that redistricting implicates Act, important Voting Rights state rather than confer- interests. ring case court suit jurisdiction state exclusive in the federal challenging redistricting plan courts, the state’s as it was free to do. Exclusive recognize protected call for us would interests to be in its primacy directing of the federal courts resolv- order how the masters should

ing questions to decline perform under that act and report their duties. The masters’ vesting to abstain in this case. The then discussed both the federal and state however, jurisdiction, protected. Then, concurrent indicates opinion to be in its congress’ intent and adopting plan, both belief state the masters’ the California generally provide process. courts will due Supreme extensively discussed both authority pre- our We believe this limits requirements federal constitutional Contrary sume otherwise. to the concern Act. process This is due dissent, analysis raised our does not adjudication for the of the federal issues foreclose intervention the federal courts raised.3 allegations

when there are of either bad The United States Court and faith or constitutional infirmities expressed the Ninth Circuit have one fur- process. state court footnotes and 3. qualification ther redistrict- cases—abstention Where, here, congress pro as should not be an excuse for inaction or vided concurrent over delay by Germano, the state. See Scott v. claims, the test is not whether the Califor 409-10, 1526-27; 381 U.S. at 85 S.Ct. at nia Court is best or ideal Badham v. United Dist. litigation forum for issues. (9th Cir.1983). F.2d In Harmon Rather, adequacy which Middlesex and Forssenius, require providing example, L.Ed.2d 50 the Unit- process adjudication due of the fed ed States Court affirmed the re- rights. provides eral state Once the a fo three-judge abstain, fusal of a court to process, rum that accords the due ground impracticality of refer- the United States Court considers ring the case to the state court because of competent that state forum to be as strict time constraints. Id. adjudication federal courts for the of feder case, however, In the instant See, e.g., al issues. Ohio Civil the masters Schs., Inc., Dayton Comm’n Christian timely, completing have acted their work in 619, 628, 2718, 2723, Secretary time for the California of State (1986) (“We also have no rea proceed with the next elections. There Dayton son to doubt that will receive an has been no reason to that the believe state adequate opportunity to raise its constitu processes completed would not be a time- court].”); tional claims Moore v. [in Moreover, ly opinion fashion. the Harmon Sims, distinguishable pre- further in that it (1979) (“We are un *8 Supreme dates the Court’s in decisions willing processes to conclude that state are Younger and Scott v. Germano. unequal deciding to the task of ... questions.”). constitutional D.

We have no doubt that the state provided proceedings required litigation important here due In over other federal process adjudication rights, the federal the United States Court parties issues. The appeal raised their conten and various federal courts of have consistently applied abstention, tions under both the United States Consti again referring important tution and the Act in principles to the proceedings comity, ability before the masters and before and the federalism litigate the California Court. The Califor state courts to federal constitution- See, expressly recognized e.g., nia Court al issues. Ohio Civil 55, Barchi, 10, cesses, Barry challenge may directly 3. In v. 62 n. in be a 2642, 10, S.Ct. Supreme 2648 n. here do not so chal- court. plaintiff challenges Court said that if a lenge processes. California’s very constitutionality pro- of a state court’s Schs., Inc., courts, allegations and absent Dayton Comm’n v. Christian 619, 106 2718, 91 L.Ed.2d 512 state proceedings U.S. S.Ct. court’s were in bad faith (1986); County unconstitutional, v. State Middlesex Garden or we must abstain and 2515, Ass’n, presume Bar the state courts will safe- Sims, 442 guard Moore v. voting constitutional and rights. Middlesex, U.S. See 457 U.S. at Abrams, (1979); Temple Sheep Lost v. — (2d Cir.), denied, 930 F.2d 178 cert. -, IV. (1991); Duty Shop, Free Inc. v. Adminis required, Where abstention is Rico, tracion de Terrenos de Puerto the state proceeding has been con (1st Cir.1989); F.2d 1181 Beltran cluded, remedy is dismissal. Beltran (9th Cir.1988); California, 871 F.2d 777 California, (9th 871 F.2d 782-83 Bowen, (9th F.2d 1337 Kitchens v. Cir.1988). Cir.1987); ALRB, 805 F.2d Fresh Int’l Cir.1986); (9th Worldwide Church IT IS THEREFORE ORDERED that the (9th Cir.1986).

McNair, 805 F.2d 888 preliminary injunction motions for are de- nied, dismissed, that the action is and that The line of United States Su judgment hereby a of dismissal is entered. preme and circuit court decisions since v. Germano 1965 and Scott virtually is un Younger v. Harris TANG, Judge, dissenting: Circuit

broken, leading all to the same conclusion. Reverend Martin King, Luther proceeding pend That if a state court is country Jr. awakened the conscience of this litigation begun, ing at the time federal to the heart-felt desire of African Ameri- satisfied, if the criteria are Middlesex participate cans and other minorities federal court should abstain. That conclu process equal the American electoral on an particularly in this where sion is true footing: litigants actively participated in the right The denial of this sacred [to vote] proceedings before the masters and the tragic betrayal highest mandates and where both of our democratic traditions and it is the masters and the California democracy upside turned down. gave careful consideration to both rights.4 federal and long firmly I So as do not irrevoca- bly possess right I do not vote The fact that this is a possess myself. up my I cannot make not alter that conclusion. case does up mind—it is made for me. I cannot Germano, 1526; 381 U.S. at citizen, observing democratic live Court, 721 F.2d at Badham v. District helped I have to enact—I can laws Poythress, Duncan v. 657 F.2d to the edict of others. submit 1981) (“An (5th alleged Cir. denial of Jr., not, itself, King, Martin Luther “Give Us the does constitute a Rev. South,” automatically Transform the ad- ‘special circumstance’ which Ballot—We Will abstention.”), May reprinted in precludes federal court cert. dress delivered dismissed, Hope: 74 A Testament The Essential *9 of conferring King, Luther Jr. 197 Writings Absent the Martin of ed., 1986). (James Washington jurisdiction on the federal M. of exclusive ("[W]hen applies, they Younger abstention Plaintiffs’ contention that made a reserva pursuant England v. Louisiana State Bd. claim plaintiffs tion reserve cannot their Examiners, U.S. Medical adjudication for later decision from state court of (1964), return to federal court court.”); Temple see also the federal of adjudication inappo- of the federal for issues 182-83; Abrams, at Sheep 930 F.2d Lost Inc. England reservations are not effective site. Duty Shop, de Terre Inc. v. Administracion Free Younger. under when a federal court abstains Rico, F.2d at 1183. de Puerto nos California, F.2d at n. See Beltran v. King’s plaintiffs' call as the sole Congress answered Reverend adjudication for of their con- Act of federal forum Rights passage of Civil with Voting Rights Act claims. I stitutional and Voting Rights Act of 1965. and the represents an unwarrant- believe that this statutes, provided Congress Through these expansion Younger ed federal role in for an active the framework wholly inconsistent with the doctrine and is vot- enforcement and vindication obligation to federal courts’ constitutional part of its minorities. As ing rights of Congress grants jurisdiction exercise the federal courts with Congress vested plan, them. actions, rights and civil jurisdiction over adjudicate, them to specifically instructed outset, I At the I should note that am court, challenges three-judge

by way of a original wholly in accord with this court’s redistricting plans. reapportionment and judgment pending the decision to withhold 1343, 2284(a); 42 U.S.C. 28 U.S.C. §§ adoption Supreme Court’s final 1971(d), (g). Congress thus envisioned ripeness §§ formula. Both of a play an inte- that the federal courts would Germano, considerations Scott promotion of protection in the gral role U.S. franchise. genuinely pre- a universal against this court’s counselled state’s effort to mature intervention Congress as- Exercising jurisdiction redistricting plan. Where the ma- draft them, federal courts over the last signed part company I is over its deci- jority and to the task of effec- thirty years have risen thereby Younger under sion abstain statutory civ- tuating the and constitutional case from federal court all dismiss this representa- rights Americans. Where il together. advises feder- Scott Germano to civil proved hostile tive bodies fold, stay, courts to not their hand. al claimants, provided courts the federal majority’s prospective decision leaves fed- resolving grievances. hospitable forum litigants whipsawed between the eral court by judi- populated were When local courts ripeness and abstention doctrines. Prior to preserv- with a self-interest cial officials timely adoption of a redis- the state court’s provided quo, status federal courts may not tricting plan, the federal case be from the impartial adjudicators insulated target ripe there is no clear because and racial judicial elections pressures plan plaintiffs’ objections and no deny role that can the critical politics. Few But, majority’s under the court to review. breathing life played in federal courts have ripe opinion, the moment the case becomes Rights Voting Act and the into the Civil the state court due to the conclusion of Rights Act. slams shut the fed- proceedings, Younger decision, this Today, unprecedented in an door. Abstention becomes eral courthouse Con- court retreats from euphemism for the jurisprudential whole- comity gress assigned it in the name Congress’s jurisdiction- sale renunciation majori- Perhaps the towards state courts. assignment. al accurately ty, holding, in so forecasts of federal from the exercise “Abstention legal trend to exalt path of the current in- Supreme Court has jurisdiction,” the judicial etiquette procedural purity and structed, the rule.” exception, “is the I rights. But because be- over substantive Dist. River Conservation Colorado Water Congress’s place to define our lieve it is States, U.S. v. United Congress’s place to deter- jurisdiction and goals of the Civil mine when the adjudicate or even That a state court could accom- Voting Rights Acts have been a claim does not automati- adjudicating judicial role is that a federal plished such “virtually of its cally relieve a district court necessary, respectfully I dissent. longer no obligation to exercise the unflagging ... Congress. given Har- Id. majority holds that [it]” (“ ris, 27 L.Ed.2d see also id. ‘[T]he *10 in the state court is pendency to dismiss of an action requires this court concerning the same action, proceedings in no to leaving discretionary review bar this jurisdic- matter in the federal having to its redistricting plan. And it cannot be tion_”’) McClellan Car (quoting gainsaid that the land, 268, 282, 501, 505, 217 U.S. 30 S.Ct. afforded the plaintiffs process. due But (1910)). Consequently, 54 L.Ed. 762 this analysis paints ab only half a picture. is “only excep Wholly stention warranted the absent from opinion is any tional where the circumstances to the consideration of the countervailing order in- repair to terest in maintaining to the state court would federal light clearly important important serve an countervailing rights federal in- right volved. The County Allegheny v. interest.” to Frank vote sits at very of Co., representative core of Mashuda 185, 188-89, democracy. 360 U.S. It moreover, 1060, 1062-63, self-help. tool for Congres- sional efforts to eliminate discrimination Hosp. see also Moses H. Cone Memorial provision public of Mercury services and the Corp., Constr. 1, 25-26, 460 U.S. workplace could slowly chip away 941-42, at (1983) L.Ed.2d 765 the wall of dividing racism this country. (“[W]e emphasize that our task cases Making right reality vote a for Afri- such this is not to find some substantial minorities, can Americans and other how- for the exercise of federal reason jurisdic ever, shook very foundations of the court; rather, tion the district the task by permitting wall the historical victims of is to ‘excep ascertain whether there exist discrimination to vote out the Jim Crow circumstances, tional’ justi ‘clearest of power ballot,” structure. “Give us the fications,’ justify that can suffice ... Reverend King, urged, Martin Luther Jr. surrender jurisdiction.”) (original “and we will no longer worry have to emphasis). government federal about our basic cases, Abstention in rights more rights.” Hope Testament see over, requires “special consideration” Harman, also 380 U.S. at 85 S.Ct. at solicitude for the cardinal (“[T]he right to vote freely for the involved. Badham v. United Dist. candidate of choice one’s is of the essence (9th Cir.1983) 721 F.2d of a society, democratic restric- (“[Ajbstention orders in cases involving tions on right strike at the heart of require special considera representative government. right tion.”); Forssenius, see also Harman v. preservative fundamental because [it is] 528, 537, 1177, 1183, rights.”) all (quotations and citations omit- L.Ed.2d Sims, ted); Reynolds 561- majority While the dutifully acknowl- edges judicial presumption against ab- (1964) (“Undoubtedly, right suffrage stention, opinion fails to articulate what is a fundamental matter in a free and dem- exceptional special circumstances or consid- ocratic society.... right to exercise [T]he erations mandate this court’s abdication of unimpaired franchise in a free and man- Instead, jurisdiction. majority is con- preservative ner is of other basic civil and ground tent to dismissal on the identifica- political rights.”) “important tion of an state interest” and an scheme, Under our constitutional it assurance that the state court will afford Congress’s prerogative identify certain litigants process. due See Middlesex vote, rights, right such as the as deserv- Ethics County Comm. v. Garden State special protection and to instruct the Ass’n, Bar 423, 432, watchdog courts to act as a 2515, 2521, I believe Lovorn, Hathorn v. rights. those Cf. that, in voting rights cases, least more is 2421, 2431, needed before Younger mandates absten- (1982) J., (Rehnquist, dissent- tion. ing). Congress’s decision to vest federal agree I the State of Voting Rights courts with important an in adjudicating interest challenges consti- Act claims tutional and challenges plans Act just such a calculated and delib- *11 recently country. taken in this It re- assignment responsibility. Con- root erate novelty, a It is thus jurisdiction federal be mains a not a custom. gress considered obduracy the historic let necessary response to much too soon for federal courts to including hostility of state guard. Complacency and their is down officials— attempt- judges minorities progress. thief of social —towards right to ing exercise their constitutional easily in Younger abstention comes availability The of a federal forum vote. Latino, present. Although cases like the convenience, necessity, not a mere was a American, representa- African and Asian attempting eliminate for those “whites- seriously tives contend that their other re- only” suffrage in the South and Voting Rights under the Act are curtailed gions country. of this What would have plan, Court in happened three-judge if courts the 1960s redistricting process of racial was free Alabama, Louisiana, Mississippi, and however, majority’s opinion, The ad- taint. Georgia had done what this court now no distinctions for cases illic- mits of where seriously that such does? Can we contend suspected. pro- What is it discrimination exercise would not a refusal to cedurally might in this case comfortable Congressional have flown the face of not ride so well when a court is confronted Voting protections intent? Were the of the gerrymandering or with evidence of racial Rights Act and the Constitution to be so history voting practices. long of abusive sidestepped by a race to easily Governor’s the local courthouse? Second, panel if even believes suffrage to universal are no racial barriers majority The excuses its abstention deci- longer sufficiently prevalent to demand sion, Congress’s part, on failure to vest judicial supervision, it is not the federal jurisdic- the federal courts with exclusive place judges goals to declare the creating By tion over cases. Acts accom- Civil however, jurisdiction, Congress concurrent plished suspend statutorily-enacted jur- judges plaintiffs meant to afford —the —not provisions. majority’s isdictional The hold- forum in opportunity select best any predicated is not indication that particular voting litigate which to their Congress wishes to decrease the role The mere existence of concur- rights case. in-adjudicating voting rights federal courts give jurisdiction does not rent majority any cite issues. Nor does the power subsequently to judges the veto legislation congressional statements or plaintiff’s proceed decision to suggesting a dismissal in favor of a court. appro- proceeding state court more Admittedly, present redistricting case priate today than it in the would have been social, political, legal in a con- arises specific 1960s. direction from Con- Absent early voting far removed from the text gress, federal courts should not close their plaintiffs rights struggles. do con- seeking forum plaintiffs doors to a federal Court’s tend that litigate Voting Rights Act in which to their animus, plan product is the of racial bias or challenges to a redistrict- constitutional they gerrymander. it a racial nor do label ing scheme. palatability of the instant how- ever, justify majority’s surren- does not Third, availability of certiorari review for three reasons. der of is no in the substitute voting rights dispute in federal

First, litigating a majority’s opinion I fear that the in the first instance. On certiorari the hard procedural tidiness over elevates review, accepts the fac- racism, political reality bigotry, and ma- findings the state court. comprises majority the vast tual chination that Tax voting history. Although Trading Co. country’s of this General Comm’n, granted, genuinely uni- many take it for citizens, Not infre- regardless 88 L.Ed. 1309 for all

versal franchise findings preor- color, quently, factual will race, creed, gender, these or *12 dain the resolution of the constitutional and been subject a truncated and indi- arguments Act by raised rect adjudication by the state forum. plaintiffs. found, Once the facts are it is For instance, as a consequence of this late, review, too on certiorari to unshuffle court’s abstain, decision to plaintiffs these the deck: are left practicable with no opportunity to Limiting litigant here review litigate [in very their serious claims of minori- the Supreme deny would him the Court] ty vote dilution unjustified population benefit of a federal trial court’s role in deviations. That the district lines at issue constructing a record and making fact were not drawn bad faith or with obvi-

findings. How the facts are found will ous racial motivations does not make these often dictate the decision of claims any less deserving of federal court claims. typical, “It is the rare, not the attention or any less critical to achieving ease which constitutional goal claims turn Constitution’s person of one —one upon the vote. resolution of contested factual issues.” sum, the majority’s while decision to England v. Louisiana State Bd. Medi- abstain may appear to be an efficient and Examiners, cal 411, 416-17, diplomatic disposition repercussions (1964) its analysis are ominous. Sain, Although Townsend v. (quoting I do doubt ability many courts fairly adjudicate (1963)). fed- eral voting rights claims, neither can I The adequacy of the proceed- state court my eyes close to the continuing reality of ing is further when, called into doubt as racism and racial gerrymandering in voting here, the state court acted in quasi-legis- practices general, and in the redistricting lative capacity and itself drew the redis- and reapportionment processes in particu- tricting lines. The California lar. The yet time has not come for federal Court as sat both the drafter and the re- courts to surrender their over viewer the redistricting plan. Younger voting rights challenges to state courts. abstention and that, thus dismissal means Moreover, the determination of when the unless the grants certiorari, goals of the Civil and Voting Rights plaintiffs’ federal constitutional and Acts have been accomplished and when the Voting Rights Act claims will never be safety net of a judicial forum no subjected independent by review adjudi- longer necessary should rest with Con- cators uninvolved in the gress, judges. not with I would exercise process. majority cases, cites no nor granted this Con- I any, have supporting found applica- gress and afford the plaintiffs a federal tion abstention to an unre- forum litigation of their constitutional viewed, quasi-legislative pro- state court and Voting Rights Act claims. I therefore ceeding such this. dissent.

Moreover, quasi-legislative proceeding produced no ex-

press findings of fact or of law conclusions

responding plaintiffs’ to the contentions.

Parties, perhaps the United Su-

preme review, Court on certiorari are left legal infer factual rulings from the argumentation Court’s support plan. of its own This court’s precious

abstention thus means that may claims outright be dismissed

federal courts even when those have claims