author:
      Per Curiam. Justice Scalia, Justice Souter,
      Justice Breyer,

text:
    CITY OF MONROE et al. v. UNITED STATES
    No. 97-122.
    Decided November 17, 1997
   Per Curiam.

The United States claims the city of Monroe, Georgia, did not seek preclearance for majority voting in mayoral elections, as required by § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c. The Government seeks to enjoin majority voting and to require Monroe to return to the plurality system it had once used. A three-judge District Court for the Middle District of Georgia agreed with the Government and granted summary judgment. 962 P. Supp. 1501 (1997). The District Court rejected Monroe’s claim that the Attorney General’s preelearance of a 1968 statewide law encompassed Monroe’s adoption of a majority system. On Monroe’s motion, this Court stayed enforcement of the judgment. 521 U. S. 1138 (1997). The ease is now on appeal, and the judgment must be reversed.

I

The parties agree upon the facts. Until 1966, Monroe’s city charter did not specify whether a candidate needed a plurality or a majority vote to win a mayoral election. In practice, the city used plurality voting in its elections until 1966 and majority voting thereafter.

In 1966, the General Assembly of Georgia amended the city’s charter to require majority voting in mayoral elections. 1966 Ga. Laws 2459. Because Monroe is a jurisdiction covered by § 5 of the Voting Rights Act, the change had to be preeleared. Georgia or Monroe could have sought preelearance by submitting the change to the Attorney General or seeking a declaratory judgment from the United States District Court for the District of Columbia. Neither did, so the 1966 charter amendment was not precleared.

In 1968, the General Assembly passed a comprehensive Municipal Election Code (1968 code), which is still in force today. The statute applies to Monroe and all other municipalities in Georgia. Section 34A-1407(a) of the 1968 code has two sentences. The first sentence sets forth a rule of deference to municipal charters:

“If the municipal charter . . . provides that a candidate may be nominated or elected by a plurality . . . , such provision shall prevail.”

The second sentence lays down a state-law default rule for all other cities:

“Otherwise, no candidate shall be ... elected ... [without] a majority of the votes east....” Georgia Municipal Election Code, §34A-1407(a) (1968 code section or § 34A-1407(a)), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993).

Georgia submitted the 1968 code to the Attorney General for preclearance. Its cover letter stated: “ Tn view of the variety of laws which heretofore existed, no effort will be made herein to set forth the prior laws superseded by the Municipal Election Code.’” 962 F. Supp., at 1505. The letter then listed the majority-vote provision as a significant change, noting: “ ‘Whether the majority or plurality rule is in effect in the municipal election will depend upon how the municipality’s charter is written at present or may be written in [the] future ....’” Ibid. The Attorney General objected to other provisions of the 1968 code but did not object to §34A-1407(a), so it was, and is, preeleared. The United States does not dispute this conclusion, nor does it claim Georgia’s submission was misleading, ambiguous, or otherwise defective.

In 1971, the revision of Monroe’s charter. 1971 Ga. Laws 3227. The 1971 charter made explicit provision, for majority voting. Neither Georgia nor Monroe sought to preclear the revisions to the charter.

In 1990, roe’s charter and carried forward the majority-vote requirement. This time, Monroe sent the 1990 charter to the Attorney General for preclearanee, but the cover letter did not mention the majority-vote provision. The Attorney General objected to it nevertheless, interpreting the submission as effecting a change from plurality to majority voting. The Government filed suit against Monroe and city officials in 1994 and prevailed in the District Court.

1 — Í J — 1

The 1968 code must be the centerpiece of this case, for it defers where city charters are specific and provides a default rule where they are not. If a city charter requires plurality voting, the deference rule in the first sentence of the 1968 code section allows the municipal charter provision to take effect. Monroe, however, does not have and has not had a plurality-vote provision in its charter. The first sentence simply does not apply here because no charter provision triggers its rule of deference to municipal law. Thus, the second sentence’s default rule of state law governs, requiring Monroe to use majority voting. Since the Attorney General pre-cleared the default rule, Monroe may implement it.

The District Court reached a contrary conclusion, relying on a single footnote in City of Rome v. United States, 446 U. S. 156, 169-170, n. 6 (1980). As the District Court put it: “The [RomeJ Court’s rationale focused squarely on the notion that [Georgia’s] submission of the 1968 Statewide Code did not put before the Attorney General the propriety of changes in the voting practices of individual cities.” 962 F. Supp., at 1513.

The court’s reliance on the footnote was misplaced. Unlike this ease, which concerns the default rule in the second sentence of the 1968 code section, the City of Rome footnote concerned the deference rule in the first sentence. Rome’s pre-1966 charter had an explicit requirement of plurality voting. When the General Assembly amended Rome’s charter to provide for majority voting, no one sought to preclear this or other changes. “Rome [later] argue[d] that the Attorney General, in preclearing the 1968 Code, [had] thereby approved by reference the City’s 1966 Charter amendments.” City of Rome v. United States, 472 F. Supp. 221, 233 (DC 1979), aff’d, 446 U. S. 156 (1980); see also 472 F. Supp., at 233 (“Rome argues that its Charter, having been amended in 1966 to provide for majority voting, did not provide for plurality voting in 1968, and that therefore the 1968 Code mandated majority voting”). submission

This of the 1968 code did not submit Rome’s 1966 charter for pre-clearance “in an unambiguous and recordable manner.” 446 U. S., at 170, n. 6 (internal quotation marks omitted). Georgia’s submission of the 1968 code “informed the Attorney General only of [Georgia’s] decision to defer to local charters and ordinances regarding majority voting” should a city choose to include a voting provision in its charter as permitted by the deference rule. Ibid, (internal quotation marks omitted; emphasis added). Georgia’s submission of the 1968 code did not give the Attorney General “an adequate opportunity to determine the purpose of [Rome’s 1966] electoral changes and whether they will adversely affect minority voting.” Id., at 169, n. 6. not even

Indeed, arguably constitute a request for preclearan.ce of the 1966 change to Rome’s charter. Given that the unpreeleared charter amendment was a nullity as a matter of federal law, the 1968 code did not change the law in Rome. Rather, it deferred to the plurality-vote requirement in the pre-1966 charter. In this case, however, the 1968 code is what changed the law in Monroe. Accordingly, unless the Attorney General’s preclearanee of the code was a nullity, there has been no violation of the Voting Rights Act. the

In short, submission of the 1968 code to validate the 1966 municipal electoral changes. City of Rome, in discussing the “decision to defer to local charters,” recognized that the case arose under the rule of deference to municipal law. This rule of deference would not have been interpreted to effect a change in the law, and so it did not put the Attorney General on notice of Rome’s shift to majority voting. Because municipal law was dispositive under the first sentence of the 1968 code section, City of Rome said nothing about the state-law default rule of majority voting in the second sentence.

The instant case, in contrast, is controlled by the default rule of state law set forth in the second sentence. Monroe’s pre-1966 charter, unlike Rome’s, did not require plurality voting and so could not trigger the rule of deference to municipal law in the first sentence. Thus Monroe, unlike Rome, does not need to breathe life into its invalid 1966 charter to circumvent the rule of deference. After one disregards Monroe’s invalid 1966 and 1971 charters, the state-law default rule mandates majority voting.

Cases, such as this one, arising under the default rule satisfy all of the preelearance requirements in City of Rome. The Government does not dispute that Georgia submitted the state-law default rule to the Attorney General in an “unambiguous and recordable manner.” The submission, furthermore, gave the Attorney General “an adequate-opportunity to determine the purpose of the [default-rule] electoral changes and whether they will adversely affect minority voting.” In consequence, by preclearing the 1968 code the Attorney General approved the state-law default rule. The controlling default rule having been precleared, Monroe may cohduet elections under its auspices.

Because the 1968 code disposes of the case on this undisputed factual record, the Court need not address appellants’ other contentions. The judgment of the District Court is

Reversed.

Justice Scalia,

concurring in the judgment.

Although I agree with the result reached by the Court, my reasoning is somewhat different. Like Justice Bbeyer, I believe that without knowledge of the contents of city charters the Attorney General could no more have known the precise practical effect of the second sentence of the Georgia statute than he could have known the precise practical effect of the first, see post, at 47-48. But there is, nonetheless, a critical difference between the two sentences. As far as appears, the first sentence (giving effect to plurality voting provisions contained in municipal charters) does not effect any change in voting. To think it did, one would have to suppose that prior to the statute various municipalities were ignoring their charters, which is most unlikely. So the first sentence did not inform the Attorney General “in some unambiguous and recordable manner” that a change was afoot, see City of Rome v. United States, 446 U. S. 156, 169, n. 6 (1980) (internal quotation marks omitted). rule of

The second sentence, majority voting for all municipalities that have not treated the matter in their charters. To think that this effects a change, one need only believe that some municipalities have no charter provision on point, and that a subset of those have adopted a practice of plurality voting. Such a belief is not only reasonable; it is virtually essential unless one is to consider the statute pointless. As to the second sentence, therefore, the Attorney General ought to have known that he was approving a switch to majority voting in some municipalities. If that seemed to him possibly troublesome, I think the burden was upon him to inquire further, and not upon the State, every time it enacts a statewide statute affecting voting, to submit a eity-by-city breakdown of the consequences. City of Rome need not and should not be extended that far.

Justice Souter,

with whom Justice Breyer joins,

dissenting.

In 1968 the Georgia Legislature a tion Code with the following provisions governing the alternatives of plurality and majority voting:

“If the municipal charter... provides that a candidate may he nominated or elected by a plurality of the votes cast . . . , such provision shall prevail. Otherwise, no candidate shall be... elected to public office in any election unless such candidate shall have received a majority of the votes cast . . . .” Georgia Municipal Election Code, § 34A-1407(a), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993).

These provisions were applicable in ways that would result • in no changes in election practices in communities whose charters (so far as otherwise enforceable) provided that a plurality would suffice, whose charters provided that a majority was required, or whose charters were silent but whose practices had been to require a majority. The first sentence quoted from the code (deferring to plurality provisions) would confirm the practice in the first class of municipalities, while the second sentence (a default provision requiring a majority in all other eases) would confirm the practices in the second and third classes. The new code would, however, require a change in the practice in any community whose municipal charter (so far as otherwise enforceable) was silent on the plurality-majority issue, but in which the practice had been to accept a plurality as sufficient.

The 1968 code was submitted to the Attorney General of the United States for preclearance under § 5 of the Voting Rights Act, 42 U. S. C. § 1973c (since the entire State of Georgia was, and remains, subject to § 5), and the Attorney General approved the provisions in question. In two instances we have been presented with a question whether application of the default provision to effect a change in practice to majority voting was precleared by virtue of the blanket pre-clearance of the default provision. In the first case, City of Rome v. United States, 446 U. S. 156 (1980), we answered no; in the second ease, this one, the answer should be the same.

case, provision that was valid and enforceable when the 1968 code was precleared provided expressly for plurality voting. Therefore, the code’s deference provision applied and the plurality rule remained the rule under the code. Rome argued, however, that the default provision should be applied so as effectively to validate an unprecleared 1966 municipal charter change to an express majority requirement. This Court rejected the argument in these words:

“We also reject the appellants’ argument that the majority vote, runoff election, and numbered posts provisions of the city’s charter have already been precleared by the Attorney General because in 1968 the State of Georgia submitted, and the Attorney General precleared, a comprehensive Municipal Election Code that is now Title 34A of the Code of Georgia. Both the relevant regulation, 28 CFR § 51.10 (1979), and the decisions of this Court require that the jurisdiction ‘in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney Genéral with a request for his consideration pursuant to the Act,’ Allen v. State Board of Elections, 393 U. S. 544, 571 (1969), and that the Attorney General be afforded an ' adequate opportunity to determine the purpose of the electoral changes and whether they will adversely affect minority voting in that jurisdiction, see United States v. Board of Commissioners of Sheffield, Ala., 435 U. S. 110, 137-138 (1978). Under this standard, the State’s 1968 submission cannot be viewed as a submission of the city’s 1966 electoral changes, for, as the District Court noted, the State’s submission informed the Attorney General only of ‘its decision to defer to local charters and ordinances regarding majority voting, runoff elections, and numbered posts,’ and ‘did not. . . submit in an “unambiguous and recordable manner” all municipal charter provisions, as written in 1968 or as amended thereafter, regarding these issues.’ 472 F. Supp. 221, 233 (DC 1979).” 446 U. S., at 169-170, n. 6.

Since the Attorney General had never been shown Rome’s 1966 municipal charter change (much less precleared it), he had never had an “adequate opportunity” to determine the purpose and effect of the proposed “electoral ehang[e]” from plurality to majority, not in 1966 (because preclearanee had not been sought) and not in 1968 (because he was not apprised of the purported 1966 change necessary to produce a majority vote requirement under the 1968 code).

Monroe now claims the benefit of the 1968 code’s default provision, in circumstances just like Rome’s, with one distinction. Monroe, too, obtained a 1966 charter change purporting to enact a majority requirement, for which Monroe, too, failed to seek preclearanee. But Monroe could arguably enforce a majority requirement even if the 1966 unpreeleared charter amendment were ignored, simply by applying the code’s default provision to the circumstances that preceded the unpreeleared 1966 amendment: before that amendment, although Monroe’s charter was silent on the plurality-majority issue, the municipal practice (perfectly valid for purposes of § 5) was to accept a plurality as sufficient. Thus, the unpreeleared 1966 charter change could be ignored in Monroe’s case (as it was in Rome’s) and the default provision of the 1968 code would make Monroe a majority vote municipality.

As a predicate for applying the 1968 code to effect majority voting requirements, however, this distinction between Rome’s unpreeleared 1966 change and Monroe’s valid pre-1966 silent charter is not entitled to make any difference. The object of the preclearanee requirement is, at a minimum, to apprise the Attorney General of any change in voting practice. Section 5 requires preclearanee not only in the ease of a change of a voting “standard” that was not in place when the Voting Rights Act took effect, but also of a change in a “practice” or “procedure.” 42 U. S. C. § 1973c. The point of the preclearanee procedure is to determine whether the change proposed reflects either a “purpose” or will have the “effect” of forbidden abridgment of voting rights. Ibid. A new practice and a new effect could result not only from applying the code’s default provision to an invalid (because unpreeleared) charter revision, but also from applying it to a perfectly valid charter provision and practice. In either case, on the sensible reasoning of City of Rome, there can be no preelearance of a new practice unless the Attorney General is unambiguously put on notice of it. See 446 U. S., at 169-170, n. 6. Thus, Monroe is in no different position from Rome. Neither Rome nor the State ever disclosed the 1966 charter change on which the default provision might operate to provide a new majority vote requirement; neither Monroe nor the State ever disclosed the pre-1966 charter silence on which the default provision might operate to provide a new majority vote requirement. Alternative analy-ses, leading to the conclusion that the Attorney General’s preelearance of the relevant section of the 1968 code also preeleared its undisclosed effects, are not only at odds with the unambiguous language of § 5 of the Voting Rights Act, but imply that the Attorney General was quite the cavalier when he approved the default provision in 1968. Since no particular charter provisions were submitted to him along with the 1968 code, City of Rome, supra, he was not on notice of any particular effect that might result from application of the default provision. It is therefore unreasonable to suppose that his approval of the code was meant to pre-clear its undisclosed applications even as to otherwise valid charter provisions and municipal practices.

Justice Breyer,

with whom Justice Souter joins,

dissenting.

City of Rome v. United States, 446 U. S. 156 (1980), focused upon a change in Rome, Georgia’s, method of electing city officials — a change from “first-past-the-post” (plurality wins) to “run-off” (majority needed to win). The change took place in 1966. The change was of a kind that could have made it more difficult for newly enfranchised black voters to elect a mayor (e. g., where the black population of a town amounted, say, to 35% of all voters). The change had not been preeleared, though §5 of the Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973c, required preelearance. In 1968, however, Georgia had preeleared a different change in its law. Georgia had submitted, and the Attorney General had precleared, a comprehensive Municipal Election Code that provided, in relevant part:

“If the municipal charter .. . provides that a candidate may be nominated or elected by a plurality of the votes east. . . , such provision shall prevail. Otherwise, no candidate shall be . . . elected to public office in any election unless such candidate shall have received a majority of the votes cast . . . .” Georgia Municipal Election Code, § 34A-1407(a), 1968 Ga. Laws 977, as amended, Ga. Code Ann. § 21-3-407(a) (1993).

Rome argued that the Attorney General’s preclearance of this 1968 change in effect preeleared the plurality-to-majority change that Rome had made two years earlier. The Court rejected Rome’s argument.

The ease before us now involves another Georgia city, the city of Monroe. Monroe, like Rome, made a change in its system for electing eity officials — a change from “first-past-the-post” (plurality wins) to “run-off” (majority needed to win). Monroe, like Rome, made the change in 1966. And, Monroe’s change, like Rome’s change, was not preeleared. Monroe, like Rome, argues that the Attorney General’s pre-clearance of Georgia’s 1968 change in effect precleared its change to a majority system. Monroe acknowledges that this Court, in City of Rome, supra, rejected Rome’s similar claim. But it asks us to note probable jurisdiction in part to “address the impact of the Attorney General’s preelear-anee of the 1968 Municipal Elections Code as it relates to the majority vote requirement.” Juris. Statement 17. In my view, the circumstances here are virtually identical to those at issue in City of Rome, and this Court’s rejection of Rome’s argument there requires us to reject Monroe’s similar argument here.

I rest this conclusion upon the Court in City of Rome and what the Court wrote. Rome, like Monroe, claimed that, in preclearing the 1968 statewide statute, the Attorney General had precleared its local majority system. The reply, by the United States, in City of Rome, included the following argument:

“In its 1968 submission, the State did not ‘submit’ the changes as they applied to the City of Rome. There was no explanation of how, or even whether, the City’s procedures were changed. In order to ‘submit’ a new procedure, the change must be clearly explained to the Attorney General, 28 C.F.R. 51.10; he cannot reasonably be held to be put on notice of the election procedures for every municipality when an act with statewide effect is submitted. As this Court [has] held, preelearanee cannot occur until the particular change has been submitted to the Attorney General and he has been afforded an opportunity to assess its purpose and its effect on minority voting in that jurisdiction.” Brief for Appellees in City of Rome v. United States, O. T. 1979, No. 78-1840, pp. 69-70 (citation omitted).

This Court, accepting the argument of the United States, wrote:

“Both the relevant regulation, 28 CFR § 51.10 (1979), and the decisions of this Court require that the jurisdiction fin some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act,’ and that the Attorney General be afforded an adequate opportunity to determine the purpose of the electoral changes and whether they will adversely affect minority voting in that jurisdiction. Under this standard, the State’s 1968 [preclearanee] submission cannot be viewed as a submission of the city’s 1966 electoral changes, for, as the District Court noted, the- State’s submission informed the Attorney General only of ‘its decision to defer to local charters and ordinances regarding majority voting,. . .’ and ‘did not. . . submit in an “unambiguous and recordable manner” all municipal charter provisions, as written in 1968 or as amended thereafter, regarding th[is] issu[e].’ ” City of Rome v. United States, supra, at 169-170, n. 6 (citations omitted).

It seems to me that this statement disposes of the ease before us. The statement points out that Georgia’s 1968 submission did not describe the effect of its 1968 changes, town by town, in each of Georgia’s more than 500 towns and cities. The statement specifically says that Georgia’s simple “submission” of its 1968 comprehensive municipal code did not preclear Rome’s “1966 electoral chang[e]” because Georgia did not also “submit” the relevant “municipal charter provisions, as written in 1968 or as amended thereafter.” Georgia did not submit Monroe’s charter to the Attorney General in 1968 any more than it submitted Rome’s; nor is there any reason to believe that the Attorney General knew the details of Monroe’s circumstances any more than he knew the details of Rome’s. Hence, as the District Court concluded in this ease, the 1968 preclearanee did not preelear Monroe’s earlier 1966 change. City of Rome, supra.

The majority’s decision to the contrary rests upon one factual difference between Rome and Monroe. The difference consists of the fact that Rome’s original pre-1966 “first-past-the-post” plurality system was written into Rome’s city charter. But Monroe’s original pre-1966 “first-past-the-post” plurality system was a matter of practice. Its pre-1966 city charter was silent. This difference means that, had a court set aside the 1966 changes in each city, and were no other change to have taken place, then Rome would have been left with a city charter that prescribed a plurality rule, while Monroe would have been left with a silent city charter and a plurality practice. The preeleared 1968 state law, if left free to operate on these different circumstances, would have left Rome with a plurality rule (for its pre-1966 city charter contained that rule), but would have changed Monroe’s plurality practice to a majority practice (for its pre-1966 city charter was silent). The

This complex Attorney General, in 1968, was no more likely to have known about Monroe’s change from “plurality-practice” to “majority-charter” than to have known about Rome’s change from “plurality-charter” to “majority-charter.” Nor is there any reason to believe the Attorney General, in 1968, would, have wanted to approve previously unprecleared changes of the former, but not of the latter, variety. There is no more reason to believe that the Attorney General, had he known about Monroe’s 1966 change, would have approved the application of the 1968 law to Monroe, than to believe that the Attorney General, had he known about Rome’s change, would have approved the application of the 1968 law to Rome. Indeed, if Monroe’s black population in 1966 was as high as it is today (87% of the electorate), Monroe’s change to a majority vote system could have been precisely the sort of discriminatory change at which the Voting Rights Act was directed.

The majority, and Justice Scalia, make a further argument resting upon a distinction between the first and second sentences of the 1968 code that the Attorney General pre-eleared. The majority says, for example, that City of Rome “said nothing about the state-law default rule of majority voting in the second sentence,” ante, ■ at 89; and Justice Scalia refers to a “second senténee.. . default rule of majority voting for all municipalities that have not treated the matter in their charters,” ante, at 40. The majority then finds that the Attorney General precleared the second-sentence default rule as applied to Monroe, apparently because it believes that “[t]he Government does not dispute that Georgia submitted the state-law default rule to the Attorney General in an 'unambiguous and recordable manner,’ ” ante, at 39. Justice Scalia reaches the same conclusion, not because of the Government’s position, but because, in his view, the “burden was upon” the Attorney General to seek more information about the “eity-by-eity” effects of the statute at the time it was submitted. Ante, at 40.

A glance at the Georgia statute, supra, at 45, will make clear, however, just how finely the majority has had to parse the statute in its effort to escape the binding effect of precedent. That is because City of Rome (involving a city with a “majority” chartér) and this case both concern the statute’s second sentence. See Brief for Appellants in City of Rome v. United States, O. T. 1979, No. 78-1840, p. 90; City of Rome v. United States, 472 F. Supp. 221, 238 (DC 1979) (“Rome argues that. . . the 1968 Code mandated majority voting”) (emphasis added). And nowhere does either the statute’s second sentence or City of Rome explicitly make the default/ deference distinction that the majority finds critical.

More importantly, there is no reason to think the distinction is critical in respect to the matter here at issue. The Government has not conceded, silently or otherwise, that the Attorney General’s preelearance of a statutory “default rule” somehow precleared the application of some such rule to Monroe. To the contrary, the Government’s argument, which concerns all applications of the “majority” language in the 1968 code’s second sentence, is that:

“[Pjreclearance of the majority vote provision incorporated in the State of Georgia’s 1968 Municipal Election Code did not also preclear the prior or subsequent adoption and implementation of a majority vote requirement by any particular municipality within the State.” Motion to Affirm 11.

That argument rather clearly says that the Attorney General, in effect, preeleared the Georgia statute on its face, not as applied to each of Georgia’s several hundred municipalities. That is the very argument that the Government made, and the Court accepted, in City of Rome. of the

Justice Scalia does not Government’s argument. Rather, he says that, in any event, the Attorney General’s initial preelearanee of the second sentence simultaneously preeleared that sentence’s application because the State’s submission was detailed enough to impose upon the Attorney General the “burden” of seeking detailed city-by-eity information. Ante, at 40. In my view, however, precedent compels a contrary conclusion. In respect to the relevant point — whether the Attorney General cleared the statute on its face or also as applied — one cannot distinguish the issue before us from the (in this respect) identical issue in City of Rome. And that conclusion is consistent with well-established legal principle. See Clark v. Roemer, 500 U. S. 646, 656 (1991) (“[A]ny ambiguity in the scope of a preclearance request must be resolved against the submitting authority”); McCain v. Lybrand, 465 U. S. 286, 257 (1984) (same); 28 CFR §§ 51.26(d), 51.27(c) (1997) (requiring preclearance submissions to explain changes clearly and in detail).

In a nutshell, City of Rome turns on the practical fact that the Attorney General, in preclearing the 1968 Georgia statute, would not have intended to preclear earlier, potentially unlawful, local changes of which he had not specifically been told. Rome was one such city. Monroe was another. The District Court consequently concluded that the Attorney General’s preclearanee of the 1968 statute did not preclear Monroe’s earlier change, any more than it did Rome’s. I agree with the District Court and would affirm its judgment.

       My analysis entails a modest but nonetheless discernible scope for the Attorney General’s preclearance of the 1968 deferral and default provisions. The preclearance may have left the provisions enforceable insofar as they would result in ratification of prior, valid municipal practices (assuming that preclearance was necessary as to such applications); in any case, the preelearance amounted to findings that the default provision did not as such represent an intent to affect minority voting adversely, and that some applications of the provision would presumably be possible without adverse effects.


source: Caselaw Access Project

author: Justice Kennedy

license: Public Domain

text:
    SALINAS v. UNITED STATES
    No. 96-738.
    Argued October 8, 1997
    Decided December 2, 1997

      Kennedy, J., delivered the opinion for a unanimous Court.

      Francisco J. Enriquez argued the cause for petitioner. With him on the brief was Rolando Cantu. Gerald H. Gold-stein and Cynthia Hujar Orr filed a brief for Brigido Mar-mole jo, Jr., as respondent under this Court’s Rule 12.6, in support of petitioner.

      Paul R. Q. Wolf son argued the cause for the United States. With him on the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney,

      Deputy Solicitor General Dreében, Joel M. Gershowitz, and Richard A. Friedman

        Joshua L. Dratel, Richard A. Greenberg, and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

   Justice Kennedy

delivered the opinion of the Court.

The ease before us presents two questions: First, is the federal bribery statute codified at 18 U. S. C. § 666 limited to eases in which the bribe has a demonstrated effect upon federal funds? Second, does the conspiracy prohibition contained in the Racketeer Influenced and Corrupt Organizations Act (RICO) apply only when the conspirator agrees to commit two of the predicate acts RICO forbids? Ruling against the petitioner on both issues, we affirm the judgment of the Court of Appeals for the Fifth Circuit.

I

This federal prosecution arose from a bribery scheme operated by Brigido Marmolejo, the Sheriff of Hidalgo County, Texas, and petitioner Mario Salinas, one of his principal deputies. In 1984, the United States Marshals Service and Hidalgo County entered into agreements under which the county would take custody of federal prisoners. In exchange, the Federal Government agreed to make a grant to the county for improving its jail and also agreed to pay the county a specific amount per day for each federal prisoner housed. Based on the estimated number of federal prisoners to be maintained, payments to the county were projected to be $915,785 per year. The record before us does not disclose the precise amounts paid. It is uncontested, however, that in each of the two periods relevant in this case the program resulted in federal payments to the county well in excess of the $10,000 amount necessary for coverage under 18 U. S. C. § 666. (We denied certiorari on the question whether the moneys paid to the county were “benefits” under a “Federal program” under § 666(b), and we assume for purposes of this opinion that the payments fit those definitions.)

Homero Beltran-Aguirre was one of the federal prisoners housed in the jail under the arrangement negotiated between the Marshals Service and the county. He was incarcerated there for two intervals, first for 10 months and then for 5 months. During both custody periods, Beltran paid Marmo-lejo a series of bribes in exchange for so-called “contact visits” in which he remained alone with his wife or, on other occasions, his girlfriend. Beltran paid Marmolejo a fixed rate of $6,000 per month and $1,000 for each contact visit, which occurred twice a week. Petitioner Salinas was the chief deputy responsible for managing the jail and supervising custody of the prisoners. When Marmolejo was not available, Salinas arranged for the contact visits and on occasion stood watch outside the room where the visits took place. In return for his assistance with the scheme, Salinas received from Beltran a pair of designer watches and a pickup truck.

Salinas and Marmolejo were indicted and tried together, but only Salinas’ convictions are before us. Salinas was charged with one count of violating RICO, 18 U. S. C. § 1962(e), one count of conspiracy to violate RICO, § 1962(d), and two counts of bribery in violation of § 666(a)(1)(B). The jury acquitted Salinas on the substantive RICO count, but convicted him on the RICO conspiracy count and the bribery counts. A divided panel of the Court of Appeals for the Fifth Circuit affirmed, United States v. Marmolejo, 89 F. 3d 1185 (1996), and we granted certiorari, 519 U. S. 1148 (1997). To resolve the ease, we consider first the bribery scheme, then the conspiracy.

II

Salinas contends the Government must prove the bribe in some way affected federal funds, for instance by diverting or misappropriating them, before the bribe violates § 666(a)(1)(B). The relevant statutory provisions are as follows:

“(a) Whoever, if the circumstance described in subsection (b) of this section exists—
“(1) being an an local, or Indian tribal government, or any agency thereof—
“(B) corruptly... accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or
“shall be fined under this title, imprisoned not more than 10 years, or both.
“(b) The circumstance referred to in subsection (a) of this section is that the organization, government, • or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
“(d) As used in this section—
“(5) the term fin any one-year period’ means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense.” 18 U. S. C. § 666.

The enactment’s expansive, unqualified language, both as to the bribes forbidden and the entities covered, does not support the interpretation that federal funds must be affected to violate § 666(a)(1)(B). Subject to the $5,000 threshold for the business or transaction in question, the statute forbids acceptance of a bribe by a covered official who intends “to be influenced or rewarded in connection with any business, transaction, or series of transactions of [the defined] organization, government or agency.” § 666(a)(1)(B). The prohibition is not confined to a business or transaction which affects federal funds. The word “any,” which prefaces the business or transaction clause, undercuts the attempt to impose this narrowing construction. See United States v. James, 478 U. S. 597, 604-605, and n. 5 (1986); Trainmen v. Baltimore & Ohio R. Co., 381 U. S. 519, 529 (1947).

Furthermore, the broad definition of the “circumstances” to which the statute applies provides no textual basis for limiting the reach of the bribery prohibition. The statute applies to all cases in which an “organization, government, or agency” receives the statutory amount of benefits under a federal program. § 666(b). The language reaches the scheme alleged, and proved, here.

Neither does the statute limit the type of bribe offered. It prohibits accepting or agreeing to accept “anything of value.” § 666(a)(1)(B). The phrase encompasses all transfers of personal property or other valuable consideration in exchange for the influence or reward. It includes, then, the personal property given to Salinas in exchange for the favorable treatment Beltran secured for himself. The statute’s plain language fails to provide any basis for limiting § 666(a)(1)(B) to bribes affecting federal funds.

Salinas attempts to circumscribe the statutory text by pointing to its legislative history. • “Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. ‘[OJnly the most extraordinary showing of contrary intentions’ in the legislative history will justify a departure from that language.” United States v. Albertini, 472 U. S. 675, 680 (1985) (citations omitted) (quoting Garcia v. United States, 469 U. S. 70, 75 (1984)); see also Ardestani v. INS, 502 U. S. 129, 135 (1991) (courts may deviate from the plain language of a statute only in “‘rare and exceptional circumstances’”).

The construction in light of the statutory framework in existence before § 666 was enacted and the expanded coverage prescribed by the new statute. Before § 666 was enacted, the federal criminal code contained a single, general bribery provision codified at 18 U. S. C. § 201. Section 201 by its terms applied only to “public offieial[s],” which the statute defined as “officer[s] or employee[s] or personfe] acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch.” § 201(a). The Courts of Appeals divided over whether state and local employees could be considered “public officials” under § 201(a). Compare United States v. Del Toro, 513 F. 2d 656, 661-662 (CA2), cert. denied, 423 U. S. 826 (1975), with United States v. Mosley, 659 F. 2d 812, 814-816 (CA7 1981), and United States v. Hinton, 683 F. 2d 195, 197-200 (CA7 1982), aff’d sub nom. Dixson v. United States, 465 U. S. 482 (1984). Without awaiting this Court’s resolution of the issue in Dixson, Congress enacted § 666 and made it clear that federal law applies to bribes of the kind offered to the state and local officials in Del Toro, as well as those at issue in Mosley and Hinton.

As strate, § 666(a)(1)(B) was designed to extend federal bribery prohibitions to bribes offered to state and local officials employed by agencies receiving federal funds. It would be incongruous to restrict §666 in the manner Salinas suggests. The facts and reasoning of Del Toro give particular instruction in this respect. In that case, the Second Circuit held that a city employee was not a “public official” under § 201(a) even though federal funds would eventually cover 100% of the costs and 80% of the salaries of the program he administered. 513 F. 2d, at 662. Because the program had not yet entered a formal request for federal funding, the Second Circuit reasoned, “[t]here were no existing committed federal funds for the purpose.” Ibid. The enactment of § 666 forecloses this type of limitation. Acceptance of Salinas’ suggestion that a bribe must affect federal funds before it falls within § 666(a)(1)(B) would run contrary to the statutory expansion that redressed the negative effects of the Second Circuit’s narrow construction of § 201 in Del Toro. We need not consider whether the statute requires some other kind of connection between a bribe and the expenditure of federal funds, for in this case the bribe was related to the housing of a prisoner in facilities paid for in significant part by federal funds themselves. And that relationship is close enough to satisfy whatever connection the statute might require.

Salinas argues in addition that our decisions in Gregory v. Ashcroft, 501 U. S. 452 (1991), and McNally v. United States, 483 U. S. 350 (1987), require a plain statement of congressional intent before § 666(a)(1)(B) can be construed to apply to bribes having no effect on federal funds. In so arguing, however, Salinas makes too much of Gregory and McNally. In each of those cases, we confronted a statute susceptible of two plausible interpretations, one of which would have altered the existing balance of federal and state powers. We concluded that, absent a clear indication of Congress’ intent to change the balance, the proper course was to adopt a construction which maintains the existing balance. Gregory, supra, at 460-461; see also McNally, supra, at 360.

“No rule of construction, however, requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope ....” United States v. Raynor, 302 U. S. 540, 552 (1938). As we held in Albertini, supra, at 680:

“Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature. Heckler v. Mathews, 465 U. S. 728, 741-742 (1984). Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution. United States v. Locke, 471 U. S. 84, 95-96 (1985).”

These principles apply to the rules of statutory construction we have followed to give proper respect to the federal-state balance. As we observed in applying an analogous maxim in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), “[w]e cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question.” Id., at 57, n. 9 (internal quotation marks omitted). Gregory itself held as much when it noted the principle it articulated did not apply when a statute was unambiguous. See 501 U. S., at 467. A statute can be unambiguous without addressing every interpretive theory offered by a party. It need only be “plain to anyone reading the Act” that the statute encompasses the conduct at issue. Ibid. Compare United States v. Bass, 404 U. S. 386, 349-350 (1971) (relying on Congress’ failure to make a clear statement of its intention to alter the federal-state balance to construe an ambiguous firearm-possession statute to apply only to firearms affecting commerce), with United States v. Lopez, 514 U. S. 549, 561-562 (1995) (refusing to apply Bass to read a similar limitation into an unambiguous firearm-possession statute).

The plain-statement and McNally does not warrant a departure from the statute’s terms. The text of § 666(a)(1)(B) is unambiguous on the point under consideration here, and it does not require the Government to prove federal funds were involved in the bribery transaction.

Furthermore, there is no serious tutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(1)(B)’s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds. See Westfall v. United States, 274 U. S. 256, 259 (1927).

In so holding, we do not address § 666(a)(1)(B)’s applicability to intangible benefits such as contact visits, because that question is not fairly included within the questions on which we granted certiorari. See Yee v. Escondido, 503 U. S. 519, 533 (1992). Nor do we review the Court of Appeals’ determination that the transactions at issue “involved] any thing of value of $5,000 or more,” since Salinas does not offer any cognizable challenge to that aspect of the Court of Appeals’ decision. We simply decide that, as a matter of statutory construction, § 666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds and that under this construction the statute is constitutional as applied in this case.

HH HH HH

Salinas directs his second challenge to his conviction for conspiracy to violate RICO. There could be no conspiracy offense, he says, unless he himself committed or agreed to commit the two predicate acts requisite for a substantive RICO offense under § 1962(c). Salinas identifies a conflict among the Courts of Appeals on the point. Decisions of the First, Second, and Tenth Circuits require that, under the RICO conspiracy provision, the defendant must himself commit or agree to commit two or more predicate acts. See United States v. Sanders, 929 F. 2d 1466, 1473 (CA10), cert. denied, 502 U. S. 846 (1991); United States v. Ruggiero, 726 F. 2d 913, 921 (CA2), cert. denied sub nom. Rabito v. United States, 469 U. S. 831 (1984); United States v. Winter, 663 F. 2d 1120, 1136 (CA1), cert. denied, 460 U. S. 1011 (1983). Eight other Courts of Appeals, including the Fifth Circuit in this case, take a contrary view. See United States v. Pryba, 900 F. 2d 748, 760 (CA4), cert. denied, 498 U. S. 924 (1990); United States v. Kragness, 830 F. 2d 842, 860 (CA8 1987); United States v. Neapolitan, 791 F. 2d 489, 494-500 (CA7), cert. denied, 479 U. S. 940 (1986); United States v. Joseph, 781 F. 2d 549, 554 (CA6 1986); United States v. Adams, 759 F. 2d 1099, 1115-1116 (CA3), cert. denied, 474 U. S. 971 (1985); United States v. Tille, 729 F. 2d 615, 619 (CA9), cert. denied, 469 U. S. 845 (1984); United States v. Carter, 721 F. 2d 1514, 1529-1531 (CA11), cert. denied sub nom. Morris v. United States, 469 U. S. 819 (1984).

Before turning to the substantive RICO offense, which was the goal of the conspiracy alleged in the indictment. It provides:

“It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).

The elements predominant in a subsection (e) violation are: (1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 496 (1985). “Pattern of racketeering activity” is a defined term and requires at least two acts of “racketeering activity,” the so-called predicate acts central to our discussion. 18 U. S. C. § 1961(5). “Racketeering activity,” in turn, is defined to include “any act... involving... bribery .. . which is chargeable under State law and punishable by imprisonment for more than one year.” § 1961(1)(A). The Government’s theory was that Salinas himself committed a substantive § 1962(c) RICO violation by conducting the enterprise’s affairs through a pattern of racketeering activity that included acceptance of two or more bribes, felonies punishable in Texas by more than one year in prison. See Tex. Penal Code Ann. § 36.02(a)(1) (1994). The jury acquitted on the substantive count. Salinas was convicted of conspiracy, however, and he challenges the conviction because the jury was not instructed that he must have committed or agreed to commit two predicate acts himself. His interpretation of the conspiracy statute is wrong.

The RICO conspiracy statute, simple in formulation, provides:

“It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (e) of this section.” 18 U. S. C. § 1962(d).

There is no requirement of some overt act or specific act in the statute before us, unlike the general conspiracy provision applicable to federal crimes, which requires that at least one of the conspirators have committed an “act to effect the object of the conspiracy.” § 371. The RICO conspiracy provision, then, is even more comprehensive than the general conspiracy offense in § 371.

In interpreting the provisions of § 1962(d), we adhere to a general rule: When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. See Morissette v. United States, 342 U. S. 246, 263 (1952). The relevant statutory phrase in § 1962(d) is “to conspire.” We presume Congress intended to use the term in its conventional sense, and certain well-established principles follow.

A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 253-254 (1940). The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other. See Pinkerton v. United States, 828 U. S. 640, 646 (1946) (“And so long as the partnership in crime continues, the partners act for each other in carrying it forward”). If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators. As Justice Holmes observed: “[Pjlainly a person may conspire for the commission of a crime by a third person.” United States v. Holte, 236 U. S. 140, 144 (1915). A person, moreover, may be liable for conspiracy even though he was incapable of committing the substantive offense. United States v. Rabinowich, 238 U. S. 78, 86 (1915).

The point Salinas principles, and is refuted by Bannon v. United States, 156 U. S. 464 (1895). There the defendants were charged with conspiring to violate the general conspiracy statute, id., at 464, which requires proof of an overt act. See supra, at 63. One defendant objected to the indictment because it did not allege he had committed an overt act. See Bannon, supra, at 468. We rejected the argument because it would erode the common-law principle that, so long as they share a common purpose, conspirators are liable for the acts of their co-conspirators. We observed in Bannon: “To require an overt act to be proven against every member of the conspiracy, or a distinct act connecting him with the combination to be alleged, would not only be an innovation upon established principles, but would render most prosecutions for the offence nugatory.” 156 U. S., at 469. The RICO conspiracy statute, § 1962(d), broadened conspiracy coverage by omitting the requirement of an overt act; it did not, at the same time, work the radical change of requiring the Government to prove each conspirator agreed that he would be the one to commit two predicate acts.

Our recitation of conspiracy rary understanding. When Congress passed RICO in 1970, see Pub. L. 91-452, § 901(a), 84 Stat. 941, the American Law Institute’s Model Penal Code permitted a person to be convicted of conspiracy so long as he “agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime.” Model Penal Code § 5.03(1)(a) (1962). As the drafters emphasized, “so long as the purpose of the agreement is to facilitate commission of a crime, the actor need not agree ‘to commit’ the crime.” American Law Institute, Model Penal Code, Tent. Draft No. 10, p. 117 (1960). The Model Penal Code still uses this formulation. See Model Penal Code § 5.03(1)(a), 10 U. L. A. 501 (1974).

A conspirator must intend to farther an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime’s completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself. See Callanan v. United States, 364 U. S. 587, 594 (1961).

It makes no difference that the substantive offense under § 1962(e) requires two or more predicate acts. The interplay between subsections (e) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense. True, though an “enterprise” under § 1962(e) can exist with only one actor to conduct it, in most instances it will be conducted by more than one person or entity; and this in turn may make it somewhat difficult to determine just where the enterprise ends and the conspiracy begins, or, on the other hand, whether the two crimes are coincident in their factual circumstances. In some eases the connection the defendant had to the alleged enterprise or to the conspiracy to further it may be tenuous enough so that his own commission of two predicate acts may become an important part of the Government’s case. Perhaps these were the considerations leading some of the Circuits to require in conspiracy eases that each conspirator himself commit or agree to commit two or more predicate acts. Nevertheless, that proposition cannot be sustained as a definition of the conspiracy offense, for it is contrary to the principles we have discussed.

In the case before us, even agree to accept two bribes, there was ample evidence that he conspired to violate subsection (c). The evidence showed that Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under § 1962(d).

As a final matter, Salinas says his statutory interpretation is required by the rule of lenity. The rule does not apply when a statute is unambiguous or when invoked to engraft an illogical requirement to its text. See United States v. Skabani, 518 U. S. 10, 17 (1994).

The judgment of the Court of Appeals is

Affirmed.


author: Justice Souter

text:
    FOSTER, GOVERNOR OF LOUISIANA, et al. v. LOVE et al.
    No. 96-670.
    Argued October 6, 1997
    Decided December 2, 1997

      Souter, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined.

      Richard P. Ieyoub, Attorney General of Louisiana, argued the cause for petitioners. With him on the briefs were Roy A. Mongrue, Jr., and Angie Rogers Laplace, Assistant Attorneys General.

      M. Miller Baker argued the cause him on the brief were John W. Perry, Jr., Daniel J. Balhoff, Thomas E. Balhoff, Judith R. Atkinson, and Brian M. Tauscher.

   Justice Souter

delivered the opinion of the Court

Under 2 U. S. C. §§ 1 and 7, the Tuesday after the first Monday in November in an even-numbered year “is established” as the date for federal congressional elections. Louisiana’s “open primary” statute provides an opportunity to fill the offices of United States Senator and Representative during the previous month, without any action to be taken on federal election day. The issue before us is whether such an ostensible election runs afoul of the federal statute. We hold that it does.

I

The Elections Clause of the Constitution, Art. I, § 4, cl. 1, provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, see Storer v. Brown, 415 U. S. 724, 730 (1974), but only so far as Congress declines to pre-empt state legislative choices, see Roudebush v. Hartke, 405 U. S. 15, 24 (1972) (“Unless Congress acts, Art. I, § 4, empowers the States to regulate”). Thus it is well settled that the Elections Clause grants Congress “the power to override state regulations” by establishing uniform rules for federal elections, binding on the States. U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 832-833 (1995). “[T]he regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.” Ex parte Siebold, 100 U. S. 371, 384 (1880).

One congressional rule adopted under the Elections Clause (and its counterpart for the Executive Branch, Art. II, § 1, cl. 3) sets the date of the biennial election for federal offices. See 2 U. S. C. §§ 1, 7; 3 U. S. C. § 1. Title 2 U. S. C. §7 was originally enacted in 1872, and now provides that “[t]he Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.” This provision, along with 2 U. S. C. § 1 (setting the same rule for electing Senators under the Seventeenth Amendment) and 3 U. S. C. § 1 (doing the same for selecting Presidential electors), mandates holding all elections for Congress and the Presidency on a single day throughout the Union.

In 1975, Louisiana adopted a new statutory scheme for electing United States Senators and Representatives. In October of a federal election year, the State holds what is popularly known as an “open primary” for congressional offices, La. Rev. Stat. Ann. § 18:402(B)(1) (West Supp. 1997), in which all candidates, regardless of party, appear on the same ballot, and all voters, with like disregard of party, are entitled to vote, § 18:401(B) (West 1979). If no candidate for a given office receives a majority, the State holds a run-off (dubbed a “general election”) between the top two vote-getters the following month on federal election day. § 18:481 (West 1979). But if one such candidate does get a majority in October, that candidate “is elected,” §18:511(A) (West Supp. 1997), and no further act is done on federal election day to fill the office in question. Since this system went into effect in 1978, over 80% of the contested congressional elections in Louisiana have ended as a matter of law with the open primary.

Respondents are Louisiana voters who sued petitioners, the State’s Governor and secretary of state, challenging the open primary as a violation of federal law. The District Court granted summary judgment to petitioners, finding no conflict between the state and federal statutes, whereas a divided panel of the Fifth Circuit reversed, concluding that Louisiana’s system squarely “conflicts with the federal statutes that establish a uniform federal election day.” 90 F. 3d 1026, 1031 (1996). We granted certiorari, 520 U. S. 1114 (1997), and now affirm.

II

The Fifth Circuit’s conception of the issue here as a narrow-one turning entirely on the meaning of the state and federal statutes is exactly right. For all of petitioners’ invocations of state sovereignty, there is no colorable argument that § 7 goes beyond the ample limits of the Elections Clause’s grant of authority to Congress. When the federal statutes speak of “the election” of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder (subject only to the possibility of a later run-off, see 2 U. S. C. § 8). See N. Webster, An American Dictionary of the English Language 433 (C. Goodrich & N. Porter eds. 1869) (defining “election” as “[t]he act of choosing a person to fill an office”). By establishing a particular day as “the day” on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say.

• While true that there is room what may constitute the final act of selection within the meaning of the law, our decision does not turn on any nicety in isolating precisely what acts a State must cause to be done on federal election day (and not before it) in order to satisfy the statute. Without paring the term “election” in § 7 down to the definitional bone, it is enough to resolve this case to say that a contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no act in law or in fact to take place on the date chosen by Congress, clearly violates §7.

Petitioners try to save the Louisiana system by arguing that, because Louisiana law provides for a “general election” on federal election day in those unusual instances when one is needed, the open primary system concerns only the “manner” of electing federal officials, not the “time” at which the elections will take place. Petitioners say that “[although Congress is authorized by the Constitution to alter or change the time, place and manner the States have chosen to conduct federal eleetions[,] in enacting 2 U. S. C. §§ 1 and 7, Congress sought only to alter the time in which elections were conducted, not their manner. Conversely,' the open elections system [changed only the manner by which Louisiana chooses its federal officers; it] did not change the timing of the general election for Congress.” Brief for Petitioners 21.

Even if the distinction mattered here, the State’s attempt to draw this time-manner line is merely wordplay, and wordplay just as much at odds with the Louisiana statute as that law is at odds with § 7. The State’s provision for an October election addresses timing quite as obviously as §7 does. State law straightforwardly provides that “[a] candidate who receives a majority of the votes cast for an office in a primary election is elected.” La. Rev. Stat. Ann. § 18:511(A) (West Supp. 1997). Because the candidate said to be “elected” has been selected by the voters from among all eligible office-seekers, there is no reason to suspect that the Louisiana Legislature intended some eccentric meaning for the phrase “is elected.” After a declaration that a candidate received a majority in the open primary, state law requires no farther act by anyone to seal the election; the election has already occurred. Thus, contrary to petitioners’ imaginative characterization of the state statute, the open primary does purport to affect the timing of federal elections: a federal election takes place'prior to federal election day whenever a candidate gets a majority in the open primary. As the attorney general of Louisiana conceded at oral argument, “Louisiana’s system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day.” Tr. of Oral Arg. 6.

Ill

While the conclusion that Louisiana’s open primary system conflicts with 2 U. S. C. § 7 does not depend on discerning the intent behind the federal statute, our judgment is buttressed by an appreciation of Congress’s object “to remedy more than one evil arising from the election of members of Congress occurring at different times in the different States.” Ex parte Yarbrough, 110 U. S. 651, 661 (1884). As the sponsor of the original bill put it, Congress was concerned both with the distortion of the voting process threatened when the results of an early federal election in one State can influence later voting in other States, and with the burden on citizens foreed to turn out on two different election days to make final selections of federal officers in Presidential election years:

“Unless we do fix some time at which, as a rule, Representatives shall be elected, it will be in the power of each State to fix upon a different day, and we may have a canvass going on all over the Union at different times. It gives some States undue advantage_I can remember, in 1840, when the news from Pennsylvania and other States that held their elections prior to the presidential election settled the presidential election as effectually as it was afterward done- I agree ... that Indiana, Ohio, and Pennsylvania, by voting in October, have an influence. But what I contend is that that is an undue advantage, that it is a wrong, and that it is a wrong also to the people of those States, that once in four years they shall be put to the trouble of having a double election.” Cong. Globe, 42d Cong., 2d Sess., 141 (1871) (remarks of Rep. Butler).

See also Busbee v. Smith, 549 F. Supp. 494, 524 (DC 1982) (recounting the purposes of § 7), aff’d, 459 U. S. 1166 (1983). The Louisiana open primary has tended to foster both evils, having had the effect of conclusively electing more than 80% of the State’s Senators and Representatives before the election day elsewhere, and, in Presidential election years, having forced voters to turn out for two potentially conclusive federal elections.

IV

When Louisiana’s statute is applied to select from among congressional candidates in October, it conflicts with federal law and to that extent is void. The judgment below is affirmed.

It is so ordered.

       Justice Scalia, Justice Kennedy, and Justice Thomas join all but Part III of this opinion.

       A run-off election has been held on federal election day in only 9 of the 57 contested elections for United States Representative and in only 1 of the 6 contested elections for United States Senator. See 90 F. 3d 1026, 1030 (CA5 1996).

       The Clause gives Congress “comprehensive” authority to regulate the details of elections, including the power to impose “the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.” Smiley v. Holm, 285 U. S. 355, 366 (1932). Congressional authority extends not only to general elections, but also to any “primary election which involves a necessary step in the choice of candidates for election as representatives in Congress.” United States v. Classic, 313 U. S. 299, 320 (1941).

       Title 2 U. S. C. § 8, which was enacted along with §7, provides that a State may hold a congressional election on a day other than the uniform federal election day when such an election is necessitated “by a failure to elect at the time prescribed by law.” The only explanation of this provision offered in the legislative history is Senator Allen G. Thurman’s statement that “there can be no failure to elect except in those States in which a majority of all the votes is necessary to elect a member.” Cong. Globe, 42d Cong., 2d Sess., 677 (1872). In those States, if no candidate receives a majority vote on federal election day, there has been a failure to elect and a subsequent run-off election is required. See Public Citizen, Inc. v. Miller, 813 F. Supp. 821 (ND Ga.), aff’d, 992 F. 2d 1548 (CA11 1993) (upholding under § 8 a run-off election that was held after.federal election day, because in the initial election on federal election day no candidate received the majority vote that was as required by Georgia law).

         This ease thus does not present the question whether a State must always employ the conventional mechanics of an election. We hold today only that if an election does take place, it may not be consummated prior to federal election day.


author: Justice Ginsburg Justice Stevens,

text:
    JEFFERSON, individually and as administrator of the ESTATE OF JEFFERSON, DECEASED, et al. v. CITY OF TARRANT, ALABAMA
    No. 96-957.
    Argued November 4, 1997
    Decided December 9, 1997

      Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 84.

      Dennis G. Pantazis argued the cause for petitioners. With him on the briefs was Brian M. Clark.

      John G. Roberts, Jr., argued the cause for respondent. With him on the brief were Gregory G. Garre, Wayne Morse, and John W. Clark, Jr.

   Justice Ginsburg

delivered the opinion of the Court.

This ease, still sub judice in Alabama, was brought to this Court too soon. We granted certiorari to consider whether the Alabama Wrongful Death Act, Ala. Code § 6-5-410 (1993), governs recovery when a decedent’s estate claims, under 42 U. S. C. § 1988, that the death in question resulted from a deprivation of federal rights. We do not decide that issue, however, because we conclude that we lack jurisdiction at the current stage of the proceedings. Congress has limited our review of state-court decisions to “[fjinal judgments or decrees rendered by the highest court of a State in which a decision could be had.” 28 U. S. C. § 1257(a). The decision we confront does not qualify as a “final judgment” within the meaning of § 1257(a). The Alabama Supreme Court decided the federal-law issue on an interlocutory certification from the trial court, then remanded the cause for further proceedings on petitioners’ remaining state-law claims. The outcome of those further proceedings could moot the federal question we agreed to decide. If the federal question does not become moot, petitioners will be free to seek our review when the state-court proceedings reach an end. We accordingly dismiss the writ for want of a final judgment.

I

Petitioners commenced this action against the city of Tarrant, Alabama (City), to recover damages for the death of Alberta Jefferson. Ms. Jefferson, an African-American woman, died in a fire at her Tarrant City home on December 4, 1993. Petitioners’ complaint, App. 1-11, alleges that the City firefighters did not attempt to rescue Ms. Jefferson promptly after they arrived on the scene, nor did they try 'to revive her when they carried her from her house. The complaint further alleges that these omissions resulted from “the selective denial of fire protection to disfavored minorities,” id., at 6, and proximately caused Ms. Jefferson’s death. The City, however, maintains that the Tarrant Fire Department responded to the alarm call as quickly as possible and that Ms. Jefferson had already died by the time the firefighters arrived.

Petitioners Melvin, Leon, and Benjamin Jefferson, as administrator and survivors of Alberta Jefferson, filed their complaint against Tarrant City in an Alabama Circuit Court on June 21, 1994. The Jeffersons asserted two claims under state law: one for wrongful death, and the other for the common-law tort of outrage. They also asserted two claims under 42 U. S. C. § 1983: one alleging that Alberta Jefferson’s death resulted from the deliberate indifference of the City and its agents, in violation of the Due Process Clause of the Fourteenth Amendment, and the other alleging that Ms. Jefferson’s death resulted from a practice of invidious racial discrimination, in violation of the Fourteenth Amendment’s Equal Protection Clause.

In June 1995, the City moved for judgment on the pleadings on the § 1983 claims and for summary judgment on all claims. In its motion for judgment on the pleadings, the City argued that the survival remedy provided by the Alabama Wrongful Death Act governed the Jeffersons’ potential recovery for the City’s alleged constitutional torts. For this argument, the City relied on. Robertson v. Wegmann, 436 U. S. 584, 588-590 (1978). In that case, we held that 42 U. S. C. § 1988(a) requires the application of state-law survival remedies in § 1983 actions unless those remedies are ‘inconsistent with the Constitution and laws of the United States.’ ” The Alabama Supreme Court had interpreted the State’s Wrongful Death Act as providing a punitive damages remedy only. See, e. g., Geohagen v. General Motors Corp., 279 So. 2d 436, 438-439 (1973). But § 1983 plaintiffs may not recover punitive damages against a municipality. See Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981). Hence, according to respondent, petitioners could obtain no damages against the City under § 1983.

The Alabama trial court denied the summary judgment motion in its entirety, and it denied in part the motion for judgment on the pleadings. As to the latter motion, the court ruled that, notwithstanding the punitive-damages-only limitation in the state Wrongful Death Act, the Jeffersons could recover compensatory damages upon proof that the City, violated Alberta Jefferson’s constitutional rights. The trial court certified the damages question for immediate review, and the Alabama Supreme Court granted the Gity permission to appeal from the denial of its motion for judgment on the pleadings.

On the interlocutory reversed. 682 So. 2d 29 (1996). Relying on its earlier opinion in Carter v. Birmingham, 444 So. 2d 373 (1983), the court held that the state Act, including its allowance of punitive damages only, governed petitioners’ potential recovery on their § 1983 claims. The court remanded “for further proceedings consistent with [its] opinion.” 682 So. 2d, at 31. Dissenting Justices Houston and Cook would have affirmed the trial court’s ruling.

We granted certiorari to resolve the following question: “Whether, when a decedent’s death is alleged to have resulted from a deprivation of federal rights occurring in Alabama, the Alabama Wrongful Death Act, Ala. Code § 6-5-410 (1993), governs the recovery by the representative of the decedent’s estate under 42 U. S. C. § 1983?” 520 U. S. 1154 (1997). In its brief on the merits, respondent for the first time raised a nonwaivable impediment: The City asserted that we lack jurisdiction to review the interlocutory order of the Alabama Supreme Court. We agree, and we now dismiss the writ of certiorari as improvidently granted.

I — < i — i

From the earliest days of our judiciary, Congress has vested in this Court authority to review federal-question decisions made by state courts. For just as long, Congress has limited that power to cases in which the State’s judgment is final. See Judiciary Act of 1789, § 25, 1 Stat. 85. The current statute regulating our jurisdiction to réview state-court decisions provides:

“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.” 28 U. S. C. § 1257(a).

This provision establishes a firm final judgment rule. To be reviewable by this Court, a state-court judgment must be final “in two senses: it must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.” Market Street R. Co. v. Railroad Comm’n of Cal., 324 U. S. 548, 551 (1945). As we have recognized, the finality rule “is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system.” Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945).

The Alabama Supreme Court’s decision was not a “final judgment.” It was avowedly interlocutory. Far from terminating the litigation, the court answered a single certified question that affected only two of the four counts in petitioners’ complaint. The court then remanded the ease for further proceedings. Absent settlement or further dispositive motions, the proceedings on remand will include a trial on the merits of the state-law claims. In the relevant respect, this ease is identical to O’Dell v. Espinoza, 456 U. S. 430 (1982) (per curiam), where we dismissed the writ of certiorari for want of jurisdiction. See ibid. (“Because the Colorado Supreme Court remanded this case for trial, its decision is not final ‘as an effective determination of the litigation.’ ” (citation omitted)).

Petitioners contend that this ease comes within the “limited set of situations in which we have found finality as to the federal issue despite the ordering of further proceedings in the lower state courts.” Ibid. We do not agree. This is not a ease in which “the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975). Resolution of the state-law claims could effectively moot the federal-law question raised here. Most notably, the City maintains that its fire department responded promptly to the call reporting that Ms. Jefferson’s residence was in flames, but that Ms. Jefferson was already dead when they arrived. On the City’s view of the facts, its personnel could have done nothing more to save Ms. Jefferson’s life. See App. 45-47. If the City prevails on this account of the facts, then any § 1983 claim will necessarily fail, however incorrect the Alabama Supreme Court’s ruling, for the City will have established that its actions did not cause Ms. Jefferson’s death.

Nor is this an instance “where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the ease.” Cox Broadcasting Corp. v. Cohn, 420 U. S., at 481. If the Alabama Supreme Court’s decision on the federal claim ultimately makes a difference to the Jeffersons — in particular, if they prevail on their state claims but recover less than they might have under federal law, or if their state claims fail for reasons that do not also dispose of their federal claims — they will be free to seek our review once the state-court litigation comes to an end. Even if the Alabama Supreme Court adheres to its interlocutory ruling as “law of the case,” that determination will in no way limit our ability to review the issue on final judgment. See, e. g., Hathorn v. Lovorn, 457 U. S. 255, 261-262 (1982); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Weehsler’s The Federal Courts and the Federal System 642 (4th ed. 1996) (“If a state court judgment is not final for purposes of Supreme Court review, the federal questions it determines will (if not mooted) be open in the Supreme Court on later review of the final judgment, whether or not under state law the initial adjudication is the law of the ease on the second state review.”); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 104-105 (7th ed. 1993) (citing cases).

We acknowledge that one of our prior decisions might be read to support the view that parties in the Jeffersons’ situation need not present their federal questions to the state courts a second time before obtaining review in this Court. See Pennsylvania v. Ritchie, 480 U. S. 39, 49, n. 7 (1987) (declining to require the petitioner “to raise a fruitless Sixth Amendment claim in the trial court, the Superior Court, and the Pennsylvania Supreme Court still another time before we regrant certiorari on the question that is now before us”). In Ritchie, we permitted immediate review of a Pennsylvania Supreme Court ruling that required the Commonwealth’s Children and Youth Services (CYS) to disclose to a criminal defendant the contents of a child protective service file regarding a key witness. The Court asserted jurisdiction in that ease because of the “unusual” situation presented: We doubted whether there would be any subsequent opportunity to raise the federal questions, see ibid., and we were reluctant to put the CYS in the bind of either disclosing a confidential file or being held in contempt, see id., at 49. Ritchie is an extraordinary case and we confine it to the precise circumstances the Court there confronted. We now clarify that Ritchie does not augur expansion of the exceptions stated in Cox Broadcasting Corp., and we reject any construction of Ritchie that would contradict this opinion.

This case fits within no exceptional category. It presents the typical situation in which the state courts have resolved some but not all of petitioners' claims. Our jurisdiction therefore founders on the rule that a state-court decision is not final unless and until it has effectively determined the entire litigation. Because the Alabama Supreme Court has not yet rendered a final judgment, we lack jurisdiction to review its decision on the Jeffersons’ § 1983 claims.

* * *

For the reasons stated, the writ of certiorari is dismissed for want of jurisdiction.

It is so ordered.

Justice Stevens,

dissenting.

In my opinion, the jurisdictional holding in Pennsylvania v. Ritchie, 480 U. S. 39 (1987), represented such a departure from our settled construction of the term “final judgment” in 28 U. S. C. § 1257(a) that it should be promptly overruled, see id., at 72-78 (Stevens, J., dissenting). Unless and until at least four other Members of the Court share that view, however, I believe its holding governs cases such as this.

In Ritchie, the Court held that a judgment of the Pennsylvania Supreme Court resolving a federal question was final even though the federal question could have been relitigated in the state court if the appeals had been dismissed, and even though it could have been raised in a second appeal to this Court after the conclusion of further proceedings in the state courts. The fact that law-of-the-case principles would have made it futile to relitigate the federal issue in the state courts provided a sufficient basis for this Court’s decision to accept jurisdiction. Precisely the same situation obtains in this case. Either the fact that further litigation of a federal issue in the state system would he futile provides a legitimate basis for treating the judgment of the State’s highest court as final — -as the Court held in Ritchie — or it is sufficient to defeat jurisdiction, as the Court concludes today. I do not believe the Court can have it both ways.

Since Ritchie is still the law, I believe it requires us to take jurisdiction and to reach the merits. The federal issue is not difficult to resolve. Under 42 U. S. C. § 1988, the Alabama Wrongful Death Act permits the survival of petitioners’ § 1988 claims. Our decisions in cases such as Smith v. Wade, 461 U. S. 30 (1983), Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981), and Carey v. Piphus, 435 U. S. 247 (1978),. make it perfectly clear that the measure of damages in an ' action brought under 42 U. S. C. § 1983 is governed by federal law. Cf. Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 239-240 (1969) (holding that, in a case arising under 42 U. S. C. § 1982, § 1988 provides “that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes.... The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired”). Thus, the fact that the Alabama survival statute also purports to limit recovery to punitive damages in an action against a municipality is of no consequence. As a matter of federal law we have already decided that compensatory damages may be recovered in such a case, Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978); Owen v. Independence, 445 U. S. 622 (1980), and that punitive damages may not, Newport, supra. As long as state law allows the survival of petitioners’ § 1983 action—as it undoubtedly does here — additional state-law limitations on the particular measure of damages are irrelevant.

Accordingly, even though my preference would be to overrule Ritchie and to dismiss the appeal, my vote is to reverse the judgment of the Alabama Supreme Court.

       The Alabama Wrongful Death Act provides, in relevant part:
      “A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.” Ala. Code § 6-5-410(a) (1993).

       The courts invoked Alabama Rule of Appellate Procedure 5(a), which allows a party to petition the Alabama Supreme Court for an appeal from an interlocutory order where the trial judge certifies that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation and that the appeal would avoid protracted and expensive litigation.”

       Indeed, the Court's response to my dissent in Ritchie applies directly to the facts of this case:
      “But as Justice Stevens’ dissent recognizes, the Pennsylvania courts already have considered and resolved this issue in their earlier proceedings; if the Commonwealth were to raise it again in a new-set of appeals, the courts below would simply reject the claim under the law-of-the-case doctrine. Law-of-the-case principles are not a bar to this Court’s jurisdiction, of course, and thus Justice Stevens’ dissent apparently would require the Commonwealth to raise a fruitless Sixth Amendment claim in the trial court, the Superior Court, and the Pennsylvania Supreme Court still another time before we regrant certiorari on the question that is now before us.
      “The goals of finality would be frustrated, rather than furthered, by these wasteful and time-consuming procedures. Based on the unusual facts of this ease, the justifications for the finality doctrine — efficiency, judicial restraint, and federalism, see Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945); post, at 72—would be ill served by another round of litigation on an issue that has been authoritatively decided by the highest state court.” Pennsylvania v. Ritchie, 480 U. S. 39, 49, n. 7 (1987).

        Robertson v. Wegmann, 436 U. S. 584 (1978), is not to the contrary. In Robertson, the applicable state law provided for a survivorship claim but allowed only certain parties to bring such a claim. This Court allowed the § 1983 action to abate pursuant to state law because the plaintiff was not an appropriate party to bring the suit. That holding does not bear on the question whether a state limitation on the measure of damages applies to a § 1983 claim.


author: Justice Breyer

text:
    TREST v. CAIN, WARDEN
    No. 96-7901.
    Argued November 10, 1997
    Decided December 9, 1997

      Breyer, J., delivered the opinion for a unanimous Court.

      Rebecca L. Hudsmith argued the cause and filed briefs for petitioner.

      Kathleen siana, argued the cause for respondent. With her on the brief were Richard P. leyoub, Attorney General, and Mary Ellen Hunley, Assistant Attorney General.

         Edward M. Chikofsky and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
      A brief of amici curiae urging affirmance was Mississippi et al. by Mike Moore, Attorney General of Mississippi, Marvin L. White, Jr., Assistant Attorney General, and Jeffrey A. Klingfuss, Special Assistant Attorney General, Robert A Butterworth, Attorney General of Florida, Joseph P. Mazurek, Attorney General of Montana, and Frankie Sue Del Papa, Attorney General of Nevada.

   Justice Breyer

delivered the opinion of the Court.

The petitioner in this case, Richard Trest, seeks a writ of habeas corpus, which would vacate a long sentence that he is serving in a Louisiana prison for armed robbery. The District Court refused to issue the writ. Trest appealed to the Court of Appeals for the Fifth Circuit, which ruled against him on the ground of “procedural default.” Trest v. Whitley, 94 F. 3d 1005, 1007 (1996). The Fifth Circuit believed that Trest had failed to raise his federal claims on time in state court, that a state court would now refuse to consider his claims for that reason, and that this state procedural reason amounted to an adequate and independent state ground for denying Trest relief. Hence, in the absence of special circumstances, a federal habeas court could not reach the merits of Trest’s federal claims. Id., at 1007-1009; see generally Coleman v. Thompson, 501 U. S. 722 (1991); Rose v. Lundy, 455 U. S. 509 (1982).

In his petition for certiorari to this Court, Trest pointed out that the Court of Appeals had raised and decided the question of “procedural default” sua sponte. The parties themselves had neither raised nor argued the matter. And language in the Court of Appeals’ opinion suggested that the court had thought that, once it had noticed the possibility of a procedural default, it was required to raise the matter on its own. Trest consequently asked us to decide whether a court of appeals, reviewing a district court’s habeas corpus decision, “is required to raise... sua sponte” a petitioner’s potential procedural default. Pet. for Cert. i (emphasis added). We agreed to do so.

Precedent makes clear that the answer to the question presented is “no.” A court of appeals is not “required” to raise the issue of procedural default sua sponte. It is not as if the presence of a procedural default deprived the federal court of jurisdiction, for this Court has made clear that in the habeas context, a procedural default, that is, a critical failure to comply with state procedural law, is not a jurisdictional matter. See Lambrix v. Singletary, 520 U. S. 518, 522-523 (1997); Coleman, 501 U.S., at 730-731. Rather, “[i]n the habeas context, the application of the independent and adequate state ground doctrine,” of which a procedural default is typieally an instance, “is grounded in concerns of comity and federalism.” Id., at 730 (contrasting habeas proceeding with this Court’s direct review of a state court judgment). Thus, procedural default is normally a “defense” that the State is “obligated to raise” and “preserv[e]” if it is not to “lose the right to assert the defense thereafter.” Gray v. Netherland, 518 U. S. 152, 166 (1996); see Jenkins v. Anderson, 447 U. S. 231, 234, n. 1 (1980). We are not aware of any precedent stating that a habeas court must raise such a matter where the State itself does not do so. And Louisiana concedes as much, for it says in its brief that “the Fifth Circuit clearly was not ‘required’ to sua sponte invoke procedural default.” Brief for Respondent 16-17.

Louisiana, however, would like us to go beyond question presented and hold that the law permitted (though it did not require) the Fifth Circuit to raise the procedural default sua sponte. Cf. Granberry v. Greer, 481 U. S. 129, 133-134 (1987) (appellate court may raise sua sponte petitioner’s failure to exhaust state remedies). We recognize some uncertainty in the lower courts as to whether, or just when, a habeas court may consider a procedural default that the State at some point has waived, or failed to raise. Compare Esslinger v. Davis, 44 F. 3d 1515, 1525-1528 (CA11 1995) (sua sponte invocation of procedural default serves no important federal interest), with Hardiman v. Reynolds, 971 F. 2d 500, 502-505 (CA10 1992) (comity and scarce judicial resources may justify court raising state procedural default sua sponte); see also J. Liebman & R. Hertz, 2 Federal Habeas Corpus Practice and Procedure § 26.2, pp. 814-817 (1994) (citing cases). Nonetheless, we do not believe this is an appropriate ease in which to examine that question for several reasons. First, the Fifth Circuit’s opinion contains language suggesting the court believed that, despite Louisiana’s failure to raise the matter, Circuit precedent required the court (and did not simply permit the court) to consider a potential procedural default. See, e.g., 94 F. 3d, at 1007 (“[T]his court’s decision in Sones v. Hargett ... precludes us from reviewing the merits of Trest’s habeas challenge”).

Second, the language petition for certiorari, as well as the arguments made in his petition, made clear that Trest intended to limit the question in the way we have described. Yet Louisiana in its response did not object or suggest alternate wording. Nor did Louisiana ask us to consider the question in any broader context.

Third, we cannot now easily answer the in the context of this case, for we are uncertain about matters which arguably are relevant to the question whether the law permitted the Fifth Circuit to raise a procedural default sua sponte. The parties disagree, for example, about whether or not Trest has felly, or partially, exhausted his current federal claims by raising them in state court. Cf. Rose v. Lundy, supra, at 518-520. They disagree about whether Louisiana has waived any “nonexhaustion” defense. Cf. Granberry v. Greer, supra. They consequently disagree about whether this is, or is not, the kind of case in which a federal court might rely upon the existence of a state “procedural bar” despite the failure of any state court to assert one. See Coleman v. Thompson, supra, at 735, n.

The parties also seem to disagree about which State’s procedural rules are relevant. Trest’s federal claims focus upon the 35-year sentence of imprisonment that the Louisiana court imposed (under a Louisiana “habitual offender” law) in light of his earlier convictions in Mississippi for burglary. Trest argued that those earlier convictions were constitutionally invalid because they rested upon a guilty plea which he says the Mississippi court accepted without having first told him about his rights to appeal, to trial by jury, to confront witnesses, and not to incriminate himself. Cf. Boykin v. Alabama, 395 U. S. 238, 242-244 (1969); State v. Robicheaux, 412 So. 2d 1313, 1316-1317 (La. 1982). The Fifth Circuit did not reach the merits of Trest’s claims because it believed that the Mississippi courts would have barred any challenge to his Mississippi convictions as a challenge that, under state law, came too late in the day. See Miss. Code Ann. § 99-39-5(2) (1994). Trest, and amici supporting him, state that the relevant procedural law (for the purposes of the “procedural default” doctrine) is that of Louisiana, rather than that of Mississippi, for it is Louisiana, not Mississippi, which holds Trest in custody. And it is not clear whether Mississippi’s procedural law would create a “default” that would bar federal courts from considering whether Louisiana, not Mississippi, could (or could not) use Mississippi convictions to enhance a sentence for a subsequent Louisiana crime.

We note that the parties might have considered these questions, and the Court of Appeals might have determined their relevance or their answers, had that court not decided the procedural default question without giving the parties an opportunity for argument. We do not say that a eourt must always ask for further briefing when it disposes of a case on a basis not previously argued. But often, as here, that somewhat longer (and often fairer) way ‘round is the shortest way home. Regardless, we have answered the question presented, we vacate the judgment of the Court of Appeals, and we remand the case for further proceedings consistent with this opinion.

It is so ordered.