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MEMBERS OF THE CALIFORNIA DEMOCRATIC CONGRESSIONAL

March 3, 1992

MEMBERS OF THE CALIFORNIA DEMOCRATIC CONGRESSIONAL DELEGATION, et al., Plaintiffs,
v.
MARCH FONG EU, et al., Defendants. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, on behalf of Sebastian Benavidez, et al., Intervenors.



The opinion of the court was delivered by: LEGGE

OPINION AND JUDGMENT OF DISMISSAL

 Before TANG, Circuit Judge, SMITH and LEGGE, District Judges.

 LEGGE, District Judge:

 On January 28, 1992 this court denied the motions for preliminary injunction. Because of the time urgency of advising the Secretary of State of our decision so that the statewide primary elections scheduled for June 1992 could be held, there was not then time for this court to prepare and publish an opinion. This opinion discusses the reasons for the denial of the preliminary injunctions, and further concludes that this action should be dismissed.

 I.

 Following the 1990 census, the State of California was mandated to adjust the boundary lines of its voting districts for state legislative representatives and for representatives to the United States Congress. U.S. Const. Article I, § 2; Cal. Const. Art. XXI, § 1. This responsibility primarily lies with the legislature and governor of the state. Assembly v. Deukmejian, 30 Cal. 3d 638, 180 Cal. Rptr. 297, 639 P.2d 939 (1982); Legislature v. Reinecke, 6 Cal. 3d 595, 99 Cal. Rptr. 481, 492 P.2d 385 (1972). However, they were unable to agree.

 On September 6, 1991 Governor Pete Wilson filed a petition with the California Supreme Court, alleging the failure of the state legislative process to produce a redistricting plan following the 1990 census and requesting the California Supreme Court to assume jurisdiction. Shortly thereafter, the California Legislature presented the governor with three redistricting plans. On September 23, 1991 the governor vetoed those plans. An attempt to override the governor's vetoes failed, and the legislature recessed for the remainder of the year.

 Following the presentation of their report and plans, the California Supreme Court entertained further briefing and arguments from interested parties. On January 27, 1992 the California Supreme Court issued its opinion, which accepted and adopted the plans proposed by the masters, with certain modifications not relevant here. Wilson v. Eu, No. 5022835 (Cal. Jan. 27, 1992).

 II.

 The action in this court was commenced on September 30, 1991, while the proceeding before the California Supreme Court was pending.

 A.

 The interested parties are the following:

 Plaintiffs are members of the California Democratic Congressional Delegation; that is, members of the House of Representatives who belong to the Democratic Party and who are currently elected from districts in California. The delegation's challenge to the redistricting plans is directed at certain of the congressional districts, alleging that they violate the United States Constitution and the Voting Rights Act. Several representatives have withdrawn as plaintiffs, but a substantial number remain.

 The first named defendant is March Fong Eu, the Secretary of State of California. Secretary Eu's presence in the case is formalistic, in that she is named as a defendant only because it is her responsibility to apply the districts which are adopted and to conduct the elections using those districts.

 The principal defendant, who has actively opposed the injunctions and moved to dismiss the case, is Pete Wilson, the Governor of the State of California. The governor has also moved to strike certain of plaintiffs' filings from the record; in view of our decision to dismiss the case, consideration of that motion is not necessary.

 The Assembly and the Senate of the California State Legislature are also named as defendants. They have appeared, not contesting the congressional districts, but instead challenging the ...


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