concurring.
I write in concurrence to clarify my view of the limited nature of our action in this case, and to avoid future citation of our opinion as precedent for propositions which are not intended.
The Sinkfield defendants have asked the court throughout the course of this litigation to hold that a party who wishes to challenge the constitutionality of a state’s legislative apportionment or congressional districting must first take the case to a state court as a prerequisite to a federal action. In then-proposed scheme, only when the state court fails to act expeditiously may the claim then be brought to federal court. While footnote 10 of the majority opinion correctly states that we do not reach this issue, I believe that the footnote, without more explanation, *1442might lend more credence to the Sinkfield’s proposition than is due. I would only defer to an existing state court proceeding. I would not abstain because the Plaintiff had not first filed suit in state court.
In Growe the Supreme Court said:
In the reapportionment context, the Court has required federal judges to defer consideration of disputes involving redistricting where the state, through its legislative or judicial branch, has begun to address that highly political task itself.
Growe, 507 U.S. at 33, 113 S.Ct. at 1080 (emphasis in original).
Deferring to the state’s legislature is quite different from requiring a party to first seek relief in a state court when there is no ongoing case. There is only one legislature, and it has the primary responsibility for apportionment and districting.1 Only in the absence of legislative action does the judicial branch come in, and then the question arises as to which state court will act.2
Growe requires deferral only when the state “has begun to address ” the issue. Deferral to the legislative branch can be justified even if no proposed legislation is pending at the time, because of the legislature’s continuing duty in this area, and because of the legislature’s freedom to act on any issue at any time. This is not so with the judicial branch, which generally cannot act unless someone first files the appropriate suit in some court. This makes Growe’s requirement of deferral to a branch of state government which “has begun” to address the issue highly significant when applied to the judicial branch. There is simply no way that the state judicial branch can be said to “ha[ve] begun” to act unless there is a pending case in a state court which has jurisdiction over the issue.
This court’s action in this case, therefore, should not be taken to suggest in any way that a person who wishes to raise a constitutional challenge to congressional and legislative districts must first file a new lawsuit in some state court. We have deferred to a state court which “has begun to address” the issue of the constitutionality of state legislative districts under the 1990 census. That is the issue which was before the state court, and that court has held that it retained jurisdiction of the case to enforce its judgment.3
The Plaintiffs argue that deferral is not appropriate in this ease because it is the state court’s redistricting plan itself that they challenge as being unconstitutional. There was no appeal from the state court in 1993 because there was a consent decree. The Plaintiffs say that the parties in state court consented to an unconstitutional plan and that they, as non-parties to the consent decree, should be able to challenge the plan now in federal court.
I agree with the Plaintiffs that Growe does not prohibit this court from considering their challenge, and we have not held that it does. We have found it to be prudent, and in furtherance of the concept of federalism, however, to defer under the particular cir*1443cumstances of this case. Those circumstances are that the state court adopted the challenged plan before the Supreme Court enunciated new legal principles to be applied in reapportionment cases, specifically in what has been referred to as “race-based” district-ing. See Abrams v. Johnson, — U.S.-, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); United States v. Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); and Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). This court determined that because of that, it would be preferable for the state court to have an opportunity to review its plan in light of the new Supreme Court decisions, with appellate review available in the Alabama Supreme Court, and possibly the Supreme Court of the United States.
The Rice Plaintiffs intervened in the state court, at our direction. They now say that we were without authority to direct that intervention. Be that as it may, no motion for reconsideration was filed here before the intervention, and the state court has acted. Since we are dismissing the claims of the Rice plaintiffs, they are free to seek appellate review of our decision to defer.
The Thompson Plaintiffs are free to intervene in the state court case to seek determination there of the constitutionality of the plan as it relates to their districts, with appellate review available if necessary. If the state court is unable or unwilling to entertain their claims, or if the Alabama Supreme Court should hold in the Rice appeal that the Circuit Court of Montgomery County did not have jurisdiction over the Rice claims, then I would be prepared to let the ease proceed in this court, subject, of course, to consideration of pending motions and defenses, including the defense of laches.
I wish to emphasize that it is only because (1) a state court has held that it has retained jurisdiction over the state legislative reapportionment plan based on the 1990 census, and (2) very substantial changes were made by the Supreme Court of the United States in the law governing legislative reapportionment after that plan was adopted, that I agree to defer to the state trial court, with the possibility of appellate review of its decision. In the absence of either of those facts, I would have favored hearing the constitutional attack on the consent decree entered by the state court. I do not believe that this court’s decision should be viewed as going beyond that, and, therefore,
I concur.
. Of course, giving the legislature primary re- . sponsibility for districting is not required by any federal law or Constitutional provision. A state may choose another method. Indeed many states have chosen such a method in an attempt to depoliticize (as much as possible) the duty of districting. See Jeffrey C. Kubin, The Case for Redistricting Commissions, 75 Tex. L.Rev. 837 (1997) (discussing 17 states which have adopted redistricting commissions, and the various forms that those commissions may take). Apparently the idea of a redistricting commission is being considered in Alabama’s neighboring state of Florida. See George L. Waas, The Process and Politics of Legislative Reapportionment and Redistricting under the Flonda Constitution, 18 Nova L.Rev. 1001, 1034-35 (1994).
. At least one state apparently uses a specialized three-judge court, similar to this three-judge court, when a court must redistrict or reappor-lion. See Growe, 507 U.S. at 28, 113 S.Ct. at 1077 (referencing fact that "Minnesota Supreme Court appointed a Special Redistricting Panel (composed of one appellate judge and two district judges) to preside over the case.”). A specialized court may avoid duplicative litigation at the state level, and could also avoid the resentment that sometimes arises when a judge elected by a single circuit’s voters takes action which affects the entire state.
.Florida state courts apparently dealt with the problem of multiple suits throughout the state by having the state supreme court retain jurisdiction. See In re Apportionment Law Appearing as Senate Joint Resolution 1 E, 1982 Special Apportionment Session; Constitutionality Vel Non, 414 So.2d 1040, 1052 (1982) ("we retain exclusive state jurisdiction to consider any and all future proceeding [sic] relating to the validity of this apportionment plan”).