Federal Court Policy-Making and Political Equality: an Analysis of Judicial Redistricting

• Author: Barbara Luck Graham
• Date: 01 March 1991
• DOI: 10.1177/106591299104400106
• Published date: 01 March 1991
• Subject Matter: Articles

FEDERAL

COURT

POLICY-MAKING

AND

POLITICAL

EQUALITY:

AN

ANALYSIS

OF

JUDICIAL

REDISTRICTING

BARBARA

LUCK

GRAHAM

University

of

Missouri-St.

Louis

he

Warren

Court’s

venture

into

the

area

of

legislative

reappor-

tionment

gave

voters

the

opportunity

legally

to

challenge

appor-

-JL-

tionment

schemes

that

denied

them

fair

representation

under

the

equal

protection

clause

of

the

Fourteenth

Amendment.

In

Reynolds

v.

Sims

(1964),

the

Supreme

Court

struck

down

a

grossly

malapportioned

Alabama

state

legislature,

insisting

that

equal

numbers

of

voters

should

elect

equal

numbers

of

state

representatives.

Immediately

following

Reynolds,

voters

asked

the

federal

courts

to

expand

the

concept

of

polit-

ical

equality

to

the

election

and

allocation

of

state

judges.

In

response,

the

federal

courts

exempted

judicial

elections

from

the

reach

of

Reynolds,

holding

that

the

reapportionment

decisions

were

not

intended

to

apply

to

judicial

elections.

In

1973,

the

Supreme

Court

affirmed

the

exemption

of

judicial

elections

from

the

reach

of

Reynolds.

However,

the

issue

of

judicial

redistricting

has

been

revisited

by

the

federal

courts

in

the

1980s,

but

this

time

in

the

context

of

minority

vote

dilution.

Unlike

prior

cases

involving

the

exemption

of

judicial

elections

from

the

equal

population

principle,

federal

courts

have

now

determined

that

the

concept

of

minority

vote

dilution

is

applicable

to

state

judicial

elections

and

that

Sections

2

and

5

of

the

Voting

Rights

Act

of

1965

apply

to

judicial

elections.

Despite

the

magnitude

of

the

reapportion-

ment

revolution

on

representation

law,

this

article

illustrates

some

of

the

difficulties

in

implementing

Reynolds

since

that

decision

was

ren-

dered

in

1964.

An

examination

of

prior

research

on

judicial

elections

within

the

context

of

the

judicial

selection

literature

reveals

that

the

problem

of

judicial

redistricting

has

been

a

neglected

subject

in

representation

RECEIVED:

November

28,

1989

FIRST

REVISION

RECEIVED:

March

28,

1990

SECOND

REVISION

RECEIVED:

April

16,

1990

ACCEPTED

FOR

PUBLICATION:

April

25,

1990

NOTE:

I

would

like

to

thank

the

anonymous

reviewers

for

their

helpful

suggestions

and

criticisms

in

the

revision

of

this

manuscript.

102

law.

Only

a

few

early

studies

directly

addressed

the

issue

of

malap-

portioned

judicial

districts

(Dixon

1968;

Sheridan

1971;

Martin

1973).

Beyond

filling

a

major

gap

in

the

literature,

additional

research

is

needed

to

address

the

broad

theoretical

concerns

raised

by

the

prob-

lem

of

judicial

redistricting

within

the

context

of

representation

law.

Moreover,

the

problem

of

judicial

redistricting

is

especially

worthy

of

reconsideration

given

the

high

notoriety

and

increasing

salience

of

judi-

cial

elections

in

state

politics.2

The

purpose

of

this

article

is

to

address

the

central

problem

of

judicial

redistricting

within

the

context

of

representation

law.

In

par-

ticular,

I

will

analyze

the

coherence

and

logical

consistency

of

the

fed-

eral

courts’

approach

in

elaborating

on

the

meaning

of

electoral

equal-

ity

and

participation

rights

in

the

context

of judicial

elections.

It

is

the

point

of

view

of

this

article

that

the

limitations

of

the

federal

courts’

approach

to

representation

law

have

contributed

substantially

to

judi-

cial

unease

in

grappling

with

the

problem

of

judicial

redistricting.

In

Section

I

of

this

article,

I

will

discuss

the

different

definitions

of

polit-

ical

equality

underlying

the

bifurcated

approach

to

representation

law

in

the

federal

courts’

attempt

to

determine

whether

judicial

elections

fall

under

the

scope

of

Reynolds.

Section

II

assesses

contemporary

judi-

cial

policy

and

methodology

in

applying

the

Voting

Rights

Act

of

1965

to

judicial

elections.

I

will

also

present

an

argument

that

justifies

expand-

ing

the

concept

of

political

equality

to

judicial

elections.

In

the

final

section,

I

will

discuss

the

policy

implications

of

judicial

redistricting

and

conclude

with

some

remarks

on

the

theoretical

issue

of

the

mean-

ing

of

political

equality

in

legislative

and

judicial

redistricting.

A

BIFURCATED

APPROACH

TO

POLITICAL

EQUALITY

AND

ELECTORAL

RIGHTS:

THE

PROBLEM

OF

JUDICIAL

REDISTRICTING

The

Supreme

Court’s

grappling

with

reapportionment

cases

raises

a

theoretical

question

of

the

meaning

of

electoral

equality

and

partic-

1

Much

of

the

political

science

literature

on

state

judicial

selection

have

focused

on

various

aspects

of

judicial

elections

(for

review

essays,

see

Chinn

and

Berkson

1980;

Slotnick

1988).

Many

of

these

studies

can

be

placed

into

three

broad

cat-

egories :

(1)

the

linkage

between

selection

system

and

judges’

background

charac-

teristics

(Jacob

1966;

Glick

and

Emmert

1986),

(2)

whether

the

Missouri

plan

or

elective

systems

produce

the

most

qualified

judges

(Glick

1978),

and

(3)

voting

behavior

in

state

judicial

elections

(Adamany

and

Dubois

1976;

Dubois

1980).

2

See

Champagne

(1988)

for

a

study

of

Texas.

The

Rose

Bird

controversy

in

Califor-

nia

is

another

example

(Wold

and

Culver

1987).