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

AuthorBarbara Luck Graham
DOI10.1177/106591299104400106
Published date01 March 1991
Date01 March 1991
Subject MatterArticles
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).

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