Author:Gaylord, Scott W.


In Chisom v. Roemer, the United States Supreme Court held that judicial elections fall within the ambit of section 2 of the Voting Rights Act of 1965, which precludes election practices and structures that result in racial discrimination. In so doing, though, the Chisom Court recognized that "serious problems [may] he ahead in applying the 'totality of circumstances' standard" developed in section 2 to cases involving legislative elections to the election of judges. These problems stem from the significantly different roles that the two branches serve in our republican form of government. As Justice Ginsburg explained in her dissent in Republican Party of Minnesota v. White, "judges perform a function fundamentally different from that of the people's elected representatives;" judges "represen[t] the Law," not "the voters who placed them in office." Consequently, to "assure its people that judges will apply the law without fear of favor," states have broad authority to adopt and to maintain the judicial selection method they deem best to preserve the independence and integrity of their judiciary.

When applied to judicial elections, then, section 2 raises novel and difficult federalism concerns, pitting seminal civil rights legislation against a state's inherent authority to structure its judicial department. Specifically, in the judicial election context, section 2 challenges a state's interest in "linkage"--i.e., in maintaining the connection between a judge's jurisdiction and her electoral base. The Fifth, Sixth, Seventh, and Eleventh Circuits have turned away section 2 challenges to the election of trial judges, concluding that linkage constitutes a substantial state interest bearing on both the totality of the circumstances analysis and whether there is a feasible remedy to the challenged electoral scheme. The Fifth and Eleventh Circuits, however, have suggested that a state's linkage interest may be diminished with respect to its appellate courts, which decide cases through multimember panels that resemble legislative bodies, not trial courts. Drawing on these claims, the NAACP and other individual plaintiffs have filed section 2 actions in Texas and Alabama, arguing that the statewide election of appellate judges in those states impermissibly dilutes the vote of minority voters.

Given that thirty-eight states use some form of judicial elections in selecting their appellate courts, these new section 2 cases directly threaten the ability of states to adopt the judicial selection method that they think best advances the independence and accountability of their judiciary. This Article contends that a state's interest in linkage applies equally to its trial and appellate courts and that this interest should be accorded significant weight under a section 2 analysis, especially when the overarching judicial selection scheme (and not a particular discriminatory device) is challenged. To provide a better understanding of a state's linkage interest, Section II explores the different methods of judicial selection that the federal and state governments adopted at the founding as well as the reasons for these selections. In particular, this Section explains how developing threats to the independence and accountability of state judiciaries--not racial animus--led a majority of the states in the nineteenth century to adopt judicial elections. Section III examines two problems that attend section 2 challenges to judicial election schemes: the lack of a benchmark (which is a necessary condition under Holder v. Hall) and the states' linkage interest in their appellate courts. Given the variety of judicial election methods states have adopted--partisan, nonpartisan, districts, statewide, and retention elections--courts do not have an objective way to specify an appropriate benchmark, a norm for deciding whether there has been vote dilution. Moreover, a state's concern with the accountability and independence of its judiciary is heightened with regard to its appellate courts because these courts interpret the state constitution, make common law, and affect policy for all the citizens of the state. Accordingly, the article concludes that federal courts should afford the states' linkage interest substantial deference under section 2 of the Voting Rights Act.

CONTENTS INTRODUCTION I. JUDICIAL SELECTION AT THE FOUNDING TO THE MID-NINETEENTH CENTURY: THE FEDERAL AND STATE METHODS DIVERGE IN RESPONSES TO DIFFERING THREATS TO JUDICIAL INDEPENDENCE AND ACCOUNTABILITY A. The Federal Model of Appointments: Independence from the Crown B. The Vertical Separation of Powers and Judicial Selection in the States at the Founding C. During the Mid-Nineteenth Century, States Shifted to Judicial Elections to Promote Independence from the Legislature and Accountability to the People II. SECTION TWO CHALLENGES TO JUDICIAL ELECTIONS MUST PROVIDE A BENCHMARK AND OVERCOME A STATE'S SUBSTANTIAL INTEREST IN LINKAGE A. Courts Lack Objective Criteria for Determining Which Method of Judicial Selection Should Serve as a Reasonable Benchmark B. The States' Substantial Interest in Linkage Applies Equally to Their Appellate Courts, Which Establish Precedent and Policy for All of Their Citizens CONCLUSION INTRODUCTION

The Voting Rights Act of 1965 (1) (the "VRA") "employed extraordinary measures to address an extraordinary problem," (2) the prolonged failure to enforce the Fifteenth Amendment's guarantee of the right of all citizens to vote. (3) Initial legislative efforts to enforce the Amendment were inconsistently applied and ultimately repealed during Jim Crow. (4) Legislation in the 1950s and 1960s proved equally ineffective as enforcement actions were slow and states found new ways to suppress minority voting. (5) Section 2 of the VRA, therefore, took a different tack. It imposed a nationwide prohibition on any infringement of the right to vote "on account of race or color." (6) In particular, section 2(a) declared that " [n] o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." (7) Section 2(b) stated that,

[a] violation of [section 2(a)] is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State ... are not equally open to participation by members of a class of citizens protected by [section 2(a)] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. (8) Consequently, section 2 precludes election practices (e.g., poll taxes and literary tests) and structures (e.g., subdistricts or at-large elections) that are intended to discriminate based on race or that result in such racial discrimination. To make out a section 2 claim, a plaintiff must show that the challenged practices and procedures either (1) were adopted with discriminatory intent or (2) resulted in the denial or abridgement of the right to vote. (9)

In two companion cases, Chisorn v. Roemer (10) and Houston Lawyers' Ass'n v. Attorney General of Texas, (11) the United States Supreme Court held that section 2 applies to judicial elections but did not provide guidance as to what a plaintiff would have to show to make out her claim in the judicial context. (12) Given that the Gingles factors "cannot be applied mechanically and without regard to the nature of the claim," (13) the Court recognized that "serious problems [may] lie ahead in applying the 'totality of circumstances'" test developed in the context of legislative elections to judicial elections. (14) Although judges are "representatives" for the purpose of section 2, they "perform a function fundamentally different from that of the people's elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; 'judge[s] represent[t] the Law.'" (15) As a result, "[a] State may assure its people that judges will apply the law without fear or favor" (16) by, among other things, adopting the method of judicial selection that a State deems most appropriate for promoting the independence, accountability, and integrity of its judiciary.

With respect to judicial elections, the Court has held that states have an important interest in "linkage"--in making a judge's jurisdiction co-extensive with his or her voters' area of residency--to safeguard these qualities in their judiciaries. (17) The Fifth and Eleventh Circuits, however, have suggested that a state's linkage interest might be limited to its trial courts. Whereas trial judges decide cases on an individual basis, multi-member appellate courts conduct their work through panels such that "there might be more to be said for some form of 'representation' on a collegial court (like a state supreme court) than on a single-judge trial court." (18) Two current cases working through the federal system (one in Alabama and one in Texas) (19) require the federal courts to decide two important issues--whether states have a linkage interest with regard to appellate court elections and, if so, how much weight should be given that interest when considering the Gingles totality of the circumstances analysis and the feasibility of the plaintiffs' proposed remedy. (20) Given that thirty-eight states use elections in some capacity in selecting the members of their judiciary, the resolution of these issues will have a wide-ranging impact on a critically important facet of federalism--the ability of states to adopt the method of judicial selection that they believe best promotes the independence, accountability, and integrity of their judicial departments. (21)

In the Alabama and Texas actions, the plaintiffs...

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