Section 2 Challenges to Appellate Court Elections: Federalism, Linkage, and Judicial Independence

By Gaylord, Scott W. | Case Western Reserve Law Review, Fall 2018 | Go to article overview

Section 2 Challenges to Appellate Court Elections: Federalism, Linkage, and Judicial Independence


Gaylord, Scott W., Case Western Reserve Law Review


ABSTRACT

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. …

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