COUNTERING GERRYMANDERED COURTS

Introduction

Professor Miriam Seifter’s Countermajoritarian Legislatures makes a se­ries of important observations, providing a thoughtful synthesis with prac­tical impact on constitutional doctrine. 1 1 See Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733 (2021). ... Close Seifter builds on a well-known fact: Gerrymandering is especially antidemocratic in many state legisla­tures because state parties seize control of both houses of the legislature and use a mix of advanced computer programs and asymmetric hardball to draw favorable districts. 2 2 See id. at 1762–68. ... Close These partisan legislative leaders “pack” and “crack” the opposing party’s voters to entrench their own party in power, regardless of public opinion. Seifter notes that major areas of federal and state constitutional law turn on a mistaken assumption that legislatures are more democratic than the courts. This assumption has been especially controversial in the recent litigation—and surely future contests—over presidential elections. 3 3 See id. at 1743–46, 1752–53. ... Close

Seifter then adds her key insight: State legislatures are usually anti­democratic due to districting and gerrymandering, whereas state gover­nors and judiciaries are insulated from gerrymandering by statewide elections (or selection). 4 4 Id. at 1768. ... Close Governors and state supreme court judges (gen­erally) are elected statewide, so their election more likely reflects the ma­jority will of a state, especially in an era of asymmetric  constitutional hardball/beanball and extreme  partisan  gerrymandering  aided by com­puter  programs. 5 5 See generally Joseph Fishkin & David E. Pozen, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915 (2018) (examining the phenomenon of “asymmetric po­larization” and its implications for American politics); Jed Handelsman Shugerman, 119 Hardball vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, 119 Colum. L. Rev. Forum 85 (2019) [hereinafter Shugerman, Hardball] (discussing examples of funda­mentally antidemo­cratic tactics used by Republicans and the destructive impact of these tactics on American politics). ... Close While there are many problems with judicial elections, they usually do not have the democratic deficit problem of gerrymander­ing that plagues state legislatures. Seifter deserves special credit for fore­sight and efficiency in generating this article by early 2021, so soon after the November 2020 elec­tion decisions like DNC v. Wisconsin State Legislature. 6 6 See generally Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28 (2020) (denying an application to stay a Seventh Circuit decision suspending a six-day ex­tension of the absentee ballot receipt deadline in Wisconsin due to COVID-19). ... Close Seifter identifies a number of implications for the nondelega­tion doctrine and other areas of constitutional law that are spot-on. 7 7 See Seifter, supra note 1, at 1780–87 (offering two cases as examples of how alter­native rationales for doctrines like nondelegation and major questions are weakened by ma­joritarian deficits). ... Close This is a novel and important synthesis—and a cru­cial legal and political insight for our increasingly partisan era.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into anti­democratic districts. The problem is that some states do use districts for their state judicial elections, and there are growing concerns about both parties using gerrymandering for their advantage. 8 8 See infra Part II. ... Close As this Piece is being published, the Associated Press has just reported that Republican officials in many states—“[r]epeatedly stymied” by state courts blocking their par­tisan gerrymandering maps—“are trying to neutralize the ability of state supreme courts to interfere in the politically charged redistricting pro­cess.” 9 9 Associated Press, As Maps Fall, GOP Tries to Neutralize State Supreme Courts, Penn Live Patriot-News (Feb. 25, 2022), https://www.pennlive.com/news/2022/02/as-maps-fall-gop-tries-to-neutralize-state-supreme-courts.html [https://perma.cc/99RW-8L76]. ... Close The risk is that the gerrymandered legislatures will try to gerryman­der the state courts into acquiescence, with other collateral effects on the rule of law and due process.

Eight states elect judges by districts: Illinois, Kentucky, Louisiana, Maryland, Mississippi, Nebraska, Oklahoma, and South Dakota. 10 10 Methods of Judicial Selection, Nat’l Ctr. for State Cts., https://web.archive.org/​web/20210301180738/http://www.%E2%80%8Bjudicialselection.%E2%80%8Bus/judicial_selection/methods/justices_of_the_supreme_court.cfm?state= [https://​perma.​cc/​FZK7-VXUE] (last visited Nov. 7, 2021). ... Close Most of these states use districts to protect rural areas. Judicial elections began with local districts as part of a shift to local popular control, in contrast to cen­tralized and elite appointments. 11 11 See generally Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (2012) [hereinafter Shugerman, People’s Courts] (tracing this shift toward local popular control and how it contributed to the rise of local judicial elections). ... Close Unfortunately, state court seats have be­come the new battleground of gerrymandering by both parties. 12 12 See infra Part II (discussing gerrymandering in state court districting, especially in Illinois and Pennsylvania). ... Close

This Piece begins with some observations about the hypocrisies in the Supreme Court’s recent reflections on state legislatures versus courts. Part II discusses the core problem of state judicial districting and gerrymander­ing in the nineteenth century and in the present. Part III identifies a prob­lem: an ambivalent exception for state judicial districts not to follow the “one-person/one-vote” rule because judges are different from other elected officials. It then identifies a countervailing trend: Elected judges are similar enough to other elected officials for some elec­tion rules but are different enough to have special First and Fourteenth Amendment rules. Part IV picks up on those trends to suggest some possi­ble solutions: end the Baker v. Carr exception, adopt a special rule against partisan gerrymandering for judges, and—the boldest and most manage­able solution—create a bright-line rule against all state court districting, so that all state judicial districts must be statewide. At the risk of overextending the hardball/beanball metaphor I extended in another piece, such a bright-line rule makes it easier for the federal judge “umpires” to establish a clear rule, declare what is “foul” territory, and then stay out of the way. 13 13 See Shugerman, Hardball, supra note 5, at 86–89. ... Close

I. Judicial Hypocrisies in DNC v. Wisconsin State Legislature

Seifter’s observations are most salient in the aftermath of the 2020 election, the clash between courts and legislatures over pandemic accom­modations, and the effort to have state legislatures override the voters. These disputes generated a remarkable set of Supreme Court opinions of­fering disquisitions on the nature of democracy. Justice Neil Gorsuch’s opinion in DNC confirms Seifter’s concern that judges have romantic but naïve (or strategic, to take a cynical view) assumptions about legislatures.

In the summer before the 2020 election, during the COVID-19 pan­demic, Wisconsin (and other states) adopted new ballot rules to accom­modate mail-in and absentee ballots during a public health emergency. Justice Gorsuch’s opinion on Wisconsin’s mail-in ballot ac­commodations had ironic and inconsistent observations about legislative supremacy and judicial restraint for a Justice who otherwise has written widely in favor of judicial supremacy and judicial activism in cases such as Gutierrez-Brizuela on Chevron, Gundy on nondelegation, Seila Law and Collins on the unitary executive and nonseverability, California v. Texas on nonseverability, and Brnovich on the Voting Rights Act of 1965. 14 14 See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (Gorsuch, J., concurring); California v. Texas, 141 S. Ct. 2104, 2123 (2021) (Alito, J., dissenting, joined by Gorsuch, J.); Collins v. Yellen, 141 S. Ct. 1761, 1797–98 (2021) (Gorsuch, J., concurring in part) (“This Court possesses no authority to substitute its own judgment about which leg­islative solution Congress might have adopted had it considered a problem never put to it.”); Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting) (“[W]hen the separa­tion of powers is at stake, we [the judiciary] don’t just throw up our hands. In all these areas, we recognize that abdication is ‘not part of the con­stitutional design.’ And abdication here would be no more appropriate.” (quoting Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring))); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring) (“[W]here in all this does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.”). ... Close In DNC, Gorsuch celebrated legislative supremacy as a Founding principle, 15 15 Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring in denial of application to vacate stay) (“Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions.”). ... Close praised legislators over judges for their fact-finding, judgment, and consensus, 16 16 Id. (suggesting that legislators can be held accountable for the rules they write and the policy actions they take while judges typically cannot). ... Close and criticized judges who “sweep in” to ad­dress problems. 17 17 Id. (observing that “[t]he clamor for judges to sweep in and address emergent problems, and the temptation for individual judges to fill the void of perceived inaction, can be great,” but democratic processes are “a means of ensuring that any changes to the status quo will not be made hastily”). ... Close

All of these points were striking, especially in the domain of election law, where the Roberts Court has intervened to strike down major parts of the Voting Rights Act (or to minimize the Act’s impact, despite the Act’s purpose). 18 18 See, e.g., Brnovich, 141 S. Ct. at 2338–40 (weakening the applicability of section 2 of the Voting Rights Act by introducing different ways to review challenges under section 2); Shelby County v. Holder, 570 U.S. 529, 556–57 (2013) (striking section 4(b) of the Voting Rights Act as unconstitutional and therefore effectively striking section 5 as well). ... Close Gorsuch did not cite a single historical source for these claims. He apparently grounded these claims in one clause of the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” 19 19 U.S. Const. art. I, § 4. Justice Gorsuch relies on this clause in DNC. See DNC, 141 S. Ct. at 29–30 (Gorsuch, J., concurring). Kavanaugh focuses on this clause. Id. at 33 (Kavanaugh, J., concurring). ... Close

Chief Justice John Roberts distinguished a federal judge’s impermis­sible ruling in Wisconsin based on the U.S. Constitution from a Pennsylvania case permissibly turning on the state’s own constitution. 20 20 DNC, 141 S. Ct. at 28. ... Close But neither he nor Justice Gorsuch nor Justice Brett Kavanaugh ex­plained how the clause delegating a power to “state legislatures” exempts those state legislatures from adhering to other clauses of the U.S. Constitution, such as the Due Process Clause invoked by the federal dis­trict court in Bostelmann. 21 21 Id.; Democratic Nat’l Comm. v. Bostelmann, 488 F. Supp. 3d 776, 796 (W.D. Wis. 2020). ... Close Constitutional clauses delegate powers to Congress, but fed­eral legislation still must comply with the Bill of Rights and other clauses. Federal courts, like district courts, enforce such clauses. Justice Elena Kagan also identified voting rights and equal protection precedents on voting, like Reynolds v. Sims, that should be taken into consideration as lim­its on state legislative powers. 22 22 DNC, 141 S. Ct. at 43 (Kagan, J., dissenting). ... Close

Justice Gorsuch was not alone in revealing problematic assumptions in Brnovich. Justice Kavanaugh wrote of his concern about absentee ballots: “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.” 23 23 Id. at 33 (Kavanaugh, J., concurring in denial of application to vacate stay) (“Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”). ... Close Justice Kagan called out Kavanaugh in her dissent:

But there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or “improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to dis­serve the electoral process. 24 24 Id. at 42 (Kagan, J., dissenting in denial of application to vacate stay). ... Close

Justice Kavanaugh was parroting the Trump party line that absentee ballots arriving after election day are inherently suspicious. Trump sought to create an illusion that votes on election day are reliable but absentee votes are not, and Kavanaugh adopted this message uncritically. His con­currence seems to reflect a deep partisan bias.

II. The History: The Rise of State Court Districts and Gerrymandering

Seifter rightly emphasizes the democratic advantages of state judicial elections relative to state legislative elections and gerrymandered districts. As a general matter, there are significant questions as to the democratic deficits in state judicial elections. In particular, there are questions about voters’ abil­ity to assess legal questions and about countermajoritarian in­dividual rights pro­tections as part of an informed vote for judges—relative to the popular policy and cultural questions salient in legislative races. 25 25 See generally Dmitry Bam, Voter Ignorance and Judicial Elections, 102 Ky. L.J. 553 (2013–2014) (explaining how voter ignorance when it comes to judicial elections can un­dermine judicial independence and accountability). See also Shugerman, People’s Courts, supra note 11, at 112–13, 150 (“[C]ritics of statewide judicial elections feared that voters would know less about the candidates outside their district, and the voters’ lack of familiarity would make the party machines more powerful.”); David E. Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265, 293–94, 301 n.152, 309–11 (2008) (“Because it requires specialized legal knowledge and familiarity with the facts to evaluate a judge’s work in any given case, much less several years’ worth of cases, citizens cannot monitor judicial perfor­mance in any rational or robust way.”). ... Close

Seifter is mostly right—and right in a deeply important way—that state supreme court elections are usually statewide and are structurally and historically more amenable to statewide elections than legislatures, for which the Anglo-American world has used districts or ridings for centu­ries. 26 26 See Seifter, supra note 1, at 1771. ... Close Unfortunately, the assertion that judicial elections are more majori­tarian is not entirely true. State supreme courts have become a new battleground of partisan districting. 27 27 See Pozen, supra note 25, at 322–23; see also Alec Webley, Judges Are (Not?) Politicians: Williams-Yulee v. The Florida Bar and the Constitutional Law of Redistricting of Judicial Election Districts, 19 N.Y.U. J. Legis. & Pub. Pol’y 851, 862 (2016). ... Close States have been using districts for both geographic and partisan advantage from the beginning of the nine­teenth century. 28 28 See infra notes 44–54 and accompanying text. ... Close It seems there was a pause or a reversal in this practice, likely with the shift from partisan elections to the merit plan (also known as the “Missouri Plan”) of mixed appointments (by a “merit commission” composed of state bar leaders, state legislators, governors’ appointees, and sometimes sitting judges) and “yes-or-no” retention elections in the mid-twentieth century. 29 29 Shugerman, People’s Courts, supra note 11, at 177–240. ... Close But gerrymandering is back in the twenty-first century, and the problem is likely to get worse. 30 30 See Marie Albiges, This Bill Has Experts Worried the Pennsylvania GOP Could Gerrymander Judicial Districts, Slate (Feb. 1, 2021), https://slate.com/news-and-politics/​2021/02/pennsylvania-judicial-gerrymander-bill.html [https://perma.cc/9G27-J9M8]; Michael C. Li, The Redistricting Landscape, 2021–22, Brennan Ctr. for Just. 20–22 (2021), https://www.brennancenter.org/sites/default/files/2021-02/2021_2_11_​State%20of%20​Redistricting.pdf [https://perma.cc/XR8U-7GRA]. ... Close

At the Founding, state courts were similar to federal courts. Governors appointed Supreme Court judges on a statewide basis. 31 31 Shugerman, People’s Courts, supra note 11, at 27–29. ... Close Soon states short­ened judges’ terms, and thus judges needed to satisfy the governor, legis­lative leaders, and powerful party insiders in order to win reappointment. 32 32 Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061, 1070–75 (2010) [hereinafter Shugerman, Economic Crisis]. ... Close But from Jacksonian democracy of the 1830s through the Civil War, states shifted to popular election of judges and more local districts. 33 33 Id.; see also Shugerman, People’s Courts, supra note 11, at 57–83. ... Close

The overall goal of these democratic and populist reformers was to make judges more accountable to the grassroots, to facilitate more direct contact between judges and voters, and to make judges more inde­pendent from centralized control of governors, insiders, and commercial  elites who  tended to be in the  state’s  urban  center or capital. 34 34 Shugerman, Economic Crisis, supra note 32, at 1097. ... Close The first experiments with judicial elections were all with local districts. 35 35 Shugerman, People’s Courts, supra note 11, at 57–60. ... Close In 1812, Georgia adopted a new judiciary with no state supreme court but with dis­tricted circuit courts that were popularly elected. 36 36 Id. at 60. ... Close Georgians were react­ing to the land speculation scandal known as the “Yazoo Land Fraud,” in which a corrupt legislature sold land as part of a corrupt deal with insiders, and when the next legislature tried to undo these deals, the Marshall Court famously adopted the “vested rights” doctrine against legislative power in Fletcher v. Peck. 37 37 10 U.S. (6 Cranch) 87, 136–39 (1810); Shugerman, Economic Crisis, supra note 32, at 1072. ... Close They wanted to bring power back to people against com­mercial corruption, and they used a mix of elections and local dis­tricts to advance this objective. 38 38 Shugerman, People’s Courts, supra note 11, at 60–62. ... Close The elimination of a statewide supreme court gave more finality to their efforts to localize justice. 39 39 Id. ... Close A similar story moti­vated Indiana to adopt judicial elections for its intermediate appellate judges as it became a state in 1816. 40 40 Id. ... Close A group known as the “Poor Frontiersman” took power away from Indiana’s “Aristocrats,” and one such populist drew his own district so that he could become a judge. 41 41 Id. at 63–64. ... Close In 1832, Mississippi was the first state to adopt judicial elections for its su­preme court. 42 42 Id. ... Close Mississippi had been dominated by the commercial elite based in Natchez, the state’s commercial center. They were also known as the “Natchez Junto” or the “Aristocrats.” 43 43 Id. ... Close The populists, known as the “Whole Hogs,” used districts to give Natchez just one district and to give the rural parts of the state two districts. 44 44 Miss. Const. of 1832, art. IV, § 2 (“The high court of errors and appeals shall consist of three judges, any two of whom shall form a quorum. The legislature shall divide the state into three districts, and the qualified electors of each district shall elect one of said judges for the term of six years.”); see also Sid Salter, Opinion, Sid Salter: Judicial Elections Are Inherently Partisan, Clarion Ledger (Dec. 4, 2016), https://www.clarionledger.com/story/​opinion/columnists/​2016/12/04/sid-salter-judicial-elections-inherently-partisan/​94824802/ (on file with the Columbia Law Review) (de­scribing the debate surrounding judicial elections during the drafting of Mississippi’s 1832 constitution). ... Close The Whole Hogs were angry about the Natchez elite’s procreditor rulings, which were insufficiently proslavery for back­woods farmers, and about pro-Cherokee rulings like Worcester v. Georgia by the elite Marshall Court (about which President Andrew Jackson said, apocryphally, “Mr. Marshall has made his ruling. Now let him enforce it!”). 45 45 31 U.S. (6 Pet.) 515 (1832), abrogated by Nevada v. Hicks, 533 U.S. 353 (2001); Paul F. Boller, Jr. & John George, They Never Said It: A Book of False Quotes, Misquotes, & Misleading Attributions 53 (1989). ... Close Mississippi’s district lines were contiguous, but the goal was similar to ger­rymandering: Put all of Natchez in one district to limit its power. 46 46 See Shugerman, People’s Courts, supra note 11, at 66 (“[T]he ‘Whole Hogs,’ who fought for . . . judicial independence from Natchez . . . turned to judicial elections as one way to limit the Natchez Aristocrats.”). ... Close

The turning point in the national movement to elect judges was New York’s Constitutional Convention in 1846, a reaction to a national eco­nomic depression, state overspending, and insider corruption. 47 47 Id. at 84–102. ... Close In previ­ous decades, the state’s Whig Party had already pushed for more districting, knowing that they had lost ground to the Democrats statewide. 48 48 Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830, at 259–73 (2005); see also S. Croswell & R. Sutton, Debates and Proceedings in the New-York State Convention for the Revision of the Constitution 546 (1846) (recording a debate regarding districting for judicial elections). ... Close By the 1850s, the populist wing of the state Democratic Party, known as the “Barnburners,” formed a coalition with the Whigs in favor of local districts. 49 49 See Shugerman, People’s Courts, supra note 11, at 84–100 (“In the 1850s, the Barnburners and Whigs disappeared and re-emerged together in the Republican coali­tion.”); Shugerman, Economic Crisis, supra note 32, at 1081–89 (discussing the “People’s Constitution” developed by the Barnburners and Whigs, which incorporated judicial elec­tions as a way to “provide a necessary check on legislative excess, party patronage, and cor­rupt monopolies,” and “create a modern and responsive court system”). ... Close Between 1846 and the Civil War, nearly two-thirds of the states followed New York toward electing supreme court judges and most other judges. 50 50 Shugerman, People’s Courts, supra note 11, at 105; Caleb Nelson, A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 Am. J. Legal Hist. 190, 190 (1993). ... Close In the first five years, seven states drew local districts for their supreme courts: New York in 1846, Illinois in 1848, Kentucky in 1849, Michigan and Virginia in 1850, and Maryland and Indiana in 1851. 51 51 Ill. Const. of 1848, art. V, § 3, reprinted in 1 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 459 (Ben Perley Poore ed., 1877) [hereinafter 1 Federal and State Constitutions]; Ind. Const. of 1851, art. VII, §§ 2, 3, reprinted in 1 Federal and State Constitutions, supra, at 520; Ky. Const. of 1850, art. IV, § 4, reprinted in 1 Federal and State Constitutions, supra, at 675; Md. Const. of 1851, art. IV, §§ 4, 9, reprinted in 1 Federal and State Constitutions, supra, at 848–50; Mich. Const. of 1850, art. VI, § 2, reprinted in 1 Federal and State Constitutions, supra, at 1001; N.Y. Const. of 1846, art. VI, § 4, reprinted in 2 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1358–59 (Ben Perley Poore ed., 1877) [hereinafter 2 Federal and State Constitutions]; Va. Const. of 1850, art. VI, § 10, reprinted in 2 Federal and State Constitutions, supra, at 1933. ... Close

One surprising result of these changes was a boom of judicial review. Even more counterintuitive was how elected judges were some of the first expositors of countermajoritarian constitutional theory: that it was the judi­ciary’s role in a democracy to stop or curtail present majorities when they overstep the constitutional limits as a matter  of  written  law and the funda­mental  commitments of past  majorities. 52 52 See Shugerman, Economic Crisis, supra note 32, at 1124–32. ... Close Among the judges who explicitly criticized the excesses of majoritarian rule as a defense of judicial review (often with rationales based on the importance of protecting local com­munities), most were elected to districts, and not statewide courts. 53 53 Id. at 1138–39; Shugerman, People’s Courts, supra note 11, at 138 n.81. ... Close It is possible that districts helped judges see the merits in their counterma­jori­tarian design, as a flip of Seifter’s thesis: Even if a statewide majority had endorsed new legislation, local districts allowed judges to stop a ma­jority if it did not have sufficient geographic breadth. This is a rationaliza­tion for gerrymandering that benefits rural populations, but it became a foun­dation for modern constitutional theory—which is more about discrete lo­cal minorities than Carolene Products’ “discrete and insular minorities.” 54 54 United States v. Carolene Products Co., 304 U.S. 144, 152–54 n.4 (1938). ... Close

In addition to protecting local interests and rural communities, adop­tions of judicial elections and judicial redistricting were a pretext for elim­inating some or all of the Supreme Court’s judges, who were unpopular with a political party, which I have called “Bench Clearing Brawls.” 55 55 Shugerman, People’s Courts, supra note 11, at 66–77, 86–100. ... Close

Today’s judicial districting reflects the same political interests. Illinois’s supreme court districts are a classic example: one district for Chicago (Cook County) with three justices, then the  remaining four  from  districts  spread  out  over  the rest of the state. 56 56 See Map of the Five Illinois Appellate Judicial Districts, Nw. Pritzker Sch. of L., http://illinoisjudges.law.northwestern.edu/map-districts.html [https://perma.cc/BQU9-PX97] (last visited Nov. 7, 2021). ... Close Illinois had an infamous class action case against State Farm, in which State Farm was challenging a $1 billion jury verdict. 57 57 Shugerman, People’s Courts, supra note 11, at 2–3. ... Close The Illinois Supreme Court held off making a decision for a year and a half until the next election for the swing seat in a 4–3 court. The two sides spent $7 million—not for a statewide seat with Chicago media market rates but for a rural district. State Farm’s candidate won, and State Farm won the appeal by a 4–3 vote. 58 58 Id. ... Close Now, Illinois Democrats have recently proposed to redistrict and gerrymander their su­preme court districts in their favor. 59 59 Richard Pildes, IL Democrats Redraw State Supreme Court Districts for First Time in 60 Years to Keep Control, Election L. Blog (May 31, 2021), https://electionlawblog.org/​?p=122384 [https://perma.cc/QVJ8-HUEA]. ... Close Pennsylvania Republicans have their own proposal to make Pennsylvania’s seats districted and gerrymandered too. 60 60 Paul Muschick, Opinion, The Newest Assault on Your Voting Rights: Pennsylvania Judicial Gerrymandering Scheme, Morning Call (Jan. 22, 2021), https://www.mcall.com/​opinion/​mc-opi-judicial-gerrymandering-pennsylvania-muschick-20210122-ydzmmvk​mav​dy​p​pqkxw3​euph56m-story.html (on file with the Columbia Law Review). ... Close

The other states with districts also give more weight to rural areas. Kentucky puts Louisville and Lexington in their own districts, and the rest are more rural. 61 61 Michael Stevens, Map of the Kentucky Supreme Court and Court of Appeals Regions (Counties Covered), Ky. Ct. Rep. (Dec. 8, 2012), https://kycourtreport.com/map-of-the-kentucky-supreme-court-and-court-of-appeals-regions-counties-covered/ [https://​perma.​cc/​4TAG-GWCH]. ... Close Louisiana has seven districts; the first and seventh are for New Orleans, and the other five are larger and rural. 62 62 Louisiana District Courts Judicial Districts, La. Sup. Ct., https://www.lasc.org/​About/​​Mapsof​Judicial​Districts [https://perma.cc/D8K5-D5J5] (last visited Feb. 19, 2022). ... Close Nebraska has three geographically tight urban and suburban districts and three rural districts, plus a chief judge who serves statewide. 63 63 Supreme Court, Neb. Jud. Branch, https://supremecourt.​nebraska.gov/​courts/​supreme-court [https://perma.cc/J8E9-9A94] (last visited Feb. 19, 2022). ... Close South Dakota also has a rural advantage with its five districts. It has one geographically small district for the state’s most popu­lous county while the rest are rural. 64 64 South Dakota Supreme Court Appointment Districts, S.D. Unified Jud. Sys.,<br>https://ujs.sd.gov/uploads/sc/SC_Appt_Districts.pdf [https://perma.cc/SN4A-AVW2] (last visited Feb. 19, 2022). ... Close Maryland’s dis­tricting works in the other direction: The first and third districts are rural and the other five are urban and suburban. 65 65 Directory of Appellate, Circuit, District and Orphans’ Courts, Md. Cts., https://​mdcourts.gov/courtsdirectory [https://perma.cc/C4FK-L2FL] (last visited Dec. 29, 2021). ... Close Mississippi seems to have no urban/rural divide but instead has three regional bands: north, south, and central. 66 66 Mississippi Supreme Court Judicial Map, Miss. Jud., https://courts.ms.gov/​appellate​courts/sc/scdistricts.php [https://perma.cc/586C-LYGB] (last visited Nov. 6, 2021). ... Close Oklahoma had districts with a rural tilt, but a redistricting fight from 2019 to 2020 shifted the balance toward urban areas. 67 67 See Caroline Halter, Lawmakers Reconfigure Oklahoma’s Judicial Districts, KGOU (Apr. 18, 2019), https://www.kgou.org/oklahoma-news/2019-04-18/lawmakers-reconfigure-oklahomas-judicial-districts [https://perma.cc/396H-TT8B]. ... Close

III. Elected Judges Are Elected . . . and They Are Judges

A. The “One-Person/One-Vote” Exception

The Supreme Court recognizes that judges are different from other kinds of officials, but it applies this distinction in contradictory ways. Some­times the Court gives elected judges extra insulation from base politics and corruption, as shown in cases like Caperton and Williams-Yulee. 68 68 Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015); Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). ... Close When it comes to districting, however, the oddity is that the Court gives judges less protection than legislators from the corrupt base politics of disproportion­ate count­ing and gerrymandering.

Imbalanced districts giving more representation to fewer people were once called “rotten boroughs” or “pocket boroughs” in the English tradi­tion. In the American tradition, such districts often benefited the white, the wealthy, and the rural. They were abolished  for  Congress  and  legisla­tures  in  Baker v. Carr 69 69 369 U.S. 186 (1962). ... Close and Reynolds v. Sims 70 70 377 U.S. 533 (1964). ... Close with the equal protection rule of “one-person/one-vote.” The Supreme Court, however, exempted judi­cial electoral districts from the “one-person/one-vote” rule. 71 71 See Reynolds, 377 U.S. at 577 (“We realize that it is a practical impossibility to ar­range legislative districts so that each one has an identical number of residents, or citizens, or voters.”); Baker, 369 U.S. at 265 (Stewart, J., concurring) (“The Court does not say or imply that there is anything in the Federal Constitution ‘to prevent a State, acting not irra­tionally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.’”). ... Close

In 1973, the Supreme Court affirmed (without issuing an opinion) a district court’s ruling in Wells v. Edwards that “the concept of one-man, one-vote apportionment does not apply to the judicial branch of the gov­ernment.” 72 72 347 F. Supp. 453, 454 (M.D. La. 1972), aff’d mem., 409 U.S. 1095, 1095 (1973). ... Close As a result, state judges can be elected from districts that differ significantly in size. 73 73 See id. at 455 (holding that the main “purpose of one-man, one-vote apportion­ment is to make sure that each official member of an elected body speaks for approximately the same number of constituents,” and since “judges do not represent people, they serve” them, the rationale behind one-man, one-vote is irrelevant to the judiciary); see also Andrew S. Marovitz, Casting a Meaningful Ballot: Applying One-Person, One-Vote to Judicial Elections Involving Racial Discrimination, 98 Yale L.J. 1193, 1194 (1989). ... Close Wells was just a three-page district court opinion by a three-judge panel (a standard panel for districting cases). The panel acknowledged that in a follow-up case after Baker v. Carr, the Court ex­tended the “one-person/one-vote” rule to the districting of junior college trustee seats, due to the power of the trustees to tax, make contracts, and remove teachers, among other powers. 74 74 Hadley v. Junior College Dist., 397 U.S. 50, 53–54 (1970). ... Close But the district court panel fo­cused on this case’s limited holding:

We therefore hold today that as a general rule, whenever a State or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that elec­tion, and . . . as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. 75 75 Wells, 347 F. Supp. at 455 (citing Hadley, 397 U.S. at 795). ... Close

The Wells panel then explained:

‘[G]overnmental functions’ involved related to such things as making laws, levying and collecting taxes, issuing bonds, hiring and firing personnel, making contracts, collecting fees, operat­ing schools, and generally managing and governing people. In other words, apportionment cases have always dealt with elected officials who performed legislative or executive type duties, and in no case has the one-man, one-vote principle been extended to the judiciary. 76 76 Id. Wells cited other district court cases that had held that “one-person/one-vote” cases do not apply to the judiciary. See Holshouser v. Scott, 335 F. Supp. 928, 930–32 (M.D.N.C. 1971); N.Y. State Ass’n of Trial Laws. v. Rockefeller, 267 F. Supp. 148, 153–54 (S.D.N.Y. 1967); Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964); Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 1960), appeal dismissed, 385 U.S. 3 (1966). ... Close

The panel quoted two other cases with the same conclusion: “Judges do not represent people, they serve people.” 77 77 Wells, 347 F. Supp. at 455 (citing Buchanan, 249 F. Supp. at 860). ... Close “The State judiciary, unlike the legislature, is not the organ responsible for achieving representative government.” 78 78 Id. at 456 (citing N.Y. State Ass’n of Trial Laws, 267 F. Supp. at 153). ... Close

These distinctions are facile, and they no longer hold up in light of other Supreme Court decisions ruling that judges do represent the people they serve or the Ely-ian Democracy and Distrust perspective that Seifter of­fers (explaining that the state judiciary is the organ responsible for pro­tecting representa­tive government from itself). 79 79 See Chisom v. Roemer, 501 U.S. 380, 401 (1991); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 8–9 (1980) (“The people have chosen the principle that the statute or practice violated, have designated it as fundamental, and have written it down in the text of the Constitution for the judges to interpret and apply.”). ... Close

B. Elected Judges Are Elected (So They Are Representatives)

If judges are less “representative” than legislators, there is even less of an excuse to draw districts so focused on local sets of interests or geo­graphic interests that they override equal counting. But it turns out that the Supreme Court has recognized both the representativeness of elected judges and their special status requiring the extra protection of due process.

Federal courts have raised questions about the assumptions in Wells v. Edwards, suggesting that judicial elections have the same problems as any other election, and perhaps more as there are additional due process con­cerns in judicial elections. In Chisom v. Roemer in 1991, the Court decided that section 2 of the Voting Rights Act applies to judicial elections, but declined to revisit the “one-person/one-vote” question as a matter of equal protection. 80 80 See Chisom, 501 U.S. at 401–03. ... Close It did, however, engage the status of judicial elections as a statutory matter under the Voting Rights Act. 81 81 Id. at 404. ... Close The Court addressed an argument that judges are different: One should not worry about elec­toral politics impermissibly influencing elected judges because the job de­scrip­tion of judges is to ignore or overcome popular sentiment. 82 82 Id. at 400. ... Close The Supreme Court rejected this argument, observing that once a state has “decided to elect its judges and to compel judicial candidates to vie for popular sup­port just as other political candidates do,” it has opted to re­move judges from the shelter provided by appointment. 83 83 Id. ... Close The Court in Chisom concluded:

If executive officers, such as prosecutors, sheriffs, state attorneys general, and state treasurers, can be considered “representa­tives” simply because they are chosen by popular election, then the same reasoning should apply to elected judges . . . . 84 84 Id. at 399. ... Close

The fundamental tension between the ideal character of the judicial office and the real world of electoral politics cannot be resolved by credit­ing judges with total indifference to the popular will while simultaneously requiring them to run for elected office. When each of several members of a court must be a resident of a separate district and must be elected by the voters of that district, it seems both reasonable and realistic to charac­terize the winners as representatives of that district. 85 85 Id. at 399–401. ... Close

This logic suggests that equal protection and “one-person/one-vote” ought to apply, except for the problem of stare decisis, though the defer­ence here is not toward a Supreme Court decision but merely a summary affirmance of a three-judge district court panel opinion and no separate de­cision. Other recent cases are consistent with Chisom. In 1992, the Fourth Circuit ruled that even if “one-person/one-vote” did not apply to judicial elections, the Fourteenth Amendment separately prohibited a “vote dilu­tion” scheme because “the election of superior court judges in North Carolina implicates the goal of equal  protection and issues of fair and ef­fective representation.” 86 86 Republican Party of N.C. v. Martin, 980 F.2d 943, 953 (4th Cir. 1992). ... Close

Intriguingly, Justice Antonin Scalia offered a similar argument in Republican Party of Minnesota v. White. 87 87 See 536 U.S. 765, 774 (2002). ... Close There the Court struck down the Minnesota code of judicial ethics “announce clause,” which prohibited ju­dicial candidates from declaring their positions on contested legal or po­litical issues. Scalia acknowledged that impartiality is a relevant interest for judges, but “it is not a compelling state interest, as strict scrutiny requires.” 88 88 Id. at 777. ... Close Then Scalia rejected Justice Ruth Bader Ginsburg’s argument that judges were “different,” arguing that they are so similar to legislators that they should have the same political speech rights. 89 89 Id. at 784 (citation omitted) (“This complete separation of the judiciary from the enterprise of ‘representative government’ . . . is not a true picture of the American system. Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the States’ constitutions as well.”). ... Close

Not only did Scalia argue that judges are “representative” (undercut­ting the earlier cases distinguishing judges and exempting them from Baker v. Carr), but he also avoided the question of whether a state ethics code could prohibit “pledges or promises.” 90 90 Id. at 770. ... Close Justice Sandra Day O’Connor wrote separately “to express [her] concerns about judicial elec­tions gen­erally” in that they undermine “impartiality.” 91 91 Id. at 789 (O’Connor, J., concurring). ... Close Consistent with the notion that judicial elections are like other representative elections, she con­cluded, “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.” 92 92 Id. at 792. ... Close Justice Anthony Kennedy similarly observed, “The State cannot opt for an elected judiciary and then assert that its de­mocracy, in order to work as desired, compels the abridgment of speech.” 93 93 Id. at 795 (Kennedy, J., concurring). ... Close Thus, the Court has clarified that judicial elections are like other elections. But Kennedy also concluded by pivoting to how judges are different:

Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order. 94 94 Id. at 793. ... Close

C. Indeed, Elected Judges Are Judges (Requiring More Constitutional Protections)

Picking up from Kennedy’s concurrence in White and “judicial integ­rity,” the Court has also held that judicial elections also implicate due pro­cess rights that require limits on the First Amendment and campaign finance. There is already a long line of cases establishing recusal rules to protect impartiality, 95 95 See, e.g., Bracy v. Gramley, 520 U.S. 899, 905 (1997) (finding that due process was violated when a judge was covering up a bribery pattern by ruling against defendants who had not given a bribe); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822–25 (1986) (finding that due process requires recusal when a judge has a financial interest to find against one of the parties); Ward v. Village of Monroeville, 409 U.S. 57, 58–62 (1972) (same); Johnson v. Mississippi, 403 U.S. 212, 215–16 (1971) (per curiam) (holding that due process requires recusal if one of the parties previously litigated successfully against that judge); In re Murchison, 349 U.S. 133, 137–39 (1955) (holding that defendant’s due process rights were violated when the judge was also the indicting prosecutor); Tumey v. Ohio, 273 U.S. 510, 523, 531–34 (1927) (holding that due process requires recusal when a judge has a financial interest to find against one of the parties). ... Close and they were recently extended to major campaign contributors. In Caperton, Justice Kennedy, writing for a 5–4 ma­jority, found that due process required a recusal rule for major donors and cam­paign spenders in judicial elections. 96 96 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884–87 (2009). ... Close Not only did Kennedy hold that due process requires recusals in “extreme” cases on a “probability of bias” standard, but he also approved of the stricter recusal rules in many state judicial conduct codes: “Almost every State . . . has adopted the American Bar Association’s objective standard: ‘A judge shall avoid impropriety and the appearance of impropriety.’” 97 97 Id. at 888 (quoting Model Code of Jud. Conduct Canon 2 (Am. Bar Ass’n 2004)). ... Close Kennedy emphasized the special role of judges:

These codes of conduct serve to maintain the integrity of the ju­diciary and the rule of law. The Conference of the Chief Justices has underscored that the codes are “[t]he principal safeguard against judicial campaign abuses” that threaten to imperil “pub­lic confidence in the fairness and integrity of the nation’s elected judges.” . . . This is a vital state interest. 98 98 Id. at 889 (internal citation omitted). ... Close

Then Kennedy quoted his White concurrence at length on “judicial integrity.” I have argued that Kennedy’s standard in Caperton ought to have been “the appearance of bias” and not a more  permissive and  less  man­ageable  standard of “probability of bias.” 99 99 See Jed Handelsman Shugerman, In Defense of Appearances: What Caperton v. Massey Should Have Said, 59 DePaul L. Rev. 529, 530–31 (2010). ... Close Nevertheless, Kennedy’s point is salutary for judicial districting: Gerrymandering undermines the integ­rity of the courts, and considering the courts’ role in policing democratic excesses, gerrymandering undermines the integrity of American democracy.

Then, in 2015, Chief Justice Roberts and Justice Kennedy switched sides. In Williams-Yulee, Chief Justice Roberts, for a new 5–4 majority, ap­plied an exception to the First Amendment in campaigns, al­lowing states to prohibit state judicial candidates from asking for campaign donations (a core kind of political speech). The Court adopted what is colloquially known as the “thank you, but not please” rule for judicial campaigns, be­cause they can send a “thank you” note, even if they cannot ask for the donation first. 100 100 Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445 (2015); Mark Walsh, Judges May Not Seek Campaign Cash, But They May Express Their Gratitude, SCOTUS Determines, ABA J. (July 1, 2015), https://www.abajournal.com/magazine/​article/judges_may_not_seek_​campaign_​cash_​but_they_may_express_their_gratitude/ [https://perma.cc/7CXA-L6T2]. ... Close

Roberts’s opinion quoted both Justice Kennedy and Alexander Hamilton on the specialness of judges:

We have recognized the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation’s elected judges.” . . . The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” . . . The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions . . . . It follows that public per­ception of judicial integrity is “a state interest of the highest order.” 101 101 Williams-Yulee, 575 U.S. at 433–34 (citations omitted) (first quoting Caperton, 556 U.S. at 889; then quoting The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961); and then quoting Caperton, 556 U.S. at 889). ... Close

The bottom line is that the line of cases from Chisom hold that elected judges are similar enough to other elected officials as representatives to follow the same Voting Rights Act rules in their elections, but in a longer line of Anglo-American cases, judges are so fundamentally different that special due process rules apply. It would be consistent with such prece­dents to end the Baker v. Carr exception and also establish special rules for judicial elections to protect due process. Below are three possible solutions to avoid the looming hardball/beanball politics of judicial gerrymandering.

Iv. Three Constitutional Solutions

Seifter is right about the  advantages of  statewide  nongerrymandered  judicial  offices. 102 102 See Seifter, supra note 1, at 1771–74 (explaining how judicial elections can foster majoritarianism). ... Close Given that gerrymandering judicial districts would exac­erbate the problems she has wisely identified, this Piece proposes three constitutional solutions: (1) Apply the “one-person/one-vote” rule to state judicial court districts; (2) prohibit partisan gerrymandering for state judi­cial districts; and (3) prohibit state judicial districting entirely, a bolder but also more workable and manageable rule.

A. Apply the “One-Person/One-Vote” Rule to State Judicial Court Districts

This change is simple enough, for the reasons given above in Part III. But this rule is not enough, as the past few years of extreme partisan ger­rymandering have demonstrated. 103 103 See Rucho v. Common Cause, 139 S. Ct. 2484, 2509 (2019) (Kagan, J., dissenting) (not­ing how extreme partisan gerrymandering has “debased and dishonored our democ­racy, turning upside-down the core American idea that all governmental power derives from the people”); Reid J. Epstein & Nick Corasaniti, Republicans Gain Heavy House Edge in 2022 as Gerrymandered Maps Emerge, N.Y. Times (Nov. 15, 2021), https://www.​nytimes.com/​2021/​11/15/us/politics/republicans-2022-redistricting-maps.html (on file with the Columbia Law Review) (last updated Nov. 17, 2021) (observing that “[t]he rapidly form­ing congressional map . . . represents an even more extreme warp­ing of American political architecture” only exacerbated by the fact that “the legal landscape has shifted since the last redistricting cycle”); Michael Li & Tim Lau, The Emerging Fight over Gerrymandering, Brennan Ctr. for Just. (Mar. 16, 2021), https://www.brennancenter.org/​our-work/research-reports/emerging-fight-over-gerrymandering [https://perma.cc/5P3X-56UC]; David A. Lieb & Nicholas Riccardi, Gerrymandering Surges as States Redraw Maps for House Seats, AP News (Nov. 10, 2021), https://apnews.com/article/redistricting-gerrymandering-46cea​f3​fb90a4ce3b2fc026c7c18e747 (on file with the Columbia Law Review) (noting a “cy­cle of supercharged gerrymandering” attributable in part to the fact that “[t]he legal land­scape has changed since 2010 to make it harder to challenge gerrymanders.”); Ashlyn Still, Harry Stevens & Kevin Uhrmacher, Competitive House Districts are Getting Wiped off the Map, Wash. Post (Nov. 23, 2021), https://www.washingtonpost.com/​politics/​​2021/11/23/​gerrymandering-redistricting-competitive-house-districts [https://​perma.​cc/ZG77-GEGB] (explaining how extreme partisan gerrymandering is wiping competitive congressional dis­tricts off the map). ... Close

B. Create an Antipartisan Gerrymandering Exception for Judicial Districts

In Rucho v. Common Cause, the Supreme Court declined, in a 5–4 vote, to place limits on partisan gerrymandering. 104 104 139 S. Ct. at 2507–08. ... Close The courts should recognize that judicial districting is different, for the same reasons indicated in Kennedy’s White concurrence, in Caperton, and in Williams-Yulee: the pro­tection of “judicial integrity” and “the rule of law.” The Court was narrowly divided on whether to apply Equal Protection limits (or the First Amendment notion of “freedom of association”) to excessively partisan legislative gerrymandering. 105 105 Id. ... Close If the Court saw this question as a close call for legislators, it should see additional reasons to protect judicial integrity to tip this close balance.

If the Court was willing to extend the Fifth and Fourteenth Amendments to establish a functional indirect limit on First Amendment campaign finance issues in Caperton and more directly limit judges’ First Amendment rights in Williams-Yulee, then surely the Court can entertain a Fourteenth and/or First Amendment limit on partisan districting when there is no similar individual right or equality concern on the other side. 106 106 See Williams-Yulee, 575 U.S. at 445; Caperton, 556 U.S. at 884–87. ... Close The problem is manageability. Once districting is allowed, how partisan is “too partisan”? This line-drawing problem is likely a major reason why the Supreme Court got cold feet about finding extreme partisan gerrymander­ing justiciable, and instead found it to be a “political question.”

C. Bright-Line Rule: Prohibit Supreme Court Districting Entirely

As Justice Felix Frankfurter wrote of the districting problem years before Baker v. Carr, “Courts ought not to enter this political thicket.” 107 107 Colegrove v. Green, 328 U.S. 549, 556 (1946). ... Close  There is an obvious solution to this thicket and the line-drawing problem: a bright-line rule against all state supreme court district­ing. If a state chooses judi­cial elections, all seats must be statewide.

This bright-line rule would be the boldest but also the most workable and manageable of all these proposals: All state supreme court judicial elections must be statewide. This prophylactic rule may go far beyond ju­dicial minimalism, but the problem of federal judges deciding which dis­tricts are too partisan implicates the partisan bias (or appearance of partisan bias) among a federal judiciary increasingly perceived as partisan itself. The problem of an imbalanced district in Baker v. Carr was originally called a “thicket.” A bright-line rule is the best preventative prophylactic so federal judges can avoid this “thicket” entirely. Constitutional law has many prophylactic rules: Miranda warnings; the exclusionary rule; and even the legislative districting rules of contiguity as a prophylactic against impermissible racial gerrymandering. 108 108 See United States v. Herrera, 444 F.3d 1238, 1255 (10th Cir. 2006) (“[T]he exclu­sionary rule is a prophylactic doctrine designed to modify police conduct that is not objec­tively reasonable.”); Melissa L. Saunders, Reconsidering Shaw: The Miranda of Race-Conscious Districting, 109 Yale L.J. 1603, 1606 (2000) (“[L]imitations on race-conscious districting . . . are a ‘prophylactic measure’ that overprotects constitutional rights . . . .”). ... Close Daryl Levinson finds modern def­amation law as a prophylactic rule to protect the First Amendment. He notes, “[C]onstitutional rights so routinely include prophylactic compo­nents that attempting to distinguish the ‘real’ right from its ‘remedial’ in­gredients is both hopeless and pointless.” 109 109 Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 899–904, 902 n.186 (1999). ... Close David Strauss has called prophylactic rules “ubiquitous” and as incorporating the “strict scrutiny” test itself:

Strict scrutiny therefore goes beyond the “real” equal protection clause. But the Court has determined that it is worth paying this price in order to avoid both the costs of a case-by-case approach and the risk that such an approach would lead to erroneous de­cisions upholding classifications based on prejudice. 110 110 David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 205 (1988); see also Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 448–53 (1987) (arguing that prophylactic rules are an appropriate judicial response to the diffi­culties of adjudication in certain complex or fact-intensive situations). ... Close

Thus, prophylactic rules play a crucial role in allowing judges to guard constitutional rights manageably because otherwise, they could not real­is­tically protect rights at all. Without a bright-line prophylactic rule against judicial districts, courts would not have a manageable rule to differentiate between permissible and impermissible districting. Indeed, Samuel Issacharoff and Sanford Levinson have suggested that the Baker/Reynolds “one-person/one-vote” rule itself is a simpler prophylactic rule to protect equality more robustly and more manageably than the core but amor­phous question of equal protection. 111 111 Samuel Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 Tex. L. Rev. 1643, 1657 (1993); Sanford Levinson, One Person, One Vote: A Mantra in Need of Meaning, 80 N.C. L. Rev. 1269, 1281 n.40 (2002). ... Close A no-judicial-districts rule would simply replace one prophylactic bright-line rule with another.

And what about the political question doctrine ruling in Rucho? Judges are easily distinguishable. Judges and judicial integrity are not mere political questions committed to the political branches. And to the extent that the political question doctrine turns on judicially manageable stand­ards, the bright-line rule eliminates this concern.

Conclusion

In this era of asymmetric hyperpartisanship and antidemocratic hard­ball and beanball, when partisans are openly calling for state courts and state legislatures to overturn the will of voters and our democracy faces the worst abuses imagined by readers of Democracy and Distrust, it seems neces­sary for judicial intervention to save democracy with bright-line rules. 112 112 See generally Ely, supra note 79 (explaining the importance of the courts in pro­tecting both majority governance and minority rights). ... Close The metaphor from John Hart Ely is that the courts need to play umpire among var­ious parties and interest groups to protect a fair game. “Constitutional hardball” is playing by the rules, but playing aggressively. We are in an era of “constitutional beanball”: breaking the rules by trying to injure the op­ponent and disable democracy. In America’s game of in­creasingly aggres­sive beanball, we need a bright-line judicial hardball rule. Considering our increasingly partisan judiciary, perhaps we should not rely so much on fed­eral judges to have to call subjective balls and strikes every day for a full season. By playing hardball against judicial-gerrymandered beanball, a bright-line rule against judicial districts would allow federal judges to stay off the field and, as a result, state judges might be slightly more reliable umpires.