Countering Gerrymandered Courts

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers. 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 historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping those districts. Many states still draw judicial districts with those considerations, and in our era of polarization, this problem is likely to get worse. After some observations about the hypocrisies in the Supreme Court’s “independent state legislatures” precedents, this Piece offers some potential solutions: (1) extend the “one-person/one-vote” rule to judicial elections, ending the Baker v. Carr exception while retaining special due process rules for judicial elections; (2) adopt a special rule against partisan gerrymandering for judges; and/or (3) the most manageable solution, create a bright-line rule that all state judicial districts must be statewide