redistricting maps

Why Only Some Redistricting Cases Get Three-Judge Courts

By Ben Williams | Oct. 1, 2020 | State Legislatures Magazine

It’s no secret that litigation is a frequent part of a state’s redistricting experience. The volume of cases is so vast that NCSL has multiple webpages summarizing them (major cases throughout history, litigation in the 2010s, litigation in the 2000s and more).

This decade alone, the U.S. Supreme Court ruled on more than 10 significant redistricting cases, many of which made multiple trips before the justices. In an era where the Supreme Court hears fewer than 100 cases per term, why would redistricting hold such a prominent position in its docket? The answer lies in the procedural rules set out by Congress, which force the court to hear redistricting cases while giving it discretion to take or not take cases on almost every other subject.

Under normal circumstances, a lawsuit in federal court is argued before a district court judge (with or without a jury). Once a verdict is reached, the losing party has the right to appeal that case to the appropriate federal circuit court.

Three of these appeals court judges hear the case and release an opinion on the case. At that point, the losing party has two options: ask either the full appellate court or the U.S. Supreme Court to review the earlier judges’ decision. Neither of these appeals are guaranteed, and the case could end then and there.

It wasn’t always this way. The U.S. Constitution leaves many decisions about the form and function of the federal judiciary in Congress’s hands. As a result, the procedures that govern how civil cases proceed have varied wildly over time. In the early years of the republic, most of the Supreme Court’s docket consisted of cases the justices were required to hear—so-called “mandatory jurisdiction.”

After the Civil War, as the issues raised by the Industrial Revolution precipitated an increase in the volume of litigation, Congress created the federal circuit courts of appeals. This new intermediary step between the trial courts and the Supreme Court was intended to shrink the Supreme Court’s docket to a manageable level.

To implement this, Congress passed a series of laws altering the court’s mandatory jurisdiction, with the most dramatic change coming in 1925 when the court’s jurisdiction flipped from 80% mandatory to 80% discretionary (or “certiorari”).  

By the 1970s and 1980s, even having one-fifth of its docket composed of mandatory jurisdiction proved too much for the justices. In 1988, Congress nearly eliminated the court’s mandatory jurisdiction. Since that time, only four kinds of cases can be appealed to the Supreme Court as a matter of right:

  1. Constitutional challenges to statewide reapportionment schemes or the makeup of particular congressional districts.
  2. Certain Civil Rights Act of 1964 cases the Attorney General deems to be of “national importance.”
  3. Attorney general motions for injunctions against laws which may violate the Voting Rights Act of 1965.
  4. Federal Election Commission rulings regarding the public funding of presidential campaigns.

All of these cases, per two federal statutes (28 U.S.C. § 1253 and 28 U.S.C. § 2284), are not heard by a single district court judge; instead, they are heard by a panel of three district and federal court judges. The losing party can exercise its right of appeal at the U.S. Supreme Court by filing a jurisdictional statement, at which point the justices have to rule on the case (they are not, however, required to hold an oral argument). An example of a jurisdictional statement can be seen here.

The following redistricting cases qualify for the three-judge panel procedure and have a right of appeal to the U.S. Supreme Court:

  • A constitutional challenge to an entire congressional districting plan.
  • A constitutional challenge to a particular congressional district or particular congressional districts.
  • A constitutional challenge to an entire legislative congressional districting plan.
  • A constitutional challenge to a particular legislative district or particular legislative districts.

The following redistricting cases do not qualify for the three-judge panel procedure, and instead proceed through the federal courts as do nearly all other cases:

  • A challenge to a congressional districting plan under the Voting Rights Act.
  • A challenge to a legislative districting plan under the Voting Rights Act.

Because the Supreme Court’s jurisdiction is determined by Congress, these rules could change at any time. But so long as the rules stay as they are, litigants will continue to appeal these cases to the court as a matter of right.

Even in an era when the future of the Supreme Court is uncertain and state courts’ role in the process is increasing, expect the unstoppable torrent of cases at the highest court in the land to continue.

Ben Williams is a policy specialist in NCSL’s Elections & Redistricting Program.

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