Precedent, Three-Judge District Courts, and the Law of Democracy

39 Pages Posted: 16 Jan 2018 Last revised: 4 Mar 2018

See all articles by Joshua Douglas

Joshua Douglas

University of Kentucky - College of Law

Michael Solimine

University of Cincinnati - College of Law

Date Written: January 10, 2018


As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, must three-judge district courts follow, as mandatory authority, circuit precedent in the circuit in which they sit? This problem arises because appeals of three-judge district courts go directly to the U.S. Supreme Court, skipping the courts of appeals. Can an appellate court that does not review their decisions still bind these courts? Second, when the U.S. Supreme Court summarily affirms the decisions of three-judge district courts, are those summary decisions precedential on all future courts?

This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decision making for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive. On the second question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion.

Hardly any previous scholars have considered these important issues involving precedent and three-judge district courts. Resolving these questions is vital to ensuring that three-judge district courts can properly adjudicate the disputes before them, ultimately helping our electoral system function as fairly as possible.

Keywords: election law, voting rights, federal courts, three-judge courts, right to vote, partisan gerrymandering, redistricting, campaign finance

Suggested Citation

Douglas, Joshua and Solimine, Michael, Precedent, Three-Judge District Courts, and the Law of Democracy (January 10, 2018). 107 Georgetown Law Journal, 2018, Forthcoming. Available at SSRN: or

Joshua Douglas (Contact Author)

University of Kentucky - College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States

Michael Solimine

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0102 (Phone)
513-556-1236 (Fax)

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