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

43 Pages Posted: 16 Jan 2018 Last revised: 5 Feb 2019

See all articles by Joshua Douglas

Joshua Douglas

University of Kentucky - College of Law

Michael Solimine

University of Cincinnati - College of Law

Date Written: February 3, 2019

Abstract

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, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court?

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 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. On the second 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.

Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.

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 (February 3, 2019). 107 Georgetown Law Journal 413 (2018). Available at SSRN: https://ssrn.com/abstract=3099771 or http://dx.doi.org/10.2139/ssrn.3099771

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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