Judicial Redistricting: Issue Politicians Don't Want to Discuss
Kentucky's failed attempt this year illustrates a problem that many states face: Some judges are severely overworked while others don't have enough to do. But fixing that can be politically impossible.
A lot has changed in Kentucky since 1893. There are the obvious advancements in technology and culture, of course. And then there’s the state’s population centers, which have shifted and evolved as well. Once-prosperous coal towns have emptied out; former farmlands outside Lexington and Louisville have bloomed with exurban families. Overall, the state has added some 2.3 million residents over the past century, even as its rural counties collectively have lost more than a million people.
There have been attempts to redraw the lines over the years, but the task has proven to be so politically difficult that most people have simply thrown up their hands and admitted defeat. One chief justice in the 1980s spent years on plans that ultimately went nowhere. Another refused to discuss the issue altogether, dismissing it as a political third rail.
John Minton Jr., the current chief justice, is well acquainted with all of this history. So he was less than thrilled three years ago when the state legislature tasked him and the state Supreme Court with presenting a plan to rebalance judgeships across Kentucky. Such a redistricting would mean adding positions in some places, while eliminating judgeships in others. Taking an elected judgeship away from a community is a good way to make enemies, from residents to state lawmakers to the judges themselves. As an elected official himself, Minton knew a redistricting plan would probably draw political opposition in future bids to keep his own job. “I went into this as a reluctant participant,” Minton says. “No community wants to be told it’s got to give up a judgeship. There are going to be some who gain and some who lose. And those who lose, they speak up.”
But Kentucky’s court mismatch had become too big a problem to ignore. The Senate had ordered a third-party study of judges’ relative workloads across the state. It found that the problem wasn’t just a geographic and demographic disconnect. The state had too many district and circuit court judges, but not enough judges in family courts, which had become overwhelmed by a surge in child abuse and neglect cases. The judicial map simply wasn’t fair, and the study’s results suggested that taxpayer dollars weren’t being spent as efficiently as they could be.
So Minton and his colleagues spent more than two years developing a framework for redistributing the state’s judgeships. In an effort to sidestep regional politics, the plan they came up with was based on a field study that measured both the time and complexity of caseloads. The total number of judgeships wouldn’t change, and the price tag (about $2 million) would be a quarter of the estimated cost to simply hire additional family court judges. No one would be kicked out of office in the middle of a term: The new system wouldn’t go into place until 2022, the next time that every affected position is up for re-election. All it needed was a rubber stamp this spring from the legislature, which had ordered the redistricting proposal in the first place.
Kentucky Chief Justice John Minton was tasked with redrawing his state's judicial map to better align with current needs. (AP)
It should have been simple. This year, for the first time in decades, Republicans controlled both chambers of the Kentucky Legislature. Party leadership in the Senate had already endorsed the redistricting proposal, naming it as one of its top priorities for the year, and passed a bill in March. But the momentum stopped there. The new Republican House majority, ignoring their peers in the Senate, let the bill die in committee. Minton and his allies haven’t given up on passing legislation next year. The bill’s sponsor, Sen. John Schickel, says there simply wasn’t enough time this session to educate House members about the proposal. By next year, he says, he’ll have the votes to put the plan into effect. But it’s also possible that redistricting, which inherently leaves some stakeholders unhappy, still won’t garner enough support from lawmakers whose districts are losing a judge.
If Kentucky had passed a system-wide overhaul of its districts, it would have been a major departure from how most states address problems in judicial workload. States often tinker with the number of judges across a state, and sometimes they combine neighboring districts. But in terms of a large-scale remaking of the map, “it’s simply not done,” says William Raftery, an analyst with the National Center for State Courts. “The much more common situation is to add a judge here, take a judge there.”
Of course, states routinely redraw the political map for state legislative seats and congressional races. That’s a thorny enough task. Judicial redistricting is even more difficult, because it’s not just population changes that must be accounted for. More important are the kinds of cases that courts handle and the average time it takes to reach a decision. For example, in Kentucky, Raftery’s group found that a traffic charge takes, on average, less than three minutes to process in district court, whereas a juvenile case usually takes 48 minutes. Areas with an uptick in those time-consuming cases require more judges.
Kentucky’s experience illustrates a problem that many state legislatures have faced: Even when most lawmakers recognize a need to address a judicial workload imbalance, they may not be willing to fix it if it means the communities they represent would lose judges. At least three states have tried to tackle the issue in the past few years, and none has successfully implemented a plan yet. “It’s a very tough pitch,” says Schickel. “They never want to take away judges. But as a steward of the taxpayers’ money, that is just not acceptable.”
Two years ago, Montana set out to fix the same problem confronting Kentucky. The legislature appointed a commission to study judicial workload data and consider potential redistricting options. The results of the study were similar to those in Kentucky. The commission found that rural areas had lost population while the more urban areas had gained residents, leaving an imbalanced court system. And as in Kentucky, Montana courts were grappling with an increase in child abuse and neglect cases. (In both states, that increase was linked partly to the rise in opioid use in recent years.) The study concluded that Montana was short 21 judgeships.
The question before the commission was straightforward: Should Montana redraw its judicial districts? But the group also had to contemplate the deeper implications of prioritizing the needs of urban counties over rural ones, and whether the costs to the rural areas were worth it. “The ultimate answer was no,” says former state Sen. Kristin Hansen, who served on the commission.
Hansen and her colleagues considered six redistricting options and unanimously voted against five of them. The sixth plan, which had been put forth by Hansen, only got one “yes” vote, from Hansen herself. It was a decidedly modest proposal that would have shifted a single judgeship from a rural area to Yellowstone County, the state’s biggest population center. Even Hansen acknowledges that it would have provided only minor relief while adding a lot of commuting miles for the remaining rural judge. “In terms of the upheaval that it would have caused,” Hansen says, “I wasn’t 100 percent opposed to the commission’s decision [to reject the plan] either.”
Lawmakers abandoned the notion of redistricting. But they still hadn’t addressed the original problem of overworked judges. This year, Rep. Jeff Essmann proposed a partial fix by adding judgeships in a few targeted areas across the state. His bill presented fewer political costs -- no one would lose a judge -- but it meant an added expense of nearly $1.4 million per year at a time when state revenues had fallen $236 million below projected levels. Essmann’s original legislation would have created five new judges, plus support staff, starting next January. Because of budget constraints, the proposal got pared down to two new judges in 2019, and a third starting in 2021. “I consider myself lucky,” he says. “The money was just not going to be there for two years.”
Montana’s approach -- scraping together funds for a couple new judgeships when the workload becomes unmanageable -- is typical of most states. But there’s at least one other state that’s considering the kind of large-scale remapping that’s been debated in Kentucky: Missouri.
Kentucky Senate President Robert Stivers supports the redistricting plan, even though his home county would lose a judge. (David Kidd)
State Sen. Bob Dixon became interested in judicial redistricting the way most lawmakers do. He kept hearing about overcrowded jails and case backlogs in his own district. Dixon represents an area that includes Springfield, the third-largest city in the state. Missouri’s judicial boundaries haven’t been overhauled since 1959, and just as in other states, the demographics and nature of cases have changed. A workload study found that the area around Springfield had the most severe shortage of judges in the state. Dixon began pushing for legislation to enact statewide redistricting.
It took him nearly a decade to pass it. He faced staunch opposition from rural lawmakers who didn’t want to see their judges go to another part of the state. “So we had to come up with a creative solution to go around them,” he says The solution was to create a process that mostly happens outside of the legislature. His bill, which passed in 2013, calls for an independent “judicial conference” to study and propose new boundaries every two decades, starting in 2020. The legislature still has the option to block the plan and pass its own realignment proposal. Dixon hopes the law will impose enough pressure on legislators to either accept an outside fix or finally negotiate a plan of their own.
Missouri’s law is really just the first step toward an actual plan. For now, it essentially sidesteps all the controversial details that could ultimately torpedo a redistricting effort in the future. There’s no telling how lawmakers will react when they have a document in front of them outlining which districts would lose or gain judges.
In Kentucky, meanwhile, the controversial details are already on the table. Sen. Robin Webb, who represents Boyd County in northeastern Kentucky, voted against the Senate legislation, which would have resulted in the loss of two judges in her county but the gain of a family court judge. Besides her parochial concerns, Webb contends that the state Supreme Court’s decision-making process wasn’t well documented and seemed arbitrary. “I’m not opposed to adjustments,” she says, “but I think they need to be rational.” The independent workload study showed a reduced need for district and circuit court judges in Boyd County, but as a trial attorney herself, Webb doesn’t put a lot of stock in the finding. “It’s hard to quantify the workload of a judge,” she says. “It’s not an exact science.”
For his part, Chief Justice Minton is inviting constructive feedback about the plan that failed this year. “If legislators have suggestions about a better way to draw these lines,” he says, “I would welcome that conversation.”
In the end, though, Minton may not need to tweak the plan. At most, 15 of the state’s 120 counties would lose judges under the bill, and even some senators who represent those areas have decided to lend their support. “If you are about fiscal conservatism -- using tax dollars wisely -- you would be for this issue,” says Senate President Robert Stivers, whose home county would lose a judge. Stivers says the legislature has got to reckon with recent demographic changes in the state, starting with the significant loss of jobs -- and residents -- in Eastern Kentucky. “There’s been an outmigration for the past several years, so the caseload has dropped. That’s just the reality.”
To enact redistricting, proponents will need more people to adopt Stivers’ big-picture perspective. Minton likes to remind lawmakers that all of the state’s individual judicial districts make up one single court system. “I’m hoping that everyone will be able to step back,” he says, “and take a broader view.”
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