Adapting <i>Gingles</i> & Retaining Voter Power: Applying the VRA to State Judicial Retention Elections

State supreme courts play a crucial yet overlooked role in our nation’s judiciary. They are also predominantly White. In states with judicial elections, this racial homogeneity suggests that voters of color may not have an equal opportunity to “elect representatives of their choice” as required by the Voting Rights Act (VRA). While federal courts frequently apply the VRA to judicial elections resembling legislative and executive contests, those same tribunals have failed to protect voters of color in non-competitive judicial retention elections. This failure is due in part to Thornburg v. Gingles, which established three threshold requirements for plaintiffs in vote dilution cases. These factors, which focus on a given plaintiff’s ability to craft a majority-minority district within the relevant multi-member elected body, do little to aid courts in judicial retention election cases because Gingles presumes the existence of geographic districts and a choice between candidates. Judicial retention elections possess neither of those qualities. Despite Gingles’ inapplicability, lower federal courts have often mechanically applied the Gingles factors in judicial retention cases, creating insurmountable hurdles for plaintiffs bringing claims. In contravention of basic legal principles, these decisions declare that there is a right, but no associated remedy. This Article advances a new reading of Gingles, a reading that both aligns with Supreme Court case law and ensures that voters of color in judicial retention elections can obtain meaningful relief when denied the ability to select a representative of their choice.