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Excerpted From: Michael Milov-Cordoba, The Racial Injustice and Political Process Failure of Prosecutorial Malapportionment, 97 New York University Law Review 402 (April, 2022) (254 Footnotes) (Full Document)

MichaelMilov CordobaIn recent years, racial justice advocates have turned their attention to district attorneys' offices. From Philadelphia to San Francisco to Athens, Georgia, voters have elected progressive district attorneys with platforms explicitly committed to racial justice principles. Although it is still too early to assess the precise impacts of this sea-change, the initial effects have been promising. Prosecutors committed to racial justice can and have chosen to leverage their wide discretion to limit enforcement of or to categorically not enforce criminal laws that have had a disproportionate impact on communities of color, such as drug possession or low-level misdemeanors. In this way, district attorneys' offices across the country are in the midst of an experiment that could transform them from one of the primary sources of mass incarceration to possible allies in the fight to end society's reliance on prisons and prosecutorial power as solutions to social problems.

Although scholars are beginning to devote attention to the normative implications of the progressive prosecution movement, the structure of prosecutorial electoral districts is an underappreciated element of the current debate on progressive prosecution and on prosecutorial power more broadly. The majority of district attorneys are elected by the public from prosecutorial districts, which track county lines and encompass either a single county or multiple counties. Like legislative districts, prosecutorial districts are drawn by state legislatures. Yet unlike legislative districts, prosecutorial districts are egregiously malapportioned. For instance, Alabama's smallest prosecutorial district has 25,471 voters, whereas Alabama's largest prosecutorial district has 658,466 voters, meaning that, with respect to district attorneys, voters in Alabama's smallest prosecutorial district hold over twenty-five times the voting power as voters in Alabama's largest prosecutorial district. And Alabama is no outlier: Among the fourteen states analyzed in detail in this Note, all of them have similar levels of malapportionment. No state has anything remotely approximating equal apportionment across prosecutorial districts. Many of them have a level of malapportionment that exceeds the level of malapportionment that persisted among state legislative districts prior to the Supreme Court's apportionment revolution, which began the process that forced states to transition from malapportioned legislative districts lines to substantially equipopulous districts.

Historically, malapportionment in legislative districts has been used to deprive voters of color of a meaningful opportunity to participate as equals in the political process. Prior to the Court's apportionment revolution, migration patterns, coupled with refusals by state legislatures to reapportion legislative districts, frustrated the ability of urban, disproportionately non-white voters to translate numerical majorities into legislative majorities. State legislative majorities benefitting from malapportionment lacked incentive to reapportion. Voters were thus unable to rely on the political process to express and respond to the preferences of political majorities, creating a textbook case of political process failure, understood as “an electoral majority's willingness to consistently impose material or symbolic costs upon a disfavored minority.” In response to this political process failure, the Court infamously entered the political thicket, instructing legislative districts to comply with the principle of one-person, one-vote, which requires that legislative districts be drawn with substantially or precisely equal populations depending on the type of legislative district. Among other effects, this intervention broke up closed political systems and led to more equitable access to the political process.

Today, our system for electing district attorneys--and our criminal justice system more broadly--evinces many of the symptoms of political process failure that triggered the apportionment revolution and that, today, compel court intervention in voting rights cases more broadly. These include entrenched incumbency, extraordinarily low challenger rates, dismally few district attorneys of color, and, perhaps most significantly, decades of discriminatory prosecutorial policy unresponsive to the needs of communities of color. This Note contends that we are in the midst of another major political process failure--prosecutorial political process failure--and that, as with legislative districts in the 1960s, malapportionment is one of the key structural barriers causing the process failure.

This Note is the first piece of scholarship to examine the possibility and normative implications of extending the Fourteenth Amendment's guarantee of one-person, one-vote to prosecutorial districts. It argues that using one-person, one-vote to force states to draw equitably apportioned prosecutorial districts would meaningfully address prosecutorial political process failure and have a number of salutary effects on our democracy: It would provide voters with an equal opportunity to exert influence over their district attorney; it would rebalance the distribution of voters' influence over district attorneys which, due to severe malapportionment, currently dilutes the voting power of communities of color and gives white voters a disproportionate influence over our elected prosecutors and thus our criminal justice system more broadly; it may increase challenger rates, producing healthier levels of prosecutorial democratic competition; it may lead to an increase in the number of district attorneys of color; and it would further core democratic norms, including respect for the equal dignity of voters.

This Note proceeds as follows. Part I briefly examines the history and role of district attorneys in our democratic system to sketch a democratic theory of district attorneys. This Part draws out the link between the district attorney's key defining power--prosecutorial discretion in the enforcement of the law--and the primary mechanism that shapes the exercise of this power: prosecutorial elections.

Part II assesses the extent and magnitude of prosecutorial malapportionment. To do so, this Part provides high-level demographic statistics on population disparities between districts within states. Given the historical ties between malapportioned districts and issues of descriptive representation, this Part also highlights disparities between the racial demographics of prosecutors within a state and the state's overall population. The picture painted is stark: Our district attorney system features shockingly few district attorneys of color and, because of malapportionment, systematically undervalues the voting power of voters of color.

Part III makes the case that prosecutorial districts should be subject to the requirements of one-person, one-vote. To do this, Section III.A summarizes the jurisprudence on one-person, one-vote. Given the absence of precedent applying these principles to prosecutorial districts, this Part looks to reason by analogy from the broader universe of one-person, one-vote cases challenging non-legislative offices, such as elected judges. Although one-person, one-vote does not apply to judicial districts and a few opinions have, in dicta, grouped prosecutors and judges together in one-person, one-vote challenges to judicial districts, this Section argues one-person, one-vote should apply to elected prosecutors because elected prosecutors' role in our democracy is both fundamentally different from that of elected judges and more akin to the sorts of legislative and executive officers to whom one-person, one-vote applies. This is particularly true today, as increasingly more progressive prosecutors maximally flex their discretionary enforcement powers in quasi-legislative ways in the service of their constituents.

After demonstrating that precedent does not foreclose extending one-person, one-vote to prosecutorial districts, Section III.B analyzes whether extending one-person, one-vote to a single-member body is appropriate, given that most offices to which the doctrine currently applies are multi-member bodies. This Part argues that despite the fact that district attorneys are single-member bodies, malapportionment resulting from deliberate districting choices by state legislatures still inflicts the principal harm that one-person, one-vote mitigates: inequality of voter influence over elected officials. Thus, the fact that district attorneys are single-member offices should not be regarded as an insurmountable barrier to applying one-person, one-vote to prosecutorial districts.

Section III.C then assesses whether our district attorney system is evincing the sort of political process failure that compelled judicial intervention during the apportionment revolution and that triggers judicial intervention in voting rights doctrine more broadly. It argues that our district attorney system is exhibiting core symptoms of political process failure, including entrenched incumbency, low challenger rates, poor descriptive representation of voters of color, dog whistle campaigning, and significant disconnects between prosecutorial policies and the needs of communities of color. Although district attorneys are not responsible for drawing their own districts' lines-- and thus our district attorney system is not exhibiting this particular element of political process failure that, in part, triggered the apportionment revolution--courts have not regarded that element of political process failure as a necessary condition to extend one-person, one-vote to other bodies or to trigger judicial intervention in the political thicket when there are other salient factors indicating political process failure. For these reasons, courts should once again enter the political thicket and demand that states reapportion prosecutorial districts in a manner that adheres to one-person, one-vote.

The Conclusion briefly analyzes what would follow if one-person, one-vote applied to prosecutorial districts. It argues that reapportioning prosecutorial districts to produce less malapportioned prosecutorial districts would fundamentally reshape the voting public's relationship to district attorneys, which would lead to more democratic outcomes and produce normatively desirable consequences that are consistent with the goals of contemporary racial justice movements.

[. . .]

Reapportioning prosecutorial districts to comply with the principle of one-person, one-vote would remedy many of the political process failures highlighted above. It would equalize voter influence over district attorneys, making it easier for many communities to hold their district attorneys accountable. Because voters who live in large urban cities are both disproportionately non-white and, because those cities are in the largest districts, hold the least influence over district attorneys, reapportioning district attorney districts would transfer voting power from those least impacted by the criminal justice system to those most impacted by it. With communities of color holding more electoral power over their district attorneys, district attorneys may be more incentivized to wield their broad enforcement discretion in the service of communities of color. Reapportioning district attorney districts to comply with one-person, one-vote would better respect voters' dignity as equal members of the polity. In many ways, it would simply accelerate the transformation of the district attorney into a pure democratic representative--a transformation which already appears to be occurring.

Given the extent of malapportionment, if some form of the principle of one-person, one-vote applied to prosecutorial districts, nearly all prosecutorial districts would need to be reapportioned and redrawn. The chart in Table 1 makes clear that even in the states that use multi-county districts-- places one might expect states to be the most compliant with one-person, one-vote given the more tenuous ties between a district and a single county districts would have to be redrawn. All states would be forced to recombine existing counties into new multi-county districts and engage in a significant amount of intra-county districting. Large cities would need to contain multiple prosecutorial districts.

This Note acknowledges that these changes would present modest or even significant administrative hurdles. In particular, having multiple prosecutorial districts within a single county, which would be required in most states, would present law enforcement challenges, given many states' reliance on county-level governing entities. But the magnitude of prosecutorial political process failure in our criminal justice system demands that we think big. District attorneys are uniquely responsible for our alarming incarceration rates, yet they are also uniquely positioned to reverse the tide of mass incarceration. The new generation of progressive prosecutors has shown that district attorneys can choose to wield their broad, essentially unreviewable discretion as a force consistent with racial justice or as an antagonist to racial justice. Under immunity doctrine, courts will not interfere with this choice one way or the other: Only the people can shape it. This Note contends that all voters deserve an equal voice in this democratic project, yet in many districts our current system devalues the voting power of those most impacted by the criminal justice system. Extending one-person, one-vote to prosecutorial districts would fix this. Doing so would be a boon for democracy and for racial justice alike.

Michael Milov-Cordoba. J.D., 2021, New York University School of Law; M.A., 2018, Columbia University Graduate School of Arts and Sciences; B.A., 2014, Amherst College.

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