[EL] Can federal partisan gerrymandering claims still be brought in state court?

[Nicholas Stephanopoulos]

Will Baude has an intriguing post
<https://reason.com/2019/06/28/can-federal-partisan-gerrymandering-claims-be-brought-in-state-court/>
suggesting
that, even after *Rucho*, federal partisan gerrymandering claims can still
be brought in state court. The rationale is that federal jurisdictional
doctrines like standing, mootness, and justiciability don't apply in state
court. So a state court could reason: (1) The Supreme Court unanimously
believes that extreme partisan gerrymandering is unconstitutional. (2) The
Supreme Court also believes that partisan gerrymandering claims are
nonjusticiable. (3) However, *we* believe that such claims *are* justiciable.
(4) So we're going to adjudicate them.

I'm curious whether this move would be attractive to the litigants
currently pursuing (or considering pursuing) state constitutional partisan
gerrymandering claims. On the one hand, these claims are only being brought
in forums thought to be receptive. If state courts are already expected to
be sympathetic to state claims, it might be pointless to add a federal
claim to the mix.

On the other hand, after *Rucho*, any judgment a state court reaches on a
federal partisan gerrymandering claim would seem to be nonreviewable by the
Supreme Court. The Court couldn't tell the state court to apply a federal
jurisdictional doctrine that the state court rejects. And the Court
couldn't reach the merits of a federal partisan gerrymandering claim. As
long as *Rucho* remains good law, then, it appears possible for state
courts to generate a body of shadow precedent about partisan gerrymandering
under the federal Constitution. These rulings could never be recognized by
federal courts. But they would nevertheless have legal force. And they
would serve as powerful evidence that *Rucho* is wrong: that courts are
indeed capable of deciding federal partisan gerrymandering claims
consistently and non-arbitrarily.

Two final points: First, a defendant against whom a federal partisan
gerrymandering claim was brought couldn't remove the case to federal court.
That's because, per *Rucho*, no federal court would have jurisdiction over
the claim. And second, if a state court reached its decision on federal
*and* state grounds, the decision's nonreviewability by the Supreme Court
would be even clearer. In that case, there would be an adequate and
independent state law basis for the decision.

-- 
Nicholas O. Stephanopoulos
Professor of Law
Herbert and Marjorie Fried Research Scholar
University of Chicago Law School
nsteph at uchicago.edu
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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