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

[Rick Hasen]

Mike Solimine’s contribution to the ELB Rucho symposium, just posted, discusses this very issue:

Michael Solimine: State Courts as Forums for Federal Partisan Gerrymandering Claims after Common Cause v. Rucho (Rucho Symposium)<https://electionlawblog.org/?p=105902>
Posted on June 30, 2019 10:40 am<https://electionlawblog.org/?p=105902> by Rick Hasen<https://electionlawblog.org/?author=3>
The following is a guest post from Michael Solimine<https://law.uc.edu/education/faculty/michael-e-solimine.html>, part of the symposium on Partisan Gerrymandering after Rucho<https://electionlawblog.org/?p=105878>:
A 5-4 majority of the United States Supreme Court in Common Cause v. Rucho held that challenges to partisan gerrymandering are “political questions” and are not justiciable in federal courts. The majority added that other avenues of relief were available for critics of gerrymandering, including Congressional action, state redistricting commissions, and suits in state courts under state law.
What the majority (or the dissent) didn’t mention was another option, which would be bringing the same federal claims in Rucho, under the First and Fourteenth Amendments, in state court. There has long been a presumption that state courts can[1]<http://electionlawblog.org/#_ftn1> and indeed with few exceptions must[2]<http://electionlawblog.org/#_ftn2> hear suits based on 42 U.S.C. § 1983, upon which such suits would be predicated. Federal claims could also be added to a suit premised on state constitutional provisions. State courts could then reach the merits, which federal courts can’t after Rucho.
But some have questioned this option, suggesting that the political question doctrine would also bar such suits in state courts.[3]<http://electionlawblog.org/#_ftn3> This argument is not convincing. The political question doctrine as formulated by the Supreme Court has long referred to the inability of federal courts to formulate manageable criteria to decide cases, and that is frequently reiterated in Rucho. It’s true that most states use a form of the doctrine in their own courts, and often cite Baker v. Carr and other federal decisions in doing so.[4]<http://electionlawblog.org/#_ftn4> But most agree that there is no mandate that state courts do so, and a state court could conclude that the doctrine doesn’t bar this particular suit.[5]<http://electionlawblog.org/#_ftn5> It’s also true that whether state courts upheld or denied the federal claims, the losing party could seek review (absent adequate and independent ground problems) on a writ of certiorari in the Supreme Court. This would create the awkward circumstance of the Supreme Court being asked to decide a federal claim it previously held was barred by the political question doctrine. Still, the Court could simply hold that the doctrine applies to its review of state court decisions as well.
This series of events took place after Colegrove v. Green, where the Court held that one-person-one-vote suits were barred in federal court under the doctrine, and before Baker v. Carr. Plaintiffs brought such a suit in Tennessee state court, invoking both federal and state law. The Tennessee Supreme Court eventually ruled against plaintiffs on all claims, and their appeal to the U.S. Supreme Court was dismissed. The latter Court cited both adequate state law grounds, and Colegrove.[6]<http://electionlawblog.org/#_ftn6>
Bucking the conventional wisdom, Tara Grove[7]<http://electionlawblog.org/#_ftn7> and John Harrison[8]<http://electionlawblog.org/#_ftn8> have recently argued that state courts are required to follow the political question doctrine. Their arguments don’t convince me. While the Supreme Court has not directly addressed the issue, it has constantly referred to the doctrine as a bar to federal court litigation, up to and including Rucho. There are powerful institutional arguments for state courts not being mandated to follow the doctrine, including that the Art. III requirements don’t apply to state courts.[9]<http://electionlawblog.org/#_ftn9>
One potential barrier to the state forum would be the defendant’s option of removing a federal question case to federal court. But that option seems foreclosed by the language of the removal statutes, which state that only cases within the “original jurisdiction” of federal courts can be removed,[10]<http://electionlawblog.org/#_ftn10> and Rucho orders that the case be “dismiss[ed] for lack of jurisdiction.”
Plaintiffs in Rucho and similar cases no doubt prefer to be before life-tenured Art.III federal judges, and not before usually-elected state judges. But if that’s not possible, state courts should be an option, as it is with many other federal civil claims. If some state courts uphold such claims, and the Supreme Court declines review, there would potentially be a lack of uniformity of federal law, but the consequences would be confined to one or a small number of states, and that’s an acceptable price to pay for keeping federal courts out of the political thicket.
________________________________
[1]<http://electionlawblog.org/#_ftnref1> Tafflin v. Levitt, 493 U.S. 455 (1990).
[2]<http://electionlawblog.org/#_ftnref2> Haywood v. Drown, 556 U.S. 729 (2009).
[3]<http://electionlawblog.org/#_ftnref3> Will Baude, Can Federal Partisan Gerrymandering Claims Be Brought in State Court?, Volokh Conspiracy, June 28, 2019, www.reason.com.
[4]<http://electionlawblog.org/#_ftnref4> Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Courts, 21 U. Pa. J. Const. L. 153 (2018).
[5]<http://electionlawblog.org/#_ftnref5> League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.), cert. denied, 139 S. Ct. 445 (2018).
[6]<http://electionlawblog.org/#_ftnref6> Kidd v. McCanless, 292 S.W.2d 40 (Tenn.), appeal dismissed, 352 U.S. 929 (1956)(per curiam).
[7]<http://electionlawblog.org/#_ftnref7> Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908 (2015).
[8]<http://electionlawblog.org/#_ftnref8> John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017).
[9]<http://electionlawblog.org/#_ftnref9> Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).
[10]<http://electionlawblog.org/#_ftnref10> 28 U.S.C. § 1441(a).
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>


From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
Date: Sunday, June 30, 2019 at 10:29 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Can federal partisan gerrymandering claims still be brought in state court?

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<mailto:nsteph at uchicago.edu>
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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