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

[Samuel Bagenstos]

This is a very interesting and smart discussion, but I fear it takes too
seriously the doctrinal boxes the Court is using (and, relatedly, is too
much premised on the (very contestable) way it can be said that all
justices agree that at least some partisan gerrymanders are
unconstitutional).

I basically agree *doctrinally* that ASARCO is about the injury-linked
components of justiciability rather than about the
this-isn't-the-kind-of-question-courts-can-decide component of
justiciability that appears in the political question doctrine.  But if a
state court were to say that a partisan gerrymander violates the federal
Constitution, don't we think this Court would take the opportunity to drop
the other shoe and say that, actually, there's no cause of action for
partisan gerrymandering under the 1A or 14A?  Do you think they went
through this whole exercise so they could carve out a whole substantive
area of constitutional law in which state courts can say what the federal
Constitution means but they can't?  This isn't like cases where a party
lacks standing to sue in federal court but can bring the same claim in
state court under more liberal standing rules.  Those cases are about
particular parties who can't get their federal claims heard in federal
court because they are suing in particular cases at particular times.  In
cases like that, SCOTUS can be confident that it will always have some
other case in which to say what the federal Constitution means.  This is an
entire substantive area of federal constitutional law in which the state
courts would always have the last word.

On Sun, Jun 30, 2019 at 3:54 PM Michael Morley <mmorley at law.fsu.edu> wrote:

> To clarify one point, under* ASARCO*, when state courts adjudicate a
> claim that initially would've been non-justiciable under federal standards,
> the Supreme Court's ability to review the final state-court judgment is
> asymmetrical -- it depends on how the state courts rule.  If the highest
> state court rejects the claim, then the parties remain in essentially the
> same positions they would've occupied had the state-court case not been
> brought at all, and there's no basis for federal jurisdiction.  A
> justiciable dispute arises only if the state courts rule for the plaintiff
> and issue a final judgment or order against the defendant.  In that case,
> the defendant can seek Supreme Court review of the state-court ruling.  The
> state court's judgment or order against the defendant disturbs the status
> quo and changes the parties' respective rights, creating a justiciable
> controversy that otherwise wouldn't have existed.  Thus, the simple fact
> that a state court decision exists doesn't, in itself, affect or create
> federal justiciability - it depends what the decision is.  In my view, under*
> ASARCO*, even if a plaintiff's claims originally would've been deemed
> moot or unripe in federal court, a final state-court judgment in the
> plaintiff's favor (i.e., against the defendant) would be enough to create a
> justiciable dispute, giving the defendant standing to appeal to the Supreme
> Court.
>
> I agree with Nick that standing and the political question doctrine may
> raise somewhat different concerns.  To me, the main relevant take-away from
> *ASARCO* is that the focus of the justiciability determination is
> different when a defendant appeals an adverse final state-court ruling to
> the U.S. Supreme Court than when a plaintiff is initially trying to bring a
> case in a federal court.  When a plaintiff seeks to bring a political
> gerrymandering claim in federal court, it is asserting rights arising under
> the First Amendment, Equal Protection Clause, or some other constitutional
> provision.  The absence of judicially manageable standards to adjudicate
> such claims precludes a federal court from exercising jurisdiction over the
> dispute.  When a defendant seeks to appeal an adverse state-court ruling in
> a political gerrymandering case to the U.S. Supreme Court, in contrast, its
> claim doesn't depend on the existence of judicially manageable standards to
> establish that political gerrymandering occurred.  To the contrary, its
> claim is just the opposite - because the Supreme Court held that no
> judicially manageable standards exist, whatever standard the state court
> used to conclude that political gerrymandering occurred constitutes an
> erroneous interpretation of the constitutional provision at issue.
>
>
> ------------------------------
> *From:* Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
> *Sent:* Sunday, June 30, 2019 3:19 PM
> *To:* Michael Morley
> *Cc:* law-election at UCI.EDU
> *Subject:* Re: [EL] Can federal partisan gerrymandering claims still be
> brought in state court?
>
> I think some of Michael's analysis may well be right, but I doubt *
> ASARCO* can be read as broadly as Michael suggests. *ASARCO* holds that *
> standing* can be created, where it wouldn't otherwise exist, by an
> adverse state court decision. But it doesn't stand for the proposition that
> federal jurisdiction *generally* can be generated by an adverse state
> court ruling on a federal issue. Assume, for example, that a litigant
> raises a federal claim in state court that would be moot or nonripe if it
> were raised in federal court. I don't see why the claim would become live
> or ripe simply by virtue of a state court decision. And the political
> question doctrine seems like mootness and ripeness to me: a justiciability
> doctrine that's unaffected by the mere presence of a state court decision.
>
> On Sun, Jun 30, 2019 at 1:21 PM Michael Morley <mmorley at law.fsu.edu>
> wrote:
>
> I think some of Nick's analysis might be indirectly in tension with *ASARCO
> v. Kadish*, 490 U.S. 605 (1989), which deals with U.S. Supreme Court
> review of state-court rulings in cases that initially would've been
> non-justiciable in federal court.
>
> Nick's post distinguishes between two types of cases.  First, there could
> be situations in which federal and state political gerrymandering claims
> are both brought in state court, and the state court construes both the
> U.S. and state constitutions the same way, and as imposing identical
> remedial requirements.  In those situations, as Nick points out, the
> "independent and adequate state-law grounds" doctrine would preclude
> federal review.  As he notes, however, the federal claims really aren't
> doing any work in those cases, and the state court's adjudication of them
> is largely irrelevant (except perhaps as "shadow precedent," in the manner
> Nick intriguingly suggests).
>
> Second, there could be a case in which: (i) only federal claims are
> brought in state court, or (ii) the state court construes the U.S.
> Constitution as providing stronger protections against political
> gerrymandering, or providing more extensive relief, than the state
> constitution.  If a state court of last resort allows a political
> gerrymandering ruling for plaintiffs to stand in either of those types of
> cases, I think it's likely the ruling is reviewable by the U.S. Supreme
> Court, and -- unless the U.S. Supreme Court decides to overturn *Rucho*
> -- it should reverse the state-court's ruling.
>
> Under *ASARCO *(to oversimplify a bit), the Supreme Court considered a
> case that was initially non-justiciable, filed by a plaintiff who lacked
> standing.  That plaintiff ultimately prevailed in the state courts.  The
> Supreme Court held that it had jurisdiction to hear the defendant's appeal,
> even though a federal court couldn't have heard the case as an initial
> matter.  The state court's ruling ordering relief against the defendant
> constituted injury-in-fact to the defendant, giving it standing to seek
> federal review and creating a justiciable dispute.  Thus, *ASACRO *recognizes
> that cases which couldn't initially have been filed in federal court due to
> justiciability restrictions may nevertheless be amenable to Supreme Court
> review.
>
> The political gerrymandering hypothetical isn't exactly the same, of
> course, since the justiciability barrier is the political question
> doctrine, rather than lack of standing.  Like the defendant in *ASARCO*,
> however, when a defendant in a political gerrymandering case seeks Supreme
> Court review, the nature of its claim is different than that of a plaintiff
> initially attempting to invoke federal jurisdiction.  The defendant isn't
> really bringing a "political gerrymandering" claim.  Rather, it's arguing
> the state court has impermissibly limited its sovereign power to draw
> district lines based on an erroneous construction of some federal
> constitutional provision, like the First or Fourteenth Amendment.  Such an
> argument may be especially strong in the context of congressional
> redistricting, where the defendant can argue that the state court
> impermissibly burdened or limited its exercise of power under the U.S.
> Constitution's Elections Clause to determine the "manner" in which
> congressional elections are held.
>
> *Rucho* held there are no judicially manageable standards under any U.S.
> constitutional provisions for prohibiting political gerrymandering.  A
> state court ruling interpreting the First Amendment, Equal Protection
> Clause, or some other U.S. Constitutional provision as imposing a test or
> standard for prohibiting political gerrymandering claims is contrary to
> that holding.  Even if one construes the political question doctrine
> exclusively as a jurisdictional doctrine (but see Tara Grove and John
> Harrison), its applicability in this context depends on the Supreme Court's
> conclusions about various provisions of the U.S. Constitution that state
> courts aren't free to disregard.  The Supreme Court could grant
> certiorari to enforce its construction of those constitutional provisions
> -- even if that construction is that they don't give rise to any judicially
> applicable prohibitions on political gerrymandering -- and I don't think
> there are any justiciability barriers to it doing so.
>
> If this argument is correct, a defendant still would not be able to remove
> a political gerrymandering claim under the U.S. Constitution from state
> court to federal court.  It would have to litigate the matter through the
> state courts until it can seek Supreme Court review of the state
> judiciary's rulings.
>
> P.S. - I discussed and argued against the possibility of litigating claims
> that are nonjusticiable under* Spokeo* in state court in:
> https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2946482
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D2946482&d=DwMFaQ&c=HPMtquzZjKY31rtkyGRFnQ&r=5f6POwjrH_vnsYmoF-4bLjJfKWN5xS43XQSvIUnmNR4&m=FBgavuWe1ow4D1x4YvNJLO1n3kTy7t05rrP0puGgz2k&s=8BTdYcAltP1BK-CuEk2q-u9vyleXrC1G0nLzVk9SUMc&e=>
>
>
> Michael T. Morley
> Assistant Professor of Law
> Florida State University College of Law
> mmorley at law.fsu.edu
> (860) 778-3883
>
>
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
> *Sent:* Sunday, June 30, 2019 1:28 PM
> *To:* 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://urldefense.proofpoint.com/v2/url?u=https-3A__reason.com_2019_06_28_can-2Dfederal-2Dpartisan-2Dgerrymandering-2Dclaims-2Dbe-2Dbrought-2Din-2Dstate-2Dcourt_&d=DwMFaQ&c=HPMtquzZjKY31rtkyGRFnQ&r=5f6POwjrH_vnsYmoF-4bLjJfKWN5xS43XQSvIUnmNR4&m=ogVKeQ0nI4GVhAPtGwquA8E75OaxvAJ9K9An08BAFIg&s=LljW1SKazDRI9mB8qWXW9SAtH6FRcmiqUjOwbDW9kqE&e=> 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
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law.uchicago.edu_faculty_stephanopoulos&d=DwMFaQ&c=HPMtquzZjKY31rtkyGRFnQ&r=5f6POwjrH_vnsYmoF-4bLjJfKWN5xS43XQSvIUnmNR4&m=ogVKeQ0nI4GVhAPtGwquA8E75OaxvAJ9K9An08BAFIg&s=kojyCjN3xYjI1Rz_Dfa2xUWmlWKu00ly7HgM6CzgaHQ&e=>
>
>
>
> --
> 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
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law.uchicago.edu_faculty_stephanopoulos&d=DwMFaQ&c=HPMtquzZjKY31rtkyGRFnQ&r=5f6POwjrH_vnsYmoF-4bLjJfKWN5xS43XQSvIUnmNR4&m=FBgavuWe1ow4D1x4YvNJLO1n3kTy7t05rrP0puGgz2k&s=AHsdyOVYqsafTHMgFfxiToyvkd5wfMkuKpVfVq_9Rtc&e=>
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-- 
Samuel Bagenstos
sbagen at gmail.com
Twitter: @sbagen
University of Michigan homepage:
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
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