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

Sun Jun 30 13:09:52 PDT 2019

Pildes's point and mine work out to the same place.

On Sun, Jun 30, 2019 at 4:08 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> I do not see why any lawyer would now bring a state-court partisan
> gerrymandering case and invoke the federal constitution.  There is no
> benefit to bringing the federal claim.  Every state constitution has
> provisions that bear just as directly, or even more directly, on partisan
> gerrymandering claims as does the federal constitution.  Moreover, any
> state court prepared to invoke the federal constitution to strike down a
> partisan GM would surely be willing to do so under the state constitution.
>
>
>
> And on the cost side of the ledger, if a state court did rely on the
> federal constitution as the basis for its holding, I have little doubt the
> Supreme Court would review the matter.  There is no way that a state court
> will have final say over the substantive meaning of the federal
> constitution.  That is the larger point that *ASARCO *represents.  Yes,
> it is technically only a standing case and the Court has never had to
> directly address the analogous issue under the political question
> doctrine.  But standing is the hardest hurdle to get over in federal
> courts, since it is an Art. III hurdle.   Doctrines like mootness and
> ripeness are prudential principles, not Art. III ones, and so the question
> is even easier there:  any state court decision relying on the federal
> constitution will be reviewable in the Supreme Court, even if it could not
> have been brought in the first instance in the federal courts.
>
>
>
> But even if you did not think the *ASARCO *question is as clear as I do
> here, there would certainly be a significant risk the Supreme Court would
> apply *ASARCO *here.  So why would a lawyer run the risk of Supreme Court
> review by invoking the federal constitution when state constitutional
> grounds are every bit as strong in every case and stronger in many cases.
>
>
>
>
>
>
>
>
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> *On Behalf Of *Nicholas Stephanopoulos
> *Sent:* Sunday, June 30, 2019 3:19 PM
> *To:* Michael Morley <mmorley at law.fsu.edu>
> *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=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=-7bCyOv4ytKgnZoZYL8IfJnSD8sZSmzLfaQrT90ksME&s=r_go_VbLr3k5DVli3w2meVlLaz-6pAQsYsUfpn3QeKs&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=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=-7bCyOv4ytKgnZoZYL8IfJnSD8sZSmzLfaQrT90ksME&s=1v4jq5RSqxDgNQmhsigJV-XJ4ruPqtji2X3fUMLdylw&e=>
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