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

Sun Jun 30 13:31:11 PDT 2019

I'm more or less persuaded by Michael, Rick, and Sam that if a state court
struck down a map *solely* on federal partisan gerrymandering grounds, the
Supreme Court would find a way to reverse that judgment, even if this
result isn't compelled by *ASARCO*. The question then becomes whether
there's value in state courts striking down maps *jointly* on federal and
state partisan gerrymandering grounds. I think there's significant value.
The state courts' decisions are then unreviewable by the Supreme Court. But
they still constitute precedents -- on-the-books, non-reversed precedents
-- about the contours of the federal partisan gerrymandering cause of
action. Those precedents could be quite helpful to a future Supreme Court
inclined to reverse *Rucho*. That future Court could cite the precedents as
evidence that, actually, partisan gerrymandering claims *can* be decided
consistently and non-arbitrarily. The precedents themselves could amount to
changed circumstances compelling the Court to revisit *Rucho*.

On Sun, Jun 30, 2019 at 3:10 PM Samuel Bagenstos <sbagen at gmail.com> wrote:

> 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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>
>
> --
> Samuel Bagenstos
> sbagen at gmail.com
> Twitter: @sbagen
> University of Michigan homepage:
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>
>
>

-- 
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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