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

[Levitt, Justin]

As Justice Thomas keeps reminding us, Supreme Court doctrine is not fixed.  The Court has said that it can find no manageable standards in a federal constitutional cause of action.  I think that decision was both unwise and incorrect, but I acknowledge that it’s firm.

If state courts decided to address not only state law, but also federal law, in forthcoming decisions, I’m not at all sure that the Court would sit that fight out, no matter how much current doctrine on adequate and independent state grounds suggests otherwise.  Smith begat RFRA,  which begat Boerne.  Citizens United seemed to leave the theoretical opening for as-applied cases, and the Montana litigation shut that down.  The Court doesn’t appear to like other actors attempting to “correct” its constitutional decisions, or to evade what the Court _thinks_ is a broad and definitive rule settling the field.

I hear the hypothetical value of the notion of state courts building federal constitutional doctrine in waiting for a future Supreme Court.  It is, sincerely, an interesting theory.  I happen to think that state constitutional approaches to partisan gerrymandering would supply the same reservoir of available approaches for a future Supreme Court, without provoking the bear into defending what it perceives as its holding (even at the expense of current doctrinal limits on jurisdiction).  And so I wonder whether, in practice, that particular juice would be worth the squeeze.

--
Justin Levitt
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>

On Jun 30, 2019, at 1:32 PM, Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com<mailto:nicholas.stephanopoulos at gmail.com>> wrote:

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<mailto: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<mailto: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<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<mailto:mmorley at law.fsu.edu>>
Cc: law-election at UCI.EDU<mailto: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<mailto: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://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D2946482%26d%3dDwMFaQ%26c%3dslrrB7dE8n7gBJbeO0g-IQ%26r%3dv3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk%26m%3d-7bCyOv4ytKgnZoZYL8IfJnSD8sZSmzLfaQrT90ksME%26s%3dr_go_VbLr3k5DVli3w2meVlLaz-6pAQsYsUfpn3QeKs%26e%3d&c=E,1,gTAPz4ork4Qf6kMtrSXrDsO8M5xN2LedUaTNNXfb09V6GEKaf1nEqJQi8qMMzTqnh6koVntz0xbTUCaJrRVvmqwOUO4_hDhHc472-dJPpA,,&typo=1>


Michael T. Morley
Assistant Professor of Law
Florida State University College of Law
mmorley at law.fsu.edu<mailto:mmorley at law.fsu.edu>
(860) 778-3883



________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com<mailto:nicholas.stephanopoulos at gmail.com>>
Sent: Sunday, June 30, 2019 1:28 PM
To: law-election at UCI.EDU<mailto: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://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__reason.com_2019_06_28_can-2Dfederal-2Dpartisan-2Dgerrymandering-2Dclaims-2Dbe-2Dbrought-2Din-2Dstate-2Dcourt_%26d%3dDwMFaQ%26c%3dHPMtquzZjKY31rtkyGRFnQ%26r%3d5f6POwjrH_vnsYmoF-4bLjJfKWN5xS43XQSvIUnmNR4%26m%3dogVKeQ0nI4GVhAPtGwquA8E75OaxvAJ9K9An08BAFIg%26s%3dLljW1SKazDRI9mB8qWXW9SAtH6FRcmiqUjOwbDW9kqE%26e%3d&c=E,1,Pao6yrYR9fKEo62VFC9XOevTkJ939BSnOExJfQf7mlNYB0MZX890_c5u6f7gppKTEJ8dbxiYiZRQlO8xJ5ElGYy34mYK4RZ3nw11jHt7uMXQ5Sy1&typo=1> 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<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__www.law.uchicago.edu_faculty_stephanopoulos%26d%3dDwMFaQ%26c%3dHPMtquzZjKY31rtkyGRFnQ%26r%3d5f6POwjrH_vnsYmoF-4bLjJfKWN5xS43XQSvIUnmNR4%26m%3dogVKeQ0nI4GVhAPtGwquA8E75OaxvAJ9K9An08BAFIg%26s%3dkojyCjN3xYjI1Rz_Dfa2xUWmlWKu00ly7HgM6CzgaHQ%26e%3d&c=E,1,2RwoKOfL9tMplCWlcO0QOxFKfY0dhKCb9PQOTHlcnAg4psm-VfVNtp6_OfcZ4eqwm0-TdySipzt4kst3ZjsbDNx7iYVg84sWh-e_0Y-IRqFW8wV-GC9m3zo,&typo=1>


--
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<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttp-3A__www.law.uchicago.edu_faculty_stephanopoulos%26d%3dDwMFaQ%26c%3dslrrB7dE8n7gBJbeO0g-IQ%26r%3dv3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk%26m%3d-7bCyOv4ytKgnZoZYL8IfJnSD8sZSmzLfaQrT90ksME%26s%3d1v4jq5RSqxDgNQmhsigJV-XJ4ruPqtji2X3fUMLdylw%26e%3d&c=E,1,tRS-YcYMg0VwRBhxFFpQNYXz1zClUj7Y0XeBp0GtUPo8UHnBACzHracNYaXmC0XQq0Cd0iBeC42fIS5uLvcvr6dZsTCaCRZB9iUWWSpywQ,,&typo=1>
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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<mailto:nsteph at uchicago.edu>
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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