[EL] Political question doctrine question (re: Ohio partisan gerrymander struck down)

[Marty Lederman]

I've never really thought this through, and perhaps the answer's obvious
one way or the other, but thought I'd toss it out to you all here:

Has the SCOTUS ever held that something was a nonjusticiable federal
question because of a "lack of judicially discoverable and manageable
standards" (which the Court will likely do in the next few weeks re:
gerrymandering) *after *several lower courts had "discovered and managed"
such standards?



On Fri, May 3, 2019 at 1:12 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> Breaking: Unanimous 3-Judge Court, in 300-Page Opinion, Strikes Ohio
> Congressional Districts as Unconstitutional Partisan Gerrymanders
> <https://electionlawblog.org/?p=104993>
>
> Posted on May 3, 2019 10:07 am <https://electionlawblog.org/?p=104993> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> You can find the opinion at this link
> <https://www.scribd.com/document/408562889/Ohio-Redistricting-decision>.
> From the introduction:
>
> *We join the other federal courts that have held partisan gerrymandering
> unconstitutional and developed substantially similar standards for
> adjudicating such claims. We are convinced by the evidence that this
> partisan gerrymander was intentional and effective and that no legitimate
> justification accounts for its extremity. Performing our analysis district
> by district, we conclude that the 2012 map dilutes the votes of Democratic
> voters by packing and cracking them into districts that are so skewed
> toward one party that the electoral outcome is predetermined. We conclude
> that the map unconstitutionally burdens associational rights by making it
> more difficult for voters and certain organizations to advance their aims,
> be they pro-Democratic or pro-democracy. We conclude that by creating such
> a map, the State exceeded its powers under Article I of the Constitution.
> Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan
> gerrymander, enjoin its use in the 2020 election, and order the enactment
> of a constitutionally viable replacement. *
>
> I suspect that Ohio, as Michigan just did when faced with a similar
> ruling, will ask the United States Supreme Court to stay this ruling
> pending the decision in the pending partisan gerrymandering cases out of
> North Carolina and Maryland. I expect the Court will grant that request.
>
> What the Supreme Court ends up doing here is uncertain, but it is quite
> remarkable how many lower courts, many of them unanimous, have now issued
> decisions, along similar contours <https://electionlawblog.org/?p=104888>,
> finding partisan gerrymandering to violate one or more provisions of the
> U.S. Constitution.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D104993&title=Breaking%3A%20Unanimous%203-Judge%20Court%2C%20in%20300-Page%20Opinion%2C%20Strikes%20Ohio%20Congressional%20Districts%20as%20Unconstitutional%20Partisan%20Gerrymanders>
>
> Posted in redistricting <https://electionlawblog.org/?cat=6>, Supreme
> Court <https://electionlawblog.org/?cat=29>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> [image: signature_1068157813]
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190503/066c772b/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190503/066c772b/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 25207 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190503/066c772b/attachment-0001.png>