Supreme Court

Can Federal Partisan Gerrymandering Claims be Brought in State Court?

A strange ambiguity about yesterday's decision in Rucho v. Common Cause


As most readers of this blog likely know, yesterday the Supreme Court held in Rucho v. Common Cause that constitutional claims of "partisan gerrymandering" are "nonjusticiable"—i.e., they are not "properly suited for resolution by the federal courts." The opinion also notes the other potential legal instruments, such as federal legislation and state constitutions, that might be used to limit gerrymandering abuses.

One thing I have found myself wondering, though: After the Supreme Court's decisions can state courts still hear federal constitutional claims about partisan gerrymandering? In other words, does Rucho apply to state courts, or only federal courts?

As a doctrinal matter, the question is whether the so-called "political question doctrine" governs state court interpretations of the federal constitution or only federal court interpretations. I was surprised not to find an easy answer to this. On one hand, Justice Rehnquist treated this question as obvious in a concurring opinion he wrote more than forty years ago, saying that "This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, so long as they do not trench upon exclusively federal questions of foreign policy." Yet I don't see a Supreme Court case that cleanly resolves this, though I certainly could have missed it and would be happy to know about it.

And on the other hand, the two best articles about the political question doctrine, one by Tara Grove and one by John Harrison, both seems to support application of the doctrine in state court. Grove notes that the predecessor to the modern political question doctrine did apply in state courts and that even now "it is not clear that the current doctrine should be an Article III jurisdictional device." (N. 313) Harrison concludes more emphatically that "the political doctrine generally applies in state court."

I am inclined to think that the Court's justiciability decision in Rucho should really have been a decision on the merits—that, as Mike Ramsey writes, "the Constitution does not limit partisan districting." But the opinion doesn't put it that way. The opinion itself only mentions federal litigation in federal court (forbidden) and state litigation in state court (permitted). It just doesn't discuss this possibility either way.

There is obviously a lot of energy to litigate partisan gerrymandering claims, so after Rucho I wonder if at least some of those litigators will move to state courts and put this question more squarely on the table.

To be sure, it's possible that there's no real benefit in bringing federal constitutional claims in a state court. Maybe state constitutions provide just as much (or as little) hope of restraining gerrymandering, and their application would be largely immune from Supreme Court review. But the scope of the federal political question doctrine in state court seems like an important one in any event.

NEXT: Enumerated Powers and the Census Case

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  1. Will,
    What an odd oversight in the SCOTUS opinion. Do you think it was intentional or inadvertent?

    1. I think intentional. As a matter of law it doesn’t have a clear answer, wasn’t briefed, and didn’t need to be decided. It’s also unlikely that it will be necessary in this context since I don’t know of any state whose constitution doesn’t provide at least as much protection as the federal does in EP and voting rights.

  2. You know, I like to keep my eye on what the smarter conservative/libertarian legal scholars are saying, just because it’s helpful to understand the intellectual underpinnings of the largely very stupid things their political counterparts are saying. I’m often surprised or intrigued, but seldom shocked.

    Here, we have a law professor professing that the Constitution does, indeed, permit legislators to choose their constituents; actually, it goes so far as to commit them to doing so. We wave off concerns about the corrosively anti-democratic consequences of such a design feature by saying – well, the Constitution isn’t committed to “democratic principles” like voters electing their representatives in the first place! A lot of people would be surprised to know that conservatives and libertarians think this!

    Anyway, I don’t understand how that argument holds up, considering that there are plenty of design features and enumerated powers in the Constitution that are constrained by the Bill of Rights. They are called, after all, amendments.

    1. Did we read the same article? Where did he comment on the merits at all?

      1. I’ll say I think I see where you get it, but I don’t take his statement about how this should have been on the merits to be necessarily his opinion but based on the way SCOTUS ruled the way it should have been done.

        1. I am not really sure how you contort your way into this reading. Will said, “I am inclined to think that the Court’s justiciability decision in Rucho should really have been a decision on the merits—that, as Mike Ramsey writes, ‘the Constitution does not limit partisan districting.'” Clicking through to Rucho’s argument, you see that he takes the view that the Constitution commits the question of redistricting to state and federal legislatures. Rucho explains that the founders were aware that precisely the kind of mischief we’re now witnessing was possible, given their design, so that we cannot now conclude that it is somehow unconstitutional.

          Nothing about this argument is based on SCOTUS precedent or the way it has previously resolved these kinds of questions.

    2. “Here, we have a law professor professing that the Constitution does, indeed, permit legislators to choose their constituents”

      Yet another liberal who doesn’t understand what the cases were actually about, but is oh so certain they are wrong. Try reading the opinion, focusing on who was drawing the lines and what lines they were drawing, then come back and explain why your comment is nonsensical.

      1. I understand perfectly well what the cases are about.

        If you’d like to make some point, please feel free to do so.

    3. Stupid things simon… like not realizing state legislatures are also voted on by the people? Like the stupid things you say in your comment and on this site constantly?

    4. Let me put it more simply for you simon… the founders put the means and manner at the feet of the state legislatures. They did this intentionally and knowingly. It was part of the design of the federalist system. They wanted to remove the lower for presidents from direct democracy bit yet keep its power close to the people.

      Who is closer to the people, a federal judge or a state legislature.

      You also seem fucking ignorant to the fact that congress, if it so chose, could apply a uniform rule regarding elections. That also laid out in the constitution. There is also the method of amendment.

      Do you know what’s not laid put as a proper channel for choosing the means and manner? Judicial injection.

      So instead of calling people stupid and proving you would fail even a middle school civics course… just stay quiet next time, okay?

  3. In holding that the constitution commits districting questions to the political branches, not the courts, the Court appears to have described its holding in language that is in the nature of a decision on the merits, about what the constitution does and does not require, not solely in terms of the self-restraint federal judges impose on themselves.

    State-court plaintiffs might be find it prudent to find relevant state-law claims to cover this possibility.

    1. The issue is there was also talk about the difficulty of making a workable standard. If it simply is a question in which the courts can’t answer under the constitution that is irrelevant. The difficulty of a workable standard is only relevant if they are refraining from weighing in for prudential reasons. Ultimately there is language that can be used to support either position (prudential v merits/constitutional) which would have to be argued in the state court anyway.

      But as I said in a previous comment I don’t see this actually coming up. Litigants will raise state law claims and state courts will make their rulings based on state law.

    2. The First Amendment and Elections Clauseclaims were clearly on the merits. An unfavorable districting plan doesn’t prevent anyone from speaking, running for office, etc. And the Elections Clause gives Carey Blanche power to state legislatures with only Congress as oversight. Only the Equal Protection Clause claim is ambiguous. And I’m holding that theConstitution allows partisan considerations in districting, the Court could be interpreted as not being like other Equal Protection clause doctrines, which pose black-and-white rules where even a small violation is justifiable.

  4. Someone once said something to the affect that, “there are no national elections in the USA. There are only state elections in which people are elected to fill positions in the federal government”

    If indeed elections are the responsibility of the states then it seems to me that it is quite proper that cases regarding Partisan Gerrymandering should be decided in state courts.

    1. Even there the constitution lays put the power for means and manner of being part of the legislature. It doesnt impede those powers other than stating Congress can apply uniform regulations among the states. So even there a state claimant the judicial level is a stretch. Especially when it is done in regards with the idea if animus which derives from mind reading.

  5. IIRC Robert Bork suggested that federal courts could correct egregious malapportionment using the Republican Government Clause.

    By extension, perhaps the federal authorities could decide that a severely malapportioned district system is un-republican (small r).

    1. That is, decide that a gerrymandered system is, if overdone, un-republican.

    2. He may have, but SCOTUS rejects that. The Republican Government Clause is the classic clause taught to explain the political question doctrine. They said that is in the hands of Congress. It would be up to Congress (possibly each individual chamber for its members) to make that determination and refuse to seat the election winners. I think we can all see why that isn’t likely to happen for partisan gerrymander reasons.

      1. I am having trouble seeing why that couldn’t happen for partisan gerrymander reasons. Can you say more?

        I am having little trouble seeing how it could spin wildly out of control, for partisan rivalry reasons. And there are two out-of-control modes.

        In the first mode, your party controls one house of congress, and refuses to seat my party’s members, allegedly because of gerrymandering. Then my party gets control, and does the same, on a pretext, to retaliate.

        The second mode is much simpler. My party gets control, and calls everything the other party does in every election a gerrymander, and seats none of them, election after election.

        I am kind of interested in that second mode, because it looks like it ought to interest SCOTUS, regarding its political questions doctrine. I really don’t see how mode 2 is any more illegitimate than what happened in North Carolina. And I don’t see how what happened in North Carolina is any less a constitutional problem than mode 2 would be.

        1. No one in Congress is going to refuse to sit someone on the basis that their district was gerrymandered because they all rely on it and the since SCOTUS has said it isn’t reviewable by the courts a Congress in the other parties hands could retaliate with impunity.

          1. So the reply is, “If you block our unprincipled gerrymander, we will be justified to retaliate, because we are unprincipled?” Sounds to me like another point toward a conclusion that Rucho was wrongly decided.

  6. […] Baude has an intriguing post suggesting that, even after Rucho, federal partisan gerrymandering claims can still be brought in […]

  7. I doubt Roberts and the Righties—which sounds like a rock band, but isn’t—have any notion where their one-sided tendency on political process cases will take the nation. However much counter-majoritarian machinery may be built into the Constitution, its founding principle was majoritarianism, practiced by We the People.

    The Court can’t afford to rule that majoritarianism out of bounds, and inoperative in the political process, because the Court can’t control the political process. Yet the Court’s tendency has become unmistakable. It wants the political process in anti-majoritarian fetters—fetters notably more constrictive than the Constitution’s considered bulwarks against majoritarian abuse ever intended. If there were ever a political question best avoided, it is that one—but the Court has taken it up with avidity, and with unseemly partiality expressed in case after case.

    What response should the Court now expect? I suggest that on account of the court, a new course of grass roots populism is about to spring up and flow, and run outside channels the Court can control. Probably not later than 2026, that current will bring results that will surprise the Court.

  8. This is a fascinating idea. Rehnquist cites Jackson in Doremus, which holds that state courts don’t violate the Federal Constitution by issuing advisory opinions, since their remit isn’t explicitly limited to cases and controversies.

    Divide, perhaps fiat from forum-specific prudential abstention. The question would be whether abstention from political questions arises from a question of fiat, since it concerns a matter committed to a coordinate branch by the founding document, or a more general doctrinal principle that the common law should allow political questions to be resolved politically. And just as the federal and state courts have separate fiat powers, perhaps the nature of the forum enters into the idea of common law abstention from political questions.

  9. […] See Will Baude, Can Federal Partisan Gerrymandering Claims be Brought in State Court?, Volokh Conspiracy (June 28, […]

  10. The prospect of legal fees under 42 usc 1988 is one reason to raise federal claims in state court,and here they would be non-removable to federal court. This is for states like indiana that do not have a statute awarding legal fees for state constitutional violations. The parties themselves have deep pockets, but an individual voter might not.

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