The Volokh Conspiracy

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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.