The following is a guest post from Michael Solimine, part of the symposium on Partisan Gerrymandering after Rucho:
A 5-4 majority of the United States Supreme Court in Common
Cause v. Rucho held that challenges to partisan gerrymandering are
“political questions” and are not justiciable in federal courts. The majority
added that other avenues of relief were available for critics of
gerrymandering, including Congressional action, state redistricting
commissions, and suits in state courts under state law.
What the majority (or the dissent) didn’t mention was
another option, which would be bringing the same federal claims in Rucho,
under the First and Fourteenth Amendments, in state court. There has long
been a presumption that state courts can
and indeed with few exceptions must
hear suits based on 42 U.S.C. § 1983, upon which such suits would be
predicated. Federal claims could also be added to a suit premised on state
constitutional provisions. State courts could then reach the merits, which
federal courts can’t after Rucho.
But some have questioned this option, suggesting that the
political question doctrine would also bar such suits in state courts.
This argument is not convincing. The political question doctrine as formulated
by the Supreme Court has long referred to the inability of federal
courts to formulate manageable criteria to decide cases, and that is frequently
reiterated in Rucho. It’s true that most states use a form of the doctrine
in their own courts, and often cite Baker v. Carr and other federal
decisions in doing so.
But most agree that there is no mandate that state courts do so, and a state
court could conclude that the doctrine doesn’t bar this particular suit.
It’s also true that whether state courts upheld or denied the federal claims,
the losing party could seek review (absent adequate and independent ground
problems) on a writ of certiorari in the Supreme Court. This would create the
awkward circumstance of the Supreme Court being asked to decide a federal claim
it previously held was barred by the political question doctrine. Still, the
Court could simply hold that the doctrine applies to its review of state court
decisions as well.
This series of events took place after Colegrove v. Green,
where the Court held that one-person-one-vote suits were barred in federal
court under the doctrine, and before Baker v. Carr. Plaintiffs brought
such a suit in Tennessee state court, invoking both federal and state law. The
Tennessee Supreme Court eventually ruled against plaintiffs on all claims, and
their appeal to the U.S. Supreme Court was dismissed. The latter Court cited
both adequate state law grounds, and Colegrove.
Bucking the conventional wisdom, Tara Grove
and John Harrison
have recently argued that state courts are required to follow the political
question doctrine. Their arguments don’t convince me. While the Supreme Court
has not directly addressed the issue, it has constantly referred to the
doctrine as a bar to federal court litigation, up to and including Rucho.
There are powerful institutional arguments for state courts not being mandated
to follow the doctrine, including that the Art. III requirements don’t apply to
One potential barrier to the state forum would be the
defendant’s option of removing a federal question case to federal court. But
that option seems foreclosed by the language of the removal statutes, which
state that only cases within the “original jurisdiction” of federal courts can
and Rucho orders that the case be “dismiss[ed] for lack of
Plaintiffs in Rucho and similar cases no doubt prefer
to be before life-tenured Art.III federal judges, and not before
usually-elected state judges. But if that’s not possible, state courts should
be an option, as it is with many other federal civil claims. If some state
courts uphold such claims, and the Supreme Court declines review, there would
potentially be a lack of uniformity of federal law, but the consequences would
be confined to one or a small number of states, and that’s an acceptable price
to pay for keeping federal courts out of the political thicket.
Tafflin v. Levitt, 493 U.S. 455 (1990).
Haywood v. Drown, 556 U.S. 729 (2009).
Will Baude, Can Federal Partisan Gerrymandering Claims Be Brought in State
Court?, Volokh Conspiracy, June 28, 2019, www.reason.com.
Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State
Courts, 21 U. Pa. J. Const. L. 153 (2018).
League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.), cert. denied, 139
S. Ct. 445 (2018).
Kidd v. McCanless, 292 S.W.2d 40 (Tenn.), appeal dismissed, 352 U.S. 929
Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90
N.Y.U. L. Rev. 1908 (2015).
John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017).
Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the
Judicial Function, 114 Harv. L. Rev. 1833 (2001).
28 U.S.C. § 1441(a).