Will Baude has an intriguing post 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.