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[1] and indeed with few exceptions must[2] 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.[3] 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.[4] 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.[5] 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.[6]
Bucking the conventional wisdom, Tara Grove[7] and John Harrison[8] 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 state courts.[9]
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 be removed,[10] and Rucho orders that the case be “dismiss[ed] for lack of jurisdiction.”
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.
[1] Tafflin v. Levitt, 493 U.S. 455 (1990).
[2] Haywood v. Drown, 556 U.S. 729 (2009).
[3] Will Baude, Can Federal Partisan Gerrymandering Claims Be Brought in State Court?, Volokh Conspiracy, June 28, 2019, www.reason.com.
[4] Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Courts, 21 U. Pa. J. Const. L. 153 (2018).
[5] League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.), cert. denied, 139 S. Ct. 445 (2018).
[6] Kidd v. McCanless, 292 S.W.2d 40 (Tenn.), appeal dismissed, 352 U.S. 929 (1956)(per curiam).
[7] Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908 (2015).
[8] John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017).
[9] Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).
[10] 28 U.S.C. § 1441(a).