I went back to look at some of the commentary around the Supreme Court’s decision in Rucho v. Common Cause in 2019. The decision shut the door on federal constitutional challenges to partisan gerrymanders. Much of the commentary around the decision at the time, unsurprisingly, focused on partisan gerrymandering, including alternative means of challenging gerrymanders (in state court or by ballot initiative, among other things), along with some reflection on the path from Davis v. Bandemer to Rucho.
There wasn’t a whole lot of discussion of the particular means the Court used, the political question doctrine. Yes, there was criticism about the Court angsting that it needed to keep itself out of the partisan political process. But not much on how the Court got there.
More than four years after Rucho, however, it appears that how Rucho got to the political question doctrine may be quite significant–and its influence continues to grow, as recent challenges to Donald Trump’s candidacy under Section 3 of the Fourteenth Amendment demonstrate.
1. Let’s start with the contemporary political question doctrine. In 1962, the Supreme Court in Baker v. Carr indicated that federal courts could hear a claim that Tennessee’s legislative districts were grossly malapportioned–a major precursor to the “one person, one vote” standard. The Court explained that some types of “political questions” fell outside the scope of federal judicial review and were “nonjusticiable”:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found  a textually demonstrable constitutional commitment of the issue to a coordinate political department; or  a lack of judicially discoverable and manageable standards for resolving it; or  the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or  the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or  an unusual need for unquestioning adherence to a political decision already made; or  the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
(Numbering added.) The Court found none of these applied to the “one person, one vote” claim in that case, and the claim could proceed.
Over the years, I think it’s fair to say that the bulk of commentary found the first Baker v. Carr category the persuasive one, and the other five something less (ranging from, well, not political questions, to excessively malleable for judicial decisionmaking). And, indeed, the first category had the most teeth. In 1993, the Court’s decision in Nixon v. United States pointed out that the Senate, not the court, is given the textually demonstrable commitment as the sole trier of impeachments. (This is muddied a bit–more on that below.) Arguments over the second category, manageability, never made it very far. In Zivotofsky v. Clinton (2012), the Court only mentioned these first two categories, not the list of six. And Chief Justice Roberts put it this way:
Recitation of these arguments—which sound in familiar principles of constitutional interpretation—is enough to establish that this case does not “turn on standards that defy judicial application.” Baker. Resolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.
2. Even ahead of Rucho, the occasional lower court opinion would invoke the lack of judicially manageable standards as a source for nonjusticiability. In Kerr v. Hickenlooper in 2014, the 10th Circuit found a Guarantee Clause claim, as it related to a ballot initiative that constrained the state legislature, justiciable. That finding was met with dissents from Judges Tymkovich and Gorsuch on the ground that determining a “Republican Form of Government” under the Constitution lacked judicially manageable standards
Rucho, however, gave significant teeth to this second Baker factor. Some excerpts from Rucho (lightly edited):
Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer (2004) (plurality opinion). In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Baker v. Carr (1962). Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid.
. . .
In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in Vieth: Any standard for resolving such claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” An important reason for those careful constraints is that, as a Justice with extensive experience in state and local politics put it, “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” . . .
As noted, the question is one of degree: How to “provid[e] a standard for deciding how much partisan dominance is too much.” And it is vital in such circumstances that the Court act only in accord with especially clear standards: “With uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” If federal courts are to “inject [themselves] into the most heated partisan issues” by adjudicating partisan gerrymandering claims, they must be armed with a standard that can reliably differentiate unconstitutional from “constitutional political gerrymandering.”
. . .
But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth:
“‘Fairness’ does not seem to us a judicially manageable standard…. Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.”
The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. . . .
Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts. . . .
Appellees and the dissent propose a number of “tests” for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.
. . .
. . . Here, on the other hand, the Constitution provides no basis whatever to guide the exercise of judicial discretion. . . .
What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.
The gist of this decision was very much a robust revitalization of the second Baker category.
3. In the aftermath of Rucho, its reasoning began to crop up in some slightly surprising places–and, like both Kerr and Rucho, in the election context in particular.
In 2020, the 11th Circuit issued a decision in Jacobson v. Secretary of State, which addressed a challenge to Florida’s rules relating to the order in which names appear on the ballot. The court tossed the claim, largely on justiciability grounds, finding that the plaintiffs lacked standing to bring the claim. That part, in an opinion by Judge William Pryor, was unanimous. Judge Jill Pryor partially dissented, agreeing that the plaintiffs lacked an injury in fact (sufficient to reverse the district court) but disagreeing on other issues the majority reached.
But Pryor wrote a separate concurring opinion to his own majority opinion. In it, he argued that Rucho made the plaintiffs’ claim a nonjusticiable political question. Florida’s ballot order law gave an advantage to the incumbent governor’s political party. Judge William Pryor argued that the same principles are at stake here. He noted, “partisan considerations are not entirely off limits in election administration,” there are “line-drawing problems,” and that while “standards exist to assess the burdens imposed by restrictions on ballot access,” and “no standards exist to judge challenges to the partisan advantage conferred by ballot order.” (UPDATE: this opinion was later vacated on rehearing, and the majority, in an opinion by Judge William Pryor, ruled that the case was not justiciable both for lack of standing and for the political question doctrine per Rucho. From that opinion, and all citations to Rucho: “No judicially discernable and manageable standards exist to determine what constitutes a ‘fair’ allocation of the top ballot position, and picking among the competing visions of fairness ‘poses basic questions that are political, not legal.’ And even if courts could agree on a standard for fairly ordering ballots, no objective measures exist to identify violations of that standard. This lawsuit asks us ‘to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct’ our decision. That kind of complaint is ‘outside the courts’ competence and therefore beyond the courts’ jurisdiction.‘)
A district court in Texas followed the precedent in Jacobson in another ballot order dispute, holding, “In order to examine the alleged burden on Plaintiffs in this case, the court would have to accept Plaintiffs’ version of what is fair, which this court cannot do. It is not the job of the court to determine best practices.”
(Some other district courts found political questions on manageability, citing Rucho, in some other cases later reversed on appeal.)
4. Section 3 of the Fourteenth Amendment is facing a series of “unprecedented” questions–its application to presidential candidates, the context of “insurrection” outside of the Civil War, what speech or conduct might rise to the level of “engaging” in an insurrection, and so on.
And with this deeply contested legal question with fraught political implications, courts have been tempted to look for off ramps.
A. Let’s start in New Hampshire, where pro se plaintiff John Castro (filing serial lawsuits around the United States) is singularly creating some of Trump’s best precedent, as courts toss these poorly litigated cases. (It’s worth noting a series of similar problems have arisen in the past with natural born citizen claims, as plaintiffs with poor legal arguments create adverse precedent and sometimes bad legal holdings.) A federal district court in Castro v. Scanlan had this to say about the political question doctrine (after already finding that Castro lacked standing, which, perhaps, dilutes the precedential value a bit):
The defendants also argue that Castro’s claim should be dismissed because it turns on a nonjusticiable political question—Mr. Trump’s eligibility to run for and serve as president. . . .
The defendants contend that Castro’s claim triggers the first Baker formulation, and they cite a number of cases that support their position. Indeed, state and federal district courts have consistently found that the U.S. Constitution assigns to Congress and the electors, and not the courts, the role of determining if a presidential candidate or president is qualified and fit for office—at least in the first instance. Courts that have considered the issue have found this textual assignment in varying combinations of the Twelfth Amendment and the Electoral Count Act, 3 U.S.C. § 15, which prescribe the process for transmitting, objecting to, and counting electoral votes; the Twentieth Amendment, which authorizes Congress to fashion a response if the president elect and vice president elect are unqualified; and the Twenty-Fifth amendment and Article I impeachment clauses, which involve Congress in the removal of an unfit president from office.
[Ed.: The court cites some “natural born citizen” precedents.]
. . .
Critically, Castro does not present case law that contradicts the authority discussed above—nor has the court found any. To the contrary, Castro agrees that his claim may raise a political question that precludes jurisdiction, but he quibbles (without reason) about the timing of this jurisdictional effect. Castro asserts that the cases that the defendants cite were initiated or decided after the political parties held their national conventions to select presidential nominees. According to Castro, this circumstance alone “proves that the political question doctrine applies only after the major political parties hold their conventions and submit the nomination paperwork to the state for placement on the general election ballot.” Even if Castro’s factual premise regarding the timing of the cases and decisions is accurate—a conclusion that the court does not and need not draw—Castro’s argument is wholly underdeveloped and unsubstantiated. Castro does not point to any factual or legal authority to support the notion that the political question doctrine, and the separation-of-powers principle at its core, simply lay dormant until after the national conventions, and the court finds no reasoned basis for such a conclusion.
In sum, the vast weight of authority has held that the Constitution commits to Congress and the electors the responsibility of determining matters of presidential candidates’ qualifications. Castro provides no reason to deviate from this consistent authority. Thus, it appears to the court that Castro’s claim—which challenges Trump’s eligibility as a presidential candidate under Section 3 of the Fourteenth Amendment—raises a nonjusticiable political question. As such, even if Castro did have standing to assert his claim, the court would lack jurisdiction to hear it under the political question doctrine.
The district court found a “textually demonstrable commitment” to another branch to resolve the dispute. (Put aside whether presidential electors are a “coordinate political department” so empowered.) But this is the flip side of the error the trial court in Colorado made, which there attempted to disclaim that anyone else has the responsibility of adjudicating qualifications. Here, however, the court says only these entities are so empowered. As I wrote in 2015, “the power of Congress to examine the qualifications of executive candidates is, at the very best, debatable, and certainly not exclusive.” One is hard pressed to find a “commitment” in the text of, say, the Twelfth Amendment that electors cast ballots and Congress counts votes, which not only vests them with the power to judge qualifications, but an exclusive power, unreviewable by any court or other body.
Indeed, to say that no one but Congress or electors can judge qualifications would suggest that decades of state practice excluding underage or non-natural born citizen candidates from the ballot has been a mere oversight. And the “commitment” to some branches of the power to review qualifications says nothing about whether that commitment is non-reviewable by a federal court.
One could quibble and say that this is a peculiar issue of whether federal courts lack the power, but the district court’s formulation is really designed to cut out all other actors–if the text commitments it only to X, then anyone apart from X has no power.
As for the conclusion that there is no case law to the contrary, this is bad lawyering from a pro se plaintiff, and it creates bad law. There’s case law to the contrary. I highlight some of it in my Minnesota Supreme Court amicus brief–instances where courts adjudicated the qualifications of presidential candidates:
See, e.g., Ankeny v. Governor of Ind., 916 N.E.2d 678, 688 (Ind. Ct. App. 2009) (state appellate court finding in challenge to Barack Obama’s and John 2016) (state trial court concluding that “Ted Cruz is eligible to serve as President of the United States”).McCain’s candidacies that a “natural-born citizen” was someone born within the borders of the United States); Farrar v. Obama, OSAH-SECSTATE-CE-1215136-60-MALIHI (Ga. Office of State Admin. Hearings Feb. 3, 2012) (administrative law judge holding that Barack Obama, a person born in the United States, is a natural born citizen regardless of the citizenship of his parents); Joyce v. Cruz, 16 SOEB GP 526 (Ill. State Bd. of Elections Jan. 28, 2016) (state election board concluding that Ted Cruz “became a natural born citizen at the moment of his birth” because his mother “was a U.S. citizen”); Transcript of Proceeding at 23, Challenge to Marco Rubio, Cause No. 2016-2 (Ind. Election Comm’n Feb. 19, 2016), https://perma.cc/T5RL-26P4 (by a vote of 3-1, Indiana Election Commission rejected a motion to exclude Cruz from the ballot); Williams v. Cruz, OAL Nos. STE 5016-16, STE 5018-16 (N.J. Office of Admin. Law Apr. 13, 2016) (administrative law judge finding that “Senator Cruz meets the Article II, Section I qualifications and is eligible to be nominated for President”); Elliot v. Cruz, 137 A.3d 646, 658 (Pa. Commw. Ct. 2016), aff’d, 134 A.3d 51 (Pa. 2016) (state trial court concluding that “Ted Cruz is eligible to serve as President of the United States”).
(One positive note from the decision, however: the district court interprets the Electoral Count Reform Act exactly right in a lengthy footnote, and concludes it did not change the mechanics for how Congress handles objections. Here, the district court got right what the Colorado trial court botched.)
B. On to Michigan. Earlier this week, a state court judge dismissed challenges to Trump’s eligibility under the political question doctrine. But the court took two approaches.
First, the court adopted wholesale the New Hampshire district court’s analysis, quoting it at length and concluding, “The Court agrees with the above analysis.” But, second, the court continued (lighted revised):
With respect to the remaining factors set out in Baker, the Court notes that factors 2, 4, 5, and 6 apply to the instant case.
In Bradley and Posner, The Real Political Question Doctrine, Stanford Law Review, Vol. 75 (2023), the authors discuss how the “prudential” concerns in the Baker factors play into the use of the doctrine. Notably, two United States Supreme Court decisions after Baker support an analysis that some questions fall within the doctrine, at least in part, because of the related prudential concerns of causing “chaos”, see Nixon v United States (1993), or because the courts would be pulled into recurring and highly partisan disputes, such as in the instant case, see Rucho v Common Cause (2019).
In Nixon, a case involving former United States District Judge Walter L. Nixon’s impeachment trial before the Senate, the Court held that a challenge to the Senate’s use of a committee to receive evidence during an impeachment trial, similar to the way congressional committees investigated early Section 3 cases, raised a political question. The impeached judge in Nixon argued that the Senate’s use of the committee was inconsistent with the Constitutional requirement that the Senate “try” impeachment cases. However, as discussed in The Real Political Question Doctrine, pp 1070-1072, the Court found that the first Baker factor applied even though the Constitution did not specify that the Senate had exclusive authority to decide the relevant trial procedures to be used for impeachments. Nixon, 506 US at 228-229. Its reason for doing so involved prudential concerns. In reaching its conclusion, the Court specifically tied the first and second factors together, and held “the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.” Id.
After its analysis of Article I, § 3, cl 6, the Court further held that the “chaos” involved in attempting to fashion relief supported the finding of a political question. In doing so, this case provides support for the premise that attempting to resolve the question of whether former President Trump appears on the Michigan primary ballot, or any other ballot, is nonjusticiable.
I’ll pause for a moment to point out the “muddied” point I raised earlier, as the Court in Nixon did invoke the manageability point. But the state court in Michigan gets the manageability point wrong. The problem in Nixon was, how could a court manage the remedy (the relief sought) of overseeing a “trial” in the Senate? There is real no remedial difficulty in the Trump cases–if a candidate is not qualified to appear on the ballot, the name does not appear on the ballot.
Instead, the manageability point here is more about the lack of manageability of developing a legal rule (e.g., interpreting complex and fraught questions, as the court goes on to analyze below). This is one of the strange things about Baker v. Carr–it seems much more focused on the “standards” for “resolving” a legal dispute rather than the manageability of judicial oversight in the remedy (a factor that one can find courts concerned with when it comes to equitable remedies).
Nevertheless, as the piece by Professors Curtis Bradley and Eric Posner points out (in the article cited by the state court), lower courts do seem more inclined to use the political question doctrine, and precisely for manageability concerns.
Back to the Michigan state court’s order.
Rucho involved a request to intervene in light of a complaint alleging partisan gerrymandering by Republicans in North Carolina and Democrats in Maryland. The Supreme Court held that the challenges raised a political question. The Court emphasized the difficulty that courts would have with resolving such claims using a “limited and precise rationale” that was also “clear, manageable, and politically neutral.” The Court found that intervention in “heated partisan issues” required such constraints, id., because “[w]ith uncertain limits, intervening courts-even when proceeding with best intentions-would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” The Court also noted that the circumstances were such that “the Constitution provides no basis whatever to guide the exercise of judicial discretion.” With respect to the caution against becoming embroiled in recurring and highly partisan districting disputes, the Court further held: [I]ntervention would be unlimited in scope and duration-it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.
The instant case presents potential for running afoul of these principles. In the companion case, the Secretary has included in Exhibit 1, a list of active and recently dismissed state and federal cases, each involving former President Trump. There are 37 cases on the Secretary’s list, and it does not include either of the companion cases currently before this Court. Should this trend continue, it is conceivable that there could be 50 state cases, and a number of concurrent federal ones, each with a judicial officer or officers who “even when proceeding with best intentions,” have the potential to issue partial or even totally conflicting opinions on the basis of a significant number of potentially dispositive issues. Some of these cases, such as Anderson, are already proceeding to trial. Prior to the United States Supreme Court’s intervention, none of these opinions, or factual findings, are binding on any other court.
The questions involved are by their nature political. The number of cases presents the risk of completely opposite and potentially confusing opinions and outcomes, which will certainly “expose the political life of the country to months, or perhaps years, of chaos.” Moreover, there is no “limited and precise rationale” to guide this Court and the others that is also “clear, manageable, and politically neutral.” Because the cases involve the office of the President, such confusion and lack of finality will be more pronounced. See Nixon.
In determining if a question is justiciable, it is worthwhile to consider what the judiciary is asked to determine. In this case, some questions while complex, are nonetheless straightforward and embrace traditional means of legal decision-making. Is a specific office sought covered? Has a person taken a previous oath that is applicable?
Others are far more nuanced and complex. This Court recognizes the judiciary does not avoid questions because they are nuanced, complex, or difficult; however, when applying the Baker principles and standards, it seems appropriate as applied to this case to ask:
What is an insurrection or a rebellion? What is it to engage in it or to give aid and comfort to the enemies of the Constitution?
Does it require a war of 1,458 days with 620,000 killed and battles throughout the land? Could it be based on actions of physical violence, lawlessness, destruction, interruption of legislative sessions all of which take place on a single day even if allegedly supported by and aided by speeches and comments and actions and inactions by an individual before, during, and after that day? Could it be a political speech that some may argue encourages or incites others to act in ways they believe results in moral culpability on the part of the speaker for physical violence?
The short answer is- there are as many answers and gradations of answers to each of these proffered examples as there are people called upon to decide them.
The inappropriateness of the judicial branch resolving these questions, tendered by Section 3 of the Fourteenth Amendment, includes that the judicial action of removing a candidate from the presidential ballot and prohibiting them from running essentially strips Congress of its ability to “by a vote of two-thirds of each House, remove such a disability.” Also, it takes the decision of whether there was a rebellion or insurrection and whether or not someone participated in it from the Congress, a body made up of elected representatives of the people of every state in the nation, and gives it to but one single judicial officer, a person who no matter how well intentioned, evenhanded, fair and learned, cannot in any manner or form possibly embody the represented qualities of every citizen of the nation-as does the House of Representatives and the Senate. Nor is that judicial officer provided the “power to enforce, by appropriate legislation, the provisions of this article,” Section 5.
In summary, the question of whether plaintiff is precluded from holding the office of President because of a Section 3 disqualification presents a nonjusticiable political question that is left to Congress to decide.
Now, many of the issues are common in ordinary litigation. Inconsistent holdings from different courts arise absent some method of aggregating similarly situated cases. Courts in good faith reach different conclusions from one another. Each state administers presidential elections slightly differently, and some variance is to be expected.
Still, the pull of Rucho is strong. The inclination to abstain from a thorny “political” question, simply because it is thorny and political, is great.
But I want to highlight one additional problem with the court’s analysis here. “Prior to the United States Supreme Court’s intervention, none of these opinions, or factual findings, are binding on any other court.” (Elsewhere, for what it’s worth, the court finds it “speculative” that the Supreme Court would weigh in on the topic in a timely fashion.) There seems to be a strange suggestion that the multifarious pronouncements of the lower courts are a problem and create chaos because there is no singular guidance from the Supreme Court opinion. Now, it is, of course, impossible for the Supreme Court to weigh in if the matter is a political question. And it certainly won’t intervene if the lower courts continue to punt the cases, as there is really nothing for the Court to decide. It is, in a way, a strange twist of the “manageability” component of Baker to suggest that the case is unmanageable until the Supreme Court weighs in. It’s a version of judicial supremacy melded with the political question doctrine.
This lament about the Supreme Court, for what it’s worth, is nothing new in these disputes. As disputes arose over Ted Cruz’s eligibility in 2016, here’s what some tribunals had to say, as I chronicle here:
When election administrators heard these eligibility challenges, they often asserted jurisdiction. But they also frequently expressed reluctance that they should be the ones who handled such disputes. They preferred that a court—perhaps a federal court, or the Supreme Court—would hear the challenge. For example, a commissioner in New York lamented, “[T]his type of heavy decision should really be made in a federal court.” Another chimed in, “I agree with you that it’s an important issue that ought to be resolved in the courts.” An Indiana commissioner complained, “I wish that there was a way that we could transfer this directly to the Supreme Court and let them rule.” After permitting Cruz to appear on the ballot, the New Hampshire BLC concluded parenthetically: “[T]he appropriate raising in and deciding of this question by a court equipped to decide such Constitutional matters, so that all election officials and the American people know once and for all the definition of ‘natural born citizen,’ would be helpful in avoiding uncertainty.”
I don’t think the matter of Section 3 is a political question. I don’t think the matter of judging qualifications of presidential candidates is exclusively committed to another political branch. And I am skeptical (a skepticism that has developed over the last decade) about the Baker categories beyond the first one. But if the “manageability” category remains good law, and Rucho remains a robust application of that law, it is perhaps little surprise that courts would view it as a logical reason to dismiss thorny cases like this one.