Wednesday, July 03, 2019

State Court Review of Federal Constitutional Challenges to Partisan Gerrymandering

By George R. El-Khoury

In Rucho v. Common Cause, the Court held that constitutional challenges to partisan gerrymandering present a nonjusticiable political question. Merits of the case aside, I want to explore the breadth of the Ruchodecision.
Chief Justice Roberts, for the majority, cautioned that the Court’s decision didn’t “condone excessive partisan gerrymandering,” “condemn complaints about” excessive partisan gerrymandering, or preclude Congress and the States from passing legislation to reform excessive partisan gerrymandering. He surveyed legislative attempts at reform, and he used as evidence of alternatives to federal court review a Florida Supreme Court decision that struck down a map because it violated Florida state law. Nowhere did the Chief Justice suggest (or dismiss) the possibility of a state court striking down a gerrymandered map that went “too far” as a matter of federal constitutional law.
I want to explore whether a state court could do so. Ordinarily, Article III’s limits on justiciability exclusively apply to federal courts. For example, when a litigant is without standing to assert a claim in federal court, he or she may refile in state court. That’s basic enough, but the political question doctrine, although fitting within the broader category of justiciability, is different in that there may be some instances where it limits state court review and other instances where it doesn’t.  
As applied to partisan gerrymandering, I don’t believe that the political question doctrine should apply to state courts. As constitutional law, I believe such an extension would violate principles of federalism. As federal common law, such an extension would exceed the Supreme Court’s authority. 

The Political Question Doctrine as Constitutional Law.
            The political question doctrine is in large measure [MD1] [GRE2] constitutional law—an implication of the separation of powers.   Indeed, in Baker v. Carr, the Court explained that a political question exists where there is “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.” And as the Court explained in Nixon v. United States, “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.” So, the substantive standard of a constitutional claim is relevant to the political question doctrine insofar as it tells the Court whether the Constitution assigns the question exclusively to a political branch. Thus, the question is, whodecides, not what law decides.
By constitutional design, state judges are fundamentally different from federal judges in ways that are important to answering the question, who decides. Consider what the Constitution requires of federal judges versus what it requires of state judges. Article III sets out limitations and requirements of federal judges that aren’t required for state judges. Article III sets out justiciability requirements for federal courts, not state courts. Article III ensures that federal judges are independent; it does no such thing for state judges—in fact, many states hold popular elections for their judges. Article III is part of a broader tripartite, separation-of-powers scheme. The Constitution does not require the States to have three branches of government. (They must be “republican” in form, but parliamentary systems as well as less extreme departures from separation of powers suffice.) Thus, state judges, without federal constitutional objection, may issue advisory opinions, run campaigns and be elected, and be intertwined with a state’s executive or legislative branches.  
This principle of federalism—that the States are free to design their judicial systems with little federal constitutional constraint—should serve as a limitation on application of the political question doctrine. Indeed, in contrast to federal judges, state judges may be involved in politics, at least to the extent that it doesn’t violate due process. Their jobs are dependent on politics, so it is not nearly as much of an affront to democratic norms for a state judge to answer a political question as it would be for a federal judge to answer one. If voters don’t like the decision of a state judge, then they can vote him or her off the bench. The same is not true for federal judges. The RuchoCourt acknowledged this reality: “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.”
To be sure, the political question doctrine should apply to state courts in someinstances. When the political question doctrine applies to issues that implicate federal functions, there is good reason to think that it should apply to state courts, not only to federal courts. For example, in Nixon, the Court held that the definition of the word “try” for impeachment-judgment purposes was a political question beyond the reach of the federal courts, left exclusively to the Senate. No one would suppose that a state court could answer that question, nor would anyone suppose that the House of Representatives or the President could. Only the Senate could define the word “try.”  
Moreover, principles of federalism counsel against a state court deciding the question presented in Nixon. Consider other constraints on states and state courts. States do not have the power to tax entities of the federal government (McCulloch v. Maryland); nor do state courts have the power to issue a writ of habeas corpus to release a federal prisoner (Tarble’s Case) or a writ of mandamus against a federal officer (McClung v. Silliman). In these instances, state parochialism could overcome fairness. Chief Justice Marshall famously wrote in McCulloch, “the power to tax involves the power to destroy.” Thus, there is good reason, and well-established precedent, to apply the political question doctrine to state courts when the issue involves federal functions.
So, when the political question doctrine applies to issues that implicate state functions, principles of federalism should allow state courts to remain open, but when the political question doctrine applies to issues that implicate federal functions, principles of federalism should prevent state court review. 
I imagine two plausible objections to the view that the political question doctrine, as constitutional law, should not apply to state courts hearing constitutional challenges to partisan gerrymandering: (1) Not all state judges are popularly elected, so the shackles of the political question doctrine should constrain those judges who are appointed by their state’s governor and confirmed by their state’s legislature; (2) The result of my conclusion would be pervasive disuniformity in federal law, because the Supreme Court could not review state court decisions on partisan gerrymandering as a result of the political question doctrine.
(1) This objection is more of an issue of state law than federal constitutional law. The greater power of the States to permit their judges to operate in politics (to the extent it doesn’t violate due process) should imply the lesser power to regulate their behavior. States shouldn’t be left to an all-or-nothing choice. If a state is uncomfortable with its judges hearing federal constitutional challenges to partisan gerrymandering, then it can simply strip jurisdiction over those claims. Many state courts, in fact, follow the political question doctrine as a matter of state law. 
(2) The disuniformity that would result is of the type that furthers principles of federalism—it is a basis not to extend the political question doctrine rather than a basis to extend it. By implication of the Madisonian Compromise, there is a presumption of concurrent jurisdiction over federal claims, with the Supreme Court sitting as the final arbiter. Some believe that the Supreme Court’s role is to preserve uniformity in federal law, but historically that hasn’t always been the case. For a long time, the Supreme Court was statutorily authorized only to review decisions of state courts that rejectedclaims of federal right; in other words, it could not hear state court decisions that upheldclaims of federal right. Thus, historical practice indicates that disuniformity, at least when federal rights are upheld, is constitutionally tolerable. And here, the Supreme Court’s decision in Ruchomakes it such that we have no idea whether a state court decision on partisan gerrymandering would repudiate or uphold a claim of federal right. If anything, a decision of a state court on partisan gerrymandering would either uphold a claim of federal right or be effectively the same as that which Supreme Court could offer (because application of the political question doctrine leaves plaintiffs with no remedies in the Supreme Court). Moreover, different outcomes in different states further principles of federalism because states (theoretically, at least) may compete with one another for the public’s affection.
The Political Question Doctrine as Federal Common Law.
           If there is no constitutional basis to find that the political question doctrine precludes state court review of cases concerning partisan gerrymandering, then could the Court apply the doctrine as a matter of federal common law? My answer is no, it couldn’t. 
Per Erie, the Supreme Court has the authority to create federal common law only to the extent that Congress can legislate. Professor Dorf wrote an article on jurisdiction stripping in the Texas Law Review, explaining that Congress does not have the affirmative power to strip state courts of jurisdiction over federal constitutional challenges to state actions when no federal court is open to hear the claim. Indeed, when Congress divests state courts of jurisdiction over constitutional challenges to federal statutes, it does so through its affirmative power to enact the statute, and when Congress divests state courts of jurisdiction over constitutional challenges to state actions when the federal courts are open to hear those challenges, it may do so because it’s necessary and proper to ordain and establish lower federal courts.  When the federal courts are not open, Congress has no authority to divest state court jurisdiction over federal constitutional challenges to state action. And again, per Erie, nor will the Court have that authority.
*          *          *
     If I am correct that state courts can hear federal constitutional challenges to partisan gerrymandering, then there’s tension between that view and Chief Justice Roberts’s view in Danforth v. Minnesota. In Danforth, the Court held that state courts may retroactively apply new constitutional rights in more instances than the Constitution and federal habeas statute requires.  Chief Justice Roberts, joined by Justice Kennedy, dissented, writing: “[O]ur role under the Constitution [is to be] the final arbiter of federal law, both as to its meaning and its reach, and . . . to ensure the uniformity of that federal law.” If that is so, then the Chief Justice will have to find a way to apply the political question doctrine to state courts as a matter of constitutional law or as a matter of federal common law, which I don’t believe is justifiable.
George R. El-Khoury is a 2019 graduate of Cornell Law School. He will soon begin a clerkship for a judge on the DC Court of Appeals, to be followed by a federal district court clerkship.


  1. Before reading this post, I had read some commentary on the Court's decision in Rucho. This post is quite technical in focusing on the potential roles of state courts on gerrymandering. I then read Joseph Fishkin's post at Balkinization critiquing the Court's 5-4 decision providing background that I had been missing, particularly on racially discriminating gerrymandering. , which hopefully may remain addressable in federal courts. Fishkin discusses how the Roberts Five might extend the political question doctrine creating more what Fiskin calls "sinkholes" in which it may be difficult to address certain constitutional protections. I expect there will be a lot more criticism of Rucho as gerrymandering affects democracy.

  2. Sandy Levinson had an earlier (pre-Fishkin) Balkinization post critiquing Rucho in which Sandy said the following:

    "If he [CJ Roberts] adheres to his previous view, and gets the support of Brett Kavanaugh to provide the fifth vote to overrule the earlier Arizona case, then he would legitimately be described as the most truly awful Chief Justice since Roger Taney. "

    That was before the Trump Administration pulled the rug out from the Chief's "advisory opinion" on the Census Con case providing the Administration with a roadmap of how the citizenship question might be appropriate following remand. Sandy's strong language cannot be ignored. Is the Chief really an umpire calling balls and strikes?

  3. I'm interested in the ultimate value of this approach.

    I take it that state courts already can decide things on independent state grounds. State constitutions have First and Fourteenth Amendment analogues that need not be applied the same way as the federal constitution (ACS Blog has video of a panel on this issue). I put aside special state constitutional provisions that might be relevant here.

    But, emphasis is here on state courts separately applying the federal Constitution. So, what is the specific value there? For instance, the Guarantee Clause is deemed not justiciable by the Supreme Court. I believe a few state courts do take some guarantee claims. I suppose they do so using state constitutional analogues but under the approach here they might be about to use the Art. IV Guarantee Clause.

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  6. Joe, I see three values to the approach I've suggested.

    First, there will be no need to rely on state legislatures adopting reform measures to oust themselves of political power. Although some states have legislatures and high courts that share political beliefs, not all states do. Look no further than the Kansas Supreme Court, which recently held under the state's constitution that a woman has a right to choose whether to terminate her pregnancy. Four justices were appointed by a democratic governor, and three justices were appointed by two republic governors. Yet, the Kansas House and Senate are republican dominated. Certainly, Kansas could fairly decide a constitutional challenge to partisan gerrymandering if it were so courageous to interpret its own constitution in such a way that could result in backlash from political opponents in the state's legislature. The same could go the opposite way for conservative courts and liberal legislatures.

    Second, and I think more directly responsive to your comment, there is some added value to state experimentation when state courts are operating off of the same source of law. A decision of the Florida high court may inform Alaska, Nebraska, California, etc. Courts can learn from another. Interpreting different state laws can make experimentation all the more difficult. So, using the First Amendment, Fourteenth Amendment, or Art. IV's Guarantee Clause, would be better than using 50 state constitutions and the infinite possibility of state statutes. The guidance that state courts could glean from one another by using different sources of law is less so than the guidance they could glean from applications of a single source of law.

    Third, there is some value to honesty and transparency. If the federal Constitution deals with the issue, then the federal Constitution should deal with the issue. Just as state courts shouldn't interpret the federal Constitution to do what it doesn't, state courts shouldn't (although they are welcome to) interpret their own constitutions to do what they don't.

  7. What do you say to the claim that the Court's holding that there is no manageable standard is really a holding that there is no rule or standard to be found in the Constitution that prescribes *any* subset of partisan gerrymanders? Consider these statements:

    "[T]he Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from [1-person, 1-vote] that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support." That is, no entitlement to representation that is commensurate even in "some" way. Slip op. at 20.

    "A permissible intent--securing partisan advantage--does not become constitutionally permissible, like racial discrimination, when that permissible intent 'predominates.'" So predominant partisan intent isn't unconstitutional. Slip op. at 23.

    "[I]t does not make sense to use criteria ["a State's own districting criteria . . . as the baseline for determining whether a gerrymander violates the Federal Constitution." Slip op. at 27.

    "Here . . . the Constitution provides no basis whatever to guide the exercise of judicial discretion." Slip op. at 28. If that is true, how can it possibly also be true that the Constitution prohibits some set of partisan gerrymanders? It does so but provides "no basis whatever" to say which violate the Constitution?

  8. Asher, that's a fair response, because the Court's opinion in Rucho is riddled with statements like that. But I think to go in the direction that you suggest would be to read Rucho in isolation of other cases that fall under the political question doctrine.

    Based on prior cases (which I don't read Rucho to dismiss or change their framework), a vague or discretionary substantive standard should be relevant to the political question doctrine only insofar as it's relevant to assigning the question to some other political branch. Hence the name, the "political question doctrine," not the "difficult-to-answer doctrine."

    If the Court in the future were to say that ANY constitutional standard that is too general, or that gives a federal court too much discretion, is a political question and thus not justiciable, then all totality-of-the-circumstances tests are beyond federal court reach (and under your suggested reading of Rucho, state court reach). Goodbye voluntariness (if it's not already gone in application anyway). If the Court were to hold in the future what you're suggesting (say, because a state high court took the above approach), then I think that would be a radical expansion of the political question doctrine. It would ultimately lead to a slippery slope of all rules, no standards.

    1. My question isn't whether the political question doctrine has been expanded, but whether, in fact, this is a justiciability holding at all or is really a merits holding that the Constitution prohibits no subset of extreme partisan gerrymanders. The Court seems to both say that a lot of the obvious subsets (such as ones predominantly motivated by partisanship) one could identify are permissible, and that there is simply no standard to be teased out of the Constitution under which any subset is prohibited. I agree that the manageability strand of PQD isn't an anti-standard/pro-law-of-rules rule, but it is, I think, an anti-unintelligible-principle rule. In any event, I agree with Louis Seidman in "The Secret Life of the Political Question Doctrine," and Louis Henkin before him, that that strand is really just another way of saying that some practice isn't prohibited by the Constitution. In Nixon, for example, I think the Court should really be understood to have held as a merits matter that it's just fine to try someone by committee.

  9. I think the case that best supports my view is Nixon, as I quoted in the post. There, the Court heavily relied on constitutional test, structure, and history, and not just its inability to define the word "try," to find that definition of the word "try" was a political question. Although Rucho isn't as thorough as Nixon (probably because it's not as strong a case for the political question doctrine), I don't see the Court fundamentally altering that approach to change why the substantive standard is relevant.

  10. Thanks.

    The opinion does say state courts can and have addressed the problem.

  11. Query: Does Roberts' opinion suggest that courts of various states should have some consistency of standards in addressing political gerrymandering although constitutions can and do differ from state to state? Also, where state courts have addressed the problem, to what extent was there federal review?

    Some may be sifting through the Chief's opinion for ways to block roadways that state courts might take to address the problem.

  12. I anticipate forthcoming articles on the Chief's opinions in Rucho and the Census Con case with the theme "The Umpire Strikes Out" that may include comparisons between Chief Roberts and Chief Taney. Linda Greenhouse's recent NYTimes OpEd is a start. Of course we might expect counters from doubting Thomases.

  13. Shag from Brookline, I haven't done an exhaustive search of the political question doctrine as a matter of state law, but I assume that there would be no federal review of such holdings because it wouldn't present a federal question.

    Asher, that is likely how people who want to entrench partisan gerrymandering will read the case. I'm just a little bit more optimistic.

    Happy 4th everyone!

  14. Over at the VC, Ilya Somin has an uninteresting post "Questioning the Political Question Doctrine - The Supreme Court has used this doctrine for many years, including in the recent gerrymandering decision. But it still doesn't actually make any sense." He thinks it's a close question in Rucho (as witnessed in the Chief's opinion and Justice Kagan dissent) and not a "slam dunk" (either way) as claimed by others.

    Perhaps the political question doctrine is sometimes utilized by the Court with party politics in mind. Will states react to Rucho by going to even greater extremes in gerrymander? Can state courts be expected to protect voters? Consider the impact of such extremes on the Constitution's Preamble for a "more perfect Union ...." Recall post-Shelby County the prompt actions of mainly the former slave states in imposing restrictive voting limitations

  15. "Sit down, John!"

    John Roberts: I'm already sitting down. Political question!

    Happy Fourth. #1776