Will Baude on the Supreme Court's Gerrymandering Ruling

Can Federal Partisan Gerrymandering Claims be Brought in State Court?

As most readers of this blog likely know, yesterday the Supreme Court held in Rucho v. Common Cause that constitutional claims of "partisan gerrymandering" are "nonjusticiable"—i.e., they are not "properly suited for resolution by the federal courts." The opinion also notes the other potential legal instruments, such as federal legislation and state constitutions, that might be used to limit gerrymandering abuses.

One thing I have found myself wondering, though: After the Supreme Court's decisions can state courts still hear federal constitutional claims about partisan gerrymandering? In other words, does Rucho apply to state courts, or only federal courts?

As a doctrinal matter, the question is whether the so-called "political question doctrine" governs state court interpretations of the federal constitution or only federal court interpretations. I was surprised not to find an easy answer to this. On one hand, Justice Rehnquist treated this question as obvious in a concurring opinion he wrote more than forty years ago, saying that "This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, so long as they do not trench upon exclusively federal questions of foreign policy." Yet I don't see a Supreme Court case that cleanly resolves this, though I certainly could have missed it and would be happy to know about it.

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