The Independent View: State Courts Now Control Federal Gerrymandering Cases

Federal Gerrymandering Claims can 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 Gerrymandering is Unconstitutional.

2 - The Supreme Court also believes that Gerrymandering Claims are Nonjusticiable.

3 - States believe that such Claims are Justiciable. So they are going to Adjudicate them.

Justiciability - concerns the Limits upon Legal Issues over which a Court can Exercise its Judicial Authority. It includes, but is Not Limited to, the Legal Concept of Standing, which is used to determine if the Party bringing the Suit is a Party appropriate to establishing whether an actual Adversarial Issue exists. Essentially, Justiciability in American Law seeks to address whether a Court possesses the Ability to provide Adequate Resolution of the Dispute. Where a Court feels it cannot offer such a Final Determination, the matter is Not Justiciable.

With the Supreme Court No longer taking Gerrymandering Cases, any Judgment a State Court reaches on a Federal or State Gerrymandering Claims would seem to be Nonreviewable by the Supreme Court.

The Courts 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 Gerrymandering Claim.

As long as the Supreme Courts Decision (Rucho) remains Good Law, then, it appears possible for State Courts to generate a Body of Shadow Precedent about Gerrymandering under the Federal Constitution.

These Future 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. Courts are indeed Capable of deciding Federal Gerrymandering Claims Consistently and Non-Arbitrarily.

Future Gerrymandering Cases

- A Defendant against whom a Federal 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.

- If a State Court reached its Decision on Federal and State Grounds, the Decision’s Non-Reviewability by the Supreme Court would be even clearer. In that Case, there would be an Adequate and Independent State Law basis for the Decision.

States now need a method to determine a Gerrymander Case.

I like a system by Nicholas O. Stephanopoulos and Eric M. McGhee Formula called the “Efficiency Gap” system to determine if a Map is Gerrymandered.

The system looks at Two Types of “Wasted Votes” in the Redistricting Process: Lost Votes Cast in Favor of a Defeated Candidate, and Surplus Votes cast in Favor of a Winning Candidate that weren’t actually necessary for the Candidate’s Victory. The Efficiency Gap is, in Stephanopoulos’ words, “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” If that Gap is over a set Percent, the Map is Gerrymandered.

CLICK HERE for more information about the Efficiency Gap.