This week’s decision by Justice Samuel Alito (who entertains emergency motions from within Delaware, New Jersey and Pennsylvania) to leave undisturbed the congressional districting ruling last month by the Pennsylvania Supreme Court—in League of Women Voters of Pennsylvania v Commonwealth (League of Women Voters)—is a helpful reminder of the importance of state courts and state constitutions in safeguarding American democracy. In the space below, I analyze the Pennsylvania dispute, and explain why the US Supreme Court should stay out of it.
Before turning to the Pennsylvania specifics, though, let us consider the larger backdrop. At a time when many people are worried about the health of our institutions of government and the high levels of partisan strife, there is an understandable tendency to look to the federal judiciary, including the Supreme Court, to uphold basic constitutional principles. For example, some folks are hoping that the Court (in particular Justice Kennedy) will find a way in the Wisconsin districting case argued in October—Gill v. Whitford (Gill)—for the federal courts to apply the federal Constitution to prevent state legislatures from using modern technology to leverage their small legislative majorities into extremely large ones via aggressive partisan gerrymandering. Since its decision over a decade ago in Vieth v. Jubelirer, the Court has been reluctant to wade into this “political thicket” (as the justices have called it) without a reasonably clear and judicially administrable test, even as the Court has on multiple occasions recognized that “partisan gerrymanders [are incompatible] with democratic principles.” Perhaps the plaintiffs in Gill have offered a serviceable test for the Court to use; we will likely find out this spring. (In this regard, I do observe that the justices’ decision to review the case on the merits does not necessarily signal a change in their justiciability stance, since the case came up through the appeals route rather than via a writ of certiorari, and the Court has much less discretion to avoid review in the former than in the latter.)
But even as many citizens hope that the federal judiciary will help keep the nation true to its constitutional commitments notwithstanding the heat of the moment, we also should remember that part of the genius of our constitutional design lies in state constitutions and state courts. Federalism has certainly been getting a lot of play today; states and localities have been standing up to what they see as tyrannical federal policies. In fact, I have written on this site about many such flashpoints, for example here and here. But these headline-grabbing episodes of state/local pushback almost always involve legislative and executive non-cooperation and/or possible interference, perhaps causing us to downplay state judiciaries and the state constitutions they interpret and enforce.
The Pennsylvania districting dispute is a good illustration of why ignoring state courts would be a mistake. Without waiting for what, if anything, the US Supreme Court may do in the name of the US Constitution to rein in partisan gerrymandering in Gill, the Supreme Court of Pennsylvania late last month in League of Women Voters held that Pennsylvania’s Congressional Redistricting Act of 2011 “clearly, plainly and palpably” violates the Pennsylvania state constitution, and “on that sole basis” struck the Act down. The Pennsylvania Supreme Court then sent the matter back to the Pennsylvania General Assembly to “submit a congressional districting plan that satisfies the requirements of the Pennsylvania Constitution.” And if the General Assembly fails in this task, the court held open the possibility that it would need to adopt a districting plan itself for use in the 2018 federal elections.
Although I do not purport to delve into the nuances of the Pennsylvania state constitution, I do want to offer few observations about why state courts can play an important role in this crucial area, regardless of what federal courts are or are not able to do.
First, state courts are often much less encumbered by so-called “justiciability” doctrines than are federal courts: Article III of the federal Constitution does not apply to state courts, so state courts may have much more liberal rules about standing, ripeness, mootness, and so-called “political questions” than does the federal judiciary. So what counts as a judicially administrable standard in state courts might be quite different from what a federal court would need. One reason state courts can often be more ambitious in this regard is that their members, unlike federal judges and justices, are often subject to democratic accountability (such as retention and recall elections) and their decisions are often subject to democratic override (through the initiative and other devices).
Second, because state constitutional principles provide an adequate and separate basis alongside federal law for regulating things like partisan gerrymandering, decisions like League of Women Voters should ordinarily be immunized from US Supreme Court review and reversal. The seminal case in this line of cases is Michigan v. Long, in which the US Supreme Court held that as long as a state supreme court makes explicit that the basis for its decision is state law whose meaning does not depend on the meaning of federal law—even though there may be federal parallels or analogues—the US Supreme Court will lack the authority to review. Of course, if interpreting state law in a particular way arguably impedes someone else’s federal rights, the US Supreme Court would have authority to review the latter. But there is no federal entitlement to have districts drawn in partisan ways, whether or not such practices violate administrable federal limitations.
So clearly a state court can construe a state constitution to place limits on legislative district-drawing practices with regard to state legislative districts. But what about congressional districts, the topic at issue in League of Women Voters? Does the fact that states are implementing a federal power/duty in developing the procedures to be used in federal elections mean that state constitutional limits should be irrelevant? No, because the Supreme Court has made increasingly clear that when the US Constitution deputizes the “legislatures” of the states to engage in open-ended lawmaking processes (as opposed to binary ratification or senatorial selection processes), the term “legislature” (for example, in Article I, Section 4’s authorization/command that the “Times, Places and Manner” of federal legislative elections “shall [in the first instance] be prescribed in each State by the Legislature thereof”) should be understood to mean the legitimate lawmaking authority in the state, not simply the elected legislative body that sits in the state capitol. Several aspects of state lawmaking that limit the power of the elected legislatures—such as gubernatorial vetoes, and initiatives and referenda—all have been held to apply to congressional districting. In the same vein, judicial review in state courts (that itself emanates from state constitutions) to enforce other limitations imposed on elected legislatures by those state constitutions is part of what the US Constitution anticipates when it gives authority to the “Legislature thereof.” After all, the only reason that gubernatorial vetoes, and direct democracy devices such as initiatives and referenda, are (as the Court has held) part of what constitutes a “legislature” under Article I is that they are enshrined in the state constitution that creates, defines, and limits legitimate lawmaking power by state bodies. Substantive state constitutional constraints codified in state constitutions are no different from lawmaking procedures built into those same constitutions; either way, the US Constitution takes state legislative powers as it finds them—vested with certain capacities but also cabined by certain limits, all defined in state constitutions.
Some uncertainty about all of this was created in part by some loose language by three concurring justices (two of whom are no longer living) in the (in)famous 2000 Bush v. Gore ruling, parts of which touched on Article II’s reference to “legislatures.” A majority of the Supreme Court seems to now have settled on the approach I describe above, and for which I have argued in academic scholarship going back to the 1990s. (I suspect the Court’s having moved in this direction explains Justice Alito’s decision to deny the stay, whether or not he is part of the Court majority.) As the Court said forcefully less than three years ago in Arizona State Legislature v. Arizona Independent Redistricting Commission (where it upheld under Article I’s definition of “legislature” the use of state initiatives and initiative-created commissions to draw congressional district lines): “Nothing in [Article I, Section 4] instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”
I close with a cautionary note. State constitutions and state courts interpreting them can rein in state legislatures, but they cannot impede otherwise permissible actions by federal entities. It bears noting that under Article I, Section 4, Congress, if it wants to, can take the job of drawing congressional district lines away from state legislatures and perform the task itself. And if Congress were to create congressional district lines that reflected extreme partisan gerrymandering for the federal districts in Pennsylvania, then a state constitutional norm against such practices would not be enforceable in any court. Congress would be bound only by limitations in the federal Constitution. But to the extent Congress has no appetite to take on the congressional districting task (and for now there is no indication that Congress is inclined to enter this arena), the state constitutions and state courts interpreting them are very important institutions to have, and to watch.
