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In Rucho v. Common Cause, the Supreme Court of the United States held that partisan-gerrymandering claims present non-justiciable political questions. The decision seemingly settled a controversy that had existed for decades, during which the Court was simultaneously unwilling to declare partisan-gerrymandering claims non-justiciable and unable to agree on a judicially manageable standard for adjudicating those claims. In Rucho, for the first time, a five-Justice majority definitively concluded that there are no judicially manageable standards to determine the constitutionality of partisan gerrymanders, and therefore held that federal courts lacked jurisdiction to hear cases raising such claims.

Although the Court correctly determined that the partisan-gerrymandering claims should be dismissed, the Court should not have based its decision on the political-question doctrine. Rather, the Court should have held simply that the Constitution does not contain a right against excessive partisanship in districting. Rucho should have been dismissed for failure to state a claim on which relief could be granted, rather than for lack of jurisdiction. Resting the decision on the political-question doctrine has led some to suggest that state courts (which are not bound by the Article III case-or-controversy limitations on federal-court jurisdiction) can reach the merits of partisan-gerrymandering claims and hold districting schemes that give too much of an advantage to one party unconstitutional.

My thesis, however, is not simply that the Court should have issued a broader holding than it did. Rather, my thesis is that the Court issued a broader holding than it acknowledged—that what appeared to be a political-question holding was in reality a holding on the merits. Stated differently, the Court’s application of the political-question doctrine made it indistinguishable from an analysis of the merits.

Rucho did not hold (in fact, the Court could not have held) that all possible standards for deciding partisan-gerrymandering claims would be unmanageable by the judiciary. In fact, the Court itself suggested that standards contained in state constitutions were judicially manageable. Rather, the Court’s holding was that the Federal Constitution contained no judicially manageable standards for adjudicating partisan-gerrymandering claims, and as a result there was no jurisdiction.

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