Anmerkungen:
In: Voting Rights & Democracy Forum, Vol. 1, p. 111
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments March 27, 2023 erstellt
Beschreibung:
In Rucho v. Common Cause the Supreme Court concluded that claims of excessive partisan gerrymandering present political questions that are beyond the reach of the federal judicial power due to a lack of “judicially discoverable and manageable standards” by which to determine when partisanship has gone too far. In the court of doing so the Court noted the existence other avenues for addressing the problem, one of which is state courts. This essay focuses on state courts’ reaction to and use of Rucho, which turns out to present as something of a Rorschach test. Some see its reasoning as applying to the American judicial power in a deep and comprehensive sense, such that its logic and conclusions apply to all courts. On that view, the message is that courts and electoral maps simply do not mix. Others see in Rucho a case about the federal judicial power, which leaves space for state courts to determine for themselves whether the legal and institutional frameworks within which they operate empower or even compel them to intervene. This latter view, or so this Essay contends, is surely correct. State judicial power—like state legislative and executive power—is distinct not only in differing from the federal judicial power, but also in that its contours can and should vary from one state to the next. Thus far, however, courts have been reluctant to engage deeply with such questions and, indeed, largely unwilling to acknowledge that they exist