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The Supreme Court Denies Coloradans Standing to Challenge the State's Congressional Districting:
Avoiding a Controversial Ruling Through a Jurisdictional Doctrine


Friday, Mar. 16, 2007

The Supreme Court last week handed down, but did not really decide, an interesting case involving Colorado's drawing of Congressional district lines. Because the Court said the plaintiffs lacked standing, it never reached the merits of the case.

The ruling, in Lance v. Coffman, reminds us how the Court often uses the flexible doctrine of "standing"to regulate its docket, and to selectively avoid weighing in on some contentious matters. The case also reminds us how many important and unresolved fundamental questions still remain concerning jurisdictional concepts - like a plaintiff's "standing" - that the Court rarely explores in helpful depth.

The Background of the Case: A Challenge to Colorado's Drawing of District Lines

The Lance case was brought in federal court by citizens of Colorado, to challenge the way the state had drawn its congressional district lines. Under the Elections Clause of the federal Constitution, the "Times, Places and Manner of holding Elections for [federal] Senators and Representatives, shall be prescribed in each state by the Legislature thereof," subject to Congressional override.

Legislative gridlock in Colorado impeded the redrawing of federal legislative districts to accommodate the one additional Representative in Congress the state had obtained as a result of population growth revealed by the 2000 census. Accordingly, a state court - pursuant to state law that authorized judicial action in case of legislative stalemate - drew the lines.

The state legislature ultimately was able to come up with a districting plan of its own. However, the Colorado courts, siding with the state Attorney General in a lawsuit he filed, ruled that the state lawmakers were too late: Under the state constitution they had to live with the judicially-drawn lines until the next decennial census.

After this state court lawsuit was over, four citizens of Colorado (none of whom had been formally involved in the state court litigation) filed an action in federal court, arguing that the Colorado court's interpretation of the state constitution had violated the Elections Clause. They contended that when the Elections Clause speaks of the "Legislature[s]" of the states, it means to empower state legislatures over state judiciaries. Thus, plaintiffs argued, judicially-drawn districts unconstitutionally step on the toes of the state legislature, which the Elections Clause empowers to do the line-drawing.

This suit, by the four Coloradans, is the case that went up to the Supreme Court, and was handed down last Monday.

Does the U.S. Constitution's Elections Clause Protect State Legislatures Against Encroachment by State Courts or Governors?

The question on the merits in Lance is an important one: It asks to what extent the federal Constitution's mention of state "Legislatures" in the Elections Clause (and elsewhere) protects state legislative bodies from encroachment by state judicial and/or executive branches. The Supreme Court has not had much occasion to determine and clarify how important state "Legislatures" - as distinguished from state governments more generally - are, when the federal Constitution mentions them in connection with a federal process (such as drawing Congressional districts, selecting Presidential electors, or participating in the federal constitutional amendment process.)

Indeed, a similar issue arose in the infamous Bush v. Gore case; much of the debate in that litigation, as it made its way to the Supreme Court, was over how active and aggressive Florida courts could be in overseeing the state recount process in the 2000 Presidential election, consistent with the federal Constitution. (In Article II, the Constitution confers on the "Legislature" of each state - not the judiciary thereof -- the power to direct the "manner" of selecting Presidential electors, or what we today call the electoral college.)

My own sense is that when the federal Constitution uses the word "Legislature" of each State, it should not be read to foreclose involvement by other state bodies - like state courts - particularly when that involvement is called for under state law. In other words, my general sense is that "Legislatures" of the states is a term that ought not to differ too much from the term "states" more generally. (This may be especially true in the context of the Elections Clause, where Congress has override power to negate what states do in drawing lines, in any event.)

But the Supreme Court in Lance never weighed in on the meaning of the word "Legislature," because it held in a brief Per Curiam (unsigned) opinion that the four citizen plaintiffs lacked "standing."

The Rationale for the Court's Holding that the Coloradans Lacked Standing

The Court's rationale for its holding on standing can be neatly summarized by one sentence from the Lance opinion: "[A] plaintiff raising only a generally available grievance about government - claiming only harm to his and every other citizen's interest in proper application of the Constitution and laws [of the country], and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy" over which a federal court can exercise jurisdiction.

Here is the Court's basic point: The plaintiffs in Lance could not (or at least did not) claim some special, particularized way in which they were hurt by the fact that the Colorado courts rather than the Colorado legislature drew the district lines. Rather, they only alleged that as citizens of Colorado they had a right to have their state governmental agents follow the federal Constitution. Thus, they lacked a cognizable injury that could confer "standing" on them to sue in federal court.

There are a number of noteworthy aspects of the Lance Court's standing discussion:

First is the Court's blanket statement - apparently supported by all nine Justices since the opinion drew no concurrences or dissents - that "[f]ederal courts must determine they have jurisdiction before proceeding to the merits." (Emphasis added.) It's true that, as a general rule, federal courts have traditionally taken up questions of things they call "jurisdiction" as threshold matters before they address whether the plaintiff's claim of legal wrong by the defendant (the merits issue) is valid or not. Yet in many earlier cases, various Justices had objected to an absolute "jurisdiction always comes first" approach, instead arguing that if a jurisdictional question is thorny, a court might be justified in "skipping ahead" to the merits of the case, if the merits provide an easy basis for rejecting the plaintiff's claim. In Lance, however, for reasons not explained, these Justices did not object to the Per Curiam opinion's seemingly complete resolution of this issue.

Second is the way the Lance opinion handled past Supreme Court rulings on the question of standing by citizen voters. The Court observed that its present holding was not inconsistent with earlier precedent, because the past two cases in which the Court had opined on the merits on the meaning of the word "Legislature" in the Elections Clause were each "filed by a relator on behalf of the State rather than private citizens acting on their own behalf, as is the case here." This statement, while perhaps technically true, likely won't quite placate critics. Why?

For one thing, one of the two earlier cases referred to, Smiley v. Holm, was brought by a citizen of Ohio whom the Supreme Court itself in a later case, Baker v. Carr, suggested enjoyed standing because he was a "citizen, elector and taxpayer of the state," and not because he had any other particularized reason for suing. (Ironically, the Lance Court elsewhere cites these pages from Baker itself as supportive of its holding without dealing with this language from Baker discussing Smiley.)

For another thing, it's not clear to me that a federal court, in determining federal standing, should care very much that a State allows private citizens to be "relators" on behalf of the State, if federal standing really does or ought to require particularized injuries by plaintiffs (questions on which I express no view here).

In other words, why should federal courts give much weight to state law that authorizes private "relators" to sue in federal forums? The Supreme Court, in Lujan v. Defenders of Wildlife, made clear over a decade ago that even Congress couldn't override Article III's requirement that plaintiffs suffer particularized injuries by authorizing so-called "citizen suits" by any person who wanted to ensure compliance with the law.

Finally, the Supreme Court has, in interpreting the word "Legislature" in other constitutional provisions, entertained lawsuits seemingly filed by citizens who had no interest other than seeing that their states complied with the Constitution. (An example of this is Hawke v. Smith, concerning the interpretation of the term "Legislatures" of the states in connection with Article V's constitutional amendment process, which involves state legislatures in ratification.)

The Problem with the Way the Court Dealt with Precedents on Standing and Redistricting

The Supreme Court in Lance also had to deal with prior cases in which plaintiffs had been given standing to sue to challenge the way Congressional district lines had been drawn. Some such cases involved the so-called one-person, one-vote principle. Some were brought to challenge excessively partisan gerrymandering that allegedly disadvantaged or diluted the votes of one political party. Still others involved challenges to so-called racial redistricting plans, where district creators allegedly took race into account to facilitate the election of racial-minority representatives.

The Lance Court dismissed the relevance of all these precedents by saying simply that the injury of plaintiffs in the present case "is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing."

Again, this may be technically true, but it certainly isn't a very satisfying and thorough explanation. Granted, it could be argued that the injuries at stake in the other districting contexts are distinct from those involved in Lance. For instance, in the one-person, one-vote setting, a plaintiff who resides in a district that has far more voters than do other districts can reasonably assert that her voice has been diminished by the unequal size of the districts. So too, in the vote dilution partisan gerrymandering setting, the plaintiffs of the disfavored political party who live in a gerrymandered district can argue that their party, and thus their voice, has been diminished.

Finally, even in the racial redistricting setting, one could argue that the injury suffered by white voters in a purposefully majority-minority district is different from the injury suffered by the Colorado citizens in Lance. The Court has said the problem with racial redistricting is it sends a message to the elected racial minority official that she should represent only (or especially) racial minority voters, and not all the persons in the district. Thus, whites in any majority-minority district created by racial redistricting allegedly have their voices diluted.

By contrast to those settings, the plaintiffs in Lance merely contend that they would perhaps (or likely) be located in different districts, combined with different groups of voters, had the legislature, rather than the state court, done the district line-drawing. But without any suggestion of how being in one district, rather than another, or having the lines drawn in one place, rather than another, had hurt any plaintiff, perhaps the Lance situation is indeed distinguishable from the other districting decisions, as the Court held.

If the Coloradans Don't Have Standing to Challenge the Line-Drawing, Who Would?

This analysis of other cases should cause us to ask: Who would have standing to challenge Colorado's judge-drawn lines in federal court?

I can think of at least three possibilities: (1) the State of Colorado itself, on behalf of the state legislature, which was arguably improperly cut out of the district line-drawing loop; (2) a candidate for Congress who could argue that the particular judge-drawn lines make it harder for him to win, than legislatively-drawn lines would (or might) have; and (3) members of a political party or other group who might allege that the particular judge-drawn lines in their district decrease their voice, relative to how strong it would be had a legislature drawn the lines instead.

It seems that any or all of these plaintiffs could, using past cases, argue that they satisfy Article III's requirement of having a distinct enough injury to justify standing.

The real question, then, ought to be: Is there any reason to believe that any of these plaintiffs would present a litigation vehicle that would be any better than the one presented by plaintiffs in Lance, for a court to give meaning to the Elections Clause and the word "Legislature" in it?

I'm not at all sure, which is another way of saying the Court has never satisfactorily explained exactly what is gained by adhering to the legal formalisms embodied in its (sometimes manipulated) particularized injury requirement of standing doctrine. That's where the Court has a lot more explaining to do.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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