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Chapter 2

Chapter 2

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Published by Allison Hayward

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Published by: Allison Hayward on Apr 22, 2010
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Chapter 2POLITICAL QUESTIONSA. I
NTRODUCTION
Under certain circumstances, federal and state courts will refuse to reach the merits of cases properly before them, on the basis that the case presents a “political question” more properlyresolved in the other branches of government. Since the topics covered in this casebook allinvolve “political” issues to varying degrees, the political question doctrine has the potential,depending how broadly and rigorously it is applied, to prevent many election law disputes from being resolved by the courts. Whether this result is a good or bad outcome depends on what onethinks about the appropriateness of courts deciding election issues.The political-question doctrine in the federal courts has a venerable, if confusing andcontroversial, history. The doctrine can be traced back to no less than
Marbury v. Madison
, 5U.S. (1 Cranch) 137, 170 (1803), in which Chief Justice John Marshall spoke of certain powersof the President lying in his sole discretion, beyond the control of courts. Challenges to thePresident’s exercise of such discretionary authority presented “[q]uestions, in their nature political,” unfit for judicial resolution. As the Court explained:
Where the head of a department acts in a case, in which executive discretion is to be exercised; in which heis the mere organ of executive will; * * * any application to a court to control, in any respect, his conduct,would be rejected without hesitation.But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performanceof which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden * * *, itis not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department.
 Id 
. at 170-71.The Supreme Court has since considered whether the political-question doctrine applies toissues besides the unique facts presented in
Marbury
. Some of these cases involved variousaspects of election law, and the Court held that they did not present non-justiciable politicalquestions.
See, e.g.
,
 Nixon v. Herndon
, 273 U.S. 536, 540 (1927) (holding racial discriminationin Texas Democratic primary unconstitutional, and remarking that to invoke the politicalquestion doctrine because the political process was at issue was “little more than a play uponwords”);
 Baker v. Carr 
, 369 U.S. 186 (1962) [p. XXX] (holding that an equal-protectionchallenge to gerrymandering of state legislative districts did not present a political question, anddistilling criteria to apply the doctrine, addressed below).The doctrine has generated a large amount of scholarly commentary. Some writers defend thedoctrine, arguing that federal judges should be able to exercise prudential judgment to defer reaching the merits of particularly difficult or contentious issues, which are better resolved by theother, more democratically accountable branches of government.
 E.g.
, A
LEXANDER 
B
ICKEL
, T
HE
 L
EAST
D
ANGEROUS
B
RANCH
(1962). In contrast, other writers argue that the doctrine is aninappropriate and unprincipled exercise of authority by judges, when they are presented withcases otherwise properly before them. On this account, the courts have a duty to reach the merits, particularly when constitutional rights are involved, and the doctrine itself is based on “political”1
 
considerations that judges should not take into account.
 E.g.
, Martin H. Redish,
 Judicial Reviewand the Political Question
, 79 N
W
. U. L. R 
EV
. 1031 (1985). Scholarly discussion continuesapace.
 E.g.
, Rachel E. Barkow,
More Supreme than Court? The Fall of the Political Question Doctrine
, 102 C
OLUM
. L. R 
EV
. 237 (2002);
 
Jesse Choper,
The Political Question Doctrine:Suggested Criteria
, 54 D
UKE
L.J. 1457 (2005); Richard F. Fallon, Jr.,
 Judicially ManageableStandards and Constitutional Meaning 
, 119 H
ARV
. L. R 
EV
. 1275 (2006). As you read the cases inthe remainder of this Chapter, consider whether the doctrine is more (or less) persuasivelyapplied when the case involves the structure of governance, as election-law issues do, as opposedto some other aspect of the substantive authority of the other branches (
e.g.
, the foreign-affairs powers of the President).The political question doctrine has also been applied by state courts considering legalchallenges to the actions of other branches of the state government. To the extent they apply thedoctrine, some states borrow the criteria developed in federal courts. But on the whole, thedoctrine has been applied less robustly by many state courts, in part because state constitutionsare typically much longer and more detailed than the Federal Constitution, and seem to call for more judicial interpretation and application of those provisions. Since most state judges aresubject to periodic elections to attain or retain office, some have argued that this greatedemocratic accountability makes the doctrine less appropriate at the state level.
Compare
HelenHershkoff,
State Courts and the “Passive Virtues”: Rethinking the Judicial Function
, 114 H
ARV
.L.
EV
. 1833 (2001) (advancing such an argument),
with
Christine M. Durham,
The Judicial  Branch in State Government: Parables of Law, Politics, and Power 
, 76 N.Y.U. L. R 
EV
. 1601(2001) (expressing skepticism of an activist role by state judiciaries).
See also
James A. Gardner,
 A Post-
Vieth
Strategy for Litigating Partisan Gerrymandering Claims
, 3 E
LECTION
L.J. 643(2004) (arguing that claims barred by the political-question doctrine in federal court can be pursued in state court).
B. T
HE
N
ON
-J
USTICIABILITY
 
OF
 
THE
G
UARANTEE
C
LAUSE
Article IV, § 4 of the U.S. Constitution states that “[t]he United States shall guarantee toevery State in this Union a Republican Form of Government.” Beginning with the canonicaldecision in
 Luther v. Borden
, 48 U.S. (7 How.) 1 (1849), the Supreme Court has held that federalcourts cannot hear legal challenges to state governmental structures or processes on the groundthat they violate the Guarantee Clause.
 Luther 
involved a series of changes to the stateconstitution of Rhode Island, which resulted in controversy and confusion about the proper governmental authority in that state. The case came before the Court due to a challenge to asearch undertaken by a sheriff of the Rhode Island government. The challenger argued that thesearch was unlawful, since it was undertaken on behalf of a government that was not in arepublican form. The Court held that the challenge was non-justiciable, since it was up toCongress to enforce the Guarantee Clause. Among other things, the Court observed that it wasunclear how to determine whether or not a state had a republican form of government.While
 Luther 
has long stood for the proposition that Guarantee Clause challenges in federalcourt are barred by the political-question doctrine, that understanding has not prevented litigants,and the Court, from revisiting the issue, as the following cases indicate.2
 
PACIFIC STATES TELEPHONE & TELEGRAPH CO. v.OREGON
Supreme Court of the United States.223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912)
M
. C
HIEF
J
USTICE
W
HITE
delivered the opinion of the court [in which M
. J
USTICE
M
C
ENNA
,M
. J
USTICE
H
OLMES
, M
. J
USTICE
L
URTON
, M
. J
USTICE
H
UGHES
, M
. J
USTICE
V
AN
D
EVANTER 
, and M
.J
USTICE
L
AMAR 
join].
We premise by saying that while the controversy which this record presents is of muchimportance, it is not novel. It is important, since it calls upon us to decide whether it is the dutyof the courts or the province of Congress to determine when a State has ceased to be republicanin form, and to enforce the guaranty of the Constitution on that subject. It is not novel, as thatquestion has long since been determined by this court conformably to the practise of theGovernment from the beginning to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress.The case is this: In 1902 Oregon amended its constitution. This amendment while retainingan existing clause vesting the exclusive legislative power in a General Assembly consisting of asenate and a house of representatives added to that provision the following: “But the peoplereserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power attheir own option to approve or reject at the polls any act of the legislative assembly.” Specificmeans for the exercise of the power thus reserved was contained in further clauses authorizing both the amendment of the constitution and the enactment of laws to be accomplished by themethod known as the initiative and that commonly referred to as the referendum. As to the first,the initiative, it suffices to say that a stated number of voters were given the right at any time tosecure a submission to popular vote for approval of any matter which it was desired to haveenacted into law, and providing that the proposition thus submitted when approved by popular vote should become the law of the State. The second, the referendum, provided for a reference toa popular vote, for approval or disapproval, of any law passed by the legislature, such referenceto take place either as the result of the action of the legislature itself, or of a petition filed for that purpose by a specified number of voters. * * *By resort to the initiative in 1906 a law taxing certain classes of corporations was submitted,voted on and promulgated by the Governor in 1906 as having been duly adopted. By this lawtelephone and telegraph companies were taxed, by what was qualified as an annual license, two per centum upon their gross revenue derived from business done within the State. Penalties were provided for non-payment, and methods were created for enforcing payment in case of delinquency.The Pacific States Telephone and Telegraph Company, an Oregon corporation engaged in business in that State, made a return of its gross receipts as required by the statute and wasaccordingly assessed 2 per cent. upon the amount of such return. The suit which is now before uswas commenced by the State to enforce payment of this assessment and the statutory penaltiesfor delinquency. * * *
14
The case was argued between Justice Harlan’s death and Justice Pitney’s investiture, and during the absence of Justice Day while he attended to his wife during her final illness. As a result, it was decided by a seven-Member Court. –Eds.
3

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