represents, and that the representative assembly reflect the tangible, physical characteristics of society.
The Court's enhancement of reflective representation came at the expense of its concern for representation as activity. The failure to offer parties greater legal protection from gerrymandering practices frustrates the most important aspect of representation, that of activity. Representation as activity is premised upon a correlation between specific policy preferences of the represented and the ultimate policy outcomes by the representors. The stronger the relationship between outputs and preferences, the more legitimate the democratic processes which generated them. The stronger the nexus between public wishes and government action, the more representative those actions in the public's mind. 43
Parties are necessary to achieving this. In short, they are the mechanisms by which voter preferences are translated into public policy. 44 Therefore, when the interests of an electoral majority are consigned to minority status in the legislature, the legislature and its actions become suspect. A partisan legislative majority that received less than a majority of the votes is likely to pursue policies which deviate from those held by the majority of voters who supported the opposing party. Its legislative outputs will differ from those that would have resulted had the other party garnered a working majority. Those outcomes lack the requisite democratic foundation that entitle them to full legitimacy and respect.
Some semblance of proportionality between parties and votes is crucial to safeguarding against this." 45 The Supreme Court, therefore, was on tenuous footing in Bandemer when it required proof of discriminatory impact in several elections for a group of voters' influence to be "consistently degraded." 46 A single skewed election result that deprives the majority of control is open to challenge on grounds of democratic legitimacy and accountability, and effectively weakens representation for that legislative term.
The partisan gerrymandering controversy was particularly significant for two reasons. First, it exposed the Court's disregard for party structures in the important area of voting and representational rights. While recognizing the need to incorporate group voices and shared interests, the Court glossed over the parties as the means to that end. As a result, parties are legally submerged