Political Gerrymandering and the Courts

By Bernard Grofman | Go to book overview
whether voting is polarized will vary according to pertinent circumstances."
32.
"The requirement of a threshold showing is derived from the peculiar characteristic of the political gerrymandering claims. We do not contemplate that a similar requirement would apply to our Equal Protection cases outside of this particular context" ( Davis v. Bandemer, p. 2811, n. 14).
33.
I have not dealt to any extent with the opinions of Justice Powell or Justice O'Connor in Davis v. Bandemer since I believe it likely that in the next case to be decided Justice White's plurality opinion will (after some melding with the views of Stevens and Powell) become the basis for a majority opinion.
34.
Egregious political gerrymandering condemns political groups to permanent minority status almost regardless of their electoral strength or of changes in voter preferences ( Reynolds v. Sims, pp. 565-566, cited in Davis v. Bandemer, p. 2806).

Acknowledgments. This research was partially supported by NSF Grant SES# 85-15468, Program in Political Science. I served as an expert witness in four of the cases discussed in this chapter: for the State of Indiana in Bandemer v. Davis ( 603 F. Supp. 1479 ( 1984), heard sub nom Davis v. Bandemer _____ U.S. _____ ( 1986), 106 S. Ct. 2797 ( 1986); for the NAACP Legal Defense Fund in Gingles v. Edmisten ( 590 F. Supp. 345 ( 1984), heard sub nom Thornburg v. Gingles, _____ U.S. _____ ( 1986), 106 S. Ct. 2752 ( 1986)); for the Republican National Committee in Badham v. Eu ( N.D. Calif., No. C-83-1126, dismissed for want of a Constitutional claim, 1988); and for the U.S. Department of Justice in Ketchum v. Byrne ( D. Illinois, 1985). I am indebted to a number of attorneys, including William Evans, Lani Guinier, Michael Hess, James Parrinello, Marguerite Leoni, and Leslie Winner, for making available to me trial transcripts or legal pleadings and briefs in these cases. I am indebted to the Word Processing Center, School of Social Sciences, UCI, for cheerfully typing several drafts of this manuscript from my handscribbled copy, to Michael Migalski for research assistance on projects connected to my expert witness testimony in a number of redistricting cases, and to Dorothy Gormick for bibliographic assistance. The views expressed are solely those of the author.


ADDENDUM: REPLY TO LOWENSTEIN

In the Addendum to his essay Professor Lowenstein accuses me of "wishful thinking" in my interpretation of Davis v. Bandemer. Lowenstein's view is that Davis v. Bandemer is a case that sets out Fourteenth Amendment protections against some hypothetical future case involving "outcast political groups" subject to McCarthy-era-like discrimination. My view is the commonsense one that a case about partisan gerrymandering involving Republicans and Democrats is a case about partisan gerrymandering involving Democrats and Republicans, and that the plurality opinion (and all the other opinions) refers

-62-

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