Political Gerrymandering and the Courts

By Bernard Grofman | Go to book overview
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islators tend to vote differently from Democrats. It seems even more doubtful when Justice White adds, "This is true even in a safe district where the losing group loses election after election." And it seems utterly out of the question when at the end of the paragraph, Justice White inserts a reference to footnote 7 of Justice Marshall's dissent in Mobile v. Bolden. That footnote is quoted at length in the main body of my essay, but it will be recalled that it includes the statement, "Unconstitutional vote dilution occurs only when a discrete political minority whose voting strength is diminished by a districting scheme proves that historical and social factors render it largely incapable of effectively utilizing alternative avenues of influencing public policy." Unless Grofman believes Justice White is given to selecting citations at random, his interpretation of the passage in question is plainly erroneous.

Grofman adds, however, that his interpretation must be accepted to bring Bandemer into line with recent racial vote dilution cases, namely Ketchum v. Byrne (740 F. 2nd 1398 ( 1984)) U.S. Ct. of Appeals 7th Circuit), Major v. Treen (574 F. Supp. 325 ( 1983)), and Thornburg v. Gingles (106 S. Ct. 2752 ( 1986)). The first two of these cases were decided by lower courts, and all three of them were decided explicitly under the Voting Rights Act, not under the Equal Protection Cause. 53 Is it a mystery why Grofman believes Bandemer needs to be reconciled with statutory decisions that it does not cite, while he feels free to ignore equal protection decisions on which Justice White relies heavily? Not when the reason appears so clearly--wishful thinking.

Whether my essay contains errors attributable to the same cause is for the reader to determine. I am content to conclude by referring you to the only source on which such a determination can rest, the text of the Supreme Court's decision in Bandemer.


NOTES
1.
Peter H. Schuck's article was published as I was completing final revisions for this essay, and therefore is not referred to in the text ( Schuck 1987). Schuck is sharply critical of Bandemer. Although I agree with many of the points he makes, I do not agree that they make a case against Bandemer, which I believe Schuck misreads. Schuck's criticism is based on the premise that Bandemer either does or will require proportional representation or something close to it. To the extent this is simply a prediction of what the Court will do in later cases, see 87 Columbia Law Review at 1364, I can do no more than express the hope that Schuck is wrong. But

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