Political Gerrymandering and the Courts

By Bernard Grofman | Go to book overview

6
Establishing a Statewide Electoral Effects Baseline

Charles Backstrom, Leonard Robins, and Scott Eller

The Supreme Court in Davis v. Bandemer (106 S. Ct. 2797 ( 1986)) established, over the objections of Justices O'Connor, Rehnquist, and Burger, that partisan gerrymandering was justiciable. At the same time, however, the Court upheld, over the objections of Justices Powell and Stevens, the constitutionality of the Indiana state redistricting plan that was at issue. Since many students of the subject of partisan gerrymandering (ourselves included) were uncertain that partisan gerrymandering would be declared justiciable, but had little doubt that the Indiana districting plan constituted a classic partisan gerrymander, the result was, to say the least, surprising.

The controlling plurality--Justices White, Brennan, Marshall, and Blackmun--clearly want the courts to eliminate the evil of excessive partisan advantage in districting, but did not enunciate a simple but sound measure and standard for measuring it. Additionally, the plurality opinion was, as we will demonstrate, both confusing and contradictory. 1 Thus, the future evolution of the law on partisan gerrymandering is highly uncertain. Legislators or other state authorities who will soon have to redistrict again, and federal district courts who will have to adjudicate challenged districting statutes have not had their work made easier by Davis v. Bandemer.

The resolution of this controversy that ultimately emerges will have to follow one of the following three scenarios: First, after much protracted litigation and difficulty in developing guidelines for testing for the presence of gerrymandering, the Court decides it cannot develop an effective test and reverses the Davis v. Bandemer holding that partisan gerrymandering is justiciable (the O'Connor solution). Second,

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