Unresolved Issues in Partisan Gerrymandering Litigation
In 1984, in Bandemer v. Davis, 603 F. Supp. 1479, a federal district court held (by a 2 to 1 vote) that the 1981 Republican-drawn redistricting plans for both chambers of the Indiana legislature were unconstitutional, because, as intentional partisan gerrymanders, they violated the Fourteenth Amendment rights of the Democratic party (the minority party in the state legislature). In Davis v. Bandemer, 106 S. Ct 2797,_____U.S._____( 1986), the U.S. Supreme Court affirmed (6 to 3) that partisan gerrymandering was justiciable, but confounded most experts by also reversing (by a 7 to 2 vote) the lower court findings that the Indiana plans were unconstitutional gerrymanders.
Davis v. Bandemer is potentially the most important redistricting case since Reynolds v. Sims, 377 U.S. 533 ( 1964), because it opens to judicial review the only aspect of redistricting that had been seemingly immune from judicial scrutiny, the intentional partisan gerrymander (cf. Baker, 1986b; Engstrom, 1977). Despite its clear declaration that partisan gerrymandering is justiciable, Davis v. Bandemer has given rise to considerable scholarly dispute over what the test of unconstitutional political gerrymandering will ultimately prove to be.
Because Davis v. Bandemer lacks a majority opinion, and because it rejected the District Court claim that both Indiana legislative plans had been shown to be unconstitutional gerrymanders, interpreting the Davis ruling is difficult. 1 Headlines in the press proclaimed variously "Court Disallows Gerrymandering" ( Los Angeles Times, July 1, 1986) and "Justices Uphold Partisan Lines in Districting" ( New York Times, July 1, 1986). An Op-Ed column in the Washington Post ( Edsall, 1986) asserted, "As for which party prevails it depends upon whom