Political Gerrymandering and the Courts

By Bernard Grofman | Go to book overview

will be determined by its ability to provide relief from egregious political gerrymandering without exposing virtually every districting plan to tedious and unnecessary judicial scrutiny. I believe that it will pass that test.


NOTES
1.
The Supreme Court dismissed rather cavalierly the claim that it had previously ruled partisan gerrymandering nonjusticiable. Many scholars (myself included) thought that summary affirmances in cases such as WMCA Inc. v. Lomenzo, 238 F. Supp. 916, 925 (S.D.N.Y) aff'd per curiam 382 U.S. 4 ( 1965) vacated 384 U.S. 887 ( 1966), where the lower court had held partisan gerrymandering nonjusticiable, implied an unwillingness on the part of the Supreme Court to enter what was potentially the deepest part of the "reapportionment thicket." In preparing for trial, the State of Indiana paid more attention to the Indiana NAACP challenge to its legislative plans (in the consolidated case, Indiana Branches of the NAACP v. Orr ( 1984)) than it did to the Democratic party challenge, in part because of a belief that, absent a dear sign from the Supreme Court, the district court would be reluctant to make new case law in the area of partisan gerrymandering. To do so might be seen to fly directly in the face of the Supreme Court's findings in Whitcomb v Chavis, 403 U.S. 124 ( 1971), that Indiana's multimember districts were constitutional and that, even when the minority in question was racial, evidence of electoral disproportionality alone was not sufficient to prove unconstitutionality. As the Supreme Court said in Whitcomb, in reversing the lower court findings of racial gerrymandering, "The failure of the minority to have legislative seats in proportion to its population emerges more as a function of losing elections than one of built-in bias against poor Negroes. The voting power of ghetto residents may have been 'canceled out' as the district court held, but this seems a mere euphemism for political defeat at the polls" ( 403 U.S. 124, p. 153). Indeed this exact language was quoted by Justice White in Davis v. Bandemer (p. 2812) as part of his explanation of why the district court's findings in Bandemer used an impermissibly low threshold test for partisan gerrymandering (see below).
2.
This, too, has been alleged by some critics of the Bandemer opinion, sometimes in the same breath that they allege that the screening of partisan gerrymanders would create an impossible and politically contaminating workload for the courts.
3.
When the State of Indiana appealed Bandemer to the Supreme Court, black plaintiffs in the consolidated case Indiana NAACP Branches v. Orr chose not to cross appeal, but instead entered a brief defending the district court's ultimate conclusion that "the challenged plans are unconstitutional in their discrimination against Democrats and blacks as Democrats" (Brief of Appellees Indiana Branches of NAACP in Davis v. Bandemer, in the U.S. Supreme Court, October Term, 1985, p. 3).
4.
The firm, Market Opinion Research, has strong ties to the Republican Party and was involved in redistricting consulting for Republicans in other states (e.g., Colorado). The district court ( Bandemer, p. 1485) as-

-58-

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