Political Gerrymandering and the Courts

By Bernard Grofman | Go to book overview

Court to make extremely difficult decisions and might cause political embarrassment, but would bring about little if any public benefit. At the same time the justices, recognizing the complexity of the subject, may have been uncertain what abusive practices might be brought to light in the future, and have been reluctant to cut off an avenue for relief if and when relief was needed.

When Davis v. Bandemer came along, invited by the separate opinions of Justices Stevens and Powell in Karcher (I), it seemed as if the Court had to fish or cut bait. The District Court had struck down the Indiana plan. If the Court affirmed, restrictions on political gerrymandering were in the Constitution forever. If the Court reversed, it had to say why. Suppose a justice, placed in this position, wanted only to restore the status quo ante as nearly as possible. The result might look very much like Justice White's opinion for the plurality.


ADDENDUM: RESPONSE TO GROFMAN

The reader who compares my essay and Professor Grofman's (chapter 3) with our respective contributions to the 1985 UCLA Law Review symposium on partisan gerrymandering will be struck by the correspondence between our present conflicting interpretations of Davis v. Bandemer and the differences we expressed in our pre-Bandemer writings. 48 No doubt this double correlation falls well short of statistical significance, but unhindered as I am by formal training in either the natural or social sciences, I feel free to conclude that something other than sheer randomness is at work here.

The reader who is not already a card-carrying member of either the Grofman or the Lowenstein camp will therefore be well-advised to approach each of our interpretations with more than the normal amount of skepticism. Nevertheless, our essays, however tainted by the appearance or reality of wishful thinking, at least share the virtue of purporting to identify a way of interpreting Bandemer to avoid the conclusion of previous writers that the plurality opinion is hopelessly confused and standardless. The only way of arbitrating the differences is by a close testing of our respective interpretations against the text of Justice White's opinion. 49 In this Addendum I attempt to show by a few important examples that, at least in Grofman's case, the emphasis must be on "wishful thinking," and that whatever flaws may be present in my own interpretation, they are not the ones that Grofman claims to find.

Grofman is one of a number of able political scientists who have devoted substantial efforts to defining and refining elaborate methods

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