Political Gerrymandering and the Courts

By Bernard Grofman | Go to book overview

degrees of uncertainty and conflicting testimony. There is no reason to hold partisan gerrymandering cases to higher standards of certainty and agreement. The gravity of the evil, and the inability to obtain redress elsewhere, requires judicial action to fulfill the promise of relief announced in Davis v. Bandemer. Moreover, there will be no respite for the Supreme Court if it chooses to backtrack on this issue, because the public is so intolerant of partisan gerrymandering that case after case will arise seeking to redress this unfairness. 17

Cogent standards on gerrymandering will improve the whole process of redistricting. If clear fairness standards exist, legislators will be more hesitant to breach them, resulting in a lessened need for judicial intervention. Moreover, redistricting is not inherently a legislative function. If there were less partisan advantage to gain, legislators, in the states where they are the exclusive districting authority, would be more willing to delegate that power to nonlegislative reapportionment commissions. But we do not believe that a fair districting plan is automatically guaranteed because it is drawn by a neutral source. Courts must retain the ultimate right to apply appropriate standards to test contested plans for fairness to the major political interests of the state.

An earlier, more extensive presentation of this subject appeared under the title "Partisan Genrymandering in the Post-Bandemer Era," Constitutional Commentary, Vol. 4, No. 2 ( 1987), pp. 285-318.


NOTES
1.
Perhaps the best evidence for the confusion engendered by the White opinion is the radically different ways in which it is interpreted by several authors in this volume--authors who collectively constitute most of the leading experts on the subject of partisan gerrymandering. For example, Daniel Lowenstein basically argues that Justice White requires evidence of a degree of "oppression" of partisans essentially equivalent to that suffered by blacks prior to the passage of the Voting Rights Act before he would invalidate a plan as constituting a partisan gerrymander (see Lowensteinchapter 4). Bernard Grofman, by contrast, argues that White is calling for only the presentation of evidence that a districting plan would over time unfairly disadvantage a party and that the partisans of that party are disadvantaged when there is an "overrepresentation" of elected officials from the other party. He indicates that a more effective evidentiary presentation by future plaintiffs could prove that that was happening (see Grofman, chapter 3). Our own interpretation is contained herein. We believe that this enormous variance in interpretation of the White opinion indicates confused writing, rather than confused readers.

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