Michael D. McDonald and Richard L. Engstrom
The issue remaining to be resolved in the post-Bandemer era is whether there are any manageable standards by which gerrymandering can be detected. While six justices in Bandemer agreed that allegations of gerrymandering are justiciable, they split over the question of a manageable standard for detecting that phenomenon ( Davis v. Bandemer, 106 S. Ct. 2797 ( 1986)). A majority confidently maintained, however, that this issue of a standard could be, as the malapportionment issue had been after Baker v. Carr, 369 U.S. 186 ( 1962), "subsequently resolved" ( Davis v. Bandemer, p. 99), or that it "can and should be developed" ( Davis v. Bandemer, p. 126, Justice Powell concurring). Moreover, that majority did reach agreement concerning two values on which the standard is to be constructed. First, the standard must be contained within a district electoral system ( Davis v. Bandemer, pp. 103, 104, 131-132). Second, the fundamental constitutional value at stake is equality, specifically "that each political group in a state should have the same opportunity to elect candidates of its choice as any other political group" ( Davis v. Bandemer, p. 100).
Our purpose here is to demonstrate that the Court's confidence is not misplaced. Given the two value premises, we propose a clear, precise, and manageable standard for distinguishing what is from what is not a gerrymander.
Gerrymandering is the drawing of electoral district lines so as to assign unequal voting weights to cognizable political groups. It is a noxious political practice. In one form, a gerrymander is arranged by packing a group's members into a relatively small number of districts