Partisan Gerrymandering: A Political Problem Without Judicial Solution 1
Gordon Baker (chapter 2) applauds the Supreme Court's new willingness to adjudicate partisan gerrymandering claims. He believes that judicially manageable standards can be devised. Baker, conceding that courts cannot readily say what a "fair" districting plan is, urges courts to circumvent this problem by only striking down "unfair" plans. Although there is a difference between a court rejecting a plan and drafting its own, that difference is largely irrelevant to the question of what standards it is to apply. Baker's approach simply reformulates that issue; it does not address it. Other proposed standards (e.g., Wells, 1981) are also irrelevant to the problem but for a different reason. Plans must already meet these standards when deviations from population equality are challenged in the courts, yet partisan gerrymandering continues. Nelson Polsby ( 1985) has pointed to an additional problem: Standards like this are also normatively controversial.
I believe that courts attempting to adjudicate partisan gerrymandering claims will find it impossible to vindicate those claims unless they adopt a proportional representation standard. This view may seem odd since all members of the Court in Bandemer expressly disavowed proportionality as constitutionally required.
"The Constitution does not guarantee proportional representation." Saying something, however, does not make it so. There is a dynamic to constitutional adjudication that the Court cannot always control, a