Vol. 1, No. 1 (March, 1991), pp. 8-12

POLITICAL GERRYMANDERING AND THE COURTS by Bernard Grofman (Editor). New York: Agathon Press, 1990. 335 pp. Cloth $36.00.

Reviewed by Frank Sorauf, Department of Political Science, University of Minnesota.

Although the editor has not chosen to add a subtitle, one is sorely tempted to. "Reading the Mind of the Court," perhaps, or maybe "Confusion After Bandemer." For looming over all of these 16 essays is the Supreme Court's landmark 1986 decision in Davis v. Bandemer (106 SCt 2797) in which it agreed for the first time that it would decide cases of alleged gerrymandering. Its presence is not unambiguous, alas, for in the opinion of many, if not most, scholars, it is not clear from the words of Bandemer just what the Court considers to be a gerrymander.

To examine the issue of gerrymandering post-Bandemer and before the onset of another post-census round of redistricting, Professor Grofman has assembled an uncommonly distinguished and well-published set of contributors to write 16 essays/articles. Aside from two brief introductory essays, their pieces fall into three groups: three devoted directly to understanding Bandemer, six addressing the problem of identifying or measuring a gerrymander generally, and five applying specific measures to congressional districting in Indiana and California in the 1980s. In general Grofman has avoided the two great pitfalls of such collections: variable quality and absence of structure. There isn't a single essay unworthy of one's time, and while they don't add up to a comprehensive survey of gerrymandering, they are unified in their various responses to the challenges of Bandemer.

So, back to Davis v. Bandemer. Only one of its conclusions is unmistakably clear: a majority of six justices agreed that the Court would move gerrymandering into its jurisdiction and no longer regard it as a non-justiciable "political question." Unfortu- nately that majority then split over the decision on the facts. Two justices (Powell and Stevens), employing a battery of tradi- tional measures (legislative intent, the shape of the districts, the use of multi- members districts, inter alia) found a gerry- mander in Indiana. The other four (Brennan, Blackman, Marshall, and White) did not. The latter four defined gerrymanders in language of notable, even flagrant imprecision; one can only say that they apparently had in mind districting that produced some kind of long-run and fundamental political disadvantage. As the closest the Court came to a majority statement, their plurality opinion (written by Justice White) has become the primary object of all the textual analysis.

In their attempts to read the plurality's words and/or minds, Grofman and Daniel Lowenstein engage in heavy-duty explication. Their styles and conclusions are sharply different, and they even carry out a two-way debate within their

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articles and in appended rebuttals. Grofman is swift of foot and mind, arguing confidently from point to point and drawing the reader inescapably to the conclusion that there is clear meaning in Bandemer and that the Court will be able to apply its standards in the future. The logic is tight, and the reader can escape it only by side-stepping as quickly as Grofman moves forward. In this short space I can only report than I was dazzled but that my earlier skepticism about Bandemer was not shaken. Lowenstein's chapter moves far more slowly, even ponderously, through more lawyerly examinations of text and doctrine. In his chosen way he comes to far less sanguine conclusions about Bandemer, views that will, I suspect, seem close to the mark to many scholars of districting. Bruce Cain ends this section with a lucid essay on the implications of Bandemer for the practitioners of districting, the political philosophers, and the reformers. The problem with Bandemer -- aside from its lack of a majority statement -- is indeed with the text of the plurality opinion. What is one to make of statements like these from White's plurality opinion (quoted by Grofman, pp. 36-37):

-- "...an unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistent- ly degrade a voter's or a group of voters' influence on the political process as a whole."

-- "...a finding of unconstitutionality must be supported by evidence of a continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process."

I find it very hard to say what the justices mean in those words, and even harder to say what they contribute to a definition of a gerrymander. Yet, both Grofman and Lowenstein do agree on one point: those words were intended to set a very high and limiting standard for gerrymandering in order to protect the federal courts from a flood of improvident litigation. But were they intended to deflect all but the very most egregious or catastrophic case, to confer a right in principle that could scarcely ever be claimed in practice? Or was the Court merely feeling its way to a firm but reasonable standard, however crudely expressed, in this first "cut" at the task?

The proposers and appliers of measures here take the only reasonable response to that question: they assume the good faith and educability of the justices. Charles Backstrom, Leonard Robins, and Scott Eller present their proposed measure once again, this time relating its characteristics and virtues to the criteria the Bandemer plurality seem to have in mind. (Their measure

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defines a gerrymander as an exaggeration of "normal" party strength in the districts of the state.) Theirs is in many ways the bridge essay in the volume, the one connecting the interpretation of Bandemer to the tasks of application, and they perform that role with lucidity, incisiveness, and a muted candor that confronts the Court's confusions charitably but honestly.

Two other pieces weigh in with tests that are, with Backstrom et al., also measures of the result or effect of the districting and thus in the direction the plurality pointed. Richard Niemi proposes a "swing ratio" way of looking at the seats-vote rela- tionship (i.e., the relationship between a total party vote percentage and the percentage of seats those votes netted). Michael McDonald and Richard Engstrom propose a standard for finding a gerrymander that seems to focus on maldistribution of the gerrymandered group's populations in the districts (i.e., both overconcentrations and overspreadings). Gordon Baker and Richard Morrill, however, return to more traditional, multi-pronged tests (often called the "totality of circumstances" approach). Peter Schuck offers a brief counsel of despair.

The final section of the book looks at Indiana and California districting in the 1980s. And it is here, alas, that the coherence of the volume suffers its major lapse. The applications do not carry forward the more general proposals of Backstrom-Robbins-- Eller, Neimi, or McDonald-Engstrom. Instead we have Neimi and John Wilkerson looking for compactness (one of the classic components of the "totality" tests) in Indiana, and Grofman and Thomas Hofeller doing the same in California. (The "totality" measure did have the support of Powell and Stevens in Bandemer.) Niemi and Stephen Wright explore an approach to the votes-seat ratio in evaluating the Indiana districts. Gordon Baker offers not a method or measure, but a process, for California, arguing convincingly that the plan of court-appointed masters for the 1970s provided much fairer districts than did the legislature's work for the 80s.

Leaving the nature of the measures and processes aside, however, the concluding applications repeatedly come to conclusions that there was, if not outright gerrymandering in Indiana and California, at least findings consistent with the conclusion of gerrymandering. And so we return to the basic dilemma of the gap between professed concern, even expressed willingness to act, and the lack of judicial action. (In the case of California the Court refused to overturn the decision of a federal district court in California, struggling to apply Bandemer, that no gerrymander had been shown in that state.) What indeed is the Court waiting for? Has it in fact devised a cruel shell game in which there is no pea? Or can the scholarly community help it find the gerrymander it says it is willing to invalidate? And what are the district drawers in the 50 states to make now of the judicial status quo as they struggle with the data the 1990 census?

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Ultimately one is left to ponder the politics of activism in judicial lawmaking. The Court has chosen once again to enter what Justice Frankfurter called "the political thicket" in order to secure newly defined rights. It understandably wants to define that right carefully enough so as not to clog the federal courts with excessive claims for it; it may well also want to protect itself against the cries of 50 (or 25) outraged state legislatures. But does strategy explain as much as political naivete? Is the Supreme Court merely struggling to master what is after all a very complicated business, this determining what a gerrymander is and when one sees one. In assuming that explanation the authors here take the proper approach to the highest court of the country; it is also the prudent way for a group of scholars, many of whom have given testimony in federal courts on these questions and under- standably maintain their interest in trying to shape the develop- ment of this part of electoral law.

If the Court is in transition or in media res, what is likely to be the end point of its juridical journey? To what standard of gerrymandering will it repair? In her dissent in Bandemer Justice O'Connor warned the Court that it had started down a road the only destination of which was strict proportionality -- that x percent of the votes state-wide should produce x percent of seats, give or take a specified margin of conversion. Six justices, of course, went on record as denying any no such intention. If not propor- tionality, what then? Will the Court continue to insist on a measure of long- run disadvantaging effect? If it does, the authors in this volume appear to be stumped, and rightly so in my opinion. If the Court is willing to reconsider and adopt tests of short-run electoral effect (as opposed to effects on political coalitions, group position, or general policy-making), then Backstrom et al., Niemi, and McDonald- Engstrom all have proposals that deserve -- and need -- the most serious evaluation. But Niemi and Wright may be right when they suggest (p. 277):

If alternative procedures for calculating majority-win percentages yield consistent results, the case for or against a gerrymander ruling is that much stronger. If using three or four or five past elections all point to the same conclusion, there is much more reason to believe it. If the majority-win percentage for a given party is well above the highest recent vote for that party, the case is much stronger than if the percentage is just barely above the highest recent vote.

I take Niemi and Wright to mean that the politics of picking a measure that is persuasive to the court, the public, and the public officials involved in districting will require a measurement overkill and something like the old "totality of circumstances" approach, albeit with a tad more "science" in the mix. It would not be the first time that the rule of parsimony had fallen before the politics of public policymaking.

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All of that, of course, remains in the realm of divining the future. Readers of this collection of essays may also be encour- aged to look backward and ponder the many difficulties the Supreme Court has had in the last generation with the intersection of American electoral politics and the Constitution. In a number of cases it has pushed the "rights revolution" into areas of electoral politics in which it had traditionally conceded massive regulatory powers to legislatures. One need only mention its first entrance into districting (Baker v. Carr and after), into campaign finance (Buckley v. Valeo), into voting in primary elections (Tashjian v. Republican Party of Connecticut, into intra-party decision-making (Eu v. San Francisco County Democratic Committee), and now into the densest part of the political thicket: gerrymandering. In all these instances the Court extended someone's "rights", in all instances it diminished legislative power to regulate, and in all (or most) instances it reaped a harvest of criticism for its political innocence or ignorance. Clearly there are a lot of observers who think the Court has not solved the problem of balancing the rights it has conferred with the long-standing collective interests in sustaining an equitable system of elections, representation, and democratic politics -- and that it has done so without showing much "feel" for or even sympathy for electoral politics.

Specialists in election law and politics will want to buy and absorb this book. I know of no better survey of the meaning and intention of the Court in Bandemer and the constitutional terrain it has shaped for redistricting in the 90s. Less specialized readers can dip in with equal profit, reading and skimming where they wish. For the selective reader, I'd have two suggestions: the bridging piece by Backstrom, Robins, and Eller, and Bruce Cain's essay looking at Bandemer from broader perspectives would be excellent introductions to the subject. After that, the rest of the cafeteria is open and very inviting.


Copyright 1991