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