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Gerrymander (Update)


By the mid-1980s the focus of attention in racial gerry-mandering controversies had shifted from the fourteenth amendment to the voting rights act of 1965, which Congress had amended in 1982 to assist minority-group plaintiffs. In Thornburgh v. Gingles (1986) the Supreme Court laid down guidelines for application of the revised Section 2 of the act.

While constitutional controversy over racial gerrymandering was subsiding, the issue of partisan gerrymandering was nearing its climax. In Davis v. Bandemer (1986) a 6–3 majority held that attacks on partisan gerrymanders under the equal protection clause were justiciable, but only two Justices voted to strike down the districting plan that was being challenged by Indiana Democrats.

Justice byron r. white's plurality opinion for the four Justices who believed the question was justiciable but that the Indiana plan was constitutional has received divergent interpretations. In one common view, the opinion is simply confused or self-contradictory. Others have read it to mean that plans yielding a legislative seat distribution sharply disproportionate to the statewide partisan vote will be struck down.

In Davis, the Republican National Committee supported the Indiana Democrats in an amicus curiae brief, while the Democratic congressional delegation from California supported the Indiana Republicans. This apparent display of political disinterestedness might have been influenced by the pending Republican challenge to the California congressional districting plan on similar grounds. After Davis, a lower court dismissed the California case, interpreting White's opinion in Davis to require pervasive discrimination against the plaintiff group beyond the gerrymander that is being challenged. Under this interpretation, major-party gerrymandering claims would rarely if ever be successful. The Supreme Court refused to review the California dismissal in Badham v. Eu (1988).

After much sound and fury, the prospects for judicial invalidation of partisan gerrymanders may have been no greater at the end of the 1980s than at the beginning.

Daniel H. Lowenstein


Grofman, Bernard, ed. 1990 Political Gerrymandering and the Courts. New York: Agathon Press.

Symposium 1985 Gerrymandering and the Courts. UCLA Law Review 33:1–281.

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