Partisan (or political) gerrymandering is the drawing of electoral district lines in a manner
that discriminates against a political party. Partisan gerrymandering challenges to
redistricting plans, like racial bias challenges, allege violation of the Equal Protection
Clause. Until the Supreme Court’s 1986 decision in Davis v. Bandemer1 the judiciary
treated this age-old practice much like the skeleton in the family closet—always there yet
never directly addressed in polite company. The Supreme Court occasionally decided a
case on other grounds, with a concurring or dissenting justice expounding on the
gerrymander, as in Karcher v. Daggett
and Kirkpatrick v. Preisler.
Or, the Court
considered the facts of a gerrymander apparently without recognizing that, if the
gerrymander were a political question, and therefore not proper for the Court to determine
(“nonjusticiable”), the Court would not need to consider the facts at all (e.g., Burns v.
Richardson
and Gaffney v. Cummings
).
So it should not be surprising that in Davis v. Bandemer the Supreme Court went only so
far as to declare partisan gerrymandering justiciable. Bandemer created a standard for
finding an unacceptable partisan gerrymander that the plurality admitted was “difficult of
application.”
That difficulty resulted in relatively little litigation in this area during the
1990s that shed new light on the issue. The standard created in Bandemer requires proof
of both discriminatory intent and effect. The latter is found when the redistricting
“consistently degrade[s] a voter’s or a group of voters’ influence on the political process as
a whole.”
Before Bandemer, population equality and racial discrimination in redistricting clearly
were the Court’s primary concern even when partisan gerrymandering was alleged. As
early as the mid-1960s, the Supreme Court, in Fortson v. Dorsey
and Burns v.
Richardson,
raised the question of invidious discrimination in reapportionment schemes
that would impermissibly “minimize or cancel out the voting strength of racial or political
elements”
[emphasis added] without ever directly speaking to the justiciability of the
partisan gerrymandering question. Burns, involving the reapportionment of the Hawaii
Senate, also was the case in which the Supreme Court first essentially ruled that
incumbent protection was allowable in a redistricting plan.
Clearly, however, the Court was not ready to allow partisan issues to overrule the basic
one person, one vote principle. In a 1969 case, Kirkpatrick v. Preisler, the Supreme Court
rejected an argument by the state of Missouri that variations in population between
congressional districts were justifiable due to the interplay of politics, saying “problems
created by partisan politics cannot justify an apportionment which does not otherwise
pass constitutional muster.”
In Gafney v. Cummings
in 1973, the Supreme Court indirectly considered a partisan
gerrymander of Connecticut legislative districts. In the challenged plan, the
Apportionment Board “took into account the party voting results in the preceding three
statewide elections, and, on that basis, created what was thought to be a proportionate
number of Republican and Democratic legislative seats.”
The Supreme Court’s response
to the assertion that the plan was invidiously discriminatory because of a “political
fairness principle” was that:
[J]udicial interest should be at its lowest ebb when a state purports fairly to allocate
political power to the parties in accordance with their voting strength and, within
quite tolerable limits, succeeds in doing so ... neither we nor the district courts have
a constitutional warrant to invalidate a state plan, otherwise within tolerable
population limits, because it undertakes, not to minimize or eliminate the political
strength of any group or party, but to recognize it and, through districting, provide a
rough sort of proportional representation in the legislative halls of the State.
This decision begged the question of state plans that do minimize or eliminate party strength.
By the early 1980s, principles established in the long history of redistricting cases were
being considered in the context of partisan gerrymandering. The Bandemer
trial court
panel held that partisan gerrymandering had taken place and that the Indiana Republican
legislators had impermissibly discriminated against the Indiana Democrats in the drawing
of legislative district lines. A 1983 congressional district equal population case, Karcher
v. Daggett,
was significant primarily because Justice Stevens’ analysis of gerrymandering
in Karcher formed the basis of the decision for two of the three trial court judges. The
Bandemer trial court also called upon the discriminatory purpose test used for racial vote
dilution in City of Mobile v. Bolden.
Following Justice Stevens’ Karcher analysis, the trial court found that Indiana Democrats
were a “politically salient class,” whose “proportionate voting influence ... [had been]
adversely affected,” and who had presented a prima facie showing of discriminatory
partisan gerrymandering. Components of that showing included shapes of districts,
ignoring of “traditional political subdivisions,” and a “lack of fairness in the procedure
surrounding the legislature’s enactment of the district lines.”
The lower court then found
that the state failed to overcome the rebuttable presumption of impermissible
gerrymandering, because the burden was on the state to prove that the reapportionment
was “supported by adequate neutral criteria,” such as “effectuation of a rational state
policy.”
When Bandemer reached the Supreme Court,
the Court (in a 6-3 vote) said for the first
time “we find ... political gerrymandering to be justiciable,”
but reversed the trial court’s
decision because a violation of the Equal Protection Clause had not been proven. Justices
Powell and Stevens dissented, believing that an impermissible partisan gerrymander was
proven. Justice O’Connor, joined by Chief Justice Burger and Justice Rehnquist, concurred
in the result of the case by restating the traditional argument that alleged partisan
gerrymandering is nonjusticiable.
A plurality of the Court (justices White, Brennan, Marshall and Blackmun) agreed with the
trial court that it was necessary for those claiming an Equal Protection Clause violation “to
prove both intentional discrimination against an identifiable political group and an actual
discriminatory effect on that group.”
The plurality upheld the trial court’s finding of
discriminatory intent, stating that “[a]s long as redistricting is done by a legislature it
should not be very difficult to prove that the likely political consequences of the
reapportionment were intended”
(although the plurality cautioned in a footnote that
intent still had to be proven).
The ruling in Gaffney allowing proportional representation of seats was offhandedly
reaffirmed by the plurality, but the Court made it clear that the U.S. Constitution did not
require such an arrangement. Indeed, “mere lack of proportional representation will not
be sufficient to prove unconstitutional discrimination ... . Rather, unconstitutional
discrimination occurs only when the electoral system is arranged in a manner that will
consistently degrade a voter’s or a group of voters’ influence on the political process as a
whole.”
(Emphasis added.) The Court noted that its reasoning rested in part on its
perception that political influence is not limited to winning elections. “Thus, a group’s
electoral power is not unconstitutionally diminished by the simple fact of an
apportionment scheme that makes winning elections more difficult ... .”
Although agreeing with the lower court that the claim was a statewide one,
the plurality
spoke to individual districts as well as to the entire state. The same standard is applied in
both instances.
In both contexts, the question is whether a particular group has been
unconstitutionally denied its chance to effectively influence the political process. In
a challenge to an individual district, this inquiry focuses on the opportunity of
members of the group to participate in party deliberations in the slating and
nomination of candidates, their opportunity to register and vote, and hence their
chance to directly influence the election returns and to secure the attention of the
winning candidate. Statewide, however, the inquiry centers on the voters’ direct or
indirect influence on the elections of the state legislature as a whole. And, as in
individual district cases, an equal protection violation may be found only where the
electoral system substantially disadvantages certain voters in their opportunity to
influence the political process effectively. In this context, such a finding of
unconstitutionality must be supported by evidence of 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.
(Emphasis added.)
The Court never explicitly identified the evidence necessary to show that direct or indirect
influence of legislative elections had been precluded by a district plan. In an
enumeration of findings the trial court failed to make, the Supreme Court gave a glimpse
of what it might view as sufficient proof of an inability to influence the elections of the
legislature as a whole. Such evidence might include showings that the minority party had
virtually no chance of winning enough seats to control one house of the legislature in the
near future, and no ability to overcome its minority status before or following the next
redistricting. “Without findings of this nature, the District Court erred in concluding that
the 1981 Act violated the Equal Protection Clause.”
The plurality seemed to realize that this approach on an individual district level is unlikely to be successful.
This participatory approach to the legality of individual multimember districts is not
helpful where the claim is that such districts discriminate against Democrats, for it
could hardly be said that Democrats, any more than Republicans, are excluded from
participating in the affairs of their own party or from the processes by which
candidates are nominated and elected. For constitutional purposes, the Democratic
claim in this case, insofar as it challenges vel non the legality of the multi-member
districts in certain counties, is like that of the Negroes in Whitcomb who failed to
prove a racial gerrymander, for it boils down to a complaint that they failed to attract
a majority of the voters in the challenged multimember districts.
In addition to evidence of an inability to assume control of the legislature, the Court held
that the finding of an equal protection violation would have to be based on a history of
disproportionate results along with an effective disenfranchisement of the minority. Thus,
evidence would have to be presented that demonstrates a lack of political power and
denial of fair representation. Those conditions exist where excluded groups have “less
opportunity to participate in the political processes and to elect candidates of their choice
[cites omitted]”
and where elected officials are not responsive to concerns of the
excluded group.
The plurality departed from the body of equal protection cases by demanding more than a
de minimis (i.e., trifling) effect to prove a prima facie partisan gerrymandering case. A
plaintiff needs to show “that the challenged legislative plan has had or will have effects
that are sufficiently serious to require intervention by the federal courts ... .”
The
Supreme Court has not since expounded on Bandemer, so interpretations of the law on
partisan gerrymandering consist of relatively few lower court decisions.
As might have been expected from a careful reading of the threshold established by the
Court in Bandemer, demonstration of discriminatory effect has proven to be illusive. The
first case to wrestle with the Bandemer decision was Badham v. Eu
in 1989. Although
the case involved congressional rather than legislative redistricting, the lower court held
that the case was justiciable and (using the Bandemer plurality’s analysis) ruled on the
merits of the case by granting the defendants’ motion to dismiss. The majority held that
“[a]s an initial matter, it is clear that the complaint sufficiently alleges a discriminatory
intent.”
However, consistent with the high standard established in Bandemer, the court
then applied a two-prong “effects” test: 1) a history of disproportionate results (which the
court did not resolve because it held that the plaintiffs could not satisfy the second prong);
and 2) “strong indicia of lack of political power and the denial of fair representation.”
The court stated that “[p]articularly conspicuous by its absence is any allegation that
plaintiffs’ interests are being ‘entirely ignore[d]’ by their congressional representatives ...
.”
As for being “‘shut out’ of the political process,” the district court took judicial notice
that California had a Republican governor and a Republican U.S. Senator, that 40 percent
of the congressional seats were held by Republicans and that a “recent former Republican
Governor of California has for seven years been President of the United States.” The court
concluded that “[i]t simply would be ludicrous for plaintiffs to allege that their interests
are being ‘entirely ignore[d]’ in Congress ... .”
On appeal, the Supreme Court dismissed Badham for want of jurisdiction. Subsequently the Supreme Court granted plaintiffs’ petition for reconsideration of the dismissal and, in 1989, by a 6-3 vote, summarily affirmed the lower court’s ruling.
Other district courts have applied Bandemer in the same manner as the court in Badham.
In Republican Party of Virginia v. Wilder,
the court found the requisite intent to
discriminate but there had been no election subsequent to the redistricting to show a
discriminatory effect. The plaintiffs unsuccessfully attempted to distinguish their case
from Bandemer by claiming that their case was one of pairing incumbent Republicans
together in the same district, while Bandemer was a vote dilution case.
In Pope v. Blue
and Fund for Accurate and Informed Representation Inc. (“FAIR”) v.
Weprin,
district courts similarly found no viable claim of discriminatory effect. In Pope,
the plaintiffs argued that the redistricting plan was drafted without meaningful input by
the minority party but the Court stated that “the plaintiffs must show that they have been
or will be consistently degraded in their participation in the entire political process, not
just in the process of redistricting.”
Likewise in FAIR, plaintiffs’ allegation that they were
denied fair and effective representation by the redistricting plan of one legislative chamber
was held insufficient to show the discriminatory effect required by Bandemer. The Court
concluded:
[A] political party which is precluded from one house of a bicameral legislature is
not necessarily foreclosed from the state’s political process as a whole. Under
Bandemer, plaintiffs cannot prevail on their political gerrymandering claim vis-a-vis
the Assembly apportionment plan without showing that the gerrymandering
contaminated the Senatorial apportionment as well.
Partisan gerrymandering is a justiciable issue and may be held unconstitutional if it has a sufficiently discriminatory effect. However, what circumstances warrant a finding of unconstitutionality remains to be seen. Courts have said that, in themselves, minimizing contests between incumbents, drawing lines to create proportional representation of the political parties in a legislative body, and pairing minority party incumbents in the same district are not sufficient. Table 9 presents the leading cases on partisan gerrymandering.
Table 9. Partisan Gerrymandering Cases
Burns v. Richardson, 384 U.S. 73, 89 (1966).
The Supreme Court noted that the drawing of district boundaries “in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.”
Kirkpatrick v. Preisler, 394 U.S. 526, 533 (1969).
The Supreme Court ruled that, when a state legislature is attempting to draw districts of equal population, “the rule is one of ‘practicability’ rather than political ‘practicality.’” “Problems created by partisan politics cannot justify an apportionment which does not otherwise pass constitutional muster.”
Gaffney v. Cummings, 412 U.S. 735, 754 (1973).
The Supreme Court upheld the state legislature’s consideration of “political fairness” between major political parties when drawing legislative districts. (In this case, the plan took into account the party voting results in the preceding three statewide elections and, on that basis, created a proportionate number of Republican and Democratic legislative seats.)
White v. Weiser, 412 U.S. 783, 791, 797 (1973).
The Supreme Court reaffirmed its earlier holding in Burns that district boundaries that have been drawn “in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.”
City of Mobile v. Bolden, 446 U.S. 55 (1980).
Although this was a racial multimember district case, the Supreme Court put forth the discriminatory purpose test for violations of the Equal Protection Clause—later used for partisan gerrymandering purposes.
Davis v. Bandemer, 478 U.S. 109 (1986).
The Supreme Court held that partisan gerrymandering was a justiciable issue, but ruled that a violation of the Equal Protection Clause by the Indiana legislature had not been proven.
Badham v. Eu, 488 U.S. 1024 (1989), summarily aff’g 694 F. Supp. 664 (N.D. Cal. 1988).
The Supreme Court upheld (without a written opinion) a lower court decision dismissing a partisan gerrymandering challenge to the redistricting of the California congressional delegation.
Source: NCSL, 1999.
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This page is maintained by the Redistricting Task Force for the National Conference of State Legislatures
Update: 10/31/03 (psw)
Comments: peter.wattson@senate.leg.state.mn.us