6. Partisan Gerrymandering


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 Footnote and Kirkpatrick v. Preisler. Footnote 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 Footnote and Gaffney v. Cummings Footnote ).

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.” Footnote 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.” Footnote

Cases Leading To Bandemer

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 Footnote and Burns v. Richardson, Footnote raised the question of invidious discrimination in reapportionment schemes that would impermissibly “minimize or cancel out the voting strength of racial or political elements” Footnote [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.” Footnote

In Gafney v. Cummings Footnote 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.” Footnote 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. Footnote

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 Footnote 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, Footnote 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. Footnote

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.” Footnote 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.” Footnote

Davis v. Bandemer

When Bandemer reached the Supreme Court, Footnote the Court (in a 6-3 vote) said for the first time “we find ... political gerrymandering to be justiciable,” Footnote 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.” Footnote 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” Footnote (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. Footnote (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 ... .” Footnote

Although agreeing with the lower court that the claim was a statewide one, Footnote 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. Footnote (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.” Footnote

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. Footnote

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]” Footnote 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 ... .” Footnote 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 Footnote 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.” Footnote 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.” Footnote 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 ... .” Footnote 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 ... .” Footnote

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, Footnote 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 Footnote and Fund for Accurate and Informed Representation Inc. (“FAIR”) v. Weprin, Footnote 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.” Footnote 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. Footnote


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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