THE COURT OF COMPROMISE
The controlling opinion, written by Justice White, gave the Court a voice in the partisan gerrymandering conflict for the first time, but limited its involvement to extreme cases. This thoughtful compromise charted a course between O’Connor and Powell’s polar-opposite positions which would have kept the Court entirely out, or constantly in, partisan gerrymandering disputes. The plurality also walked a careful line balancing the state legislatures' right to redistrict without heavy-handed oversight with the Court’s duty to protect the constitutional rights of voters. In plain terms, the plurality made it clear that unfair is not always unconstitutional and anything short of an extreme partisan gerrymander is for the state legislatures, not the Court, to remedy.
*plurality: the controlling opinion when no majority opinion exists
- uslegal.com
*plurality: the controlling opinion when no majority opinion exists
- uslegal.com
"Inviting attack on minor departures from some supposed norm would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal from legislative halls. We decline to take a major step toward that end, which would be so much at odds with our history and experience." |
"The view that intentional drawing of district boundaries for partisan ends and for no other reason violates the Equal Protection Clause would allow a constitutional violation to be found where the only proven effect on a political party's electoral power was disproportionate results in one election (possibly two elections), and would invite judicial interference in legislative districting whenever a political party suffers at the polls." |
To make good on the compromise position, the Court must be able to measure when partisan gerrymandering becomes so extreme it's unconstitutional. At the time there was no mathematical standard available, however the plurality anticipated a future where increased computing power might enable more extreme gerrymanders, but also provide an unbiased way to detect them.
"The plurality’s response was to find justiciability and then offer a touchstone explaining the constitutional value at stake. While diverging from the ordinary pattern of judicial opinions, this approach threaded the needle between foreclosing political gerrymandering claims entirely and opening up the courts to second-guessing every legislative redistricting in the country.
... [T]he Court plurality created incentives for those concerned about partisan gerrymandering to develop defensible criteria for distinguishing the evanescent from the essentially permanent...the Court would be – and is – poised to participate in an essential conversation among our government institutions about one of the most fundamental attributes of our democracy: its representation of the majority of citizens.
- Palma J. Strand, Justice White's law clerk during Davis v. Bandemer, from a personal essay on file with author