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45 U. Chi. L. Rev. 845 (1977-1978)
Constitutional Challenges to Gerrymanders

handle is hein.journals/uclr45 and id is 849 raw text is: Constitutional Challenges to Gerrymanders Reapportionment litigation falls into two broad classes. Within the first class are those challenges to districting schemes that allege violations of the one person, one vote mandate of Reynolds v. Sims.' These cases2 involve a relatively straightforward inquiry into the population disparities among a state's election districts: -the issue is whether district-to-district variations lie within permissible lim- its. Such cases are appropriately designated as quantitative reap- portionment cases.3 More complex, and not yet judicially settled, is the second class of cases: challenges to gerrymanders based upon a broad interpretation of Reynolds's command that all voters must have an equally effective voice' in the election of their representa- tives. These qualitative claims are founded on the recognition that equality of voting district populations does not guarantee substantive equality in the sharing of power.' The gerrymander may be defined as a division of electoral dis- tricts that maximizes the voting strength of one political party or faction.6 Three types of gerrymander may give rise to qualitative districting challenges: (1) splitting a hostile voting group among 377 U.S. 533 (1964). 2 See, e.g., Gaffney v. Cummings, 412 U.S. 735, 740-51 (1953); Mahan v. Howell, 410 U.S. 315 (1973); Swann v. Adams, 385 U.S. 440 (1967). 3 Nevett v. Sides, 571 F.2d 209, 215 (6th Cir. 1978). The Supreme Court has stated that the basis for challenges to such numerical disparity among voting districts lies in the dilution of the strength of the individual's vote. Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960) (discussing Colegrove v. Green, 328 U.S. 549 (1946)). 377 U.S. at 565. Casper, Social Differences and the Franchise, 105 DAEDALus 103, 112 (1976); see Neal, Baker v. Cars. Politics in Search of Law, 1976 Sup. CT. REv. 252, 278. ' Judge, now Justice, Stevens adopted the following definition of gerrymander: an unfair arrangement of electoral districts designed by the dominant party to give it an advan- tage over its rival in future elections. Cousins v. City Council, 466 F.2d 830, 847 (7th Cir.), cert. denied, 409 U.S. 893 (1972) (Stevens, Cir. J., dissenting). See L. TRmF, AmxmcAN CoNsrrrioNAL LAw § 13-9, 756 n.1 (1978). This comment will adopt a somewhat broader definition: gerrymandering is districting with discriminatory effects that result not only from a legislative intent, but may result from any facially neutral districting plan. See R. DIxON, DEMOCRATIC REPRE SENTA TON: REAPPORTIONMENT N LAW AND PoLrIcs 461-63 (1968). The use of districting itself has been demonstrated to create a bias in favor of the dominant political party. Id. at 462. The possibility of underrepresentation of voting factions exists to a les- ser extent under systems of proportional representation, such as those of the Netherlands and Israel. See D. RAE, THE PoLmcAL CONSEQUENCES OF ELECTION LAws 28-39, 87-103 (1967). Within the scope of the term gerrymander lie both constitutionally fair and unfair districting schemes. See Gaffney v. Cummings, 412 U.S. 735 (1973) (gerrymander designed to apportion legislative seats fairly between political parties).

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