Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away
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GERRYMANDERING AND THE BROODING
OMNIPRESENCE OF PROPORTIONAL
REPRESENTATION: WHY WON'T IT
GO AWAY?
Sanford Levinson*
I. INTRODUCTION
A spectre is haunting this Symposium-the spectre of
proportional representation.' All three of the Symposium
articles mention it; all three almost as quickly deny its cen-
trality to the issues raised by this conference.2 Thus Lowen-
* Professor of Law, University of Texas at Austin. For their reactions to
earlier versions of this Commentary, I am grateful to my colleagues at the Univer-
sity of Texas, Jim Fishkin (who gave me important bibliographic help), Douglas
Laycock, Scot Powe, William Powers, Tom Schwartz, and Mark Yudof. (That
three of them-Yudof, Powers, and Laycock-are deans of the Law School not
only speaks well for the institution but also underscores my gratitude for the time
they are willing to spend, especially in the case of Laycock, reading several differ-
ent drafts and talking extensively about the issues.) I am also grateful to my non-
Texas friends and colleagues Michael Sandel, Alan Feld, Will Harris, Don Herzog,
and Alan Howard for their responses.
1. Proportional representation is a system in which [e]ach group of voters
receives the same proportion of the seats in the legislative body as the number of
voters in the group is of the total electorate. Still, Political Equality and Election
Systems, 91 ETHics 375, 384 (1981). This excellent article develops six signifi-
cantly different notions of equality that could be used in reference to assessing
electoral systems; the Court, Still shows, has never carefully analyzed what to it
counts as constitutionally mandated equality. The Court's failure, of course, is the
basis of such symposia as this. See R. SMrrH, LIBERALISM AND AMERICAN CONsTrru-
TIONAL Law 120-37 (1985) (chapter discussing the theoretical tensions present in
various voting apportionment cases); C. Beitz, Equality in Representation (1984)
(paper prepared for the American Political Science Association Convention,
Washington, D.C.). See also Westen, The Empty Idea of Equality, 95 HARV. L. REV.
537 (1982), who argues in effect that careful analysis of equality is a utopian
goal. Instead, he argues, The concept of 'equality' is both empty and confusing
[and] should be banished as an explanatory norm. Westen, On 'Confusing Ideas :
Reply, 91 YALE LJ. 1153, 1155 (1982). In no area of the law does it seem more
difficult to escape the language of equality, however, than in that concerning
voting rights.
2. However, Professor Shapiro certainly recognizes the centrality of propor-
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Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away
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