I wish to acknowledge the support of NSF Grant #SES 8421050, Political Science Program, the pleasant research environment of the Department of Political Science, University of Washington, where I spent a sabbatical quarter in spring 1985, and the invaluable typing services and bibliographic assistance of Dorothy Gormick and the staff of Word Processing Center, School of Social Sciences, UCI.

¹ Additional declarations from other political scientists and from past or present members of Congress and the state legislature were also filed in Badham. The four declarations chosen for excerpting, two on each side (Gordon Baker and Bernard Grofman for the Republican plaintiffs and Bruce Cain and Nelson Polsby for the Democrats (the State of California)), encompass the full range of issues considered in the case. Each author was allowed to pick the excerpts from his own declaration(s), subject to a space limitation, and/or to write new material including reflections on the case and on the testimony offered by the political scientists in it. Only Professor Baker took up this invitation to write a postscript to the material he prepared for trial.

² Each of these political scientists has written extensively on redistricting and related issues:

Gordon Baker is professor of political science, University of California, Santa Barbara. His books include The Reapportionment Revolution (New York: Random House, 1966), and he has served as consultant to the Special Masters appointed by the California Supreme Court in 1973 to redistrict the state's legislative and congressional districts. His most recent article on reapportionment is “Whatever Happened to the Reapportionment Revolution?” in Grofman, B. and Lijphart, A. (Eds.), Electoral Law and Their Political Consequences (Agathon, 1985, forthcoming).Google Scholar

Bruce Cain, associate professor of political science, California Institute of Technology, is author of The Reapportionment Puzzle (Berkeley: University of California Press, 1984) and was a special consultant to the California General Assembly Elections and Reapportionment Committee in 1981. (He did not, however, have any responsibility for the drafting of the congressional plans in California.) His most recent article on reapportionment is a forthcoming comment in the UCLA Law Review (October 1985).

Bernard Grofman, professor of political science and social psychology, University of California, Irvine, is co-editor (along with Arend Lijphart, Robert McKay and Howard Scarrow) of Representation and Redistricting Issues. He has served as an expert witness or court appointed consultant in legislative or congressional litigation in nine states and in cases involving local jurisdictions in several other states. His most recent publication on reapportionment is “Criteria for Districting: A Social Science Perspective” (UCLA Law Review, October 1985).

Nelson W. Polsby is professor of political science, University of California, Berkeley. Among his many books is the edited volume Reapportionment in the 1970's (Berkeley: University of California Press, 1971). Polsby has written numerous books and articles on presidential elections, the U.S. Congress, electoral politics in Britain, community power and various public policy issues.

³ For example, is a gerrymander to be known by the intent of its designers or its (probable) political effects?

⁴ Badham is complicated by the fact that the 1981 congressional plan passed by the California legislature which was used in the 1982 elections was rejected by voter referendum and a “new” plan was passed in 1983 and took effect in 1984. How different the new plan (AB2X) is from the old plan (AB301) is one of the issues at dispute in the lawsuit since it affects the extent to which 1982 election results are relevant in judging the effect of AB2X. In the declarations AB2X is generally referred to as Plan II and AB301 as Plan I.

⁵ It might seem that the burden should rest on the plaintiffs, but Justice Stevens in a concurring opinion in Karcher v. Daggett asserted that it was his view that the plaintiffs (once they have established their legitimacy as a harmed class) need only make a prima facie showing of gerrymandering, and then the burden shifts to the state to show that the challenged features of the plan can be justified on the basis of legitimate state purposes (e.g., avoiding racial vote dilution or insuring population equality).

⁶ Perhaps the single best instance of this is the critical role of lawyer-political scientist Robert Dixon in Gaffney v. Cummings, 412 U.S. 735 (1973). See Baker, Gordon E., “Threading the Political Thicket by Tracing the Steps of the Late Robert G. Dixon, Jr.: An Appraisal and Appreciation.” In Grofman, B., et al. , Representation and Redistricting Issues, op. cit., 21–34.Google Scholar

⁷ Areas of testimony included population and related census statistics, compactness standards, analysis of the concentration and dispersion of majority population, measures of racially polarized voting, effects of alternative election methods, identification of neighborhoods and communities of interest, analysis of township and county crossings, analysis of campaigning practices, effects of alternative registration procedures on minority registration and turnout, and delineation of racially competitive districts and/or of districts in which minority voting strength has been submerged.

⁸ Introductory references to a vast and burgeoning literature include Meier, P., Sacks, J. and Zabell, S. L., “What Happened in Hazelwood: Statistics, Employment Discrimination and the 80% Rule,” American Bar Association Journal (Winter 1894), 139–186 Google Scholar; Baldus, D. and Cole, J. W. L., Statistical Proof of Discrimination (Colorado Springs, Colo.: Shepards, 1980)Google Scholar; Sanders, , et al., “The Relevance of Irrelevant Testimony: Why Lawyers Use Social Science Experts in School Desegregation Cases,” Law and Society Review, Vol. 16 (1982)Google Scholar; Lopus, David, “The Numbers Game Is the Only Game in Town,” Howard Law Journal, Vol. 20 (1977), 374–418 Google Scholar; and Grofman, Bernard, Migalski, Michael and Noviello, Nicholas, “The ‘Totality of Circumstances’ Test in Section 2 of the Voting Rights Act: A Social Science Perspective,” Law and Policy (April 1985).CrossRefGoogle Scholar

⁹ For a very useful review see Saks, M. and Baron, C. (Eds.), The Use, Nonuse and Misuse of Applied Social Science in the Courts (Cambridge, Mass.: Abt Associates, 1980).Google Scholar

¹⁰ A focus on rights defined in terms of outcomes rather than processes has also been suggested as a factor, since analysis of outcomes often requires sophisticated statistical techniques for causal inference. I was reminded of this point by Jonathan Pool (personal communication. May 27, 1985).

¹¹ See Grofman, Migalski and Noviello, op. cit.

¹² See, e.g., the discussion of competing definitions of racially polarized voting in B. Grofman, “Criteria for Districting: A Social Science Perspective,” op. cit. What is the appropriate definition of racially polarized voting, a social science question if there ever was one, will be an issue directly before the U.S. Supreme Court this October term in the North Carolina Section 2 case, Edmisten v. Gingles (D.C. N.C. 1984). The definition used by the district court in that case was one proffered to them by one of the expert witnesses in the case (myself).

¹³ In Section 2, as in many other areas of social science courtroom testimony, it appears that, with rare exceptions, experts testify exclusively for plaintiffs or exclusively for defendants. In part this may occur because, as Richard Lampert (professor of law, University of Michigan, personal communication, 1981) once succinctly put it, “It is probably more common for experts to be paid because of the positions they espouse than for the experts to espouse positions because they are paid.” All four experts whose declarations we have excerpted identify with the Democratic party. Cain and Polsby in their previously published work have strongly rejected the notion that political gerrymandering should be justiciable. Baker and Grofman, on the other hand, had in previously published work endorsed the justiciability of political gerrymandering.

¹⁴ See, e.g., Jiminez v. Hidalgo County Water Improvement District No. 2, 68 F.R.D. 668 (S.D. Texas 1975), aff'd mem 424 U.S. 950 (1976); WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D. N.Y.) aff'd 328 U.S. 4 (1965) (per curiam); Cousins v. City Council of City of Chicago, 466 F.2d 830, 844 (7th Cir.) cert, denied 409 U.S. 893 (1972).

¹⁵ See esp. Whitcomb v. Chavis, 403 U.S. 124 at 143–144 (1971).

¹⁶ 377 U.S. 533 at 565–566 (1964).

¹⁷ Justice Stevens' opinion in Karcher drew extensively on work by political scientists, in particular on Backstrom, Charles, Robins, Leonard and Eller, Scott, “Issues in Gerrymandering: An Exploratory Measure of Partisan Gerrymandering Applied to Minnesota,” Minnesota Law Review, Vol. 62 (1978), 1121–1159.Google Scholar

¹⁸ I have modified this optimism about the probability of political gerrymandering being held. unconstitutional in the light of Justice White's recent expressed position in a subsequent motion for a stay of a lower court order in Karcher 104 S. Ct. 1691 at 1696–97 (1984).

¹⁹ Indiana's legislative plans were also challenged on Section 2 grounds in Indiana Branches of the NAACP v. Orr (U.C. Indiana 1984), a case which was consolidated for trial with Bandemer, and in which plaintiffs lost. I testified for the State of Indiana in both cases, but my testimony in Bandemer did not reach a conclusion as to the merits of the allegation of political gerrymandering. In the Section 2 litigation, however, I testified that Indiana's legislative plans did not have a racially vote dilutive effect. The district court's judgment in the Section 2 case that there was no Section 2 violation is not being appealed by the NAACP.

²⁰ The declarations in Badham excerpted in this minisymposium were filed prior to the decision of the Bandemer court but after the decision in Karcher.

²¹ Litigation about political gerrymandering makes for strange bedfellows. The California Democratic Congressional Delegation has filed an Amicus Brief supporting the Indiana Republicans in Bandemer. (If Indiana's legislative plan is held to be unconstitutional, it's hard to imagine that California's congressional plan won't also fall.) The Republican National Committee has filed an Amicus Brief in support of the Bandemer holding that gerrymandering is justiciable. (Most state legislatures are under Democratic control.) The Mexican-American Legal Defense and Education Fund (MALDEF) has filed an Amicus urging that Bandemer be reversed. (An undue emphasis on district compactness as a key indicia of political gerrymandering is perceived to have unfavorable political consequences for the geographically diffused Hispanic population.)