This minisymposium brings together excerpts from the expert witness declarations of four political scientists in an important case challenging California's congressional reapportionment as an unconstitutional political gerrymander, Badham v. Eu (D.C. California, 1984). These declarations are merely the “opening gun” in Badham. If the case goes to trial, we can anticipate additional statistical analyses will be performed and, of course, each of these experts would be subject to cross-examination about his testimony. Nonetheless, these four declarations represent an excellent illustration of the potential for political science (and political scientists) to be helpful to (even if not determinative of) judicial decision-making in an important policy arena.

The basic issues raised by Badham are as follows:

What is a gerrymander? Are there manageable standards through which political gerrymandering can be detected and measured? Is there (prima facie) evidence giving rise to a (rebuttable) presumption that the California congressional plans in 1981 and 1983 were political gerrymandering? Ought political gerrymandering to be justiciable? If so, did the degree of political manipulation in the California congressional plan(s) rise to the level of constitutional violation? If political gerrymandering is held justiciable, on whom should the burden of proof of gerrymandering rest?

1. I am a professor of political science at the University of California, Irvine.

… I am thoroughly familiar with the congressional districts delineated in Assembly Bill 2X as implemented with the so-called March 17, Technical Changes. The congressional districts of A.B. 2X (Plan II, passed in 1983) as implemented constitute an egregious form of partisan gerrymandering.

Methods of Gerrymandering

Gerrymandering is a technique which operates to minimize or cancel out the voting strength of racial or political elements of the voting population by one or more of the following twelve methods:

(1) Packing the voting strength of a group to insure that much of its voting strength is wasted in districts which are won by lop-sided margins—in particular, packing its strength to a greater extent than is true for the voting strength of the group controlling the district.

(2) Fragmenting or submerging the voting strength of a group to create districts in which that group will constitute a permanent (or near certain) minority.

(3) Reducing the re-election likelihood of some of a group's representatives by altering district boundaries to put two or more representatives from the group into the same district.

(4) Reducing the re-election likelihood of some of a group's representatives by altering district boundaries to cut-up old districts so as to make it impossible for these representatives to continue to represent the bulk of their former constituents.

Gerrymandering—the intentional manipulation of legislative boundaries for political advantage—is a venerable practice. Why, then, some might wonder, should we pay greater attention to it at this time? In particular, should judicial inquiry into constitutional issues of fair representation, intense for some two decades, now turn to what may well seem to comprise the heart of the “political thicket”? Throughout this period of reapportionment litigation, federal courts have alluded to the problem, with increasing concern shown by members of the Supreme Court of the United States, about its importance (e.g., Karcher v. Daggett, 103 S. Ct. 2653: 1983). Is the time ripe for a direct judicial examination of the gerrymander on constitutional grounds? And, if so, does California comprise an appropriate test case?

Prerequisite to answering such questions are: (1) an understanding of how and why gerrymandering, in magnitude, extent, and impact, has become an essentially new kind of issue rather than a mere extension of a traditional practice; and (2) a need to develop judicially manageable standards of identifying gerrymanders.

Prior to the reapportionment revolution of the 1960s, there existed a variety of constraints that conditioned boundary manipulation. For one thing, a large number of states simply failed to redistrict for several decades, the situation that triggered Baker v. Can (369 U.S. 186: 1962), Wesberry v. Sanders (376 U.S. 1: 1964), et al. This resulted in great disparities in population among districts, a form of “silent” or “status quo” gerrymander that in practice minimized periodic boundary manipulation. For example, district lines for Congress were typically redrawn only in states—usually a minority—that lost or gained seats.

1. Bruce Cain, declare as follows: …

2. Based on my study of redistricting, I believe that the attempt to define unbiased and objective standards of political fairness is futile. The reasons for this are several. First, there are many possible standards of political fairness, and political scientists do not agree as to which is best, as is demonstrated by the contradictory arguments in the declarations of Professors Grofman and Baker. Professor Baker argues for a compactness criterion while Professor Grofman disparages the use of what he terms “formal criteria” such as the shape of district lines and proposes instead a seats-votes measure. Secondly, the two standards of political fairness proposed by Grofman and Baker will prove contradictory in many circumstances, and this will force the courts to choose between them. Thirdly, the proposed standards are inconsistent with other redistricting criteria—particularly, with the court's efforts in the last decade to protect racial and ethnic minority voting strength. Finally, attempts to use fairness formulae are fundamentally flawed and impractical: they underestimate the many complex factors that determine the outcome of an election and overestimate the capacity of social scientists to predict future electoral outcomes.

1. I offer the Court this declaration because I believe that it is helpful for the Court to consider the extent to which the reapportionment process is inescapably political and value-laden. The drawing of district boundaries requires the weighing of many different and often conflicting interests. Any result will be a political result pleasing to some and not to others. Tests that could be used by the courts to manage cases, like this one, in which a partisan group petitions the courts to impose a judicial result in a state in which one political party claims to be disadvantaged by the outcome of the political process, are not neutral but political in their outcomes, and trade-offs between and among the various tests that might be used require the exercise of political judgment.

2. In the early 1960s, the United States Supreme Court affirmed the principle that members of Congress must represent districts containing equal numbers of individuals (regardless of whether they vote or are even eligible to vote) as measured by the United States census. The application of this standard required only that the courts determine the respective populations of districts, a readily manageable task. The plaintiffs in this case, however, are asking the Court to do something much more difficult, namely protect the interests of one of many political or social groups, and have suggested that there may be an ideal degree of collective “effectiveness” of votes cast by a particular group. This is an entirely different matter.

The 1980s California congressional plans are not shown to be gerrymanders by the fact that the 1982 results were grossly disproportional to the votes of the electorate, nor by the fact that these plans each have only a very small number of seats where both parties have reasonable chances for the victory, nor by the fact that each plan is characterized by tortuously shaped districts, e.g., in San Diego and Northern California, which have no justification in terms of minority protection or in preserving city boundaries intact, although all three of these statements are true. It is well recognized that single member districts cannot be expected to yield proportionality between a party's vote percentage and the percentage of seats it wins (indeed, defense experts cite my own work on just this point); and it is also recognized that neither the absence of competition, nor the existence of ill-compact districts, make a gerrymander in and of themselves. Each of these factors, rather, is an indicator of possible gerrymandering efforts. When all three of these factors are found together with others (e.g., a plan passed in frantic haste by a partisan majority with no input from the minority party, a plan with clear discriminatory impact on the incumbents of the minority party) we have evidence for the conclusion that a plan that looks like a gerrymander, was intended to be a gerrymander, and has the effects of a gerrymander, is a gerrymander.

Subsequent to the filing of Badham v. Eu, the 1984 California elections provided classic examples that pervasive gerrymandering has become the newest form of voting dilution. On a statewide basis, Republican congressional candidates in California captured a clear majority of the two-party vote, yet won only 18 of the 45 seats (or 40 percent). Congressional district lines were drawn by incumbent Democrats in Congress and ratified by the heavily Democratic California legislature.

It is probably little exaggeration to term the California legislature a self-perpetuating oligarchy, accountable primarily to itself by the act of carefully fencing voters in and out of districts calculated to preserve the status quo, regardless of all but monumental shifts in voter sentiment or population mobility. In other states (e.g., Indiana) the legislative oligarchies are Republican.

Does this type of voter debasement call for another bold move—as in 1964—by the United States Supreme Court? To many, this understandably seems to be the thorniest part of the “political thicket” that the late Justice Frankfurter had cautioned his colleagues to avoid. But, having entered it in 1964 and after, can the judiciary now ignore this new dimension of malapportionment? It is tempting to leave the problem to the “give-and-take” of the political process. But the process itself is closer to one of monopoly than of free competition. A quarter century ago the problem of malapportionment (geographically defined) was virtually immune from political remedies for much the same reasons.

Professors Cain and Grofman were kind enough to suggest that I review the expert witness declarations in Badham v. Eu (D.C. California, 1984) in the light of my own previous research on expert witness testimony to identify frequently used modes of argumentation.

The single most important observation I can make about the nature of the expert witness testimony in Badham is to note its high quality. The experts in Badham are addressing real issues. The differences among these experts rest on differing normative views and on disputes about difficult empirical and methodological questions. Moreover, the genuine expertise of these social scientists cannot be in dispute. Thus, the most common techniques used in disputations among experts: (1) impeaching an expert witness' motives (e.g., accusing him of being a “hired gun” or an “ideological partisan”); (2) downgrading his academic credentials or claims to subject matter expertise; and (3) finding instances where his testimony has been repudiated by the courts, are simply inapplicable. This has not left the experts in Badham at a loss for words—but none of the disagreements among them are in the nature of ad hominem attacks.