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.