Amicus Curiae Brief — Davis v. Bandemer

FILED

(4 MAY 8 1985

No. 84.1244 ALEXANDER L. STEVAS,

| CLERK

Office Supreme Court, OS,

In the Supreme Court

OF THE

United States

Ocroser Term, 1984

Susan J. Davis, et al.,

Appellants,

vs.

Inwin C. Banpemen, et al.,

Appellees.

Appeal from the United States District Court

for the Southern District of Indiana

AMICUS CURIAE BRIEF OF THE SENATE OF

THE STATE OF CALIFORNIA IN

SUPPORT OF BRIEF OF APPELLANTS

*ALLAN Browne, Esa.

Bensamin D. Scuersz, Esa.

9401 Wilshire Boulevard,

9th Floor

Beverly Hills, CA 90212

(213) 273-6333

Counsel for the Senate of

the State of California

as Amicus Curiae

*Counsel of Record

Bowne of Los Angeles, Inc., Law Printers. (213) 742-6600.

2L

TABLE OF CONTENTS

——

I

STATEMENT OF INTEREST OF AMICUS CURIAE 2

II

SUMMARY OF CONTENTIONS.......... 2

Ii

THE DECISION OF THE DISTRICT COURT IS

CONTRARY TO ESTABLISHED LAW .. 3

IV

CLAIMS OF POLITICAL GERRYMANDERING

ADMIT OF NO JUDICIALLY DISCOVERABLE

AND MANAGEABLE STANDARDS FOR RE-

VIEW AND HENCE SHOULD CONTINUE TO BE

CONSIDERED NON-JUSTICIABLE........ 4

A. Precise Identification Of The Allegedly Dis-

favored Class Of Voters Is Impossible In A

Political Gerrymandering Case .....__.. 5

B. Nor Can Judicially Manageable Standards Be

Articulated To Assess Whether A “Political

Gerrymandering” Has Actually Taken Place 7

1. The Statistical Analysis Employed in Bande-

mer Does Not Provide A “Judicially Man-

ageable Standard” ........_........ Kisact

2. The Statistical Approach Employed By The

District Court Provides No Guidance For

Legislatures Engaged In The Task Of Re-

ee Ge. Caan a keke votes ac 13

3. The Shape And Size Of Districts And Re-

lated Factors, As Employed By The Bande-

mer Court, Do Not Provide Judicially Man-

ageable Standards For Ascertaining Intent. .

THE BANDEMER DECISION, IF NOT REVERSED,

WILL CREATE CHAOS IN VIRTUALLY EVERY

V

STATE IN THE UNION ........................

A. The 1960 California Reapportionment

B. The 1970 California Reapportionment _..

C. The 1980 California Reapportionment. ...__..

CONCLUSION

lé

15

lil

TABLE OF AUTHORITIES CITED

Cases

Page

Arizona v. California, 283 U.S. 423 (1931) .......... 27

Assembly v. Deukmejian, 30 Cal.3d 638 (1982) .. 24, 25, 27

‘ Avery v. Midland County, 300 U.S. 474 (1968) ._._.. 28

Badham v. District Court, 721 F.2d 1170 (1983) ... 26

Baker v. Carr, 369 U.S. 186 (1962) .... 4, 6, 7, 8, 12, 20, 22

Bandemer v. Davis, Cause Nos. IP 82-56-C and IP

82-164-C .... 1, 2, 3, 9, 10, 12, 13, 14, 15, 19, 20, 21, 27, 28

Burns v. Richardson, 384 U.S. 73 (1966) ........... 16

Burton v. Hobbie, 561 F.Supp. 1029 (M.D. Ala. 1983)

nn a 18

Calderon v. Los Angeles, 4 Cal.3d 251 (1971) ..._ ..- 28

Coleman v. Miller, 307 U.S. 433 (1939) ........... 4

Colegrove v. Green, 328 U.S. 549 (1946) ............ 7

Cosner v. Dalton, 522 F.Supp. 350 (E.D. Va. 1981) .. 16

Cousins v. Chicago City Council, 466 F.2d 830 (7th

Cir.), cert. denied, 409 U.S. 893 (1972) .......... 4, 16

Edelman v. Jordan, 415 U.S. 651 (1974) ............ 3

Escambia County v. McMillan, _... U.S. ___., 104

Nee ee eenconcs 28

Gaffney v. Cummings, 412 U.S. 735 (1973) .... 8 8 13, 16

Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C. (1984)

ce acc ccc ec cece 16

Gomez v. Perez, 409 U.S. 535 (1973) ................ 5

Graham v. Richardson, 403 U.S. 365 (1971) .......... 5

Gray v. Sanders, 372 U.S. 368 (1963) ............... 8

Griswold v. San Diego, 32 Cal.App.3d 56 (1973) ..... 28

Henderson v. Superior Court, 61 Cal.2d 883 (1964) .. 28

iv

Taste or Autuoritires Crrep (Cont’d.)

Page

Hester v. Southern Ry. Co., 497 F.2d 1374 (5th Cir.

BD. s c.cs ik cadarccke cout ents ia cewereneeanes 12

International Bhd. of Teamsters v. United States,

I ok os tins ck nine Seneaer a crib: 12

Jiminez v. Hidalgo County Water District No. 2, 424

i ig bce 3

Jordan v. Silver, 381 U.S. 415 (1965) ............. 22, 24

Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653 (1983)

aan CAME ean ees ae kes 16, 17

a v. Seene 740 F.2d 1398 (7th Cir. 1984)... 16

Legislature v. Deukmejian, 34 Cal.3d 658 (1983) ..... 26

Legislature v. Reinecke (Reinecke I), 6 Cal.3d 595

Ss as +6 cokaae Pos IE Sie od phe 23

Legislature v. Reinecke (Reinecke II), 7 Cal.3d 92

RRR Pa rape ne ASI AS: on RM cen eg) 24

Legislature v. Reinecke (Reinecke III), 9 Cal.3d 166

eS cen ALE ire ee ip eutan ng 53 tt 23, 24

Legislature v. Reinecke (Reinecke IV), 10 Cal.3d 396

EE. oo a pode a aR CAR eT Eee eet aaens 16, 17, 18, 24, 27

Mader v. Crowell, 498 F.Supp. 226 (M.D. Tenn. 1980) . 16

Mahan v. Howell, 410 U.S. 315 (1973) .............. 16

McBride v. Mahoney, 573 F.Supp. 913 (D. Mont. 1983)

ig es CETL a FEE ara hces 16, 18

Meek v. Pittenger, 421 U.S. 349 (1975) .............. 3

Miller v. Board of Supervisors, 63 Cal.2d 343 (1965) .. 28

Mobile v. Bolden, 446 U.S. 55 (1970) ......... .... 6, 7, 9

NAACP v. Gadsden County School Board, 589 F.Supp.

ee I ee iio s. nean eh deusnes 16

New Jersey Welfare Rights Org. v. Cahill, 483 F.2d

I ooo iio bean pecdewee sweats 12

~

Vv

\

Taste or AutHorities Citep (Cont’d.)

Page

Oyama v. California, 332 U.S. 633 (1948) 5

Parham v. Hughes, 441 U.S. 347 (1979) 5

Plyler v. Doe, 457 U.S. 202 (1982) ....-.—.—s.—........... 5

Republican National Committee v. Burton, 456 U.S.

RR Rie tae ap Seater et | 25

Reynolds v. Sims, 377 U.S. 533 (1964) _ _ 8, 12, 16, 17, 21, 22

Richardson v. Ramirez, 418 U.S. 24 (1974) 3

Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272 (1982) 9

Rome v. United States, 446 U.S. 156 (1980) 16

Russo v. Vacin, 528 F.2d 27 (7th Cir. 1976) | 3, 4

Silver v. Brown (Silver I) 63 Cal.2d 270 (1965) 22

Silver v. Brown (Silver II), 63 Cal.2d 316 (1965) 23

Silver v. Brown (Silver III), 63 Cal.2d 841 (1966) 23

Silver v. Jordan, 241 F.Supp. 576 (S.D. Cal. 1964) 22

Silver v. Reagan, 67 Cal.2d 452 (1967) . 23

Terrazas v. Clements, 581 F.Supp. 1329 (N.D. Tex.

RESIS I RET ARR CS el? 2A ee ae

United Jewish Orgs. v. Carey, 430 U.S. 144 (1976) | 9

United States v. Carolene Products, 304 U.S. 144 (1938)

Ah Sale Gs dha ke ae are a Oe ee Tak ec 3 6

United States v. O’Brien, 391 U.S. 367 (1968) _......__ 27

Visnich v. Board of Education, 37 Cal.App.3d 684

ERE Ear ben ee ee a ee ee ne ae 28

Wells v. Rockefeller, 311 F.Supp. 48 (S.D.N.Y.), aff’d

mem., 398 U.S. 901 (1970) ....................... 13

Whitcomb v. Chavis, 403 U.S. 124 (1971) ......... 17, 21

White v. Regester, 412 U.S. 755 (1973) ......... 9, 17, 21

White v. Weiser, 412 U.S. 783 (1973) ............ 16

Wright v. Rockefeller, 376 U.S. 52 (1964)... 9

vi

Taste or Avutuorities Crrep (Cont’d.)

Page

Wyche v. Madison Parish Police Jury, 653 F.2d 1151

RR ETS ere eee ee ere ee 16

YMCA v. Lomenzo, 382 U.S. 4 (1965) 3

Yorty v. Anderson, 60 Cal.2d 312 (1964) . Tn taeeee ei

Constitutions

California Constitution, Art. II, Sees. 9 and 10 24

California Constitution, Art. IV, Sec. 6 20

California Constitution, Art. XXI 17

United States Constitution, Fourteenth je 8, 28

United States Constitution, Fifteenth Amendment 28

Rule

Rules of the Supreme Court of the United States, Rule

3... arian ££ : ‘—.

Textbook

Backstrom, Robins & Eller, Issues in Gerrymandering:

An Exploratory Measure of Partisan Gerrymander-

ing Applied to Minnesota, 62 Minn. L. Rev. 1121,

EE en er re ans ae

No. 84-1244

In the Supreme Court

OF THE

United States

Octoser Term, 1984

Susan J. Davis, et al.,

Appellants,

vs.

Irwin C. Banpemer, et al.,

Appellees.

Appeal from the United States District Court

for the Southern District of Indians

AMICUS CURIAE BRIEF OF THE SENA''E OF

THE STATE OF CALIFORNIA IN

SUPPORT OF BRIEF OF APPELLANTS

In accordance with Rule 36.2 of the Rules of the Supreme

Court of the United States, the Senate of the State of Cal-

ifornia (hereinafter the “California Senate”) submits this

brief, as amicus curiae, in support of appellants’ appeal

from the decision of the United States District Court for

the Southern District of Indiana in Bandemer v. Davis,

Cause Nos. IP 82-56-C and IP 82-164-C.'

1By letters submitted herewith, all parties to the case have con-

sented to the filing of this amicus curiae brief by the California

Senate.

2

I

STATEMENT OF INTEREST OF AMICUS CURIAE.

Amicus is the duly elected and constituted Senate of the

State of California and, along with the Assembly of the

State of California, has the primary responsibility for

reapportioning California’s forty-five (45) Congressional

districts, eighty (80) Assembly districts, and forty (40)

Senate districts. The California Senate files this amicus

briet because the de@ision of the district court in Bande-

mer v. Davis, if allowed to stand, will have a substantial

impact far beyond the borders of Indiana and will likely

trigger protracted litigation in virtually every state in

the Union. California, in particular, has already suffered

through nearly four and one-half years of bitter litigation

stemming from its most recent reapportionment, and faces

the almost certain probability of further litigation in the

wake of the Bandemer decision — litigation which could

very well extend through the end of the decade.

I

SUMMARY OF CONTENTIONS.

The California Senate urges this Court to reverse the

decision of the district court below, on the following

grounds:

A. The decision of the district court runs directly

contrary to established law on the issue of the justici-

ability of claims of political or partisan gerrymander-

ing, as articulated by numerous decisions of this Court

and of various circuit courts of appeals.

B. The decision of the district court fails to articu-

late judicially manageable standards for reviewing

claims of political gerrymandering, and indeed, a

review of the specific factors focused upon by the dis-

trict court (statistical analyses and the configuration

3

of electoral districts) clearly demonstrates that

judicially manageable standards for the review of such

claims are incapable of judicial articulation. As a re-

sult, claims of political gerrymandering should continue

to be considered nonjusticiable.

C. The decision of the district court, if allowed to

stand, will have a substantial and continued impact

throughout the country and will no doubt result in

numerous state and federal courts being dragged un-

necessarily into the “political thicket” of vast and in-

conclusive reapportionment litigation, while state

legislators will be transformed into professional liti-

gants unable to devote significant time to their legisla-

tive duties.

Ii

THE DECISION OF THE DISTRICT COURT IS CON.

TRARY TO ESTABLISHED LAW.

The district court’s decision in Bandemer is in clear con-

flict with previous decisions of this Court, the Seventh

Circuit Court of Appeals, and courts of appeals from

various other circuits. This conflict has been thoroughly

briefed by appellants and by various other amici, and it is

sufficient simply to note that, insofar as the decision pur-

ports to recognize the justiciability of a claim for political

gerrymandering, that decision is contrary to established

law as articulated by cases including Jiminez v. Hidalgo

County Water District No. 2, 424 U.S. 950 (1976) ;? Gaffney

v. Cummings, 412 U.S. 735, 752-53 (1973); YMCA v.

Lomenzo, 382 U.S. 4 (1965); Russo v. Vacin, 528 F.2d 27

*Although issued as an affirmance without further opinion, the

Jiminez decision is a decision on the merits and thus has preceden-

tial value. (E.g., Meek v. Pittenger, 421 U.S. 349, 367 n.16 (1975);

Edelman v. Jordan, 415 U.S. 651, 671 (1974); Richardson v. Ramirez,

418 U.S. 24, 53 (1974).)

4

(7th Cir. 1976); and Cousins v. Chicago City Council, 466

F.2d 830 (7th Cir.), cert. denied, 409 U.S. 893 (1972).°

IV

CLAIMS OF POLITICAL GERRYMANDERING ADMIT

OF NO JUDICIALLY DISCOVERABLE AND MAN-

AGEABLE STANDARDS FOR REVIEW AND HENCE

SHOULD CONTINUE TO BE CONSIDERED NON-

JUSTICIABLE.

It has long been recognized that claims of constitutional

violations are to be considered nonjusticiable “political

questions” where there is “a lack of judicially discoverable

and manageable standards for resolving [such claims]”.

(Baker v. Carr, 369 U.S. 186, 217 (1962) ; see also Coleman

v. Miller, 307 U.S. 433, 454-55 (1939) (justiciability depends

on existence of “satisfactory criteria for judicial determina-

tion”’).)

As the Baker decision teaches, the question of justicia-

bility depends in large measure upon “whether the duty

asserted can be judicially identified and its breach judicially

determined, and whether protection for the right asserted

can be judicially molded”. (Baker, 369 U.S. at 198.) It is

submitted that such tasks, while often difficult, take on near

herculean proportions when a court is confronted with

claims of political or partisan gerrymandering.

3Inasmuch as these cases have been thoroughly briefed, the Cal-

ifornia Senate will not devote considerable space to reviewing the

previous decisions but will instead confine itself to arguing that

there are compelling practical reasons for continuing to treat

claims of political gerrymandering as nonjusticiable. Chief among

these reasons, as articulated hereinbelow, is the fact that claims

of political gerrymandering admit of no judicially discoverable and

manageable standards by which they may be properly evaluated.

enemas.

ee

5

A. Precise Identification Of The Allegedly Disfavored

Class Of Voters Is Impossible In A Political Gerry-

mandering Case.

A threshold inquiry in any equal protection analysis is

the identification of a specific class of individuals which has

been singled out for discriminatory or unequal treatment.

In this regard, the decision of the court below treats the

political preference of voters in a single election as a status

equivalent to membership in a racial or ethnic minority, and

thus finds such “political groups” to be entitled to the same

protections long accorded racial or ethnic minorities.

Simply stated, however, there are fundamental dissimi-

larities between membership in an identifiable racial or

ethnic group, on the one hand, and an individual’s one-time

voting preference, on the other hand. These important

distinctions preclude treating claims of political gerry-

mandering in the same manner as claims of racial or ethnic

gerrymandering.

The lower court identified, as the class supposedly placed

in a disfavored position under the apportionment plans

adopted by the Indiana Legislature, those persons who cast

votes for Democratic Party candidates in the 1982 Indiana

House and Senate elections. Unlike members of racial or

ethnic minorities, however, members of such a “political

group” do not share any “immutable” characteristic which

is capable of subjecting members of the group to legal or

social stigma. (Compare Plyler v. Doe, 457 U.S. 202 (1982)

(status as undocumented alien not an immutable character-

istic) ; Parham v. Hughes, 441 U.S. 347 (1979) ) ; with Gomez

v. Perez, 409 U.S. 535 (1973); Graham v. Richardson, 403

U.S. 365 (1971) ; Oyama v. California, 332 U.S. 633 (1948)

(holding, respectively, that illegitimacy, alienage, and na-

tional origin do constitute such immutable characteristics). )

Similarly, members of such political groups, unlike mem-

bers of racial or ethnic minorities, cannot point to any

6

history of purposeful discrimination impeding their ability

to participate in the political process. (See United States v.

Carolene Products, 304 U.S. 144 (1938).) Thus, these tradi-

tional bases for special protection are not implicated by a

claim of partisan gerrymandering.

Nor do persons who cast votes for Democratic candidates

in the 1982 Indiana House and Senate elections constitute

members of a “discrete and insular minorit[y]” entitled to,

or in need of, special protection. (Carolene Products, 304

U.S. at 153 n.4.) Rather, precisely the opposite is true —

membership in a particular political party or political group

is highly transitory. Individuals may, and often do, change

party affiliation and, even if they do not, party affiliation

does not guarantee that they will vote for candidates fielded

by their party. Rather, Americans are notorious for cross-

ing party lines in order to cast their ballots for candidates

who, although affiliated with other parties, are considered

to be more attractive or more qualified than their opponents.

As a result, a federal court attempting to evaluate a

partisan gerrymandering claim cannot, with any degree of

precision, even attempt to identify the supposedly dtsad-

vantaged class, either by reference to political registration

or to the percentage of ballots cast for candidates fielded

by that party. For this reason, it simply cannot be argued

that “the duty asserted [by parties alleging partisan dis-

crimination] can be judicially identified” and, for this

reason, claims of political gerrymandering should continue

to be recognized as nonjusticiable. (Baker, 369 U.S. at

198. )*

‘Other difficulties in identifying the relevant “political groups”

entitled to special protection were pointed out by this Court

in Mobile v. Bolden, 446 U.S. 55 (1970). There, the Court noted

that the notion of a constitutional right to proportional represen-

tation for political groups at the municipal level raised “preliminary

questions [which] may be largely unanswerable”, including such

questions as:

7

B. Nor Can Judicially Manageable Standards Be Articu-

lated To Assess Whether A “Political Gerrymander-

ing” Has Actually Taken Place.

As noted, claims of political gerrymandering present a

preliminary problem of justiciability for the simple reason

that members of the supposedly disfavored class cannot be

identified with any degree of certainty. Assuming, however,

that an identifiable political group entitled to constitutional

protection could be clearly defined, a second justiciability

problem is presented by the fact that the conduct of a state

legislature which is claimed to unlawfully disfavor this

group cannot be measured against the required “judicially

discoverable and manageable standards”. (Baker, 369 U.S.

at 217.)

Claims of “political gerrymandering” arising from the

apportionment of a state’s electoral districts have long been

considered nonjusticiable primarily © >cause the apportion-

ment process has been correctly perceived as a “political

thicket” into which courts should not lightly step. (Cole-

grove v. Green, 328 U.S. 549, 556 (1946).) As a result,

Can only members of a minority of the voting population in

a particular municipality be members of a “political group”?

How large must a “group” be to be a “political group”? Can

any “group” call itself a “political group”? If not, who is to

say which “groups” are “political groups”? Can a qualified

voter belong to more than one “political group”? Can there be

more than one “political group” among white voters (e.g.,

Irish-American, Italian-American, Polish-American, Jews, Cath-

olics, Protestants)? Can there be more than one “political

group” among nonwhite voters? Do the answers to any of these

questions depend upon the particular demographic composi-

tion of a given city? Upon the total size of its voting population?

Upon the size of its governing body? Upon its form of govern-

ment? Upon its history? Its geographic location?

(446 U.S. at 78 n.26.) These questions become even more difficult

to address when courts are asked to identify “political groups”

among state-wide pools of voters.

8

reapportionment has long been considered a task best left

to the legislatures of the various states and best left alone,

wherever possible, by the federal judiciary. (E.g., Reynolds

v. Sims, 377 U.S. 533, 586 (1964) ; Gaffney, 412 U.S. at 749-

51 (courts should not seek to improve upon constitutionally

sufficient apportionment plans).)

While this Court in Baker and its progeny did choose to

enter the “political thicket”, and ultimately concluded that

claims of significant population disparities among legisla-

tive or congressional districts did present a justiciable con-

troversy under the Fourteenth Amendment, it did not do so

until it was able to articulate perhaps the paradigm example

of a “judicially discoverable and manageable standard[]”

— the requirement of “one person, one vote”. Application

of this requirement, first enunciated in Gray v. Sanders,

372 U.S. 368, 381 (1963), and made applicable to the appor-

tionment of state legislative bodies by Reynolds, 377 U.S. at

568, and related cases, is elegant in its utter simplicity.

All that a court considering claims of unconstitutional

population disparities need do is to ascertain and compare

the population figures for the various electoral districts and

ensure that each elector has been given the opportunity to

cast a vote equal in strength to that cast by his or her fellow

electors. Simple arithmetic is all that is needed. The ease

with which this particular constitutional standard may be

applied thus provides a well marked and easily travelled

pathway through the otherwise impassable “political

thicket’, and allows a federal court to act with confidence in

its ability to identify and rectify situations in which the

dictates of the equal protection clause have been ignored.°

‘Indeed, Justice Stevens has emphasized that the prime signifi-

cance of the “one person, one vote” standard, as developed in the

years since Baker, stems in large part from the fact that this par-

ticular constitutional guideline “attache[s] no significance to the

9

By contrast, claims of political gerrymandering cannot

be evaluated by reference to similarly discoverable or man-

ageable judicial standards. In fact, the decision of the

Bandemer court itself demonstrates the lack of sufficient

standards with which to ascertain whether a political gerry-

mander has indeed taken place. Neither the statistical

analysis employed by the district court nor its focus upon

the size and shape of specific districts can provide standards

sufficiently specific to allow future courts to identify and

rectify specific acts of claimed political gerrymandering.

1. The Statistical Analysis Employed in Bandemer Does

Not Provide A “Judicially Manageable Standard”.

Despite purportedly disavowing any notion that propor-

tional representation for political parties is required under

the Constitution (a conclusion too well established to be

questioned at this point), the Bandemer court neverthe-

less used its “finding” of a lack of proportional representa-

tion for Indiana Democrats as the springboard to its

eventual conclusion that an unconstitutional political

gerrymander had occurred.* Thus, in branding the reap-

portionment of the Indiana House and Senate a “political

gerrymander”, the district court placed primary emphasis

upon statistics showing that, although Democratic candi-

dates received 51.9% of all votes cast in the Indiana House

subjective intent of the decisionmakers who adopted or maintained

the official rule under attack”. (Rogers v. Lodge, 458 U.S. 613, 102

S.Ct. 3272, 3285 (1982) (Stevens, J., dissenting). )

*It cannot be too strongly emphasized that no minority group,

whether it be racial, ethnic, or political, is constitutionally entitled

to proportional representation in any state legislature. (E.g., Mobile

v. Bolden, 446 U.S. at 78-79; United Jewish Orgs. v. Carey, 430

U.S. 144, 166-67 (1976); White v. Regester, 412 U.S. 755, 765-66

(1973); Wright v. Rockefeller, 376 U.S. 52 (1964).)

10

elections, Democrats were elected to only 43 of the 100 seats

im that body."

The majority found that this statistical discrepancy

created, at the very least, a prima facie case of discrimina-

tion, requiring substantial scrutiny of the specific details of

the challenged plans and placing the burden of justifying

each particular district configuration on the state. How-

ever, it is submitted that such blind reliance upon poten-

tially misleading statistical analyses cannot provide the

“judicially discoverable and manageable standards” neces-

sary to evaluate claims of political gerrymandering.

Indeed, Judge Pell, in dissent, suggested an alternative

statistical approach focusing, not on the often hotly con-

tested Senate and House races reviewed by the majority, but

instead on low visibility races in which, according to

researchers, candidate personalities are often less wmpor-

tant than straight party affiliation in determining the out-

come.® Utilizing this approach, which Judge Pell suggests

provides a more accurate measure of the partisan voting

TAlthough the very same statistical analysis, when applied to the

Indiana Senate elections, showed that Democratic candidates for

the Senate received approximately 53.1% of the vote, and had

elected 13 of the 25 State Senators (i.e., 52% of the State Senate),

the Bandemer court found, for some inexplicable reason, that the

Senate reapportionment also constituted an unconstitutional politi-

cal gerrymander.

®Thus, Judge Pell reviewed past races for State Auditor, Clerk

of the Supreme Court and Court of Appeals, and the Reporter of

the Supreme Court and Court of Appeals, all low-profile races in

whi h the determining factor in voter selection is more likely to be

party affiliation than candidate personality. Such an approach is

considered by researchers who have studied the issue to provide

a more reliable method for ascertaining party voting strength. (See

Backstrom, Robins & Eller, Issues in Gerrymandering: An Explora-

tory Measure of Partisan Gerrymandering Applied to Minnesota,

62 Minn. L. Rev. 1121, 1131 (1978).)

11

strength of the majority and minority parties, Democratic

voting strength in Indiana was estimated to be 46.8 percent,

rather than the 51.9 percent figure identified by the major-

ity.

Applying this figure to the results of the 1982 Indiana

House and Senate elections, Judge Pell then found that the

Democrats did win slightly fewer House seats than might

have been expected by reference to their base voting

strength, but nevertheless won more seats in the Senate

than would have been expected — winning, indeed, a major-

ity of those seats. Judge Pell concluded, on this basis, that

the disproportionate results in the Indiana House could not

be considered to have resulted from purposeful discrimina-

tion or political gerrymandering by the Republican major-

ity.

While the statistical analysis employed by Judge Pell may

or may not be considered to enjoy greater empirical validity

than the analysis employed by the majority, this is not the

critical point; rather, what is important is the fact that

different analytical approaches, based upon competing

statistical analyses designed to measure the same basic

characteristic — partisan voting strength —led to wholly

contradictory conclusions.’ This conflict merely exempli-

*Indeed, the same researchers who suggested the alternative

analysis employed by Judge Pell have noted that such statistical

analyses suffer from severe flaws in general:

[This statistical] approach fails to account for the fact that the

difference between percentage of vote and number of seats

captured may in fact be the result of natural advantages — the

inordinate concentration of partisans in one place — rather than

any deliberate partisan districting scheme. For example, it is

well known that Michigan Democrats are heavily concentrated

in Detroit but are in a minority in many other parts of the state.

(Backstrom, Robins & Eller, 62 Minn. L. Rev. at 1127.) The authors

go on to point out that, although Detroit Democratic candidates

will generally win their elections, the excess votes cast in these

12

fies a fact which is well known among researchers — statis-

tical analyses may be manipulated to reach a variety of

different conclusions, some of which are completely contra-

dictory.’° More importantly, however, the contradictory fac-

tual conclusions reached by the majority and the dissent in

Bandemer clearly point up the complete lack of “judicially

discoverable and manageable standards” with which claims

of partisan gerrymandering may be evaluated and decided.

Future courts faced with the task of identifying and rec-

tifying alleged political gerrymanders will not be able to

test such claims by reference to a simple constitutional

yardstick such as the “one person, one vote” standard used

in Baker and Reynolds, but will instead be inundated with

conflicting statistical analyses, yielding contradictory re-

sults, even with regard to the preliminary question of

whether there has been a disproportionate impact upon the

minority party. As in Bandemer, the minority party will

invariably be able to present statistics indicating a lack of

proportional representation, while the majority party will

invariably be able to present similar statistical analyses

suggesting a contrary conclusion.

areas will be “wasted” and it will appear, in a blind statistical

analysis of Michigan elections, that Democratic voters have been

discriminated against in the construction of electoral districts.

1°Federal courts too are well aware of the potentially misleading

nature of statistical analyses, especially when used as evidence of

purposeful discrimination. As stated in Hester v. Southern Ry. Co.,

497 F.2d 1374, 1381 (5th Cir. 1974), an action brought under Title

VII of the Civil Rights Act of 1964:

We recognize that statistics are a powerful tool in the hands

of a Title VII plaintiff, but we are also aware that undue

emphasis on their use may obscure rather than advance the

judicial process. (Emphasis supplied, footnote omitted. )

(See also International Bhd. of Teamsters v. United States, 431 U.S.

324, 340 (1977); New Jersey Welfare Rights Org. v. Cahill, 483

F.2d 723, 727 (3d Cir. 1973).)

. a a

ee er’

13

Given that the statistical analyses employed by the

Bandemer court do not provide manageable standards for

review, litigation involving such claims is likely to degener-

ate into protracted and inconclusive factual disputes, and

different results may obtain in different jurisdictions de-

spite similar sets of facts. Courts attempting to evaluate

claims of partisan discrimination under this approach will

thus be left to flounder in the “political thicket” and become

“bogged down in a vast apportionment slough”. (Gaffney,

412 U.S. at 750.)

2. The Statistical Approach Employed By The District

Court Provides No Guidance For Legislatures En-

gaged In The Task Of Reapportionment.

A second problem arising from the lower court’s focus

upon the 1982 election results is the fact that this approach

cannot possibly provide any guidance to a state legislature

engaged in reapportionment. A fortiorari, future election

results will not be available until after the task of reappor-

tionment has been completed. State legislators will thus

be left to rely only upon party registration statistics, as

available at the time of reapportionment.

However, such statistics have proven to be notoriously

poor predictors of election results for various reasons,

including candidate personalities, shifting political tides,

variable voter turnout, current issues of particular primacy,

cross-over voting, and the “coattail” effect which often

accompanies the election of a popular presidential or guber-

natorial candidate. Past election results likewise constitute

a poor predictor of future elections for similar reasons.”

‘As stated in Wells v. Rockefeller, 311 F.Supp. 48, 51-52 (S.D.

N.Y.), affd mem., 398 U.S. 901 (1970):

Recent election figures ... are only indicative of the voters’

reaction to a particular candidate. ... Plaintiffs approach of a

fixed Republican-Democrat society ignores the all-important

factors, amongst others, of the candidate’s personality, the

14

As a result, it is possible that a legislature might promul-

gate a reapportionment plan designed to insure propor-

tional representation for all political parties, based upon

voter registration statistics, but that the election results

nevertheless show a definite skewing in favor of the ma-

jority party. Under the approach adopted by the district

court, such a result, though wholly unintended, would es-

tablish at least a prima facie case of partisan gerrymander-

ing and would shift the burden of justifying every single

aspect of the challenged plan to the state. Given the multi-

tude of factors which may be taken into consideration by a

legislature reapportioning a state’s electoral districts (as

discussed in greater detail infra), this approach would

place an incredible burden on the state — a burden it might

not be able to carry even though no intent to discriminate

ever existed.”

Because the statistical approach utilized by the district

court focuses upon post-apportionment ciection results, it

cannot provide guidance to state legislatures engaged in

the already complex task of reapportionment and, perhaps

more importantly, will not allow a court to differentiate

between a purposeful gerrymander and situations in which

disproportionate election results are the wholly unintended

public’s conception of his ability and integrity and the current

issues which he may espouse, or offer to espouse, on behalf of

his constituents.

12Similarly, the results of an initial election may be found to be in

statistical accord with partisan voting strength, as measured by the

district court in Bandemer, but subsequent elections may exhibit

some skewing of the results in favor of the majority party. Would

such an event be viewed as indicative of a partisan gerrymander, or

should such disproportionate results in a second tier election more

appropriately be attributed to shifting political alignments, candi-

date personalities, or the vagaries of individual elections? The

statistical approach employed by the district court simply cannot

provide an answer to this question.

as a eta te _

co tinct At

15

result of decisions made to foster legitimate state goals or

to address legitimate state concerns. Reliance upon statis-

tical analyses thus does not, and cannot, provide a judicially

manageable standard for identifying alleged political gerry-

manders, and such an approach should therefore be re-

jected.

3. The Shape And Size Of Districts And Related Factors,

As Employed By The Bandemer Court, Do Not Pro-

vide Judicially Manageable Standards For Ascertain-

ing Intent.

After determining, by its statistical analysis, that the

minority party had been unable to achieve proportional rep-

resentation in the Indiana Legislature, the Bandemer

court then reviewed the shapes of the districts involved,

placing special emphasis upon a perceived lack of compact-

ness and contiguity, and concluded that there had been

intentional discrimination against voters who wished to

cast their ballots for candidates fielded by the Democratic

Party. However, as with its reliance upon statistical analy-

ses, these amorphous concepts related to district configura-

tions simply cannot be utilized to frame standards suffi-

ciently precise to differentiate between purposeful gerry-

manders and apportionment plans which, though not delib-

erately discriminatory, nevertheless may have some

disproportionate impact on the minority party."

Initially, it must be noted that this Court has already

refused to hold that compactness should constitute an

#8As previously noted (see footnote 6, supra), no group, whether

it be racial, ethnic, or political, is entitled to proportional representa-

tion. Rather, even if claims of political gerrymandering are to be

recognized as justiciable, a clear discriminatory intent to dilute the

voting strength of the minority political party must be demonstrated

before relief can issue from the court. As argued in the text, this

inquiry into motive also admits of no judicially discoverable or

manageable standards.

16

independent constitutional requirement. (Gaffney, 412 U.S.

at 752 n.18.) Perhaps more importantly, however, state and

federal courts alike have long recognized that reapportion-

ment is an essentially legislative function best left to the

wisdom of a state’s elected officials and that state legisla-

tures are to be given wide latitude in identifying and giving

effect to various concerns in this process. (Reynolds, 377

U.S. at 586.)

For example, in addition to the required focus on equality

of population among districts, factors as diverse as the

compactness and contiguity of districts,* respect for polli-

tical, economic, and geographic communities of interest,”

the avoidance of contests between incumbents,’* the en-

hancement of minority participation in the electoral pro-

cess,'” respect for city and county boundaries,”* as well as

14Reynolds v. Sims, 377 U.S. 533, 578-79 (1964); Mader v. Crowell,

498 F.Supp. 226 (M.D. Tenn. 1980); Legislature v. Reinecke

(“Reinecke IV”), 10 Cal.3d 396, 411 (1973); see also Wyche v. Mad-

ison Parish Police Jury, 653 F.2d 1151 (5th Cir. 1981); Cousins v.

Chicago City Counsel, 466 F.2d 830 (7th Cir.), cert. denied, 409 U.S.

893 (1972) (indicating that court-ordered apportionment plans

should attempt to create compact and contiguous districts ).

1SNAACP v. Gadsden County School Board, 589 F.Supp. 953

(N.D. Fla. 1984); Terrazas v. Clements, 581 F.Supp. 1329 (N.D.

Tex. 1984) (cautioning against fragmentation of minority communi-

ties of interest); McBride v. Mahoney, 573 F.Supp. 913, 915 (D.

Mont. 1983); Reinecke IV, 10 Cal.3d at 412.

White v. Weiser, 412 U.S. 783, 791 (1973); Burns v. Richardson,

384 U.S. 73, 89 n.16 (1966); Gingles v. Edmisten, 590 F.Supp. 345,

382 (E.D.N.C. 1984); Cosner v. Dalton, 522 F.Supp. 350, 360 (E.D.

Va. 1981).

1™See Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 2664

(1983); Rome v. United States, 446 U.S. 156, 185 (1980); Ketchum

v. Byrne, 740 F.2d 1398, 1407 (7th Cir. 1984).

18Mahan v. Howell, 410 U.S. 315 (1973); Reynolds, 377 U.S. at

580-81; McBride v. Mahoney, 573 F.Supp. at 915; Cosner v. Dalton,

522 F.Supp. at 360-61; Reinecke IV, 10 Cal.3d at 412.

1 lit ON I a lt

et I 2 AN =

17

basic geographic regions,” the availability and ease of

transportation within districts,” and the flexibility afforded

by the use of multi-member districts,”" to name but a few,

have been recognized as proper considerations which may

legitimately be taken into account in the reapportionment

of a state’s electoral districts. Indeed, many state legisla-

tures are required, by state law, to utilize one or more of

these factors as guidelines in fashioning new apportionment

plans.”

Moreover, it has also been recognized that, because

changes in the boundaries of one district require conco-

mitant changes in adjacent districts in order to equalize the

1®Reinecke IV, 10 Cal.3d at 412.

*°Karcher, 462 U.S. 725, 103 S.Ct. at 2674 n.20 (Stevens, J.,

concurring ); Whitcomb v. Chavis, 403 U.S. 124 (1971); Reinecke IV,

10 Cal.3d at 411.

*1 Reynolds, 377 U.S. at 579; White v. Regester, 412 U.S. 755, 765

(1973), and cases cited therein.

**For example, Article XXI of the California Constitution provides

that:

In the year following the year in which the national census is

taken under the direction of Congress at the beginning of each

decade, the Legislature shall adjust the boundary lines of the

Senatorial, Assembly, Congressional, and Board of Equalization

districts in conformance with the following standards:

* (a) Each member of the Senate, Asseinbly, Congress, and

the Board of Equalization shall be elected from a single-

member district.

(b) The population of all districts of a particular type shall

be reasonably equal.

(c) Every district shall be contiguous.

(d) Districts of each type shall be numbered consecutively

commencing at the northern boundary of the state and ending

at the southern boundary.

(e) The geographical integrity of any city, county, or city

and county, or of any geographical region shall be respected

to the extent possible without violating the requirements of

any other subdivision of this section.

18

populations of these districts, the use of one criteria in

constructing any particular district may have far ranging

effects on the configuration of other districts. As stated by

the California Supreme Court in Legislature v. Reineke, 10

Cal.3d 396, 418 n.18 (1973): “Any person with even a pass-

ing acquaintance with reapportionment becomes aware of

what is known as the ‘ripple effect’, whereby the casting of

one district on the water produces ripples felt throughout

the state.” (See also McBride v. Mahoney, 573 F.Supp. 913,

916 (D. Mont. 1983); Burton v. Hobbie, 561 F.Sunp. 1029

(M.D. Ala. 1983).)

By virtue of this “ripple effect”, the construction of one

particular district to effectuate one particular legislative

concern (for example, the adjustment of district boundaries

to coincide with the unique topography of the area or the

boundaries of a political subdivision) will necessarily alter

the shapes of districts many miles removed, causing, per-

haps, significant deviation from the theoretical ideals of

compactness and contiguity. In a state as large and geo-

graphically and demographically diverse as California

(which ranges from sparsely populated desert and moun-

tain regions, through rural farming communities, to indus-

trial centers and the densely populated coastal cities), the

“ripple effect” will have a significant impact on district

configurations far removed from the originally constructed

district.**

Despite the fact that each of the considerations listed

above, and others, have been judicially recognized to con-

stitute appropriate factors to be taken into consideration

in the reapportionment process, the approach employed by

*8Again as explained by the California Supreme Court, the ripple

effect, “[i]f uncontrolled, ... may result in the initial choice of a

perfect district in one place leading to intolerably imperfect districts

elsewhere”. (Reinecke IV, 10 Cal.3d at 418 n.18.)

we ree ea

te eet

19

the district court in Bandemer would lead to an intolerable

situation in which a state legislature, whenever it chose to

favor one such consideration over another, would invite a

legal challenge to the reapportionment plan involved. For

example, were a state legislature to conclude that city and

county boundaries or considerations of contiguity and com-

pactness should be disregarded where necessary to leave

intact certain geographic or political communities of in-

terest or to enhance minority participation, and the result-

ing district .ufiguretions arguably created some dilution

of the voting strength of a particular political party, that

party could then assert a Bandemer type claim of political

gerrymandering which would be difficult to combat.

Likewise, if the California Legislature decides that por-

tions of Los Angeles and Orange Counties should be lumped -

together into one district because the combined area con-

stitutes part of a larger metropolitan area, but this choice

results in those two counties and some of the cities contained

therein being split more times than strictly necessary by

virtue of their populations, as well as a deviation from

compactness and contiguity in other districts far removed

through operation of the “ripple effect”, claims of political

gerrymandering might again follow. The possibilities for

litigation are simply endless.

Indeed, given that state legislatures often emphasize one

particular consideration, such as compactness and conti-

guity of districts, in one area of a staie (for example, urban

areas with high population density), while being more con-

cerned with other factors such as basic communities of

interest in other areas of the state (e.g., in rural areas where

the interests of the residents are more closely tied to the

geographical features of the land), with yet a third con-

sideration, such as the prevention of a race between two

popular incumbents living in close proximity, influencing

the drawing of district lines in a third region, reapportion-

20

ment plans invariably resemble patchwork quilts or jigsaw

puzzles.

While consideration of each of these factors has been

recognized to be proper, their consideration in this parti-

cular manner could lead to charges of “irrational map-

making”. (Jurisdictional Statement, at A-29.) Those

dissatisfied with the plans enacted would of course cleim

that no cohesive rationale underlies the entire plan and that,

in reality, such purported considerations simply mask a

discriminatory intent. Again, under the approach adopted

by the district court, such claims could prove extremely

difficult to refute.

Simply stated, given the multitude of factors which may

(but need not be) taken into account in fashioning new

reapportionment schemes, a federal court would be faced

with a wholly unmanageable task in attempting to deter-

mine whether the minimization of county or city splits in

one particular area, or a special emphasis on compactness

and contiguity or the protection of incumbents in another,

evidenced legitimate state concerns or an intent instead to

discriminate agawmst the minority political party or parties.

Thus, the considerations noted by the Bandemer court

simply do not provide any guidance for a court about to

enter the “political thicket” in search of partisan or poli-

tical gerrymanders. Neither statistical analyses, used to

measure disproportionate impact, nor the consideration of

the shape of various districts, supposedly indicative of dis-

criminatory motive, provide the type of “judicially dis-

coverable and manageable standards” necessary to render

such claims justiciable. (Baker, 369 U.S. at 217.)** For this

**The district court also focused upon what it termed the “incon-

sistent and unexplained use of multi-member districts”. (Jurisdic-

tional Statement, at A-30.) Inasmuch as Article IV, § 6, of the Cal-

ifornia Constitution forbids the use of multi-member districts, the

21

reason, and because of the tremendous avalanche of frivo-

lous and inconclusive litigation which is likely to follow,

the decision of the court below must be reversed.

Vv

THE BANDEMER DECISION, IF NOT REVERSED,

WILL CREATE CHAOS IN VIRTUALLY EVERY

STATE IN THE UNION.

As noted hereinabove, the lack of any judicially discover-

able or manageable standards for evaluating claims of

political gerrymandering will create a situation in which the

minority party in any state, if dissatisfied with the reap-

portionment process, may easily bring (simply by alleging

disproportionate impact and the preference of one parti-

cular consideration over another) superficially plausible

challenges to the reapportionment plan enacted by that

state’s legislature. As a result, federal courts will be in-

undated with challenges to various state and local appor-

tionment schemes and, given the fact that courts will have

no clear guidance in evaluating such claims, it will be diffi-

cult to quickly dispose of frivolous or insubstantial actions.

The legacy of Bandemer will then be a clogging of the

federal court system and the creation of a climate in which

the members of state legislatures will be forced to spend

more time litigating than legislating. Reapportionment has

already proved to be a tremendously litigious subject, even

California Senate will not address the issue of whether the “use of

multi-member districts” in a state redistricting scheme can provide

a judicially manageable indice of partisan gerrymandering. While a

judicial focus on this objective factor may be somewhat more reli-

able than a focus on amorphous concepts related to district con-

figurations or statistical analyses mn to varying interpretations,

the California Senate must note thar the use of multi-member dis-

tricts has been sanctioned by previous decisions of this Court. (See,

e.g., Reynolds, 377 U.S. at 579; White v. Regester, 412 U.S. at 765;

Whitcomb v. Chavis, 403 U.S. 124 (1971).)

22

without recognition of political gerrymandering as a justici-

able constitutional claim.** California, for example, has

suffered through three decades of ever-increasing reappor-

tionment litigation, with the result being that the reappor-

tionment which followed 'the 1980 decennial census spawned

no fewer than eight separate actions, some of which are still

pending nearly five years later. The following will briefly

summarize this history.

A. The 1960 California Reapportionment.

Following issuance of this Court’s landmark decision in

Baker v. Carr, actions were filed challenging the validity of

California’s reapportionment schemes in both state and

federal courts. (See Yorty v. Anderson, 60 Cal.2d 312

(1964) ; Silver v. Jordan, 241 F.Supp. 576 (S.D. Cal. 1964).)

And, after announcement of this Court’s equally significant

Reynolds v. Sims decision, the United States District Court

for the Southern District of California found the appor-

tionment of the State Senate to be constitutionally invalid.

(241 F.Supp. at 582.) This conclusion was affirmed by this

Court in Jordan v. Silver, 381 U.S. 415 (1965).

The California Supreme Court, in Silrer v. Brown (“Sil-

ver I”), 63 Cal.2d 270 (1965), likewise found the Assembly

reapportionment plan to be invalid, and thereupon took

it upon itself to prepare temporary reapportionment

plans which would be used in the 1966 elections were the

Legislature to fail to enact valid plans. Although the Legis-

2°This Court noted that, within nine months of its decision in

Baker v. Carr, litigation challenging the constitutionality of state

legislative reapportionment plans had been instituted in at least 34

of the 50 states in the Union. (Reynolds, 377 U.S. 556 n.30.) It is

submitted that the recognition of the justiciability of claims of

“political gerrymandering” will likely trigger a similar avalanche of

litigation, especially in light of the fact that, as discussed herein-

above, there simply are no clear-cut standards with which to prop-

erly define and evaluate such claims.

23 °

lature did pass new reapportionment plans which were then

signed into law by the Governor, further judicial interven-

tion was necessary when the Governor refused to sign a

follow-up bill designed to correct certain “technical errors”

in the plans. (Silver v. Brown (“Silver IIT”), 63 Cal.2d

841 (1966).) All told, the California Court was forced to

issue six separate »pinions regarding the 1960 reapportion-

ment.**

B. The 1970 California Reapportionment.

In 1971, the California Legislature again apportioned the

state’s Congressional, Senate, and Assembly districts,

based upon the results of the 1970 decennial census. How-

ever, the Governor this time refused to sign the bills passed

by the Legislature and intervention by the California

Supreme Court became necessary. In Legislature v. Rein-

ecke (“Reinecke I’), 6 Cal.3d 595 (1972), the state high

court, responding to this legislative deadlock, ordered that

the 1972 elections be conducted in the districts enacted in

the late 1960s (after the Silver series of decisions), and

retained jurisdiction to promulgate its own set of reap-

portionment plans for the 1974 elections in the event that

the Legislature and the Governor were unable to resolve

their impasse.

The Supreme Court was-subsequently forced to exercise

its retained jurisdiction and appoint a commission of

Special Masters to formulate appropriate apportionment

plans for the State’s Congressional, Senate, and Assembly

districts. (Legislature v. Reinecke (“Reinecke III"), 9

26In addition to the four decisions concerning state legislative

districts, the California Supreme Court addressed the reap ortion-

ment of California’s Congressional districts in Silver v. Brown (“Sil-

ver II”), 63 Cal.2d 316 (1965), and again in Silver v. Reagan, 67

Cal.2d 452 (1967).

24

Cal.3d 166 (1973).)27 Over a four-month period, these

Special Masters completed the arduous task of reappor-

tioning California’s legislative and congressional districts,

and the Supreme Court, after reviewing other plans offered

by various parties and amici for its consideration, adopted

the plans formulated by the Special Masters in its fourth

decision addressing the 1970 reapportionment controversy.

(Legislature v. Reinecke (“Reinecke IV”), 10 Cai.3d 396

(1973).)

C. The 1980 California Reapportionment.

While the reapportionment disputes of the 1960s and the

1970s required ten separate opinions from the California

Supreme Court, as well as federal court litigation ulti-

mately culminating in this Court’s Jordan v. Silver deci-

sion, this previous litigation unfortunately pales into

insignificance when compared to the litigation following the

1980 reapportionment. Statutes reapportioning these dis-

tricts were originally passed in 1981, based, of course, upon

the results of the decennial census conducted in 1980.

When members of the minority party then qualified three

separate referenda challenging those reapportionment

statutes, both houses of the Legislature requested that the

California Supreme Court remove the referenda from the

ballot.** Ultimately, the Court ruled that the referenda peti-

2?7The Court had previously extended the time for legislative

enactment of replacement plans but the deadlock remained unre-

solved. (Legislature v. Reinecke (“Reinecke II”), 7 Cal.3d 92

(1972).)

28Under Article II, §§ 9 and 10 of the California Constitution, the

California electorate, through its reserved referendum power, may,

with certain limited exceptions, veto any statute passed by the

Legislature. Pursuant to this constitutional provision, a referendum

petition which qualifies for the ballot normally stays operation of

the challenged statute until the matter is resolved by the voters.

(Assembly v. Deukmejian, 30 Cal.3d 638 (1982).)

25

tions, although facially defective, would nevertheless be

considered to have qualified for the ballot.

As the qualification of a referendum petition challenging

a statute prevents that particular statute from going into

effect, California was faced with the prospect of holding

its 1982 elections in outmoded districts which had become

severely malapportioned due to population shifts occurring

since implementation of the Reinecke plans. Reasoning that

elections in such obsolete districts would contravene the

constitutional standard of “one person, one vote”, the

California Court ordered that the plans formulated by the

Legislature, but stayed by the referenda, be employed on a

temporary basis for the 1982 elections. (Assembly v. Deuk-

mejian, 30 Cal.3d 628 (1982).) A subsequent petition for

certiorari was denied by this Court. (Republican National

Committee v. Burton, 456 U.S. 941 (1982).)”°

Far from resolving the dispute underlying the apportion-

ment of California’s legisi#tite and congressional districts,

the California Supreme Court’s decision in Assembly v.

Deukmejian spawned litigation in three of California's four

federal district courts.*° Nor did this litigation end the

2°Justice Mosk of the California Supreme Court, commenting in

Assembly v. Deukmejian upon the “wrenching experiences of 1971

and 1981”, dubbed the reapportionment process a “decennial de-

bacle”. (30 Cal.3d at 693-94, Mosk, J., dissenting.) Unfortunately,

given the fact that the current reapportionment controversy shows

no signs of abatement, as exemplified by the three currently pending

actions discussed infra, Justice Mosk’s 1982 assessment of the process

as a “decennial debacle” has apparently proved to be overly optimis-

tic.

%®Actions were filed in the United States District Court for the

Central District of California (Chavez v. Eu, Case No. 82-0571

CBM), the United States District Court for the Northern District of

California (Richardson v. Eu, Case No. C-82-1035-WAI), and the

United States District Court for the Eastern District of California

(Halliwell v. Eu, Case No. Civ. S-82-147 LKK), all challenging the

26

matter. After the electorate rejected (in the 1982 elections)

the reapportionment plans originally promulgated by the

Legislature, the Legislature adopted new sets of district

lines. True to form, however, the new enactments triggered

a new round of litigation, consisting of not one, but four

separate actions, filed in both state and federal court.

The first arose from an attempt by dissatisfied members

of the minority party to bypass the legislative process by

submitting to California voters an initiative which, if

passed, would have supplanted the legislatively enacted

replacement plans with new plans designed by the minority

party. However, under the California Constitution, the

State may reapportion itself, either by legislation or by

initiative, only once per decade, and the California Supreme

Court therefore ordered the Secretary of State, in Legisla-

ture v. Deukmejian, 34 Cal.3d 658 (1983), to remove this

initiative from the ballot.

The remaining actions each addressed the constitution-

ality of the new districts, as enacted by the Legislature and

signed by the Governor. Two of these actions are currently

pending, as is the holdover Halliwell action referenced in

footnote 30, supra.’ As a result of this ongoing partisan

use of the Court-ordered districts. Although both the Richardson

and Chavez matters were dismissed at an early stage, the Halliwell

matter, filed by a pro se litigant, is still pending in the Eastern

District.

31These actions are Badham v. Eu, No. 85-1266, which has already

resulted in decisions from the United States District Court for the

Northern District of California and the Ninth Circuit Court of

Appeals (Badham v. District Court, 721 F.2d 1170 (1983)), as well

as a petition for certiorari to this Court; Members of the California

Democratic Congressional Delegation v. Eu, now pending in the

Superior Court of the State of California for the County of Los

Angeles (Case No. C 450 827); and Santillan v. Eu, the newest

arrival, recently filed in the United States District Court for the

Central District of California (Case No. 84-7181 PAR), but later

dismissed by the plaintiffs.

27

dispute, California has been forced to conduct its last three

statewide elections in three successive sets of legislative

districts and faces the very real possibility that litigation

regarding the 1980 reapportionment will extend well beyond

the mid-point of the decade, even without serious considera-

tion of claims of political gerrymandering.”

Recognition of the justiciability of such claims such as

that involved in Bandemer will do nothing more than add

yet another layer of litigation to an already arduous and

painful process. Moreover, given the amorphous nature of

the standards relied upon by the Bandemer court, it is likely

that actions seeking redress for alleged partisan gerry-

mandering will stretch on for years, leaving state legisla-

tures such as that of California to become professional

litigants, rather than lawmakers.* Such a result, it is sub-

32California’s 1980 elections were held in the districts created by

Reinecke IV; the 1982 elections were held in the districts promul-

gated by the California Legislature after the 1980 census and

ordered into temporary effect by the Assembly v. Deukmejian deci-

sion; and the 1984 elections were held in the replacement districts

subsequently enacted by the California Legislature but now the

subject of new legal challenges.

33Indeed, given the emphasis placed upon the deposition testi-

mony of Indiana legislators by the court below, it is likely that liti-

gants serious about pressing claims of political gerrymandering will

attempt to depose virtually every state legislator who cast a vote

in favor of the apportionment plan or plans at issue. Not only is

such inquiry into the personal motives of state legislators generally

frowned upon (see, e.g., United States v. O’Brien, 391 U.S. 367,

383-84 (1968); Arizona v. California, 283 U.S. 423, 455 (1931)),

but allowing such discovery would also distract state legislators

from the business of legislating and thereby impede important gov-

ernmental functions.

28

mitted, will inure to the benefit of no one, least of all to

California’s already reapportionment weary electorate.”

Because of the severe impact which the Bandemer de-

cision will have, if left intact by this Court, and because

claims of political gerrymandering simply cannot be evalu-

ated by the required judicially discoverable and manageable

standards, the California Senate urges this Court to im-

mediately reverse the decision of the court below. Any

other result will create havoc in virtually every state, and

further clog the federal court system.”

%4Indeed, the summary of California reapportionment litigation

set forth in the text does not even begin to address the tremendous

volume of litigation which has arisen from the reapportionment of

local governing bodies. (See, e.g., Calderon v. Los Angeles, 4 Cal.3d

251 (1971); Miller v. Board of Supervisors, 63 Cal.2d 343 (1965);

Henderson v. Superior Court, 61 Cal.2d 883 (1964); Visnich v. Board

of Education, 37 Cal.App.3d 684 (1974); Griswold v. San Diego,

32 Cal.App.3d 56 (1973).) The reapportionment of such local gov-

ernmental bodies is of course subject to the dictates of the Four-

teenth Amendment. (E.g., Avery v. Midland County, 390 U.S. 474

(1968).) Nor has the Senate elected to discuss two successive and

hotly debated reapportionment initiatives presented to, but rejected

by, California voters, which initiatives would have placed the task

of reapportionment in the hands of an “independent” commission.

35s an alternative, the Court could summarily vacate and remand

the matter. This approach would be consistent with the recent

disposition of Escambia County v. McMillan, —_—

S.Ct. 1577 (1984). In Escambia, the district court had found that

the use of at-large elections for County Commissioners discriminated

against black voters in violation of the Voting Rights Act and the

Fourteenth and Fifteenth Amendments. The Eleventh Circuit

affirmed on the constitutional claims, without considering the Vot-

ing Rights Act claims. This Court vacated the subsequent appeal

and remanded the matter to the Court of Appeals for consideration

of the Voting Rights Act claims, noting that “normally the Court

will not decide a constitutional question if there is some other

ground [such as the Voting Rights Act claim] upon which to dispose

of the case”. (104 S.Ct. at 1579.) As Bandemer also involved claims

of Voting Rights Act violations brought by the NAACP, the matter

could be vacated and remanded to the district court for considera-

tion of these issues.

29

VI

CONCLUSION.

For all of the foregoing reasons, the California Senate

respectfully requests that this Court continue to treat

claims of alleged political gerrymandering as nonjusticieble

and, on that basis, reverse the opinion of the court below.

Respectfully submitted,

*ALLAN BRowNE

Bengamin D. ScHEIBE

9401 Wilshire Boulevard,

9th Floor

Beverly Hills, California 90212

(213) 273-6333

Counsel for the Senate

of the State of California

as Amicus Curiae

* Counsel of Record