GERRYMANDERS - THE GOOD, THE BAD, AND THE UGLY

Over the past five years prominority gerrymanders have given the Supre me Court fits. three Justices appear to be of the opinion that any con sideration of race in crafting voting districts is unconstitutional. F our stand ready generally to uphold such districts essentially on the ground that they are ordinary (perhaps even unusually benign) instance s of affirmative action. The two in the middle, however, quite consist ently vote to invalidate such districts, though they allow that they a re sometimes permissible, but seem to be having trouble getting togeth er on a theory that tells, when and why. The dominant purpose test of Miller v. Johnson-which, so far as one can tell, officially represents the law as of 1998-proves ultimately incoherent, while its predecesso r and sometime stand-in, Shaw v. Reno's bizarre shape test, is widely held to lack connection with articulable constitutional values. Profes sor fly argues that of the two, Shaw v. Reno's test is preferable not only because of its relative intelligibility, but also because, at lea st under current conditions, it puts in place a political safeguard, e ncouraging state legislatures themselves to moderate both racial and, what he regards as even more clearly constitutionally offensive, polit ical gerrymandering. He goes on to argue, however, that those conditio ns are unlikely to prevail for very long, thus-complete judicial abste ntion being indefensible in this concert-making it incumbent upon the Court to face head-on the ultimate issues of principle at stake here: whether it is constitutional to any degree to take race or political p arty into account in shaping voting districts. He closes by suggesting that it is not, and briefly exploring what options capable of avoidin g the severe reduction of minority representation such a holding would leave the political branches.