Davis v. Bandemer

Having decided that the political gerrymandering issue was not a political question, the six justices in the majority on this point then considered whether the Indiana redistricting plan violated the Equal Protection Clause. Initially, all six justices agreed on the test to be used in analyzing political gerrymandering claims. In his opinion, Justice White found that political parties or other persons bringing a political gerrymandering claim must, to establish that the redistricting violates the Fourteenth Amendment, "prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." Justice Powell began his dissenting opinion by agreeing with this test.

Nevertheless, the six justices split sharply on the actual application of this test, both in general and to the facts of the case. Justice White, joined by Justices Brennan, Marshall, and Blackmun, concluded that the Indiana Democrats had failed to show that the redistricting plan had an actual discriminatory effect on Democrats. He stated that the purpose behind the drawing of the lines should not be reached unless the Democrats first showed that they had "been unconstitutionally denied [their] chance to effectively influence the political process." Reasoning that "the power to influence the political process is not limited to winning elections," Justice White concluded that the simple fact that the Indiana Democrats' representation in the legislature was not directly proportional to the percentage of votes they received was insufficient to establish a discriminatory effect. He also concluded that the undisputed fact that the Republican lawmakers in Indiana intended to disadvantage the Democrats was irrelevant unless the Democrats could show that they were actually disadvantaged, which they could not.

Justice Powell, joined in his opinion by Justice Stevens, vigorously disagreed with Justice White's analysis. In his view, the political gerrymandering inquiry "properly focuses on whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends." He believed that a court should look at actual elections conducted under the plan, the shape of the districts, and the actual goals of the legislators adopting the plan. Examining these factors, Justice Powell would have upheld the district court's decision, most notably because there was substantial evidence that the Indiana legislators intended to disadvantage Democratic candidates; furthermore, the 1982 election results showed that the Democratic candidates had been disadvantaged.