Every ten years, a committee of state politicians in power re-draws legislative districts to its own party's benefit. Districts begin to take on strange shapes, resembling anything from a salamander to a bug splattered on a windshield, as these politicians seek to spread out their own support while confining the other party's supporters to as few areas as possible. Although this type of electoral manipulation has existed since the beginning of our political system, it has not been until the last two decades that racial and political gerrymandering have become critical legal and political issues.

The Supreme Court addressed this controversy in several recent, important cases, such as Davis v. Bandemer and Shaw v. Reno, where the Court held that political and racial gerrymandering can violate the Equal Protection Clause of the Fourteenth Amendment. Under the current re-districting process, it is difficult to imagine an instance where re-districting would not result in some kind of gerrymandering, which subverts the one person-one vote principle of the Fourteenth Amendment. Indeed, the current re-districting process is antithetical to our democratic principles. A different process is necessary, one that would allow re-districting to remain a vital part of our political system, while preventing the injustices that have occurred due to politicians re-drawing the legislative map. This solution, which is not meant to be a panacea, would entail an objective, non-partisan commission being in charge of re-districting.

Generally speaking, cases of discrimination have resulted in voter disenfranchisement, while cases of political and racial gerrymandering have resulted in vote dilution. Voter disenfranchisement prevents certain citizens from exercising their fundamental right to vote. Vote dilution, on the other hand, involves how much weight is ascribed to each vote.

While the Court has upheld certain reasonable restrictions on voting, such as age, citizenship, and residency requirements, it has held in Davis and Shaw that racial and political gerrymandering can be violations of the Equal Protection Clause. In voter disenfranchisement and vote dilution cases, the Court has applied a strict scrutiny standard. This standard requires that judges must independently review the redistricting plan or voting restriction (i.e., a poll tax), and that the state must show that its regulation or plan promotes a compelling interest. Samuel Issacharoff divides cases dealing with minorities and voting rights into two generations. Samuel Issacharoff, University of Chicago Legal Forum, at 34, col. 1-2. The first generation of voting rights cases dealt with voter disenfranchisement--restraints on black citizens' right to vote, such as poll taxes and literacy tests. Id. The far more controversial "second generation" of cases dealt with the dilution of black votes. Id., at 34, col. 2, and at 35, col. 1. We are still in this second generation of cases, as evidenced by very recent decisions such as Shaw.

The problem of the racial minority electorate in this second generation of cases is this: If blacks constitute only 20 percent of a state's population, as they did in Shaw, they risk being gerrymandered in such a way that they will never be able to determine the result of an election. Shaw v. Reno, at 68, col. 1. After all, the argument goes, what is the point of giving blacks the right to vote if they can never, or very rarely, elect any of the candidates for whom they vote? Issacharoff addresses this question with extreme rhetoric, going so far as to compare our winner-take-all system to authoritarian "show" elections. Id. , at 34, col. 2. He adds, "Individual freedom from undue state interference with access to the ballot may be a necessary precondition for democratic politics, but it does little to define the actual structure of the political system." Id. The problem with Issacharoff's view, and the Lani Guinier-type solution of proportional representation, is that they undercut the winner-take-all system that is at the center of our democratic process. As Jeffrey Hamilton points out, "[T]his country's political system is a representative democracy based on majority rule. While the Constitution may provide against the tyranny of the majority, we still have a system where there are winners and losers." Jeffrey Hamilton, Emory Law Journal, at 43, col. 1.

The federal government's response to the dilution of minority votes has done more harm than good. Congress made a vital contribution to voting rights when it passed the Voting Rights Act (VRA), which prevents the "denial or abridgment of the right of any citizen...to vote on account of race or color." 42 U.S.C. §1973, at 1, col. 2. However, the U.S. Attorney General's Office (AG) has wielded the VRA as a weapon against re-districting, precluding states from re-drawing districts without the AG's approval and requiring a certain amount of majority-minority districts. This has created what Abigail Thernstrom aptly describes as "Jim Crow districts, designed as 'homelands' for black voters." Abigail Thernstrom, Public Interest Law Review, at 27, col. 2. In its attempt to avoid the dilution of minority votes, the AG ends up diluting the voting strength of white voters and violating the Equal Protection Clause. Thus, while it tries to remedy one type of discrimination, the AG ultimately causes another.

In Shaw, for example, the AG rejected North Carolina's re-districting plan, which created only one district where it was likely that racial minorities would determine the result of an election. Shaw, at 68, col. 1. Given the minority population of the state--20 percent black, 1 percent Native American, and 1 percent predominantly Asian--the AG concluded that two districts with a majority- minority population should be drawn so that these minorities could determine the outcome of an election. Id. The legislature, following the AG's orders, re-drew the map, creating two very odd shaped districts. Id. The Court described one district as a "bug splattered on a windshield," while it said that the other district was "for much of its length, no wider than the I-85 corridor." Id.

The Court's ruling in Shaw is frustrating, since it does not offer much guidance in determining what precisely constitutes racial gerrymandering. The Court held that a redistricting plan could be a violation of the Equal Protection Clause if it is "so extremely irregular on its face" and if it uses race as the only criterion for drawing a particular district. Id., col. 2. This suggests that if a state gives consideration to a variety of factors, including race, when re-drawing district lines, then its re-districting plan would be constitutionally acceptable. As to what these other factors were, the Court remained silent. Later in the opinion, the Court heavily qualified its initial holding, saying that it had "no view as to whether 'intentional creation of majority-minority districts, without more' always gives rise to an equal protection claim" Id., at 69, col. 1-2. Thus, we end up back at square one, and are left with neither a precise definition of racial gerrymandering nor any test for determining whether racial gerrymandering and a violation of the Equal Protection Clause are present. The Court even avoided ruling on whether the North Carolina re-districting plan was in fact a violation of the Equal Protection Clause. It only held that the plan could constitute a violation of the Equal Protection Clause, and remanded the case, with little guidance, to the lower court to determine whether there was indeed such a violation. Id.

The Court, though, unequivocally makes the powerful point that "[r]acial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters." Id. In his law review comment, Hamilton echoes this argument, declaring that racial gerrymandering has polarized the races and created a "system of political apartheid." Hamilton, Emory Law Journal, at 42, col. 1.

Proponents of racial gerrymandering make the faulty assumption that minorities in a district with a white majority would never vote for the same candidate as the whites. In other words, blacks will only vote for blacks and whites will only vote for whites, so blacks need their own majority-minority district in order to elect their own black representative. These supporters equate what is de facto a quota system with racial justice, arguing that only when the percentage of minorities in a state matches the percentage of elected minority representatives can we be sure that there has been no dilution of minority votes. Texas Attorney General Dan Morales typifies this view when he writes that there must be voter dilution on the national level since there is a greater percentage of minorities in the country than minority representatives in the U.S. Congress: "[M]inorities remain underrepresented. Blacks constitute 12 percent of the population but hold only 7 percent of the seats in Congress. Hispanics account for 10 percent of the population but constitute only 3 percent of the U.S. Congress." Dan Morales, Houston Chronicle, at 7, col. 1.

Elections in the last few decades have disproved the view that blacks (or whites) always vote their race, which the Court in Shaw characterizes as "racial stereotyping." In numerous situations, blacks have provided the crucial swing-vote for a white candidate in a majority white district, and whites have elected black candidates. In 1967, for example, Carl Stokes, who was black, became mayor of Cleveland, which was a predominantly white city. Thernstrom, Public Interest Law Review, at 28, col. 1. In 1989, Virginia, less than 20 percent black, elected Douglas Wilder governor. Id. In 1992, the majority white state of Illinois elected Carol Moseley-Braun to the U.S. Senate. Id.

Supporters of racial gerrymandering also fail to realize that drawing districts according to race can actually hurt the power of the black vote more than it can help it. For instance, in two districts that are 35 percent black, black voters will often be the decisive swing vote. Id., at 27, col. 2. Concentrate that electorate in one 70 percent black district--a majority minority district--and blacks will have lost the chance to have two representatives beholden to their support. Id. Some have responded that in majority white districts, elected officials are really not beholden to black voters since blacks only constitute a portion of the electorate, but this is simply not the case. Because blacks comprise such a crucial swing vote, elected officials pay as much, if not more, attention to their black constituents than to the majority white voters.

Finally, racial gerrymandering could very well lead to the gerrymandering of other classes of people that are underrepresented in elected bodies and that have suffered discrimination. These include ethnic groups (i.e., Jews) homosexuals, and women. Any such group could argue that if blacks and Hispanics are given special status in re-districting, then it should also be given special status. These classes without special status could point out that racial gerrymandering allows for elective bodies to mirror the black and Latino make-up of a state, and that it is only fair for there to be gay and Jewish gerrymandering so that the elective bodies mirror their portion of the population. All of this, of course, would only further splinter rather than strengthen our democracy. It would lead to an even more acute balkanization than that which now exists because of racial gerrymandering.

It is often difficult to distinguish political from racial gerrymandering. Suppose that the legislature, as it did in Shaw, goes to lengths to draw two majority-minority districts so that minorities could determine the outcomes of two races. Here, it is fairly clear that there is racial gerrymandering. Now, imagine what has in fact become a very common scenario. A majority Democratic legislature re-draws districts lines in such a way that blacks constitute a significant minority of voters in a district. These blacks, almost all of whom are Democrats, will provide the crucial swing vote for the white Democratic candidate who is running against a white Republican. Here, it is much more difficult to determine whether the gerrymandering is racial or political.

It is also hard to tell the difference between racial and political gerrymandering in another sense. Both types of gerrymandering are used to advance certain interests, so it is very difficult to explain how one political interest is any more legitimate than a racial one. Furthermore, both types of gerrymandering lead to the same pernicious result--vote dilution and a possible violation of the Equal Protection Clause. Ten years go, in Davis v. Bandemer, the Supreme Court dealt directly with the issue of political gerrymandering and voter dilution.

In Davis, Democrats charged that the 1981 Indiana re-districting plan constituted a political gerrymander intended to disadvantage Democrats. Davis v. Bandemer, at 77, col. 2. They alleged that the plan resulted in voter dilution, and thus was a violation of the Equal Protection Clause. Id. They pointed to the 1982 state election as evidence. Id. In this election, Democratic candidates for the state house of representatives receive 51.9 percent of the vote statewide but were elected to only 43 of the 100 house seats. Id. Even more disturbingly, Democrats received 46.6 percent of the vote in multimember districts, but only 3 of 21 Democratic candidates were elected in these multimember districts. Id.

The Court held for the first time that political gerrymandering was justiciable under the Equal Protection Clause and thus was not a nonjusticiable political question. Id., at 78, col. 1. Justice White, who wrote the plurality opinion, established a standard for determining whether political gerrymandering is a violation of the Equal Protection Clause. He argued that plaintiffs must prove "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." Id., col. 2. The plurality opinion held that the plaintiffs in this case had easily proven discriminatory intent, but that they had not sufficiently proven any discriminatory effect. Id. The mere disadvantage of a political party in one or two elections, the plurality stated, would not satisfy the "threshold condition" to proving a cause of action. Id., at 79, col. 1.

White's test for determining whether political gerrymandering is constitutional or not is not very satisfactory for two reasons. First, if vote dilution is so pronounced, as in the 1982 Indiana election, then political gerrymandering should be found unconstitutional, and plaintiffs should not have to wait for numerous elections to meet some threshold condition. Second, it is difficult to distinguish vote dilution as a result of racial gerrymandering in Shaw, which the court suggested (but did not explicitly hold) was unconstitutional, and vote dilution due to political gerrymandering in Davis, which White expressly found constitutional under his test.

Some argue that political gerrymandering is "inherent in, or perhaps necessary for, the proper operation of a stable two-party system." Issacharoff, Texas Law Review, at 44, col. 1. History is on their side; since the beginning of our political system, legislative commissions have been in charge of re-districting and have engaged in political gerrymandering. However, political gerrymandering is not a necessary component of a two-party system. Re-districting committees have a dual goal--to protect the political party in power and to protect incumbents--which almost always results in the dilution of the other party's votes, and thus threatens the basic one person-one vote principle of the Fourteenth Amendment. Like racial gerrymandering, political gerrymandering threatens the health of a democracy.

The inequities of political and racial gerrymandering are evidence that the current re-districting process is seriously flawed. A solution would be to have an independent, non-partisan commission re-draw the district lines, instead of the legislature. This commission would greatly reduce the chances of gerrymandering and vote dilution, and would be concerned about the best interests of the voters, not of a certain political party.

There are a couple of ways in which this independent commission could be formed. The first way is to have Democrats and Republicans from the state legislature choose an equal number members for this commission. The members of the commission would be ordinary citizens that do not hold any kind of public office. The second way is to have a judge, on whom both Democrats and Republicans agree, choose the members. This would not give the judiciary any more power than it has already. For some time now, federal judges have not approved re-districting maps because of gerrymandering and violations of the Equal Protection Clause. Occasionally, federal judges have even assigned "special masters" to re-draw districts. Because judges are supposed to be the voice of reason that stands above politics and bias, they would have less chance of getting mired in partisanship when choosing members for the independent commission.