Fair-minded Wisconsinites have complained bitterly about the Republican-drawn electoral map that seems to ensure that Democrats will be in the minority in the state Legislature—even when they receive more votes statewide than their Republican counterparts.
For example, in the November 2012 elections, Democrats earned 53.5% of the vote statewide, but just 39% of the seats in the Assembly.
Next week, however, those complaints could turn into action as attorneys for 12 Democratic voters make their case against the map in front of a three-judge panel in federal court beginning on May 24.
The Democrats argue that the Republican-drawn map is so heavily biased toward the GOP that it’s unconstitutional.
“The map is heavily favored toward one party,” said Sachin Chheda, director of the bipartisan Fair Elections Project, which supports the lawsuit. “It treats the voters of one party very differently than the voters of the other party. Voters who support Republicans have a much greater chance of converting their votes into seats than voters who support Democrats.”
In fact, the Democrats claim that Wisconsin’s current electoral map is the most politically biased map drawn in modern history and they’ve got a new statistical model to prove it.
“We don’t have a democracy in Wisconsin,” Chheda said. “We don’t have the kind of the accountability where the policy decisions made by elected officials can be addressed by the voters. The elected officials are going to win no matter what they do.”
If the Democrats win their case in court, the judges could require the state to redraw the legislative map so that it more accurately reflects the voters’ will. Whether that could happen before the November general election is to be determined pending the outcome of the May 24 trial.
If there’s a swift decision, Wisconsinites may head to the polls this fall to vote in different legislative districts, for different legislators.
Another reason to pay attention? The vacancy on the U.S. Supreme Court, created by the death of Justice Antonin Scalia and U.S. Senate Republicans’ refusal to confirm a replacement during the Obama administration, could have an impact on the case, which observers have called as important as Brown v. Board of Education, which struck down segregation in schools.
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GOP Map Drawn Up in Secret
Each decade, after the U.S. Census, the states draw new electoral maps to reflect changes in their population. Elected officials are typically responsible for drawing the new map, but when power is split between the two parties—for example, when Republican Gov. Tommy Thompson was in office, but the Legislature was controlled by Democrats—either the Legislature and the governor agree on a compromise map or lawsuits are filed and members of the court system take charge of redistricting.
For the past 40 years, Wisconsin’s maps have been drawn by the courts because state leaders were split between the two parties and couldn’t agree on a map.
But that changed in 2011, when Republicans took control of both houses of the state Legislature and the governor’s office. Instead of working with Democratic legislators to craft a map, the Republicans hired the Michael Best & Friedrich law firm and an outside expert to draw the new legislative map in secret, in a private office on the Capitol Square. GOP lawmakers were required to sign a secrecy oath before viewing the map.
Not surprisingly, the resulting map heavily favored Republicans.
The Democratic plaintiffs in the gerrymandering case contend that the Republicans “packed” and “cracked” Democratic voters into a minority of legislative districts, instead of creating legislative districts that are more equally balanced between Republicans and Democrats. The Democrats say the amount of wasted Democratic votes reaches 12%, which is what they say the Republican experts intended. They argue that more than 7% of wasted votes is unconstitutional.
A spokesman for the state Department of Justice (DOJ), which is representing the Republican legislators in court, wouldn’t answer the Shepherd’s questions for this article and pointed to the filings in the case instead. There, the DOJ argues, “there is no constitutional right for political groups to obtain a percentage of legislative seats corresponding to the percentage of votes their candidates earn statewide in legislative contests.”
The Court Battle
The Democrats’ case has already survived two challenges before a three-judge panel that’s hearing the case. The judges voted unanimously—twice—to disregard the DOJ’s objections and allow the case to proceed to trial, slated for May 24. And if you think the judges are Democrats and automatically favor the plaintiffs, think again. While U.S. District Court Judge Barbara Crabb was appointed by Jimmy Carter, a Democrat, Judge Kenneth Ripple was appointed by Ronald Reagan and Judge William Griesbach was appointed by George W. Bush.
The panel has blocked off four days for the trial, when they’ll hear oral arguments and testimony from experts. The judges will make a decision without a jury, but there’s no sense of when that will happen.
No matter what they decide, there’s a good chance that it will be appealed to the U.S. Supreme Court.
And this is where the case gets interesting.
The plaintiffs crafted their standard for measuring partisan gerrymandering because U.S. Supreme Court Justice Anthony Kennedy seemed to ask for one in a 2004 case. Kennedy appeared to say that he would be open to reviewing claims of unfair electoral maps, but that he needed some way to objectively measure partisan bias.
There’s no way to know how the justices would rule on Wisconsin’s electoral map, but the open seat on the court, created by the death of Justice Antonin Scalia and the Republicans’ refusal to confirm Obama’s appointee, Merrick Garland, could impact the ultimate decision.
Currently, if the eight-member Supreme Court is deadlocked 4-4, the decision of the appeals court would be upheld automatically—in this case, the ruling of the three-judge panel.
Without Scalia, the court seems to be split between three conservatives—justices John Roberts, Clarence Thomas and Samuel Alito—and four liberals or moderates, including Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Kennedy, who asked for the gerrymandering standard in the 2004 case, seems to be the swing vote.
Chheda wouldn’t speculate on the Supreme Court’s role in the case, but he said that it was possible that one of the courts would request that Wisconsin redraws its maps in a less biased way—and could do so in time for the new maps to be in place for the November election.
“It’s possible if we get a quick decision and the Legislature implements new maps before the election,” Chheda said.
Chheda said it was important for all voters to have a fair map, since incumbent legislators who feel safe in their highly partisan districts become highly partisan in their actions in the Legislature. They don’t compromise and this leads to legislative gridlock unless they control both houses of the Legislature and the governor’s office as the Republicans do in Wisconsin.
“If we want democracy to work we need to have elections that are meaningful and reflect the will of the people,” Chheda said. “We feel that if you had a Legislature that was responsive to the will of the people and that was conscious of the fact that if they made unpopular decisions the voters would punish them, then they’d have to moderate their decision-making and find compromise.”
