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Is the Wisconsin Legislature Legitimate?

Was much of Gov. Walker’s legislation passed by an unconstitutional legislature?

Nov. 29, 2016
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In a case that might have national implications, last week a federal judicial panel voted 2-1 that Wisconsin’s current legislative map is so unfair to Democrats it’s unconstitutional. The federal three-judge panel consisted of two judges appointed by Republican presidents and one appointed by a Democratic president. The opinion of the three-judge panel was written by Republican-appointed Appeals Court Judge Kenneth Ripple.

It’s the first time in modern history a legislative map was struck down for excessive partisanship.

The map, drawn in 2011 in secret by GOP leaders and staffers and Michael Best & Friedrich attorneys, was developed after the 2010 U.S. Census to be in effect until after the next census, in 2020. The Republicans and their advisors sliced up the map of Wisconsin into a large majority of safe Republican Assembly seats, a minority of safe Democratic seats and just a few swing districts. The GOP map is so skewed toward Republicans that they can win a large majority of Assembly districts even when they win a minority of votes overall. In fact, that’s been true in two elections—in 2012 and in 2014.

The plaintiffs—12 Democratic voters who successfully argued the legislative map violates their civil rights—hired experts who developed a way to measure partisanship: the efficiency gap, in which Democrats are “packed” and “cracked” into districts that are either overwhelmingly Republican or overwhelmingly Democratic, with far more Republican districts than those favoring Democrats. The plaintiffs then proposed a three-part test for measuring partisan gerrymandering. Under the test, the Democrats set out to prove that Republicans deliberately intended to gerrymander for partisan advantage; that the efficiency gap was so excessive it’s unconstitutional; and that the partisan map wasn’t simply the result of geography, with Democrats naturally clustered into urban areas and fewer districts and Republicans distributed in the rest of the state. 

In their decision, the two majority judges accepted the efficiency gap as well as the three-part test, for the first time affirming a standard for measuring partisan gerrymandering. And Republicans aren’t happy.  

Assembly Majority Leader Robin Vos (R-Rochester), who was one of the leaders of the secret redistricting process, released a statement calling the new standard “significantly flawed.” When reached on the phone, Vos told the Shepherd that he wasn’t taking any questions about the decision and fielded queries to his spokeswoman, who in turn didn’t respond to the Shepherd’s request to comment.

What’s Next?

Democrats, on the other hand, were buoyed by the majority’s decision and the possibility of regaining some seats under a fair map. 

On a press call with reporters last week, William Whitford, a retired University of Wisconsin Law School professor and the lead plaintiff on the case, said he and his fellow Democrats were “frustrated” by the Republicans’ gerrymandering.

“It left us out of the policy-making role,” Whitford said. “And that frustration is reflected, I think, in less enthusiasm for state legislative contests and so forth. Hopefully this is part of the remedy.”

State Rep. Fred Kessler (D-Milwaukee), a longtime national expert on redistricting who helped to strategize on this case, told the Shepherd the decision makes plain how Republicans used redistricting to create a lock on power.

“I think there are a lot of people who understand how democracy was distorted,” Kessler said.

He praised Judge Ripple’s written decision as being thorough and “scholarly,” but said it presents many questions going forward, such as:

What’s the remedy?: The judges asked to be briefed by both sides within 30 days on possible remedies and they might ask both sides to present a map that lives up to the new standard. “Our lawyers will submit a map that’s perfect,” Kessler said, if that’s what the judges request. “We don’t think the Republicans can do that.” If Republican legislative leaders need to draw a more-balanced map that gives Democrats a fighting chance in more districts, then many of their incumbents will be vulnerable. The balanced maps could put two Republicans into one district or write off a few of them. The most vulnerable, Kessler said, are the suburban Milwaukee County Republicans. 

Is the Wisconsin Legislature legitimate?: The state has used the new map since the 2012 elections and each time the Republicans won big legislative majorities. In fact, last month’s election gave the GOP its biggest majority in decades. But is the makeup of the current Legislature truly legitimate if members were elected under an unconstitutional map? Do the judges have the power to call for a new election under fair maps, and, if so, when would that happen?

Will the state appeal?: The defendants in the case are the six members of the new state Elections Commission, which is made up of three Democratic appointees and three Republican appointees. That said, Republican state Attorney General Brad Schimel said that he plans to appeal the decision. If he does, the appeal will go straight to the U.S. Supreme Court.

While an appeal might sound like a good strategy to overturn this decision, it presents some risks for Republicans. After all, before the 2010 elections the national Republican State Leadership Committee launched its REDMAP project to create Republican majorities in key statehouses with the specific goal of drawing pro-GOP legislative maps in 2011. REDMAP targeted Wisconsin, along with Florida, North Carolina, Pennsylvania, Ohio and Michigan. 

If the high court affirms last week’s decision, then the new partisan gerrymandering standard will be the law of the land for all 50 states and other maps could be struck down. If Schimel doesn’t appeal, the decision will be limited to states in the Federal Seventh Circuit Court of Appeals, which includes just Wisconsin, Indiana and Illinois. 

What will the U.S. Supreme Court do?: For the time being, there is one vacancy on the Supreme Court, and the eight remaining justices are typically split 4-4 along ideological lines. That said, Kessler said he has high hopes for the Wisconsin case. The swing vote is Justice Anthony Kennedy, who has voted with the liberals in recent voting rights cases and has signaled that he’s looking for a gerrymandering standard such as the one offered by the Wisconsin plaintiffs. If Kennedy accepts this standard, that could mean a 5-3 ruling under the court’s current makeup and if President-elect Donald Trump is able to appoint a justice to the bench, that will still only bring the vote to 5-4 in favor of invalidating the Wisconsin map. 

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