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Federal Judges Order Republicans to Draw a New Legislative Map

Unless the US Supreme Court objects, new districts will be in place for 2018 elections

Jan. 31, 2017
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Photo Credit: Megan McCormick / via Wikimedia Commons

In another victory for fair elections, a three-judge panel ordered Gov. Scott Walker and legislative Republicans to draw a new, balanced map of state legislative districts by Nov. 1, so that the new map will be in place for the 2018 elections. 

“The Wisconsin Legislature has continuously demonstrated a disregard for the rights of the voters and an inability to craft a fair, legal redistricting plan,” said Gary Hebert of The Campaign Legal Center, which represented the Democratic plaintiffs in the case, in a statement released Friday. “In drawing a new plan, the Legislature must put voters first, not partisan politics.”

Last November, two of the three judges ruled that the current Republican-drawn map, which has been in place since 2011, was unconstitutional because it sliced and diced the state map into districts that would preserve the Republicans’ lock on power, even when they win fewer votes than their Democratic counterparts.

That happened in 2012 and 2014, when Democrats won more votes than Republicans but were deep in the minority in the Legislature, raising questions about the legitimacy of one branch of state government.

Now that map will be scrapped.

“This is a huge win for democracy, and a huge win for the plaintiffs,” emailed Sachin Chheda, director of the Fair Elections Project, which helped to organize the suit. “Once we won the verdict, the only real question was whether or not the court would demand that the redrawing process start immediately, and on a hard deadline. They have.”

Two of the three judges, one appointed by a Republican and the other by a Democratic president, found that the Republicans’ map was so pro-Republican that it was unconstitutional—the first time a legislative map was struck down for partisan gerrymandering. They also accepted the defendants’ use of the “efficiency gap” to measure partisan gerrymandering, the first time a court has affirmed a standard for excessive partisanship.

“This decision is likely to be a landmark case, with the federal court accepting a bench-line formula for determining unconstitutional partisan gerrymanders,” said state Rep. Fred Kessler (D-Milwaukee) in a statement Friday. Kessler is a nationally recognized expert on redistricting and helped to organize the opposition to the Republican map.


Will the Next Map Be Fair?

In their November decision, the judges ordered the plaintiffs—12 Democratic voters who argued their civil rights were violated because their votes were wasted in the Republicans’ map—and the defendants, the state, to come up with possible remedies for the dispute.

On Friday, the judges decided that Republicans should redraw the maps by November 2017, so that they can be in place for the 2018 elections, and that they must meet the standard the judges accepted in their original decision. That means the Legislature must draw and pass the new maps and Walker must sign it by Nov. 1. Chheda said the plaintiffs will be allowed to weigh in on the map the state submits to the judges.

In short, the Republicans need to draw a map that’s constitutional and fairly represents the interests of both Democrats and Republicans. That means they have to squeeze out some of their own members to craft more balanced districts. Those likely on the chopping block are Republicans in suburban areas, where there’s a healthy mix of Republican and Democratic voters.

That said, the spokesman for state Attorney General Brad Schimel, a Republican, said the state expects to appeal the decision to the U.S. Supreme Court.

Republicans had wanted the federal judges to put their November decision on hold until the Republicans could send their case to the Supreme Court, but Friday’s decision denied that request and will allow the Republicans to draw the map and also appeal the decision at the same time. If the Supreme Court accepts the November decision, the new map will be in place in 2018. If the high court overturns the November decision, the old, unconstitutional map will remain in place.

Whatever the U.S. Supreme Court ultimately decides, Friday’s decision allows the current Legislature, elected under an unconstitutional map, to remain in place, instead of calling for new elections quickly. That means the representation of Democrats is low. This Legislature will be making major decisions about the state budget, education, transportation funding and health care through January 2019, when the next Legislature is sworn in. But Democrats will lack fair representation for the next two years.

Leading Democrats are calling for the public to be involved in the drawing of the next map. The current, unconstitutional map was drawn in secret by Michael, Best and Friedrich attorneys and top Republicans in an office on the Capitol Square. They attorneys were paid $431,000 by the taxpayers for their clandestine project. Republican legislators were allowed to see their districts in the new gerrymandered map, but had to sign a secrecy oath to do so. Democrats didn’t get to see the Republicans’ unconstitutional map while it was being drawn. 

In a statement Friday, Assembly Minority Leader Peter Barca said “a new map should be subject to public hearings in different parts of the state to ensure that voters are choosing their representatives, not the other way around.”

There are also calls for taking the redistricting process out of the hands of politicians. State Sen. Dave Hansen (D-Green Bay) has proposed a nonpartisan redistricting process so that elected officials are no longer in charge of drawing legislative districts and selecting their constituents.


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