When one party earns 53.5% of the vote statewide but just 39% of seats in the Assembly, you know that something is wrong with how the election was conducted.
That’s precisely what happened in 2012, when President Barack Obama won a solid majority of votes in Wisconsin but his fellow Democrats won a paltry 40 of 99 seats in the state Assembly.
So how did it happen?
The legislative map was deliberately drawn by Republicans to benefit Republicans, argue the bipartisan members of the Fair Elections Project Wisconsin.
According to the group’s lawsuit filed in the U.S. District Court for the Western District of Wisconsin, the Republican-drawn map is one of the most gerrymandered maps in the nation in recent history. In fact, new data provided in the federal suit show that since 1972, fewer than 4% of all statehouse maps benefited a party to this extent, and there’s “close to zero percent chance” that Democrats will ever win a majority under it, even if they win more votes than their Republican counterparts.
“We are so out of the norm,” said Peter Earle, one of the attorneys on the case.
The current Wisconsin map is so extremely partisan that members of the Fair Elections Project Wisconsin allege that it’s unconstitutional and deprives voters of their right to equal protection under the law and their right to be free of discrimination, no matter what their party affiliation.
“This case, I think, is of potentially historic importance,” Earle said. “We have a well-thought-out case that we think can reach the Supreme Court and that we think can have a positive result.”
GOP Sworn to Secrecy
The project’s lawsuit shows precisely how the Republicans developed their map and how it ensures Republican victories throughout its 10-year lifespan.
It began with the tea party wave election in 2010, which happened to coincide with the 10-year U.S. Census. Each census creates the data to enable each state to redraw legislative maps to incorporate updated population information. Federal law and the U.S. Supreme Court decisions Baker v. Carr and Reynolds v. Sims require states to ensure what is referred to as “one person, one vote,” or that every effort must be made to ensure that each individual’s vote counts as much as every other individual’s vote.
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More specifically, since these two Supreme Court decisions, legislative maps are required to include roughly equal numbers of residents, be relatively compact, respect political subdivisions and not discriminate against certain demographic groups, such as ethnic or racial minorities.
State legislative bodies are required to redraw their legislative boundary maps every 10 years in accordance with the new census data and have it signed by the governor. In Wisconsin, that’s only happened once since the 1970s, because the two houses of the Legislature and the governor could not agree. As a result, the courts have had to draw up the maps that help to ensure reasonably fair competition between Republicans and Democrats around the state.
But that all changed following the 2010 election, when Republicans seized both houses of the state Legislature and the governorship. Instead of creating a public, transparent redistricting process, Republican leaders hired the conservative corporate law firm Michael Best & Friedrich LLP that drew up the maps in their offices across the street from the Capitol. In the “map room” in that private office, according to the lawsuit, Republican legislators were allowed to look at their district lines only, and to do so they had to sign a secrecy oath in which they swore they would not divulge information about the map to anyone else. According to the lawsuit, 17 Republican senators and 58 Republican Assembly members signed the secrecy agreement.
No Democrats were allowed to see the map until it was introduced in the Legislature.
The Republicans also hired Ronald Keith Gaddie, a political science professor at the University of Oklahoma, to analyze the expected partisan performance of the new districts. Gaddie’s model forecast that the new Assembly map would have an “efficiency gap” of 12% in favor of Republicans, meaning that 12% of votes would be wasted in districts that were hopelessly Republican or Democratic, the suit alleges.
In other words, the map creators “packed” Democrats into a few districts that made them highly partisan and wasted a lot of Democratic votes while “cracking” or splitting formerly swing or Democratic districts to make them more favorable to Republicans by spreading out the limited Republican votes into comfortable majorities in as many legislative districts as possible. Packing and cracking districts typically occurs in legislative redistricting, but the degree to which it exists in Wisconsin’s current map is wildly off the charts, the group argues in court documents.
Michael Best was paid $431,000 in state taxpayer funds for their work on the new pro-Republican map, which flew through the Legislature and became law in the summer of 2011. Since then, Republicans have retained their hold on power, even when they’ve won fewer votes than their Democratic counterparts.
Assembly Speaker Robin Vos (R-Rochester) defended the current map, writing in an email, “The current map meets all constitutional requirements and is drawn fairly and contiguously.” Senate Majority Leader Scott Fitzgerald (R-Juneau) didn’t respond to the Shepherd’s request to comment for this article.
Cold, Hard Data
The efficiency gap is one of the key statistical measures the group presents in their suit and it helps to provide them with a new standard by which judges and the public can evaluate the degree to which a legislative map has been gerrymandered to benefit one party.
Political scientists at Stanford University and the University of Wisconsin-Madison questioned Wisconsin’s 12% efficiency gap in documents filed with the case.
Stanford’s Simon Jackman looked at the efficiency gap in 786 state legislative elections nationwide since 1972 and found that just 27 of those maps, or less than 4%, were more extremely partisan than Wisconsin’s current map. He found that efficiency gaps of more than 7% could be challenged in the courts, far less than Wisconsin’s 12%. He also found that there are more pro-Republican efficiency gaps across the country, and almost all of them implemented since 2000 have benefited Republicans.
Wisconsin’s 12% efficiency gap isn’t merely the result of demographics, geography or Republicans simply winning elections based on a fair map. Political scientist Kenneth Mayer at UW-Madison was able to develop a legislative map based on the current census that has an efficiency gap of a mere 2%, indicating that the state’s 12% gap was deliberately designed.
State Rep. Fred Kessler (D-Milwaukee), a national expert on redistricting, said that new efficiency gap data gives the plaintiffs cold, hard data that haven’t been presented before—data that judges and Supreme Court justices need so that they can determine if a legislative map is truly gerrymandered for partisan gain.
Kessler said that Supreme Court Justice Anthony Kennedy appears to be willing to evaluate the partisanship of legislative maps, but until now has been lacking an objective standard that could be used to analyze them. Kessler said that Kennedy’s open-mindedness, as well as the recent Justice Ruth Bader Ginsburg-led majority’s decision on a redistricting case in Arizona, makes him feel that the time is ripe for challenging Wisconsin’s gerrymandered map in the courts.
He said this case could be as significant as Brown v. Board of Education, the landmark case that declared “separate but equal” unconstitutional and helped to usher in the modern civil rights era.
“I think that we are going to win and I think that we are going to restore democracy to the political process,” Kessler said. “Democracy has been eroded by this excessive partisanship.”
