A group of Democrats have succeeded in putting Wisconsin Republicans’ gerrymandered legislative map on trial and potentially declared unconstitutional. Last Thursday, a panel of three federal judges—including two appointed to the court by Republican presidents—unanimously declared that they will hear the case on May 24, a significant victory for the members of the Fair Elections Project Wisconsin, which brought the suit.
The case concerns the legislative map the Republicans drew after the 2010 U.S. Census. Instead of developing a map in which Democrats and Republicans are represented fairly in competitive districts where either a Democrat or Republican could realistically be elected, the Republicans, according to the lawsuit, crafted a map that would ensure that Republicans would win a legislative majority. They did it by packing Democrats into a small number of legislative districts and then splitting Democratic votes elsewhere so that they are a significant minority of the vote in a number of districts. The map virtually cements GOP majorities in the Legislature for the decade it’s in place while giving the Democrats “close to zero percent chance” they’ll ever win a legislative majority. This isn’t some abstract argument about voting rights and representation. It already happened in the fall 2012 election. Despite the fact that Democratic candidates for state assembly received over 200,000 more votes than Republican candidates statewide, Republican candidates ended up with 61% of Assembly seats having received just 47% of the vote.
The Democrats’ suit is based on a new way to objectively measure gerrymandering, which is key to this case. In previous lawsuits over gerrymandered legislative maps, the unfair map seemed to be in the eye of the beholder. In a 2004 case, however, U.S. Supreme Court Justice Anthony Kennedy seemed to be open to looking at claims of gerrymandering if he was presented with a workable standard and means of measurement. The Wisconsin case seems to be just what Kennedy is looking for. If Senate Republicans seem intent on blocking Merrick Garland, President Obama’s nominee for the U.S. Supreme Court, Kennedy’s opinion and vote is going to be the deciding vote whether there are eight or nine members on the court. Wisconsin’s case will almost inevitably work its way up to the U.S. Supreme Court, and if it prevails, it could become one of those landmark decisions like Brown v. Board of Education.
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We applaud the group of fair elections advocates for challenging the Republicans’ gerrymandered map. Fair-minded Wisconsinites all know that the map is biased. We just didn’t have a way to prove it—until now.
