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Redistricting has become a front burner issue and a number of smart people are becoming redistricting experts, but there are only a handful who have been a legislative leader and actually maneuvered either the state assembly or senate through the redistricting process. We went to one of the smartest, former State Senate Majority leader Chuck Chvala, who is currently a practicing attorney and businessman.
Everyone understands why Republicans and Democrats in safe, heavily Republican and Democratic districts respond largely to the most extreme elements of their partisan bases. This ensures that they are not defeated in a primary, which is their only chance of losing an election. In a hyper-partisan gerrymander, these tendencies are exacerbated dramatically, and overwhelming partisan majorities are created in a large percentage of individual districts. Remember, Republicans in Wisconsin are trying to pack as many Democrats into the fewest seats possible while packing a comfortable majority in as many Republican seats as possible.
Left out of the equation are moderates of both parties, independents and swing voters who generally want middle-of-the-road policies.
The hyper-partisan gerrymander pushes legislators on both sides to the extremes and disincentivizes institutional leaders to reach bipartisan agreement or to moderate the views of their own members, even if they craft policies without the other party’s involvement.
Wisconsin has the worst partisan political gerrymander of its legislative districts of any state in the U.S. according to numerous national political analysts. We are a 50-50 state in terms of partisan vote in statewide elections. Yet Republicans hold more than 60% of legislative seats in both the state senate and assembly.
Normally, in a 50-50 state such as Wisconsin, maps are fairly drawn with enough seats at stake that partisan majorities are at risk in every election. In that situation, legislative leaders and other institutional leaders are strongly incentivized to be more moderate to win elections in those swing districts.
If you wonder whether this moderation is needed, look at the groundless questions in Wisconsin and nationally regarding whether the election of 2020 was legitimate. These questions, and even investigations, are not just raised by some goofy crackpot but by leaders in both the Wisconsin legislature and Congress.
Why We Should Care?
Let’s cut to the chase. Fair and balanced maps force politicians to respond to the will of the people, not the fringe elements of political parties. Redistricting will determine whether there is even a chance to make historic investments in K-12 education, property tax reduction, healthcare expansion, health insurance premium reduction and rebuilding our transportation infrastructure.
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Who Will Decide Wisconsin’s Legislative District Maps?
The final decision on Wisconsin legislative maps will be made by either the Wisconsin Supreme Court or a three-judge federal panel which has already been appointed.
For the past 60 years, a three-judge federal panel has made these decisions in Wisconsin when a redistricting map was not adopted by the legislature and signed by the governor. A decision by the federal panel this time would seem even more likely given the past statements of Wisconsin Supreme Court Chief Justice Zeigler and Justice Roggensack on Wisconsin Supreme Court's involvement in redistricting prior to 2010.
See this link to the Zeigler and Roggensack comments as the court, meeting in its administrative capacity, considered rules for the 2010 redistricting. You can see that both justices including the current chief justice were vigorously opposed to the Wisconsin Supreme Court involvement in this process.
Fast-forward to 2021. The federal three-judge panel set a trial date to decide the Wisconsin redistricting case. The next day, conservative Wisconsin Supreme Court decided to take the case. The federal three-judge panel quickly deferred to the Wisconsin Supreme Court and set in place an alternative schedule that would move forward only if the Wisconsin Supreme Court failed to move expeditiously to resolve this case.
Partisan Gerrymander by Wisconsin Supreme Court?
Many attorneys and political analysts following the redistricting process are deeply concerned about a partisan gerrymander by the Wisconsin Supreme Court.
Conservative justices on the Wisconsin Supreme Court have had their campaigns run by Republican political operatives for many years. Progressive Supreme Court justices have had Democratic operatives running their campaigns. These non-partisan Supreme Court elections were Constitutionally designed to eliminate partisan decision-making by the court.
Given the hyper-partisanship of Wisconsin Supreme Court elections, many observers strongly believe it is not possible for the court to make an independent and unbiased decision in this quintessentially partisan case. Recently, a conservative justice literally ran his campaign out of the Republican Party headquarters in Madison.
Is There Any Hope?
First, there is a long-shot chance that former Chief Justice Roggensack may want to leave a legacy of enhancing the court’s independence by either (1) adopting a fair and balanced map for the legislative districts, or (2) writing an opinion deferring to the federal three-judge panel, who have lifetime appointments, and who, unlike the Wisconsin Supreme Court justices, do not face an election dependent upon partisan campaign advisors and contributors. The few observers raising this potential outcome recognize it is a very slim chance.
More thoughtful analysts point to a much stronger possibility, citing the independence which conservative Justice Hagedorn has shown occasionally in cases decided by the court.
Hagedorn could use this opportunity to further establish himself as the intellectual heavyweight and pivotal decision-maker in a Supreme Court which is in danger of being perceived as an enforcement arm of the Republican Party. Justice Hagedorn could craft a decision which gives both parties an opportunity to win the senate or the assembly.
One path Justice Hagedorn, who is a constitutional textualist, could go down is by relying on Article 4, Section 3 of the Wisconsin Constitution, which requires the legislature to “apportion and district anew.” Justice Hagedorn should be loath to adopt the Republican legislature’s proposed map that seeks minimal change from the currently gerrymandered map given this Constitutional provision.
Not only would a balanced map burnish Justice Hagedorn’s reputation, it would also restore the credibility and independence of the court. Unfortunately, he faces enormous pressure, including pressure from partisan politicians and large corporate donors. If Justice Hagedorn delivers a fair and balanced map for the Wisconsin senate and assembly, it will be a fearless decision in defense of the independence of the Wisconsin judiciary.
Our ability as Wisconsin voters to impact the future of public policy in our state in this hyper-partisan environment depends upon at least one profile in courage.
