Lawsuit seeks to declare GOP political redistricting in Wis. unconstitutional

Plaintiffs' goal in a federal lawsuit is to right what they see as the wrong of GOP-drawn state political redistricting that the Wisconsin Fair Elections Project director calls the ‘most intentionally partisan map in modern American history’

by / Eric Lindquist

As a former high school civics teacher, Wendy Sue Johnson remembers telling students how government is supposed to work.

She took pride in instructing young citizens about core principles of democracy such as how the vote of every person — whether rich, poor, Republican or Democrat — has the same value.

That’s why Johnson, now an Eau Claire school board member and private practice attorney, was particularly dismayed in 2011 to see the Republican-controlled Legislature approve what she considered unfair voting districts intended to dilute the value of Democrats’ votes.

So when retired UW-Madison Law School professor William Whitford called her a year ago to ask if she would join him as a plaintiff in a federal lawsuit seeking to have the courts declareWisconsin’s legislative maps unconstitutional, Johnson eagerly signed on.

“It wasn’t a hard sell for me,” Johnson said. “I’m proud to be standing up for what’s right.”

Johnson is one of 12 state Democrats listed as plaintiffs in the suit filed in July that calls the current state legislative maps “one of the worst gerrymanders in modern American history” and that proponents believe has a chance to guarantee fairer elections across the country.

The first major test comes this week when oral arguments are scheduled Wednesday before a three-judge panel in U.S. District Court in Madison on the state Department of Justice’s motion to dismiss the suit. The motion by DOJ lawyers argued that the suit presents a political question the court can’t answer.

Milwaukee attorney Peter Earle, lead attorney for the plaintiffs, indicated the case could have national implications. He has even said plaintiffs hope it could become the election law equivalent of the landmark Brown v. Board of Education case that led to desegregation of schools.

“We’re pretty confident that one way or the other, this case will end up in the U.S. Supreme Court,” Earle said.

Nonpartisan goal

Representatives of the Wisconsin Fair Elections Project, a campaign to support the lawsuit and end partisan gerrymandering, aim to combine the case with a lawsuit from a state with gerrymandered maps favoring Democrats to eliminate any impression of partisanship. 

“Our goal isn’t just to go after Republicans in Wisconsin,” said Sachin Chheda, the project’s director. “Our intent is to go after gerrymanders of both parties across the country. This is just the first test case.”

With members of both parties agreeing there is no chance Republican legislators will pass a bill calling for Wisconsin to adopt the Iowa model in which redistricting is done by a nonpartisan panel, reform advocates are directing their energy toward backing the lawsuit.

“It is by far the best hope,” said former state Sen. Tim Cullen, D-Janesville.

Cullen and former state Sen. Dale Schultz, R-Richland Center, are co-chairing the Wisconsin Fair Elections Project. The bipartisan pair made the case for redistricting reform last week during a public forum titled “Getting to Fair Voting Maps” at UW-Eau Claire.

Gerrymandering is wrong, Schultz told the roughly 70 people attending the event, because it cheats some voters — both Democrats and Republicans — out of the full value of their vote.

“It robs people of their birthright — an opportunity to be part of a representative democracy,” Schultz said.

‘Sour grapes’

Despite all the lofty talk, state Rep. Kathy Bernier, R-Lake Hallie, the chairwoman of the Assembly Campaigns and Elections Committee, maintained the calls for changing the way Wisconsin handles redistricting are really just “sour grapes” from Democrats, who lost control of the Legislature.

“Did Republicans do the best they could to gain an advantage? Yes, and the Democrats would have done exactly the same thing,” Bernier said.

Democrats controlled the state Senate, state Assembly and governor’s office in the 2009-10 session and thus had the power to change redistricting rules in time for the next reapportionment after the 2010 census, Bernier pointed out.

“Obviously, the Democrats wanted to be able to do it,” she said. “They were caught off guard by losing the majority in both houses and the governorship as well.”

Cullen doesn’t dispute that claim.

“People say Democrats would have done the same thing, which is true, but that doesn’t make it right,” Cullen said, noting that technological advances have made it much easier today for partisan consultants to predict how people will vote and draw district lines to get the election results they seek.

New ground

The reality, Chheda said, is that Wisconsin never has encountered this situation since the Supreme Court’s one person-one vote decision in 1964. The Legislature was split in 1971, 1981, 1991 and 2001, so it either drew lines based on political compromise or relied on the courts to set boundaries. That pattern finally changed in 2011, opening the door for what Chheda called the “most intentionally partisan map in modern American history.”

While the Supreme Court has ruled that overly partisan redistricting can be unconstitutional, justices have never set a standard for determining when that line is crossed. The lawsuit proposes doing that by applying a formula to determine an “efficiency gap” that measures the effect of “cracking” — dividing a party’s supporters in multiple districts so they don’t form a majority — and “packing” — concentrating one party’s backers in a few districts they win by overwhelming margins.

“If you systematically plan cracking and packing, you can cause one party to continually waste more votes than the other,” Earle said, calling such partisan meddling “un-American.” 

Local impact

The 91st Assembly District, represented by Democrat Dana Wachs, is a classic example of packing, Johnson said, because it was redrawn to include almost the entire city of Eau Claire, which includes a large percentage of Democratic voters. By doing that, Republicans took those Democratic voters out of surrounding districts, making them significantly easier for Republicans to win.

Johnson lives on the north side of Eau Claire in a location that previously was part of the 68th Assembly District, represented by Bernier.

“Literally across the street from me is Kathy Bernier’s district,” Johnson said. “Basically, my vote doesn’t matter as much as if I lived across the street, and that’s exactly what Republicans intended. They packed all the Democrats in one district to maximize their chance of winning.”

The result, Johnson said, is that her vote is “essentially wasted.”

The Department of Justice motion contends the Supreme Court already has rejected the gerrymander standard proposed by the lawsuit.

“There is no constitutional right for political groups to obtain a percentage of legislative seats corresponding to the percentage of votes their candidates earn statewide in legislative contests,” DOJ lawyers said in a brief supporting their motion. “As a result, a districting plan does not become unconstitutional because it departs from partisan symmetry or results in more ‘wasted votes’ for the candidates of one party.”

Bernier added that it’s easy for people to criticize redistricting without understanding its complexity, especially as map makers attempt to follow rivers and municipal boundaries when possible.

Wisconsin presents a particular challenge because so many Democrats are clustered in Madison, Milwaukee, northern Wisconsin and Eau Claire, she said. 

Political obstacles

Regardless, Bernier said, the U.S. Constitution requires state Legislatures to create voting maps. So, in lieu of a constitutional amendment, Bernier said she doesn’t want to waste time in the Campaigns and Elections Committee discussing a bill to institute something like the Iowa system, even though she acknowledged not being averse to that concept.

“I wouldn’t even be able to get it through committee, much less the full Assembly,” Bernier said. “My Republican leadership believes whoever has the majority at the time (decennial census results are released) is constitutionally responsible for doing the redistricting.

“They know we may not have a Republican governor or Legislature next time, but that’s a chance they’re willing to take.”

The problem, according to reform advocates, is that the current gerrymandered voting maps are so strongly rigged in favor of the Republicans who drew them that the GOP could have a virtual stranglehold on political power in the state.

“The truth of the matter is this is one-party takeover,” Wachs said of the latest redistricting combined with other recent GOP-backed measures changing election oversight and campaign finance rules and limiting the power of unions, which traditionally back Democrats.

Bernier called such claims overblown.

“Control could flip if people became totally disenchanted with Republican leadership, I assure you,” Bernier said. “In fact, I’m pretty confident that at some point we will have a split Legislature again. And when that happens, I hope all of the same people are around to push for a more bipartisan redistricting process.”

In the meantime, reform advocates say, Wisconsin is stuck with maps in which election results don’t reflect the will of the people. 

Chris Ahmuty, executive director of the nonpartisan American Civil Liberties Union of Wisconsin, stressed last week during a stop in Eau Claire that promoting fair voting districts should not be a partisan issue. He pointed to 2012 legislative election results in which Democrats won only 39 of 99 Assembly seats, despite attracting a majority of statewide votes, as evidence of the unfairness of Wisconsin’s new boundaries.

“When 53 percent of citizens vote for one party, but that party gets 39 percent of the legislative seats, something is askew,” Ahmuty said in a statement after the lawsuit was announced. “No plan is insulated entirely from partisan bias, but elected officials and the courts have an obligation to ensure that the public good is not sacrificed to the self-interest of political parties. Such practices alienate voters and weaken democracy.”

Far-reaching impact

Cullen warned that gerrymandered districts have a host of other negative side effects, such as leading to more partisanship by legislators whose districts are so safe they don’t need to worry about listening to the public or political opponents. Instead, the only opinions that count to such legislators are those of their party leaders, he said.

“One of the consequences of that is the November general election, which most voters think is the one that matters, no longer matters,” he said. “The only election that matters is the August primary.”

This scenario results in less political compromise and more polarization, as party leaders can threaten to run a primary candidate against any legislator who strays from the party line, Cullen said, adding that all of this spurs the anger and disenchantment with government that is sweeping the state and the nation.

Though Schultz acknowledged voting for the current maps when he was still in the Senate that he now hopes the court will overturn, he has no qualms about supporting an effort some people claim could hurt his party.

“If you’re a patriot, you’re going to work to reform things for the people, not for your party,” Schultz said. “This is about doing what’s right for the country.”

The legacy has a chance to last much longer than the court fight.

“This is something people will read about in future civics class textbooks because it does have enormous national consequences,” Schultz said.

For Johnson, the former civics teacher, that prospect is why she was willing to put her name on the lawsuit.

“It the lawsuit succeeds, it’s going to be a really big deal,” she said. “I hope that we will obtain nonpartisan redistricting in Wisconsin and across the nation so that the will of the voters determines who represents us instead of the representatives choosing their voters.”

 

Originally published at Leader-Telegram.

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