A Look at How Wisconsin's U.S. Supreme Court Partisan-Gerrymandering Case is Shaping Up

Jun 12, 2018

Legal experts and regular citizens alike are awaiting the United States Supreme Court decision in a landmark redistricting case.

In Gill v. Whitfordplaintiffs argued that Republican legislators shaped Wisconsin's political boundaries in a way that was discriminatory to Democrats. 

When it comes to drawing state legislature voting districts, which happens every 10 years after a census, there are all sorts of rules.

Legislators must consider population size, the Voting Rights Act, and a series of state criteria.

But the question of how much legislators can use partisan politics in shaping the districts will possibly be decided in the next few weeks.

Annabelle Harless is legal counsel for the Voting Rights and Redistricting with the Campaign Legal Center. She says that over the past decade, Republicans in Wisconsin drew districts with partisanship directly in mind. She says they did that through so-called “packing” and “cracking.”

As she puts it, "you can pack voters into districts in order to limit their influence, and then you can crack them into districts so that they are scattered around and also aren’t as able to use their voice when they vote."

She says, for example, the Republicans "packed" certain voting districts in Racine and Kenosha together to create fewer traditionally blue legislative districts. She says they "cracked" some voters from the Milwaukee area into traditionally red districts in outlying counties like Waukesha or Ozaukee.

Rick Esenberg, of the conservative Wisconsin Institute for Law and Liberty, says that there was nothing wrong with what the Republicans did. "When we think of gerrymandered maps, we think of sort of oddly shaped districts," he says. "We don’t have any of that here. None of the traditional indications of gerrymandering are present."

He says "gerrymandering" came from salamander, alluding to the strange shape of the famous "gerrymander" in Massachucetts by founding father Elbridge Gerry. He says it's traditionally been about misshapen and non-contiguous districts, not seen here, he says.

Esenberg says that the party in power has historically tried to obtain an advantage through redistricting. He says the Republicans in Wisconsin are just capitalizing on the advantages that they already have. He says that to rectify that by the means the plaintiffs are suggesting would be a sort of reverse-gerrymander to favor Democrats, who are traditionally concentrated in urban environments. 

But the maps’ critics sued, and the case went all the way to the U.S. Supreme Court.

During deliberations on the Wisconsin case, the Court accepted for review a Maryland case that also dealt with redistricting. That case involves Democrat-favored redistricting of one congressional district.

READ: How Much Partisan Gerrymandering is Allowed? Wisconsin Case Could Set Precedent

One reason SCOTUS may have agreed to hear the Maryland case with the Wisconsin case is that because in one case, the gerrymandering is alleged to have negatively affected Democrats, in the other, it was alleged to have impinged on Republicans. Also, the Wisconsin case deals with state-wide, state-legislature redistricting, whereas the Maryland case deals with redistricting of one congressional district.

Esenberg says that the Court may have agreed to take the Maryland case because it could rule on gerrymandering on narrower grounds.

The justices are expected to rule this month, yet, a Supreme Court decision this June is not set in stone, says UW political science professor Barry Burden. "One possibility is that they will issue no opinions this month, after all, and they will instead have a rearguing of the cases in the fall," he says.

He says there’s another redistricting case from North Carolina waiting in the wings, and that the court may want to hear them all at once and try to set a new precedent going forward based on the three very different cases.

He says another option is that they issue a ruling, and find the redistricting constitutional. He says there would be wide-ranging impact from this. “The dominant party in each state will be able to take full advantage of the map-drawing process, knowing that there are essentially no limits, if the court has told them that in these cases."

He says that if the Court rules and finds the redistricting unconstitutional, there are at least three options. One possibility is that the legislature is instructed to redraw the maps, with judicial review.

Another option is that someone is hired by the court to redraw the maps. A third option is that a federal district court redraws the maps.

But Burden says because we’re so close to the fall elections, none of these changes would be put into place before then.