Opposing Views on Wisconsin's Redistricting Lawsuit, as US Supreme Court Decides Whether to Accept

Jun 16, 2017

The U.S. Supreme Court could announce, the week of June 19, whether it will take up the case involving Wisconsin's legislative maps. 

In many past years, the courts redrew the state Senate and Assembly lines because state government was split along party lines, but in 2011, Republicans had swept into power and did the job themselves. Critics sued, calling the new political boundaries unfair to Democrat voters.

WUWM spoke with attorneys on opposing sides of the legal battle - Ruth Greenwood of the Campaign Legal Center - one entity suing Wisconsin over the maps, and Rick Esenberg of the Wisconsin Institute for Law & Liberty - which defends the new districts.

Greenwood insists, this particular amount of partisan gerrymandering should not be allowed.

“The Legislature moved across the street to a private law firm, where they hold meetings in secret with a very small group of aids, where they drew the line purely for the advantage of the Republican Party. Even the Republican incumbents barely got a say in what was going on, and certainly the Democrats had no say, and then furthermore the public had no say. So, there was certainly this intent to create advantage for Republicans.

"The second part of our test looked at how effective they were. They were trying to get an advantage, and it turns out they really did get an advantage. We can show that. I think our experts said it would take a political earthquake in Wisconsin for you to actually get Democrats back in control of the house (Assembly.) Even though, in 2012, over 50% of the state voted for Democrat candidates, yet 60% of the Legislature ended up Republican.

"The third part of our test (explored whether there was) some justification for this. Were they trying to comply with county lines or, there is this argument some people (use) that Democrats are clustered in cities, so there is no possible way that you can draw a plan that is fair to Democrats. Well, in fact, we showed that there were multiple plans they could’ve drawn that would’ve treated both parties fairly, they just chose not to go with those plans,” Greenwood says.

What about that notion that the party in power wins, and everyone else just has to deal with it?

“I think it’s kind of anti-democratic. I mean, yes, it’s true that the party in power wins, and they get to do their policy and so on, but when it comes to who wins, in a democracy we think that people should have their say. If more people want Democrat candidates, then Democrat candidates should get elected. It’s not a system of proportional representation - it doesn’t have to be one to one, but it has to be not completely skewed,” Greenwood says.

What is at stake here, both if the U.S. Supreme Court takes this up, and if it decides not to?

"If they decide not to take the case, hopefully they will just affirm, so then at least the finding from the three judge (federal appeals) panel will hold (and) the Wisconsin districts would be struck down, and then you could try to (apply to) other states where there are similarly extreme plans.” If the Supreme Court takes it up, then we will actually get a statement from the court that, “this is the standard we’ve been looking for.” They’ll have another chance to say what they said over 10 years ago, where they said partisan gerrymandering is still unconstitutional. So, we’re hoping they will re affirm that, and then also say, “this is a standard we can actually use in multiple states," Greenwood says.

Do you think the state of Wisconsin stands to lose or gain anything?

“Well, it will certainly gain democratic principles if their lines are redrawn. If the Supreme Court upholds the case, then the voters of Wisconsin will be able to go to the polls and actually elect their candidates of choice, and have them represented in the state Assembly. If the case is reversed, then I think that is a real democratic harm, and that will be a real loss for the people in Wisconsin. They will continue to have to vote for state Assembly candidates under these unfair lines," Greenwood says.

On the other side of the legal battle, Rick Esenberg of the Wisconsin Institute for Law & Liberty says he believes the Republican-drawn boundaries are fair and reasonable and should remain in place.

"Democratic voters tend to be more geographically concentrated than Republican voters. Democrats are very, very heavily concentrated in Milwaukee County and Dane County. If you would look at a map of the state by voting outcome, those two areas of the state would be densely blue, but most of the rest of the state would be red with patches of blue. And so you would expect maps that were drawn without any consideration of partisan outcome to be disproportional in the very way that the plaintiffs are complaining about here. And so the question becomes, how much lack of proportionality is somehow too much, and there really is no neutral standard by which to determine that. And so a majority of the Supreme Court has always concluded that they can't figure out a way to do it without themselves making a political judgment about how much is too much.

"In this case, what the plaintiffs have effectively asked the court to do is gerrymander in favor or competitiveness, that is, to draw maps that compensate for the natural disadvantage the Democrats might have because their voters are more geographically concentrated. Well, that's as much a political judgment and partisan gerrymander as the one that the plaintiffs alleged to have occurred," Esenberg says.

We spoke with one of the plaintiffs who told us that one of the problems with the maps -- or I guess probably the biggest problem with the maps -- is that it is impossible for Democrats to win. Is that a fair statement?

"Well, I don't know that it's impossible for Democrats to win, I mean, this claim is often made in these gerrymandering cases, and then you find a couple years later that the party for whom it was "impossible to win" has actually won the election. But here's the thing -- let's assume that it would be very, very difficult for the Democrats to take control of the Legislature. Is that because something unfair has happened, or is that because of the nature of where Democratic voters in the state are?

"If Democratic voters are heavily concentrated in a few locations and we run elections based upon geographic districts that have to be contiguous and compact and of equal population as they do -- and as they were, in these maps drawn by the Republican Legislature in 2011 -- then of course it would be difficult for Democrats -- maybe even impossible for Democrats -- to ever take control of the Legislature. But that's not because anybody did anything unfair, it's just because of the nature of where Democratic voters live.

"And so it's impossible to say whether or not something unfair happened or whether or not the plaintiffs in this case just want maps drawn to compensate for the natural disadvantage that Democratic voters have And if you do that, then aren't you making a partisan and political judgment that is just as much political as the one that the plaintiffs allege to have happened here," Esenberg asks.