Wisconsin Gerrymandering Case Heard by High Court

Last November when a U.S. federal court struck down Act 43, the redistricting plan secretively drawn up by Republican legislators in 2011, as an example of partisan gerrymandering, it set the case on course for the U.S. Supreme Court. Justices began hearing the Wisconsin redistricting case on Tuesday.

In last year’s decision, federal appeals court senior Judge Kenneth Ripple, an appointee of President Ronald Reagan, wrote, “We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.”

In the first election after the Republican redistricting, Republicans earned only 48.6 percent of the vote in the 2012 election, yet won a 60-39 seat majority in the Assembly. Republicans continued their advantage to 63 and 64 seats, respectively, in 2014 and 2016, despite a statewide vote that was nearly tied between the two parties.

“Republicans thus wield legislative power unearned by their actual appeal to Wisconsin’s voters,” said one of the 32 amici curiae briefs filed in the case.

A total of 51 briefs were filed in this case, including 32 against gerrymandering. One was filed by two social scientists, one of whom, Prof. Keith Gaddie from the University of Oklahoma, was hired by Wisconsin Republicans in 2011 to design and run computer simulations of districting map alternatives and data analysis that he then provided to mapmakers, who used the technology, Gaddie contends, in undemocratic redistricting.

State attorneys argue there is no legal way to measure gerrymandering and that Wisconsin’s recent electoral results are “a reflection of Wisconsin’s political geography, where Democrats concentrate in urban areas like Madison and Milwaukee, as well as incumbency advantage,” according to a jurisdictional statement submitted by Wisconsin Attorney General Brad Schimel, Chief Deputy solicitor Ryan Walsh, Solicitor General Misha Tseytlin (also listed as counsel of record), two more deputy solicitors general and an assistant attorney general.

The U.S. Supreme Court has never struck down a partisan redistricting case. It’s a case being closely watched by the entire country.

Texas Attorney General Ken Paxton is one of the 19 amicus briefs in support of the State of Wisconsin’s stance. He is defending his state in a separate redistricting case that alleges voter discrimination against black and Latino voters.

“This will expose every state to litigation under a legal standard so indeterminate that any party that loses in the legislature has a plausible chance of overriding that policy decision in the courts,” Paxton wrote in his brief.

A report by the Brennan Center for Justice found seven states with political bias caused by single-party control:  Michigan, North Carolina and Pennsylvania were identified as having extreme levels of partisan bias; Florida, Ohio, Texas and Virginia were identified as having less severe partisan bias.

The report notes that redistricting done by “commissions, courts and split-control state governments exhibited much lower levels of partisan bias, and none had the high levels of bias persisting across all three of the elections since the 2011 round of redistricting.”

The court will be looking at three areas:

1. Was there discriminatory intent in drawing the districts?
2. Does the plan have a durable effect – will it entrench the same majority for the decade?
3. Is there a neutral explanation for the way the lines are drawn, such as the state’s geography?

Plaintiffs argued that technology now allows courts to determine when partisan redistricting has taken place – which would be the test the state says is missing in determining gerrymanderying.

A decision is expected later in the Supreme Court term.