Court Strikes Down Wisconsin’s ‘Partisan Gerrymander’

MADISON, Wis. (CN) – Republican redistricting crossed the line into unconstitutional gerrymandering in Wisconsin, a divided panel of federal judges ruled Monday, handing a rare victory to Badger State Democrats.

Republican Attorney General Brad Schimel has vowed to appeal the 2-1 decision, authored by a Reagan appointee, that found the party orchestrated a scheme of lasting control of state government via its 2011 plan.

Twelve Democratic voters filed a federal civil rights lawsuit in July 2015 against state election authorities, alleging Republicans met in secret to create a redistricting plan giving them an unfair advantage, which they then rushed through the Legislature.

The state’s attempts to get the lawsuit thrown out were unsuccessful, and the case was ultimately heard by Seventh Circuit Judge Kenneth Ripple, who authored Monday’s lead opinion.

Joining Ripple on the three-judge panel of the U.S. District Court for the Western District of Wisconsin were District Judge Barbara Crabb and Chief District Judge William Griesbach, who dissented.

Election district challenges go before a three-judge panel by default, and appeal petitions go directly to the U.S. Supreme Court.

For the first time, a court accepted a test that can be used during any future election anywhere in the county to determine the difference between honest redistricting and partisan gerrymandering, said Ruth Greenwood of the Campaign Legal Center in a press call Tuesday. The center represented the plaintiffs in the lawsuit.

This test comprises three parts: proof of a discriminatory intent and discriminatory effect, and the lack of a clear justification for either.

Greenwood, the deputy director of redistricting at the center, said the decision is likely to pass Supreme Court muster because they can count on four votes in the panel’s favor, plus one from Justice Anthony Kennedy, who has in the past bemoaned a lack of “actual election results” showing prejudice.

In Wisconsin, Ripple said the state’s natural geographic bias toward electing Republicans – explained by the high concentration of Democratic voters in smaller areas – does not explain the party’s vast advantage following the passage of 2011 Wisconsin Act 43.

“[T]he plan’s drafters created and passed on several less burdensome plans that would have achieved their lawful objectives in equal measure,” Ripple wrote in Monday’s ruling.

The judges considered, for the first time, the plaintiffs’ measure of the “efficiency gap” in determining unfair bias in partisan redistricting.

This measure counts “wasted votes,” which are either votes cast in excess of what a candidate needs to win or cast for a candidate that ultimately loses, against total votes cast.

While Act 43 resulted in a 13 and 10 percent gap in favor of Republicans across the 2012 and 2014 elections, respectively, the plan created by the plaintiffs’ expert, professor Kenneth Mayer, was able to reduce that to 2.2 percent, albeit still in favor of Republicans, based on the state’s “modest” natural leaning.

The way the new map was crafted means Republicans will enjoy control of the state government for years to come, Ripple found, not just in the past two elections cited in the suit.

Further, the fact that Republican staff members worked with attorneys and experts to secretly craft the new districting plan precludes the possibility that they were creating a map without partisan bias, the ruling states.

“We reject as not worthy of belief the assertion that the drafters would have expended the time to calculate a composite score for each district on the statewide maps simply to gain an historical understanding of voting behavior,” Ripple wrote.

In his dissent, the Republican-appointed Judge Griesbach noted that the Supreme Court upheld a redistricting under similar circumstance in Indiana.

But the difference is that, in Wisconsin, the drafters of the new map paid “heed to all of the principles that have traditionally governed the districting process, such as contiguity, compactness and respect for political subdivisions like counties and cities,” Griesbach wrote.

“And unlike Indiana’s plan, there is no allegation that the Republicans drew any of the many kinds of unusually-shaped districts that are traditionally seen in gerrymandering cases,” he added.

Ripple found for the majority that an adherence to traditional district mapping by appearance does not guarantee a fair distribution of votes, as the state claimed, thanks to advancements in mapping software.

“A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander,” Ripple wrote.

Still, Griesbach wrote, Republicans would likely have won control of the state Legislature in 2012 and 2014 even without the redistricting, so the legal challenge is a “poor vehicle” for remedying injustice.

Rather than presenting a new map, the court has ordered both parties to submit alternative remedies to the constitutional violation within 30 days of Monday’s order. They must reply to one another’s remedies 15 days later.

Apart from promising an appeal, the Wisconsin Department of Justice said it is evaluating the 159-page opinion, and told voters that the decision does not affect the Nov. 8 election.

The Campaign Legal Center spent Monday celebrating the win and hosted a press call Tuesday.

Peter Earle, the plaintiffs’ local counsel, referred to the redistricting as “disgraceful shenanigans” by Republicans and praised the panel for “removing the cancer” of partisan gerrymandering that has effected two statewide elections.

As far as remedies are concerned, the legal team remained tight-lipped, refusing to address one reporter’s question about the possibility of special elections. Greenwood and Earler cited attorney-client privilege and said they would be discussing the matter with their clients.