Case to overturn Wisconsin’s overtly partisan political districts moves one step forward in court

Louis Weisberg, Staff writer

Democrats challenging Wisconsin’s 2010 political map in court reached a small milestone recently when they filed a rebuttal to state Republicans’ motion to dismiss the case. 

Sachin Chheda, director of the Wisconsin Fair Elections Project, expects the case  — known as Whitford v. Nichols — to get a hearing later this fall by an appeals court panel. The side that loses probably will appeal to the U.S. Supreme Court, which has never ruled in a case challenging a political map due to overt partisanship, as this case does, Chheda said.

In the past, the high court has found maps unconstitutional for being drawn in a way that discriminated against minority voters or failed to uphold the principle of “one-person-one-vote.”

“We think we have a strong case (and) we hope to get past the motion to dismiss and get to the trial stage so we can have a full examination of the issues,” Chheda said. “We’re trying to establish a new constitutional standing. The Supreme Court has said that there could be an instance in which a map is too partisan to be constitutional. They’ve never had a measurement by which they can make this judgment. We’re proposing that measurement.”

Chheda is hopeful that a fair and politically neutral map will be in place in time for the presidential election in November 2016.

GOP’s total control

After winning both chambers of the Legislature and the Governor’s Mansion in a tea party wave that swept the nation, Wisconsin Republicans had total control over the process following the 2010 census. Whitford v. Nichols argues that Republicans gerrymandered the state’s political boundaries to such an extent that they pre-ordain the outcome of elections in the state.

And, indeed, the Wisconsin map is so partisan that Democrats won 53 percent of the statewide popular vote in the state’s 2012 midterm elections, yet Republicans gained 61 percent of the state’s legislative seats. Republicans also won 55 percent of contested state Senate seats with only 45 percent of the vote.

“My rights as a voter are being violated,” said retired university professor Bill Whitford, one of the plaintiffs in the Wisconsin case. “If my vote counted as much as each one of my fellow citizens, I would be able to affect the shape of the Legislature. But I can’t, because they’ve decided through these maps that I simply don’t count.”

In 2010, Wisconsin Republicans and their attorneys used a mathematical tool called the “efficiency gap” to dilute the votes of Democrats in order to ensure Republicans win more district-level elections, according to the plaintiffs in Whitford v. Nichols and their attorneys.

“Wisconsin voters want fair elections, where every vote counts for something and every voice is heard,” said Peter Earle, the lead trial attorney for the plaintiffs, speaking at a press conference announcing the lawsuit in July. “When one party gains control of the levers of government and then stacks the deck in their favor to keep control, wresting control from the people, that’s contrary to Wisconsin’s tradition of fairness and the requirements of the Constitution for voters and parties to be treated equally.”

The Isthmus reported that GOP lawmakers created the boundaries in secret using private law firms that were paid by taxpayers. GOP legislators, according to the article, were made to sign oaths of secrecy before they could view their own redrawn districts.

Such behavior prompted a group of Democrats to sue the state, arguing they were the targets of political discrimination at the hands of Republican lawmakers.

“This lawsuit is designed to return elections in Wisconsin and across the country to fair contests,” Earle said. “Legislative elections in Wisconsin have become increasingly meaningless. We believe that we now have a standard that the courts can use and that will gain the support of a majority of the Supreme Court, to overturn gerrymandered maps. We have an opportunity to make a major change in how politics works in the United States and help end the partisan gridlock that grips the nation.”

The plaintiffs cited one study that reviewed nearly all the redistricting plans since the 1970s and found Wisconsin’s to be one of the most gerrymandered.

National Issue

The problem is national in scope: In 2012, Republicans maintained a 33-seat majority in the U.S. House, even though GOP candidates as a group got 1.4 million fewer votes than their Democratic opponents and President Barack Obama was re-elected by an Electoral College landslide.

Today the nation has the largest number of state governments run by Republicans since the 1920s. Observers also say the nation has an historic level of lawsuits over the political maps they drew.

The numbers are staggering: In 2011, 428 congressional districts in 43 states were ordered redrawn, along with 7,382 state legislative districts and hundreds of thousands of local district boundaries. Democrats were at fault for drawing 44 gerrymandered congressional districts and 885 state legislative districts. Republicans were responsible for nearly five times the number of district boundaries as Democrats were.

Courts have rejected all or part of redistricting plans in at least nine states. And courts had to draw the lines themselves in 10 states, due to legislative stalemate, according to Loyola Law School.

Courts this year are likely to draw new maps in Florida and Virginia after legislators in those states failed to agree on new maps to replace earlier ones thrown out by judges. Alabama may need to redraw its district lines after the Legislative Black Caucus went to court arguing that Republican state legislators drew them to reduce the voice of minority voters.

Redistricting plans have also been challenged legally in North Carolina, Virginia, Maryland, Texas, Arizona and Rhode Island.

What is gerrymandering?

Following the U.S. census at the start of each decade, boundaries for political districts must be redrawn to reflect population shifts. Though in some states commissions are responsible for drawing new congressional and state legislative maps, most states, including Wisconsin, allow state legislators to do the job.

Drawing legislative districts to give an edge to one party, commonly called “gerrymandering,” has been going on in the United States for at least two centuries. Most states don’t explicitly prohibit it. The term “gerrymander” comes from the name of 19th-century Massachusetts Gov. Elbridge Gerry, who signed into law an unpopular redistricting plan that included one state senate district shaped like a salamander.

— Stateline and The Associated Press contributed to this article.