Republican Attorney General Brad Schimel wants the U.S. Supreme Court to stay a federal court order to redraw Wisconsin’s Assembly districts by Nov. 1. The districts heavily favor GOP candidates.
But Mark Thomsen, chair of the Wisconsin Election Commission, says a stay would imperil the 2018 elections.
If a stay were granted, what would happen if the high court agrees with the lower courts’ decisions in Whitford v. Gill, which found that the Republican-drawn boundaries are unconstitutional, Thomsen asks.
“The practical considerations weigh heavily against denying the stay, (because) the state’s institutional infrastructure needs to be ready to hold an election using new maps in the event the Supreme Court affirms,” Thomsen said.
To do so, Thomsen says the agency needs to be ready with both the current and the redrawn maps.
The Supreme Court is expected to respond this month, before a summer break, to Schimel’s request and could take action on his appeal. The court could summarily affirm or reverse the lower-court ruling — or agree to hear the case on its merits. The question of whether a stay will be issued remained unanswered as of press time.
At issue in ‘Whitford’
Every decade, states are required to reconfigure their legislative boundaries to reflect demographic changes recorded by the decennial U.S. census. At issue in this case is whether Wisconsin Republicans made it “virtually impossible for Democrats to win,” when they drew maps after the 2010 census, Thomsen said.
The high court in the past has said gerrymandering is a political and not a judicial matter. Nonetheless, it’s open to the possibility that a fair standard might exist that could serve as a conclusive test for determining when a partisan gerrymander crosses the line of constitutionality.
The Supreme Court hasn’t seen such a case yet, but Wisconsin Democrats and good-government leaders throughout the nation believe that Whitford v. Gill is that elusive case they’ve been waiting for.
Two centuries of gerrymandering climax in Wisconsin
The political game of gerrymandering is named for Massachusetts Gov. Elbridge Gerry, who in 1812 signed off on a legislative map that was so contorted to favor his party that it resembled a salamander.
In the more than two centuries since, the high court’s unwillingness to address the issue — combined with sophisticated information technology that has made partisan gerrymandering increasingly easy and effective — has emboldened partisans drawing the maps. Political scientists and legal scholars say some of today’s maps prevent every vote from having equal value.
For instance, Wisconsin’s map packs Democratic voters into as few districts as possible. Remaining Democratic voters are then spread so thinly in Republican-majority districts that votes for their party are, in effect, wasted.
No matter how many Democratic votes are cast, Republicans are predestined to win.
As a result, in 2011 Republicans won an Assembly supermajority of 60 out of 99 seats, despite losing the statewide contest by 174,000 votes. In 2016, the party’s advantage grew to 64 seats — seizing two-thirds of the Assembly even though the partisan statewide vote last year was nearly tied.
In Whitfield, Democrats argue the state’s political maps have created an “efficiency gap” that dilutes their votes.
A three-judge federal panel, ruling on the suit in 2016, agreed, saying the Republican-drawn boundaries were so overtly partisan that they cross the line of constitutionality.
“(The panel) rightfully held that Wisconsin lawmakers drew these maps for the benefit of their own political party, with little regard for the will of the voters,” said Paul Smith, vice president of litigation and strategy at the Campaign Legal Center, which along with co-counsel is representing the 12 voters in the dispute.
Writing for the panel, Judge Kenneth Francis Ripple, a Ronald Reagan appointee, said the GOP-drawn boundaries violated the 14th Amendment’s Equal Protection Clause and the plaintiffs’ First Amendment freedom of association.
But Schimel requested the stay nonetheless, because he insists the state’s maps are indeed constitutional, despite the two rulings to the contrary.
Former Wisconsin Attorney General J.B. Van Hollen made a similar call on marriage equality in 2014. He insisted the state’s same-sex marriage ban was constitutional, despite numerous lower court decisions finding such bans unconstitutional. Van Hollen took his litigation to the U.S. Supreme Court — for strictly political reasons according to observers in both parties — and, when he lost, wound up paying more than $1 million of taxpayer money to the ACLU of Wisconsin in legal fees.
The windfall delighted the ACLU.
Potentially far-reaching decision
Legal scholars throughout the country say Whitford is the strongest case yet challenging partisan gerrymandering. What the Supreme Court decides could be a game changer in the way many other states with single-party rule draw political maps, including at least a dozen states dealing with gerrymander cases.
One of those states is North Carolina, where — earlier this spring in a different type of gerrymandering case — the Supreme Court upheld a lower-court ruling that two North Carolina congressional districts were drawn with too much reliance on race.
“The court made it clear that it would not allow states to get away with an unlawful racial gerrymandering by claiming that it’s ‘just politics,’” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.
But Justice Anthony Kennedy dissented on that ruling, which alarmed Whitford supporters. They’ve been counting on Kennedy, the court’s one swing vote, especially since he made comments in a 2004 case suggesting that the court would be open to a judicial standard for deciding gerrymandering cases.
But in the North Carolina case, Kennedy instead signed on to Justice Samuel Alito’s dissent, which characterized gerrymandering as a time-honored political tactic.