Court’s Redistricting Order A Problem?
The solution that Democrats have cheered may not be so simple.
A 2-1 majority found that the clear purpose of the redistricting plan, contained in Act 43, was to entrench Republicans in power in Wisconsin. Inadvertently the drafters of the plan supplied abundant evidence of the partisan aims. The ruling describes the process of drafting a series of plans aimed at giving the highest possible advantage to Republicans.
Under these draft plans—Joe’s Basemap Basic and Joe’s Basemap Assertive—the drafters expected Republican candidates to win 52 and 56 seats, respectively, compared to the 49 expected under the Current Map. The Current Plan’s 40 safe and leaning Republican districts improved to 45 and then to 49, while the number of swing districts dwindled from 19 to 14 to 12. … Apparently not satisfied with the political performance of these early plans, the drafters produced and evaluated at least another six statewide maps prior to their meeting with the Republican leadership in early June 2011. Each of these maps improved upon the anticipated pro-Republican advantage generated in the initial two draft plans.
It also found that the product of this process succeeded in its purpose, basically entrenching Republicans for the whole decade, setting up a barrier that Democrats could not overcome under any reasonable circumstances. As a result of the plan, Democrats faced a huge asymmetry in the ability to translate votes into seats in the legislature. One metric to measure asymmetry, and thus gerrymandering, is the efficiency gap, which is used to calculate the number of votes that are “wasted” by each side.
While ruling that Act 43 violated the Constitution, the Court did not order a remedy. Instead it asked each of the parties to suggest a remedy. The latest order contains the Court’s remedy.
Both parties agreed that the Court should enter an injunction against the continued use of the existing districts. This would allow the Defendants to appeal the decision to the US Supreme Court. However they disagreed on two issues: who should be responsible for developing the replacement plan and what its timing should be.
The Defendants argued the new plan should be drafted by the Legislature. As to timing, they argued against deadlines, that the revised plan should not be due until after the Supreme Court considered the plan and ruled on the appeal.
The plaintiffs’ preferred a remedy in which the Court assumed responsibility for creating a new plan. They suggested three possible mechanisms: the appointment of a special master, the use of an outside expert, or inviting interested parties to submit plans and selecting the best of them.
If, instead, the court asked the Legislature to come up with a plan, the plaintiffs advocated strict deadlines for the submission of the revised plan, to allow sufficient time for the Court to evaluate it, and, if the plan turned out to be unsatisfactory, design a replacement in time for the 2018 election. To make sure the plan would be available for the 2018 election, they suggested, the Legislature’s revised plan should be due by April 1 of this year.
The recent court order gives something to each side. It enjoins the defendants from using the districting plan embodied in Act 43 in all future elections. This completes the legal process, allowing the defendants to appeal the decision to the Supreme Court.
The Court rejects the Plaintiffs’ request that it take responsibility for crafting a new plan. Noting that, before adopting Act 43, the legislature’s consultants generated a series of alternative plans, each one more favorable to Republicans than the previous, the Court suggests that one of these alternatives might be allowable, thus creating little or no work for the Legislature.
Finally it rejects the Defendants’ request to wait for a Supreme Court decision before setting a deadline. Instead it requires the Legislature to submit a new plan by November 1, 2017.
The attractiveness of this very mixed order to the Court is understandable. It allows the judges to argue they are minimizing judicial intrusion on the state. In addition, it may have helped to pick up the support of the judge who dissented in the original decision that Act 43 represented unconstitutional gerrymandering, allowing for a unanimous, 3-0 decision.
However, in their desire to minimize judicial intrusion, the Court may be heading for more trouble. How much gerrymandering is too much? While several of the expert witnesses at the original trial suggested an efficiency gap above 7 percent was a clear sign of gerrymandering, the Court did not set a specific limit. Rather, it concluded that Wisconsin’s high efficiency gap, combined with the record of picking the plan that most favored Republicans, made it clear that Act 43 represented unconstitutional gerrymandering.
Given its record, it is unlikely that the Wisconsin Legislature will make a good-faith effort at fair redistricting, one that treats both parties symmetrically. Rather, it will try to develop a plan that favors Republicans but less blatantly than Act 43. This may force the Court to rule on the question of how much gerrymander is too much before it is prepared to do so.
By allowing the Legislature to wait until November 1st to submit its proposed redistricting plan, the Court may have created a time crunch. April 15, 2018, marks the first day that candidates for the legislature can begin to circulate their nomination papers. They need to know district boundaries well before then.
Following the November 1st submission deadline, the Court will need to determine whether the plan passes muster. Given the Legislature’s record, this is likely to be a close call, with the Legislature trying to get the largest Republican advantage it thinks it can get away with. If the Court decides the revised plan is unfair, it will have to devise and implement a process to develop a replacement.
It is easy to forget that the underlying issue with redistricting is not a partisan one. Rather it is about assuring that voters have a true choice in elections. If either party is able to entrench itself, democracy is diminished and the voters are cheated.