Why Court Will Overturn Redistricting

I had the good fortune to serve as a law clerk to the Honorable Thomas E. Fairchild, chief judge of the United States Court of Appeals for the Seventh Circuit, the year after I graduated from the University of Wisconsin Law School. Fairchild was one of the most respected federal judges in the country, and many of his opinions are still cited as precedent. I once asked him the secret to courtroom advocacy, and he said “Matt, make me want you to win. If a judge wants you to win, the judge will find a way to do it.”

The redistricting lawsuit pending in federal court is very likely to result in the court’s overturning the present imbalanced legislative districts, but not for the reasons most people think. The decision itself is likely to be couched in terms of “packing” (loading large Democratic majorities, usually minorities, in safe districts, resulting in overwhelming Democratic margins), and “cracking” (diluting the remaining Democratic votes in what could be competitive districts to ensure a Republican victory no matter whom the Democrats nominate). But the reasons why the three-judge panel will want the redistricting position to win are more profound.

A famous example of how to get judges to want a litigant to win was in the 1954 case of Brown vs. Board of Education, a suit brought to overturn segregation in education. The Supreme Court in 1896 had previously ruled that racial segregation was lawful. The plaintiffs’ expert in the 1954 Brown case testified that in psychological tests, young black girls, when offered the choice of a white or black doll, would take the white doll and reject the black doll. The horror of realizing that young children had been taught to reject themselves powerfully affected the Supreme Court. The justices overturned the 1896 case, and ruled that segregation in public education was no longer constitutionally permissible.

So what is it about the redistricting suit to make the judges want the plaintiffs to win? The answer is the degree to which absolute power has resulted in pathology. Governmental secrecy and the potential for corruption have been reintroduced into Wisconsin’s culture after an absence of a hundred years.

The Republican Party today is no longer a conservative party. It is not the party of Dwight Eisenhower, Warren Knowles, Lee Dreyfus and even Tommy Thompson. If Gov. Scott Walker and the Republican legislators had conducted themselves in a principled way, it’s likely that the judges might simply leave redistricting to the majority party.

But when the Democratic Party receives several hundred thousand more votes statewide in legislative elections, yet gets only 36 out of 99 assembly seats, the judges will pay attention to what effect that’s had on legislation. They’ll see that the Republican majority is controlled by a handful of people in leadership positions, sustained by threats of primaries against Republican legislators who want to keep the status of their offices.

The results have been deliberate injury to the University of Wisconsin by the elimination of statutory tenure, the furtive attempt to change the mission statement and the crippling budget cuts; the overturning of a hundred years of objective civil service hiring; the repeal of public disclosures on campaign contributions; and the clandestine attempt to repeal open records laws.

Absolute power corrupts absolutely. Extreme redistricting does not result in principled conservatives simply being more numerous. It results in a handful of malignant leaders bullying their rank and file to vandalize Wisconsin institutions. Federal judges abhor pathology. They abhor corruption. The extreme imbalance in the Legislature has resulted in a fake, Soviet-style legislature in which a few strongmen hold absolute power and have inflicted great damage on Wisconsin. The judges have the power to do something about that.

Matthew Flynn is a Milwaukee attorney.