Court Watch

Court’s Redistricting Order A Problem?

The solution that Democrats have cheered may not be so simple.

By - Feb 1st, 2017 02:46 pm

How to Steal an election. Image by Steven Nass (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons.

How to Steal an election. Image by Steven Nass (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons.

On November 21, 2016, a panel of three federal judges declared that Wisconsin’s legislative districts violated the 14th Amendment’s equal protection of the laws.

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.

By contrast, the plaintiffs argued against tying the new plan to action by the US Supreme Court. Given the opportunities for delay, they suggested that doing so could result in using the invalid districts for the 2018 election.

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.

In this, the Court was consistent with the early cases against states with very large population variation in legislative districts. The early cases ruled against especially egregious differences, but delayed setting a specific limit. Only later did the Supreme Court settle on a standard—that so long as the difference between the largest and smallest district was less than 10 percent, a plan was presumptively legal.

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.

Categories: Court Watch, Politics

15 thoughts on “Court Watch: Court’s Redistricting Order A Problem?”

  1. Patricia Jursik says:

    Thank you to this author who continues to write about the most critical issue in our Democracy. Once again I beg citizens to read DARK MONEY; the last chapter of the Mayer book is about the dark money (Koch money) dedicated to gerrymandering.
    The court order is a double-edged sword. By sending it back to this legislature (most remain of the original body that created this current map), the Judge is putting the fox in charge of the hen house. Now the Legislature is saying they are going to turn to a law firm for help. Yikes! It was the Priebus law firm of Michael, Best that created the original maps, who required secrecy oaths from our publicly elected representatives, who offer ALEC legislation at every turn. Now these publicly elected officials are refusing to tell the public whom they represent who this law firm is! One can only guess, but I do have a clue.

  2. happyjack27 says:

    Patrick, is your guess the Priebus law firm of Michael, Best?

  3. happyjack27 says:

    It’s odd — law firms are usually consulted to try to keep cases OUT of court. It seems like Best did everything they possibly could to guarantee it WOULD go to court, and they’d LOSE. I mean, I can’t think of anything they missed.

  4. Wisconsin Conservative Digest says:

    This court opinion has no relation to the constitutional law about re-apportionment. You cannot write a law equalizing all the parties cause it changes.
    In the last 50 years, the map has changed dramatically. The law has no portion talking about equalizing the parties.

  5. happyjack27 says:

    “You cannot write a law equalizing all the parties cause it changes.”

    By this logic, the law requiring no more than 10% population difference between districts is invalid.

  6. Wisconsin Conservative Digest says:

    Fro those with limited intelligence: It changes from candidate to candidate: Tosa. Trump lost 16,000 to 10,000, Kooyenga lost by thousand, Sensenbrenner won by 1500, and jojhnson just barely lost. Make sense of that dummies.
    There is nothing in the laws or Constitution to allow for parties.

  7. Vincent Hanna says:

    A blank check to law firms that charge $1,300 an hour?! That’s not exactly fiscally conservative WCD. Did you notice how every GOP legislator asked a question by the JS refused to talk about it and hurried away? Why would they do that unless they know what they did is shady as well?

  8. Patricia Jursik says:

    WCD: Amazing how Conservatives wrap themselves in the flag but when push comes to shove, resort to name-calling (“dummies”). New Rule: Anyone resorting to name calling has lost the argument, the line of reasoning, and the right to add additional comments.

    By the way, everyone of the contributors has “limited intelligence”, limited information, limited insight since none is omnipotent. Back to redistricting: A three panel court did find the packing of districts to be unconstitutional, this is a fact. If you read the last chapter of DARK MONEY you will learn that the use of computers and the creation of logarithms (disclosure, I have limited intelligence as to how computer programmers do this) now allow for hyper sensitive-redistricting plans. Priebus and his firm brought this to WI, kept it secret, required our public Representatives to sign secrecy oaths to be privy to these maps. It is outrageous, one that the League of Women Voters has identified as the key issue, and I believe if the electorate can get informed about will result in an outrage great enough that it will “Throw the Bums Out”.

  9. happyjack27 says:

    Let me summarize WCD’s argument:

    * elections have different vote totals
    * you’re dumb.
    * no laws mention political parties (this is obviously false)
    * therefore, gerrymandering is ok.

    seems legit.

  10. happyjack27 says:

    “the use of computers and the creation of logarithms”

    i believe you meant algorithms.

    an algorithm is a sequence of instructions. for example:

    1. a = 1, b = 2
    2. compare card a and card b, if card b > card a, swap.
    3. increment b.
    4. if b = 52, increment a, set b = a+1
    5. if a < 53, go to step 2.

    is an algorithm that will sort a deck of cards, albeit very inefficiently.

    A logarithm is the inverse function of an exponent ( a number raised to a power).

    If y = b^x, then logarithm(y,b) = x. (spoken: the logarithm of y, base b, is x) for instance, the log of 16 base 2 is 4.

  11. happyjack27 says:

    note: “go to the store and buy some groceries”, technically, is also an algorithm.

    algorithms are not limited to machines.

    the difference between an algorithm and a computer program is that an algorithm is more abstract and independent of context or embodiment.

    a computer program is a specific implementation of an algorithm (or rather, many algorithms), in a specific programming language, on a computer.

  12. Wisconsin Conservative Digest says:

    Happy jack got something right for once. List me the statute that tells us how to apportion for the 9 political parties. And Yes gerrymandering might be something the opposition does not like, on the other side, but historically it is legal and has been for 2 centuries.

  13. happyjack27 says:

    WCD’s new argument:

    * gerrymandering is legal (um, no. scroll up. all the way up.)
    * therefore, gerrymandering is ok.

    i’d say this resembled a toddler’s ethical reasoning skills, but that would be an insult to toddlers.

  14. happyjack27 says:

    Lawrence Kohlberg’s stages of moral development

    Level 1 (Pre-Conventional)
    1. Obedience and punishment orientation
    (How can I avoid punishment?)

    yep. that about sums it up.'s_stages_of_moral_development

  15. happyjack27 says:

    Looks like the GOP are hiring Kirkland & Ellis to defend their gerrymander in U.S. Supreme Court.

    To the tune of $1,300 an hour.

    Paid for by me and you.

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