Bruce Murphy
Murphy’s Law

The Fight Against Gerrymandering

Advocates hope their Supreme Court case -- now being rewritten -- will succeed.

By - Oct 30th, 2018 11:54 am
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Brett Kavanaugh. Photo is in the Public Domain.

Brett Kavanaugh. Photo is in the Public Domain.

The problem is obvious: Wisconsin is one of the most gerrymandered states in America. A national analysis of all states finds that Republicans will win 12.1 percent more Assembly seats if each party wins 50 percent of the vote statewide, which makes it one of the worst examples of gerrymandering. 

Is there a solution? One remedy is the Iowa plan, adopted nearly unanimously in 1980 when Republicans held control in both houses of the legislature. Both parties feared the other might gain the upper hand in future redistricting efforts, so they supported a plan whereby the non-partisan staff of the Legislative Services Agency (similar to this state’s non-partisan Legislative Reference Bureau) would draw up the districts.  And that has worked very well for Iowa voters, assuring neither party gets an unfair advantage. 

As the good government group, Wisconsin Common Cause, puts it: “We should pick our politicians; politicians shouldn’t pick their voters.” Using that slogan, the group has been pushing state candidates for office to support Iowa’s approach. 

That has had great appeal… for some. Common Cause has announced that 80 candidates for the legislature and two statewide candidates have signed on to support its plea for Wisconsin to adopt the Iowa plan. But just two of the 82 supporters are Republicans, Rep. Jon Plumer of Lodi (42nd district) and Todd Novak of Dodgeville (51st district).

And why should Republicans want this? Gerrymandering has helped give them a massive advantage in the Assembly, so even if Democrats take over the Senate and the governor’s office in the coming election, both distinct possibilities, the Assembly would hold veto power. Thus, the GOP could checkmate any attempt to pass the Iowa plan, or for that matter a Democratic gerrymander to screw Republicans.  

And should the Republicans get lucky and retain Senate control along with reelecting Gov. Scott Walker, they could gerrymander the state for another 10 years. So drop dead, Common Cause.  

It should be noted that Democrats controlled both houses of the Legislature in 2008, under Democratic Gov. Jim Doyle and declined to support a bill pushed by then-Rep. Spencer Black calling for non-partisan redistricting. The reality is that both parties have at times tried to grab an unfair advantage through redistricting. The difference is the advent of computerized data has allowed gerrymandering to maximize a party’s advantage.

Thus, in Vermont, the Democrats get 10.6 percent more seats in the General Assembly with a tie vote between the two parties, that national analysis of gerrymandering found. 

The more permanent remedy to the problem is a U.S. Supreme Court decision to end gerrymandering and assure that all voters have equal power. The advent of computerized data has also made it easy to measure the exact percentage advantage a party has given itself, allowing the courts a way to declare what runs afoul of the constitution and the Supreme Court’s 1962 Baker vs. Carr decision (“one person one vote”) declaring the need for equality in voting.

And Wisconsin has been at the forefront of that issue with a suit against the state’s gerrymandering, Gill v. Whitford, that a federal court ruled had proved the need for a fairer redistricting, only to see, on appeal, a U.S. Supreme Court decision applying the brakes. Conservative lawyers like Wisconsin Attorney General Brad Schimel and Rick Esenberg of the Wisconsin Institute for Law & Liberty, have suggested this could be a death blow to the case. And that was before the retirement of Anthony Kennedy, who had expressed some interest in a standard by which the court could decide what constitutes gerrymandering. His replacement, Brett Kavanaugh, was a long-time Republican operative who may like the fact most gerrymandered states currently favor the GOP. 

But the team of lawyers working with Democrats to overturn Wisconsin’s gerrymandering are not deterred and are working on re-filing the case. One of those is Ruth Greenwood of the Campaign Legal Center in Chicago. Greenwood is “the Australian lawyer trying to fix the US electoral system,” as a fun  story in the Sydney Morning Herald declared.

Greenwood notes the decision written by Chief Justice John Roberts was 7-2 in favor of allowing her group of plaintiffs to refile the case if they could prove their clients had standing — meaning they had been personally harmed by the gerrymander. “The judgement was written by Roberts and he gave very specific instructions on how to prove standing” or “concrete and particularized harm to the plaintiffs,” she notes. 

And her group has followed this to the letter, she says, identifying 40 plaintiffs in 27 Wisconsin Assembly districts that were obviously gerrymandered. And if those districts fall afoul of the law, the entire state would likely need to be redistricted. 

The two dissenting Supreme Court justices, Clarence Thomas and Trump-appointee Neil Gorsuch, voted against allowing a redo of the case, and are likely no votes on any gerrymandering challenge. Given Kavanaugh’s not-so-veiled warning that Democratic activists opposing his nomination may someday get their comeuppance, he might be hard to turn into a yes vote. 

The court will likely rule first on the gerrymandering in North Carolina, where Republican politicians outright admitted their goal was to give their party an advantage. It’s a purple state with more registered Democrats than registered Republicans, but so gerrymandered that the GOP won 10 of 13 congressional seats. With a 50-50 vote, the national analysis shows, Republicans would win 26.8 percent more seats. The gerrymander, moreover, gives most of this advantage to white voters, and dilutes the voting power of predominantly Democratic African American voters. 

Greenwood and company brought a challenge to this gerrymander all the way to the U.S. Supreme Court, which sent it back to the federal appeals court, which ruled the state map was unconstitutional and must be redrawn. That decision has been appealed and will eventually be ruled on by the higher court. 

If they uphold the decision, Greenwood predicts, that will help her team when they bring back the Wisconsin case. “At the very least the 27 districts would have to be struck down,” she predicts. 

But the courts have become increasingly partisan and GOP-appointed Supreme Court justices might like the fact that the majority of gerrymandered states hurt Democrats. Greenwood, however, is very hopeful the court will do the right thing. We’ll see. 

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More about the Gerrymandering of Legislative Districts

Categories: Murphy's Law, Politics

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