The Future of Wisconsin Gerrymandering
An inexplicable U.S. Supreme Court decision leaves door open for GOP mischief.
In writing for the court’s five to four majority, Chief Justice John Roberts made it clear that both “districting plans at issue here are highly partisan, by any measure.” Here is a taste of his description of the North Carolina gerrymander:
The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. … As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” … He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did “not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.”
Roberts is no kinder to the work of Maryland Democrats:
The Maryland Legislature—dominated by Democrats—undertook to redraw the lines of that State’s eight congressional districts. … The Governor later testified that his aim was to “use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by flipping” one district. … To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district.
It’s worth noting that this stance is very different from that taken by the Wisconsin Republicans. They continued to claim that their gerrymander resulted from the state’s geography.
Roberts dismisses one of the chief arguments of the gerrymander defenders, noting that they:
… suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. … We do not agree. In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts.
Thus, the courts have already crossed that Rubicon.
Taken along with the earlier Wisconsin case, Gill v. Whitford, the Rucho decision represents a kind of bait and switch. In Whitford, “we held that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly ‘cracked’ or ‘packed’ district.” And so lawyers representing Wisconsin’s Democrats did just than, only to see the standing question largely ignored in Rucho.
Why, then, does Roberts conclude the courts should not get involved with partisan gerrymanders? His decision revolves around an exaggerated view of the difficulties involved.
The “central problem” is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.”
But both racial gerrymandering and setting equally sized districts also require judgment calls.
… the fact that such gerrymandering is “incompatible with democratic principles,” does not mean that the solution lies with the federal judiciary … partisan gerrymandering claims present political questions beyond the reach of the federal courts.
In her dissent Justice Kagan skewers Roberts’ argument:
After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.
Joined by Justices Ginsburg, Breyer, and Sotomayor, Kagan continues:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences.
So the only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy.
Roberts argues that others, either Congress or others, may have a remedy. For example,
The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering.
Unmentioned is that so long as Republicans control the US Senate, this bill will go nowhere.
Likewise, state efforts to set up independent commissions face serious obstacles, including from Roberts himself. He joined a dissent that would have blocked a commission adopted by a majority of Arizona voters.
Furthermore, many states–like Wisconsin–lack any provision for a referendum that would allow voters to establish a commission over the opposition of legislators who benefit from gerrymandering. Even where voters have that ability, efforts to take redistricting out of politics face legal challenges from those benefiting from gerrymandering. In Michigan, for instance, a federal lawsuit challenges the nonpartisan redistricting commission established by a voter-approved amendment to the state constitution. If successful, this challenge could affect other states, such as California, with similar commissions.
Opponents of gerrymandering should expect little relief from the federal courts, at least with the present justices. Probably the best route is to exploit the bipartisan unpopularity of gerrymandering. For example, this January’s Marquette poll asked whether responsibility for redrawing maps of legislative districts should rest with the state legislature and governor or a non-partisan commission.
On this issue, at least, Republican voters are far more pro-democracy than the current class of Republican politicians. The unpopularity of gerrymandering helps explain why pro-gerrymandering politicians like former governor Scott Walker accuse gerrymander opponents of gerrymandering. Consider the following statement posted on the National Republican Redistricting Trust website:
Democrats, led by Barack Obama and Eric Holder, will stop at nothing to gerrymander Democrats into permanent majorities. They believe the courts, not the voters, should pick the winners and losers in our elections and that the ultra-liberal representatives they put into office will pass their radical left-wing agenda.
Governor Scott Walker knows how important it is that we fight back before all our pro-growth reforms are wiped away. Join Governor Walker and the NRRT to fight back against the Democrats’ nationwide power grab.
The Democrats are laser-focused on reversing Republican gains in redistricting control and imposing their anti-democratic extreme gerrymandering schemes across the country.
Given that the Republican party has recently evolved into the gerrymandering party, it is easy to forget that politicians from both parties both practiced it. Roberts quotes Democratic Congressman Steny Hoyer, the US House majority leader, describing himself as a “serial gerrymanderer.”
The unpopularity of gerrymandering among voters may help explain the fate of the recent suggestion that the legislature could redistrict Wisconsin by joint resolution, thus cutting out Governor Evers, allowing the Wisconsin gerrymander to extend over the coming decade. To do so would require reversing a 1964 decision in State Ex Rel. Reynolds v. Zimmerman, in which the Wisconsin Supreme Court declared that:
The apportionment of both houses of the legislature is vital to the functioning of our government. There is just as much reason for considering it as one of the basic functions that requires full legislative treatment as any other major phase of government activity which admittedly requires joint action by the legislature and the governor.
The quick denial by Republicans of any intention to bypass the governor may reflect the unpopularity of gerrymandering. Yet a comment by Rick Esenberg that a joint resolution is “the only way out of … an assured impasse” suggests that Republicans may bring the idea back. After all, impasses are usually considered bad.
The present trend in which Republicans defend gerrymandering and Democrats are the party of nonpartisan districting, may hold dangers for both the anti-gerrymandering cause and for the Democratic party at the national level. It could lead to a situation where the partisan split in blue states reflects the actual support among voters, but in which Republicans win extra seats in red states because of gerrymandering.
More about the Gerrymandering of Legislative Districts
- 23 Advisory Votes on Gerrymandering - Matt Rothschild - Mar 25th, 2020
- City Hall: Ballots Won’t Have Duplicate Gerrymandering Questions - Jeramey Jannene - Feb 27th, 2020
- Did Gerrymandering Kill Medicaid Expansion? - Erik Gunn - Feb 25th, 2020
- Data Wonk: The Republicans’ Gerrymander Scheme - Bruce Thompson - Feb 5th, 2020
- The State of Politics: Redistricting Fight Is One Year Away - Steven Walters - Feb 3rd, 2020
- Hesselbein Advocates for Fair Maps Constitutional Amendment - State Rep. Dianne Hesselbein - Jan 7th, 2020
- ‘Fair Maps’ Groups to Train Activists - Rob Mentzer - Nov 8th, 2019
- City Hall: City Voters Will Get Gerrymandering Referendum - Jeramey Jannene - Oct 16th, 2019
- Majority of Wisconsin Wants Non-Partisan Redistricting - Ruth Conniff - Oct 2nd, 2019
- Legislation on redistricting ballot issue moves forward - Ald. Cavalier “Chevy” Johnson - Sep 17th, 2019
- Data Wonk: Gerrymandering Is Built on Lies - Bruce Thompson - Sep 12th, 2019
- Data Wonk: The Future of Wisconsin Gerrymandering - Bruce Thompson - Aug 14th, 2019
- Republicans Deny New Gerrymander Plan - Ruth Conniff - Jul 30th, 2019
- GOP Could Bypass Evers, Gerrymander Again - Ruth Conniff - Jul 29th, 2019
- Op Ed: The Game is Rigged in Wisconsin - Spencer Black - Jul 21st, 2019
- Gerrymandering Foes Push Reform - Erik Gunn - Jul 17th, 2019
- Rep. Robyn Vining Continues Fight for Fair Maps - State Rep. Robyn Vining - Jul 16th, 2019
- Statement on Nonpartisan Redistricting Reform Bill - State Rep. Lisa Subeck - Jul 16th, 2019
- Gerrymandering Bill is Bipartisan - Laurel White - Jul 12th, 2019
- Op Ed: Redistricting Now Up to Citizen Action - Jay Heck - Jul 2nd, 2019
- Rep. Robyn Vining Says Fight for Fair Maps Is Not Over - State Rep. Robyn Vining - Jun 28th, 2019
- U.S. Supreme Court Allows Gerrymandering - Laurel White - Jun 28th, 2019
- Statement on U.S. Supreme Court decision on Partisan Gerrymandering - Fair Elections Project - Jun 27th, 2019
- Waupaca County Opposes Gerrymandering - Matt Rothschild - Apr 29th, 2019
- 45 Counties Want to Ban Gerrymandering - Wisconsin Democracy Campaign - Apr 19th, 2019
- Data Wonk: Walker Seeks to Gerrymander America - Bruce Thompson - Apr 3rd, 2019
- Murphy’s Law: The Arrogance of Robin Vos - Bruce Murphy - Mar 21st, 2019
- Data Wonk: The Gerrymander Wars March On - Bruce Thompson - Mar 20th, 2019
- The State of Politics: How Evers Would End Gerrymandering - Steven Walters - Mar 18th, 2019
- Evers’ Budget Will Include Nonpartisan Redistricting Process - Shawn Johnson - Feb 27th, 2019
- Representative Subeck Applauds Governor Evers’ Plan to Ensure Fair Election Maps - State Rep. Lisa Subeck - Feb 26th, 2019
- Rep. Hesselbein Supports Governor Evers’ Fair Maps Plan - State Rep. Dianne Hesselbein - Feb 26th, 2019
- Rep. Spreitzer Supports Gov. Evers’s Redistricting Reform - State Rep. Mark Spreitzer - Feb 26th, 2019
- Statement on Governor Evers’ announcement he will include nonpartisan redistricting reform in his proposed budget - Wisconsin Fair Elections Project - Feb 26th, 2019
- Rep. Robyn Vining Embraces Gov. Evers’ Inclusion of Redistricting in Budget - State Rep. Robyn Vining - Feb 26th, 2019
- Op Ed: Why We Oppose Gerrymandering - Andrea Kaminski - Feb 20th, 2019
- Murphy’s Law: Republicans Oppose Gerrymandering - Bruce Murphy - Jan 29th, 2019
- Op Ed: Gerrymandering Costs Taxpayers Millions - James Rowen - Jan 23rd, 2019
- Data Wonk: Gerrymander is Alive and Well - Bruce Thompson - Dec 12th, 2018
- Board Adopts Supervisor Moore Omokunde Proposal to Decriminalize Marijuana - Sup. Supreme Moore Omokunde - Nov 6th, 2018
- Murphy’s Law: The Fight Against Gerrymandering - Bruce Murphy - Oct 30th, 2018
- Democrats Refile Redistricting Suit - Shawn Johnson - Sep 16th, 2018
- Amended Whitford Complaint Highlights Harm Caused by Wisconsin’s Partisan Gerrymander to 40 Plaintiffs Across 34 Districts - Campaign Legal Center - Sep 14th, 2018
- The State of Wasted Votes - Malia Jones - Jul 2nd, 2018
- Data Wonk: Can Democrats Still Contest Gerrymander? - Bruce Thompson - Jun 27th, 2018
- The State of Politics: Democrats Rejected Redistricting Reform - Steven Walters - Jun 25th, 2018
- Supreme Court Punts on Gerrymandering - Shawn Johnson - Jun 18th, 2018
- Republican State Leadership Committee: The Efficiency Gap is “Sociological Gobbledygook” - Republican State Leadership Committee - Jun 18th, 2018
- Response to Gill v Whitford decision to remand back to trial court - Fair Elections Project - Jun 18th, 2018
- The Art Of Gerrymandering Milwaukee - Malia Jones - Jun 9th, 2018
- The Push for Nonpartisan Redistricting - Cathleen Draper - Jun 5th, 2018
- U.S. Supreme Court Nears Decision on Wisconsin Redistricting Case - Cathleen Draper - Jun 2nd, 2018
- Data Wonk: Many Republicans Oppose Gerrymandering - Bruce Thompson - Mar 14th, 2018
- The State of Politics: Will U.S. Supremes Rule on State Districts? - Steven Walters - Feb 19th, 2018
- Back in the News: Majority Now Backs Fair Redistricting - Bruce Murphy - Feb 5th, 2018
- Data Wonk: John Roberts’ Nightmare - Bruce Thompson - Oct 11th, 2017
- The State of Politics: You Be The Judge on Redistricting - Steven Walters - Oct 2nd, 2017
- Op Ed: U.S. Supreme Court Should End Partisan Gerrymandering - Andrea Kaminski - Sep 26th, 2017
- Data Wonk: Judges Consider a Democratic Gerrymander - Bruce Thompson - Aug 30th, 2017
- Op Ed: 24 Counties Have Voted for Fair Maps - Matt Rothschild - Aug 25th, 2017
- Data Wonk: Right Wing Seeks to End Democracy? - Bruce Thompson - Aug 23rd, 2017
- Data Wonk: US Supreme Court Wrong on Redistricting? - Bruce Thompson - May 31st, 2017
- Op Ed: Save Taxes With Nonpartisan Redistricting - Andrea Kaminski and Lindsay Dorff - May 26th, 2017
- Data Wonk: Why GOP Backs Gerrymander - Bruce Thompson - May 24th, 2017
- Data Wonk: State’s Political Map At Issue - Bruce Thompson - May 18th, 2017
- Rep. Peter Barca Statement on Attorney General Appeal of Redistricting Decision - State Rep. Peter Barca - Feb 24th, 2017
- Fair Elections Project calls upon Legislature to focus on fair map drawing process - Wisconsin Fair Elections Project - Feb 24th, 2017
- Campaign Cash: GOP’s Redistricting Lawyers Are Big Donors - Matt Rothschild - Feb 6th, 2017
- Op Ed: Reject Partisanship, Redraw Voting Maps - Andrea Kaminski - Feb 3rd, 2017
- Rep. Peter Barca Statement on Assembly Organization Committee Secret Ballot - State Rep. Peter Barca - Feb 2nd, 2017
- Court Watch: Court’s Redistricting Order A Problem? - Bruce Thompson - Feb 1st, 2017
- Rep. Hesselbein Calls for Open, Transparent, and Public Process for Drawing New Legislative Lines - State Rep. Dianne Hesselbein - Jan 27th, 2017
- Wisconsin Federal Court Permanently Blocks State Redistricting Plan - Wisconsin Fair Elections Project - Jan 27th, 2017
- Data Wonk: 2016 Election Results Prove Gerrymandering - Bruce Thompson - Dec 28th, 2016
- Plaintiffs call for new maps for Wisconsin legislative district - Wisconsin Fair Elections Project - Dec 21st, 2016
- Data Wonk: Measuring Wisconsin’s Gerrymandering - Bruce Thompson - Dec 7th, 2016
- Sen. Taylor statement on federal court ruling against Republican gerrymandering - State Sen. Lena Taylor - Nov 21st, 2016
- Statement on Redistricting Ruling - State Sen. Chris Larson - Nov 21st, 2016
- Federal Court overturns unconstitutional gerrymandering of Wisconsin legislative districts - Wisconsin Fair Elections Project - Nov 21st, 2016
- Rep. Barca Statement on Redistricting Decision - State Rep. Peter Barca - Nov 21st, 2016
- HISTORIC DECISION: Wisconsin Federal Court Strikes Down Partisan Gerrymander and Adopts Groundbreaking Legal Standard - Campaign Legal Center - Nov 21st, 2016
- Murphy’s Law: The Myth of Democratic Gerrymandering - Bruce Murphy - Jan 26th, 2016
- Data Wonk: Can New Approach End Gerrymandering? - Bruce Thompson - Jan 6th, 2016
- Federal Lawsuit to Overturn Unconstitutional Gerrymandering of Wisconsin Legislative Districts Continues - Wisconsin Fair Elections Project - Dec 17th, 2015
- Can Auto Redistricting End Gerrymandering? - Laura Thompson - Dec 10th, 2015
- Assembly candidate Brostoff calls for non-partisan redistricting - State Rep. Jonathan Brostoff - Apr 17th, 2014
- Redistricting reform the antidote to Republican extremism - Press Release - Nov 13th, 2013
- Lazich, August, Fitzgerald and Vos Still Silent on Redistricting Reform Public Hearings As Support & Pressure Builds - Common Cause in Wisconsin - Sep 17th, 2013
- Freshmen legislators push new legislation to correct flawed partisan redistricting process - Press Release - Apr 11th, 2013