The New Gerrymandering Scheme

The clock is ticking — and when it’s a top attorney’s clock the cost is high. 

Wisconsin’s Republican legislative leaders Robin Vos and Devin LeMahieu have hired Madison firm Bell Giftos St. John, which charges $375 an hour and Consovoy McCarthy, based in Boston, which probably charges even more per hour and is guaranteed a minimum of $30.000 per month and up to $975,000 a year. 

The costs, which were first reported by WisPolitics, are being paid by you, me and all the taxpayers of Wisconsin. The attorneys are being paid to help Republicans gerrymander the state’s legislative districts for another 10 years. The last gerrymandering, done in secret by Republicans in 2011, assured that the GOP would win 64 of 99 Assembly seats with just 50% of all statewide votes, as an analysis by Urban Milwaukee’s Data Wonk found.

The Republicans spent at least $3.5 million on private lawyers to help draw the rigged maps in secret in 2011 and then defend legal challenges to them, as Patrick Marley reported. They did this even though the state Attorney General, who is supposed to defend state officials and departments, was a Republican, J.B. Van Hollen, as was his successor Brad Schimel. Apparently they weren’t partisan (or perhaps secretive) enough for the Republicans, so we taxpayers had to pay for private attorneys hired outside the state Department of Justice.

But this time around the Republicans have gone a step further. They have hired attorneys before the redistricting process has even begun. The U.S. Census population counts are not scheduled to be delivered to the states until August 15, yet the attorneys were put on retainer as of January 1, 2021. 

In response to this, a suit was filed in March in Dane County Circuit Court which charges that Assembly Speaker Vos and state Senate Majority Leader LeMahieu illegally signed contracts with two law firms. The suit was filed on behalf of taxpayer group that includes the head of the Madison teachers union. It charges that state law does not allow the two legislative leaders to hire legal counsel outside of the Department of Justice “in anticipation of an action that does not yet exist.” Because the two face no legal summons or complaint, they have no cause to hire lawyers.

While it is widely expected that Gov. Tony Evers will eventually veto any Republican redistricting plan, assuming it’s another gerrymander, to date his only action has been to set up a citizens commission to propose maps drawn on a non-partisan basis, as they have been done successfully in states like Iowa. There are now 17 states that have created commissions to handle redistricting in a less partisan manner. But Evers’ commission is advisory, which Republican legislators have made clear they intend to ignore. They don’t need taxpayer supported private lawyers for this. 

But it gets worse. Lester Pines, the attorney for the group who filed the lawsuit noted in a Wisconsin State Journal story that the contracts with the two law firms don’t allow the firms to communicate with anyone in the Legislature but Vos and LeMahieu, shutting out Democrats who are also part of the Legislature. For that matter, it’s not clear how much input other Republicans will have when the maps are drawn. The idea, Pines added, was to allow top Republicans to work with the firms to draft a redistricting bill “secretly, as they did in 2011.”

But it gets still worse. As an amicus brief by the Wisconsin Democracy Campaign supporting the suit notes, Vos and LeMahieu also created the contract with the private lawyers illegally, through legislative committee rather than the entire Legislature. “The Wisconsin Constitution requires safeguards on how decisions about spending public dollars are made,” the brief notes, which “require a recorded vote in both chambers, with a special quorum requirement of three-fifths of the members in each chamber for the vote to proceed.” Neither of those procedures were followed, the brief charges.

“Wisconsin courts have recognized since statehood, public funds may be spent only to advance a public purpose,” the brief notes. But Vos and LeMahieu are using public funds to advance the interests of only Republican incumbent office holders. They are hiring private lawyers “to advance the narrow, private interests of the partisan caucuses they lead,” the brief charges,” and “extend the extreme partisan gerrymander they put in place in 2011 that has allowed their political party to maintain a stranglehold on democracy in Wisconsin over the past decade, regardless of whether their party, or the opposition party, wins a majority of votes state-wide. It is not in any way a public interest.”

The lawsuit seeks to permanently block the legislative leaders from authorizing payment for legal services requested in the two contracts and from engaging attorneys other than those at the Wisconsin Department of Justice unless both legislative houses are party to a filed lawsuit.

In response to the lawsuit Vos released a statement dismissing the case as “yet another lawsuit filed by a liberal attorney” brought “for purposes of making money for himself and will prove to be a waste of taxpayer resources.”

In fact the situation is just the opposite. Vos is wasting taxpayer dollars on a purely partisan effort to retain power with a minority of the state’s votes. And he will waste even more taxpayer dollars to contest this suit, rather than following state law and the state constitution as written.