State’s Gerrymander Could Last Forever

On November 30th of last year, the Wisconsin Supreme Court issued the first of two decisions on redistricting the Wisconsin’s state Legislature and its Congressional delegation in response to the 2020 Census. The majority opinion, written by Justices Rebecca Bradley, and joined by Justices Annette Ziegler, Patience Roggensack, and Brian Hagedorn, invited parties “to submit congressional and state legislative maps that comply with all relevant legal requirements, and that endeavor to minimize deviation from existing law.”

The court’s decision perpetuates the highly partisan gerrymander created in secret by then-Governor Scott Walker and Republican members of the Legislature in 2010, thereby giving that gerrymander another 10 years of life. It also broke with the past practice of turning to a panel of federal judges to redistrict when Wisconsin’s legislative and executive branches disagree.

Justice Rebecca Dallet filed a dissenting opinion which was joined by Justices Ann Walsh Bradley and Jill Karofsky, In it, she argued that the “least-change” approach is anything but a “neutral standard.” If this same practice were to be followed in future years, it is unlikely that Democrats could ever take control of the Legislature. The Democrats’ best-case scenario is winning the governorship in a future Census year, such as 2030. This would create an impasse resulting in a referral to the state Supreme Court. But that court, assuming it followed the precedent set by today’s court, would vote for “least change,” essentially giving the 2010 gerrymander another 10 years of life.

Six parties, including Governor Tony Evers and the Republican legislators, submitted proposed maps for state legislator districts. Four of these parties also submitted maps for Congressional districts. (Click here for Marquette Law’s John Johnson’s analysis of the proposals.)

The next chart shows how three metrics rate several proposed Wisconsin maps that were proposed this redistricting cycle. The first, SB-621, is the bill passed by Wisconsin’s Republican Legislature, but vetoed by the governor. All three metrics indicate this bill would have kept and slightly increased the bias in the current gerrymander, shown second in the chart, with an “efficiency gap” of 11 percent.

Third on the chart is the map submitted by Gov. Evers. Even while designed under the “least change” constraint, it is notably less biased than either of the two Republican maps with an efficiency gap of about 9 percent.

On the right, the chart shows the results for the map proposed by the People’s Map Commission. While hardly perfect, it comes far closer to unbiased than the others.

However, in comparing proposed maps, the court’s majority ignored issues of bias, instead rating the maps by the “least-change” metric, based on minimizing the number of people who were moved from one district to another. Using this metric, the plan from Evers fared best.

Strikingly, the new majority had mostly different members. Only Hagedorn was part of both majorities. The other three members of the first majority– Bradley, Ziegler and Roggensack–voted against accepting Evers’ maps. Justices Dallet, Walsh Bradley and Karofsky all joined Hagedorn in voting to accept the Evers maps.

Republican legislators and groups allied with them immediately appealed the Wisconsin Supreme Court’s decision to the U.S. Supreme Court. But while the players aligned in their opposition to or support for the Wisconsin gerrymander, the grounds for the appeal to the U.S. Supreme Court were quite different.

Under the current map, Wisconsin has six majority Black districts, in which Black voters constitute a range between 56% and 68% of the total voter population. These are shown in yellow in the graph below, along with district 14, which currently is located in Wauwatosa and Brookfield.

As part of his map, Evers proposed to create another, seventh, majority Black district. This would be accomplished by shifting district boundaries. District 14 would be shifted to the east bringing its proportion of Black voters to 50%. Most of District 14’s new voters would come from the six present Black majority districts, lowering their percentage of Black voters to 50% or 51%.

This proposal may or may not be good policy, but it has certainly given the opponents of the Evers map a handle to attack it. It also gave the conservative majority on the U.S. Supreme Court the rationale it needed to justify sending the proposal back to the Wisconsin Supreme Court, citing a supposed need for more analysis on whether the seventh Black majority district would violate the Voting Rights Act of 1968.

If one believes there is a need for more competitive districts the proposal is also puzzling. As currently constituted, District 14 is highly competitive though in an increasingly Democratic area. Rep. Robyn Vining, the current occupant, is a Democrat who has survived some very close elections.

Whether the governor’s plan violates, is permitted by, or is required by paragraph 2 of the federal Voting Rights Act is unclear to me from the various briefs that have been submitted. What is clear is that where one stands regarding this controversy is driven far more by where one stands on the Wisconsin gerrymander than one’s views of the Voting Rights Act.

The Wisconsin Supreme Court might be well advised to adopt the governor’s proposed map while giving up on the attempt to create a seventh Black majority district. After all, the court has already established that the Evers plan offers the least amount of change. Without a need to move the boundaries of District 14 and the six current Black majority districts, the rating on the “least-change” should be even better.