Can Republicans Delay Redistricting?

Speaker Robin Vos. File photo by Coburn Dukehart/Wisconsin Watch.

In Ohio, the state Supreme Court in 2022 rejected a new map of legislative districts that greatly favored Republicans. The map had been created by the Republican-dominated Ohio Redistricting Commission, and the court ruled that it violated the Ohio Constitution’s mandate for political fairness.

In response the commission created another map favoring Republicans. The court rejected this on the same grounds and demanded a fairer map. And the commission again submitted one that greatly favored Republicans.

All told the court struck down five separate iterations of the legislative maps, but the delay this cause resulted in Ohioans voting under the gerrymandered maps in the 2022 midterm elections.

Are Republicans in Wisconsin playing the same game, to delay the proceedings? Last week they filed a motion asking the Wisconsin Supreme Court to reconsider its decision to overturn the state’s gerrymandered legislative maps, pleading that lawmakers can’t draw new ones by the Court’s Jan. 12 deadline.

“That is absolutely the purpose behind the motion, to delay the process,” said TR Edwards, attorney for Law Forward, the plaintiff arguing that Wisconsin’s current maps are unconstitutional. Law Forward is preparing a response to the Republican motion which will be submitted tomorrow.

“This isn’t the first time courts have done something like this,” Edwards told Urban Milwaukee. “They have operated on as short a timeline in other states.”

Moreover, the argument that it requires so much time to create new maps is hard to make in an era of computer geeks, who have turned out countless possible maps. UW-Milwaukee Professor Matt Petering has created a system that can generate thousands of maps in an hour, Edwards notes. That includes a contiguous map with high scores for compactness, minority power and proportionality, as Urban Milwaukee has reported.

Edwards believes the Republican motion is also “trying to lay the groundwork for an appeal.” Assembly Speaker Robin Vos has already warned that “The U.S. Supreme Court will have the last word.”

But that will be difficult to do, Edwards says, because the issue being litigated falls under the Wisconsin Constitution, which declares that all legislative districts must be contiguous. And a large number of the districts under the current map are not, with some even having a portion of their district turned into an island surrounded by another district. This was a tool the Republicans used to create unfair maps. “Noncontiguous districts allow for greater amounts of gerrymandering,” Edwards notes.

“You can’t get around the plain meaning of the state constitution” on contiguous districts, he says. “And the final arbiter of state law is the state Supreme Court.”

Interestingly, Law Forward actually made much broader claims in its lawsuit, arguing that a partisan gerrymander is in violation of the Wisconsin Constitution. But the court majority striking down the current maps did not pick up on that argument. Why?

Perhaps because that opens the door to possible appeals to the U.S. Supreme Court. Whereas the state constitution’s contiguity requirements “mean what they say,” and are a mandate supported by past precedent, as the majority ruling by Justice Jill Karofsky noted.

Indeed, Republicans are not arguing against the requirement for contiguous districts, but arguing that you needn’t change the entire state map to accomplish this. But the court has offered them an opportunity to create such a map and they are instead asking for delays. “I think in some ways that hurts them because the closer you get to the deadline, the less room you have to reconsider the remedy,” Edwards notes.

Ultimately the remedy the court accepts may only mitigate rather than entirely eliminate the state map’s current tilt in favor of Republicans, Edwards theorizes. Of course that depends on which map the court selects. It may even make changes, with advice from two redistricting experts it has hired.

The Republicans’ motion also argues that the high court didn’t listen to their arguments, pre-decided the case and didn’t give them a chance to respond to the deadline it set for new maps to be submitted to the courts. These all amount to a claim that the Wisconsin Supreme Court has been unfair, which it will surely reject, along with the GOP request for more time. That ruling is likely to be released quickly, perhaps as soon as Friday.

All of which Republicans probably expect. Their motion is laying the groundwork to overrule the highest state court, which only a federal court can do.

But the U.S. Supreme Court has previously ruled that partisan gerrymanders are not something federal courts can rule on. Is it likely to inject itself into the dispute when it involves a remedy only to create more contiguous districts, as spelled out in the state constitution? One wonders if even Vos believes his boast that the U.S. Supremes will have the final say.