Lead Plaintiff: Wisconsin Redistricting Lawsuit has National Implications

Mar 6, 2017

WOODRUFF – The lead plaintiff in the legal battle over how Republicans redrew Wisconsin Assembly district boundaries says the case is headed to the U.S. Supreme Court and the outcome could have national implications.

That’s according to Bill Whitford, a retired law professor who sued the state Elections Commission over Act 43, the legislation that approved the new and controversial districts back in 2011. He is one of 12 citizen plaintiffs.

Whitford and attorney Doug Poland, who helped win the case before the U.S. District Court for the Western District of Wisconsin, spoke at an open meeting Saturday, March 4th hosted by Northwoods Progressives. About 140 people attended the session held at the Northwoods Unitarian Universalist Fellowship in Woodruff.

“We have at least a 50-50 chance at the Supreme Court,” Whitford said of success. He called the partisan “misalignment” of state Assembly districts among the worst in the nation.

Whitford outlined his interpretation of gerrymandering that led to the legislative map being ruled unconstitutional by that three-judge federal panel last November.

“Gerrymander refers to a legislative districting scheme that operates so that there is a misalignment between the percentage of the votes a particular party . . . gets and the percent of the seats in the Legislature,” he said. “And it’s a misalignment that is predictably enduring, but it simply means the misalignment will be in the same direction and from election to election as long as that districting scheme exists.

A successful gerrymander basically makes it all but impossible for the disfavored party here in Wisconsin – the Democratic Party -- to obtain a Legislative majority.”

Republican Attorney General Brad Schimel plans to appeal the ruling before the U.S. Supreme Court. Oral arguments at the Supreme Court are set for later this year, with a decision coming in early 2018, according to Poland.

Poland says the GOP’s redistricting map violated the constitutional rights of Democrats.

“The Supreme Court has said in the past, we recognize it could become so extreme that it might actually violate voters’ constitutional rights. And that’s the theory behind the Whitford trial case.

“That’s there are two specific constitutional rights that were violated. Bill’s constitutional rights (and) rights of our other plaintiffs, were violated: the Fourteenth Amendment right was violated, the equal protection under the law as a registered Democrat seeking to elect Democrats unto office, and the right of assembly -- a First Amendment right. First Amendment is not just free speech; it’s also freedom of assembly.”

Unfair advantage

Whitford said 2010 was a good year for Republicans, who picked up 250,000 more Assembly votes than did Democrats. That resulted in 60 Republican seats in the Assembly with Democrats left with 39.

But after the map was redrawn, and with President Barack Obama leading the way, the Democrats picked up 170,000 more Assembly votes over the Republicans. Yet, the margin remained the same in the Assembly: 60-39.

That was due to the unfair advantage that the redrawn map had given Republicans, according to Whitford and Poland. The mapmakers had “packed” blocs of Democratic into districts instead of scattered into competitive districts. The result was a large number of “wasted” Democratic votes not needed to elect a candidate.

The Federal panel agreed 2-1 and gave Republicans until January 2017 to redraw the gerrymander map more in line with accepted federal and state guidelines. It has to be done before the 2018 elections. It’s expected the attorney general will ask the Supreme Court for a stay of the federal district court’s ruling in that matter, Poland said.

If the Legislature doesn’t do that, and the plaintiffs prevail, then the courts will redraw the map, he explained.

Poland also hit on the secrecy that the GOP required during the map redrawing. Two legislative aides and an outside consultant, Joe Handrick, of Minocqua, were instrumental in drawing the map boundaries, he said.

Each GOP legislator was shown his or her redrawn district, and had to sign a secrecy agreement not to disclose details until final approval by the full body.

Court testimony revealed that a sophisticated computer program was used to reach the maximum, predictable success of GOP representatives, Poland said, adding, “The court really focused on that.”

In addition to partisan intent and effect of the gerrymandering, the plaintiffs’ legal team was able to show that the defendants could not explain the election outcome fully, with legitimate reasons, he said.

The court majority decision concurred: “We find that the discriminatory effect is not explained by the political geography of Wisconsin, nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander,”

More openness

Whitford told the audience that it was imperative that citizens demand more openness, including hearings, when Assembly district map is redrawn by the Legislature. (Maps are redrawn after each Census to account for changes in population.)

Not only will the physical boundaries of the state Assembly districts change, but also the Senate, which is made up of districts based on the Assembly map. The ruling does not affect congressional districts, which were also redrawn in 2011.

He also said “underlying all of this is the constitutional failure in the American system” of not having a non-partisan commission draw up legislative boundaries. “There’s a conflict of interest there,” he said of state legislators choosing their voters.

The group Fair Elections Project backed the lawsuit. To learn more about the lawsuit and gerrymandering, go to FairElectionsProject.org.