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Supreme Court Redistricting

Democrats seeking to overturn Wisconsin's legislative maps see Tuesday's results as further evidence of their claim.

Tuesday’s election, in which Democrats won every statewide race but failed to gain any ground in the state Legislature, illustrates again the degree to which legislative maps are rigged against Democratic voters, according to a group suing over the fairness of those maps.

For the fourth state election in a row, despite votes that are close to evenly divided between statewide Republican and Democratic candidates, Republican majorities in the state Assembly and Senate have held fast or grown.

“Our case hasn’t gotten weaker, it’s gotten stronger,” said Sachin Chheda, executive director of the Fair Elections Project, which in 2015 organized and launched a lawsuit challenging Wisconsin’s election map as an unconstitutional partisan gerrymander.

In Tuesday’s election, races for governor and attorney general were tight and came down to a pocket of absentee ballots counted late in Milwaukee County. The U.S. Senate race was not close, with Democratic U.S. Sen. Tammy Baldwin winning by a 10-point margin.

In the meantime, the Republican majority in the state Senate grew from 18-15 to 19-14 while the Assembly remained 64-35 in favor of Republicans.

“The only explanation is that the maps are rigged,” Chheda said. “A court has already found that to be true.”

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Sachin Chheda (copy)

Sachin Chheda

Asked to respond to Chheda’s statement, Assembly Speaker Robin Vos, R-Rochester, said he disagreed.

“I think that’s silly,” Vos said. “I do not like the fact that Madison and Milwaukee chose Gov. Evers and they’re the reason that he won.

“But in the process that we have, Madison and Milwaukee get the chance to vote,” he continued. “I don’t like the outcome all the time, but they have a fair chance. So as much as they complain about gerrymandering and all things that I think are made-up issues for their failed agenda, I would spend the same amount of time saying, ‘You’re only playing to Madison and Milwaukee and not representing the other 70 counties.’”

The lawsuit, filed by a group of Democratic voters, alleges Republican mapmakers, working on the 2011 redistricting plan in secret with a private law firm, drew maps that heavily favored Republicans. The lawsuit creates a test called the “efficiency gap” for measuring the map’s discriminatory effect by calculating the number of votes that are “wasted” when voters are “packed” into certain safe districts or “cracked,” placed into districts where they don’t have the numbers to compete.

A three-judge panel ruled 2-1 in November 2016 that the 2011 map was an unconstitutional partisan gerrymander. From there the case went to the U.S. Supreme Court, which found that the 12 Democratic voters did not have standing to sue. But in an unusual decision, justices sent the case back to the lower court so that the Democratic voters could attempt to prove they have standing.

In September the group amended its lawsuit and re-filed it, adding dozens more plaintiffs from other areas of Wisconsin. A second, separate lawsuit making similar arguments, filed by the Assembly Democratic Campaign Committee, argues the party had difficulty finding candidates in 29 races in 2014 because of the way legislative maps are drawn. That lawsuit could be consolidated with the Democratic voters’ case.

The case is set for trial before the three-judge panel in April, but Chheda said that because of the timing it’s unlikely to be considered by the Supreme Court until its next term, which starts in October 2019 and runs through June 2020.

One difference in the case is the maps would be defended in court by a new Democratic Attorney General Josh Kaul, who during the campaign said he would work to uphold the state’s legislative district maps, but noted the state’s process is “not as fair as it should be.”

Another difference will be the makeup of the court. Justice Anthony Kennedy, who had previously expressed openness to establishing a standard for determining partisan gerrymandering, retired and was replaced by Justice Brett Kavanaugh.

Chheda said the change shouldn’t make a difference.

“We have confidence that we have the evidence and the argument necessary for the District Court panel to return a second verdict ruling the current maps are unconstitutional because they are an excessive partisan gerrymander, and that the Supreme Court will uphold that decision,” Chheda said.

In the meantime, a case from North Carolina alleging partisan gerrymandering of the state’s congressional districts by Republicans was decided in August by a federal three-judge panel in North Carolina and is being considered by the Supreme Court during its current term.

Chheda said he’s hopeful that the case, which he said “leapfrogged” the Wisconsin case, will provide justices with a “roadmap” to the Wisconsin case.

Regardless of what happens with the lawsuit, Wisconsin will have new maps in time for the 2022 election. But Republicans in the Legislature may have to compromise with Democratic Gov.-elect Tony Evers or the legislative map could wind up being drawn by a federal judge, Chheda said.

If Republicans draw a map after the 2020 Census that isn’t to Evers’ liking, he could veto it. Republicans would then need two-thirds of the Senate and the Assembly to override the veto — 22 in the Senate and 66 in the Assembly, beyond the majorities they currently hold.

Deadlocks have led to legislative maps drawn by judges three times in the past 40 years, in 1981, 1991 and 2001.

State Journal reporter Mark Sommerhauser contributed to this report.

“The only explanation is that the maps are rigged. A court has already found that to be true.” Sachin Chheda, executive director of the Fair Elections Project