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  • WisBar News
    October
    03
    2017

    Nation’s High Court Hears Wisconsin Redistricting Case

    Joe Forward

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    Oct. 3, 2017 – The U.S. Supreme Court today heard oral arguments in Gill v. Whitford, a case that challenges Wisconsin electoral maps on partisan gerrymandering grounds. Any decision is expected to have far-reaching implications on the redistricting process.

    In Wisconsin, as in many states, the state legislature draws new maps every 10 years, giving the party in control an opportunity to reshape voting districts. Democrat voters challenged the voter districts that Republican lawmakers drew in 2011, arguing they crossed a constitutional line in manipulating maps for Republican advantage.

    A landmark decision is expected, and the U.S. Supreme Court is known to issue major decisions in the final days of a given term. The court’s term ends in June next year, just months before the 2018 elections in November.

    The case, one of numerous cases that followed the redistricting process in Wisconsin and elsewhere, drew nearly 50 amicus briefs, including briefs from members of Congress, state legislators, state governors, and groups on both sides of the issue.

    The case originated in the U.S. District Court for the Western District of Wisconsin. A special three-judge panel ruled (2-1) that Republican lawmakers “systematically dilute[d] the voting strength of Democratic voters” and intentionally burdened their representation rights in violation of the U.S. Constitution when enacting the 2011 redistricting plans.

    This morning, the case took center stage at the U.S. Supreme Court. According to a transcript from oral arguments, Wisconsin Solicitor General Misha Tseytlin defended the maps and said rejecting them would “shift districting from elected public officials to federal courts, who would decide the fate of maps based upon battles of the experts.”

    Paul Smith, representing the plaintiff-Democrats challenging the maps, said the state is asking for "a free pass to continue using an assembly map that is so extreme that it effectively nullifies democracy."

    A major sticking point is whether five justices believe the plaintiff-Democrats have pinpointed a “workable standard” to measure when partisan gerrymandering crosses the unconstitutional line. Prior cases demonstrate that some justices believe partisan gerrymandering is a “nonjusticiable” question that should not be decided by the courts.

    Legal commentators believe the case could be decided by the swing vote of Justice Anthony Kennedy, who has not foreclosed the possibility that partisan gerrymandering could be unconstitutional at some point if there is a workable standard to test it.

    The plaintiff-Democrats believe they have identified the workable standard to test whether partisan gerrymandering goes too far.

    University of Chicago professors developed the test, known as the “efficiency gap,” to measure the “wasted votes” that result when members of one political party are “packed” into certain districts or spread across districts to dilute their vote.

    The special panel for the U.S. District Court in Wisconsin viewed the test as corroborating evidence that Republican-drawn maps had a discriminatory effect on Democrat voters that crossed the constitutional line, and were drawn with that intent.

    But Democrats must convince at least five justices of the U.S. Supreme Court and in particular, it seems, they must convince Justice Kennedy. According to Greg Stohr at Bloomberg, Kennedy did not give many clues on his thinking this morning.

    “Justice Anthony Kennedy, the likely swing vote, suggested he was open to putting limits on gerrymandering during an hour-long argument Tuesday,” Stohr wrote.

    “But Kennedy left the ultimate outcome in doubt, giving few hints as to whether he was satisfied that the Democrats challenging the Wisconsin map had offered a manageable standard to separate unconstitutional maps from legitimate ones.”