Federal court panel largely upholds Republican-drawn legislative
A federal district court panel upheld 130 of 132 state legislative
districts established through the legislative redistricting process last
summer, as well as a congressional redistricting map. As it stands, the
new maps will not apply to any recall election, but state cases are
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
22, 2012 – A three-judge panel of the U.S. District Court for
the Eastern District of Wisconsin today upheld all but two state
legislative districts drawn by a Republican-controlled Wisconsin
Legislature. It also upheld a congressional redistricting
The panel lamented on the secrecy and partisan nature of this
cycle’s redistricting process and harkened back to “a time
when Wisconsin was famous for its courtesy and its tradition of good
government,” but ultimately ruled the maps did not violate the
law, save a violation of federal law requiring a change to Assembly
districts 8 and 9 in Milwaukee County.
According to Wisconsin Attorney General J.B. Van Hollen, any appeal
would go directly to the U.S. Supreme Court.
Under the panel’s decision, the redistricting maps will not take
effect for voting purposes until the November elections – meaning
they won’t be in place for any recall elections that take place
before November – unless a state court rules otherwise.
The Wisconsin Legislature reapportioned the state legislative and
congressional districts through 2011
Wisconsin Act 43 (state) and 2011
Wisconsin Act 44 (congressional) in August 2011. Redistricting maps,
once established, control representation and elections for 10 years.
States must reapportion both state legislative and congressional
districts to account for changes and shifts in population, as determined
by each decennial census. Wisconsin has eight
congressional districts, 99 state Assembly districts, and 33 state
A basic requirement is that redistricting maps be relatively equal in
population, giving each voter in each district equal voting power, known
as the “one person, one vote rule.” The
federal Voting Rights Act of 1965 protects the voting power of racial
and minority groups. The state constitution also requires that new
districts meet other redistricting criteria.
Democratic voters and a Latino rights group, Voces de la Frontera, quickly
challenged the lawfulness of Act 43’s state legislative districts.
Wisconsin’s Democrat members of the U.S. House of Representatives –
Tammy Baldwin, Ron Kind, and Gwen Moore – challenged Act 44 as
intervenors. The case went to trial in federal
district court on Feb. 23-24.
The specially-appointed panel – Judge Diane Wood (7th
Circuit Court of Appeals), Judge J.P. Stadtmueller (Eastern District of Wisconsin)
and Judge Robert M. Dow Jr. (Northern District of
Illinois) – chided the “sharply partisan methodology”
used in the redistricting process.
However, the panel ruled in Baldus et al. v. Brennan et al., No.
11-cv-562 (March 22, 2012), that just two state
Assembly districts (8 and 9) violated the Voting Rights Act of 1965.
Otherwise, the panel upheld the other 97 Assembly and 33 Senate
districts established through redistricting.
“[W]e find that although the drafting of Act 43 was needlessly
secret, regrettably excluding input from the overwhelming majority of
Wisconsin citizens, and although the final product needlessly moved more
than a million Wisconsinites
and disrupted their long-standing political relationships, the resulting
population deviations are not large enough to permit judicial
intervention under the Supreme Court’s precedents,” the
panel wrote in a per curiam opinion.
The panel also upheld congressional districts established by Act 44,
concluding that “Act 44 has zero population deviation, which is
why we find that intervenor-plaintiffs have no meritorious ‘one
person, one vote claim,’” the panel noted, also striking a
partisan gerrymandering claim.
Population deviations too small
The panel dismissed the argument that Act 43’s large population
shifts from one district to another – approximately 2.4 million
people for new Assembly districts, and approximately 1.2 million for new
Senate districts – violated redistricting principles under the
“[T]he partisan motivation that, in our view, clearly lay behind
Act 43 is not enough to overcome the de minimis population
deviations that the drafters achieved,” the panel wrote, noting
that population deviations from one district to another were less than
“Numbers like these place a very heavy burden on the plaintiffs
to show a constitutional violation,” the panel wrote. “In
the final analysis, they have failed to surmount that burden.”
Disenfranchisement argument fails
The plaintiff democrats also argued that Act 43’s new Senate
districts shifted nearly 300,000 people in a way that would
unconstitutionally delay their right to vote in a Senate election, known
as disenfranchisement, since Senate elections are staggered every two
Specifically, the plaintiffs argued that too many people were shifted
from even-numbered Senate districts (who vote for senators in 2012) to
odd-numbered Senate districts (next scheduled to vote for senators in
2014), unlawfully delaying their vote.
However, the panel rejected that argument. “While were are
sympathetic to the nearly 300,000 voters who have lost their opportunity
to vote for a state senator for two years, we find that Act 43 does not
violate the Equal Protection Clause on this basis,” the panel
Congressional districts okay: Equal Protection and
gerrymandering claims fail
The plaintiff-intervenors challenging redrawn congressional districts
– Wisconsin’s three Democrat U.S. House members
– argued that Act 44 did not preserve communities of interest in
violation of the Equal Protection Clause. Wisconsin’s incumbent
members to the House, with a Republican majority, drafted the
congressional map culminating in Act 44.
The Democrat plaintiffs also argued that Republicans engaged in
partisan gerrymandering in drafting Act 44’s congressional
districts to favor their own party for future elections. (Plaintiffs
challenging Act 43 abandoned a similar partisan gerrymandering claim
However, the court rejected those arguments, concluding that Act 44
preserved the “one person, one vote” rule and the partisan
gerrymandering claim must fail with no manageable legal standard to
determine whether partisanship rises to an unconstitutional level.
The panel noted that Wisconsin’s Republican members of the
House –Reps. James Sensenbrenner, Paul Ryan, Thomas
Petri, Reid Ribble, and Sean Duffy – expressed a
“desire to draw districts that would maximize the chances for
Republicans to be elected.”
However, the panel explained that U.S. Supreme Court jurisprudence on
partisan gerrymandering claims requires litigants to formulate a
manageable legal standard to test constitutionality, and the plaintiffs
failed to do that. “Without a specific proposal on the table, we
are unable to evaluate the merits of this partisan gerrymandering
claim,” the panel wrote.
Act 43 violates Voting Rights Act
The plaintiff democratic voters and Voces de la Frontera argued that
Act 43 violates the Voting Rights Act because Assembly districts 8 and 9
unlawfully divide a Latino community into two districts, thereby
diluting the power of their vote. The panel agreed.
“[P]laintiffs are entitled to relief on their
Section 2 [Voting Rights Act] claim … because Act 43 fails to
create a majority-minority district for Milwaukee’s Latino
community,” wrote the panel, noting that those districts must be
redrawn quickly without disrupting other districts.
In a statement responding to
the decision, Van Hollen
said: "While the intent of the maps was to create two assembly
districts where Latino voters were likely to be dominant, the Court
concluded that it was better to draw the line so that Latino voters were
more concentrated in one of the districts."
The Wisconsin Department of Justice represented members of
the Wisconsin Government Accountability Board (GAB), who were
defendants in the case because that
office oversees and enforces election laws.
Do maps apply to any recall election before
The panel did not decide whether Act 43 maps apply to any recall
election that takes place before November, concluding that no case or
controversy exists for the federal court to decide.
Act 43 specifically states that it is effective, for purposes of
elections, starting in November 2012. Republican voters have challenged
this effective date in state courts, arguing that Act 43’s maps
must apply to any recall election before November on constitutional
The state courts have not yet decided the issue and three Republican
Senators – Majority Leader Scott Fitzgerald (Juneau), Terry
Moulton (Chippewa Falls), and Van Wanngaard (Racine) – are facing
recall elections in May or June.
GAB issued a formal
opinion that any recall election that takes place before November
will be conducted under pre-Act 43 maps, and the panel suggested that
there would be nothing unconstitutional about doing that.
“If, however, a time comes when the GAB proposes to take a
different action, either on its own or by virtue of a state court
ruling, and there is a live controversy, plaintiffs may return to this
court and present whatever arguments that may have on this
question,” the panel wrote.