March 7, 2012 – The constitutionality of Wisconsin’s Republican-drawn congressional and state legislative district maps is still an issue pending in federal district court, which held a trial Feb. 23-24 but has not yet released a decision. Cases are also pending in state court.
Because the U.S. and state constitutions require state legislatures to redraw congressional and legislative districts impacting elections for a decade, redistricting litigation is common.
“Every 10 years, redistricting litigation joins death and taxes as one of the certainties in life,” said Justin Levitt, a redistricting expert and law professor at Loyola Law School in Los Angeles.
But for two very distinct reasons, the current redistricting litigation (among a host of other things legal and political) will hold a unique place in Wisconsin’s history books.
For one, not since the 1950 redistricting cycle has one party controlled Wisconsin’s redistricting process, as Republicans did this cycle. Second, there’s a potential for recall elections of four senators this spring or summer, which adds a twist to normal-course redistricting litigation.
Single-party control and Wisconsin’s redistricting history
The highly publicized redistricting lawsuits in Wisconsin are among approximately 150 redistricting cases filed in state and federal courts across the country, about the same number of suits filed in the last redistricting cycle a decade ago, according to Levitt. Many are still pending.
The decennial redistricting litigation stems from constitutional requirements1 that state lawmakers reapportion congressional and state legislative districts after each federal census.
Redistricting is necessary to account for population changes and shifts. Following the 2010 census, the federal government in March 2011 released Wisconsin’s comprehensive census data, revealing a 6 percent increase in Wisconsin’s population, and upward and downward shifts across county boundary lines. That made old election districts malapportioned.
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.”2 The 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.3
In August 2011, the Wisconsin Legislature redrew boundary lines for the state’s 99 Senate districts and 33 Assembly districts, enacting the maps through 2011 Wisconsin Act 43. It also redrew Wisconsin’s eight congressional districts through 2011 Wisconsin Act 44.
With Republican Gov. Scott Walker in office and a majority in the state Assembly (59-39-1) and Senate (19-14), Republicans controlled the redistricting process. That’s rare.
The last time a single party controlled redistricting legislation with majority leadership in Wisconsin was in 1951, the first major reapportionment of state legislative districts since 1892.4 Since then, control of the state house has been divided in redistricting years, often requiring a court to draw state legislative districts when the state legislature failed to act.5
In the last two cycles (1992 and 2002), a federal district court drew Wisconsin’s Assembly and Senate districts when the Wisconsin Legislature could not agree on a plan.6 The court’s 2002 plan has governed elections since then, including the elections in November 2010.
This cycle’s litigation in federal court challenges legislatively created maps, a departure from what has occurred in all of the last redistricting litigation cycles since 1951.
Federal court: Are Act 43 and 44 maps constitutional?
When redistricting is in the hands of one political party, there will be inevitable objections when that party is successful in drawing new districts through legislation, says Levitt, who has been following litigation in Wisconsin and other states and maintains a redistricting website.
Levitt says redistricting plans can unlawfully divide, consolidate, or otherwise arrange voters in a way that dilutes voting strength and favors one party’s incumbents to the detriment of the other party, a practice commonly referred to as “gerrymandering.”
Indeed, a group of Democratic voters and a Latino rights group filed suits in federal court last year, arguing that redistricting plans established by Act 43 and 44 did not meet requirements that new districts be substantially equal in population, preserve communities of interest, and keep districts relatively compact and adjacent, among other arguments.7
In addition, the plaintiffs initially argued that Republican lawmakers engaged in unlawful “partisan gerrymandering,” which occurs when one political group considers the political party affiliation of voters and representatives in current districts to draw lines that favor incumbents.
Early on, the federal district court reprimanded the defendants for failing to comply with discovery orders related to this claim. However, the plaintiff Democratic voters abandoned that argument before trial, perhaps because of the significant burden involved.
“The U.S. Supreme Court has made it very, very difficult to prove a partisan gerrymandering claim,” Levitt said, noting that a claim of partisan gerrymandering has been upheld just once, in North Carolina. “The Court has basically said: We all agree that too much partisanship is wrong, but we don’t agree on how you know there’s been too much partisanship.”
The U.S. District Court for the Eastern District of Wisconsin is expected to decide whether redistricting maps established by Act 43 and 44 will stand. If upheld, the court may also decide whether those maps should apply to any recall election, or defer to state courts on that issue.
State court: Will maps apply before November?
The other unique circumstance involving this cycle’s redistricting litigation in Wisconsin is the potential for recall elections before November 2012. Four Republican senators – Scott Fitzgerald (Juneau), Pam Galloway (Wausau), Terry Moulton (Chippewa Falls), and Van Wanngaard (Racine) – face possible recall elections before November.
Act 43 specifically states that new legislative districts apply to any recall election concurrent with the 2012 general election in November. But Republican voters are asking a state court to rule that they must apply to any recall election that occurs this spring or summer.
Republican legislative attempts to change Act 43’s initial applicability date failed.
In one lawsuit, filed with the Wisconsin Supreme Court, the Republican voters argue that using pre-Act 43 districts for any recall election is unconstitutional, because the 2010 census revealed that those legislative districts are now unconstitutionally malapportioned.8
Under Wis. Stat. sections 751.035 and 801.50(4m), if a party challenges apportionment of legislative or congressional districts, the party must notify the Wisconsin Supreme Court, which must appoint a three-judge panel to hear it. Any appeal would go directly to the supreme court.
The same group attempted to withdraw the lawsuit and filed another lawsuit the same day in Waukesha County Circuit Court.9 In that case, the petitioners abandoned a challenge based on malapportionment, which triggers the statutes requiring notice to the supreme court.
Instead, the Republican voters argue that Wisconsin’s Government Accountability Board (GAB) would violate the state constitution if it does not hold recall elections under Act 43.
GAB, which oversees elections, issued a formal opinion that Act 43’s districts will not apply to any recall election that takes place before November. However, GAB explains in its opinion that Act 43 is currently in effect with respect to representation, meaning some voters are now represented by different legislators than they were prior to passage of Act 43.10
Republican voters argue that recall elections not conducted under Act 43 districts would prevent voters from voting in a recall election of their current representative, and allow voters not currently represented by those legislators to vote in a recall election concerning them.
That violates Art. XIII, Section 12(7) of the Wisconsin Constitution, plaintiffs say. Section 12(7) states that “no law shall be enacted to hamper, restrict or impair the right of recall.” Both state cases are still pending, and could hinge on a decision by the federal district court.
Bill would shift redistricting responsibility in the future
Assembly Bill 198, introduced by Democrats in July 2011, would task GAB and the Legislative Reference Bureau with preparing redistricting maps. Electoral competitiveness would be one consideration in preparing the maps, which would be subject to approval by the Legislature.
Daniel Tokaji, an elections professor at Ohio State University’s Moritz School of Law, says redistricting “commissions” are preferable to ensure the redistricting process is fairer, less susceptible to political party influence, and more aligned with legal requirements.
Western states like California, Washington, and Idaho use bipartisan redistricting commissions to prepare maps. Wisconsin used commissions in the 1950s and the 1970s cycles.11 The 1951 plan was upheld by the state supreme court. The 1970s commission failed to agree on a plan.
“Independent commissions have the ability to draw fair lines without regard to their partisan effects,” Tokaji said, noting that California’s model is one of the best. “It’s not a perfect model, but it certainly creates a starting point for those interested in reforms.”
But Levitt says even redistricting plans prepared by commissions are not litigation-proof, noting that maps established by commissions in several states are facing challenges in court.
Although redistricting litigation is common, this year’s cycle involves unique issues in Wisconsin. Courts will soon decide whether maps drawn by a Republican-controlled Wisconsin Legislature should stand, and whether they apply to any recall election before November.
By Joe Forward, Legal Writer, State Bar of Wisconsin