Attorney General Brad Schimel and the state Department of Justice have filed a motion to dismiss a lawsuit filed last month by 12 state democrats arguing the 2011 redistricting map, Act 43, created a partisan gerrymander.

The case is brought against members the Wisconsin Government Accountability Board (GAB), which runs elections but do not draw the maps. The Department of Justice will represent GAB in the case. The plaintiffs have requested that a panel of three judges decide the case, which could expedite the timeframe. It is even likely the Supreme Court could potentially decide the case before the 2016 election.

In the dismissal motion, Schimel argues that the United States Supreme Court has previously rejected the plaintiff’s argument on the grounds that “partisan gerrymandering claims present nonjusticiable political questions.” Furthermore, the motion goes on to assert that there is no constitutional right for a political group to obtain a percentage of legislative seats corresponding to the percentage of votes their candidates earn statewide in legislative contests. Additionally, the motion argues that the lack of a judicial standard does not create grounds for throwing away the map, and that the mathematical models provided by the plaintiffs cannot create the standard when there is no history or constitutional theory of what should be measured. Lastly, Schimel opines that the 12 democratic plaintiffs lack standing to challenge the map statewide because a plaintiff can only challenge the district of their residence. 

In the twelve Democrats’ complaint, they assert that there was intent to “systematically disadvantage” voters based on particular partisan viewpoints. In addition, they argue that their Democratic political beliefs have been burdened and underrepresented under the First Amendment right of free association.

The plaintiffs measure the level of an unfair gerrymander through an efficiency gap measured by “cracking and packing.” First, a party’s supporters are cracked among a large number of districts so they create a minority in each. Next, other supporters are packed into a small number of districts where huge majorities are created. The group asserts that cracking and packing produce “wasted” votes or excess votes not needed to elect a candidate. They claim packed votes are wasted in the overwhelming majority and cracked votes are wasted for a losing candidate. The efficiency gap is then calculated as the difference between wasted votes and the total number of votes cast. The plaintiffs calculate the efficiency gap for the Wisconsin Assembly in 2012 as 13% and 2014 as 10%.

In previous U.S. Supreme Court cases, the court has found certain redistricting maps unconstitutional, but it has never provided a standard for distinguishing legal and unconstitutional maps. The group hopes that this suit could set a new standard for partisan redistricting, and plans to file litigation in other states, including in states where the maps benefit Democrats. The most recent interpretation offered by the U.S. Supreme Court came from League of United Latin American Citizens v. Perry (2006), in which the court offered a partisan symmetry requirement that “the electoral system treat similarly-situated parties equally.” The dismissal motion cites Vieth v. Jubelirer (2004) in which U.S. Supreme Court held gerrymandering claims present inherent political questions, which the court cannot rule.