Last week, a panel of three federal judges ruled that a case filed by twelve Wisconsin Democrats against the state’s legislative redistricting plan can move forward. The Wisconsin Department of Justice (DOJ), representing Government Accountability Board (GAB), had argued that the plaintiffs lacked standing to file suit, as they did not have a challenger from each of the 99 Assembly districts. The panel disagreed and declined to dismiss the lawsuit, however the court left open the possibility that the DOJ could re-raise the issue in a later motion.
The panel set the trial date for May, 2016. If a decision in the case is appealed, it would go directly to the United States Supreme Court.
The ruling came from U.S. District Judge Barbara Crabb, federal Circuit Judge Kenneth Ripple and Chief U.S. District Court Judge William Griesbach for the United State District Court in Milwaukee. Judge Ripple and Judge Griesbach were appointed by Presidents Ronald Raegan and George W. Bush, respectively. Judge Crabb was appointed by President Jimmy Carter.
In a 30-page lawsuit, the petitioners posit that this redistricting is in violation of the First and Fourteenth amendments and has created “one of the worst partisan gerrymanders in modern American history.” Furthermore, the 12 Democrats claim there was intent to “systematically disadvantage” voters based on particular partisan viewpoints and that their political beliefs have been burdened and underrepresented under the First Amendment right of free association.
The law firm Michael, Best & Friedrich, LLP was hired by Republican Leadership to represent the Wisconsin Senate and Wisconsin Assembly in connection with redistricting after the 2010 census. The plaintiffs claim the firm was hired to assist in “planning, drafting, negotiating, and gaining the favorable vote of commitments of a majority of Republican legislators.”
The case is brought against members of the GAB, which runs elections but does not draw the maps.
In previous United State 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, in which the court offered a partisan symmetry requirement that “the electoral system treat similarly-situated parties equally.”
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%.