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Partisan Gerrymandering Added to U.S. Supreme Court's Docket

The U.S. Supreme Court said Monday that it will decide in its next term a case brought by Democratic voters in Wisconsin who argue that state Assembly districts are unconstitutionally gerrymandered to favor Republicans. The court in a separate order delayed the drawing of new state Assembly district boundaries.

By Ed Treleven

The U.S. Supreme Court said Monday that it will decide in its next term a case brought by Democratic voters in Wisconsin who argue that state Assembly districts are unconstitutionally gerrymandered to favor Republicans. The court in a separate order delayed the drawing of new state Assembly district boundaries.

The action was announced in a list of orders that the court issued Monday. Arguments would likely be heard in the fall.

The case was initially decided in November by a panel of two federal district court judges and a U.S. Court of Appeals judge, which said in a 2-1 decision that the 2011 Republican re-draw of state Assembly boundaries is an unconstitutional partisan gerrymander.

The case is expected to have an impact nationally, deciding the standard by which courts can determine whether a redistricting plan is drawn unconstitutionally on the basis of the party affiliation of voters.

The Supreme Court had discussed the case at its June 8 and June 15 conferences, according to the court's docket on the case.

A separate order by the court Monday granted a motion by state Attorney General Brad Schimel to stay the lower court panel's order that new state Assembly district lines be drawn by November 2017, before the 2018 elections. The stay was opposed by Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagen, the court's four liberal-leaning justices.

But Paul Smith, lead attorney for the Democratic voters, said during a conference call with reporters Monday that even with the delay in creating new maps, it's possible that new maps would be in place before the 2018 fall elections. He said he expects that after briefs are filed in the case over the summer, oral arguments would be heard in November or December, followed by a ruling in spring 2018. He said that leaves plenty of time before a June filing deadline for state legislative races.

Schimel had asked the Supreme Court to delay the drawing of new boundaries until after the court rules on the merits of the case, arguing that drawing new maps would be a waste of resources.

"The stay is particularly important because it preserves the Legislature's time, effort and resources while this case is pending," Schimel said in a statement Monday applauding the stay.

UW-Madison political science professor Barry Burden said people shouldn't use the stay as an indication of where the court stands on the case overall. He added, though, that because of the time it will take for the Supreme Court to decide the case, "In 2018, we're very likely to be using the districts we have today," regardless of how the court rules. He said he doesn't believe the court will rule until possibly the middle of 2018.

Rick Hasen, a University of California-Irving law professor who blogs about election law cases, wrote Sunday night that the court granting a stay would indicate a good possibility that the court is positioned to reverse the lower court panel's decision in the case.

"So this stay order raises a big question mark for those who think (the) court will use the case to rein in partisan gerrymandering," he added Monday.


Both sides encouraged

Other lawyers who represent Democrats in election cases chimed in on Twitter Monday some skepticism about success in the case.

"The vote on the stay should tamp down some of the excitement about this grant," wrote Ronald Klain, who worked in White House under Presidents Barack Obama and Bill Clinton.

"Correct," responded Marc Elias, who was general counsel for Hillary Clinton's 2016 presidential campaign.

In a statement issued later by the National Democratic Redistricting Committee, Elias, an NDRC adviser, called the case "the latest sign that the courts remain a strong check on extreme Republican gerrymandering." He said the Wisconsin case, along with others, "will halt these illegal maps, now and in the future."

Wisconsin Democratic Party chairwoman Martha Laning said, however, that she is "confident that the 2011 legislative maps will be declared unconstitutional by the Supreme Court as well and electoral fairness will be restored to Wisconsin."

Twelve Republican-dominated states are supporting Wisconsin in its defense of the 2011 redistricting plan. In addition, Wisconsin GOP legislative leaders hired a pair of law firms to represent them before the Supreme Court.

"We've already had two federal courts declare the map unconstitutional in part or whole," said Sachin Chheda, director of the Fair Elections Project, which organized and launched the lawsuit on behalf of a group of Democratic voters in Wisconsin. "It's time for the Legislature to stop with the false talking points and focus on ensuring every Wisconsin citizen has their rights protected by drawing new maps now."

Schimel said in a statement that he's "thrilled" the Supreme Court has taken the case.

"As I have said before, our redistricting process was entirely lawful and constitutional, and the district court should be reversed," Schimel said.

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald said in a joint statement that they are "encouraged" by the Supreme Court's decision to take the case and the stay in the order to re-map Assembly districts.

"Wisconsin lawmakers have maintained that our state's redistricting process and legislative maps are legal and constitutional, and we look forward to the Court's final decision, which we are confident will affirm our position," Vos and Fitzgerald said.

The U.S. Supreme Court has never struck down a state redistricting plan on the basis of a partisan gerrymander.

In May, the court struck down two North Carolina congressional districts that it said were based too heavily on race, and that Republicans who controlled the state legislature and governor's office placed too many African-Americans in the two districts. That weakened African-American voting strength elsewhere in the state, the court said.


'Taking unfair advantage'

In its decision on Wisconsin's case, the majority in the lower court panel decision wrote that the Assembly district map, which was drawn in the office of a Madison law firm that often represents Republican interests, "was intended to burden the representational rights of Democratic impeding their ability to translate their votes into legislative seats."

U.S. Appeals Court Judge Kenneth Ripple, an appointee of President Ronald Reagan, wrote the decision, and was joined by U.S. District Judge Barbara Crabb, of Madison, a Jimmy Carter appointee. Dissenting was U.S. Chief Judge William Griesbach of Milwaukee.

In a subsequent ruling, the lower court panel ordered that the Legislature must have a new redistricting plan in place by Nov. 1, 2017, for the 2018 general election.

The team working on behalf of the Democratic voters contends that it has found a way to measure unconstitutional partisan gerrymanders designed to give a "large and durable" advantage in elections to one party -- a measure that the Supreme Court has said was lacking in previous cases contending a partisan gerrymander.

The measure, called the efficiency gap, shows how cracking (breaking up blocs of Democratic voters) and packing (concentrating Democrats within certain districts) results in wasted votes -- excess votes for winners in safe districts and perpetually inadequate votes for the losers.

The Democrats say that the 2011 plan was drawn specifically to disenfranchise Democratic voters. Their lawsuit states that in the first election after the 2011 redistricting, Republican candidates won 60 of the Assembly's 99 seats even though Democratic candidates won a majority of the statewide votes cast for Assembly.

Trevor Potter, president of the Campaign Legal Center, who has worked on behalf of Republican candidates such as U.S. Sen. John McCain in the past, said partisan gerrymandering is practiced by both parties, thanks to computer software that makes selecting voters for district maps much easier than in the past.

"What we're seeing is where possible the party in power is taking unfair advantage of their official position to benefit their parties and ensure that the will of the voters is not carried out," Potter said. "The effect of this is a serious problem for our democracy."

Burden said that if the Supreme Court overturns the lower court panel's decision, it could be a long time before another partisan gerrymandering case lands at its doorstep. But if it upholds the lower court, it will be a landmark decision.

"That's a message to other states that they also need to prevent partisanship from going too far," Burden said.

State Journal reporter Mark Sommerhauser contributed to this report.

(c)2017 The Wisconsin State Journal (Madison, Wis.)

Caroline Cournoyer is GOVERNING's senior web editor.
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