A Primer On Wisconsin's Redistricting As Preparations For Legal Battles Heat Up
Wisconsin, like every other state in the country, will be redrawing its congressional and legislative boundaries this year based on 2020 census data. Wisconsin’s GOP-controlled Legislature has the power to draw those maps, and they’re preparing for a legal battle.
The Wisconsin Supreme Court recently reinstated private attorneys hired by Republican lawmakers to help them prepare for lawsuits over the maps. But, unlike in 2011, when Republicans drew maps in secret with the help of a Madison law firm, and Republican Gov. Scott Walker approved them, Wisconsin’s governor is now a Democrat.
UW-Madison politics professor David Canon explains what that means going forward. “Well, in all likelihood, it means that the redistricting process will end up being decided in the courts," he says. "Because whatever maps the Republican Legislature ends up drawing will likely be vetoed by Gov. Evers. And then the courts will have to end up drawing the maps, which is in fact what happened in Wisconsin for the previous four rounds before 2012, the 2010 redistricting cycle."
In the previous four decades, Wisconsin had split control of government, where one party didn't control both the state Legislature and the governorship. “So, 2010 cycle was, in fact, the exception. And what we have this time around is more what we had seen in the past, which is divided government control, and therefore a dispute that ends up in the courts," Canon says.
Canon says in a federal lawsuit over those maps, Gill v. Whitford that ended up in U.S. Supreme Court, plaintiffs brought evidence that the Wisconsin partisan gerrymander was one of the most egregious in the last 50 years in the United States.
What that means is that Democrats are consistently not being represented the way that the votes are being cast, Canon says. “In a more fair system, you get 51% of the votes, you should get about 51% of the seats. Instead, you know, Democrats were getting 38% of the seats when they got 52% of the vote. And so that's just not fair on its face,” he says.
Canon says people correctly ask, "Well, isn't that just because Democrats are concentrated in Milwaukee and Madison, and Republicans are spread out more evenly across the state?"
“And indeed, there is some proportion of the bias that is because of that natural advantage that Republicans have of being more evenly spread out in the state, whereas Democrats are more concentrated in urban areas," he says.
But again, says Canon, the experts who testified in the federal trial testified that between one-fourth to one-fifth of the bias was due to natural causes. “So, if you would have a neutrally drawn map, that would try to be as fair as possible, the Republicans would still have about a 2% advantage, but instead, they have about a 10% advantage. So ... the actual bias is about five times what it would be if you had a more neutrally drawn map, he says.
Canon says, yes, there is some natural advantage Republicans have just due to where people live. But the greatest share of that bias is because of the partisan gerrymander that happened in 2011.
Canon notes that in Wisconsin in 2010, Republicans controlled the Legislature and gerrymandered in their favor. He says in Illinois, which was controlled by Democrats, there was a gerrymander in favor of Democrats.
This partisan structure is why it makes sense that at least 55 of Wisconsin 72 counties have passed resolutions or referenda supporting nonpartisan redistricting and why, according to a Marquette University Law School poll, more than 70% of Wisconsinites would prefer to have redistricting conducted by a nonpartisan commission, says Canon.
Nonpartisan redistricting models take the power to draw maps out of the hands of politicians.
Canon says in our era of polarized politics where everything seems to be a Democratic issue or a Republican issue, partisan redistricting is one of these rare examples of something that's not a Democratic or Republican issue. “This is a party in power versus a party out of power issues, both parties do it, both parties, if they have the opportunity to draw the lines in their favor, they're going to do it,” he says. Even though in recent years, partisan gerrymandering overall has benefited Republicans.
Canon says anyone who studies the issue for a few minutes realizes that we don’t want politicians picking their voters in a Democracy, we want voters picking their politicians.
He also notes that in 2009-2010, when both the governorship and the Legislature in Wisconsin was controlled by Democrats, those officials could have enacted nonpartisan redistricting.
“But just like every other party that's in power, they think they're going to be in power forever," Canon says, "and they wanted to have the power to draw the district lines in 2011. And, of course, the Republicans, you know, swept into power in 2010.”
Wisconsin Democrats are renewing calls for nonpartisan redistricting reform, advocating that the state to take up the Iowa Model, which has nonpartisan legislative staff follow strict criteria for redistricting.
Evers has set up the People’s Maps Commission as an attempt to see what a fair map would look like. Its goal is to use more neutral principles of compact districts that respect political subdivisions that are equal in population that don't violate the Voting Rights Act.
Canon says while these maps are not binding on the Legislature, a court could use them in weighing what fair districts are.
In 2019, the U.S. Supreme Court ended Gill v. Whitford’s prospects in a ruling in North Carolina case Rucho v. Common Cause, ruling that the federal courts had no business ruling on partisan gerrymandering of congressional and legislative districts. The Supreme Court found gerrymandering is a political question that should be decided by elected officials.
“So, what that meant is that state courts now are the only option for partisan gerrymandering claims, but we still have the Voting Rights Act in effect,” says Canon. “And, so if there are any racial gerrymandering claims, those would be brought in federal court. [Racial gerrymandering can deprive Black and other minority voters of political power.] So, it's quite possible, we would see two different lawsuits that would be challenging the plans, one in state court on partisan grounds, one in federal court on racial grounds.”
Canon says since this change made via Rucho wasn’t until a few years ago, the state hasn’t dealt with the issue of not being able to take partisan gerrymandering to the federal courts. But he says the courts would work this out in some way because there couldn’t be two different maps.
Here are some key cases on redistricting from the U.S. Supreme Court.