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Wisconsin's Split Government From 20 Years Ago Provides Redistricting Litigation Blueprint For Democrats

Maayan Silver
Inside of the Wisconsin State Capitol building.

Wisconsin’s Republican-controlled Legislature has asked a federal court to dismiss a lawsuit brought by Democrats about redistricting.

Democratic plaintiffs requested that a judge take over the process of drawing new political district boundary lines — if GOP lawmakers and Democratic Gov. Tony Evers can’t reach an agreement.

Phil Rocco, associate professor of political science at Marquette University, puts the lawsuit into context, starting with a primer on how Congressional and legislative boundaries are drawn.

"In most states, including Wisconsin, legislative districts for Congress and state legislators are drawn through a political process drawn by typically people hired by the state Legislature, and then either approved or vetoed by a governor," he explains. “And so in 2010, when the last districts were drawn, Republicans held control both of the state both chambers of the state Legislature and the governorship. As a result, they were able to draw the lines in a way that very much advantaged their party.”

Rocco says 2010’s redistricting was very different than moments in Wisconsin political history where the governorship and state Legislature were controlled by different parties. “In those cases, typically, the process has gone to a court and the court has essentially drawn the lines for the state,” he says.

Maayan Silver's extended conversation with Phil Rocco.

U.S. Census data was released on August 12 for states to begin their redistricting process. A day later, Democrats brought a lawsuit on behalf of voters from Dane, Waukesha and Shawano counties. Rocco says this 2021 lawsuit is very different from a lawsuit argued in 2017 that alleged that districts in Wisconsin were gerrymandered.

“Instead, what this lawsuit alleges is that given the new census population data, the maps for the congressional and state legislative districts that are currently in place in Wisconsin are malapportioned, which means they're not roughly equally populated,” he says. “And in contrast to gerrymandering, which the United States Supreme Court has basically said that it cannot adjudicate, the United States Supreme Court has routinely said that federal courts can intervene to prevent malapportionment and said this since the 1960s.”

Rocco says this new case is a very different case. “And it looks a lot like a case that was brought in 2000, in which voters basically said that because of likely legislative conflict that was going to happen between the chambers of the Wisconsin state Legislature that they were not going to have maps drawn in time to begin the process of getting ready for the primary and general elections in the next election year.”

The court in that case sided with those voters and intervened to draw the maps for Wisconsin.

Republicans are calling the lawsuit “wildly premature.”

Rocco says the courts will want to at least give the Legislature and the governor a reasonable opportunity to come to an agreement and to draw the maps. “But at the same time, what the voters here [are] asking for is to say set a timetable for that because we can't just have sort of an indefinite period of time for the Legislature and the governor to come to an agreement.”

Candidates need to start preparing for elections and know who they're going to be representing, he says, and voters need to be able to understand who their representatives are likely to be and in what district they're in fact in.

“And the longer you push this out, the closer you come to a situation in which it is to infeasible to actually draw new maps in time for the election. And so you have the possibility that the Legislature would just use the maps that are already in place, which are from a constitutional standpoint, invalid," Rocco says.

Republicans in the Legislature will try to intervene in the case and get the case dismissed in federal court, he says. There will also likely be an attempt to have the Wisconsin Supreme Court draw the maps, a venue that Republicans perceive to be friendlier to their interests.

But in the early 2000's litigation, Rocco says the state Supreme Court refrained taking the case because it was already in federal court and the state court said it did not want to create an unnecessary conflict of law and waste taxpayer resources trying to duplicate the effort.

Rocco says at a minimum, this litigation signals to the state Legislature and the governor the seriousness of the matter and tightness of the timetable.

“Regardless of the outcome [of the lawsuit], I think it might send that sort of political signal to the branches of the state government that there's some time of the essence here,” he says.

Maayan is a WUWM news reporter.
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