Wisconsin Redistricting Lawsuits: What They Can And Can't Address
There are currently several legal challenges to Wisconsin’s redistricting process in federal and state courts. That’s even though the GOP-controlled Legislature tasked with drawing up the legislative and congressional district maps in Wisconsin only received the U.S. Census data needed to start the process last month.
Every 10 years, the Legislature in Wisconsin uses census data to draw up legislative and congressional boundary maps that the governor must approve. It’s also called “reapportionment.” The key issue with reapportionment is that the various districts are roughly equal in population, said Marquette University Associate Professor of Political Science Philip Rocco.
"So when census population figures change, that means that unless you change the districts, sometimes people can experience what's called vote dilution, meaning that you begin to live in a district with a lot more people than other districts," Rocco explained. "And the power of your vote, as a result, is diluted. Every 10 years, state legislators have to reapportion so that that doesn't happen."
This is sometimes known as "one person, one vote" and is guaranteed by the Fourteenth Amendment and Article I of the U.S. Constitution.
Why are lawsuits being brought before the maps have been drawn? Rocco said it's about timing.
"Wisconsin has no official statutory or constitutional deadline for redistricting," Rocco said. "So, there's nothing in the law that says by such and such date that new districts have to be drawn, which might be fine, except that elections have to happen on a particular timeline, candidates need to know what district they're running in, voters need to know what district they're living in. And that all has to happen in advance of the deadline for filing paperwork."
The Wisconsin Elections Commission has a deadline to establish which races are going to run in the state. "That means that by about March 15, we need to know what the districts are," said Rocco. "And constitutionally, those districts have to be appropriately apportioned. So, if things don't happen by that date, we've got a problem."
But both Republicans and Democrats expect some partisan gridlock in the state, with the state's GOP-led Legislature coming up with a map that Democratic Governor Tony Evers is likely to veto.
"What we know from the past is in every single redistricting year, when there's a governor and legislature of different parties, it takes a long time, there are many different proposals, different maps, and there's a lot of conflicts, which means that there's a risk that the political branches of the state government are not going to do it on time," said Rocco.
He said that's why both Republicans and Democrats are asking the courts to step in. The Wisconsin Institute for Law and Liberty, a conservative law firm, has filed a lawsuit asking the Wisconsin Supreme Court to take the case, and Democrats and voting rights groups have asked the federal courts to take jurisdiction.
"The Wisconsin Institute for Law and Liberty represents the Republican voters in this in this matter, has basically said that the Wisconsin Supreme Court has the primary authority to act because of a precedent called Grove v. Emerson, which requires federal courts to defer disputes to state courts when they involve redistricting in a state," Rocco said.
But Rocco said that case isn't clear-cut. "And even if the Wisconsin State Supreme Court took the case as an original jurisdiction, it couldn't take evidence. It's not a court that there's an evidence box in. And so that's one of the reasons why in the past, even conservative justices that typically rule sort of with Republicans have been very reluctant to take on this matter as an original jurisdiction case."
Additionally, even if the Wisconsin Supreme Court took the case, Democrats could appeal those results to federal court. "And [that] would put the case on a collision course, with the case that's already rolling in the federal court right now," said Rocco.
He noted that Wisconsin Supreme Court Chief Justice Patience Roggensack had expressed deep skepticism of the idea that her court could take evidence and draw maps. However, Rocco said he thinks the federal court will ultimately be the venue where this is resolved.
If that happens, the federal courts will look at maps that have been suggested and act to make sure that there's not a lot of partisan or racial gerrymandering.
"In other words, [that the Legislature hasn't drawn] a district where voters of a particular race or particular party are cracked into a large number of districts where their power is diluted or packed into a small number of districts where their preferred candidate wins overwhelmingly, also diluting their power," said Rocco.
Rocco said that if the federal courts draw the maps, it's almost sure to be less extreme of a partisan gerrymander than the districts the Wisconsin Legislature drew in 2011.
"Because that's one of the most extreme maps that's ever been drawn in the history of the state," he said. "So, it wouldn't take very much for the federal court to draw a map that's less gerrymandered than that one."
Rocco said regardless of what the courts establish as the timeline for drawing maps and as the maps themselves, the lawsuits currently at play do not address any potential undercounts in places like the city of Milwaukee.
"So right now, what we've seen in other cities, in Los Angeles, for example, there's some evidence that are leading indicators of large undercount in some parts of the city," Rocco said. "Officials in the city of Milwaukee have suggested the same thing might be going on here. We won't really know until there's a post-enumeration survey by the Census Bureau."
Rocco said that even if that's the case, we're not going to see a resolution in time for redistricting.