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April 2016: Federal Judges' Ruling Moves Wisconsin Redistricting Lawsuit Forward

Wisconsin State Legislature
Map of Wisconsin Assembly Districts

A three-judge federal panel on Thursday refused to end a lawsuit challenging Wisconsin's redistricting of state legislative boundaries. So the case, which could ripple nationally, will go to trial from May 24-27 in federal court in Madison.

State Republicans drew the boundaries in 2011, insisting it was the GOP's right and duty after winning control of state government. Democrat litigants insist Republicans unconstitutionally gerrymandered the lines to benefit the GOP.

The Wisconsin Dept. of Justice has filed several motions urging the federal court to dismiss the case. The judges denied one request in December, and on Thursday, turned down another motion to dispose of the case.

Original story from July 9, 2015:

Twelve Wisconsin residents, who vote for Democrats, are suing the state in federal court over the Assembly districts Republicans created following the 2010 census. The plaintiffs say the boundaries are unconstitutional and waste people's votes. 

The lawsuit asks the court to prohibit the state from using the map in next year's elections.

Following every 10-year U.S. census, states redraw their political boundaries. Wisconsin usually gave the job to judges because state government was politically divided. But in 2011, Republicans had won control of state government and solely redrew the districts.

A panel of federal judges reviewed the GOP map in 2012 after several groups challenged it, and the judges decided most of it was constitutional. Only two districts were found unacceptable because they violated the rights of Latinos on Milwaukee’s south side. The judges redrew those districts and scolded the GOP for conducting the redistricting process in secret.

This time, the new litigants are presenting the federal court with numbers. They insist the whole map is unconstitutional because of election results from 2012 and 2014.

One set of data being used is from Wisconsin’s 2012 Assembly races, where more Democrats than Republicans voted – 1.4 million versus 1.2 million. Yet, Republicans overwhelmingly captured the Assembly 60 seats to 39.

“When a minority party stays in power, even though they garner fewer votes, then the health of our democracy depends on our courts to fix the problem. We have one of the worst partisan gerrymanders in modern political history,” Attorney Peter Earle says. He represents the residents suing.

He says another set of numbers the plaintiffs are presenting is a concept called the efficiency gap. It calculates how many votes don’t really count in elections because districts are dominated by one party.

Chicago Law Professor Nicholas Stephanopolous helped create the metric. He says the average gap in all states over the last 40 years has been zero, meaning redistricting plans didn’t give either political party an advantage. But he says Wisconsin’s gap after its redistricting plan went into effect was 13 percent.

“The 2012 figure is the 28th worst score in modern American history, out of nearly 800 total plans,” Stephanopolous says.

While the case focuses on Wisconsin's political boundaries, the plaintiffs hope the case eventually has a bigger impact by reaching the U.S. Supreme Court. The attorneys say the high court has been awaiting a case to measure how much gerrymandering should be allowable, and this might be the case.

Bill Whitford says he just wants to make sure his vote counts. He’s the retired Wisconsin professor whose name is on the federal suit, Whitford v. Nichols (a member of the state Government Accountability Board).

“The district lines have been drawn so as to pre-determine the outcome of the election in virtually all the Assembly districts," Whitford says.

Whitford and others are suing the GAB, which is charged with implementing the Legislature’s redistricting plan.

Three former Wisconsin senators stood alongside him as the suit was announced. Democrat Tim Cullen and Republicans Dale Schultz and Dan Theno say they want to protect the vote at the ballot box. 

“The problem with the current system is that extreme gerrymandering tends to produce extreme politics,”  Theno said.

Schultz says he regrets not doing more to fight partisan redistricting while a leader of the state Senate during the process. He says when he and Cullen finally introduced a bill to change the process, the measure didn't even win a hearing in the Senate.

"Special interest money is so powerful now in our Legislature that I'm sad to report from first-hand experience, the majority of our legislators have been relegated to nothing more than pawns awaiting bills  written by special interests...this leaves us, the citizens of Wisconsin with no alternative than to turn to the court," Schultz says.

Cullen says partisan redistricting "rigs elections in favor of the parties that draw the maps" and lets the political parties protect candidates who "stick with the team."  Otherwise, Cullen says they'll face a challenger in the next primary.

The three former senators are supporting the lawsuit and leading a campaign in Wisconsin to promote fair redistricting.

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