Federal court panel largely upholds Republican-drawn legislative redistricting maps

By Joe Forward, Legal Writer, State Bar of Wisconsin

March 22, 2012 – A three-judge panel of the U.S. District Court for the Eastern District of Wisconsin today upheld all but two state legislative districts drawn by a Republican-controlled Wisconsin Legislature. It also upheld a congressional redistricting map.

The panel lamented on the secrecy and partisan nature of this cycle’s redistricting process and harkened back to “a time when Wisconsin was famous for its courtesy and its tradition of good government,” but ultimately ruled the maps did not violate the law, save a violation of federal law requiring a change to Assembly districts 8 and 9 in Milwaukee County.

According to Wisconsin Attorney General J.B. Van Hollen, any appeal would go directly to the U.S. Supreme Court.

Under the panel’s decision, the redistricting maps will not take effect for voting purposes until the November elections – meaning they won’t be in place for any recall elections that take place before November – unless a state court rules otherwise.

The Wisconsin Legislature reapportioned the state legislative and congressional districts through 2011 Wisconsin Act 43 (state) and 2011 Wisconsin Act 44 (congressional) in August 2011. Redistricting maps, once established, control representation and elections for 10 years.

States must reapportion both state legislative and congressional districts to account for changes and shifts in population, as determined by each decennial census. Wisconsin has eight congressional districts, 99 state Assembly districts, and 33 state Senate districts.

A basic requirement is that redistricting maps be relatively equal in population, giving each voter in each district equal voting power, known as the “one person, one vote rule.” The federal Voting Rights Act of 1965 protects the voting power of racial and minority groups. The state constitution also requires that new districts meet other redistricting criteria.

Democratic voters and a Latino rights group, Voces de la Frontera, quickly challenged the lawfulness of Act 43’s state legislative districts. Wisconsin’s Democrat members of the U.S. House of Representatives – Tammy Baldwin, Ron Kind, and Gwen Moore – challenged Act 44 as intervenors. The case went to trial in federal district court on Feb. 23-24.

The specially-appointed panel – Judge Diane Wood (7^th Circuit Court of Appeals), Judge J.P. Stadtmueller (Eastern District of Wisconsin) and Judge Robert M. Dow Jr. (Northern District of Illinois) – chided the “sharply partisan methodology” used in the redistricting process.

However, the panel ruled in Baldus et al. v. Brennan et al., No. 11-cv-562 (March 22, 2012), that just two state Assembly districts (8 and 9) violated the Voting Rights Act of 1965. Otherwise, the panel upheld the other 97 Assembly and 33 Senate districts established through redistricting.

“[W]e find that although the drafting of Act 43 was needlessly secret, regrettably excluding input from the overwhelming majority of Wisconsin citizens, and although the final product needlessly moved more than a million Wisconsinites and disrupted their long-standing political relationships, the resulting population deviations are not large enough to permit judicial intervention under the Supreme Court’s precedents,” the panel wrote in a per curiam opinion.

The panel also upheld congressional districts established by Act 44, concluding that “Act 44 has zero population deviation, which is why we find that intervenor-plaintiffs have no meritorious ‘one person, one vote claim,’” the panel noted, also striking a partisan gerrymandering claim.

Population deviations too small

The panel dismissed the argument that Act 43’s large population shifts from one district to another – approximately 2.4 million people for new Assembly districts, and approximately 1.2 million for new Senate districts – violated redistricting principles under the U.S. Constitution.

“[T]he partisan motivation that, in our view, clearly lay behind Act 43 is not enough to overcome the de minimis population deviations that the drafters achieved,” the panel wrote, noting that population deviations from one district to another were less than one percent.

“Numbers like these place a very heavy burden on the plaintiffs to show a constitutional violation,” the panel wrote. “In the final analysis, they have failed to surmount that burden.”

Disenfranchisement argument fails

The plaintiff democrats also argued that Act 43’s new Senate districts shifted nearly 300,000 people in a way that would unconstitutionally delay their right to vote in a Senate election, known as disenfranchisement, since Senate elections are staggered every two years.

Specifically, the plaintiffs argued that too many people were shifted from even-numbered Senate districts (who vote for senators in 2012) to odd-numbered Senate districts (next scheduled to vote for senators in 2014), unlawfully delaying their vote.

However, the panel rejected that argument. “While were are sympathetic to the nearly 300,000 voters who have lost their opportunity to vote for a state senator for two years, we find that Act 43 does not violate the Equal Protection Clause on this basis,” the panel wrote.

Congressional districts okay: Equal Protection and gerrymandering claims fail

The plaintiff-intervenors challenging redrawn congressional districts – Wisconsin’s three Democrat U.S. House members – argued that Act 44 did not preserve communities of interest in violation of the Equal Protection Clause. Wisconsin’s incumbent members to the House, with a Republican majority, drafted the congressional map culminating in Act 44.

The Democrat plaintiffs also argued that Republicans engaged in partisan gerrymandering in drafting Act 44’s congressional districts to favor their own party for future elections. (Plaintiffs challenging Act 43 abandoned a similar partisan gerrymandering claim before trial).

However, the court rejected those arguments, concluding that Act 44 preserved the “one person, one vote” rule and the partisan gerrymandering claim must fail with no manageable legal standard to determine whether partisanship rises to an unconstitutional level.

The panel noted that Wisconsin’s Republican members of the House –Reps. James Sensenbrenner, Paul Ryan, Thomas Petri, Reid Ribble, and Sean Duffy – expressed a “desire to draw districts that would maximize the chances for Republicans to be elected.”

However, the panel explained that U.S. Supreme Court jurisprudence on partisan gerrymandering claims requires litigants to formulate a manageable legal standard to test constitutionality, and the plaintiffs failed to do that. “Without a specific proposal on the table, we are unable to evaluate the merits of this partisan gerrymandering claim,” the panel wrote.

Act 43 violates Voting Rights Act

The plaintiff democratic voters and Voces de la Frontera argued that Act 43 violates the Voting Rights Act because Assembly districts 8 and 9 unlawfully divide a Latino community into two districts, thereby diluting the power of their vote. The panel agreed.

“[P]laintiffs are entitled to relief on their Section 2 [Voting Rights Act] claim … because Act 43 fails to create a majority-minority district for Milwaukee’s Latino community,” wrote the panel, noting that those districts must be redrawn quickly without disrupting other districts.

In a statement responding to the decision, Van Hollen said: "While the intent of the maps was to create two assembly districts where Latino voters were likely to be dominant, the Court concluded that it was better to draw the line so that Latino voters were more concentrated in one of the districts." 

The Wisconsin Department of Justice represented members of the Wisconsin Government Accountability Board (GAB), who were defendants in the case because that office oversees and enforces election laws.

Do maps apply to any recall election before November?

The panel did not decide whether Act 43 maps apply to any recall election that takes place before November, concluding that no case or controversy exists for the federal court to decide.

Act 43 specifically states that it is effective, for purposes of elections, starting in November 2012. Republican voters have challenged this effective date in state courts, arguing that Act 43’s maps must apply to any recall election before November on constitutional grounds.

The state courts have not yet decided the issue and three Republican Senators – Majority Leader Scott Fitzgerald (Juneau), Terry Moulton (Chippewa Falls), and Van Wanngaard (Racine) – are facing recall elections in May or June.

GAB issued a formal opinion that any recall election that takes place before November will be conducted under pre-Act 43 maps, and the panel suggested that there would be nothing unconstitutional about doing that.

“If, however, a time comes when the GAB proposes to take a different action, either on its own or by virtue of a state court ruling, and there is a live controversy, plaintiffs may return to this court and present whatever arguments that may have on this question,” the panel wrote.

Related article

• Redistricting: Litigation common, current cycle unique in Wisconsin – WisBar InsideTrack, March 7, 2012