Stability or “gerrylaundering”? Attorneys clash over using current maps as redistricting baseline

This blog post continues the focus of the Law School’s Lubar Center on redistricting.

In redrawing Wisconsin’s legislative and congressional district lines, politicians and judges face a question that often confronts authors and filmmakers: Whether to produce a sequel or create an entirely new work.

After panning the Republican-drawn 2011 maps as one of the nation’s most extreme partisan gerrymanders, Democrats and progressives find the idea of a sequel as horrifying as another installment of a Halloween slasher-movie franchise. They say it’s time for fresh new districts.

Republicans and conservatives, meanwhile, find comfort in continuing a familiar story — and, not so coincidentally, bringing back almost all of the same characters from previous episodes. They say stability is a virtue in redistricting.

Both sides argue their cases in briefs filed with the Wisconsin Supreme Court, after a legislative debate over a non-binding joint resolution laying out the GOP majority’s favored redistricting principles. The current phase of litigation seeks to define how the justices would redraw the maps if lawmakers can’t reach agreement with Democratic Gov. Tony Evers (and if the task doesn’t wind up in the hands of a three-judge federal court).

Robert Yablon has coined a term for the approach that Wisconsin Republicans advocate: “Gerrylaundering.” That’s also the title of a forthcoming paper for the New York University Law Review, in which Yablon, a University of Wisconsin Law School associate professor, describes how lawmakers try to lock in a prior gerrymander by perfunctorily cleaning up the old maps before clothing the state in them for another decade.

In gerrymandering, the best-known tactics are “packing” — jamming as many as possible of the minority party’s voters into as few districts as possible to minimize how many seats they can win — and “cracking” — spreading the minority party’s voters among multiple districts to prevent them from winning a majority in any of those districts. In gerrylaundering, Yablon explains, the main tactics are “locking” — freezing the old lines as much as legally possible — and “stocking” — placing one incumbent in each revised district.

Although Yablon’s research is based on what happened in other states in past years, his paper outlines the playbook that Wisconsin Republicans are following in the current redistricting cycle. That starts with the resolution pushed through by GOP legislative leaders, and continues with the briefs from them and their frequent ally, the Wisconsin Institute for Law and Liberty, the conservative legal organization representing the plaintiffs in the state case, Johnson v. Wisconsin Elections Commission.

“The techniques of gerrylaundering can double as justifications,” Yablon writes. “It is the built-in ability to cloak self-serving redistricting objectives in the guise of legitimate continuity-promotion efforts that puts the ‘launder’ in gerrylaundering.”

Most of the nine principles listed in the legislative resolution reflect state and federal law and widely accepted redistricting practices. But two principles drew Democratic objections: “core retention” and “continuity of representation.” Some of the briefs also advocate a “least change” approach, which Yablon says is related to, but not identical to, core retention.

Let’s take a closer look at those three issues:

Core retention: The resolution says new districts should “retain as much as possible the core of existing districts, thus maintaining existing communities of interest, and promoting the equal opportunity to vote by minimizing disenfranchisement due to staggered Senate terms.”

That’s listed third, ahead of the Wisconsin constitution’s requirements to keep districts compact and contiguous and to respect local government boundaries.

Keeping together “communities of interest” is an established redistricting principle that is listed separately in the resolution. Core retention, however, doesn’t have as much legal justification as communities of interest, Yablon said in an interview. And the goal of not disenfranchising Senate constituents is steeped in irony.

Wisconsin state senators serve four-year terms, with roughly half of the 33-member Senate elected every two years. Even-numbered districts are at stake in presidential election years, like 2012 and 2020, while odd-numbered districts are at stake in gubernatorial election years, like 2010 and 2022. That means that a redistricting plan that moves voters between odd- and even-numbered districts could lengthen their wait between senatorial elections to six years.

That is exactly what happened in 2011. The Republican-drawn Senate map shifted almost 300,000 residents from even- to odd-numbered districts, and voters who otherwise could have participated in 2012 Senate elections had to wait until 2014.

“I was arguing core retention then,” says attorney Doug Poland, who represented Democratic plaintiffs in Baldus v. Wisconsin Government Accountability Board, the first legal challenge to the 2011 maps. In part, Democrats contended the GOP map needlessly disenfranchised too many Senate voters.

One of WILL’s briefs in Johnson even cites Baldus, noting that the three-judge federal panel in that case agreed such moves should be minimized. However, as Poland notes, the Baldus judges didn’t find the Senate shift illegal and didn’t strike down the map on that ground. The only change that the panel ordered was in the boundary between two Milwaukee Assembly districts, to improve representation for the Hispanic community.

Notably, Evers’ executive order creating the advisory People’s Maps Commission also lists “retain the core population in each district” and “prevent voter disenfranchisement” as, respectively, the fifth and seventh of its seven redistricting principles.

Yablon says core retention is not recognized as a redistricting requirement in federal or Wisconsin law. Nationally, only three states — New Mexico, New York and Utah — have laws or constitutional provisions that mention it as a factor to be considered, and none of those states sets it as a priority over other considerations, he says.

Least change: In their Johnson briefs, both WILL and the Legislature (admitted as an intervenor) call on the justices to take a “least change” approach — using the 2011 maps as a starting point and revising district lines only as much as needed to account for population shifts and to accommodate other legal requirements.

“This ‘least change’ approach to reviewing maps is the most neutral way a court can update and redraw a map,” WILL’s brief says. It cites federal court rulings in Prosser v. Elections Board (1992) and Baumgart v. Wendelberger (2002), when three-judge panels redrew Wisconsin legislative district maps by using the prior maps as a baseline.

However, both the Prosser and Baumgart judges were working from maps drawn by other federal judges, not from a partisan gerrymander drawn by the Legislature, notes Poland, who is now litigation director for Law Forward. That progressive legal organization is representing three voters rights groups that filed a related federal lawsuit and have been admitted as intervenors in Johnson.

In fact, the Prosser judges held that “courts may not use existing maps as a starting point if they are ‘politically biased from the start,’ ” Wisconsin Department of Justice attorneys wrote in their brief on behalf of Evers, an intervenor in the case.

WILL and the Legislature reason that, since the Legislature has the constitutional responsibility to draw a map, the court should defer to lawmakers by starting from the last map approved by the Legislature and signed by the governor.

The Legislature’s brief further contends that the court should favor whatever maps lawmakers approve in this cycle, even if Evers vetoes them. But cutting the governor out of the process would contradict the state Supreme Court’s 1964 ruling in State ex rel. Reynolds v. Zimmerman, a case the justices cited in laying out the ground rules for Johnson, Poland notes.

Yablon calls the least-change approach an “extreme version” of core retention that isn’t supported by any federal or state laws or court decisions. He and Poland say it arguably contradicts the state constitution’s directive to “district anew.”

Ruth Greenwood, director of Harvard Law School’s Election Law Clinic, and her students make the same points in a scathing friend-of-the-court brief on this issue. They filed on behalf of some of the original plaintiffs in Whitford v. Gill, the Democrats’ second legal challenge to the 2011 maps, in which Poland and Greenwood represented the Democratic plaintiffs.

“Neither Wisconsin law nor its past practice justifies taking a least-change approach to redistricting,” Greenwood’s team writes. “In fact, they preclude it where, as here, the existing maps subvert constitutional criteria for partisan advantage. … Similarly situated courts have almost universally declined to use a least-change approach, often warning of its dangers.”

Adopting a least-change approach would “defy Wisconsin law and practice, buck national trends, and create a rare and illegitimate court-drawn gerrymander,” the amicus brief concludes.

Evers’ brief warns against a path that could lead to permanent gerrymandering.

“The ‘least-change’ approach would mean that an extreme partisan gerrymander would entrench partisan advantage not just for a decade but indefinitely,” Attorney General Josh Kaul’s team writes. “In other words, it would mean that by locking themselves into a legislative majority a decade ago, Republicans in the Legislature, absent major shifts in voting patterns, also locked themselves into a majority for the next decade, the decade after that, and so on. That not only is incompatible with any notion of democratic fairness, but it is simply antidemocratic.”

Continuity of representation: As its second-to-last principle, the legislative resolution says districts should “promote continuity of representation by avoiding incumbent pairing unless necessary to further another principle stated above.”

Advocates of such incumbent-protection measures — which Yablon calls “stocking” — typically defend them by arguing that constituents benefit from a stable relationship with their representatives, and that lawmakers gain influence as they gain seniority, he writes. On the other hand, the incumbents themselves created the system that rewards incumbency, he adds.

No state or federal laws countenance drawing lines to protect incumbents, Yablon says. By contrast, he writes, “at least a dozen states have laws that, in one form or another, affirmatively limit mapmakers’ efforts to privilege and perpetuate the status quo,” either by specifically prohibiting maps that favor any incumbent or party, or by excluding those concepts from lists of factors that may be considered.

Evers’ executive order lists “be free from partisan bias and partisan advantage” as the first principle for his advisory commission to follow. Similarly, his Johnson brief says the court should not approve any map designed for partisan advantage.

Seeking a middle ground, an intervenor group of digital scientists urges the justices to adopt a “best map” approach that balances stability with partisan fairness and also promotes competitive districts.

In a shot at both sides, the brief from the Citizen Mathematicians and Scientists says, “Because no other party advocates for competitive districts, one might infer that that both sides simply want safe seats for their respective parties or special interests. . . . When a map is devoid, or nearly devoid, of competitive districts, outcomes are preordained, and elections lose their meaning.”

This Post Has 2 Comments

  1. Tom Kamenick

    A few thoughts. First, nothing in the resolution says the list is in priority order, so criticisms that certain goals are above others miss the mark. Second, nothing says the only considerations allowed are those that are legally required. Third, I try to ignore questions of “irony” or hypocrisy and actually look at the merits of proposals. I agree that in 2011, it was wrong that some people couldn’t vote for who was going to represent them (and also were allowed to vote for people who wouldn’t be representing them), but that doesn’t mean minimizing that problem isn’t a worthy goal. Furthermore, outside of the question whether the existing maps are good or bad, I also think that continuity of representation and minimizing the changes to existing cores is inherently a good thing. Taking people and their representatives who have built relationships over time and splitting them up isn’t beneficial.

    1. Larry Sandler

      Although the resolution doesn’t explicitly say the list is in priority order, the 7th and 8th principles include such phrases as “unless necessary to further another principle stated above.” That language suggests the order is significant in establishing priority to some extent.

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