Whose maps are least changed of all?   

Posted on Categories Election Law, Lubar Center, Public

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

Change, like beauty, appears to be in the eye of the beholder.

After the Wisconsin Supreme Court ruled that new legislative and congressional district maps must change as little as legally possible from the current maps, observers saw it as a win for the Republicans and conservatives who sought that ruling. Democrats have condemned the maps drawn in 2011 as an extreme partisan gerrymander that has locked in GOP control of the Legislature for the past decade.

But while least-change maps are sure to be Republican-majority maps, they’re not necessarily going to be the same maps that the GOP-controlled Legislature approved last year, only to be vetoed by Democratic Gov. Tony Evers. And the ruling hasn’t driven all the rival map-changers out of the courtroom.

Instead, Justice Rebecca Bradley’s majority opinion has prompted a legal debate over exactly what “least change” means—and a contest in which nearly all of the parties are competing to convince the court that their preferred maps would change less than those submitted by their opponents.

In fact, most of the parties—and others jumping into the case—are targeting the GOP-approved maps as violating the least-change standard the GOP claimed to be upholding. They contend that Republicans went beyond legally necessary changes and tinkered with district lines in ways intended to solidify their already-sizable majority.

The dispute over least-change interpretations shows not only in the briefs filed by the various parties in support of their maps, but also in the last-minute maneuvering ahead of the oral arguments scheduled to begin Jan. 19. Among the most recent developments:

  • In a 4-3 ruling, the justices shot down a request by the state’s five GOP congressional representatives to offer an alternative U.S. House map with fewer changes than the one approved by the Legislature (but vetoed by Evers). The congressmen said that they weren’t backing off their support for the legislature’s map, but just wanted to give the court another option. Other parties cried foul, saying a prior court order only allowed them to correct a previously submitted map, not submit a second map.
  • A group of 36 “concerned voters” from around the state filed a friend-of-the-court brief urging the justices to reject the GOP maps, citing several changes that they regarded as not required to meet legal standards. The voters, aligned with the Wisconsin Maps Assessment Project (WIMAP), also called on the court to avoid plans that protect incumbents and not to rate maps by arbitrarily chosen criteria. The latter point is aimed at a “scorecard” suggested by the Wisconsin Institute for Law and Liberty, the conservative legal organization that brought the case.
  • Eight law professors from around the nation filed a friend-of-the-court brief calling for the justices to reject every map submitted by the parties, contending that they all display partisan bias. The legal academics, led by the University of Wisconsin-Madison’s Robert Yablon, also assailed the “least-change” ruling as unworkable. They urged the high court to either find an independent expert to draw unbiased maps, or to dismiss the case altogether and hand it off to a three-judge federal court.

Yablon has coined the term “gerrylaundering” to describe the practice of locking in prior gerrymanders under the guise of minimizing changes.

The legal academics’ brief explained why the parties were able to come up with widely differing interpretations of Bradley’s opinion. “Because new maps can resemble or diverge from their predecessors along many dimensions, discerning ‘least-change’ primacy is akin to determining which children are most like their parents,” Yablon and company wrote.

Contrary to an assertion in Bradley’s ruling, the least-change doctrine isn’t generally accepted, and therefore isn’t delineated by law or by prior court decisions, the legal academics’ brief said, echoing a point raised in Justice Rebecca Dallet’s dissent. Most of the cases that Bradley cited revolve around legal considerations specific to Georgia, and even in those cases, the courts “did not conduct least-change beauty pageants among party-submitted maps,” the academics wrote.

As a result, the high court now must decide how to balance changes in population and geography with legal requirements, other traditional redistricting considerations, and arguably political questions such as impact on incumbents, the legal academics said.

“In short, the least-change approach is a standardless morass,” the academics concluded.

For example, if the court chooses to judge the amount of change by how many people are moved into different districts, maps proposed by the state’s governor, Tony Evers, would come out on top, according to an analysis by John D. Johnson, research fellow in the Lubar Center for Public Policy Research and Civic Education at Marquette Law School.

The governor’s Assembly map would move 14.2 percent of the state’s population into new districts, compared with 15.8 percent under the Republican map, 15.9 percent under a map from voting rights groups, and 16.4 percent under a map from state Senate Democrats. Evers’ Senate map would move 7.8 percent of people into new districts, the same as the GOP map, compared with 9.5 percent for the map proposed by Senate Democrats and 10.4 percent for the one from voting rights groups. And the governor’s congressional map would move 5.5 percent of residents into new congressional districts, compared with 6.5 percent under the Republican map.

As the law professors noted, the maps also must meet legal standards under the state and federal constitutions, court rulings, and the federal Voting Rights Act. In his concurring opinion, Justice Brian Hagedorn said the justices should look at traditional redistricting considerations, in addition to the least-change standard and legal requirements, in deciding which map was best. Because Hagedorn has provided the deciding vote on some of the sharply divided court’s highest-profile cases, his position could be crucial in the final decision on this case.

Among the most basic legal standards is the “one person, one vote” rule set by the 1964 Wesberry v. Sanders decision. Johnson’s analysis found that all of the maps submitted meet the U.S. Supreme Court’s requirement of virtually exact equality among congressional districts. He also found all of the legislative maps to be well within the high court’s guideline of no more than a 10 percent variation from the average population for each district, as well as the traditional Wisconsin standard of less than a 2 percent variation.

The state constitution calls for district boundaries to follow county, municipal, town or ward lines as much as possible. On that score, the Senate Democrats’ map has an advantage: Johnson says it’s the only one that was drawn using the most recently approved ward lines. All the other maps—like the 2011 maps—use census blocks, a method that has drawn criticism from the Wisconsin Municipal Clerks Association because it would require extensive work by local officials to adjust their wards.

However, if the maps are judged by how many majority-minority districts they draw—a point of contention in interpreting the federal Voting Rights Act—the Senate Democrats’ maps would be tied for first place with the Republican maps, each with four majority-Black Assembly districts, two strongly Black Assembly districts, and two majority-Black Senate districts, all based on voting-age population among residents who reported their race as Black-only in the 2020 Census, Johnson found. All of the legislative maps would retain two majority-Hispanic Assembly districts and one strongly Hispanic Senate district, Johnson concluded.

Although the parties highlighted their maps’ performance on those and other criteria in their briefs, they also found ways to maneuver for political advantage in drawing their maps, the legal academics argue. Johnson’s analysis supported that conclusion.

In an election where the Democratic and Republican presidential or gubernatorial candidates were virtually tied, Democrats would win only 36 of 99 Assembly seats, 10 of 33 Senate seats, and two of eight congressional seats under the GOP maps, Johnson’s analysis forecast. That compares with the Democrats’ current share of 39 Assembly seats, 12 Senate seats, and three congressional seats.

By contrast, the voting rights groups’ map would increase the Democratic bloc to 42 Assembly seats, the Senate Democrats’ map would let them hold on to their current 12 seats in their own chamber, and a map from a group of math professors would keep three congressional districts blue, Johnson’s analysis projected.

Under the Republican map, Democrats would have to win the governor’s office or the state’s electoral votes by 12.4 percent—a rarity in this closely divided state—to have a shot at capturing an Assembly majority, Johnson’s analysis said. Under the Senate Democrats’ map, the Assembly majority would be within reach if their party’s standard-bearer carried the state by just 6.2 percent, Johnson’s assessment predicted.

“As the court observed, political actors commonly draft maps to benefit themselves and their allies,” the legal academics wrote. “And many of the litigants here are undeniably political actors.”

The WIMAP group—including Milwaukee School Board member Megan O’Halloran and Milwaukee attorney Jacqueline Boynton—targeted three cases where the GOP maps deviate from the least-change standard. Although the bipartisan group’s brief didn’t say the changes were designed to protect Republican incumbents, that appeared to be the result in each case.

In the Milwaukee area, those changes were in west suburban Assembly Districts 13, 14, and 15, which together make up Brookfield Republican Sen. Dale Kooyenga’s 5th Senate District, and in north suburban Assembly Districts 23 and 24, both part of River Hills Republican Sen. Alberta Darling’s 8th Senate District.

All of those districts were drawn as safely red territory in the 2011 maps. But as Wauwatosa turned blue and Brookfield became less red, Rep. Robyn Vining (D-Wauwatosa) flipped the 14th District in 2018 and Rep. Sara Rodriguez (D-Brookfield) followed suit in the 13th District in 2020. That turned up the pressure on Kooyenga to shift his politics a bit more to the center.

A similar dynamic is at work on the North Shore, where Democratic Rep. Deb Andraca (D-Whitefish Bay) flipped the 23rd District in 2020. Darling and Rep. Dan Knodl (R-Germantown) beat back their Democratic challengers, but Democratic President Joe Biden carried Knodl’s 24th District and former GOP President Donald Trump barely carried Darling’s district.

Johnson’s analysis shows the Republican map would shift Kooyenga’s district from competitive but narrowly Democratic to leaning GOP; Rodriguez’s from competitive but narrowly blue to safely Republican; Knodl’s from competitive but narrowly red to safely Republican; and Darling’s district and New Berlin Republican Rep. Ron Sanfelippo’s 15th Assembly District from leaning red to safely GOP. Conversely, both Andraca’s and Vining’s districts would shift from competitive but narrowly blue to safely Democratic.

Taken together, the changes in those seven districts would reduce the number of competitive seats and give Republicans a strong chance of winning back the seat now held by Rodriguez. Perhaps not coincidentally, she is running for lieutenant governor instead of seeking reelection.

The WIMAP group’s brief also took note of how the Republican map would change western Wisconsin’s 30th Assembly District. The Milwaukee Journal Sentinel has reported that move appears aimed at resolving questions over whether Rep. Shannon Zimmerman (R-River Falls) lives in his district.

Meanwhile, the GOP congressmen’s failed effort to submit an additional map proposal was centered on a map feature that the Campaign Legal Center has said would treat Stevens Point like a political football. The Republican-drawn 2011 map had shifted the Democratic city from the 7th Congressional District into the 3rd, helping turn the 7th safely red. But the Legislature’s latest map would bring Stevens Point back into the 7th, turning the 3rd into a Republican-leaning district, according to Johnson’s analysis.

That stood out as a major deviation from the old map. Competing maps from Evers and others would keep Stevens Point in the 3rd District, which is expected to be a major battleground in the fall. The incumbent, Democratic Rep. Ron Kind, is not seeking re-election, leaving the race wide open.

The option offered by the congressmen appeared to be designed to hedge their bets against the chance that the justices would rule against the GOP map on least-change grounds. By keeping the Stevens Point area in the 3rd District, the alternative map would have moved only 3.8 percent of voters statewide into new congressional districts, less than any rival plan, while keeping the 3rd District competitive but narrowly red, Johnson’s analysis found.

Even if the justices believe that courts shouldn’t be involved in deciding political gerrymandering cases (as Bradley stated in her majority opinion), “they are dutybound to guard against political bias when they adopt maps themselves,” the legal academics wrote in their submission to the state’s high court. For that reason, federal courts rejected all of the maps submitted by parties in Wisconsin redistricting cases following the 1990 and 2000 censuses, the law professors noted.

“Rejecting the parties’ deficient proposals would reaffirm this court’s independence and convey that the court is not beholden to partisans of any stripe,” the legal academics wrote in urging the justices to hire an independent expert to draw new maps. “It would also align this court with the federal courts that for three consecutive decades declined to rely on litigants with parochial interests to produce maps suitable for courts.”

If the high court chooses not to produce its own maps, it could dismiss the case and let the federal judges take over, the legal academics wrote.

“What this court should not do is continue down its current, misguided path,” the professors concluded. “No court should sacrifice its own legitimacy while giving a free pass to politicians who failed to do their jobs” by enacting a map on which the Legislature and governor could agree.

 

 

 

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