Republicans Could Get Last Word on Redistricting—as Democrats Did in 1983  

Posted on Categories Election Law, Lubar Center, Public

You may have heard that the Wisconsin Supreme Court will be deciding legislative district lines that will stand for the next decade.

It might happen that way. But if Republicans win back the governor’s office and retain control of both houses of the Legislature this fall, they could redraw the map next year to favor their party even more than any of the GOP-leaning options the high court might choose.

That’s what Democrats did when they were in the same position 40 years earlier, although the 1983 Democratic effort differs significantly from the Republican-engineered 2011 redistricting plan that Democrats have denounced as an extreme partisan gerrymander.

A Supreme Court opinion in the current case will leave the door open for Republicans to redraw the map if they are in charge of both the legislative and executive branches.

“As should be self-evident from this court’s lack of legislative power, any remedy we may impose would be in effect only ‘until such time as the legislature and governor have enacted a valid legislative apportionment plan,’” Justice Rebecca Bradley wrote for the court majority in an opinion at the end of this past November.

Bradley was quoting from the high court’s 1964 decision in State ex rel. Reynolds v. Zimmerman. That was the last time the justices drew legislative maps, after an impasse between the Republican-controlled Legislature and Democratic Gov. Gaylord Nelson. Despite those words, the court-drawn map remained in effect for the rest of the 1960s.

In the following decade—facing an ultimatum from the high court and responding to a plea from Democratic Gov. Patrick Lucey—the GOP-controlled state Senate and Democratic-led Assembly reached a rare bipartisan compromise after the 1970 census. But in the 1980s, another stalemate developed between the Democratic-controlled Legislature and Republican Gov. Lee Dreyfus, sending the issue to a three-judge federal panel.

Political observers at the time believed that the map imposed by the federal court was generally favorable to Republicans. Then came 1982, a strong Democratic year—the first midterm election of GOP President Ronald Reagan’s first term. The Democrats held their majorities in both houses and their standard-bearer, Anthony Earl, won the governorship that fall—a political trifecta.

During the 1983 legislative session, Republicans failed in an attempt to write the court-drawn map into law. Instead, then-Rep. David Travis, a Madison Democrat, drew a map more favorable to Democrats and pushed it through as an amendment to the biennial state budget, over the objections of his leader, then-Assembly Speaker Thomas Loftus.

The budget tactic drew the outrage not only of Republicans but also of newspaper editorial boards and “good-government groups” such as Common Cause and the League of Women Voters. The Milwaukee Journal compared it to “hiding a time-bomb in a baby carriage,” while the Milwaukee Sentinel denounced it as “a perversion of the process.” Tommy Thompson, then Assembly minority leader, said the move showed Democrats to be “drunk with power, arrogant and concerned only with their own power.”

Earl, a former Assembly majority leader, made it clear that he didn’t have a problem with either the substance of the remap or the use of the budget process. But under pressure from multiple fronts, he vetoed the redistricting plan out of the budget, then called the Legislature back for a special session to deal with the issue.

Republicans kept up their attack during the special session. Then-Rep. David Prosser of Appleton (a future Supreme Court justice) likened the map to a dead fish “that would foul the state’s political air for a decade.” Nonetheless, the redistricting plan won approval in both houses, and Earl promptly signed it into law.

Both at the time and in recent interviews, Democrats defended their plan as a modest revision, designed to correct flaws in the court-drawn maps. Their view is backed up by the nonpartisan Legislative Reference Bureau’s “Redistricting in Wisconsin 2020” guidebook, which says that the 1983 maps “did not deviate substantially from the court plan,” but reduced the population deviation among districts.

Newspaper reports at the time also noted that the 1983 maps made no changes to Milwaukee County districts. Lawmakers avoided tinkering with the state’s largest county because they didn’t want to risk a challenge under the federal Voting Rights Act by altering any of the majority-Black districts drawn by the judges, recalled Loftus, now the retired U.S. ambassador to Norway.

But in other parts of the state, “We were tremendously unhappy with the lines” drawn by the court, Travis said recently. He found himself in a district that was 78% new territory, he recalled.

“The maps from the judges were somewhat capricious” in disregarding the traditional redistricting standard of keeping “communities of interest” together, recalled University of Wisconsin-Milwaukee Professor Emeritus Mordecai Lee, who in 1983 chaired the Senate committee that endorsed the Democratic maps.

For example, the court-drawn maps split Oshkosh and Beloit between two Assembly districts each, when each of those communities was about the right size to have its own district, while Janesville was split among three districts when it was the right size for two, said Travis and fellow Democrat Tim Cullen, who was then Senate majority leader. Municipal officials, the business community, and organized labor were all clamoring to restore separate districts for Janesville and Beloit, said Cullen, who represented Rock County in the Senate.

The court’s plan also had drawn several legislators out of their old districts, Loftus recalled recently. Travis said he ran and won in his largely new district. But some others were renting apartments in their old districts and still owned houses that they wanted to be drawn back into those districts, Loftus said.

That wasn’t just a Democratic issue. The only Republican to vote for the 1983 maps, then-Rep. Francis Byers of Clintonville, did so because the new map placed his Marion house back in his district, the Journal reported at the time.

The federal judges also had thrown some legislators into the same districts as other incumbents, forcing them to decide whether to run against each other or retire, Travis said. He said his map was careful to avoid any such pairings.

When he signed the 1983 maps into law, Earl proclaimed them “the fairest in the history of this state,” the Sentinel reported.

“It wasn’t a redrawing to make it a totally partisan gerrymander,” says Milwaukee County Supervisor Joseph Czarnezki, who was a Democratic Assembly member at the time.

However, Lee says the remap was “overtly partisan.” At the time, the Journal reported that the plan would add more Democratic voters to the Senate districts represented by Middleton Democrat Russ Feingold (a future U.S. senator) and New Berlin Democrat Lynn Adelman (a future federal judge).

Cullen and Travis argue that the redistricting proved not to be a gerrymander when Democrats lost seven Assembly seats in 1984. “That has to be the worst gerrymander in history,” Cullen said.

Yet even with those losses, the Democrats held onto control of the Assembly, winning 52 of 99 seats in a year when Reagan carried the state in his reelection campaign, notes John D. Johnson, research fellow in the Lubar Center for Public Policy Research and Civic Education at Marquette Law School.

After that, the Democratic majority grew with each election, even when Thompson defeated Earl for the governor’s office in 1986 and when he beat Loftus to win a second term in 1990, Johnson says.

To be sure, ticket-splitting was much more common then. Although precise figures aren’t available for the 1980s, the correlation between votes for Assembly and those for president has jumped about 50% since 1992, Johnson says.

Czarnezki says 1980s-era Wisconsin voters also had a generally negative view of the GOP in the wake of the previous decade’s Watergate scandal under Republican President Richard Nixon.

Any way that it’s measured, all of the former Democratic lawmakers maintain, the 1983 redistricting plan was far less extreme than the Republicans’ 2011 gerrymander.

For example, the 1983 Democratic plan moved fewer than 700,000 residents into new districts. By contrast, the 2011 GOP maps moved 2.4 million residents into new Assembly districts and 1.2 million into new Senate districts.

And while the earlier maps may have helped Democrats retain at least 52 Assembly seats for the rest of the decade, the more recent maps ensured that Republicans never held fewer than 60 seats in that chamber over the following 10 years.

Another issue that might sound familiar is the question of Senate “disenfranchisement”—how many people would have to wait more than four years between senatorial elections because they were shifted from odd- to even-numbered Senate districts or vice versa. In the 1980s, under the Democrats’ Senate map, that number was 173,976, compared with 529,293 under the judges’ map.

But when Republicans challenged the 1983 map before the same three-judge panel that had drawn the 1982 map, the disenfranchisement issue was the only one on which they prevailed. The judges reasoned that they needed to move Senate voters to draw a constitutionally valid map where none existed, whereas Democratic lawmakers did so unnecessarily to replace a valid map.

On that ground, the judges struck down the Legislature’s maps and ordered their own maps reinstated. The state promptly appealed to the U.S. Supreme Court, which overturned the lower court’s 1984 ruling and restored the Democratic-drawn maps for that fall’s election and the rest of the decade.

The justices also ordered that the three-judge panel’s ruling on Senate disenfranchisement could not be cited as precedent. That’s why the earlier decision didn’t come up in 2012, when Democrats challenged the Republican-drawn 2011 legislative maps for, among other things, “disenfranchising” 299,704 Senate voters. A different three-judge panel ruled against that claim in Baldus v. Government Accountability Board.

Technology was another reason why the Democrats’ 1983 redistricting didn’t compare to the Republican effort in 2011, the former lawmakers say. Where the GOP hired law firms to deploy sophisticated computer software, Democratic staffers of an earlier age were using hand calculators to add up numbers from paper records, Travis and Loftus recalled.

“In retrospect, that was the dinosaur age,” Lee says. “Those were Stone Age computer skills.”

“Technology is so much better that you can be more precise in your gerrymandering” now, Cullen says.

One more difference between 1983 and 2011 was the vote. In addition to the support from Assembly Republican Byers, the 1983 maps drew opposition from six Democrats in the Assembly and one in the Senate. That senator, Milwaukee’s Gerald Kleczka (a future congressman), denounced his Democratic colleagues’ maps as “uncontrolled political greed by some members,” the Sentinel reported.

By contrast, Republicans pushed through the 2011 maps on a straight party-line vote in both chambers.

The Democrats’ 1983 move hasn’t been repeated. After the 1990 census, Democrats held both houses of the Legislature, but Thompson was governor. He vetoed their maps, and another three-judge panel stepped in to draw the lines. Republicans took control of the Legislature in 1994, but didn’t try to replace the court-drawn maps.

Czarnezki thinks Republicans were happy with the 1990s district lines because of the way the court merged the two parties’ maps. In essence, the judges used the Milwaukee County portion of the map approved by the Democratic-controlled Legislature and the outstate portion of the map submitted by Assembly Republicans, led by Prosser, Czarnezki recalled.

Republicans kept their hold on the Assembly, but lost control of the Senate in a 1996 recall election, regained it in 1998, then lost it again in that fall’s elections. Democrats still controlled the upper chamber after the 2000 census, creating a redistricting deadlock with the GOP-led Assembly and Thompson’s Republican successor, Gov. Scott McCallum. Another three-judge federal panel drew the maps, and again they stood throughout the decade.

Democrats didn’t win another trifecta until the 2008 elections, controlling the Legislature during the last two years of Democratic Gov. Jim Doyle’s term. Republicans then scored a trifecta with GOP Gov. Scott Walker’s 2010 victory, setting the stage for the 2011 gerrymander.

Czarnezki argues that “Democrats generally have acted more responsibly than Republicans in redistricting,” pointing to the rise of nonpartisan or bipartisan redistricting commissions in predominantly blue states.

Yet at least four of those states—Michigan, Arizona, California, and Colorado—created their commissions through ballot initiatives, rather than legislative action. Some Democratic activists now bemoan their loss of gerrymandering power because they fear that Republican-controlled state governments are drawing maps that will help the GOP take back the U.S. House.

Indeed, Wisconsin Democrats had a chance to create a nonpartisan redistricting process when they controlled state government in 2009 and 2010, but they refused to do so because they expected to stay in charge and draw the maps after the 2010 census, Cullen says.

And even if the 1983 Wisconsin maps aren’t considered Democratic gerrymandering, the most recent lines drawn in blue states such as Illinois, Massachusetts, and Rhode Island certainly are, showing that both parties are capable of this “abuse of power,” Cullen says.

These days, Cullen advocates for Wisconsin to copy Iowa’s one-of-a-kind redistricting system, which empowers nonpartisan civil servants to draw the maps. He and former Senate Republican leader Dale Schultz tour the state together—switching to virtual visits during the COVID-19 pandemic—to speak out against gerrymandering.

As for the Democratic-drawn maps he helped push through the Senate in 1983, Cullen says, “If I were to do it now, I don’t think I would have done it.”

 

 

 

 

 

Join the Conversation

We reserve the right not to publish comments based on such concerns as redundancy, incivility, untimeliness, poor writing, etc. All comments must include the first and last name of the author in the NAME field and a valid e-mail address.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Marquette University Law School - Contact Us
Marquette University Law School, P.O. Box 1881, Milwaukee, Wisconsin 53201 (414) 288-7090
Street Address: Marquette University Law School, 1215 W. Michigan St., Milwaukee, Wisconsin 53233

About the Blog | Comments Policy

The opinions expressed here are those of the individual authors and do not represent the views of Marquette University or its Law School.