Some Thoughts on Redistricting
As we head into the fall election cycle, one of the most important consequences of state legislative and gubernatorial races will be the impact on redistricting in 2011.
Current doctrine requires that legislative districts be equal in size and racial gerrymanders are subject to constitutional and statutory challenge. But partisan gerrymanders are almost impossible to challenge. In a case called Vieth v. Jubelirer, a four justice plurality held that allegations of a partisan gerrymander are nonjusticiable. Justice Kennedy was unwilling to say so, but conceded that he could not yet conceive of a judicially manageable standard. (Perhaps, one day, one will emerge.) While I think that Article IV, sec. 4 of the state constitution may provide a bit more room for a challenge to partisan gerrymanders of the state legislature, I wouldn’t bet the 401(k) on it.
As James Troupis, a Madison lawyer and national expert on redistricting, recently told my Election Law class, partisans can work gerrymandering wonder by “cracking,” “stacking” and “packing” voters. I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan.
