You may have heard that the Wisconsin Supreme Court will be deciding legislative district lines that will stand for the next decade.<\/p>\n
It might happen that way. But if Republicans win back the governor\u2019s 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<\/a> the high court might choose.<\/p>\n That\u2019s 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<\/a> that Democrats have denounced as an extreme partisan gerrymander.<\/p>\n 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.<\/p>\n \u201cAs should be self-evident from this court’s lack of legislative power, any remedy we may impose would be in effect only \u2018until such time as the legislature and governor have enacted a valid legislative apportionment plan,\u2019\u201d Justice Rebecca Bradley wrote for the court majority in an opinion at the end of this past November<\/a>.<\/p>\n Bradley was quoting from the high court\u2019s 1964 decision in State ex rel. Reynolds v. Zimmerman<\/em>. 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.<\/p>\n In the following decade\u2014facing an ultimatum from the high court and responding to a plea from Democratic Gov. Patrick Lucey\u2014the 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.<\/p>\n 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\u2014the first midterm election of GOP President Ronald Reagan\u2019s first term. The Democrats held their majorities in both houses and their standard-bearer, Anthony Earl, won the governorship that fall\u2014a political trifecta.<\/p>\n 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.<\/p>\n The budget tactic drew the outrage not only of Republicans but also of newspaper editorial boards and \u201cgood-government groups\u201d such as Common Cause and the League of Women Voters. The Milwaukee Journal<\/em> compared it to \u201chiding a time-bomb in a baby carriage,\u201d while the Milwaukee Sentinel<\/em> denounced it as \u201ca perversion of the process.\u201d Tommy Thompson, then Assembly minority leader, said the move showed Democrats to be \u201cdrunk with power, arrogant and concerned only with their own power.\u201d<\/p>\n Earl, a former Assembly majority leader, made it clear that he didn\u2019t 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.<\/p>\n 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 \u201cthat would foul the state\u2019s political air for a decade.\u201d Nonetheless, the redistricting plan won approval in both houses, and Earl promptly signed it into law.<\/p>\n 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\u2019s \u201cRedistricting in Wisconsin 2020\u201d<\/a><\/u> guidebook, which says that the 1983 maps \u201cdid not deviate substantially from the court plan,\u201d but reduced the population deviation among districts.<\/p>\n Newspaper reports at the time also noted that the 1983 maps made no changes to Milwaukee County districts. Lawmakers avoided tinkering with the state\u2019s largest county because they didn\u2019t 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.<\/p>\n But in other parts of the state, \u201cWe were tremendously unhappy with the lines\u201d drawn by the court, Travis said recently. He found himself in a district that was 78% new territory, he recalled.<\/p>\n \u201cThe maps from the judges were somewhat capricious\u201d in disregarding the traditional redistricting standard of keeping \u201ccommunities of interest\u201d together, recalled University of Wisconsin-Milwaukee Professor Emeritus Mordecai Lee, who in 1983 chaired the Senate committee that endorsed the Democratic maps.<\/p>\n 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.<\/p>\n The court\u2019s 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.<\/p>\n That wasn\u2019t 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<\/em> reported at the time.<\/p>\n 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.<\/p>\n When he signed the 1983 maps into law, Earl proclaimed them \u201cthe fairest in the history of this state,\u201d the Sentinel<\/em> reported.<\/p>\n \u201cIt wasn\u2019t a redrawing to make it a totally partisan gerrymander,\u201d says Milwaukee County Supervisor Joseph Czarnezki, who was a Democratic Assembly member at the time.<\/p>\n However, Lee says the remap was \u201covertly partisan.\u201d At the time, the Journal<\/em> 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).<\/p>\n Cullen and Travis argue that the redistricting proved not to be a gerrymander when Democrats lost seven Assembly seats in 1984. \u201cThat has to be the worst gerrymander in history,\u201d Cullen said.<\/p>\n 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.<\/p>\n After that, the Democratic majority grew with each election, even when Thompson defeated Earl for the governor\u2019s office in 1986 and when he beat Loftus to win a second term in 1990, Johnson says.<\/p>\n To be sure, ticket-splitting was much more common then. Although precise figures aren\u2019t available for the 1980s, the correlation between votes for Assembly and those for president has jumped about 50% since 1992, Johnson says.<\/p>\n Czarnezki says 1980s-era Wisconsin voters also had a generally negative view of the GOP in the wake of the previous decade\u2019s Watergate scandal under Republican President Richard Nixon.<\/p>\n Any way that it\u2019s measured, all of the former Democratic lawmakers maintain, the 1983 redistricting plan was far less extreme than the Republicans\u2019 2011 gerrymander.<\/p>\n For example, the 1983 Democratic plan moved fewer than 700,000 residents into new districts. By contrast, the 2011 GOP maps moved<\/a> 2.4 million residents into new Assembly districts and 1.2 million into new Senate districts.<\/p>\n 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.<\/p>\n Another issue that might sound familiar is the question of Senate \u201cdisenfranchisement\u201d\u2014how 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\u2019 Senate map, that number was 173,976, compared with 529,293 under the judges\u2019 map.<\/p>\n 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.<\/p>\n On that ground, the judges struck down the Legislature\u2019s maps and ordered their own maps reinstated. The state promptly appealed to the U.S. Supreme Court, which overturned the lower court\u2019s 1984 ruling and restored the Democratic-drawn maps for that fall\u2019s election and the rest of the decade.<\/p>\n The justices also ordered that the three-judge panel\u2019s ruling on Senate disenfranchisement could not be cited as precedent. That\u2019s why the earlier decision didn\u2019t come up in 2012, when Democrats challenged the Republican-drawn 2011 legislative maps for, among other things, \u201cdisenfranchising\u201d 299,704 Senate voters. A different three-judge panel ruled against that claim in Baldus v. Government Accountability Board<\/a>.<\/em><\/p>\n Technology was another reason why the Democrats\u2019 1983 redistricting didn\u2019t 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.<\/p>\n \u201cIn retrospect, that was the dinosaur age,\u201d Lee says. \u201cThose were Stone Age computer skills.\u201d<\/p>\n \u201cTechnology is so much better that you can be more precise in your gerrymandering\u201d now, Cullen says.<\/p>\n 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\u2019s Gerald Kleczka (a future congressman), denounced his Democratic colleagues\u2019 maps as \u201cuncontrolled political greed by some members,\u201d the Sentinel<\/em> reported.<\/p>\n By contrast, Republicans pushed through the 2011 maps on a straight party-line vote in both chambers.<\/p>\n The Democrats\u2019 1983 move hasn\u2019t 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\u2019t try to replace the court-drawn maps.<\/p>\n Czarnezki thinks Republicans were happy with the 1990s district lines because of the way the court merged the two parties\u2019 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.<\/p>\n 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\u2019s elections. Democrats still controlled the upper chamber after the 2000 census, creating a redistricting deadlock with the GOP-led Assembly and Thompson\u2019s Republican successor, Gov. Scott McCallum. Another three-judge federal panel drew the maps, and again they stood throughout the decade.<\/p>\n Democrats didn\u2019t win another trifecta until the 2008 elections, controlling the Legislature during the last two years of Democratic Gov. Jim Doyle\u2019s term. Republicans then scored a trifecta with GOP Gov. Scott Walker\u2019s 2010 victory, setting the stage for the 2011 gerrymander<\/a>.<\/p>\n Czarnezki argues that \u201cDemocrats generally have acted more responsibly than Republicans in redistricting,\u201d pointing to the rise of nonpartisan or bipartisan redistricting commissions in predominantly blue states.<\/p>\n Yet at least four of those states\u2014Michigan, Arizona, California, and Colorado\u2014created their commissions through ballot initiatives, rather than legislative action. Some Democratic activists now bemoan their loss of gerrymandering power<\/a> because they fear that Republican-controlled state governments are drawing maps that will help the GOP take back the U.S. House.<\/p>\n 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.<\/p>\n And even if the 1983 Wisconsin maps aren\u2019t 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 \u201cabuse of power,\u201d Cullen says.<\/p>\n