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Republicans redrew the maps in 2011 that nearly guaranteed them an impenetrable
majority in the legislature. Photograph: Mark Hertzberg/ZUMA Press
Wire/REX/Shutterstock
Republicans redrew the maps in 2011 that nearly guaranteed them an impenetrable
majority in the legislature. Photograph: Mark Hertzberg/ZUMA Press
Wire/REX/Shutterstock
The fight for democracyWisconsin



‘DELIBERATE AND ANTI-DEMOCRATIC’: WISCONSIN GRAPPLES WITH PARTISAN
GERRYMANDERING

State supreme court will hear challenge to district maps that have cemented
Republican legislative power


The fight for democracy is supported by

About this content
Sam Levine and Andrew Witherspoon
Mon 20 Nov 2023 07.00 ESTLast modified on Mon 20 Nov 2023 10.06 EST
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The Wisconsin supreme court will hear oral arguments on Tuesday in one of the
most closely watched voting rights cases in the country this year. The challenge
could ultimately lead to the court striking down districts in the state
legislature, ending a cemented Republican majority, and upending politics in one
of the US’s most politically competitive states.

The case, Clarke v Wisconsin Elections Commission, is significant because
Wisconsin’s state legislative maps, and especially its state assembly districts,
are widely considered to be among the most gerrymandered in the US. In 2011,
Republicans redrew the districts in such a way that cemented an impenetrable
majority. In the state assembly, Republicans have consistently won at least 60%
of the 99 seats, sometimes with less than 50% of the statewide vote. In 2022,
Governor Tony Evers, a Democrat, won re-election by three points, but carried
just 38 of 99 assembly districts.



The Evers result underscored a disturbing anti-democratic reality in Wisconsin:
the results of state legislative elections are determined before a single vote
is cast. Because of that dynamic, the case could restore representation to
Wisconsin voters, making their districts more responsive to how they vote.

> What’s at stake in this case is really democracy in the state of Wisconsin

Jeff Mandel of Law Forward

A ruling striking down the maps is likely to result in a legislature in which
Republicans have a much narrower majority and could reshape policymaking in
Wisconsin. Issues that have broad public support in Wisconsin, like Medicaid
expansion and marijuana legalization, have been non-starters in a legislature
where the GOP majority is ironclad. A legislature in which Republicans are
fearful of losing their majority may be more willing to at least consider
broadly popular issues.

“What’s at stake in this case is really democracy in the state of Wisconsin,”
said Jeff Mandel, president of Law Forward, which is representing some of the
challengers in the suit.


Chart showing how Wisconsin’s state assembly consistently outperforms the
state’s partisan lean by nine to 17 points

Republicans have wielded their legislative power ruthlessly and effectively for
more than a decade. When Democrats won the governor’s and attorney general’s
offices in 2018, Republicans stripped them of some of their power. Republican
lawmakers ignored Evers’ requests for special sessions on a myriad of issues.
More recently, they launched an investigation into the 2020 election that
devolved into chaos, have floated impeachment for a supreme court justice and
attacked the non-partisan administrator of the state elections commission.



Then, liberals flipped control of the state supreme court in April in the most
expensive state supreme court race in US history. Justice Janet Protasiewicz,
the newest member of the court’s liberal majority, said during the campaign the
maps were “rigged”, a comment that has led Republicans to call for her
impeachment. The case was filed the day after Protasiewicz formally took her
seat on the court in August.



Tuesday’s case is one of several in recent years that have focused on state
courts and state constitutions as a vehicle to strike down gerrymandered maps.
In 2019, the US supreme court said that federal courts could not do anything to
stop partisan gerrymandering, but encouraged litigants to turn to state courts.

The challengers argue that the existing maps violate the Wisconsin state
constitution for two reasons. First, they say, 75 of Wisconsin’s 132 state
legislative districts are non-contiguous – 54 in the state assembly and 21 in
the state senate. They argue that’s a clear violation of a state constitutional
requirement that requires assembly districts to “be bounded by county, precinct,
town or ward lines, to consist of contiguous territory and be in as compact form
as practicable”. The constitution also says state senate districts must be
“convenient contiguous territory”.


Map showing an assembly district in the Madison area that is one of several
non-contiguous districts


The contiguity requirement serves a democratic purpose, Mandel said. When
someone has a problem in their community, it should be easy for them to band
together with their neighbors and bring their grievances to a common
representative.

“It is not easy or obvious for the people to figure this out when you scatter
representatives from a district into these tiny municipal islands,” he said.
“The vast majority of the districts in the state have this problem. It is a
feature of the way they chose to draw this map. It is not a mistake or a slight
mapmaking error or an oversight. It’s deliberate and it’s anti-democratic.”

> The vast majority of the districts in the state have this [non-contiguity]
> problem. It is a feature of the way they chose to draw this map. It is not a
> mistake

Jeff Mandel of Law Forward

But lawyers representing legislative Republicans take a much different view of
the contiguity requirement in their brief to the court. Districts are
non-contiguous, they argued, because municipalities in the state have annexed
islands that do not always touch the main part of its boundaries. The contiguity
requirement in the state constitution refers to keeping towns and municipalities
together, they said.

“Literal islands are ‘contiguous’ because they are joined together by municipal
boundaries,” they write in one brief. “Invisible district lines do not stop
legislators or voters from traveling between municipalities and nearby municipal
islands,” they argue in another.

The challengers also argue that the process by which the maps were implemented
violate the state constitution’s separation of powers.

Wisconsin Republicans initially passed a new map in 2021 that Evers vetoed. The
state supreme court, then controlled by conservatives, accepted a request from a
conservative group to take over the redistricting process.

The court, which had a conservative majority at the time, announced that it
would make as little change as possible to the existing maps, a major win for
Republicans since the districts were already heavily gerrymandered in their
favor. The court then initially picked a map that had been submitted by Evers,
but the US supreme court struck it down. The Wisconsin supreme court then picked
maps that Republicans submitted. It was the same plan Evers had vetoed months
earlier.

The new map preserved the Republican tilt in districts and shored up their
advantage in the few places where they had been able to make inroads.

Guardian graphic. Sources: Previous district boundaries and census block group
election data from Redistricting Data Hub. Current boundaries from the Wisconsin
State Legislature. 2020 election margins from PlanScore.

Here are the results of the 2020 presidential race in the Milwaukee, Wiconsin
area. The circles represent results by census block – the bigger the circle, the
bigger the margin of victory for either Democrats or Republicans.

The Wisconsin state assembly — the lower house of the state legislature — used
this map from 2012 to 2020.

In 2020 Democrats narrowly flipped the 13th district. Joe Biden won it by 10
points.

Republicans redrew the lines of the 13th district, excising Democratic voters
and making it much more solidly Republican.

If the new district had been in place for the 2020 election, Donald Trump would
have carried it by 6 points. A Republican won the district by more than 13
points in 2022.



That decision by the court essentially amounted to an end run around Evers’ veto
and violated the separation of powers in the Wisconsin constitution, the
challengers in the case argue.

“The court took away or negated the governor’s veto power without ever saying he
used it inappropriately or something like that,” Mandel said. “They just said,
‘Well, nonetheless, that becomes the law.’ That can’t be right.”

Republicans argue there was nothing unconstitutional about the process by which
the court chose the maps. The court didn’t choose the map because it was
rejected by the legislature, but picked it as one of several that were submitted
by parties.

“The Governor and the Legislature – like the other parties – briefed the issues
to the Court and supported their proposals with expert reports. And the Court –
treating the Governor and Legislature as parties – selected among proposals as
an appropriate least-changes judicial remedy,” they wrote.

Wisconsin election officials have said that any new map would need to be in
place no later than 15 March 2024 in order to be used in next year’s elections.
Because of that tight deadline, a ruling is expected in the case relatively
quickly.


Graphic showing how Democratic voters in the Sheboygan area are cracked across
two assembly districts, reducing their political power

A decision striking down Wisconsin’s map would also be a major symbolic victory
in efforts to rein in extreme partisan gerrymandering over the last decade.

> The designers of these maps knew precisely how long these lines would endure.
> But almost no one else did

David Daley of FairVote


The district is the remaining crown jewel of a 2010 Republican effort called
Project Redmap, which successfully flipped state legislatures across the country
in favor of of the GOP, giving them the power to draw heavily distorted
districts. Using a combination of litigation and ballot measures, Democrats and
gerrymandering reformers have been able to strike down those maps in many
places, but Wisconsin’s have remained untouched.

“The designers of these maps knew precisely how long these lines would endure.
But almost no one else did,” said David Daley, a senior fellow at FairVote who
wrote a book about Redmap called Ratf**ked: Why Your Vote Doesn’t Count. “I
don’t think anyone understood that the consequences of the 2010 election in
Wisconsin would be to leave Republicans in charge for another 14 years.”

“It’s been difficult to call the state a functioning democracy since early in
Barack Obama’s first term,” he added. “It’s perhaps the most cautionary tale of
the dangers of runaway partisan gerrymandering in an age where polarization and
technology can allow operatives to draw maps that lock themselves in power not
just for one entire electoral cycle, but well into a second decade.”

Explore more on these topics
 * Wisconsin
 * The fight for democracy
 * Republicans
 * US politics
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