Redistricting Round-up: Wisconsin Gerrymander on Trial

May 31, 2016

Partisan Gerrymandering Front and Center in Wisconsin

The biggest partisan gerrymandering court challenge in three decades wrapped up its initial phase last Friday with the close of a four-day trial in Whitford v. Nichol, a case challenging the legislative maps drawn by Wisconsin Republicans in 2011. Post-trial briefing is scheduled to conclude on June 20, after which the parties will wait to see how the three-judge panel rules.

Up until now, courts have consistently struggled to untangle the political thicket presented by partisan gerrymandering claims. The U.S. Supreme Court’s 1986 decision in Davis v. Bandemer recognized partisan gerrymandering as an issue within the power of courts to decide. But courts have since had a hard time finding a manageable way to identify instances of unconstitutional gerrymandering. The high court split badly the last time it tackled partisan gerrymandering in Vieth v. Jubelirer in 2004 and LULAC v. Perry in 2006, leaving the issue unsettled and largely untouched until now.

The Whitford trial offers a critical, fresh opportunity to consider the issue. It also provides a crucial test for a new standard to evaluate partisan gerrymandering claims called the efficiency gap.

At trial, the lawyer for Democratic voters, Nicholas Stephanopoulos, said Wisconsin’s mapdrawers had created the "worst gerrymander in modern American history,” arguing the “extreme and durable” gerrymander helped catapult Republicans to huge legislative majorities in 2012 and 2014, and will continue to do so unless the court steps in. Using the efficiency gap, the plaintiffs’ expert, University of Wisconsin political science professor Ken Mayer, said the Legislature’s plan ensures a Republican majority even in big Democratic wave elections. The disparity between voting results and electoral outcomes is “forensic evidence,” he said. “[It] is the fingerprint of a gerrymander.”

For its part, Wisconsin did not dispute much of the plaintiffs’ evidence. Instead, Wisconsin’s Assistant Attorney General Brian Keenan responded by calling the plaintiffs’ allegations a “radical redefinition” of what gerrymandering means. The mapdrawers, he argued, simply did what is normal and expected when one party controls the redistricting process: They drew a district plan that helped their party.

The court also heard testimony from William Whitford, a former University of Wisconsin law professor and one of the Democratic plaintiffs in the case; Keith Gaddie, a political scientist hired by Republicans to help engineer the redistricting plan; and Adam Foltz and Tad Ottman, two Republican legislative aides who worked on the 2011 map.

Click here for more analysis of the case. 

Other News and Analysis

  • The U.S. Supreme Court dismissed the appeal in Wittman v. Personhuballah, holding that a group of Republicans from Virginia’s congressional delegation lacked standing to challenge a court-drawn replacement congressional plan. The ruling keeps in place Virginia’s new 3rd Congressional District, which the three-judge trial court drew in order to remedy unconstitutional racial gerrymandering and to create a second district in Virginia where African Americans have a fair opportunity to elect their community’s choice of candidate.
  • The Arizona Independent Redistricting Commission may face budgetary woes as the year progresses. Gov. Doug Ducey (R) signed a new budget earlier this month allocating $1.1 million to the commission, but the allocated amount falls short of the commission’s expected expenses in yet another legal challenge, Leach v. Arizona Independent Redistricting Commission.
  • In Illinois, the Independent Map Coalition will have to fight to get its proposed constitutional amendment to create an independent redistricting commission on the November ballot. The group collected and submitted more than 570,000 signatures supporting its petition, nearly twice the amount required by Illinois law. However, in response, the Illinois Democratic Party filed a lawsuit challenging the proposal’s constitutionality.
  • A federal judge in Rhode Island threw out the city of Cranston’s ward districting plan last week as an unconstitutional prison gerrymander. Following the 2010 Census, the city redrew its wards such that Ward 6 contained the entire population incarcerated in the state’s correctional facility. The inmates made up 25 percent of the total population in Ward 6, meaning it had fewer eligible voters than other wards. The judge ruled this violated the “one person, one vote” principle and ordered the city to redraw its wards within 30 days.
  • Mark Nance of The News & Observer examined the role gerrymandering played in the passage of North Carolina’s controversial HB2 bathroom bill. He noted that “90 percent of the legislators who voted for the bill either face no challengers in their elections this fall or won their last election by more than 10 percentage points.”
  • The Brennan Center, Campaign Legal Center, and Common Cause all filed amicus briefs supporting the plaintiffs in Shapiro v. McManus, the partisan gerrymandering case currently before a three-judge federal panel in Maryland. The state filed a motion asking the court to dismiss the case, which the plaintiffs oppose.
  • A group of academics at Binghamton University (SUNY) recently released a paper examining the alleged gerrymandering of Wisconsin’s state Assembly districts. The paper found that the district map “is clearly a fairly egregious gerrymander,” but suggests that a statistical analysis called the median-mean comparison is a better way to measure gerrymandering than the efficiency gap.