January 27, 2017 – Milwaukee, WI – Following is WILL president and general counsel Rick Esenberg’s response to Friday’s order from the United States District Court for the Western District of Wisconsin in the pending redistricting case:
The decision from the three judge panel announced Friday appropriately preserves the power to prepare a redistricting map in the hands of the legislature. But it forces changes to be made based upon a novel and highly suspect legal theory adopted by only two of the three judges on the panel and which effectively compels gerrymandering to relieve one party of its natural disadvantage. Because the United States Supreme Court may well reverse, plunging Wisconsin into a period in which no one will know which Assembly districts are the “real” ones, it would have been better to let the United States Supreme Court review the case.
Here is the legal problem: While the two member majority of the three judge panel expressed concern that legislators intended to draw maps that maximized the advantages of the majority, its decision, however unintentionally, effectively requires that the legislature act in a partisan fashion. The majority ruled that in addition to meeting the long-standing constitutional requirements that have traditionally governed the districting process, such as contiguity, compactness and respect for political subdivisions like counties and cities, it must also avoid an unacceptably large “efficiency gap” – a loaded term that means nothing more than the difference between the outcome of all the individual legislative races and an aggregate of the partisan vote in all of these races. But there is no reason to believe that the result of all of the individual races will match the statewide partisan vote and many reasons – such as the greater geographic concentration of voters of one party – to believe it will not. Since legislators will always “know” and even “intend” the partisan impact of their maps, the majority decision means that the legislature must engage in actual gerrymandering if it is necessary to spread out partisan voters more evenly between districts. Even if districts look nothing like those normally considered to be “gerrymandered” based upon unusual shapes (lack of compactness and contiguity) the majority decision means, in effect, that they must be gerrymandered for competitiveness which, in this case, means relieving the Democrats of at least some of the natural disadvantage that stems from the fact that their voters are much more geographically concentrated.
It would have been wiser for the panel to stay its decision until its novel theory has been ruled on by the US Supreme Court. We expect that the Defendants will appeal – they should – and that the Supreme Court will reverse its decision. However, if that occurs in the Spring or Summer of 2018 today’s decision will place candidates in political limbo. Should they circulate election nomination papers in the old district or the new one? Must the candidate live in the old district or the new one? Today’s decision leaves the candidates at risk on these issues and creates uncertainty for the State that is unnecessary. Particularly since it seems unlikely – as the dissent pointed out – that new maps will not change legislative control, the better course would have been to stay the previous decision until it is resolved by the Supreme Court.
Cross-posted at the Wisconsin Institute for Law & Liberty.