A dozen Wisconsin voters and their attorneys will go to federal court in May to present their case challenging one of the worst partisan gerrymanders in modern American history.
They count among their supporters Republican and Democratic politicians, good-government forces, First Amendment advocates, progressive philanthropists and fellow citizens who want their votes to count.
To trial
A four-day trial is set to begin May 24 in the U.S. District Court for the Western District of Wisconsin over Act 43, the state’s 2012 redistricting plan for the Wisconsin Assembly.
The crux of the complaint, Whitford v. Nichol, is the 2012 map was drawn unconstitutionally in a way to keep Republican control of the state Legislature and minimize Democratic influence.
“The plaintiffs look forward to presenting evidence at trial showing that the plan was drawn in secret, in consultation with a political scientist and without any input from Democrats, in an attempt to maximize Republican wins and minimize Democratic influence over the political process for as long as the plan was in place,” stated Gerry Hebert, executive director of the Campaign Legal Center, the co-counsel in the case against the state.
The outcome of the case could have far-reaching consequences in Wisconsin, as well as chart challenges to redistricting maps in other states and guide the drafting and adoption of fair maps.
The case likely will reach the U.S. Supreme Court, which has said excessive partisan gerrymandering is unconstitutional but has yet to develop a judicially manageable standard for courts to decide such cases.
The plaintiffs, their attorneys and their expert witnesses think they have the standard — and this is what both sides will focus on at the trial.
The plaintiffs are Democrats William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace and Donald Winter.
Their legal team includes the CLC, a nonpartisan, nonprofit organization that works on campaign finance, voting rights and government ethics.
The effort draws strong support from the Fair Elections Project, co-chaired by former Sen. Dale Schultz, a longtime leader in the Republican Party, and Democratic Sen. Tim Cullen.
“We want the practice to end,” said FEP director Sachin Chheda. “This is a nonpartisan effort and we are starting in Wisconsin because the most egregious example is in Wisconsin.”
The defendants are Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas and Timothy Vocke as members of the Wisconsin Government Accountability board.
The plaintiffs, as summarized by the federal district court, allege:
• Wisconsin Act 43, the 2012 redistricting plan for the Wisconsin Assembly, is an unconstitutional partisan gerrymander, “one of the worst partisan gerrymanders in modern American history.”
• The redistricting plan was adopted and implemented in violation of the Equal Protection Clause with the intent to discriminate by benefiting one party and disadvantaging another.
• Republicans were successful in their attempt to maximize their influence and minimize Democratic influence with the gerrymander with GOP gains in Assembly seats in 2012 and 2014.
“There’s always going to be some measure of partisan influence,” Chheda said. “But if it goes too far, if it is just too much, we believe that is unconstitutional.
“Our view is that this map is unconstitutional and peoples’ rights are being violated. It’s not fair.”
Motions denied
The state filed a motion seeking to dismiss the complaint, which the court denied in December 2015 after determining the plaintiffs’ allegations were sufficient to state a plausible claim for relief.
The state also filed a motion for summary judgment, which was denied after considering: Are challenges to a partisan gerrymander justiciable? Do plaintiffs have standing to sue? Have plaintiffs stated a plausible claim for relief?
The court answered yes to those questions.
“In denying Wisconsin’s motion for summary judgment and setting the case for trial … the three-judge court has left it to us to develop a workable standard that reflects a voter’s right to fair and effective representation,” Ruth Greenwood, senior redistricting counsel for the CLC, stated in a news release. “And that’s exactly what we plan to do.”
Cracking and packing
There are some buzzwords trial-watchers will hear and read about: “cracking,” “packing” and “efficiency gap.”
The efficiency gap, the challengers contend, is a tool or figure showing the difference between parties’ “wasted votes” in an election. High school civics teachers and get-out-the-vote advocates may tell people every vote counts, but the plaintiffs in Whitford maintain a lot of votes are wasted under the Wisconsin legislative map.
A vote, in their argument, is wasted if it is cast for a candidate who lost the election or cast for the winning candidate in excess of what the candidate needed to win.
The efficiency gap, when applied to an election, measures the difference between the parties’ total wasted votes among all of the districts, divided by the total number of votes cast.
And the gap, the plaintiffs maintain, reveals the extent to which voters of a party are “packed” and “cracked.” Packing is concentrating one party’s supporters in a few districts so they win by overwhelming margins. Cracking is dividing a party’s supporters among multiple districts so they fall short of majority in each one.
Chheda pointed to the assembly results in recent elections.
In 2010, before redistricting, Republicans won a decisive victory and converted that win into seats.
Two years later, when Wisconsin elected Democrat Tammy Baldwin to the U.S. Senate and re-elected Barack Obama, voters went Democratic in legislative races as well.
“The Democrats won a smashing victory,” Chheda said. And yet, he said, the Republicans kept their seats because of the new map.
The map’s challengers argue a high level of packing and cracking, and thus a large efficiency gap, demonstrates discrimination. “The plaintiffs have a very good intellectual argument,” said Schultz. “This is about watering down the value of the vote, about wasting a vote.”
The court has said that if the plaintiffs can prove discriminatory intent and effect during the trial, then the state must prove the map’s “severe asymmetry” was unavoidable because of the “state’s legitimate political geography and legitimate redistricting objectives.”
After trial
Whichever party loses at trial likely will appeal, making the U.S. Supreme Court the body that will decide whether the map stays or goes.
The map’s challengers have said similar cases could be filed in other states, and they’ve stressed that both major political parties have engaged in partisan gerrymandering.
Beyond the courthouse, fair-election proponents and good-government forces are working to change the redistricting process in Wisconsin.
“The lawsuit doesn’t address the process,” said Chheda. “It addresses the standard. Other folks, including our co-chairs, are advocating reforms to the redistricting process.”
“People ought to be empowered to choose their representative,” said Schultz, who said partisan redistricting, among other efforts to minimize voter influence, is one reason for intense public anger and animosity in 2016.
“People aren’t dumb,” he said. “They have figured out they have been disenfranchised.”
For more information
To learn more about fair elections and the lawsuit, go to fairelectionsproject.org and campaignlegalcenter.org.