POL­I­TICS

Milwaukee Magazine - - Content - BY ERIK GUNN

The long-last­ing ef­fects of re­dis­trict­ing.

The deep Wis­con­sin roots of the re­dis­trict­ing bat­tle that could re­draw po­lit­i­cal maps across the coun­try

THE LE­GAL CHAL­LENGE that could over­turn leg­isla­tive maps drawn by Wis­con­sin Repub­li­cans in 2011 – set to be ar­gued this month be­fore the U.S. Supreme Court – got its start some four years ago in an un­likely place: the gen­teel con­fines of the now-shut­tered Watts Tea Shop in Down­town Mil­wau­kee. The late Ge­orge Watts was a long­time con­ser­va­tive Repub­li­can stal­wart, but the tea room was a fa­vorite haunt for vet­eran state Rep. Fred Kessler, a Mil­wau­kee Demo­crat long known as a canny stu­dent of lo­cal elec­toral maps and trends.

And it was to the tea shop Kessler in­vited a group of Demo­cratic lawyers in the sum­mer of 2013 to dis­sect what had hap­pened the pre­vi­ous Novem­ber. Wis­con­sin vot­ers in 2012

had sent lib­eral Demo­crat Tammy Baldwin to the Se­nate and helped re-elect Pres­i­dent Barack Obama to his sec­ond term. Yet, para­dox­i­cally, they’d also fa­vored Repub­li­cans heav­ily for the state Leg­is­la­ture, turn­ing the al­ready red­dish body a deep crim­son.

Sachin Ch­heda, a Demo­cratic po­lit­i­cal or­ga­nizer and con­sul­tant, was there, along with lo­cal lawyer Peter Earle and an old col­lege friend of Kessler’s, re­tired Univer­sity of Wis­con­sin law pro­fes­sor Bill Whit­ford. The group quickly ze­roed in on an as­ton­ish­ing anom­aly from 2012: In raw votes for the state Assem­bly, Democrats won 51 per­cent. Yet in seats, they won only 39 out of 99, with the rest go­ing to the GOP, which was reap­ing the ben­e­fits of the 2011 re­dis­trict­ing, a process the party’s leg­isla­tive lead­ers car­ried out be­hind closed doors.

“It was pretty graphic ev­i­dence of how dis­torted this ap­por­tion­ment was,” Whit­ford says.

Fol­low­ing 2010’s Republcan­friendly mid-term elec­tion and the de­cen­nial cen­sus, many states, in­clud­ing Wis­con­sin, rewrote their con­gres­sional and leg­isla­tive bound­aries to fa­vor the right wing. Our state is also one of 37 in which leg­is­la­tures (and by ex­ten­sion po­lit­i­cal par­ties) have fi­nal con­trol over the maps, as op­posed to spe­cial bod­ies. How­ever, it had been decades since a sin­gle party had con­trol of state govern­ment dur­ing de­cen­nial re­dis­trict­ing. In past years, “The re­sult has al­ways been a com­pro­mise of sorts,” says Jay Heck of Com­mon Cause Wis­con­sin, a non­par­ti­san re­form group.

There’s a word for draw­ing dis­tricts that give a lop­sided ad­van­tage to one po­lit­i­cal party – ger­ry­man­der­ing – and the Supreme Court ruled more than 50 years ago that it can vi­o­late the Con­sti­tu­tion by mak­ing some votes worth less than oth­ers. But jus­tices have fallen short of a con­sen­sus on how to mea­sure and limit par­ti­san ger­ry­man­der­ing, and at­tempts to get them to over­turn state maps, whether drawn by Repub­li­cans or Democrats, have failed.

Whit­ford’s sub­se­quent re­search for the tea room group led him to a law re­view ar­ti­cle by pro­fes­sors Ni­cholas Stephanopou­los of the Univer­sity of Chicago and Eric McGhee of the Public Pol­icy In­sti­tute of Cal­i­for­nia that pro­posed a novel way to mea­sure ger­ry­man­der­ing nu­mer­i­cally. In short, their method cal­cu­lates an “ef­fi­ciency” score based on the num­ber of “wasted” or sur­plus votes in an elec­tion, since ger­ry­man­der­ing re­lies on “pack­ing” votes to­gether into de­sir­able con­cen­tra­tions and “crack­ing” apart those that are un­de­sir­able, such as left-lean­ing neigh­bor­hoods.

The coali­tion en­listed Stephanopou­los to help de­velop the case un­der the aegis of the Chicago Lawyers’ Com­mit­tee on Civil Rights, a non­profit or­ga­ni­za­tion, and Whit­ford be­came a lead plain­tiff, one of a dozen. Last year, the case went be­fore a three-judge panel in fed­eral court and ad­vanced on a vote of 2-1.

The Wis­con­sin case was a le­gal break­through. “This is the first trial court that ac­tu­ally found un­con­sti­tu­tional ger­ry­man­der­ing of the lines in 30 years,” says Justin Le­vitt, an as­so­ciate dean for re­search at Loy­ola Law School in Los An­ge­les, who is sub­mit­ting a brief that fa­vors the plain­tiffs. “The case is super im­por­tant, not just for Wis­con­sin. What­ever rules the Supreme Court sets, ev­ery­one is go­ing to have to fol­low.”

The dis­senter on the three-judge de­ci­sion, Wil­liam Gries­bach, ar­gued that while the GOP maps were drawn to fa­vor the party, they fol­lowed “all of the prin­ci­ples that have tra­di­tion­ally gov­erned the dis­trict­ing process, such as con­ti­gu­ity, com­pact­ness and re­spect for po­lit­i­cal sub­di­vi­sions like coun­ties and cities.” Fur­ther­more, he wrote, the Con­sti­tu­tion doesn’t guar­an­tee pro­por­tional rep­re­sen­ta­tion, and the Democrats’ ef­fi­ciency gap seems to have been gen­er­ated by the party’s re­cur­ring losses of close races: “It should be ob­vi­ous that win­ning close elec­tions is not un­con­sti­tu­tional, and yet that is all the ef­fi­ciency gap shows.”

In June, the U.S. Supreme Court blocked the lower court’s or­der re­quir­ing Wis­con­sin to draw new maps by Nov. 1, a move some saw as fore­shad­ow­ing a de­feat.

Whit­ford and oth­ers hope the lop­sid­ed­ness of the cur­rent maps will sway the high court. As an ex­per­i­ment, a po­lit­i­cal sci­en­tist not af­fil­i­ated with the law­suit pro­grammed a com­puter to draw 200 al­ter­nate re­dis­trict­ing maps as part of an aca­demic pa­per. “None of them demon­strate any­thing close to the par­ti­san bias con­tained in the ex­ist­ing Wis­con­sin ap­por­tion­ment,” Whit­ford says. “The bias in the ex­ist­ing plan is no ac­ci­dent.”

Wis­con­sin

Assem­bly District 23, rep­re­sented by Repub­li­can Rep.

Jim Ott, changed dra­mat­i­cally dur­ing Wis­con­sin’s 2011 re­dis­trict­ing. While the district didn’t change hands, it sprouted a lake-hug­ging pan­han­dle that ex­tends into the North

Shore of Mil­wau­kee. The change carved up (or “cracked”) what had tra­di­tion­ally been a Demo­cratic seat.

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