Despite Wisconsin Democrats’ efforts to overhaul the state's legislative redistricting process, it’s all but certain the current practice of drawing maps won’t be changed before 2021.
Still, it’s possible that some could seek to use the courts to tweak how the state draws its district lines, even after a lawsuit brought by Wisconsin liberals to accomplish just that fell victim to the U.S. Supreme Court’s June ruling that allowed partisan maps.
But some Democrats fear Republicans could be working to exclude Gov. Tony Evers from the process of creating new maps — a charge GOP leaders in both houses have denied.
As advocates earlier this month continued to push for a nonpartisan redistricting process, the most likely outcome seems to be that judges will re-draw the boundaries following the 2020 census after a divided state government attempts, and likely fails, to alter the lines under the current confines of the law.
Redistricting: the basics
Lawmakers are responsible for creating new lines for state Assembly and Senate districts, as well as congressional districts, every 10 years after the completion of the U.S. Census.
The maps are redrawn to match population changes, though it's not specified in state law how the process should be carried out.
Instead, the state Constitution requires the legislative districts be drawn in "as compact form as practicable," be contiguous and attempt to adhere to county, precinct, town or ward lines.
But there aren't statutory requirements for the state's redistricting process, according to a 2016 Legislative Reference Bureau publication.
That means that beyond the Constitution, "the redistricting process is guided only by court precedents and the weight of recent practice," the publication said.
State Supreme Court justices notably ruled in the 1950s that the drawing of new maps would have to be adopted like any bill, in which lawmakers craft the boundaries and they're approved by the governor.
A later ruling in 1964 found the Legislature couldn't put in place new maps by adopting a joint resolution, which only needs approval from both houses and not the governor.
Drawing maps under divided government
Over the last four rounds of redistricting, dating back to the 1980s, the state was under split-party control in most cases when it first faced the responsibility of drawing new maps post-census.
In three instances — the 1980s, 90s and 2000s — the legal branch initially created new redistricting plans. But in the 2010s, under complete Republican control, the Legislature was able to implement its own lines with the approval of then-Gov. Scott Walker. It represented the first time the body enacted a district plan since 1983.
The Republican majorities in the state Assembly and Senate, and control of the executive, provided an advantage "neither party had enjoyed ... in redistricting since the 1950s," according to the LRB publication.
Still, the district lines were ultimately challenged in federal court, and a three-judge panel ruled the boundaries of Milwaukee-area Assembly Districts 8 and 9 would need to be changed to better reflect Hispanic representation in those areas. When the Legislature didn't act to amend the lines, the court in 2012 issued a new order doing so.
Federal judges also moved to invalidate the Assembly district lines in 2016 as an unconstitutional partisan gerrymander, though the U.S. Supreme Court in June 2018 remanded the case back to the lower court, and the effort was abandoned following a new federal ruling earlier this summer.
The state in the 1990s and 2000s adhered to the court-drawn maps for the duration of those decades. But in the 1980s, which saw Democratic majorities in each house and Republican Lee Dreyfus in the governor's office, that wasn't the case.
While a three-judge panel initially established state district boundaries in 1982, the following legislative session was marked by continued Democratic majorities in both houses and a new governor: Democrat Tony Earl.
Together, they passed new maps that replaced the court-drawn ones and were used in the next four rounds of elections, beginning in 1984. That action, according to the LRB publication, was precedent-setting, allowing that a court plan imposed because lawmakers failed to enact their own maps "could be superseded by a plan enacted by a subsequent legislature."
Given the state's recent history with drawing maps under divided government, and the likelihood that Republicans will maintain their legislative majority in the next election cycle, it's most likely the issue will again go the courts, where judges would be entrusted with creating new district lines after the 2020 Census.
Potential for a process-altering lawsuit
Ahead of last December's extraordinary session, some speculated that Republicans would seek to change the redistricting process.
But GOP lawmakers denied the charge and no legislation to accomplish that was introduced during the lame-duck period.
The possibility remains that Republicans could rely on the courts to tweak how the state approaches redistricting, a path Democrats fear heading into the next round of map drawing.
While past Wisconsin Supreme Court rulings have affirmed the governor's involvement in the process, Republicans could pass new maps via resolution, an outcome that would likely take the issue to the state Supreme Court, where conservatives hold a majority.
But GOP leaders in both houses are refuting that possibility, outlined in a report by Wisconsin Examiner editor Ruth Conniff this week that Republicans could take a new approach to the redistricting process in the next couple of years. Conniff is the former editor of The Progressive Magazine.
Assembly Minority Leader Gordon Hintz, D-Oshkosh, said in a recent interview he's concerned Republicans could take that path as he slammed them for following "every opportunity they’ve had to circumvent existing law."
"It would allow them to do effectively what they’ve done, which is consolidate power and make it absolutely impossible for them to lose their majority under any election circumstance," he said. "So essentially, it would allow them to extend what they’ve done for the last decade in Wisconsin, which is undermine how a democracy is supposed to work."
Senate Majority Leader Scott Fitzgerald said in a statement the "approach has never been discussed by Republican leadership, within the GOP caucus, or with outside counsel."
"This is nothing more than rumor-mongering by Democrat activists in an attempt to fire up their base ahead of the 2020 elections," the Juneau Republican said.