Wisconsin's Legislature must create a new Assembly district map to replace the one that was ruled unconstitutional, federal judges said Friday.
A three-judge panel of judges permanently barred the state from using the current Assembly district map passed in 2011, simultaneously ordering it to create a new one for the November 2018 election. A new redistricting plan must be passed and signed by Gov. Scott Walker by Nov. 1, according to the order.
"This deadline affords the Legislature ample time to enact a plan contingent on the Supreme Court's affirmance of our judgement," the judges wrote. "While it allows the defendants and the candidates to make plans for the November 2018 election only on a contingent basis, at least they will be able to prepare for that contingency in the context of a concrete alternative map."
The order is specific to Wisconsin's Assembly map but essentially invalidates both the Assembly and Senate district maps because the Senate district map is based on the Assembly's map. In November 2016, the court ruled that the state's Assembly district maps were an unconstitutional gerrymander, a ruling that has gotten national attention. Wisconsin's case is the first gerrymandering case of its kind to go to trial in 30 years, according to the Campaign Legal Center, a Washington, D.C.-based advocacy group that has worked with the plaintiffs.
If the case reaches the U.S. Supreme Court, it would allow the court to set a legal standard on partisan gerrymandering for the first time.
The state Department of Justice said it plans to appeal. It had asked the court to delay an order that would create new maps pending a review by the U.S. Supreme Court.
"We are reviewing the court’s order, but we expect to file an appeal with the Supreme Court and seek prompt reversal of this decision," DOJ spokesman Johnny Koremenos wrote in an email Friday.
With the largest Republican majorities in both statehouse chambers in decades, the latest ruling is a victory for the plaintiffs, a group of 12 Democrats. Democrats have continued to lose ground in state elections and have cast blame on the maps, which they have said entrenches an unfair partisan advantage for the GOP. State district maps for both chambers of the Legislature are required to be redrawn every 10 years in accordance with the U.S. Census.
Bill Whitford, the lead plaintiff in the case, said he was pleased with the decision.
"Today is a good day for Wisconsin voters, and another step in the journey of ensuring that our voices are heard,” Whitford said in a statement. “Now, we will be keeping a watchful eye on the state Legislature as they draw the new maps and I ask them, for the sake of our democracy, to put partisan politics aside and the interests of all voters first.”
The plaintiffs originally asked the court to redraw the state's maps, offering a variety of deadlines and scenarios. But the court Friday distanced itself from state-based affairs and said the state Legislature has demonstrated no "malice or intransigence" that would justify the court stripping its map-making power.
"Although state actors in this case certainly intended the partisan effect that they in fact produced, the record does not permit us to ascribe to them an unwillingness to adhere to an order of this Court or to conform the allocation of seats in the state Legislature to constitutional requirements," the judges wrote.
Sachin Chheda, director of the Fair Elections Project, a nonprofit that opposes partisan gerrymandering and helped organize the lawsuit, said he looks forward to the creation of a new map.
“Yet again, the federal courts have ruled clearly - Wisconsin’s district maps are an unconstitutional partisan gerrymander, they violate the rights of millions of Wisconsin citizens, and it’s time to move ahead and draw new maps,” said Chheda in a statement. “This is a victory for democracy and we look forward to a process to draw these maps that engage the community and invite public participation.”
Rep. Melissa Sargent, D-Madison, praised the ruling, calling it a victory for democracy statewide.
“The cornerstone of democracy is that the people should get to pick their legislators, not that legislators get to pick their voters," Sargent said in a statement. "Voting should be fair, easy and accessible, and today’s ruling only reinforces what Democrats have been saying for years."
Rick Esenberg, president of the Wisconsin Institute on Law and Liberty, a conservative education and legal group, said the judges’ deadline, giving the Legislature enough time to enact a new plan “contingent on the Supreme Court’s affirmance of our judgment,” is confusing.
“What happens if we get to next year, 2018, and the U.S. Supreme Court hasn’t acted on it?” he said. “Does that mean they have reversed the order? What happens then?”
Esenberg also said there could more litigation if the parties dispute the fairness of whatever new map the Legislature and governor approve.
“It seems to me they’re going to redraw the maps and there’s going to be litigation over whether what they did complies with whatever principle that was issued in November, which I think itself was unclear and hard to ascertain,” he said.
Matt Rothschild, executive director of the Wisconsin Democracy Campaign, said allowing the Legislature a second try is a mistake.
"The court put too much faith in the ability of the Republican leaders in the Legislature to devise maps that will pass constitutional muster," he said in a statement.
He said the judges' order Friday was too broad and didn't offer enough specifics for how the Legislature can make the maps constitutional.
"The judges also refused to provide the Legislature with detailed instructions about how to proceed with the new map-drawing, which is another mistake," he said. "At the very least, the judges should have required that the process be open to the public, with public hearings and an opportunity for public comment."