Thursday’s U.S. Supreme Court ruling allowing partisan redistricting maps sets up a scenario in which Republicans could perpetuate their dominance of the state Legislature for years to come.
The decision raises the stakes of the 2020 election for Democrats, who now must overcome the electoral challenges of the current maps — drawn by Republicans when they had complete control of state government — to be in a position to influence the drawing of new ones after the 2020 census.
With the victory of Democrat Tony Evers over two-term incumbent Scott Walker in November, Republicans no longer have complete control of state government. So the likely scenario now is that Republicans will create maps to maximize their political prospects and Evers will veto them.
“If the Supreme Court chooses to sleep on the job and ignores its duty to remedy the widespread constitutional harms across our country, then in Wisconsin we will do everything we can to ensure elections in our state are fair, accessible, and free,” Evers said in statement. “That includes fighting for nonpartisan redistricting and vetoing gerrymandered maps that arrive on my desk.”
As happened in previous decades when Wisconsin had a divided government, the matter will likely go to the courts. But this time the decision could land in a state Supreme Court that has for more than a decade been dominated by conservatives who have reliably backed Republicans in cases involving partisan politics. Or it could go to the federal courts, the final arbiter of which is the same Supreme Court that issued Thursday’s ruling.
“I’m not sure Democrats will have any recourse,” said UW-Madison political science professor Barry Burden.
Burden said the dynamics are already in place for the redistricting process. Republicans, with the help of the legislative maps they’ve engineered, will likely remain in power in the Legislature. Evers will still be governor. And Supreme Court conservatives, who will still hold the majority even if they lose a seat next year, will still hold sway.
“Unless the law were changed magically to create a nonpartisan or bipartisan process, the two branches are going to be at loggerheads,” Burden said, “and either the state Supreme Court or a federal court or both will get involved.”
A bipartisan solution is unlikely. In his budget proposal this year, Evers had included a plan to hand the redistricting process to a nonpartisan commission, but legislative Republicans axed it.
The ruling is a blow to election reformers, and for the most part Democrats looking for a break heading into the 2020 elections. And it likely kills a Wisconsin case challenging the Republican maps. In 2016 a three-judge panel in Wisconsin’s Western District ruled that the maps violated the voting rights of Democrats. But the Supreme Court ruled last year that the plaintiff who testified in the Wisconsin case, a Democratic voter, didn’t have legal standing and sent the case back to the Western District Court for trial.
Thursday’s ruling likely negates any basis for that trial.
“It appears to have shut down what’s going on in the Western District of Wisconsin,” said Senate Majority Leader Scott Fitzgerald.
State Democrats immediately decried the 5-4 ruling, split down conservative-liberal lines.
“Today’s decision will join Citizens United in the hall of fame of anti-democracy Supreme Court decisions,” said the Wisconsin Democratic Party, referring to the 2010 decision that paved the way for unlimited campaign spending by private groups.
Since 2011, when Republicans took over both houses of the state Legislature and the governorship, Democrats have been vexed by maps that have locked in Republican gains. In 2018, Republicans won a 63-36 majority in the Assembly despite winning only 44 percent of the vote and losing all statewide races.
“It is more important than ever that we elect Democrats to our state legislature,” the Democrats said. “Regardless of today’s ruling, Democrats in Wisconsin will continue to compete everywhere possible in 2020 and beyond. We will continue to mobilize, and we will continue to build the infrastructure necessary for more victories for the people of Wisconsin.”
The Supreme Court ruling pertained to Republican-drawn maps in North Carolina and Democratic maps in Maryland. But the ruling is seen as a boon to Republicans, who controlled more state governments after the 2010 census, and therefore had control of the map-making process in those states.
“There just aren’t that many state, frankly where Democrats own the governor’s office and both chambers of the state legislature, and where redistricting is still done by the legislature and the governor,” Burden said.
The majority decision left open the opportunity for states to create nonpartisan commissions, typically voted in by referendum.
According to the latest Marquette Law School poll, 72% of Wisconsin voters, including 63% of Republicans, 76% of independents and 83% of Democrats, want a nonpartisan commission to draw legislative maps. But unlike most of the dozen states that have adopted such a system, voters in Wisconsin and many other states don’t have the power to vote one in by ballot initiative.
Reform advocates complain that the partisan maps deny voters the right to fair and equal representation. Federal judges in Ohio and Michigan had agreed and rejected maps that helped entrench Republican advantages. But those cases were put on hold awaiting Thursday’s ruling.
The Supreme Court decision, written by Chief Justice John Roberts, dismissed those arguments as a constitutional matter, holding that the maps are a political matter “beyond the reach of the courts.”
"We have no legal commission to allocate political power and influence,” Roberts wrote.
Writing for the court’s liberal justices, Justice Elena Kagan called the majority decision “tragically wrong.”
“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote. “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
Burden said the ruling leaves few fetters to the creation of partisan maps.
“The court has ruled 5-4 that as long as it's done on basis of partisanship rather than race, no amount of gerrymandering is extreme enough that courts should put a stop to it,” he said.
In 2012 a panel of federal judges ruled that the Republican unfairly disadvantaged Latino voters in Milwaukee, resulting in the redrawing of two legislative districts.