Calling the current state legislative redistricting “one of the worst gerrymanders in modern American history,” a group of 12 Wisconsin Democrats sued the state Wednesday, asking that the 2011 district map be thrown out as giving an unconstitutional advantage to Republicans.
The group is asking that a federal three-judge panel decide the case so that it can be appealed straight to the U.S. Supreme Court before the 2016 elections, said lead attorney Peter Earle. The Supreme Court’s decision could affect laws in other states, he said.
The 30-page lawsuit, filed in U.S. District Court in Madison, calls gerrymandering of the kind it alleges “both unconstitutionally and profoundly undemocratic” because it dilutes the voting power of some voters based on their political beliefs and burdens their rights of association and free speech.
The lawsuit states that in the first election after the 2011 redistricting, Republican candidates won 60 of the Assembly’s 99 seats even though Democratic candidates won a majority of the statewide votes cast for Assembly.
“As has been seen across the nation, and especially here in Wisconsin, when one party controls all the levers of government and then stacks the deck in their favor to keep control regardless of the will of the people, the very heart and soul of our democracy is weakened,” Earle said at a news conference Wednesday.
If the lawsuit succeeds, Earle said, the Legislature would be required to redraw boundaries. If they don’t do it to the court’s satisfaction, the court would do it, he said.
The defendants in the case are members of the state Government Accountability Board. Anne E. Schwartz, spokeswoman for the state Department of Justice, which would defend the board in court, said DOJ has not yet received or reviewed a copy of the lawsuit.
A federal lawsuit in 2012 over the redrawn boundaries left 130 of 132 districts intact, while two were ordered to be redrawn.
The lawsuit states that in prior rulings, the U.S. Supreme Court has shown a willingness to find gerrymandering unconstitutional, but there hasn’t been a workable standard offered to distinguish between legal and unconstitutional district line-drawing.
But the lawsuit states that an “efficiency gap” in voting between the two major parties helps demonstrate that the 2011 plan is unconstitutional.
The efficiency gap measures the effects of “cracking” — dividing a party’s supporters in multiple districts so they don’t form a majority — and “packing” — concentrating one party’s backers in a few districts that they win by overwhelming margins.
Cracking and packing wastes votes, the lawsuit states, lost by either voting for a losing candidate in a cracked district or for a winning candidate in a packed district. When the gap is small, districts are equal, but when large, there should be a presumption of unconstitutionality, the lawsuit states.
In the 2012 election, the redistricting plan resulted in a 13 percent efficiency gap favoring Republican candidates, and 10 percent in 2014, which the lawsuit called unusually high.
The lawsuit also points to the way that district lines were drawn in secret by the Legislature’s Republican leadership, without consulting Democratic leaders or rank-and-file of either party, then pushed through the Assembly with little debate.
“We’re particularly frustrated because we feel like our votes don’t matter,” said William Whitford, a plaintiff and retired UW-Madison Law School professor. “We all vote regularly, we know that our votes matter in statewide races, we know they matter in local races, but we know that when it comes to the state Assembly, our votes just don’t matter.”
Former Republican state Sen. Dale Schultz said unequal elections have led to an avalanche of unregulated political contributions so powerful that “the majority of our legislators have been relegated to nothing more than pawns awaiting bills written by special interests themselves and told how and what to do.” Schultz is co-chairman along with former Democratic state Sen. Tim Cullen of the Fair Elections Project, launched to support fair redistricting.
Another Republican, former four-term state Sen. Dan Theno, said he wants to see Republicans win elections, “but I want to see them win fairly, and we do not have a fair system in Wisconsin right now.”