Nearly five years after passage of the 2011 state redistricting plan, tarred in a lawsuit by a group of Democratic voters as “one of the worst partisan gerrymanders in modern American history,” a panel of federal judges began hearing testimony Tuesday that will help them decide whether to let the plan stand or throw it out.
The trial, before a three-judge panel in federal court in Madison, is slated to last through Friday. It will focus principally on a claim by the Democrats that the boundaries dilute the power of their supporters’ votes, a measure known as the efficiency gap. In past decisions, the U.S. Supreme Court has said no reliable test for gerrymanders exists.
The judges are U.S. District Judge Barbara Crabb of Madison, Chief U.S. District Judge William Griesbach of Milwaukee and Senior Circuit Judge Kenneth Ripple, of the U.S. Court of Appeals for the 7th Circuit, based in Chicago.
A decision is unlikely at the end of this week’s trial, which is more an opportunity to put on live testimony to supplement the reams of depositions and expert reports already submitted in the case. The panel will more likely issue a written decision later.
An appeal of that decision is inevitable, and because of the makeup of the panel, can be appealed directly to the Supreme Court.
In his opening statement for the plaintiffs, attorney Nicholas Stephanopoulos, of the University of Chicago Law School, repeated that the 2011 legislative redistricting plan was “one of the worst partisan gerrymanders in modern American history.”
He said the plan has a “discriminatory intent” and that its authors had the aim of disenfranchising Democratic voters. The plan, he said, “cannot be justified on the state’s geography and legitimate objectives.”
The plan was devised in secret, he said, in a tightly controlled map room at the law firm of Michael Best & Friedrich, hired by GOP legislators to create the new map. Only GOP legislators were shown the results, and no Democrats were allowed access to the process. After the maps were finished, he said, they were approved on party-line votes in nine days.
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The maps were tested for partisan effect and durability using data models created by University of Oklahoma Professor Keith Gaddie, who was hired to assess the maps. The maps increased the number of safe GOP seats by “cracking” (breaking up blocs of Democratic voters) and “packing” (concentrating Democratic voters within certain districts), Stephanopoulos said.
Stephanopoulos said the efficiency gap measures “wasted votes” — excess votes for one party in safe districts and votes cast for losing candidates in those safe districts. He said the efficiency gap is a simple calculation and provides a measurement of partisan gerrymandering that lawyers for the state maintain can’t be measured.
But Assistant Attorney General Brian Keenan said the judges would see no evidence of gerrymandering, based on the traditional meaning of the term — the creation of tortured, oddly-shaped districts for partisan purposes.
“There aren’t any districts like that in Act 43,” Keenan said. He said the lawsuit created “a radical conceptual change in the definition of gerrymandering.”
The 2011 legislative redistricting plan is not a constitutional violation, Keenan said. Prior court cases on gerrymandering also have never taken exception to the drawing of new legislative boundaries by the majority party that was currently in power.
The efficiency gap and other numbers provided by the plaintiffs “provide a false sense of certainty” but do not predict the future, Keenan said.
“The plaintiff’s statistics are illuminating,” Keenan said, “but they don’t provide any evidence of a constitutional violation.”
In testimony, legislative aide Adam Foltz, who at the time worked for then-Assembly Speaker Jeff Fitzgerald, said he was assigned to work on redistricting plans. Called to the stand by the Democrats as an adverse witness, Foltz denied that the plans formulated by the redistricting team were done with an eye toward keeping a GOP majority in both houses of the Legislature.
“I wouldn’t agree that it measured expected future performance,” Foltz said.
At one point he stated that a map labeled as “strong Republican” meant nothing more than Republican-leaning “in a generic sense.”