A group of Wisconsin Democrats can proceed with a lawsuit that challenges the last legislative redistricting plan as an example of “extreme partisan gerrymandering,” after a panel of three federal judges found that the group has met legal standards to argue its case.
The judges on Thursday declined to dismiss the lawsuit, as sought by the Republican-led state Department of Justice.
“Although we believe that plaintiffs face significant challenges in prevailing on their claims, we conclude that plaintiffs’ complaint is sufficient to state a claim upon which relief may be granted,” wrote the panel, which includes U.S. District Judge Barbara Crabb, federal Circuit Judge Kenneth Ripple and Chief Judge William Griesbach, of the U.S. District Court in Milwaukee.
Ripple and Griesbach were appointed to their posts by Republican presidents.
Being heard by a three-judge panel that includes an appeals court judge means that the case would be appealed directly to the U.S. Supreme Court.
The group of registered Democrats, led by retired UW-Madison law professor William Whitford, filed the suit in July, saying that the 2011 redistricting of state legislative boundaries is “both unconstitutionally and profoundly undemocratic” because its boundaries dilute the voting power of some voters.
“This decision means that the court has determined that the victims of Wisconsin’s egregious gerrymandering can win their case if we prove what we alleged in the complaint,” the group’s lead attorney, Peter Earle, said in a statement. “In other words, the court has provided us with a blueprint for winning a judgment on the merits.”
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DOJ spokeswoman Anne E. Schwartz said the agency was still reviewing the decision.
DOJ lawyers argued that the group lacked standing because it did not include a Democrat from each of the state’s 99 Assembly districts. The panel said that was not necessary.
“Because plaintiffs’ alleged injury in this case relates to their statewide representation, it follows that they should be permitted to bring a statewide claim,” the panel wrote. The Supreme Court allows individual plaintiffs to bring challenges to state districting maps in “one-person, one-vote” cases in which population differences between legislative districts violate the Constitution’s equal protection clause, the panel added.
Still, the court said that DOJ could re-raise the issue in a later motion. The case is set for a trial before the three-judge panel in May.
On its equal protection claim, the court said that the Democrats’ showing of a discriminatory effect — the hiring of a private law firm by GOP legislators to draw district lines that maximize GOP wins and minimize its losses, in secret and without input from Democrats — wasn’t challenged by DOJ.
Nor did DOJ challenge the assertion that the 2011 plan would continue to unfairly favor Republican voters and candidates, the court said. Instead, DOJ argued primarily that partisan symmetry is like other theories that the U.S. Supreme Court has rejected in past gerrymandering cases.
But, as the court pointed out, the Democrats’ argument was more about comparing the votes wasted by voters of each party, not whether the percentage of statewide votes is reflected in the number of representatives each party elects. Even so, the court said, the Supreme Court hasn’t rejected partisan symmetry as a standard.