A panel of three federal judges heard arguments Wednesday on a motion to dismiss a lawsuit brought by a group of Democrats who say that the 2011 redistricting of state legislative boundaries was an extreme and illegal partisan gerrymander.
Lawyers for the state Department of Justice, which is defending the 2011 redistricting plan, argued that a plan put forth by the group fails to show that the redistricting plan was unconstitutional.
No decisions were issued Wednesday, and federal Circuit Judge Kenneth Ripple, the senior judge on the panel, said the arguments and other material would be considered by the panel before it issues a written decision.
In addition to Ripple, who is a retired judge from the U.S. 7th Circuit Court of Appeals, based in Chicago, the panel includes U.S. District Judge Barbara Crabb of the U.S. District Court in Madison and Chief Judge William Griesbach of the U.S. District Court in Milwaukee.
Crabb was appointed to the bench by President Jimmy Carter, while Griesbach and Ripple are appointees of Republican presidents.
The lawsuit, which argues that the 2011 GOP redistricting plan was an example of “extreme partisan gerrymandering,” sets forth a means to objectively measure whether a redistricting plan is unfairly partisan.
Should the case survive DOJ’s motion for summary judgment, it is set for a trial before the three-judge panel in May. Because the panel includes an appeals court judge, the outcome of the trial can be appealed directly to the U.S. Supreme Court.
In its motion to dismiss the case, the Republican-led DOJ is challenging a contention that the 2011 redistricting caused an “efficiency gap” in voting, by creating boundaries that pack Democrats into a small number of districts and in other places, crack them apart into minorities in districts that have vast majorities of Republican voters.
DOJ argues in its motion that the pro-Republican efficiency gap is a “natural occurrence” and is similar to other gaps that occurred in earlier years, and is a flawed means to measure partisanship in redistricting.
State Assistant Attorney General Brian Keenan maintained in arguments Wednesday that gerrymandering with partisan intent is permissible, and said that the plan proposed by the Democrats’ lawsuit fails because it doesn’t help determine what level of partisanship in creating political boundaries is unconstitutional.
Responding to a question from the bench, Keenan would not concede that in the 2011 redistricting, GOP legislators intended to create a plan that would keep a Republican majority in the state Legislature for the entire 10-year period that the map would remain in effect.
Michele Odorizzi, arguing for the Democrats’ group, said that if the case goes to trial they will put on evidence showing that GOP legislators considered different plans before pursuing one that they believed would keep Republicans in control of the Legislature over the entire 10-year period. She said that showed not only partisan intent but that the effect of it was to create a durable partisan imbalance in the Legislature.
“That is constitutionally intolerable,” Odorizzi said.
In December, the three-judge panel declined to dismiss the lawsuit on a motion from DOJ, which had argued among other things that the group of Democrats, led by retired UW-Madison Law School professor William Whitford, lacked standing to bring the lawsuit.