A lawsuit over legislative boundaries that a group of Wisconsin Democrats calls “one of the worst gerrymanders in modern American history” had its first day in court Wednesday, as lawyers for the group defended it from a dismissal motion filed by the Republican-led state Department of Justice.
The lawsuit, filed in federal court in July, said that a 2011 redistricting of state legislative boundaries is “both unconstitutionally and profoundly undemocratic” because its boundaries dilute the voting power of some voters.
DOJ lawyers, however, asked that the lawsuit be dismissed, saying that the question it presents is a political question that the courts cannot decide and that the U.S. Supreme Court has rejected in other cases.
In arguments before a three-judge panel held in U.S. District Court in Madison, state Assistant Attorney General Brian Keenan argued that there is no reliable test to determine what a gerrymander is, and that the Supreme Court has previously rejected efforts to create one.
Keenan also said he does not believe that the plaintiffs in the case have standing to bring the lawsuit because plaintiffs from every legislative district in the state must be involved.
Plaintiff attorney Michele Odorizzi countered that even if the court determined that the plaintiffs currently lack standing, the lawsuit could be amended to add more plaintiffs, or even make the case a class action.
There was no decision Wednesday. The court will issue a decision in writing at a later date.
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The group of 12 Democrats contends that legislative districts, as they are now drawn, divide the party’s supporters in multiple districts so they don’t form a majority, and also concentrate the party’s backers in a few other districts that they win by overwhelming margins — called “cracking” and “packing.”
Both of those practices waste votes, the lawsuit states. The effect of the wasted votes can be measured by an “efficiency gap,” and district boundaries should be presumed to be unconstitutional when the gap is large, as it was in the 2012 and 2014 elections, the lawsuit states.
Odorizzi told the panel that the lawsuit isn’t seeking proportional representation — a number of seats in the legislature based closely on the number of votes cast statewide — but “partisan symmetry,” treating members of both parties in the same way when creating legislative maps, “not based on how many seats are won but on the amount of packing and cracking that’s been done.”
The three-judge panel consists of U.S. District Judge Barbara Crabb, appointed in 1979 by President Jimmy Carter; Circuit Judge Kenneth Ripple of the U.S. Appeals Court for the Seventh Circuit, appointed in 1985 by President Ronald Reagan; and Chief Judge William Griesbach of the U.S. District Court in Milwaukee, appointed in 2002 by President George W. Bush.
Of the three, Griesbach sounded the most skeptical of the lawsuit’s chances of success, at one point questioning Odorizzi about the added difficulty of creating fair seats, for example, in urban areas where Democratic voters are “packed naturally.” He also expressed skepticism about putting “the map-making process into the hands of academics.”
Odorizzi countered that in creating the 2011 redistricting plan, Republicans hired a political scientist whose predictions for maximizing packing and cracking of districts to GOP advantage was incredibly accurate.
“He predicted it to a T,” she said.
Odorizzi said that in determining whether to dismiss the lawsuit, the panel has to assume that what has been submitted by the plaintiffs is true, then decide whether the case can be won based on those facts.
Should the case proceed to a trial, it would begin on May 23. Because the case is being heard by a three-judge panel, any appeal would go directly to the U.S. Supreme Court, bypassing the federal appeals court.