Work on redrawing the state Assembly map should begin immediately, with or without the participation of state lawmakers, according to a court brief filed Wednesday by lawyers for a group of Wisconsin Democrats.
The group, which won a federal court ruling last month that declared the current Assembly map to be an unconstitutional partisan gerrymander that overwhelmingly favors Republicans, wants the new map ready for elections in 2018 and 2020, according to the court filing.
But the state Department of Justice, in its brief, wrote that the federal three-judge panel hearing the case should wait to order a plan to replace the 2011 state Assembly map until after the U.S. Supreme Court has acted on its inevitable appeal.
Briefs from both sides were filed Wednesday at the request of the panel, which ruled 2-1 in November that the 2011 redistricting plan, drawn up by Republican legislators, is an unconstitutional partisan gerrymander. When the panel made its ruling, it did not decide how it would change the map, instead ordering both sides to write briefs telling the panel what they believe should happen. On Jan. 5, both sides will file responses to the other’s position.
The group of Democrats sued last year, calling the 2011 plan “one of the worst partisan gerrymanders in modern American history.”
In its brief, lawyers for the Democrats asked the panel to bar further use of the 2011 Assembly map so that DOJ can immediately appeal. But while the appeal is ongoing, they wrote, the panel should begin the process of redrawing the map. The Democrats wrote that the panel may, but need not, allow legislators to draw a new map.
“The elected branches’ illegal conduct in passing and defending the current plan, as well as their own position that they are barred by the Wisconsin constitution from redistricting again until the 2020 cycle, are compelling reasons for the court not to extend them this opportunity,” lawyers for the Democrats wrote in their brief.
If allowed to participate, though, the panel should give legislators and the governor “a firm timetable, clear line-drawing criteria and concrete disclosure instructions,” the Democrats wrote. If the court decides to draw the map itself, they wrote, it should have even stricter line-drawing constraints.
The state’s lawyers, while disagreeing with the panel’s decision that the 2011 redistricting plan is unconstitutional, wrote that the court should direct the Legislature to revise Assembly districts to comply with its order, but wait to do so until after the state’s appeal has been heard by the U.S. Supreme Court.
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“Such an approach would allow the defendants’ appeal to the Supreme Court to proceed immediately, while avoiding a waste of resources devising a plan that is a temporary placeholder until the Supreme Court’s ruling in this case,” DOJ lawyers wrote. “Only after a Supreme Court ruling will it be known if a replacement map is needed and, if so, what form it should take.”
DOJ said that because of a lack of legal precedent on partisan gerrymandering cases, it would be a waste of time and money to draft and pass a new plan, only to have the Supreme Court provide a standard that would require an entirely different plan, or to have the court reverse the decision by the three-judge panel.
U.S. District Judge Barbara Crabb of Madison and 7th Circuit U.S. Court of Appeals Judge Kenneth Ripple ruled on Nov. 21 that the 2011 state Assembly redistricting plan is a partisan gerrymander.
U.S. Chief Judge William Griesbach of Milwaukee dissented.
Ripple, the senior judge on the panel, wrote that the 2011 map was “intended to burden the representational rights of Democratic voters ... by impeding their ability to translate their votes into legislative seats.”
He added that there was no justification for the map based on the state’s political geography or any legitimate state interest.
The redistricting plan was written at the law office of Michael Best & Friedrich under strict secrecy. Democrats contend it was drawn to give Republicans a “large and durable” advantage in elections.
Lawyers for the Democrats said that they have devised a way to measure unconstitutional partisan gerrymanders that the U.S. Supreme Court has said it was lacking.
The measure, called the efficiency gap, shows how breaking up blocs of Democratic voters, called cracking, and packing other Democrats into certain districts results in wasted votes — excess votes for winners in safe districts and perpetually inadequate votes for losers.