A federal judicial panel says state lawmakers and Gov. Scott Walker must act before the 2018 election to redraw legislative district boundaries that the court recently struck down as unconstitutionally benefiting Republicans.
In an order released Friday, the judges say Wisconsin must devise a new redistricting plan for the 2018 election and have it in place by Nov. 1, 2017.
State officials pledged to swiftly appeal the order to the U.S. Supreme Court. Should it withstand appeal, the ruling could reshape the 2018 legislative elections, giving beleaguered Democrats — now badly outnumbered in the Legislature — hope to win more races.
But Friday’s order also rejected a key request from plaintiffs: that judges, rather than lawmakers and the governor, take charge of creating new district boundaries.
“It is the prerogative of the state to determine the contours of a new map,” the three-judge panel ruled.
The order says Republican lawmakers and Walker should use the original November ruling as a guide to devise a map that is constitutional. The new map would change state Assembly and state Senate districts; U.S. congressional districts would not be affected.
The same three-judge panel ruled in November that Wisconsin’s legislative boundaries are an “unconstitutional partisan gerrymander” that “was intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”
The Campaign Legal Center, a nonpartisan advocacy group that has helped represent the plaintiffs, hailed the ruling as “a monumental victory for the plaintiffs in this case and for all Wisconsin voters.”
“Today, the court made a clear statement that holding yet another unconstitutional election under (the current legislative boundaries) would cause significant harm to the voters,” said Gerry Hebert, the center’s director of voting rights and redistricting.
Lawyers from the state Attorney General’s Office, who defended the current map, had argued the state should wait to redraw the districts until the U.S. Supreme Court decides the state’s all-but-certain appeal of the case.
Johnny Koremenos, a spokesman for the state Department of Justice, which the attorney general leads, said Friday that “we expect to file an appeal with the Supreme Court and seek prompt reversal of this decision.”
Timing could be critical
Federal law requires the high court to respond to an appeal of such redistricting litigation instead of simply declining to take it. But it’s up to the high court to decide when to act.
If the court waits until next year, then overrules the lower court, it could put Wisconsin in “political limbo” shortly before an election, said Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty.
Legislative Democrats, meanwhile, praised Friday’s ruling, saying Republicans must heed it by working with Democrats and the public to craft a new map.
“Rather than trying to justify their unconstitutional election-rigging efforts, Republicans should work with Democrats to protect voters and restore election fairness,” said Senate Democratic Leader Jennifer Shilling, D-La Crosse.
The office of Senate Majority Leader Scott Fitzgerald, R-Juneau, referred questions about the order to the Department of Justice. Assembly Speaker Robin Vos’ office did not respond to a request for comment.
The November ruling striking down Wisconsin’s legislative map was seen as nationally significant by the plaintiffs and their allies, who say it validates their proposed test to measure unconstitutional partisan gerrymandering.
‘Efficiency gap’ proposal
Redistricting maps in other states previously were challenged as unconstitutionally partisan, but the U.S. Supreme Court has said there’s no established way to measure such claims.
The proposed test includes a measure called the efficiency gap, which examines the discrepancy between how many votes are “wasted” for each party in recent elections.
Wasted votes, according to the efficiency gap’s creators, are the number of “lost” votes cast for losing candidates and “surplus” votes for victorious candidates in excess of what they needed to win.
Applied to Wisconsin’s current map, it translates to a greater amount of wasted votes for Democrats.
Democratic votes are loaded overwhelmingly into a few safe districts, largely in the state’s urban areas.
The remaining Democratic votes are scattered throughout the state’s remaining districts, largely in suburban and rural areas, in such a way that Democrats in those districts are a near-permanent minority.
Esenberg and other conservative critics argue the “efficiency gap” is due simply to Democratic voters choosing to cluster together in urban areas. Esenberg says using the gap as a standard for redistricting would require overlooking other established criteria for creating legislative districts, such as geographic compactness and matching district lines with municipal and county boundaries.
The judicial panel consists of Kenneth Ripple, a judge for the 7th Circuit Court of Appeals, and district court judges Barbara Crabb and William Griesbach.
Ripple and Crabb issued the November order that found the current legislative district plan to be unconstitutional; Griesbach opposed it.
Crabb was appointed to the bench in 1979 by President Jimmy Carter, a Democrat. Ripple was appointed to the U.S. Appeals Court for the Seventh Circuit in 1985 by Republican President Ronald Reagan. Griesbach, chief judge of the U.S. District Court in Milwaukee, was appointed in 2002 by GOP President George W. Bush.