The state Department of Justice asked Tuesday that a lawsuit filed last month over the 2011 state legislative district map be dismissed because the lawsuit presents a political question that the court cannot answer.

The lawsuit was filed by a group of 12 Democrats from across Wisconsin, led by retired UW-Madison Law School professor William Whitford, and asks that the map’s boundaries be thrown out as “one of the worst gerrymanders in modern American history.”

In its motion to dismiss the lawsuit, DOJ lawyers wrote that no standard exists for measuring the burden a gerrymander places on the right to legislative representation, and that the one proposed in the lawsuit has been rejected by the U.S. Supreme Court.

“There is no constitutional right for political groups to obtain a percentage of legislative seats corresponding to the percentage of votes their candidates earn statewide in legislative contests,” DOJ lawyers state in a brief supporting their motion to dismiss. “As a result, a districting plan does not become unconstitutional because it departs from partisan symmetry or results in more ‘wasted votes’ for the candidates of one party.”

Peter Earle, lead attorney for the plaintiffs, could not be immediately reached for comment.

The case will be heard by a three-judge panel from the U.S. District Court in Madison and the U.S. Court of Appeals for the 7th Circuit based in Chicago.

In a letter to U.S. District Judge Barbara Crabb last month, Chief Judge Diane Wood agreed that a three-judge panel is required to hear the case.

The lawsuit states that in prior rulings, the Supreme Court showed a willingness to find gerrymandering unconstitutional, but could not decide on a workable standard to distinguish between legal and unconstitutional line drawing.

The lawsuit proposes the use of an “efficiency gap,” which measures the effect of dividing supporters of a political party so they can’t form a majority and the effect of concentrating a party’s supporters into a few districts where they win by overwhelming margins.

The practices waste votes, the lawsuit states, and there should be a presumption of unconstitutionality when the efficiency gap is large.

But the DOJ contends in its motion that Democrats are disadvantaged because they “naturally are ‘packed’ into districts drawn using ordinary districting principles.”

An earlier legislative map drawn by a federal court after the 2000 census had a higher efficiency gap than the standard proposed in the lawsuit, DOJ wrote, and was not the result of partisan gerrymandering.

DOJ also contends that there’s no basis in law to allow a redrawing of all of the state’s districts, and added that plaintiffs in the lawsuit don’t have standing to sue unless they live in a gerrymandered district.

Capital W: Plug in to Wisconsin politics

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