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Supreme Court rules on Wisconsin redistricting case

Former California Republican Gov. Arnold Schwarzenegger speaks at a rally outside the U.S. Supreme Court in Washington last year as the Supreme Court heard arguments in a case about political maps in Wisconsin that could affect elections across the country.

The U.S. Supreme Court has unanimously ruled the plaintiffs lack standing in Wisconsin’s nationally watched gerrymandering case — but in an unusual move, it agreed to send the case back to a lower court for further argument.

The unanimous decision in the case, known as Gill v. Whitford, does not resolve a challenge to the legislative maps the Republican-controlled Legislature drew under tightly controlled secrecy in 2011.

But it does end the plaintiffs’ hopes that a judge could order Wisconsin’s legislative boundaries to be redrawn in time for the 2018 elections. Federal judges ordered that last year after ruling the maps were unconstitutional.

In a separate unsigned opinion, the court also did not side with Maryland Republicans who challenged a single congressional district on partisan grounds. Another case involving challenges to North Carolina’s 13 congressional districts may address some of the standing issues in Wisconsin.

In the Wisconsin case, the court said the plaintiffs, a group of registered Democrats, failed to demonstrate they had a personal stake in the outcome.

“It is a case about group political interests, not individual legal rights,” Chief Justice John Roberts wrote for the majority. “But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

But rather than dismiss the case entirely, the court ruled 7-2 to send the decision back to the district court “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence — unlike the bulk of the evidence presented thus far — that would tend to demonstrate a burden on their individual votes.”

Roberts wrote that typically the court would dismiss a case in which the plaintiffs lack standing, but “this is not the usual case” because the court has not agreed upon a legal standard for partisan gerrymandering.

“We express no view on the merits of the plaintiffs’ case,” Roberts wrote.

Thomas: ‘Nothing unusual’ about case

Two of the court’s most conservative justices, Clarence Thomas and Neil Gorsuch, concurred that the plaintiffs lack standing but declined to join them in sending it back to lower courts for further consideration.

Thomas wrote in his opinion that “there is nothing unusual about” the case.

“The plaintiffs had a more-than-ample opportunity to prove their standing under these principles,” Thomas wrote. “They failed to do so.”

Republican legislative leaders who drew the maps in 2011 touted the ruling as vindication.

Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, said in a joint statement that “we have been confident throughout this process that the court would rule in our favor.”

Fitzgerald’s office was involved in drawing the maps in 2011, the first time one party controlled the redistricting process in decades.

“Democrats have been using the maps as an excuse for their failure to connect with Wisconsin voters,” Vos and Fitzgerald said. “We believe the redistricting process we undertook seven years ago fulfilled our constitutional duty, and followed all applicable laws and standards.”

Law professor sees

‘a road map forward’

Bill Whitford, the University of Wisconsin law professor emeritus who is lead plaintiff in the suit, said he was both “encouraged and discouraged” by the decision.

“The encouraging part is we have a road map forward,” he said.

The discouraging part, Whitford said, is how long the case is taking while the maps he and plaintiffs argue are unconstitutional remain in place.

Plaintiffs in the case had hoped the Supreme Court would uphold a lower court ruling that found Wisconsin’s current district map unconstitutional and ordered a new one drawn. They had hoped the redrawing would occur in time for new legislative boundaries to be in place for elections in November.

Monday’s decision made clear that will not happen. Paul Smith, an attorney for the Campaign Legal Center who argued the plaintiffs’ case before the Supreme Court, said the plaintiffs are instead focused on getting the map redrawn before the 2020 presidential election, the last election before maps are redrawn again following that year’s census by whichever party or parties control the Legislature and governor’s office in 2021.

“This case is very much still alive,” Smith said.

Smith told reporters he expects new evidence will be introduced and new plaintiffs added to the case when it goes back before the lower courts.

Republican Attorney General Brad Schimel, whose team argued the case before the Supreme Court, hailed the decision as a victory.

“I am pleased that the highest court in the land has unanimously reversed the trial court’s erroneous decision invalidating Wisconsin’s Assembly map,” Schimel said in a statement. “Today is (a) win for the rule of law in Wisconsin, and a testament to the talented attorneys at the Wisconsin Department of Justice.”

A three-judge federal panel ruled 2-1 on the case in November 2016 in support of the plaintiffs’ three-pronged standard for how to test for partisan gerrymandering: Proving discriminatory intent, demonstrating a discriminatory effect, and finding no other justification for how the maps were drawn.

Concerns over ‘packing,’ ‘cracking’

To prove the discriminatory effect, the plaintiffs measured the election results based on what is known as the “efficiency gap,” which seeks to calculate how many votes for a given party are “wasted” because its voters are “packed” into certain safe districts or “cracked,” that is, placed into districts where they can’t muster enough support for their candidate to win.

The plaintiffs argued the Wisconsin legislative districts were the most extreme gerrymanders in the past 40 years, with 13 percent of votes wasted in 2012 and 10 percent wasted in 2014. Based on an analysis of 786 legislative elections across the country, they argued a gap of more than 7 percent should be deemed unconstitutional.

In 2012, Republicans won 60 of 99 Assembly seats with 48.6 percent of the two-party statewide vote for Assembly candidates, and in 2014, Republicans won 63 Assembly seats with 52 percent of the statewide vote.

Liberal justices

side with ruling

The plaintiffs presented an alternative map that would have resulted in a legislative composition more aligned with the statewide outcome. However, one detail the court highlighted that hurt the plaintiffs’ standing was that Whitford himself lives in a district that votes 82 percent for Democrats, and under the alternative map he would still live in an 82 percent Democratic district.

“That means Wisconsin’s plan could not have diluted Whitford’s own vote,” liberal justices Elena Kagan, Stephen Breyer, Ruth Bader Ginsberg and Sonia Sotomayor wrote in a concurring opinion. “So whatever other claims he might have, Whitford is not ‘among the injured’ in a vote dilution challenge.”

They suggested other or new plaintiffs, potentially from every district in the state, present evidence that their votes were diluted by the “cracking” or “packing.” They also suggested the Democratic Party of Wisconsin could join the lawsuit and argue the maps discriminate against members’ First Amendment right of association.

DPW chairwoman Martha Laning said the party is focused right now on electing Democrats in November, “but if protecting the rights of voters and restoring fairness to our elections means taking legal action, we are not afraid to take that step.”

The Supreme Court has never thrown out a political map because it is too partisan. Courts have struck down districts as racially biased for decades, but several challenges are mounting based on partisanship.

Similar case pending in North Carolina

The Maryland case, brought by Republicans, is only in its preliminary phase and has not yet had a trial. That will now happen after the Supreme Court’s separate ruling Monday.

Waiting in the wings is a case from North Carolina that seemingly addresses some of the high court’s concerns in Whitford. The lawsuit filed by North Carolina Democrats has plaintiffs in each of the state’s 13 congressional districts. Like Wisconsin, North Carolina is generally closely divided in politics, but Republicans hold a 10-3 edge in congressional seats.

In the Wisconsin case, a lower court concluded that the redistricting plans were drawn to discriminate against Democrats, the Republicans’ advantage would endure even in the face of a strong Democratic showing at the polls and the plans could not be explained by other, nonpartisan reasons.

The state argued the justices should put an end to courts’ consideration of partisanship in redistricting plans and cautioned that far from being manageable, a ruling for the Democratic voters would open the door to a flood of lawsuits that would be based on cherry-picked evidence and hard for judges to manage.

But Kagan, in her concurring opinion, wrote that the issue will only get worse as technology for legislators to carve out their own voters improves.

“The need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms,” Kagan wrote.

“Of one thing we may unfortunately be sure. Courts — and in particular this Court — will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.”

The Associated Press contributed to this report.

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Matthew DeFour covers state government and politics for the Wisconsin State Journal.

Mark Sommerhauser covers state government and politics for the Wisconsin State Journal.