Here & Now

Burden Breaks Down Redistricting Ruling

Frederica Freyberg:
In a major ruling of high import to Wisconsin, the U.S. Supreme Court ruled Thursday that federal courts have no business interfering in cases of partisan gerrymandering. In the 5-4 ruling, the court delivered the decision involving redistricting cases in North Carolina and Maryland. Chief Justice John Roberts delivered the majority opinion saying, “Excessive partisanship and districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary.” Justice Elena Kagan wrote the dissenting opinion saying, “For the first time ever this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. In doing so,” she says, “the partisan gerrymanders here debased and dishonored our democracy.” Joining us to talk about what this means for Wisconsin’s own partisan gerrymandering case before the court is UW-Madison Political Science Professor and Director of the Elections Research Center, Barry Burden. Thanks very much for being here.

Barry Burden:
Thanks for having me.

Frederica Freyberg:
So what is your reaction to the high court ruling?

Barry Burden:
Well, this is a strong majority opinion. It’s very clear about what the court thinks. They see no place at all for disputes over partisanship when it comes to drawing districts in the federal courts ever again. They don’t want to see these cases. They’re not willing to entertain the arguments that were made about violations of First Amendment or 14th Amendment rights. They’re not willing to consider the evidence. They say this is not for us. This is a political question, not a legal question, and one that the parties and states will have to resolve on their own.

Frederica Freyberg:
What do you think of that?

Barry Burden:
I disagree. I had actually submitted an amicus brief to the court along with a bunch of other political scientists arguing that in fact there were pretty clear constitutional violations here. There are clear standards that could be used. In fact, that have been used in other federal and state courts over the past several years, striking down maps. That the kind of gerrymanders we see today are more insidious and more durable than the kinds I think that the justices may have had in mind from the 70s and 80s, when a lot of this early litigation happened and that some action needed to be taken to stop it.

Frederica Freyberg:
What does the Supreme Court ruling mean for Wisconsin’s case against the Republican-drawn maps?

Barry Burden:
I think the case here is now dead. This has been a long saga that has gone on for almost a decade. We’re just about to the trial which was scheduled for next month. It sounds to me as though the attorneys and the plaintiffs are asking that it be called off and I think that’s the message from the Supreme Court. This is not a case that they would consider viable.

Frederica Freyberg:
Is there any sense that this might have turned out differently had Wisconsin’s case not lacked standing before the Supreme Court last year and proceeded while Justice Kennedy was still seated?

Barry Burden:
Yes, with nine justices, one seat matters a lot. And we’ve switched from Kennedy to Kavanaugh over the course of the past year. The Wisconsin case was written with Kennedy in mind. He had been the deciding vote in a lot of these cases over the years. He had written the majority opinion or the deciding opinion in many of these cases, including the last big one that came to the court back in 2004. He was asking for things that the plaintiffs thought they were providing. But in the end, Kennedy didn’t bite and that was the end of his career on the court.

Frederica Freyberg:
Democrats point to the fact that Wisconsin voters elected Tony Evers and Josh Kaul, for example, in statewide races but the Legislature remains locked in a Republican majority. Is that a prime example of the election outcomes of Wisconsin’s maps?

Barry Burden:
I think so. In fact, Democrats won all five statewide races in 2018. I think that was the first time that had been done in 30 years. But their success stopped as soon as it came to the state legislature, particularly in the Assembly where I think Republicans now hold about two thirds of the seats, Democrats hold about one-third. Just doesn’t reflect what seemed to be the preferences of voters as expressed in the 2018 elections.

Frederica Freyberg:
And yet isn’t it true that had the Democrats had the full trifecta majority, they would have done the same thing?

Barry Burden:
I think so. Republicans are better at it, and they were more organized, especially after the 2010 elections. They were really organized across the country in providing consultants and a plan to take advantage of the wins they had that year. But it’s true, Democrats when they’re in power will try to take advantage as well. In fact one of the cases that was part of the Supreme Court decision yesterday was out of Maryland where Democrats had taken advantage and pushed the last remaining Republican incumbent in Congress from that state. I think Republicans just had more opportunities and are often better organized to take advantage.

Frederica Freyberg:
How will split control of Wisconsin government affect the next round of redistricting with Democrat Evers as governor?

Barry Burden:
This is actually an old pattern in Wisconsin, before the 2010 census and that redistricting, the past several decades before that were all divided government. So we’re familiar with that. Those were all stalemates. They ended up in the courts. This one will be more of a stalemate because the parties I think are more adversarial today than they were in those earlier decades. What has also changed is that the courts are now more partisan and ideological than they had been so I think everyone is looking ahead to see who’s on the bench, either the state Supreme Court or federal courts that might end up deciding what the districts look like.

Frederica Freyberg:
Is there any “what’s next” in terms of challenging Wisconsin’s maps?

Barry Burden:
There’s not much left. Any alternatives were really laid out by the majority in the court yesterday. The alternatives are for voters to put the issue on the ballot and try to create an alternative system like a commission. That was done in Michigan and some other states last year. It’s not possible in Wisconsin under our laws. Another possibility is the state Legislature would reform the system itself. My understanding is legislative leaders are not interested in doing that. Third option would be to work through state courts and that was actually what happened in Pennsylvania where the state Supreme Court struck down the maps. I think we’re probably at a dead end there, at least for this decade. Maybe after the new maps, there will be more litigation, but that’s sort of where things stand today.

Frederica Freyberg:
All right, Barry Burden, thanks very much.

Barry Burden:
Thanks for having me.