Here & Now

Defining 'Fairness' in Wisconsin's Redistricting Process

Frederica Freyberg:

Now to state politics. The fight over voting maps yet to be drawn in Wisconsin ratcheted up this week. On a conservative majority vote, the state Supreme Court agreed to consider a lawsuit from conservatives rather than having it start in lower courts. Just a day earlier, a federal court set a January trial date for two redistricting lawsuits brought by Democrats who want federal courts to step in sooner rather than later as the Republican Legislature and Democratic Governor Tony Evers are unlikely to reach agreement on a redraw. We’ll hear more about the court-side wrangling, but first senior political reporter Zac Schultz sets the table with the question, “What is a fair map?”

Tony Evers:

I believe and Wisconsinites do too that people should get to choose their elected officials, not the other way around.

Zac Schultz:

In January of 2020 Governor Tony Evers issued an executive order creating the People’s Maps Commission. Their task was to draw fair, impartial maps that would be used in state elections for the next decade.

Annemarie McClellan:

It’s been a long process.

Zac Schultz:

When Annemarie McClellan volunteered to serve as a commissioner, she wasn’t expecting the COVID-19 pandemic to delay the census and stretch their process out to the end of 2021.

Annemarie McClellan:

A lot of us felt that, you know, by end of April, early May we would be done and we could get on with our lives. But that’s not the case. We’ve gone this far. We have to see it out to its end.

Zac Schultz:

The census data is here. The commission took virtual and written testimony from thousands of citizens and experts. And people across the state are using online software to create their own maps and propose them to both the Legislature and the Maps Commission. But still, no one can answer the defining question surrounding redistricting: “What makes a map fair?”

Annemarie McClellan:

When people think of fairness, for the public it’s like does this represent the greater will of the mass of the public?

Joe Handrick:

Fair is in the eye of the beholder.

Zac Schultz:

Joe Handrick is a former Republican Assembly representative, but he’s best known for his work on redistricting for Republicans over the past few decades. He says the law demands that districts be contiguous, have close to equal population, try to keep communities together and follow the federal Voting Rights Act when it comes to minority representation.

Joe Handrick:

There’s other people who define fair maps as what’s the political outcome? Are the Democrats or the Republicans getting enough seats? But that’s not defined or expected anywhere in the statutes or in the Constitution.

Jordan Ellenberg:

The very word “fair” there’s some question of philosophy and some question of ethics and some question of law.

Zac Schultz:

Jordan Ellenberg is a professor of math at the University of Wisconsin. He says when it comes to what is a fair map, we might be asking the wrong question.

Jordan Ellenberg:

There is not really a good answer to what is fair. So then you may say, “Well, what are we even doing? Why am I here talking about it?” Because there is a good answer to what is unfair. That’s a different question.

Zac Schultz:

Ellenberg says the best example of unfair maps are the current Wisconsin maps for Congress, state Senate and Assembly, drawn by Republicans a decade ago.

Jordan Ellenberg:

I think in my professional opinion the current map we have is one of those where it’s very clear by any metric you would use that that map has been cooked to the benefit of one party.

Zac Schultz:

If the maps were cooked, Joe Handrick was one of the chefs. In 2011, Handrick worked for the private law firm Republicans hired to draw the current maps. But Handrick says that wasn’t a gerrymander.

Joe Handrick:

Did we create a map that created the Republican majorities? No. The geography of Wisconsin and the concentration of Democratic voters creates the Republican majority.

Zac Schultz:

This point where Joe Handrick and Jordan Ellenberg agree. In a statewide election, Wisconsin is evenly divided between Republicans and Democrats. Ellenberg says he can create thousands of computer-generated maps to test what the average number of wins should be for each party in the Assembly.

Jordan Ellenberg:

Under those conditions of exact even split of voters, how many Republicans would there be in the state Assembly? Spoiler alert, I’m going to tell you the answer. Probably about 55.

Zac Schultz:

A lot of Democrats are concentrated in the cities, so while they can rack up votes in Assembly races, Republicans get their majority in districts crafted to give them 60% of the vote. Ellenberg says the range of wins for Republicans should be in the mid-50s, not the 61 seats they currently hold.

Jordan Ellenberg:

There’s not a single answer, but there is like a reasonable range, and, you know, 62, 63 is not in that range. It’s like way out there. That basically like never happens unless you build in a big advantage.

Zac Schultz:

Handrick says credit should go to quality Republican candidates, not just the map.

Joe Handrick:

Then you have to remember Republicans have won a couple seats that actually are Democratic seats on top of that. So that’s 57, 58. The map probably accounts for the difference between that and the 60 or 61 seats they’re at.

Zac Schultz:

Annemarie McClellan says the number one priority for the People’s Map Commission isn’t which party wins, but keeping communities of interest intact. Unfortunately, just like fair maps, there isn’t one definition for a community of interest. Often it’s interpreted to mean keeping counties, cities and villages in the same district.

Annemarie McClellan:

It might be school districts. That’s one thing that we heard a lot of people say that I want to keep it intact, because sometimes school districts cross municipalities or they even cross county lines.

Zac Schultz:

McClellan says the commission won’t ignore the partisan outcome for whichever map they choose since so many people consider that the ultimate test of fairness.

Annemarie McClellan:

And last of all, measures of partisan fairness, everything else being equal, if one map shows that it’s more fair partisan-wise, we would go with that.

Zac Schultz:

Handrick says any map produced by the commission should be viewed as a Democratic map.

Joe Handrick:

It’s not a nonpartisan commission. It’s not a bipartisan commission. It’s a partisan commission to advance the interest of Democrats. There is nothing wrong with that, but I wish they could just call it that.

Zac Schultz:

Ellenberg says any map produced by the commission should be looked at through the same critical lens you would use on a map created by Republicans in the Legislature. But he says the way each group went about creating their maps should be judged as well.

Jordan Ellenberg:

Their outcome, of course, has to be judged by the same standards you would judge any outcome, but the process is much better.

Frederica Freyberg:

What does it mean that the state Supreme Court took the redistricting lawsuit over lower courts? And where does that leave federal court action? Zac Schultz joins us now from the state Capitol with more. Hey, Zac.

Zac Schultz:

Hello, Fred.

Frederica Freyberg:

So the conservative majority on the state Supreme Court voted to take the case with liberal justices dissenting. What’s the implication of this case going to the high court?

Zac Schultz:

The first implication is they’re skipping the lower levels of the court. Usually when you go to a local court first, that sets the record. There’s a trial that brings in all the evidence that determines everything that happens after that. Then there would be an appellate level. All of that will be gone so it will be up to the Supreme Court justices in probably just a couple hours of oral arguments to gather all the facts they need in order to rule on whether they’re going to draw these maps. That’s a big question.

Frederica Freyberg:

Isn’t also the implication that it’s a friendly court?

Zac Schultz:

Well, Republicans certainly hope so. They think their 4-3 conservative majority with Justice Hagedorn straddling the middle, sometimes siding with the liberals, sometimes the conservatives. In this case he ruled with the conservatives to bring this case to the court in the first place.

Frederica Freyberg:

Meanwhile what’s happening right now with the federal lawsuit?

Zac Schultz:

Well, that’s ongoing as well and that’s the ball court where Democrats want to play. They think they’re going to get a better outcome with the feds. That’s who’s drawn the maps the last few times that it wasn’t drawn by Republicans. So they’re hoping that trial goes forward. The three panel judges have already set a trial date for January saying they want to move this along. In part, their decision to set that trial said we haven’t heard much from the state and whether the state will actually have this argument done in their courts and that’s what prompted the state Supreme Court to step in and say, “Oh wait, we can move forward as well.” So you might have two playing out at the same time. The federal court might get put on hold while the state Supreme Court takes their first swing at it. It’s unclear at this point.

Frederica Freyberg:

Meanwhile, the Republicans have now asked the U.S. Supreme Court to throw out the federal court work on this in Wisconsin.

Zac Schultz:

That’s right. They absolutely — Republicans want to see this done in the Wisconsin Supreme Court. They don’t want any federal action at all. They’re hoping the U.S. Supreme Court will dismiss that case entirely so the only case that remains is with the Wisconsin Supreme Court forcing them to be the ones to decide or draw the maps themselves.

Frederica Freyberg:

Certainly playing hardball here. The underlying idea is that everyone knows that the Republican-controlled Legislature is not going to draw new maps that Governor Evers would approve. I don’t think that’s putting it too bluntly. But now Republicans expect to pass a resolution Tuesday to keep the maps pretty much as is. What’s the reaction to this?

Zac Schultz:

Well, the idea is that they already have maps that they enjoy. This last decade have shown us they win and they win big majorities with the maps that are in place. Democrats say that’s because they’re gerrymandered. Republicans say it’s because that’s the way the geography lays out. So only slight adjustments needed for population will likely give Republicans majorities for the next decade. So they to want play off the base maps they wrote ten years ago, only making adjustments where absolutely necessary. Democrats of course would like to see much larger adjustments and the idea of partisan fairness to hopefully even out the score so that even in a wave year maybe Democrats could come closer to winning a majority in either one of the chambers.

Frederica Freyberg:

Is there some precedent for this? Ok, we’ve had these maps for ten years. We don’t really need to change them much. Is this something people who are going through redistricting do?

Zac Schultz:

Absolutely. It’s one of the arguments. But the whole thing about maps is that there really aren’t too many hard-set limits in law. You can make the argument that you should only make minor adjustments. But ten years ago Republicans completely redrew the map. They swung people around the state every which way in order to create the maps that gave them a majority. Ten years ago, they were absolutely fine with it. Today they’re not. So Democrats will say that’s hypocrisy. Republicans will say we just want to be consistent going forward.

Frederica Freyberg:

We will watch how all this works out but meanwhile this is certainly on the fast track. You’ve reported on local municipal voting boundary maps. Where does all of this leave those and what’s happening there?

Zac Schultz:

Well, the counties, villages, cities, they’re in the middle of their local ward and supervisory redistricting process. That’s separate from what the state Assembly and congressional maps are. They’re right in the middle of it. I know a lot of the counties have just finished up their versions. They’re sending them on to the local districts to draw their wards to fit within. It’s unclear if those maps, which may not be done until the end of November, will be incorporated into the larger arguments at either the federal or state Supreme Court, or if they’ll have to adjust the local maps later on down the line once we have the maps set for Congress and the state Legislature.

Frederica Freyberg:

I know as you reported in your story just a few minutes ago, these local boundaries are really important to people, including things like school districts?

Zac Schultz:

Absolutely. There’s a wide definition of what is a community of interest. Watershed, school districts, county lines, city lines. It’s really wide open, Fred.

Frederica Freyberg:

All right. Zac Schultz, thanks very much for your work on this.

Zac Schultz:

Thank you.