Here & Now

Judges Rule Republican Redistricting Map Unconstitutional

SOME OF THE WORDS USED TO DESCRIBE THIS WEEK’S FEDERAL COURT RULING FINDING WISCONSIN’S ELECTION MAPS UNCONSTITUTIONAL INCLUDE HUGE, UNPRECEDENTED, SURPRISING. A PANEL OF THREE FEDERAL JUDGES DECIDED 2-1 THAT THE 2011 MAPS DRAWN BY REPUBLICAN LEGISLATORS IS UNCONSTITUTIONAL WRITING, QUOTE, WE FIND THAT ACT 43 WAS INTENDED TO BURDEN THE REPRESENTATIONAL RIGHTS OF DEMOCRATIC VOTERS THROUGHOUT THE DECENNIAL PERIOD BY IMPEDING THEIR ABILITY TO TRANSLATE THEIR VOTES INTO LEGISLATIVE SEATS. MOREOVER AS DEMONSTRATED BY THE RESULTS OF THE 2012 AND 2014 ELECTIONS AMONG OTHER EVIDENCE, WE CONCLUDE THAT ACT 43 HAS HAD ITS INTENDED EFFECT. FURTHER GOING ON TO SAY THE REDISTRICTING CONSTITUTES AN UNCONSTITUTIONAL POLITICAL GERRYMANDER. SO WHAT’S NEXT? WE’RE JOINED BY WISCONSIN PUBLIC RADIO REPORTER SHAWN JOHNSON WHO HAS BEEN COVERING THIS CASE. SHAWN, THANKS FOR BEING HERE.

SHAWN JOHNSON:

THANKS FOR HAVING ME.

FREDERICA FREYBERG:

THIS IS BIG BECAUSE THIS IS THE FIRST TIME FEDERAL JUDGES HAVE STRUCK DOWN A STATE’S MAPS AND IT GOES DIRECTLY TO THE U. S. SUPREME COURT ON APPEAL WHICH WISCONSIN’S ATTORNEY GENERAL BRAD SCHIMEL HAS VOWED TO TAKE ON. BUT WHAT ARE THE NATIONAL IMPLICATIONS ON THIS RULING ON WISCONSIN’S MAP?

SHAWN JOHNSON:

IT IS BIG BECAUSE OF THE TYPE OF CASE THAT IT IS. IT’S THE FIRST TIME THAT A MAP HAS BEEN STRUCK DOWN ON THE PARTISAN GERRYMANDERING CLAIM. USUALLY MAPS ARE STRUCK DOWN ON A VARIETY OF OTHER CLAIMS. MAYBE THE VIOLATION OF THE VOTING RIGHTS ACT FOR THE WAY THEY TREAT MINORITY VOTERS. MAYBE TALKING ABOUT HOW THE MAP IS NOT COMPACT ENOUGH OR BREAKS UP COMMUNITIES OF INTEREST. THIS CHALLENGE SAYS WISCONSIN’S MAP WAS SO BLATANTLY PARTISAN THAT IT WOULD EFFECTIVELY SILENCE DEMOCRATS FOR THE NEXT DECADE. AND SO IF THAT HOLDS AT THE SUPREME COURT LEVEL THAT’S SEISMIC. THAT’S HUGE. IF NOT, THEN IT’S JUST ONE FOOTNOTE IN MANY COURT CASES TO COME.

FREDERICA FREYBERG:

IT’S SEISMIC, IT’S HUGE BECAUSE THEN OTHER STATES START CHALLENGING ON SIMILAR BASES.

SHAWN JOHNSON:

EXACTLY. IN WISCONSIN’S CASE IT WOULD REQUIRE NEW DISTRICT LINES DRAWN. THE COURT HASN’T GOT INTO THAT YET EXACTLY WHAT THAT WOULD LOOK LIKE OR, YOU KNOW, WHAT STANDARDS WOULD HAVE TO BE APPLIED WHEN DRAWING THOSE LINES. BUT YOU KNOW THAT THEY WOULD HAVE TO DRAW MORE COMPETITIVE DISTRICT LINES IN WISCONSIN. TRANSLATION, THEY’D HAVE TO GIVE DEMOCRATS MORE OF A CHANCE TO WIN IN THIS STATE. BUT APPLIED IN OTHER STATES WHERE, SAY, DEMOCRATS DREW THE LINES, YOU COULD SEE A DIFFERENT OUTCOME. YOU COULD SEE MORE COMPETITIVE DISTRICT LINES BEING DRAWN AND CHALLENGES BEING FILED IN FEDERAL COURT USING THE STANDARDS THAT WERE DEVELOPED IN THIS CASE.

FREDERICA FREYBERG:

WE’LL GET TO THAT IN A MOMENT. IMPLICATIONS IN WISCONSIN INCLUDE A SHOT IN THE ARM FOR DEMOCRATIC PLAINTIFFS AND LEGISLATORS WHO ONCE AGAIN LOST BIG IN THE LATEST ELECTION. HERE’S A COMMENT FROM ASSEMBLY MINORITY LEADER PETER BARCA, QUOTE, THIS IS AN HISTORY VICTORY FOR VOTERS AND A FURTHER ADMONISHMENT OF THE EXTREMELY SLANTED MAPS THAT TRAMPLE THE DEMOCRATIC WILL OF THE PEOPLE OF WISCONSIN. BUT FOR HIS PART REPUBLICAN ASSEMBLY SPEAKER ROBIN VOS SAYS THIS ABOUT THE RULING, QUOTE, REPUBLICANS WIN ELECTIONS BECAUSE WE HAVE BETTER CANDIDATES AND A BETTER MESSAGE THAT CONTINUES TO RESONATE WITH VOTERS. THE COURT HAS ESSENTIALLY CREATED A BRAND-NEW TEST THAT IS SIGNIFICANTLY FLAWED AND IS AN ENCROACHMENT BY THE COURT INTO THE LEGISLATURE’S DUTIES. SO AS FOR THAT BRAND-NEW TEST THAT SPEAKER VOS TALKS ABOUT, IT’S ESSENTIALLY A MEASURE THE PLAINTIFF’S EXPERTS USED TO SHOW PARTISAN GERRYMANDER. IN A PREVIOUS CASE A SUPREME COURT JUSTICE ANTHONY KENNEDY SAID HE WAS LOOKING FOR SOME KIND OF MEASUREMENT, RIGHT? YOU’VE TALKED WITH US ABOUT THIS BEFORE. HOW WAS THE MAP AND ITS EFFECTS MEASURED HERE IN THIS CASE?

SHAWN JOHNSON:

I MEAN, I THINK IT’S WIDELY ACKNOWLEDGED THAT PARTISANSHIP PLAYS A ROLE IN LEGISLATIVE RESTRICTING, PROBABLY ALWAYS HAS. WHAT JUSTIN ANTHONY KENNEDY SAID IN 2004 WAS HE HINTED AT THIS IDEA THAT IF YOU CAN GIVE ME SOME WAY TO MEASURE THIS, TO SHOW THAT IT’S HAPPENING AND A CONCRETE MEASURE, MAYBE WE CAN TALK ABOUT THIS BASICALLY. KENNEDY’S STILL ON THE COURT AND SO WHAT THEY’VE COME UP WITH IN THIS CASE IS SOMETHING CALLED THE EFFICIENCY GAP. BASICALLY WHAT THE EFFICIENCY GAP DOES IS IT LOOKS AT WASTED VOTES IS THE TERM THAT THEY USE. SO JUST TO GIVE YOU AN EXAMPLE, IF YOU HAVE A STRONGLY DEMOCRATIC LEGISLATIVE DISTRICT WHERE MAYBE THE DEMOCRATIC CANDIDATE GETS 90% OF THE VOTE, THEY’RE WASTING A LOT OF VOTES THERE. THEY’RE GETTING MORE VOTES THAN THEY NEED TO GET THAT SEAT. ANOTHER EXAMPLE WOULD BE IF YOU HAVE A MORE CLOSELY CONTESTED RACE WHERE SAY THE REPUBLICAN CANDIDATE GETS 60% OF THE VOTE, THE DEMOCRAT GETS 40% OF THE VOTE. IN THAT SITUATION THE DEMOCRAT IS WASTING 40% OF THE VOTE BECAUSE THEY DIDN’T GET THE SEAT. REPUBLICANS WASTED VERY FEW VOTES TO WIN THE SEAT. YOU COMPARE THE NUMBERS DISTRICT BY DISTRICT TO THE OVERALL VOTE TOTAL STATEWIDE AND THAT GIVES YOU THE NUMBER. AND ESSENTIALLY WHAT IT’S MEASURING IS THE FACT THAT WISCONSIN IS ROUGHLY A 50/50 STATE. IT WAS IN THIS PRESIDENTIAL ELECTION AND U. S. SENATE ELECTION. BUT WHEN YOU COMPARE THAT TO THE LEGISLATURE, REPUBLICANS UNDER THIS MAP HAVE ALMOST 2/3 OF THE SEATS.

FREDERICA FREYBERG:

TWO OF THE THREE JUDGES ON THIS PANEL APPARENTLY UNDERSTOOD THAT MEASUREMENT AND VOTED THAT THESE MAPS ARE UNCONSTITUTIONAL. BUT MEANWHILE DID THEY GIVE ANY INSTRUCTION AS TO POTENTIAL REMEDY?

SHAWN JOHNSON:

YEAH, THAT’S WHY WE DON’T KNOW WHAT THIS MEANS FOR WISCONSIN IN THE SHORT TERM BECAUSE THEY ARE GOING TO BE BRIEFED ON THAT. BOTH SIDES ARE GOING TO GET A CHANCE TO WEIGH IN BEFORE THE COURT ON WHAT THAT REMEDY SHOULD LOOK LIKE, WHETHER THE COURT SHOULD STEP IN AND DRAW LINES OF ITS OWN, SINCE THIS LEGISLATURE WAS ELECTED UNDER THOSE DISTRICT LINES, DO YOU WANT THEM THEN DRAWING NEW DISTRICT LINES FOR THEMSELVES? OR WOULD THE COURT SAY HERE ARE THE NEW STANDARDS YOU HAVE TO FOLLOW, LEGISLATURE, YOU DRAW UP MAPS THAT ADHERE TO THOSE.

FREDERICA FREYBERG:

A LITTLE MESSY. SHAWN JOHNSON, THANKS VERY MUCH.

SHAWN JOHNSON:

YOU’RE WELCOME.