No ruling yet, but U.S. Supreme Court may strike down Wisconsin gerrymander
Anthony Kennedy signaled during oral arguments that he may be leaning towards striking down brutal Wisconsin state assembly gerrymander
AUTHOR’S NOTE: The author of this blog post is NOT a licensed attorney.
The U.S. Supreme Court heard oral arguments yesterday in a case involving the constitutionality of Wisconsin’s brutal Republican gerrymander of state assembly districts. Jessica Mason Pieklo of Rewire News has a very informative piece about the oral arguments, which can be viewed here. I recommend reading Pieklo’s piece in its entirety.
What struck me as interesting is that Pieklo, who is very familiar with how the Supreme Court operates, thinks that, based on conservative-leaning Associate Justice Anthony Kennedy’s questioning during oral arguments, the Wisconsin state assembly gerrymander could be struck down:
(Wisconsin Department of Justice Attorney Misha) Tseytlin did not get much further into his argument before Justice Anthony Kennedy — the likely swing vote in the case — began to pepper him with questions.
After Kennedy asked whether the state’s gerrymandering attempts violated First Amendment guarantees of freedom of association, Justice Stephen Breyer, the Court’s data nerd, wanted to know if there was some easier way to get accurate numbers on how many voters were affected by the gerrymandered maps, noting that redistricting cases are very technical for courts to parse through.
[…]
Oral arguments rarely provide a clear answer as to the outcome of any case, let alone one that has reached all the way to the U.S. Supreme Court. But if I had to guess, I’d say Wisconsin is going to lose here. The attorneys for the state barely disputed the fact that the legislative map chosen by lawmakers was the most partisan map they could create….
(emphasis mine)
Remember, the Wisconsin state government is arguing in favor of the gerrymander, whereas the challengers in the case, a group of Wisconsin voters, are in opposition to the gerrymander.
A ruling in the Wisconsin gerrymandering case is expected sometime in the first half of next year in all likelihood, and, if Kennedy (or, less likely, another conservative justice) sides with all four liberal justices in striking down Wisconsin’s state assembly gerrymander, that would set a very significant precedent in regards to drawing of congressional and state legislative districts, particularly with the 2020 Census just two and a half years away. Usually, when a court strikes down a congressional, state legislative, or other district map for gerrymandering, it is because of racial gerrymandering. The Wisconsin gerrymandering case is about partisan gerrymandering, and, if there are five votes to strike down Wisconsin’s gerrymander on the basis that the map(s) discriminate against voters who vote for Democratic Party candidates, then that would be the first instance that I can think of where the nation’s highest court has ruled that a state cannot excessively gerrymander in favor of one political party or another. To give you a general idea of how brutal Wisconsin’s gerrymander is, Republicans hold a massive 64.64% (64 of 99) majority of the seats in the Wisconsin State Assembly, even though Donald Trump got a 47.22% plurality of the Wisconsin popular vote in the 2016 presidential election, and Wisconsin is a state that, in recent years, has seen very little ticket-splitting.
Another factor at play is that Wisconsin has a provision in its state constitution that requires state assembly districts to be nested entirely within state senate districts (many, but not all, Midwestern states have a nesting rule for state legislative districts; Illinois, Iowa, Ohio, and Minnesota are other states with a nesting rule, whereas Indiana and Michigan do not have a nesting rule). If the state assembly districts in Wisconsin are struck down, then the Supreme Court may strike down the state senate districts as well and force a redraw of both maps, although I’m not completely sure if the federal courts would allow state assembly districts in Wisconsin to be drawn without regards to state senate district boundaries, although I don’t know of a prior instance where a state’s nesting rule was disregarded by federal courts. It’s not immediately clear if the Wisconsin State Legislature, the Supreme Court, or a lower federal court would draw the new maps if Wisconsin’s state legislative maps are struck down by the Supreme Court.
If the state assembly map in Wisconsin is struck down (current map here) and the courts require both the state assembly and state senate maps in Wisconsin to be redrawn, areas where there could be significant changes in regards to state assembly districts include Sheboygan (currently split between two GOP-held districts), Beloit (currently split between two districts, one held by a Democrat and one held by a Republican), the Racine/Kenosha area (there are currently three districts in that part of the state held by Democrats, although it may be possible to draw a fourth district that is winnable for a Democrat), the inner Milwaukee suburbs (there are currently many GOP-held districts there that could be drawn to be less GOP-leaning), the city of Waukesha (currently split between two very Republican districts), the Wausau area (GOP holds a swing district that could be drawn to be more favorable to a Democrat), areas roughly along a line from Eau Claire to Stevens Point (Democrats lost multiple districts in this part of Wisconsin since 2010), and possibly suburban and rural Dane County as well (there’s already many Dem stronghold districts in this part of Wisconsin; it may be possible to squeeze in an additional Democratic-leaning district in this part of Wisconsin). However, if the state senate districts are not changed and the state assembly districts have to be redrawn with the nesting rule in force, any changes to the Assembly districts would be minimal.
Should the Supreme Court side with the challengers in the Wisconsin redistricting case, gerrymanders in other states could face legal challenges. Democratic gerrymanders in states like Illinois and Maryland, as well as Republican gerrymanders in states like Michigan, Pennsylvania, and Ohio could face legal challenges if a precedent against extreme partisan gerrymandering is set in the Wisconsin redistricting case.
There is a lot at stake in the Wisconsin redistricting case, and that’s an understatement.
