An end-around the governor? A recall of state Supreme Court justices? Primary challenges?
How far will the parties go to defend, or break, Wisconsin’s gerrymandered districts?
BY PETER CAMERON, THE BADGER PROJECT
The veto is intact.
Now that the election is over, it’s time to move on to the next political fight in Wisconsin. The results from that will last longer than a Joe Biden presidency.
Like every state in the union, Wisconsin must redraw its political districts. Many experts consider the Dairy State’s to be among the most gerrymandered in the nation.
Post-election in Wisconsin, nothing much changed in regards to the state legislature, which draws the maps.
Republicans held onto both houses, but failed to win the 2/3 supermajorities that would have allowed them to override the veto of Gov. Tony Evers, a Democrat.
That means Evers can block any maps the Republican-controlled legislature produces next year.
Then who will draw the district lines?
“Probably the federal court,” said James Simmons, a political science professor at UW-Oshkosh. “But who knows these days.”
Liberals fear the conservative-leaning Wisconsin Supreme Court will break precedent and allow the legislature to circumvent the governor.
In that event, one prominent opponent of gerrymandering in Wisconsin has reluctantly threatened a recall of state Supreme Court justices. Another in the state floated the possibility of primary challenges to state legislators who fail to support a nonpartisan redistricting process.
Every ten years, after the U.S. Census is completed, states must redraw their district maps for U.S. Congress and both houses of their state legislature for the coming decade.
In its history, the state government in Wisconsin has rarely been under full control of one party, as it was in 2011. That has led to frequent partisan squabbles. Wisconsin also is unusual compared to other states in that the governor must approve the maps drawn by the legislature. So when the legislature couldn’t agree on district maps, or the governor vetoed them, the courts had to step in. In recent decades, the federal court has been the one to do it, said Ed Miller, a political science professor emeritus at UW-Stevens Point.
After this situation repeated itself for several decades, the Wisconsin Supreme Court considered — before redistricting in 2001 — enacting a method for drawing the maps when state government deadlocked, said Miller, who was involved with the process.
The plan would have been to randomly-select state appeals court judges to draw the maps, Miller said, but ultimately, the Wisconsin Supreme Court pulled out and the effort stalled.
So redistricting was again left up to the federal courts, which produced fairly competitive maps. Both houses in the state legislature swung back and forth between the two parties from 2001 to 2011.
For that whole decade, Spencer Black, a Democratic state representative from Madison, repeatedly begged his colleagues to launch a nonpartisan redistricting commission modeled after the one in Iowa.
Republicans scoffed, but they weren’t the only ones.
In 2009, when they had full control of state government, “Democrats had a chance too, and they didn’t do it either,” Black said.
From the perspective of liberals, that was a critical error. The election of 2010, a Tea Party-fueled red wave, saw Republicans swamp Democrats all over the country, including in Wisconsin.
With full control of state government, Republicans hired a Madison law firm to draw hyper efficient maps, and required anyone looking at the new lines to sign a secrecy agreement, Miller said.
The results have been near perfect for Republicans. For much of the past decade, the Wisconsin GOP has won more than half the seats in the legislature, often much more, while winning much lower percentages of the vote. Sometimes less than half. Also, the 7th Congressional District, which Democrat Dave Obey held for more than 40 years, is now a safe red seat after redistricting tossed the bluer areas like Stevens Point and Wisconsin Rapids into the left-leaning 3rd Congressional District to the west.
Democrats have won all the statewide elections in the last two elections — including governor, attorney general, U.S. senator, and now president — but have failed to make any significant gains in the legislature or for U.S. Congressional seats.
In June, Scott Jensen, a former Republican Speaker of the Assembly, along with the conservative Wisconsin Institute for Law and Liberty, asked the Wisconsin Supreme Court to “redeem that promise” to create a procedure for redistricting.
Because the Wisconsin Supreme Court has a small 4-3 conservative majority, many suspect Republicans could get a more favorable outcome there, as opposed to federal court. However, right-leaning Justice Brian Hagedorn has been more independent than may predicted, considering he was Gov. Scott Walker’s chief legal counsel for five years. Hagedorn has already sided with the liberal block on several big cases this year. His swing vote could be the difference in a redistricting decision.
Dale Schultz, a former Republican state senator and majority leader, told The Badger Project he and Tim Cullen, a former Democratic state senator and majority leader, would be filing a brief reminding the court of its previous decision to allow the federal court to draw the map. Schultz and Cullen have teamed up to be vocal proponents of nonpartisan redistricting. Schultz noted Chief Justice Patience Roggensack, a right-leaning judge, sat on the court back in 2000 when it decided to allow the federal court to handle the maps. Justice Ann Walsh Bradley, a left-leaning judge, also was on the court then.
“I would like to believe that these people are impartial and they are above partisan politics,” Schultz said of the Wisconsin Supreme Court.
At the same time, Evers has launched The People’s Maps Commission, a nine-member group representing each of the state’s eight congressional districts. Evers chose three retired judges to select the commission, which excludes lawmakers and lobbyists and will draw an alternative set of maps to those done by the legislature. Outgoing Republican state Senate Majority Leader Scott Fitzgerald, who was elected to Congress, has called the commission “unconstitutional,” and Republican Assembly Speaker Robin Vos has called the commission “phony,” but the group doesn’t actually have any power to enact its maps. Evers has said he hopes the legislature adopts the maps, which most think is unlikely.
In 2017, at a cocktail party of state legislative leaders, Vos reportedly cursed at former Ohio Gov. John Kasich, a prominent Republican and former presidential candidate, for supporting nonpartisan redistricting, and accused Kasich of betraying his party. In a follow-up report, Vos confirmed the confrontation, but quibbled with the details.
After this most recent election, 55 of the Wisconsin’s 72 counties have passed resolutions and/or referendums — essentially a message to the legislature — in support of nonpartisan redistricting, said Matt Rothschild, executive director of the Wisconsin Democracy Campaign, a Madison-based good-government organization. A Marquette Law School Poll from 2019 found that more than 70% of respondents said they prefer a nonpartisan commission do the redistricting.
A bill sitting in the state legislature would enact an Iowa-style nonpartisan redistricting commission. It has been backed by all legislative Democrats and a handful of Republicans, but so far has gone nowhere.
While some states have stiff-armed their state legislatures and enacted nonpartisan redistricting commissions by offering the option directly to voters on election day, Wisconsin does not allow ballot initiatives.
Should the Wisconsin Supreme Court let state Republicans break decades of precedent and ignore the governor’s veto, proponents for nonpartisan redistricting have some ideas on what to do next.
In that case, Black says Democrats would be left with no choice but to consider recalling Supreme Court justices.
“I generally don’t like the idea of recalling judges because you don’t like their position. I think that’s a bad precedent,” Black said. “But if the Supreme Court acts more like partisan hacks rather than justices and basically denies voters of the state a chance to decide who should run the legislature, then I think you have to look at that.”
If the Supreme Court takes that “extreme step,” recalling would be the only possible remedy voters have, he noted.
“I would hope it wouldn’t come to that,” Black said. “But it has to be out there.”
And Schulz said any legislators resistant to nonpartisan redistricting may face new and different electoral challenges in coming elections.
“I think that you’re very likely going to see an evolution of how people go at this,” he said. “Either through primaries within parties or primaries generated across party lines.”
The Badger Project is a nonpartisan, reader-supported journalism nonprofit that focuses on Wisconsin government and politics.
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