The legal challenge that could overturn legislative maps drawn by Wisconsin Republicans in 2011 – set to be argued this month before the U.S. Supreme Court – got its start some four years ago in an unlikely place: the genteel confines of the now-shuttered Watts Tea Shop in Downtown Milwaukee. The late George Watts was a longtime conservative Republican stalwart, but the tea room was a favorite haunt for veteran state Rep. Fred Kessler, a Milwaukee Democrat long known as a canny student of local electoral maps and trends.
And it was to the tea shop Kessler invited a group of Democratic lawyers in the summer of 2013 to dissect what had happened the previous November. Wisconsin voters in 2012 had sent liberal Democrat Tammy Baldwin to the Senate and helped re-elect President Barack Obama to his second term. Yet, paradoxically, they’d also favored Republicans heavily for the state Legislature, turning the already reddish body a deep crimson.
Sachin Chheda, a Democratic political organizer and consultant, was there, along with local lawyer Peter Earle and an old college friend of Kessler’s, retired University of Wisconsin law professor Bill Whitford. The group quickly zeroed in on an astonishing anomaly from 2012: In raw votes for the state Assembly, Democrats won 51 percent. Yet in seats, they won only 39 out of 99, with the rest going to the GOP, which was reaping the benefits of the 2011 redistricting, a process the party’s legislative leaders carried out behind closed doors.
“It was pretty graphic evidence of how distorted this apportionment was,” Whitford says.
Following 2010’s Republican-friendly mid-term election and the decennial census, many states, including Wisconsin, rewrote their congressional and legislative boundaries to favor the right wing. Our state is also one in 37 in which legislatures (and by extension political parties) have final control over the maps, as opposed to special bodies. However, it had been decades since a single party had control of state government during decennial redistricting. In past years, “The result has always been a compromise of sorts,” says Jay Heck of Common Cause Wisconsin, a nonpartisan reform group.
There’s a word for drawing districts that give a lopsided advantage to one political party – gerrymandering – and the Supreme Court ruled more than 50 years ago that it can violate the Constitution by making some votes worth less than others. But justices have fallen short of a consensus on how to measure and limit partisan gerrymandering, and attempts to get them to overturn state maps, whether drawn by Republicans or Democrats, have failed.
Whitford’s subsequent research for the tea room group led him to a law review article by professors Nicholas Stephanopoulos of the University of Chicago and Eric McGhee of the Public Policy Institute of California that proposed a novel way to measure gerrymandering numerically. In short, their method calculates an “efficiency” score based on the number of “wasted” or surplus votes in an election, since gerrymandering relies on “packing” votes together into desirable concentrations and “cracking” apart those that are undesirable, such as left-leaning neighborhoods.
The coalition enlisted Stephanopoulos to help develop the case under the aegis of the Chicago Lawyers’ Committee on Civil Rights, a nonprofit organization, and Whitford became a lead plaintiff, one of a dozen. Last year, the case went before a three-judge panel in federal court and advanced on a vote of 2-1.
The Wisconsin case was a legal breakthrough. “This is the first trial court that actually found unconstitutional gerrymandering of the lines in 30 years,” says Justin Levitt, an associate dean for research at Loyola Law School in Los Angeles, who is submitting a brief that favors the plaintiffs. “The case is super important, not just for Wisconsin. Whatever rules the Supreme Court sets, everyone is going to have to follow.”
The dissenter on the three-judge decision, William Griesbach, argued that while the GOP maps were drawn to favor the party, they followed “all of the principles that have traditionally governed the districting process, such as contiguity, compactness and respect for political subdivisions like counties and cities.” Furthermore, he wrote, the Constitution doesn’t guarantee proportional representation, and the Democrats’ efficiency gap seems to have been generated by the party’s recurring losses of close races: “It should be obvious that winning close elections is not unconstitutional, and yet that is all the efficiency gap shows.”
In June, the U.S. Supreme Court blocked the lower court’s order requiring Wisconsin to draw new maps by Nov. 1, a move some saw as foreshadowing a defeat.
Whitford and others hope the lopsidedness of the current maps will sway the high court. As an experiment, a political scientist not affiliated with the lawsuit programmed a computer to draw 200 alternate redistricting maps as part of an academic paper. “None of them demonstrate anything close to the partisan bias contained in the existing Wisconsin apportionment,” Whitford says. “The bias in the existing plan is no accident.” ◆
Tune in to WUWM’s (FM 89.7) “Lake Effect” October 2 at 10 a.m. to hear more about the story.