Why can’t Wisconsin keep a mask mandate? Gerrymandering

It didn’t have to be this way. Our state Legislature could be doing more to help Wisconsinites, but they aren’t. Why? Because too many legislative districts are drawn so that elected representatives don’t have to be responsive to their constituents.

State government is fighting itself at every turn. The Legislature not only didn’t convene — virtually or otherwise — for months on end in 2020, but spent its time and taxpayer money suing in court to block emergency measures advanced by the Gov. Tony Evers and public health officials.

Recently an NBC story pointed to the root of the Legislature’s bizarre behavior regarding the pandemic: gerrymandered 2011 maps that have entrenched Republican control of the Legislature for a decade, no matter what.  Even when Democrats win all five statewide offices on the ballot, and Democratic candidates for the Assembly win 53% of the popular vote to just 45% for Republican candidates like they did in 2018, Republicans easily retained majorities in the Legislature.

This problem is real. But it goes far beyond a political party holding on to a majority of seats with a minority of statewide votes. The problem with this sort of gerrymander is that it protects those legislators from any real accountability. They don’t have to work for their constituents. (Seriously, who else could not show up to work for hundreds of days and not worry about getting fired?) The only threat to their re-election is a (more extreme) primary challenger from their own party. 

Rick Esenberg, quoted in the NBC article, blames the “political geography” of Wisconsin for the division (saying that because Democrats are concentrated in cities, this is why they can claim fewer seats). That is the same argument rejected in federal court four years ago in a case called Whitford v. Gill. In Whitford, the Legislature attempted to defend the 2011 Assembly district maps, enacted under unified Republican control. They’d been judged the fourth most heavily gerrymandered state legislative districting plan in the United States in the past 40 years.

After a week-long trial, a federal court rejected this “self-sorting of voters” argument. Instead, the three-judge panel (with two Republican appointees) found that the districts had been intentionally drawn into a partisan gerrymander. The maps artificially “packed” Democratic voters into a small number of districts while “cracking” (or diluting) them in the rest of the districts, to yield this particularly high number of Republican seats.

In other words, the court rejected the explanation Esenberg advanced, as well as any other legitimate reason for the Legislature to have drawn the districts to entrench Republican control of the Assembly. While the U.S. Supreme Court later halted the case because it found that a legal requirement called “standing” had not been proved at trial, the Court did not rule or comment on the partisan gerrymander findings made by the three-judge panel. The Supreme Court’s announcement in another case a year later that federal courts cannot provide relief for partisan gerrymanders similarly did not contradict the finding of this fact about Wisconsin’s Assembly districts and the gerrymander.

Esenberg also now asserts that there is no way to tell if the Efficiency Gap — a mathematical technique used to measure how much district maps advantage one party over others — is too high.

Wrong again. This contradicts what the federal court announced in Whitford v. Gill, where it noted a “historically” high pro-Republican Efficiency Gap: so high it would entrench a Republican majority throughout the decade-long life of those maps regardless of shifts in swing-voter preference. (You can see how Wisconsin’s Efficiency Gap, as well as other measures of partisan symmetry, stacks up against other states here.) 

The vast majority of state legislative seats are “safe” under these maps because of this historically extreme gerrymander, which endures to the present. Unless and until districts are reconfigured to eliminate this baked-in advantage, Republicans face nearly no chance of losing to Democratic opponents in the majority of districts because the numbers, very intentionally, prevent it.

When there is nothing to fear but a primary challenge, it’s easy to see why Republican legislators can get away with refusing to work with a Democratic governor, even during a literal emergency. There is nothing to be gained from getting the hard work of governing done. Any hint of bipartisanship makes an elected official a potential target for a more extreme primary challenger who would pledge to “never compromise.” David Daley’s colorfully-titled 2016 book on gerrymandering covered this dynamic at the national level, citing the rise of extreme-right Republican Members of Congress, but Wisconsin shows the true depth of the effects. Republican legislators in artificially safe seats see only danger in cooperation with the governor. 

You can observe a rare counter-example from the recent Senate vote to repeal Evers’ statewide mask order. Sen. Dale Kooyenga (R-Brookfield) was one of only two Republican senators to vote against repealing the governor’s public health directive. Kooyenga is up for re-election in 2022 and holds one of the few seats arguably close enough to face a serious challenge from a Democrat. (He won his 2018 election by just over 2,000 votes). It would appear that this competitiveness was enough to cause him to break with party lines, knowing he has to win over at least some swing voters in the next election. Voters who care more about easing the pandemic than partisan purity.

When thinking about gerrymandering and redistricting, let’s not lose sight of these consequences. Over 24,000 people have been hospitalized in our state, and we’ve lost almost 6,000 of our neighbors to this disease. A less-partisan state government wouldn’t have stopped Covid-19, but it could have slowed the spread and lessened that toll.

This article is adapted by the author from a post on LawForward.org