Taking a swing at gerrymandering again, Republicans give themselves a black eye

On Friday, lawyers for the Republican-controlled Wisconsin Legislature asked the U.S. Supreme Court to block a federal lawsuit over Wisconsin’s next set of voting maps.

In their petition, Republicans describe the federal lawsuit, brought by voting rights groups and Democrats, as “an affront to Wisconsin’s sovereignty.” They said it is an effort to usurp the Legislature’s constitutionally protected power to redistrict, because it lays out a plan ahead of time, before any dispute has arisen, for the court to take over in the event that the Legislature, which draws the new maps, and Gov. Tony Evers, who must sign them, cannot agree. 

“There is no justification for a federal court to exercise jurisdiction beginning-to-end to oversee a State’s redistricting process,” the Republicans argue.

Meanwhile, in a separate lawsuit, the conservative Wisconsin Institute for Law & Liberty has successfully petitioned the Wisconsin Supreme Court to take up redistricting if Evers and the Legislature can’t agree. 

Republicans in the Legislature filed a brief urging the Wisconsin Supreme Court to take the case “at the same time they’re telling the federal courts there’s nothing to see here and no case to adjudicate,” says Jeff Mandell, founder of the progressive law firm Law Forward.

Forget their arguments about “sovereignty,” the Republicans are clearly shopping for a friendly forum to help them retain some of the most gerrymandered GOP-friendly districts in the country. If this were not clear enough from the dueling lawsuits, it is glaringly obvious from the joint resolution Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu are bringing to the floor on Tuesday. They declare that, in drawing new maps, the Legislature should commit to preserving the state’s existing gerrymandered districts.

The progressive group A Better Wisconsin Together put out a statement Monday challenging Republican legislators who have cosponsored bills favoring fair maps and a nonpartisan redistricting process to vote against the joint resolution. Among those legislators are Reps. Todd Novak (R-Dodgeville), Travis Tranel (R-Cuba City), Loren Oldenburg (R-Viroqua), Jeffrey Mursau (R-Crivitz) and Joel Kitchens (R-Sturgeon Bay). “If they vote for the plan forwarded by Republican Speaker Robin Vos and other legislative leaders instead of reform,” the group pointed out, “they would be endorsing a system which, in the 2018 election cycle, enabled Republicans to earn just 44.8% of the votes for Assembly but control nearly two-thirds of the seats.”

“The voters of Wisconsin have the right to pick their leaders, not the other way around,” said Mike Browne, deputy director of A Better Wisconsin Together, calling the vote on the joint resolution “a test for legislators.”

Unless it is blocked by the U.S. Supreme Court, the federal lawsuit in U.S. district court continues. “The court and the parties must prepare now to resolve the redistricting dispute, should the state fail to establish new maps in time for the 2022 elections,” the judges on the panel wrote, scheduling a trial in the case for January. 

Federal courts have intervened three times to redraw Wisconsin’s voting maps when the governor and the Legislature could not agree. Even conservative justices on the Wisconsin Supreme Court have said, repeatedly, that the federal court is the proper forum for drawing new maps. 

But some of the same justices who had earlier rejected getting involved in redistricting on the grounds that it would politicize the court and take it outside its appropriate role as a forum for appeals — as opposed to the intensive fact-finding involved in drawing new maps — have agreed, this time, to take up the issue. 

That’s too bad, because nothing has changed since the court debated the issue in 2009.

Back then, Justice Patience Roggensack objected that creating a rule that got the court involved in the redistricting process early had the potential “to increase the political pressures on this court in a partisan way that is totally inconsistent with our jobs as nonpartisan judiciary.”

Conservative justice Annette Ziegler, now chief justice, put it even more strongly: “I’m concerned about the court acting kind of as a super-legislature,” she said.

Retired conservative Justice David Prosser declared that he would, “vote against [taking an original action] every time. … Let them go to the federal court.”

Even former Justice Michael Gableman, who is now in charge of the Legislature’s discredited, hyperpartisan 2020 election fraud investigation, said at the time that “to allow ourselves at this point to create that avenue by which we will be immersed in the partisan political process would be a mistake.”

If the U.S. Supreme Court agrees with Republican legislators that the federal court should block the current redistricting case, it will give Republicans’ efforts to gerrymander a significant boost. 

“Even in this era of politicized decisions from the nation’s highest court, the American people have the right to expect our federal courts to follow the law and not do the parochial bidding of one state’s political party,” Sachin Chheda, director of the Fair Elections Project, said of the Republicans’ petition, “The Supreme Court should reject this partisan nonsense for what it is – an unveiled effort to rig the process in favor of one political party.” 

Coincidentally, the same week the Republicans petitioned the highest court, a new  Marquette University Law School poll of adults nationwide found that approval of the U.S. Supreme Court fell to 49% in September, down from 60% in July. Disapproval rose to 50% in September, up from 39% in July. A year ago, in September 2020, 66% approved and 33% disapproved of the way the Court was handling its job.

Approval declined among independents and Democrats while remaining stable among Republicans.

If the nation’s highest court puts its thumb on the scale as the Republicans scramble to hold onto their gerrymandered voting map, public confidence is sure to slide even further. 

The coalition of citizens’ groups pushing for fair, nonpartisan voting maps in Wisconsin have generated widespread public approval, with 56 of 72 counties in Wisconsin passing resolutions at either the county board level or by referendum supporting a nonpartisan redistricting process. 

It’s painfully obvious that the Republicans’ lawsuits and joint resolution are nothing but an attempt to hold onto their unfair advantage. 

As retired Republican state Sen. Dale Schultz put it last year  as he was traveling the state to promote nonpartisan redistricting and other bipartisan, good-government measures, after he voted for the current, gerrymandered voting map in 2011, “I realized we had invented a process that was thwarting the will of voters.” 

Judges and legislators with an ounce of integrity should reject Republicans’ current efforts to gerrymander again and uphold the principles of representative democracy, which can only be achieved through fair maps.