As redistricting fight heats up, Democrats fight over Voting Rights Act compliance
Redistricting by Truthout.org (Image: Jared Rodriguez / t r u t h o u t) CC BY-NC-ND 2.0
For ten years, Wisconsin Democrats have fought a sisyphean battle against the gerrymandered political maps passed by Republicans in 2011. That battle went all the way to the U.S. Supreme Court and inspired most of the state’s counties to pass resolutions in favor of a nonpartisan mapmaking process.
Now, as Republicans in the Senate and Assembly have passed a set of maps that bake in the partisan gerrymander they’ve enjoyed for a decade, Democrats are unable to come together on a better alternative.
Gov. Tony Evers campaigned on the issue and ultimately signed an executive order that led to the appointment of the People’s Maps Commission (PMC). The PMC traveled the state to meet in-person and virtually with citizens about how they wanted to configure the districts they live in.
The PMC’s first proposals were criticized for not complying with the Voting Rights Act (VRA), which requires that communities that have historically faced discrimination be given an equal opportunity to choose who represents them. The PMC made revisions and ultimately released maps that were given an “A” grade for partisan fairness by the Princeton Gerrymandering Project.
The PMC maps still give Republicans a slight electoral advantage because of Wisconsin’s geography — since Republicans are dispersed across the state’s rural areas and Democrats are concentrated in urban areas.
Even with the revisions, a number of Milwaukee-area Democrats including Sen. Lena Taylor, Rep. LaKeshia Myers and Rep. Sylvia Ortiz-Velez, objected to the PMC’s maps, saying the proposed maps ignore the input of legislators and disregard the requirements of the VRA.
Even though Evers played no role in the construction of the PMC’s maps, this opposition allowed Republicans to claim there was bipartisan opposition to what they called the governor’s proposals.
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The creation of new political maps requires the careful balancing of a number of competing interests. Minority representation needs to be considered but so does keeping together communities of interest and municipal boundaries. Mapmakers also need to aim to draw districts that are compact and contiguous. In every direction, there is federal law and court precedent that needs to be complied with.
“There’s a lot of misinformation right now,” says Doug Poland, an attorney for the nonprofit, progressive firm Law Forward which has filed a lawsuit in federal court over redistricting. “I don’t think it’s the result of people who are seeking to put wrong information out, I think there’s a lot of misunderstanding. It’s really one of the most complex areas of law that there is. I say this after 27 years of practicing.”
The entire statewide map is a complex system. A change in one place requires a change in another and all the competing interests and requirements need to be balanced, Poland says. Black voters around Milwaukee could all be put into six districts in order to make sure they can elect candidates of their choice, but some of those same voters can also be moved into districts that include the surrounding suburbs in order to turn a previously red district purple or a previously purple district blue.
“Everything you do in some part of the state or with respect to the metrics, you make tweaks here and there and it has ripple effects across the whole map,” Poland says. Spreading out the Black vote might reduce the number of majority-Black districts, for example, but it could also increase the number of Democratic districts.
“Again there are so many different potential criteria that are in tension with one another,” he continues. “Partisan fairness, minority representation, compactness, all of these things are in tension. When you focus on one, when you emphasize one over another, that’s when you start to see some of the difficulties.”
In their floor speeches and other statements, some Black and Hispanic Democratic legislators said they’re concerned about the political power of Black voters around Milwaukee being diluted under the PMC maps. What they want, they’ve said, is for Milwaukee’s majority-minority districts to be retained.
“You can’t take our minority-majority districts,” Ortiz-Velez said in her speech on the Assembly floor. “They are protected.”
Dyango Zerpa, a legislative aide for Ortiz-Velez, says she believes the VRA prevents a new map from turning an existing majority-minority district into an “influence” district — a district in which a minority group makes up less than 50% of the population but is still a powerful voting block.
Zerpa says this belief comes from a federal court’s ruling in Baldus v. Brennan, a case fought over the last round of Wisconsin redistricting in which two districts were ordered redrawn to give Hispanic voters more power.
“For Rep. Ortiz-Velez the most important thing is compliance with the Voting Rights Act,” Zerpa says. “There’s a ruling via the Baldus ruling, which says that you cannot replace a minority-majority district with an opportunity district. The fundamental difference is an opportunity district means there’s a significant percentage rather than a majority. Opportunity districts don’t typically end up with minority representation. The biggest thing is compliance with the Voting Rights Act.”
Poland, who was a lawyer on the Baldus case, says that isn’t what the ruling does. The question isn’t whether or not there is more than 50% of a minority group within a district, but if it will “perform” by giving that minority group an equal opportunity to elect a candidate — which is possible without being a majority-minority district.
Zerpa also says he doesn’t believe the criticisms of Ortiz-Velez’s opposition on the grounds that she’s pushing for more majority-minority districts at the expense of a chance of a Democratic majority statewide.
“Unfortunately from what we understand and what we’ve seen, I don’t know if that would be possible to draw the maps to ensure a Democratic Legislature,” Zerpa says. “Even though we may be in the minority, it is still possible to get good policy passed on a bipartisan level.”
In fact, the VRA doesn’t specifically mandate the creation of majority-minority districts. Instead, it mandates that minority communities have an equal opportunity to elect candidates of their choice. In Milwaukee County, according to UW-Madison political science professor David Canon, that doesn’t necessarily require creating districts that are more than 50% Black.
“What determines that opportunity is the extent to which you have racially polarized voting,” Canon says. “In Milwaukee County, that’s not the case. [Congresswoman] Gwen Moore has easily won every election since 2004. Most of the time she’s well over 70%; she’s not in a district that’s 70% Black. That shows in that part of Wisconsin, you don’t need Black voters to have an equal-opportunity-to-elect district.”
The PMC proposals include seven districts that have Black voting age populations — the metric used to determine political representation — of at least 40%. Canon says even the districts with Black populations of less than 50% comply with the Voting Rights Act because of the historical voting patterns and political makeup of the area. The creation of districts that put even more Black voters together could run into a different problem on the opposite end of the spectrum — weakening the Black vote by packing too many voters together.
“Gosh, in the people’s commission plan you have 1, 2, 3, 4, 5, 6, 7 districts that are over 40% black voting age population,” Canon says. “The critics are worried about those four that are in the 40s. Look at the percent Democratic — 70%, 80% the smallest are 71% — these are safe Democratic districts. I think the alternative of the voting rights problem, with districts that would go higher percent voting blocks than this, is you can get sued for packing. You can get sued for wasting those votes, that becomes a voting rights violation under the packing standard.”
The Senate and Assembly have both passed the Republican-drawn versions of the new maps but have yet to present them to Evers for a likely veto. Once the maps are vetoed, lawsuits have already been filed in state and federal court to decide the matter.
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