No Partisan Walls: Federal Court Strikes Down Wisconsin Gerrymandering

Author: Chad Peace
Created: 22 November, 2016
Updated: 21 November, 2022
4 min read

While the mainstream media focuses on Trump’s wall (or lack there of) the establishment has been quietly building them for decades.

In virtually every state, the party that is in control has significant influence over the process that determines the boundaries of legislative districts.

It is no secret that both parties have used this authority, in an increasing degree, to insulate themselves from competition, using a tactic known as partisan "gerrymandering" -- which packs voters from one party or the other into districts so as to create "safe Democrat" or "safe Republican" districts.

In effect, state legislatures build artificial walls around voters to create districts that are controlled by the Republican and Democratic parties, rather than voters.

Both parties at the national level participate in and support gerrymandering because parties don't have to spend money to defend districts that they control by virtue of artificially inflated registration statistics. This allows them to focus resources on the "battleground" districts that remain. As a consequence of gerrymandering, over 90% of elections nationwide are now "decided" in primary elections. In other words, the only meaningful electoral competition in a highly gerrymandered district occurs in the majority party's partisan primary.

Voters in some states, through the initiative process, have enacted "independent redistricting commissions" to combat this partisan tactic and to protect the competitive nature of the voting process. Just recently, the Arizona legislature contested the legality of a voter-enacted independent redistricting commission, arguing before the Supreme Court that the exclusive authority to control the "time, place, and manner" of elections under Article I, Section IV of the Constitution lies with state legislatures. The Supreme Court disagreed; a major win for election reformers.

But in states without a citizens' initiative process, like Wisconsin, voters are left with little remedy other than the courtroom.

This year, the Fair Elections Project brought a lawsuit on behalf of 12 Democratic Party voters, against the Wisconsin legislature, arguing that the gerrymandered districts drawn by legislative staffers violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the constitution by giving Republican voters an unfair advantage in the representation process.

The plaintiffs argued that the districts were drawn in such a way as to ensure that the Republican Party controlled the legislature regardless of voter turnout. A three-judge federal panel agreed, holding that the effect of partisan gerrymandering in the state is "so severe and durable" that even if Democrats vote in greater numbers than the Republicans, the Democratic Party would still only get one-third of the seats.

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All three judges found beyond question that the Republican establishment did so to benefit Republican candidates.

Prior to this decision, the courts have recognized partisan gerrymandering as a legitimate exercise of state legislative power. In other words, current precedent said it is not a legitimate use of government power to draw districts in a way that reduces the voting power of minorities, but it is a legitimate use of government power to draw districts in a way that reduces the power of voters based on their party affiliation.

The federal court for the Western District of Wisconsin has held otherwise.

As attorney Ruth Greenwood of the campaign legal center explained in a call with journalists, Plaintiffs proposed a test that could be applied in any state:

  1. Did the legislature intend to reduce the power of voters who are not members of the majority party?
  2. Did the legislature actually reduce the power of these voters? (This is measured by an "efficiency gap," based on a mathematical test proposed by Plaintiffs)
  3. Was there a clear justification for the way the lines were drawn? (In other words, could the legislature have complied with traditional criteria and still reduce the efficiency gap?)

Although the court refused to adopt this test as the constitutional standard, it did use the test to support its holding:

  1. Yes, the legislature intentionally reduced the power of non-Republican voters.
  2. Yes, the power of non-Republican voters was reduced by the way the legislature drew the districts, and
  3. No, there was no clear justification.

In fact, the legislative staffers created 6 previous plans that had a lower efficiency gap and still complied with traditional redistricting requirements, but chose to use even more egregiously gerrymandered maps.

The ruling in the case will certainly be challenged by state representatives, and is likely to reach the Supreme Court. While the decision could have significant effect on the future of Wisconsin's voters, there is a more important voting rights issue at stake.

For the first time -- the court held that discrimination against a voter for their choice of party affiliation serves no legitimate government purpose.

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Read the Court's Full Opinion:

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