AUTHOR’S NOTE: The author of this blog post is not an attorney and is not a Wisconsin resident.
Yesterday, a three-judge federal appellate court panel of the U.S. Circuit Court of Appeals of the 7th Circuit ordered the Wisconsin State Legislature redraw the Wisconsin State Assembly map because the current state assembly map is deemed by the 7th Circuit panel to be such an extreme partisan gerrymander that it violates the U.S. Constitution. It’s not immediately clear if the Wisconsin State Senate map will have to be redrawn as well, although Article IV, Section 5 of the Wisconsin Constitution states, in part, “…no assembly district shall be divided in the formation of a senate district….”, although Katelyn Ferral of the Madison-based newspaper The Cap Times has interpreted the ruling as meaning that the state senate map would have to be redrawn as well:
The order is specific to Wisconsin’s Assembly map but essentially invalidates both the Assembly and Senate district maps because the Senate district map is based on the Assembly’s map. In November 2016, the court ruled that the state’s Assembly district maps were an unconstitutional gerrymander, a ruling that has gotten national attention. Wisconsin’s case is the first gerrymandering case of its kind to go to trial in 30 years, according to the Campaign Legal Center, a Washington, D.C.-based advocacy group that has worked with the plaintiffs.
For the purposes of this blog post, I’m going to consider the possibility of state senate maps being redrawn as uncertain until and unless there is some kind of specific ruling from a federal court regarding that matter.
With the Republican-controlled Wisconsin Legislature about to redraw Wisconsin’s state legislative maps, you may be asking yourself…what happens next?
One thing is for certain…the Republicans are going to try to get the U.S. Supreme Court, with or without a Donald Trump appointee on the bench, to overturn the federal appellate court’s ruling, which would result in the current maps being upheld and used for the 2018 and 2020 Wisconsin State Legislature elections.
Possibility #1: Legislature takes redistricting out of its own control and puts it in the hands of an independent process
While a number of Wisconsin Democrats have publicly called for making the redistricting process independent of the state legislature (see here and here for examples), and I think that it would be an awesome idea, I seriously doubt that Republicans would support this for two reasons. One, the court order directs the state legislature, not a governmental entity that has not (yet) been created, to redraw Wisconsin’s state legislative maps, and it’s not clear if a court would allow an independent redistricting body to redraw Wisconsin’s state legislative maps between federal Censuses instead of the state legislature. Two, the Republicans don’t want to draw any more Democratic-leaning districts than what currently exist, and they are probably going to completely disregard the rationale for the court ruling altogether.
Possibility #2: Legislature tries to draw an even stronger GOP gerrymander
As I stated above, I fear that the Republicans that control the state legislature are going to completely disregard the rationale for the court ruling altogether and attempt to draw an even stronger gerrymander. Regardless of whether or not the state senate map has to be redrawn, State Rep. Katrina Shankland (D-Stevens Point) is one state assembly member that could have her district, Assembly District 71, redrawn in such a manner to make it more favorable for a Republican challenger. Daily Kos Elections (DKE), the election analysis arm of the progressive website DailyKos, calculated that Hillary Clinton got a narrow majority of the vote in the presidential race in Shankland’s district (Shankland was unopposed in her state assembly race last year). It would not be unthinkable for the GOP to try to redraw Shankland’s district in such a manner that it becomes a Republican-leaning district, making it harder for Shankland to win re-election. State Reps. Gordon Hintz (D-Oshkosh), who represents Assembly District 54, and Amanda Stuck (D-Appleton), who represents Assembly District 57, could also find their districts redrawn to include more Republican-leaning areas, and a few other Assembly Democrats could find themselves in Republican-leaning districts as well if the GOP tries to draw an even stronger gerrymander. Of course, doing that would be completely against the rationale of the court ruling.
If the state senate map is redrawn as well, the GOP could decide to…you guessed it, completely disregard the rationale for the court ruling altogether and try to draw multiple districts that are currently held by Democrats and make them Republican-leaning. State Senate districts 25 (held by State Sen. Janet Bewley (D-Ashland)), 30 (held by State Sen. Dave Hansen (D-Green Bay)), 31 (held by State Sen. Kathleen Vinehout (D-Alma)), and 32 (held by State Senate Minority Leader Jennifer Shilling (D-La Crosse)) could all be drawn to be made more Republican-leaning, and redrawing the state senate map to make it a stronger GOP gerrymander could open up Republican opportunities to draw even more Assembly Democrats into Republican-leaning districts.
Any attempt by the GOP to draw an even stronger gerrymander would probably be struck down by federal courts since they struck down the current state legislative districts, which are strongly gerrymandered.
Possibility #3: Legislature tries to reduce the size of the State Senate
There is a big wild card that the Republicans who control the Wisconsin Legislature could attempt to play, and that would be in the form of reduction of the size of the state senate. Article IV, Section 2 of the Wisconsin Constitution governs what sizes of each house of the state legislature are permissible:
The number of the members of the assembly shall never be less than fifty-four nor more than one hundred. The senate shall consist of a number not more than one-third nor less than one-fourth of the number of the members of the assembly.
Given the requirement that assembly districts be nested within senate districts (this is the part of Article IV, Section 5 of the Wisconsin Constitution that I mentioned earlier), it would be permissible for the Republicans to reduce the currently 33-seat state senate (with a 99-seat state assembly) to as low as 14 seats (with a state assembly of 56 seats), although the Republicans could end up with a higher percentage of state senate seats with a 25-seat state senate (with a state assembly of either 75 seats or 100 seats). With a 25-seat state senate, it would not be unthinkable for Republicans to draw a map in such a manner that Republicans could have the same number of seats they currently hold in the state senate, 20, while reducing Democratic-leaning seats to only five: a district in the most densely-populated parts of Dane County, a Rock County/southern Dane County district, and three districts including the most Democratic-leaning parts of Milwaukee County. This would give Republicans 80% of the state senate seats in a state that gave Donald Trump a plurality of the vote.
However, there is a multitude of reasons of why the Republicans may not try such a plan. First off, it’s possible that federal courts may not permit the number of seats in either house of the legislature to be changed between federal Censuses. Secondly, federal courts are probably not going to permit anything resembling a stronger Republican gerrymander. Additionally, it’s not clear if federal courts would approve of a state senate redraw of any kind. Furthermore, Republican legislators don’t want their own district eliminated: for example, if the Republicans were to attempt a 25-seat state senate gerrymander, State Sens. Stephen Nass and Van Wanggaard, both Republicans from the southeastern part of Wisconsin, would probably be drawn into the same district in order to make the district of State Sen. Janet Bewley, a Democrat from the opposite end of the state, more favorable to a Republican opponent. This is because Southeastern Wisconsin would probably lose two or three state senate districts if the state senate is reduced from 33 seats to 25 seats.
Possibility #4: Legislature’s GOP majority actually abides by the rationale of the federal court ruling
Of course, it’s possible, although probably wishful thinking on my part, that the Republicans who control the state legislature actually decide to abide by the rationale of the federal court ruling and draws a state assembly map that is less gerrymandered than the current state assembly map. If the state senate map is not redrawn, one district that would likely be made more favorable to Democrats is the 26th Assembly District, which could be redrawn to include all of the City of Sheboygan and as many of the voting wards of Sheboygan County where, in the 2014 Wisconsin gubernatorial election, Mary Burke got at least 35% of the vote as possible. Currently, the district includes the southern five-eighths or so of the City of Sheboygan and heavily-Republican areas south of the city. Another district that could be redrawn to be made more favorable to Democrats is the Wausau-based 85th Assembly District, which currently extends from Wausau to the heavily-Republican eastern end of Marathon County. The district could be redrawn to make the district more compact and replace the areas along the eastern border of Marathon County with parts of north-central Marathon County, making the district slightly more Democratic-leaning. If the state senate map has to be redrawn as well, then there’s going to be at least 2 or 3 state senate districts that would be made more favorable to Democrats and several, if not a dozen or more, state assembly districts which would be drawn to make it more favorable to Democrats.
Possibility #5: A federal court redraws the map(s)
There is one scenario in which the feds would step in and redraw Wisconsin’s state assembly map, and, if a federal court deems it to be necessary, state senate map. If the state legislature and Republican Governor Scott Walker cannot agree on a new map or new maps by November 1, 2017, then it would be likely that a federal court would take over redrawing the map(s). Of course, there’s one last possibility.
Possibility #6: The U.S. Supreme Court overturns the 7th Circuit’s ruling and upholds the existing GOP gerrymander
The Republicans that control Wisconsin’s state government are currently trying to get the three-judge federal panel’s ruling overturned by the U.S. Supreme Court (SCOTUS), which will be either with or without a Donald Trump appointee on the bench by the time SCOTUS hears the Wisconsin redistricting case, along with a similar case regarding North Carolina’s Republican-gerrymandered state legislative maps. If SCOTUS overturns the lower court’s ruling in the Wisconsin case, the current, Republican-gerrymandered state legislative districts in Wisconsin would be upheld. If there’s still a single vacancy on the SCOTUS bench, and the justices split 4-4 in regards to the Wisconsin case, then the lower court’s ruling is upheld, meaning that the state assembly, and possibly the state senate, maps would have to be redrawn, although no major precedent would be set. However, the four liberal justices and one of the conservative justices (probably Anthony Kennedy or, much less likely, a Donald Trump appointee to the bench who turns out to be less conservative than originally thought to be) could rule 5-4 or 5-3 in favor of the lower court’s ruling, which would require a new Wisconsin State Assembly, and possibly a new Wisconsin State Senate, map to be drawn with precedent set for future redistricting cases before the federal judiciary.