By Kati Kons
Problem ― Why the current redistricting process needs reform
For decades, the problem of partisan gerrymandering has been a point of contention involving state legislatures, governors, the supreme court and voters. Created and practiced as a ploy for political parties to hold on to power, gerrymandering fits into a category of political actions that cannot be answered any other way except to serve as an electoral advantage. This category notably includes, but is certainly not limited to, The Three-Fifths Compromise, the creation of North and South Dakota, and modern voter suppression efforts (Kiger).
Gerrymandering is the strategic drawing of district borders in a state so as to artificially produce an election outcome (Duignan). A common practice used to gerrymander electoral districts is called “packing and cracking.” Packing occurs when the victim party’s likely voters are heavily packed into fewer districts allowing for significant victories; cracking occurs in the remaining districts, meaning a sparse array of voters in those districts produce a majority of slim victories for the party in power (Whitaker). Thus the party in power wins most of the seats in one or both houses and gains majority power over the other party.
Drawing maps that create false election outcomes undermines the integrity of a vote and its value in an election. The salience of each vote could be diluted based upon location, demographic, or voting history. Gerrymandering is undemocratic in nature― a parasite which, so long as it exists, democracy suffocates. This results in a loss of trust in government and a misrepresentation of the people’s interests.
Gerrymandering has been challenged in the courts as a result of populational, racial, and political implications. However, the Supreme Court has unreliably and selectively stepped in to make a decision, which was done mostly to take down maps drawn to disadvantage racial minorities or ignore population changes. Even then, that was only after a great amount of time and advocacy. The Supreme Court has had numerous cases of partisan gerrymandering presented to them, of which has never struck down a drawn district map for pure partisan gerrymandering. In 1986, in the case of Davis v. Bandemer, the Supreme Court created the Bandemer test for partisan gerrymandering, which was struck down almost twenty years later for its ineffectiveness (Hladick 2018).
In 2017, Wisconsin’s maps were put to the test against the Supreme Court in Gill v. Whitford (Gill v. Whitford 2018). The Court made no decision, dismissing the case due to the lack of proof of Article III standing. Although the Court has consistently frowned upon the practice, they have generally deemed partisan gerrymandering constitutional because of the absence of a clear ruling or effective test. The inconclusive result of Gill has given legislators in Wisconsin the green light for redistricting how they want.
Most recently, the Court has seen a partisan redistricting case from the state of North Carolina in Rucho v. Common Clause (2019), addressing the questions of the standing of plaintiffs (the disqualifying factor from Gill), the justiciability of a partisan gerrymandering case, and whether or not their map was an unconstitutional partisan gerrymander. Chief Justice John Roberts delivered the majority (5-4) opinion― right along party lines― that described the issue as outside the area of justiciability of the federal courts, as it is the job of the state legislature with the responsibility of the federal congress for accountability (Roberts Jr.). But, as stated in Wesberry v. Sanders (1964), “the right to vote is too important in our free society for it to be stripped of judicial protection (Wesberry v. Sanders 1964).” Further, he argued that there was no “limited and precise” standard for the evaluation of partisan gerrymandering (Roberts Jr., Rucho 2019). Justice Elena Kagan wrote the dissenting opinion that there was danger in the Courts apportioning political power based upon their views of electoral fairness, yet there is a standard largely adopted by federal courts in the last decade that does not rely upon a judge’s views of electoral fairness (Kagan, Rucho 2019). This standard generally aligned with a three-pronged test of a state’s case: first, there must be proof that the party in question in fact had the intent to gain more power through the drawing of the maps; second, the maps had to have had the intended effect of diluting the vote in specified districts; third, the plaintiffs must have a non-partisan plan for redistricting in that state (Kagan, Rucho 2019).
Recommendations – What can be done
Following the “Iowa Model” of redistricting, such as the state of Iowa uses, a non-partisan legislative staff, equally represented by both parties, would be tasked to draw up district maps for the coming decade following the census results (Iowa Code, Sec. 42.4, Ballotpedia). In Wisconsin’s case, this responsibility would be delegated to the Legislative Reference Bureau (LRB). Their mission, as articulated well and purposefully by Arizona’s Independent Redistricting Commission, would be to redraw state legislative and congressional districts in a nonpartisan manner as reflected by the most recent census, from scratch, with consideration of both the one person one vote principle and the Voting Rights Act (Forst). Taking from the Iowa model, this piece of legislation strictly prohibits biases such as considering the addresses of incumbent legislators, specific demographics or political affiliations, previous election results, and the use of partisan data (Rucho v. Common Clause 2019). It also calls for districts to be as compact and contiguous as possible, aiming at making the perimeter as small of a number as they can (Iowa Code, Sec. 42.4). The legislators themselves, where the partisan bias inherently roots, will be taken out of the redrawing process. This leaves their job only to vote upon the results of the redrawing and any amendments (which are left strictly to errors and must be approved by three-fourths vote). This takes the question of partisan bias out of the process completely and does not rely upon the Supreme Court to establish a standard.
Arizona’s Independent Redistricting Commission was put to the test by the Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission (ASL v. AIRC 2015). By majority opinion (5-4), the Court regarded the Commission constitutional because it was consistent with the constitution of the state thereof. The state had amended their constitution by electoral initiative, consistent with the idea that since the time of the founding, the state has given some legislative power to the hands of the electorate, in the form of constitutional amendment. Because of this, they share the legislative responsibility of the State of Arizona, allowing for Independent Commissions to operate in the place of the legislature, not unconstitutionally.
It is noteworthy that Justice Anthony Kennedy voted with the majority and no longer sits on the Court, but was replaced with a more conservative-leaning Justice. This leaves it uncertain whether the precedent of the Arizona State Legislature decision will be overturned to favor the power of the state legislature instead of an independent commission, especially if Wisconsin’s proposed redistricting plan were to appear on the Supreme Court in the future. This question and its answer are more or less irrelevant to Wisconsin’s case. Not only does the state of Wisconsin not constitutionally permit ballot initiatives to amend, the proposed amendment for nonpartisan redistricting does not put the map-drawing into an independent commission’s hands, but in the hands of the reference bureau― a legislative service agency― the power never leaving the legislature itself.
This bill would be best as an amendment to the Wisconsin State Constitution, which requires the approval of both houses of the legislature followed by a referendum by the people. A recent Marquette University Law poll uncovered 72% of Wisconsinites supported a nonpartisan redistricting plan, encompassing a majority of Democrats, Independents, and Republicans (Conniff 2019). Additionally, fifty of Wisconsin’s seventy-two counties also support a nonpartisan solution (Hesselbein 2020). Thus, if an amendment were up for a referendum to create an independent redistricting commission under the Iowa model, the people of Wisconsin would support it. The biggest issue that this bill― already proposed as a bill and separately as an amendment, both failing― faces is getting past the legislature that utilized the process of which is being sought to amend.
Conclusion
Gerrymandering is a practice that is undemocratic in nature and dilutes the value of one’s vote by drawing up districts that produce artificial election outcomes. Although the Supreme Court has consistently frowned upon the practice, they have generally deemed partisan gerrymandering constitutional because of the absence of a clear ruling or effective test. Gerrymandering is an actionable issue that can be remedied by removing the power of redistricting from the hands of the partisan legislators into the hands of nonpartisan legislative staff. This will restore the value of a vote and make Wisconsin more democratic and transparent for the people.
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