Wisconsin Attorney General Brad Schimel appeals redistricting case
MADISON – Wisconsin Attorney General Brad Schimel asked the U.S. Supreme Court on Friday to reinstate election maps that a panel of three federal judges found unconstitutional.
Last year, the panel ruled 2-1 that maps of state Assembly districts were so pro-Republican that they violated the voting rights of Democrats. The judges ordered the state to put in place new, more neutral maps by November so they could be used in the 2018 elections.
New maps would give Democrats a shot at improving their lot in the Assembly. Republicans control the chamber 64-35.
States must redraw congressional and legislative maps every 10 years to account for changes in population. Republicans controlled all of state government in 2011 and they drew maps that greatly favored them.
A group of Democratic voters sued in 2015 and the judges found Republicans had gone too far by effectively helping keep Democrats out of power in the Assembly.
RELATED: More evidence of a skewed GOP map in Wisconsin
Redistricting cases are unusual in that they are initially heard by a three-judge panel and then go directly to the U.S. Supreme Court instead of an appeals court.
The U.S. Supreme Court is required to take redistricting appeals, though it does not have to hold arguments on them. If it schedules arguments, they would be held in late 2017 or early 2018.
If the court upholds the panel’s decision, it could lead to a flood of challenges — from both Democrats and Republicans — in other states. If it struck down the panel’s ruling, the court could shut down the ability of either side to argue that politicians took partisanship too much into account when they drew maps.
The high court has long been divided on the issue. A majority has said that political gerrymandering can be unconstitutional, but the justices have not been able to agree on a system for courts to determine when that happens.
The Wisconsin case offers a new test to determine when partisanship plays too great a role in drawing map.
The plaintiffs argued Democratic voters had been packed into a small number of districts instead of scattered into many competitive ones. As a result, Democrats cast a large number of “wasted votes” — that is, votes that are not needed to elect a candidate.
The panel sided with the plaintiffs in ruling the number of “wasted votes” could be used to tabulate when maps were unconstitutionally drawn.
Schimel has argued the test is unreliable and too much like other tests the Supreme Court has already rejected. He contends Democratic voters tend to live in places like Milwaukee and Madison, leading to Democrats getting lopsided votes in those areas while performing poorly in other districts.
The test was designed in hopes of getting the support of Justice Anthony Kennedy, who has found politicians can go too far in drawing maps but who has not found a way to adequately measure when that happens.
The appeal comes at a time when the court is short one justice because of the death last year of conservative Justice Antonin Scalia.
The U.S. Senate is working to confirm President Donald Trump’s court nominee, Neil Gorsuch.
If the court splits 4-4 on the case, the appeals panel’s decision would hold and Wisconsin lawmakers would have to draw new maps. But that ruling would not be binding in other states.
While attention now shifts to the high court, the three-judge panel will still have a say in the litigation. Under an order it issued this week, the panel made clear it could review any new maps lawmakers might draw or craft its own maps if lawmakers don't act.
Patrick Marley can be reached at patrick.marley@jrn.com and twitter.com/patrickdmarley.