In The News
Lawyers caught mapping and then getting plain silly
By Dominique Paul Noth
Editor, Milwaukee Labor Press
Posted December 2, 2011
On Wall Street it’s called insider trading. In retail circles, it’s “bait and switch.” There may not be a similar term in legal circles, but it’s time to coin one, given the behavior of Michael Best & Friedrich.
The law firm shared $400,000 in taxpayer money when hired to create a redistricting plan for the state legislature and the congressional districts. It heeded its GOP masters, designing new districts that so strongly favor continuing Republican control that many Democrats don’t expect to win -- if the new maps survive both federal and state court challenges of considerable weight.
But there was one explicit line in the redistricting bill vetted by these lawyers “with respect to special or recall elections.” The law would apply “to offices filled or contested concurrently with the 2012 general election."
But then Michael Best etc pretended those words weren’t there. Whatever its past reputation for quiet maneuvering, it had become the definition of chutzpah – the kid who kills his parents and then pleads to the judge for mercy on the grounds that he is an orphan.
Not only was the firm ignoring how the maps were definitively aimed at the November 2012 election, it was moving to protect the four Republican senators now facing recalls by asking the state courts to rush the new districts into existence immediately. That ignored thousands who voted or could have voted in the original elections of the senators as well as where thousands of recall signatures are currently being collected.
Even more bizarre, Michael Best lawyers were pleading to legalize redrawn maps still in dispute and challenged for violating both federal voting laws and the state constitution.
Wiser legal heads apparently prevailed Dec. 2 when the firm’s lawyer sought to withdraw that lawsuit in the face of peppering questions from the state court. The tipping point might well be squeamishness from an unexpected quarter – Justice David Prosser, he of the famous 7,500 discovered victory votes in Waukesha County. In a previous existence he was an active Republican legislator steeped in these sort of redistricting ploys, and the signal that he was likely to stand aside in this case took away the conservative majority Michael Best seemed to be counting on.
Why else would the law firm expect the state’s Supreme Court – either through a panel or by itself– to agree to disenfranchise residents of the old districts who are excluded in the disputed maps? In fact, why should the law firm expect the state high court to impose the new districts when the conservative US Supreme Court, in another case, rejected the concept of using new districts to disenfranchise original district voters?
Obviously because of past partisan leanings and the conservative edge. Many in the GOP do have the attitude that conservative justices will feel an obligation to their GOP masters, which include those threatened Republicans the court so readily helped last spring. That was when the majority on the bench overruled a local judge and decided legislative regulations trumped open meeting laws, declaring Walker’s Act 10 legal despite how it was pushed through.
But this time the plea for justices to engage in partisan self-immolation struck many lawyers as over the top. Another wrinkle in the entire process was caused by Michael Best’s previous involvement. It represented Justice Michael Gablemen after the Wisconsin Judicial Commission ruled he lied in a 2008 campaign ad attacking Louis Butler and thus violated the state's code of judicial ethics. The justices split 3-3 (right-wing on one side with Gableman recused) on punishing him, so that must count in the victory column for a grateful Michael Best client.
Legal experts in news articles are divided whether this episode should force Gableman to recuse himself from the redistricting case in which Michael Best is so intrinsically snarled. The cynics point out that, if his past behavior didn’t lead him to disqualify, why should this issue? Michael Best etc., understandably, think Gableman should stay on the case if redistricting is ultimately returned to the state court as many expect.
If we continue being cynical, let’s deal with both sides of the partisan fence. Historians in many states can cite how many times in redistricting both political parties tried to bend the divisions to their advantage at the polls. That’s true enough. But journalists in Wisconsin concede that this new breed of convoluted maps is something else again. Even avidly partisan Democrats say they would never have dared twist and tilt so extremely. “It’s almost as if they think they have an inside track in the state courts,” one veteran of redistricting wars told me. The Republicans insist they stayed within the legalities, however ruthless the results appear.
But it’s the courts that will decide in the next months – and traditionally they show deference to the legislature, which was elected by the people. For now it looks like the maps won’t be moved up in time, but will they ever be approved? That redistricting is putting all the involved courts to an extreme test, balancing their judicial impartiality against the political behavior of the elected majority and their highly paid servants.
Democratic districts were made even safer by moving more traditional Democratic territories inside each other, side-stepping the issues of balance and minority makeup in neighboring areas. That freed the mapmakers to put more traditionally Republican areas in play to protect new Republicans who survived close votes. In some cases the results targeted articulate opponents, seeking to ensure they would not fare well by forcing them into facing conclaves that don’t share their viewpoints. In other cases, the borders of the resulting districts look like Picasso doodlings, and that’s flattering.
Rep. Leah Vukmir – an extreme right-winger -- gets even more of GOP devoted Waukesha County after beating more moderate Jim Sullivan. New US Rep. Sean Duffy has stronger Republican ties in a new map for a district that regularly elected Democrat Dave Obey – and his likely strong Democratic opponent in 2012 had many of his supporters carved out of the district. Rep. Sandy Pasch has literally lost her district – and Rep. Fred Kessler will have to move to a new house to stay in his, and on and on.
The challenges bring in violations of the federal voting rights act. One suit filed by Latino plaintiffs points out how the redistricting avoided the natural Hispanic majority in a district to force a minority geographical distribution.
But what is most central to the uproar is a democratic principle. What should redistricting really accomplish? In other states, independent commissions assure nonpartisan fairness when the census data records population shifts. The goal is not squeaking within the letter of the law but working toward natural territorial boundaries and competitive balance. That clearly didn’t happen here, but the courts have to determine how much deviance can be permitted.
The legal thickets remain muddy despite the belated withdrawal of trying to move the disputed maps up in time. A key concern is who finally decides? Since redistricting is controlled by the state constitution, many lawyers expect that the eventual solution will be returned to state courts, but the federal court currently seems reluctant to step aside. . One reason may be how the US Supreme Court will likely enter the fray if voters are disenfranchised or denied rights, a core concern of the challenges.
Michel Best was overdoing what lawyers attempt for their clients, pushing for resolution before the referee counts to ten, trying to force a previously sympathetic court majority to enter the game before the feds pass them the ball. Several lawyers worry that such blatant maneuvers were really demanding questionably hasty decisions from justices now trying to avoid that spotlight, particularly when the desired result may prove contrary to US jurisprudence. You don’t make it too public when judges have been pretty cozy in the past. Michael Best may actually have backed off because it committed the political no-no of embarrassing its own kind in public, as one corporate lawyer noted in an interview.
“You definitely don’t expose your good friends on the bench to ridicule.”