In The News
3 federal judges order new redistricting maps in Milwaukee
By Dominique Paul Noth
Editor, Milwaukee Labor Press
Posted March 22, 2012
The plaintiffs may grouse that it was only a partial victory. Gov. Walker’s fading allies may crow that it supported the way they redistricted outside Milwaukee’s South Side to fulfill their legislative obligation to the 2010 US Census.
But Walker’s side can take no pleasure in how they are described within the decision March 22 – crass and disruptive of democratic tradition. The deciding panel of three federal judges, two appointed by Republican presidents, openly longed for “once a time when Wisconsin was famous for its courtesy and its tradition of good government” but “this bipartisan tradition has not, unfortunately, exempted Wisconsin from the contentious side of the redistricting process.”
The decision brims with hints that only obedience to the rule of law and deference to the legislature’s primary role in redistricting prevented deeper action. In effect the judges barred the maps (known as Act 43) of two Milwaukee South Side districts and ordered them returned to the legislature to be redrawn to represent the dominant Latino voting membership, rather than treat Latinos as strong minorities in each district.
It is unusual for a federal panel to step within a statewide redistricting plan to demand specific adjustments, but this was “a stupid, unconstitutional map” drawn up in secret by a private law firm, noted plaintiffs lawyer Peter Earle in praising this portion of the decision.
But the panel also upheld outside Assembly Districts 8 and 9 the lines drawn for the rest of the state’s assembly and senate districts, though the scholarly ruling was filled with unhappiness about how deference to the legislature, even an overly aggressive legislature, clearly tied its hands.
Despite the GOP’s sophisticated computer programs and pricey legal teams described in the decision, the judges referenced time and again how the GOP skirted the outer limits. Seeking political advantage is part of redistricting, but the ruling offered details of how the GOP danced on the edge. Judicial circumspection ruled -- a recognition that the courts defer to the elected representatives of the legislature. But the judges also made it transparent that they were not being fooled. They concluded that forcing the creation of two strongly Latino districts (but without a majority of voters) was no substitute for answering the growth of the Latino population and eliminating the one existing Latino majority voting district.
“The dispute surprisingly centers on whether two Latino influence
districts are superior to one majority-minority district,” the panel wrote, but concluded that this was not and that it was a violation of the US Voting Rights Act.
The judges ordered a quick creation of new maps for these two districts without straying past their outer boundaries, to be done by the state legislature in time for the August and November elections. That could be a tall order.
Quick will be interesting, because just last week the GOP lost its stranglehold on the state senate through Pam Galloway’s resignation and will be forced by a 16-16 tie to work with the Democrats and co-chamber leaders Mark Miller, long the Democratic leader, and Scott Fitzgerald, just displaced as the unbending GOP overlord. Behind the scenes, though the Assembly is clearly in GOP hands, it suggests an elevated importance for the lone Latina in the legislature, Rep. JoCasta Zamarippa, who represents District 8 and – documents reveal – was ducked around in drawing the original GOP maps. One of the original plaintiffs, Voces de la Frontera, also intends to be deeply involved in the redrawing process.
“The ruling is vindication, that we were right,” noted Christine Neumann-Ortiz, Voces’ executive director. “If the Republican Party had chosen to honor the public process -— instead of operating secretly -— there would have been the opportunity for a meaningful discussion and debate. Instead, it only serves as a lengthy and costly lesson.”
The decision does brim with suggestions of citizen involvement and criticism of their exclusion. For instance, while it concluded that the drafters stayed just inside the rules of geographic and population deviation allowed by precedent, the judges were "unpersuaded" by the testimony that they were “not influenced by partisan factors; indeed, we find those statements to be almost laughable."
“But the partisan motivation that, in our view, clearly lay behind Act 43 is not enough to overcome the . . . population deviations that the drafters achieved, at least under this theory.“
The asides and sentences reflect how the judges felt bound by legal precedents to offer limited interference.
Three Democratic US representatives acted as intervenor plaintiffs to question if the partisan Republican thumb pressed beyond the norms of political advantage in all the maps. While the judges ruled against this view, the comments were revealing (and refer at one point to the late John Rawls’ principle of disciplined liberty and balance ):
“Perhaps the Court will find some day that the First Amendment also protects persons against state action that intentionally uses their partisan affiliation to affect the weight of their vote. Legislative districts
drawn behind a Rawlsian veil of ignorance would arguably give each voter
the best chance to express his or her views without anyone putting a thumb
on the scale in advance. But those developments, we concede, lie in the
The 38 page document – chronicling the legislative history of the dispute and the legal precedents that court must abide by – also is full of lamentations how a nonpartisan system of redistricting (which Wisconsin once had) would work better. There a number of revealing asides and observations:
“Regrettably, like many other states, Wisconsin chose a sharply partisan methodology that has cost the state in dollars, time, and civility. Nevertheless, our task is to assess the legality of the outcome, not
whether it lived up to any particular ideal.”
“Every effort was made to keep this work out of the public eye and, most particularly, out of the eye of the Democrats.”
“It is important not to assume that the mere ability to elect a representative of one’s preferred political party is a perfect substitute for the ability to elect a representative who will more broadly identify with and serve his or her constituents’ needs.”
“The concept of (a Latino) community of interest is one that sweeps in much more than party label.”
“While we are sympathetic to the nearly 300,000 voters who have lost their
opportunity to vote for a state senator for two years, we find that Act 43 does
not violate the Equal Protection Clause on this basis.”
“We find that although the drafting of Act 43 was needlessly secret, regrettably excluding input from the overwhelming majority of Wisconsin citizens, and although the final product needlessly moved more than a million Wisconsinites and disrupted their long-standing political relationships, the resulting population deviations are not large enough to permit judicial intervention under the Supreme Court’s precedents.”
Except, of course, the judges did step in for the two districts where the US Voting Rights Act was also violated.
Among the 21 citizen plaintiffs who joined the lawsuit were Sheila Cochran, CFO of the Milwaukee Area Labor Council, and former state Sen. Judy Robson.