Jason Stein, and Patrick Marley

Milwaukee Journal Sentinel

Madison

— Two weeks after a stunning election defeat, Wisconsin Democrats won an equally surprising legal victory Monday as a federal court struck down legislative maps drawn by Republicans in 2011.

The judges ruled 2-1 that the maps were unconstitutional because they were "intended to burden the representational rights of Democratic voters ... by impeding their ability to translate their votes into legislative seats."

Depending on the outcome of an appeal to the U.S. Supreme Court, the case could have national implications because it includes a new method of determining whether legislative maps are drawn in a way that discriminates against voters of a particular party.

"We find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander," the judges wrote in their 159-page decision.

The ruling focused on the state's 99 Assembly seats, but redrawing those districts also would alter the state Senate map. That’s because each Senate district consists of three Assembly districts. The ruling does not affect congressional maps, which also were redrawn to benefit Republicans in 2011.

The judges did not determine how to fix the maps, writing that would be decided in the coming months after the state and the Democrats who brought the lawsuit offer proposals. It's possible the judges would establish a new set of maps or require lawmakers to redraw them.

"The court has declared the maps unconstitutional. That's a victory for democracy because the people of Wisconsin have not been able to elect a government that reflects their views for many years," said Sachin Chheda, a spokesman for the Wisconsin Fair Elections Project, a group that backed the lawsuit.

Assembly Speaker Robin Vos (R-Rochester) in a statement said the court had encroached on the Legislature's turf and adopted a flawed test to try to measure when partisanship goes too far in drawing districts.

"The state of Wisconsin has competitive legislative districts that meet every traditional principle of redistricting," Vos said in his statement. "Republicans win elections because we have better candidates and a better message that continues to resonate with the voters."

Schimel plans appeal

Republican Attorney General Brad Schimel said he would appeal, though the case will remain with the panel for the coming months.

The decision came two weeks after an election that gave Republicans their biggest majority in the Assembly since the 1956 election. They will begin the legislative session in January with 64 of the 99 seats.

Finding the maps unconstitutional were Kenneth Ripple, a senior judge with the Chicago-based 7th Circuit Court of Appeals, and U.S. District Judge Barbara Crabb of Wisconsin's Western District.

U.S. District Judge William Griesbach of the state's Eastern District dissented.

Ripple was appointed by Republican President Ronald Reagan, Crabb by Democratic President Jimmy Carter and Griesbach by Republican President George W. Bush.

Redistricting challenges in federal court are unusual in that they are initially heard by a panel of three judges instead of a single judge. Appeals go directly to the U.S. Supreme Court, without making a stop at an appeals court.

The Supreme Court is one member short because of the February death of conservative Justice Antonin Scalia, but it may have a ninth member by the time the Wisconsin case gets there. If the high court were to deadlock, the panel’s decision would hold and new maps would have to be drawn.

After each census every 10 years, states must redraw their legislative and congressional maps to account for shifts in population. Republicans controlled all of Wisconsin's government in 2011 and they used their power to draw maps that favored them, hiring attorneys and consultants to maximize their opportunities.

Skewed maps

The 2012 and 2014 elections showed that the maps for the Wisconsin Assembly are some of the most heavily skewed maps in the country going back more than 40 years.

The judges noted in Monday's ruling that Democrats got more votes than Republicans in Assembly races in 2012, but Republicans were able to claim 60 of the 99 seats.

That happened because blocs of Democratic voters had been packed into districts instead of scattered into competitive districts. That resulted in Democrats casting a large number of "wasted votes" — that is, votes that are not needed to elect a candidate.

The judges found Republicans had gone overboard in taking partisanship into account in drawing the maps, thus violating the free association rights and the guarantee of equal protection under the law. The judges noted Republicans created a special measure to calculate the likelihood they would win particular districts and labeled maps they drew that benefited Republicans as "assertive" and "aggressive."

"When the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view," they wrote. "The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic."

A majority of the U.S. Supreme Court has said that maps can be so partisan that they violate voters' rights, but the justices have not been able to agree on a standard for measuring when maps amount to improper political gerrymandering and should be thrown out.

The panel in Wisconsin adopted a test proposed by the plaintiffs to measure wasted votes as a way to determine when maps are too partisan.

In dissent, Griesbach wrote the test was not significantly different from other ones the U.S. Supreme Court has rejected.

"The Supreme Court heard this same story in 1986. It was unmoved," he wrote. "In 2004 the Court rejected a similar claim, and the reasons the Justices cited only twelve years ago apply with equal force now."

Sen. Bob Wirch (D-Kenosha) praised the decision, saying Republicans had been unfair and wasted taxpayer money when they drew maps to their advantage.

"It was win at all costs," Wirch said.