U.S. Supreme Court to hear Wisconsin's redistricting case but blocks redrawing of maps

Patrick Marley | Milwaukee Journal Sentinel

Show Caption Hide Caption JS OnPolitics, 6.15.17: Redistricting headed to Supreme Court Washington Bureau Chief Craig Gilbert discusses the possibility of a Wisconsin redistricting case being taken up soon by the U.S. Supreme Court.

MADISON — The U.S. Supreme Court agreed Monday to hear a case that found Wisconsin Republicans overreached in 2011 by drawing legislative districts that were so favorable to them that they violated the U.S. Constitution.

In a related ruling Monday, the high court handed Republicans a victory by blocking a lower court ruling that the state develop new maps by Nov. 1. Democrats and those aligned with them took that order as a sign they could lose the case.

The case is being watched nationally because it will likely resolve whether maps of lawmakers' districts can be so one-sided that they violate the constitutional rights of voters. The question has eluded courts for decades.

RELATED: At heart of landmark Supreme Court case: a gerrymandered map that has helped lock in huge legislative majorities for Wisconsin GOP

EDITORIAL: Supreme Court should rein in partisan redistricting

The court's ultimate ruling could shift how legislative and congressional lines are drawn — and thus who controls statehouses and Congress.

"This is a blockbuster. This could become the most important election law case in years if not decades," said Joshua Douglas, a University of Kentucky College of Law professor and co-editor of the book "Election Law Stories."

A panel of federal judges ruled 2-1 last fall that Wisconsin lawmakers had drawn maps for the state Assembly that were so heavily skewed for Republicans as to violate the voting rights of Democrats. The judges ordered the state to develop new maps by November.

GOP Attorney General Brad Schimel appealed to the Supreme Court in February. In a one-sentence order Monday, the high court said it would hold arguments on the case.

In a second order, the Supreme Court on a 5-4 vote granted a request from Schimel to block a requirement that Wisconsin draw new maps by Nov. 1.

Blocking the requirement to draw new maps were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch. Voting against the stay were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

That ruling "might be (a) signal" as to how the court splits when it gets to the merits, according to a Twitter post made by Marc Elias, a high-profile Democratic lawyer. Elias is not involved in the Wisconsin case.

Agreeing with that assessment was Rick Hasen, a professor who specializes in election law at the University of California, Irvine.

“The grant of stay makes it considerably less likely the court will rein in partisan gerrymandering via WI case,” he wrote on Twitter.

But those who brought the case said they believed they still had a strong chance of winning.

Both sides will be pitching their arguments to Kennedy. He has written that maps can be so partisan that they violate voters' rights, but that a standard has not been developed that courts can use to measure when maps should be thrown out because they result in unconstitutional political gerrymandering.

"Justice Kennedy is the big question mark here," said Douglas.

The justices will likely hear arguments in October, according to the plaintiffs. A ruling will come sometime between late 2017 and June 2018.

At its heart, the case is about whether Republicans went too far in drawing their maps in 2011. The maps have allowed them to lock in huge majorities in the Assembly and state Senate. With Gov. Scott Walker leading Wisconsin, Republicans have enjoyed complete control of state government since the maps went into effect in 2012.

The panel of federal judges found the Assembly districts 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."

The case could have national implications. If the Supreme Court sides with the lower court, the out-of-power party in states across the country — whether Republican or Democrat — would have a new avenue for challenging maps.

Schimel's legal team argued Republicans have a natural advantage in Wisconsin because Democrats tend to cluster in Milwaukee, Madison and other urban areas. The court said that tendency did not entirely account for how one-sided the maps are.

"As I have said before, our redistricting process was entirely lawful and constitutional, and the district court should be reversed," Schimel said in a statement.

William Whitford, a Democratic activist who is the lead plaintiff, called the maps undemocratic. They are so lopsided that many Democrats have given up even trying to compete in legislative races, he said.

“Partisan gerrymandering of this kind is worse now than at any time in recent memory," Whitford's attorney, Paul Smith of the Campaign Legal Center, said in a statement. "The Supreme Court has the opportunity to ensure the maps in Wisconsin are drawn fairly, and further, has the opportunity to create ground rules that safeguard every citizen’s right to freely choose their representatives.”

But Walker, who signed the maps into law in 2011, argued at a stop in Wausau that Republicans had been winning legislative races not because of the maps but because "common-sense conservative reform works," according to WSAW-TV.

The lower court decision came in November, two weeks after Republicans gained their biggest Assembly majority since the 1956 election. They hold 64 of 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 Supreme Court, without making a stop at an appeals court.

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.

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 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, the court found. 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 lower court ruling focused on the Wisconsin's 99 Assembly seats, but redrawing those districts also would likely alter the state Senate map. That’s because each Senate district consists of three Assembly districts.

The ruling did not affect congressional maps, which also were redrawn to benefit Republicans in 2011. If the Supreme Court ultimately sides with the plaintiffs, the new standards for drawing districts would also apply to congressional maps.