When lawmakers in Wisconsin convened their 2011 legislative session, Republicans controlled the state’s Assembly, Senate and governor’s office for the first time in decades.
The timing couldn’t have been more perfect for the party, which saw an opportunity to dominate state government for the next decade or more. The U.S. Census had just wrapped up its decennial population count and the legislature was ramping up to draw the state’s new congressional and political maps. This time, they controlled the entire process.
And so Republican legislators met with lawyers and exchanged emails that discussed packing Democratic voters into a few urban districts while spreading other groups of Democrats thinly across the state, setting up a majority of districts Republicans could win. The maps were drawn and signed by Wisconsin Gov. Scott Walker.
And then the lawsuits came.
Democratic voters alleged lawmakers had gerrymandered the state’s maps: drawing them in a way that gave an unfair advantage to one political party over another. Legislators tried to cover their tracks, but the courts were still able to find ample evidence that there were, in fact, political motivations behind the process.
Then, last year, a federal court struck down Wisconsin’s maps on that basis, and now the case has made it all the way up to the United States Supreme Court, which is hearing oral arguments on the case Tuesday. That case, Gill v. Whitford, could be one of the most significant the court hears all year, in part because the justices’ decision will have political implications far beyond Wisconsin.
As the first partisan gerrymandering case before the Supreme Court in more than a decade, the Wisconsin case is also the first time the nation’s highest could strike down maps because of the role partisanship plays in the process. With the 2020 U.S. Census ramping up and officials preparing for their next round of redistricting, Minnesota legislators and redistricting experts are closely watching the outcome. Proponents say it could block gerrymandering from the state’s redistricting process long into the future. But others are worried it could lead to a never-ending string of lawsuits.
“I’m going to have my popcorn and sit down and watch it,” said Republican Rep. Sarah Anderson, who led the committee that drew redistricting maps in Minnesota back in 2011. “I’m one of the few people who are really interested in this, but it could have huge implications for us.”
Will the court establish a standard?
In Wisconsin, the political effects of the 2011 process can already be seen. After the new maps were passed, Republicans won 60 of the 99 seats in the state Assembly in the 2012 election, despite the fact that they carried only 47 percent of the vote. Then they picked up more seats in the subsequent two elections, bringing with them all new conservative policies, from abortion restrictions to union busting.
Democratic voters, who are the plaintiffs in Gill v. Whitford, hope the evidence is clear enough to make the court reconsider wading into state redistricting battles. In 2004, the court heard a similar case, in which Democratic voters in Pennsylvania argued they were disenfranchised by the state’s maps because they were overly partisan. At the time, the court said it was not their role to make or alter maps, a power that was given to state Legislatures in the U.S. Constitution.
The court was divided. Justice Anthony M. Kennedy wrote that while there was no ‘‘workable standard’’ for striking down a redistricting plan on the basis of partisanship at the time, he left the door open to reconsidering his opinion if one emerged. In the years that followed the ruling, powerful tools and formulas emerged to not only manipulate maps for political gain, but also to calculate political advantages for parties.
That includes the efficiency gap, a simple formula that shows one party’s advantage over another in a district. The gap was use in federal court in the Wisconsin case, showing a clear Republican advantage that guaranteed “the number of Republican seats would not drop below 50 percent,” according to the ruling.
“The court really has never gone that far,” said Eric Magnuson, a former Minnesota Supreme Court chief justice who was an attorney for the Republican-controlled Legislature during the last redistricting process. “The plaintiffs hope this is a case where the Supreme Court will come out with a test.”
If the Supreme Court agrees with the lower court decision, the efficiency gap equation could become the standard test for political maps in states across the nation, including Minnesota. “I think that would be healthy for our democracy if we had some more guidelines and standards,” said Rep. Jennifer Schultz, DFL-Duluth, who has followed redistricting discussions in Minnesota.
But Anderson fears a ruling in favor of the Democratic voters in Wisconsin would create a situation in Minnesota where anyone from either party could easily mount a challenge to the maps because their candidate didn’t win, she said.
“It would result in endless lawsuits,” Anderson said. “Anybody would be filing a claim to say my vote wasn’t counted because my candidate didn’t win. It’s going to have huge implications. You could constantly be holding elections based on new maps. They would have to set up a shop based on redistricting alone.”
According to the efficiency gap, Minnesota’s current maps have a one-seat Democratic advantage in congressional races and a slight Republican advantage in state House and Senate races, but not nearly enough to fall into gerrymandering territory. That’s at least in part because of Minnesota’s long history of divided government.
For the last five decades, the Minnesota governor has historically vetoed the maps sent by the Legislature (in the 1990s the legislative maps passed because Gov. Arne Carlson mistakenly allowed them to go into law without his signature). That’s kicked the process to the state courts every time, which has overseen the drawing of the maps in lieu of a political agreement.
But that might not always be the case. Schultz has introduced a bill that would establish an independent redistricting commission made up of retired judges who would travel the state and draw the state’s political maps. If they can’t agree, only then would the process be sent back to the Legislature. Schultz said this would take the conflict and partisanship out of legislators drawing their own political districts.
“Since 1970, redistricting usually goes to the Minnesota Supreme court because we can never agree,” Schultz said. “That litigation is expensive and time consuming.”
The bill hasn’t gained much traction in the Republican-controlled Legislature, and Anderson has her own bill to make sure the process stays in the hands of the Legislature. She said independent commissions in other states have become corrupt and they are not accountable to the voters, like legislators. The bill would also set in law guiding redistricting principles that would prevent packing voters from one party in just a few districts.
“It’s crazy to me that we’ve gone this many years and not had this in place,” Anderson said. “When the Legislature does it and the people don’t like it, they can vote us out, but when we abdicate it to a commission the people don’t have the option to vote them out.”