Saturday, 18 November 2023 09:05

Wisconsin’s Legislative Maps Are Bizarre, but Are They Illegal?

Any number of odd, zigzag examples can be used to make the case that legislative districts in Wisconsin are excessively gerrymandered.

There’s the pistol-shaped 31st Assembly District, held by a Republican, that was drawn with a western border that splits the Democratic city of Beloit in two.

There’s suburban Milwaukee’s 14th Assembly District, which stretches south, then east, then southwest, then east and again south, isolating Democrats and thereby limiting the Democratic vote in neighboring districts held by Republicans.

And in the northwest corner of the state, there’s the 73rd Assembly District, which resembles a Tyrannosaurus rex after a remap wiped out a reliable bloc of Democrats and added more rural conservative areas. The result: After 50 years of Democratic control, a Republican won in 2022.

Yet when the Wisconsin Supreme Court hears arguments next week in a widely watched lawsuit arguing that the existing maps fail to meet standards set out in the state constitution, that kind of political engineering will not be the focus.

Instead, much of the debate will center on exactly how to interpret the word “contiguous.” And the map shapes that are likely to get attention have elicited comparisons to Swiss cheese.

Fifty-five of the state’s 99 Assembly districts and 21 of 33 in the Senate contain “disconnected pieces of territory,” according to the most recent petition filed with the state Supreme Court by 19 Wisconsin voters. The suit seeks to have the state’s maps declared unfair and redrawn.

Some sections of the state’s maps “look like a 2-year-old drew them,” said Democratic Rep. Jodi Emerson, who represents the city of Eau Claire in northwestern Wisconsin.

In the interior of her district, the 91st, sits a free-floating chunk that actually belongs to the turf of the adjacent lawmaker, Republican Karen Hurd.

68th and 91st Districts

Wis.

Eau Claire

68th District

91st District

Washington

This island, part of the Town of Washington, is in the Republican-held 68th Assembly District but is surrounded by the city of Eau Claire in the Democratic-held 91st Assembly District.

A larger map of the Eau Claire area shows a purple area labeled 68th District and an orange area labeled 91st District. An inset map zooms in on a small section of the larger map where an island of the purple 68th District is surrounded by the orange 2nd District.

Wis.

Eau Claire

68th District

91st District

Washington

Washington

This island, part of the Town of Washington, is in the Republican-held 68th Assembly District but is surrounded by the city of Eau Claire in the Democratic-held 91st Assembly District.

That may seem odd, but what is often left unsaid in discussions of Wisconsin maps is that the islands are not random parcels created by mapmakers to advantage Republicans at the behest of a Republican legislature. Rather, the irregular blobs largely follow municipal maps that reflect the history of Wisconsin cities and villages adding to their tax base by annexing bits of land in nearby areas. The practice often leaves towns with irregular maps and legislative districts with holes and satellites.

The plaintiffs, who are Democratic voters, claim that the legislative district boundaries violate Article IV, Section 4 of the state constitution, which says Assembly members must be elected from districts consisting of “contiguous territory.”

But the same section of Article IV also requires that Assembly districts “be bounded by county, precinct, town or ward lines.”

Senate districts, which are each made up of three Assembly districts, are governed by Section 5. It says they must consist of “convenient contiguous territory.”

So, which trumps which? Contiguity or municipal lines?

"This is the only case I’m aware of where contiguity has been the focus of a challenge,” said University of Colorado Law Professor Doug Spencer, an expert in redistricting. “This could give the new Supreme Court in Wisconsin a way to overturn the maps on neutral grounds."

Much is at stake. The case could decide the future of Wisconsin state politics, with possible ramifications for such hot-button issues as abortion and voting rights.

One election law expert, after reviewing the constitution, saw the Senate language as more straightforward to challenge. Section 5 does not mention a need for Senate maps to be bounded by any kind of government or municipal lines. It only mentions contiguity.

That language is “more of a slam dunk” for the plaintiffs, said Michael McDonald of the University of Florida’s political science department, where he studies mapping issues.

GOP legislators who oppose the suit argue in one legal brief that insisting all parts of a district must physically touch flouts prior court rulings and “is absurd and unworkable.”

Marooned on a Voting Island

The U.S. Supreme Court ruled in 1964 that state legislative districts should have roughly equal populations, while federal law prohibits drawing lines that dilute the voting power of minorities. In addition to those parameters, states have adopted their own principles, which frequently include keeping districts contiguous.

The rationale behind contiguity is to create local districts where lawmakers live near and share common concerns with their constituents.

Contiguous means “you can draw a district without ever having to lift up your pencil,” Spencer explained.

But that’s not Wisconsin’s method.

According to the legal complaint, the majority of Wisconsin’s Assembly districts are noncontiguous — each consisting of between two and 40 disconnected pieces of territory. Two-thirds of the state’s Senate districts are noncontiguous — each with between two and 34 disconnected pieces.

Consider just a few of the Assembly districts referenced in the case.

2nd and 88th Districts

The 88th District, which features eastern sections of Green Bay as well as more rural areas, includes two detached islands surrounded by the 2nd District. Those islands correspond to the boundaries of two towns. The islands don’t seem to benefit either party. Both districts are represented by Republicans.

A larger map of the Green Bay area shows a purple area labeled 88th District and an orange area labeled 2nd District. An inset map zooms in on a small section of the larger map where two islands of the purple 88th District are surrounded by the orange 2nd District.

Wis.

Green Bay

88th District

2nd District

De Pere

Ledgeview

Rockland

The purple islands are in the 88th District and are part of the towns of Ledgeview and Rockland. Both islands are surrounded by the 2nd District and the Fox River.

Fox River

A larger map of the Green Bay area shows a purple area labeled 88th District and an orange area labeled 2nd District. An inset map zooms in on a small section of the larger map where two islands of the purple 88th District are surrounded by the orange 2nd District.

Lake
Michigan

Wis.

Green
Bay

88th District

2nd District

De Pere

Ledgeview

Rockland

The purple islands are in the 88th District and are part of the towns of Ledgeview and Rockland. Both islands are surrounded by the 2nd District and the Fox River.

Fox River

48th and 79th Districts

In Dane County, the Town of Burke is made up of disjointed tracts, resulting in noncontiguous boundaries for the town. Tiny portions of the town are in two different Assembly districts, both held by Democrats.

A larger map of the Madison area shows a purple area labeled 48th District and an orange area labeled 79th District. An inset map shows a zoomed-in area of the larger map, where a small island of the orange 79th District is surrounded by the purple 48th District. Two houses and a manufacturing plant are labeled within the orange island.

Wis.

79th District

48th District

Lake
Mendota

Madison

Houses

Manufacturing

plant

Two houses and a manufacturing plant make up an island that belongs to the 79th District but is surrounded by the 48th District.

A larger map of the Madison area shows a purple area labeled 48th District and an orange area labeled 79th District. An inset map shows a zoomed-in area of the larger map, where a small island of the orange 79th District is surrounded by the purple 48th District. Two houses and a manufacturing plant are labeled within the orange island.

Wis.

79th District

48th District

Lake
Mendota

Two houses and a manufacturing plant make up an island that belongs to the 79th District but is surrounded by the 48th District.

Lake
Monona

Houses

Manufacturing

plant

Madison

3rd and 5th Districts

It’s not unusual to see district maps that include islands so small they encompass a block, a few homes or even a single residence. In Outagamie County, boundary lines for the Town of Buchanan create a one-house-wide hole in the Republican district that contains the rest of the city of Kaukauna.

A larger map of the Appleton area shows a purple area labeled 3rd District and an orange area labeled 5th District. An inset map shows a zoomed-in area of the larger map, where a small island of the purple 3rd District is surrounded by the orange 5th District. The purple island is labeled “one house.” City labels indicate that the purple island is part of the town of Buchanan and the orange area is part of the city of Kaukauna.

Wis.

5th District

Kaukauna

Appleton

Buchanan

3rd District

One house

A lone house is technically in the Town of Buchanan, making it part of the 3rd District, even though it is surrounded by the 5th District.

A larger map of the Appleton area shows a purple area labeled 3rd District and an orange area labeled 5th District. An inset map shows a zoomed-in area of the larger map, where a small island of the purple 3rd District is surrounded by the orange 5th District. The purple island is labeled “one house.” City labels indicate that the purple island is part of the town of Buchanan and the orange area is part of the city of Kaukauna.

Wis.

5th District

Buchanan

Appleton

Kaukauna

3rd District

One house

A lone house is technically in the Town of Buchanan, making it part of the 3rd District, even though it is surrounded by the 5th District.

Lake
Winnebago

47th District

The Town of Madison, which had noncontiguous boundaries and was part of the 47th Assembly District, ceased to exist in 2022 when it was absorbed by the cities of Madison and Fitchburg. Yet the resulting islands in the legislative district remain. The district is notable for its large number of people living in noncontiguous areas.

A map of the Madison area shows a sprawling orange area labeled 47th District. The boundaries of the district snake across the region and include at least a dozen islands that are completely separated from the main part of the orange area.

Wis.

The 47th District has more than a dozen islands, such as this one, with about 3,700 people spread across them.

Lake
Mendota

Lake
Monona

Madison

47th District

Fitchburg

A map of the Madison area shows a sprawling orange area labeled 47th District. The boundaries of the district snake across the region and include at least a dozen islands that are completely separated from the main part of the orange area.

The 47th District has more than a dozen islands, such as this one, with about 3,700 people spread across them.

Wis.

Lake
Mendota

Madison

Lake
Monona

47th District

Fitchburg

Lake
Waubesa

Population estimate based on analysis of census data by Marquette University Law School redistricting researcher John Johnson.

High Stakes on the Highest Court

Wisconsin’s maps have long been a contentious political topic, even becoming an issue earlier this year in a fiercely competitive race for a seat on the state Supreme Court, a contest that attracted tens of millions of dollars in campaign donations and outside spending.

The liberal-leaning candidate, Janet Protasiewicz, won, tipping the balance of the court to the left for the first time in 15 years. During the race, she expressed her support for legal abortion and her concern that the legislative maps were “rigged.”

One day after Protasiewicz’s Aug. 1 swearing-in ceremony, the group of Democratic voters filed suit, challenging the maps as “extreme partisan gerrymanders.” The high court declined to hear arguments about how the maps created a political advantage and, instead, narrowed the case to two arcane issues. One was “contiguity.” The other was “separation of powers,” centering on whether the prior Supreme Court overstepped its authority last year when it adopted the Legislature’s maps despite a veto by the state’s Democratic governor, Tony Evers.

When Protasiewicz and the liberal majority decided in favor of hearing the case, conservatives on the court didn’t hide their displeasure.

“Redistricting should not be an annual event,” griped Chief Justice Annette Kingsland Ziegler in a written dissent. She added that the decision to focus solely on contiguity and separation of powers, which are state Constitutional issues, was “an attempt to dodge appellate review.”

Another justice, Rebecca Grassl Bradley, expressed her dismay with the case by liberally citing Lewis Carroll’s “Alice’s Adventures in Wonderland” and its sequel.

“Through the Looking Glass we go,” she wrote of what she considered to be a purely political, madcap exercise.

As the court date approaches, Republican legislators have been calling for Protasiewicz’s impeachment, claiming she’s biased. But she has said she won’t prejudge the issue and won’t recuse herself.

So far, Republicans haven’t acted on the impeachment threat. But even talk of such an extreme measure shows how significant the maps’ case is.

If redrawn, districts could become more competitive and less safe for incumbents — perhaps changing the power balance in the state capital. Republicans could lose complete control of the Legislature or, even if they retain power, lose their opportunity to gain a supermajority that would allow them to override Evers’ vetoes. A weakened state GOP could also be less helpful in 2024 to any Republicans who seek to again dispute presidential election results in Wisconsin, a swing state.

John Johnson, a Marquette University researcher who studies redistricting, noted that, ironically, it was Democrats who favored noncontiguous districts three decades ago.

Back then, maps drawn under the oversight of a Democratic legislature had created islands. Wisconsin Republicans at the time favored the dictionary definition, embracing “literal contiguity,” according to a key 1992 federal redistricting case that has been cited in the current controversy.

A federal three-judge panel, considering broader issues, didn’t endorse the islands but tolerated them, noting that the distance in the Democratic plan between the towns and the islands was slight.

The court held that “compactness and contiguity are desirable features in a redistricting plan,” but “only up to a point.”

Reaching “perfect contiguity and compactness,” the judges feared, would require “breaking up counties, towns, villages, wards and even neighborhoods.”

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