Should Evers sign or veto the voting maps the Legislature gave him?

Democrats and democracy advocates in Wisconsin are divided over what Gov. Tony Evers should do now that Republicans in the Legislature have approved the exact voting maps Evers advocated. Evers has until Tuesday to sign or veto the maps.

If he signs them, as he said he would if the Legislature really gave him his own, unaltered plan, the redistricting case before the Wisconsin Supreme Court will be over.

That’s great news, according to Common Cause, the League of Women Voters and the Wisconsin Democracy Campaign, among other fair maps advocates who issued ecstatic press releases celebrating the end of Wisconsin’s worst-in-the-nation partisan gerrymander and urging Evers to sign the new maps.

But in the Legislature, Democrats overwhelmingly refused to join the party. As Baylor Spears reported, only a single Democrat in each chamber voted for the Republicans’ hasty effort to ratify Evers’ redistricting plan.

The Dems are certain that Assembly Speaker Robin Vos, like Voldemort, is only pretending to be defeated and that accepting fair maps is just part of his devious plot to rise again.

“If you believe that WI Republicans are planning to run on Gov. Evers’ maps in November, I have a bridge in Brooklyn to sell you,” Sen. LaTonya Johnson (D-Milwaukee) tweeted, expressing a widely shared sentiment on her side of the aisle.

And it’s not just the traumatized members of Wisconsin’s Democratic super-minority in the state Capitol who suspect the bipartisan fair maps deal is too good to be true.

“Count me among the skeptical,” tweeted DC-based lawyer Marc Elias shortly before the vote. Elias is the founder of Elias Law Group, a self-described “mission-driven firm committed to helping Democrats win, citizens vote, and progressives make change.” He has worked on hundreds of cases involving politics, voting rights and redistricting and successfully argued several of them before the U.S. Supreme Court. “The GOP never gives up power without a fight,” Elias added on X. “Just look at Alabama, Louisiana, etc. Let the court draw the map.”

Count me among the skeptical. The GOP never gives up power without a fight. Just look at Alabama, Louisiana, etc.

Let the court draw the map.https://t.co/jNDQtnkwjg

— Marc E. Elias (@marceelias) February 9, 2024

U.S. Rep. Mark Pocan, a progressive Democrat who maintains an unlikely friendship with Vos, the most powerful Republican in the state, is also sure Vos is up to something. Skeptics such as Pocan are convinced that Vos’ smirking concession speech on the floor, claiming that he is giving Evers a big “win,” and that “whether we like it or not, Wisconsinites hopefully will have new maps in November,” was just a cover for the GOP plan to get a political ally to challenge the new maps and tie them up in court so they can’t take effect.

According to this theory, Republicans are laying the groundwork for a legal challenge before a three-judge panel appointed by conservative former Wisconsin Supreme Court Justice Diane Sykes, now chief judge of the 7th Circuit Court of Appeals. The panel doesn’t even have to agree with the challenge, which, as a federal matter, would likely be based on the Voting Rights Act; according to this theory conservative judges could help the Republicans just by sitting on the case until it’s too late for new maps to take effect in 2024.

Of course, Republicans and their allies could also mount a legal challenge to any map chosen by the Wisconsin Supreme Court. They could take such a challenge directly to the U.S. Supreme Court, or to the 7th Circuit, or both.

Lawyers involved in the Wisconsin redistricting case told me on background that they believe bipartisan maps created through the normal process — passed by the Legislature and signed by the governor — are much more likely to survive a legal challenge than a map imposed by the Wisconsin Supreme Court.

Jay Heck of Common Cause Wisconsin agrees. “I understand the frustration and lack of trust,” he said of Democrats who are skeptical of a party that has drawn itself a two-thirds legislative majority in a 50/50 state, shown contempt for democratic processes and turned a deaf ear to Wisconsin citizens on issue after issue — including fair maps.

But a map passed by the Legislature and signed by the governor “has more force of law and certainty,” than a court-drawn map, Heck says.

Heck and other fair maps advocates see the Evers maps as extremely fair. Republicans may well have decided they prefer them to the other options submitted to the Supreme Court, which are slightly more favorable to Democrats.

A Marquette University Law School analysis of 2022 election results using Evers’ maps shows they would likely reduce Republicans’ 64-35 Assembly majority to 53-46 and allow Democrats to win 16 seats instead of 11 in the 33-seat,Republican-dominated Senate — just one seat shy of a majority. That, along with many competitive races for incumbents, could mean a new day for Wisconsin.

If Wisconsin really does get these maps, it will strike a big blow against minority rule. Most people who have been struggling against our state’s extreme Republican gerrymander would be happy with that.

The question is, can we trust that it will really happen?

No matter what, Republicans will keep fighting to hold onto power. But the experts I spoke with (not including Elias, who didn’t respond to my requests for comment) agreed that Republicans don’t have a better shot at actually blocking change if Evers signs the maps. Instead, I heard a lot of forceful arguments that a court-imposed map is more vulnerable to challenge and repeal.

While Evers’ maps have been carefully vetted to comply with the Voting Rights Act, no one knows what the justices on the U.S. Supreme Court would make of the conflict of interest claim Republicans and their allies have lobbed at Wisconsin Supreme Court Justice Janet Protasiewicz who, they say, should not be involved in redistricting because of the financial support she received from the Democratic Party, which has a keen interest in the maps.

And, as one lawyer told me, while Diane Sykes is very conservative, that doesn’t mean she would be willing to carry water for the Republicans in a Voting Rights Act case that has no merit. In general, courts are less likely to want to overturn a map that’s been ratified by two branches of government than one that, in a novel process, was created by the state Supreme Court.

There is also the short-term question of when the maps will go into effect. The bill passed by the Legislature delays their implementation until after a special election to replace Sen. Lena Taylor (D-Milwaukee) and a primary challenge to Vos himself. Democrats in the Legislature leapt on that delay (along with a rushed process and lack of public hearings) as one more reason for distrust.

But there is a pretty clear path to undo the delay. Since the Court has declared the current maps unconstitutional, the Wisconsin Elections Commission will likely seek guidance and the same justices are likely to rule that the new maps must go into effect immediately.

“People are really tense right now. But in two weeks it will be fine,” says Heck.

I hope he’s right. It would be naive to expect an end to partisan war and politically motivated court challenges in Wisconsin. But talking to the experts, I was persuaded that the risk is no greater if Evers signs the maps.