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Wisconsin’s gerrymandering case and the fight for democracy

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Wisconsin’s gerrymandering case and the fight for democracy

Nov 22, 2023 | 6:13 am ET
By Ruth Conniff
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Wisconsin’s gerrymandering case and the fight for democracy
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Cheryl Maranto of North Shore Fair Maps addresses a rally at the Capitol during oral arguments on Wisconsin's gerrymandered voting maps | Wisconsin Examiner photo

Tuesday was a historic day in Wisconsin. As the state Supreme Court took up a long-awaited gerrymandering case, the Capitol was filled with a cacophonous din. In the rotunda, big screens broadcast the oral arguments from inside the Supreme Court chamber at high volume for public viewing. Simultaneously, on the other side of the marble hall, fair maps advocates held a rally in front of a gaggle of TV news cameras.

Former state Sen. Tim Cullen addresses a fair maps rally in the Capitol during oral arguments on Wisconsin's gerrymandered voting maps | Wisconsin Examiner photo
Former state Sen. Tim Cullen addresses a fair maps rally in the Capitol | Wisconsin Examiner photo

“This is kind of like life imitating politics. You need a big voice to not be drowned out,” Cheryl Maranto, the director of North Shore Fair Maps, shouted into the mic.

As the Supreme Court justices peppered attorneys for both sides with questions about the technical details of redistricting, the advocates standing outside the courtroom described the real-world effects of Wisconsin’s worst-in-the-nation partisan gerrymander.

Tim Cullen, the former Democratic majority leader of the Wisconsin State Senate, stood in front of a rally-goer holding a sign that declared “old white guy for democracy.” 

“People are so unhappy with government in Wisconsin, with government in Washington,” Cullen said. “They say, ‘Why can’t they work together?’”

Partisan gerrymandering effectively eliminates any incentive to work across the aisle, he explained. The only fear for candidates sitting in a safe red or blue seat is a challenge from within their own political party. “That’s what legislators in gerrymandered seats worry about – the primary,” Cullen said.

“It’s not in their self-interest to work with the other party,” he added, “even though it’s the right thing for Wisconsin and the right thing for the nation.”

Pat Raes, president of SEIU Healthcare Wisconsin
Pat Raes, president of SEIU Healthcare Wisconsin | Wisconsin Examiner photo

Pat Raes, president of SEIU Healthcare Wisconsin and a practicing nurse, described the “tragic consequences” for her patients of a Legislature that “disregards the will of the people.”

“In my hospital, many patients suffer from extreme medical debt simply because they do not have access to insurance,” she said. Yet Wisconsin is one of only 10 states that rejected the federal Medicaid expansion, “taking away health care for over 90,000 Wisconsinites.”

“Wisconsin Republicans have made it clear they do not care about the health of Wisconsinites,” Raes said.

Nor do they care about a lot of other things the public wants, Maranto added. “We want Medicaid expansion, but our Legislature says no,” she said. “We want fully funded public schools, but our Legislature says no. We want women to have full access to the full range of reproductive care and for us to have control over our own bodies, but our Legislature says no.”

“Winning this case is not enough,” Maranto declared. “We need to keep fighting to enshrine fair, nonpartisan independent redistricting in our constitution.”

Inside the courtroom, as Henry Redman reports, conservative justices and attorneys for the Legislature argued strenuously that respect for legal precedent requires Wisconsin to continue to endure the rigged voting maps that keep Republicans in power.

The defendants and their allies on the bench made it sound like some kind of political dirty trick that voting rights advocates chose to bring their lawsuit so soon after Wisconsin voters ousted the Court’s former conservative majority.

“By reopening this case what does that do to the rule of law in Wisconsin and what does that do to the integrity of this Court?” Justice Rebecca Bradley asked Rick Esenberg of the right-wing Wisconsin Institute for Law & Liberty.

Conservative justices can’t get over the fact that the voters put two liberal women on the bench in the last two Supreme Court elections, each time by a same slam-dunk 11 point margin. And after more than a decade of enjoying a friendly forum, Republicans and their allies are shocked and outraged that voting rights advocates are seeking redress from a Court the conservatives no longer control.

Overnight, they’ve become zealous converts to the doctrine of stare decisis — a term Esenberg brought up repeatedly Tuesday — warning that upending the current maps will dangerously upend precedent. 

The current lawsuit will “do nothing but create perpetual uncertainties in the state of Wisconsin,” said Justice Brian Hagedorn, who expressed no such qualms about the U.S. Supreme Court wiping away a half-century of precedent when it overturned Roe v. Wade, or the uncertainty it created for women in Wisconsin who could no longer count on their doctors to intervene when they developed life-threatening complications during pregnancy. 

Give Hagedorn credit, though, he sided against former President Donald Trump’s lawless attempt to overturn the presidential election results in Wisconsin in 2020.

Not so Bradley. She supported Trump’s last-ditch effort to invalidate Wisconsin’s presidential votes. Yet she expressed outrage at the idea that, if Wisconsin’s current gerrymandered maps are overturned, some Wisconsin state senators would have to run again before their current terms have expired. 

Attorney Sam Hirsch, who represents a group of mathematicians who developed a balanced, nonpartisan map, reeled off the names of a half dozen cases all over the United States in which special elections were ordered because of lawsuits that forced changes to voting maps. “This is not at all an extraordinary remedy in cases such as this,” he said.

The alternative is to maintain a map for another election cycle that has so distorted the shapes of voting districts that far-flung “islands” are incorporated into non-adjacent communities just for voting purposes. 

“We have 12 contiguous Senate districts. They’re currently represented by six Democrats and six Republicans,” said Hirsch. “We have 21 noncontiguous Senate districts, and they’re currently represented by five Democrats and 16 Republicans.”

“This relationship is not coincidental,” he added dryly.

In 2018, despite winning every single statewide race and 53% of the votes cast for state Assembly, Democrats were only able to garner 36% of Assembly seats. After the 2020 census, the Republican legislative majority passed new maps retaining their gerrymandered advantage, despite a massive outpouring by citizens from all over the state, who came to the Capitol to testify overwhelmingly in support of fair maps.

Evers vetoed that next round of gerrymandered maps. Then the Wisconsin Supreme Court imposed them on us anyway, adhering to a “least change” standard invented by the Court that ensured the new maps are virtually identical to the old ones.

This is the precedent Esenberg and Justices Bradely and Hagedorn are so concerned about protecting — a 2-year-old decision that solidified an extreme partisan gerrymander from 2010. The GOP-tilted districts the Legislature drew back then completely reworked the prior map. But the Court ruled that the clock had to stop in 2010, when Republicans controlled both the Legislature and the governor’s mansion and drew themselves into an election-proof majority. Talk about selective respect for precedent. 

No wonder voters are fed up.