Category Archives: redistricting

“Gov. Tony Evers signs new election maps, ending Wisconsin Republicans’ grip on legislative power”

Milwaukee Journal-Sentinel:

 Wisconsin Republicans lost their more than decade-long grip on control of the state Legislature Monday after Democratic Gov. Tony Evers signed into law new electoral maps that reshape down-ballot races in this battleground state.

Evers signed a bill put forward by GOP lawmakers last week implementing new legislative maps the Democratic governor drew himself that dramatically weaken the advantages Republicans have enjoyed each election cycle since 2011….

The 99 Assembly districts proposed by Evers are about evenly split between Republican and Democratic-leaning districts. Forty-five districts are more Democratic than Republican, and 46 districts are more Republican than Democratic.

That leaves eight districts that are more likely to be a toss-up between Democrats and Republicans.

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“A Redistricting Surprise in New York: A Map That Plays Few Favorites”

NYT:

When New York’s top court ordered the state to redraw its congressional map late last year, the state’s ruling Democrats were widely expected to exploit the opening to aggressively reshape district lines in their favor.

But on Thursday, a bipartisan state commission created to guide the redistricting process overwhelmingly approved a new proposed map that looks a lot like the current court-drawn map that helped Republicans pick up seats in 2022.

The panel’s 9-to-1 vote now thrusts a politically and legally thorny choice on the state’s Democratic-led Legislature. It can rubber-stamp the compromise, dashing the hopes of Representative Hakeem Jeffries and other Democrats in Washington, or reject it and risk ending up back in court by pushing for more favorable lines.

The answer could have far-reaching consequences for the national fight for control of the House this fall, where New York’s swing seats alone could be enough to tip the contest.

The commission’s map includes modest tweaks that would help Democrats flip one seat in Syracuse, and would most likely make a pair of vulnerable incumbents — one Democrat and one Republican — safer in the Hudson Valley.

But it does not touch lines on Long Island or in Westchester County, both major suburban battlegrounds where Democratic campaigns were looking for a leg up, or on Staten Island, where the party has long coveted a right-leaning seat. Even subtle shifts in those areas could have made a handful of Republican-held seats virtually unwinnable for incumbents in November.

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“Wisconsin Republicans vote to weaken their lock on the legislature”

Patrick Marley for WaPo:

Wisconsin Republicans approved maps Tuesday that would weaken their ironclad grip on the state legislature, backing new district lines supported by the Democratic governor out of fears that the state’s top court could impose ones that are even worse for them.

If approved by Gov. Tony Evers, the package would jettison what experts consider one of the country’s most gerrymandered set of maps in a state that has been one of the most competitive in presidential and other statewide races.

Republicans have known since last year that their majorities could face a severe blow, after liberals took control of the state Supreme Court following an expensive and bruising election for a pivotal seat.

“We kind of have a gun to our head, frankly,” state Sen. Duey Stroebel (R) said during the floor debate. After voting to approve the new maps, state Sen. Van Wanggaard, another Republican, compared his decision to choosing to be stabbed instead of guillotined.

Democrats, who had just secured one of their biggest wins in a decade, appeared no happier than Republicans. Nearly all of them voted against the maps and privately fumed over a missed chance to get a better deal….

Republicans were so alarmed by Protasiewicz’s victory and the prospect of losing their maps that they threatened to impeach her if she remained on the case. They backed off the idea weeks later, and Protasiewicz and the court’s other liberals issued a 4-3 decision in December striking down the maps.

The court urged Evers and the legislature to draw new maps and said it would impose ones that were politically neutral otherwise.

Of the proposals for new maps that court consultants have deemed viable, the ones by Evers provided the fewest gains for Democrats. Republicans on Tuesday decided to approve those maps.

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Digging in in the Badger State

Justin here. There’s an oddity in the most recent round of Wisconsin’s redistricting travails.  Democratic legislators (and later, the Democratic Governor) seem to be voting against an ostensible olive branch extended by the Republican legislative leadership.  And I wonder if that’s because the olive branch isn’t what it seems.

(Caution: deep dive ahead.  If you’re already all caught up on the backstory, jump ahead here.)

***

A (necessarily) brief recap: the redistricting fight in Wisconsin has been bitter.  On a strict party-line vote, the 2021 Republican-controlled legislature passed a legislative map vetoed by the Democratic Governor; the state Supreme Court drew “least-change” maps preserving the extreme partisan gerrymander of the previous decade.  In the 2023 campaign for a state Supreme Court seat, the maps’ bias was a campaign issue, and when Justice Janet Protasiewicz won the seat and refused to recuse from a new legal challenge to the maps, the legislature threatened impeachment.

Much of the commentary portrayed that legal challenge as a partisan gerrymandering case under the state constitution.  But though plaintiffs presented that issue, the state Supreme Court never agreed to hear it.  Instead, the court focused on whether the new map obeyed state constitutional requirements of contiguity, and held that the map failed to ensure that all the parts of each district were connected.  In selecting a remedy from among plans that otherwise satisfied state constitutional criteria, the court also announced that it would decline to put its judicial imprimatur on a plan designed to confer extreme partisan advantage — including “gerrylaundering” that just locked in the existing extreme bias of past cycles.

Parties — including the Governor — have now submitted remedial proposals, which have been evaluated by the court’s consultants on multiple fronts, including a measure of “majoritarian concordance” that tracks how often the districts translate a statewide majority vote to a majority of legislative seats.   The current map, and the remedial plan that the legislature submitted to the court, both do exceedingly poorly on this and other measures of bias: the extreme partisan gerrymanders do what they’re designed to do.  Several other submissions — including the Governor’s — fix the contiguity problem without nearly as much skew.  The court’s remedial decision is likely on its way.

***

The legislature has howled about purported process violations throughout this case.  But their recent filings also claim that all of the other remedial submissions violate the federal constitution.  (The claim is based on a theory of “disenfranchisement” inherent in redrawing maps when state Senate terms are staggered.  If half of the voters choose a Senator in 2020, 2024, 2028, … and half of the voters choose a Senator in 2022, 2026, 2030, … then a voter moved from a district on the 2020 path to a district on the 2022 path will have to wait until 2026 to vote for state Senate (in California, at least, this is known as “deferral”).  A bunch of states stagger state Senate elections in this way, and I don’t know of any case finding a constitutional problem in the deferral that results from redistricting.)  That includes the Governor’s map.

Now we get to the weird part.  A few weeks ago, the Republican legislature tried to short-circuit the court case by passing a plan they claimed was “99% of the way” to the Governor’s map (including the purported constitutional violation).  No Democrat voted for it, and the Governor vetoed it (in part because it tinkered with the Governor’s proposal, offering additional protection for some Republican incumbents).  The legislative leadership has now floated the possibility of the extra 1%, passing the Governor’s proposal as is (including the purported constitutional violation).  And still there seems to be Democratic resistance.

Why would the Republican legislature fighting tooth and nail for advantage suddenly try to pass a Democratic Governor’s plan that they claim is constitutionally infirm?  And why would Democrats vote against it? 

It’s possible that this is just belated resignation: the legislators think that the state Supreme Court is likely to impose an alternative worse for them than the Governor’s map, and are trying to limit their losses by taking the decision out of the court’s hands.  (And it’s possible that Democrats would rather take their chances with the court.)  That’s certainly Ockham’s razor.

But hat-in-hands enlightened conciliation isn’t quite this legislature’s style.  I can’t help wondering whether Professor Ackbar has it right.  Specifically, I wonder whether the unusual behavior might be explained in part by the prospect of forum-shopping. 

An equally bitter redistricting fight has been proceeding in Louisiana, where the legislature just passed a map to remedy a VRA violation, while vehemently protesting that the map was unconstitutional.  (The legislature’s claims were mostly rejected by the Fifth Circuit (!), following last year’s SCOTUS case from Alabama.)  A new set of plaintiffs has just picked up the legislature’s arguments, challenging that new map as unconstitutional.  But they didn’t file that objection in the ongoing federal case — they filed in a different federal district, drawing a three-judge court with a conservative majority.  (The legislature asserts that the court ordering the VRA remedy no longer has jurisdiction over the case now that a new map exists.)  The legislature has already successfully stalled relief for the VRA claim through the 2022 elections, and the new lawsuit appears to bait a hook for further stalling through 2024.

What does any of this have to do with Wisconsin?  Well, if the state Supreme Court selects a map, refuting a fringe federal constitutional theory in the process, the natural avenue to contest that claim is to ask SCOTUS for relief.  That’d be a real longshot here.

But if the Governor signs a new map through the legislative process that resolves the state issues, the state Supreme Court case goes away.  And someone else would be free to forum-shop a federal constitutional claim in the Wisconsin federal district of their choice, with the remainder of a three-judge court appointed by Chief Judge Sykes of the 7th Circuit.  To be clear, I don’t think the ostensible constitutional objection has much merit.  But trying to sell two judges on a longshot claim — at least long enough to stall through the 2024 elections — may seem easier than trying to sell five of them.

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“Civil Rights Groups Secure Victory in LandmarkCase Challenging Racial Discrimination inLouisiana’s State Legislative Maps”

Release:

In a victory for fair maps, a federal court today ruled in favor of Louisiana voters, agreeing that the current state House and Senate district maps violate Section 2 of the Voting Rights Act.

The plaintiffs who challenged the state legislative maps — the Louisiana State Conference of the NAACP, Black Voters Matter Capacity Building Institute, and several individual voters — are represented by the American Civil Liberties Union, ACLU of Louisiana, Legal Defense Fund (LDF), law firm Cozen O’ Connor, and Louisiana attorneys Ron Wilson and John Adcock.

In its decision, the court condemned the packing and cracking of Black communities within the maps, emphasizing the importance of upholding the principles of equal representation for all citizens.

In response to these findings, the court has mandated remedial measures to rectify the discriminatory boundaries, ensuring that future elections reflect the true diversity of the Louisiana population. Today’s decision reinforces the importance of protecting every citizen’s right to vote and ensures that electoral processes are fair, just, and free from discriminatory practices.

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“Partisan Gerrymandering Cases in State Supreme Courts in the 2020s Redistricting Round”

Jonathan Cervas, Bernie Grofman, Scott Matsuda, and Justine Kawa have posted this draft on SSRN. Here is the abstract:

After the U.S. Supreme Court opted out of any federal court role in policing partisan gerrymandering in its 2019 decision, Rucho v. Common Cause, if a redistricting plan was alleged to be a partisan gerrymander, that challenge needed to be brought in state courts. There are three possibilities: (a) a state supreme court could hold partisan gerrymandering claims nonjusticiable under state as well as federal law; (b) it could review a proposed map and find it unconstitutional; (c) it could review a map and reject the gerrymandering claim. Here, we focus on state court decisions that took place before the November 2022 elections in partisan gerrymandering claims regarding maps drawn for elections to the U.S. House of Representatives in the 2020s redistricting round. We are primarily interested in three issues: (1) How did state courts faced with a redistricting challenge based on a claim of partisan gerrymandering decide whether state law allowed them to address the factual aspects of the claim rather than treating the claim as non-justiciable? (2) If the court decided the claim was justiciable, what definition of partisan gerrymandering was used and, in particular, what kind of empirical evidence was cited by the justices – e.g., measuring the extent of gerrymandering via metrics based on election data, and/or evaluating maps in terms of the degree to which traditional good government criteria were satisfied, and/or considering the process of map drawing and what it implied about partisan intent? (3) Is there indirect evidence that the partisan predilections of the justices affected their decision about the constitutionality of a challenged congressional map?

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“A Partisan Solution to Partisan Gerrymandering: The Define–Combine Procedure”

Maxwell Palmer, Benjamin Schneer and Kevin DeLuca in Political Analysis. Abstract:

Redistricting reformers have proposed many solutions to the problem of partisan gerrymandering, but they all require either bipartisan consensus or the agreement of both parties on the legitimacy of a neutral third party to resolve disputes. In this paper, we propose a new method for drawing district maps, the Define–Combine Procedure, that substantially reduces partisan gerrymandering without requiring a neutral third party or bipartisan agreement. One party defines a map of 2N2 equal-population contiguous districts. Then the second party combines pairs of contiguous districts to create the final map of N districts. Using real-world geographic and electoral data, we employ simulations and map-drawing algorithms to show that this procedure dramatically reduces the advantage conferred to the party controlling the redistricting process and leads to less-biased maps without requiring cooperation or non-partisan actors.

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Supreme Court Won’t Interfere in Michigan Case Finding that Its Independent Redistricting Commission Likely Engaged in Racial Gerrymanders in Drawing Legislative District Lines Around Detroit

Via Chris Geidner:

Here‘s the docket for the case. The Commission has defended on grounds that it was trying to comply with Section 2 of the Voting Rights Act.

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“Congressional map with Gov. Jeff Landry’s backing clears Louisiana Senate”

Louisiana Illuminator:

The Louisiana Senate gave its approval Wednesday to a congressional redistricting proposal that increases the number of majority-Black districts to two out of six. Gov. Jeff Landry backs the legislation that faces an end-of-month deadline for approval. 

Senate Bill 8, sponsored by Sen. Glen Womack, R-Harrisonburg, turns the 6th Congressional District, which U.S. Rep. Garret Graves, R-Baton Rouge, holds, into a majority-Black district that stretches diagonally across the center of the state from Caddo Parish in northwest Louisiana to East Baton Rouge Parish. 

The bill was passed with a 27-11 vote, with Republicans accounting for all of the no votes. 

A congressional redistricting plan must be approved before the special session ends at 6 p.m.Tuesday to comply with an order from a U.S. District Judge Shelly Dick, who gave the legislature until Jan. 31 to redraw the lines. A version lawmakers passed in 2022, retained a single majority-Black district, led to a lawsuit from a group of Black voters to block its boundaries from taking effect. 

U.S. Speaker of the House Mike Johnson continues to try to derail the deal.

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“Democratic law firm challenges Wisconsin’s congressional district lines in filing with state Supreme Court”

Milwaukee Journal-Sentinel:

A high-powered Democratic law firm is asking the Wisconsin Supreme Court to reconsider the state’s congressional map ahead of the 2024 election, arguing a redistricting decision last month calls into question the battleground state’s current district lines.

Elias Law Group, chaired by Marc Elias, who has led previous voting access lawsuits in Wisconsin and across the country, filed the motion to revisit Wisconsin’s congressional district lines on Tuesday. The group aims to have a new map in place for the 2024 election, though those plans likely face a tight deadline with under 11 months to go before the November election.

The filing, brought by Elias’ firm on behalf of a group of Wisconsin voters, leans on a state Supreme Court ruling last month ordering new legislative boundaries in which the high court said it would no longer favor maps that minimize changes to existing boundary lines. 

That decision effectively nullified a 2021 ruling from the then-conservative court that held that new state election maps needed to resemble those drawn in 2011, which cemented Republican control of the legislature and a majority of the state’s House seats. It was under that “least change” approach that the current congressional maps were drawn.

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‘Wisconsin Supreme Court receives 7 sets of proposed legislative maps in gerrymandering case”

Milwaukee Journal-Sentinel:

The Wisconsin Supreme Court is now considering a handful of proposed changes to the state’s legislative boundaries after Republicans, Democrats, university professors and partisan law firms submitted options as part of a lawsuit aimed at making the state’s legislative districts more competitive.

The court received submissions from Democratic Gov. Tony Evers, Republican legislative leaders, Democratic lawmakers, University of Wisconsin-Milwaukee professors, the conservative Wisconsin Institute for Law & Liberty and the petitioners who brought the lawsuit who are represented by Law Forward, a liberal legal firm.

Most of the submissions would reduce the current Republican advantages.

The court will review the seven sets of competing legislative maps as it lurches toward the March 15 deadline to enact new districts ahead of the August legislative primary.

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“Judge orders new North Dakota legislative district for 2 Native American tribes”

AP:

A federal judge on Monday ordered a new joint North Dakota legislative district for two Native American tribes that successfully argued a map created through redistricting in 2021 violated the Voting Rights Act by diluting their voting strength.

U.S. District Court Chief Judge Peter Welte’s decision to adopt and implement a new map comes after a flurry of court filings in the lawsuit since his Nov. 17 ruling that the state’s 2021 redistricting map “prevents Native American voters from having an equal opportunity to elect candidates of their choice.”

The judge had given North Dakota Republican Secretary of State Michael Howe and the GOP-controlled Legislature until Dec. 22 “to adopt a plan to remedy the violation.” The deadline passed with no new map as Howe and lawmakers sought a delay of the judge’s ruling and more time to respond.

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“The changing congressional map is shifting the fight for control of the House”

Politico:

The partisan tilt of a handful of districts could still change dramatically before voters even go to the polls this year — shifting who has the upper hand in the battle for control the House.

Republicans hold just a three-seat majority and various congressional maps across the country have already been redrawn since the midterms thanks to drawn-out court battles, some of which have yet to be resolved.

So far, post-2022 redistricting has likely netted Republicans two or three seats. But depending on how the final maps are configured, that number could change yet again — and even perhaps tilt the field, ever so slightly, toward favoring Democrats.

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Cervas, Grofman, Matsuda, and Kawa on partisan gerrymandering and state courts

New paper from Jonathan Cervas (Carnegie Mellon), Bernard Grofman (UC-Irvine), Scott Matsuda (NYLS), and Justine Kawa (NYLS), Partisan Gerrymandering Cases in State Supreme Courts in the 2020s Redistricting Round. The abstract:

After the U.S. Supreme Court opted out of any federal court role in policing partisan gerrymandering in its 2019 decision, Rucho v. Common Cause, if a redistricting plan was alleged to be a partisan gerrymander, that challenge needed to be brought in state courts. There are three possibilities: (a) a state supreme court could hold partisan gerrymandering claims nonjusticiable under state as well as federal law; (b) it could review a proposed map and find it unconstitutional; (c) it could review a map and reject the gerrymandering claim. Here, we focus on state court decisions that took place before the November 2022 elections in partisan gerrymandering claims regarding maps drawn for elections to the U.S. House of Representatives in the 2020s redistricting round. We are primarily interested in three issues: (1) How did state courts faced with a redistricting challenge based on a claim of partisan gerrymandering decide whether state law allowed them to address the factual aspects of the claim rather than treating the claim as non-justiciable? (2) If the court decided the claim was justiciable, what definition of partisan gerrymandering was used and, in particular, what kind of empirical evidence was cited by the justices – e.g., measuring the extent of gerrymandering via metrics based on election data, and/or evaluating maps in terms of the degree to which traditional good government criteria were satisfied, and/or considering the process of map drawing and what it implied about partisan intent? (3) Is there indirect evidence that the partisan predilections of the justices affected their decision about the constitutionality of a challenged congressional map?

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