The Scoop on Redistricting

I'm sort of amused by the minor contretemps over whether the legislative Republicans ought to allow the legislative Democrats money to hire their own counsel for the upcoming redistricting.

The Wisconsin legislature hasn't successfully redrawn district lines in almost 80 years. The reason is that we generally haven't had single party control in a redistricting year (which, since the Supreme Court's "one-man, one vote" decisions in the '60s, has been every ten years).

As I pointed out in a pre-election column in the Milwaukee Journal Sentinel, single party control of the state house and both legislative chambers almost guarantees that this year will be an exception. Because there are relatively few ways to challenge a properly drawn plan, the redistricting this year will turn out to be what the Republicans want it to be.

This is because political gerrymandering is nonjusticiable, i.e., a plan can't be challenged in court because it is "unfair" to one party or another or was designed to protect incumbents and limit competition. Four justices of the current Supreme Court have held that this is a political matter and a fifth (guess which one) isn't sure it is but hasn't been able to imagine judicially manageable standards so, at least for now, won't entertain such challenges.

One can challenge a plan as a violation of the rights of minority voters and that is where drawing the plan raises legal questions. A plan can't improperly deprive minorities of the opportunity to elect candidates of their choice and that may require drawing supermajority minority districts (because minority voter turnout is normally lower than average).

But here's the thing. Creating such districts generally favors Republicans because it requires "packing" minority voters and, since these voters tend be overwhelmingly Democrats, that means packing Democrats. When, for example, we draw Gwen Moore's district to contain lots of minorities, we make it overwhelmingly Democratic and the surrounding districts become more Republican.

Doing this in the right way requires lawyers and that is why Fred Kessler's comments that there is no need for lawyers in redistricting and the the legislature's decision to retain Michael Best and the Troupis Law Offices could only have been a sop to lawyer campaign contributors. Jim Troupis is one of the best redistricting lawyers in the country. To say that he was hired because he gave money is one of the stupidest things I've heard a politician say on the subject.

Of course, it is true that one could (particularly if there were no minority vote dilution concerns) redistrict without lawyers. It is possible to program a computer to draw compact and contiguous districts of equal size that respect, to the extent possible, political and geographic boundaries.

But that would probably tend to favor Republicans because Democratic voters tend to be geographically concentrated. Democrats who are upset this year because of the Republicans' control over redistricting ought to be careful what they wish for.