Thursday, July 14, 2011

Overdramatization of Redistricting

Yesterday, I had the opportunity to testify before a joint legislative committee on redistricting. My purpose was not to address the political merits of the plan (although it strikes me as fine) but to address whether it would be susceptible to court challenge.

Not at all, say I say. The criticisms I hear are that it reduces competition, favors Republicans "too much" and changes some things that have in place for a while. Even if these things are true, they will not result in judicial invalidation of the law. Allegations of partisan gerrymanders are effectively nonjusticiable and there is no obligation to draw lines in order to maximize competition or keep something the same. To be sure a legislature might seek to further competition (although they rarely do) or to accomplish what is sometimes called "core retention" (minimizing the movement of voters into a district represented by another incumbent) but it need not.

In fact, other commonly accepted redistricting principles might cut against doing these things. Let's take an example in the GOP plan that has been frequently brought up. The proposed plan combines the cities of Racine and Kenosha and this results in dividing both Racine and Kenosha counties. There are certainly arguments against doing this. It splits counties (which was once, but is no longer, thought to be prohibited by the state Constitution) and - or so I am told - creates one safe Republican district and one safe Democratic district.

But there is also at least one major reason to do it - principally that it arguably groups a community of interest into one district. The cities of Kenosha and Racine - particularly with respect to their relationships with state government - have more in common with each other than the city of Racine has with, say, Wind Lake.

It is because redistricting involves the application of conflicting values subject to a rather rigid constitutional imperative of equal population that drawing lines is seen as an innately political process that, in Wisconsin, is the constitutional prerogative of the legislature. As I told the committee, courts will disturb a plan drawn by the legislature for a limited number or narrow reasons and allegations of partisanship - something akin to discovering that there is gambling going on at Rick's in Casablanca - is not one of them.

There have been a number of overheated claims. This blogger seems to think that the plan plunges Wisconsin into a constitutional crisis. In his rush to repeat all of the cliches of the current canon on the left (Fitzwalkerstan, money, etc.), he doesn't really say why but the gist seems to be that the legislature has taken longer to do this in the past (indeed the legislature has been unable to do it since the 1930s because we have had divided government) and contemplated taking more time now. So what? He - and others - also claim that current law is written in a way that results in municipal wards being drawn first - although the legislature may subsequently change them. Legislation has been introduced to make alterations in that process. If the legislature chooses to make those changes, the result is not a constitutional crisis. It is legislation.

The elephant in the room is the pending recall elections. Democrats seem to think they have a right to defer redistricting until after the recalls hoping that they can flip the Senate and create divided government, pushing redistricting into the courts. But there is no legal or ethical requirement for the GOP to go along. In fact, there is a certain irony in the Democrats pushing for elections in districts that are no longer in compliance with the dictates of the equal protection clause (because they are no longer of equal population) in order to influence the process by which those districts are brought into constitutional compliance. I am not suggesting that the recalls would be subject to constitutional challenge on those grounds (my thought is that they would not), but the fireside equities are muddled and it lies ill in the mouths of legislators who fled the state to avoid exercising their constitutional responsibilities to suggest otherwise.

5 comments:

John Foust said...

My generally rural Assembly district now lies completely within Jefferson County. Today its borders are along township lines. From 10,000 feet, it looks like big green rectangles within the county borders. I don't recall too much trouble with my previous Republican rep, whose working farm was just over the hill from mine. (I remember he once sponsored a bill that would've allowed billboard owners to improve visibility by clearing trees in the public right-of-way; I mused this would've allowed someone to chop down the impressive colonnade of century-old oaks that lined his the road along his farm.) My current Dem rep happily reflects the county as well. (He doesn't always vote the way I want, either.) His kids were showing cows at the Fair last week.

Now the 37th is being sliced-and-diced into four other districts. I eagerly await the non-dramatized explanation of why there's a "community of interests" between the farms of Jefferson County and even eastern Dane County, and the cul-de-sacs of Stonebank and Chenequa, 35 miles away.

I've looked at the interactive map for the Assembly districts, and it appears that within the largest cities here (Jefferson and Fort Atkinson) individual cul-de-sacs and perhaps even single homes have been gerrymandered into adjacent districts. I think those GOP redistricting lawyers must've had an overlay for their map that showed the location of campaign contributors.

The census says the median family income in Chenequa is four times what it is in our county seat. I doubt you'll find a bottle of Echezeaux Grand Cru around here, no matter which year you're looking for.

So, Professor, were you operating with "superficial information" or did the WisGOP give you something else the public didn't have? If so, do you think your testimony was ethically suspect? Were your opinions on a "flimsy basis"?

swamper88 said...

My assembly and senate districts changed, too. We went from a moderate R in the assembly (if there is such a thing anymore) to a rabid teapartyist. He sure doesn't represent the folks in my part of the world. But maybe then we can toss the rascal out. He'll probably forget to sign his own nomination papers again.

In the senate we went from a spineless R to one of the Fab 14, so that is a good thing. But it really protects Sen. Spineless-R Green Bay.

Anonymous said...

It would seem fair that each district has a major market with media outlets that are accessible to the people in the district.

We fund internet access for remote areas to assure communication and should also assure each district of a media voice.

This should be attainable if each are done by population.

Anonymous said...

---rabid teapartyist

ewwww, is 'e frothin at the mouf? Their soooo rare those teapartiests..

Anonymous said...

"ewwww" needs to relax because Tea Partiers are Repubs, Dems and independents who are conservative in the sense that they do not trust people in power and simply want a fair media voice in each district that will help transform goverment to do things better then in the past and then in any other country in the world.

Wisconsin appears to be headed in the right direction if he needs a good example.