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.