Friday, February 17, 2012

A Point of Personal Privilege

A couple of Madison media outlets have reported on an e-mail that Jim Troupis sent to some of his clients regarding my testimony before a legislative committee. The e-mail says that I had agreed to testify "in support of" the plan but that I needed to see the maps and some other data. Certain commenters here have suggested that I must have agreed to support the plan before I knew what was in the plan. Sort of like Nancy Pelosi.

Why anyone cares about my testimony is beyond me, but, since it's out there, I'll respond.

The implication is that I somehow promised to say that the plan would not be vulnerable to legal challenge no matter what. There's not a shred of evidence of that and it's untrue. Here's why.

First, such an accusation places a lot of a freight on one little e-mail. Of course, Jim Troupis was going to ask people to support his client's position. That's what lawyers do. His e-mail was intended to request the additional information that I needed in order to form an opinion and testify. It wasn't intended as a thorough exegesis of my position (which he didn't really know) or to reflect a guarantee that I'd support the legality of plan no matter what. Jim was saying what any lawyer who gets someone to testify says. "This guy is willing to support us but he needs to see what we did." It is implicit that, if what "we did" does not warrant support, support won't be forthcoming.
Of course, I expected that Jim would draw a legally sound plan. He's one of the best redistricting lawyers in the country. But I wouldn't have hesitated to say there was problem if I saw one.
Second, if the issue is what I agreed to do, then one ought to look at what I said. The e-mails that I sent or received were produced earlier in the litigation and are a matter of public record.

On June 29, Jim e-mailed me and said that the maps had been completed and met certain criteria -"substantially equal population, compact/contiguous and sensitivity to minority interests.". He asked if I would be willing to testify to that effect and offered to get me whatever I needed to look at. Just what I had or hadn't seen at that time, I don't know. I don't recall when the maps became publicly available.
I responded the next day. Referring to his "criteria," I told him that "[i}t's not hard to bless it on the first two with respect to federal review." That is because the districts would certainly be substantially equal in population (and they were) and there is, strictly speaking, no judicially enforceable constitutional requirement of contiguity and compactness (although they may be considered in connection with the evaluation of other claims).

In my view, challenges to maps as a partisan gerrymander are, under a proper reading of the law, practically impossible. I said nothing about state constitutional review (which could be a different matter although it won't be an issue in the upcoming federal litigation) and did not say anything about "sensitivity to minority interests" at that time.

I asked for more information. I received it. I went ahead with my testimony.

Third, the views that I expressed before the committee regarding the difficulty of ever challenging a district as a partisan gerrymander are not new and were not contingent on who wrote the plan.
Here's how you can be sure.
I said the same thing on Marquette's faculty blog in February of 2010 and in the Journal Sentinel in October of 2010 - back when the Democrats had the Governor's chair and both houses of the legislature and before we knew which party would be in control when the maps were drawn. My point was that, if one party sweeps the election, the legislature is pretty much going to be able to draw the map it wants.

Maybe I'm wrong. But I am consistent.

Fourth, in case you're wondering, I was not paid for this. I received nothing. No compenation. No mileage. No parking. Nothing.

As an aside, one aspect of the e-mails released yesterday is interesting. They reveal that, notwithstanding Peter Earle's histrionics, the Republicans were in active negotiations with representatives of the Hispanic community regarding the creation of majority Hispanic districts.

That the maps were shared with Scott Jensen a few days before they were made public is not interesting. There is no prohibition against showing people drafts of legislation that have not yet been introduced and it's not at all surprising that legislators would try to line up support. It happens all the time.
Finally, I'm closing comments on this. I understand that there all sorts of (generally anonymous) people in the blogosphere who seem to fill some psychic need by flaming people who disagree with them. They can do it elsewhere.

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