Redistricting Trial: Some Things to Watch

Here are some observations regarding the redistricting case. 

First, while press reports on legal matters are notoriously inaccurate, Pat Marley is a pretty good reporter. He reports Judge Stadtmueller as announcing that "appearances are everything." The context of the statement is unclear so I express not view on the remark,. But it does suggest an important question.

Are "appearances" anything in this case?

Let's get this out of the way. While I am reluctant to second guess lawyers who actually had to make a particular decision, I agree that having legislators sign nondisclosure agreements looks like a  bad idea.  I am not certain that such agreements would even be enforceable. It also seems that the Republicans tried to claim privilege over too much and fought too hard over producing documents in discovery. You can't make communications subject to privilege by the simple expedient of passing the through a lawyer and, while it's hard to be sure without going over all the filings, it appears that they tried to wall off an awful lot.*

Because I have seen lots of lawyers try to do something like this, I am not as outraged by it as others might be. Contrary to what is reported in the papers, it is not at all clear that it kept much  private that would have otherwise been unilaterally made public during the legislative process. Legislative caucuses typically keep their strategies close to the vest and it is not unusual to outside consultants to be employed in redistricting. That documents might be subject to an open records request does not mean that they will - or must be - made public in the absence of a request.

But however one regards this,  it has relatively little to do with the merits ot the plan.

First, discovery is something that happens in litigation after the fact. Trying to evade discovery cannot form a basis for invalidation of the plan. While judges can enter judgment as a sanction for discovery abuse. that is clearly not warranted by the (admittedly aggressive) position that the Republican legislators took on discovery and would be almost - if not completely - unheard of in a case of this public importance.

So for any of these "appearances" to be relevant, they would have to transgress some judicially enforceable federal law. It does not good to say that you think that the Republicans violated traditional notions of open government. That is not a violation of federal law.

There is no federal duty to make drafting records public or to take more time to draft a plan or to permit more public input or even to hold discussions of the plan in public. To be sure, such records might be subject to the state open records law and a gathering of legislators might be subject to the open meetings law, but none of those things are issues in the redistricting case nor, as we will see, could they be.

Federal courts do not have a freestanding authority to overturn legislative enactments because they don't like the process by which they were accomplished. Unless these appearances can be connected to a cause of action  cognizable in federal court, they mean nothing.

The only way I can think of that happening is that if it was found to be probative of some prohibited intent. But, as I have written before, a desire to obtain partisan advantage is not one of those.


Second (and somewhat related), Judge Stadtmueller's reported remarks also seem to suggest that he assumes the court can entertain state law claims. This may be misreported, but it suggests an important point. As a general matter, federal courts will not order state officials to conform their conduct to state law. See, e.g., Pennhurst v, Halderman, It's an Eleventh Amendment thing. Maybe there is some basis for avoiding that limitation here, but the presumption would seem to run the other way.

This is significant for a number of reasons. While I have argued that a challenge to the plan as a partisan gerrymander or to the districts as insufficiently contiguous and compact is next to impossible under applicable federal law, I have also argued that such a claim may be more likely to succeed under the state constitution which has a requirement that districts be as contiguous and compact as possible. The plaintiffs could have pursued this claim in state court. They chose not to do so. It's unclear  that they can even raise the claim in federal court. Again, the general rule is that they cannot.


So this would mean - no state constitutional claim. No Open Meetings claims . No claim based on the state constitutional guarantee of open sessions of the legislature. (I don't think that the latter two claims would have any merit, but it would seem that they don't even get out of the gate here.)

Third, the state defendants argued that they cannot change the plan due to a Supreme Court decision called State ex rel Smith v. Zimmerman. That case said that Art. IV, sec. 3 of the Wisconsin Constitution permits only one redistricting between the decennial censuses.


I don't agree. Lawyers for the plaintiffs argued, at least, that Zimmerman shouldn't apply because the legislature is still in the same session.

That's not a bad argument. Art. IV, sec. 3 says that the reapportionment must be done during the first session after an enumeration. So maybe the "one time only" limitation can be read to apply to the entire session.

Still, if that were the only way to distinguish Zimmerman, I'd be with the defendants. But there's more. Zimmerman was decided before federal review of redistricting was as common place as it is today. It is not clear to me that the Wisconsin Supreme Court would apply Zimmerman to prohibit amendments to bolster a plan's resistance to federal view. There are a number of cases in which federal courts have found a plan wanting but permitted the legislature to take first crack at fixing it (although that is, admittedly, a different issue.)

This morning the panel has ruled that the legislature can amend the plan. While I think that's correct, a federal court is not the ultimate arbiter of that issue. It may well be that someone will challenge any amendment of the plan under Zimmerman in state court. (Such a claim would, however, become moot should the plan be found to be legally deficient.)


Fourth, the Republicans have announced that they do not intend to change the plan. I understand the rationale. Even if they could satisfy the demands of some of the plaintiffs (and they probably couldn't), others might sue.

But could they have - and should they have - changed a plan in a way that would have resolved the case.

There seem to be two issues. One is that there are presumably "too many" voters who have been moved to a new district in a way that causes them to have to wait an extra two years to vote for a Senator. This happens when voters are moved between odd numbered and even numbered districts (which is all the time). Depending on which group was up during the last time the old maps were used, some of these voters will wind up having to wait six years to vote for a Senator. To use s simple example, imagine that I lived in District 1 and  have been moved to District 2. Assume a plan has gone into effect and that even numbered districts voted in 2010. I last voted for the state senate in 2008. I won't be able to do so again until 2014.

Courts have recognized that this is an inevitable feature of redistricting and have rejected claims that this is unconstitutional disenfranchisement. The reasoning is that the need to defer to state legislatures and to redistrict outweighs the harm from any temporary disenfranchisement,.

A 1983 case from Wisconsin, Republican Party v. Elections Board , did invalidate a plan on that basis. But it is not particularly helpful here because that case seems to have turned on the fact that voters were "deferred" as a  result of a plan adopted after a constitutionally valid plan was already in place. The court expressly stated that, had the same plan been adopted in the first instance, it would have been upheld yet because the plan moved voters from even to odd districts it still would have in voters having to wait six years.


So the argument has to be that there are "too many" voters who have to wait an extra two years. But  how one could go about deciding how many deferred voters is "too many" is hard to imagine. One could, I suppose, adopt a rule that a new plan must deviate as little as possible from an old plan but there is absolutely no legal support for that. The old plan does not occupy a position of privilege.

If a partisan gerrymander is effectively nonjusticiable, I can't imagine how this could be.The theory seems to be that the burden of proof should be shifted and the legislature should be required to explain why they did what they did. My guess is that the legislature will be able to offer some justification, but the problem is that redistricting is a zero sum game in which any particular decision is a product of many other decisions. There are literally hundreds of options and all will have various strengths and weaknesses. The various criteria by which a plan might be considered "strong" or "weak" are multiple and often contradictory. There is no real way to choose among them and this is why allegations of partisan gerrymanders have, one way or another, been nonstarters.


The other issue  is whether one should have created a different Hispanic majority district on the south side of Milwaukee under sec. 2 of the Voting Rights Act. This has to do with whether or not a relatively small number of voters should have been moved from one district to another and which of a number of alternatives - which were negotiated with various Hispanic groups - should have been adopted. **

The law on this is complicated - even convoluted. One must show that a 1) a minority group is sufficiently large and geographically compact to comprise a majority of the district; 2) the minority group is politically cohesive (it must demonstrate a pattern of voting for the same candidates); and, 3) white voters vote sufficiently as a bloc usually to defeat the minority group’s preferred candidate. But even then, it must be determined that, under a totality of the circumstances, the failure to create a majority minority district deprives minority voters an opportunity to elect candidates of their choice.

As a general matter, Republicans love to create majority minority voters. It involves packing Democratic voters which is a time honored way of drawing a favorable map, Here there were a number of alternatives discussed with Hispanic groups and, from the perspective of wanting to maximize Hispanic political influence, there were reasonable arguments to be made in favor of all of them. In fact, one Hispanic group has already announced that they would sue if the legislature departed from the current map.

This is a small part of the plan and doing what the plaintiffs want would do little or nothing to change the plan's acceptability to Democrats and Republicans. It's not at all clear to me that justice - or even the interests of Hispanics - would be served by giving Voces the south side district that it wants. To be sure any change to a map has ripple effects, but a change here wouldn't hurt Republicans much  or do much for Democrats. A case could have been made that redrawing the plan to give Voces what it wants would be the better part of valor and would not cede much legislative prerogative.
 
But that's not what happened so here we go. Comments are on but posts that do nothing but call names or make personal attacks will be removed. I am interested in substantive responses only. No one cares about your snark.

*UPDATE: I have now read portions of Jim Troupis' deposition which was taken last night. While Jim was apparently not involved with nondisclosure agreements (or discovery in the litigation), he offers a trenchant explanation of why maps need to be held close to the vest - even from members of the majority caucus - in order to get them done. NDAs may be bad atmospherically and, as I say, might not be enforceable, but having the whole caucus - much less the whole legislature - in the process of drafting maps would be, he says, like "herding cats." Jim offers a quite cogent explanation of the process and why it was conducted in the way it was.It won't convince the rabidly partisan, but if you have questions about the process, you should read the transcript. It's quite instructive and undercuts much of the false outrage.


**UPDATE: Today's paper breathlessly reports the testimony of a UW Political Science Professor that more voters were moved "than needed." To say that something was more than necessary requires the establishment of a standard by which "need" can be measured. Moving as few people as possible could be a standard but it's not one that is legally privileged or a constitutional reguirement for redistricting.