Thursday, February 23, 2012

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.


15 comments:

George Mitchell said...

GOP gets a poor grade on the "optics" in this matter.

No surprise that D's will exploit that.

Your analysis makes it very interesting to see what the judges will do on the substantive legal issues.

Anonymous said...

Professor--"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.***"


Sir, the GOP has fought tooth and nail for the redistricting process to be kept from the public. It claimed “attorney-client privilege” as its reason to refuse to disclose the maps to the public.

So the lawyers hired by the GOP and the legislators involved in redistricting worked out a plan for the maps to be kept confidential. Ok, fine…HOWEVER, “outside consultants” were brought in for their two-cents worth. Does this process NOT wreak of hypocrisy?

On one hand, the GOP is claiming that the redrawn maps cannot be revealed to the people because of their “sensitivity”. On the other hand, the GOP can discuss with a PUBLIC FIGURE, aka Scott Jensen, as to whether those maps meet their intended political outcome. Last time I checked, he is NOT a legislator, but a member of the general public. What makes him so special that he can be part of the process? How is it possible for the GOP to claim “attorney-client” privilege when the “outside consultant”—a convicted felon--had no say in the matter in the first place during the map-redistricting process? How is Jensen and the other consultants part of the attorney-client privilege when they were not part of the original meetings?

So, yes, while it is not unusual consultants be sought during redistricting, this situation is particularly out of the ordinary and should, in my mind, be investigated further.

Referring to **, the SAME logic can be employed in this similar situation—The Government Accountability Board can choose NOT to provide documents to the general public in the absence of an open records request. Yet you scathingly wrote how the GOB erred in refusing to provide additional scrutiny to those petitions in the interest of transparency.


Professor--“It does not [sic] good to say that you think that the Republicans violated traditional notions of open government. That is not a violation of federal law.”

Then the GOP can NEVER chastise the Democrats if they act in a similar weasel-like fashion. Again, the general public is sick and tired of these machinations and their lawyers who argue that the process cannot be indicted, but only the outcomes of that process.

Regardless, in this specific instance, it DOES matter that if WE THE PEOPLE think that the GOP “violated traditional notions”. (I’m not saying that the Dems, if in this circumstance, would refuse to act in a similar manner).

"The facts are the facts. And what has occurred here is beyond the pale in terms of lack of transparency (and) secrecy," he said. "... But appearances are everything. And Wisconsin has prided itself from one generation after another on openness and fairness and doing the right thing. And to be candid we have seen everything but that in the way this case has progressed."—J.P. Stadtmueller

Anonymous said...

"While Jim was apparently not involved with nondisclosure agreements..."

Which means he COULD or MAY have been involved, but at this time, it would appear he is "innocent".

Anyways, have the Democrats ever made nondisclosure agreements during the redistricting process? If yes, what was their rationale?

Regardless if there was a "lack of enforcement" surrounding the nondisclosure agreements, it would seem that the GOP was capable within their ranks of not spilling the beans without having this "extra level of protection" in place. Just bizarre.

Anonymous said...

Anonymous @7:46: Another and perhaps even stronger example of evidence undercutting the argument re confidentiality with consultants is the norm -- which may have some weight -- is that the maps were shared, almost a month before they were seen by the public, with the Republican National Committee.

Now, Mac Davis in Waukesha County courts might buy that argument by ignoring that evidence, but I doubt it is going to fly with federal judges to claim that the RNC was a consultant like Gaddie. Nope, that conversation, along with those with (be fair now) the former convicted felon, are not going to work. I see another smackdown coming from Stadtmueller, et al.

Anonymous said...

Testimony today that may prove significant, as to how much movement of voters is too much: http://elections.wispolitics.com/2012/02/mayer-testifies-on-number-of-voters.html

To wit, a district underpopulated by only 10 -- ten, count 'em, ten -- saw more than 35,000 residents moved in, out, up, down, and around. And there are more. . . .

Rick Esenberg said...

Various Anons


With all due respect, you are confusing all sorts of distinct concepts. "WE THE PEOPLE" may or may not like the process. But a federal court is most decidedly "WE THE PEOPLE" and does not act in loco parentis for sny partucular view of the common good. It's role is far more limited. No member of that panel would say I'm wrong. You learn it in the first semester of law school.

Whether a consultant is protected by an claim of attorney-client or work product privilege is more complicated than you think. The claim of privilege may not have been well taken here, but it's hardly that simple.

In any event, I do think that some of the claims of privilege may be a step too far. But the comments about the claim of privilege in the litigation being undercut by sharing the maps with the FNC or Jensen are wrong. No claim of privilege was asserted with respect to the maps. That they weren't released to the public earlier is not a claim of "privilege," it's just a decision not to make something public earlier which happens all the time. If you think that's a legal problem, you're barking up a nonexistent tree. If you want that stuff, you have to make an open records request and then we can assess whether it must be produced.

Beyond that, resisting the production of material in discovery is not the same as hiding the ongoing legislative process. These are two distinct concepts. No discovery happened until after the plan was passed.

Whether or not there was a disputed response to an open records request during the process is another matter. If there was, I am not aware of it and, in any event, it would not be a proper issue for the this case. I am aware that Voces has made an Open Meetings complaint. It is not meritorious. Maybe I'll post on that tomorrow.'

I did not say that there was a "lack of enforcement." I said that, in my opinion, they might not be enforceable. Actually both the Democratic and Republican caucuses are pretty disciplined in Wisconsin because of the power of party leadership on both sides of the aisle.

Rick Esenberg said...

Anon 9:28

First, to say that you can find a district that was only short ten and therefore should only have been moved ten is a stupid lawyer's trick. No district can be considered in isolation.

More fundamentally, there is no rule that one must adhere closely to a prior plan. The only way that can become relevant if it is probabtive of some other actionable wrong of which, quite frankly, there are very few.

Anonymous said...

Both stadtmueler and the dems are miffed that Ryan Braun has stolen the limelight from them. The only real issue is whether the federal panel will defer to the state legislature on their own volition or by being reversed later by the supreme court.

Anonymous said...

Anony 7:46 p.m. and 7:55 p.m. here.

Professor, with all due respect, I made it abundantly clear regarding WE THE PEOPLE. There is no confusion on my end on this essential concept. One more time, WE THE PEOPLE, the citizens are tired of the process being manipulated by both sides to their own designs. The process itself may produce an OUTCOME that could be unconstitutional. The federal court may therefore offer remedies in light of those problems presented. In particular, federal courts have been involved in redrawing legislative maps because (D)'s and (R)'s have abused the process for their own advantage. In this specific situation, the common good is therefore ensured when the federal courts intervene on behalf of WE THE PEOPLE. The process itself is not to what WE THE PEOPLE object to, but how that process was carried out.


Professor--"Whether a consultant is protected by an claim of attorney-client or work product privilege is more complicated than you think. The claim of privilege may not have been well taken here, but it's hardly that simple."

Again, with all due respect, all you provided me is a statement without any examples to refute my claim. I would imagine that a person would learn in first semester law school to offer a more thorough explanation.


Professor--"But the comments about the claim of privilege in the litigation being undercut by sharing the maps with the FNC or Jensen are wrong. No claim of privilege was asserted with respect to the maps."

It would appear that you would be mistaken.

www.politiscoop.com/us-politics/wisconsin-politics/733-redistricting-maps-intimidation-unveiled-.html

host.madison.com/ct/news/local/crime_and_courts/blog/article_3b40234e-7c0a-11e0-9686-001cc4c03286.html

www.jsonline.com/news/statepolitics/federal-judges-say-gop-lawmakers-trying-to-hide-redistricting-details-from-public-td3lru1-136626883.html

www.jsonline.com/news/statepolitics/lawmakers-were-made-to-pledge-secrecy-over-redistricting-9643ep0-138826854.html


Disclaimer--Why these sources may have a particular bias, that bias should NOT automatically call into question certain facts which are indisputable.


Again, Professor, I am well aware of your argument that both (R)'s and (D)'s have asked outside individuals for legal advice about redistricting in the past. I am well aware of the practice for each party when in power to draw those maps "in secret" and keep it "close to the vest". I am well aware that the party in control of the legislature can put a map together, pass it, and the governor can sign it into law.

I am not arguing that the process itself is somehow wrong or illegal. What I am questioning is HOW that process was undertaken by the GOP in this particular circumstance and the RESULT of that process. And the evidence thus far seems to suggest that the GOP was less than transparent and that their end product will be subjected to intense legal scrutiny. It would appear that these specific actions do NOT happen all the time.

In 2011, when asked whether the maps would be drawn in secret without Democrat or public input, the response was: “You talked to Democrats who ‘think’ that Republican leaders have these grand plots,” Andrew Welhouse, spokesman for Senate Majority Leader Scott Fitzgerald, says in an email response to questions about GOP plans. “I guess I’ll leave it up to your journalistic standards if their motivated speculation is worth reporting on.”

Anonymous said...

Same anony here.


Professor--"I did not say that there was a "lack of enforcement." I said that, in my opinion, they might not be enforceable. Actually both the Democratic and Republican caucuses are pretty disciplined in Wisconsin because of the power of party leadership on both sides of the aisle."

Yes, I understand what you said. My point is that Wisconsin Republicans in the legislature were given a memo that told each and every single one of them specifically not to say anything about the maps.

Its members, I would imagine, being a fraternity (just like the Democrats) would enforce this mandate themselves by a conscious choice. On the other hand, if one or more "break ranks", I suspect there would be repercussions. So while on the surface the nondisclosure agreement is NOT enforceable as a matter of a rule or a law, by custom it can be enforced, with consequences resulting for not following it through.

Why did the GOP feel compelled to provide this mandate to its members in the legislative branch regarding the maps?

Have the Democrats in Wisconsin ever made nondisclosure agreements during the redistricting process? If yes, what was their rationale?

Rick Esenberg said...

Anon

You have to go back a long time to find an occasion when one party was able to draw maps. I think the last time was 1983 after a court ordered plan was put in place because there was divided government. Then in 1982, Tony Earl was elected Governor and the Dems then tried to replace the court ordered plan with one more favorable to them. And I don't know what happened then.
But, if you read Jim's deposition, he says that this is a common practice and explains why.

Given the fact that the party caucuses are very good at keeping their strategies close to the vest, I have no reason to think that the Dems would behave any differently.

John Foust said...

Anony-multi: Yeah, Fitz trains his minions to talk Snotty like that all the time, even to constituents. I think that's a good part of the reason he's up for recall.

Anonymous said...

You grossly mischaracterize what the Democrats did in 1983. The 1982 election was held on a court-ordered plan under which the federal judge(s) didn't take judicial notice of where the incumbents lived. [In 1992 the judge(s) did take judicial notice.]

As a result, any incumbents on both sides of the aisle did not live in the districts they represented. Each of them "moved" back into their districts -- they claimed to rent apartments in the districts. Because there were legislators on both sides of the aisle in this pickle, neither side made it an issue in the 1982 election.

An amendment was addded to the 1983 budget bill to fix all of these residency problems, so that the incumbents could "move" back into their former residences. Again, there were people on each side of the aisle so the amendent only affected a handful of districts and was not a complete redistricting plan, and it was developed in a bipartisan manner with each caucus having input. To describe it in any other manner is not an honest charcterization.

Rick Esenberg said...

Anon

Given the fact that the Republican Party challenged it, I think your story leaves some things out. In any event, my point is not to cast stones at Democrats, only to point out that it has been a heck of a long time since any party had the power to pass its own plan.

Anonymous said...

"But, if you read Jim's deposition, he says that this is a common practice and explains why."

I have tried to locate Troupis' deposition, and have yet to find it on the internet. Do you happen to have a link, professor? Thank you.

Furthermore, you have not answered my inquiry--Have the Democrats in Wisconsin ever made nondisclosure agreements during the redistricting process? If yes, what was their rationale?

Would it not be fair to say this strategy is "out of the ordinary" in regards to the process?

I assume that the "common practice" you are referring to is the process of the strategies of drawing the maps "close to the vest".

However, the courts have chastised the machinations of the (R)'s in this process, most notably their attorney-client privilege claims, that indeed this tactic was an effort to circumvent the process. Have the (D)'s ever used this tactic in redistricting? Would not this strategy be "out of the ordinary"?

That is why WE THE PEOPLE are scrutinizing the means involved in the process, not the process itself.