Thursday, March 22, 2012

Redistricting Decision Upholds Almost Entire Plan

Today's decision in Baldus v. Brennan and Voces De La Frontera v. Brennan is, from a political perspective, an almost complete victory for the Republicans. It orders nothing more than a change in the boundaries between the Assembly Districts 8 and 9 - neither of which is ever likely to be won by a Republican.

Everything else stays the same and all of the other claims - the claims of a partisan gerrymander, of unacceptable population deviations, of "disenfranchising" voters moved between even and odd state senate districts - are dismissed. The plan essentially stands.

I think that this is a political victory for the Republicans because the one change that the Court has ordered will not have the slightest impact on Republican electoral prospects. Whether you think that's a good or a bad thing, it is a fact.

The decision was well written although there are parts with which I would take issue. It is clear that the panel judges would have preferred a different process and a different type of plan, but they recognized that they are bound by the law and not by their own views of how things should be. They each deserve credit for that.

The only relief ordered by the court settles an internecine dispute in the Latino community. Some community leaders preferred to have one more heavily "packed" Latino district which, they thought,  would be more likely to elect a candidate preferred by Latino voters. Other thought that maximizing Latino influence would be better served by having two districts with substantial Latino population. The latter view was well put by Aaron Rodriguez in a recent op-ed in the Journal Sentinel.

I don't agree with the panel's conclusion that the Voting Rights Act compels the legislature to choose one of these strategies over the other in the circumstances of this case. Its decision is, to be sure, a victory for Voces De La Frontera and (I suspect) the current incumbent over other elements of the Latino community (which is hardly uniform). It is, however, pretty much a matter of indifference to the Republicans - at least as their partisan interests are concerned.

So what happens now? From its perspective, the legislature should redraw the boundaries and call it a day. Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on. They may try to block compliance with the court order unless the other districts are revisited. That won't happen and can't happen. They may hope that the court will then give them something that the Republicans won't, but the panel decision has made absolutely clear that won't happen either.

Of course, the plaintiffs may appeal but I don't see any real chance of success. If anything, the panel gave too much credence to their claims even as it rejected them. Although its not clear to me that they have anything to appeal from, I would think that Voces plaintiffs would be well advised not to appeal. They could easily lose their victory.

It is possible - although perhaps not likely - that persons in the Latino community who  prefer the boundaries originally passed by the legislature will seek to intervene for purposes of appeal.

But, in the end, much sound and fury signifying very little.

27 comments:

George Mitchell said...

The key observation:

"Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on."

Anonymous said...

An appeal would seem to undercut the Dems' current PR spin that this is a total victory for them.

Anonymous said...

Two Republican-appointed judges and one Democrat-appointed judge slam the Republican-drafted plan as having been drafted in needless secrecy, at excessive cost, and in an unnecessarily partisan way. And they find the sworn testimony of two Republicans who helped to draft it "almost laughable" in its falsity. I guess lying to a court doesn't much matter any more. This is, from a political perspective, an almost complete victory?

Let's have more almost complete Republican victories just like that one!

Tom said...

Yes, Anon, having judges say "well, we don't like it very much, but we have to uphold it" is a victory (and a good example of judicial restraint).

Anonymous said...

Earl Warren, John Paul Stevens, David Souter were all appointed by Republican Presidents. Moreover, there's a real disconnect between the decision in the language decrying the lack of bipartisanship, the secrecy (which in reality was practiced by the Dems as well) and the actual holding -- you can almost hear the teeth of the panel judges' grinding as they are forced to uphold nearly the entire plan.

George Mitchell said...

Tom 5:59


The judges' derision of the process demeans them.

Their job is to rule on the law. But they could not resist extra-judicial chit-chat. Just to remind us of how special they are.

Anonymous said...

Delusional thinking.

The justices' derision of the Republicans' derision of the judicial process, of judicial orders to turn over evidence and more, demeans . . . the Republicans.

I was on the fence about recalls, but watching these new Republicans in this case, in addition to other blatant disrespect for and disregard of the judicial process, made me a "decider." Recall.

Rick Esenberg said...

Anon

The problem with that is that the panel's criticism of the Republicans can't be divorced from the fact that they had to concede that the Republicans did nothing illegal.

Seen in that way, these criticisms are nothing more than personal opinions - of no more or less value than those that you or I might express.

If you read what actually happened, it is hard to distinguish it from stuff that happens in the legislative process all the time. A caucus didn't reveal its proposal than until it was ready. In developing that proposal, it listened to the peope that it wanted to listen to. Happens all the time.

Once the proposal was made public, everyone had a chance to be heard. They just didn't have the votes to defeat it. Elections matter.

Anonymous said...

Most of the decision reads like a political op-ed piece and is completely inappropriate from a court.

Anonymous said...

Rick: Nothing illegal? Perjury laws been repealed recently?

What I don't understand is why the panel doesn't refer the two Republicans the opinion more or less says perjured themselves to the U.S. Attorney for prosecution. In fact I thought federal judges had such a duty.

John Foust said...

Sometimes the culture warriors are happy to tell us how things should be, sometimes they're content with saying "Yeah, but it's not illegal."

Marc Eisen said...

George, earlier the court sternly ruled against the Republicans on matters of secrecy and fined its law firm. To be clear, do you really believe that the court "demeans" itself by referencing that? You regard the court's concerns as "extra-judicial chitchat"?

I hate to sound naive, but even in these polarized times I would hope that activists on all sides would uphold the paramount value of openness in government...or at least not disparage it as something almost laughable.

George Mitchell said...

Marc,

Both parties recess open sessions on the floor of the senate and assembly to hold nonpublic caucuses where they map out their strategies and votes. This has been the norm for many years — perhaps decades. That the GOP would do that on redistricting is to be expected, just as the Dems would have done.

When the Senate or Assembly adjourns so that members can caucus in private the media treat it as standard practice. When Republicans plan redistricting maps in private it is presented as some grave departure from openness. There is in fact no difference.

Are you on record opposing party caucuses? Are you on record opposing nonpublic discussions in the executive branch as it prepares its budget and other legislation?

And yes, I see zero role for the judges in commenting on matters that don't bear on the legal issues before them.

Anonymous said...

George Mitchell--"When the Senate or Assembly adjourns so that members can caucus in private the media treat it as standard practice. When Republicans plan redistricting maps in private it is presented as some grave departure from openness. There is in fact no difference."

The problem is NOT the process itself, but HOW that process was carried out.

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

If no, then this "tool" would appear to be a radical departure from normal operating procedures.

Have Democrats in Wisconsin ever used attorney-client privilege as a tool to blur the lines between political advice and legal advice during the redistricting process?
If yes, when? What was their rationale?

If no, then this "tool" would appear to be a radical departure from normal operating procedures.

May I remind you...""Without a doubt, the Legislature made a conscious choice to involve private lawyers in what gives every appearance of an attempt--albeit poorly disguised--to cloak the private machinations of Wisconsin's Republican legislators in the shroud of attorney-client privilege. What could have--indeed should have--been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny."

www.jsonline.com/news/statepolitics/federal-judges-slam-gop-lawmakers-over-redistricting-secrecy-0l47pqm-139467038.html

George Mitchell--"And yes, I see zero role for the judges in commenting on matters that don't bear on the legal issues before them."

A matter of opinion. What YOU think are inappropriate comments, to a judge--regardless of their ideological bent--he or she may make personal statements which indeed are related to the legal issues before them. It is within the discretion of the judges--as far as I know--to make such interjections.

So, based on your own criteria, I would imagine you would oppose Justice Scalia when he "comment[s] on matters that don't bear on the legal issues before them." He apparently is legendary for his seemingly unrelated remarks.

Anonymous said...

How can the Republicans, who argued that redistricting was entirely the task of the legislature and not that of the courts, now refuse to redo the two districts in the legislature and demand that the courts do so?

I don't get it, as it's so illogical as to be -- dare we say it? -- a dreaded "flip flop." So I hope that the lawyers here can explain this, and perhaps whether the Republicans also are just asking for the federal judges to come back with another rebuke.

Unknown said...

-----How can the Republicans, who argued that redistricting was entirely the task of the legislature and not that of the courts, now refuse to redo the two districts in the legislature and demand that the courts do so?

Odd, I read it as exactly the opposite...

----Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on. They may try to block compliance with the court order unless the other districts are revisited. --

If I were the republicans I would invite the Democrats to decide the boundary between the two districts themselves since it impacts no other districts. Might be a chance for minority fraticide.

Anonymous said...

Unknown, Fitzgerald is not a Democrat, and he is the one who said that he will not agree to call the legislature back into session to do what the court ordered the legislature to do.

So how does that become Democrats blocking compliance?

Unknown said...

"""Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on. They may try to block compliance with the court order unless the other districts are revisited. """"

This is what I was referring to, that Democrats will themselves finesse compliance with the court order and instead will deadlock the Senate until it does a complete redistricting.

If the court wants the lines for those districts redrawn, it will be most expeditious for the court to do it themselves.

Marc Eisen said...

George,
In politics, sunshine is the bleach that kills the germs.
Since the taxpayers had to fill a bunch of gunny sacks with hundred-dollar bills to pay for the Republican lawyers, we got a right to know how they were scheming to game redistricting. Ditto for the Democrats.
You said earlier it was demeaning for the court to comment on the process of redistricting. You want demeaning? How about Republican lawmakers being forced to sign a secrecy pledge before the lawyers would show them the redistricting maps?
That was choice. On multiple levels.
Their word alone wasn’t trustworthy.
They were treated like flunkies—not lawmakers—who were expected to keep their mouths shut.
You would have thought someone would have hit the roof. Apparently not. They all meekly played along.
So, yeah, it’s a good thing the court kicked open the doors. The sun shined in, and now we know what our tax dollars paid for.

George Mitchell said...

Marc,

There are legitimate points to be made about the redistricting process. My concern is with selective outrage.

You choose not to address my questions. For example, are you on record opposing the secret caucuses where the real negotiating occurs on major legislation? You edited a publication for many years — decades? — so you had many opportunities to comment.

John Foust said...

Eisen already said "Ditto for the Democrats." Wasn't that enough for you, George?

I'm still waiting for O.G. George to explain why public financing of incumbent campaigns is such a good, conservative, small-government idea. But what do I know? I'm just an ankle-biter who doesn't know as much as he's forgotten. Case closed!

When it comes to open meetings and open records, the Assembly and the Senate have carved out all sorts of exemptions for themselves.

You can be a fine upstanding citizen in Potosi who volunteered to be appointed to be a voting member of the township flood plain subcommittee that meets once a year and you're subject to greater requirements when it comes to records and meetings.

I'll vote for more sunshine in the Capitol. Of course it might force the rats to backrooms in bars across the street, but that's true for the Potosi flood plain committee, too.

What's that you say? There's more money at stake in the Capitol, so they need more secrecy?

Marc Eisen said...

George,

I'm not sure the situations are parallel, given the uniqueness of redistricting. But I haven't thought it through, so I don't have an opinion on what you ask.

George Mitchell said...

Marc,

So, you believe redistricting is "unique" from other bills where the Legislature secretly makes decisions. And, if I read you correctly, you have "not thought through" the fact that the Legislature routinely addresses other bills in secret session.

Not sure what more I can add to that.

Marc Eisen said...

George,

Redistricting may be unique as an issue in that the public might be better served if it were taken out of the hands of the politicians. They have such an unavoidably selfish stake in the outcome that the question can be asked: Whose interests are they serving when they redraw the lines?

I haven't thought really hard about the issue. I haven't interviewed people pro or con on it. I don't have an informed opinion. I would, however, like to hear smarter people than me talk about it.

The system we have now does not inspire confidence.

George Mitchell said...

Marc,

If there are states that have better systems I am anxious to know how they work.

In the meantime, when Senate D's bolt the state they are not likely to get a role in redistricting.

Marc Eisen said...

George, you and I are the only people reading this. I think a case can be made that redistricting should be taken out of the hands of the politicians. Their self-interest in jimmying the lines is overpowering. Even worse, they have no shame in spending hundreds of thousands of the taxpayers' dollars on lawyers to do their partisan mischief. And, yes, the Democrats are just as bad as the Republicans.

Anonymous said...

George, there are a number of states which seemingly have better systems.
And since when is the Senate D's "bolting" even relevant to the thread???

www.policyarchive.org/handle/10207/15946