Friday, February 10, 2012

A few words on redistricting

Earlier this week, I finished discussing redistricting with my students in Election Law. There are, I think, overarching observations to be made regarding the ongoing redistricting litigation in Wisconsin.

There is almost no chance for a successful challenges to the plan as a "partisan gerrymander." This is not because the plan doesn't favor Republicans. It does and, if the Democrats had controlled both houses and the state house, they would have written a plan to favor their candidates.

The reason the challenge can't succeed is that such claims are effectively "nonjusticiable," i.e., the courts won't hear them. Put briefly, in  a 1986 case called Davis v. Bandemer, six justices held that claims of a partisan gerrymanded were justiciable. The plurality opinion (which, as a practical matter, established the standard for such claims) placed the bar at almost Olympian heights. Proving that the majority political party intended to benefit itself would not be enough. The constitution, according to the plurality, did not require that a map be "proportional" and the mere fact that a a plan makes it more difficult for one party to win seats would not render it constitutionally infirm.

To the contrary, a plan would be subject to successful constitutional challenge only if it would "consistently degrade a voter's or group of voters' influence on the political process as a whole."  The discrimination against a challenged group would have to be substantial and the plaintiff would have to produce evidence of "continued frustration of the will of a majority of voters or effective denial to a minority of voters of a fair chance to influence the political process."

Not surprisingly, plaintiffs had little success under Davis. In 2004, in a case called Vieth v. Jubelirer, four justices voted to abandon Davis and declare these claims nonjusticiable. In so doing, they noted that claims brought under Davis "almost invariablty failed." A fifth, Anthony Kennedy, would not go that far but he agreed that there was currently "no agreed upon model of fair and efficient representation" and, therefore, there was "no basis to define clear, clear, manageable and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights." But although he could not currently imagine a judicially manageable standard for assessing such claims, he was unwilling to conclude that someone might not develop one in the future. So, although he joined in the majority in rejecting the claim before the Court, he left the abandonment of Davis to another day.

So the current state of the law is that a majority of the Supreme Court either regards these claims to be nonjusticiable or cannot conceive of a standard by which they can be adjudicated. Even under  the older case law, the standard employed was such that the plaintiffs almost never won. Some scholars have concluded - and I agree - that this renders partisan gerrymandering claims "effectively dead." Rick Hasen, one of the leading election law experts in the country (whose text I use even though I frequently disagree with him) writes that plaintiffs will not "and should not win partisan gerrymandering claims until a consensus forms around a standard by which they can be evaluated.

So one does not have to engage in extensive analysis of the new plan to know that claims that it unfairly treats Democrats and benefits Republicans are going no where. It doesn't matter if that's what the Republican majority was trying to do. That claim is effectively dead as a matter of law.

Lest the commenters misunderstand, this is not an argument that partisan gerrymanders are "OK." It is a recognition of the fact that you can't effectively challenge them in court. The remedy for those who want to redistrict in some other way is political.

The plaintiffs in one of the current lawsuits, Baldus v. Brennan alleges that the plan has departed more than it has to from the prior map, causes "too many" people to have to wait six years to vote for Senator (an inevitable part of redistricting) and creates districts which, in the plaintiffs view are insufficiently compact and contiguous or consonant with "communities of interest."
But the US Consitution does not require maximal adherance to a prior map or districts that are contiguous and compact. (The Wisconsin Consitution might but the plaintiffs will be unable to  advance state constitutional theories in federal court.)
Nor do plans get invalidated because they split "communities of interest" which are, in any event, multiple and pluriform. The principal example advanced by plan opponents illustrates this. The new plan splits the counties of Racine and Kenosha by combining the cities of Racine and Kenosha. You can argue that this splits a community of interest, i.e., residence in the same county. But you can also argue that it respects one, i.e., residence in proximate urban areas.
There is, in addition, no rule that the number of people who must wait six years to vote for a state senator be minimized. Courts recognize that this is an inevitable consequence of redistricting and a requirement that the number be minimized would require abandoning other legitimate redistricting principles.

In other words, the lawsuit alleges a number of things that, even if true, do not form a basis for invalidation of the plan.

There is more room for a successful challenge under the Voting Rights Act but these challenges, even if successful (and they don't seem strong), are likely to affect the map only at the margins. To be sure, changing one part of a map is like pushing in on a balloon but, given the nature of Voting Rights claims and the concentration of minority populations, a successful challenge is not going to make the map materially more favorable to Republicans.

Whether or not the Republicans violated the Open Meetings law is another question entirely and one that I haven't looked at closely enough to have an opinion on. Maybe later.


John Foust said...

If you're right, you're saying your WisGOP bronies will win the short-term legal battle in gerrymandering, but will lose the political war over the next few years because they offended the majority's sensibilities with their secret agreements and blatant partisanship. If you're wrong, your pals will lose the legal battle, too.

Anonymous said...

Rick, to your knowledge, has any member of the GOP ever done anything wrong since the party's founding in the 1850s?

Unknown said...

Wow, it really sucks to lose an election in a redistricting year.

And when you lose an election, especially as badly as the Democrats did, doesn't that make you--- the minority?

But hey, lets be more cheerful and talk about how Walker's reforms are working! My property taxes went down, how about yours?

George Mitchell said...

Rick's post is less a defense of the GOP than it is an explanation of the relevant legal issues. He is explicit in explaining why the same issues would work in the D's behalf if they were in the majority. His post correctly anticipates that some commenters will misunderstand its content.

Ed Fallone said...


If you are refering to the following litigation, then the non-justiciability arguments you discuss would seem largely irrelevant:

Rick Esenberg said...


You have to be more specific than that.

A claim of partisan gerrymander is effectively nonjusticiable for the reasons that I gave. Baldus includes a claim under the Voting Rights Acts. That's justiciable although it may be hard to prove and will probably affect the plan on the margin. (We also have competing cases making what may be conflicting VRA claims on behalf of hispanics and african americans.)

The idea that the 1982 decision on the number of voters who have must wait six years to vote for a senator can serve as a standard for this case and for invalidating the plan will not, I think, withstand scrutiny. That case involved a decision to redo an approved plan. The balancing of interests in such a case are fundamentally different.

Ed Fallone said...

The majority of the Justices in the Vieth case believed that a political gerrymandering case would be justiciable in federal court if a manageable standard for reviewing such cases could be determined. The key opinion was Kennedy's concurrence, where he said "if workable standards do emerge to measure these burdens [due to gerrymandering] . . . courts should be prepared to order relief." The Vieth case does not stand for the proposition that such claims can never be justiciable.

In point of fact, the 1984 Republican Party of Wisconsin Court case identified and applied manageable standards in the situation of large scale disenfranchisement as a result of re-districting plans. The current panel of federal judges in the Baldus case has refused to dismiss the disenfranchisement claims of the plaintiffs, so you cannot waved them away as easily as you wish.

The Voting Rights Act claims in the Baldus Complaint and the claims alleging racial discrimination are, of course, completely justiciable.

In my opinion, your discussion of the Supreme Court precedent merely assumes that no manageable standard for evaluating the constitutionality of partisan gerrymandering cases can ever be found. Ironically enough, the current Baldus case may be the one instance where clear factual evidence exists in the record that the re-drawn voting district boundaries are entirely pretextual.

That is not a standard that could be met in most cases, because such outrageous factual evidence will rarely be available. But it is certainly a standard that is easy for the courts to apply.

Rick Esenberg said...


Go back and read my post. I was very careful in describing Veith and what Justice Kennedy said. The conclusion I draw from his concurrence - which says a number of things about what cannot be a standard - is hardly unique to me.

Look at the case law. There are always people who are forced to wait an extra cycle to vote for a representative elected on a staggered term. It is not "outrageous" or unusual. Courts do not find this to be a basis for invalidating a plan because it is an inevitable part of the process. The 1984 case is not dispositive because, as I pointed out, it's impact was not inevitable. It constituted a modification of the original plan. In fact, the district court expressly based its decision on that fact, writing "Had the Legislature enacted a reapportionment plan similar to its '83 effort before the November 1982 elections, we would have no trouble sustaining its validity against a constitutional challenge ...."

I suppose that you could use some absolute number of voters who are rolled over to be the standard for your plan but it hardly meets the Davis standard and is a far weaker candidate than any of the others that have been rejected.

Anonymous said...

Mr. Esenberg's merely repeating himself doesn't address Ed Fallone's points, which are informed not only by the prior case law but more importantly the specific factual allegations contained in the Baldus v. Brennan complaints as well as the developing narrative revealing the political and legal subterfuge of the Republicans in power.

Rick Esenberg said...


Not at all true. In fact, Ed does nothing more than link to Baldus and then suggest that maybe the number of voters rolled over could be a standard for redisricting. All of that is fair commentary, but not likely for the reasons I explained.

Ed Fallone said...

Today's decision by the three judge panel, referring to a "shameful attempt to hide the redistricting process from public scrutiny," does not bode well for the defendants.

If the panel makes a factual finding of bad faith on the part of the Republicans in the legislature, such a finding would seem to support the plaintiff's claims under the Voting Rights Act and the Equal Protection Clause (both of which have an element of dicriminatory intent), the claim relating to disenfranchisement (which requires a finding that the high numbers of disenfranchised voters was "unnecessary"), and even the the partisan gerrymandering claim (where plaintiffs argue for a burden shifting standard based on the absence of objective, non-political reasons for the boundaries). The defendants are facing three very angry judges on the panel right now:

Anonymous said...

The three-judge panel ordered release of additional documents today and what was released is most informative.

In E-mail #65, the name of Herr Professor first appears. Here is what one of the lawyers wrote to another:

"Professor Rick Esenberg has agreed to testify next Friday in support of the map. He needs a.) the map; b.) the numbers: c.) a summary of eq. population, compact/contiguous, minority responsiveness aspects of the map."

What does this mean? Sight unseen, Herr Professor was willing to endorse the partisan work product! "Tell me what to aay and I will say it," he unashamedly proclaims!

Lucy, you got a lot of 'splaining to do!

Anonymous said...

"Professor Rick Esenberg has agreed to testify next Friday in support of the map. He needs a.) the maps ... " -- Jim Troupis, June 30, 2011


Rick Esenberg said...


The concern seems to be over the attempts by Michael Best to protect certain communications under the attorney-client privilege. Having practiced law for 30 years, I can say that 1) it doesn't really surprise me that MBF tried that and 2) it doesn't really surprise me that, in these circumstances, it didn't work. I wouldn't have done it that way but, then again, I wasn't involved and should be humble about criticizing lawyers in whose shoes I did not stand.

But none of that goes to the merit of the claim. Contrary to your implication, there is no requirement that a minimal number of voters be "rolled over" and such a requirement would privilege that over many other legitimate - and often contradictory - redistricting criteria. The suggestion that there ought to be a burden on the defendants to articulate some non-partisan reason for the map is impossible to reconcile with either Davis or Veith.

I agree that having the judges mad at you is not a good thing. Whether that anger is justified in this case is something I won't comment on. But I have yet to see anything in the documents that have been produced that bears on the merits of the claim. I assume that the panel judges, however they might feel on the attorney-client issue, will put that aside and decide the case in accordance with the law which I have ser forth in some detail here and elsewhere.

Anonymous said...

"I wasn't involved."

Oh really.

Anonymous said...

"I wouldn't have done it that way but, then again, I wasn't involved..."

You weren't involved? Is that truthful, given what was released today?

John Foust said...

Are you anonymi referring to document 65 from James Troupis (at PDF page 47), saying "Professor Esenberg has agreed to testify next Friday in support of the map. He needs a.) the maps; b.) the numbers; c.) a summary of eq. population, compact/contiguous, minority responsiveness aspects of the map."

That's kind of a cool trick to get a professor to agree to testify positively about something he hasn't seen yet. He just knew it would be A-OK, days in advance! Speak! Speak! Roll over!

Rick Esenberg said...


When I say I was "uninvolved," I mean that I was not involved with things that have been the subject of pretrial proceedings - which have nothing to do with the merits of the plan. I point it out because it's easy for me to be critical. I wasn't in the position of those who were.

The actual e-mails between Jim and me were released earlier than today. Peter Earle told me - when we both testified at an unrelated legislative hearing on Jan. 19 - that he had read them.

I never told Jim I would "support" the plan sight unseen and he doesn't say that I did. I told him what my views were on challenges based on allegations of partisan gerrymandering - views that I had publicly expressed in 2010 back when the Democrats were in office.

I then asked for additonal information and he got it for me.

We never discussed what my testimony would be and never went over it before I testified. If he thought he knew what I would say, it was only because he knew something about my views of the law - to which my remarks were confined.

My actual testimony was quite narrow. I said that I thought the plan was unlikely to be vulnerable to judicial challenge. I did not say that it was the best plan or whether or not the legislative should adopt it. In fact, I said that I had no opinion on that.

That doesn't imply that it's not a good - or even a great - plan, but just a recognition of the reason that judicial review of these things is narrow. The various criteria that we might use to evaluate these plans are multiple and point in differing directions.

Anonymous said...

Of course you were involved. According to Troupis, you agreed to testify not on some general legal principles but "in support of the map," even though you didn't have a copy of the maps and he advised you'd need a copy of the maps. Elsewhere Troupis coordinates other testimony in support of the maps. That coordination of favorable testimony was the whole point of much of the correspondence released today. How about those others who gave testimony, were they not involved either?

"actual e-mails between Jim and me"

How about posting those?

Anonymous said...

Don't give us this baloney. You were involved the instant you agreed to testify.

Anonymous said...


You appear to be ethically sullied.

Jeff Simpson said...

How do you sleep at night? Is blind partisanship and complete obedience something you teach your class?

Words escape me......

Anonymous said...

Why doesn't the Professor just admit that he willingly plays the "useful idiot" role in support of All Things Republican, both known and -- like the partisan reapportionment plan -- unknown?

Anonymous said...

Shit hits the fan in 3, 2, 1...

John Foust said...

The words come straight from Troupis. In context, he and his minions are lining up supporters who will speak. Troupis says you "agreed to testify ... in support of the map." When you say "I never told Jim I would 'support' the plan sight unseen and he doesn't say that I did" you are asking us to believe that Troupis is deliberately misrepresenting your views in what he believes is a confidential conversation with his minions. You are asking us to believe that your positive "support" was his invention. Why would he do that?

gnarlytrombone said...

"I mean that I was not involved with things that have been the subject of pretrial proceedings - which have nothing to do with the merits of the plan."

No, you're just the Better Call Saul media celebrity Troupis can count on to deliver some lawyer-like PR babble.