After striking down Wisconsin's legislative maps as unconstitutional two months ago, a federal court Friday ordered Gov. Scott Walker and lawmakers to redraw the districts by Nov. 1 to ensure their use in the fall 2018 elections.
The three-judge federal panel rejected the state's request to wait until the U.S. Supreme Court has weighed in on the case, which is being watched closely nationwide because it relies on a novel legal argument.
But the panel also denied a request by the Democratic plaintiffs that the court draw the maps. The judges said that was a task better left to the state's GOP-controlled Legislature and Walker, saying there was no evidence they wouldn't comply with the order.
"It is neither necessary nor appropriate for us to embroil the court in the Wisconsin Legislature's deliberations," the panel wrote.
Unlike the 2-1 November decision striking down the maps for being excessively partisan, this order was unanimous. It was hailed by Bill Whitford, the lead plaintiff in the case brought by the Fair Elections Project, which said it wouldn't appeal the parts of the order it lost.
"Today is a good day for Wisconsin voters, and another step in the journey of ensuring that our voices are heard. Now, we will be keeping a watchful eye on the state Legislature as they draw the new maps and I ask them, for the sake of our democracy, to put partisan politics aside and the interests of all voters first," Whitford said.
The Democratic plaintiffs sued in 2015 to invalidate the maps passed by GOP lawmakers and Walker in 2011, and the lower court has ruled in their favor. The U.S. Supreme Court is required to take the case and could still rule against the plaintiffs.
"We are reviewing the court's order, but we expect to file an appeal with the Supreme Court and seek prompt reversal of this decision," said Johnny Koremenos, a spokesman for GOP state Attorney General Brad Schimel.
Redistricting cases are unusual in that they are first heard by a special three-judge panel and then go to the U.S. Supreme Court. They do not go to appeals courts, as other litigation does. Appeals go directly to the Supreme Court, which must take some action on them.
The order focused on the state's 99 Assembly seats, but redrawing those districts would alter Senate districts since each of them is made up of three Assembly districts.
Democrats called on the GOP Legislature to hold hearings on any new maps considered. Walker and Assembly Speaker Robin had no comment and Senate Majority Leader Scott Fitzgerald referred questions to Schimel.
The judges on the panel were Kenneth Ripple, a senior judge with the Chicago-based 7th Circuit Court of Appeals, U.S. District Judge Barbara Crabb of Wisconsin's Western District and U.S. District Judge William Griesbach of the state's Eastern District.
Ripple was appointed by Republican President Ronald Reagan, Crabb by Democratic President Jimmy Carter and Griesbach _ who dissented in the November decision _ by Republican President George W. Bush.
Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said that he believed the Supreme Court would overrule Friday's order but that in the meantime legislative candidates could face a tricky decision to run in their old districts or in new ones passed by lawmakers this year.
"Today's decision leaves the candidates at risk on these issues and creates uncertainty for the state that is unnecessary," Esenberg said.
The plaintiffs, however, said that the state has already held three sets of elections _ in 2012, 2014 and 2016 _ using the now invalidated maps and needs to proceed with changing them.
"The court is making the right decision to implement their verdict, and we are pleased that Wisconsin is on its way to having honest elections," said former GOP state Sen. Dale Schultz, a co-chairman of the Fair Election Project. "I hope the Legislature chooses to conduct this new map-drawing process in an open, transparent manner, heeding the concerns of multiple federal panels."
The court found that the 2012 and 2014 elections showed that the maps for the Wisconsin Assembly are some of the most heavily skewed maps in the country going back more than 40 years. The November decision determined that Democrats got more votes than Republicans in Assembly races in 2012, but Republicans were able to claim 60 of the 99 seats.
Republicans argue that the problem happens because Democrats increasingly live in cities with large populations but relatively small size geographically.
But the plaintiffs argued that blocs of Democratic voters had also been packed into districts instead of scattered into competitive ones. That resulted in Democrats casting a large number of "wasted votes" _ that is, votes that are not needed to elect a candidate.
The judges found in November that Republicans had gone overboard in taking partisanship into account in drawing the maps and created a special measure to calculate the likelihood they would win particular districts.
(c)2017 Milwaukee Journal Sentinel
