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Gerrymandering for Political Advantage Struck Down in Wisconsin
For all but 2 of the past 33 years, Michael Madigan has been Speaker of the Illinois House of Representatives. From that perch, he’s built a political machine that has been able to control (or impede) the flow of legislation in the House and thus throughout Illinois government. Until the recent election, his caucus contained 71 members, a perfect 3/5ths super-majority capable of overriding any gubernatorial veto and sufficient to pass bills after normal session, when that number is needed to pass legislation out of the House.
Chicago Tribune columnist John Kass wrote back in 2010 that Madigan’s power base depended upon a group of legislators known as the “Madigan 12”. Those 12 legislators who resided outside of Chicago were the linchpin of Madigan’s power.
The 2016 election saw an erosion of that super-majority, with the Republicans picking up a net of 4 seats in the House (including your humble correspondent, who picked up the seat in the 63rd District). So it will be interesting to see how things shake out in January, when the 100th General Assembly convenes.
However, there was another matter that was at issue in 2016, and that was a proposed Constitutional amendment to provide for non-partisan redistricting of legislative boundaries. The proponents of the measure collected over 600,000 signatures to put the measure on the ballot, more than twice the number needed. But the Illinois Supreme Court, voting on partisan lines, struck down the measure and it was kept off the 2016 ballot. So unless something is done to rectify the situation before the 2020 census, Madigan will still control the process of drawing legislative maps.
But relief may be in sight with the decision of a 3-judge Federal panel in Wisconsin, which has ruled that the Wisconsin Legislature’s 2011 redrawing of State Assembly districts to favor Republicans was an unconstitutional partisan gerrymander. The court said in its ruling:
“When the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view… The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.”
The court came up with a formula for determining if a district is drawn to protect one party or another and ruled that if such is the case (which it did here), the district’s boundaries are invalid. The entire decision, all 159 pages of it, can be found here.
While redistricting maps have been invalidated for years on racial grounds, this is the first time a map has been struck down on the grounds that it gives an unfair advantage to a political party. While the decision awaits a hearing in the U.S. Supreme Court (this case falls into a category that can bypass the Court of Appeals), the implications for Illinois are obvious.
If the decision is upheld, then the power that has kept Speaker Madigan in the catbird seat for so long may be wrenched out of his hand by Federal action. Given his ability to keep non-partisan redistricting off the ballot in the past 2 cycles, one can only hope that this decision might give us a more level playing field in 2020.
Published in Elections
How can a practice that dates back to the early days of the republic suddenly be unconstitutional?
In this instance, however, it seems the decision was reached only because it gave unfair advantage to the wrong political party. I suspect that states will find a way to wield this power only when it benefits democrats and harms republicans. We’ll see how it shakes out, but I’m skeptical.
May it be so.
Congratulations on the win again, IG.
What the courts have been looking for is an objective formula for determining bias, and it seems to have latched onto one here. I think that’ll be the focus of any appeal to the Supreme Court. We have crossed a threshold here, that’s for sure. But I’m looking at this from the standpoint of its effect on Illinois. If the ruling stands, it’s the Dems’ ox that will be gored here.
Yes, let’s not hold our breath just yet.
I think it more likely to play out that even if the Dems in Illinois are using redistricting in partisan ways they’ll likely be able to cover over that sin with racial balancing. They’ll be given a pass on doing bad for all the perceived good, even though we know both are toward the same ends, namely their continued control of political power.
I think the dissenting judge better captured the prevailing law from SCOTUS. The conservative justices have tended to be highly deferential to actions by the state legislatures even when the geographical outlines are highly creative (see, e.g., North Carolina). And the SCOTUS liberals have approved of such actions because they have traditionally been done by and for Democrats.
Gerrymandering is pretty useful at the margins but can’t forestall bigger trends. Unless Trump is completely incompetent, the Democratic Party’s core alliance of cultural-issue gentry white liberals, blacks, Hispanics and blue collar whites is likely to be put under enormous pressure over the next four years. Normal white people have made it pretty clear that the Democratic Party no longer speaks to or for them. Maybe normal blacks and hispanics will tire of identity politics eyewash and join the larger coalition of normals in pursuit of policies for the economic interests of the normals.
So that’s the Illinois perspective… and I unquestionably sympathize.
Perhaps you won’t be too shocked that the north-of-the-border view is different? Not just because Wisconsin is better off without a Democratic state senate. From what I’m reading, the ruling used a very problematic test to overturn it:
But that’s the inevitable result of Wisconsin political geography. The Democratic votes are naturally concentrated in Milwaukee and Madison, and any map to try to spread them out would be incredibly artificial. Sure, the Republicans maximized the effect for their own benefit — but the Court is going far beyond that. The principle at stake is the same as in the electoral college: the highly-concentrated vote in the cities shouldn’t override everything else. The lady who brought the case is a “No Labels” activist, for what that’s worth.
Rick Esenberg, whom the Milwaukee paper quotes here, is credible and not reflexively partisan. He says this finding is out of line with Supreme Court precedent and he fully expects it to be overturned.
It may be bad public policy, but that has no bearing on the constitutionality of the process. This ruling is sort of absurd in how far it deviates from all prior precedent.
Didn’t see Leigh’s post before I put up mine. I have the same link to Rick Essenberg (who rocks by the way).
How can a practice like same-sex marriage that has been banned for thousands of years suddenly become a constitutional right?
Not quite, mine was to the Milwaukee Journal-Sentinel — shame on me. But they quote him talking about Kennedy’s history as a reason he expects it to be struck down and I hadn’t seen that anywhere else.
Just imagine if this were to be sustained. Apply the same logic to the electoral college. It would only be fair, right? That’s much more important than what an ancient document actually might say.
Point of order. Same-sex marriage was never “banned”. It was considered axiomatically impossible.
My extensive legal research on the matter (skimming the first few links that came up when I googled “Supreme Court Gerrymander”) indicates two relatively recent [last 20-30 years] cases that declared political gerrymandering (distinguishable from racial gerrymandering) to be left to the political process rather than the courts. Therefore I would expect this to be overturned. Although they were plurality opinions and not majorities, so who knows.
With regard to racial gerrymandering, it’s been required by certain Supreme Court cases under the Voting Rights act, so I don’t see how anyone can then turn around and say political gerrymandering is unclean.
It does seem like it ought to be possible to come up with a mathematical algorithm for subdividing a state into equal-population districts with a minimal size (compactness) and take this out of the realm of politics all together. But that would probably require eliminating consideration of race as well – something I’m for, but good luck getting it through Congress and the courts.
My preferred approach would be to require them to follow existing boundaries (county/city/township/…) and just get as close as is reasonable. The “one man one vote” decision just led to ever greater domination of states by their large cities.
But, without a racially gerrymandered district, people like Gwen Moore might have to get a real job. I’m not sure what else she’d be qualified for though. Circus clown costume designer maybe?
Following existing boundaries was implied (or at least on my mind) but unstated when I mentioned an algorithm for compactness.
The point being, redistricting could be taken out of the realm of politics. A simple rule – anyone can generate any map they want, the one that is mathematically demonstrated to have the most compactness across all districts “wins”.
Congrats on the win, @illiniguy! Wish I was in your district but I’m a little too far southeast – not by much, though!
I think that as others have stated, it has to be all one or the other – eliminate gerrymandering completely, or keep it. No difference between race and political ideology. It is instructive and unsurprising that the case decided against gerrymandering would be against the right.
What about having a maximum number of lines that could be used in drawing the district along with a minimum width to avoid stuff like the Luis Guitierrez district in Chicago?
By the way, I signed the non-partisan redistricting proposal both times.
I agree. I don’t remember where, or if it was even in the United States, but there have been algorithms or procedures that do that.
The decision is just totally indefensible as a legal matter. It will also be impossible to implement in any state where there is a non-white population in any number (as there is legislation requiring majority minority districts, which also means super-majority Democrat districts). There is no constitutional right to partisan-neutral districts. This is particularly ridiculous when you think that partisan identification changes, people move, and a district drawn to be 55% Republican in 2011 may wind up being 52% Democrat by 2019. Also, with an ever increasing number of voters not affiliated with either major party, this is even more difficult (not to mention states where there is no partisan registration like Virginia where you can discern things by voting precinct based on past voting but you can’t really pick and choose blocks knowing that block has all registered Democrats).
While they may not have said so, the majority effectively declares that “Republicans” or “Democrats” are some sort of protected class such that laws or government actions that impact people identifying with a party need to be justified on some higher standard. That’s ridiculous – see above about how any individual can change his categorization into one or other group from day to day. So far, I have never seen heightened scrutiny applied to a group that is “self-selected” as opposed to a group where your membership is “immutable” (sex, race, ethnicity, sexual orientation).
I suspect that, even without a new conservative Justice replacing Scalia this decision will get savaged by the Supreme Court in a not even close vote (I would bet on at least 6 or 7 votes to reverse among the current justices – and that whoever replaces Scalia would shoot this down as well).
Well, the R&D congressmen are, sort of. This might be even more effective than gerrymander at preserving incumbents. If the partisan demographics move too far, you would have to redistrict to get them back in balance, i.e., save the congressional seats for the existing party. If they think it through, a lot of politicos may like the idea.
Maybe they could call it a tax.
I think the headline writer meant Illinois and not Wisconsin?
The ruling was in Wisconsin and about Wisconsin redistricting, but if it is upheld, it might bring us one step closer to my fondest wish: Mike Madigan being led from a Federal courthouse with a raincoat over his head.
My issue has been to date it has been in Purple or Red states that the non-gerrymandering laws have passed. I voted for it in Florida. I would really like to see these laws get incorporated into places like New York, Illinois and California. However I agree Federal courts have no business legislating this from the bench. This is a state sovereignty issues and should be up to each state to determine now they want to proceed. It should be a federal felony for judges to abuse their power in implement this policy thru judicial fiat, even though I agree with the policy.
I tend to think the ability to gerrymander is part of the game: if you win, you get to set the rules.
Florida adopted a mandate for a supposedly neutral means of deciding Congressional districts, following pre-existing town and county borders. The Democrats have picked up seats as a result, such as Colonel West’s on the Treasure Coast, John Mica north of Orlando, and Charlie Crist (ugh!) near Tampa. I’m not sure of any moving the other way.
We’ll see what happens when Florida gets more reps with the 2020 census.