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Wisconsin Supreme Court consultants say Republican-drawn legislative maps are gerrymanders, don’t deserve consideration

The experts said other maps submitted to the court are competitive enough that 'the party that wins the most votes will win the most seats'

Mark Gaber, of the Campaign Legal Center in Washington D.C. addresses the Wisconsin Supreme Court in a redistricting hearing at the Wisconsin state Capitol Building in Madison, Wis. Ruthie Hauge/The Capital Times via Associated Press

Two consultants hired by the Wisconsin Supreme Court’s liberal majority said redistricting plans submitted by the Republican-controlled Legislature do “not deserve further consideration” by justices as part of an ongoing lawsuit over the state’s political maps.

Their report on six map proposals said plans submitted by Gov. Tony Evers, Democrats and academics are “tilted toward the Republicans” but are competitive enough that “the party that wins the most votes will win the most seats.”

The findings, released to the court Thursday night, struck at the heart of an argument long used by Republicans that Wisconsin’s “political geography” favors their party because Democrats are generally clustered in larger cities. Wisconsin’s current legislative maps, first drawn by Republicans in 2011 and redrawn in 2021, have helped the GOP cement lopsided majorities in the Assembly and Senate, even in years when Democratic candidates performed well statewide.

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But University of California, Irvine political scientist Bernard Grofman and Carnegie Mellon University political scientist Jonathan Cervas told the court that the maps submitted to the court contradicted that claim.

“To put it simply, in Wisconsin, geography is not destiny,” they wrote.

The report argues map proposals from every party except the Legislature and voters represented by the conservative Wisconsin Institute for Law and Liberty are able to “improve on traditional good government criteria compared to the current map and manage to create plans with modest levels of partisan bias.”

Also, the consultants wrote, the Legislature’s plan and the plan submitted by WILL “are partisan gerrymanders” from a social science perspective.

The other four plans, the report said, are similar on most criteria, and more competitive than the GOP maps. The consultants did not endorse a specific map but told the court they were prepared to improve map proposals if justices choose.

Shortly after the report was released, Evers called it an important step in the process for finding new maps.

“The days of Wisconsinites living under some of the most gerrymandered maps in the country are numbered,” Evers said.

WILL President and General Counsel Rick Esenberg released a statement slamming the report, accusing the experts of hiding their own preferences.

“The report hides its bias behind a fog of faux sophistication,” read the statement from Esenberg.

Redistricting consultants: Who are they?

Grofman and Cervas were appointed to serve as consultants to the court in late December.

Their task: vet the six map proposals submitted to the court against redistricting criteria outlined by the liberal majority in late December.

Those include constitutional requirements that legislative districts be as compact as possible, include similar populations and have boundaries that physically connect. They also included a new “partisan impact” requirement. 

Grofman and Cervas have done similar work for courts around the U.S. in recent years

Grofman worked for Wisconsin Republicans during two previous rounds of redistricting in 2011 and 2001. More recently, he was hired by the Supreme Court of Virginia in 2021 to help redraw legislative districts after a bipartisan commission couldn’t agree on how lines should be drawn. 

Cervas was hired last year by a New York State judge as a special master to draw new legislative districts following a lawsuit filed by state Republicans.  

Contracts with the Wisconsin’s Supreme Court show they’ll each be paid up to $100,000 for their services. 

Why is the Supreme Court considering new voting maps?

In a bombshell ruling issued Dec. 22, the Supreme Court’s liberal majority declared current Republican-drawn maps violate the Wisconsin Constitution’s requirement that districts must be contiguous and ordered parties in the redistricting lawsuit to submit new map proposals.

In that December ruling, the court’s conservative justices issued three separate dissenting opinions accusing their liberal colleagues of diving “headlong into politics” and being “handmaidens of the Democratic Party” who were undermining the integrity of the court. 

‘Partisan impact’ of proposed maps measures their competitiveness

The Democratic voters who filed the legislative redistricting lawsuit asked the Supreme Court to rule on whether current GOP-drawn maps were a partisan gerrymander, so heavily tilted toward Republicans that Democrats would never be able to gain a majority in the state Assembly and state Senate.

Justices didn’t take up the gerrymandering claim in their December ruling, but the court’s liberal majority said it would consider “partisan impact” when picking new maps. Writing for the majority, Justice Jill Karofsky said the court would “take care to avoid selecting remedial maps designed to advantage one political party over another.”

Grofman and Cervas looked at a few metrics to analyze the partisan lean of the maps, including their partisan bias — which measures each party’s expected seat share in a hypothetical 50-50 election.

Their report found that the current map, and the new map submitted by Republicans, were the most biased in favor of the GOP.

“In a tied election, Republican candidates can expect to win on average about 26 more seats than Democrats,” they wrote.

Grofman and Cervas said maps submitted to the court by Evers, Democratic plaintiffs, Democratic state senators and a group of mathematicians from Wisconsin had much closer projected outcomes. Evers, for example, would give Republicans a five-seat projected edge.

In contrast, the experts wrote, the GOP plans “the Legislative Intervenors-Respondents’ plan and the Johnson intervenors-Respondents plans operate to “preclude any potential for Democratic control of the legislature” in most election scenarios.

“That kind of insulation from the forces of electoral change is the hallmark of a gerrymander,” they wrote.

The decision by the court’s liberal majority to evaluate maps based on “partisan fairness” is not universally embraced on the court.

When the court overturned the current maps in December, conservative justices wrote that there was no legal foundation for considering partisan impact and it would enable “the majority to engage in a purely political exercise.”

The consultants did not consider the maps GOP lawmakers passed last week, which were vetoed by Gov. Tony Evers

In a last minute attempt to enact new maps as the redistricting lawsuit draws to a close, Republican lawmakers amended a nonpartisan redistricting bill last week to include versions of maps they claimed Evers submitted to the court.

Assembly Speaker Robin Vos, R-Rochester, said their maps were nearly identical to what Evers sent to the court with “miniscule changes to un-gerrymander.” The changes were aimed at reducing the number of GOP incumbents who would be drawn out of their districts under the governor’s proposal.

Evers vetoed the bill calling the Republican maps “gerrymandered” to protect GOP incumbents. 

In the end, it wasn’t a factor in Thursday’s expert report.

Another redistricting lawsuit is asking the Supreme Court to change congressional maps ahead of the fall elections

There is still a ways to go before the court issues a final ruling on the state legislative maps issue, but another maps challenge has already been filed. Last month, a Democratic law firm asked state justices to declare Wisconsin’s congressional district maps unconstitutional

If the court takes up the case, it could upend Wisconsin’s congressional races months before the 2024 election. Six of the state’s eight congressional districts are currently held by Republicans and only two are seen as competitive. 

Republican lawmakers and party officials have already vowed to appeal both redistricting cases to the U.S. Supreme Court. 

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