People line up outside the U.S. Supreme Court in Washington on Oct. 3, 2017, to hear arguments in Wisconsin's redistricting case. Manuel Balce Ceneta/AP Photo
The day the new Republican-drawn legislative map passed the Wisconsin Assembly in 2011, Democrat Fred Kessler knew his party was in trouble.
Kessler was a state representative from Milwaukee at the time, but his history with redistricting spanned decades. He had worked on Wisconsin’s maps in 1963, 1971 and 1991. This time around, Kessler was on the outside looking in.
"In all the years I have been working on redistricting, I have never seen anything as egregious and as outrageous as this," he said in a floor speech that day.
Kessler had run the numbers and was pretty sure that under this map, Republicans would win big majorities in the state Legislature, even in years when Democrats did well statewide.
And even in the rough-and-tumble world of redistricting, Kessler thought this was too much. During his speech, he referenced U.S. Supreme Court cases that had raised the prospect that a partisan gerrymander could be unconstitutional if it went too far. Kessler thought this map had done just that.
Former Democratic state Rep. Fred Kessler in Milwaukee, Wis. Kessler was a driving force behind a legal challenge to Wisconsin's 2011 political maps that went all the way to the U.S. Supreme Court. Angela Major/WPR
"Your lawyers have told you, 'Don't worry, don't worry, we'll get this through. Don't worry. We'll withstand any court challenge to this,'" Kessler said. "I disagree with you. I think we have a very good chance to overturn this."
Kessler’s concerns about the map turned out to be well-founded. In 2012, despite strong Democratic turnout statewide, Republicans won 60 out of 99 seats in the state Assembly.
Kessler decided something had to be done. In early 2013, he assembled a group of friends in politics and law.
Map data courtesy of the Legislative Technology Services Bureau / John K. Wilson/WPR
Among the first people invited were Peter Earle, one of the attorneys who challenged the map in a 2012 lawsuit, James Hall, then-president of the NAACP of Milwaukee, Richard Saks, a prominent Milwaukee lawyer, and Sachin Chheda, then-chair of the Democratic Party of Milwaukee County. They started meeting at the Watts Tea Room in downtown Milwaukee.
"We kind of had a corner of ourselves and the loud political people could pontificate," Chheda recalled. "It was just talking and thinking."
Bill Whitford, a retired law professor from Madison who had known Kessler since they were in college together in the 1960s, later joined the group.
At first, they were just brainstorming. If Democrats had no shot at winning the Legislature, what could they do?
Chheda said they saw one path forward: They would take a case against this map to the United States Supreme Court.
Sachin Chheda, one of the members of Kessler's Watts Tea Room group, speaks at a redistricting rally in front of the state Capitol in Madison on Monday, May 17, 2021. Angela Major/WPR
This, to put it lightly, was a long shot idea. The Watts Tea Room group was basically trying to do something that had never been done before. They were trying to convince the court that some partisan gerrymanders are too partisan, and thus, unconstitutional.
This would be big for Wisconsin and also for the whole country. If the lawsuit succeeded, people in any state could challenge partisan gerrymanders in federal court.
But, it was not an original idea. People had tried this for decades and each time they had failed. The Watts Tea Room group knew they’d need to build their case if they wanted a different outcome.
'I thought that Anthony Kennedy was our savior'
At the time, building a partisan gerrymandering case for the U.S. Supreme Court really meant building a case for one particular justice.
Anthony Kennedy, the last remaining nominee of President Ronald Reagan, was the swing vote on the court, which was split 5-4 between justices nominated by Republican presidents and justices nominated by Democrats.
For the people trying to overturn Wisconsin’s map, Kennedy was their only hope.
Supreme Court Justice Anthony Kennedy at a White House Rose Garden event in Washington, Monday, April 10, 2017. Carolyn Kaster/AP Photo
"I thought that Anthony Kennedy was our savior," Kessler said.
Kennedy wrote an opinion in 2004 hinting that he would be open to striking down a redistricting plan as a partisan gerrymander, if only someone would come up with a fair way to measure it.
The efficiency gap
As it turns out, other people around the country were looking for the same thing.
The Watts Tea Room group got word of a draft law review article by University of Chicago law professor Nick Stephanopoulos and Eric McGhee, a political scientist at the Public Policy Institute of California. The article proposed a metric called the "efficiency gap" to quantifiably measure just how partisan a given gerrymander was
Stephanopoulos agreed to sign on with the Wisconsin effort. His then-girlfriend, attorney Ruth Greenwood, a redistricting expert, also joined the team.
The efficiency gap compares raw vote totals to actual wins in the legislature by looking at so-called "wasted" votes.
According to the theory, a political party "wastes" votes in two ways: By casting too many of them in races that they were going to win anyway and casting too few in races where they come up just short.
So, for example, when Democratic voters get "packed" into a dense urban district that the party wins in a landslide, they’re wasting a lot of votes. And when a party’s voters are spread out or "cracked" so that they come up just short in other districts, the efficiency gap says those votes are also wasted.
The "gap" refers to the difference in each party’s wasted votes, divided by the total votes. The higher the number, the bigger the gerrymander.
"There are hard cases when it comes to the question of whether a map exhibits a large and durable or partisan advantage," said University of Chicago law professor Nick Stephanopolous. "Wisconsin is as easy as it ever gets with this test."
When Wisconsin’s election results under the Republican-drawn map were plugged into this equation, the number was among the highest in American history, said Stephanopoulos.
"There are hard cases when it comes to the question of whether a map exhibits a large and durable or partisan advantage," he said. "Wisconsin is as easy as it ever gets with this test."
To build out their case, Democrats brought on other experts, including Stanford University political science and statistics professor Simon Jackman.
Jackman reviewed 786 elections, encompassing 206 redistricting plans throughout the U.S. between 1972 and 2014. Only four plans had a stronger pro-Republican gerrymander over that span.
Jackman said that under the Wisconsin map, Democrats had no chance of winning a majority in the Legislature, "absent a colossal, almost historically unprecedented political earthquake."
Computer forensics
To win Kennedy’s support in the U.S. Supreme Court, however, the Watts Tea Room group would need more than just math. They would need evidence to show that Republicans intentionally drew maps to help themselves and hurt Democrats.
They hired Mark Lanterman, a former member of the U.S. Secret Service and computer forensics specialist. Lanterman’s resume included the Bernie Madoff investigation, the Martha Stewart Investigation, and the investigation of Prince’s death.
"But the only case that ever impressed my mother was the Paul McCartney divorce," he said. "It beats writing parking tickets."
Instead of working on the new maps at the Capitol, Republicans set up shop in an office building across the street at a private law. They called their office "the map room." Angela Major/WPR
Lanterman was given access to the computers Republicans used to draw the maps in 2011 that had been turned over as a result of a 2012 redistricting lawsuit in Wisconsin.
He began inspecting the nine hard drives that had been used by Republican consultant Joe Handrick and GOP legislative aides Tad Ottman and Adam Foltz in the "map room," a space in a private law office across from the Capitol where Republicans did their redistricting work.
A couple of things grabbed his attention right away. He found that someone had deleted hundreds of thousands of files, and one of the hard drives had been damaged. The screws were stripped and the casing was bent. Lanterman thought it had been hit with a blunt object, maybe a hammer.
"And hard drives, as you can imagine, are fairly fragile devices," Lanterman said. "You don't want to throw them out a window or anything like that. And they're not meant to be hit with hammers."
While no one offered any explanation for why one of the hard drives was damaged, the court didn’t find any wrongdoing. As for the deleted files, Republicans said they were erased as part of routine maintenance.
But the documents on the hard drives still told a story. They showed that Republican mapmakers started their work with a fairly evenly-split map, and they kept drawing maps that got more and more Republican.
A photo of three computer hard drives used by Republicans to create Wisconsin's 2011 political district maps obtained from federal court records.
The documents showed that under the old map, Republicans could be expected to win 49 seats in the 99 seat Assembly, but they kept drawing new maps until their projection grew to 59 GOP seats — a huge majority. These Republican-leaning maps were given names like "Tad Aggressive," "Joe Aggressive" and "Adam Assertive."
Handrick said in an email to WPR that those terms referred to the "degree of departure from the prior map," but Foltz testified that the terms "probably" referred to "a more aggressive map with regard to GOP leaning."
The documents also showed that Republicans had drawn the map in a way that their majority could survive even a Democratic wave year.
Headed to trial
With the documents from the hard drives, the efficiency gap and the experts, the Watts Tea Room group felt like their case was coming together. But a lawsuit is not a lawsuit without a plaintiff.
The Watts Tea Room group could have chosen any number of people for the role, but they wanted someone from their group to be the lead plaintiff. They chose Bill Whitford, the retired law professor from Madison. Whitford viewed it as a formality.
"You need Christmas tree ornaments, or else it's just a tree," he said. "Without a plaintiff, it’s not a case. But the significance is about the same."
Bill Whitford at his home in Madison, Wis. Whitford, a retired law professor, became the lead plaintiff in the legal challenge to Wisconsin's political maps that went to the U.S. Supreme Court. Angela Major/WPR
Other plaintiffs included Milwaukee resident Helen Harris, a friend and former constituent of Kessler’s, and Wendy Sue Johnson, a school board member from Eau Claire.
They felt they had a strong case, and yet, the odds were very much stacked against them because partisan gerrymandering cases never go anywhere in federal court.
But there were signs early on that this case could be different. The three-judge panel named to hear the lawsuit rejected Republican efforts to immediately dismiss the case. It was headed to trial.
During the four-day trial at the federal courthouse in Madison, Republicans — the defendants in this case — said there was nothing unconstitutional about the map.
The federal courhouse in Madison where arguments in the Whitford case were heard John K. Wilson/WPR
"It’s not gerrymandering," argued Wisconsin Department of Justice Attorney General Brian Keenan. "This is just districting that has a partisan advantage for one side. And that’s not unconstitutional."
Republicans also argued that Democrats are naturally disadvantaged because of where they live, packed together in cities like Madison and Milwaukee. Because they’re not spread out all over the state, it’s harder for them to win more seats.
But the court said Republicans had disproved their own argument. The documents on the hard drive showed that they drew lots of maps, including some where the partisan advantage wasn’t so pronounced. The GOP gerrymander, the court said, was a choice.
In a 2-1 opinion, the court sided with the Democrats, finding the Republican map unconstitutional. The ruling was the first of its kind.
State Republicans appealed, meaning the case was headed to the U.S. Supreme Court to see whether Justice Anthony Kennedy would see it the same way.
'Partisan gerrymandering fundamentally undermines our democracy'
In the run-up to oral arguments, there were other signs that this could be the best chance yet to overturn the map and declare partisan gerrymanders unconstitutional.
People and groups from all over the country submitted amicus briefs weighing in on the case. Notably, one was co-written University of Oklahoma professor Keith Gaddie, who helped Wisconsin Republicans draw their redistricting plan in 2011.
"I think there are people in Wisconsin who probably would shoot me if they had the opportunity because I am the son of a b----- who gerrymandered their state," Gaddie said at a University of Missouri forum in 2018. "And then there are people on the right, who would shoot me because I'm that son of a b---- that threw the Republicans under the bus."
Any Republicans who were mad at Gaddie likely had a couple of reasons. For one, he testified in the Whitford federal trial, going into detail about how Wisconsin’s maps were drawn.
And now, Gaddie had written a brief saying the Supreme Court should step in and limit partisan gerrymandering. He technically wasn’t taking a side, but what he was saying aligned with Democrats.
"Left unchecked, partisan gerrymandering fundamentally undermines our democracy," Gaddie’s brief said.
'Time to terminate gerrymandering'
On Oct. 3, 2017, 13 years after Justice Kennedy wrote the opinion that left the door open to a partisan gerrymandering lawsuit, six years after Republicans passed Wisconsin’s legislative map, and four years after the Watts Tea Room group began to meet, the Supreme Court held oral arguments in Gill v. Whitford.
This was the first time that anyone involved got to hear from the justices, and it was clear during arguments that some were skeptical of the case.
Former California Gov. Arnold Schwarzenegger speaks to reporters outside the U.S. Supreme Court in Washington, Tuesday, Oct. 3, 2017, the day the court heard arguments in Wisconsin's redistricting case. Shawn Johnson/WPR
"You're taking these issues away from democracy and you're throwing them into the courts," said Chief Justice John Roberts, a nominee of President George W. Bush. Roberts described metrics like the efficiency gap as "sociological gobbledygook."
Other justices were more eager to do something about partisan gerrymandering, with Justice Ruth Bader Ginsburg, a nominee of President Bill Clinton, questioning what could happen if the court did nothing.
"What becomes of the precious right to vote?" Ginsburg asked. "Will we have that result when the individual citizen says, 'I have no choice, I'm in this district and we know how this is going to come out?'"
One hour after they began, arguments for this case that could fundamentally alter American democracy were over.
After the arguments, members of the Watts Tea Room group spoke at a rally on the steps of the Supreme Court building. They were celebrating.
"I'm going to be projecting a victory for us," Kessler said.
Joining them that day was the celebrity spokesperson for the anti-gerrymandering movement, former Republican California governor — and the Terminator — Arnold Schwarzenegger. The way he saw it, this cause transcended political parties.
"Politicians are picking the voters rather than the voters picking the politicians," Schwarzenegger said, "So I say it is time to say hasta la vista to gerrymandering. And it is time to terminate gerrymandering."
'They have kind of given up'
About eight months later, on June 18, 2018, the Supreme Court issued its decision. Democrats didn’t lose, but the outcome was not what they’d hoped.
The case would be remanded, sent back to the lower court because the Supreme Court thought the Democratic plaintiffs didn’t have standing to bring it.
Then, just nine days later, on June 27, 2018, the bottom dropped out. Kennedy, the Supreme Court’s swing justice around whom this entire case was built, announced he would retire.
Exactly one year later, with another appointee from President Donald Trump on the bench, the Supreme Court issued a ruling in another partisan gerrymandering lawsuit out of North Carolina and Maryland. This was the final nail in the coffin.
In its 5-4 ruling, the court decided that partisan gerrymandering cases are not justiciable in the federal court system. It closed the door that Anthony Kennedy had opened.
"I can't honestly tell you that the Supreme Court cares about you because they have kind of given up on you," attorney Ruth Greenwood recalls telling a plaintiff in Wisconsin's redistricting case after the U.S. Supreme Court ruled that partisan gerrymanders are not justiciable in the federal court system.
For Wisconsin Republicans, the decision was a vindication of their work.
"The Supreme Court has now confirmed what we have said all along — that it was not a matter for the federal courts to second guess the Legislature on these issues," read a prepared statement from Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, the Legislature’s top Republicans.
For Democrats, it was crushing. Greenwood, one of the attorneys working on the case, remembered the painful process of calling her plaintiffs to let them know it was over. She remembered one conversation vividly, where a plaintiff asked if the court even cared about the people of Wisconsin.
"And I was like, I don't know what to tell you," Greenwood said. "I can't honestly tell you that the Supreme Court cares about you because they have kind of given up on you."
'No constitutional requirement'
While the case is history now, looking back at that day in the Supreme Court, there was a moment that’s — with the benefit of hindsight — pretty revealing.
It was an exchange between Justice Sonya Sotomayor, a nominee of President Barack Obama, and then-Wisconsin Solicitor General Misha Tseytlin, who was arguing the case for Republicans.
Sotomayor took issue with the way the maps were drawn and pressed Tseytlin for answers.
Former Wisconsin Attorney General Brad Schimel, left, and former Wisconsin Solicitor General Misha Tseytlin outside the U.S. Supreme Court on in Washington, Tuesday, Oct. 3, 2017. Shawn Johnson/WPR
"They kept going back to fix the map to make it more gerrymandered," Sotomayor said. "People involved in the process had traditional maps that complied with traditional criteria and then went back and threw out those maps and created some that were more partisan."
"That's correct, your honor," Tseytlin said.
"Why didn't they take one of the earlier maps?" Sotomayor asked.
"Because there was no constitutional requirement that they do," Tseytlin said. "They complied with that state law and they complied with all traditional districting principles."
This in a nutshell is redistricting law. It’s where we were when this case was heard, and it’s where we are today.
Wisconsin’s map, which has been in place for nearly a decade, still stands.
This story is part of "WPR Reports: Mapped Out," a podcast about redistricting in Wisconsin. Never miss an episode by subscribing now on your favorite podcast app or at wpr.org/mappedout.
