Wisconsin's "Shameful" Gerrymander of 2012

The GOP's partisan redistricting process has come under renewed scrutiny in recent months, with gerrymandered maps helping Republicans hold Congress despite receiving fewer votes than Democrats, and state legislators discussing plans to rig the presidential election by awarding electoral votes according to those contorted boundaries. But out of all the states re-drawing Congressional boundaries along partisan lines after the 2010 elections, Wisconsin's gerrymandering may have been the most egregious.

As neuroscientist Sam Wang explained in Sunday's New York Times, "Democrats received 1.4 million more votes for the House of Representatives, yet Republicans won control of the House by a 234 to 201 margin. This is only the second such reversal since World War II."

Wisconsin was one of five states where the party that won more than half of the votes for Congress got fewer than half of the seats. Largely because of redistricting, Republicans in Wisconsin received just 49 percent of the 2.9 million votes cast in the state's congressional races, but won five out of eight seats, or 62.5 percent. And that redistricting process was carried out with a nearly unprecedented level of secrecy and obfuscation.

"An all but shameful attempt to hide the redistricting process from public scrutiny"

Once every ten years, state legislatures draw new election maps to account for population changes recorded in the latest U.S. Census.

"What could have -- indeed should have -- been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny," wrote a three-judge federal panel hearing a challenge to Wisconsin's Republican-drawn maps in February 2012.

The drawn-out legal battles over the Wisconsin maps have most recently resulted in subpoenas to Assembly Majority Leader Robin Vos for the computers related to the redistricting.

In past decades, courts had largely drawn Wisconsin's maps because no single party controlled state government. But in 2011, Republicans controlled the Senate, House, and Governor's mansion, and were in a position to single-handedly draw and approve maps that benefited their party. As ProPublica recently reported, in Wisconsin and elsewhere a network of corporate and "dark money" funders spent tens of millions to influence state races in 2010 and then engineer the gerrymandered maps -- a $30 million effort that has been highly successful.

Wisconsin Republicans hired a private law firm to help draw the maps and held a series of secret meetings at their law offices, apparently in an attempt to protect the redistricting effort from public view and disguise it behind attorney-client privilege.

But a federal court hearing a challenge to those maps sharply rebuked that argument.

"Disinformation, foot-dragging, and obfuscation"

The three-judge panel issued two orders in late 2011 rejecting the invocation of attorney-client privilege and demanding that Republicans turn over nearly all redistricting-related documents. After Republican legislators and their lawyers continued working to keep the material confidential, the court ordered the attorneys pay $17,500 in fees for filing frivolous motions.

"Quite frankly," the court wrote, "the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the court and the public the true nature of exactly what transpired in the redistricting process." The court "will not suffer the sort of disinformation, foot-dragging, and obfuscation now being engaged in by Wisconsin's elected officials and/or their attorneys."

In early February of 2012, GOP legislators released multiple documents, but continued to keep around 84 emails confidential. The three judges -- two of them appointed by Republican presidents -- again criticized the Republican legislators for "an all but shameful attempt" to keep documents secret, writing:

"Without a doubt, the Legislature made a conscious choice to involve private lawyers in what gives every appearance of an attempt -- albeit poorly disguised -- to cloak the private machinations of Wisconsin's Republican legislators in the shroud of attorney-client privilege."

According to the documents that were released, Republican legislators signed a pledge of secrecy during the redistricting process and were told to ignore what GOP leaders said publicly about the new election maps. Wisconsin's Capitol Times editorial board wrote at the time "It is hard to look at this evidence and come away with any conclusion save the obvious one: that [now-Assembly Leader Robin] Vos led a deliberate effort to deceive the public, violate rules and standards and warp the legislative process for his and his political allies' advantage."

CMD Highlights ALEC's Redistricting Activities; Leads to More Legal Wrangling

The court ruled in February of 2012 that two of the districts violated the voting rights of Latinos. However, U.S. Supreme Court precedent discourages redistricting challenges based on partisan chicanery. Despite the court's criticism of the Wisconsin GOP's redistricting process and legal strategy, the maps themselves, rather than the process used in creating them, were the subject of the trial. But that didn't stop Republican legislators from making every possible effort to keep that process secret.

As the federal court ruled on Wisconsin's maps, the Center for Media and Democracy (publishers of PRwatch.org) revealed that the highly partisan American Legislative Exchange Council (ALEC) was involved in redistricting, based on emails obtained through open records requests to Senate Majority Leader Scott Fitzgerald. ALEC had pushed redistricting approaches spearheaded by the former lawyer for the national Republican Party, Mark Braden, and hosted a special conference call with that partisan lawyer to advise ALEC legislators on redistricting.

The emails CMD obtained were not released to the lawyers challenging the maps. But they should have been. This failure to release all redistricting-related documents opened a new round of legal wrangling, with the court questioning what other documents Republican legislators and their lawyers had kept secret.

In recent weeks, this has led to subpoenas for Assembly Speaker Robin Vos (the ALEC State Chair for Wisconsin) and other legislators to conduct an independent search of computers used in redistricting, in order to identify whether other records were withheld. (A deal was later reached and the subpoenas were withdrawn.)

Republican legislators have already charged Wisconsin taxpayers $1.9 million in legal fees, and last week hired another law firm to defend their actions, meaning the price tag will continue to rise.

GOP Proposals Would Use Gerrymandered Maps to Select President

As CMD has reported for months, Wisconsin is one of a handful of states that might use these secretly-drawn and highly-partisan Congressional maps to change how the state's electoral votes for president are allocated. The proposal would end the longstanding practice of allocating presidential elector votes according to the winner of the statewide popular vote, and replace it with a plan to award electoral votes according to the victor in each gerrymandered Congressional district.

If Wisconsin had such a plan in place for the 2012 elections, the state's ten electoral college votes would have been split evenly between Obama and Romney, despite Obama winning in the state by nearly seven points.

As CMD first revealed, ALEC has lobbied against efforts to implement a national popular vote, which would replace the electoral college system currently being rigged for partisan gain.

Additionally, ALEC "model" voter ID legislation has been tied to the wave of voter ID bills that swept the country in 2011 and 2012. But as Professor Wang points out in the New York Times, "gerrymandering is [also] a major form of disenfranchisement," with millions of votes effectively diluted or deleted by moving district lines in such a way where one party can win a majority of seats even if the other party wins a majority of votes.

"[T]he number of wasted votes [through gerrymandering] dwarfs the likely effect of voter-ID laws," he surmises.

Groups like Common Cause Wisconsin, as well as the editorial boards of the state's two largest newspapers, have called for replacing the partisan redistricting process with an independent redistricting board. Whether Wisconsin's Republican-led legislature will implement those changes is another question. But as Professor Wang notes: "It's up to us to take control of the process, slay the gerrymander, and put the people back in charge of what is, after all, our House."