The two consultants hired by the liberal justices on the Wisconsin Supreme Court are ruling out both conservative-drawn maps because the liberal-drawn maps they are recommending give Democrats a better chance at controlling the State Legislature.
To reach this conclusion, they blatantly disregarded the fact one of the conservative maps performs best on constitutionally mandated redistricting criteria in favor of a nebulously defined “partisan impact” test manufactured by the liberals.
Not surprisingly, the two professors, one hailing from California, have suggested that any of the Democratic maps would be great, including one by Democratic Gov. Tony Evers. Their report could cost taxpayers up to $200,000.
In other words, the professors openly say the conservative maps should be tossed out because they don’t give Democrats enough of a chance to win control of the Legislature – which is not a criterion listed in the state Constitution.
They admit that the conservative Wisconsin Institute for Law and Liberty maps “score very well on traditional good government criteria – in fact, score the best on various measures of splits of political subdivisions” – as we previously reported – but then bizarrely label them a “stealth gerrymander.”
“The report hides its bias behind a fog of faux sophistication,” Rick Esenberg, the president and general counsel for WILL said.
“Let’s be clear, our maps have been rejected for one reason and one reason alone, they don’t produce the partisan outcomes the experts or many on the Court want,” Esenberg said. “So, they ignore all the traditional tests for partisan bias. It is what Chief Justice Roberts has called social science gobbledygook: Obfuscation that hides one’s preferences so that it needn’t be justified.”
Here’s the thing. If you think maps in single member geographic districts should be rigged so 132 district races somehow reflect a measure of statewide partisan preference, you should 1) own it and 2) say why. We’ll see what comes next.
— Rick Esenberg (@RickEsenberg) February 2, 2024
Meanwhile, Gov. Tony Evers released a statement gloating about the report.
The Wisconsin Republican Party said in a statement,
“The Consultants’ report is a brazen hack job by left-wing partisan actors. Invented terms like ‘stealth gerrymander’ are nothing more than a thinly veiled attempt to distract voters from the report’s true conclusion: Wisconsin Republicans submitted fair maps that met every standard of good governance. One can only conclude that Janet Protasiewicz and her Democratic colleagues on the Supreme Court are using this ‘report’ as a convenient excuse to take a ham-fisted blue marker to the maps in whatever way their out-of-state, dark-money donors demand.”
Here’s how they gamed it.
The consultants disregarded the conservative WILL map that performed best and well on constitutionally mandated, traditional redistricting criteria set by the liberal court. Instead, they basically argued that the partisan outcomes of legislative races should mirror statewide races – even in presidential and U.S. Senate elections, which are markedly different than local contests.
“It is preferable for the majority party to usually attain governmental control,” the consultants wrote in their Feb. 1 report. In other words, they’re saying that, if, say, Gov. Evers wins the governorship (as he has), then Democrats should control the Legislature. They admit they made a “judgment call” by deciding to include the federal races in their partisan calculations.
They then proclaimed the Legislature and WILL maps to be a “partisan gerrymander,” but – and here is the key phrase – this is due to the “social science perspective” of two out-of-state consultants hailing from California and Pennsylvania.
The state Constitution does not mention partisan impact as a criterion. “When drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them: preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness,” it says.
There is another way to look at this: That constitutionally mandated redistricting criteria and the state’s geography naturally produce a Republican-controlled Legislature. It’s a similar argument to the Electoral College vs. the popular vote. The state’s Republicans are spread throughout the state, whereas Democrats are concentrated in cities. It is not desirable to have a legislature driven by only the needs of Milwaukee and Madison, ignoring rural concerns.
The consultants also disregarded the fact that people might split their votes. For example, Door County went for both Republican Ron Johnson and Democrat Evers. Some voters might pick Democrat Joe Biden for president but still favor their hometown Republican legislator.
The professors’ words back up Esenberg’s comments.
They repeatedly refer to “social science” perspectives in their report. They simply dispensed with traditional redistricting criteria set by the liberal court when WILL performed best or well using it. For example, they admit WILL’s maps split fewer counties and towns but then announced that a “social science” perspective on partisanship matters more.
They quickly dispensed with population deviation and compactness, glibly announcing that all the maps performed well on these without noting that WILL performed better than other maps. Interestingly, they moved on very quickly from compactness, without pointing out that WILL performed #1 and #2 on that criterion, per Dave’s Redistricting.
They based their partisanship conclusions on data from 13 state elections from 2016 to 2022.
The consultants admitted that “we make some comments about the maps from a social science perspective” that should not be taken as interpreting the constitutionality of maps.
They claim that the four Democratic maps tilt toward Republicans. However, as Wisconsin Right Now previously documented, that’s not true if you analyze the maps using Dave’s Redistricting for the 2022 governor’s and attorney general’s races, and key races from 2016 to 2022. Those maps would give control to the Democrats.
In addition, Evers’ maps pit many Republican incumbents against each other and almost no Democrats. His maps also draw Republicans out of their districts by a couple of houses in some cases. And they would eliminate the legislative career of the only black state Senator in Wisconsin history for at least two years unless he moves.
The liberals on the court set the foundation for this move when they jammed “partisan impact” into their redistricting decision as a criterion for drawing maps but then never defined it. that’s even though it doesn’t appear in the Wisconsin Constitution’s criteria.
The consultants picked by the left appear to largely have based their decision on this criterion, and they’re defining it as giving Democrats a chance to win control of the Legislature even when a Democratic candidate does not win by a lot statewide.
California Professor Bernard Grofman and Pittsburgh Professor Jonathan Cervas wrote the report.
The consultants also admitted that they are agreeing to keep their communications with the justices secret from the public, even though the public is paying their hefty consulting fees.
“The consultants wrote that they “agree that we will keep any communications with members of the Court confidential and never disclose the contents of any discussion with members of the Court unless and until given permission by the Court.”
They reviewed six plans:
Two are conservative. They were drawn by Republicans in the Legislature and the Wisconsin Institute for Law and Liberty. The consultants ruled them both out.
Four are liberal. They were drawn by Democrats in the Legislature, by Evers, and by the liberal law firms representing plaintiffs who filed the lawsuits against the current maps.
A quick summary of how we ended up here.
The state Constitution gives authority to draw redistricting maps to the Legislature. It’s supposed to happen every census. When the last census rolled around, Evers vetoed the Republican-controlled Legislature’s maps. The state Supreme Court then got involved and picked Evers’ maps, with sometime conservative Brian Hagedorn joining the left.
The U.S. Supreme Court then threw out Evers’ maps because of how he handled race. The state Supreme Court with Hagedorn joining the conservatives then picked the legislature’s maps because they offered the least change close to an election.
But then the state Democratic Party funneled $10 million to liberal candidate Janet Protasiewicz, who won after prejudging the maps case by saying the Republican maps were “rigged.” Right after Protasiewicz was elected, the left filed a new suit.
The now liberal-controlled court seized the powers of the conservative chief justice on scheduling so they could fast-track the maps case in time for the November presidential election. They then ruled the Republican maps unconstitutional on the basis of municipal islands that the liberal justices and Evers were fine with shortly before when Evers included them in his own previous maps.
In the consultants’ report, the island issue has vanished as a concern. The Legislature’s maps simply dissolved the islands into surrounding districts, but that wasn’t good enough all of a sudden.
The liberal justices then fast-tracked the case and the various groups submitted maps for consideration. The court gave the consultants they picked until Feb. 1 to submit the report. The court will decide on a set of maps on March 1.
Conservatives’ only recourse now is the U.S. Supreme Court.