Wisconsin's proposed redistricting reform won't change very much
Despite the hoopla over Speaker Robin Vos's sudden change of heart over redistricting, his Iowa-based redistricting plan will either entrench gerrymandering or just result in court-drawn maps
Earlier this week, Wisconsin Assembly Speaker Robin Vos had a sudden change of heart. He’s long been committed to partisan gerrymandering—the maps that he helped craft have resulted in a state legislature that’s grossly disproportionate to the actual wishes of the voters—but is fearful about the lawsuit currently before the Wisconsin Supreme Court that’s challenging the state legislative maps under the state constitution.
Vos has thrown around the idea of impeaching newly elected Justice Janet Protasiewicz if she refuses to recuse from the redistricting case over her comments during the campaign about the existing maps—which, as I’ve argued, are a judicial conduct violation at most, and which the Wisconsin Judicial Commission recently dismissed. Earlier this week, he seemed surprised that the media and the public had interpreted his (and other legislative Republicans’) support for impeaching Protasiewicz as an indication that he actually supported impeaching her. He also tacitly acknowledged that if Protasiewicz refuses to recuse, that may not constitute impeachable conduct. So Vos has had a banner week.
His latest idea, which he has pitched as an “off ramp” from the impeachment conversation, is to adopt a set of Iowa-style redistricting reforms.
Most Democrats in the legislature have refused to support Vos’s too-little-too-late reforms, but some commentators have praised them as setting forth an “independent” redistricting process.
My read of the reforms is that I am extremely skeptical that they will accomplish what Vos is claiming he wants to. First, there’s a good chance that they’ll just reinforce the status quo of aggressive partisan gerrymandering. Second, there’s an equally good chance that they’ll produce a detente in which state legislative maps are drawn by the Wisconsin Supreme Court—and in a context in which there is zero plausible argument that Justice Protasiewicz would need to recuse at all.
Vos’s proposal comes in the form of Assembly Bill 415, which is under consideration by the legislature right now. The whole point of AB 415 is to adopt an Iowa-style set of redistricting reforms—and to that end, Vos basically lifted verbatim the relevant sections of the Iowa Code.
The Iowa redistricting process, which has been used for decades, sets up a multi-step process that is intended to produce fairly drawn maps. The Legislative Services Agency, in consultation with a bipartisan redistricting commission, produces a set of maps after every decennial census. The maps are presented to the legislature—which only has the option of approving or rejecting the maps. It’s restricted from making any material amendments to the maps. If it rejects the maps, the process bounces back to the LSA, which produces a second set of maps. Again, the legislature can only vote these up or down. If a third set of maps is submitted to the legislature, then it can amend the maps as much as it wants.
The Iowa process also establishes some criteria for the maps that the LSA is sending to the legislature. The redistricting standards require the LSA to prioritize compact maps, which generally means creating districts that are “square, rectangular, or hexagonal in shape, and not irregularly shaped, to the extent permitted by natural or political boundaries,” and to avoid splitting counties or cities. The LSA is also barred from considering where incumbents live, the partisan makeup or voting patterns of particular areas, etc.
This is the basic process set up by the original version of AB 415. The legislature can only vote the Legislative Reference Bureau’s maps up or down on the first two occasions, and can modify the maps as much as it wants on the third. There are similar requirements of compactness, splitting political subdivisions, and ignoring partisan data.
AB 415 passed last night, albeit with some amendments that shook up the process somewhat, and is currently being considered by the Senate. Amendment 2 required that any plan passed by the legislature must pass by a “bipartisan vote,” and Amendment 5 prevented the legislature from modifying the third set of maps produced by the LRB. These amendments led some observers to praise the legislature for setting up a meritorious process for ending partisan redistricting.
Personally, I’m not so sure.
First, it’s far from guaranteed that the Senate will agree to the Assembly’s amendments. The Senate could easily undo them—by removing them from the bill and sending it back to the Assembly.
Second, I am unsure to what extent the stipulations added by the Assembly are practically enforceable or significant in any way. As the LRB’s analysis of AB 415 notes,
The bill further specifies a procedure that the legislature must follow in considering the bills, although that procedure is not enforceable by the courts.
I think that much of this process isn’t enforceable. The legislature has power under the Wisconsin Constitution to legislate,1 to “amend” bills,2 and to “apportion and district anew” the legislative districts.3 I am not confident that the process-based restrictions that the legislature is statutorily adopting—preventing the legislature from amending a bill, and requiring a bipartisan vote—comport with the constitution. That is to say, if the legislature has a constitutional power to legislate, I’m really not confident that the legislature can statutorily limit its own power to legislate or amend bills.
As a practical matter, the “bipartisan vote” requirement is all but meaningless. A Republican state legislator could easily change their party affiliation—to the Democratic Party, or any third party—and vote for the bill, thereby giving it the “bipartisan” support that it requires.
And, again, this is a statutory process. There is nothing—literally, nothing—that would stop the legislature from repealing this process at a later point. Indeed, if Republicans win veto-proof majorities in both houses during Evers’s term, they could easily repeal this bill over Evers’s veto and restore their own power.
Third, the redistricting priorities of the bill are simply not responsive to the concerns in Wisconsin. Focusing on compactness is well and good, but compact districts are not the same as fair districts. It’s quite easy to draw districts that are geographically compact but deeply gerrymandered. And in Wisconsin, so-called “natural gerrymandering” or “self-gerrymandering” means that districts that are only drawn to be compact, and to limit how many political subdivisions can be split, will reinforce Republicans’ “natural geographic advantage.” Democratic voters in Wisconsin are primarily concentrated in two areas—Madison and Milwaukee. That kind of “self-gerrymandering” means that a set of maps could be passed that are totally compliant with AB 415’s compactness requirements and subdivision-splitting limitations that produce, again, a set of districts that Republicans will likely win a comfortable majority in, regardless of the statewide vote.
Fourth, even if the bill passes, I think that there is a reasonable chance that the districts could end up being drawn by the Wisconsin Supreme Court anyway. Because any redistricting bill would have to be approved by the Governor—or passed over his veto—if Democrats hold firm and vote against a redistricting bill (or if no more than one member of the Assembly bucks the party), then Republicans couldn’t override Evers’s veto anyway.
And if the legislature is unable to draw districts, then . . . the Wisconsin Supreme Court would. In such a case, there is no colorable argument that Protasiewicz would need to recuse. Her comments about the existing maps being “rigged”—which, again, doesn’t require her to recuse, anyway—would be totally irrelevant in drawing a new set of maps. That is, Protasiewicz’s comments were about the old maps, and the Court’s task would be drawing new maps—including from scratch if it wanted to!
Moreover, there’s nothing to stop the Wisconsin Supreme Court from finding that the maps drawn by this process are unconstitutional anyway. And, again, Protasiewicz’s comments could not possibly justify a recusal.
So while it remains to be seen whether the Wisconsin Legislature will be able to pass this redistricting reform over Evers’s veto, it’ll either do nothing substantial to alter the balance of power or it’ll just place the dispute right back in the Wisconsin Supreme Court.
Good luck with that!
“The legislative power shall be vested in a senate and assembly.” Wis. Const. art. IV, sec. 1.
Wis. Const. art. IV, sec. 19.
Wis. Const. art. IV, sec. 3.