As it finished up its work before taking its annual recess, the U.S. Supreme Court dealt a devastating blow to Wisconsin Democrats and others fighting the 2011 gerrymandering of legislative districts by Republicans. The court ruled 5-4 on June 27 that, while it acknowledged the harm done by extreme political gerrymandering, it did not have a way of determining when it crossed a line into being unconstitutional. This apparently closes the door on challenges to maps based on political gerrymandering before federal courts, but other avenues are left open.
I spoke with Doug Poland, a Madison attorney who was one of the lead trial attorneys for the plaintiffs in Whitford v. Gill, the Wisconsin redistricting case that made its way to the Supreme Court last term. Whitford was sent back to the lower courts but the justices expressed an interest in exploring the issue again. It was in two cases from other states where the court finally put the dagger in the heart of the argument that extreme partisan redistricting could be unconstitutional.
Here’s an edited transcript.
Dave Cieslewicz: Were you at all surprised by this ruling?
Doug Poland: A little bit of a mixed reaction. On the one hand a year ago when we got the opinion in the Whitford case and people asked me what do you think this means for your case, my response was that, taking Chief Justice [John] Roberts and Justice [Samuel] Alito at face value, it was a good sign for us because they didn’t dismiss it. They said we think this is a really significant issue and gave us a new shot. The only thing that changed [between the time that the court ruled a year ago and the court’s ruling last month in the North Carolina and Maryland partisan gerrymandering cases] is that [Justice Anthony] Kennedy is no longer on the court. The precedent the chief justice relied on [in the ruling] was a misuse of precedent stretching back three decades in which pluralities of the court, including in opinions authored by Justice Kennedy, held that partisan gerrymandering cases are justiciable in federal court. There’s a discontinuity there. So why did they remand us (back to the lower court) in the first place? Roberts is now saying they don’t have standards to judge these claims. But when the court has said that in the past, it still held that these claims were justiciable, and to say that in the face of what are now five federal courts in the past three years that have held trials and rendered judgments in which they have applied such standards, is ridiculous. It’s like saying we can’t possibly build a car that can go 100 miles an hour while a car zips by at 200 miles an hour. And that was one of the points that Justice [Elena] Kagan made in her dissent.
Did you have some hope that Roberts would side with the liberals?
Yeah, I did. Again, taking at face value what he said last year, I didn’t expect this to be the outcome of the majority opinion. I was hopeful that he had been educated along the way.
Was this just a partisan decision by a Republican majority on the court?
I do know people I respect who practice before the court who say that this is just not an area that the court wants to get involved in. They hate these cases. It could be that they’re just trying to find some way to not have federal courts involved in these cases.
It seems obvious that if Hillary Clinton had won and somebody like Merrick Garland was on the court this would have been a different result.
Absolutely would have been a different result. No question about it. But somebody has made the point that the real turning point here was Justice Scalia’s death (in February 2016). He said the [partisan political] right cares so much more than the left about judicial selections. It’s something like number three among issues for Republicans while it doesn’t even make the top 10 for Democrats. So when Scalia dies it’s a huge galvanizing issue for conservatives. It really drove them to get out to vote.
Am I off base in arguing that Tony Evers should have vetoed the state budget to hold out for a nonpartisan redistricting commission as part of a revised budget?
Poland: I think you’re a little off base… Although it is true that today’s ruling means that partisan gerrymandering claims are not judiciable in federal court, it does not mean that federal courts cannot rule in redistricting cases ... There are still plenty of other claims that can be brought. Racial gerrymandering claims, 14th Amendment claims and even (some) Voting Rights Act claims, can still be brought. People will be studying this for a couple of years and coming up with theories that will allow them to get to federal court.
[Assembly Speaker Robin] Vos is feeling incredibly emboldened now. [He] might try to redistrict through a joint resolution [and not even go to the governor]. That’s not the law in Wisconsin. It’s never been the law in Wisconsin. But I think they’ll pretty much try anything.
So the effect of the court’s decision is that partisan gerrymandering is dead as an issue for the courts?
It is in federal courts. It can still be adjudicated in state courts.
So, when we play this out in Wisconsin now after the 2020 census, the Republicans will just gerrymander again, only more so and get away with it.
A couple of things. I’m not so sure they can do all that much to make it more extreme than it is now. The demographics are changing and they’re not changing in the Republicans’ favor, though at a slow pace. Plus they squeezed as many seats as they possibly could out of the current maps. I think they absolutely will end up in court after the next redistricting one way or another. And one question is will there be an issue that can be brought up in federal court.
