Conservative law firm Wisconsin Institute for Law & Liberty President Rick Esenberg warned the accelerated actions he expects of the new liberal Supreme Court on redistricting could complicate a tight timeline for new legislative maps.
Esenberg made the comments at a WisPolitics luncheon Thursday Jeff Mandell, president of the liberal law firm Law Forward who’s involved in the lawsuit asking justices to overturn the current GOP-drawn maps. Esenberg, who has argued many cases before the Supreme Court, added the new liberal majority’s next move will set in motion the process and timeline to remedy whatever issues they find, if any.
“And assuming that there is a violation, it’ll probably tell the parties that they can submit maps, and maybe it’ll have a referee, maybe it’ll have a three-judge panel, maybe it won’t have any of that,” he said.
Esenberg noted the court didn’t do any of that in the 2021 case that resulted in the court implementing the current maps.
He also cast doubt on whether the suit could result in new maps before the second half of March, when the Wisconsin Elections Commission said it needs new maps in order to comply with candidate filing and nomination paper deadlines.
“And I think what’s going to happen is we’re going to find out very, very quickly, that if we’re going to consider these questions of what constitutes partisan fairness, which maps best gets at that, we’re going to have a process which cannot possibly get done in accordance with any concept of due process by the time that it has to be done for purposes of drawing new maps,” he added.
But Mandell said his argument isn’t asking the court to consider partisan fairness, rather whether maps adhere to the state constitution’s requirement districts be contiguous and if the current map selection process violated the separation of powers clause.
“The goal is democracy,” he said. “If we have more competitive elections, if we wind up with a Legislature full of members who are more responsive to what their constituents believe and want … If we get back to the feedback mechanisms of democracy, that’s a win.”
Mandell also said he thinks the court will appoint a three-judge panel or expert referee to install new maps.
And while Mandell said the state Supreme Court is the beginning and end of this case, Esenberg was less sure, noting the timeline for the state to come to a decision is quite short.
“So to say that there can’t be a Supreme Court review, I think, is to go too far,” he said. “We don’t know that until we see what the court does and whether a federal issue is raised.”
While Mandell says he wants fair maps, redistricting expert and former GOP Rep. Joe Handrick, of Minocqua, argues there’s no way to draw a legislative map that perfectly reflects the near 50-50 split Wisconsin sees in most statewide elections.
The only way to get to an even split in the Assembly would be to “slice and dice” as many Dem municipalities as they can, where liberal voters are most heavily concentrated.
“And that’s the only way you create a map in which Democrats have a fighting chance to get the majority,” he said.”That’s their game plan, that’s what they’re going to do.”
Debra Cronmiller, executive director for the League of Women Voters of Wisconsin and Wisconsin Fair Maps Coalition chair, argued there is a way to get fair maps that do accurately reflect the even share between Republican and Democratic candidates in statewide races.
“I agree with Joe that we are a 50-50 state,” she said. “I disagree that a 50-50 state would ever have the kind of representative government that we have right now. We must undo the gerrymander that was put into place in 2011.”
Cronmiller also said Iowa’s redistricting model won’t work in Wisconsin, adding: “Iowa’s demographics are completely different than Wisconsin’s demographics.”
Assembly Republicans earlier this year passed AB 415, which would implement a redistricting plan in Wisconsin modeled on Iowa’s. The bill has yet to receive a full Senate vote.
Cronmiller said whatever the resolution ends up being to get fair maps, it must involve a constitutional amendment because if it’s just legislation, lawmakers can more easily undo it.
She said a fair map-drawing process would involve local community leaders from around the state, not lawmakers.
“Each community has local leaders, local participants, who have an opinion, and that is the prevailing opinion,” she said. “Not the opinion of the elected official who’s sitting in the chair right now just trying to protect his own power; not the governor, for the same reason. It has to be a non-partisan, independent process.”
Esenberg also ripped Mandell’s argument that his redistricting case before the Supreme Court is about making sure districts are contiguous and don’t have islands completely enveloped by other districts.
“This whole question of municipal islands is a Trojan horse, right? It’s a way to get at the issue that the court said that it would not take up and cannot take up,” he said. “Because it’s literally impossible to do it in the context of an original action, particularly if you need to do it in time for the 2024 elections.”
Esenberg also said if contiguity was the only issue at hand, it would be easy to move those islands into existing districts without redrawing all 99 Assembly districts.
But Mandell said it’s not that simple.
“When Rick says ‘Oh, well, we’ll just fix the islands, we’ll just dissolve them into the districts that exist now,’ It violates one person, one vote, you can’t do it,” Mandell said. “You’ve got to make the maps constitutional and that’s going to require new maps.”
GOP Assembly Attorney Taylor Meehan last week made the same argument as Esenberg before the Supreme Court, but liberal Justice Jill Karofsky argued that tactic would present its own problems.
Redistricting standards require keeping the population of each legislative district as even as possible. Following the approach Meehan suggested, Karofsky noted, would result in a district with a deviation of more than 9% from the population of others. That would “completely blow apart what any court has ever done.”
While Mandell argued his suit is just seeking to make sure legislative maps are contiguous and don’t violate the separation of powers, he added, “at the end, just make sure that you’re not doing what the federal court did in 2001: you’re not inadvertently creating a gerrymander.”
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