The column below reflects the views of the author, and these opinions are neither endorsed nor supported by WisOpinion.com.

On April 15, Governor Evers called the Wisconsin Legislature into special session to consider a proposed constitutional amendment designed to prohibit partisan gerrymandering.

Evers proposes to amend Art IV, sec. 3 of the Wisconsin Constitution. Instead of simply requiring equal populations for each electoral district the new proposed language adds: “Districts shall not provide a disproportionate advantage or disadvantage to any political party. Partisan gerrymandering is prohibited.”

The proposed Art IV, sec. 3 will add to the already existing constitutional provisions in Art IV, ss 4 & 5 that that require that electoral districts “be bounded by county, precinct, town or ward lines;” “consist  of contiguous territory;” and be in as compact form as “practicable and requires that Senate districts (s. 5) single districts having “convenient contiguous territory that do not divide any assembly districts.

The idea behind gerrymandering is to draw electoral districts in such a way such that an election will disproportionally increase a governing party’s number of elected candidates compared with that party’s numerical support across the electorate. It has a long history and throughout the 19th century “strategic redistricting” was a well-used tool to maintain political supremacy. 

Wisconsin has been no stranger to partisan gerrymandering. In 1892 the Wisconsin Supreme Court struck down a gerrymander in State ex rel. Attorney General v. Cunningham (1892), one of the first American cases to address gerrymandering. In this case, the Wisconsin Supreme Court established articulated several basic principles that guided its approach to gerrymanders. First, it accepted jurisdiction and denied that the “political nature” of reapportionment precluded jurisdiction. Second, it held that the right to vote must be “guarded, protected, and secured against force and against fraud” because the right to vote is fundamental to democracy.  From this perspective, “[t]he right to choose representatives is every elector’s part in the exercise of sovereign power.” Third, that this right is not simply a right and opportunity to cast a ballot but a right to participate, to have “their proper voice and influence and just representation.” As such, where reapportionment is used to “intentionally and wilfully for some improper purpose or for some private end foreign to constitutional duty and obligation,” the Court must intervene.

After the 2010 elections the dominant GOP made use of sophisticated statistical programs in the 2010 redistricting in order to maximize the number of “safe” and “likely” Republican seats in a partisan gerrymander. The redistricting plan was successful; in 2012, Republican candidates won 49 percent of the total vote for Assembly but 60 percent of Assembly seats, a result reproduced in subsequent elections. 

This effort was not unchallenged. In the 2016 case Whitford v. Gill opponents asked the federal court to declare the map a partisan gerrymander because it violated Democrat voters’ equal-protection, free-speech, and freedom-of-association rights under the U.S. Constitution. The Court by a 2-1 vote decided that that the U.S. Constitution prohibited any map that “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation; (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” The Supreme Court overturned this decision holding that the plaintiffs did not have standing. Subsequently, in the 2019 Rucho v. Common Cause case, the Supreme Court ruled that partisan gerrymanders were a nonjusticiable “political question” because there was no limited and precise judicially discernible standard that could be used to fashion a remedy; the legislature and the executive were tasked with drawing districts to the exclusion of extensive court involvement.

The Wisconsin Supreme Court adopted the position in Rucho regarding the political nature of reapportionment; but it was reversed after the 2022 election in Clarke v Wisconsin Elections Commission. In Clarke the majority held that judicial review of reapportionment did not violate the separation of powers and a court could consider “partisan impact when evaluate remedial maps.” However, the Court declined to consider the question of whether extreme partisan gerrymandering violates Wisconsin Constitution.

The new proposed constitutional amendment will prohibit partisan gerrymandering and opens the way for courts to consider the partisan impact of election maps. This constitutionalizes the Clark decision. As increased political polarisation has eroded norms of political cooperation, an increased role for the courts should be welcomed. At the same time, the proposed amendment is incomplete and unnecessarily grants the court more authority then appropriate. First, the amendment, like other sections of Art. IV should incorporate some criteria by which the courts can evaluate partisan gerrymanders. The U.S. Supreme court has ruled that gerrymandering is a “political question” because there are no clear, manageable and politically neutral test for remedying political gerrymanders under the federal constitution. In Wisconsin the amendment should include some criteria for the courts to identify a map as “partisan.” What, for example, would be a “disproportionate” skew, and should a court prioritize intent evidence, electoral effects, map simulations, traditional criteria, or some combination. Second, other criteria such as community of interest, existing local and county boundaries, previous district boundaries, communications facilities and markets, topographical features, and any projected variation in a district’s population during their life should be added. Third, the amendment should entrench the Wisconsin Elections Board as an independent agency constitutionally tasked with reapportioning electoral boundaries using non-partisan neutral criteria after once every 10 years after the census.  The work of the Commission could be reviewed by an independent review body made up of members of the public, public officials and majority and minority appointees. Its decision would also be subject to judicial review.

The Supreme Court has said that ‘[t]he right to vote freely for the candidates of one’ choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Partisan Gerrymandering fundamentally violates democracy. It enables the elected officials to circumvent and ignore the will of the people as expressed in elections by skewing election results in favour of candidates who agree with their policies and values. It undermines the public square where ideas, laws, policies, norms and values are discussed, determined, and, when after garnering enough support, are implemented through the election of representatives. Daniel Webster, quoted by the Wisconsin Supreme Court in Cunningham, noted that “[t]he right to choose representatives is every elector’s part in the exercise of sovereign power.” This right is not simply the procedural right to be left alone to cast a ballot, but a substantive right. The new proposed amendment, while an important first step, needs additional criteria for the courts to better prevent partisan gerrymanders. 

Guy Charlton is an Association Professor of Law at the University of New England (Australia) where he teaches American constitutional law. He is from Milwaukee and Plymouth, Wisconsin

Averell Charlton Diesch is a tutor in Law and Philosophy at the University of Hong Kong, He is from Plymouth, Wisconsin.