Last Wednesday the Chicago Lawyers’ Committee for Civil rights Under Law filed suit on behalf of Wisconsin plaintiffs suing state election officials over the state assembly district plan that Republicans drew in 2011. The legal team also includes Michele Odorizzi of Mayer Brown in Chicago, sole practitioner Peter G. Earle from Milwaukee, and University of Chicago law professor Nicholas Stephanopoulos, who co-created the "efficiency gap metric" at the heart of the suit's Constitutional argument. The lawsuit, Whitford v. Nichols, argues that the current map is one of the “worst partisan gerrymanders in modern American history,” claiming that it has given Republicans a firm grip on the Legislature.
The complaint also states that, “this kind of partisan gerrymandering is both unconstitutional and profoundly undemocratic. It is unconstitutional because it treats voters unequally, diluting their voting power based on their political beliefs, in violation of the 14th Amendment’s guarantee of equal protection and because it unreasonably burdens their First Amendment rights of association and free speech.”
Chicago Lawyers’ Committee for Civil Rights’ Executive Director Jay Readey said of the lawsuit, “We are pleased to partner with a number of experienced attorneys to help not only the people of Wisconsin to have a fairer redistricting plan, but to potentially change redistricting plans across the country. Extreme partisan gerrymandering is contrary to core democratic values and can make it harder to enact pro-civil rights laws and policies, even if they are supported by a majority of the voters. We hope that through this lawsuit we will give power back to the people, so that they can choose their legislators, not the other way around.”
The U.S. Supreme Court has ruled overly partisan maps can be unconstitutional, but has not determined a standard for unconstitutionality. This lawsuit proposes a standard based on the “efficiency gap” metric. If the lawsuit is successful, a limit will be set on extreme partisan gerrymandering across the country for the first time.
Partisan gerrymandering is achieved by "cracking" and "packing" districts. Cracking districts involves breaking up voters of one party across multiple districts so they don't have a majority of votes in the districts. Packing districts amounts to stuffing large number of like-minded voters into a small number of districts. In both cases, those districts produce large numbers of so-called "wasted" votes — that is, votes cast for losing candidates and votes cast in excess of those needed to elect a candidate. Using those wasted votes to calculate a redistricting plan’s “efficiency gap” allows the courts to measure the extent of partisan gerrymandering.
Using the efficiency gap metric, the lawsuit alleges that the Assembly district plan gave Republicans an efficiency gap of 13% in 2012 and 10% in 2014, making it one of the most partisan in American history.
The ACLU of Wisconsin issued a comment on the filing on July 8. Executive director Chris Ahmuty, in a news release, said, “When 53 percent of citizens vote for one party, but that party gets 39 percent of the legislative seats, something is askew. Past redistricting practices and tactics have resulted in unequal voting power among citizens, providing unfair representation for communities of color and fragmentation of communities of interest. No plan is insulated entirely from partisan bias, but elected officials and the courts have an obligation to ensure that the public good is not sacrificed to the self-interest of political parties. Such practices alienate voters and weaken democracy.”
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