Redistricting fight back in US Supreme Court

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IT WAS a reasonable question:

Did a U.S. Supreme Court order that told Pennsylvania legislators to immediately redraw the districts of U.S. House members signal how the Court would rule in the challenge to Wisconsin Assembly districts?

No, according to attorneys on both sides of the Wisconsin case.

But, they add, a redistricting case from Maryland that the U.S. Supreme Court will hear March 28 may offer the next clue in how the court rules in the Wisconsin case.

"THERE'S huge difference between the Wisconsin and Pennsylvania cases," said Rick Esenberg, president of the Wisconsin Institute for Law and Liberty (WILL).

WILL filed a legal brief asking the U.S. Supreme Court to uphold Assembly districts Republicans drew in 2011. The boundaries of three Assembly districts form one state Senate district.

Individuals and groups who sued to void those districts argued that they were illegally stacked in favor of Republicans, who began the 2017-18 session with 64 seats in the 99-member Assembly.

BUT the Pennsylvania case will have "no bearing" on the Court's decision in the Wisconsin case, agreed Doug Poland, one of the attorneys who asked the Court to adopt a new standard that voids legislative districts blatantly drawn to favor one party or the other.

Federal judges agreed with the arguments of Poland and others, prompting the U.S. Supreme Court to accept the Wisconsin case. Oral arguments were held in October.

While the Wisconsin case was pending, the Supreme Court set aside an order telling the Wisconsin Legislature to redraw the districts this year.

THE Pennsylvania case is intriguing because it also involved districts - for Pennsylvania's 19 U.S. House seats - drawn by Republican legislators.

And, in an order issued by Justice Samuel Alito, the Supreme Court let stand a Pennsylvania Supreme Court ruling telling Republicans to immediately draw new districts for primary elections only weeks away.

But Esenberg and Poland say the Pennsylvania case turned on that state's supreme court interpretation of the state constitution - a much different question than the issue posed by the Wisconsin case.

"State supreme courts are the final arbiters of what state law means and requires," Esenberg said. "Whatever limits are found in Pennsylvania's constitution wouldn't apply in any other state."

THE Wisconsin case involves "an entirely different law" than the Pennsylvania controversy, Poland said.

Poland added: "We'll see how the argument goes in Benisek on March 28, and then we'll just have to wait for the Supreme Court's ruling."

In the Maryland case - Benisek vs. Lamone - the Supreme Court will decide whether Democratic legislators illegally redrew the boundaries of a U.S House district to make a Democratic victory likely.

Democratic legislators "reshuffled fully half of the district's 720,000 residents - far more than necessary to correct the mere 10,000-person imbalance in the district's population following the 2010 census," a lawyer for Maryland Republicans argued.

According to the Washington Post, that change "resulted in a more than 90,000-voter swing in favor of Democrats, and the share of registered Republicans fell from 47% to 33%."

"NO other congressional district anywhere in the nation saw so large a swing in its partisan complexion following the 2010 census," the lawyer for Maryland Republicans added.

Esenberg said scholars disagree on why the Supreme Court took the Maryland case before deciding the Wisconsin one.

"One theory is that they took Benisek because they could adopt a narrower rule that warrants more limited judicial evaluation of map drawing," Esenberg said, adding:

"If that's so, it signals that the [Wisconsin case] plaintiffs might lose. Another is that they want to ding both Democratic and Republican gerrymandering."

THE Maryland case also would give the Supreme Court a way to punish "First Amendment retaliation" - the idea that party leaders draw new district lines to punish voters for electing members of the opposing party, Esenberg noted.

On March 28, "I am sure that everyone will be parsing what the justices say and trying to decide what it 'signals' for" the Wisconsin case, Esenberg added.

If the Supreme Court ordered new Wisconsin districts to be drawn, must they be in place for Nov. 6 elections? The deadline for candidates to file petitions to run in those districts is June 1, which would give candidates - and voters - only a few weeks to get to know each other.

Steven Walters is a senior producer for the nonprofit public affairs channel WisconsinEye. Contact him at

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