Republican Gerrymandering Has Basically Destroyed Representative Democracy in Wisconsin

Jay Willis
What purpose do elections have if results like these are allowed to stand?

Early on Wednesday morning, after working through the night as the end of the lame-duck session approaches, the Wisconsin state legislature passed a set of bills that will sharply limit the ability of incoming Democratic governor Tony Evers and attorney general Josh Kaul to do the jobs that the people of Wisconsin chose them to do. The legislature did this because it is controlled by Republicans, and as much as Republicans profess to love this country and cherish the freedoms that come with living in it, one thing they cannot abide is the notion that Americans might exercise those freedoms in order to elect people that Republicans do not like.

In the state senate, the margins were close: 17-16 on SB 884, which transfers powers of the attorney general to the legislature, and 18-15 on SB 886, which requires that the Department of Health obtain legislative permission before moving to expand Medicaid under Obamacare. But in the assembly, they were not: 56-27 in favor of SB 884, and 59-32 in favor of SB 886. This discrepancy arises because there might be no one better at gerrymandering their state to preserve minority rule than Badger State Republicans.

In 2010, after Republicans won the governorship and control of the state legislature, they set about the task of drawing new legislative district boundaries to ensure that they'd never cede that control again. This graphic from University of Wisconsin political science professor Barry Burden, which depicts the vote share of every newly-elected assemblymember in 2018, shows just how successful they were at that task. As he notes, it is a breathtakingly skillful display of anti-democratic maneuvering that might merit more appreciation if it weren't such galling evidence of moral bankruptcy.

Comparing this year's results with those from previous elections provides an even more startling perspective on the GOP's efficiency. As noted by the Washington Post's Philip Bump, in 2016, Republican candidates won 161,000 more votes than their Democratic counterparts, which yielded a 29-person GOP advantage in the assembly. This seems intuitive enough: Get more votes, get more seats at the table. In 2018, however, Democrats received 205,000 more votes than Republicans, which yielded a 27-person advantage. For Republicans.

The key to a successful gerrymander is making it election-proof: drawing the lines to ensure that, no matter what constituents want or how they choose to vote, their ballots will be tallied in a way that preserves the power of the gerrymanderers. In 2016, when Trump took Wisconsin and Ron Johnson won his Senate re-election bid, Republicans came away with a healthy majority in the assembly. In the 2018 wave election, when senator Tammy Baldwin handily beat a Republican challenger and voters ushered Scott Walker into retirement, it was almost the exact same result.

Democrats have spent years raising hell about this unsavory arrangement, but so far, they have little to show for their efforts. In 2016, a federal court in Wisconsin found that the map ran afoul of the constitutional guarantee of equal protection, and ordered the legislature to draw a new one. The state appealed, however, and in June, the U.S. Supreme Court issued its decision in Gill v. Whitford, punting on the substance of the challenge and remanding it to the district court to determine whether the plaintiffs have standing to bring suit. Should it ever return to the Supreme Court, the recent replacement of Anthony Kennedy, who had indicated his disapproval of partisan gerrymandering, with Republican justice Brett Kavanaugh does not bode well for the case's future.

The most vexing obstacle for anti-gerrymandering activists is that the Court's "one-person, one-vote" rule requires that legislative districts be of approximately equal population size—but that, as a matter of constitutional law, it prescribes nothing about the party preferences of those who live in them. The justices' role, they say, is to resolve legal questions, not political disputes. "Because there are yet no agreed upon substantive principles of fairness in districting," Justice Kennedy wrote in 2004's Vieth v. Jubelirer, "we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights." What's happening in Madison, however, is pretty compelling evidence that the Court needs to find a way to resolve this problem before representative democracy in Wisconsin functionally ceases to exist.