MADISON (WKOW) — When the U.S. Supreme Court sent back the original redistricting maps selected by the Wisconsin Supreme Court — the ones submitted by Democratic Gov. Tony Evers — the state’s high court had few options.
It could’ve further justified how the governor’s maps were not a violation of the Voting Rights Act or it could’ve chosen another set of maps. The court selected the latter, opting to establish the GOP-controlled legislature’s maps as the district boundaries for Assembly and Senate races for the next decade.
“In practical terms, they weren’t left with much alternatives other than to adopt the legislative map,” Joe Handrick, who drew the GOP maps in 1991 and 2001, said.
Handrick maintained the governor’s maps were a violation of the voting rights act, diluting the Black vote by creating a seventh majority-Black Assembly district in Milwaukee.
Conservatives, as well as some Milwaukee Democrats, argue the violation is having each district with narrow Black majority, between 50 and 52 percent, weakens the Black vote relative to the current set up of six districts with a more distinct African-American majority.
“Because they focused almost exclusively on race in dividing the Black population up almost exactly amongst those seven districts, that was making race the predominant factor in the drawing of those maps,” Handrick said.
Mel Barnes, an attorney for the progressive firm, Law Forward. countered Evers never received the change to submit more evidence of the maps complying with the federal act – something SCOTUS had said it would allow the state court to consider.
Barnes said given the increase in Black Milwaukee residents over the past decade compared to a decline in White residents, adding a seventh district was necessary to ensure fair representation. She argued the lawmakers’ map was the true minimization of Black voters’ influence.
“What the legislature chose to do instead of respecting that population growth and recognizing that that required an additional Black majority district, they reduced those districts and they drew five districts,” she said. “Further packing Black voters into a district where their votes are diluted.”
Barnes and Handrick agreed the court gave itself little wiggle room when it established early in the process it would select a map as opposed to bringing in its own experts to either draw its own map or adjust district boundaries – something other courts have done when they’ve had to settle redistricting disputes.
Barnes said it was possible concerns about having only five majority-Black districts could lead to another federal challenge, asserting the legislature’s maps violate the Voting Rights Act.
The state’s high court established it would not consider partisan balance when choosing a map, something Barnes said was also a mishandling of the case. Analysis by the Campaign Legal Center found the legislature’s maps gave the GOP a 12 percent edge in the Assembly and a nearly 15 percent edge in the Senate in cases where the statewide vote was a 50-50 split.
Handrick said the imbalance was largely a result of liberal voters being increasingly clustered in urban areas.
“Whatever GOP advantages were there coming into the cycle were largely maintained whether you adopted the Evers map or the legislative map,” he said.
Barnes countered the outside reviews demonstrated how clustering alone did not account for the imbalance.
“While political geography may give one party a slight advantage, that’s not what we’ve been living under or experiencing here in Wisconsin for the past decade,” she said. “And it’s certainly not what the maps imposed by the court on Friday do.”
Changes already considered for medical marijuana bill
For the second time in state history, the legislature held a public hearing for a bill that would legalize medical marijuana. Wednesday’s hearing marked the first time such a hearing took place since Republicans took control of the legislature in 2011.
Co-author Rep. Patrick Snyder (R-Schofield) said he’s heard plenty of support from his Marathon County constituents and acknowledged his colleagues could have acted sooner on a measure that has become law in 37 other states.
“In the past, we haven’t really looked at it as seriously as we maybe should have,” Snyder said. “But in my time here in the Assembly, it is becoming evident that a lot more people are concerned about this.”
Snyder said Wednesday’s hearing was still momentus because there are holdouts in the GOP caucus who oppose any type of legalization. Democrats and other proponents of legalization say the bill is too strict – creating a regulatory commission in charge of deciding the qualifications for being approved as a patient or to become a licensed seller.
Sen. Melissa Agard (D-Madison), the legislature’s most ardent support of full legalization, including for recreational purposes, said she was also disappointed the hearing came after the legislature’s been adjourned for the year so there’s no chance it’ll pass until 2023 at the earliest.
“We’ve had over 15 months of time to have this conversation in the Capitol building,” Agard said. “And my Republican colleagues, who are in control of that scheduling, choose to take action after we can actually cross the finish line.”
Agard said she believed the bill should be loosened, removing a ban that would keep anyone with a past drug conviction from becoming a licensed producer or seller. She also believed patients should be allowed to smoke the plant; in its current form, the bill only allowed for edibles and oils.
Snyder said, based on Wednesday’s testimony, that’s a change he’s willing to consider.
“I know there were some things about being able to smoke the marijuana, especially the veterans who talked about that, that they liked that,” Snyder said. “I’d be willing to consider that down the road.”
‘Absurd’ is the word
Another high-profile case still before the Wisconsin Supreme Court will determine how voters are able to cast absentee ballots later this year. The ruling will dictate if and how communities can place drop boxes and when voters can have someone else return their absentee ballot.
During oral arguments before the court on April 13, justices asked about a flurry of specific situations, including whether it’d be a criminal act for a voter to place their spouse’s ballot in a mailbox or how a voter disabilities is supposed to vote if their bedridden or otherwise physically unable to return their ballot themselves.
UW-Madison Constitutional Law Professor Howard Schweber said the case may well come down to how a hearing from nearly 70 years ago holds up today.
In Sommerfeld vs. St Francis, a candidate challenged the Milwaukee suburb’s ruling 18 absentee ballots didn’t count because the voters themselves had not delivered the ballots.
The supreme court in that case ruled it was absurd to read the law so strictly because it “would defeat itself in the case of those who are sick or physically disabled.”
Schweber said today’s justices must now walk through a very similar set of considerations.
“The idea that you would read a law or a set of laws, in this case, together in such a way as to defeat the entire object of the system of the rules, which is to explain how people can vote, it’s sort of absurd in a policy sense,” Schweber said. “But not necessarily in a linguistic sense.”
Schweber said part of the issue is lawmakers in the decades that followed the Sommerfeld case never added language to state law clarifying when it’s permissible for voters to have someone else deliver their ballot.
While lawmakers did not immediately revisit the statutes following the 1955 decision, Schweber said it’s impossible for a court to consider that the modern stance of lawmakers – let alone tie the current legislature to the one that actually wrote is on the books.
“Part of the fascinating thing about all this is you can’t simply go to the legislature and ask them [for clarification] because the legislature we have now is not the same legislature that wrote the statute,” Schweber said.