Less than a week remains before a court-imposed deadline for Democrats and Republicans to present responses to each others’ initial briefs on how to remedy what a three-judge federal panel says is an unconstitutional gerrymander of Wisconsin’s Congressional and legislative districts.
Depending on what happens in Wisconsin, there could be ramifications in other states, including Michigan, on maps that were reapportioned back in 2011. The court has set a January 5, 2017, deadline for the two sides to tell the court what each party thinks should happen next.
Wisconsin Democrats contend that work on redrawing the state Assembly map should begin immediately, with or without the participation of state lawmakers. Dems want any new map ready for elections in 2018 and 2020.
Not surprisingly, the Wisconsin Department of Justice, headed by a Republican Attorney General, argues that the three-judge federal panel hearing the case should wait to order a plan to replace the 2011 state Assembly map until after the U.S. Supreme Court has acted on its inevitable appeal.
Briefs from both sides were filed 10 days ago at the request of the panel, which ruled in a split, 2-1, verdict in November that the 2011 redistricting plan, drawn up by Republican legislators, is an unconstitutional partisan gerrymander. When the panel made its ruling, it did not decide (for the time being) how it would change the map, instead ordering both sides to write briefs telling the panel what they believe should happen. On Jan. 5, both sides will file responses to the other’s position.
In its brief, Democratic lawyers asked the panel to bar further use of the 2011 Assembly map so that the Wisconsin DOJ can immediately appeal. But, while the appeal is ongoing, Dems say the panel should begin the process of redrawing the map. The Democrats argue that the panel may allow legislators to redraw the map but, if so, the panel should compel legislators and the governor to adopt “a firm timetable, clear line-drawing criteria and concrete disclosure instructions.” If the court decides to draw the map itself (which a Michigan appellate panel did in this state back in 1992), such an effort should have line-drawing constraints that are even more strict.
Republicans and the state DOJ’s lawyers disagree with the panel’s decision that the 2011 redistricting plan is unconstitutional. Nevertheless, the GOP contends the court is within its rights to direct the Legislature to revise Assembly districts to comply with the panel’s order — but should wait to do so until after the state’s appeal has been heard by the U.S. Supreme Court.
Of course, the federal high bench is currently one member short because of the refusal of the U.S. Senate’s majority Republicans to consider a replacement for the late Justice Antonin Scalia. Most observers deem the U.S. Supremes are split, 4-4, as to partisan leanings, although GOP-appointed Justice Anthony Kennedy is thought to be “wobbly” and could side with any Democratic argument on redistricting.
A President Donald Trump appointment to replace Scalia might be critical to a final decision that could have national ramifications, although, if Kennedy sides with the court’s four liberal members, whomever Trump names could be irrelevant.