Nowhere has the Republican plan to hang onto power at all costs expressed itself more fully than in North Carolina and Wisconsin.
In both states, Democratic governors won competitive statewide elections, only to see their powers stripped away by Republicans who control the state legislatures.
And in both states, the gerrymandered electoral maps that set up Republican control in the first place are the subject of potentially precedent-setting federal lawsuits.
"As demographic trends undermine Republican control across the country, the GOP is resorting to more flagrantly anti-democratic tactics to hold on to power."
As demographic trends undermine Republican control across the country, the GOP is resorting to more flagrantly anti-democratic tactics to hold on to power. What happens next in the battleground states of North Carolina and Wisconsin will set the stage for the next round of elections, and for politics for many years to come.
In Wisconsin, Democratic Governor Tony Evers takes office on January 7, 2019, with significantly diminished powers thanks to the Republican power grab during a December 2018 lame-duck session. But Evers still has the veto pen, and after the 2020 census, he will approve or reject the state’s new electoral map.
The old map—which has been labeled the most unfair in the country—will remain in effect until 2021, unless a federal or state court decides to overturn it.
Thus, the most partisan Republican map in America could be the starting point for post-2020 negotiations between the Republican legislature and the Democratic governor—and, theoretically, the fallback option if those negotiations are deadlocked—which doesn’t sound like a recipe for progress.
But there are several possible ways the gerrymandering battle in Wisconsin could unfold—leading to radically different possible results.
Here are the possible scenarios:
Scenario One: Everyone agrees to a fairer map.
Advocates are already pushing, publicly, for Evers and Wisconsin’s Republican legislature to create an independent, nonpartisan process to get a fair and representative map for Wisconsin voters. Bowing to public pressure, both parties could agree to reform the map-drawing process and voluntarily submit to expert guidance, coming up with a politically neutral map for 2020.
Given the Republicans’ naked power grab in the recently concluded lame-duck session, this scenario seems highly unlikely. But it’s a public fight worth having, raising awareness of the problem of gerrymandering, and joining a nationwide movement for fair and representative maps.
Scenario Two: the governor and legislature fail to agree, and the map goes to court
If the legislature and governor cannot agree on a map, and the governor vetoes the map the Republicans present to him, the map could then go to the courts, and the courts could try to draw a fair map. Most disputes over drawing legislative districts have historically gone to federal court, but which court hears the case depends on whether state or federal constitutional issues are at stake. The map could end up in state or federal court, or both.
Scenario Three: Wisconsin’s state supreme court decides on a new map
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In this scenario, the state’s Republican-dominated state supreme court could conceivably side with Republicans in the legislature, affirming the gerrymandered map and, worse, taking the governor out of the process altogether.
Under Wisconsin law, the state legislature is responsible for drawing up the electoral map, and the governor must sign it, just as he must sign all legislation. But the state supreme court could revisit its 1964 decision on this issue and decide that maps are distinct from other legislation, and therefore do not require the governor’s signature—extending the Republican legislature’s power grab and allowing it to lock itself into power for the foreseeable future by removing any check on its ability to draw gerrymandered maps.
There are a couple of competitive races for state supreme court, in 2019 and 2020, which could tilt the balance of power in the court. State Republicans have been focused on those races after a failed effort to move the date of Wisconsin’s 2020 presidential primary so the expected higher turnout would benefit whoever will challenge the conservative court incumbent. One Republican strategy, should the balance of power stay the same, would be to try to get the state supreme court to affirm a gerrymandered map.
Federal court rulings against gerrymandering in Wisconsin still might trump the state court, however.
Scenario Four: the map gets overturned in federal court and a fairer standard is in place before the 2020 census.
This is the best-case scenario for fair-map advocates.
In 2018, the Supreme Court ruled in Wisconsin’s Gill v Whitford case that the twelve Democratic voters who sued to strike down Wisconsin’s gerrymandered map did not have standing to bring the suit. But instead of dismissing the case, the Supreme Court sent it back to a lower court, giving the plaintiffs another chance to establish standing and shore up their case. That case will be reargued in federal court in April, with at least forty plaintiffs and a narrow set of arguments aimed at correcting the standing problem.
The Whitford suit, which was originally filed in 2015 in the hopes of getting a new map in time for the 2018 elections, could make its way back to the Supreme Court in time to affect the outcome of the 2020 elections.
“It’s not just about who draws the map and when. It’s about the standards that any map has to live by,” says Sachin Chheda, director of the Fair Elections Project, which opposes gerrymandering and organized and launched the Whitford case. “If the Whitford plaintiffs win, then whoever draws the map has to live by a stricter set of standards.”
North Carolina’s redistricting suit, Rucho v Common Cause, which was also sent back to lower court, will likely make it back to the Supreme Court before Whitford, and could set an important precedent, changing the political map in Wisconsin and other states before 2020.
Meanwhile, Democrats and good-government activists are trying to build momentum to oppose gerrymandering in all the states—even when Democrats are the ones drawing the maps.
In New Jersey, a Democratic scheme to ram through partisan redistricting has drawn vocal opposition from the ACLU, the Brennan Center for Justice, and the League of Women Voters.
Progressives cannot support gerrymandering, even by their political allies, if they are going to defend democracy, asserts Chheda.
“Democrats are being shamed out of gerrymandering, which is great,” he says. “We’re showing where moral high ground is on the issue.”