The Fight for Permanent Fair Maps and Why it Matters’ – WisPolitics

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The history of gerrymandering in Wisconsin is almost as twisted as a gerrymandered map can be, but former Wisconsin Senate Majority Leader Tim Cullen traces what he calls the “abuse of power” practice in Wisconsin back to Territorial Days in this excerpt from his new Little Creek Press history, “Wisconsin Gerrymandering: The Fight for Permanent Fair Maps and Why it Matters.”

Webster’s New World Dictionary of the American Language defines gerrymandering as “the redistricting of votingdistricts to the advantage of one party.” Redistricting is theprocess by which states adjust the boundaries of congressional,state legislative, and local electoral districts to account for shiftsin population (according to the latest census). Because the censusis done every ten years, redistricting is done every ten years.

What we today call gerrymandering started before 1812, but the actual word gerrymandering was first seen publicly as the title of a drawing of a Massachusetts senate district by Elkanah Tisdale appearing in the Boston Gazette on March 26, 1812, according to anErick Trickey Smithsonian Magazine article, “Where Did the Term ‘Gerrymandering’ Come From?”, from July 2017.The Massachusetts Legislature was redrawing its legislative maps (redistricting) in 1812, following the 1810 census. The only purpose was to change district lines to adjust for population changes that occurred during the previous ten years so that, as closely as possible, every district would have the same number of people. This was seldom an actual goal in most or all of America until ordered by a U.S. Supreme Court decision in 1962.

Elbridge Gerry was the governor of Massachusetts in 1812. … The partisan legislative map drawers in Massachusetts drew some strange looking districts that year, which Governor Gerry approved. One of the district’s shapes was so unusual that it was described as looking like a salamander. Illustrator Elkanah Tisdale drew a picture of the district with wings and scales, which appeared on March 26, 1812, in the Boston Gazette headlined “The Gerry-mander.” The name has stuck to this day. I must give Massachusetts credit for being consistent—even today they have a gerrymandered legislative map.

Editor’s Note: As Cullen later describes in Chapter 3, the practice—and eventually the name ‘gerrymandering’—caught on around the country, including in Wisconsin.

The history of redistricting in the area that is now Wisconsin goes back to 1787. I learned this from a 2020 document from the Wisconsin Legislative Reference Bureau, which provides a great service to all of us.

Our area was organized under the Northwest Ordinance into a territory in 1787. Representatives to the Territorial Legislature were elected from counties or townships. The Northwest Ordinance stated that inhabitants of the territory were entitled to “a proportionate representation in the legislature.” As you read, you may conclude that this was a kind of stopgap solution. After all, we did not even have a president until George Washington was elected in 1788, the year after the Northwest Ordinance made the above decisions.

The 24th United States Congress created the Wisconsin Territory in 1836 when it created the Territorial Government of Wisconsin. This area included the now states of Wisconsin, Iowa, Minnesota, and parts of the Dakotas. This legislation gave the governor the power of legislative reapportionment. This struck me, and maybe you, that sole power being given to the executive feels like the way kings and queens in England controlled things. Democracy was still in the early stages.

The 1846 Wisconsin Territorial Convention was established to prepare Wisconsin for statehood, which occurred in 1848.  … Part two of the Legislative Reference Bureau document traces the history of redistricting in Wisconsin and shows how the law and the process governing redistricting has evolved through at least three distinct eras over more than 200 years.

The first era was the Wisconsin Territorial era from 1787 until 1848, when Wisconsin became a state. The second era was from 1848 until the 1960s. The state constitution required the legislature, not the governor, to draw the maps, and it required the legislature to reapportion every five years. Wisconsin had a census that showed the population change after five years. The census then changed to every ten years in 1910.

The third era lasted from the 1960s through today and into the future. This is the era of one person, one vote, due to a United States Supreme Court decision (see Baker v. Carr, 1962 in Appendix). So legislative and congressional districts must be reapportioned every ten years. If the legislature and the governor could not agree, the courts could and always have, in this situation, settled the new maps.

We do not know what the next era will look like and what will cause it. My speculation is that the adoption of a nonpartisan, Iowa-type system for redrawing maps could create the beginning of a new era. Some type of nonpartisan commission could conceivably work, but an Iowa-type system is my preference. I believe giving this issue to the federal courts would also work. I explain all this in detail in Chapter 9.

In 1892, the first major court battle over redistricting in Wisconsin—known as the “Cunningham cases”—would impact redistricting for decades. The state supreme court outlawed gerrymandering and said the court had the power to declare a reapportionment map unconstitutional. [See: The State ex rel. Attorney General v Cunningham 81 Wis. 440, 1892]. This was 70 years before the U.S. Supreme Court made the same determination in Baker v. Carr [1962, Legal Information Institute]. The Cunningham cases also established the one-person, one-vote rule decades before the U.S. Supreme Court did, although the rule was widely ignored for decades.

I found it amazing that the Wisconsin Supreme Court, in the Cunningham cases, said that violating equal population “destroys one of the highest and most sacred rights and privileges of the people of this state, and that is ‘equal representation in the legislature.’”

However, after using this powerful language, including “sacred rights” of the people, the court opened the door to two exceptions. One exception was the right to keep counties intact. This made it more important to keep counties intact even if that map would not maintain a “sacred right.” The bottom line is if equal populations in each district clashed with keeping counties intact, the idea of one person, one vote was put aside. So much for a sacred right.

The 1931 legislature passed a redistricting plan that underrepresented the more populous counties while overrepresenting the less populous counties. Since urban counties were more Democratic or Progressive and rural counties were more Republican, this felt like gerrymandering—and a legislature controlled by Republicans did it.

A classic example is that Milwaukee County, based on its population, should have had 24 or 25 assembly seats. Its population was about 25 percent of the state’s population. The map gave them only 20 seats. However, Door and Kewaunee Counties, which were adjacent to each other, had a combined population equal to 1.17 percent of the state’s population and, therefore, should have had one assembly seat. They were each awarded an assembly seat!

Again, it feels like gerrymandering.

The map was challenged in the Wisconsin Supreme Court (see Bowman v. Dammann, 1932, in Appendix). The court refused to overturn the maps. I will again say that when a court or a legislature decides on a map, look at the political results and ignore the explanation/defense.

The court also took the position that there is a “presumption of constitutionality,” even if the map is a gerrymander. What this means to me is that a gerrymandered legislative map challenged in the Wisconsin Supreme Court is presumed to be constitutional. This is a reason why I repeatedly say that if a solution to gerrymandering is to have the courts do it, then it should be the federal courts and not the state supreme court.

There was a “first” in the 1931 Bowman case. It was the first time I found the Wisconsin Supreme Court using the word gerrymander in their decision. The court said that the 1892 Cunningham cases had found that the maps being considered contained “clear and obvious gerrymanders.”22

Yet the 1931 maps stayed in place.

I would like to write more about gerrymandering in those early years of statehood, but the word gerrymandering was almost never used. Early documents describe how all the legal requirements were met or not met, but the word gerrymandering is nowhere to be seen. Phrases I’ve seen used that might actually mean gerrymandering include “the maps did not appear to have a significant partisan implication” and “the districts were not properly contiguous, compact, nor convenient.” And how would someone determine what is and isn’t “convenient”?

The state supreme court in 1892 used the word convenient. I point this out because Wisconsin courts up to 2024 say that they never use the word gerrymander because there is no legal definition. Well, what is the legal definition of convenient? So the maps were not convenient. My dictionary’s definition [of convenient] is “adding to one’s comfort, causing little trouble or work, handy.”

The 1931 legislature passed a plan that altered assembly district boundaries within counties without reapportioning seats. Therefore, more populous counties were underrepresented by the map, while less populous counties were overrepresented. This map looks, feels, and smells like a gerrymander, but of course, the word itself is never mentioned.

No congressional redistricting followed the 1940 census, although there were some minor revisions in 1943 and 1945. A petition was filed with the state supreme court asking the court to compel the legislature to try to redistrict. The court said it lacked that power.

The court also said it “lacked the authority” to put a redistricting plan in place (this is different from the Wisconsin Supreme Court actions in 2022 and 2023). This position that the court lacked the authority to redistrict was reversed in 1964. Were you struck as I was that the state supreme court “lacked the authority” to put a plan in place? It seems that it “lacks the authority” unless it wants to and finds a reason why they have the authority.

There was some progress in the 1950s. The best-known effort was the Rosenberry Commission, led by the recently retired state supreme court Chief Justice Marvin B. Rosenberry. The big issue was that Republicans were responding to their rural supporters who wanted the map drawing to consider not only population but also land. Including land areas as a factor would obviously lead to more political power than just using population. I admit I do not understand exactly how you would use land and population. Land has never been used as a factor.

This all led to statewide referendums and six court cases. The Rosenberry maps ended up being in place from 1954 through the 1962 election. These maps, considering only population and not land areas, led to Democrats gaining seats in the state legislature. The Rosenberry Commission’s efforts ended, and all subsequent efforts at redistricting reform faced an uphill battle.

Redistricting reform efforts in Wisconsin have gone back more than 100 years. That none of those efforts have ever succeeded for as long as eight years tells us how difficult it is. My observation is that when you try to take power away from the powerful, they don’t like it. … I could not find information that makes explicitly clear whether a partisan gerrymander occurred immediately after the 1950 census or any previous decades. My strong suspicion is that this is because no legislators ever want to restrain themselves.

This, I suspect, would have happened whenever one party had total control of state government, which is why I often stress that gerrymandering is not a partisan issue but an abuse of power issue!

There is good information in the Legislative Reference Bureau document, but it does not focus on the issue of gerrymandering. It focuses on legal issues such as equal population, the issue of keeping counties intact (a huge issue going back to the 1800s), compactness, contiguity, communities of interest, minority protection, competitiveness, and other requirements where you could improve, but the bottom line is that you could comply on all the above issues and still gerrymander. Gerrymandering is very devious.

My conclusion after reading reapportionment accounts from the 1860s through the 1950s is that it “looks” like a lot of gerrymandering. Still, the word is very seldom used by historians and almost never by the state courts who decided on the issue.