• WisPolitics

Friday, February 24, 2012

 9:23 PM 

Both sides deliver closing arguments in redistricting suit

The lawsuit challenging the constitutionality of the redistricting plan that will guide elections for a decade entered its final phase shortly after 7 p.m.

The two issues to be decided by the three-judge panel in federal court: Was the voting power Hispanic community of Milwaukee's south side diluted when it was divided among two districts, each with a largely white community added? Did the plan unnecessarily shift too many people in and out of other districts, depriving some 300,000 of a chance to vote for a state senator for six years?

The court has also said it will address which maps should be used in the expected recall elections this summer, the ones in place for a decade or the ones Republican lawmakers drew last year.

Peter Earle, a lawyer representing the civil rights group Voces de la Frontera, said the lawsuit would never have been filed if the adoption of the plan had been open and transparent -- a criticism that Judge J.P. Stadtmueller repeatedly leveled during the four-day trial, even as he and the other judges twice offered the Legislature time to redo the map to address the concerns.

"It was initiated in secret, hidden from the public," said Earle. "They deprived the public of the ability to scrutinize the plan. They deprived the community of the opportunity to participate in a meaningful way."

Earle contrasted the Legislature's method with Milwaukee's redrawing of ward maps. The city held public meetings and solicited input.

"If something was wrong, it could be corrected," he said.

Noting that the redistricting work was done in the offices of a private law firm, Earle said "they privatized the redistricting process."

Doug Poland, a lawyer who represents other plaintiffs, said the plan was fatally flawed. Noting the movements of massive numbers of residents from one district to another, Poland said the movement of people destroyed communities of interest.

"The process, like the product, defies a rational explanation," Poland said.

While the law gives the presumption of validity to the law and the process uses, Poland charged "given the lack of transparency, Act 43 (the redistricting law) should not be given any presumption of validity."

Poland noted that the Government Accountability Board has said the old districts will be used for any recall elections, but the defense has refused to sign an agreement accepting that.

Jim Olson, a Madison lawyer representing the Democratic members of Congress,argued that there was a massive redrawing of the 3rd and 7th congressional districts resulting in 190,000 people being moved unnecessarily. Wisconsin Rapids and Marshfield had been in the 7th CD for more than 75 years but moved to the 3rd, along with Portage County. There are many issues -- air and water quality, for example -- that are shared with others in the 7th CD but not the 3rd, he said.

Olson cited several other similar examples, adding "for three-fourths of the state almost nothing had to be done to get back to equal population" among the districts. He asked that it be thrown out because it did not comply with what is necessary for effective representation in Congress.

Tom Shriner, representing the Republican Congressional delegation, said the law is valid because the plaintiffs did not prove their case.

Shriner noted that the other side argued that the 3rd, 7th and 8th CDs are being "deprived of their fair and effective representation." No proof was submitted that that was not the case. A constitutional basis needs to be established for the map to be found invalid.

The decision was "a political act engaged in by politicians," Shriner said. The Wisconsin congressional representatives worked out the plan.

The court record, Shriner said, show that everyone got something they wanted Rep. Sean Duffy, a Republican, got a more GOP district and Rep. Ron Kind, a Democrat, got more Democratic voters.

"It's not a violation of the Constitution," he said. "It's not even bad public policy."

Dan Kelly, the lead lawyer representing the plan, said the plaintiffs are putting on two cases, the first addressing legal issues but "the second addresses nothing but political questions."

After a federal court drew the map in 2002, residents of one Assembly district elected a Hispanic candidate and continued to do so over the following decade.

Now, the Hispanic community will still be able to elect the candidate of it choice. He noted that the winner of the Democratic primary will win the election and other minorities have supported Hispanic candidates.

"The non-minority population that has moved into the district is largely Republican and will not be voting in a Democratic primary," he argued.

Kelly said that whether Hispanic voters cast their ballots based on ethnicity or for other reasons was a flip of the coin based on voting records. He also dismissed the notion that "high turnout white voters will frustrate the Hispanic majority" in the new district.

Kelly cited the judicial election of Pedro Colon over Christopher Lipscomb in 2010 to back up his case.

Kelly said the Hispanic who has the most at stake in the redistricting is state Rep. Jocasta Zamarripa, but she did not testify against the plan and has said she's fine with it.

Earle, who represented Voces de la Frontera, later said Kelly's remarks about Zamarripa was "a distortion of the truth" and that the remarks were taken out of context.

As part of his closing arguments, Kelly said the districts have equal population distribution.

"The balance of the plaintiff's case presents their misunderstanding of the traditional redistricting principles," Kelly said.

The principles only come into play if a legal determination has been made that the plan violates the law, he said.

The fact that some residents won't get to vote for a state senator for six years, Kelly said, "that's not nothing, but it's not unconstitutional." Besides, some voted in recall elections last summer, so they will get to vote for a state senator again after three years.

Kelly also said the court does not have jurisdiction to decide whether recall elections expected to be held this year will be done under the 2002 district map or the new one.

Finally, Kelly said "it's unfair that a small group of people" get to come to court in an attempt to reverse valid legislation.

The judges are expected to issue a written decision in two weeks. Either side can appeal directly to the U.S. Supreme Court where it must be reviewed.

-- By Marie Rohde


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