Baldus v. Members of Wis. Gov't Accountability Bd.

• Decision Date: 11 April 2012
• Docket Number: Case No. 11–CV–1011 JPS–DPW–RMD.,Case No. 11–CV–562 JPS–DPW–RMD.
• Citation: 862 F.Supp.2d 860
• Parties: Alvin BALDUS, Carlene Bechen, Elvira Bumpus, Ronald Biendseil, Leslie W. Davis, III, Brett Eckstein, Gloria Rogers, Richard Kresbach, Rochelle Moore, Amy Risseeuw, Judy Robson, Jeanne Sanchez–Bell, Cecelia Schliepp, Travis Thyssen, Cindy Barbera, Ron Boone, Vera Boone, Evanjelina Cleerman, Sheila Cochran, Maxine Hough, Clarence Johnson, Richard Lange, and Gladys Manzanet, Plaintiffs, Tammy Baldwin, Gwendolynne Moore and Ronald Kind, Intervenor–Plaintiffs, v. MEMBERS OF the WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD, each only in his official capacity: Michael Brennan, David Deininger, Gerald Nichol, Thomas Cane, Thomas Barland, and Timothy Vocke, and Kevin Kennedy, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants, F. James Sensenbrenner, Jr., Thomas E. Petri, Paul D. Ryan, Jr., Reid J. Ribble, and Sean P. Duffy, Intervenor–Defendants. Voces De La Frontera, Inc., Ramiro Vara, Olga Vara, Jose Perez, and Erica Ramirez, Plaintiffs, v. Members of the Wisconsin Government Accountability Board, each only in his official capacity: Michael Brennan, David Deininger, Gerald Nichol, Thomas Cane, Thomas Barland, and Timothy Vocke, and Kevin Kennedy, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

862 F.Supp.2d 860

Alvin BALDUS, Carlene Bechen, Elvira Bumpus, Ronald Biendseil, Leslie W. Davis, III, Brett Eckstein, Gloria Rogers, Richard Kresbach, Rochelle Moore, Amy Risseeuw, Judy Robson, Jeanne Sanchez–Bell, Cecelia Schliepp, Travis Thyssen, Cindy Barbera, Ron Boone, Vera Boone, Evanjelina Cleerman, Sheila Cochran, Maxine Hough, Clarence Johnson, Richard Lange, and Gladys Manzanet, Plaintiffs,

Tammy Baldwin, Gwendolynne Moore and Ronald Kind, Intervenor–Plaintiffs,

v.MEMBERS OF the WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD, each only in his official capacity: Michael Brennan, David Deininger, Gerald Nichol, Thomas Cane, Thomas Barland, and Timothy Vocke, and Kevin Kennedy, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants,F. James Sensenbrenner, Jr., Thomas E. Petri, Paul D. Ryan, Jr., Reid J. Ribble, and Sean P. Duffy, Intervenor–Defendants.

Voces De La Frontera, Inc., Ramiro Vara, Olga Vara, Jose Perez, and Erica Ramirez, Plaintiffs,

v.Members of the Wisconsin Government Accountability Board, each only in his official capacity: Michael Brennan, David Deininger, Gerald Nichol, Thomas Cane, Thomas Barland, and Timothy Vocke, and Kevin Kennedy, Director and General Counsel for the Wisconsin Government Accountability Board, Defendants.

Case Nos. 11–CV–562 JPS–DPW–RMD, 11–CV–1011 JPS–DPW–RMD.

United States District Court, E.D. Wisconsin.

April 11, 2012.

Douglas M. Poland, Rebecca K. Mason, Godfrey & Kahn SC, Jacqueline E. Boynton, Law Offices of Jacqueline Boynton, Peter G. Earle, Law Offices of Peter Earle LLC, Milwaukee, WI, Dustin B. Brown, Brady C. Williamson, Godfrey & Kahn SC, Madison, WI, for Plaintiffs.

Daniel S. Lenz, P. Scott Hassett, Lawton & Cates SC, Madison, WI, for Intervenor–Plaintiffs.

Colleen E. Fielkow, Patrick J. Hodan, Daniel Kelly, Joseph W. Voiland, Reinhart Boerner Van Deuren SC, Milwaukee, WI, Maria S. Lazar, Wisconsin Department of Justice, Madison, WI, for Defendants.

Kellen C. Kasper, Thomas L. Shriner, Jr., Foley & Lardner LLP, Milwaukee, WI, for Intervenor Defendant.

ORDER

After a two-day trial in this case, we issued an opinion upholding Wisconsin's new congressional and legislative districts in all but one respect. We concluded that, as drawn in Act 43, Assembly Districts 8 and 9 violated Section 2 of the Voting Rights Act (VRA) and had to be redrawn. Baldus v. Members of Wisconsin Government Accountability Bd., 849 F.Supp.2d 840, 859–60, 2012 WL 983685, *17 (E.D.Wis. Mar. 22, 2012). On March 27, 2012, we instructed the parties to conduct at least one meet-and-confer conference to explore the possibility of reaching an agreed-upon configuration of Assembly Districts 8 and 9. In the event that the parties were unable to agree upon a joint recommendation, we directed them and any interested non-parties to submit suggested maps that they believed would correct the VRA Section 2 violation the court has found, while also complying with the United States Constitution, the Wisconsin Constitution, and associated case law.

The parties submitted a joint report on April 2 notifying the court that they were unable to offer a joint recommendation. We thereafter received one map jointly proposed by the Baldus and Voces de la Frontera plaintiffs and two maps proposed by the defendant Governmental Accountability Board (GAB). The Wisconsin Legislature chose not to make any submission. (As the GAB has repeatedly emphasized throughout this litigation, it is not the same entity as the Legislature and it does not represent the Legislature. We thus have nothing at this stage from the Legislature to guide us in resolving this final problem.) Dr. Kenneth Mayer, the plaintiffs' expert, and Dr. Peter Morrison, the defendants' expert, submitted declarations in support of the parties' respective maps. The City of Milwaukee filed a motion for leave to appear as amicus curiae, requesting that the court modify Assembly District 9 to rectify two anomalies created by Act 43 that have resulted in one 5–person and one 1–person municipal ward in Assembly District 7. Jesus Rodriguez and the unincorporated group known as Hispanics for Leadership have also moved for leave to file comments as amicus curiae. Mr. Rodriguez and Hispanics for Leadership urged that Act 43's configuration of Assembly Districts 8 and 9—which we already found unconstitutional—gives Latinos the best opportunity to maximize their political representation over the next decade.

We first address the City of Milwaukee's motion. While we sympathize with the City's position and share its concern that the two wards will undermine voter anonymity and unduly burden City officials, we are constrained to deny the relief the City requests. Nothing in our March 22 decision adjudicated any claim establishing a right to the requested remedy, which falls beyond the scope of our March 22 and March 27 orders in any event. The issues raised by the City are more appropriately addressed in a separate action, if the GAB is unable to resolve the City's concerns.

We now turn to the heart of the matter. The plaintiffs' joint proposal would create a new Assembly District 8 with a Hispanic Citizen Voting Age Population (HCVAP) of 55.22% and a new Assembly District 9 with 34.78% HCVAP. In the course of formulating this map, the plaintiffs engaged in a bipartisan consultative process with individuals and groups in the Latino community. Their proposed map offers minimal population deviation (–0.43% in Assembly District 8 and –0.28% in Assembly District 9) and retains compactness (75.84% and 69.19% core population retention in Assembly Districts 8 and 9, respectively). The plaintiffs applied the 42% Hispanic non-citizenship rate to calculate HCVAP, in accordance with this court's March 22 opinion. Baldus, 849 F.Supp.2d at 855–56, 2012 WL 983685 at *13.

The defendants have presented two maps. Because they continue to object to the need to take citizenship into account for the Latino community, they begin with overall voting age populations. Map 1 provides 62% Hispanic Voting Age Population (HVAP) for ...