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

• Decision Date: 22 March 2012
• Docket Number: Case Nos. 11–CV–562 JPS–DPW–RMD, 11–CV–1011 JPS–DPW–RMD.
• Citation: 849 F.Supp.2d 840
• 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

849 F.Supp.2d 840

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.

Decided March 22, 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–Defendants.

Before WOOD, Circuit Judge, STADTMUELLER District Judge, and DOW, District Judge.

MEMORANDUM OPINION and ORDER

PER CURIAM.

There was once a time when Wisconsin was famous for its courtesy and its tradition of good government. In 2006, James J. Conant was able to write that:

The most important feature of Wisconsin's society, government, and politics during the twentieth century was its progressive nature. Wisconsin had a highly developed civil society, its elected and administrative officials continuously attempted to improve the state's political institutions, and they attempted to enhance the economic and social circumstances of the state's citizens. Throughout the century Wisconsin's politics were issue-oriented, state government institutions operated free of scandal, and the administration of state policies and programs was conducted efficiently and effectively.¹

Students of American history still read about Robert M. La Follette, Sr., an independent thinker who came to prominence at the end of the 19th century and whose views defied the partisan pigeonholes of his day. More recently, Wisconsin has been called a “purple” state-that is, a state whose people regularly elect comparable numbers of Democrats and Republicans. Over roughly the last half-century, six Republicans and six Democrats have served as governor. Over the same time, one of its two seats in the U.S. Senate has been held continuously by a Democrat, while the other one has been occupied by three Republicans and two Democrats.

This bipartisan tradition has not, unfortunately, exempted Wisconsin from the contentious side of the redistricting process that takes place every ten years in the wake of the United States Census. Before the events leading to this lawsuit, the last time the Wisconsin legislature successfully passed a redistricting plan was in 1972, following the 1970 census. See Wis. Stat. § 4.001(1); Wisconsin State AFL–CIO v. Elections Board, 543 F.Supp. 630, 631 (E.D.Wis.1982). After the 1980 census, however, the state was not so fortunate. Beginning with that round, decennial litigation was just as much a feature of the political scene as was decennial redistricting. See Wisconsin State AFL–CIO, 543 F.Supp. 630 (1980 census); Prosser v. Elections Board, 793 F.Supp. 859 (W.D.Wis.1992) (1990 census); Arrington v. Elections Board, 173 F.Supp.2d 856 (E.D.Wis.2001) (2000 census) and then Baumgart v. Wendelberger, Nos. 01–121 and 02–366, 2002 WL 34127471 (E.D.Wis. May 30, 2002) ( per curiam ), amended by 2002 WL 34127473 (E.D.Wis. July 11, 2002) (also 2000 census). In 1982, 1992, and 2002, Wisconsin's legislative districts were drawn by a three-judge court. It is notable that in each of these earlier cases, the only contested matter related to the state's legislative districts; until now, no one has called on the federal court to intervene with respect to the state's congressional districts.

Now it is our turn. The U.S. Constitution, see Art. I, sec. 2, cl. 3, ² requires the federal government to conduct an actual enumeration of the U.S. population once every ten years; that enumeration provides the basis for representation in the House of Representatives. Article IV, section 3, of the Wisconsin Constitution independently requires the state legislature to update its senate and assembly districts following each federal census. In 2010, the Bureau of the Census complied with its constitutional duty, and on December 21, 2010, it announced and certified that Wisconsin's population was 5,686,986 as of April 1, 2010. This represented a slight increase over the 2000 population of 5,363,675. These new numbers required Wisconsin to take a fresh look at both its state assembly and senate districts, and its eight congressional districts (the overall number of districts remained the same) to ensure compliance with the one-person, one-vote principle announced by the Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Wisconsin has attempted to do so. Regrettably, like many other states, Wisconsin chose a sharply partisan methodology that has cost the state in dollars, time, and civility. Nevertheless, our task is to assess the legality of the outcome, not whether it lived up to any particular ideal.

1. The Redistricting Process

The mid-term election in November 2010 resulted in a shift in political control in the State of Wisconsin. Scott Walker, the Republican candidate for governor, defeated Tom Barrett, the Democratic candidate, in the race to replace Governor Jim Doyle, a Democrat. Control of both Wisconsin's State Assembly (its lower house) and State Senate shifted from the Democratic to the Republican party. Thus, as of the time the Census results were certified and the state was ready to begin drawing whatever new legislative and congressional district lines were necessary, all three critical players were in the hands of a single party for the first time in many years. (Throughout this opinion, when we refer to “legislative” redistricting, we mean the two state houses; we use the term “congressional” redistricting for the lines drawn for seats in the U.S. House of Representatives.) The new governor and legislators were sworn in on January 3, 2011, and the very next day the Republican legislative leadership announced to members of the Democratic minority that the Republicans would be provided unlimited funds to hire counsel and consultants for the purposes of legislative redistricting. They informed the Democrats that they would not receive any funding for this process.

True to their word, the Republicans immediately began work in earnest, retaining the law firm of Michael Best & Friedrich LLP (“Michael Best”) to advise their caucus. Every effort was made to keep this work out of the public eye and, most particularly, out of the eye of the Democrats. Indeed, it was widely assumed that redistricting work would not begin until Wisconsin's units of local government had a chance to review their ward lines. Wards in Wisconsin are the smallest unit of government. In the past, redistricting has always proceeded on a “bottom up” basis: ward lines would be redrawn based on the new census figures, villages and towns would recompute their populations, and the counties would build on those figures. The Census does not use these units of government; instead, it proceeds on the basis of “census blocks” that do not always correspond to local government boundaries. Some care must be taken, therefore, to translate the census data into information that is compatible with actual governing units.

As we noted, the venue of the redistricting work was the offices of Michael Best. The actual drafters included: Adam Foltz, a staff member to Assembly Speaker Jeff Fitzgerald; Tad Ottman, a staff member to Senate Majority Leader Scott Fitzgerald; and Joseph Handrick, a consultant with the law firm of Reinhart Boerner Van Duren s.c. Others involved in the process were James Troupis, Eric McLeod, Ray Taffora, Speaker Fitzgerald, Majority Leader Fitzgerald, Sarah Troupis, Robin Vos, Senator Rich Zipperer, and Dr. Keith Gaddie. The drafters relied on a computer program called autoBound to work with various district lines. They testified that the partisan makeup of the potential new districts played no part at all in their decisions. Handrick, for instance, testified that he did not know if partisan makeup was considered, that he had no access to voting data from past elections, and that only “population equality, municipal splits, compactness, contiguity, [and] communities of interest” were considered. Foltz testified that he worked with legal counsel and experts, and that Speaker Fitzgerald, Senator Fitzgerald, Robin Vos, and Senator Zipperer advised him where to draw the boundaries.

In June and July 2011, Foltz had meetings about redistricting with every single Republican member...