Prosser v. Elections Bd.
| Decision Date | 02 June 1992 |
| Docket Number | No. 92-C-0078-C.,92-C-0078-C. |
| Citation | 793 F. Supp. 859 |
| Parties | David T. PROSSER, Jr., Randall J. Radtke, Robert T. Welch, each individually and as members of the Wisconsin State Assembly; Michael G. Ellis, Donald K. Stitt, Brian D. Rude and Margaret A. Farrow, each individually and as members of the Wisconsin State Senate; Derek Kenner, Jacqueline D. Schellinger, Hafeezah Ahmad, Kent Vernon and Perfecto Rivera, each individually, Plaintiffs, Richard Collins, individually and in his official capacity as President of the Wisconsin Education Association Council; George Williams, individually; Wisconsin Education Association Council, African-American Coalition for Empowerment and Barbara White; and District Councils 24, 40 and 48, AFSCME, AFL-CIO, Intervening Plaintiffs, v. ELECTIONS BOARD, an independent agency of the State of Wisconsin; Gordon Baldwin, Barbara Kranig, J. Curtis McKay, John Niebler, Brandon Scholz, Brent Smith, Kit Sorenson and Mark E. Sostarich, in their official capacities as members of the Elections Board of the State of Wisconsin; Board of State Canvassers, an independent agency of the State of Wisconsin; Gordon Baldwin, James E. Doyle, Cathy S. Zeuske, Marilyn L. Graves, in their official capacities as members or potential members of the Board of State Canvassers, Defendants, and Walter J. Kunicki, individually and as Speaker of the Wisconsin Assembly, and Fred A. Risser, individually and as President of the Wisconsin Senate; Gary R. George, individually and as a member of the Wisconsin State Senate; Annette (Polly) Williams, individually and as a member of the Wisconsin State Assembly; Miguel Berry, Abel Ortiz, and Rosa M. Dominguez; G. Spencer Coggs; Marcia P. Coggs, Intervening Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
James R. Troupis, Michael, Best & Friedrich, Madison, Wis., for David T. Prosser, Jr., Randall J. Radtke, Robert T. Welch, Michael G. Ellis, Donald K. Stitt, Brian D. Rude, Margaret A. Farrow, Derek Kenner, Jacqueline D. Schellinger, Hafeezah Ahmad, Kent Vernon, Perfecto Rivera.
Peter C. Anderson, Asst. Atty. Gen., Madison, Wis., for Elections Bd., Gordon Baldwin, Barbara Kranig, J. Curtis McKay, John Niebler, Brandon Scholz, Brent Smith, Kit Sorenson, Mark E. Sostarich, Board of State Canvassers, James E. Doyle, Cathy S. Zeuske, Marilyn L. Graves, Nathan S. Heffernan.
Robert H. Friebart, Brian R. Smigelski, Milwaukee, Wis., for Wisconsin Educ. Ass'n, Richard Collins, George Williams.
Ronald P. Huntley, Huntley & Associates, Milwaukee, Wis., for ACE, Barbara A. White.
Bruce Ehlke, Madison, Wis., for AFSCME, AFL-CIO.
Jeffrey Kassel, Lafollette & Sinykin, Madison, Wis., for Walter J. Kunicki.
William P. Dixon, Davis, Miner, Barnhill & Galland, Madison, Wis., for Fred A. Risser.
Calvin Eleby, Madison, Wis., for Gary R. George.
Anne T. Sulton, Sulton Law Office, Madison, Wis., for Annette Williams.
Nancy C. Wettersten, Madison, Wis., for Miguel Berry.
Michael P. May, Joyce L. Kiel, Boardman, Suhr, Curry & Field, Madison, Wis., for Abel Ortiz, Rosa M. Dominguez.
Celia M. Jackson, Wilson, Broadnax, Owens & Jackson, Milwaukee, Wis., for G. Spencer Coggs.
Marcia P. Coggs, pro se.
Before POSNER, Circuit Judge, CRABB, Chief Judge, and CURRAN, District Judge.
In the spring of 1991, the Census Bureau furnished the State of Wisconsin with a detailed breakdown of the results of the 1990 decennial census. The breakdown showed that as a result of population shifts since the 1980 decennial census, the Wisconsin legislature was malapportioned — the shifts had produced large discrepancies in population between districts. The shifts had probably caused a violation of the Voting Rights Act, 42 U.S.C. § 1973, as well, because they had resulted in blacks' being "packed" into districts in Milwaukee, thus "wasting" black votes and therefore, arguably, denying blacks the reasonable opportunity to select legislators of their choice that the Act guarantees them. Both houses of the Wisconsin legislature have a Democratic majority, but not a large enough one to override vetoes by the state's Republican governor. For that or other reasons, no bill to reapportion the legislature had been enacted into law when, on January 30 of this year, several Republican legislators filed this suit challenging the current apportionment of the legislature as unconstitutional and violative of the Voting Rights Act. Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). This three-judge district court was convened pursuant to 28 U.S.C. § 2284. The Democratic leaders of the Wisconsin legislature were permitted to intervene, as were a number of groups, including the Wisconsin Education Association Council, and individuals, including Annette Williams, a black representative from Milwaukee, and several other black and Hispanic legislators. The case was expedited to enable the state primary and general elections to proceed on schedule in the new districts. Shortly before the evidentiary hearing that we had scheduled for the week of April 27, the legislature passed a reapportionment bill, which the governor vetoed. The hearing, held in Madison on April 27 and 28, focused on four out of the ten plans that had been submitted. (The reason for the selection of those plans is discussed later.) Expert evidence in support of the various plans was introduced in written form, so that the hearing could be devoted to cross-examination of the experts and to opening and closing arguments of counsel.
We have now arrived at a decision and this opinion sets forth its legal and factual basis. Fed.R.Civ.P. 52(a). We discuss the malapportionment issues first and the Voting Rights Act second, but preface our discussion with a brief description of the political and demographic character of Wisconsin.
The state is large but thinly populated, with a shade under 5 million people, of whom about a fifth live in Milwaukee County in the southeastern corner of the state. The state is largely white, the 5 percent that is black being concentrated in the city of Milwaukee. There are also small Hispanic, Asian, and American Indian minorities. The state has a tradition of political independence, and although the balance in recent years has tipped slightly in favor of the Democrats, popular Republicans such as Reagan and Thompson (the present governor) have carried the state — in Thompson's case, by a lopsided margin. State law fosters (or perhaps reflects) political independence by allowing any eligible voter, regardless of political affiliation, to vote in either primary. A high voter turnout in general elections is facilitated by allowing voters to register at the same time that they vote.
The Census Bureau, for its purposes, divides the state into thousands of census blocks, the population of which varies from 0 to 3,000 people. The political subdivisions of the states include the usual — counties, towns, etc. — as well as legislative districts. The smallest subdivision is the ward. Although state law requires a ward to have at least 300 residents, there are exceptions, and some wards, we were told, have as few as 6 people in them. The entire state is divided into wards, and all wards are nested within the larger subdivisions; that is, no ward is in two counties, two towns, two assembly districts, etc. However, a number of wards "split" census blocks; that is, the block may be part in one ward and part in another. The state has 99 assembly districts, with an average of some 49,000 people per district. There are 33 senatorial districts, each composed of three assembly districts. In part to achieve population equality some districts split other political subdivisions (other than wards) — some for example cross county or town lines.
All elections in Wisconsin for state governmental offices are held in even years, the members of the assembly being elected every two years while the senators have staggered four-year terms. The senatorial districts are numbered (1 through 33) and the even-numbered districts elect their senators in the year of the Presidential election (such as this year); the odd-numbered districts elect their senators in the off-years. The Democrats dominate both houses, with 58 representatives in the assembly and 19 senators. There are 5 black representatives and 1 black senator.
Legislative districting has generated political controversy at least since England's "rotten boroughs." The reason is that any disparity in the number of voters in different districts dilutes the influence of some voters on the composition of the legislature. If for example one district has ten times as many electors as another, the electoral influence of each voter in the first district will be one-tenth that of each voter in the second district. Inequality in voting power as a consequence of disparities in population among legislative districts has been the particular target of the Supreme Court's reapportionment decisions, which have decreed the norm of "one person, one vote." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1963). The norm, however, is unattainable for two reasons: measurement error, and the presence of competing norms that cannot be ignored. The decennial census involves both undercounting and overcounting, and the errors are not completely random and therefore do not cancel out. Tucker v. U.S. Department of Commerce, 958 F.2d 1411, 1412-13 (7th Cir.1992). Moreover, population shifts occur in the interval (here two years) between the census and the reapportionment based on it. As for competing norms: there is a nearly infinite set of district configurations that would generate approximate population equality across districts, and no one supposes that a court should be indifferent among all members of the set. It would be possible to create a district of 49,000 Wisconsinites by assembling census blocks from all over the state, by joining a Milwaukee...
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