Whitford v. Nichol, 15-cv-421-bbc

• Court: United States District Courts. 7th Circuit. Western District of Wisconsin
• Citation: 151 F.Supp.3d 918
• Docket Number: 15-cv-421-bbc
• Parties: William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace and Donald Winter, Plaintiffs, v. Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas and Timothy Vocke, Defendants.
• Decision Date: 17 December 2015

151 F.Supp.3d 918

William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace and Donald Winter, Plaintiffs,
v.
Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas and Timothy Vocke, Defendants.

15-cv-421-bbc

United States District Court, W.D. Wisconsin.

Signed December 17, 2015

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Nicholas Odysseas Stephanopoulos, University of Chicago Law School, Ruth Merewyn Greenwood, Annabelle Elizabeth Harless, Paul Strauss, Chicago Lawyers' Committee For Civil Rights Under Law, Michele Louise Odorizzi, Mayer Brown LLP, Chicago, IL, Peter Guyon Earle, Law Office of Peter Earle, LLC, Milwaukee, WI, for Plaintiffs.

Brian P. Keenan, Anthony David Russomanno, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION and ORDER

BARBARA B. CRABB, District Judge

In this civil action brought under 42 U.S.C. § 1983, plaintiffs are Wisconsin residents and Democratic voters who are challenging the 2012 districting plan for the Wisconsin Assembly on the ground that the plan is an example of “extreme partisan gerrymandering.” Cpt. ¶ 2, dkt. #1. Plaintiffs contend that the plan violates the First and Fourteenth Amendments to the United States Constitution because the plan “treats voters unequally, diluting their voting power based on their political beliefs, in violation of the Fourteenth Amendment's guarantee of equal protection” and “unreasonably burdens their First Amendment rights of association and free speech.” Id.

Defendants have filed a motion to dismiss, dkt. #24, which is ready for review. Although we believe that plaintiffs face significant challenges in prevailing on their claims, we conclude that plaintiffs' complaint is sufficient to state a claim upon which relief may be granted. Accordingly, we are denying defendants' motion to dismiss.

In their complaint, plaintiffs allege the following facts.

ALLEGATIONS OF FACT

A. Parties

Plaintiffs William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, James Seaton, Allison Seaton, Jerome Wallace and Don Winter are United States citizens registered to vote in Wisconsin. They reside in various counties and legislative districts

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throughout the state. All of them are “supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates.” Cpt. ¶ 15, dkt. #1.

Defendant Gerald C. Nichol is the chair of the Wisconsin Government Accountability Board, which is responsible for the administration of Wisconsin's laws relating to elections and election campaigns. Defendants Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas and Timothy Vocke are all members of the board. Defendant Kevin J. Kennedy is the director and general counsel for the board.

B. Passage of Wisconsin Act 43

In January 2011, Scott Fitzgerald, Republican member of the Wisconsin State Senate and Senate Majority Leader, and Jeff Fitzgerald, Republican member of the Wisconsin State Assembly and Speaker of the Assembly, hired lawyer Eric McLeod and the law firm of Michael, Best & Friedrich, LLP, to assist with the reapportionment of the state legislative districts after the 2010 Census. The intent of the speaker and majority leader was to design a pro-Republican partisan gerrymander. To accomplish this goal, the firm supervised the work of legislative aides in planning, drafting and negotiating Wisconsin Act 43, which contains the 2012 Assembly districting plan.

The law firm and the aides used past election results to measure the partisanship of the electorate and to design districts that would maximize the number of districts that would elect a Republican and minimize the number of districts that would elect a Democrat. This would be accomplished in two ways, by “cracking” or “packing.” Cracking means dividing a party's supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party's backers in a few districts that they win by overwhelming margins. Both cracking and packing result in “wasted” votes, that is, votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needed to prevail (in the case of packing).

The firm and the aides received assistance from Dr. Ronald Keith Gaddie, a professor of political science at the University of Oklahoma. Gaddie created a model that analyzed the expected partisan performance of all of the districts established by Act 43. Gaddie's model forecast that the Assembly plan would have a pro-Republican “efficiency gap” of 12 percent. The efficiency gap is the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast.

All redistricting work was done in the firm's office. Only the speaker, the majority leader, their aides, McLeod and legal staff designated by McLeod would have unlimited access to the plan while it was prepared. The access policy provided for limited access by other Republican legislators:

Legislators will be allowed into the office for the sole purpose of looking at and discussing their district. They are only to be present when an All Access member is present. No statewide or regional printouts will be on display while they are present (with the exception of existing districts). They will be asked at each visit to sign an agreement that the meeting they are attending is confidential and they are not to discuss it.

Cpt. ¶ 38, dkt. #1. Democratic legislators were not granted any access to the office. They had no involvement in drafting the plan.

After signing the secrecy agreements contemplated by the policy, Republican legislators were allowed to see only small

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portions of the map. This included information regarding how their own districts would be affected. Under the direction and supervision of McLeod, the aides met with Republican members of both houses. Each of the members signed a secrecy agreement entitled “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the plan.

On July 11, 2011, the plan was introduced by the Committee on Senate Organization. At that time, no Democratic members of the legislature had seen their districts or the plan as a whole.

On July 13, 2011, a public hearing was held. On July 19, 2011, the Senate passed the bill; on July 20, 2011, the Assembly passed it. On August 23, 2011, Act 43 was published.

The firm received $431,000 from public funds for their work on the plan.

C. Comparison of Wisconsin Act 43 to Other Plans

From 1972 to 2014, the median efficiency gap for state house plans across the country was close to zero. This indicates that neither party has enjoyed an overall advantage in state legislative redistricting during the modern era. However, recently the average absolute efficiency gap, that is, the mean of the absolute values of all plans' efficiency gaps in a given year, has increased sharply. This metric stayed roughly constant from 1972 to 2010, but in the current cycle, it spiked to the highest level recorded in the modern era, more than 6 percent for state house plans.

Between 1972 and the present, the efficiency gaps of Wisconsin's Assembly plans became steadily larger and more pro-Republican. The current plan represents the culmination of this trend, exhibiting the largest and most pro-Republican efficiency gap ever recorded in modern Wisconsin history. In the 1970s, the Assembly plan had an average efficiency gap close to zero. In both the 1980s and the 1990s, it had an average pro-Republican gap of 2 percent. The Republican advantage deepened in the 2000s to an average gap of 8 percent. Under the current plan, the average gap is 11 percent.

A 7 percent efficiency gap is at the edges of the overall distribution of all state house plans in the modern era, making it indicative of uncommonly severe gerrymandering. Historical analysis shows that with a 7 percent efficiency gap, the gerrymandering is also likely to be unusually durable. Over its lifespan, a plan with an efficiency gap of that magnitude is unlikely ever to favor the opposing party.

In 2012, the current plan produced a pro-Republican efficiency gap of 13 percent. In 2014, it was 10 percent. The 2012 figure represents the 28th largest score in modern American history (out of nearly 800 total plans), placing the current plan in the most partisan 4 percent of this distribution, more than two standard deviations from the mean. This historical data suggests that there is close to a zero percent chance that the current plan's efficiency gap will ever favor the Democrats during the remainder of the decade. Prior to the current cycle, not a single plan in the country had efficiency gaps as high as the current plan's in the first two elections after redistricting.

Using a more detailed methodology available only for Wisconsin, the current plan produced a pro-Republican efficiency gap of 12 percent in 2012. This is a figure nearly...