By Mark H. Schmidt, Esq.

In Whitford v. Gill, case 15-cv-421, a three-judge panel of the U.S. District Court for the Western District of Wisconsin ruled that Wisconsin Act 43, a redistricting plan enacted by the Republican-controlled state Assembly and Senate, and signed into law by Wisconsin’s Republican Governor, violated the Equal Protection Clause of the U.S. Constitution, and was therefore constitutionally invalid.

Following the 2010 census, the Republican members of the Assembly retained an expert and utilized computer-based methods to create a redistricting plan that would optimize the performance of Republicans over Democrats in Wisconsin over the next ten years. The plan has subsequently worked as predicted, repeatedly giving the Republicans significantly more seats in the Assembly and Senate than would otherwise have seemed likely given their share of the vote.

The District Court found (1) partisan discriminatory intent, (2) partisan discriminatory effect, and (3) no non-partisan explanation for the redistricting plan, as enacted. The District Court declared Act 43 invalid, and gave Wisconsin until November 1, 2017, to enact a valid redistricting plan.

On March 20, 2017, Wisconsin noted its appeal of the judgment and has subsequently filed its opening appeal brief to the U.S. Supreme Court, essentially arguing that partisan gerrymandering is not and has never been prohibited by the U.S. Constitution; and that the courts should refrain from intervening in politics, including partisan gerrymandering.

The ball is now before the U.S. Supreme Court. Time will tell who prevails.