The two conservative-supported legislative map proposals before the Wisconsin Supreme Court are partisan gerrymanders, while the other four submissions, which could potentially give Democrats a legislative majority, are “nearly indistinguishable,” redistricting consultants told the court on Thursday.
The consultants didn’t choose a preferred map and stopped short of calling the four Democrat-supported maps constitutional.
Still, the report provides liberals a win by likely eliminating the GOP maps from consideration. The report sets up the liberal-controlled court to choose maps that would almost certainly increase Democrats’ standing in the Legislature, with the potential of overturning Republicans’ long-standing legislative majority in a critical election year.
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Both GOP-supported maps are “so biased in partisan terms that they can clearly be labeled partisan gerrymanders in a pro-Republican direction,” the two court-hired redistricting consultants, University of California, Irvine political science professor Bernard Grofman and Carnegie Mellon University postdoctoral fellow Jonathan Cervas, said in a Thursday filing.
The report came out just over a month after the Wisconsin Supreme Court declared the current maps unconstitutional because many districts contain territory that isn’t contiguous, leading six parties to propose new maps to be installed for the 2024 election.
The court called for new, contiguous districts that are equally populated; bounded by county, precinct, ward or town lines; are as compact as possible; comply with federal law, including the Voting Rights Act; preserve communities of interest; and reduce municipal splits.
Additionally, the court called for maps that don’t favor one party over another. That amounted to a major victory for Democrats, because experts say the current legislative maps have a baked-in Republican advantage.
Map submissions
Maps were submitted by plaintiffs represented by the liberal law firm Law Forward, Republican legislators, Democratic Gov. Tony Evers, the conservative Wisconsin Institute for Law & Liberty, Democratic lawmakers and intervenors who joined the plaintiffs’ cause.
Republican legislators submitted a map that would hardly change the current boundaries, which give the GOP close to a legislative supermajority. Other conservatives represented by the conservative law firm Wisconsin Institute for Law & Liberty provided maps that slightly reduce but still maintain baked-in GOP advantages, the consultants said.
They called the WILL map a “stealth gerrymander” that looks on its face to be a good map but yet “exhibits an extreme level of partisan bias.”
“From a social science perspective, the Legislature’s plan does not deserve further consideration,” they added.
In response, Evers said the days of Wisconsinites living under gerrymandered maps are numbered.
“While this is just one step in this process, today is an important day for the people of Wisconsin who deserve maps that are fair, responsive and reflect the will of the people,” he said.
Spokespeople for Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg, didn’t respond to a request for comment late Thursday evening.
Political geography
In the report, the consultants also pushed back against a common talking point among legislative Republicans — that Wisconsin’s geography, which sees Democratic voters more condensed in urban communities while Republicans are more dispersed among the state’s rural areas, all but guarantees Republican majorities.
“The argument advanced that the political geography of Wisconsin makes it inevitable that Republicans will win an outsized share of the legislative districts is contradicted by the maps submitted to this court,” the consultants wrote, noting that the other four plans submitted to the court, including those by Evers and Democratic senators, “improve on traditional good government criteria” when compared with the state’s current maps.
The four Democratic-supported maps would each likely provide the party who wins the most statewide votes with a legislative majority, the consultants said. Democrats have won the vast majority of statewide elections since 2016 but Republicans currently have a 64-35 majority in the Assembly and 22-11 majority in the Senate.
But the maps submitted by the Legislature and WILL both “operate to preclude any potential for Democratic control of the legislature except in elections which the Democratic candidate does exceptionally well — well above a simple majority,” Grofman and Cervas said.
“That kind of insulation from the forces of electoral change is the hallmark of a gerrymander,” the consultants continue. “To put it simply, in Wisconsin, geography is not destiny. The plan chosen determines whether political neutrality (and other criteria) will be served.”
Rick Esenberg, WILL’s president and general counsel, said in a statement the report “hides its bias behind a fog of faux sophistication.”
“Let’s be clear, our maps have been rejected for one reason and one reason alone: They don’t produce the partisan outcomes the experts or many on the Court want,” Esenberg continued. “So, they ignore all the traditional tests to distinguish partisan bias from political geography.”
The consultants concluded their report by noting that the state Supreme Court can instruct them to improve any of the proposed plans with regard to the court’s criteria as laid out in December or it can instruct them to draw new maps if deemed necessary.
“In the process of reviewing plans, we have done extensive explorations of the geography of Wisconsin, and we are confident that we can do so,” the consultants wrote. “If the Court were to instruct us to create such a map, we are poised to produce it quickly.”
Legislative map was vetoed
The majority opinion issued by liberal justices in December said the court would choose new maps unless new ones got approved through the legislative process and signed into law first.
In a last-ditch attempt, Republican legislators last week approved legislative maps that largely mirror the boundaries Evers proposed to the court but include changes that reduce the number of incumbent lawmakers who would have to face each other in the next election.
Evers vetoed the proposal on Tuesday, saying moving district lines to protect incumbents was an example of gerrymandering.
Vos said the changes legislative Republicans made were “miniscule” and were done to correct maps that Vos and others said sought to punish Republicans by intentionally pitting several GOP incumbents against one another. Democratic legislators called the move an effort by their GOP colleagues to hold on to their strong majorities.
Evers’ proposed maps would pair incumbents — almost all Republicans — in 15 Assembly districts and six Senate districts, according to a Legislative Reference Bureau analysis. The amended maps Evers vetoed would have reduced the number of pairings in the Assembly to 11 but left the six pairings in the Senate largely unchanged.
Unless another set of maps moving through the Legislature receives Evers’ approval, which appears highly unlikely at this point, the Wisconsin Supreme Court is all but certain to decide the state’s next set of maps. Republicans are likely to appeal the eventual decision to the U.S. Supreme Court.
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Colony Ridge, a massive residential development north of Houston, has quickly taken center stage in Texas politics.
After weeks of reports in conservative media portraying the development as a “magnet for illegal immigrants,” followed by state Republican leaders expressing alarm, Gov. Greg Abbott has promised that Colony Ridge will be addressed in an upcoming special legislative session, saying “serious concerns have been raised.”
“We’re trying to put together as much information as possible so that I can add to the special session any issue that needs to be enforced in terms of a new law in the state of Texas, to make sure that we’re not going to have colonies like this in our state,” Abbott told radio host Dana Loesch on Monday.
The precise issues are unclear. Abbott suggested he is worried Colony Ridge has become a “no-go zone” where the state’s ban on “sanctuary cities” is not being enforced. But legal experts say there is no law against selling land to people who aren’t citizens and many of the more outlandish claims about the neighborhood have been accompanied with little or no evidence.
Abbott also said the state has issued subpoenas to the developers “to find out what’s going on financially.” And he said state environmental regulators are investigating Colony Ridge and will issue a report.
The development company, Terranos Houston, has dismissed suggestions that Colony Ridge is a haven for people in the country illegally as “slanderous” and “unsubstantiated.” Developer William Trey Harris, a major campaign donor to Abbott, told local media this week he is “a little disappointed in our state government that they are taking action based on lies and gossip.”
That has not curbed growing interest from state GOP leaders. Attorney General Ken Paxton has said his office is looking into Colony Ridge, and Lt. Gov. Dan Patrick toured the development by air Monday. Patrick also spoke with Harris and said it is clear “they do not have enough manpower to patrol this area, which has grown at an unprecedented speed.”
The development, located in rural Liberty County about 30 miles north of Houston, is comprised of multiple subdivisions. According to a column that Patrick wrote after his fly-over, the developer told Patrick that the development covers nearly 33,000 acres and is home to about 10,000 people.
Last weekend, the State Republican Executive Committee, the governing body of the Texas GOP, passed a resolution calling for action on Colony Ridge, including legislation to “prevent further settlement of illegal aliens” there.
The upcoming special session is expected to start in mid-October, though Abbott has not released the exact date or agenda yet.
Harris, the developer, is a prominent Republican donor, particularly to the governor. He has given over $1 million to Abbott’s campaigns and also contributed to local politicians such as state Sen. Brandon Creighton and state Rep. William Metcalf, both of Conroe.
Allison Tirres, law professor at DePaul University and visiting professor at Santa Clara University School of Law, said it’s been “a longstanding practice” to sell property to people regardless of their immigration status in the U.S.
“Of course the Texas Legislature might try to pass a law that would ban sales to those without legal status, but it would likely be declared unconstitutional,” she said. “Bottom line is that states generally have wide latitude to regulate property laws within the state, but those laws cannot violate the Constitution, nor can they interfere or conflict with federal immigration law and policy.”
She said undocumented people don’t need a Social Security number to purchase property and can instead get an Individual Taxpayer Identification Number, which was created by the Internal Revenue Service in 1996 to allow immigrants who don’t qualify for a Social Security number to file their taxes.
Kathleen Campbell Walker, an El Paso immigration lawyer and the former president and general counsel of the American Immigration Lawyers Association, said no state or federal law prohibits undocumented immigrants from purchasing homes or land in the U.S.
She said cities across the country have tried to prevent undocumented immigrants from renting apartments or buying homes, and those ordinances have repeatedly been ruled unconstitutional by federal courts. Under the law, Walker said, there is no difference between a foreign investor and an undocumented immigrant buying property in Texas.
“If foreign nationals can acquire property sitting in their living room in London or sitting in their kitchen in Shanghai, [immigration] status doesn’t have a darn thing to do with it,” she said.
In 2006, the city council in Farmers Branch, a Dallas suburb, approved a series of ordinances that would have prevented landlords from renting homes or apartments to undocumented immigrants. In July 2013, the U.S. Fifth Circuit Court of Appeals in New Orleans ruled the ordinances unconstitutional. The U.S. Supreme Court declined to hear the case after the city appealed.
That same year, Hazelton, Pennsylvania, passed a similar ordinance. The 3rd U.S. Circuit Court of Appeals affirmed a lower court’s ruling that the law was illegal.
In 2014, the 8th U.S. Circuit Court of Appeals let stand a Fremont, Nebraska, ordinance that required prospective renters to disclose their immigration status. If they can’t prove they’re in the country legally, the landlord can’t rent to that person under the ordinance.
The law remains in effect, but the state lacked the resources to enforce it, according to a 2014 news article on Nebraska Public Media.
César Cuauhtémoc García Hernández, an immigration attorney and law professor at Ohio State University, said such laws are not new in U.S. history. For example, he said, in the early 20th Century, various states approved what were dubbed alien land laws that prohibited some Asian immigrants from owning or leasing property, sometimes based on their immigration status.
In 1948, the U.S. Supreme Court ruled that California’s alien land laws violated the rights of a Japanese immigrant whose farm was seized by the state because he was not a U.S. citizen. The ruling has been used as precedent in lawsuits challenging whether immigrants, regardless of status, can own land or property in the U.S.
Florida recently passed a law preventing Chinese nationals from buying land in the state, arguing that it was necessary for national security. García Hernández said this and similar laws are based on false narratives about immigrants.
“These are laws or proposed laws that target migrants based on flimsy claims of promoting safety or security,” he said. “I can’t get into the minds of their supporters, but the history of laws that restrict property ownership by migrants is riddled with repugnant claims that migrants are undesirable members of our communities.”