Why Tony Evers should sign the maps
Why Tony Evers should sign the maps
The Republican-controlled state legislature passed new maps proposed by the Democratic governor. His decision to sign or veto awaits. It's a difficult, important decision. We break it all down.
The Recombobulation Area is a ten-time Milwaukee Press Club award-winning weekly opinion column and online publication written, edited and published by longtime Milwaukee journalist Dan Shafer. Learn more about it here.
Tony Evers is currently facing one of the most important decisions he will make in his time as governor of the state of Wisconsin. The decision before him is whether to sign or veto maps passed by the Republican-controlled state legislature.
The maps passed are ones proposed by Evers himself, as part of the process initiated by the Wisconsin Supreme Court when its 4-3 majority struck down the state’s legislative maps as unconstitutional on Dec. 22, 2023. Evers has said that he would sign a bill with these maps if the legislature passed them and sent them to his desk.
The governor has until Tuesday, Feb. 20, to make his decision. I do believe that the most likely outcome is that Evers signs the maps. But the question is: Should he?
On its face, it’s a question with a simple answer. These are maps he proposed, maps that are fair — as the expert report determined — and maps he said he would sign. When it comes down to it, it might be as straightforward as that.
But this decision is not as simple as it might seem. Door No. 1 is to sign them and Door No. 2 is to veto them, and waiting behind each, there is a legal black box that exists, and it seems no one is quite aware of its contents, and malignant attorneys with spurious motivations will play their own version of legal Calvinball, where they make up their own rules as they go along, to determine what’s actually inside.
Let’s pause, for a moment, to recognize how unspeakably irritating this is, and how difficult it then becomes for everyday people to understand what’s actually happening here. Redistricting, to be sure, is a topic that is deep in the political weeds, but that doesn’t mean it should be nearly indecipherable for even some of the most attentive observers. It seems reflective of how, on so many levels, the machinations of the political legal system seem specifically crafted to box people out of the process and relegate the only true decision-making ability to a protected class that will never feel the true consequences of their choices.
So then, these black box calculations now being made behind the scenes appear to come down to which door to walk through invites the most legal risk for the decision to be undone by the abject absurdity of the American legal system.
Earlier this week, in the immediate wake of the bill being passed, there were concerns over a section of the bill applying to special or recall elections that some saw as potentially problematic. But reporting since, from WisPolitics and the Wisconsin State Journal, has since shown that this is more or less standard procedure on such a bill, and the language was added not by the Republican legislature, but by the nonpartisan Legislative Reference Bureau.
That removes one potential “poison pill.” But even with those concerns assuaged, some believe that Evers signing the maps invites greater risk for them to be challenged in federal court, particularly in the 7th Circuit Court of Appeals, which is overseen by Diane Sykes, a conservative-leaning justice who was on Donald Trump’s shortlist for an appointment to the U.S. Supreme Court. While this challenge could not partisan gerrymandering challenge (because those cannot be heard in federal court) and a Voting Rights Act challenge seems unlikely (given the fact that the Evers map, and all the other map submissions, left the majority-minority districts unchanged), those who are concerned by this path believe there could be some manufactured justification from somewhere to find a way to strike down these maps, or at the very least, delay their implementation beyond the 2024 general election. Some also see this whole theory is a reach at best, and something especially unlikely.
(The American legal system, the show where everything's made up & the points don't matter!)
Others think there’s greater legal risk in Evers choosing to veto the maps, and believe that the most firm legal footing the maps could be on is through the legislature passing the maps and the governor signing them into law, as is outlined in the state constitution. Some also think the greater risk of the maps being struck down is in a U.S. Supreme Court challenge. Republican Assembly Speaker Vos has said SCOTUS would have the “last word” on redistricting in Wisconsin, and Republicans have been critical of Justice Janet Protasiewicz not recusing on this case. Legal experts told the Milwaukee Journal Sentinel that this claim would be rooted in the Caperton v. Massey decision from 2009 on recusal and due process, focusing on the funding she received from the Democratic Party of Wisconsin during last spring’s campaign, but these experts also said a challenge on Caperton would be a “long shot.”
While the competing viewpoints on which route invites the most risk are all with merit, it also seems like either path could likely be safe from serious legal risks. At the same time, I’m not sure how much that will matter. We know that Wisconsin Republicans and their allies will exhaust every avenue to challenge the maps and cling to The Gerrymander, and we know that the final decisions made could be ludicrously mind-bending and fail every common sense test and make sense only to those with law degrees (and perhaps not even then).
It’s great. We’re all doing great. No need to reform this clearly flawless system, right?
Snark aside, considering the inevitability of a legal challenge, perhaps then the other issues involved are what we should be examining.
Some might say that the Wisconsin Supreme Court should have the opportunity to finish what it started. That this remedial maps process — the Jan. 12 submissions deadline, the Feb. 1 Court-appointed consultants’ report, the endless pages of legal briefs filed by the various parties to the case throughout — should be seen through to its end.
But that ignores language in the Wisconsin Supreme Court’s Dec. 22 ruling outlining the fact that the “legislature has the primary authority and responsibility to draw new legislative maps.” Here’s what Justice Jill Karofsky writes in the Court’s majority opinion:
Because we enjoin the current state legislative district maps from future use, remedial maps must be drawn prior to the 2024 elections. The legislature has the primary authority and responsibility to draw new legislative maps. See Wis. Const. art. IV, § 3. Accordingly, we urge the legislature to pass legislation creating new maps that satisfy all requirements of state and federal law. We are mindful, however, that the legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power. Consequently, to ensure maps are adopted in time for the 2024 election, we will proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process. At the conclusion of this opinion, we set forth the process and relevant considerations that will guide the court in adopting new state legislative districts——and safeguard the constitutional rights of all Wisconsin voters.
The remedial maps process was set forth by the Court not as a primary course of action in creating new maps, but in lieu of the legislature and governor being unable to adopt new maps through the traditional process. The Court specifically urged the legislature to pass new maps, and after kicking and screaming and gerrymandering, that appears to be what the legislature has now done in passing the Evers map unchanged.
The motivations behind the Republican-controlled state legislature’s decision to seemingly capitulate and choose what is, to them, perhaps the best of a series of bad options, warrants a critical look, too. If you had told me two years ago — or even two months ago — that Robin Vos and the Republican legislature would be passing a map proposed by the Democratic governor, projected to be this close to being a 50-50 map, I would have had a very hard time believing you. Their decision still seems fishy, and considering all that has happened under this gerrymandered Republican majority over the last 12+ years, it’s hard to take claims from legislative leaders that they will not take legal action if Evers signs the maps seriously. Robin Vos, in particular, is not someone who’s words should be taken at face value. When it comes to the Assembly Speaker, there’s always a catch. Those who are deeply distrusting of Vos and this group of Wisconsin Republicans have every reason to feel that way.
But it’s possible Vos is getting too much credit here. Those painting him as some sort of brilliant mastermind with endless tricks up his sleeve are falling into the trap of how the Assembly Speaker wants to be seen and now how he actually is. Vos has taken a lot of L’s over the past year, whether it was the how dramatically his threats to impeach Protasiewicz that backfired, how he finally caved to a shared revenue and Milwaukee sales tax deal that for years he said is “never going to happen”, to getting rocked by Evers in a line-item state budget veto on education funding, to all the flailing failed attempts to deceitfully cling to The Gerrymander or change the way the state redistricts. There’s a version of this story — one that might actually be closer to the truth — that says Vos has absolutely gotten rolled in recent months, and his once-outsized power has been reduced to clawing for scraps as his house of cards collapses. It’s almost like there’s some kind of reverse Stockholm syndrome phenomenon happening here, where people are so skeptical of Vos it becomes difficult or impossible to see what might genuinely be a positive outcome.
For Vos and state Republicans, they could be passing Evers’ maps out of a position of weakness, a position they’ve found themselves in after losing control of the executive and judicial branches of the state. They lose The Gerrymander — a monumental shift, as The Gerrymander has been Republicans’ skeleton key to wielding power in Wisconsin no matter how many statewide elections they lose — but adopt a map that consultants determined to be the most favorable to Republicans of the four remaining options, a point reiterated by expert nonpartisan research from Marquette University’s John Johnson. Perhaps even more importantly, adopting the Evers map would allow Republicans to protect against the possibility of a Democratic trifecta after the 2024 election — a possibility that exists under other map proposals, but not the Evers map.
The Evers map does not make changes to the State Senate calendar, where half the seats are up every other election cycle (even-numbered districts are up in 2024). Because of which seats are up this year, Democrats could make gains under a new map, but it would be essentially impossible to flip the chamber to a Democratic majority. Under Evers’ map, flipping the Assembly would be a real possibility for Democrats. Republicans would likely still be the slight favorites to retain a majority, but because there would be a significant increase in the number of competitive elections, that majority would likely be determined by “toss-up” seats, not the entrenched near-supermajority that Republicans have enjoyed for years. Unless the Senate election schedule were to be changed to put the majority in play — which at least one other map does — there would be no path to a Democratic trifecta until 2026 at the earliest.
There’s a layer of raw partisanship within these calculations that must be factored in, and not only on the Republican side. For Democrats, they might see a path to a trifecta for the first time in a generation and see that option as too tantalizing to give up by way of the veto. While none of the other map options are nearly as egregious as what Republicans have proposed and implemented — nearly all of the maps were found to have a “modest Republican leaning partisan bias” — other maps would be more advantageous for Democrats than the Evers map. In particular, the Wright petitioners’ map ranks slightly better for Democrats on partisan balance, and puts the Senate majority in play this year.
Those who might adhere to a mindset saying that “if you have power, you should use it,” might agree with the approach of holding out for the best potential option for Democrats. That the opportunity to do the most good for the most people is within reach, if Evers were to veto his map and allow for the Court to choose, say, the Wright map.
This is where I believe Democrats are, to a certain extent, playing with fire. Other maps might be more advantageous to them. This is true. They could have a map that gives them a path to their first trifecta in a generation. The extent to which that could upend politics in Wisconsin is incalculable.
And for those whose job it is to elect more Democrats, it might make sense to advocate to hold out for a more advantageous map. But beyond the Senate schedule, the differences between the Evers map and the other three options are not hugely significant. The Court-appointed consultants called the four options from Democrats or liberal-aligned groups “nearly indistinguishable” from one another. The average partisan bias difference between the Evers map and the Wright map, for example, is just 0.5% in that report. The difference between the Evers map and the legislative Republican map is 13%. The Senate majority would be in play in 2026 under the Evers map.
If this advantage — small as it may be — is really why Democrats want Evers to veto the maps, that means they are choosing a map based on maximizing partisan advantage. That is exactly what they and what fair maps advocates have said for years should not be done. That would be the wrong decision.
Perhaps that’s why so many of the fair maps advocacy and nonpartisan pro-democracy groups are urging Tony Evers to sign the maps. In statements released since Tuesday, the Wisconsin Fair Maps Coalition, Wisconsin Democracy Campaign, League of Women’s Voters of Wisconsin and Common Cause Wisconsin have all lined up in favor of Evers signing, and not vetoing, the maps.
Within the consternation over this enormously impactful decision, what should not be overlooked is the seismic victory at hand here. If Evers’ maps are indeed the ones on the ballot, Wisconsin is about to have new, fairer maps, maps that are not gerrymandered to favor one party or another, but maps that reflect the electorate in Wisconsin. That on its own is a massive and enormously positive shift for Wisconsin politics.
Tony Evers should sign these maps.
As a show of solidarity to put an end to this fraught process, Republicans should join him when he signs them and commit to accepting them and not mounting additional legal challenges.
If and when Evers signs these maps, the effort to reform the redistricting process must continue. The legislature and governor should seek to take action to improve the larger process and hold public hearings across the state and at the Capitol to hear from the public, with the goal of putting the map-drawing responsibility into the hands of a nonpartisan body, and allowing for the proper checks and balances over the approval process. This is not the end of the fight for fair maps.
But having these maps adopted to be on the ballot in 2024 and beyond is a gargantuan win for Wisconsin. This cannot be overstated. For the first time in a generation, this state is set to be out from under the thumb of one of the most egregious partisan gerrymanders in the nation. This is something genuinely worth celebrating.
Hard work from so many, from years and years, should be commended for getting us here. The work that went into rallying support for fair maps and making this such an important statewide issue. The work that went into winning multiple state Supreme Court elections. The voters who made those victories so decisive — double-digit margins of victory for three of the four liberal justices, all since 2018 — on the way to flipping the balance of the court in the decisive election last spring. Those who brought this case forward to challenge the state’s unconstitutional maps. Those who remained committed to fair maps throughout. This victory is theirs, and this victory is Wisconsin’s. With fairer maps, this state can now be on a path forward now toward a brighter future and a better democracy. Finally.
Sign the maps, governor. It’s time for a new era in Wisconsin.
Dan Shafer is a journalist from Milwaukee who writes and publishes The Recombobulation Area. He’s also written for The New York Times, The Daily Beast, Heartland Signal, Belt Magazine, WisPolitics, and Milwaukee Record. He previously worked at Seattle Magazine, Seattle Business Magazine, the Milwaukee Business Journal, Milwaukee Magazine, and BizTimes Milwaukee. He’s won 17 Milwaukee Press Club Excellence in Journalism Awards. He’s on Twitter at @DanRShafer.
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This fine piece is more than journalism. Bravo...and thank you!
Thanks for this information and some optimism