Redistricting 101 with Charles Franklin

Robin talks with Marquette Law School Poll Director Charles Franklin about the what the Republician-proposed redistricting plan means.

Episode Transcript

(00:00):
Good morning. I'm Robin Colbert andthis is Madison Forum today. Our topic
is redistricting one oh one and myguest, of course, the best man
to talk about redistricting and all thatfun stuff, Marquette Law School pulled director
Charles Franklin. Charles has always thanksso much for joining me, Thanks for
having me. It's good to behere again. Well, all of a
sudden, redistricting became the sexy topicat the state Capitol. When I know

(00:24):
it's been grumbled about for years uponyears, but I don't think a whole
lot of people were really paying attention. No, I think that's right.
You know, normally redistricting just comesonce a decade when the census comes out,
then we do redistricting, then weforget about it for another nine or
ten years. This year there,or this decade. It seems like it's
the beast that won't go away.We did a round of redistricting and litigation

(00:49):
in twenty one after the twenty twentycensus came out. But here we are
back to it, whether in thestate Supreme Court or now possibly in the
legislature. And Charles and I arespeaking on the Thursday before this air Sunday
morning, and of course today theAssembly is poised to pass this latest proposal

(01:11):
that is fashioned after what Iowa's doeswith redistricting. I'm guessing the Assembly is
going to pass this thing. Itstands no chance before Governor Evers seemingly not.
The Governor is certainly initially reacted negatively. And for that matter, I
don't think we've heard a lot aboutwhat the Senate's position is on this,
but yeah, coming up in theAssembly, and I agree, probably passing,

(01:36):
but as of the time we're taping, it hasn't actually been voted on,
you know. I think the biggestissue here is that Democrats had pushed
for some kind of nonpartisan districting planin the past. Iowa has one that's
been in effect for a long time, so it is a tested mom But

(02:00):
it was surprising, certainly to mewhen Speaker Voss brought this up suddenly and
scheduled it for a vote in justa couple of days. It's kind of
a far cry from substantial legislative hearingsand discussion and testimony about it and working

(02:21):
the language. What are the littlenuances in the language of the bill.
So this is an issue when legislationcomes up suddenly and is moved quickly.
If the Senate does take up thebill, there will be an opportunity for
discussion of it there. But GovernorEvers has shown little enthusiasm for it at

(02:42):
this point, and so critics wouldsay, well, why isn't Governor Evers
completely on board with this this plan? Does Iowa plan would have a nonpartisan
group here, legislative fiscal bureau?I'm not sure what does Iowa have a
legislative fiscal bureau as well? Okay, and so they're drawing it up it
has no legislative input, but that'snot really true. No. Legislative districting

(03:08):
is always a very self interested taskfor legislators. It affects their careers,
It affects who they represent, canaffect what district they live in, because
if the lines change, they mightsuddenly find themselves in a different district.
So it's very self interested for them, and that's why legislatures almost always want

(03:31):
to keep control over drawing the linesin the legislature. The problem here is
how do you move to a nonpartisan system in which the legislature still ultimately
has to pass the districting that isproposed and under the proposal here and mostly

(03:54):
this is true in the Iowa systemas well. This nonpartisan group, the
Legislative Reference Bureau, would be chargedwith drawing a map, taking some input,
holding some hearings, and then proposinga map. The legislature can then
vote that map up or down,but can't substantively modify it. If they

(04:16):
vote it down or if they passit in, the governor vetos it.
Then the Legislative Reference Bureau draws anothermap, taking into account what the objections
were, and again the legislature votesit up or down without changes in the
governor vetos or signs the bill.But if both of those steps fail on

(04:40):
the third round, the legislature canamend the proposal anyway they want, and
so that puts it back in thehands of the legislature. The governor would
still have veto authority, probably thoughthat's one of the nuances of the language
that I'm not entirely but I thinkthe governor would have veto at that point.

(05:04):
Put in a case of unified governmentwhere the governor and the legislature were
of the same party, you couldjust vote down the plan twice and then
on the third round do whatever youwant with an agreeable governor. On the
other hand, what if you haveour current situation divided government, and you
go to the third round, legislaturedoes something the governor vetos. As I

(05:29):
understand it, the current bill doesn'tsay what happens after that. In Iowa,
there's an explicit provision that if theydeadlock on the third round, it
goes to the state Supreme Court,who draws the boundaries. So these are
the kinds of debates or little nuancesof the language that if we had proposed
this bill six months ago and hadheld six months of hearings and discussion and

(05:54):
testimony, maybe we would have workedour way through these details. But now
a bill that didn't exist forty eighthours ago or forty eight hours before it
comes up to the legislature, wejust haven't had the time to work those
things out. And so I thinksimple honest questions remain, but partisan questions

(06:15):
definitely remain. And there we're reallyin the question of Democrats don't trust Republicans,
Republicans don't trust democrats, and soit's very hard to move something like
this. Even though Democrats in thepast have wanted something very similar, there
doesn't seem much of an option fornegotiation at this stage. Yeah, absolutely,

(06:38):
And no newsflash that on the legislativeand executive branches here in Wisconsin have
not been working side by side.Now, you know, I'm a skeptic
by nature. I think I knowwhy this was brought up so hastily earlier
in the week, Charles, Why, well, what's Voss explain his move

(07:01):
here? I mean, only Vossknows, but you kind of know right
well. The background of this,of course, is that we have a
districting plan that the state Supreme Courtapproved in twenty twenty one, which almost
completely followed what the Republicans in thelegislature proposed. That plan was in effect

(07:26):
in the twenty twenty two elections,but now the Supreme Court has changed with
the election of Judge Janet Proto Sites. That flips the majority on the court
to four liberal justices to three conservativejustices and means that the three who dissented
in that previous redistricting case are nowin the majority, and so there's the

(07:50):
opportunity for the court to rehear litigationon districting and reach a different conclusion.
This is highly controversial, It threatensthe legislative majorities. It also, as
Republicans have brought up raises the questionsof whether Judge Proto Sewites was to explicit

(08:13):
in her campaign in saying she thoughtthe districts were rigged. She says that's
her opinion about the districts, butnot her opinion in a particular case.
She is not pre judging a case, but Republicans are very skeptical of that
and argue that she has. Sothat has led Speaker Voss and other Republicans

(08:33):
to propose the possibility, at leastof impeaching her if she fails to recuse
herself from the district in case andtake herself off of deciding the district in
case. This is highly controversial,to say the least. As Republicans have
talked about impeachment, Democrats have launcheda four million dollar advertising campaign saying it's

(09:00):
Republicans trying to overturn last Springs SupremeCourt election, which protes sate its won
by eleven percentage points, relative landslidein our usual close elections, so there's
a lot of mess there. SpeakerVoss suddenly bringing up this nonpartisan districting proposal

(09:24):
would possibly take the decision away fromthe Supreme court and move to this nonpartisan
plan, and it's hard to knowwhat the outcomes would be. Would a
court order districting plan be wildly differentfrom what we have. Would it favor

(09:45):
Democrats, would it favor Republicans?Would it create more competitive districts. One
thing that people should remember about districtsis that the large majority of Republican seats
are one with over sixty percent ofvote Republican, so these are safe seats.
But among Democrats, the districts areeven more partisan, with most Democratic

(10:09):
seats being over seventy or even overeighty percent Democratic. And so both parties
have a lot of incumbents with verysafe seats, and creating more competitive seats
means both parties would be more atrisk in the next round of elections in
twenty twenty four. So again thisis where the self interests of incumbents of

(10:33):
both parties come into conflict with thebroader interest of having competitive election. Well,
I thought they were doing it topreserve our constitution. And oh,
okay, of a little sarcasm here. Now as far as the actual let's
say, you know, you doget it to the Legislative FISCO Bureau.
If the actual nuts and bolts ofputting together a map. What are the

(10:58):
metrics? I mean, can theyDoes each district have to be made up
of a certain percentage of what?Explain to me how they do that?
Yeah. There are several considerations thatare currently mentioned in this legislation and are
almost all part of the Iowa systemas well. The first is the simple

(11:20):
requirement that the US Supreme Court hasrequired since the sixties, one person,
one vote, that each district hasto be as close to equal in population
as possible. Then there are otherconstraints like assembly districts have to fit within
Senate districts, so there's a littlegeographic puzzle there. But other things are

(11:46):
respecting existing boundaries where possible, sothat means don't split up a city or
a town if you don't have torespect counties and try to keep them together
again, and those fall apart.When you have a city that's simply too
big for one district, you've gotto start that up. But the key

(12:09):
to partisan gerrymandering drawing those lines tofavor one party are selectively deciding which neighborhoods
of a city to put in onedistrict in which neighborhoods to put in another.
The other is a structural element,which is that our cities are much
more democratic than our countryside, andso it's very easy to compact democratic votes

(12:37):
within cities, to pack them asthe pejorative term. And so that's how
you get these big democratic majorities isbecause they live in cities and other places
that are very democratic to begin with. There are some very republican areas as
well, but our urban rurals splitsan awful lot of the rural part of

(13:01):
the state is pretty republican, withtowns and cities and villages scattered around that
are more democratic, And so howyou draw that as a big deal.
The last thing is compactness. Thatthese districts theoretically should be compact rather than
meandering for miles alongs as well.I did not realize, but contiguity is

(13:28):
actually a problem here because a fairnumber of our cities actually have non contiguous
parts of the city sitting outside whatyou or I would think of as the
city limits. And so do youwant a little island that's part of let's
just say Madison, to be inthe same legislative district as the bigger city

(13:52):
is, or do you take itsphysical location and put it somewhere else,
even though it's part of the cityof Madison. And again that's not jess
Madison. That's as I say,one of the things I've learned in the
last few days is there's actually afair number of these. They're small parts,
but sure it's a part. Nowgoing back, because we've both been
around for a while, you've beendoing this a number of years, Charles.

(14:16):
Again, I'm speaking with Charles Franklin. He is the Marquette Law School
poll director. Very familiar sounding guests, he's been on decades here and not
just US media wide. You're ourgo to guy to date us, but
like twelve years ago. So whenthe maps were drawn up in favor,

(14:41):
I guess critics would say in favorheavily of Republicans. What did they look
like before? Yeah, I thinkthis is an interesting point. First of
all, let's admit that jerrymandering hasbeen around for two hundred years. This
is not anything new, but thetechnology has gotten better in recent years with
computer mapping and algorithms that makes itpossible to be much more. They're going

(15:03):
off information on voting habits and allthat kind of stuff that goes into that
precisely. But what is interesting isthe previous district team was done in two
thousand one by the courts when thelegislature and the governor deadlock. But if
you look at the history of thelegislative majority, in the two thousands,

(15:26):
we had two Republican houses. Thenin two thousand and six the Democrats took
one of the houses, in twothousand and eight they took the second house.
So in twenty nine and ten wehad a Democratic governor in two Democratic
legislative houses, but then in twentyten that flipped completely with a Republican governor

(15:48):
and two Republican houses. All ofthose changes happened under a single districting plan,
that twenty two thousand and one planthat the core it's implemented. So
that's an example of how in ourvery competitive state for a decade of the
early two thousands, we really didsee legislative majorities change as the public's preferences

(16:15):
changed, and it went from unifiedparty control for the Democrats to unified party
control for the Republicans and several flavorsof divided government. In the meantime,
since the twenty eleven plan went intoeffect, the Republican plan after that district
team, we've seen Republican majorities inthe Assembly, the ninety nine member Assembly

(16:40):
of sixty and more Republican seats,and in the Senate were now at two
thirds Republican seats, even as statewideelections remained mostly pretty closely contested, a
three point margin in the governor's race, a one point margin for Senator Johnson
in the race last year. Sothis is the core of the argument by

(17:03):
Democrats and those who don't like partisanplans. We just simply are not responsive
to public opinion. And you know, I guess too in looking forward to
what will be in place this youknow, if they come to some sort
of agreement, if we do thisIowa method, or if it goes before

(17:26):
the Supreme Court, what they tossthem, then they have to be does
this Supreme Court decide how these aredrawn up? Does the Supreme Court take
it? That could also be appealedto the US Supreme Court, which has
a different political bend and could easilythrow it up, you know, cause
more turmoil. Yeah, I thinkthe I think there are two things.

(17:48):
One is that if this districting planthat's been proposed were to go into effect,
there is the question of what isthe hammer holding hanging over the legislatures
head at the end. If wehave a deadlock under current circumstances, it
kind of routinely goes to the stateSupreme Court. But it's not clear under

(18:11):
this new plan that that would benecessarily automatic. So what is it that
pushes governor in legislator to compromise onsomething because they'd rather do a compromise than
leave it in the hands of someother group to decide. So that's an
important question on this. I wantto come back and say one thing that

(18:33):
is important is that if you livein these currently gerrymander districts, the odds
are you're actually pretty happy with yourlegislator. If you're in a heavily Republican
district and you have a Republican legislator, odds are you're pretty okay with that.
If you're one of those Democrat inone of those democratic districts, which

(18:55):
as I said, can be seventyor eighty percent Democrat, you're probably pretty
happy with the democratic legislator you have. So the trouble is if we move
to more competitive districts, we'll actuallyhave more districts that might flip one way
or flip the other. So Ijust remind people be careful what you wish
for. It may be better forsome purposes that our legislative majorities respond to

(19:23):
public opinion, as they did betweentwo thousand and one and twenty ten.
But from an individual's perspective, doI have a representative of the party I
support representing me in the legislature.This highly jerrymanagage system gets you that,
even though it means it locks ina majority that's virtually impossible to displace at

(19:48):
the ballot box again, as wedid as recently as twenty ten. And
also i'd imagine a concern on theleft would be they're almost there. Republicans
have a supermajority in the Senate,they get it in the Assembly, and
this whole map question is moot becausethe governor can veto it all day long,

(20:11):
but they can turn around and overrideit. So and indeed, we've
seen that situation arise in some otherstates where Republican majorities have taken the legislature,
I mean supermajorities, two thirds majorities, and have indeed overridden gubernatorial vetos.
So it's it's not quite the casehere, but it easily could be,

(20:33):
and we do have other examples inother states and now, so our
legislative maps are completely different. There'stwo mapping processes, right, There's the
congressional and then our legislative and theydon't work in concert, really, or
do they? When you're putting togethera legislative map, do you have to
work with? Well, which onesupersedes the other? I would think congress

(20:56):
congressional. That's right as I understandthe current bill only addresses the legislative maps
and doesn't speak to the process forthe congressional maps. Maybe that'll come out
in the next few days, butat least, as I understand it,
this is only for the Assembly andthe state Senate, not for the congressional

(21:18):
maps. Congressional maps have many ofthe similar requirements of equal size, compactness
respecting previous boundaries. The one thingwe didn't mention is representation for minorities.
Federal civil rights law and court rulingsrequires that where there are concentrations of minority

(21:41):
population, the district should take thatinto account and provide a fair chance for
minorities to elect representatives. So thatapplies to some of the districts in the
Milwaukee area In past redistricting, representationfor Hispanic areas of Milwaukee and the legislature

(22:02):
have been an issue in court cases. So that is one thing that we
didn't talk about earlier. Wasn't therenot? Because the US Supreme Court with
the redistricting issue went was hoped thatthey would take it up, but they
just they did not take it up, saying it's best left to state officials
to deal with this. But wasn'tthere some weighing in on the governor or

(22:26):
governor evers so called people's maps andsomething dealing with race that was deemed not
there was? Yeah, And therole of the federal courts has been changing
and it's fairly confusing at the momenttoo. What happened in the previous redisct
our current redistricting was the US SupremeCourt ruled that the maps that the had

(22:53):
been adopted had not properly complied withminority representative. One of the issues here
is to give viable electoral strength toa minority, does that group need fifty
percent of the vote or more inthat district? Or would forty five or

(23:15):
forty percent be enough to ensure influencewithout a majority, or put differently,
how big a majority is it?And the US Supreme Court struck down our
initial maps this decade, saying thatsome of the minority districts didn't have sufficient
minority strength. Then, okay,that's still a contentious area of litigation,

(23:41):
but that ruling applies to us.The US Supreme Court decided in I think
it was twenty nineteen, that thefederal courts could not adjudicate partisan jerrymanders,
jerrymanders like hours that give very largeadvantage to one political party. And they

(24:06):
argued that it's and they're certainly right. It's very hard to state an objective
criterion for what is a political jerrymanner. Now some people think that it's not
that hard. But the court ultimatelysaid, no, this is not an
area for the federal courts to intervenein. But state courts might, they

(24:26):
said, the federal Court said,so, that's why some of this goes
back to the state courts. Recently, the federal courts have struck down Alabama's
redistrict team, which provided only onemajority black district when the state's population could
easily allow too. So the SupremeCourt struck that down, but that was

(24:48):
based on the racial representation jerrymandering issuerather than the partisan jerrymandering that Alabama case
is active right now as they strugglewith what to do. Oh my,
just so well. Quite a puzzlethat we have before. It's now.
As far as any Marquette polls publicopinion polls on redistricting, the last one

(25:11):
I could, but when's the lasttime you put the question out? As
far as two voters twenty one whenthe redistricting process was going on, and
a solid majority sixty one percent Ibelieve, said that they favored a nonpartisan
plan. It was somewhere in thethirties that said let the legislature and the

(25:33):
governor do it. The problem hereis that redistricting is such an episodic process
that it's not on people's minds allthe time, and so raising it as
a political and policy issue also meansyou need a period of time to get
voters to learn about the terminology,learn what we're talking about, learn what

(25:55):
the stakes are, and with somethingas esoteric as how you draw district lines,
that's something that's hard to do.It is clear from our polling that
every time we asked the question,a solid majority wanted a nonpartisan districting system,
but it's not clear how they wouldrespond to the trade offs that come

(26:18):
with that. What if you don'tpay attention to where incumbents are and so
every ten years their incumbents get reshuffledamong all the districts. Is there some
advantage to being represented by the sameperson if you like that person over time.
So there are complicated issues here,and we'll see how the legislature,

(26:41):
the governor, and the courts workthrough this over the next few months.
Let me ask you, as avoter and also in your you know,
profession, are the maps rigged?I think the maps are clearly designed to
advantage Republicans. I believe Speaker Vosshimself said as much in in previous testimony

(27:03):
about the maps. And as Isay, there's a long history and tradition
of doing that, of using themaps to deliberately pejorative term from my point
of view, in the past,redistricting advantaged parties without absolutely locking in permanent

(27:30):
majorities. The technology has improved tothe point where I believe that it's possible
to draw those maps in which there'svery little voters can do. Now,
Look, I'm a political scientist,and I believe in small deed democracy,
and so I really prize the ideathat when voter attitudes shift, legislatures shift

(27:55):
as well. And so my problemis is less with one party being advantaged
and more with the problem that wehave so few competitive seats that are decided
by less than a ten point majoritythat it's literally next to impossible to change

(28:15):
the majority in the legislature because they'rejust so few competitive seats. So if
I were king of the world,I would like to see twenty percent thirty
percent of the legislature be competitive seats. And it's fine if others are naturally
blopsided, but at least it preservesthat possibility of change. And again I

(28:38):
go back to that districting out oftwo thousand and one that gave us great
change in the makeup of the legislatureover those ten years with both houses Republican,
one Republican, one Democrat, andthen two Democrat and then switched back
to two Republicans, all with thesame districting plan. So that's simple proof

(29:03):
that even in the modern era wehave seen a districting system it really was
responsive to changes in public opinion overtime. If I were a legislator,
I'm sure I would not want morecompetitive districts, and I could point to
the problems with that, including theone I mentioned that if I live in
a very solidly solidly my party district, I'm probably quite happy with the person

(29:30):
that represents me because they're almost guaranteedto be of my party. Absolutely.
So yeah, so what's all thisgrumping about. It's fine, it's not
fine, and we're going to behearing about it for weeks, months,
maybe years to come. There's noquick ending to all this. As their
child now, Districting used to beonce a decade, now it seems to

(29:52):
be once a week. Yep.Absolutely. Charles Franklin my guest this morning.
He is the director of the MarquetteLaw School. Pull O Charles,
as always, thank you very muchyou have been listening to Madison for him.