Lawsuit targets Wisconsin legislative districts resembling Swiss cheese

If Wisconsin state Rep. Jimmy Anderson wants to visit residents in some of the northern neighborhoods he represents, he first must leave his own district — twice.

From his Fitchburg home in suburban Madison, Anderson must exit his 47th Assembly District, pass through the 77th District, reenter the 47th District, then head north through the 48th District to finally reach a cluster of homes assigned like a remote outpost to his district.

Unusual? Yes. Inconvenient? Yes.

Unconstitutional? Perhaps.

Though the Wisconsin Constitution requires legislative districts “to consist of contiguous territory,” many nonetheless contain sections of land that are not actually connected. The resulting map looks a bit like Swiss cheese, where some districts are dotted with small neighborhood holes assigned to different representatives.

Wisconsin’s nationally peculiar practice of detached districts is cited as one of several alleged violations in a recent lawsuit seeking to strike down current Assembly and Senate districts and replace them before the 2024 election.

Like similar cases in states ranging from North Carolina to Utah, the Wisconsin lawsuit also alleges partisan gerrymandering is illegal under the state constitution’s guarantee of equal protection and free speech.

Though such claims have had mixed results nationally, Democrats hope the Wisconsin Supreme Court’s new liberal majority will deliver a resounding rejection of gerrymandering that has given Republicans a lopsided legislative majority.

But the challenge to noncontiguous districts could provide judges a way to decide the case without ever addressing whether partisan gerrymandering is illegal.

“It could be that this gives the court a completely neutral basis for deciding the maps are no good,” said Kenneth R. Mayer, a University of Wisconsin-Madison political science professor.

Wisconsin’s Assembly districts rank among the most tilted nationally, with Republicans routinely winning far more seats than would be expected based on their average share of the vote, according to an Associated Press analysis. In other states, such as Nevada, Democrats have reaped a disproportionate advantage from redistricting.

Most states are guided by at least four traditional principles for reshaping state legislative districts after each decennial census. Those include districts being nearly equal in population, compact and contiguous and following the boundaries of cities and counties. “Contiguous” generally is understood to mean all parts of a district are connected, with some logical exceptions for islands.

In some states, mapmakers have gotten creative by using narrow strips of roads or rivers to connect otherwise distinct parts of a district. But few have gone so far as Wisconsin in treating contiguous as a loose synonym for “nearby.”

Wisconsin’s detached districts are “profoundly weird,” said Justin Levitt, a professor at Loyola Marymount University Law School in Los Angeles who created the All About Redistricting website.

Anderson’s legislative district, for example, includes more than a dozen remote territories scattered around the Madison area that are disconnected from the district’s main portion in Fitchburg, McFarland and Monona. That makes door-to-door canvassing particularly challenging for Anderson, who uses a wheelchair that must be repeatedly loaded and unloaded from a van.

The situation also is confusing for his remote constituents whose neighbors are represented by someone else, Anderson said.

“It just doesn’t serve the people that live in those little bubbles to not have the same kind of community cohesion and interests being represented,” he said.

Gabrielle Young, 46, lives in one of the “land islands” Anderson represents. But until she was contacted by lawyers filing the redistricting lawsuit, Young said she had no idea Anderson had to travel through another district to campaign in her neighborhood. Young agreed to serve as a plaintiff in the lawsuit alleging the disconnected districts violate the state constitution.

“I could have gone the rest of my life living here not realizing it was happening, but that doesn’t make it OK,” she said. “It’s ridiculous.”

Among other things, the lawsuit cites an 1892 case in which the Wisconsin Supreme Court stated districts “cannot be made up of two or more pieces of detached territory.” Yet the practice proliferated over time, with 55 of the 99 Assembly districts and 21 of the 33 Senate districts now composed of disconnected portions, according to the lawsuit.

“Clearly, at some point, things sort of went awry,” said Mark Gaber, senior director of redistricting at Campaign Legal Center, a Washington, D.C.-based group that helped bring the lawsuit.

“It seems pretty clear to me that you have to enforce the words as they are written,” Gaber added.

That has not always been the case.

In 1992, a federal judicial panel considering a Wisconsin redistricting lawsuit essentially endorsed detached legislative districts. Wisconsin’s Democratic-led Legislature and Republican governor had failed to agree on new districts following the 1990 census. The court was left to pick among various plans submitted by the parties. Republican plans proposed districts with literal contiguity, but the judges opted for a Democratic approach that did not.

The federal judges said legislative districts containing disconnected “islands” of land were similar to towns that had been legally permitted to annex noncontiguous areas.

“Since the distance between town and island is slight, we do not think the failure of the legislative plan to achieve literal contiguity a serious demerit,” the judges wrote in 1992.

The political roles are reversed 30 years later. Republicans, who now control the Legislature, proposed Assembly and Senate maps with disconnected districts that the Wisconsin Supreme Court adopted last year. Democrats, who control the governor’s office, are backing the legal challenge.

“The districts are constitutional because they are legally contiguous,” Republican Assembly Speaker Robin Vos said in a statement to The Associated Press alluding to prior court rulings. He declined further comment.

Though contiguity requirements have a long national history in redistricting, they have not always been explicitly defined, thus leaving room for interpretation, said Micah Altman, a research scientist at Massachusetts Institute of Technology whose specialties include redistricting.

Criteria such as contiguous and compact districts must be balanced with other principles, such as distributing the population equally and not splitting municipalities and counties among districts, he said.

“Turning one knob on the system makes you have to turn down the other knob at least a bit,” Altman said.

In the case of Anderson’s district, the disconnected sections likely have not made much difference in the partisan composition of his voters. Anderson is a Democrat, and so are the majority of Madison-area voters.

But redistricting experts say there still is potential for politicians to rig the map to their favor by drawing remote sections of districts.

“When you allow mapmakers to draw districts that are noncontiguous, you give them even more flexibility to perpetrate abuse,” Levitt said.

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