Last Thursday, April 7, a three judge panel ruled that a group of voter’s challenge to Wisconsin’s 2012 redistricting map can head to trial.

The Wisconsin Department of Justice had filed a motion for summary judgment on behalf of the defendants in the case. The Court ruled that deciding the case, as a matter of law “would be premature because there are factual disputes regarding the validity of plaintiffs’ proposed measurement for determining the existence of a constitutional violation.” Therefore, the case will move forward toward trial.

The plaintiffs argue that the Wisconsin legislature unconstitutionally redistricted, or gerrymandered, in the latest decennial redistricting according to political affiliation. The Supreme Court precedent regarding analyzing redistricting by partisan affiliation is muddled at best.

In Davis v. Bandemer the Supreme Court ruled that partisan gerrymandering claims are justiciable and the standard for the claim is proving discriminatory intent and a discriminatory effect under the Equal Protection Clause (14th Amendment). However, in Vieth v. Jubelirer a plurality of the Court stated that partisan gerrymanders are political questions and therefore cannot be answered by the federal courts. However, another plurality of the Court stated partisan gerrymandering was a justiciable issue (and therefore could be answered) and the standard in Bandemer should be followed. Justice Kennedy, straddled the center ground writing that the issue was justiciable but that the standard in Bandemer was not workable. The final case on this issue is League of United Latin American Citizens v. Perry, where the Court assumed the case was justiciable, but concluded that there was not a manageable standard for determining whether a partisan gerrymander violates the Constitution. Thus it has been left to lower courts to create a workable standard.

In their briefs to the Court the plaintiffs propose a standard for the Court to apply to measure partisan bias in legislative maps through a standard called an “efficiency gap.” An efficiency gap measure analyzes to what extent a legislative district has been drawn to favor a party by measuring “wasted” votes (more votes than were needed to win the district) compared to the total amount of votes cast. Specifically the test involves three steps: (1) State acted with discriminatory intent; (2) discriminatory effect shown through the efficiency gap; and (3) if elements one and two are shown, then the burden shifts to the defendants who must show the discrimination was unavoidable due to the nature of political geography and “legitimate” redistricting objectives.

The State argues the Court should grant their summary judgment motion because the plaintiffs’ measure of discriminatory effect, the efficiency gap, is not a good measure of unconstitutional partisan discrimination. The State proffers multiple reasons for this including that even neutrally drawn maps can have large efficiency gaps, and that political geography favors Republican candidates as democratic voters live in densely populated urban areas.

The Court ultimately stated the State did not meet its burden, to show there is no question of material fact to try. Therefore the case will go to trial. The three judge panel was made up of Circuit Court Judge Kenneth Ripple (President Reagan appointee), District Judge Barbara Crabb (President Carter appointee) and District Judge William Griesbach (President George W. Bush appointee).

The Frank case is the progeny of the 2014 case where the 7th Circuit Court of Appeals declared 2011 Act 23, Wisconsin’s Voter ID law, constitutional. One set of plaintiffs from that case petitioned the federal district court to take up a series of issues that had not been resolved in the first case. Specifically, the plaintiffs’ wanted the court to address whether or not “some persons…qualified to vote are entitled to relief because they face daunting obstacles to obtaining photo ID.” The district court refused to do so. The plaintiffs appealed to the 7th Circuit, who agreed with the plaintiffs and remanded the question to the district court (other uncontested issues were vacated).

The Plaintiffs requested relief for three classes of persons affected by the law:

(1) eligible voters unable to obtain acceptable photo ID with reasonable expense and effort because of name mismatches or other errors in birth certificates or other necessary documents; (2) eligible voters who need a credential from some other agency (such as the Social Security Administration) that will not issue the credential unless Wisconsin’s Department of Motor Vehicles first issues a photo ID, which the DMV won’t do until the other credential has been obtained; (3) eligible voters who need a document that no longer exists (such as a birth certificate issued by an agency whose records have been lost in a fire).

The Plaintiffs argue that members of the three classes above should be waived from the requirements of Wisconsin’s Voter ID law. The State argued that this issue had already been resolved in the court’s 2014 ruling upholding the constitutionality of the law. However, the court said this argument was different. In the 2014 case the argument was that if the law unreasonably burdens some individuals it must be voided for everyone. Here the plaintiffs argue that if the law unreasonably burdens certain individuals it must be voided for them.

The court compared the plaintiff’s requested remedy, that the law not apply to the three classes listed, to Indiana’s Voter ID law saying that law already protects those who are unable to comply with its ID requirement due to financial or religious reasons can have their vote provisionally counted provided they sign an affidavit.

The case will now return to the district court for further hearings.