Gilbert: Are Wisconsin's election maps 'rigged'? Here are the reasons the answer is yes

Half a year before the 2022 election, I wrote a column predicting how many seats Republicans would win that fall in the 99-member Wisconsin Assembly.

It was an attempt to illustrate how meaningless these elections have become.

My argument was that the outcome had already been decided before any votes were cast. Forget about who the candidates are, forget about what the issues are, forget about what the polls say.

The results in these legislative races were already “baked in” by how the districts were drawn.

Based solely on the new redistricting plan, paying zero attention to the actual campaign, I predicted that Republicans would win 63 of 99 Assembly districts, give or take a seat.

They won 64.

Does that sound like a “rigged” system?

That’s the term that was used by the newest state Supreme Court justice, Janet Protasiewicz, in the run-up to her landslide April election victory, which gave liberals a 4-3 majority on the court.  She called the legislative maps “rigged.”

Her comments outraged Republican lawmakers, who recently threatened to impeach her unless she recused herself from the current legal fight over Wisconsin’s gerrymandered districts.

"You cannot have a judge who said, you know, the maps are rigged because she bought into the argument that that's why we're winning elections, not the quality of our candidates, and then she sits on that trial acting like she's gonna listen and hear both sides fairly — that just can't happen," said Assembly Speaker Robin Vos.  

The question of when judges should recuse themselves is a murky one in Wisconsin, where it is largely up to the judge in question. It’s a legitimate debate, but one with lots of gray area. 

Protasiewicz pushed the traditional boundaries of what judicial candidates say about issues that could come before them if elected.  But there’s a history in Wisconsin of liberal and conservative judges declining to recuse themselves despite past opinions they’ve expressed on issues that end up in court.

By contrast, there is no history of lawmakers impeaching duly elected state Supreme Court justices.  Impeaching a justice who was recently elected by double digits in a massive spring turnout over a disagreement about recusal would be an astonishing thing to do, with far-reaching and volatile political consequences.   

What it means to have 'rigged' maps

But I’m going to focus here on the issue underlying this dispute over the court — Wisconsin’s gerrymandered maps — and what Protasiewicz said about them before she was elected.

Whether or not you think her comments were appropriate for a judicial candidate, they were essentially true.

The state’s legislative maps are in fact “rigged” — if you interpret “rigged” to mean that they’re carefully crafted to produce a consistent election outcome heavily slanted toward one party under almost any circumstance.  

The current maps, like the previous maps in use from 2012 through 2020, lock in huge Republican majorities in both houses of the Legislature even in years when Republicans are losing big elections at the top of the ticket.    

Put another way, the outcome of these legislative elections is largely pre-determined. It is overwhelmingly a function of the map, not the candidates or the campaign or election climate. 

This explains why, months ahead of time, a non-clairvoyant person like me could confidently predict within a single seat how many of the Assembly’s 99 districts would be carried by Republicans in 2022.

And could do so while disregarding all the factors that political analysts typically consider when trying to forecast an election: Who are the candidates? How effective are their campaigns? Which side has more money? Which party is in power? What are the hot issues? What do the polls say?

I ignored all of that.

So how did I come up with the number 63?

Just by looking at how the new districts were drawn. I examined how voters in each Assembly seat voted in the three biggest and closest elections of the past six years: for president in 2016, for governor in 2018 and for president in 2020. Then I averaged those results to calculate the partisan makeup of every district.

This showed that Republicans had the advantage in 63 of 99 seats, even though Wisconsin as a whole is evenly divided between the parties.

It also showed the vast majority of these 63 “red” districts were drawn to not just have a Republican tilt but to be safely Republican. The party’s edge in those seats was big enough to all but guarantee a Republican victory, given how few voters split their tickets anymore or swing from one party to another.   

Calling this arrangement “rigged” or “stacked” or “biased” or “baked in” is a matter of semantics. The bottom line is that very large GOP majorities in the Legislature are dictated by the maps. Very few individual seats are ever up for grabs.  Legislative control is never in doubt. There is no “play” in the system. It is not responsive to election swings or shifts in the public mood. In a state famous for close statewide elections, legislative elections are basically meaningless.  

Republicans cite their candidate quality

Some Republicans dispute this characterization, at least publicly, so let’s look at their primary objections.

One is that their party owes its huge legislative majorities to the “quality of their candidates,” as Vos said, not the partisan bias of the map.

There is a simple way to test this claim. For this to be true, Republican Assembly candidates would have to be overachieving politically — winning in lots of difficult districts, including districts that the party is losing at the top of the ticket.  This is how Republicans built some big Assembly majorities in the past under maps that weren’t gerrymandered.  

There is very little evidence this is what’s happening now.  

Instead, Republican Assembly candidates are winning roughly the same number of seats you would expect them to win given how the districts are drawn. And they’re winning roughly the same number of districts that their party is carrying at the top of the ticket for U.S. Senate or governor or president.

Take the 2022 election.  Republican U.S. Sen. Ron Johnson carried 64 Assembly districts in his 2022 re-election victory against Democrat Mandela Barnes.  Republican gubernatorial candidate Tim Michels carried 60 Assembly districts in his statewide defeat against Democratic Gov. Tony Evers.  And as we noted earlier, 63 of the 99 seats lean Republican in their makeup based on how they voted for governor and president prior to 2022. 

By and large, Republican Assembly candidates won the districts where Republican voters outnumber Democratic voters, as these numbers show. Whatever the quality of the GOP’s Assembly candidates was in 2022, it wasn’t the decisive factor in how many seats the GOP won. The map was.

The same was true of the previous redistricting plan enacted by Republicans in 2011. It produced consistently huge Assembly majorities of 60, 63, 64, 63 and 61 seats from 2012 to 2020, even though some of those years produced Republican defeats at the top of the ticket (2012, 2018 and 2020) and some produced Republican victories (2014 and 2016).

What about 'natural gerrymandering'?

The second counter that Republicans offer to the criticism of the gerrymandered maps is that their advantage is a by-product of the state’s political geography. Democratic voters are disproportionately concentrated in populous urban areas, especially Milwaukee and Madison. As a result, Democratic voting power is confined to fewer districts.

Republican voters are more efficiently spread out among a greater number of districts, giving the GOP an edge.  This is sometimes referred to as a “natural gerrymander” because it is the result of where Republican and Democratic voters live, not creative line drawing.  

And there is absolutely an element of truth to this argument.

Even under a “neutral” map that was not designed with any political purpose, this feature of the state’s partisan landscape would advantage the GOP in district-based elections and result in more “red” districts than “blue” districts.

But to suggest that this is the sole explanation for how favorable the current map is to Republicans is flatly wrong.  

Today’s map and the previous map were intended to significantly boost the party’s “natural” advantage by creating the greatest number possible of safe GOP seats.  Doing so also required minimizing the number of competitive seats, which meant there would be fewer individual districts in play and less uncertainty about the overall outcome.

My conclusion from studying the previous gerrymander was that both factors — partisan line-drawing and the state’s political geography (where Democrats and Republicans live) — contributed significantly to the partisan tilt in the map. 

Numerous studies have shown that the GOP advantage in these maps was much bigger than what you’d get from politically neutral line-drawing that sticks to traditional nonpartisan redistricting criteria like keeping districts compact and contiguous and avoiding splitting cities, towns and villages where possible.  An analysis by my colleague John Johnson at the Marquette Law School echoes this.

Both of these factors — gerrymandering and geography -— are also at work in the current maps, which by some measures are even more tilted than the old ones.

These are the maps that are coming back before the state Supreme Court, which now has a liberal 4-3 majority instead of a conservative 4-3 majority due to the landslide victory won by Protasiewicz in April.

If Wisconsin ends up in the months or years to come with a non-gerrymandered legislative map, that map will probably still leave Republicans with a better chance than Democrats of winning the Legislature.

But that advantage won’t be nearly as lopsided as it is now.  And it won’t be deeply artificial. It will make the overall battle for legislative control in this 50/50 state less predetermined (or “rigged”).  It will almost certainly increase the number of competitive districts. It will make the outcome of legislative elections more meaningful and more responsive to public opinion and election swings, which will make the party in power more accountable.

That would be good for the state, good for elections, and good for voters.