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TRANSCRIPT
No. 16-1161
IN THE
Supreme Court of the United States_________
BEVERLY R. GILL, et al.,Appellants,
v.
WILLIAM WHITFORD, et al.,
Appellees._________
On Appeal from theUnited States District Court for the Western District
of Wisconsin_________
BRIEF OF AMICI CURIAE LEAGUE OFCONSERVATION VOTERS ET AL. IN
SUPPORT OF APPELLEES_________
CARY E. ADICKMAN
MADELINE H. GITOMER
HUNTER J. KENDRICK
HOGAN LOVELLS US LLP555 Thirteenth St., NWWashington, DC 20004(202) 637-5600
IRA M. FEINBERG
Counsel of RecordHOGAN LOVELLS US LLP875 Third AvenueNew York, NY 10022(212) [email protected]
SUSAN M. CRAWFORD
PINES BACH LLP122 West Washington
Avenue, Suite 900Madison, WI 53703
Counsel for Amici Curiae
TABLE OF CONTENTS
Page(s)
(i)
TABLE OF AUTHORITIES...................................... iii
STATEMENT OF INTEREST....................................1
SUMMARY OF ARGUMENT.....................................5
ARGUMENT ...............................................................9
I. POLITICAL SCIENCE RESEARCHSHOWS THAT A REAPPORTIONMENTPLAN WITH A LARGER EFFICIENCYGAP WILL RESULT IN ADOPTION OFMORE PARTISAN AND EXTREMEPOLICIES ...........................................................9
II. THE EXPERIENCE IN WISCONSINSINCE 2011 DEMONSTRATES THATTHE LEGISLATURE HAS ADOPTEDMORE PARTISAN AND EXTREMEPOLICIES THAT DISREGARDLONGSTANDING BIPARTISANCONSENSUS ON MANY KEY ISSUES..........15
A. Drastic Budget Cuts Have Under-mined Wisconsin’s LongstandingCommitment to Public Education ............15
1. Reducing Support for K-12Public Schools ......................................15
2. Cutting Funding for the Universi-ty of Wisconsin System.........................20
TABLE OF CONTENTS
Page(s)
(ii)
B. The Dismantling of the Non-Partisan Government AccountabilityBoard Has Sullied Wisconsin’sReputation as a Model of GoodGovernment...............................................23
C. Extreme Policies Enacted Since theRedistricting Plan Have TarnishedWisconsin’s Strong Bipartisan Tradi-tion of Natural Resources Conserva-tion and Environmental Protection..........31
CONCLUSION ..........................................................39
iii
TABLE OF AUTHORITIES
Page(s)
STATUTES:
Act of June 30, 1906, Pub. L. No. 59-398,Chapter 3929, § 2, 34 Stat. 805 .............................3
1989 Wis. Act 31 .....................................................31
1993 Wis. Act 16 .....................................................18
1993 Wis. Act 437 § 9145(1x)(b).......................16, 19
1997 Wis. Act 171 ...................................................37
2003 Wis. Act 33 .....................................................16
2007 Wis. Act 1 .......................................................26
2007 Wis. Act 227 ...................................................32
2011 Wis. Act 21 .....................................................33
2011 Wis. Act 32 § 2582 .........................................19
2013 Wis. Act 1 .......................................................38
2013 Wis. Act 20 § 9148 .........................................21
2015 Wis. Act 188 ...................................................29
Wis. Stat. § 19.81(1)................................................24
Wis. Stat. § 20.........................................................38
Wis. Stat. § 36.01(2)................................................20
Wis. Stat. § 121.91(2m)(g)(4)..................................19
Wis. Stat. § 227.10 et seq. .......................................33
Wis. Stat. § 293.......................................................38
Wis. Stat. § 295.......................................................38
CONSTITUTIONAL PROVISIONS:
Wis. Const. art. X (1848) ........................................15
Wis. Const. art. X....................................................18
iv
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES:
“2007 Wis. Act 1: Roll Call Vote,” Wis.Assemb. J., Spec. Sess. (Jan. 30, 2007) ...............26
“2007 Wis. Act 1: Roll Call Vote,” Wis. S.J., 98th Reg. Sess. (Jan. 30, 2007).......................26
Stephen Ansolabehere et al., CandidatePositioning in U.S. House Elections,45 Am. J. Pol. Sci. 136 (2001) ..............................13
Assemb. Bill 426, 2011-2012 Leg.(Wis. 2012)............................................................37
Scott Bauer, State’s Nonpartisan ElectionBoard Ends; Two Partisan Boards WillReplace the 8-Year-Old Experiment;Elections Oversight New Entity Advisedto ‘Follow the Law,’Wis. State J. (June 27, 2016)...............................30
Molly Beck & Matthew DeFour, AfterEarlier Cuts, Scott Walker ProposesSpending Boost for Schools, Wis. State J.(Feb. 6, 2017)........................................................17
Kevin Beckman, Slashed Budgets PushUniversity of Wisconsin Faculty toMinnesota, Minn. Daily (Sept. 19, 2016).............22
Lee Bergquist, New Poll Shows MajorityOppose Mining Bill,Milwaukee J. Sentinel (Feb. 25, 2013)................38
Bureau of Labor Statistics, CPI-All UrbanConsumers (Current Series).................................19
v
TABLE OF AUTHORITIES—Continued
Page(s)
Siri Carpenter, How Scott WalkerDismantled Wisconsin’s EnvironmentalLegacy,Sci. Am. (June 17, 2015) ..........................32, 34, 38
Devin Caughey et al., PartisanGerrymandering and the PoliticalProcess: Effects on Roll-Call Voting andState Policies ............................................11, 12, 13
James K. Conant, Wisconsin Politics andGovernment (2006) ................. 15, 16, 23, 31, 32, 34
Dep’t of Nat. Res., About the DNR .........................33
Katelyn Ferral, As the GovernmentAccountability Board Ends, What’s theFuture for Wisconsin Campaign FinanceRegulation?,Capital Times (June 20, 2016) ............................29
Anthony Fowler & Andrew B. Hall,Long-Term Consequences of ElectionResults, 47 Brit. J. Pol. Sci. 351 (2017) ...............13
Andrew Gelman & Gary King, EnhancingDemocracy Through LegislativeRedistricting, 88 Am. Pol. Sci. Rev. 541(1994)....................................................................11
Gov’t Accountability Bd., 2008 GAB 1:Representation of Clients .....................................27
Christopher Hare et al., Polarization inCongress Has Risen Sharply, Where Is ItGoing Next?, Wash. Post (Feb. 13, 2014) ............14
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Karen Herzog & Patrick Marley, ScottWalker Budget Cut Sparks Sharp Debateon UW System, Milwaukee J. Sentinel(Jan. 28, 2015)......................................................22
Karen Herzog, Wisconsin One of FewStates Taking Up Higher EducationCuts,Milwaukee J. Sentinel (May 28, 2015)................21
Steven Huefner et al., From Registration toRecounts: Developments in the ElectionEcosystem of Five MidwesternStates (2011) ........................................................27
Steven Huefner et al., From Registrationto Recounts: The Election Ecosystems ofFive Midwestern States (2007) ......................23, 24
Samuel Issacharoff, Supreme CourtDestabilization of Single-Member Districts,1995 U. Chi. Legal F. 205 (1995)...........................9
Russ Kava & Layla Merrifield, State Aidto School Districts,Wis. Legislative Fiscal Bureau(Jan. 2007)............................................................16
Russ Kava & Rick Olin, Local GovernmentExpenditure and Revenue Limits,Wis. Legislative Fiscal Bureau(Jan. 2013)......................................................18, 19
David S. Lee et al., Do Voters Affect orElect Policies? Evidence from the U.S.House,119 Q. J. Econ. 807 (2004) ...................................13
vii
TABLE OF AUTHORITIES—Continued
Page(s)
2 Legislative Fiscal Bureau, ComparativeSummary of Budget Recommendations(Aug. 2011) .....................................................17, 18
Bill Leuders, Iron Mine Is Halted, ButBattle Scars Remain, Wis. Watch(Mar. 17, 2015) ...............................................37, 38
Lower Wis. State Riverway Bd., Welcome .............31
Patrick Marley & Stacy Forster,Legislators Join Ethics Cause Late;Republicans Who Killed Bill Now UseIssue in Campaigns,Milwaukee J. Sentinel (Sept. 24, 2006) ..............25
Patrick Marley & Jason Stein, AssemblyApproves Splitting GAB into Electionsand Ethics Agencies,Milwaukee J. Sentinel (Oct. 21, 2015) ................29
Theodoric Meyer, In Wisconsin, DarkMoney Got a Mining Company What ItWanted,Pro Publica (Oct. 14, 2014) ..................................37
Richard G. Niemi & Simon Jackman,Bias and Responsiveness in StateLegislative Districting, 16 Legis. Stud.Q. 183 (1991) ........................................................11
Mark Pitsch, Board Comes Out Swinging;New Government Accountability Board isMore Aggressive Than the Board ItReplaces,Wis. State J. (Apr. 14, 2008)................................27
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TABLE OF AUTHORITIES—Continued
Page(s)
Mark Pitsch, Real Ethics Reform: ThisTime, They Might Be Serious: SupportersSay the Time is Right to Finally Get aMeaningful Bill Passed,Wis. State J. (Nov. 26, 2006) ...............................25
Press Release, Gov. Jim Doyle,Dec. 14, 2006 ........................................................26
Press Release, State Rep. Karl Van Roy,Jan. 30, 2007 ........................................................26
Press Release, State Rep. Scott Suder,Jan. 3, 2007 ..........................................................26
Reform Bandwagon is Filling Up Fast,The Sheboygan (Sept. 27, 2006) ..........................25
Steve Rundio, Scott Walker visits Tomah,Tomah J. (Sept. 8, 2010) ......................................16
Steven Salzberg, Scott Walker Takes $250Million From U. Wisconsin, Gives $250MTo Billionaire Sports Team Owners,Forbes (Aug. 14, 2015) .........................................21
Nico Savidge, UW-Madison LosingGround to Competitors Amid BudgetCuts, Rebecca Blank Says, Wis. State J.(Sept. 15, 2016) ..............................................22, 24
Luke Schaetzel, Just How Much Has theUW System Lost Since 2011?,Observatory (Nov. 9, 2016) ..................................21
Ron Seely, Safe, Clean Drinking WaterEludes Many Wisconsinites,Minn. Post (Nov. 18, 2015) ............................36, 37
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Boris Shor & Nolan McCarty, The Ideolog-ical Mapping of American Legislatures,105 Am. Pol. Sci. R. 530 (2010) ...........................13
Patricia Simms, Wisconsin get D grade in2015 State Integrity Investigation, Ctr.for Pub. Integrity (Nov. 9, 2015) ..........................28
State Ethics Panel Gets First Big Vote,Wis. State J. (Aug. 28, 2016) ...............................30
Jason Stein, Wisconsin EthicsCommissioner Resigns in Disgust,Milwaukee J. Sentinel (Dec. 12, 2016)................30
Nicholas O. Stephanopoulos, The Causesand Consequences of Gerrymandering(June 21, 2017).....................................................11
Nicholas O. Stephanopoulos & Eric M.McGhee, Partisan Gerrymandering andthe Efficiency Gap, 82 U. Chi. L. Rev.831 (2015) .............................................................14
Sen. Lena Taylor, GAB’s Obituary,Milwaukee Courier, July 2, 2016 ........................30
Ross Terrell, Study: Budget Cuts Is A TopFactor In Declining Faculty Morale AtUW-Madison, Wis. Pub. Radio(Apr. 7, 2017)........................................................22
Presidential Comm’n on Election Admin.,The American Voting Experience: Reportand Recommendations (Jan. 2014) .....................27
The Pew Charitable Trs., The ElectionsPerformance Index 2012 (Apr. 2014)...................28
x
TABLE OF AUTHORITIES—Continued
Page(s)
Tommy Thompson, Government–University Collaboration at the Root ofThe Wisconsin Idea, Capital Times(Jan. 4, 2017)..................................................20, 22
Daniel P. Tokaji, America’s Top Model:The Wisconsin GovernmentAccountability Board,3 U.C. Irvine L. Rev. 575 (2013)....................24, 27
U.S. Census Bureau, Per Pupil CurrentSpending (PPCS) Amounts and One-Year Percentage Changes for PPCS ofPublic Elementary-Secondary SchoolSystems by State: Fiscal Years 2007-2012 (May 22, 2014).............................................17
Univ. of Wis., The Wisconsin Idea..........................20
Steven Verburg, Fines for Pollution Fell to30-Year Low in 2015,Wis. State J. (May 19, 2016)................................35
Steven Verburg, Gogebic Taconite SaysWisconsin Mine Isn’t Feasible; CitesWetlands, EPA Wis. State J.(Feb. 28, 2015)................................................37, 38
Steven Verburg, Scott Walker, LegislatureAltering Wisconsin’s Way of ProtectingNatural Resources,Wis. State J. (Oct. 4, 2015) ..........32, 33, 34, 35, 36
Steven Verburg, Secretary Cathy SteppLeaving DNR to Join Donald Trump’sEPA (Aug. 30, 2017).............................................36
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Sen. Kathleen Vinehout, Putting PoliticalParties Back in Charge of Elections andEthics? (Oct. 14, 2015) .........................................28
Scott Walker Takes $250 Million FromU. Wisconsin, Gives $250M ToBillionaire Sports Team Owners, Forbes(Aug. 14, 2015) .....................................................21
Samuel S.-H. Wang, Three Tests forPractical Evaluation of PartisanGerrymandering,68 Stan. L. Rev. 1263 (2016)..................................9
Jodi Wilgoren, In Wisconsin, Scandal,Outrage and Deficit Churn Up a Stormof Political Change, N.Y. Times (May 19,2002) .....................................................................24
Cassandra Willyard, After Censoring Sto-ries, Gov. Scott Walker Wants to Kill OffSelf-Funded Outdoors Magazine, Colum.Journalism Rev. (May 1, 2017)............................35
Wis. Gov. Signs Budget Cutting Education$1.85B, CBS News (June 26, 2011).....................19
Wis. Budget Project, An Overview of Edu-cation Issues in the 2013–15 Budget(2013)....................................................................19
Wisconsin Elections Performance Index,The Pew Charitable Trs. (Apr. 2014)..................28
Wis. State Elections Bd., Results of FallGeneral Election (Nov. 7, 2006).....................25, 28
Wis. State Leg., Record of CommitteeProceedings (2015) ...............................................28
xii
TABLE OF AUTHORITIES—Continued
Page(s)
Dave Zweifel, Plain Talk: Next November,Remember Who Butchered GoodGovernment In Wisconsin,Capital Times (Nov. 18, 2015).......................28, 29
Dave Zweifel, We, The People? No. We, TheIrrelevant, Capital Times (Dec. 24, 2015) ...........29
(1)
IN THE
Supreme Court of the United States_________
No. 16-1161_________
BEVERLY R. GILL, et al.,Appellants,
v.
WILLIAM WHITFORD, et al.,
Appellees._________
On Appeal from theUnited States District Court for the Western District
of Wisconsin_________
BRIEF OF AMICI CURIAE LEAGUE OFCONSERVATION VOTERS ET AL. IN
SUPPORT OF APPELLEES_________
STATEMENT OF INTEREST1
The League of Conservation Voters, National Edu-cation Association, Wisconsin Education AssociationCouncil, League of Women Voters of Wisconsin, Dr.Anthony Evers and George Meyer respectfully sub-
1 No party or counsel for a party authored this brief in wholeor in part. No party, counsel for a party, or person other thanamici curiae, their members, or their counsel made anymonetary contribution intended to fund the preparation orsubmission of this brief. The parties have filed letters with theClerk granting blanket consent to the filing of amicus curiaebriefs in this case.
2
mit this brief as amici curiae in support of Appellees.Amici are organizations and individuals who closelymonitor Wisconsin elections and government and aregreatly concerned by the adverse impact of thepartisan gerrymandering engineered by the StateLegislature in 2011. As the court below found, Act43 deliberately apportioned districts for State Senateand Assembly elections in a way that both guaran-tees that Republicans control the Legislature innumbers that far exceed their actual support amongWisconsin voters and has entrenched that control fornearly a decade. Amici have seen the dramatic effecton political life in Wisconsin, as the gerrymanderinghas enabled the Legislature to pursue a narrowpartisan agenda that has undermined values andpolicies long held by a bipartisan majority of Wiscon-sin voters.
The League of Conservation Voters (“LCV”) is anon-profit environmental advocacy organization withmore than two million members throughout theUnited States, including more than 58,000 membersin Wisconsin, and has partner organizations intwenty-nine States including Wisconsin. LCV advo-cates for sound environmental law and policies, andworks to elect pro-environment candidates who willchampion clean energy, air and water issues irre-spective of party affiliation.
The National Education Association (“NEA”) is anationwide organization representing more than 3million elementary and secondary teachers, highereducation faculty, education support professionals,school administrators, retired educators, and stu-dents preparing to become educators. Chartered byan Act of Congress in 1906 “to elevate the characterand advance the interests of the profession of teach-
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ing, and to promote the cause of education in theUnited States,” Act of June 30, 1906, Pub. L. No. 59-398, ch. 3929, § 2, 34 Stat. 805, NEA’s interest in thislitigation stems from its concern that extreme parti-san gerrymandering has eroded a longstandingbipartisan consensus on support for public education,which NEA regards as the cornerstone of our social,economic, and political structure and values.
The Wisconsin Education Association Council(“WEAC”) is an unincorporated organization whosemembership includes over 34,000 teachers and otheremployees employed by public school districts inWisconsin. WEAC’s purpose is to promote the inter-ests of public education, the teaching profession andthe welfare of members of the collective bargainingunits that are affiliates of WEAC. The issues pre-sented in this case are of special concern to WEACmembers because the partisan gerrymandering hasled to dramatic cutbacks in support for public educa-tion in Wisconsin.
The League of Women Voters of Wisconsin (“theLeague”) is a non-partisan organization that advo-cates for citizens’ rights to informed and activeparticipation in government. The League has advo-cated for reforms to ensure that Wisconsin votingdistricts are drawn on a non-partisan basis since1981. The League also strongly supports: legislativeefforts to ensure that government officials are sub-ject to the highest ethical standards; equal educa-tional opportunities for children through an equita-ble state aid formula; and preservation of a healthyphysical environment.
Dr. Anthony Evers is the Superintendent of PublicInstruction of the State of Wisconsin, a statewideelective office charged with supervising public educa-
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tion. He was elected to that non-partisan position in2009 and has been re-elected twice, in 2013 and2017. He previously served as Deputy Superinten-dent from 2001 to 2009. As Superintendent, Dr.Evers is the head of the Department of Public In-struction, the state agency responsible for advancingpublic education in Wisconsin. He is also an exofficio member of the state university’s Board ofRegents. As the non-partisan guardian of the state’spublic educational institutions, Dr. Evers is aware ofthe adverse impact of the State’s declining commit-ment to K–12 and higher education on Wisconsin’slongstanding tradition of excellence in education.Dr. Evers has recently announced his candidacy forGovernor of Wisconsin in 2018, as a Democrat.
George Meyer is the Executive Director of the Wis-consin Wildlife Federation, a conservation groupdedicated to the protection of Wisconsin’s fish andwildlife habitat for the benefit of Wisconsin huntersand fishermen. Before taking that position in 2003,Mr. Meyer worked for thirty-two years at the Wis-consin Department of Natural Resources. He wasappointed as Secretary (or head) of the Departmentof Natural Resources by the state Natural ResourcesBoard in 1993, was re-appointed by RepublicanGovernor Tommy Thompson in 1995, and served inthat capacity until 2001. Mr. Meyer is greatly con-cerned that the actions of the gerrymandered Legis-lature in recent years have undermined longstandingstate conservation policies and disregarded what hadbeen a bipartisan consensus in favor of protectingWisconsin’s outdoor heritage.
SUMMARY OF ARGUMENT
The District Court found that the Republican-controlled Wisconsin Legislature, through the use of
5
extensive computer modeling, created a redistrictingplan that intentionally imposed a severe impedimenton the effectiveness of the votes of Democratic voters.J.S. App. 3a, 126a-177a. The District Court ex-plained that its conclusion on the discriminatoryeffect of the reapportionment was “bolstered” byplaintiffs’ evidence demonstrating a sizeable “effi-ciency gap.” Id. at 159a.
The “efficiency gap” is a simple tool for measuringthe extent of partisan bias in a reapportionmentplan, and thus the discriminatory effect of a gerry-mander. It is an easily calculated ratio that quanti-fies the comparative relationship of one party’s“wasted votes”—votes cast in a losing race, or votescast in a winning race in excess of the number neces-sary to win—to the other party’s. The size of theefficiency gap after redistricting thus illustrates thedegree to which the gerrymander has successfullydiminished the effectiveness of the other party’svotes.
This brief focuses on one of the most perniciouseffects of a partisan gerrymander: that it results inthe adoption of state policies that are more partisanand extreme than the broad middle of voters wouldsupport. Appellants’ brief (at 50), relying on thedissenting opinion of Judge Griesbach in the DistrictCourt, argues that a Republican legislator in a swingdistrict will adopt more moderate, centrist positionsthan a Republican in a safe district. But this easyreassurance is of no relevance in assessing the effectof a partisan gerrymander. The goal of a partisangerrymander—and the goal of the Wisconsin Legisla-ture here—was to modify the composition of as manydistricts as possible so as to favor Republicans andcreate a safe Republican majority, by packing Demo-
6
cratic voters into a smaller number of overwhelming-ly Democratic districts. Legislators in these Republi-can districts do not have to consider their Democraticconstituents, or even the more moderate voices intheir own party. Political science research hasshown that these legislators will toe the party lineregardless of the ideological midpoint of their con-stituency, and that, with their party’s majoritysecure, legislators will support more partisan policiesthat depart from any bipartisan consensus.
This brief first reviews recent political science re-search, which demonstrates that partisan gerryman-ders with a high efficiency gap are strongly associat-ed with adoption of state policies that are morepartisan and extreme than the State’s median votersupports. This research also shows that the conven-tional wisdom relied upon by Appellants—thatlegislators from swing districts will gravitate to-wards the center—is mistaken. On the contrary,even in districts where the margin of victory wasvery small, analysis shows that there is a vast differ-ence in the voting records of the elected representa-tives, depending upon whether the Democrat orRepublican came out on top.
This brief will go on to show that, in fact, the adop-tion of more partisan and extreme policies is exactlywhat has happened in Wisconsin: since the adoptionof the State’s redistricting plan in 2011, thelongstanding bipartisan consensus on many statepolicies has been upended and replaced with parti-san policies that are not supported by the Wisconsinpublic at large.
We explore in detail four examples, though thereare many others that could be pursued if spacepermitted. First, in education, Wisconsin has long
7
prided itself on its strong support for K–12 publiceducation, under both Republican and Democraticleadership. In the 1990s, Republican GovernorTommy Thompson pledged that the State wouldprovide two-thirds of the funding for public schools.That strong commitment to public education hasbeen the standard for Wisconsin ever since, leadingto one of the best public school systems in the coun-try. But since the reapportionment, state support forthe public schools has been cut dramatically. Statelegislators have even restricted the ability of localgovernments to raise additional money to supporttheir public schools, even when citizens of thoselocalities attempt to raise their own taxes to pay forit.
Second, the effect of the gerrymandering on theUniversity of Wisconsin system has also been dra-matic. The University of Wisconsin system has longbeen one of the State’s crown jewels, and central tothe “Wisconsin idea,” that the state university sys-tem exists to serve all state citizens and to benefittheir lives far beyond the classroom. But since 2011,the Legislature has dramatically cut funding for theuniversity system, even though up to 70% of statecitizens opposed these budget cuts. The result hasbeen devastating: hundreds of positions have beencut, faculty members have left for other universities,and even the Chancellor of the University’s flagshipcampus in Madison has had to admit that the qualityof that campus has “slipped.”
Third, Wisconsin citizens have long been proud oftheir State’s well-deserved reputation for good, cleanstate government, ever since the era of RepublicanGovernor Robert LaFollette a hundred years ago. Asrecently as 2007, the bipartisan consensus in support
8
of clean government led to creation of the Govern-ment Accountability Board, a non-partisan panel offormer state judges to oversee state elections and theethics of public officials. The Government Accounta-bility Board was popular and effective, and hailed asa “worthy model” for other States. But despite this—and despite overwhelming Republican support just afew years earlier—the gerrymandered Legislaturedismantled the Board in 2016, replacing it with twomuch weaker commissions, composed of openlypartisan members, to oversee public officials’ ethicsand elections.
Finally, Wisconsin residents have always treasuredthe State’s natural resources and wildlife, and therehas long been strong bipartisan support for environ-mental protection and conservation to benefit allforms of outdoor recreation. But this bipartisanconsensus has been ripped asunder since the reap-portionment. The State’s Department of NaturalResources has been underfunded and subjected topolitical interference. The Legislature also passed amining deregulation law for the benefit of one politi-cally influential company, which weakened protec-tions for wetlands and Lake Superior. The Legisla-ture’s actions have significantly relaxed rules toaddress pollution, reduced protections for Wiscon-sin’s rivers and lakes, and undermined policiesintended to protect the State’s wildlife and naturalresources, despite broad popular support for theseconservation policies.
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ARGUMENT
I. POLITICAL SCIENCE RESEARCH SHOWSTHAT A REAPPORTIONMENT PLAN WITHA LARGER EFFICIENCY GAP WILLRESULT IN ADOPTION OF MOREPARTISAN AND EXTREME POLICIES.
“Computer technology has evolved dramatically tothe point that . . . actors are able to carve ever moreintricate districting patterns that seek to advance aparticular political agenda. . . . [T]he new computertechnology allows virtually anyone to redistrictconsistent with general equipopulation principlesand rerun past elections across altered district linesto determine optimal future arrangements.” Thosewords were written twenty-two years ago. SamuelIssacharoff, Supreme Court Destabilization of Single-Member Districts, 1995 U. Chi. Legal F. 205, 232-33(1995). In the intervening years, redistricting tech-nology has become much more advanced, and acces-sible to legislators and individuals alike. See SamuelS.-H. Wang, Three Tests for Practical Evaluation ofPartisan Gerrymandering, 68 Stan. L. Rev. 1263,1267 (2016) (noting that “even activists and ordinarycitizens can enter the fray,” using free redistrictingsoftware).
With the power to redraw districts with nearlyscientific precision to entrench a party in the legisla-ture comes the temptation to exercise it. In adoptingAct 43, the Wisconsin Legislature “intended andaccomplished an entrenchment of the RepublicanParty likely to endure for the entire decennial peri-od.” J.S. App. 107a. The drafters of the Wisconsinredistricting plan used a computer program withpast election data and current demographic infor-mation to “assess the partisan make-up of the new
10
districts” they were drawing and create a “partisanscore” to project the number of seats Republicanslikely would win under various alternative maps. Id.at 17a-18a. The Legislature ultimately adopted amap that ensured a significant and durable partisanadvantage for Republicans, which “would solidifyRepublican control.” Id. at 128a. In an environmentwhere a legislature has the intent and capacity, withsuch stunning precision,2 to redraw districts toensure that the party in power stays in power, it isincreasingly important to be able to measure—andonce measured, remedy—the discriminatory effect ofpartisan gerrymanders.
The “efficiency gap” is a simple and easily calculat-ed tool for measuring the discriminatory effect of agerrymander. For a given election, it is calculated bysubtracting the “wasted” votes of one party fromthose of the other, and dividing by the total numberof votes cast. Id. at 31a-33a. A “wasted” vote is onethat did not help the chosen candidate win, andincludes all votes for the losing candidate and allsurplus votes for the winner above the minimumnecessary to win. Id. It stands to reason that if onecan increase an opposing party’s wasted votesthrough redistricting, the party in power can signifi-cantly increase the likelihood it will win more seats.
Recent political science research has shown thatwhen a single party has control over redistricting,
2 The map drawers projected that the map would yield 59Republican seats in the 99-seat Assembly; in the 2012 election,it actually yielded 60 Republican seats, J.S. App. 25a, 30a, eventhough Republican candidates won less than 50% of the popularvote statewide.
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the efficiency gap is significantly increased in thatparty’s favor. A study of state legislative and con-gressional elections since 1972 by Professor NicholasStephanopoulos of the University of Chicago LawSchool reveals that unified party control over redis-tricting had a significant effect on the efficiency gap,resulting in a pro-Democratic increase of 3 to 3.5percentage points when Democrats controlled theprocess and pro-Republican increase of 4.5 pointswhen Republicans controlled it. Nicholas O. Stepha-nopoulos, The Causes and Consequences of Gerry-mandering (June 21, 2017) (unpublished manuscript)(on file with the William & Mary Law Review).3 Seealso, e.g., Richard G. Niemi & Simon Jackman, Biasand Responsiveness in State Legislative Districting,16 Legis. Stud. Q. 183, 195 (1991) (state legislativeplans designed by Democrats had average pro-Democrat bias of 4.1%, while Republican-draftedmaps had average pro-Republican bias of 4.5%);Andrew Gelman & Gary King, Enhancing DemocracyThrough Legislative Redistricting, 88 Am. Pol. Sci.
Rev. 541, 553 (1994)4 (unified partisan control pro-duced 3% bias in state legislative elections in favor ofmap-drawing party).
Recent research has evaluated the effect of theefficiency gap on state policy. Professors Caughey,Tausanovitch and Warshaw found that large effi-ciency gaps distort both legislative representationand policy results. See Devin Caughey et al., Parti-san Gerrymandering and the Political Process: Ef-fects on Roll-Call Voting and State Policies 10-11
3 Available at goo.gl/pu8YkY.
4 Available at goo.gl/fJK8zg.
12
(unpublished manuscript) (on file with the ElectionLaw Journal)5 (“Partisan Gerrymandering”) (years inwhich efficiency gap was more pro-Republican thanaverage “tended to have more conservative roll-callvoting behavior”); id. at 10-11, 12 (Figure 4) (samecorrelation for pro-Democratic efficiency gaps, to lesssevere extent). Moreover, as the efficiency gap grewin a more Republican direction, the median idealpoint of the state legislators—i.e., the median pointof legislators’ substantive policy positions—grewsignificantly more conservative. Id. at 12-14.
Their research also shows that legislatures whoseredistricting plans are characterized by large effi-ciency gaps enact more extreme policies. Caughey,Tausanovitch and Warshaw found that:
[A] pro-Republican EG [Efficiency Gap] shiftsthe median state legislator markedly to theright, whereas a pro-Democratic EG shifts themedian to the left. Analogously, state policiesbecome more conservative when the EG favorsRepublicans and (with less certainty) moreliberal when the EG favors Democrats.Though smaller than its effects on legislativemedians, the EG’s policy effects are nonethe-less substantial. Indeed, a one standard devi-ation change in the efficiency gap has a largereffect on state policy than a change in the par-ty of the governor. Overall, these results sug-gest that partisan gerrymandering has majorconsequences not only for who wins elections,but for the political process as a whole.
Id. at 3; see also id. at 10-13.
5 Available at goo.gl/ftB6xP; see also goo.gl/iAJYdM.
13
Appellants argue (at 50) that a legislator in a swingdistrict will align his or her policies with the medianvoter in order to win re-election. But the researchshows that this conventional wisdom is mistaken. Inclose elections, electing a Republican legislator willresult in more conservative roll-call voting, andelecting a Democrat more liberal voting—legislatorsdo not gravitate toward the center as Appellantsargue. See Caughey et al., Partisan Gerrymandering11; accord Anthony Fowler & Andrew B. Hall, Long-Term Consequences of Election Results, 47 Brit. J.
Pol. Sci. 351 (2017)6; David S. Lee et al., Do VotersAffect or Elect Policies? Evidence from the U.S.
House, 119 Q. J. Econ. 807 (2004)7 (finding thatwinning an election by a smaller margin does notresult in more moderate policies); Boris Shor &Nolan McCarty, The Ideological Mapping of Ameri-
can Legislatures, 105 Am. Pol. Sci. R. 530 (2011).8 Inother words, legislators will toe the party line evenwhere it would otherwise appear to be in their self-interest to conform to the median voter’s ideal point(ideological midpoint). See Caughey et al., PartisanGerrymandering 6-8 (showing party affiliation’seffect on roll-call voting and state policy). Otherstudies show that legislators now trim much lesstoward the center, even in marginal districts, thanthey did in the mid-twentieth century. See StephenAnsolabehere et al., Candidate Positioning in U.S.
House Elections, 45 Am. J. Pol. Sci. 136 (2001)9; see
6 Available at goo.gl/yCZuX6.
7 Available at goo.gl/WC4thv.
8 Available at goo.gl/XaYQKa.
9 Available at goo.gl/NCjavs.
14
also Christopher Hare et al., Polarization in Con-gress Has Risen Sharply. Where Is It Going Next?,Wash. Post (Feb. 13, 2014).10 Appellants offer nopolitical science research to support their position,because there is none.
Given the technological advances that have made itever easier to produce a partisan advantage, recentdecades have seen a massive increase in the magni-tude of efficiency gaps in redistricting plans. SeeNicholas O. Stephanopoulos & Eric M. McGhee,Partisan Gerrymandering and the Efficiency Gap, 82U. Chi. L. Rev. 831, 876 (2015); see also SA 227.
Thus, the research shows that in redistrictingplans characterized by large efficiency gaps, theparty in power will translate votes to seats in thelegislature more efficiently, win more seats, andenact more polarized policies. Given the recenttendency for redistricting plans to result in higherefficiency gaps, the trend of legislators in swingdistricts declining to conform their voting to themedian voter, and the resulting more extreme poli-cies that disregard the voters of the other party, it ismore urgent than ever for this Court to address thekind of blatant effort to disenfranchise the voters ofthe other party that the District Court found here.
10 Available at goo.gl/uUW8f9.
15
II. THE EXPERIENCE IN WISCONSIN SINCE2011 DEMONSTRATES THAT THE LEG-ISLATURE HAS ADOPTED MOREPARTISAN AND EXTREME POLICIESTHAT DISREGARD LONGSTANDINGBIPARTISAN CONSENSUS ON MANY KEYISSUES.
The experience in Wisconsin since the 2011 reap-portionment fully bears out the prediction of theseacademic researchers: on issue after issue, thegerrymandered legislature has adopted highly parti-san policies that disregard a longstanding bipartisanconsensus and are not supported by the broad major-ity of Wisconsin voters.
A. Drastic Budget Cuts Have UnderminedWisconsin’s Longstanding Commitmentto Public Education.
The policies enacted by the Wisconsin Legislaturesince 2011 have resulted in a dramatic shift ineducation policy and priorities. Legislators haveabandoned long-held bipartisan values concerningboth the Kindergarten through Twelfth Grade (K–12) public schools and the University of Wisconsinsystem.
1. Reducing Support for K–12 Public Schools
Wisconsin has long prided itself on its “extraordi-nary commitment” to K–12 public education. JamesK. Conant, Wisconsin Politics and Government 28(2006). In 1848, voters ratified the State’s firstconstitution, including an article explaining theresponsibilities of state and local governments toeducate their children. Wis. Const. art. X (1848).Wisconsin has made education a budget prioritysince the early 1900s, and has given “generous
16
support to school districts” in the decades since.Conant, supra, at 27, 29. Since the redistricting,however, the Legislature has passed a series ofsubstantial budget cuts that have weakened theState’s public education system. These budget cutsnot only reduced overall funding for public schools,but abandoned a bipartisan policy to fund the publicschools mainly through state, rather than local,contributions.
Historically, public education funding has been abipartisan priority in Wisconsin. In the 1990s,Republican Governor Tommy Thompson pledgedthat the State would provide two-thirds of the fund-ing for K–12 public schools. This pledge was enactedinto law with bipartisan support. 1993 Wis. Act 437§ 9145(1x)(b). This pledge aimed to provide adequateper-pupil public education funding, while holding theline on local property taxes. From the pledge’simplementation in 1996 until its repeal in 2003, theState’s share of K–12 funding remained at 66%.Russ Kava & Layla Merrifield, State Aid to SchoolDistricts, Wis. Legislative Fiscal Bureau (Jan.2007).11
Although the Legislature formally repealed thepledge in 2003, 2003 Wis. Act 33, the two-thirdsfunding pledge remained popular in Wisconsin.During his successful 2010 campaign for Governor,Scott Walker declared “it would be an aim” to restorestate funding to two-thirds. Steve Rundio, ScottWalker visits Tomah, Tomah J. (Sept. 8, 2010).12
11 Available at goo.gl/LFqy78.
12 Available at goo.gl/QM4Qoz.
17
However, following the partisan gerrymander in2011, the Republican-controlled Legislature, withGovernor Walker’s support, drastically cut fundingfor K–12 public schools. Wisconsin’s 2011–2013budget cut $792 million from aid to local K–12schools. 2 Legislative Fiscal Bureau, ComparativeSummary of Budget Recommendations 539 (Aug.2011).13 The State’s share of K–12 funding droppedbelow 62%. Id. Per pupil spending in 2011–2012dropped by 6.2% from 2010–2011, representing thelargest per-pupil spending cut in the nation. Theprevious four years had seen increases of 2.6% to 4%.U.S. Census Bureau, Per Pupil Current Spending(PPCS) Amounts and One-Year Percentage Changesfor PPCS of Public Elementary-Secondary SchoolSystems by State: Fiscal Years 2007-2012 (May 22,2014).14
Although Governor Walker recently released aproposed budget increasing state K–12 educationfunding, see Molly Beck & Matthew DeFour, AfterEarlier Cuts, Scott Walker Proposes Spending Boostfor Schools, Wis. State J. (Feb. 6, 2017),15 the pro-posed increases are grossly insufficient to make upthe ground lost with the 2011 cut.16
13 Available at goo.gl/b2Xs9R.
14 Available at goo.gl/mmb3T7.
15 Available at goo.gl/Ua4E6v.
16 Some of the legislative actions discussed in this brief tookplace during the Legislature’s 2011 session, before legislatorswere elected under the 2011 reapportionment plan, first used in2012. However, work on the plan began in January 2011, andthe first maps were drafted by April. J.S. App. 12a-14a. Act 43was passed by the Senate and Assembly in July 2011, and
18
Moreover, the Legislature has eroded local jurisdic-tions’ autonomy over the amount of revenue they canraise for K–12 education. The state government’sobligation to make substantial financial contribu-tions to local school districts is enshrined in thestate’s constitution. See Wis. Const. art. X, § 5. ButWisconsin’s constitution also requires local govern-ments to tax residents specifically for “the support ofcommon schools.” Id. § 4. Cities and towns that failto levy such taxes cannot receive state funding for K–12 education. Id. § 5.
Since 1993, the State has limited the amount ofadditional money local governments can collect fromlocal property taxes, 1993 Wis. Act 16, but has per-mitted local governments to override these revenuelimits by referenda. Russ Kava & Rick Olin, LocalGovernment Expenditure and Revenue Limits, Wis.Legislative Fiscal Bureau 7 (Jan. 2013).17 Under thissystem, local governments receive financial backing
signed by the Governor in August. At all times during the 2011session, Republican legislators knew they had complete controlof the reapportionment process and the ability (and will) todraw districts that would insulate Republican legislators fromany serious challenge based on the policies they wereimplementing. As the District Court found, “from the outset ofthe redistricting process, the drafters sought to understand thepartisan effects of the maps they were drawing,” and “wereconcerned with, and convinced of, the durability of their plan.”Id. at 138a, 139a. Indeed, in meetings with the Republicancaucus, a staff member for the Majority Leader told them thatthe “maps we pass will determine who’s here 10 years fromnow.” Id. at 28a. This gave Republican legislators the freedomto enact highly partisan policies without concern for theelectoral consequences or the popularity of their actions amongthe broader electorate.
17 Available at goo.gl/QH7kzN.
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from the state, but retain the power—and the re-sponsibility—to tax their residents to fund schools.
Since the 2011 redistricting, however, the Legisla-ture has restricted the ability of local governments tofund the public schools themselves, which—in com-bination with the cuts in state funding—has severelyrestricted funding for public education in Wisconsin.Whereas every previous budget had increased theper-pupil revenue limit by $190 to $274, the 2011–2013 state budget reduced the amount that schooldistricts could collect by an average of $554 perpupil. Id. at 2-3; see also 2011 Wis. Act 32 § 2582(codified at Wis. Stat. § 121.91(2m)(g)(4)) (reducingrevenue cap by 5.5% per student). This restrictionamounted to another $800 million cut, statewide, inoverall funding for K–12 education.See Wis. Gov. Signs Budget Cutting Education
$1.85B, CBS News (June 26, 2011).18 While recentstate budgets have increased the per-pupil revenuecap, the increases have not kept pace with inflation.See Wis. Budget Project, An Overview of EducationIssues in the 2013–15 Budget (2013)19 (noting thatrevenue cap increased by 0.8% in 2014 and 2015);Bureau of Labor Statistics, CPI-All Urban Consum-ers (Current Series)20 (calculating inflation rate as1.9% for July 2014 and 1.8% for July 2015).
The recent history of K–12 education funding inWisconsin illustrates how partisan gerrymanderingaffects policy. Secure in their electoral majority,
18 Available at goo.gl/ZpH1Y4.
19 Available at goo.gl/WbcDLE.
20 Available at goo.gl/W3dJKL (last visited Sept. 5, 2017).
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legislators have abandoned decades-old policies insupport of state funding for public schools, by slash-ing state funding and prohibiting Wisconsin citizensfrom offsetting the cuts through local referenda toincrease their own taxes to fund schools.
2. Cutting Funding for the University ofWisconsin System
The effects of partisan gerrymandering on the Uni-versity of Wisconsin System (the “UW System”) aresimilarly troubling. Despite a robust history ofbipartisan support for the UW System, the redistrict-ing legislators have cut funding for the System byover $360 million.
These cuts undermine the non-partisan “WisconsinIdea,” a concept unique to Wisconsin, which viewsthe University as a means to improve the quality oflife for all the State’s citizens. Univ. of Wis., TheWisconsin Idea.21 The Wisconsin Idea is consideredthe guiding principle of the UW System. TommyThompson, Government–University Collaboration atthe Root of The Wisconsin Idea, Capital Times (Jan.4, 2017).22 The Wisconsin Idea derives from formerUW-Madison President Charles Van Hise’s 1905declaration that “I shall never be content until thebeneficent influence of the [U]niversity reaches everyhome in the state.” Id. This concept is enshrined instate statute; by law, UW’s mission is “to extendknowledge and its application beyond the boundariesof its campuses and to serve and stimulate society.”Wis. Stat. § 36.01(2).
21 Available at goo.gl/jo8jdf (last visited Sept. 5, 2017).
22 Available at goo.gl/PwDVLb.
21
After the 2011 gerrymandering, however, the Wis-consin Idea, and the UW’s standing as one of thefinest state university systems in the nation, are injeopardy. In 2011, the Legislature imposed morethan $100 million in budget cuts on the UW System.Luke Schaetzel, Just How Much Has the UW System
Lost Since 2011?, Observatory (Nov. 9, 2016).23
Then, in 2015, the State cut the UW System’sbudget by an additional $250 million, id., whilelargely preventing the university from raising tuitionto cover costs, see 2013 Wis. Act 20 § 9148.24 Thesecuts were deeply unpopular with Wisconsin voters.A majority of Wisconsin citizens—between 64% and70%—disapproved of Governor Walker’s originalproposal to cut $300 million from the System’sbudget. See Karen Herzog, Wisconsin One of FewStates Taking Up Higher Education Cuts, MilwaukeeJ. Sentinel (May 28, 2015).25 The cuts adopted bythe Legislature were also out of step with the rest ofthe country: Wisconsin was one of only six States toapprove (or even consider) cuts in higher educationfunding that year. Id. From fiscal year 2012 to2017, the UW System’s budget has been cut by atotal of $362 million. Schaetzel, supra.
23 Available at goo.gl/VHSP21.
24 The same year, the Legislature approved a $250 millionexpenditure to build a new arena for Wisconsin’s professionalbasketball team, the Milwaukee Bucks. Steven Salzberg, ScottWalker Takes $250 Million From U. Wisconsin, Gives $250M ToBillionaire Sports Team Owners, Forbes (Aug. 14, 2015),goo.gl/zndB3J.
25 Available at goo.gl/s8WaUE.
22
The UW System has suffered greatly from thesecuts. Before the $250 million cut took effect, the UWSystem’s President announced moratoria on non-essential hiring, out-of-state travel, promotions, andnon-statutory raises. See Karen Herzog & PatrickMarley, Scott Walker Budget Cut Sparks SharpDebate on UW System, Milwaukee J. Sentinel (Jan.28, 2015).26 UW-Madison was forced to eliminate420 positions and fire 50 employees in 2016. NicoSavidge, UW-Madison Losing Ground to CompetitorsAmid Budget Cuts, Rebecca Blank Says, Wis. State J.(Sept. 15, 2016).27 UW-Madison Chancellor RebeccaBlank noted that the UW’s flagship campus had“slipped” because it could not serve its faculty orstudents as well as competitors. Id. For example,several departments at UW-Madison have more than500 students per adviser, almost twice the recom-mended number. Id. Over 90% of faculty at UW-Madison reported that the budget cuts had a nega-tive impact on their morale. Ross Terrell, Study:Budget Cuts Is A Top Factor In Declining FacultyMorale At UW-Madison, Wis. Pub. Radio (Apr. 7,
2017).28 Faculty began leaving the UW System forother universities because budget cuts made it feel“perilous” to remain in Wisconsin. See Kevin Beck-man, Slashed Budgets Push University of WisconsinFaculty to Minnesota, Minn. Daily (Sept. 19, 2016).29
26 Available at goo.gl/jk1aSL.
27 Available at goo.gl/tRJSkr.
28 Available at goo.gl/ewFxSM.
29 Available at goo.gl/2To2w5.
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Thus, far from supporting the Wisconsin Idea, leg-islators have ravaged the UW System’s budget andmade it far more difficult for the System to live up toits mission.
B. The Dismantling of the Non-PartisanGovernment Accountability Board HasSullied Wisconsin’s Reputation as aModel of Good Government.
Wisconsin citizens are proud of their “good gov-ernment” reputation. Since the early 1900s, whenRepublican Governor Robert LaFollette “ushered inan era of reform,” Wisconsinites have come to expect“openness in government and honesty from theirelected officials.” Steven F. Huefner et al., FromRegistration to Recounts: The Election Ecosystems of
Five Midwestern States 111 (2007)30; accord Conant,supra, at 4. One historian suggests this commitmentto good government stems, in part, from the State’sconstitution, which was based, in part, on “the pre-sumption that government has an important, posi-tive role to play in society,” and that “strong popularcontrol over elected officials was to be maintained.”Conant, supra, at 17. State legislators have rein-forced this notion; since 1975, state law declares it“to be the policy of th[e] state that the public isentitled to the fullest and most complete informationregarding the affairs of government as is compatiblewith the conduct of governmental business.” Wis.Stat. § 19.81(1).
The Government Accountability Board (“GAB”) wasone of the most significant recent initiatives to
30 Available at goo.gl/MvLGxz.
24
ensure the integrity of state elections and publicofficials. The GAB was a non-partisan, independentenforcement body established in 2007 with strongbipartisan support to oversee state elections andenforce ethical standards for state officials. TheGAB replaced two prior oversight bodies, the StateElections Board and State Ethics Board, which werecriticized because their members were partisanappointees, resulting in weak oversight. To take thepolitics out of enforcement, members of the GAB hadto be former judges. A candidate committee com-posed of court of appeals judges proposed potentialmembers, and the governor was required to nomi-nate GAB members from this list. Members wereprohibited from engaging in political activities, andwere ineligible if they had engaged in politics in thepast. See Daniel P. Tokaji, America’s Top Model:The Wisconsin Government Accountability Board, 3U.C. Irvine L. Rev. 575, 577-79 (2013).
The creation of the GAB arose out of a series ofpolitical scandals in the early 2000s. See JodiWilgoren, In Wisconsin, Scandal, Outrage andDeficit Churn Up a Storm of Political Change, N.Y.Times (May 19, 2002).31 Legislative leaders of bothparties faced corruption investigations, leading toresignations and extensive negative publicity.Wisconsin residents were “dissatisf[ied] with how thestate’s campaign finance and lobbying rules werebeing enforced,” and “believed that the stateelections and ethics boards had been too lax in theirenforcement.” Huefner, supra, at 115.
31 Available at goo.gl/4zndRH.
25
In 2005, a group of state legislators responded byintroducing bipartisan ethics reform legislation,including creation of the GAB. At the time, however,control of state government was divided—theGovernor was a Democrat, while Republicanscontrolled the Legislature—and the Republicanleadership would not allow the bill to go forward.See Reform Bandwagon is Filling Up Fast, TheSheboygan, Sept. 27, 2006, at 5A. But once the 2006election season began, lawmakers received a clearmessage from Wisconsin voters. Lawmakers incompetitive districts, who had previously opposed thelegislation, campaigned as “ethics reformers.”Patrick Marley & Stacy Forster, Legislators JoinEthics Cause Late; Republicans Who Killed Bill NowUse Issue in Campaigns, Milwaukee J. Sentinel,Sept. 24, 2006, at A1. Democratic challengers“hammered incumbent Assembly Republicans” forstanding in the way of ethics reform. News reportsnoted that “even Republicans who opposed [ethicsreform] this spring have vowed to work toward acompromise.” Mark Pitsch, Real Ethics Reform: ThisTime, They Might Be Serious: Supporters Say theTime is Right to Finally Get a Meaningful BillPassed, Wis. State J., Nov. 26, 2006, at A1.
The result was that Democrats picked up eightseats in the Assembly and won control of the StateSenate. Wis. State Elections Bd., Results of FallGeneral Election (Nov. 7, 2006).32 And responding tothe voters’ message, the Assembly Speaker,Republican Mike Huebsch, who had previouslyblocked the legislation, pledged in a bipartisan
32 Available at goo.gl/toXJHC.
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announcement to pass “major, bipartisan ethicsreform early in 2007.” Press Release, Gov. JimDoyle, Dec. 14, 2006.
Thus, ethics reform legislation, including creationof the GAB, was passed in early 2007, withunanimous Republican support. 2007 Wis. Act 1; see“2007 Wis. Act 1: Roll Call Vote,” Wis. Assemb. J.,Spec. Sess. (Jan. 30, 2007);33 “2007 Wis. Act 1: RollCall Vote,” Wis. S. J., 98th Reg. Sess. (Jan. 30,2007).34 Voices on both sides of the aisle praised thelegislation as a victory for good government. As oneRepublican state representative explained: “This bi-partisan ethics reform package will help restore thepublic’s trust in their elected officials andWisconsin’s reputation for clean, ethicalgovernment.” Press Release, State Rep. Scott Suder,Jan. 3, 2007. Another Republican lawmaker calledthe bill “the most sweeping ethics reform bill inWisconsin history,” noting that “the citizens of thisstate deserve a clean and honest government.” PressRelease, State Rep. Karl Van Roy, Jan. 30, 2007.
The GAB quickly established a reputation for inde-pendence and efficacy. In one of its first actions, theGAB overturned an Ethics Board policy that hadprovided special treatment to state lawmakers.35
33 Available at goo.gl/jyKxZj.
34 Available at goo.gl/4bLm6W.
35 The Ethics Board had allowed state lawmakers who wereattorneys to communicate with state agencies on behalf ofspecial purpose districts that the lawmaker represented inprivate practice. Opponents argued that allowing legislators,acting in their private capacity, to negotiate with state employ-ees whose budgets they controlled in their lawmaker capacitycreated the appearance of impropriety and raised concerns
27
Gov’t Accountability Bd., 2008 GAB 1: Representa-tion of Clients.36 This action was praised as showing“more steel and backbone” than the prior ethicsenforcement agency. Mark Pitsch, Board Comes OutSwinging; New Government Accountability Board isMore Aggressive Than the Board It Replaces, Wis.State J., Apr. 14, 2008, at A1.
The GAB was widely praised as a “worthy model”for other States. See Tokaji, supra, at 607. Oneelections expert wrote in 2011 that the GAB“achieves something that up until now has been ararity in the United States: election administrationthat is independent of partisan politics.” StevenHuefner et al., From Registration to Recounts: Devel-opments in the Election Ecosystem of Five Midwest-ern States (2011) at 43.37 In 2014, the bipartisanPresidential Commission on Election Administration,co-chaired by the former general counsels of thenational Democratic and Republican Parties, citedthe GAB as a “model,” particularly for its work inimproving accessibility to polling places for thedisabled. See Presidential Comm’n on ElectionAdmin., The American Voting Experience: Report andRecommendations 52 (Jan. 2014).38 Researchersfound in 2014 that Wisconsin had “dramaticallyimproved its [election] data reporting between 2008and 2012,” and had the second highest voter partici-
about potential special treatment. The GAB voted to bar thepractice.
36 Available at goo.gl/BYTAjP (last visited Sept. 5, 2017).
37Available at goo.gl/pZFXkL.
38 Available at goo.gl/DKXQdB.
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pation rate in the nation. The Pew Charitable Trs.,
The Elections Performance Index 2012 (Apr. 2014);39
The Pew Charitable Trs., Wisconsin Elections Per-
formance Index (Apr. 2014).40
Despite overwhelming Republican support just afew years earlier, however, starting in 2011, theRepublican-controlled Legislature “waged war” onthe GAB. Patricia Simms, Wisconsin get D grade in2015 State Integrity Investigation, Ctr. for Pub.
Integrity (Nov. 9, 2015).41 What changed? By virtueof their election victory in 2010 and their completecontrol of the Legislature and Governor’s office,Republican legislators knew they would be insulatedfrom political consequences by their ability to controlthe redistricting plan. See J.S. App. 18a.
In 2015, the Legislature took the ultimate step ofseeking to disband the GAB, a move widely believedto be “partisan ‘payback’ for investigations in whichthe GAB was involved.” See Sen. Kathleen Vinehout,Putting Political Parties Back in Charge of Elections
and Ethics? (Oct. 14, 2015).42 One of the six retiredjudges to serve on the GAB called the action “a greatstep backwards.” Dave Zweifel, Plain Talk: NextNovember, Remember Who Butchered GoodGovernment In Wisconsin, Capital Times (Nov. 18,
2015).43 The chair of the GAB, another retired judge,
39 Available at goo.gl/xHchB7.
40 Available at goo.gl/SVW2fb.
41Available at goo.gl/oaw5Xr.
42 Available at goo.gl/z54LuF.
43 Available at goo.gl/v861tC.
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testified against dismantling the GAB at an Assem-bly hearing. Wis. State Leg., Record of CommitteeProceedings (2015).44 The Capital Timescharacterized the behavior of legislators asequivalent to “drunken sailors on shore leave” intheir reckless exercise of raw power. “Only problemis, it’s our government and our historic safeguardsthat are being smashed.” Zweifel, Next November,Remember, supra. One citizen, a retired Milwaukeepublic school teacher, sent open records requests toeach Republican legislator asking for copies ofcommunications from constituents regarding theproposed legislation. Though not all such requestswere fulfilled, the responses showed more than 2,500communications in support of the GAB and only 189against—i.e., more than 90% in favor of preservingthe GAB. See Dave Zweifel, Plain Talk: We, ThePeople? No. We, The Irrelevant, Capital Times (Dec.
24, 2015).45
Nevertheless, in early 2016 legislation to dismantlethe GAB was enacted, on a “nearly party-line” vote.2015 Wis. Act 188; see Patrick Marley & Jason Stein,Assembly Approves Splitting GAB into Elections andEthics Agencies, Milwaukee J. Sentinel (Oct. 21,2015).46 The GAB ceased to exist on June 30, 2016,and was replaced by a “weak and politicallyconnected commission,” that allows “lawmakers [to]have a bigger role in the agency charged withregulating them, with authority over the majority ofthe commissions’ appointees and its funding for
44 Available at goo.gl/EGPqYT.
45 Available at goo.gl/QNJwXX.
46 Available at goo.gl/Nz6BDP.
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investigations.” Katelyn Ferral, As the GovernmentAccountability Board Ends, What’s the Future forWisconsin Campaign Finance Regulation?, CapitalTimes (June 20, 2016)47; State Ethics Panel Gets
First Big Vote, Wis. State J. (Aug. 28, 2016).48
Wisconsin legislators took this action despite thefact that “62% of those polled . . . said the boardshould remain an independent and impartial boardof judges.” Sen. Lena Taylor, GAB’s Obituary,Milwaukee Courier, July 2, 2016. The formerExecutive Director of the GAB explained why theGAB was dismantled: “The people in power did notlike being held to account.” Scott Bauer, State’sNonpartisan Election Board Ends; Two PartisanBoards Will Replace the 8-Year-Old Experiment;Elections Oversight New Entity Advised to ‘Followthe Law,’ Wis. State J., June 27, 2016, at A3. Andjust months after the GAB was replaced (in part) bythe Wisconsin Ethics Commission, one of the judgesnewly appointed to that Commission “resigned indisgust,” stating that the agency was “ill-suited to itsmission of ensuring clean government” and that thesystem “almost guarantees” that investigations offinancial and ethical improprieties will not occur.Jason Stein, Wisconsin Ethics Commissioner Resigns
in Disgust, Milwaukee J. Sentinel (Dec. 12, 2016).49
47 Available at goo.gl/rNIOzP.
48 Available at goo.gl/E4VpJX.
49 Available at goo.gl/v0cZrp.
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C. Extreme Policies Enacted Since theRedistricting Plan Have TarnishedWisconsin’s Strong Bipartisan Traditionof Natural Resources Conservation andEnvironmental Protection.
Historically, Wisconsin has been practically synon-ymous with environmental conservation. John Muir,the renowned naturalist, spent his formative years inWisconsin and studied at UW-Madison. The fatherof American wildlife ecology, Aldo Leopold, settled inWisconsin in 1924 and published the first textbookon wildlife management in 1933. Gaylord Nelson—the former Wisconsin governor and U.S. senator—founded Earth Day in 1970.
For decades, there has been a bipartisan commit-ment in Wisconsin to environmental protection andconservation of its abundant natural resources.During the 1970s, Wisconsin politicians and “themajority of the state’s citizens supported the nationalgovernment’s efforts to reduce air and water pollu-tion.” Conant, supra, at 293. In the 1980s, “the stateactively cooperated with the national government inefforts designed to reduce the risks that hazardouswastes posed for human health.” Id. Republicans,including former Governor Thompson, worked closelywith Democrats to enact historic legislation, like1989 Wisconsin Act 31, which created the LowerWisconsin State Riverway to help protect the naturalbeauty and ecological health of the 95,893 acreswithin the Riverway’s boundaries. See Lower Wis.
State Riverway Bd., Welcome.50 As recently as 2008,with control of the Legislature split between the
50 Available at goo.gl/PSYfGz (last visited Sept. 5, 2017).
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parties, legislators almost unanimously passed, afterlengthy negotiations and compromise, legislationimplementing the historic Great Lakes Compact, acompact between eight States and two Canadianprovinces to protect and manage the waters of theGreat Lakes basin. See 2007 Wis. Act 227.
Wisconsinites still “expect state (and local) gov-ernment to manage the state’s natural resourcescarefully and to protect the environment vigilantly.”Conant, supra, at 4, 17. Over the years, Wisconsinhas earned its reputation as a sportsman’s paradisebecause of the State’s bipartisan efforts to preserveits natural beauty and conserve its wildlife andresources.
Yet this bipartisan tradition is now endangered,largely due to the extreme policies adopted by theLegislature since the 2011 redistricting plan rewiredWisconsin’s politics. Wisconsin legislators haveundermined the Wisconsin Department of NaturalResources (“DNR”), loosened rules designed to curbpollution, made it easier to endanger wetlands, andadopted policies that threaten the State’s wildlife.See Steven Verburg, Scott Walker, Legislature Alter-ing Wisconsin’s Way of Protecting Natural Resources,Wis. State J. (Oct. 4, 2015)51 (“Protecting NaturalResources”). The Legislature has done so much toundercut Wisconsin’s protections for natural re-sources that one retired Republican state senatorexclaimed: “‘I think what’s going on is appalling . . . .I’m a pretty pro-business Republican. But a cleanenvironment is essential to business. This is justwholly unacceptable.’” Siri Carpenter, How Scott
51 Available at goo.gl/NxWmHd.
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Walker Dismantled Wisconsin’s EnvironmentalLegacy, Sci. Am. (June 17, 2015)52 (quoting formerSenator Dale Schultz). Though Wisconsin facesmany conservation and environmental dilemmasbecause of the post-redistricting policies adopted bythe Legislature, three are particularly worrisome:the politicization and weakening of the DNR, theinterference with its efforts to protect clean drinkingwater, and the adoption of legislation that has weak-ened laws regulating mining.
Perhaps the most obvious change has been theincreasing politicization of the DNR, the state agencyresponsible for protecting and managing Wisconsin’s“fish, wildlife, forests, parks, air and water re-
sources.” Dep’t of Nat. Res., About the DNR.53 Whilecampaigning in 2010, Governor Scott Walker calledthe DNR “out of control” and an impediment to jobgrowth. See Verburg, Protecting Natural Resources,supra. Then, in 2011, the Legislature passed a law,Act 21, that gave the governor and legislators “muchgreater control of administrative rules that arewritten by DNR professionals and scientists.” Id.Act 21 limited the DNR’s ability to take rule-making,enforcement, or administrative actions beyond those“explicitly required or explicitly permitted by stat-ute.” 2011 Wis. Act 21 (codified as amended at Wis.Stat. § 227.10 et seq.). Act 21 also authorized thegovernor to issue executive orders to ensure that anynew rules complied with existing statutes. Id.
52 Available at goo.gl/XmrdWx.
53 Available at goo.gl/wNsdNt (last visited Sept. 5, 2017).
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Under this heightened political control, the DNR’senvironmental protection efforts have become lax. In2013, the DNR restructured its advisory committee,cutting university scientists and adding more repre-sentatives from politically influential groups. SeeCarpenter, supra. Whereas the DNR was once“much more forceful in disagreeing with the legisla-ture and making recommendations to improve thelegislation,” it now defers to legislators. Id. (quotingAdrian Wydeven, the former head of the DNR wolfmanagement program under Governor Thompson).DNR scientists are restricted from speaking directlywith lawmakers, and DNR employees complain thatterms like “climate change” have become red flags ingrant proposals. Id.
The Legislature has also slashed financial supportfor the DNR. Since the 1920s, the State’s “commit-ment to . . . natural resource management has alsobeen reflected in the [state] budget.” Conant, supra,at 27. But in recent years, the Legislature hasdramatically reduced the DNR’s budget. GovernorWalker’s 2015–2017 budget proposal called for theremoval of one-third “of all research scientist posi-tions and more than half of all environmental educa-tor positions from the DNR.” Carpenter, supra. Thebudget approved by the Legislature removed 92 DNRemployee positions, including 18 senior scientistswho had previously “guide[d] the work of agencyprogram managers.” Verburg, Protecting NaturalResources, supra. Legislators also “complained about‘controversial’ DNR research on wildlife, mining andclimate change.” Id. The most recent former Secre-tary of the DNR, Cathy Stepp—who was a vocalDNR critic when she served as Republican statesenator, and stepped down as Secretary in August
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2017—admitted that the DNR’s staffing cuts werepolitically motivated:
We’ve seen a pretty sound response from theLegislature during this last budget process onsome things that they saw that happened his-torically in that particular area of the depart-ment that they were unhappy about, and theywanted to send a message to us, (which) is,you know, ‘Get your researchers in better linewith what their constituents are telling them,the legislators,’ and we’re going to do that.
Id. (quoting Secretary Stepp) (alteration in original).
This legislative interference has greatly diminishedthe DNR’s effectiveness. The DNR is now less ableto perform essential functions, including environ-mental enforcement. In 2015, the year of the majorbudget cuts, the fines DNR collected from polluters“plummeted to the lowest level in 30 years.” Cas-sandra Willyard, After Censoring Stories, Gov. ScottWalker Wants to Kill Off Self-funded Outdoors
Magazine, Colum. Journalism Rev. (May 1, 2017).54
The fines imposed on polluters in 2015 decreased astaggering 88% from the year before. Steven Ver-burg, Fines for Pollution Fell to 30-Year Low in 2015,Wis. State J. (May 19, 2016).55 Though GovernorWalker has chalked this up to Wisconsin suddenlyhaving fewer polluters, others—including GeorgeMeyer, a former DNR Secretary appointed by Gover-nor Thompson (and an amicus on this brief)—havequestioned whether an under-staffed DNR is con-
54 Available at goo.gl/PduRbx.
55 Available at goo.gl/FuCwUc.
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ducting adequate inspections. Id. As Mr. Meyer putit, “If you don’t look, you won’t find.” Id. Similarly,the Wisconsin State Journal recently reported thatunder Secretary Stepp, the U.S. EnvironmentalProtection Agency (“EPA”) called the DNR’s effort tocontrol fine-particle air pollution “a failure,” and thatthe State’s non-partisan Legislative Audit Bureaufound that the DNR “failed to enforce its own stand-ards for industrial and municipal water pollution 94percent of the time.” Steven Verburg, SecretaryCathy Stepp Leaving DNR to Join Donald Trump’sEPA (Aug. 30, 2017).56
The Legislature has also undermined the DNR’sefforts to provide Wisconsinites with clean drinkingwater. The EPA recently warned the DNR thatWisconsin’s water quality protections are “inade-quate or out of date.” Verburg, Protecting NaturalResources, supra. An investigation by the WisconsinCenter for Investigative Journalism found that“[h]undreds of thousands” of Wisconsinites are “atrisk of consuming drinking water tainted with sub-stances including lead, nitrate, disease-causingbacteria and viruses, naturally occurring metals andother contaminants.” Ron Seely, Safe, Clean Drink-ing Water Eludes Many Wisconsinites, Minn. Post(Nov. 18, 2015).57
In 2009, researchers found viruses in municipalwater supplies, so state regulators began requiringdisinfection. Id. But two years later, the Legislaturerescinded that rule, with one Republican state repre-sentative calling it “‘an unnecessary and financial
56 Available at goo.gl/jSA9C5.
57 Available at goo.gl/azhQDw.
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bureaucratic burden.’” Id. (quoting Rep. Erik Sev-erson). Researchers later linked the viruses infourteen municipal water systems to “acute gastroin-testinal illness.” Id. But the fallout could have beenmuch worse—according to the DNR, as of 2015, morethan 73,000 Wisconsinites relied on water frompublic systems that did not disinfect. Id.
The redistricting process also paved the way forchanges in mining laws and protections for Wiscon-sin’s wetlands and waterways. In 1998, GovernorThompson signed a bipartisan mining moratoriumlaw that required companies to prove that a sulfideore mine could operate without polluting groundwa-ter or surface waters. 1997 Wis. Act. 171. Yet in2011, Republican policymakers began pushing forconstruction of an iron mine in an economicallydepressed area of northwestern Wisconsin, eventhough it was precluded under state law. StevenVerburg, Gogebic Taconite Says Wisconsin Mine Isn’tFeasible; Cites Wetlands, EPA, Wis. State J. (Feb. 28,2015) (“Gogebic Taconite”)58; see also Bill Leuders,Iron Mine Is Halted, But Battle Scars Remain, Wis.Watch (Mar. 17, 2015).59 The initial effort to enactlegislation to authorize the mine failed. See Assemb.
Bill 426, 2011-2012 Leg. (Wis. 2012).60 But despitewarnings from scientists, the mine’s supporters keptpursuing legislation. See Gogebic Taconite. And thecompany pursuing the mine, Gogebic Taconite,contributed $700,000 to the Wisconsin Club forGrowth, a conservative group supporting Republican
58 Available at goo.gl/MGPKAr.
59 Available at goo.gl/Gz13Ms.
60 Available at goo.gl/T6ZLjB.
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candidates, to improve its prospects. See Leuders,supra; see also Theodoric Meyer, In Wisconsin, DarkMoney Got a Mining Company What It Wanted, ProPublica (Oct. 14, 2014).61
The Legislature ultimately passed a mining dereg-ulation law, which Gogebic Taconite helped to write,in 2013. See Gogebic Taconite. The law, 2013 Wis-consin Act 1, was enacted even though polling sug-gested that over 60% of Wisconsin voters opposed it.See Lee Bergquist, New Poll Shows Majority OpposeMining Bill, Milwaukee J. Sentinel (Feb. 25, 2013).62
Act 1 modified Wisconsin’s mining regulations sothat they only applied to the mining of nonferrousmetals (excluding the proposed iron mine); andprohibited DNR from requiring any wetlands mitiga-tion measures beyond those required under federallaw. 2013 Wis. Act 1 (codified as amended in scat-tered sections of Wis. Stat., including §§ 20, 293,295). Act 1 also allowed mining companies to dumpmining waste in wetlands, streams, and lakes;doubled the area around mines where companiescould permissibly pollute; “and strip[ped] citizens ofthe right to sue mining companies for illegal envi-ronmental damage.” Carpenter, supra. The Legisla-ture passed Act 1 despite the threat it posed to lakes,streams, wetlands and groundwater only 30 milesfrom Lake Superior. See Gogebic Taconite.
In the end, Gogebic Taconite gave up on its Wis-consin project, citing federal wetlands regulations.See Leuders, supra. Thus, the Legislature guttedWisconsin’s mining regulations, and ended up with
61 Available at goo.gl/jN6y9j.
62 Available at goo.gl/1R47aa.
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nothing to show for it. The Legislature’s miningderegulation is yet another disheartening example ofan emboldened political majority—entrenched inpower and protected from electoral consequencesbecause of partisan gerrymandering—taking actioncontrary to Wisconsin’s bipartisan tradition of envi-ronmental protection and conservation.
CONCLUSION
For the foregoing reasons, the judgment of theDistrict Court should be affirmed.
CARY E. ADICKMAN
MADELINE H. GITOMER
HUNTER J. KENDRICK
HOGAN LOVELLS US LLP555 Thirteenth St., NWWashington, DC 20004(202) 637-5600
Respectfully submitted,
IRA M. FEINBERG
Counsel of RecordHOGAN LOVELLS US LLP875 Third AvenueNew York, NY 10022(212) [email protected]
SUSAN M. CRAWFORD
PINES BACH LLP122 West Washington
Avenue, Suite 900Madison, WI 53703
Counsel for Amici Curiae
SEPTEMBER 2017