Posted by Brendan Fischer on February 29, 2012

A federal court will rule in coming weeks on Wisconsin's redistricting plan, after sharply criticizing Republican lawmakers for developing the maps under a veil of secrecy and shutting the public out of the process. Along with voter ID legislation inspired by an American Legislative Exchange Council (ALEC) model, GOP legislators in Wisconsin appear to be reshaping elections for partisan political advantage.

"What could have -- indeed should have -- been accomplished publicly instead took place in private, in an all but shameful attempt to hide the redistricting process from public scrutiny," wrote the three-judge panel in a February 16 order requiring the GOP turn over redistricting documents.

The court is considering whether the Republican maps unconstitutionally dilute the Latino vote, and whether 300,000 voters were unnecessarily moved into and out of districts, thereby delaying when they can vote in a Senate election. The trial, which concluded on Friday, February 24, included testimony about how the maps would negatively impact Latino and African-American voters.

ALEC Role in Shifting Electoral Landscape

The proposed redistricting maps are not the only threat to the voting power of Wisconsin's Latino and African-American populations. Where the GOP maps would weaken the electoral power of minority populations, new voter ID requirements will make it harder for many members of those communities to cast a ballot. Studies show that around half of Latinos and African-Americans in the state do not have a state-issued ID.

The Wisconsin voter ID law, like many of the other states that passed voter ID in 2011, is based off a model from the American Legislative Exchange Council (ALEC). The NAACP has singled out ALEC as the source of the outbreak of voter ID bills that were introduced in 34 state legislatures in 2011, noting that ALEC's founder said "our leverage in the elections quite candidly goes up as the voting populace goes down."

Many of the states that passed ALEC's voter ID laws in the past year did so under Republican-controlled legislatures, with many of those legislative leaders also being ALEC members. And those same states are fighting redistricting battles over maps drawn by those same GOP legislatures.

Might ALEC have also played a role in the redistricting process?*

Mark Braden, former chief counsel to the Republican National Committee (who is now with the law firm Baker Hostetler) gave a presentation on redistricting to members of the Public Safety and Elections Task Force at the December 2010 ALEC meeting, according to documents obtained through open records requests. Wisconsin Senate Majority Leader Scott Fitzgerald is a member of that Task Force and attended the December meeting. Fitzgerald led the redistricting effort in Wisconsin and is the former ALEC state chair.

Also at the December meeting, the corporate and legislative members of the Public Safety and Elections Task Force, including Senator Fitzgerald, approved the creation of a "Redistricting Working Group," to be chaired by Utah Representative Paul Ray.

Vote PolicePrior to the December convening, Senator Fitzgerald and other members of the Task Force received an emailed invitation noting Braden's presentation on redistricting. The email was stamped with an image of a badge that reads "vote police."

A January 20, 2011 email obtained through open records requests shows ALEC invited Fitzgerald to an "ALEC Conference Call on Redistricting."

The call was led by former RNC chief counsel Braden and Utah Rep. Ray, as well as Richard Leadbeater, state government industry manager for ESRI, a corporation that uses GIS technology to develop redistricting maps. Wisconsin has had a contract with ESRI since 2004, and renewed it in late 2010.

"The working group will host a conference call on the potential legal issues of redistricting, as well as the software available to help make the process easier," stated the ALEC email sent to Fitzgerald's office.

Fitzgerald's office said in July that the Senator did not participate in the call. However, Fitzgerald forwarded the ALEC redistricting invitation to his staffer Tad Ottman – one of the two GOP staffers who developed the electoral maps behind closed doors. Calls to Fitzgerald's office confirming Ottman's participation in the conference call have not been returned.

Months after the scheduled conference call, the Wisconsin GOP went on to conduct redistricting in secret, shrouding the process under attorney-client privilege and shutting the public out. It is not known whether ALEC advised its members to use any of these tactics.

"Disinformation, foot-dragging, and obfuscation"

Once every ten years, state legislatures draw new election maps to account for population changes recorded in the latest U.S. Census.

In past decades, courts had largely drawn Wisconsin's maps because no single party controlled state government. In 2011, Republicans controlled the Senate, House, and Governor's mansion, and were in a position to single-handedly draw and approve maps that benefited them (not to mention pass legislation from the ALEC corporate wishlist). However, with six Republican senators facing recall in the state, GOP lawmakers scrambled to draw and pass new maps before the August recall elections potentially returned control of the Senate to Democrats (in the end, the GOP lost two seats but retained a one-vote majority).

"When those meetings ended on July 7th, they had a majority consensus in the legislature to vote for and adopt a secret map that no one had seen – not Democratic legislators, and not the public," said Peter Earle, attorney for Voces de la Frontera, one of the groups bringing the redistricting challenge. Governor Scott Walker signed the electoral maps into law on August 9, 2011, with no input from Democrats and after the legislature held only one public hearing.

In drawing the maps, the GOP hired the law firm Michael Best & Friedrich and held a series of secret meetings at their law offices, apparently in an attempt to protect the redistricting effort from public view and disguise it behind attorney-client privilege.

Once lawsuits were filed over the redistricting maps, the Wisconsin Department of Justice hired the law firm Reinhart Boerner Van Deuren to represent the state. However, Michael Best attorneys continued to represent the GOP legislators, and argued the redistricting process should be kept secret under attorney-client privilege.

That effort was sharply rebuked by the three-judge panel.

The panel issued two orders in December demanding that Republicans turn over nearly all documents related to redistricting, rejecting arguments they were protected by attorney-client privilege. After Republicans and their lawyers continued working to keep the material confidential, on January 3 the court ordered the Michael Best attorneys pay $17,500 in fees for filing frivolous motions. "Quite frankly," the court wrote, "the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the court and the public the true nature of exactly what transpired in the redistricting process." The order goes on to say the court "will not suffer the sort of disinformation, foot-dragging, and obfuscation now being engaged in by Wisconsin's elected officials and/or their attorneys."

In early February, the GOP released multiple documents, but continued to keep around 84 emails confidential. The court again criticized the Republican legislators for "an all but shameful attempt" to keep documents secret, writing: "Without a doubt, the Legislature made a conscious choice to involve private lawyers in what gives every appearance of an attempt—albeit poorly disguised—to cloak the private machinations of Wisconsin's Republican legislators in the shroud of attorney-client privilege."

Those already sharp words are made even more pointed by the fact that two out of the three judges were appointed by Republican presidents.

Republicans Signed Secrecy Pledge

The federal court ordered legislative Republicans and their attorneys to turn over the additional materials. Those documents showed that secrecy not only marked the GOP legal strategy used between December and February, but also the redistricting process itself, which took place months earlier.

According to the documents, Republican legislators signed a pledge of secrecy during last summer's redistricting process and were told to ignore what GOP leaders said publicly about the new election maps. The Republican leadership of the Wisconsin State Senate and Assembly organized secret meetings with nearly every GOP legislator while researching and developing new district maps, and met to discuss the maps behind closed doors at the law offices of Michael Best & Friedrich.

Ottman, the staffer from Senator Fitzgerald's office, and Adam Foltz, a staff member from Assembly Majority Leader Jeff Fitzgerald's office, have been working for several months from the law firm's offices on computers supplied by the firm, starting as the maps were drawn last summer and continuing through February. Ottman and Foltz, who were in charge of drawing the maps, have continued to be paid their taxpayer-funded salaries throughout this period. Legislative staff are prohibited from engaging in partisan political activity while on the state payroll.

17 Republican Senators and 58 Assembly Republicans signed a "Confidentiality and Nondisclosure Related to Reapportionment" statements in May and June of 2011 after discussing the redistricting maps with Foltz and Ottman at the firm. The two staffers also signed confidentiality agreements.

"You almost get the image of a shadowy government," said Assembly Minority Leader Peter Barca (D-Kenosha).

(While ALEC's role in redistricting is not known, it has also been accused of being like a "shadowy government." ALEC members vote on "model" legislation in settings out of the view of the press and public, and the corporate-sponsored laws that come out of those meetings govern the lives of all Americans. As the Center for Media and Democracy has explained, with ALEC, "it is as if a state legislature had been reconstituted, yet corporations had pushed the people out the door.")

"Ignore the Public Comments"

Other documents released by the court order included a memo stating "Public comments on this map may be different than what you hear in this room. Ignore the public comments."

Voces attorney Earle said the record showed GOP lawmakers were being told to ignore what their leaders were saying publicly about the maps, and focus only on what was said in private.

The Capitol Times editorial board wrote: "It is hard to look at this evidence and come away with any conclusion save the obvious one: that Vos led a deliberate effort to deceive the public, violate rules and standards and warp the legislative process for his and his political allies' advantage."

Testimony from GOP staffers Foltz and Ottman shed further light on behind-the-scenes partisan activity.

Foltz testified that he gave the maps to the Republican National Committee before they were passed (and before they were shared with Democrats or the public). Under oath, he insisted that the maps were not drawn to increase partisan electoral advantage.

Ottman testified that, before the maps were shared with legislators from the other party or the public, he contacted Scott Jensen, the disgraced former head of the Assembly who was convicted in 2005 of three felonies for misconduct in office, and banned from the state capitol for five years. (The charges were later reduced on appeal). Jensen now serves as chief lobbyist in the state for the DeVos family's American Federation for Children, and has served as an ALEC task force advisor. The maps were also shared with Jensen.

Attorney Supervising Process Under Scrutiny

Much of the redistricting work was carried out under the supervision of Michael, Best & Friedrich attorney Eric McLeod, and in the law firm's offices. McLeod has recently been under scrutiny because he provided tens of thousands of dollars of free legal counsel to Wisconsin Supreme Court Justice Michael Gabelman. McLeod defended the justice against ethics charges for allegedly lying in a campaign ad. In subsequent cases involving McLeod's law firm, Gableman voted in favor of the firm's clients more often than any other member of the court, including during last year's lawsuit challenging Governor Scott Walker's collective bargaining law. Many have said Gableman's failure to recuse himself from that case, or even to disclose the potential conflict of interest, violated judicial ethics.

McLeod's signature was on each of the secrecy pledges signed by legislative Republicans. He was also one of the Michael Best attorneys ordered to pay a fine (out of his own pocket) for filing frivolous motions in the redistricting lawsuit.

McLeod and his firm have charged the state over $400,000 for their work on redistricting.

Decision Expected in Coming Weeks

Despite the court's criticism of the GOP's redistricting process and legal strategy, the maps themselves, rather than the process used in creating them, are the subject of the trial. The judges twice offered to put the trial on hold so lawmakers could voluntarily redraw the maps, asserting that redistricting should be accomplished by the legislative branch rather than the courts. Democrats were willing to redraw the maps but GOP leaders refused.

On Tuesday, February 21, the court encouraged Republicans to redraw the maps, but the GOP asserted the state constitution prohibited them from doing so. The following day, the court rejected that argument and gave them 5 1/2 hours to decide whether to spend the following weeks making alterations to the maps. Republican leaders again rejected that offer and chose to proceed with trial.

The same day that Republicans voluntarily chose to extend the lawsuit, documents were released showing the Walker administration raised the cap on the amount outside attorneys can be paid for assisting with the redistricting suit. The law firm Reinhart Boerner Van Deuren, which is representing the state, has billed Wisconsin $288,000 so far for its work, and the cap on its contract has been raised from $500,000 to $925,000.

The court plans to issue a written opinion in the coming weeks.


*These paragraphs were updated at 5:40pm with additional information

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.