Republicans ask to subpoena Supreme Court redistricting consultants

The Wisconsin Supreme Court chambers. (Henry Redman | Wisconsin Examiner)

Wisconsin Republicans filed a motion with the state Supreme Court, asking for the authority to subpoena the two independent consultants who earlier this month issued a report that stated proposed legislative maps from Republicans and their allies amounted to “partisan gerrymanders.”

The motion, filed by lawyers for Republican lawmakers and the conservative Wisconsin Institute for Law and Liberty (WILL), states that if justices do not allow the consultants to be subpoenaed, their report should be tossed out.

Late last year, the Court ruled in a 4-3 decision to throw out the existing legislative maps on the grounds that they illegally included districts with noncontiguous territory. The two consultants, University of California, Irvine political scientist Bernard Grofman and Carnegie Mellon University political scientist Jonathan Cervas, were hired by the Court to assess proposed new maps from six groups involved in the lawsuit.

On Feb. 1, Cervas and Grofman released their report , which found that the proposals from Republican lawmakers and WILL amounted to “partisan gerrymanders” because they were drawn in a way to keep Republicans in majority control of the Legislature. The consultants wrote that from a social science perspective, the maps from the Legislature and WILL do “not deserve further consideration” by the Court.

In their motion filed this week, the Republicans argued that the role of the consultants was unclear before their report was released but now it’s clear they served as experts, rather than referees, a distinction that is important to Wisconsin law.

“The role the Consultants are playing is clearer now that the parties have seen their report. It is unmistakably an expert report,” the motion said.

The Republicans claim that as “Court-appointed experts,” state law allows them to be cross examined. Court-appointed referees have different authority under state law. The Republican motion states that if the consultants are considered experts, they should be able to be subpoenaed for documents and depositions, but if they’re considered referees, their report should be tossed out.

This week, the parties in the case also filed responses to the consultants’ report.

In the report, the maps proposed by WILL are called a “stealth gerrymander” because they score well on some of the metrics used by the consultants to assess the maps’ compliance with requirements such as compactness and contiguity while still performing poorly on the metrics used to assess partisan balance.

WILL complained in its response that when the Court accepted the case last year, it chose to focus on the issue of contiguity, not partisan gerrymandering, so rejecting proposed maps because they constitute a partisan gerrymander would be “the ultimate bait-and-switch” and an “egregious due process violation.”

The Court said when it tossed out the maps that it would try to select new maps that were politically neutral. The consultants’ report stated that the four non-Republican maps showed maps could be drawn to comply with all constitutional and legal requirements while also not giving Republicans a permanent majority in the Legislature.

In their response , the Republican legislators said that denying them the ability to subpoena the consultants would invite an appeal of the Court’s decision to the U.S. Supreme Court, adding that at the beginning of the case, the Court said “it would not wade into the political thicket of ‘partisan gerrymandering.’”

The legislators added that the maps were thrown out because of problems with the contiguity of the existing maps, yet the report largely focuses on the partisan skew of the proposed replacements.

“The Consultants have only added to the procedural irregularities that have come to define this case,” the legislators’ response states. “They have given this Court a “partisan gerrymandering” report, not a contiguity report.”

In Gov. Tony Evers’ response , his attorneys state that the report shows the divide in the case between groups seeking to promote democracy and others seeking to promote entrenchment of one party’s control.

“The report from this Court’s neutral consultants reaffirms the clear divide in this case,” Evers’ response states. “It is between proposals like the Governor’s, which comply with constitutional and traditional districting criteria, reduce partisan bias, and promote responsiveness to the vote, and Respondents’ proposals, which are extremely biased and promote entrenchment. As the Governor’s proposals and multiple others demonstrate, it is perfectly possible to draw maps in Wisconsin that both promote democracy and adhere to mandatory and traditional redistricting principles.”

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