Amicus Curiae Brief — Gill v. Whitford, 138 S. Ct. 52 (2017) (No. 16-1161)

SRIERS .

No. 16-1161 ;

a

IN THE

Supreme Court of the United States

BEVERLY R. GILL, et ail.,

Appellants,

v.

WILLIAM WHITFORD, et al.,

Appellees.

——

On Appeal from the

United States District Court for the Western District

of Wisconsin

BRIEF OF AMICI CURIAE LEAGUE OF

CONSERVATION VOTERS ET AL, IN

SUPPORT OF APPELLEES

CARY E. ADICKMAN IRA M. FEINBERG

MADELINE H. GITOMER Counsel of Record

HUNTER J. KENDRICK HOGAN LOVELLS US LLP

875 Third Avenue

550 Thins ew New York, NY 10022

Washington, DC 20004 (2 12) 918-3000

(202) 637-5600 ira.feinberg@hoganlovells.com

SUSAN M. CRAWFORD

PINES BACH LLP

122 West Washington

Avenue, Suite 900

Madison, WI 53703

Counsel for Amici Curiae

———— ecm eo -_

een

WILSON-EPES PRINTING Co., INC — (202) 789-0096 — WASHINGTON, D C. 20002

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TABLE OF AUTHORITIES

STATEMENT OF INTEREST

SUMMARY OF ARGUMENT

TABLE OF CONTENTS

POOR E EEL LEO LE LeeLee eee ee

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I.

IT.

POLITICAL SCIENCE RESEARCH

SHOWS THAT A REAPPORTIONMENT

PLAN WITH A LARGER EFFICIENCY

GAP WILL RESULT IN ADOPTION OF

MORE PARTISAN AND EXTREME

I Saiesisessatannisnasstsntaincenstnneneseniaiannesiess

THE EXPERIENCE IN WISCONSIN

SINCE 2011 DEMONSTRATES THAT

THE LEGISLATURE HAS ADOPTED

MORE PARTISAN AND EXTREME

POLICIES THAT DISREGARD

LONGSTANDING BIPARTISAN

CONSENSUS ON MANY KEY ISSUBG.......

A. Drastic Budget Cuts Have Under-

mined Wisconsin’s Longstanding

Commitment to Public Education .........

1. Reducing Support for K-12

FR TE Keevtesescsnesensccccversescessosee:

2. Cutting Funding for the Universi-

ty of Wisconsin System...............000006-

(1)

15

TABLE OF CONTENTS

Page(s)

B. The Dismantling of the Non-

Partisan Government Accountability

Board Has Sullied Wisconsin’s

Reputation as a Model of Good

i csenione 23

C. Extreme Policies Enacted Since the

Redistricting Plan Have Tarnished

Wisconsin's Strong Bipartisan Tradi-

tion of Natural Resources Conserva-

tion and Environmental Protection.......... 31

EEE scovacescaciveveconesessereotigvoneseosenees sedwoceseoenia 39

(ii)

TABLE OF AUTHORITIES

Page(s)

STATUTES:

Act of June 30, 1906, Pub. L. No. 59-398,

Chapter 3929, § 2, 34 Stat. 805 ........ccccccsccsecesseeeees 3

SE es FOI Te escvcscnscecictectssvindiintacesnemane 31

SE rs Be OP vececcesctrseicintenitisteiinissvmmmauma 18

1993 Wis. Act 437 § 9145(1x)(D) ......ccccecceeeeeeeeee 16, 19

BEE Se CRD BCE ceececsersscessvinsicntansnteietenae 37

Ee Pes: FOE Be cecccvececcscccnssiinveccscsintsstsmaeminuaaanian 16

Ee Pees GRO B cocccesccovecveenasesecivesencontemmmanaaaanan 26

Be Pees GAN Be vrcceseceeccccccceencesescenssaseseneniaaanaeen 32

ES Wes CRUG Te cccseccvisecesovssssstnvetsonienciemmniannnanne 33

SD Ts Bee Be Oe I cocorecccceneccovscdiecsnmmman 19

Ee Pes FB ccicssccnsesccscoviesknsseutsbiactdionnmmanaeeee 38

2013 Wis. Act 20 § 9148 .o...cccccccccccecocsssecsssceeseeseeveee 21

I Pes Fa i rcissasesicccccececsesonecesnbansnaneaae 29

eS DS _ 5 | Reenter nc 24

Warn TUIINe. Ut ti essecescsccecscdodisececosecieserbieeiaoaneeianeaneae 38

Wes Gs Fe Ge cecccccesvessccteriedsvcctnctemmatasiane 20

Wee, Bens. SF EBE.DRMIIIEE) .ccccccsccccossoccosccveccccscents 19

FoR. HR. B Bie ser 00 GUM, sccccccovccececescstoinvesccsesnsinennl 33

Wy BN i nc svc vccsccnecvnonsveesodeesesequasnsanenelannaae 38

Preis MIs Ot itl deviicascvesuscnsnubensosecssosesinibebdanmennnaaan 38

CONSTITUTIONAL PROVISIONS:

Pres SG: GE: TE CII icsccciinccecccsssscvateninctalaianion 15

Pre, Gene Ge. OF... .. .- ccstsceseneentcebenedinceies mame 18

iv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES:

“2007 Wis. Act 1: Roll Call Vote,” Wis.

Assemb. J., Spec. Sess. (Jan. 30, 2007).....

“2007 Wis. Act 1: Roll Call Vote,” Wis. S.

J., 98th Reg. Sess. (Jan. 30, 2007)..............

Stephen Ansolabehere et al., Candidate

Positioning in U.S. House Elections,

45 Am. J. Pol. Sci. 136 (2001).....................

Assemb. Bill 426, 2011-2012 Leg.

ES eee

Scott Bauer, State’s Nonpartisan Election

Board Ends; Two Partisan Boards Will

Replace the 8- Year-Old Experiment;

Elections Oversight New Entity Advised

to ‘Follow the Law,’

Wis. State J. (June 27, 2016)........0.c.c00.00.---

Molly Beck & Matthew DeFour, After

Earlier Cuts, Scott Walker Proposes

Spending Boost for Schools, Wis. State J.

EE

Kevin Beckman, Slashed Budgets Push

University of Wisconsin Faculty to

Minnesota, Minn. Daily (Sept. 19, 2016)...

Lee Bergquist, New Poll Shows Majority

Oppose Mining Bill,

Milwaukee J. Sentinel (Feb. 25, 2013)......

Bureau of Labor Statistics, CP/-All Urban

Consumers (Current Series)......................-

Page(s)

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Siri Carpenter, How Scott Walker

Dismantled Wisconsin’s Environmental

Legacy,

Sci. Am. (June 17, 2015).....................0..6. 32, 34, 38

Devin Caughey et al., Partisan

Gerrymandering and the Political

Process: Effects on Roll-Call Voting and

EEE SL NE 11, 12, 13

James K. Conant, Wisconsin Politics and

Government (2006)................. 15, 16, 23, 31, 32, 34

Dep’t of Nat. Res., About the DNR......................... 33

Katelyn Ferral, As the Government

Accountability Board Ends, What’s the

Future for Wisconsin Campaign Finance

Regulation?,

Capital Times (June 20, 2016) .....................0.000.. 29

Anthony Fowler & Andrew B. Hall,

Long-Term Consequences of Election

Results, 47 Brit. J. Pol. Sci. 351 (2017)............... 13

Andrew Gelman & Gary King, Enhancing

Democracy Through Legislative

Redistricting, 88 Am. Pol. Sci. Rev. 541

Gov't Accountability Bd., 2008 GAB 1:

Representation of Clients ................0.c0ceesece-eeeeeeees 27

Christopher Hare et al., Polarization in

Congress Has Risen Sharply, Where Is It

Going Next?, Wash. Post (Feb. 13, 2014)............ 14

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Karen Herzog & Patrick Marley, Scott

Walker Budget Cut Sparks Sharp Debate

on UW System, Milwaukee J. Sentinel

SRE eet ot Sco 22

Karen Herzog, Wisconsin One of Few

States Taking Up Higher Education

Cuts,

Milwaukee J. Sentinel (May 28, 2015)................ 21

Steven Huefner et al., From Registration to

Recounts: Developments in the Election

Ecosystem of Five Midwestern

RR ERE Oe 27

Steven Huefner et al., From Registration

to Recounts: The Election Ecosystems of

Five Midwestern States (2007) ...................... 23, 24

Samuel Issacharoff, Supreme Court

Destabilization of Single-Member Districts,

1995 U. Chi. Legal F. 205 (1995)........................... 9

Russ Kava & Layla Merrifield, State Aid

to School Districts,

Wis. Legislative Fiscal Bureau

Russ Kava & Rick Olin, Local Government

Expenditure and Revenue Limits,

Wis. Legislative Fiscal Bureau

NIE a 18, 19

David S. Lee et al., Do Voters Affect or

Elect Policies? Evidence from the U.S.

House,

i Se renee 13

vl

TABLE OF AUTHORITIES—Continued

2 Legislative Fiscal Bureau, Comparative

Summary of Budget Recommendations

aD stcunsdtentasnaesnentneinpetitadtototasmeecccsres

Bill Leuders, Jron Mine Is Halted, But

Battle Scars Remain, Wis. Watch

ROS RCE a ea

Lower Wis. State Riverway Bd., Welcome....

Patrick Marley & Stacy Forster,

Legislators Join Ethics Cause Late;

Republicans Who Killed Bill Now Use

Issue in Campaigns,

Milwaukee J. Sentinel (Sept. 24, 2006) .....

Patrick Marley & Jason Stein, Assembly

Approves Splitting GAB into Elections

and Ethics Agencies,

Milwaukee J. Sentinel (Oct. 21, 2015).......

Theodoric Meyer, In Wisconsin, Dark

Money Got a Mining Company What It

Wanted,

Pro Publica (Oct. 14, 2014).................000000..

Richard G. Niemi & Simon Jackman,

Bias and Responsiveness in State

Legislative Districting, 16 Legis. Stud.

Be icincitenccsesiecccisnascateencntnenummeccecs

Mark Pitsch, Board Comes Out Swinging;

New Government Accountability Board is

More Aggressive Than the Board It

Replaces,

Wis. State J. (Apr. 14, 2008)...........ccccce00-.

Page(s)

vill

TABLE OF AUTHORITIES—Continued

Mark Pitsch, Real Ethics Reform: This

Time, They Might Be Serious: Supporters

Say the Time is Right to Finally Get a

Meaningful Bill Passed,

Wis. State J. (Nov. 26, 2006) ..................00..

Press Release, Gov. Jim Doyle,

ee inainctintichincansidanincinnpussscspeecenceen

Press Release, State Rep. Karl Van Roy,

ETS Se ee

Press Release, State Rep. Scott Suder,

SEES EIS CA ae ”

Reform Bandwagon is Filling Up Fast,

The Sheboygan (Sept. 27, 2006).................

Steve Rundio, Scott Walker visits Tomah,

po eee

Steven Salzberg, Scott Walker Takes $250

Million From U. Wisconsin, Gives $250M

To Billionaire Sports Team Owners,

Pe Bete i eeeccscvusscsacnccsvcesevencces

Nico Savidge, UW-Madison Losing

Ground to Competitors Amid Budget

Cuts, Rebecca Blank Says, Wis. State J.

i IE SE ricticsrencicnusicnnensicepeomenaticncncese

Luke Schaetzel, Just How Much Has the

UW System Lost Since 2011?,

Observatory (Nov. 9, 2016) .................00.0.00

Ron Seely, Safe, Clean Drinking Water

Eludes Many Wisconsinites,

Minn. Post (Nov. 18, 2015) .....................06.

Page(s)

ix

TABLE OF AUTHORITIES—Continued

Boris Shor & Nolan McCarty, The Ideolog-

ical Mapping of American Legislatures,

105 Am. Pol. Sci. R. 530 (2010) .................

Patricia Simms, Wisconsin get D grade in

2015 State Integrity Investigation, Ctr.

for Pub. Integrity (Nov. 9, 2015)................

State Ethics Panel Gets First Big Vote,

Wis. State J. (Aug. 28, 2016) ..............0000...

Jason Stein, Wisconsin Ethics

Commissioner Resigns in Disgust,

Milwaukee J. Sentinel (Dec. 12, 2016)......

Nicholas O. Stephanopoulos, The Causes

and Consequences of Gerrymandering

SD Ses I tnceneccuscnssnndestimninetineannneacessves

Nicholas O. Stephanopoulos & Eric M.

McGhee, Partisan Gerrymandering and

the Efficiency Gap, 82 U. Chi. L. Rev.

SRE Ge onnccsescsentensonnssensensnssceunecessesscecesoss

Sen. Lena Taylor, GAB’s Obituary,

Milwaukee Courier, July 2, 2016..............

Ross Terrell, Study: Budget Cuts Is A Top

Factor In Declining Faculty Morale At

UW-Madison, Wis. Pub. Radio

NG Cap I icinsciccsccckscrintensiacinensecessanscestess

Presidential Comm'n on Election Admin.,

The American Voting Experience: Report

and Recommendations (Jan. 2014) ...........

The Pew Charitable Trs., The Elections

Performance Index 2012 (Apr. 2014).........

Page(s)

x

TABLE OF AUTHORITIES—Continued

Tommy Thompson, Government-—

University Collaboration at the Root of

The Wisconsin Idea, Capital Times

Ses A SE i rcacecerescnesvenecuscsemnenensicssorescossoees

Daniel P. Tokaji, America’s Top Model:

The Wisconsin Government

Accountability Board,

3 U.C. Irvine L. Rev. 575 (2013).................

U.S. Census Bureau, Per Pupil Current

Spending (PPCS) Amounts and One-

Year Percentage Changes fc *°PCS of

Public Elementary-Seconda: , School

Systems by State: Fiscal Years 2007-

2012 (May 22, 2014).............ccccceccseeeceeeeceeees

Univ. of Wis., The Wisconsin Idea.................

Steven Verburg, Fines for Pollution Fell to

30-Year Low in 2015,

Wis. State J. (May 19, 2016)..................000

Steven Verburg, Gogebic Taconite Says

Wisconsin Mine Isn't Feasible; Cites

Wetlands, EPA Wis. State J.

I I IE cnsnnsintesnsantepvescncsonvensccsbosassonsece

Steven Verburg, Scott Walker, Legislature

Altering Wisconsin’s Way of Protecting

Natural Resources,

Page(s)

...d7, 38

Wis. State J. (Oct. 4, 2015).......... 32, 33, 34, 35, 36

Steven Verburg, Secretary Cathy Stepp

Leaving DNR to Join Donald Trump’s

I icicsnsccncstsassensseadiensoccsess

xi

TABLE OF AUTHORITIES—Continued

Page(s)

Sen. Kathleen Vinehout, Putting Political

Parties Back in Charge of Elections and

Sa Te a csnnnnsonnennnencs 28

Scott Walker Takes $250 Million From

U. Wisconsin, Gives $250M To

Billionaire Sports Team Owners, Forbes

ace cae ncaa cansgeinnbnneouens 21

Samuel S.-H. Wang, Three Tests for

Practical Evaluation of Partisan

Gerrymandering,

GS BOMM. Le. MOV. 1BSS (BOG) .cccccccccccccccesccccscccscccess 9

Jodi Wilgoren, Jn Wisconsin, Scandal,

Outrage and Deficit Churn Up a Storm

of Political Change, N.Y. Times (May 19,

a ss 24

Cassandra Willyard, After Censoring Sto-

ries, Gov. Scott Walker Wants to Kill Off

Self-Funded Outdoors Magazine, Colum.

Journalism Rev. (May 1, 2017).................00.000c0005 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

HEISE FL EAE ELIS 2 19

Wisconsin Elections Performance Index,

The Pew Charitable Trs. (Apr. 2014).................. 28

Wis. State Elections Bd., Results of Fall

General Election (Nov. 7, 2006).................666. 25, 28

Wis. State Leg., Record of Committee

Tani csicnsnthascpeegubbayncusesopsetbosineness 28

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Dave Zweifel, Plain Talk: Next November,

Remember Who Butchered Good

Government In Wisconsin,

Capital Times (Nov. 18, 2015)...............0000.0.. 28, 29

Dave Zweifel, We, The People? No. We, The

Irrelevant, Capital Times (Dec. 24, 2015)........... 29

IN THE

Supreme Court of the United States

No. 16-1161

BEVERLY R. GILL, et ai.,

Appellants,

V.

WILLIAM WHITFORD, et ail.,

Appellees.

On Appeal from the

United States District Court for the Western District

of Wisconsin

BRIEF OF AMICI CURIAE LEAGUE OF

CONSERVATION VOTERS ET AL. IN

SUPPORT OF APPELLEES

STATEMENT OF INTEREST'

The League of Conservation Voters, National Edu-

cation Association, Wisconsin Education Association

Council, League of Women Voters of Wisconsin, Dr.

Anthony Evers and George Meyer respectfully sub-

! No party or counse) for a party authored this brief in whole

or in part. No party, counsel for a party, or person other than

amici curiae, their members, or their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. The parties have filed letters with the

Clerk granting blanket consent to the filing of amicus curiae

briefs in this case.

(1)

2

mit this brief as amici curiae in support of Appellees.

Amici are organizations and individuals who closely

monitor Wisconsin elections and government and are

greatly concerned by the adverse impact of the

partisan gerrymandering engineered by the State

Legislature in 2011. As the court below found, Act

43 deliberately apportioned districts for State Senate

and Assembly elections in a way that both guaran-

tees that Republicans control the Legislature in

numbers that far exceed their actual support among

Wisconsin voters and has entrenched that control for

nearly a decade. Amici have seen the dramatic effect

on political life in Wisconsin, as the gerrymandering

has enabled the Legislature to pursue a narrow

partisan agenda that has undermined values and

policies long held by a bipartisan majority of Wiscon-

sin voters.

The League of Conservation Voters (“LCV”) is a

non-profit environmental advocacy organization with

more than two million members throughout the

United States, including more than 58,000 members

in Wisconsin, and has partner organizations in

twenty-nine States including Wisconsin. LCV advo-

cates for sound environmental law and policies, and

works to elect pro-environment candidates who will

champion clean energy, air and water issues irre-

spective of party affiliation.

The National Education Association (“NEA”) is a

nationwide organization representing more than 3

million elementary and secondary teachers, higher

education faculty, education support professionals,

school administrators, retired educators, and stu-

dents preparing to become educators. Chartered by

an Act of Congress in 1906 “to elevate the character

and advance the interests of the profession of teach-

3

ing, and to promote the cause of education in the

United States,” Act of June 30, 1906, Pub. L. No. 59-

398, ch. 3929, § 2, 34 Stat. 805, NEA’s interest in this

litigation stems from its concern that extreme parti-

san gerrymandering has eroded a longstanding

bipartisan 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 whose

membership includes over 34,000 teachers and other

employees employed by public school districts in

Wisconsin. WEAC’s purpose is to promote the inter-

ests of public education, the teaching profession and

the welfare of members of the collective bargaining

units that are affiliates of WEAC. The issues pre-

sented in this case are of special concern to WEAC

members because the partisan gerrymandering has

led to dramatic cutbacks in support for public educa-

tion in Wisconsin.

The League of Women Voters of Wisconsin (“the

League”) is a non-partisan organization that advo-

cates for citizens’ rights to informed and active

participation in government. The League has advo-

cated for reforms to ensure that Wisconsin voting

districts are drawn on a non-partisan basis since

1981. The League also strongly supports: legislative

efforts 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 healthy

physical environment.

Dr. Anthony Evers is the Superintendent of Public

Instruction of the State of Wisconsin, a statewide

elective office charged with supervising public educa-

4

tion. He was elected to that non-partisan position in

2009 and has been re-elected twice, in 2013 and

2017. 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 advancing

public education in Wisconsin. He is also an ex

officio member of the state university's Board of

Regents. As the non-partisan guardian of the state’s

public educational institutions, Dr. Evers is aware of

the adverse impact of the State’s declining commit-

ment to K-12 and higher education on Wisconsin’s

longstanding tradition of excellence in education.

Dr. Evers has recently announced his candidacy for

Governor of Wisconsin in 2018, as a Democrat.

George Meyer is the Executive Director of the Wis-

consin Wildlife Federation, a conservation group

dedicated to the protection of Wisconsin’s fish and

wildlife habitat for the benefit of Wisconsin hunters

and fishermen. Before taking that position in 2003,

Mr. Meyer worked for thirty-two years at the Wis-

consin Department of Natural Resources. He was

appointed as Secretary (or head) of the Department

of Natural Resources by the state Natural Resources

Board in 1993, was re-appointed by Republican

Governor Tommy Thompson in 1995, and served in

that capacity until 2001. Mr. Meyer is greatly con-

cerned that the actions of the gerrymandered Legis-

lature in recent years have undermined longstanding

state conservation policies and disregarded what had

been a bipartisan consensus in favor of protecting

Wisconsin’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 redistricting

plan that intentionally imposed a severe impediment

on the effectiveness of the votes of Democratic voters.

J.S. App. 3a, 126a-177a. The District Court ex-

plained that its conclusion on the discriminatory

effect of the reapportionment was “bolstered” by

plaintiffs’ evidence demonstrating a sizeable “effi-

ciency gap.” Id. at 159a.

The “efficiency gap” is a simple tool for measuring

the extent of partisan bias in a reapportionment

plan, 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 votes

cast in a winning race in excess of the number neces-

sary to win—to the other party's. The size of the

efficiency gap after redistricting thus illustrates the

degree to which the gerrymander has successfully

diminished the effectiveness of the other party's

votes.

This brief focuses on one of the most pernicious

effects of a partisan gerrymander: that it results in

the adoption of state policies that are more partisan

and extreme than the broad middle of voters would

support. Appellants’ brief (at 50), relying on the

dissenting opinion of Judge Griesbach in the District

Court, argues that a Republican legislator in a swing

district will adopt more moderate, centrist positions

than a Republican in a safe district. But this easy

reassurance is of no relevance in assessing the effect

of a partisan gerrymander. The goal of a partisan

gerrymander—and the goal of the Wisconsin Legisla-

ture here—was to modify the composition of as many

districts as possible so as to favor Republicans and

create 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 Democratic

constituents, or even the more moderate voices in

their own party. Political science research has

shown that these legislators will toe the party line

regardless of the ideological midpoint of their con-

stituency, and that, with their partys majority

secure, legislators will support more partisan policies

that 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 more

partisan and extreme than the State’s median voter

supports. This research also shows that the conven-

tional wisdom relied upon by Appellants—that

legislators from swing districts will gravitate to-

wards the center—is mistaken. On the contrary,

even in districts where the margin of victory was

very small, analysis shows that there is a vast differ-

ence in the voting records of the elected representa-

tives, depending upon whether the Democrat or

Republican came out on top.

This brief will go on to show that, in fact, the adop-

tion of more partisan and extreme policies is exactly

what has happened in Wisconsin: since the adoption

of the State’s redistricting plan in 2011, the

longstanding bipartisan consensus on many state

policies has been upended and replaced with parti-

san policies that are not supported by the Wisconsin

public at large.

We explore in detail four examples, though there

are many others that could be pursued if space

permitted. First, in education, Wisconsin has long

7

prided itself on its strong support for K—12 public

education, under both Republican and Democratic

leadership. In the 1990s, Republican Governor

Tommy Thompson pledged that the State would

provide two-thirds of the funding for public schools.

That strong commitment to public education has

been the standard for Wisconsin ever since, leading

to one of the best public school systems in the coun-

try. But since the reapportionment, state support for

the public schools has been cut dramatically. State

legislators have even restricted the ability of local

governments to raise additional money to support

their public schools, even when citizens of those

localities attempt to raise their own taxes to pay for

it.

Second, the effect of the gerrymandering on the

University of Wisconsin system has also been dra-

matic. The University of Wisconsin system has long

been one of the State’s crown jewels, and central to

the “Wisconsin idea,” that the state university sys-

tem exists to serve all state citizens and to benefit

their lives far beyond the classroom. But since 2011,

the Legislature has dramatically cut funding for the

university system, even though up to 70% of state

citizens opposed these budget cuts. The result has

been devastating: hundreds of positions have been

cut, faculty members have left for other universities,

and even the Chancellor of the University’s Magship

campus in Madison has had to admit that the quality

of that campus has “slipped.”

Third, Wisconsin citizens have long been proud of

their State’s well-deserved reputation for good, clean

state government, ever since the era of Republican

Governor Robert LaFollette a hundred years ago. As

recently as 2007, the bipartisan consensus in support

8

of clean government led to creation of the Govern-

ment Accountability Board, a non-partisan panel of

former state judges to oversee state elections and the

ethics of public officials. The Government Accounta-

bility Board was popular and effective, and hailed as

a “worthy model” for other States. But despite this—

and despite overwhelming Republican support just a

few years earlier—the gerrymandered Legislature

dismantled the Board in 2016, replacing it with two

much weaker commissions, composed of openly

partisan members, to oversee public officials’ ethics

and elections.

Finally, Wisconsin residents have always treasured

the State’s natural resources and wildlife, and there

has long been strong bipartisan support for environ-

mental protection and conservation to benefit all

forms of outdoor recreation. But this bipartisan

consensus has been ripped asunder since the reap-

portionment. The State’s Department of Natural

Resources has been underfunded and subjected to

political interference. The Legislature also passed a

mining 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 to

address pollution, reduced protections for Wiscon-

sin’s rivers and lakes, and undermined policies

intended to protect the State’s wildlife and natural

resources, despite broad popular support for these

conservation policies.

9

ARGUMENT

I. POLITICAL SCIENCE RESEARCH SHOWS

THAT A REAPPORTIONMENT PLAN WITH

A LARGER’ EFFICIENCY GAP WILL

RESULT IN ADOPTION OF MORE

PARTISAN AND EXTREME POLICIES.

“Computer technology has evolved dramatically to

the point that . . . actors are able to carve ever more

intricate districting patterns that seek to advance a

particular political agenda. ... [T]he new computer

technology allows virtually anyone to redistrict

consistent with general equipopulation principles

and rerun past elections across altered district lines

to determine optimal future arrangements.” Those

words were written twenty-two years ago. Samuel

Issacharoff, 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 Samuel

S.-H. Wang, Three Tests for Practical Evaluation of

Partisan Gerrymandering, 68 Stan. L. Rev. 1263,

1267 (2016) (noting that “even activists and ordinary

citizens can enter the fray,” using free redistricting

software).

With the power to redraw districts with nearly

scientific precision to entrench a party in the legisla-

ture comes the temptation to exercise it. In adopting

Act 43, the Wisconsin Legislature “intended and

accomplished an entrenchment of the Republican

Party likely to endure for the entire decennial peri-

od.” J.S. App. 107a. The drafters of the Wisconsin

redistricting plan used a computer program with

past election data and current demographic infor-

mation to “assess the partisan make-up of the new

10

districts” they were drawing and create a “partisan

score” to project the number of seats Republicans

likely would win under various alternative maps. Jd.

at 17a-18a. The Legislature ultimately adopted a

map that ensured a significant and durable partisan

advantage for Republicans, which “would solidify

Republican control.” Jd. at 128a. In an environment

where a legislature has the intent and capacity, with

such stunning precision,? to redraw districts to

ensure that the party in power stays in power, it is

increasingly important to be able to measure—and

once measured, remedy—the discriminatory effect of

partisan gerrymanders.

The “efficiency gap” is a simple and easily calculat-

ed tool for measuring the discriminatory effect of a

gerrymander. For a given election, it is calculated by

subtracting the “wasted” votes of one party from

those of the other, and dividing by the total number

of votes cast. Jd. at 3la-33a. A “wasted” vote is one

that did not help the chosen candidate win, and

includes all votes for the losing candidate and all

surplus votes for the winner above the minimum

necessary to win. Jd. It stands to reason that if one

can increase an opposing partys wasted votes

through redistricting, the party in power can signifi-

cantly increase the likelihood it will win more seats.

Recent political science research has shown that

when a single party has control over redistricting,

2 The map drawers projected that the map would yield 59

Republican seats in the 99-seat Assembly; in the 2012 election,

it actually yielded 60 Republican seats, J.S. App. 25a, 30a, even

though Republican candidates won less than 50% of the popular

vote statewide.

11

the efficiency gap is significantly increased in that

party's favor. A study of state legislative and con-

gressional elections since 1972 by Professor Nicholas

Stephanopoulos of the University of Chicago Law

School 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 3.5

percentage points when Democrats controlled the

process and pro-Republican increase of 4.5 points

when 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).? See

also, e.g., Richard G. Niemi & Simon Jackman, Bias

and Responsiveness in State Legislative Districting,

16 Legis. Stud. Q. 183, 195 (1991) (state legislative

plans designed by Democrats had average pro-

Democrat bias of 4.1%, while Republican-drafted

maps had average pro-Republican bias of 4.5%);

Andrew Gelman & Gary King, Enhancing Democracy

Through Legislative Redistricting, 88 Am. Pol. Sci.

Rev. 541, 553 (1994)* (unified partisan control pro-

duced 3% bias in state legislative elections in favor of

map-drawing party).

Recent research has evaluated the effect of the

efficiency gap on state policy. Professors Caughey,

Tausanovitch and Warshaw found that large effi-

ciency gaps distort both legislative representation

and 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.

* Available at goo.gl/fJK8zg.

12

(unpublished manuscript) (on file with the Election

Law Journal)5 (“Partisan Gerrymandering’) (years in

which efficiency gap was more pro-Republican than

average “tended to have more conservative roll-call

voting behavior”); id. at 10-11, 12 (Figure 4) (same

correlation for pro-Democratic efficiency gaps, to less

severe extent). Moreover, as the efficiency gap grew

in a more Republican direction, the median ideal

point of the state legislators—i.e., the median point

of legislators’ substantive policy positions—grew

significantly more conservative. Id. at 12-14.

Their research also shows that legislatures whose

redistricting plans are characterized by large effi-

ciency gaps enact more extreme policies. Caughey,

Tausanovitch and Warshaw found that:

[A] pro-Republican EG [Efficiency Gap] shifts

the median state legislator markedly to the

right, whereas a pro-Democratic EG shifts the

median to the left. Analogously, state policies

become more conservative when the EG favors

Republicans and (with less certainty) more

liberal when the EG favors Democrats.

Though smaller than its effects on legislative

medians, the EG’s policy effects are nonethe-

less substantial. Indeed, a one standard devi-

ation change in the efficiency gap has a larger

effect on state policy than a change in the par-

ty of the governor. Overall, these results sug-

gest that partisan gerrymandering has major

consequences 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/iAJY dM.

13

Appellants argue (at 50) that a legislator in a swing

district will align his or her policies with the median

voter in order to win re-election. But the research

shows that this conventional wisdom is mistaken. In

close elections, electing a Republican legislator will

result in more conservative roll-call voting, and

electing a Democrat more liberal voting—legislators

do not gravitate toward the center as Appellants

argue. See Caughey et al., Partisan Gerrymandering

11; accord Anthony Fowler & Andrew B. Hall, Long-

Term Consequences of Election Results, 47 Brit. J.

Pol. Sci. 351 (2017)®; David S. Lee et al., Do Voters

Affect or Elect Policies? Evidence from the U.S.

House, 119 Q. J. Econ. 807 (2004)’ (finding that

winning an election by a smaller margin does not

result in more moderate policies); Boris Shor &

Nolan McCarty, The Ideological Mapping of Ameri-

can Legislatures, 105 Am. Pol. Sci. R. 530 (2011).® In

other words, legislators will toe the party line even

where 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., Partisan

Gerrymandering 6-8 (showing party affiliation’s

effect on roll-call voting and state policy). Other

studies show that legislators now trim much less

toward the center, even in marginal districts, than

they did in the mid-twentieth century. See Stephen

Ansolabehere et al., Candidate Positioning in U.S.

House Elections, 45 Am. J. Pol. Sci. 136 (2001)°; see

8 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).'!° Appellants offer no

political science research to support their position,

because there is none.

Given the technological advances that have made it

ever easier to produce a partisan advantage, recent

decades have seen a massive increase in the magni-

tude of efficiency gaps in redistricting plans. See

Nicholas O. Stephanopoulos & Eric M. McGhee,

Partisan Gerrymandering and the Efficiency Gap, 82

U. Chi. L. Rev. 831, 876 (2015); see also SA 227.

Thus, the research shows that in redistricting

plans characterized by large efficiency gaps, the

party in power will translate votes to seats in the

legislature more efficiently, win more seats, and

enact more polarized policies. Given the recent

tendency for redistricting plans to result in higher

efficiency gaps, the trend of legislators in swing

districts declining to conform their voting to the

median voter, and the resulting more extreme poli-

cies that disregard the voters of the other party, it is

more urgent than ever for this Court to address the

kind of blatant effort to disenfranchise the voters of

the other party that the District Court found here.

10 Available at goo.gl/uUWsfy.

15

Il. THE EXPERIENCE IN WISCONSIN SINCE

2011 DEMONSTRATES THAT THE LEG-

ISLATURE HAS ADOPTED MORE

PARTISAN AND EXTREME POLICIES

THAT DISREGARD LONGSTANDING

BIPARTISAN CONSENSUS ON MANY KEY

ISSUES.

The experience in Wisconsin since the 2011 reap-

portionment fully bears out the prediction of these

academic researchers: on issue after issue, the

gerrymandered legislature has adopted highly parti-

san policies that disregard a longstanding bipartisan

consensus and are not supported by the broad major-

ity of Wisconsin voters.

A. Drastic Budget Cuts Have Undermined

Wisconsin’s Longstanding Commitment

to Public Education.

The policies enacted by the Wisconsin Legislature

since 2011 have resulted in a dramatic shift in

education policy and priorities. Legislators have

abandoned long-held bipartisan values concerning

both the Kindergarten through Twelfth Grade (K—

12) public schools and the University of Wisconsin

system.

1. Reducing Support for K-12 Public Schools

Wisconsin has long prided itself on its “extraordi-

nary commitment” to K-12 public education. James

K. Conant, Wisconsin Politics and Government 28

(2006). In 1848, voters ratified the State’s first

constitution, including an article explaining the

responsibilities of state and local governments to

educate their children. Wis. Const. art. X (1848).

Wisconsin has made education a budget priority

since 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 of

substantial budget cuts that have weakened the

State’s public education system. These budget cuts

not only reduced overall funding for public schools,

but abandoned a bipartisan policy to fund the public

schools mainly through state, rather than local,

contributions.

Historically, public education funding has been a

bipartisan priority in Wisconsin. In the 1990s,

Republican Governor Tommy Thompson pledged

that the State would provide two-thirds of the fund-

ing for K-12 public schools. This pledge was enacted

into law with bipartisan support. 1993 Wis. Act 437

§ 9145(1x)(b). This pledge aimed to provide adequate

per-pupil public education funding, while holding the

line on local property taxes. From the pledge’s

implementation in 1996 until its repeal in 2003, the

State’s share of K-12 funding remained at 66%.

Russ Kava & Layla Merrifield, State Aid to School

Districts, Wis. Legislative Fiscal Bureau (Jan.

2007).1!

Although the Legislature formally repealed the

pledge in 2003, 2003 Wis. Act 33, the two-thirds

funding pledge remained popular in Wisconsin.

During his successful 2010 campaign for Governor,

Scott Walker declared “it would be an aim” to restore

state funding to two-thirds. Steve Rundio, Scott

Walker visits Tomah, Tomah J. (Sept. 8, 2010).}2

'! Available at goo.gl/LI ,y78.

12 Available at goo.gl//QM4Qoz.

17

However, following the partisan gerrymander in

2011, the Republican-controlled Legislature, with

Governor Walker’s support, drastically cut funding

for K-12 public schools. Wisconsin’s 2011—2013

budget cut $792 million from aid to local K-12

schools. 2 Legislative Fiscal Bureau, Comparative

Summary of Budget Recommendations 539 (Aug.

2011).'3 The State’s share of K-12 funding dropped

below 62%. Id. Per pupil spending in 2011—2012

dropped by 6.2% from 2010-2011, representing the

largest per-pupil spending cut in the nation. The

previous four years had seen increases of 2.6% to 4%.

U.S. Census Bureau, Per Pupil Current Spending

(PPCS) Amounts and One-Year Percentage Changes

for PPCS of Public Elementary-Secondary School

Systems by State: Fiscal Years 2007-2012 (May 22,

2014).'4

Although Governor Walker recently released a

proposed budget increasing state K-12 education

funding, see Molly Beck & Matthew DeFour, A/ter

Earlier Cuts, Scott Walker Proposes Spending Boost

for Schools, Wis. State J. (Feb. 6, 2017),!5 the pro-

posed increases are grossly insufficient to make up

the ground lost with the 2011 cut.!®

8 Available at goo.gl/b2Xs9R.

4 Available at goo.gl/mmb3T7.

'5 Available at goo.gl/Ua4E6v.

16 Some of the legislative actions discussed in this brief took

place during the Legislature’s 2011 session, before legislators

were elected under the 2011 reapportionment plan, first used in

2012. However, work on the plan began in January 2011, and

the first maps were drafted by April. J.S. App. 12a-l14a. Act 43

was 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 can

raise for K-12 education. The state government's

obligation to make substantial financial contribu-

tions to local school districts is enshrined in the

state’s constitution. See Wis. Const. art. X, § 5. But

Wisconsin’s constitution also requires local govern-

ments to tax residents specifically for “the support of

common schools.” Jd. § 4. Cities and towns that fail

to levy such taxes cannot receive state funding for K—

12 education. Id. § 5.

Since 1993, the State has limited the amount of

additional money local governments can collect from

local property taxes, 1993 Wis. Act 16, but has per-

mitted local governments to override these revenue

limits by referenda. Russ Kava & Rick Olin, Local

Government Expenditure and Revenue Limits, Wis.

Legislative Fiscal Bureau 7 (Jan. 2013).'7 Under this

system, local governments receive financial backing

signed by the Governor in August. At all times during the 2011

session, Republican legislators knew they had complete control

of the reapportionment process and the ability (and will) to

draw districts that would insulate Republican legislators from

any serious challenge based on the policies they were

implementing. As the District Court found, “from the outset of

the redistricting process, the drafters sought to understand the

partisan effects of the maps they were drawing,” and “were

concerned with, and convinced of, the durability of their plan.”

Id. at 138a, 139a. Indeed, in meetings with the Republican

caucus, a staff mexsber for the Majority Leader told them that

the “maps we pass will determine who's here 10 years from

now.” Id. at 28a. This gave Republican legislators the freedom

to enact highly partisan policies without concern for the

electoral consequences or the popularity of their actions among

the broader electorate.

17 Available at goo.gl//QH7kzN.

19

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 to

fund the public schools themselves, which—in com-

bination with the cuts in state funding—has severely

restricted funding for public education in Wisconsin.

Whereas every previous budget had increased the

per-pupil revenue limit by $190 to $274, the 2011~—

2013 state budget reduced the amount that school

districts could collect by an average of $554 per

pupil. Jd. at 2-3; see also 2011 Wis. Act 32 § 2682

(codified at Wis. Stat. § 121.91(2m)(g)(4)) (reducing

revenue cap by 5.5% per student). This restriction

amounted to another $800 million cut, statewide, in

overall funding for K-12 education.

See Wis. Gov. Signs Budget Cutting Education

$1.85B, CBS News (June 26, 2011).48 While recent

state budgets have increased the per-pupil revenue

cap, the increases have not kept pace with inflation.

See Wis. Budget Project, An Overview of Education

Issues in the 2013-15 Budget (2013)'® (noting that

revenue cap increased by 0.8% in 2014 and 2015);

Bureau of Gabor Statistics, CP/-All Urban Consum-

ers (Current Series) (calculating inflation rate as

1.9% for July 2014 and 1.8% for July 2015).

The recent history of K-12 education funding in

Wisconsin illustrates how partisan gerrymandering

affects policy. Secure in their electoral majority,

‘8 Available at goo.g/ZpH1Y4.

'9 Available at goo.g/WbcDLE.

20 Available at goo.gl/W3dJ KL (last visited Sept. 5, 2017).

20

legislators have abandoned decades-old policies in

support of state funding for public schools, by slash-

ing state funding and prohibiting Wisconsin citizens

from offsetting the cuts through local referenda to

increase their own taxes to fund schools.

2. Cutting Funding for the University of

Wisconsin System

The effects of partisan gerrymandering on the Uni-

versity of Wisconsin System (the “UW System”) are

similarly troubling. Despite a robust history of

bipartisan support for the UW System, the redistrict-

ing legislators have cut funding for the System by

over $360 million.

These cuts undermine the non-partisan “Wisconsin

Idea,” a concept unique to Wisconsin, which views

the University as a means to improve the quality of

life for all the State’s citizens. Univ. of Wis., The

Wisconsin Idea.2' The Wisconsin Idea is considered

the guiding principle of the UW System. Tommy

Thompson, Government—University Collaboration at

the Root of The Wisconsin Idea, Capital Times (Jan.

4, 2017).22 The Wisconsin Idea derives from former

UW-Madison President Charles Van Hise’s 1905

declaration that “I shall never be content until the

beneficent influence of the [U]niversity reaches every

home in the state.” Jd. This concept is enshrined in

state statute; by law, UW’s mission is “to extend

knowledge and its application beyond the boundaries

of its campuses and to serve and stimulate society.”

Wis. Stat. § 36.01(2).

21 Available at goo.gi/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 the

finest state university systems in the nation, are in

jeopardy. In 2011, the Legislature imposed more

than $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).?4

Then, in 2015, the State cut the UW System’s

budget by an additional $250 million, id., while

largely preventing the university from raising tuition

to cover costs, see 2013 Wis. Act 20 § 9148.% These

cuts were deeply unpopular with Wisconsin voters.

A majority of Wisconsin citizens—between 64% and

70%—disapproved of Governor Wa.x«er’s original

proposal to cut $300 million from the System’s

budget. See Karen Herzog, Wisconsin One of Few

States Taking Up Higher Education Cuts, Milwaukee

J. Sentinel (May 28, 2015).25 The cuts adopted by

the Legislature were also out of step with the rest of

the country: Wisconsin was one of only six States to

approve (or even consider) cuts in higher eduction

funding that year. Jd. From fiscal year 2012 to

2017, the UW System’s budget has been cut by a

total of $362 million. Schaetzel, supra.

23 Available at goo.g/VHSP21.

*% The same year, the Legislature approved a $250 million

expenditure to build a new arena for Wisconsin’s professional

basketball team, the Milwaukee Bucks. Steven Salzberg, Scott

Walker Takes $250 Million From U. Wisconsin, Gives $250M To

Billionaire Sports Team Owners, Forbes (Aug. 14, 2015),

goo.gl/zndB3J.

26 Available at goo.gl/s8WaUE

22

The UW System has suffered greatly from these

cuts. Before the $250 million cut took effect, the UW

System’s President announced moratoria on non-

essential hiring, out-of-state travel, promotions, and

non-statutory raises. See Karen Herzog & Patrick

Marley, Scott Walker Budget Cut Sparks Sherp

Debate on UW System, Milwaukee J. Sentinel (Jan.

28, 2015).28 UW-Madison was forced to eliminate

420 positions and fire 50 employees in 2016. Nico

Savidge, UW-Madison Losing Ground to Competitors

Amid Budget Cuts, Rebecca Blank Says, Wis. State J.

(Sept. 15, 2016).27 UW-Madison Chancellor Rebecca

Blank noted that the UW’s flagship campus had

“slipped” because it could not serve its faculty or

students as well as competitors. Jd. For example,

several departments at UW-Madison have more than

500 students per adviser, almost twice the recom-

mended number. Jd. 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 Faculty

Morale At UW-Madison, Wis. Pub. Radio (Apr. 7,

2017). Faculty began leaving the UW System for

other universities because budget cuts made it feel

“perilous” to remain in Wisconsin. See Kevin Beck-

man, Slashed Budgets Push University of Wisconsin

Faculty to Minnesota, Minn. Daily (Sept. 19, 2016).2°

26 Available at goo.gl/jklaSL.

2” Available at goo.g/tRJSkr.

28 Available at goo.gl//ewFxSM.

28 Available at goo.gi/2To2w65.

23

Thus, far from supporting the Wisconsin Idea, leg-

islators have ravaged the UW System’s budget and

made it far more difficult for the System to live up to

its mission.

B. The Dismantling of the Non-Partisan

Government Accountability Board Has

Sullied Wisconsin’s Reputation as a

Model of Good Government.

Wisconsin citizens are proud of their “good gov-

ernment” reputation. Since the early 1900s, when

Republican Governor Robert LaFollette “ushered in

an era of reform,” Wisconsinites have come to expect

“openness in government and honesty from their

elected officials.” Steven F. Huefner et al., From

Registration to Recounts: The Election Ecosystems of

Five Midwestern States 111 (2007)*8; accord Conant,

supra, at 4. One historian suggests this commitment

to good government stems, in part, from the State’s

constitution, which was based, in part, on “the pre-

sumption that government has an important, posi-

tive role to play in society,” and that “strong popular

control 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 thfe] state that the public is

entitled to the fullest and most complete information

regarding the affairs of government as is compatible

with the conduct of governmental business.” Wis.

Stat. § 19.81(1).

The Government Accountability Board (“GAB”) was

one of the most significant recent initiatives to

%© Available at goo.gl/MvLGxz.

24

ensure the integrity of state elections and public

officials. The GAB was a non-partisan, independent

enforcement body established in 2007 with strong

bipartisan support to oversee state elections and

enforce ethical standards for state officials. The

GAB replaced two prior oversight bodies, the State

Elections Board and State Ethics Board, which were

criticized because their members were partisan

appointees, resulting in weak oversight. To take the

politics out of enforcement, members of the GAB had

to be former judges. A candidate committee com-

posed of court of appeals judges proposed potential

members, and the governor was required to nomi-

nate GAB members from this list. Members were

prohibited from engaging in political activities, and

were ineligible if they had engaged in politics in the

past. See Daniel P. Tokaji, America’s Top Model:

The Wisconsin Government Accountability Board, 3

U.C. Irvine L. Rev. 575, 577-79 (2013).

The creation of the GAB arose out of a series of

political scandals in the early 2000s. See Jodi

Wilgoren, In Wisconsin, Scandal, Outrage and

Deficit Churn Up a Storm of Political Change, N.Y.

Times (May 19, 2002).5! Legislative leaders of both

parties faced corruption investigations, leading to

resignations and extensive negative publicity.

Wisconsin residents were “dissatisflied] with how the

state’s campaign finance and lobbying rules were

being enforced,” and “believed that the state

elections and ethics boards had been too lax in their

enforcement.” Huefner, supra, at 115.

3! Available at goo.gl/4zndRH.

25

In 2005, a group of state legislators responded by

introducing bipartisan ethics reform legislation,

including creation of the GAB. At the time, however,

control of state government was divided—the

Governor was a Democrat, while Republicans

controlled the Legislature—and the Republican

leadership would not allow the bill to go forward.

See Reform Bandwagon is Filling Up Fast, The

Sheboygan, Sept. 27, 2006, at 5A. But once the 2006

election season began, lawmakers received a clear

message from Wisconsin voters. Lawmakers in

competitive districts, who had previously opposed the

legislation, campaigned as “ethics reformers.”

Patrick Marley & Stacy Forster, Legislators Join

Ethics Cause Late; Republicans Who Killed Bill Now

Use Issue in Campaigns, Milwaukee J. Sentinel,

Sept. 24, 2006, at Al. Democratic challengers

“hammered incumbent Assembly Republicans” for

standing in the way of ethics reform. News reports

noted that “even Republicans who opposed [ethics

reform] this spring have vowed to work toward a

compromise.” Mark Pitsch, Real Ethics Reform: This

Time, They Might Be Serious: Supporters Say the

Time is Right to Finally Get a Meaningful Bill

Passed, Wis. State J., Nov. 26, 2006, at Al.

The result was that Democrats picked up eight

seats in the Assembly and won control] of the State

Senate. Wis. State Elections Bd., Results of Fall

General Election (Nov. 7, 2006).52 And responding to

the voters’ message, the Assembly Speaker,

Republican Mike Huebsch, who had previously

blocked the legislation, pledged in a bipartisan

82 Available at goo.gl/toXJHC.

26

announcement to pass “major, bipartisan ethics

reform early in 2007.” Press Release, Gov. Jim

Doyle, Dec. 14, 2006.

Thus, ethics reform legislation, including creation

of the GAB, was passed in early 2007, with

unanimous 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: Roll

Call Vote,” Wis. S. J., 98th Reg. Sess. (Jan. 30,

2007).34 Voices on both sides of the aisle praised the

legislation as a victory for good government. As one

Republican state representative explained: “This bi-

partisan ethics reform package will help restore the

publics trust in their elected officials and

Wisconsin’s reputation for clean, ethical

government.” Press Release, State Rep. Scott Suder,

Jan. 3, 2007. Another Republican lawmaker called

the bill “the most sweeping ethics reform bill in

Wisconsin history,” noting that “the citizens of this

state deserve a clean and honest government.” Press

Release, 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, the

GAB overturned an Ethics Board policy that had

provided special treatment to state lawmakers.*®

33 Available at goo.gl/jyKxZj.

4 Available at goo.gl/4bLm6W.

36 The Ethics Board had allowed state lawmakers who were

attorneys to communicate with state agencies on behalf of

special purpose districts that the lawmaker represented in

private practice. Opponents argued that allowing legislators,

acting in their private capacity, to negotiate with state employ-

ees whose budgets they controlled in their lawmaker capacity

created the appearance of impropriety and raised concerns

27

Govt Accountability Bd., 2008 GAB 1: Representa-

tion of Clients.56 This action was praised as showing

“more steel and backbone” than the prior ethics

enforcement agency. Mark Pitsch, Board Comes Out

Swinging; New Government Accountability Board is

More Aggressive Than the Board It Replaces, Wis.

State J., Apr. 14, 2008, at Al.

The GAB was widely praised as a “worthy model”

for other States. See Tokaji, supra, at 607. One

elections expert wrote in 2011 that the GAB

“achieves something that up until now has been a

rarity in the United States: election administration

that is independent of partisan politics.” Steven

Huefner et al., From Registration to Recounts: Devel-

opments in the Election Ecosystem of Five Midwest-

ern States (2011) at 43.57 In 2014, the bipartisan

Presidential Commission on Election Administration,

co-chaired by the former general counsels of the

national Democratic uid Republican Parties, cited

the GAB as a “model,” particularly for its work in

improving accessibility to polling places for the

disabled. See Presidential Comm’n on Election

Admin., The American Voting Experience: Report and

Recommendations 52 (Jan. 2014).°% Researchers

found in 2014 that Wisconsin had “dramatically

improved its [election] data reporting between 2008

and 2012,” and had the second highest voter partici-

about potential special treatment. The GAB voted to bar the

practice.

% Available at goo.gl/BYTAjP (last visited Sept. 5, 2017).

°7 Available at goo.g/pZFXkL.

38 Available at goo.gl/DKXQdB.

28

pation rate in the nation. The Pew Charitable Trs.,

The Elections Performance Index 2012 (Apr. 2014);

The Pew Charitable Trs., Wisconsin Elections Per-

formance Index (Apr. 2014).

Despite overwhelming Republican support just a

few years earlier, however, starting in 2011, the

Republican-controlled Legislature “waged war” on

the GAB. Patricia Simms, Wisconsin get D grade in

2015 State Integrity Investigation, Ctr. for Pub.

Integrity (Nov. 9, 2015).41 What changed? By virtue

of their election victory in 2010 and their complete

control of the Legislature and Governor's office,

Republican legislators knew they would be insulated

from political consequences by their ability to control

the redistricting plan. See J.S. App. 18a.

In 2015, the Legislature took the ultimate step of

seeking to disband the GAB, a move widely believed

to be “partisan ‘payback’ for investigations in which

the GAB was involved.” See Sen. Kathleen Vinehout,

Putting Political Parties Back in Charge of Elections

and Ethics? (Oct. 14, 2015). One of the six retired

judges to serve on the GAB called the action “a great

step backwards.” Dave Zweifel, Plain Talk: Next

November, Remember Who Butchered Good

Government In Wisconsin, Capital Times (Nov. 18,

2015).** The chair of the GAB, another retired judge,

38 Available at goo.gl/xHchB7.

40 Available at goo.gl//SVW 2fb.

*! Available at goo.gV/oaw5Xr.

“2 Available at goo.gl/z54LuF.

43 Available at goo.gl/v861tC.

29

testified against dismantling the GAB at an Assem-

bly hearing. Wis. State Leg., Record of Committee

Proceedings (2015). The Capital Times

characterized the behavior of legislators as

equivalent to “drunken sailors on shore leave” in

their reckless exercise of raw power. “Only problem

is, it’s our government and our historic safeguards

that are being smashed.” Zweifel, Next November,

Remember, supra. One citizen, a retired Milwaukee

public school teacher, sent open records requests to

each Republican legislator asking for copies of

communications from constituents regarding the

proposed legislation. Though not all such requests

were fulfilled, the responses showed more than 2,500

communications in support of the GAB and only 189

against—i.e., more than 90% in favor of preserving

the GAB. See Dave Zweifel, Plain Talk: We, The

People? No. We, The Irrelevant, Capital Times (Dec.

24, 2015).

Nevertheless, in early 2016 legislation to dismantle

the GAB was enacted, on a “nearly party-line” vote.

2015 Wis. Act 188; see Patrick Marley & Jason Stein,

Assembly Approves Splitting GAB into Elections and

Ethics Agencies, Milwaukee J. Sentinel (Oct. 21,

2015).4° The GAB ceased to exist on June 30, 2016,

and was replaced by a “weak and politically

connected commission,” that allows “lawmakers [to]

have a bigger role in the agency charged with

regulating them, with authority over the majority of

the commissions’ appointees and its funding for

4 Available at goo.gVEGPqYT.

46 Available at goo.g/QNJwXX.

46 Available at goo.gl/Nz6BDP.

30

investigations.” Katelyn Ferral, As the Government

Accountability Board Ends, What’s the Future for

Wisconsin Campaign Finance Regulation?, Capital

Times (June 20, 2016)*’; State Ethics Panel Gets

First Big Vote, Wis. State J. (Aug. 28, 2016).*

Wisconsin legislators took this action despite the

fact that “62% of those polled .. . said the board

should remain an independent and impartial board

of judges.” Sen. Lena Taylor, GAB’s Obituary,

Milwaukee Courier, July 2, 2016. The former

Executive Director of the GAB explained why the

GAB was dismantled: “The people in power did not

like being held to account.” Scott Bauer, State’s

Nonpartisan Election Board Ends; Two Partisan

Boards Will Replace the 8-Year-Old Experiment;

Elections Oversight New Entity Advised to ‘Follow

the Law,’ Wis. State J., June 27, 2016, at A3. And

just months after the GAB was replaced (in part) by

the Wisconsin Ethics Commission, one of the judges

newly appointed to that Commission “resigned in

disgust,” stating that the agency was “ill-suited to its

mission of ensuring clean government” and that the

system “almost guarantees” that investigations of

financial and ethical improprieties will not occur.

Jason Stein, Wisconsin Ethics Commissioner Resigns

in Disgust, Milwaukee J. Sentinel (Dec. 12, 2016).*°

47 Available at goo.gl/rN1OzP.

48 Available at goo.gl/E4VpJX.

49 Available at goo.gl/vOcZrp.

31

C. Extreme Policies Enacted Since the

Redistricting Plan Have Tarnished

Wisconsin’s Strong Bipartisan Tradition

of Natural Resources Conservation and

Environmental Protection.

Historically, Wisconsin has been practically synon-

ymous with environmental conservation. John Muir,

the renowned naturalist, spent his formative years in

Wisconsin and studied at UW-Madison. The father

of American wildlife ecology, Aldo Leopold, settled in

Wisconsin in 1924 and published the first textbook

on 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 and

conservation of its abundant natural resources.

During the 1970s, Wisconsin politicians and “the

majority of the state’s citizens supported the national

government's efforts to reduce air and water pollu-

tion.” Conant, supra, at 293. In the 1980s, “the state

actively cooperated with the national government in

efforts designed to reduce the risks that hazardous

wastes posed for human health.” Jd. Republicans,

including former Governor Thompson, worked closely

with Democrats to enact historic legislation, like

1989 Wisconsin Act 31, which created the Lower

Wisconsin State Riverway to help protect the natural

beauty and ecological health of the 95,893 acres

within the Riverway’s boundaries. See Lower Wis.

State Riverway Bd., Welcome.™ As recently as 2008,

with control of the Legislature split between the

8 Available at goo.g\/PSYfGz (last visited Sept. 5, 2017).

32

parties, legislators almost unanimously passed, after

lengthy negotiations and compromise, legislation

implementing the historic Great Lakes Compact, a

compact between eight States and two Canadian

provinces to protect and manage the waters of the

Great Lakes basin. See 2007 Wis. Act 227.

Wisconsinites still “expect state (and local) gov-

ernment to manage the state’s natural resources

carefully and to protect the environment vigilantly.”

Conant, supra, at 4, 17. Over the years, Wisconsin

has earned its reputation as a sportsman’s paradise

because of the State’s bipartisan efforts to preserve

its natural beauty and conserve its wildlife and

resources.

Yet this bipartisan tradition is now endangered,

largely due to the extreme policies adopted by the

Legislature since the 2011 redistricting plan rewired

Wisconsin’s politics. Wisconsin legislators have

undermined the Wisconsin Department of Natural

Resources (“DNR”), loosened rules designed to curb

pollution, made it easier to endanger wetlands, and

adopted 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)5! (“Protecting Natural

Resources’). The Legislature has done so much to

undercut Wisconsin’s protections for natural re-

sources that one retired Republican state senator

exclaimed: “I think what’s going on is appalling ....

I'm a pretty pro-business Republican. But a clean

environment is essential to business. This is just

wholly unacceptable.” Siri Carpenter, How Scott

51 Available at goo.gl/NxWmHd.

33

Walker Dismantled Wisconsin’s Environmental

Legacy, Sci. Am. (June 17, 2015)5? (quoting former

Senator Dale Schultz). Though Wisconsin faces

many conservation and environmental dilemmas

because of the post-redistricting policies adopted by

the Legislature, three are particularly worrisome:

the politicization and weakening of the DNR, the

interference with its efforts to protect clean drinking

water, and the adoption of legislation that has weak-

ened laws regulating mining.

Perhaps the most obvious change has been the

increasing politicization of the DNR, the state agency

responsible for protecting and managing Wisconsin’s

“fish, wildlife, forests, parks, air and water re-

sources.” Dep’t of Nat. Res., About the DNR.®3 While

campaigning in 2010, Governor Scott Walker called

the DNR “out of control” and an impediment to job

growth. See Verburg, Protecting Natural Resources,

supra. Then, in 2011, the Legislature passed a law,

Act 21, that gave the governor and legislators “much

greater control of administrative rules that are

written 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 the

governor to issue executive orders to ensure that any

new rules complied with existing statutes. Id.

62 Available at goo.gl/XmrdWx.

53 Available at goo.gl/wNsdNt (last visited Sept. 5, 2017).

34

Under this heightened political control, the DNR’s

environmental protection efforts have become lax. In

2013, the DNR restructured its advisory committee,

cutting university scientists and adding more repre-

sentatives from politically influential groups. See

Carpenter, supra. Whereas the DNR was once

“much more forceful in disagreeing with the legisla-

ture and making recommendations to improve the

legislation,” it now defers to legislators. Jd. (quoting

Adrian Wydeven, the former head of the DNR wolf

management program under Governor Thompson).

DNR scientists are restricted from speaking directly

with lawmakers, and DNR employees complain that

terms like “climate change” have become red flags in

grant proposals. /d.

The Legislature has also slashed financial support

for the DNR. Since the 1920s, the State’s “commit-

ment to... natural resource management has also

been reflected in the [state] budget.” Conant, supra,

at 27. But in recent years, the Legislature has

dramatically reduced the DNR’s budget. Governor

Walker’s 2015-2017 budget proposal called for the

removal of one-third “of all research scientist posi-

tions and more than half of all environmental educa-

tor positions from the DNR.” Carpenter, supra. The

budget approved by the Legislature removed 92 DNR

employee positions, including 18 senior scientists

who had previously “guide[d] the work of agency

program managers.” Verburg, Protecting Natural

Resources, supra. Legislators also “complained about

‘controversial’ DNR research on wildlife, mining and

climate change.” Id. The most recent former Secre-

tary of the DNR, Cathy Stepp—who was a vocal

DNR critic when she served as Republican state

senator, and stepped down as Secretary in August

35

2017—admitted that the DNR’s staffing cuts were

politically motivated:

We've seen a pretty sound response from the

Legislature during this last budget process on

some things that they saw that happened his-

torically in that particular area of the depart-

ment that they were unhappy about, and they

wanted to send a message to us, (which) is,

you know, ‘Get your researchers in better line

with 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 diminished

the DNR’s effectiveness. The DNR is now less able

to perform essential functions, including environ-

mental enforcement. In 2015, the year of the major

budget cuts, the fines DNR collected from polluters

“plummeted to the lowest level in 30 years.” Cas-

sandra Willyard, After Censoring Stories, Gov. Scott

Walker Wants to Kill Off Self-funded Outdoors

Magazine, Colum. Journalism Rev. (May 1, 2017).

The fines imposed on polluters in 2015 decreased a

staggering 88% from the year before. Steven Ver-

burg, Fines for Pollution Fell to 30-Year Low in 2015,

Wis. State J. (May 19, 2016). Though Governor

Walker has chalked this up to Wisconsin suddenly

having fewer polluters, others—including George

Meyer, a former DNR Secretary appointed by Gover-

nor Thompson (and an amicus on this brief)—have

questioned whether an under-staffed DNR is con-

% Available at goo.gl/PduRbx.

55 Available at goo.gi/FuCw Uc.

36

ducting adequate inspections. Jd. As Mr. Meyer put

it, “If you don’t look, you won't find.” Jd. Similarly,

the Wisconsin State Journal recently reported that

under Secretary Stepp, the U.S. Environmental

Protection Agency (“EPA”) called the DNR’s effort to

control fine-particle air pollution “a failure,” and that

the State’s non-partisan Legislative Audit Bureau

found that the DNR “failed to enforce its own stand-

ards for industrial and municipal water pollution 94

percent of the time.” Steven Verburg, Secretary

Cathy Stepp Leaving DNR to Join Donald Trump’s

EPA (Aug. 30, 2017).%

The Legislature has also undermined the DNR’s

efforts to provide Wisconsinites with clean drinking

water. The EPA recently warned the DNR that

Wisconsin's water quality protections are “inade-

quate or out of date.” Verburg, Protecting Natural

Resources, supra. An investigation by the Wisconsin

Center for Investigative Journalism found that

“fhjundreds of thousands” of Wisconsinites are “at

risk of consuming drinking water tainted with sub-

stances including lead, nitrate, disease-causing

bacteria and viruses, naturally occurring metals and

other contaminants.” Ron Seely, Safe, Clean Drink-

ing Water Eludes Many Wisconsinites, Minn. Post

(Nov. 18, 2015).57

In 2009, researchers found viruses in municipal

water supplies, so state regulators began requiring

disinfection. Id. But two years later, the Legislature

rescinded that rule, with one Republican state repre-

sentative calling it “an unnecessary and financial

56 Available at goo.gl4SA9C5.

57 Available at goo.gl/azhQDw.

37

bureaucratic burden.” Jd. (quoting Rep. Erik Sev-

erson). Researchers later linked the viruses in

fourteen municipal water systems to “acute gastroin-

testinal illness.” Jd. But the fallout could have been

much worse—according to the DNR, as of 2015, more

than 73,000 Wisconsinites relied on water from

public systems that did not disinfect. Jd.

The redistricting process also paved the way for

changes in mining laws and protections for Wiscon-

sin’s wetlands and waterways. In 1998, Governor

Thompson signed a bipartisan mining moratorium

law that required companies to prove that a sulfide

ore mine could operate without polluting groundwa-

ter or surface waters. 1997 Wis. Act. 171. Yet in

2011, Republican policymakers began pushing for

construction of an iron mine in an economically

depressed area of northwestern Wisconsin, even

though it was precluded under state law. Steven

Verburg, Gogebic Taconite Says Wisconsin Mine Isn’t

Feasible; Cites Wetlands, EPA, Wis. State J. (Feb. 28,

2015) (“Gogebic Taconite”’)®,; see also Bill Leuders,

Iron Mine Is Halted, But Battle Scars Remain, Wis.

Watch (Mar. 17, 2015).5° The initial effort to enact

legislation to authorize the mine failed. See Assemb.

Bill 426, 2011-2012 Leg. (Wis. 2012). But despite

warnings from scientists, the mine’s supporters kept

pursuing legislation. See Gogebic Taconite. And the

company pursuing the mine, Gogebic Taconite,

contributed $700,000 to the Wisconsin Club for

Growth, a conservative group supporting Republican

58 Available at goo.gl/MGPKAr.

88 Available at goo.gl/Gz13Ms.

® Available at goo.gl/T6ZLjB.

38

candidates, to improve its prospects. See Leuders,

supra; see also Theodoric Meyer, In Wisconsin, Dark

Money Got a Mining Company What It Wanted, Pro

Publica (Oct. 14, 2014).®!

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 Oppose

Mining Bill, Milwaukee J. Sentinel (Feb. 25, 2013).®

Act 1 modified Wisconsin’s mining regulations so

that they only applied to the mining of nonferrous

metals (excluding the proposed iron mine); and

prohibited DNR from requiring any wetlands mitiga-

tion measures beyond those required under federal

law. 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 dump

mining waste in wetlands, streams, and lakes;

doubled the area around mines where companies

could permissibly pollute; “and strip[ped] citizens of

the 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 miles

from 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 gutted

Wisconsin’s mining regulations, and ended up with

61 Available at goo.gl/jN6y9j.

62 Available at goo.gl/1RA47aa.

39

nothing to show for it. The Legislature’s mining

deregulation is yet another disheartening example of

an emboldened political majority—entrenched in

power and protected from electoral consequences

because of partisan gerrymandering—taking action

contrary to Wisconsin’s bipartisan tradition of envi-

ronmental protection and conservation.

CONCLUSION

For the foregoing reasons, the judgment of the

District Court should be affirmed.

Respectfully submitted,

Cary E. ADICKMAN IRA M. FEINBERG

MADELINE H. GITOMER Counsel of Record

HUNTER J. KENDRICK HOGAN LOVELLS US LLP

875 Third Avenue

HOGAN LOVELISUBLLP 1. York NY 10022

555 Thirteenth St., NW (212) 918-3000

Washington, DC 20004 ira. feinherg@l Raita

(202) 637-5600

SUSAN M. CRAWFORD

PINES BACH LLP

122 West Washington

Avenue, Suite 900

Madison, WI 53703

Counsel for Amici Curiae

SEPTEMBER 2017