Tag Archives: wisconsin

“Worst of the worst maps”: a factual mistake in Gill v. Whitford

The oral arguments in Gill v. Whitford, the Wisconsin gerrymandering case, are now a month behind us.  But there’s a factual error in the state’s case, and I don’t want to let it be forgotten.  Thanks to Mira Bernstein for pointing this issue out to me.

Misha Tseytlin, Wisconsin’s solicitor general, was one of two lawyers arguing that the state’s Republican-drawn legislative boundaries should be allowed to stand.  Tseytlin argued that the metrics that flagged Wisconsin’s maps as drastically skewed in the GOP’s favor were unreliable:

And I think the easiest way to see this is to take a look at a chart that plaintiff’s own expert created, and that’s available on Supplemental Appendix 235. This is plain — plaintiff’s expert studied maps from 30 years, and he identified the 17 worst of the worst maps. What is so striking about that list of 17 is that 10 were neutral draws.  There were court-drawn maps, commission-drawn maps, bipartisan drawn maps, including the immediately prior Wisconsin drawn map.

That’s a strong claim, which jumped out at me when I read the transcripts–10 of the 17 very worst maps, according to the metrics, were drawn by neutral parties!  That really makes it sound like whatever those metrics are measuring, it’s not partisan gerrymandering.

But the claim isn’t true.

(To be clear, I believe Tseytlin made a mistake here, not a deliberate misrepresentation.)

The table he’s referring to is on p.55 of this paper by Simon Jackman, described as follows:

Of these, 17 plans are utterly unambiguous with respect to the sign of the efficiency gap estimates recorded over the life of the plan:

Let me unpack what Jackman’s saying here.  These are the 17 maps where we can be sure the efficiency gap favored the same party, three elections in a row.  You might ask: why wouldn’t we be sure about which side the map favors?  Isn’t the efficiency gap something we can compute precisely?  Not exactly.  The basic efficiency gap formula assumes both parties are running candidates in every district.  If there’s an uncontested race, you have to make your best estimate for what the candidate’s vote shares would have been if there had been candidates of both parties.  So you have an estimate for the efficiency gap, but also some uncertainty.  The more uncontested races, the more uncertain you are about the efficiency gap.

So the maps on this list aren’t the 17 “worst of the worst maps.”  They’re not the ones with the highest efficiency gaps, not the ones most badly gerrymandered by any measure.  They’re the ones in states with so few uncontested races that we can be essentially certain the efficiency gap favored the same party three years running.

Tseytlin’s argument is supposed to make you think that big efficiency gaps are as likely to come from neutral maps as partisan ones.  But that’s not true.  Maps drawn by Democratic legislatures have average efficiency gap favoring Democrats; those by GOP on average favor the GOP; neutral maps are in between, and have smaller efficiency gaps overall.

That’s from p.35 of another Jackman paper.  Note the big change after 2010.  It wasn’t always the case that partisan legislators automatically thumbed the scales strongly in their favor when drawing the maps.  But these days, it kind of is.  Is that because partisanship is worse now?  Or because cheaper, faster computation makes it easier for one-party legislatures to do what they always would have done, if they could?  I can’t say for sure.

Efficiency gap isn’t a perfect measure, and neither side in this case is arguing it should be the single or final arbiter of unconstitutional gerrymandering.  But the idea that efficiency gap flags neutral maps as often as partisan maps is just wrong, and it shouldn’t have been part of the state’s argument before the court.

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Driftless Father’s Day

This Father’s Day I found that, by some kind of unanticipated-gap-in-the-Red-Sea-level miracle, neither of my children had any events scheduled, so I gave myself a present and did something I’d been meaning to do for a year; take them to Dubuque.

It’s not far from Madison.  You drive southwest through the Driftless Zone, where the glaciers somehow looped around and missed a spot while they were grinding the rest of the Midwest flat.

At the exit to Platteville there was a sign for a “Mining Museum.”  We had about six seconds to decide whether we all wanted to go to a mining museum but that was plenty of time because obviously we all totally wanted to go to a mining museum.  And it was great!  Almost the platonic ideal of a small-town museum.  Our guide took us down into the old lead mine from the 1850s, now with electric lights and a lot of mannequins caught in the act of blasting holes in the rock.  (One of the mannequins was black; our guide told us that there were African-American miners in southwestern Wisconsin, but not that some of them were enslaved.)

This museum did a great job of conveying the working conditions of those miners; ankle-deep in water, darkness broken only by the candle wired to the front of their hat, the hammers on the rock so loud you couldn’t talk, and had to communicate by hand signals.  Riding up and down to the surface with one leg in the bucket and one leg out so more men could fit in one load, just hoping the bucket didn’t swing wrong and crush your leg against the rock wall.  There’s nothing like an industrial museum to remind you that everything you buy in a store has hours of difficult, dangerous labor built into it.  But it was also labor people traveled miles to get the chance to do!

Only twenty miles further to the Mississippi, my daughter’s first time seeing the river, and across it Dubuque.  Which has a pretty great Op-Art flag:

 

 

Our main goal was the National Mississippi River Museum; slick where the Platteville museum was homespun, up-to-date where the Plateville Museum was old-fashioned.  The kids really liked both.  I wanted fewer interactive screens, more actual weird river creatures.

The museum is on the Riverwalk; Dubuque, like just about every city on a body of water, is reinventing its shoreline as a tourist hub.  Every harbor a Harborplace.  OK, I snark, but it was a lovely walk; lots of handsome bridges in view, all different, an old-timey band playing in the gazebo, Illinois and Wisconsin and Iowa invisibly meeting across the water….

Only disappointment of the afternoon; the famous funicular railway was closed.  Maybe they could have posted that on their website or something.  But in a way it’s good they didn’t; if I’d known it was closed, I probably would have decided to put off the trip, and who knows if we’d ever have gone?

On the way back we stopped in Dickeyville to get gas but missed the Dickeyville Grotto; would have stopped there for sure if I’d known about it.  Dinner in Dodgeville at Culver’s, the Midwest’s superior version of In-N-Out, where I got my free Father’s Day turtle.   I like cheese curds and brats as much as the next guy, but I gotta say, I think the turtle is my favorite of the many foods I’d never heard of before I moved to Wisconsin.

 

 

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Fitchburg facts

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Such shall not become the degradation of Wisconsin

I’ve lived in Wisconsin for more than a decade and had never heard of Joshua Glover.  That’s not as it should be!

Glover was a slave who escaped Missouri in 1852 and settled in Racine, a free man.  He found a job and settled down into a new life.  Two years later, his old master found out where he was, and, licensed by the Fugitive Slave Act, came north to claim his property.  The U.S. marshals seized Glover and locked him in the Milwaukee courthouse. (Cathedral Square Park is where that courthouse stood.)   A Wisconsin court issued a writ holding the Fugitive Slave Law unconstitutional, and demanding that Glover be given a trial, but the federal officers refused to comply.  So Sherman Booth, an abolitionist newspaperman from Waukesha, gathered a mob and broke Glover out.  Eventually he made it to Canada via the Underground Railroad.

Booth spent years tangled in court, thanks to his role in the prison break.  Wisconsin, thrilled by its defiance of the hated law, bloomed with abolitionist fervency.  Judge Abram Daniel Smith declared that Wisconsin, a sovereign state, would never accept federal interference within its borders:

“They will never consent that a slave-owner, his agent, or an officer of the United States, armed with process to arrest a fugitive from service, is clothed with entire immunity from state authority; to commit whatever crime or outrage against the laws of the state; that their own high prerogative writ of habeas corpus shall be annulled, their authority defied, their officers resisted, the process of their own courts contemned, their territory invaded by federal force, the houses of their citizens searched, the sanctuary or their homes invaded, their streets and public places made the scenes of tumultuous and armed violence, and state sovereignty succumb–paralyzed and aghast–before the process of an officer unknown to the constitution and irresponsible to its sanctions. At least, such shall not become the degradation of Wisconsin, without meeting as stern remonstrance and resistance as I may be able to interpose, so long as her people impose upon me the duty of guarding their rights and liberties, and maintaining the dignity and sovereignty of their state.”

The sentiment, of course, was not so different from that the Southern states would use a few years later to justify their right to buy and sell human beings.  By the end of the 1850s, Wisconsin’s governor Alexander Randall would threaten to secede from the Union should slavery not be abolished.

When Booth was arrested by federal marshals in 1860, state assemblyman Benjamin Hunkins of New Berlin went even further, introducing a bill declaring war on the United States in protest.  The speaker of the assembly declared the bill unconstitutional and no vote was taken.  (This was actually the second time Hunkins tried to declare war on the federal government; as a member of the Wisconsin territorial assembly in 1844, he became so outraged over the awarding of the Upper Peninsula to Michigan that he introduced an amendment declaring war on Great Britain, Illinois, Michigan, and the United States!)

Milwaukee has both a Booth Street and a Glover Avenue; and they cross.

Madison has a Randall Street (and a Randall School, and Camp Randall Stadium) but no Glover Street and no Booth Street.  Should it?

 

 

 

 

 

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The Wisconsin Supreme Court gets home rule wrong and right

The Supreme Court made a decision in the Milwaukee police officer residency requirement case I wrote about, peevishly and at length, earlier this year.  Chief Justice Michael Gableman is still claiming the home rule amendment says something it doesn’t say; whether he’s confused or cynical I can’t say.

the home rule amendment gives cities and villages the ability “to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.”  In other words, a city or village may, under its home rule authority, create a law that deals with its local affairs, but the Legislature has the power to statutorily override the city’s or village’s law if the state statute touches upon a matter of statewide concern or if the state statute uniformly affects every city or village. See Madison
Teachers, 358 Wis. 2d 1, ¶101.

“In other words,” phooey.  The amendment says a state enactment has to be of statewide concern and uniform in its effect.  Gableman turns the “and” into an “or,” giving the state much greater leeway to bend cities to its will.  The citation, by the way, is to his own opinion in the Act 10 case, where he’s wrong for the same reason.

But here’s the good news.  Rebecca Bradley, the newest justice, wrote a blistering concurrence (scroll to paragraph 52 of the opinion) which gets the amendment right.  She agrees with the majority that the state has constitutional authority to block Milwaukee’s residency requirement.  But the majority’s means of reaching that conclusion is wrong.  Bradley explains: by the home rule amendment’s plain text and by what its drafters said at the time of its composition, it is and, not or; for a state law to override a city law, it has to involve a matter of statewide concern and apply uniformly to all muncipalities.  Here’s Daniel Hoan, mayor of Milwaukee, and one of the main authors of the home rule amendment:

We submit that this wording is not ambiguous as other constitutional Home Rule amendments may be. It does not say——subject to state laws, subject to state laws of state-wide concern, or subject to laws uniformly affecting cities, but it does say——subject only to such state laws as are therein defined, and these laws must meet two tests: First——do they involve a subject of statewide concern, and second——do they with uniformity affect every city or village?

Bradley concedes that decades of Supreme Court precedent interpret the amendment wrongly.  So screw the precedent, she writes!  OK, she doesn’t actually write that.  But words to that effect.

I know I crap on Scalia-style originalism a lot, partly because I think it’s often a put-on.  But this is the real thing.

 

 

 

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Home rule in Wisconsin: the or and the and

The Wisconsin Supreme Court is hearing arguments about a residency requirement for employees of the city of Milwaukee.  Milwaukee has a law requiring city employees to live within Milwaukee’s boundaries.  The state legislature passed a law forbidding cities from making or enforcing such laws.  Last summer, the 1st District Court of Appeals found that law in violation of the Home Rule Amendment to the Wisconsin Constitution.  The constitutional question is:  when can state lawmakers overrule the legislative decisions of cities and villages?

You might think this would be clear.  On November 4, 1924, voters in Wisconsin overwhelmingly approved the Home Rule Amendment, which added to the state Constitution:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

It turns out it hasn’t been so simple, in practice, to figure out what those 51 words mean.  In a recent high-profile case, the Wisconsin Supreme Court upheld Act 10, Governor Walker’s signature legislation; among other things, the law forbade Milwaukee from contributing to its employees’ pension funds.  The plaintiffs argued that this provision violated home rule.  Michael Gableman, writing for the court majority, said it was fine.

This raises questions.  First of all:  if a state law needs to affect every city uniformly in order to supersede local government, how can it be OK to specifically target Milwaukee’s pension fund?  Here the exact wording of 62.623 is critical.  The law doesn’t mention Milwaukee:  it applies to “any employee retirement system of a 1st class city.”   The “uniformity” requirement in the Home Rule amendment has generally been understood very liberally, allowing laws which affect cities in different size classes differently as long as the application within each class is uniform.

To construe the amendment as meaning that every act of the Legislature relating to cities is subject to a charter ordinance unless the act of the Legislature affected with uniformity every city from the smallest to the greatest, practically destroys legislative control over municipal affairs, assuming that laws could be drawn which would meet the requirements of the amendment so construed.

That’s from Van Gilder v. City of Madison (1936), one of the first Wisconsin Supreme Court cases to wrestle with the limits of home rule.  I will have more to say about Chief Justice Marvin Rosenberry’s decision in that case, some of it pretty salty.  But for now let’s stick to the point at hand.  The law can be argued to pass the “uniformity” test because it applies equally to all cities of the first class.  There is only one city of the first class in Wisconsin, and there has only ever been one city of the first class in Wisconsin, and it’s Milwaukee.

That’s the argument the Walker administration made in defense of the law.  But the court’s upholding the law rejects that defense, and the uniformity clause as a whole, as irrelevant the question before it.

In sum, our home rule case law instructs us that, when reviewing a legislative enactment under the home rule amendment, we apply a two-step analysis.  First, as a threshold matter, the court determines whether the statute concerns a matter of primarily statewide or primarily local concern.  If the statute concerns a matter of primarily statewide interest, the home rule amendment is not implicated and our analysis ends.  If, however, the statute concerns a matter of primarily local affairs, the reviewing court then examines whether the statute satisfies the uniformity requirement.  If the statute does not, it violates the home rule amendment.

Thus:

no merit exists in the plaintiffs’ contention that the legislative enactment at issue in a home rule challenge must be a matter of statewide concern and uniformly applied statewide to withstand constitutional scrutiny.

Now this is weird, right?  Because what’s described and rejected as “the plaintiff’s contention” is what the constitution says.  Gableman replaces the Constitution’s and with an or:  in his analysis, a state law supersedes local powers if it’s either of statewide concern or applied uniformly to all cities.

Is this an act of wanton judicial activism?  Well, not exactly.  The phrase “as home rule case law instructs us” is important here.  The opinion marshals a long line of precedents showing that the Home Rule amendment has typically been read as an or, not an and.  It goes all the way back to Rosenberry’s opinion in Van Gilder v. City of Madison; and the reason there’s such a long list is that all those other cases rely on Van Gilder, which has become the foundation of Wisconsin’s theory of home rule.

Which brings us to the main point.  I’m not a legal scholar, but what the hell, this is blogging, I get to have an opinion, and here’s mine:  Van Gilder v. City of Madison was wrongly decided and has been screwing up home rule jurisprudence for 80 years.

Rosenberry’s first go at explaining home rule goes like this:

The home–rule amendment certainly confers upon cities plenary powers to deal with local affairs and government subject to the limitations contained in the amendment itself and other provisions of the Constitution. The powers of municipalities are subject to the limitation that the municipality cannot by its charter deal with matters which
are of state–wide concern and its power to enact an organic law dealing with local affairs and government is subject to such acts of the Legislature relating thereto as are of state–wide concern and affect with uniformity all cities.

The “and” between statewide concern and uniformity is clear here.  But Rosenberry also says that municipalities simply have no power to address matters of statewide concern:  its powers, he says, are restricted to “local affairs and government” as distinct from matters of statewide concern.  So what cases are the second clause (“its power to enact an organic law….”) referring to?  Only those matters which are not of statewide concern, but which are affected by state laws which are of statewide concern.  Rosenberry gives no examples of such a situation, nor can I really imagine one, so I don’t think that’s really the conclusion he means to draw.  Later in the opinion, he settles more clearly on the policy adopted by Gableman in Madison Teachers Inc. v. Walker:

when the Legislature deals with local affairs as distinguished from
matters which are primarily of state–wide concern, it can only do so effectually by an act which affects with uniformity every city. It is true that this leaves a rather narrow field in which the home–rule amendment operates freed from legislative restriction, but there is no middle ground.

and

the limitation contained in the section upon the power of the Legislature is a limitation upon its power to deal with the local affairs and government of a city or village. Care must be taken to distinguish between the power of the Legislature to deal with local affairs and its power to deal with matters primarily of state–wide concern. When the Legislature deals with local affairs and government of a city, if its act is not to be subordinate to a charter ordinance, the act must be one which affects with uniformity every city. If in dealing with the local affairs of a city the Legislature classifies cities so that the act does not apply with uniformity to every city, that act is subordinate to a charter ordinance relating to the same matter. A charter ordinance of a city is not subject to an act of the Legislature dealing with local affairs unless the act affects with uniformity every city. State ex rel. Sleeman v. Baxter, supra. When the Legislature deals with matters which are primarily matters of state–wide concern, it may deal with them free from any restriction contained in the home rule amendment.

Now the ground has shifted.  In Rosenberry’s reading, when the home rule amendment refers to “local affairs and government” it specifically intends to exclude any “matters of statewide concern.”  I can accept this as a reading of those four words, but not as a reading of the whole sentence. If Roseberry is correct, then the phrase “of statewide concern” is never active in the amendment:  a local affair is, by definition, not a matter of statewide concern.  I think when your interpretation of a constitutional passage means that part of the text never applies, you need to think twice about your interpretation.

What’s more, Rosenberry holds that the state has the power to override local officials on purely local matters, of no statewide concern whatsoever, as long as it does so uniformly.  If that is so, what does he think the words “of statewide concern” are doing in the Home Rule amendment at all?

To me, the amendment has a pretty plain meaning.  Something like a residency requirement for city employees or a fiscal decision about a city pension plan is plainly a local affair.  It may also be a matter of statewide concern.  The state legislature can enact a law overriding local legislation if the matter is of statewide concern and the law in question applies uniformly to all cities.  I think Rosenberry just plain got this wrong in Van Gilder and it’s been wrong ever since.

 

 

 

 

 

 

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Natural accumulation

Don’t even ask me how I fell down this rabbit hole in the middle of August but I was trying to understand the legal requirements in Wisconsin and other states concerning shoveling snow off the city sidewalk in front of your house.  It turns out there’s no state law requiring this (though there are city ordinances in Madison and Milwaukee to this effect.)

More:  there’s a 1956 Wisconsin Supreme Court case, Walley v. Patake, which holds that a property owner isn’t liable if they fail to shovel the sidewalk abutting their property, and someone falls there and is injured, as long as the snow and ice is “natural accumulation” — that is, it’s a different story if there’s a huge heap of ice on the sidewalk because you piled it there when you shoveled your driveway.  In Hagerty v. Village of Bruce (1978) the Wisco Supremes clarified that even when the landowner is violating a city law by not shoveling, they still don’t take on liability.  The theory here is that the liability for injury on a public walkway belongs to the city, and the city can’t delegate it; the point of the shoveling law is to require landowners to act so as to make injuries less likely, but that’s all; the city is still liable.

In Ohio (Brinkman v. Ross, 1993) you are not even liable when someone slips on the ice on your own property, as long as it’s natural accumulation.  I wonder to what extent this is the case in other states?  I wonder if there’s a law professor somewhere in America who’s an expert on icy sidewalk liability?

 

 

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The soundness of the Wisconsin Retirement System

A while back I was talking to some hedge fund dudes with tangential involvement with institutional pensions, and I asked them, “hedge fund dudes, how come the Wisconsin Retirement System has done so well through the crisis while other state pension systems are colossally FUBAR?” and they said “the real reason is that decisions about the pension aren’t made by a bunch of legislators with political commitment, there’s a non-political board and most of the important decisions are made by financial professionals.”

This week the state legislature tried to replace that board with one composed solely of legislators.  The change, after public outcry, has now been rolled back.  Yay for my retirement, I guess?

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Doctoral programs can have a strong influence on the weak-minded

Daniel Drezner:

First, I cannot stress enough the cult-like powers of a PhD program. Doctoral programs can have a strong influence on the weak-minded. Even if you’re pretty sure what you want going into a program, that can change as you’re surrounded by peers who want something different. You might think you’re strong-willed, but day after day of hearing how a top-tier research university position is the be-all, end-all of life can have strange effects on your psyche.

I really do feel this is something we handle well at Wisconsin.  Our Ph.D. graduates go on to a wide variety of positions, some in primarily teaching colleges, some in research institutions, some in industry, some in government.  We do not consider the North American research university the be-all and end-all of life.  We are not just trying to produce clones of ourselves.  We really do strive to help each of our students get the best job among the jobs they want to get.  

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Are UW-Madison professors underpaid?

It’s well known that UW-Madison salaries are notably lower than those at peer institutions, at every level of seniority.  But wait, says Chris Rickert in the Wisconsin State Journal, that doesn’t necessarily mean our faculty is underpaid!

At UW-Madison, assistants are paid, on average, about $82,000 a year, associates about $93,000 and full professors about $123,000 — ranking them 10th, seventh and 12th, respectively, in salary compared to 11 other state-identified peer institutions, according to data from the university’s Academic Planning and Institutional Research office.

Obviously, more full professors means more people in line for full-professor salaries and greater pressure on the budget for professorial salaries overall. At UW-Madison, that’s no small detail, as about 59 percent of UW-Madison professors have attained full status, according to the university’s Data Digest.

By contrast, figures from the American Association of University Professors show that, on average, only about 31.5 percent profs at all universities and about 30.8 percent at public universities are full professors.

This is a really good point!  You could imagine that maybe our pay isn’t underscale at all — maybe we just promote people faster, so that our full professors are less senior and thus make less.  That’s Rickert’s take:

I’m left to wonder whether the university has adopted that old human resources trick of placating employees by inflating their titles more than their pay.

In an era of declining state support, this would help keep a lid on the cost of higher education while simultaneously allowing university officials to complain about how poorly paid are its best and brightest.

But this can actually be checked!  You can use the Chronicle of Higher Education Faculty Salary Survey to get the mean salary for any university at any seniority level, and the number of faculty members at each seniority level, and compute the overall faculty mean that way.  I did this for a few of our peer institutions and got:

UIUC UW Iowa OSU
full $145 816 $123 755 $135 494 $139 943
assoc $96 556 $93 252 $90 407 $94 763
asst $90 405 $82 363 $77 329 $85 502
$117,133 $106,618 $104,595 $111,172

So the mean UW tenure-track gets paid slightly more than people at Iowa, but notably less than counterparts at Ohio State and Illinois.

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