Examining Impasse Litigation in Wisconsin’s Redistricting Process

"CASE WATCH Johnson v. Wisconsin Elections Commission" and other case-specific text, including the file number and court name, with a blue-tinted gavel

Partisan gridlock in state governments can sometimes impede or entirely block the enactment of new maps during the decennial redistricting process. When this happens, voters rely on the court system to draw new maps and ensure that their votes count equally no matter where they live. This type of lawsuit, known as impasse litigation, is currently ongoing in Wisconsin to ensure that new maps that fairly represent Wisconsin voters are in place before the 2022 election cycle begins. A case is heading to oral argument before the Wisconsin Supreme Court on Wednesday, Jan. 19 to determine which map proposals are put in place. 

Who is involved in the case? 

A group of Wisconsin voters represented by the conservative group Wisconsin Institute for Law & Liberty filed a petition against the Wisconsin Elections Commission in the Wisconsin Supreme Court asking it to take control of the redistricting process if the state government failed to pass new maps (which it then did). After the state Supreme Court granted the petition, multiple other groups intervened in the case in order to have a say in the redistricting process. Intervenors on the plaintiffs’ side include the plaintiffs in two federal impasse cases (Hunter v. Bostelmann and Black Leaders Organizing for Communities v. Spindell), a group of mathematicians and scientists and the Republican members of the state’s congressional delegation. Intervenors on the defendants’ side include Gov. Tony Evers (D), the Wisconsin Legislature and State Senate Minority Leader Janet Bewley (D).

Note: This court uses the term “petitioner” for “plaintiff” and “respondent” for “defendant,” but in this Case Watch we will use “plaintiff” and “defendant” for the sake of simplicity.

What’s the case about?

The type of litigation currently going on in Wisconsin is known as impasse litigation. In short, it’s when courts take control of the redistricting process when state governments fail to pass new maps. This often happens in states, such as Wisconsin, when control of the different branches of government is divided between political parties. In fact, federal courts have been involved in the state’s redistricting process on the legislative and/or congressional front since the 1960s (excluding in 2011 when there was a GOP trifecta) to ensure that new districts were in place following updated census data. 

How did we get here?

Given Wisconsin’s history of relying on the judicial system in redistricting, multiple lawsuits were filed after the release of 2020 census data to kickstart the process. Two federal lawsuits were filed by Democratic voters and nonprofit organizations; the suits were consolidated under Hunter v. Bostelmann. At the same time, a group of Republicans filed a petition in the Wisconsin Supreme Court asking it to take control of the redistricting process if the state government failed to pass new maps.  

Historically, the federal courts have intervened in the redistricting process when Wisconsin failed to pass new maps or the maps were challenged in a lawsuit. In this instance, though, Republicans filed their petition with the Wisconsin Supreme Court — which has a conservative majority — asking it to take control of the process so that the federal court would not do so. The three-judge panel of the federal court acknowledged that the pattern of federal intervention may be broken this cycle after the state Supreme Court assumed responsibility for redistricting in the event of an impasse, writing that the panel “recognizes that responsibility for redistricting falls first to the states, and that this court should minimize any interference with the state’s own redistricting efforts.” However, the panel also acknowledged that “federal rights are at stake, so this court will stand by to draw the maps—should it become necessary.” The Wisconsin Legislature asked the U.S. Supreme Court to dismiss the federal case, arguing that redistricting should remain solely in the state’s control, but that petition was denied. Ultimately, the federal case is stayed (or paused) until the state Supreme Court finishes its process.

On Nov. 18, Evers vetoed state House, Senate and congressional maps passed by the Republican-controlled Legislature, officially cementing the impasse that these lawsuits expected. 

What are the parties arguing?

All of the parties and the Wisconsin Supreme Court agree that the current maps in place are malapportioned following the release of 2020 census data and new maps need to be drawn for future elections in order to comply with the constitutional principle of one person, one vote. After the Wisconsin Supreme Court granted the petition, it released an order backed by four conservative justices out of seven total justices outlining how it would approach redistricting. The court asked the parties to submit map proposals that take a “least-change” approach, meaning that the new maps should be as similar as possible to the current maps; this was the method the Republican parties in the case suggested the court use. The conservative majority justified its approach by stating that the “existing maps were passed by the legislature and signed by the governor. They survived judicial review in federal court. Revisions are now necessary only to remedy malapportionment produced by population shifts made apparent by the decennial census.” However, this approach was criticized by the liberal justices who dissented from the order and multiple parties that argued that this least-change approach would ensure that Republican gerrymanders from the last round of redistricting would be extended into this decade. The court preemptively rejected this criticism in its order and emphasized that it would not be considering partisanship during the redistricting process because its “role in redistricting remains a purely judicial one, which limits us to declaring what the law is and affording the parties a remedy for its violation.” 

Each party submitted proposals (either legislative, congressional or both) and explained how their maps comply with the court’s guidelines and best represent Wisconsin voters. Each party advocated for their maps by focusing first on how they employed a least-change approach in drawing their plans by starting with the current maps and adjusting for population shifts, focusing on keeping voters in their current districts when possible. Second, the parties described how their maps comply with federal law, including both the equal protection principle of one person, one vote and Section 2 of the Voting Rights Act (VRA). Finally, parties outlined how their maps comply with state law and redistricting requirements, which include continuity, contiguous districts, preserving communities of interest and respecting political subdivisions.

Notably, the proposals filed by the Wisconsin Legislature and Evers garnered the most attention. When the Legislature submitted the maps it passed back in November that were vetoed by the governor, it emphasized that redistricting is the Legislature’s job and the court should defer to them. On the other side of the political spectrum, Evers submitted maps that he argues perform better than the maps the Legislature passed, including the fact that they are more competitive and they better represent Black voters in the General Assembly. The Hunter plaintiffs and Sen. Bewley also expressed support in later filings for adopting the governor’s proposed maps.

How does this impact voters?

The first purpose of impasse litigation is to ensure that voters are fairly represented and have equal voting power after population shifts. When one part of a state becomes more populated, it needs a greater share of state legislative and congressional seats to ensure its residents’ votes count as much as those in less populated parts. Failing to redraw districts in this scenario would violate the constitutional rights of voters living in more populated areas by diluting their voting power. In this way, impasse litigation allows voters to side-step partisan gridlock and protect their constitutional rights by ensuring new districts are drawn before the next election.

The actual outcome of this impasse litigation — how maps are drawn — will also directly impact voters. Given that the Wisconsin Supreme Court has adopted a least-change approach that ignores partisanship, it is very possible that Republicans will continue to dominate the state legislature and congressional delegation under new maps. Furthermore, how the court chooses to apply the VRA will determine how many majority-Black legislative districts are drawn and whether Black Wisconsinites have adequate voting power.

What’s next?

The Wisconsin Supreme Court has scheduled an oral argument for this case on Wednesday, Jan. 19 at 9:00 a.m. CST. Each party will have 30 minutes to present their map proposals and argue why they best fit the court’s redistricting criteria and state and federal law. The parties will also be allowed 10 minutes for rebuttal to defend their maps and critique the other map proposals. The oral argument will be streamed here.