WASHINGTON, D.C. — This morning the Wisconsin Supreme Court held oral argument in a legislative redistricting lawsuit to determine if the state Assembly and Senate maps need to be redrawn ahead of 2024.
The case is before the state’s highest court after the U.S. Supreme Court returned a state-level lawsuit challenging the 2011 maps to state court in March 2022. In a wild chain of events, within a month, this decision resulted in the Wisconsin Supreme Court adopting the Republican Legislature-drawn maps that Gov. Tony Evers (D) had vetoed just six months prior.
The April 2022 ruling resulted in Republicans securing a near two-thirds majority in both chambers, despite an “equally divided electorate.”
In August of this year, a group of Wisconsin voters filed a petition directly to the Wisconsin Supreme Court asking it to review the constitutionality of both sets of legislative maps. By bringing the lawsuit directly to the state’s highest court and bypassing the lower courts, the petitioners have pursued an expedited process in the hopes of a decision in time for the 2024 elections. On Oct. 6, the court agreed to hear the case.
Today’s argument did not focus on partisan gerrymandering; rather, it centered on two constitutional arguments regarding the separation of powers and contiguity of districts.
Although the petitioners initially argued the challenged maps are extreme partisan gerrymanders, today’s oral argument focused on two technical constitutional issues that the Wisconsin Supreme Court agreed to hear in its Oct. 6 order.
The petitioners maintained that the state Supreme Court’s April 2022 decision — and by extension the maps that were allowed to follow — violates the Wisconsin Constitution’s separation of powers principle and Evers’ constitutional authority to veto bills in two ways.
More specifically, the lawsuit states:
- One, “the [state Supreme] Court usurped the exclusive gubernatorial power to approve (or reject) a law passed by the Legislature” and,
- Two, “the [state Supreme] Court exercised the exclusive legislative power to override the Governor’s veto.”
This second alleged violation was one of the primary matters addressed today.
During argument, counsel for Evers — who is participating in the case on the side of the petitioners — argued that the Wisconsin Supreme Court effectively encroached on the governor’s power to veto legislation when it ordered the adoption of the very same maps that Evers previously vetoed.
The court’s conservative bloc pushed back against these separation of powers claims. As conservative Justice Brian Hagedorn stated, “We didn’t pass any laws” when imposing the maps in April 2022. Hagedorn went on to try to distinguish the court’s imposition of a remedial map from legislative action: “The process of enacting legislation and judicial remedies for injuries are two totally different things constitutionally.”
As outlined in the Oct. 6 order, the other primary issue addressed by the parties was the question of whether the existing state legislative maps violate the contiguity requirements contained in the Wisconsin Constitution, which stipulates that districts be as compact as “practicable,” bound by municipality lines and “cannot be made up of two or more pieces of detached territory.” This final requirement was debated at great length today.
There were six parties arguing, four pro-voting parties and two parties defending the maps. The Wisconsin Elections Commission did not participate in oral argument although the commission was sued. All of the justices asked questions of the parties, even Justice Janet Protasiewicz, whose lawful refusal to recuse herself has caused some Republican lawmakers to seek her impeachment.
However, throughout the entirety of the oral argument conservative Justice Rebecca Grassl Bradley was preoccupied with Protasiewicz’s presence. At the outset, she exclaimed, “Everybody knows that the reason we’re here is because there was a change in the membership of the court, you would not have brought this action.” The petitioners rebuffed this assertion.
To determine definitions of contiguity, the justices repeatedly asked the parties when was the last time the state had constitutional maps with answers pointing back to the mid-twentieth century. “1961,” responded Sam Hirsch, the lawyer for a group of computational redistricting experts who intervened in the litigation.
The parties and the justices also discussed appropriate remedies to the current maps throughout the three hours of oral argument. Hagedorn was particularly interested in “ranges” of acceptable district breakdowns as the petitioners railed against the uncompetitive partisan skew of the current legislative districts.
Hirsch also pushed back against Hagedorn’s line of questioning. Instead, Hirsch argued if the remedial stage is reached and the court considers new maps, then, “The key question is, which maps are most likely to support rather than thwart majority rule?”
Hirsch’s comment references the current highly uncompetitive Assembly map cited in the complaint, which was drawn to produce and defend a Republican majority regardless of party vote share. In 2018, Republicans won 63 seats with only 44.8% of the vote. Under the same map, when Democrats won a similar vote share, they won only 36 Assembly seats — a remarkable 24-seat disparity.
The petitioners are asking for special elections in November 2024 for state senators whose terms would not otherwise expire until 2027, arguing that “[b]ecause they were elected from unconstitutionally configured districts, they lack legal entitlement to their office.”
The conservative justices and parties defending the maps referred to the petitioners’ request for new elections as “extraordinary” and impossible to “imagine something less democratic.”
In an outlandish comparison, Justice Grassl Bradley and Taylor Meehan, the attorney representing the intervening Republican legislators, referenced the 2020 post-election lawsuit Trump v. Biden, which sought to overturn election results in the populous Dane and Milwaukee counties.
Specifically, both took issue with the state Supreme Court’s decision to affirm the certification of the election and compared that ruling to the possibility of special elections in 2024. They argued it amounted to “unseating” representatives who were “duly elected last year.” However, the petitioners argue they are not duly elected as the maps violate the state constitution.
When Grassl Bradley asked Tamara Packard, the attorney representing five Democratic state senators about the proposed new elections remedy, Packard assured the justice that her clients “are ready, willing and able to prove to the voters of the district that they’re placed in that they are the right representatives to carry the people’s voices to the state house.”
Rick Esenberg, the attorney from the right-wing legal group Wisconsin Institute for Law & Liberty who represents a group of Republican voters, argued that not only is the case too delayed — referencing the fact that it was filed over a year after the enactment of the current legislative maps — but also that it may set a precedent for mid-decade redistricting.
The petitioners are seeking relief ahead of the 2024 elections, but the Wisconsin Supreme Court did not indicate when it would issue a ruling.