WASHINGTON, D.C. — On Friday, Oct. 6, the Wisconsin Supreme Court issued a 4-3 decision agreeing to hear a legal challenge to the state’s legislative maps that were drawn following the release of 2020 census data.
Filed in August on behalf of Wisconsin voters, the lawsuit asserts that the Wisconsin state Assembly and Senate districts are extreme partisan gerrymanders that unduly favor Republicans in violation of multiple provisions of the state constitution.
In Friday’s order, the court’s four liberal justices agreed to hear two of the petitioners’ alleged constitutional claims. One of the claims pertains to whether the state’s legislative districts violate the Wisconsin Constitution’s requirement that districts be contiguous and the other concerns whether the districts violate the Wisconsin Constitution’s separation of powers rule.
According to the petitioners, “[a] staggering 55 assembly districts and 21 senate districts—the majority of seats in each chamber of the Legislature—consist of a patchwork of disconnected pieces that do not share a common border with other parts of the same district” and therefore run afoul of the “Wisconsin Constitution’s plain-text ‘contiguous territory’ requirement.”
The petitioners underscore that the legislative districts — which were ultimately imposed by the Wisconsin Supreme Court in April 2022 — are the very same maps that the governor vetoed and the Legislature failed to override. “By judicially overriding that gubernatorial veto in the Legislature’s stead, this Court transgressed separation-of-powers boundaries and impermissibly intruded upon core powers of the executive and legislative branches,” the petition argues.
In a searing dissent from the majority’s decision agreeing to to take up the case, conservative Justice Annette Kingsland Zielger wrote: “In granting the petition in Clarke, four members of this court have chosen to chip away at the public’s faith in the judiciary as an independent impartial institution…and cast a hyper-partisan shadow of judicial bias over the decisions of this court. Such short-sighted behavior demonstrates the court majority’s sheer will to expedite a preconceived outcome for a particular constituency.”
In a separate order issued on Friday, the court’s newest liberal member, Justice Janet Protasiewicz, denied a request from Wisconsin legislators that she recuse herself from the redistricting lawsuit. Republican legislators have threatened to impeach Protasiewicz for her refusal to recuse herself from the redistricting litigation, her prior statements regarding unfair maps and her receipt of campaign contributions from the Wisconsin Democratic Party.
“On August 1, 2023, I swore a sacred oath to ‘faithfully and impartially discharge the duties of [my] office. In taking that oath, I promised—above all else—to decide cases based only on the rule of law, not my own personal opinions,” Protasiewicz wrote in the order.
Also on Friday, the Wisconsin Supreme Court declined to take up a parallel lawsuit over the state’s legislative maps brought on behalf of computational redistricting experts who alleged similar claims under the Wisconsin Constitution.
The Wisconsin Supreme Court will hear oral argument in Clarke v. Wisconsin Elections Commission on Tuesday, Nov. 21, 2023.