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The Wisconsin supreme court appeared poised to strike down the current maps for the state legislature after three hours of oral argument on Tuesday, a decision that could end more than a decade of Republican dominance and eliminate some of the most gerrymandered districts in the United States.
The four liberal justices on the court all seemed ready to embrace an argument from challengers in the case, Clarke v Wisconsin elections commission, that the maps violate the state constitution because they include more than 70 districts. It was unclear, however, how the justices would handle the redrawing of a map and whether it would immediately order elections for the entire legislature next year in new districts. Wisconsin voters elect 99 assembly members every two years, but only about half of the 33-member state senate would normally be up for election next year.
Much of Tuesday’s oral argument focused on how to interpret the definition of contiguity in Wisconsin’s constitution. The document mandates that assembly districts “be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable” It says state senate districts shall be comprised of “convenient contiguous territory”. Despite that requirement, 75 of the state’s 132 legislative districts – 54 in the state assembly and 21 in the senate – contain at least one detached piece.
Taylor Meehan, an attorney for legislative Republicans, argued that districts had long been considered to be contiguous as long as they kept towns, counties and wards whole. In Wisconsin, localities have annexed disconnected parts of land that have resulted in strange shapes. “You can define contiguity as strictly or as loosely as you want,” she said.
“That’s the tail leading the dog. I’m pretty sure we’re supposed to look at the definition to determine what the law is,” said Jill Karofsky, a liberal elected in 2020, who asked some of the most pointed questions.
Justice Ann Walsh Bradley, another liberal on the court, said history from the time Wisconsin’s constitution led her to believe that it was “unconvincing” that contiguous could “mean something other than physical contact”.
Mark Gaber, a lawyer from the non-profit Campaign Legal Center who represented some of the challengers, also said that it was possible to draw physically contiguous districts that included the detached portions.
“There’s not a single place in Wisconsin where it’s not possible to bound the districts with county, town and ward lines and to be 100% contiguous,” Gaber said.
In 2011, Republicans drew districts for the state legislature that were so distorted in their favor that it made it impossible for them to lose their majorities. Last year, the state supreme court implemented new maps that made as little change as possible from the old ones when lawmakers and the state’s Democratic governor reached a redistricting impasse.
The court’s liberal wing seemed unsettled on how they would proceed with a potential remedy to fixing the maps (state election officials have said they would need a new map in place no later than 15 March 2024 for use in next year’s elections). The justices asked all of the lawyers in the case on Tuesday to submit the names of non-partisan mapmakers who could serve as a special master to advise them in coming up with new maps. The request signaled the court was aware of the need to move quickly if they are going to strike down the map.
Meehan, the attorney for legislative Republicans, and Richard Esenberg, an attorney with the conservative Wisconsin Institute for Law and Liberty, both argued that any non-contiguous defects in the map could be addressed with tweaks to the defective areas and without redrawing the entire map. Redrawing the entire map, they suggested, would simply allow the challengers a back door to try to get districts that were more friendly to Democrats. Meehan said the arguments were a “wolf in sheep’s clothing designed to backdoor a political statewide remedy”.
Karofsky seemed unpersuaded.
“Over half of the assembly districts in this state have a constitutional violation,” she said. “Why don’t we start clean?”
Sam Hirsch, a lawyer representing mathematicians and statisticians challenging the maps, urged the justices not to draw the map themselves, but instead give the legislature a chance to fix them. Getting involved in the actual districting, he said, was a “slippery slope that you don’t want to go down”.
Brian Hagedorn, a conservative justice, pressed the challengers to explain how they should think about partisan fairness if the maps get redrawn. He suggested that there was no way for a court to determine whether there was an acceptable number of Republican or Democratic districts.
Gaber responded with a much simpler principle that he said should guide their decision. “When voters go and vote, the maps should reflect how they voted,” he said.
Many of the questions from the conservative justices sharply pressed the challengers in the case why they had not raised their claims two years ago, when the supreme court initially decided the redistricting case. Justice Rebecca Bradley, one of the three conservatives on the seven-member court, repeatedly noted that two years ago, no party had raised a contiguity challenge and had stipulated that all the districts complied with the court’s definition of contiguity.
The clear subtext was that the challengers were bringing the new claims now because liberals flipped control of the supreme court. The case was filed the day after Janet Protasiewicz formally took her seat on the supreme court in August, flipping control of the bench and giving liberals a 4-3 majority. Protasiewicz, who called the maps “rigged” during her campaign last year, a comment that has prompted Republicans in the legislature to threaten impeaching her.
Bradley interrupted Mark Gaber, a lawyer for challengers, less than 10 seconds after he began his argument on Tuesday. “Where were your clients two years ago?” she asked. At one point Bradley bluntly said that the challengers were only bringing the case because the composition of the court had changed.
The question set the tone for many of the questions from Bradley and the court’s conservative minority. They pressed Gaber and other attorneys seeking to get rid of the maps on why they did not raise their arguments two years ago when the court picked the current maps.
“You are ultimately asking that this court unseat every assemblyman that was elected last year,” said Bradley, comparing the plaintiffs’ request to implement a new map before the 2024 elections – and additionally, to hold early special elections for representatives not up for election in 2024 – to Trump’s attempt to overturn the 2020 election. She later asked Esenberg, one of the attorneys defending the map, whether he really expected to get a fair hearing before the court.
Other challengers warned that a court decision wading into redistricting would invite future challenges and would signal there was no finality to rulings in redistricting cases. “Is there any end to this litigation?,” Annette Ziegler, a court’s chief justice and a conservative, asked at one point.
“It is remarkable to see a matter, a particular case or controversy, fully litigated before this court, and then an attempt made to effectively reopen this a year later, after a change in the composition of the court,” said Esenberg. He described a situation where the state repeatedly and rapidly adjusts its legislative maps, hindering representatives’ ability to serve their constituents in office.
“The constitution takes a back seat to what you just described?” countered Justice Rebecca Dallet.
Several of Bradley’s questions were pointed. At one point, she yelled at Karofsky, a liberal on the court, for cutting her off during a question and asked: “Are you arguing the case?”
The map for Wisconsin’s state assembly may be the most gerrymandered body in the US. It packs Democrats into as few districts as possible while splitting their influence elsewhere. Even though Wisconsin is one of the US’s most politically competitive states, Republicans have never held fewer than 60 seats in the state assembly since 2012. The gerrymandering in the assembly carries over to the state senate, where Wisconsin law requires districts to be comprised of three assembly districts.
The court’s liberal justices seemed less interested in a second part of the challenge to the map, an argument the way the maps came to be implemented ran afoul of the state constitution. In 2021, the state supreme court took over the redistricting process after the Democratic governor, Tony Evers, vetoed a GOP-drawn plan. The court, which then had a conservative majority, invited a range of submissions for a new map, but announced it would pick a proposal that made as little change as possible to the existing maps. It initially chose a plan drawn by Evers, but that map was rejected by the US supreme court. The state supreme court then chose a different plan submitted by legislative Republicans. It was the same map Evers had vetoed in 2021.
That decision, the challengers argue, allowed the legislature to essentially override Evers’s veto, the challengers say, violating the separation of powers between governmental branches. The state supreme court also exercised a constitutionally permissible role in choosing a map, they say, because the governor and lawmakers had reached an impasse.