The new 4-3 liberal majority on the Wisconsin Supreme Court determined days before Christmas that Wisconsin legislative maps – adopted over 2 years ago and extensively litigated at the time – are now unconstitutional and must be redrawn. They argued the current districts do not meet the constitutional requirement for contiguity.
“We hold that the contiguity requirements in Article IV, Sections 4 & 5 mean what they say: Wisconsin’s state legislative districts must be composed of physically adjoining territory. The constitutional text and our precedent support this common-sense interpretation of contiguity. Because the current state legislative districts contain separate, detached territory, and therefore violate the constitution’s contiguity requirements, we enjoin the Wisconsin Elections Commission from using the current maps in future elections. We also reject each of Respondent’s defenses. We decline, however, to issue a writ quo warranto invalidating the results of the 2022 state senate elections.”
So how did we get here? In the fall of 2021, the previous 4-3 conservative majority of the Wisconsin Supreme Court ordered maps to be redrawn as required by the US Constitution after each decennial census to follow a “least change” approach to each district. The least change directive was based on past legal decisions. With “least change” in mind, the GOP majorities and Governor Evers filed congressional and legislative maps for the Supreme Court to consider.
An unusual 4-3 court majority consisting of liberal justices Jill Karofsky, Rebecca Dallet, and Ann Walsh Bradley were joined by conservative justice Brian Hagedorn in selecting Governor Evers’ congressional and legislative maps as the best option for the state.
Republicans appealed the decision to the US Supreme Court which upheld Governor Evers’s congressional maps but remanded the legislative maps back to the state court due to “potential violations of the Voting Rights Act and the Equal Protection Clause of the 14th Amendment.”
Important to note, that there was bipartisan opposition to Governor Evers’s legislative maps when they were voted on in the state legislature. Several Black lawmakers were opposed to the Governor “diluting” minority voter concentration by trying to create an additional minority seat.
By way of background, Republicans won six (6) of eight (8) congressional seats in the 2022 election using maps drawn by Democrat Governor Evers and approved by the Wisconsin and US Supreme Court. The Evers congressional maps have not been challenged.
Governor Evers’s original court-approved legislative maps would have produced GOP majorities in both houses, too. Former Governor Scott Walker won 57 Assembly seats on the Evers maps while former President Donald Trump won 56.
The Wisconsin Supreme Court had three potential options when SCOTUS remanded the legislative maps: 1. Redraw the maps themselves, 2. Allow the Governor to cure his maps, or 3. Select the GOP maps. The court chose the GOP maps for solid reasons, but are now subject to the recent challenge solely because the court majority changed, which is not how any court should function. One of the possible reasons the previous court chose the GOP maps is, ironically, because they split half as many communities as the Governor’s legislative maps.
Common Sense Wisconsin did a detailed analysis of all the maps that were submitted to the court for consideration and found the Governor’s legislative maps split the most communities and were also non-contiguous. The analysis prepared by redistricting expert and Common Sense Wisconsin Executive Director Joe Handrick says, “Just when you thought no one could do worse than the Peoples Maps Commission in preservation of local units of government, along comes the new Evers ‘hold my beer’ maps.”
The Evers legislative map which was approved by three current liberal justices Jill Karofsky, Rebecca Dallet, Ann Walsh Bradley, and conservative Brian Hagedorn split 107 municipalities compared to the GOP map which split 48 municipalities. These three liberal justices were joined by new liberal justice Janet Protasiewicz in declaring the current court-approved maps unconstitutional because they didn’t follow the Constitutional contiguity requirement. This was a head-scratching ruling, however, because both maps the court approved in 2022 contained the exact same type of non-contiguities.
Chief Justice Annette Ziegler said, “Four justices remap Wisconsin even though the constitutional responsibility is to occur every ten years, after a census, by the two other branches of government. The public understands this.” She went on to accuse the four justices of judicial activism. But this was to be expected, right? In an unprecedented step, Protasiewicz promised voters prior to her election in April 2023 how she would likely rule on any redistricting case by plainly stating the current legislative maps were “rigged.”
Joe Handrick Memorandum
The Wisconsin Constitution requires districts to be made of “contiguous territory.” However, since the 1970s, this has meant that some island territory could exist if it were part of a municipality that was not entirely contiguous itself. Court-drawn maps in 1971, 1981, 1991, and 2001 all included non-contiguous territory. So did legislatively drawn maps in 1983 and 2011 and the current court-approved map in 2021. Republicans argued in the Johnson case that established the current legislative maps:
“For the last five decades, everyone – including the court, the Legislature, the Governor and every litigant in Johnson – has understood the Wisconsin Constitution’s contiguity requirement to allow detached sections of the same political jurisdiction to be a part of the same legislative district, even if that creates geographical islands.”
The new liberal Wisconsin Supreme Court majority ignored 50+ years of precedent, and previously implied acceptance of past precedent regarding contiguity by three of the four liberal justices, to find a pathway to declare the current court-approved legislative maps unconstitutional. But if the new liberal majority can do this, then why couldn’t a future conservative court majority reverse this decision in 2025 or 2026 if conservatives retake the majority in the spring of 2025? The bottom line is this is a very slippery legal slope that could cause endless political chaos.
Perhaps more stunning is the court gave the litigants only a few weeks to submit new maps for the court’s review thus denying due process guaranteed under the 14th Amendment. The Wisconsin Constitution clearly states in Article 4, Section 3: “At its first session after each enumeration made by the authority of the United States, the Legislature shall apportion and district anew the members of the senate and assembly, according to number of inhabitants.” The Legislature is the ONLY body granted the power to redistrict. Yet petitioners argued in their brief, “if the map is deemed unconstitutional, the Governor and Legislature should NOT have the opportunity to cure the violations.”
The legislature and governor agreed on maps in 1983 and 2011 when one party had control of the legislature and the governor’s mansion. The 1983 Democrat-drawn maps reversed court-drawn maps from 1981. Democrats had an opportunity to exercise raw political power, and they did. Same with Republicans in 2011. But there were two other times in the past 50 years when one party had complete control and they chose NOT to excise raw political power to draw new maps favoring their party: In 1995, Republicans had full control and could have drawn new maps that may have protected George Petak from being recalled for his support of the new Brewers stadium. In 2009, Democrats had full control and could have drawn maps that may have prevented a complete GOP takeover in 2010 which led to the Republican-drawn maps of 2011.
Republicans already appealed the recent Wisconsin Supreme Court decision. It is extremely well-researched and written with an eye toward the US Supreme Court’s involvement in the case based on potential violations of the 14th Amendment.
2023AP001399 – Memorandum in support of motion for reconsideration of 12-22-23 decision and scheduling order (wicourts.gov)
You may be asking yourself why we are even talking about new legislative maps. Is the public demanding change? Look no further than a recent statewide survey by Marquette Law School Survey Center to find the answer. They asked 908 registered voters from October 26 – November 2, 2023, the following redistricting question:
“A case currently before the state Supreme Court could require maps of the legislative districts for the state Senate and Assembly to be redrawn for the upcoming elections. Do you favor redrawing the district maps or shout the maps created prior to the 2022 elections remain in place until the next scheduled redistricting in 2031?”
According to the MU Law School poll, 51% of all registered voters want to keep the current maps in place. Only 45% want the maps redrawn. Male voters favor the current maps 54% to 42% while women favor the current maps 48% to 47%. The ONLY demographics who support new maps are 18–29-year-olds 58% to 38%; Democrats 73% to 23%; voters in the city and county of Milwaukee 52% to 44%; and voters in the Madison DMA 61% to 35%. Here are the key crosstabs:
The survey was completed after the Wisconsin Supreme Court agreed to hear the latest redistricting challenge.
Democrats argue in the current case “The court should adopt maps that ‘promote responsiveness to the vote’, while applying constitutional and statutory requirements.” Their allies created a “Fair Maps” Coalition to promote this theory and they have spent millions over the past few years to convince voters the current maps are unfair. There are a couple of serious problems with the theory or responsiveness to voters: 1. Evers statewide results didn’t produce a coattail effect, and 2. Previous statewide elections that should have produced a major coattail effect, didn’t.
Governor Evers was reelected with 51.2% of the vote. He beat Republican Tim Michels by 90,239 votes or roughly 3.4%. Evers won 16 of 72 (22%) of Wisconsin counties. Hardly a mandate by historical standards. Moreover, Evers captured 482,650 (35.5% of his total) votes in Dane and Milwaukee County alone. Evers’s slim margin was not enough to create coattails for legislative Democrats. Perhaps the petitioner’s meant responsiveness to the Dane and Milwaukee County vote.
Compare Evers 2022 results to Tommy Thompson’s reelection in 1994. Governor Thompson beat state Senator Chuck Chvala by a 67% – 30% margin – a whopping 37%! Tommy’s margin is second only to Republican John Blaine capturing 76% more than 100 years ago in 1922. Tommy won 71 of 72 counties including Dane and Milwaukee and beat Chvala by 568,476 votes. Tommy clearly had a mandate from the voters, and his margin was large enough to create coattails for Republican legislative candidates to help them win back slim majorities in both houses for the first time in a generation. If you agree with the petitioner’s theory of maps reflecting responsiveness to the vote, then Tommy’s 1994 victory should have created GOP supermajorities in both houses in 1995. The GOP wasn’t even close to that. More importantly, the GOP didn’t use their new majorities or Tommy’s mandate to create more favorable maps for themselves.
Conclusion:
The Supreme Court may soon decide if the Wisconsin Supreme Court violated the 14th Amendment in denying Republicans due process to carry out their Constitutional duty to draw maps anew based on the new complete adherence to the Constitutional Contiguity standard. SCOTUS may also decide whether Justice Protasiewicz could legally hear the redistricting case after accepting more than half of her $17 million campaign donations (a state record) from the Democrat Party of Wisconsin. If SCOTUS engages on one or both subjects, we could be right back to the current legislative maps for the 2024 election. If SCOTUS does not engage on the current case, then we could see another new set of maps in 2026 if conservatives win back the majority on the Wisconsin Supreme Court in April of 2025.
The bottom line is the liberal Wisconsin Supreme Court majority decided this case way before briefs were filed. The fix was in. Three liberal justices had to overlook 50+ years of precedent regarding contiguity and then reverse their implied approval of non-contiguous maps submitted by Governor Evers to get here. They just needed a fourth vote to make it happen and they got that when Janet Protasiewicz took the unprecedented step of promising liberal activists how she would rule on the maps during her campaign. Moreover, recent statewide polling shows voters don’t want the current maps to be redrawn. The best way to win more legislative seats is to recruit candidates who reflect the voters in a particular district and who focus on issues most important to their voters, not the issues most important to voters in Dane and Milwaukee Counties. It’s a simple, proven formula for success, but it’s not as easy as having the court draw more favorable maps.
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