Gloves come off in Wisconsin Supreme Court bout over electoral maps

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard arguments Tuesday in yet another high-stakes lawsuit to decide the fate of gerrymandered electoral maps in the politically divided battleground.

Nineteen voters represented by Madison-based progressive firm Law Forward want the court to declare the district maps for the Wisconsin Assembly and Wisconsin Senate unconstitutional and require that all 132 legislative districts hold fresh elections under new maps in November 2024.

Tuesday's arguments delved into issues of whether the maps violate the Wisconsin Constitution’s contiguity requirements — that is, are the districts not physically connected enough — and whether adoption of the maps violated the state constitution’s separation of powers doctrine.

In their questioning, liberals on the court like Justices Jill Karofsky and Rebecca Dallet were keen to unpack the technicalities of how voting districts must be adequately connected and compact. The justices also solicited advice from each party as to how they should arrive at remedial maps should the plaintiffs get their way, and whom they should consult in that process.

Mark Gaber, an attorney for the plaintiffs with the Campaign Legal Center in Washington, noted that 75 Wisconsin legislative districts have noncontiguous parts not at all connected to the rest of the district, something he said is exceedingly rare nationwide.

“This shocks people across the country who look at this map,” Gaber said.

The court’s conservatives, especially Justice Rebecca Grassl Bradley, questioned the plaintiffs’ lawyers about the merits and timing of the lawsuit since the court handled the issue less than two years ago, as well as regarding how the judiciary’s handling of the fraught political process of redistricting this time around might unseat duly elected legislators.

Things occasionally got chippy during the three-hour arguments. At one point when Grassl Bradley was questioning Gaber about usurping the Legislature’s constitutional redistricting mandates, Karofsky began to talk over her, prompting Grassl Bradley to fire back and ask the liberal justice if she was “arguing the case” on behalf of the plaintiffs.

Wisconsin’s current maps were drawn by Republicans who control the Legislature and adopted last year by the high court, then with a 4-3 conservative majority. The maps largely reflect the advantages baked into maps drawn in 2011, which a federal judged tossed as unconstitutional before they were reinstated by the U.S. Supreme Court.

The court’s 2022 decision left Democrats facing another decade of elections under unfavorable maps they say leave them scant pathways to gain ground on the Republican majority, regardless of election results, in a crucial swing state where the last two presidential elections were decided by less than 25,000 votes.

Then Justice Janet Protasiewicz won a landslide victory in April, upending the ideological balance of Wisconsin’s highest court for the first time in more than a decade. Law Forward attorneys filed suit over the disputed maps the day after Protasiewicz was sworn in on Aug. 1.

In public statements and briefing in the case, Republicans — largely echoed by the court’s conservative justices — have called the redistricting lawsuit a “collateral attack” on the 2022 redistricting decision and an attempt to turn the court’s new majority into a liberal-friendly super-legislature.

Republicans broadened their attack by demanding Protasiewicz recuse herself from the case because she called the maps “rigged” and took around $10 million in donations from the Democratic Party of Wisconsin during her campaign, leveraging the threat of impeachment if she refused.

Though the effort has lost some steam, Assembly Speaker Robin Vos has maintained that impeachment is on the table for Protasiewicz, as is an appeal to the U.S. Supreme Court contingent on how the state supreme court case shakes out.

Notwithstanding the threat of impeachment, the new liberal justice — who has said her campaign-trail comments expressed “values” and not prejudgments of any specific legal claims — announced on Oct. 6 that she would not recuse.

The arrival of liberals’ lawsuit the day after the court swung in their favor was not lost on the conservative justices or lawyers advocating for the Legislature and other intervening parties on Tuesday. Grassl Bradley hammered on this point, rhetorically asking why the plaintiffs waited two years to sue if the maps are so grievously unconstitutional.

“Everyone knows the reason we are here is because there was a change in the court,” said the justice.

Grassl Bradley also at one point asked a lawyer if the court even amounted to a fair tribunal given Protasiewicz's comments and wondered if "reopening" the court's previous redistricting case delegitimized the court and the rule of law itself.

Taylor Meehan, a lawyer from Consovoy McCarthy arguing for the Legislature, called the case “a wolf in sheep’s clothing designed to back-door a political statewide remedy.”

Both she and Rick Esenberg, founder and general counsel of the conservative firm Wisconsin Institute for Law & Liberty, agreed the plaintiffs should not be able to get the court to throw out all of the Assembly and Senate maps because of noncontiguous districts which affect a relatively small number of people, and some of which have no people in them at all.

Overall, after she and some justices needled over the history of the term “contiguous” and its syntactic functions in different contexts, Meehan argued for a “looser” definition of contiguity rather than a stricter definition requiring outright physical contact.

In agreement with Grassl Bradley, Meehan said the relief calling for new elections for every Assembly and Senate seat next year should be dead in the water. Even Protasiewicz, who was mostly silent during arguments, indicated she thought this would be “extraordinary” and likely unprecedented relief.

Chief Justice Annette Ziegler said the court should not even be involved in redistricting cases at all, and Justice Brian Hagedorn wondered whether they were just setting the stage for perpetual grievance and uncertainty over the matter.

“This won’t settle anything,” Hagedorn said.

Follow @cnsjkelly

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit