MADISON, Wis. (CN) — The Wisconsin Supreme Court on Tuesday indicated justices will play a limited hands-off role in settling a bitter dispute over how the state’s decennial legislative and congressional maps are drawn. It's an innately political process the court’s majority said is not the judiciary's prerogative.
The high court’s 4-3 order split along party lines said justices will only adjust the current electoral maps to compensate for population shifts represented in the 2020 census data and ensure they pass constitutional and statutory muster.
What the state’s highest court will not do is weigh in on whether the maps are distorted by partisan gerrymandering to give one party an unfair advantage, the court’s majority said.
“Claims of political unfairness in the maps present political questions, not legal ones,” wrote Justice Rebecca Grassl Bradley for the majority. “Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary.”
Bradley said the Wisconsin Constitution requires the legislature to establish new maps and “nothing in the constitution empowers this court to second-guess those policy choices, and nothing in the constitution vests this court with the power of the legislature to enact new maps,” eschewing any role for the court in deciding whether the maps are fair.
Bradley, a conservative, was joined in the majority by Chief Justice Annette Ziegler, Justice Patience Roggensack and Justice Brian Hagedorn, encompassing all the court’s right-leaning justices.
The partisan bickering and flurry of litigation surrounding Wisconsin’s redistricting speaks to its general importance as a purple-hued swing state. But the current fight over maps to be finalized in 2022 specifically echoes the protracted legal battle over maps drawn by the Wisconsin Legislature’s GOP majority a decade ago, which some Democrats and nonpartisan watchdogs condemned as an unconstitutional, blatantly partisan ploy to dilute Democratic votes.
A handful of Democratic voters sued over 2011 maps drawn by the GOP legislative majority and approved by then-Republican Governor Scott Walker. A federal panel struck down the 2011 maps in 2016 as unconstitutionally gerrymandered, but the U.S. Supreme Court vacated that ruling in 2018 because the plaintiff voters did not prove they had standing.
A renewal of the Wisconsin lawsuit was voluntarily dismissed in June 2019, one day after a split U.S. Supreme Court ruled in a case out of North Carolina that the courts should have no role in the political process of redistricting, delivering a serious blow to election-reform advocates.
Justice Rebecca Dallet called to mind the Badger State’s recent history of partisan gerrymandering in a dissenting opinion on Tuesday, arguing that the majority’s patina of neutrality actually guarantees a lopsided edge for Republicans based on the controversial 2011 maps, thereby “inserting the court directly into politics by ratifying outdated partisan political choices.”
“In that way, adopting a least-change approach is an inherently political choice,” Dallet said. “Try as it might, the majority is fooling no one by proclaiming its decision is neutral and apolitical.”
Dallet’s dissent was joined by the court’s other two liberals, Justices Ann Walsh Bradley and Jill Jarofsky.
In a separate opinion concurring with the majority, Hagedorn agreed the court’s role in redistricting should be “modest and restrained,” but he offered that justices could consider more than just legal requirements in their remedy, such as the importance of keeping together communities of interest.
Democratic Wisconsin Governor Tony Evers, who has locked horns with the state legislature’s GOP majority over elections and most everything else, vetoed the GOP majority’s maps earlier this month, calling them “gerrymandering 2.0.” The Princeton Gerrymandering Project gave the vetoed maps an “F” rating, deeming them “very uncompetitive relative to other maps that could have been drawn.”
Evers in 2020 created a nonpartisan redistricting panel comprised of people from each of Wisconsin’s eight congressional districts, though the panel’s findings do not carry the force of law. The panel’s proposed maps for the coming redistricting were discarded in bipartisan fashion this month, with some members of the Legislature’s Black and Latino caucuses blasting the panel’s maps for diluting votes from people of color.
The Wisconsin Institute for Law & Liberty, a conservative advocacy group representing the voters who petitioned the state supreme court to take jurisdiction over redistricting disputes, applauded the high court’s decision on Tuesday, saying “we are pleased that the court agreed with our arguments that political partisanship is not an appropriate factor to consider when redrawing district maps and that it should follow a least-changes approach in accomplishing its task.”
Aside from the lawsuit in the state supreme court, a group of voters in August asked a federal panel for judicial intervention in drawing new legislative and congressional maps. That action, consolidated with another from community activist groups and others, was stayed two weeks ago until January to give the state supreme court time to weigh in on the state lawsuit.
Federal courts have typically handled redistricting disputes in recent decades, but this year the Wisconsin Supreme Court is taking on the flashpoint issue for the first time since 1964.
The competing parties in the state lawsuit now have until Dec. 15 to file proposed maps with the high court, and response and reply briefs are due by Dec. 30 and Jan. 4, respectively.
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