MADISON, Wis. (CN) — The liberal majority of the Wisconsin Supreme Court on Friday said the state’s current legislative electoral maps violate the state constitution and must be redrawn before upcoming 2024 elections in the crucial, politically split swing state.
The consequential 4-3 decision tasks the Republican-controlled Wisconsin Legislature with drawing new maps that satisfy state and federal law prior to next year's elections. Because time is short, the majority said the supreme court will concurrently undergo its own process of adopting remedial maps.
Wisconsin's primaries for the 2024 election cycle, including the presidential contest, are currently slated for April 2. The last two presidential elections in the state were decided by less than 25,000 votes.
Governor Tony Evers, a Democrat, would also have to sign off on the new maps via the usual process — a process that thus far has not worked, leaving map-drawing to the courts, including as recently as summer of 2022 when the high court adopted maps drawn by Republicans many considered gerrymandered in their favor. The adopted maps were largely the same as maps drawn in 2011, which a federal judge threw out as unconstitutional before the U.S. Supreme Court ultimately reinstated them.
Writing in the majority opinion, Justice Jill Karofsky seemed aware of the potential for impasse: “We are mindful, however, that the Legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power,” she wrote. In that case, Karofsky said, the high court will “proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process.”
Oral arguments in the underlying lawsuit over the maps last month mostly focused on whether they satisfied the Wisconsin Constitution’s contiguity requirements — that is, are the districts physically connected enough. The majority opinion made clear that the court’s liberals felt the maps failed this test in “a substantial number of districts.”
“We hold that the contiguity requirements in Article IV, Sections 4 and 5 mean what they say: Wisconsin’s state legislative districts must be composed of physically adjoining territory … 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 legislative maps in future elections,” Karofsky wrote.
Specifically, Karofsky said in the majority decision that at least 50 of Wisconsin’s 99 State Assembly districts and at least 20 of its 33 State Senate districts “contain territory completely disconnected from the rest of the district.”
The majority stopped short of saying that all the 2022 election results for the Senate are invalid, as the petitioners asked them to, which would have required every seat in that chamber to face special elections next year.
Should the justices be called upon to make the maps in place of the Legislature and the governor, the court will consider partisan impact while prioritizing even-handedness, Karofsky said.
“As a politically neutral and independent institution, we will take care to avoid selecting remedial maps designed to advantage one political party over another,” Karofsky said. “Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan impact entirely.”
Karofsky explained that “all parties will be given the opportunity to submit remedial legislative maps to the court, along with expert evidence and an explanation of how their maps comport with the principles laid out in this opinion,” further explaining that outside consultants will also be involved in the process.
Justice Janet Protasiewicz, a liberal elected to the court this year who drew ire and impeachment threats from conservatives for calling Wisconsin’s voting maps “rigged” on the campaign trail, and who refused Republicans’ calls for her to recuse from the redistricting case, co-signed Karofsky’s majority opinion along with fellow liberal Justices Rebecca Dallet and Ann Walsh Bradley.
Each of the supreme court’s three conservative justices penned dissenting opinions decrying the majority decision as a partisan power play that defies procedural norms and hands a huge victory to Democrats based on a change in the court’s membership and political tilt.
“This deal was sealed on election night,” said Chief Justice Annette Ziegler, referring to the election of Protasiewicz. The chief justice added that the redistricting lawsuit, which was filed a day after Protasiewicz was sworn in, should have been denied, a sentiment echoed by the other conservative justices. She called the majority’s moves “judicial activism on steroids.”
“With its first opinion as an openly progressive faction, the members of the majority shed their robes, usurp the prerogatives of the legislature, and deliver the spoils to their preferred political party,” said Justice Rebecca Grassl Bradley. “These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary and undermine democracy.”
Justice Brian Hagedorn called Friday’s majority decision “a sad turn for the Wisconsin Supreme Court.”
“Call it ‘promoting democracy’ or ‘ending gerrymandering’ if you’d like; but this is good, old-fashioned power politics. The court puts its thumb on the scale for one political party over another because four members of the court believe the policy choices made in the last redistricting law were harmful and must be undone. This decision is not the product of neutral, principled judging,” Hagedorn said.
Democrats and Republicans in Badger State government applauded and condemned the majority decision in turn.
“It’s clear to me that a Republican-controlled Legislature that has consistently gerrymandered itself into comfortable, partisan majorities for more than a decade is incapable of preparing fair, nonpartisan maps deserving of the people of this state,” said Governor Evers. “Wisconsin is a purple state, and I look forward to submitting maps to the court to consider and review that reflect and represent the makeup of our state.”
“Today is a great day for democracy in Wisconsin,” said Democratic Attorney General Josh Kaul.
Assembly Speaker Robin Vos, a Republican from Rochester, intimated that the outcome of the redistricting case was predictable, but that it was also not over yet.
“I said this was going to happen earlier this week. The case was pre-decided before it was even brought. Sad day for our state when the state supreme court just said last year that the existing lines are constitutional,” Vos said.
“The U.S. Supreme Court will have the last word,” concluded the state’s most powerful Republican, all but promising an appeal to the nation’s highest court.
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