Matt Rothschild
Op Ed

State Supreme Court Wrong To Take On Redistricting Case

A violation of precedent, of state statutes and federal law.

By - Sep 26th, 2021 02:28 pm
Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.

Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.

The Wisconsin Supreme Court should have stayed out of the redistricting issue. Instead, on Wednesday, it decided to take original jurisdiction of the case brought by the rightwing law firm, the Wisconsin Institute for Law and Liberty.

The Wisconsin Supreme Court should have stayed out because our statutes say that redistricting cases in state court must start at the circuit court level, where a judge establishes the facts of the case and makes a preliminary ruling.

The Wisconsin Supreme Court should have stayed out because a panel of federal judges is already hearing a consolidated case on Wisconsin’s redistricting, so this presents a bizarre circumstance where some of the same issues are being adjudicated in state and federal court at the same time.

So this is a big waste of taxpayer dollars to pay for high-priced legal fees two times over.

What’s more, the plaintiffs in federal court have raised serious federal issues that properly belong in federal court, such as the doctrine of one person, one vote.

And in the past few decades, when Wisconsin’s redistricting has landed in court, it has always been the federal courts that heard the case. So precedent favors the federal courts taking this one, not the Wisconsin Supreme Court.

Justice Rebecca Dallet, writing the dissent for the three liberal justices on the court, made some of these very points.

She noted that “since the United States Supreme Court revolutionized the law on redistricting in Reynolds v. Sims,” the landmark redistricting case in 1964, it has been federal courts that have handled Wisconsin’s redistricting cases three times, she wrote. “PostReynolds, we have never done it.”

She also noted that “the federal courts have experience with the unique complexities of federal Voting Rights Act …We have no such experience.”

And, she added, “The federal courts will likely have the last word anyway. Whatever plan the legislature or this court adopts, it will be subject to challenge in a separate action filed in federal court and appealable to the United States Supreme Court.”

But the four conservative justices took the case any way.

In their statement accepting the case, they made two rulings that were especially concerning.

The first was this: “We decline to formally declare, at the onset, that a new apportionment plan is needed.” That is extremely odd, in that the Census Bureau has already delivered the data that shows the population changes that have occurred in Wisconsin. Dane County, for instance, saw an increase of 73,431 people so districts in Dane County are overpopulated now and people living in them do not have the same voice as people living in districts that actually had a population decline. The 1964 Reynolds case requires that each district have the same number of people in it so there is one person, one vote.

The second alarming ruling was in refusing to prevent the Legislature “from administering any election” with the old maps.

Both of these rulings suggest that the majority on the Wisconsin Supreme Court may be OK with keeping the rigged maps of 2011 for as long as they can.

That’s exactly what Robin Vos and Devin LeMahieu want, of course.

To give you a clue into how politically motivated the Wisconsin Institute’s lawsuit is, one of its plaintiffs is none other than Eric O’Keefe. When he was running the rightwing Wisconsin Club for Growth, O’Keefe was enmeshed in the John Doe II investigation as to whether Scott Walker violated campaign finance laws by having big donors funnel their campaign contributions through Wisconsin Club for Growth. In 2015, the rightwing majority on the Wisconsin Supreme Court fired the John Doe II prosecutor and shut down the investigation.

But I’m not terribly worried about the effort by the Wisconsin Supreme Court to grab on to the redistricting case.

There is no foregone conclusion as to how it will ultimately rule, for one thing. I’ve been surprised before by this court. And ultimately, I’m confident that the federal courts will have the upper hand on this one, and that we’ll end up with fairer maps this time around than we did ten years ago.

Matt Rothschild is the executive director of the Wisconsin Democracy Campaign.

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