In Defense of Gerrymandering

The decision by the Wisconsin Supreme Court’s new majority (consisting of Justices Jill Karofsky, Ann Walsh Bradley, Rebecca Dallet, Janet Protasiewicz) to invite briefs on the current gerrymandered state senate and assembly districts was greeted with outrage by their three colleagues (Chief Justice Annette Ziegler and Justices Rebecca Grassl Bradley and Brian Hagedorn). Ziegler wrote:

This original action is nothing more than a motion for reconsideration of this court’s decision in Johnson v. Wisconsin Elections Commission … and appears to have been filed only because of a change in the court’s membership.

This is not the first time that a Supreme Court has reconsidered a previous court’s decisions. Courts change when their personnel changes. The most notorious example is, of course, the U.S. Supreme Court’s decision to overturn Roe v. Wade with the support of the three Trump-appointed justices. If the court’s personnel consisted of the justices from, say, 2000 there is little doubt that Roe would have been safe.

The dissenters worry that the decision to accept briefs challenging the gerrymander will hurt the court’s reputation. Here, again is Ziegler:

In granting the petition in Clarke, four members of this court have chosen to chip away at the public’s faith in the judiciary as an independent impartial institution, undermine foundational judicial principles such as stare decisis, and cast a hyper-partisan shadow of judicial bias over the decisions of this court.

Ziegler appears to believe that eliminating or reducing partisan gerrymandering is bad for democracy. She says this action:

… appears to be evidence of a partisan and political, rather than a reasoned and restrained, approach, and thus departs from the constitutional role of the judiciary.

She seems to have it backwards. The greater damage to the court’s reputation was its willingness to perpetuate the extreme gerrymander established following the 2010 census. Polling consistently finds that most of the public dislikes redistricting aimed at entrenching either of the parties in power. This antipathy towards gerrymandered districts is also reflected in this spring’s vote for Supreme Court justice. In part, because of Protasiewicz’s description of the assembly map as “rigged” she received 55.5% of the vote.

Justice Grassl Bradley hits many of the same themes. She claims that getting rid of the gerrymander would “bestow an electoral advantage on Democrats.”

Their perverse politicization of this state’s highest court begins with the results—”Fair maps!”—and will end with decisions devoid of democratic integrity, and without democratic legitimacy. Would that it were The End, but the majority’s degradation of the court is only just beginning. Through the Looking Glass we go.

Justice Hagedorn strikes a less hysterical tone:

There’ll be time enough to evaluate the merits of these arguments as this case unfolds.

But that pragmatic tone is short lived:

But make no mistake, the process here smells. … Granting this petition comes at a steep price. Politics may be a team sport, but judging is not. We have no partisan team when deciding cases. Instead, we have sworn an oath to decide cases as neutral arbiters of the law, with no thumb on the scale for anyone.

On October 16th seven parties submitted briefs, including four supporting the challenge to the gerrymandered districts.

1. One of these four came from the petitioners, those bringing the suit. They were represented by a who’s-who of law firms active against gerrymanders, including the Campaign Legal Center, the Election Law Clinic at Harvard Law School, Law Forward, Stafford Rosenbaum, and Arnold & Porter.
2. A second brief against the gerrymander came from a group that had previously brought a second suit, called Wright. Apparently in the interest of simplicity, the court majority had rejected Wright.

There were also initial briefs:

3. From the Governor and
4. From Democratic state senators. Both are supported by attorneys from the Wisconsin Department of Justice.

Two briefs opposed the challenge to the map.

One was made up of members of the group that had originally pushed for the least change rule. This included Billie Johnson whose name was on the suit. This group is represented by the Wisconsin Institute for Law & Liberty.

The second brief supporting the gerrymandered maps came from the Wisconsin Legislature and Republican Senators. This group is represented by six right-wing law firms, who recently made a motion to dismiss the case, essentially arguing that that the Wisconsin gerrymander, having been renewed by the court, should be immune to any challenge.

Finally, there was a brief from the Wisconsin Elections Commission. The commission responded that it would take no position on the question of district maps, but stressed that any new maps need to be in place by March 15, 2024, in order to not interfere with the coming election.

Where is the Michael Best law firm in all this? The heavily gerrymandered maps aimed at making sure Democratic voters are never able to win a majority of seats in the Legislature following the 2010 census were a creation of that firm at public expense but working behind closed doors at the behest of the Republican leadership. Yet it has been notably quiet in the controversies that followed. Perhaps being known for an attack on democracy is not the best image for a mainstream law firm.

Around the globe, democracy is under attack. Wisconsin is not immune to the rise of autocracy. Often the death of democracy is an inside job. People are elected democratically, but then change the rules to entrench themselves. It could be argued that Wisconsin is in the middle stages of this pattern.

Following the 2010 election, the Republican party controlled the governorship and both houses of the Legislature. It took advantage of this trifecta to pass senate and assembly maps that made it nearly impossible for Democrats to regain control of either house.

Following the 2020 census, the state Supreme Court had an opportunity to correct this as part of the revision made necessary by population change. It could, for example, have asked a panel of federal judges to design non-gerrymandered maps. Instead, the then-conservative court majority chose to perpetuate the 2010 gerrymander by announcing that it would choose the map that made the “least change” to the existing maps.

Thus, the gerrymander continued. In the 2022 election. Tony Evers was reelected as governor with 51.7% of the vote while losing 60 of the 99 assembly districts and 20 of the 33 senate seats. The following year Protasiewicz won 55.5% of the vote while losing 17 of the 33 senate seats and 52 of the 99 assembly seats.

Having lost control of the Wisconsin Supreme Court, Republicans in the Legislature have to win back effective control by threatening to impeach the newest justice if she does not do their bidding.

What accounts for the meltdown of the three justices who suddenly find themselves in the minority? First, adopting the “least change” requirement guaranteed that the gerrymander targeting Democratic voters would continue for another decade. Yet when they were in the majority, they adopted that policy. Now, finding themselves in the minority, they insist that the maps cannot be reconsidered.

Based on their actions, the three members of the minority can only be viewed, and appear to view themselves, as agents of the Republican Party. Certainly, they cannot be viewed as friends of democracy.