Justices Favoring New Legislative Maps Face Tough Questions

Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.

The four-justice state Supreme Court majority that seems intent on ordering some new legislative district maps must answer some very complex logistical and political questions in whatever ruling it issues.

In three hours of lively debate last week, conservative justices repeatedly stressed that the district lines the court ordered in April 2022 is a legal precedent that should not be overturned until new lines are drawn after the 2030 census. “Everybody knows why we’re here,” said conservative Justice Rebecca Bradley, challenging lawyers for Democratic legislators and other groups who want new maps drawn before November 2024 elections

Bradley referred to the April election of Justice Janet Protasiewicz, who replaced retiring conservative Justice Pat Roggensack who was one of four justices that put in place the current boundaries that Democrats insist unfairly favor Republicans who have controlled the Legislature for 12 years.

The April 2022 ruling putting current lines in place was “conclusive,” Bradley insisted, asking lawyers for the Democrats why they “sat on their hands” and didn’t file the new challenge until Protasiewicz joined the Court in August.

But that reconsideration question was decided in October, when the new four-justice majority ordered that current legislative district lines be reviewed and Protasiewicz refused requests to recuse herself from the rehearing. That shifted the debate to important questions the four-justice majority will have to decide:

First, how badly do the current lines for the 99 Assembly districts, which are the building blocks for the 33 Senate districts, fail constitutional requirements that districts be “contiguous” and compact and respect town boundaries as much as possible? Should new maps be redrawn statewide, or only regionally?

The number of “islands” of voters whose homes are not physically connected to the Assembly district they are assigned to is unconstitutional and “shocks people,” argued Mark Gaber, one of several attorneys asking for new maps.

“Over half the Assembly districts in this state have a [contiguity] problem,” said Justice Jill Karofsky. “If we find these maps unconstitutional, don’t we just start all over?”

But “minor adjustments” in only three only regions — Oshkosh, Madison and Eau Claire — would move about 15,000 voters into new Assembly districts and fix most of those problems, countered Rick Esenberg of the Wisconsin Institute for Law and Liberty.

“You can fix this problem,” Esenberg added. “You exist to solve legal problems, and not to redistrict anew.”

Second, if both Assembly and Senate boundaries the court approved last year are unconstitutional, should special elections be held in November 2024 for the 17 senators who won four-year terms last November? That would mean that all 132 legislators – 99 Assembly members and 33 senators – would be up for election in November 2024.

“Unseating the 17 senators who won four-year terms last year would be an “extraordinary remedy,” Bradley said. “I can’t imagine something less democratic.”

Protasiewicz seemed to agree, calling forcing those 17 senators to run again an “extreme” option.

Third, who should draw new maps, since justices made it clear they do not have the technical expertise to do so? Justice Rebecca Dallet asked that question of every lawyer who appeared before the court, saying she wanted to make sure no special-interest group “put a thumb on the scale.”

Some lawyers offered the names of national experts in Alabama or California, or suggested that the Legislative Technology Services Bureau, which supports the Legislature, would have the expertise to implement any court order.

Justice Brian Hagedorn called court-drawn legislative districts a “slippery slope.” Every special-interest group involved offers maps favoring their partisan political interests, Hagedorn warned.

Fourth, would court-drawn maps violate the constitutional requirement that power be shared equally between the executive branch of government headed by the governor, the legislative branch and the judicial branch?

Because the state Constitution requires that new district lines be redrawn every 10 years by legislators and the governor, “You must give the Legislature a chance to redistrict,” said Taylor Meehan, representing Republican legislators.

Chief Justice Annette Ziegler, a conservative who also signed the order putting the current lines in place, was frustrated by the speed at which the new four-justice majority forced the full court to revisit whether those boundaries are constitutional. Ziegler noted that the court had no record of testimony and evidence from lower courts to consider.

“We don’t have facts before us,” Ziegler said. “Why start it here, and why start it now? This was fast-tracked to the end game.”

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com