How Republicans Opened the Door To Redistricting

Following the release of the 2020 US Census, members of the Wisconsin Supreme Court set about revising the state’s legislative district maps to incorporate changes in population. Three sets of maps needed to be updated–for the eight US House of Representatives members, the 33 state senators, and the 99 state Assembly members.

The first step in this process was to decide on a criterion to be used to rank proposed district maps. The members of what was then a conservative court voted in 2021 by 4-3 for a “least change” requirement, so the map that made the least change in the previous map would be chosen.

This criterion had the effect of locking in the existing Republican gerrymander for another ten years. In 2011 Republicans had controlled both the legislative and executive branches of state government and took advantage of that control to pass maps that were highly favorable to Republicans.

But in 2023, the state Senate and Assembly maps were successfully challenged as failing to meet state law. The law concerning legislative districts requires that they be “contiguous,” meaning that they are physically connected to each other. Instead, there were a number of districts that included “islands” completely surrounded by other districts.

The Supreme Court by then had a liberal majority, which ruled on a 4-3 vote that the state Senate and Assembly maps were illegal and called for nominations for replacement districts. It specifically rejected the least-change requirement. The result is a much more competitive state Senate and Assembly.

Unfortunately for the cause of electoral reform, the US House district map did not contain any so-called islands. As a result, the current congressional map is a direct descendant of the gerrymandered 2011 map. This can be seen in the present configuration of Congressional districts. Even though Wisconsin is highly competitive, Republicans enjoy four extremely safe seats while Democrats have only two. The remaining two are more competitive, but are currently held by Republicans, giving Republicans six of Wisconsin’s eight seats.

Early this year, two lawsuits were brought challenging Wisconsin’s Congressional districts. Both were brought as original actions, meaning that the Supreme Court was asked to consider them directly rather than submit them to a district court. A month later, the court rejected both petitions, declining the request that it commence an original action.

Ironically, a way forward was offered by another law that was passed by Scott Walker and the Republican Legislature in 2011. With the support of all Republicans—and no Democrats–Senate Bill 150 was enacted and became Act 44. It was meant to prevent “judge shopping” for liberal judges, Republicans argued, while Democrats argued it was meant to make it harder to challenge re-mapped districts by reducing the importance of Dane County judges. Two provisions of Act 44 are relevant to today’s situation. The new paragraph of 801.50 (4m) says that:

Venue of an action to challenge the apportionment of any congressional or state legislative district shall be as provided in s. 751.035. Not more than 5 days after an action to challenge the apportionment of a congressional or state legislative district is filed, the clerk of courts for the county where the action is filed shall notify the clerk of the supreme court of the filing.

This is completed by paragraph 751.035 (also new) entitled Assignment to a judicial panel; appeals, which says:

(1) Upon receiving notice under s.801.50 (4m), the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter. The supreme court shall choose one judge from each of 3 circuits and shall assign one of the circuits as the venue for all hearings and filings in the matter.

(2) Notwithstanding s. 801.58, no party may move for substitution of any circuit court judge assigned under this section.

(3) An appeal from any order or decision issued by the panel assigned pursuant to sub. (1) may be heard by the supreme court and may not be heard by a court of appeals for any district.

That is the law the Wisconsin Supreme Court is now following, much to the chagrin of Republicans. The high court has just announced the appointment of two three-judge panels, one for each of the two groups challenging Wisconsin’s congressional districts. It will be very interesting to see what these panels decide.