With Gerrymandering Lawsuits In Hands of Judges, What Happens Next?
This will be the first time the state has used judicial panels to consider redistricting lawsuits.
The Wisconsin Supreme Court on Wednesday, June 9, 2021, at the Wisconsin State Capitol in Madison, Wis. Angela Major/WPR
At a time when states across the country are locked in redistricting battles aimed at swaying the balance of power in Congress, two lawsuits attempting to redraw Wisconsin’s congressional map are using a process that is anything but ordinary.The state Supreme Court has formed panels of circuit court judges to hear the map challenges, relying on a law passed by Republicans when they controlled all of state government more than a decade ago.
Here’s a look at how the state arrived at that process, and how it might play out.
How did we wind up with judicial panels hearing redistricting cases?
When the Wisconsin Supreme Court appointed two, three-judge panels to hear the congressional map lawsuits, liberal justices said they were required by law to follow that process.
The law in question was passed in 2011, when Republicans controlled the Legislature and the governorship, and conservatives held the Supreme Court’s majority.
At the time, Republicans argued the panels would bring circuit court judges from around the state to hear redistricting cases, rather than just having judges in deep-blue Dane County ruling on them.
As it turns out, both of the current map lawsuits will be heard in Madison. The panels include the two Dane County judges that oversaw the cases when they were initially filed, along with judges from Milwaukee, Marathon, Portage and Outagamie counties. Half of the judges on the panels were appointed by Democratic Gov. Tony Evers.
While conservative Justice Brian Hagedorn concurred with the Supreme Court’s decision to form the panels, he objected to the way the judges were picked and argued they should have been chosen randomly.
Wisconsin Supreme Court Justices Brian Hagedorn, left, and Jill Karofsky, right, sit together during Justice-elect Janet Protasiewicz’s investiture Tuesday, Aug. 1, 2023, at the Wisconsin State Capitol in Madison, Wis. Angela Major/WPR
Years ago, an attorney for Legislature warned the judicial panel statute may violate constitution
Drafting notes from the bill passed 14 years ago show an attorney with the nonpartisan Legislative Reference Bureau warned then-Senate Majority Leader Scott Fitzgerald that Republicans’ legislation requiring the Supreme Court to form judicial panels “may be in violation of the separation of powers doctrine” in the Wisconsin Constitution.
The bill was amended slightly to remove a requirement that the Supreme Court directly accept any appeals from redistricting orders from the panels. The final law gave the Supreme Court the option to hear appeals if it wants to.
Republican say panels can’t be used for these cases
Until now, the judicial panels have never been used in Wisconsin for map cases, and attorneys for Republicans say they they shouldn’t be used here, either.
They argue that because the current congressional map was adopted by the Wisconsin Supreme Court in 2022, lower courts are forbidden from overturning it.
Attorney Lucas Vebber of the conservative Wisconsin Institute for Law & Liberty is representing a group of voters hoping to keep the current congressional map in place. He called the Supreme Court’s appointment of the panels a “procedural order” and thinks justices could rule on the legality of the panels as the case proceeds.
“I think these are questions that will be answered eventually by the state Supreme Court,” Vebber said. “And then again, there’s also the chance of U.S. Supreme Court review here.”
Attorney Doug Poland, who represents business leaders who filed one of the lawsuits this year, told WPR the GOP claims are “preposterous.” Poland, who works for the liberal firm Law Forward, said his clients argue the map is an anticompetitive gerrymander, an argument that was never considered by the Supreme Court or any other in Wisconsin.
“We don’t think that our current case is one that asks the circuit court to overrule what the Wisconsin Supreme Court has done,” Poland said. “But even if, for some reason, the circuit court were to dismiss our claim, we still get an opportunity to be able to take our claim up to the Wisconsin Supreme Court and give that court a chance to take a look at these issues.”
Shawn Johnson/WPR
Wisconsin’s congressional map lawsuits will be heard amid battle for control of US House
The stakes in the current court battles over the shape of Wisconsin’s eight House districts are high. Under the current map, Republicans hold six of the seats and only the state’s 1st and 3rd congressional districts are considered competitive.
As the six county judges hearing the lawsuits mull the arguments for and against redrawing the districts, several other states have been locked in a battle to redraw their own districts to boost either the Republican or Democratic parties’ odds of winning control of Congress next year.
The embrace of gerrymandering in other states has Wisconsin redistricting reform advocates alarmed, with Wisconsin League of Women Voters Executive Director Debra Cronmiller describing it to WPR in August as “a constitutional crisis.”
Lawsuits calling for new Wisconsin congressional map are in the hands of 6 county judges. Now what? was originally published by Wisconsin Public Radio.
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