The Wisconsin supreme court will hear oral arguments on Tuesday in one of the most closely watched voting rights cases in the country this year. The challenge could ultimately lead to the court striking down districts in the state legislature, ending a cemented Republican majority, and upending politics in one of the US’s most politically competitive states.
The case, Clarke v Wisconsin Elections Commission, is significant because Wisconsin’s state legislative maps, and especially its state assembly districts, are widely considered to be among the most gerrymandered in the US. In 2011, Republicans redrew the districts in such a way that cemented an impenetrable majority. In the state assembly, Republicans have consistently won at least 60% of the 99 seats, sometimes with less than 50% of the statewide vote. In 2022, Governor Tony Evers, a Democrat, won re-election by three points, but carried just 38 of 99 assembly districts.
The Evers result underscored a disturbing anti-democratic reality in Wisconsin: the results of state legislative elections are determined before a single vote is cast. Because of that dynamic, the case could restore representation to Wisconsin voters, making their districts more responsive to how they vote.
What’s at stake in this case is really democracy in the state of Wisconsin
Jeff Mandel of Law Forward
A ruling striking down the maps is likely to result in a legislature in which Republicans have a much narrower majority and could reshape policymaking in Wisconsin. Issues that have broad public support in Wisconsin, like Medicaid expansion and marijuana legalization, have been non-starters in a legislature where the GOP majority is ironclad. A legislature in which Republicans are fearful of losing their majority may be more willing to at least consider broadly popular issues.
“What’s at stake in this case is really democracy in the state of Wisconsin,” said Jeff Mandel, president of Law Forward, which is representing some of the challengers in the suit.
Republicans have wielded their legislative power ruthlessly and effectively for more than a decade. When Democrats won the governor’s and attorney general’s offices in 2018, Republicans stripped them of some of their power. Republican lawmakers ignored Evers’ requests for special sessions on a myriad of issues. More recently, they launched an investigation into the 2020 election that devolved into chaos, have floated impeachment for a supreme court justice and attacked the non-partisan administrator of the state elections commission.
Then, liberals flipped control of the state supreme court in April in the most expensive state supreme court race in US history. Justice Janet Protasiewicz, the newest member of the court’s liberal majority, said during the campaign the maps were “rigged”, a comment that has led Republicans to call for her impeachment. The case was filed the day after Protasiewicz formally took her seat on the court in August.
Tuesday’s case is one of several in recent years that have focused on state courts and state constitutions as a vehicle to strike down gerrymandered maps. In 2019, the US supreme court said that federal courts could not do anything to stop partisan gerrymandering, but encouraged litigants to turn to state courts.
The challengers argue that the existing maps violate the Wisconsin state constitution for two reasons. First, they say, 75 of Wisconsin’s 132 state legislative districts are non-contiguous – 54 in the state assembly and 21 in the state senate. They argue that’s a clear violation of a state constitutional requirement that requires assembly districts to “be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable”. The constitution also says state senate districts must be “convenient contiguous territory”.
The contiguity requirement serves a democratic purpose, Mandel said. When someone has a problem in their community, it should be easy for them to band together with their neighbors and bring their grievances to a common representative.
“It is not easy or obvious for the people to figure this out when you scatter representatives from a district into these tiny municipal islands,” he said. “The vast majority of the districts in the state have this problem. It is a feature of the way they chose to draw this map. It is not a mistake or a slight mapmaking error or an oversight. It’s deliberate and it’s anti-democratic.”
The vast majority of the districts in the state have this [non-contiguity] problem. It is a feature of the way they chose to draw this map. It is not a mistake
Jeff Mandel of Law Forward
But lawyers representing legislative Republicans take a much different view of the contiguity requirement in their brief to the court. Districts are non-contiguous, they argued, because municipalities in the state have annexed islands that do not always touch the main part of its boundaries. The contiguity requirement in the state constitution refers to keeping towns and municipalities together, they said.
“Literal islands are ‘contiguous’ because they are joined together by municipal boundaries,” they write in one brief. “Invisible district lines do not stop legislators or voters from traveling between municipalities and nearby municipal islands,” they argue in another.
The challengers also argue that the process by which the maps were implemented violate the state constitution’s separation of powers.
Wisconsin Republicans initially passed a new map in 2021 that Evers vetoed. The state supreme court, then controlled by conservatives, accepted a request from a conservative group to take over the redistricting process.
The court, which had a conservative majority at the time, announced that it would make as little change as possible to the existing maps, a major win for Republicans since the districts were already heavily gerrymandered in their favor. The court then initially picked a map that had been submitted by Evers, but the US supreme court struck it down. The Wisconsin supreme court then picked maps that Republicans submitted. It was the same plan Evers had vetoed months earlier.
The new map preserved the Republican tilt in districts and shored up their advantage in the few places where they had been able to make inroads.
That decision by the court essentially amounted to an end run around Evers’ veto and violated the separation of powers in the Wisconsin constitution, the challengers in the case argue.
“The court took away or negated the governor’s veto power without ever saying he used it inappropriately or something like that,” Mandel said. “They just said, ‘Well, nonetheless, that becomes the law.’ That can’t be right.”
Republicans argue there was nothing unconstitutional about the process by which the court chose the maps. The court didn’t choose the map because it was rejected by the legislature, but picked it as one of several that were submitted by parties.
“The Governor and the Legislature – like the other parties – briefed the issues to the Court and supported their proposals with expert reports. And the Court – treating the Governor and Legislature as parties – selected among proposals as an appropriate least-changes judicial remedy,” they wrote.
Wisconsin election officials have said that any new map would need to be in place no later than 15 March 2024 in order to be used in next year’s elections. Because of that tight deadline, a ruling is expected in the case relatively quickly.
A decision striking down Wisconsin’s map would also be a major symbolic victory in efforts to rein in extreme partisan gerrymandering over the last decade.
The designers of these maps knew precisely how long these lines would endure. But almost no one else did
David Daley of FairVote
The district is the remaining crown jewel of a 2010 Republican effort called Project Redmap, which successfully flipped state legislatures across the country in favor of of the GOP, giving them the power to draw heavily distorted districts. Using a combination of litigation and ballot measures, Democrats and gerrymandering reformers have been able to strike down those maps in many places, but Wisconsin’s have remained untouched.
“The designers of these maps knew precisely how long these lines would endure. But almost no one else did,” said David Daley, a senior fellow at FairVote who wrote a book about Redmap called Ratf**ked: Why Your Vote Doesn’t Count. “I don’t think anyone understood that the consequences of the 2010 election in Wisconsin would be to leave Republicans in charge for another 14 years.”
“It’s been difficult to call the state a functioning democracy since early in Barack Obama’s first term,” he added. “It’s perhaps the most cautionary tale of the dangers of runaway partisan gerrymandering in an age where polarization and technology can allow operatives to draw maps that lock themselves in power not just for one entire electoral cycle, but well into a second decade.”