The End of Extreme Gerrymandering in Wisconsin?
A look inside the state supreme court’s reversal on redistricting.
WHATEVER ELSE YOU MIGHT SAY ABOUT IT, the reaction by Wisconsin Supreme Court Chief Justice Annette Ziegler to the recent ruling by the court’s new liberal majority, one that could cut deep into the dominance of Republicans in state legislative elections, does not lack passion.
“Today is the latest in a series of power grabs by this new rogue court of four, creating a pattern of illicit power aggregation which disrupts, if not destroys, stability in the law,” she fumed in her dissent to the 4–3 decision issued December 22. “No longer is the judicial branch the least dangerous in Wisconsin.”
Justice Rebecca Bradley, like Ziegler one of three remaining court conservatives, was hardly less irate. Here’s how she put it:
With its first opinion as an openly progressive faction, the members of the majority shed their robes, usurp the prerogatives of the legislature, and deliver the spoils to their preferred political party. These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary, and undermine democracy.
Bradley concludes by building on Ziegler’s line of thought, saying “The majority’s diktat transforms the judiciary from the ‘least dangerous’ branch into one of the greatest threats to liberty the people of Wisconsin have ever faced.”
Justice Brian Hagedorn, the court’s third conservative, piled on. “All in all, the court’s opinion ignores inconvenient facts and issues, mischaracterizes the relevant arguments, and finds dubious grounds on which to achieve its politically motivated goals,” he wrote. “At the end of the day, the majority acts not to vindicate some legal principle, but to achieve a long sought-after goal: the redistribution of political power in the Wisconsin legislature.”
Although the three conservatives each penned a separate dissent, accounting for 179 pages of the 235-page decision, they were united in their outrage. All chided the majority for failing to follow stare decisis, the legal principle that the courts should adhere to precedent, specifically a case known as Johnson v. Wisconsin Elections Commission. (The majority said it is entitled to depart from this principle when a precedent decision is “unsound” and “misapplies the Wisconsin Constitution.”)
In the Johnson case, the U.S. Supreme Court rejected state legislative maps that had been submitted by Democratic Governor Tony Evers and accepted by the Wisconsin Supreme Court; the court then adopted maps crafted by Republicans that increased the party’s advantage. Currently, Wisconsin Republicans have a 22–11 supermajority in the state senate, and a 64–35 majority in the state assembly. Neither chamber reflects the evenly divided political affinities of the people of Wisconsin.
2024 is here. Sign up to get our independent coverage of this year’s campaigns and elections delivered straight to your inbox.
In the current case, Clarke v. Wisconsin Elections Commission, the court’s new majority threw out the state’s voter boundaries, said to be among the most gerrymandered in the nation, and ordered new ones in time for the state legislature’s August primary. It also said the court “will consider partisan impact” when evaluating maps, with the goal of achieving “political neutrality.”
The Clarke ruling came a day after a three-judge panel in Michigan ordered the redrawing of thirteen legislative districts in the Detroit area, on grounds that the redistricting process there was improperly influenced by race. Nationally, challenges to district boundary lines enacted after the 2020 census have been filed in more than a dozen states.
Voters in Wisconsin from both parties have long expressed their support for fairer electoral maps. Resolutions calling for an end to partisan redistricting have passed in forty-two of the state’s seventy-two counties.
While it is unlikely to result in Democratic control of the Wisconsin legislature, given the geographic distribution of the state’s voters, the Clarke decision could significantly increase the number of competitive districts. And that has the court’s no-longer-in-charge conservatives in a rage.
THE CLARKE DECISION WAS WRITTEN by Justice Jill Karofsky and joined by Justices Ann Walsh Bradley, Rebecca Dallet, and Janet Protasiewicz. Karofsky was elected to a ten-year term in 2020, ousting an incumbent conservative. Protasiewicz was elected in 2023, beating the same conservative in what was by far the most expensive judicial race in U.S. history, putting liberals in the court majority for the first time in decades.
Protasiewicz, during the campaign, called the state’s current electoral maps “absolutely, positively rigged,” as is undeniably true, and said she would “enjoy taking a fresh look” at them if elected. The Clarke suit was filed the day after her inauguration. Republicans in the state legislature openly mulled impeaching Protasiewicz for taking part in the case, although that threat cooled after at least two former court conservatives advised against it.
Ziegler, in her dissent, looks back with horror at the court’s 2004–2005 term, when a narrow majority “issued a series of blatantly activist decisions.” She’s referring to a brief period when one justice, who was elected as a conservative and usually voted like one, joined court liberals in a handful of cases.
Left unmentioned by Ziegler was any instance of judicial activism or extremism on the part of court conservatives. Like when it obliged the state Republican party’s desire that it outlaw absentee ballot drop boxes that had been used without problems for years. Or when, in December 2020, the Wisconsin Supreme Court nearly became the only court in the country to vote in favor of an election challenge brought by Donald Trump. (Ziegler, Rebecca Bradley, and a third conservative who has since retired were all on board, but their efforts failed when Hagedorn refused to go along.)
Karofsky’s majority decision found that “at least 50 assembly districts and at least 20 senate districts include separate, detached parts” and thus violate the state constitution’s requirement of “contiguous territory.” The court’s conservatives howled at this, noting that previous maps, including ones Evers signed off in the Johnson case, contained noncontiguous territory.
“Riding a Trojan horse named Contiguity, the majority breaches the lines of demarcation separating the judiciary from the political branches in order to transfer power from one political party to another,” wrote Rebecca Bradley in her dissent. She argued that any problems with contiguity could have been addressed without ordering a wholesale redrawing of the maps.
Bradley spins a dark vision of a future in which the state’s political maps are redrawn after every election that shifts the court’s ideological balance: “A supreme court election in 2025 could mean Clarke is overturned, Johnson is restored, and new maps adopted. In 2026 or 2027, Johnson could be overturned (again), Clarke resurrected, and new maps adopted. This cycle could repeat itself in 2028. And in 2029. And in 2030.”
It’s not an impossible scenario. But, importantly, its plausibility hinges on Bradley’s acknowledgement that, for all of their lip service to the principle of respecting precedent, the court’s conservatives, should they win back control, would most certainly seize any opportunity to restore maps that greatly favor Republicans. The next court election is in the spring of 2025, in which Ann Walsh Bradley, the court’s longest-tenured member, is up for re-election; a prominent conservative, Brad Schimel, formerly the state’s Republican attorney general, has already launched his campaign for this seat.
THE WISCONSIN LEGISLATURE INTENDS TO APPEAL the Clarke ruling to the same entity that delivered a big win for its skewed voting maps in the Johnson case. Vowed Assembly Speaker Robin Vos, the legislature’s most prominent Republican, “We will pursue all federal issues arising out of the redistricting litigation at the U.S. Supreme Court.”
But there is no guarantee that the Supreme Court will take the case, and some reason to believe it may not. The Clarke ruling, with its focus on contiguity, is grounded in state and not federal law.
“[The majority] did a really intentional job of sticking to very narrow state constitutional issues, which has the effect of insulating a lot of the decision from U.S. Supreme Court review,” Daniel Suhr, a Republican attorney who served in the administration of former Gov. Scott Walker, told the Milwaukee Journal Sentinel. “When a case is decided on only state constitutional grounds, there’s not a U.S. constitutional hook for the Supreme Court to rely on in intervening.”
Rebecca Bradley, in her dissent, mentions this strategy of insulation:
The majority chooses contiguity as a convenient conduit by which to toss the legislative maps adopted by this court in 2022 as a remedy for malapportionment, but any issue grounded in state law would suffice in order to insulate the majority’s activism from review by the United States Supreme Court.
The conservatives in their dissents all argue that Clarke is essentially a do-over of Johnson, and as such should never have been allowed. But at the same time, they acknowledge that the petitioners in the Johnson case did not raise the issue of contiguity while those in Clarke did. That’s what gives the Clarke case a shot at surviving a U.S. Supreme Court review.
According to the Wisconsin Elections Commission, new maps must be finalized by mid-March for candidates to be on ballots in time for the state’s August 13 primary. With that goal in mind, a scheduling order for the case calls on the parties to propose new maps by January 12 and submit briefs in support by January 22. Two redistricting consultants hired by the court must evaluate the maps by February 1, giving the parties one week to review.
Both consultants are academics who have been involved in redrawing voter maps in other states. One of them, a postdoctoral fellow named Jonathan Cervas, drew up maps in New York that led to Republicans winning more seats.
If lawmakers and Governor Evers are unable to agree on new maps, the court will assume responsibility for this task. This has happened with prior redistrictings.
Late last week, the GOP-led legislature filed a motion for reconsideration with the court, saying there is not enough time to come up with new maps. The court promptly set a deadline of January 4 for responses. It’s not waiting around for anyone.
The majority, in its ruling, said that if the court draws the maps, it “will take care to avoid selecting remedial maps designed to advantage one political party over another.” The court’s conservatives, in their dissents, made it clear that they consider any such effort to be anathema.
As Ziegler expressed it, with raw candor, “our searching review of the Wisconsin Constitution revealed nothing setting forth any cognizable right to partisan fairness in redistricting.” Rebecca Bradley, meanwhile, warned that “Opening the door to judicial policymaking in this manner invites interest groups of every kind to demand ‘fairness’ in representation on any basis whatsoever: sex, religion, age, socioeconomic status, gender identity, etc.”
That’s the problem with fairness: you never know where it will end.
But perhaps the most striking lament was sounded by Hagedorn, who clucked, “Wisconsinites searching for an institution unpolluted by partisan warfare will not find it here.”
Of course not. The Wisconsin Supreme Court has not been free from partisan influence for many years, if ever. That’s why previous courts, controlled by conservatives, allowed Republicans to draw maps that gave themselves an overwhelming advantage. This is no time to pretend that the Wisconsin Supreme Court, or any other, might possibly be “unpolluted” by politics.