Members of both the conservative and liberal wings of the Wisconsin Supreme Court seemed skeptical of a rule change, proposed by the conservative Wisconsin Institute for Law & Liberty (WILL), that would fast-track disputes over redistricting straight to the state’s highest court.
The justices’ skepticism came on both ideological and practical grounds.
Every ten years, Wisconsin must redraw its political maps and this time around, with a Republican-held Legislature and Democratic governor, the process is sure to be disputed. The last set of maps, drawn in 2011, locked in an impenetrable Republican majority in the state Legislature.
Gov. Tony Evers has made drawing fairer maps in 2021 a political priority, establishing a commission to come up with better ways to apportion the state’s political representation.
In Thursday’s hearing, Chief Justice Patience Roggensack said she didn’t understand why the rule change was necessary and that the court’s justices don’t have enough staff to take responsibility for drawing congressional and legislative maps.
“Drawing maps would take a huge staff. We don’t have them,” Roggensack said. ”I don’t know how in the world you think the court could ever draw the map.”
Justice Jill Karofsky questioned the need to put redistricting on a “rocket docket” when the court could always take up redistricting as an original action.
Justice Brian Hagedorn — who has recently sided with the court’s liberals in several high profile election cases — was more blunt asking what the petitioners’ motives were.
“What is it you really care about?” Hagedorn asked.
Rick Esenburg, the lawyer for WILL, which is representing former Republican Assembly Speaker Scott Jensen in the case, and Misha Tseytlin, attorney for Wisconsin’s Republican members of Congress, argued that the state’s goal should be to keep redistricting decisions out of the hands of the federal courts.
Tseytlin, to Justice Rebecca Dallet’s astonishment, argued that the goal of redistricting and the court’s involvement in the process shouldn’t be fairness.
“Fairness buries the lead,” Tseytlin said.
If the Legislature and governor are unable to agree, Tseytlin argued, the court should establish maps that hue as closely as possible to the last time Wisconsin’s representatives were able to agree on maps. Obviously, this would be 2011 when Republicans held power in both the executive and legislative branches — even though the state’s voters elected Democrats in every statewide race in 2018.
In the court’s public hearing on Thursday and in written comments submitted prior to the hearing, almost all of the participants opposed the rule change. Among the opponents are lawyers from Law Forward, a law firm established almost exclusively to push back against the legal activism of WILL.
In a press briefing ahead of the hearing, Law Forward Litigation Director Doug Poland said that accepting the rule would bypass the normal functions of the democratic system. Poland pointed out that justices Roggensack and Annette Ziegler made this exact point when the court considered and rejected this issue in 2009.
“We believe that the Jensen proposal that’s in front of the court now would do precisely the same thing, it would encourage litigation, encourage parties to go to litigation, before they actually sat down and attempted to work out the disputes or the differences through the mechanisms of government as intended,” Poland said.
The court’s decision will come after the justices deliberate privately while the state Legislature will vote on new maps later this year — after new population figures are provided by the U.S. Census Bureau.