Lawsuit against legislative maps filed at Wisconsin Supreme Court

One day after control of the Wisconsin Supreme Court flipped to a liberal-leaning majority, voting rights groups filed a lawsuit seeking to have the state’s legislative maps declared unconstitutional for favoring Republicans. 

The lawsuit, filed by the Wisconsin progressive law firm Law Forward, the Election Law Clinic at Harvard Law School, the Campaign Legal Center and two Madison-based law firms on behalf of 19 Wisconsin voters, argues that the legislative maps have skewed Wisconsin’s elections toward Republicans since 2012 by dividing communities and cramming Democratic voters into as few districts as possible. The suit does not challenge the state’s congressional maps. 

“The extreme partisan gerrymander that has changed everything in Wisconsin for more than 10 years now, it’s an affront against democracy and a violation of our state constitution,” Law Forward board president Jeff Mandell said at a Wednesday media briefing. “Every day that it continues is a violation of the most fundamental rights of every Wisconsinite. It must be ended.” 

Wisconsin’s legislative maps are considered one of the worst partisan gerrymanders in the country, allowing Republicans to hold near-super majorities in both legislative houses despite the state’s 50-50 political divide.

“Since 2012, even when Democrats have won as much as 53% of the statewide vote, they have held no more than 39 of the 99 Assembly seats,” the lawsuit states. “In the same period, even when Republicans have won as little as 44.8% of the statewide vote, they have held no fewer than 60 of the 99 Assembly seats. As intended by the 2011 partisan gerrymander, voting for state legislative districts has no effect on political party control of the state legislature and, therefore, constrains the ability of the people of the State of Wisconsin to effect legislative outcomes by electing representatives of their choice who reflect their preferred policies.” 

The suit also notes that in the November 2022 election, Republicans won 64 of 99 Assembly seats and a supermajority in the Senate even as Democrats won three of five statewide elections. 

Democratic Gov. Tony Evers said in a statement that if successful, the lawsuit will force legislators to listen to the voters.

“For years, members of the Wisconsin State Legislature have consistently ignored the will of the people, and they’ve been able to do so comfortably and without facing any real accountability because they have gerrymandered themselves into safe, partisan districts,” he said. “It’s time for that to change. Today’s filing is great news for our democracy and for the people of our state whose demands for fair maps and a nonpartisan redistricting process have gone repeatedly ignored by their legislators for years. The people of Wisconsin deserve fair maps and a Legislature that listens, and this lawsuit brings us one step closer to ensuring Wisconsinites’ voices are heard.” 

The lawsuit was filed one day after liberal-leaning Supreme Court Justice Janet Protasiewicz was sworn into the court, giving liberals a 4-3 majority for the first time in 15 years. During her campaign for the seat this spring, Protasiewicz regularly stated that the legislative maps are “rigged.” 

The suit, according to a summary provided by Law Forward, states that the maps retaliate against certain voters because of their beliefs, violating their constitutional rights to free speech and free assembly. 

The current maps were instituted by the Supreme Court last year after Gov. Tony Evers and the Republicans in the Legislature were unable to reach an agreement. In that case, the court’s then-conservative majority ultimately chose to institute the maps proposed by the Legislature, which were largely based on the 2011 maps that instituted the gerrymander. 

The lawsuit argues that by choosing the Legislature’s maps, the court violated Wisconsin’s separation of powers. Evers had vetoed the proposed maps in November 2021 and the Legislature failed to override that veto. By then instituting those maps, the lawsuit states, the court created a new and unconstitutional way for a gubernatorial veto to be overridden. 

Finally, the suit states that the current maps violate the Wisconsin constitution’s requirement that legislative districts be “contiguous,” because more than half of the districts aren’t completely adjoining. 

“It asks the Wisconsin Supreme Court to consider questions that have never been asked before,” Mandell said. “Does partisan gerrymandering violate the Wisconsin state constitutional promise of equal protection, does partisan gerrymandering violate the Wisconsin state constitutional promises of free speech and free assembly, and does partisan gerrymandering violate the state constitutional right to have a free government? To reach these questions, the court will first need to determine that it has the power to adjudicate a challenge to the partisan gerrymander. We strongly believe it can, and it should take this case on. Failure to do so would mean that our constitutional provisions are mere hollow promises, rather than declarations of individual rights.” 

The suit names as defendants the Wisconsin Elections Commission, its six members and the half of the Wisconsin Senate not up for re-election next year. If the court invalidates the maps, Mandell said those members would need to run for re-election in special elections next fall for two year terms before running again in 2026 to get the Senate back on its regular schedule of staggered four year terms. 

Sen. Mark Spreitzer (D-Beloit), one of the named defendants, said he was happy to have to run again if it means the state has fair maps.

“It is only fair for the entire legislature — including the 15th Senate District — to be up for election next year, so that voters will have the opportunity to elect the legislators of their choice on fair maps,” he said. “I welcome the opportunity to run on fair maps — it is what our Constitution demands and what Wisconsinites want.”

Defenders of the gerrymandered maps have often argued that the partisan sway is just a result of Wisconsin’s political geography; while the state is evenly divided politically, most of the Democrats are in Madison and Milwaukee while most of the Republicans are spread across the rest of the state.

“That is a smokescreen. That is not true,” said Mark Gaber, senior director of redistricting at the national voting rights focused nonprofit Campaign Legal Center. Graber, a Rhinelander native, said that diminishes the varying political views of people who live across the state in places such as Superior, Green Bay, Wausau and La Crosse. 

“There are a diverse array of political viewpoints across the state of Wisconsin,” Graber said. “There are districts that are drawn to ensure that the voters in those cities will never be able to elect their preferred candidate, that instead they’ll have their votes swamped out by a majority of often folks living in more rural areas.” 

Graber added that when the voters in the state’s mid-sized cities — which are often won by Democrats in statewide races — get divided and lumped in with rural and suburban voters, those cities lose out on being truly represented in Madison. 

“It doesn’t make sense from a partisan standpoint for sure, but more than that, it doesn’t make sense from just a representational standpoint,” he said. “The person that represents these cities ought to have some concern about their issues. The mayor ought to be able to contact that person and have a receptive ear. And you don’t have that when you’re solely focused on a partisan goal and not at all concerned about actual representation and real issues that people care about instead of ideological extremity.” 

Republican legislative leaders defended the maps as constitutional. Senate Majority Leader Devin LeMahieu (R-Oostburg) said in a statement that the timing of the lawsuit was questionable. 

“Wisconsin’s current legislative maps are valid and constitutional,” he said. “Instead of redefining their radical political platform to match the values of everyday Wisconsinites, liberal Democrats are counting on judicial fiat to help them gain power. The timing of this lawsuit questions the integrity of the court. It’s clear that liberal interest groups are coming to collect from Justice Protasiewicz after her campaign broke judicial code to earn their financial support earlier this year.”

Assembly Speaker Robin Vos (R-Rochester) said he expects Protasiewicz to recuse herself from the case because of her comments on the campaign trail.

A majority of the court must vote to accept the case. When the body decided the redistricting case last year, liberal-leaning Justice Jill Karofsky said that the court was “ill equipped” to handle such matters and the question was better suited for a federal court. 

On Wednesday, attorneys said that suit was asking a different question and that the U.S. Supreme Court has specifically ruled that state courts are better suited for partisan gerrymandering challenges.