Wisconsin Supreme Court rules state voting maps unconstitutional

Court will choose new maps in time for 2024 election

By: - December 22, 2023 7:19 pm

Wisconsin Supreme Court chambers. (Baylor Spears | Wisconsin Examiner)

In a 4-3 decision released Friday afternoon, the Wisconsin Supreme Court held that Wisconsin’s voting maps as currently drawn violate the state constitution and must be redrawn in time for the 2024 election.

Under the Wisconsin Constitution, state legislative districts must consist of “contiguous territory.” Yet, the majority opinion states, “the number of state legislative districts containing territory completely disconnected from the rest of the district is striking.”

“At least 50 of 99 Assembly districts and at least 20 of 33 Senate districts include separate, detached territory,” states the majority opinion, written by Justice Jill Karofsky.

Contiguous districts are a safeguard against gerrymandering and help keep together groups of voters who live in the same areas and have the same interests, explains the decision, which includes maps highlighting the islands of noncontiguous voting areas in the state’s current districts.

The voters who brought the lawsuit, Clarke v. Wisconsin Elections Commission, argued that the current districts violate the constitution and asked the Court to  order the adoption of remedial maps. They also asked the Court to declare the November 2022 state Senate elections unlawful, and to order special elections for state Senate seats that would otherwise not be on the ballot until November 2026.

The Court’s ruling agrees with the petitioners that “Wisconsin’s state legislative districts must be composed of physically adjoining territory,” and enjoins the Wisconsin Elections Commission from using the current legislative maps in future elections. But it declined to invalidate the results of the 2022 state Senate elections.

Acknowledging that it is the Legislature’s role to draw voting maps, the majority opinion urges the Legislature to draw new maps that comport with the constitution. However, it also states, since the Legislature might not draw such maps or the governor might veto them, the Court will plan to adopt remedial maps that can be used in time for the 2024 elections and unless and until new, constitutional maps are enacted through the legislative process.

In a separate order, the Court asked for submissions of remedial legislative district maps from the parties to the lawsuit, along with expert evidence and an explanation of how their maps comport with the principles laid out in the Court’s opinion. The parties will then have the opportunity to respond to each other.

“Today’s decision from the Wisconsin Supreme Court is a victory for a representative democracy in the state of Wisconsin,” Dan Lenz, staff counsel for the public interest legal group Law Forward, which represented the petitioners, said in a statement. “For too long, rightwing interests have rigged the rules without any consequences. Gerrymandered maps have distorted the political landscape, stifling the voice of the voters. It challenges the very essence of fair representation and erodes confidence in our political system.”

Lenz also said that Law Forward will be working to draw “constitutional, fair, representative maps” to submit to the Court in the coming weeks.

The decision laid out the principles the Court will use in adopting remedial maps.

Unlike the last challenge to Wisconsin’s voting maps, in which the Court’s then-conservative majority set a standard of “least change,” instructing the Legislature and Gov. Tony Evers to submit maps that were as close as possible to the previous voting maps, the current Court will not consider “least change” as a standard at all and has overruled the “least change” standard from its previous decision.

The new maps, the Court held in its decision, must comply with the Wisconsin constitution’s contiguity requirement as well as the federal equal protection clause and the Voting Rights Act of 1965. In addition, the Court will consider other criteria in evaluating new maps, including reducing municipal splits and preserving communities of interest, as well as “partisan impact.”

“As a politically neutral and independent institution, we will take care to avoid selecting remedial maps designed to advantage one political party over another,” the decision states. “Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan impact entirely.”

The current maps were instituted by the Court in 2022, which was then controlled by a 4-3 conservative majority, after the Republican-held Legislature and Gov. Tony Evers were unable to reach a compromise on new maps. The conservative majority ruled in a series of decisions in Johnson v. Wisconsin Elections Commission that any proposed new maps must comply with a standard of “least change” from the gerrymandered 2011 maps. After the legal wrangling ended, the Court chose the exact maps that had been initially proposed by the Legislature, which closely followed the lines of the previous gerrymandered maps, although they had been vetoed by the governor. 

Wisconsin’s voting maps are widely considered among the most politically gerrymandered in the country. This was reflected in 2018 when Democrats swept every statewide election and earned 53% of Assembly votes cast statewide but only 36% of Assembly seats went to Democrats. Voters in Wisconsin are evenly split along partisan lines, and statewide races are often decided by slim margins. Currently, however, Republicans hold a 22-11 supermajority in the state Senate and a 64-35 near-supermajority in the Assembly.

The battle over gerrymandering played a central role in the recent election of Supreme Court Justice Janet Protasiewicz, flipping the Court’s majority from conservative to liberal for the first time in more than a decade and a half.

Protasiewicz described the maps as “rigged” during her campaign.

She won the statewide race for her seat by 11 points. Afterward, Assembly Speaker Robin Vos (R-Rocherster) threatened to impeach her if she did not recuse herself from any decision on the maps. But Vos has since said that impeachment is “unlikely.”

The political battle over Wisconsin’s maps was showcased in the dissents by the Court’s conservatives.

“This deal was sealed on election night,” Chief Justice Annette Ziegler wrote in her dissent, in which she criticized the new liberal majority. “Four justices remap Wisconsin even though this constitutional responsibility is to occur every ten years, after a census, by the other two branches of government.

“Their activism damages the judiciary as a whole,” Ziegler added.

“Today, the court dives headlong into politics, choosing to wield the power it has while it has it,” wrote Justice Brian Hagedorn. “Wisconsinites searching for an institution unpolluted by partisan warfare will not find it here.”

“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.

Evers embraced the decision. 

“It’s clear to me that a Republican-controlled Legislature that has consistently gerrymandered itself into comfortable, partisan majorities for more than a decade is incapable of preparing fair, nonpartisan maps deserving of the people of this state,” Evers said in a statement. “I agree with the Court’s determination that these maps are unconstitutional because the districts lack contiguity. Wisconsin is a purple state, and I look forward to submitting maps to the Court to consider and review that reflect and represent the makeup of our state.”

Clarke v. WEC Opinion

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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is the author of "Milked: How an American Crisis Brought Together Midwestern Dairy Farmers and Mexican Workers" which won the 2022 Studs and Ida Terkel award from The New Press. She is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She lives in Madison, Wisconsin with her husband and three daughters.

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