Challenge to Wisconsin election maps undergoes sharp questioning before state Supreme Court

MADISON – A ruling on a bid to overturn Wisconsin's legislative maps heavily tilted in favor of Republicans now rests with the state Supreme Court and its newly constituted liberal majority after it heard three hours of arguments Tuesday.

Law Forward, a Madison-based liberal-leaning law firm focused on voting issues, brought the legal challenge straight to the Supreme Court in August — bypassing lower courts in an expedited effort that could lead to an outcome before the 2024 elections.

Attorneys for the voters who filed the challenge are asking justices to declare the state's legislative districts unconstitutional and order new maps drawn based on "traditional redistricting criteria" in addition to what's required under state law by mid-March 2024.

"That remedy cannot be a partisan gerrymander in intent or in effect," attorneys for the voters argued.

Such a ruling would put every member of the Legislature up for reelection next year.

The court's three conservative justices opposed the four liberal justices' decision to take up the challenge to the state's legislative maps, and were quick to press attorneys during Tuesday's oral arguments on why the court should revisit the issue just two years after a previous case.

"Everybody knows that the reason we're here is because there was a change in the membership of the court," said conservative Justice Rebecca Bradley, who interrupted Campaign Legal Center attorney Mark Gaber within seconds of his remarks to the court.

Bradley was referring to the court's newest member, liberal Justice Janet Protasiewicz, who has rejected calls from GOP legislative leaders to recuse herself from the lawsuit after referring to the state's electoral maps on the campaign trail as "rigged." Protasiewicz was elected in April with an 11-point margin.

Gaber disputed Bradley's assessment, arguing the question of whether the state's legislative districts are unconstitutionally non-contiguous would have been brought to the court regardless of the recent election outcome.

The petition to the court argues the existing maps "retaliate against some voters based on their viewpoint and free speech, in violation of Wisconsin’s guarantee of free speech... treat some voters worse than others based on their political views and where they live in violation of Wisconsin’s guarantee of equality... and violate the promise of a free government found in the Wisconsin constitution."

The lawsuit, brought by 19 Wisconsin residents, argues that by adopting a set of maps vetoed by Gov. Tony Evers in 2021, the state Supreme Court violated separation of powers rules. It also argues the maps violate the state's Constitution because some districts include pieces of land that are not connected, like Senate District 22 in the southeast area of the state and Senate Districts 16 and 26 in Madison.

Wisconsin's electoral maps are "unsalvageable" and "infected" with partisan bias, attorneys for Democratic voters and Evers argued in court filings.

The Wisconsin Elections Commission and state senators representing odd-numbered districts are named as respondents in the lawsuit. Additional parties, including Evers, have intervened.

The challenge relies on a legal remedy known as a writ of quo warranto, which can be used to challenge a lawmaker's right to hold office. If the lawsuit is successful, it will force the named senators to run in new districts in a special election in 2024 for a new two-year term despite being in the middle of a four-year term.

The suit does not challenge Assembly members or the rest of the Senate districts because those lawmakers are already up for reelection next year.

Attorneys for Republican senators named in the suit called the challenge a "collateral attack" on a previous state Supreme Court ruling on the state's voting maps, asking "the Court’s new majority to transform itself into a super-legislature." They have urged the court to dismiss the lawsuit and "reject the invitation to exercise raw political power."

During Tuesday's hearing, conservative justices questioned whether granting the plaintiffs' requests would invalidate legislative actions taken by lawmakers who are, according to their arguments, not lawfully in their seats.

"That's an extraordinary remedy which, in the past, when it's been requested in Trump v. Biden, this court rejected. It's an absolutely extraordinary remedy," Bradley said. "There's many intonations about democracy throughout the briefing. I can't imagine something less democratic than unseating most of the Legislature that was duly elected last year."

Taylor Meehan, an attorney representing Republican lawmakers, also invoked the court's 4-3 ruling in 2020 upholding Democratic President Joe Biden's victory over Republican former President Donald Trump. In that decision, conservative Justice Brian Hagedorn joined the court's then liberal minority to confirm Biden's win.

"I cannot see how you refuse to recount or unwind lawfully counted ballots in a case involving the Republican presidential candidate, but you would do so here for lawfully elected senators," Meehan argued to the court.

The court's justices focused heavily on asking attorneys who the court ought to look to for advice on redrawing maps, and what criteria should be considered if the court finds the current districts are unconstitutional.

"I don't want to let you get in the back door what we didn't allow in the front door — that is, arguments regarding partisan gerrymandering," said liberal Justice Ann Walsh Bradley, who is not related to Justice Rebecca Bradley.

Political districts typically are redrawn once every 10 years, following the completion of the U.S. Census. The legislative districts must have equal populations, but the district boundaries can confer advantages on one political party over another.

The current maps tilt heavily in Republicans’ favor, with 63 of the 99 Assembly seats and 23 of the 33 Senate seats leaning toward the GOP, according to a 2021 analysis by the Milwaukee Journal Sentinel.

More:Gilbert: Are Wisconsin's election maps 'rigged'? Here are the reasons the answer is yes

Evers and Republicans who control the Legislature couldn't agree on new maps following the most recent U.S. Census, so it fell to the state Supreme Court to decide on the districts. In a 4-3 ruling in 2022, the justices picked Evers' maps, which had a Republican tilt to them even though they were drawn by a Democrat. 

Republican lawmakers appealed to the U.S. Supreme Court, which found the state court had not provided enough evidence justifying why the state was increasing the number of Assembly districts with Black majorities in Milwaukee from six to seven.

The U.S. Supreme Court left in place the congressional district boundaries drawn by Evers and approved by the state Supreme Court. The 2022 decision by the state court affects only races for the state Legislature.

Assembly Speaker Robin Vos, R-Rochester, shared earlier in September that he was consulting with former state Supreme Court justices on the criteria for impeachment, which is an option he has said might be pursued by the Assembly if Protasiewicz did not recuse herself from redistricting cases.

Under Wisconsin law, a "civil officer" can be impeached for corrupt conduct in office or for committing a crime.

"Recusal decisions are controlled by the law. They are not a matter of personal preference. If precedent requires it, I must recuse. But if precedent does not warrant recusal, my oath binds me to participate," Protasiewicz wrote in an order last month announcing she would not step away from the case.

Protasiewicz said her comments during the campaign were accompanied with promises to approach individual cases with neutrality.

During Tuesday's arguments, Protasiewicz played a limited role in questioning the parties to the case.

The Wisconsin Elections Commission has said new maps for next year's elections must be in place by March 15, 2024.

Jessie Opoien can be reached at jessie.opoien@jrn.com.