State Supreme Court will hear redistricting challenge

On a 4-3 vote along ideological lines, the Wisconsin Supreme Court will hear a challenge to the state’s legislative district maps, scheduling an oral hearing for later this month.

The court’s four liberals voted to take up the case, which Democrats hope will result in new legislative maps for the November 2024 elections, with the court’s three conservatives opposing.

Liberal Supreme Court justice Janet Protasiewicz refused to recuse herself, despite previous Republican warnings that she might be impeached if she hears the case. Last week, Assembly speaker Robin Vos suggested some action was coming, but he did not specify impeachment.

“Justice Protasiewicz should have recused herself,” Vos said. “We think the United States Supreme Court precedent compels her recusal, and the United States Supreme Court will have the last word here.”

Vos said Protasiewicz is asking to be taken at her word that she will apply the law. 

The court will take up two issues in particular — contiguity and separation of powers. Democrats claim the legislative maps contain districts with portions that are not contiguous, specifically, that 55 Assembly districts and 21 Senate districts contain “disconnected pieces” that lack a common border with other parts of the same district.

The challengers also contest the court’s decision last year to put in place maps vetoed by Gov. Tony Evers, arguing that the judicial branch effectively overrode the veto, usurping core powers of the executive and legislative branches.

Vos said applying the law in those matters should be uncomplicated.

“Given the Wisconsin Supreme Court is limiting its review of the redistricting case to two questions, legal contiguity and separation of powers, applying the law should be straightforward,” he said. “The Wisconsin Supreme Court addressed these very questions less than two years ago, and the law remains the same.”

Democrats were exuberant both because the court took the case and because Protasiewicz did not recuse. State Sen. Melissa Agard (D-Madison) said both were good calls.

“Justice Protasiewicz is absolutely correct to not recuse herself from the redistricting case before the Wisconsin state Supreme Court,” Agard said. “As a duly elected justice who won by a staggering 11 points, she has been entrusted to carry out her duties on the bench.”

Despite what she called Republicans’ desperate efforts to hold onto their gerrymandered majority, Agard said their push for recusal was never more than a blatant political maneuver and an effort to ignore the will of the people.

State Democratic Party chairman Ben Wikler said the court’s rejection of what he called Republican attempts at intimidation and obstruction was grounded in the constitution, plainly right on the law, and a clear victory for democracy. 

“Last April, Wisconsinites turned out to elect justice Janet Protasiewicz in an overwhelming landslide, sending a resounding message that it was time for a fair and impartial state Supreme Court,” Wikler said. “That vote for change was reflected in the decisions handed down by the court, and it is imperative that the constitutional challenges to Wisconsin’s legislative maps move forward and receive their day in court — free from impeachment threats by Republican politicians desperate to overturn last April’s election and maintain their grip on power.”

Chris Walloch, executive director of A Better Wisconsin Together, said the court majority’s decision to hear the case was a win for fair elections and the will of the people.

“Wisconsinites deserve maps that accurately represent our diverse communities, and to know that all of our voices hold equal weight in our elections,” Walloch said. “By deciding to take up this case, the Wisconsin Supreme Court is doing what the public elected them to do — hear cases where the rights and freedoms of Wisconsinites are at stake.”

Walloch cited an analysis from UW-Madison showing that Wisconsin’s current Republican-drawn legislative maps are some of the most gerrymandered maps in the nation.

“Voters should pick our leaders, not the other way around,” he said. “Wisconsin’s current maps do not reflect that, and were drawn up by right-wing politicians in a way that only benefits their own political agenda. This means that Wisconsin’s partisan gerrymander is causing real and tangible harm to our communities.”

State Sen. Kelda Roys (D-Madison) went so far as to call the Republican legislative majority illegitimate.

“Today, justice Janet Protasiewicz rightfully denied Republican legislators’ baseless motion to recuse herself from Clarke v. WEC, and the Wisconsin Supreme Court formally agreed to hear the case,” Roys said. “This case will address the constitutionality of Wisconsin’s heavily gerrymandered legislative districts, which were drawn to guarantee a permanent GOP majority regardless of voter intent.”

Speaking up

Aside from Vos, legislative Republicans were mostly silent on the announcement, but, on the bench, the conservative justices were anything but, with all three issuing dissents.

Chief justice Annette Ziegler said the court challenge appeared to have been filed only because of a change in the court’s membership.

“Where does this cycle end?” Ziegler asked. “Must this court also allow additional future parties to simply sit this litigation cycle out and come forward next court term — or after the next court election — and present already litigated claims again? What is to stop any party dissatisfied with the outcome here from carrying out challenges ad infinitum, each time from a slightly different angle, until their desired outcome is reached?”

Ziegler said the litigation chipped away at the public’s faith in the judiciary as an independent, impartial institution and undermined foundational judicial principles such as stare decisis, and she also said it cast a hyperpartisan shadow of judicial bias over the decisions of the court.

Ziegler said the court had just decided the redistricting issue last year.

“Redistricting should not be an annual event,” she wrote. “Redistricting is a process that, under our state constitution, is only supposed to occur once every decade. However, redistricting was required by this court nearly two years ago because the governor vetoed the maps drawn by the Legislature, creating an impasse.”

Absent court action, Ziegler wrote, Wisconsin would have been in a constitutional crisis.

“Wisconsin would have had no maps in place to conduct state and federal elections,” she wrote. “Thus, the court, as the final arbiter, was required to act. We clearly are not in that constitutional predicament today.”

Cases that have been decided with finality are not relitigated, Ziegler wrote.

Justice Rebecca Grassl Bradley wrote that, ironically, an election for the office of Supreme Court justice made possible a purely political proceeding, unconvincingly masquerading as a judicial one. 

“Janet Protasiewicz and Jill Karofsky delivered their sentence first — ‘Rigged!’ — and will form a majority with Ann Walsh Bradley and Rebecca Dallet to shift legislative power from Republicans and bestow an electoral advantage on Democrats, fulfilling one of Protasiewicz’s many promises to the principal funder of her campaign, the Democratic Party of Wisconsin,” Bradley wrote. 

Bradley alleged that Protasiewicz campaigned on ‘restoring democracy’ and that the other members of the majority regularly rail against imaginary threats to democracy: “It is hard to imagine a more brazen assault on democracy than removing duly elected senators from office by judicial fiat.”

At a January 9, 2023 candidate forum, Bradley wrote, Protasiewicz abandoned universal judicial ethics to unequivocally declare her position on the redistricting issue now before the court by calling the maps rigged, period, and offering that, while she couldn’t ever say what she would do on a particular case, her values and common sense told her the maps were wrong.

“Calling her preferred case outcomes her ‘values’ does not alleviate the ethical dilemmas underlying Protasiewicz’s involvement with this case,” she wrote.

Bradley spelled those dilemmas out.

“The Democratic Party of Wisconsin invested nearly $10 million in Protasiewicz’s successful campaign,” she wrote. “One day after her term began, petitioners — all Democrats — filed this petition. Overturning precedent to strip duly elected Republicans of their seats and deliver them to Democrats reeks of a quid pro quo.”

Indeed, Bradley wrote, Protasiewicz’s declarations of how she would view the case — in one quote offered by Bradley, Protasiewicz said of the court’s previous decision that “[i]f you look at the dissent in that maps case, that dissent is what I will tell you I agree with” — were so obvious and blatant that the issue should be scrutinized at the federal level.

“Protasiewicz’s failure to recuse from this case despite her blatant bias should be reviewed by the United States Supreme Court before Wisconsin taxpayers are forced to foot the bill for a redistricting do-over,” she wrote. “The reverberations of Protasiewicz’s choice to exercise her First Amendment right at the expense of judicial impartiality extend beyond Wisconsin. Judicial candidates nationwide may replicate Protasiewicz’s successful but ethically compromised playbook until the court curbs the tactic.”

If the majority overturns last year’s decision, even though nothing has changed except court membership, it will exercise unbridled power absent lawful authority, Bradley wrote, and the members of the majority will violate the Wisconsin constitution, arrogating unto themselves purely legislative power the people never gave them. 

“Although Wisconsin’s justices are elected, democracy also does not countenance a system of government that subordinates the people of Wisconsin to a committee of four lawyers, regardless of how they are chosen,” she wrote. “After all, justices are elected to exercise judicial power, not to fulfill the wishes of their political benefactors. Judicial elections cannot override the constitution.”

The new not normal

Justice Brian Hagedorn also dissented, saying that the petition to hear the case would be unanimously denied if the court were following normal judicial process.

“Two years ago, this court stepped into redistricting because the legislature did not enact new maps into law, which the Wisconsin Constitution requires every ten years,” Hagedorn wrote. “Courts cannot pass laws, of course. But they can impose a suitable remedy for constitutional violations. We did so, and selected state assembly and senate maps after receiving proposals submitted by the parties in the case.”

Hagedorn said the court concluded, among other things, that the maps complied with the requirements of the Wisconsin constitution. 

“That judicial remedy remains in place today, filling the gap until such time as the legislature enacts new maps into law,” he wrote. “The petitioners now seek to reverse multiple decisions of this court and the ongoing remedy we put in place in a case they could have participated in, but chose not to.”

Hagedorn stressed that parties generally cannot challenge judicial remedies in such a fashion.

“This petition appears to be a collateral attack on the court’s decisions and orders in Johnson v. WEC,” he wrote. “Procedurally, this is highly unusual, and it may be impermissible under the law.”

In Johnson, Hagedorn wrote, no parties argued the point when the court affirmed that political contiguity of the maps was constitutionally sufficient.

“Yet the voter-petitioners here have determined that now is the time to take a fresh look,” he wrote. “They were inspired to challenge longstanding precedent and practice on August 2, the day after a new justice was sworn into office — a remarkable coincidence.”

Hagedorn said the separation of powers argument also runs headlong into the Johnson decision.

“The petitioners argue that this court violated the separation of powers by adopting a judicial remedy proposed by the legislature, whom we admitted as a party to the litigation,” he wrote. “This is so, they assert, because the legislature previously tried to pass into law the maps it later submitted to this court, and the governor vetoed them.”

But the court does not enact laws, Hagedorn wrote.

“So the theory appears to be that this court cannot adopt a judicial remedy in litigation that was also an unsuccessful piece of legislation,” he observed. “There’ll be time enough to evaluate the merits of these arguments as this case unfolds.”

But make no mistake, Hagedorn asserted, the process smells.

“Everyone understands that this case is aimed at something beyond newfound concern for the constitution’s contiguity requirement or whether failed legislation can be used as a judicial remedy,” he wrote. “It is a search for some plausible legal basis — anything will do, really — to green-light a judicially commanded political realignment of state government. This case is an outcome in search of a theory.”

And the court is happy to oblige, Hagedorn observed.

“Despite the petitioners standing by until the court’s composition changed, the court dutifully adopts an accelerated briefing and oral argument schedule,” he wrote. “It even changed our internal writing deadlines on original actions to ensure this case would be fast-tracked.”

What’s more, Hagedorn continued, the court directed the parties to brief an almost identical question that the court addressed in the previous cases: what standards should guide the court in imposing a remedy if the current district lines are unlawful? 

“Asked and answered, methinks,” he wrote. “But the goal is to get this court into the business of being the supreme guardian of ‘partisan fairness’ in map-making — contrary to what we just held — and to do so before the next election cycle. Were it otherwise, there’s no way we would take a case in this posture and on this pseudo-emergency schedule — one brought by parties who strategically sat on their hands for years, who were invited to join the last redistricting case and did not, and who now seek to disturb the ongoing judicial remedy in that case on issues we already decided.”

An ordinary court would see the political gamesmanship for what it is, deny the petition, and move on, Hagedorn stated, but then, he observed, these are not ordinary times, and the current court is not an ordinary court.

“Granting this petition comes at a steep price,” he wrote. “Politics may be a team sport, but judging is not. We have no partisan team when deciding cases. Instead, we have sworn an oath to decide cases as neutral arbiters of the law, with no thumb on the scale for anyone. The more we accommodate those who wish to use this court as a weapon in the political wars raging among us, the more we depart from the modest role the constitution assigns to us and invite even more political gamesmanship.”

Those hoping the judiciary will boldly take up the mantle of guaranteeing “partisan fairness” for legislative maps may uncork their champagne in the short term, Hagedorn wrote, but he cautioned that the celebration won’t last long. 

“In the end, few will be happy, the politicization of the judiciary will worsen, and this litigation will never truly end,” he wrote.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.