Supreme Court majority: Legal contiguity is a fiction

Republicans vow that the U.S. Supreme Court will have the last word on state legislative redistricting, but for now the liberal majority on the Wisconsin Supreme Court is holding the floor with its unsurprising 4-3 decision to toss out the state’s legislatively-drawn district maps.

The court issued its ruling on the Friday before Christmas.

In the decision, written by justice Jill Karofsky, the majority determined that the current maps violate the state constitutional requirement that land within districts must be contiguous. In Wisconsin, Karofsky wrote, many are not.

“Article IV, Sections 4 and 5 of the Wisconsin Constitution mean what they say: state legislative districts must be composed of ‘contiguous territory,’” Karofsky wrote. “At least 50 of 99 assembly districts and at least 20 of 33 senate districts violate this mandate, rendering them unconstitutional. We therefore enjoin the Wisconsin Elections Commission from using the current maps in all future elections.”

As such, Karofsky continued, remedial maps must be adopted prior to the 2024 elections.

“We are hopeful that the legislative process will produce new legislative district maps,” she wrote. “However, should that fail to happen, this court is prepared to adopt remedial maps based on the criteria, process, and dates set forth in this opinion and the concurrent order.”

In dissent, justice Annette Ziegler derided the decision as partisan politics masquerading as a challenge to partisan politics.

“This deal was sealed on election night,” Ziegler wrote. “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. The public understands this.”

Nonetheless, Ziegler continued, four justices imposed their will on the entire Assembly and half of the Senate, all of whom are up for election in 2024. 

“Almost every legislator in the state will need to respond, with lightning speed, to the newly minted maps, deciding if they can or want to run, and scrambling to find new candidates for new districts,” she wrote. “All of this remains unknown until the court of four, and its hired ‘consultants,’ reveal the answer. The parties’ dilatory behavior in bringing this suit at this time should not be rewarded by the court’s granting of such an extreme remedy, along such a constrained timeline. Big change is ahead. The new majority seems to assume that their job is to remedy ‘rigged’ maps which cause an ‘inability to achieve a Democratic majority in the state legislature.’ These departures from the judicial role are terribly dangerous to our constitutional, judicial framework.”

Karofsky: Constitution is clear

In rendering the decision, Karofsky said the existence of districts with detached islands of land was not uncommon.

“In Wisconsin the number of state legislative districts containing territory completely disconnected from the rest of the district is striking,” she wrote. “At least 50 of 99 assembly districts and at least 20 of 33 senate districts include separate, detached territory.”

A particularly stark example was the Madison-area 47th Assembly district, Karofsky wrote.

“This district contains more than a dozen separate, detached parts that are home to thousands of people who must cross one or more other districts before reaching another part of the 47th,” she wrote.

Thus the decision before the court was straightforward, Karofsky opined: Did such districts violate Article IV, Sections 4 and 5 of the Wisconsin Constitution that require state legislative districts to consist of “contiguous territory”?

The answer was also straightforward, the justice observed: The court’s majority found that such districts were in fact unconstitutional.

“The constitutional text and our precedent support this common-sense interpretation of contiguity,” she wrote. 

While much of the state constitution is broad and open to interpretation, Karofsky wrote, in many places the constitution imposes specific requirements whose meaning is immediately apparent from the words themselves. 

“For instance, assembly elections must be held ‘on the Tuesday succeeding the first Monday in November in even-numbered years,’” she wrote. “And judges must have been licensed to practice law for ‘5 years immediately prior to appointment.’”

The contiguous territory requirement fits squarely into the latter category of specific requirements, Karofsky wrote. 

“It is immediately apparent, using practically any dictionary, that contiguous means ‘touching’ or ‘in actual contact,’” she wrote. “These definitions make clear that contiguous territory is territory that is touching, or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines.”

Karofsky said additional support for that determination is found in historical definitions and early Wisconsin districting practices. 

“In examining historical definitions of the word ‘contiguous,’ we see that the definition has not changed since the Wisconsin Constitution was adopted,” she wrote. “Turning to early districting practices, the first state legislative districts, set forth in the Wisconsin Constitution, were all physically contiguous. Additionally, the constitution specified that if existing towns were split or new towns were created, the districts had to remain physically intact. In short, historical definitions and practices related to contiguity bolster our conclusion that contiguity does indeed require ‘touching,’ or ‘actual contact.’”

To be sure, Karofsky continued, the legislature and other respondents asserted that a district with separate, detached territory could still be contiguous, so long as the detached territory was a ‘municipal island’ and the main body of the municipality was located elsewhere in the district.

“The Legislature refers to this as ‘political contiguity,’” she wrote. “Adopting the concept of political contiguity would essentially require us to read an exception into the contiguity requirements — that district territory must be physically touching, except when the territory is a detached section of a municipality located in the same district.”

No, no, and nay

That the court would not do, Karofsky wrote.

“The text contains no such exception,” she wrote. “Both Section 4 and Section 5 include the discrete requirement that districts be composed of contiguous territory. There are no exceptions to contiguity in the constitution’s text, either overt or fairly implied.”

True, Karofsky wrote, assembly districts must also be “in as compact form as practicable” and “bounded by county, precinct, town or ward lines,” but the existence of additional requirements does not constrain or limit the separate requirement that district territory be contiguous.

“Contiguity is binary: territory is either contiguous (touching, in contact) or it is not (separate, detached),” she wrote. “In this respect, the contiguity requirements are unlike, for example, the provision of Article IV, Section 4 that requires districts be ‘in as compact form as practicable.’ Contiguity is not required only when it is practicable — it is a constitutional imperative for all districts.”

According to Karofsky, the majority’s “straightforward understanding of contiguity” has been twice confirmed by the state Supreme Court: first in Chicago & Northwest Railway Co. v. Town of Oconto, and then 12 years later in State ex rel. Lamb v. Cunningham.

“In Oconto, we determined that ‘separate, detached’ territory was not contiguous,” she wrote, quoting that decision: “To so construe the constitution as to [allow towns to] be composed of separate, detached, and non-contiguous territory, would most unquestionably restrict the sovereign power of the legislature in the organization of assembly districts ‘consisting of contiguous territory, and bounded by county, precinct, town, or ward lines.’” 

In Lamb, Karofsky wrote, the court addressed the question of district contiguity head on, stating that Article IV, Section 4 “requires that each assembly district must consist of contiguous territory; that is to say, it cannot be made up of two or more pieces of detached territory.”

“Simply put, this court understood the contiguity requirement to mean just what it says: Districts must be made up of contiguous territory — i.e., territory that is not separate or detached, but physically touching,” she wrote.

Karofsky also swatted down the court’s recent decision in Johnson upholding the concept of “legal contiguity,” that is, if annexation by municipalities creates a municipal ‘island,’ the district containing detached portions of the municipality is legally contiguous even if the area around the island is part of a different district.

In making that determination, the majority determined, the court relied entirely on a federal court decision that determined that “lack of contiguity in legislative maps was not ‘a serious demerit,’ and noted that the Wisconsin Legislature ‘treat[ed] islands as contiguous with the cities or villages to which they belong.’”

But that reliance was flawed, the majority ruled, in part because that court did not examine the state supreme court’s precedent, but instead cited two statutes, one of which had been repealed by the time of the Johnson decision.

“Johnson is unsound in principle because it misapplied the constitution in three ways,” Karofsky wrote. “First, Johnson failed to analyze the contiguity requirements evident in the text of the constitution. Second, Johnson did not attempt to square its view of contiguity with the court’s precedential decisions regarding the constitution’s contiguity requirements in Oconto or Lamb. Third, Johnson relied entirely upon Prosser [the federal decision], which itself ignored the ordinary meaning of the constitutional text and instead pointed to two statutes, one of which had been repealed by the time of the Johnson decision.”

Under such circumstances, Karofsky wrote, the court would “do more damage to the rule of law by obstinately refusing to admit [our] error, thereby perpetuating injustice, than by” overruling this part of Johnson. 

Set to legislate

Finally, while the court gave the legislature time to draft acceptable maps, it said it would impose its own remedial maps if the legislature failed to do so. In so doing, the court laid out the following principles it would follow.

“First, the remedial maps must comply with population equality requirements,” Karofsky wrote. “State and federal law require a state’s population to be distributed equally amongst legislative districts with only minor deviations.”

Second, the justice continued, districts must meet the basic requirements set out in Article IV of the Wisconsin Constitution: Assembly districts must be (a) bounded by county, precinct, town or ward lines; (b) composed of contiguous territory; and (c) in as compact form as practicable. 

“Additionally, districts must be single-member districts that meet the numbering and nesting requirements set out in Article IV, Sections 2, 4, and 5,” the decision stated.

Finally, Karofsky wrote, the maps must comply with federal law — the Equal Protection Clause and the Voting Rights Act of 1965 — and she wrote that the court will “consider other traditional districting criteria not specifically outlined in the Wisconsin or United States Constitution, but still commonly considered by courts tasked with formulating maps,” such as reducing municipal splits and preserving communities of interest.

Karofsky said the court would also consider partisan impact.

“Unlike the legislative and executive branches, which are political by nature, this court must remain politically neutral,” she wrote. “We do not have free license to enact maps that privilege one political party over another. Our political neutrality must be maintained regardless of whether a case involves an extreme partisan gerrymandering challenge.”

As a politically neutral and independent institution, Karofsky wrote, the justices would take care to avoid selecting remedial maps designed to advantage one political party over another.

“Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan impact entirely,” she wrote. “As the Supreme Court recognized … ‘this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results.’ As such, partisan impact will necessarily be one of many factors we will consider in adopting remedial legislative maps, and like the traditional districting criteria discussed above, consideration of partisan impact will not supersede constitutionally mandated criteria such as equal apportionment or contiguity.”

Some petitioners had also asked the court to declare the November 2022 state senate elections unlawful, and to order special elections for these offices that would otherwise not be on the ballot until November 2026, but the majority declined to do so, Karofsky wrote.

Bradley dissents

In a trademark fiery dissent, justice Rebecca Grassl Bradley compared the majority’s decision to a Trojan horse.

“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,” Bradley wrote. “Alexander Hamilton forewarned us that ‘liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.’”

With its first opinion as an openly progressive faction, Bradley continued, the members of the majority shed their robes, usurped the prerogatives of the legislature, and delivered the spoils to their preferred political party. 

“These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary, and undermine democracy,” she wrote.

Bradley wrote that the outcome in the case was preordained with the April 2023 election of a candidate who ran on a platform of “taking a fresh look” at the “rigged” maps.

“As promised just two days after Protasiewicz’s election, petitioners filed this case only one day after she joined the court,” Bradley wrote. “The majority chooses contiguity as a convenient conduit by which to toss the legislative maps adopted by this court in 2022 as a remedy for malapportionment, but any issue grounded in state law would suffice in order to insulate the majority’s activism from review by the United States Supreme Court.”

However, Bradley continued, the majority’s machinations did not shield it from the federal high court vindicating the respondents’ due process rights. Those rights were violated by justice Janet Protasiewicz’s refusal to recuse herself from the case, Bradley argued.

“Litigants are constitutionally entitled to have their cases heard by a fair and impartial tribunal, an issue of primary importance the majority absurdly dismisses as ‘underdeveloped,’” she wrote. “The parties fully briefed the due process claim, which Protasiewicz unilaterally rejected. While this court is powerless to override her recusal decision, the United States Supreme Court is not.”

The majority’s treatment of the remaining issue — contiguity — sophomorically parrots the petitioners’ briefing and undermines the rule of law, Bradley wrote. 

“The Wisconsin Constitution requires assembly districts ‘to consist of contiguous territory’ and senate districts ‘of convenient contiguous territory,’” she wrote. “For fifty years, maps drawn by both Republican and Democratic legislative majorities contained districts with detached territory. State and federal courts uniformly declared such districts to be ‘legally contiguous even if the area around the island is part of a different district.’”

Just last year, Bradley stated, three members of the majority in this very case adopted maps containing districts with detached territory. 

“This well-established legal conclusion having become politically inconvenient, the same three justices now deem the existence of such districts ‘striking,’” she wrote. “If this creative constitutional ‘problem’ were so glaringly obvious, then the attorneys who neglected to raise the issue over the last five decades committed malpractice, and the federal and state judges who adopted maps with districts containing detached territory should resign for incompetency.”

But, Bradley wrote, no one is fooled by the majority.

“The members of the majority refashion the law to achieve their political agenda,” she wrote. “The precedent they set (if anything remains of the principle) devastates the rule of law. The Wisconsin Constitution commands redistricting to occur once every ten years. Both state and federal courts have always respected ‘the command in the Wisconsin Constitution not to re-district more than once each 10 years.’ The majority’s machinations in this case open the door to redistricting every time court membership changes.”

For instance, Bradley continued, a supreme court election in 2025 could mean that this new decision is overturned, the previous decisions restored, and new maps adopted.

 In 2026 or 2027, Bradley decried, everything could be overturned again and this decision could be re-instated. 

“This cycle could repeat itself in 2028,” she wrote. “And in 2029. And in 2030.”

Though the majority endorses repeated kicks at the redistricting cat, Bradley wrote, it is not normal in redistricting, or any other sort of case. And, she added, there is absolutely no precedent for a supreme court to enjoin its own remedy one year later. 

“Perhaps if the majority focused on studying the law rather than rushing to set its political machinations on a ridiculous fast track, it would avoid such embarrassing errors,” she wrote. “When the people shift political power to a different party, they vote for changes in the law. The constitution limits the judicial power, however, to declaring what the law is. The majority elevates its political desires over the structural separation of powers on which the preservation of our republic depends. The majority imperils freedom and opens the door to judicial tyranny.”

Et tu, Brian?

In another dissent, justice Brian Hagedorn called the decision a “sad turn” for the court.

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

No matter how today’s decision is sold, it could be boiled down to one thing, Hagedorn wrote.

“The court finds the tenuous legal hook it was looking for to achieve its ultimate goal — the redistribution of political power in Wisconsin,” he wrote. “Call it ‘promoting democracy’ or ‘ending gerrymandering’ if you’d like; but this is good, old-fashioned power politics. The court puts its thumb on the scale for one political party over another because four members of the court believe the policy choices made in the last redistricting law were harmful and must be undone. The decision was not the product of neutral, principled judging.”

Hagedorn said the matter of legislative redistricting was thoroughly litigated and resolved after the 2020 census. 

“We adopted a judicial remedy (new maps) and ordered that future elections be conducted using these maps until the legislature and governor enact new ones,” he wrote. “That remedy remains in place, and under Wisconsin law, is final. Now various parties, new and old, want a mulligan. But litigation doesn’t work that way. Were this case about almost any other legal matter, the answer would be cut-and-dried. We would unanimously dismiss the case and reject this impermissible collateral attack on a prior, final decision.”

In the dissent, Hagedorn laid out why he called the contiguity argument a hook, or as Bradley put it, a Trojan horse.

“So why are the ordinary methods of deciding cases now thrown by the wayside?” he asked. “Because a majority of the court imagines it has some moral authority, dignified by a black robe, to create ‘fair maps’ through judicial decree. To be sure, one can in good faith disagree with Johnson’s holding that adhering as closely as possible to the last maps enacted into law — an approach called ‘least change’ — is the most appropriate use of our remedial powers. And the claim here that the constitution’s original meaning requires the territory in all legislative districts to be physically contiguous is probably correct, notwithstanding decades of nearly unquestioned practice otherwise.”

Still, Hagedorn argued, that does not give litigants a license to ignore procedure and initiate a new case to try arguments they had every opportunity to raise in the last action but did not.

“Procedural rules exist for a reason, and we should follow them,” he wrote. “As we have previously explained, ‘Litigation rules and processes matter to the rule of law just as much as rendering ultimate decisions based on the law. Ignoring the former to reach the latter portends of favoritism to certain litigants and outcomes.’” 

Indeed it does, Hagedorn wrote.

“The majority’s outcome-focused decision-making in this case will delight many,” he wrote. “A whole cottage industry of lawyers, academics, and public policy groups searching for some way to police partisan gerrymandering will celebrate. My colleagues will be saluted by the media, honored by the professoriate, and cheered by political activists.”

But after the merriment subsides, Hagedorn continued, the sober reality will set in. 

“Without legislative resolution, Wisconsin Supreme Court races will be a perpetual contest between political forces in search of political power, who now know that four members of this court have assumed the authority to bestow it,” he wrote. “A court that has long been accused of partisanship will now be enmeshed in it, with no end in sight. Rather than keep our role in redistricting narrow and circumspect, the majority seizes vast new powers for itself. We can only hope that this once great court will see better days in the future.”

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