Tomorrow’s The Big Anti-Gerrymander Day In Wisconsin— Will The Court Restore Democracy?

State Senator Chris Larson On The Case And What's At Stake

Wisconsin voters spoke very clearly

According to state Senator Chris Larson, tomorrow, Wisconsin’s Supreme Court will preside over “one of the most consequential court cases in the history of our state.” The Wisconsin Supreme Court will begin hearing oral arguments and "the outcome of this case could shape the future of our state in innumerable ways. The issue at hand is so important that several Republican legislators have threatened (with no legal grounds) to impeach the newest Justice, Janet Protasiewicz, before the case has even begun. Clarke v. Wisconsin Elections Commission (WEC) is the case to end partisan gerrymandering in Wisconsin. What follows is meant as a refresher for folks: an introduction to gerrymandering in Wisconsin, a discussion of the Supreme Court case, and what happens next.”

Gerrymandering in Wisconsin

Longtime readers of this newsletter are likely quite familiar with partisan gerrymandering and how it applies to Wisconsin. This piece from 2021 is perhaps the best one to start with if you’d like to learn more, but the basic idea comes down to this:

Wisconsin legislative maps are an extreme partisan gerrymander, which since 2012 has drastically favored Republicans

What was already one of the worst partisan gerrymanders in the nation got even worse for the 2022 midterm elections when the U.S. Supreme Court sided with Republicans and installed their version of the legislative maps, which had been vetoed by Governor Evers

Republicans currently hold a two-thirds supermajority in the State Senate (22-11) and are just two seats away from a supermajority in the State Assembly (64-35), despite Democrats and Democrat-backed candidates winning the vast majority of statewide races since 2018, including an 11-point victory in April 2023 for Justice Janet Protasiewicz

The only way to change the way legislative maps are drawn in WI is by a change in state law, but the only way a fair process can pass the legislature is if a majority of Republicans, who gained their seats thanks to rigged maps, support such a measure— something they have been unwilling to do.

In the simplest terms, gerrymandering is a way for those currently in power to maintain and expand that power well into the future. It would be like if the Kansas City Chiefs, last year’s Super Bowl Champs, were able to pick their own schedule, play every game at Arrowhead Stadium, and start each contest with a 10-point lead. They wouldn’t lose too many games under this scenario, no matter how talented the other 31 teams might be.

Of course, our democracy is far more important than any football game. When it comes to our system of government, why does gerrymandering matter? It matters because under gerrymandered maps, the majority of voters are unable to elect the majority of seats in the legislature. As such, the policies and budget priorities favored by the majority of Wisconsinites are almost assured not to become law. This is because most legislators in a gerrymandered system are primarily accountable to partisan primary voters— those who tend to hold the most extreme views-- and not the general electorate.

In Wisconsin, some policies that have consistently proved popular with a majority of voters include legalized cannabis, BadgerCare expansion, abortion rights, raising the minimum wage, gun reform, making the rich pay their fair share in taxes, expanding worker’s rights, and protecting our environment. While enormously popular, there has only been one hearing on any of those topics and it was clearly identified as going nowhere before it started.

The case

Clarke v. WEC was filed in early August by a coalition led by Wisconsin-based Law Forward on behalf of a group of voters who all contend that their rights have been violated by the current partisan gerrymander. According to their website, Law Forward is “a pro-democracy nonprofit that uses strategic litigation to develop the law so that in Wisconsin, democracy includes all of us.” Because the case was likely to end up in the Supreme Court anyway, and because the claimants wanted the matter to be resolved in time for the 2024 Election, they petitioned the Court for something called “original action,” bypassing the lower courts for a direct hearing before the Supreme Court.

The specific claims made in the suit were as follows:

1. Partisan gerrymandering violates the Wisconsin Constitution’s guarantee of equal protection

2. Partisan gerrymandering violates Petitioners’ free speech and association rights

3. Partisan gerrymandering violates the Wisconsin Constitution’s Maintenance of Free Government provision

4. The current legislative districts are unconstitutionally noncontiguous

5. The current legislative maps violate separation of powers

In October, the Wisconsin Supreme Court granted the request for original action, choosing to hear the final two claims while declining to consider the others. To quote the Court’s October 6 order,

“Nevertheless, after considering all of the filings, we decline to grant leave to commence an original action with respect to Issues 1-3 presented in the petition. Although these issues raise important and unresolved questions of statewide significance, the need for extensive fact-finding (if not a fullscale trial) counsels against addressing them at this time. Additionally, the petitioners acknowledge that a decision on Issues 4 and 5 set forth in their petition "could render it unnecessary" to decide Issues 1-3.”

In other words, in order to answer the questions posed by the first three issues, it would take more time and resources than are available to the Supreme Court to make a timely decision. Likewise, if Issues 4 and 5 are deemed to be true, the other three issues become irrelevant in determining the constitutionality of the current maps. Let’s briefly consider both issues the Court has decided it will consider in this case.

Non-contiguity

From the Petitioners’ initial filing:

“The Constitution provides that assembly districts shall be ‘bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable’ and that senate districts must be composed of whole assembly districts and must consist of ‘contiguous territory.’ Wis. Const. art. IV, §§ 4 and 5. The majority of the current legislative districts - 55 of the 99 assembly districts and 21 of the 33 senate districts - violate these constitutional commands.”

The key part of this is contiguity. According to the Oxford Languages Dictionary, contiguity is defined as “the state of bordering or being in direct contact with something.” Essentially, a district would be considered non-contiguous if it contains at least one piece that does not border or touch the rest of the district.

Marquette University Professor John Johnson, who has written extensively on redistricting over the years, did his own analysis of contiguity of the 99 Assembly and 33 Senate districts. He found the same number of noncontiguous Senate districts as Law Forward, but 3 fewer noncontiguous Assembly districts (52 instead of 55). Either way you look at it, a majority of districts in both houses appear to be noncontiguous. Whether they are unconstitutionally noncontiguous is a matter for the Court to decide.

Separation of powers

The separation of powers is one of the bedrock principles of representative democracy in the United States. Rather than concentrating all the power in one person or one deliberative body, the American system divides power between three branches of government: legislative, executive, and judicial. Generally speaking, the legislative branch writes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws.

More specifically, for most legislation to go into effect in Wisconsin, both houses of the legislature must pass it with a majority vote, and the governor must sign it. To protect against an executive who is far out of step with the will of the majority, the legislature has the ability to override a gubernatorial veto by a two-thirds vote of both houses. For the 2022 legislative redistricting bill, Governor Evers vetoed it, and the legislature did not override that veto. However, the United States Supreme Court, and later the State Supreme Court, enforced the legislature’s plan anyway.

That’s the crux of the constitutional argument made by the Petitioners in Clarke v. WEC: because the Court enacted maps that did not follow the legislative process outlined in the Wisconsin Constitution, those maps are then to be deemed unconstitutional.

Remediation

If the Court finds one or both of the above arguments to be sufficiently persuasive, they will rule the current legislative maps unconstitutional. What they choose to do about it is a different matter. The remedy sought by the Petitioners is that the Court throw out the current maps for all 132 legislative districts, create new maps that rectify their constitutionality, and order new elections for all members of the legislature for 2024, including the 17 senators from odd-numbered districts, myself included, who would normally not be up for re-election until 2026.

The Court could choose to grant all of these requests, some of them, or create a remedy entirely of their own design. We simply don’t know how all of this will shake out. Given the 4-3 liberal majority, and the past comments of the four liberal justices, it would be difficult to imagine this Court enshrining the current maps as fair and constitutional and keeping them in place until 2032 (the first election after the next scheduled redistricting cycle). Anything beyond that is pure speculation.

What happens next?

As I mentioned at the outset, oral arguments in Clarke v. WEC begin on Tuesday, November 21st. In order for new legislative maps to be in place in time for the 2024 Election, a decision must be issued (and new maps created) before April 15 of next year. That is the date candidates are legally allowed to collect nomination signatures for partisan office. This means that one way or another, the constitutionality of our legislative maps will be decided in less than five months time.

Larson concluded by telling his constituents that he wanted to “put aside the specific legal arguments and bring the conversation back to what fair maps might actually look like. For starters, in elections where statewide races trend toward one party, that party should have a decent chance to win a majority of seats in the legislature. If the statewide vote for one party reaches landslide levels (10% or more in favor of one party), there should not be any feasible scenario where the opposite party maintains full control. At the very least, there should be no situation in a veritable 50/50 state where one party has a supermajority in either house. Looking beyond partisan splits, what fairer maps really means is a more responsive government and a more vibrant democracy. The more competitive seats we have, the more people will feel that their vote matters, and the more people will be inclined to vote. The more popular policies get passed in the legislature, the more people will expect out of their legislators. These are all good things! As one of the respondents in the Clarke, I’ll be in the courtroom as much as my schedule allows. I’ll be sure to update all of you as things progress. After more than a decade of some of the least representative legislative maps in the entire nation, it’s good to feel hopeful once again. Whichever politicians or political parties end up holding power, our neighbors need to feel that their vote counts. That’s what’s at stake, and we should all be paying close attention.”

If you’d like to contribute to Chris’ campaign, you can do it here. He deserves the help.