Contiguity — Have we been here before?

Photograph of the Wisconsin Supreme Court's courtroom by Margo Kirchner

By Alexandria Staubach
 
Arguments at last week’s Wisconsin Supreme Court hearing in Clarke v. Wisconsin Elections Commission, the most recent case to challenge gerrymandered districts across Wisconsin, beg the question, have we been here before?
 
In Clarke, the court agreed to hear two of five issues raised by the petitioners:

1. Do the existing state legislative maps violate the contiguity requirements contained in article IV, sections 4 and 5 of the Wisconsin Constitution?
2. Did the adoption of the existing state legislative maps violate the Wisconsin Constitution’s separation of powers?

Neither issue targets gerrymandering directly, but success by the petitioners on either issue would mean that the current maps are invalid.
 
If you read or heard anything about the court’s Nov. 21 hearing, the report likely included some reference to Justice Rebecca Grassl Bradley’s position that 1) the contiguity argument presented in Clarke was already decided by the 2021-2022 Johnson cases (the last legal go-round about the current maps, which resulted in three separate opinions by the Wisconsin Supreme Court), and 2) this case wouldn’t be before the court but for its new majority. Grassl Bradley interjected at seemingly every feasible opportunity to assert that this case would not be before the court absent the election of Justice Janet Protasiewicz and threw in mention of Protasiewicz’s campaign comments that the maps are rigged. Another justice asked if Grassl Bradley was in fact arguing the case.
 
Article IV, section 4 of the Wisconsin Constitution requires that Assembly districts “consist of contiguous territory and be in as compact form as practicable.” Numerous Assembly districts include “islands” or detached pieces that are located completely within other districts, with no physical connection. However, the detached pieces are generally annexed to a municipality that has a physical connection to other parts of the district. The question in Clarke is whether these detached pieces are considered contiguous and satisfy the Constitution's requirements.
 
Grassl Bradley referenced, and Taylor Meehan, counsel for the Republican Legislature, cited by paragraph where and when, the contiguity argument in Clarke was disposed of in the 2022 Johnson III decision (the final Johnson opinion, in which the current maps were adopted by the court).

So let’s examine Grassl Bradley’s claim that the court already decided the issue of contiguity.

The word “contiguous” appears five times in the 23-page Johnson III opinion. Nearly every mention is a recitation of the requirements of the Wisconsin Constitution regarding legislative districting.

According to Meehan and accepted by Grassl Bradley at argument, the Johnson III paragraph that purportedly decided the contiguity argument reads as follows:

¶70 The Legislature has satisfied the remainder of Wisconsin’s constitutional requirements. The assembly districts are contiguous and sufficiently compact. Wis. Const. art. VI, sec. 4. Both senate and assembly maps include single member districts, and assembly districts are not divided in the formation of senate districts. Wis. Const. art. IV, secs. 4, 5. In all, the Legislature’s senate and assembly maps comply with the Wisconsin Constitution.
 
This paragraph comes at the end of the opinion but is not part of the court’s conclusion. Johnson III’s conclusion was that insufficient evidence was presented “to justify drawing state legislative districts on the basis of race,” and that the maps proposed by Gov. Tony Evers and parties other than the Legislature were racially motivated.
 
Paragraph 70, as relied on by Meehan in arguing against the Clarke petitioners, supposedly disposes of unargued requirements of the Wisconsin Constitution simply by saying that in the court’s view, the maps at issue in Johnson III are constitutional.
 
Is this passing reference sufficient to resolve the contiguity issue? Have we been here before?
 
Grassl Bradley and other conservative justices are using the principle of issue preclusion to say, “yes,” contiguity has been resolved and is now barred in the new case.
 
For issue preclusion to apply, Wisconsin law requires identity between parties in the previous case and the current case and that the issue or fact be actually litigated and determined in the previous case.
 
In this context, identity between parties would require that the same parties or interests who initiated the Johnson case match those in the Clarke case. In Clarke, the petitioners are 19 Wisconsin voters, none of whom was a party in the Johnson case. Some of the Clarke petitioners share counsel with those in the Johnson case, but counsel are not parties. Additionally, some of the respondents, such as the Wisconsin Election Commission, are shared between the two cases, but this should not be sufficient to create “identity” of parties under Wisconsin law.
 
Further, while maps at issue in Clarke are the same maps adopted in Johnson III, contiguity was not the issue litigated in the Johnson case. At issue in Johnson was how maps should be drawn when the legislative process failed and to what extent legislative districts could be drawn giving attention to race.
 
Passing mention of contiguity, according to the Clarke petitioners’ brief, is not sufficient for finding that the issue was litigated under Wisconsin law, and the petitioners contend that “no party in Johnson claimed that any existing or proposed remedial districts were noncontiguous” and that “in their voluminous briefing in Johnson, the parties hardly mentioned contiguity.”
 
The Wisconsin Supreme Court took jurisdiction of the Clarke case on Oct. 6 without mentioning issue preclusion. However, a dissent written by Chief Justice Annette Ziegler, joined by Grassl Bradley and Justice Brain Hagedorn, did. Ziegler wrote that Wisconsin law requires the petitioners in this case to “live with” the Johnson decision and that litigation involving the same maps “should not be allowed to prevail.”
 
In a separate dissent, written with reference to Alice in Wonderland as an underlying theme, Grassl Bradley, joined by Ziegler, wrote that “(r)edistricting litigation concluded — or at least it should have — in April 2022, with this court’s selection of new maps as a remedy for malapportionment.”
 
Whether and to what extent the now-minority conservative justices will rely on issue preclusion in any decision in the case remains to be seen, but at least in the eyes of the petitioners and the court’s current majority, we have not been here before.