By Alexandria Staubach
The Wisconsin Supreme Court heard three hours of oral argument yesterday in a case that could upend the state’s legislative maps, widely considered to be heavily gerrymandered in favor of Republicans.
Conservative justices said “we would not be here” absent a change in the court’s composition, while the more liberal justices focused on the mechanics of producing new maps should the Court find the current ones unconstitutional.
In a petition filed in August by 19 Democratic voters, the justices were asked to declare the state’s current state legislative maps unconstitutional and to order new maps be drawn ahead of the 2024 election. The suit was filed on August 2, one day after Justice Janet Protasiewicz took office.
In an October order, the Court agreed to hear two of the four presented constitutional claims: (1) whether the state’s legislative districts violate the Wisconsin Constitution’s requirement that districts be compact and contiguous and (2) whether the maps as currently drawn violate separation of powers under the state Constitution.
The Wisconsin Constitution requires that districts be compact and contiguous, while several districts currently resemble Swiss cheese.
Counsel for the Republican Legislature, represented by Taylor Meehan, a former law clerk to U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas, argued several originalist interpretations of the word “contiguous” and whether it indeed means physical touching or a “looser” definition. Meehan ultimately landed on the possibility that the looser definition can apply and that Gov. Tony Evers accepted the maps as sufficiently contiguous by failing to argue otherwise in previous litigation.
At least one justice pointed out that a failure to previously argue the unconstitutionality of something does not make that same thing constitutional.
Justice Rebecca Grassl Bradley interjected frequently. She asked whether some parties could accept the integrity of the Court’s decision given that the Court’s new member, Protasiewicz, called the maps “rigged” on the campaign trail.
Richard Esenberg, founder of Wisconsin Institute for Law & Policy and counsel for the intervening Wisconsin voters, said that while that may be an argument later it was not an issue presently. Esenberg said the Court’s job now was merely to “fix constitutional violations” of individual districts should the Court find any.
Grassl Bradley repeatedly stated that the suit would never have been brought in the absence of the new justice. Mark Gaber, an attorney from the Campaign Legal Center, responded this was inaccurate. Gaber argued that contiguity was (1) never previously argued and (2) is not a partisan issue. Some justices, however, were concerned that taking the case was a “slippery slope” toward hearing new redistricting cases every time the court's makeup changes.
In addition to contiguity and separation of powers issues, argument addressed whether the Court should take account of the partisan effects of any maps it may adopt. Justice Jill Karofsky stated that by failing to consider partisanship the Court “could be letting it play a big role.”
Justice Rebecca Dallet was interested in who the parties thought should assist the Court in redrawing any new maps as well as the practicalities of drawing non-partisan maps.
WJI and the Wisconsin Fair Maps Coalition filed an amici curiae brief in the suit, arguing caselaw that supports Karofsky’s position.
The petitioners seek a remedy that challenges a lawmaker’s right to hold office. If the petitioners are successful, some senators would be required to run for two-year terms in new districts as part of a special election in 2024, despite their being in the middle of four year terms. Grassl Bradley said she “couldn’t imagine something less democratic.”
The proposed remedy also raised questions as to whether actions taken by the Legislature since the current senators’ election are constitutional. But while petitioners stood by their sought remedy, there was no affirmative argument that every law passed since the last election should be invalidated.
The Wisconsin Elections Commission has said that any new maps must be in place by March 2024 for next year’s elections.
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