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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. Billie Johnson v. Wisconsin Elections Commission Majority/Lead Opinion: Rebbecca Grassl Bradley (47 pages), joined by Justices Annette K. Ziegler, and Patience D. Roggensack, and partially joined by Justice Brian Hagedorn Concurrence: Hagedorn (6 pages) Dissent: Rebecca F. Dallet (19 pages), joined by Justices Ann Walsh Bradley and Jill J. Karofsky  Grassl Bradley The upshot The Legislature drew redistricting maps this year, but they were unconstitutional because of shifts in the state's population. Gov. Tony Evers vetoed them. Hagedorn did not join in the paragraph below. We hold: (1) redistricting disputes may be judicially resolved only to the extent necessary to remedy the violation of a justiciable and cognizable right protected under the United States Constitution, the VRA (Voting Rights Act), or Article IV, Sections 3, 4, or 5 of the Wisconsin Constitution; (2) the partisan makeup of districts does not implicate any justiciable or cognizable right; and (3) this court will confine any judicial remedy to making the minimum changes necessary in order to conform the existing congressional and state legislative redistricting plans to constitutional and statutory requirements. Background We have been asked to provide a remedy for that (district population) inequality. Some parties to this action further complain that the 2011 maps reflect a partisan gerrymander favoring Republican Party candidates at the expense of Democrat Party candidates, and ask us to redraw the maps to allocate districts equally between these dominant parties, although no one asks us to assign districts to any minor parties in proportion to their share of Wisconsin's electoral vote. The United States Supreme Court recently declared there are no legal standards by which judges may decide whether maps are politically "fair." We agree. The Wisconsin Constitution requires the legislature——a political body——to establish the legislative districts in this state. Just as the laws enacted by the legislature reflect policy choices, so will the maps drawn by that political body.... Claims of political unfairness in the maps present political questions, not legal ones. Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary.  The guts The simplicity of the one person, one vote principle, its textual basis in our constitution, and its long history stand in sharp contrast with claims that courts should judge maps for partisan fairness, a concept untethered to legal rights. The parties have failed to identify any judicially manageable standards by which we could determine the fairness of the partisan makeup of districts, nor have they identified a right under the Wisconsin Constitution to a particular partisan configuration. Because partisan fairness presents a purely political question, we will not consider it.... (U.S. Supreme Court) Chief Justice (John) Roberts noted at the outset the Court has never struck down a map as an unconstitutional partisan gerrymander and acknowledged that several decades of searching for a judicially manageable standard by which to judge maps' partisan fairness had been in vain. *** The simplicity of the one person, one vote principle, its textual basis in our constitution, and its long history stand in sharp contrast with claims that courts should judge maps for partisan fairness, a concept untethered to legal rights. The parties have failed to identify any judicially manageable standards by which we could determine the fairness of the partisan makeup of districts, nor have they identified a right under the Wisconsin Constitution to a particular partisan configuration. Because partisan fairness presents a purely political question, we will not consider it.... The people have never consented to the Wisconsin judiciary deciding what constitutes a "fair" partisan divide; seizing such power would encroach on the constitutional prerogatives of the political branches.... if Democrats and Republicans are entitled to proportional representation, so are numerous minor parties. If Libertarian Party candidates receive approximately five percent of the statewide vote, they will likely lose every election; no one deems this result unconstitutional. The populace that voted for Libertarians is scattered throughout the state, thereby depriving them of any real voting power as a bloc, regardless of how lines are drawn. *** Nothing about the shape of a district infringes anyone's ability to speak, publish, assemble, or petition. Even after the most severe partisan gerrymanders, citizens remain free to "run for office, express their political views, endorse and campaign for their favorite candidates, vote, and otherwise influence the political process through their expression...." Parties urging us to consider partisan fairness appear to desire districts drawn in a manner ensuring their political speech will find a receptive audience; however, nothing in either constitution gives rise to such a claim. "The first amendment's protection of the freedom of association and of the rights to run for office, have one's name on the ballot, and present one's views to the electorate do not also include entitlement to success in those endeavors. The carefully guarded right to expression does not carry with it any right to be listened to, believed or supported in one's views." *** The constitutional confines of our judicial authority must guide our exercise of power in affording the Petitioners a remedy for their claims. The existing maps were adopted by the legislature, signed by the governor, and survived judicial review by the federal courts. Treading further than necessary to remedy their current legal deficiencies, as many parties urge us to do, would intrude upon the constitutional prerogatives of the political branches and unsettle the constitutional allocation of power.... (Hagedorn did not join the paragraph below.) Because our power to issue a mandatory injunction does not encompass rewriting duly enacted law, our judicial remedy "should reflect the least change" necessary for the maps to comport with relevant legal requirements....Using the existing maps "as a template" and implementing only those remedies necessary to resolve constitutional or statutory deficiencies confines our role to its proper adjudicative function, ensuring we fulfill our role as apolitical and neutral arbiters of the law.... A least-change approach safeguards the long-term institutional legitimacy of this court by removing us from the political fray and ensuring we act as judges rather than political actors.  Dallet The dissent Now that we have stepped out of our traditional judicial role and into the "the political thicket" of redistricting, it is vital that this court remain neutral and nonpartisan. The majority all but guarantees that we cannot. First, the majority adopts 2011's "sharply partisan" maps as the template for its "least-change" approach. And second, it effectively insulates future maps from being challenged as extreme partisan gerrymanders. The upshot of those two decisions, neither of which is politically neutral, is to elevate outdated partisan choices over neutral redistricting criteria. That outcome has potentially devastating consequences for representative government in Wisconsin.... Although no court in Wisconsin, state or federal, has ever adopted a least-change approach, the majority/lead opinion would have you believe that other jurisdictions commonly use such an approach when starting from legislatively drawn maps. But the cases it cites provide virtually no support for this approach. One simply involves a state's supreme court approving the trial court's selection of a congressional map. All but one of the remaining cases began with court-drawn maps or involved local maps drawn for county boards and commissions. The bottom line is that the least-change approach has no "general acceptance among reasonable jurists" when the court's starting point is a legislatively drawn map.... More to the point, however, the 2011 map was enacted using a "sharply partisan methodology" by a legislature no longer in power and a governor who the voters have since rejected. The partisan character of the 2011 maps is evident both in the process by which they were drawn – "under a cloak of secrecy," totally excluding the minority political party – and in their departure from neutral traditional redistricting criteria.... For starters, the least-change approach is not the "neutral standard" the majority/lead opinion portrays it as. Rather, applying that approach to 2011's maps affirmatively perpetuates the partisan agenda of politicians no longer in power. It doesn't matter which political party benefits from the 2011 maps, only that we cannot start with them and maintain judicial neutrality. Moreover, a least-change approach risks entrenching 2011's partisan agenda in future redistricting cycles. If the party that benefits from the maps adopted in this case controls only the legislature for the next redistricting cycle, it has every incentive to ensure an impasse. After all, an impasse will result in the court changing the maps as little as possible – thus preserving that party's hold on power. The point is, the least-change approach is anything but a "neutral standard...." True neutrality could be achieved by instead adhering to the neutral factors supplied by the state and federal constitutions, the Voting Rights Act, and traditional redistricting criteria. The population equality (i.e., "one person, one vote") principles in the state and federal constitutions and the federal Voting Rights Act are universally acknowledged as politically neutral and central to any redistricting plan. Likewise for the remaining requirements of the Wisconsin Constitution, compactness, contiguity, and respect for political subdivision boundaries. In addition to these constitutional and statutory baselines, neutral factors include other "traditional redistricting criteria" such as compactness, preserving communities of interest, and minimizing "senate disenfranchisement. The traditional redistricting criteria, however, are glaringly absent from the majority/lead opinion. A charitable read of the majority/lead opinion is that whatever factors it doesn't discuss— preserving communities of interest and minimizing senate disenfranchisement, for example— are sufficiently baked into the 2011 maps such that we can simply rebalance the populations of existing districts and call it a day. But...there is good reason to doubt that the 2011 maps meaningfully balanced any of the traditional redistricting criteria.... More concerning than its silence regarding the traditional redistricting criteria is the possibility that the majority/lead opinion will prioritize its atextual least-change approach over the text of the Wisconsin Constitution. The Wisconsin Constitution imposes several substantive requirements on assembly districts, including that they be in "as compact form as practicable." The majority/lead opinion's reasoning suggests that, despite that constitutional directive and even if a more compact set of population-equalizing assembly maps is "practicable," the court is free to adopt a less compact set of maps simply because they make fewer changes to the 2011 plan. That cannot be right. The least-change principle is found nowhere in the Wisconsin or U.S. Constitutions. Constitutionally mandated criteria do not take a back seat to extra-constitutional methods like least-change. *** We have no claim of excessive partisan gerrymandering before us. We should wait until we do and then decide — with the benefit of full briefing from the parties — whether our Constitution protects a practice that is "incompatible with democratic principles." *** Representative government demands "that the voters should choose their representatives, not the other way around." Extreme partisan gerrymandering turns that on its head. It allows a party in power to draw district lines that guarantee its hold on power for a decade or more, no matter what the voters choose. No problem, the majority says, "[e]ven after the most severe partisan gerrymanders, citizens remain free" to run for office, express their views, and vote for the candidates of their choice. But the problem with extreme partisan gerrymandering isn't that it literally denies people the right to vote or run for office. It's that extreme gerrymandering distorts the political process so thoroughly that those rights can become meaningless....  Hagedorn The concurrence
To the extent feasible, a court's role in redistricting should be modest and restrained. We are not the branch of government assigned the constitutional responsibility to "apportion and district anew" after each decennial census; the legislature is. The job of the judiciary is to decide cases based on the law. Here, the laws passed in 2011 establishing legislative and congressional districts cannot govern future elections as written due to population shifts. Accordingly, our role is appropriately limited to altering current district boundaries only as needed to comply with legal requirements. The majority opinion so concludes, and I join it in almost all respects. Where the political process has failed and modified maps are needed before the next election, the court's function is to formulate a remedy——one tailored toward fixing the legal deficiencies. The majority opinion asserts that only legal requirements may be considered in constructing a fitting remedy. That is not quite correct. Legal standards establish the need for a remedy and constrain the remedies we may impose, but they are not the only permissible judicial considerations when constructing a proper remedy. For example, one universally recognized redistricting criterion is communities of interest. It is not a legal requirement, but it may nonetheless be an appropriate, useful, and neutral factor to weigh. Suppose we receive multiple proposed maps that comply with all relevant legal requirements, and that have equally compelling arguments for why the proposed map most aligns with current district boundaries. In that circumstance, we still must exercise judgment to choose the best alternative. Considering communities of interest (or other traditional redistricting criteria) may assist us in doing so. In other words, while a remedy must be tailored to curing legal violations, a court is not necessarily limited to considering legal rights and requirements alone when formulating a remedy. This does not mean our remedial powers are without guardrails. And this is where the dissent errs. The dissent argues we can take over the responsibility of the legislature entirely, discard policy judgments we don't like, and craft a new law from scratch consistent with our own policy concerns. The reader should look past pleas for fairness and see this for what it is: a claim of dangerously broad judicial power to fashion state policy. According to the dissent, this court should simply ignore the law on the books — one the dissent makes clear it is not fond of — and draft a new one more to its liking.... We asked the parties to brief whether we should use a least-change approach, and if not, what approach we should use. The main alternative we received15 was an entreaty to use this as an opportunity to rearrange district boundaries with the goal of reversing what the dissent calls "an obsolete partisan agenda." As the majority opinion explains, the Wisconsin Constitution does not preclude the legislature from drawing districts with partisan interests in mind. In reality, we are being asked to make a political judgment cloaked in the veneer of neutrality. Namely, we are being asked to conclude that the current maps are likely to result in the election of too many representatives of one party, so we should affirmatively and aggressively redesign maps that are likely to result in the election of more members of a different political party. The petition here——that we should use our equitable authority to reallocate political power in Wisconsin——is not a neutral undertaking. It stretches far beyond a proper, focused, and impartial exercise of our limited judicial power....
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