By Alexandria Staubach
If the Wisconsin Supreme Court decides in the pending redistricting litigation that current Wisconsin legislative maps are unconstitutional, the decision will be based on one of two legal arguments. Last week, WJI unpacked one, the contiguity argument. We now turn to the second argument: separation of powers.
The court heard oral arguments in late November. At that hearing, the conservative minority of the court raised the concern that all issues currently before the court were or should have been decided in a series of cases (Johnson I, Johnson II, and Johnson III) before the court in 2021 and 2022.
Redistricting in Wisconsin takes place every 10 years following the federal census; the most recent census year was 2020. In November 2021, the Republican-led Legislature passed new maps based on the 2020 census data. Gov. Evers vetoed those maps shortly afterward, and his veto was never overridden by the Legislature. Thus, those maps are said to have “failed the political process.”
The adoption of new maps then fell to the Wisconsin Supreme Court, which in Johnson I said it would apply a “least change” approach, meaning the court would adopt the proposed maps that made the fewest changes to those adopted following the 2010 census.
In Johnson II, the court adopted maps proposed by Gov. Evers because the administration’s maps moved the smallest number of Wisconsinites to new districts under a theory called “core retention.” Evers’ maps also created a new majority Black district in Milwaukee. In opposition to the majority’s decision, Justice Rebecca Grassl Bradley said “core retention—exists nowhere in the … Wisconsin Constitution or any statutory law” and that it was a “dangerous doctrine.”
The court’s decision was challenged and reversed in the U.S. Supreme Court on the basis that the Wisconsin Supreme Court provided insufficient analysis of whether an additional Black majority district in Evers’ map was supported and permitted by the Voting Rights Act.
On remand from the U.S. Supreme Court, in Johnson III, the Wisconsin Supreme Court adopted the maps submitted to the court by the Republican-led Legislature, which were the same maps vetoed by Evers.
The Clarke petitioners argue that the court’s adoption in Johnson III of the same maps vetoed by the governor violated the Wisconsin Constitution’s separation of powers, disrupting the distribution of power between co-equal branches of government.
In her dissent to the court’s order taking jurisdiction of the Clarke case, Chief Justice Annette Kingsland Zeigler said the argument “does not seem to warrant serious review,” and the court was “forced” to “select constitutionally compliant maps as a remedy for the [then] ongoing constitutional violation.”
In this, Zeigler failed to acknowledge that the court was not bound to simply choose the maps promulgated by the Legislature. As Justice Jill J. Karofsky pointed out in her dissent in Johnson III, the court could have invited more briefing to ascertain whether the governor’s maps comported with the Voting Rights Act or asked the parties or a neutral map drawer to submit redrawn race-neutral maps. Instead, Karofsky said, the court overrode the governor’s veto, “nullifying the will of the Wisconsin voters who elected that governor into office.”
While the current majority of the court did not seem overly interested in the separation of powers argument at hearing, the issue may play some role moving forward.
Attorney Anthony Russomanno, representing the governor at oral argument in Clarke, principally addressed the separation-of-powers argument. The three conservative justices immediately pressed Russomano on why the issue was not raised during the Johnson litigation. Russomano argued that the separation-of-powers argument did not arise until the court adopted the Legislature’s maps at the end of the Johnson litigation.
Justice Brian Hagedorn noted that the Legislature’s role is to pass law and the court passed no laws, so therefore he could not see how the court in imposing a judicial remedy could have violated separation of powers requirements. Russomano was not afforded the opportunity to respond before being redirected to discuss whether and how to address partisanship in maps.
Wisconsin Justice Initiative (WJI) and the Wisconsin Fair Maps Coalition (FMC) together filed a friend-of-the-court (amici) brief in Clarke. WJI and FMC argued that Wisconsinites have no direct means to enact law and their voice rests in the governor. The imbalance of power resulting from the current legislative maps frequently permits a minority view to predominate the majority’s view, and the governor’s role is to counter act that imbalance. WJI and FMC argued that because the maps submitted by the Legislature were vetoed by the governor they “should have been ineligible for consideration” by the Johnson III court under separation-of-powers principles and the Wisconsin Constitution.
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