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Jurisprudence
Wisconsin’s experiment with subverting democracy is finally drawing to a close.
Photo illustration by Slate. Images via Jeff Schear/Getty Images and Mark Gaber/Twitter.
Justice Janet Protasiewicz was sworn into the Wisconsin Supreme Court on Tuesday, creating a 4–3 liberal majority after years of conservative domination. By Wednesday, voting rights advocates had filed a lawsuit asking the court to strike down the state’s gerrymandered legislative maps. The other liberal justices have already condemned these maps as an unlawful assault on representative democracy. During her campaign, Protasiewicz decried them as “rigged” and “wrong.” The real question, then, is not if the new majority will strike down these maps, but when.
Right now, Wisconsin’s legislative districts are arguably the most egregiously gerrymandered in the country. The origin of today’s maps lies in the 2010 redistricting cycle, when Wisconsin Republicans used novel technology to gerrymander Democrats into a permanent minority. Mapmakers packed as many Democrats as possible into a few deep-blue districts, then distributed the rest throughout safely red districts, eliminating genuinely competitive elections for the statehouse. Urban areas were ruthlessly carved up to dilute their political power. Mapmakers stuffed Democrats and racial minorities into contorted districts that stretched into conservative rural areas whose GOP voters could always prevail. The plans were so extreme that, in 2018, Democrats won a majority of votes for the state Legislature—and Republicans captured a near-supermajority of seats.
After the 2020 census, the Legislature, still in the grip of this gerrymander, drew new maps that maintained or expanded the partisan bias of the old ones. Because suburban areas were trending blue, for instance, Republican lawmakers added more red, rural voters to suburban districts, restoring the GOP’s advantage for another decade. Democratic Gov. Tony Evers vetoed the map, but the Legislature refused to draw fairer ones; the governor and Legislature then asked the state Supreme Court to resolve this impasse. Democrats urged the court to choose maps that did not benefit either political party. The conservative majority, however, rejected this request, claiming it would ignore all political considerations and favor maps with the “least change” from the old (and heavily gerrymandered) ones. This majority eventually enacted the maps submitted by the state Legislature—the same ones that Evers had vetoed. (There were various side quests to the U.S. Supreme Court, but those are not relevant here.)
Throughout this epic journey, the court’s four conservatives insisted that the Wisconsin Constitution imposed no enforceable limits on partisan gerrymandering. The three liberals disagreed, asserting that courts have an obligation to protect voters’ right to equal participation in representative government. Protasiewicz aligned herself with this view on the campaign trail, and her blowout victory was a kind of mandate to bring democracy back to the Badger State. The fundamental problem with gerrymandering, after all, is that the people can’t vote their way out of it, in the traditional sense of electing new representatives, when legislators have entrenched their power so durably. After the U.S. Supreme Court declined to restrict partisan redistricting, Wisconsinites had just one remaining solution: their state Supreme Court, which remains free to limit gerrymandering under the state constitution. By electing Protasiewicz, voters all but ensured an end to one-party rule over the statehouse.
Voting rights advocates are not wasting any time. Tuesday’s lawsuit—filed by a coalition of groups, including Law Forward and the Campaign Legal Center, on behalf of several voters—urged the court to strike down the existing maps. The plaintiffs were able to take their case directly to the Wisconsin Supreme Court because, under state law, it has original jurisdiction over redistricting disputes. That shortcut eliminates the need for a lengthy trip through the lower courts, increasing the odds of having new maps by 2024.
The lawsuit argues that the current districts violate the Wisconsin Constitution in several different ways. First, it claims that the maps violate the guarantee of equality by discriminating against voters on the basis of political affiliation. Second, it claims that the maps violate freedom of speech and association by retaliating against voters for “their expression of political views” and impairing their ability “to associate for the advancement of their political beliefs.” Third, it cites the state constitution’s provision requiring “maintenance of free government” through laws that comport with “justice” and “moderation.” Fourth, it accuses the court of violating the separation of powers by adopting a map in 2022 that the governor had previously vetoed.
Take a step back and consider what the plaintiffs are saying here. The Wisconsin Constitution explicitly guarantees every citizen an equal right to participate in a “free government.” It also bars the state from penalizing any citizen for exercising their liberty to speak, associate, and assemble freely to promote their political views. And it establishes these rights in far broader language than anything found in the federal Constitution. The case should be easy to make that Republican lawmakers have run afoul of the state constitution by retaliating against voters who associated themselves with the Democratic Party. Lawmakers punished these voters because of their political expression, diluting their votes through an insurmountable gerrymander. And when the chief executive of the state exercised his constitutional authority to reject this gerrymander, the court stepped in and imposed it over his veto.
On top of everything else, the plaintiffs have an ace in the hole: The Wisconsin Constitution requires that all legislative districts be made up of “contiguous territory.” Yet a majority of seats in both chambers currently “consist of a patchwork of disconnected pieces that do not share a common border with other parts of the same district.” Rather, tiny pieces of one district are stuffed into others to maximize partisan advantage. The plaintiffs make strong arguments, on originalist and textualist grounds, that the meaning of “contiguous” (sharing a common border) cannot be stretched to include districts that literally do not touch each other. (Past courts have assumed that districts are “legally contiguous” if they follow municipal borders, but the constitution explicitly refers to physical “territory,” not any legal fiction.)
If the court finds the maps unconstitutional, the plaintiffs seek relief in two ways. First, they ask the court to forbid the state from holding elections under the current maps in 2024, and to solicit new maps from the parties; the court would then assess the submissions for compliance with the constitution, or appoint a special master to do so. (If no submissions suffice, the special master could draw their own plans.) This approach, though, does not address a looming issue: State senators serve four-year terms, so half of them are not up for reelection until 2026. The plaintiffs therefore ask the court to issue a rare order holding that these senators have “no right to complete a term of office that was unconstitutionally obtained,” and force them to run for reelection in 2024 instead.
While it seems extraordinarily likely that the court will, indeed, invalidate the maps, the liberal majority may feel uncomfortable halving the terms of sitting state senators. Today, Republicans hold a majority in the state Assembly and a supermajority in the state Senate; the Legislature could thus, in theory, impeach and remove Protasiewicz, or any other liberal justice, who cuts down the gerrymander. (Republican lawmakers have downplayed this threat.) That political reality may be cause for caution—though Gov. Evers could simply replace any justice who loses her seat with another progressive who would carry out her predecessor’s decision. (Replacing a justice does not require Senate confirmation.) If Republicans responded by attempting to remove Evers, the state would fall into a genuine constitutional crisis; such extraordinary, simultaneous assaults on the executive and judicial branches seem highly improbable.
Because this case involves legislative districts rather than congressional ones, the U.S. Supreme Court has absolutely no authority to override the state Supreme Court’s rulings. (We can, though, expect challenges to the gerrymandered congressional map in the future, perhaps after this suit prevails.) GOP legislators can rail against “the rule of Janet,” but they have no cards left to play that will save their skins. Wisconsin’s experiment with subverting democracy is finally drawing to a close.
Gerrymandering
Jurisprudence
Voting
Voting Rights
Wisconsin
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