Legal fight over next round of redistricting begins in Wisconsin before a single map is drawn

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MADISON – The legal fight over the next round of redistricting in Wisconsin kicked off Wednesday, a full year before lawmakers begin drawing election maps.

The filing of a request to change state court rules by a former Republican legislative leader reflects the enormity of the political stakes. And it tacitly recognizes that it is all but certain to be courts — not legislators — that have the final say on what legislative and congressional districts look like for the next decade.

Where the lines are drawn plays a major role in determining who controls the Legislature and has an upper hand in the state’s congressional delegation. Republican lawmakers established maps in 2011 that handed them large majorities in the Statehouse and an advantage in five of the state’s eight congressional districts.

The move Wednesday was brought by former Assembly Speaker Scott Jensen with the help of the conservative Wisconsin Institute for Law & Liberty. It seeks to put in place new rules to try to ensure the state Supreme Court — instead of federal courts — decides any redistricting litigation. Both sides believe that would favor Republicans because conservatives control the Wisconsin Supreme Court.

Litigation over the current maps persisted from 2011 to 2019. Wednesday’s petition is the first legal salvo over the next round of map drawing, but probably not the last. And it suggests Wisconsin could remain in a steady state of litigation over its election maps.

Drawing lines with laser-like precision

All states are required to draw new maps every 10 years, after each census, to ensure that districts are of equal population. Technology has advanced to a point where partisans can draw boundaries with laser-like precision to give themselves an electoral advantage.

In 2011, Republicans controlled all of state government and were able to put in place maps as they saw fit. Next year, the government is expected to be split, with Republicans controlling the Legislature and Democratic Gov. Tony Evers in charge of the executive branch.

If lawmakers use their usual process for drawing maps, Evers would have the ability to veto what they put together. Republican leaders and Evers have been able to agree on little and a compromise over maps would be difficult to reach. That would leave it to the courts to decide what maps to put in place.

The latest legal filing isn’t aimed at determining what the new maps should look like, but rather what court system would settle any disputes. Under the proposed rule, redistricting lawsuits would go straight to the state Supreme Court, rather than starting with a lower court like most litigation.

Lawsuits could commence once census data is available in April 2021 — well before lawmakers would have time to start drawing maps. The court would have to decide on the maps by April 2022, which would allow candidates to know the shapes of the districts before they begin gathering signatures to get on the ballot that fall.

Jensen is basing his request on how the state Supreme Court responded to a fight over the maps based on the 2000 census.

Then, the high court said state courts should normally handle redistricting litigation but that it was deferring to the federal courts because there were no rules governing such litigation in Wisconsin courts. The justices wrote that they should develop rules for future litigation on the issue but never did so. 

“It is time to redeem that promise,” Rick Esenberg, WILL’s president, wrote in Wednesday’s filing. 

“It is incumbent on this court to have rules in place that allow the court to meet this state’s responsibility for the redistricting process rather than defer to the federal courts as occurred in (the case from the early 2000s).”

Conservatives have a 5-2 majority on the state Supreme Court now, and that will shift to 4-3 in August, when liberal Dane County Judge Jill Karofsky replaces conservative Justice Daniel Kelly. Karofsky beat Kelly in an April election for a 10-year term on the court.

If a lawsuit were brought in federal court, it would go to a panel of three judges.

In 2016, such a panel voted 2-1 to strike down Wisconsin’s maps because they so heavily favored Republicans. (One of the judges ruling against Republicans was nominated by a Republican president and the other by a Democratic president; the dissenting judge was a Republican nominee.)

The U.S. Supreme Court reversed the decision in 2018 and ordered more proceedings in front of the panel. Before the panel re-heard the case, the U.S. Supreme Court in another pair of cases ruled challenges to election maps based on claims of excessive partisanship could not be heard in federal court. The Wisconsin case was dropped soon afterward.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

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