Wisconsin Supreme Court casts doubts on Republican-backed redistricting rules

MADISON – Wisconsin Supreme Court justices reacted cooly Thursday to a plan meant to ensure gerrymandering lawsuits go to them instead of federal judges.

States are required to draw new legislative and congressional districts before the 2022 elections to account for changes in population. With split control of state government, courts are widely expected to have to decide where to draw Wisconsin’s lines. 

Conservatives are asking the justices to change their rules to improve the chances that they, rather than federal courts, will resolve any challenges. Under their request, any redistricting lawsuits would go straight to the state Supreme Court instead of starting before a trial court like most cases. 

In an hourslong hearing Thursday, the justices expressed skepticism at changing their rules. 

”I don’t know how in the world you think the court could ever draw the map,” Chief Justice Patience Roggensack said. “This rule makes the court proactive. That’s just not how we operate.”

Roggensack leads the court’s 4-3 conservative majority. She and conservative Justice Annette Ziegler opposed changing the rules for redistricting cases 12 years ago when the court last considered the issue. Most of the other justices were not on the court at the time. 

Liberal Justice Jill Karofsky also questioned changing the rules. But mostly the justices spent Thursday listening to lawyers, activists and everyday citizens.

Many of those who testified criticized the proposed rules — as well as the existing maps that favor Republicans.

“My vote is counted, but it does not count,” said Deborah Patel of River Hills, who was a plaintiff in an unsuccessful lawsuit that sought to throw out the Republican-drawn maps.

Requesting the rule change is former Assembly Speaker Scott Jensen, a Republican who is being assisted by the conservative Wisconsin Institute for Law & Liberty.

“Redistricting is a function of state government and ought to be adjudicated by state courts,” said a statement from Rick Esenberg, the institute’s president and general counsel.

Republicans controlled all of state government in 2011 and drew maps that helped them lock in large majorities in the Assembly and state Senate. But this year, Democratic Gov. Tony Evers can veto any maps drawn by Republican lawmakers.

With no agreement, it would be left to courts to decide what to do. The courts could draw their own maps or use ones proposed by Republicans, Democrats or nonpartisan groups.

Even if the state Supreme Court changes its rules, litigation could be filed in state or federal court. But if the state Supreme Court sets rules for how it handles redistricting lawsuits, federal judges may be more likely to defer to the state court and allow it to handle such cases. 

Lawsuits in federal court are heard by three-judge panels. Appeals go directly to the U.S. Supreme Court instead of appeals courts.

The Wisconsin justices have not said when they will decide on whether to change their rules.

The Associated Press contributed to this report.

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