Wisconsin election maps: Attorneys argue over timing, partisanship | Government
Oral arguments — rife with interruptions and accusations of partisan strategizing — began Tuesday morning for a case that alleges Wisconsin’s current election maps violate the state Constitution and “retaliate against voters based on their viewpoint.”
The case has transfixed the state since its initial filing in early August, resulting in calls for newly sworn-in Justice Janet Protasiewicz to recuse herself based on her campaign-trail comments in which she called the maps “rigged.” Protasiewicz ultimately did not recuse herself.
Assembly Speaker Robin Vos, R-Rochester, threatened to impeach Protasiewicz if she did not step aside, although he has since said he would wait to see the outcome of the case before taking action. Assembly Republicans proposed a move to enlist a nonpartisan agency to draw maps, an offer rejected by Democrats and opponents of the current maps as a cynical ploy to undercut the lawsuit.
These partisan disputes threaded their way throughout Tuesday’s court proceedings, beginning when conservative Justice Rebecca Bradley stopped Mark Gaber — an attorney arguing against the current maps — within the first minute of his introductory remarks to ask why the plaintiffs waited until now to bring forward a challenge to the maps.
Wisconsin Supreme Court Justice Rebecca Grassl Bradley asks a question during the Rebecca Clarke v. Wisconsin Elections Commission redistricting hearing at the Wisconsin state Capitol Building in Madison on Tuesday, Nov. 21, 2023. Photo credit: Ruthie Hauge, The Capital Times
“Everyone knows the reason why we’re here is because of the change in the make-up in the court,” Bradley said, referring to Protasiewicz’ election swinging the court to a liberal majority.
The case was filed with the Supreme Court on Aug. 2, just days after Protasiewicz was sworn in.
Proceedings Tuesday morning focused on two overarching questions: Is a lack of contiguity in current voting districts a violation of the Constitution and was it a violation of the Separation of Powers for the previous Supreme Court to select GOP drawn maps that had been vetoed by Democratic Gov. Tony Evers?
Justice Rebecca Dallet, who is part of the court’s liberal majority along with Protasiewicz and Justices Ann Walsh Bradley and Jill Karofsky, asked Gaber to explain the point of contiguity in election maps.
Contiguity — meaning all parts of a voting district are in physical contact with some other part of the district — “limits the Legislature’s power to engage in distortions of representational government,” Gaber responded.
The petition names members of the Wisconsin Elections Commission as well as 17 state senators as respondents in the case.
Wisconsin Supreme Court Justice Rebecca Frank Dallet listens to arguments in the Rebecca Clarke v. Wisconsin Elections Commission redistricting hearing at the Wisconsin state Capitol Building in Madison on Tuesday, Nov. 21, 2023. Photo credit: Ruthie Hauge, The Capital Times
Part of the lawsuit calls for a special election to be held for state senators who aren’t automatically up for reelection during the 2024 election cycle. State Senate seats come up for election every four years, with some Senate seats on an “odd-year” schedule, meaning these seats are decided in elections that don’t fall in line with national elections.
The special election the legal groups are calling for would be held in concert with the standard 2024 election. State senators who won seats in this special election would serve a shorter, two-year term until their standard Senate election takes place in 2026.
The petitioners said they filed the lawsuit directly with the Supreme Court — rather than filing with a lower court and allowing the case to work its way up, as is standard practice — with the hopes of getting a ruling in time for the 2024 election.
Attorneys arguing to keep current state maps — and representing the 17 state senators named as respondents in the case — said it would be unconstitutional to remove already-elected lawmakers.
The timing of the case and decision to file directly with the high court was more than expected given the oxygen the issue of voting maps took up on the Supreme Court campaign trail in 2022 and earlier this year.
In a statement, Vos and Senate Majority Leader Devin LeMahieu, R-Oostburg, slammed the legal groups behind the map challenge, saying they “waited two years to file their meritless redistricting claims.”
Wisconsin Supreme Court Justice Janet Protasiewicz listens to arguments in the Rebecca Clarke v. Wisconsin Elections Commission redistricting hearing at the Wisconsin state Capitol Building in Madison on Tuesday, Nov. 21, 2023. Photo credit: Ruthie Hauge, The Capital Times
Law Forward, a liberal-leaning nonprofit law firm based in Madison that joined several other legal groups in filing the petition, told the Cap Times in April it planned to file a lawsuit alleging partisan gerrymandering as soon as the bench flipped.
The group is joined in the petition by the Election Law Clinic at Harvard Law School, Campaign Legal Center, and Arnold & Porter.
A coalition of groups opposing the current maps held a vigil in the Capitol rotunda, watching oral arguments on TV screens, holding placards calling for new maps and channeling their activism into a “we want fair maps” song to the tune of “Frère Jacques.”
People gather to watch the Wisconsin Supreme Court redistricting hearing on a television in the rotunda of the Wisconsin state Capitol Building in Madison on Tuesaday, Nov. 21, 2023. Photo credit: Ruthie Hauge, The Capital Times
Tim and Karen White drove in from Mount Horeb to join the overflow area but said they are veterans of the redistricting issue, attending past hearings and considering it important to turn up for the oral arguments.
“It is one of the most important issues there is,” Karen White said.
Attendees blamed the current maps on a Republican legislative majority that saw no interest in expanding BadgerCare, supporting abortion rights and instituting gun control reforms.
“That’s why they don’t work together,” Tim Cullen, a Democrat who twice represented Janesville in the state Senate, said at a rally. “It’s not in their selfish interest, even if it’s in the interest of Wisconsin.”
This is one of two lawsuits challenging the state’s election maps, filed with the Supreme Court just days apart. The court elected not to take up the second case.
Erin McGroarty joined the Cap Times in May 2023 and covers politics and state government while also investigating disinformation. Originally from Alaska, Erin brings nearly four years of experience covering state politics from the farthest north capitol in the country.
You can follow her on X @elmcgroarty.
Andrew Bahl joined the Cap Times in September 2023, covering Wisconsin politics and government. He is a University of Wisconsin-Madison alum and has covered state government in Pennsylvania and Kansas.
You can follow Andrew on X @AndrewBahl.
Support Erin and Andrew’s work by becoming a Cap Times member. To respond to this story, submit a letter to the editor.
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