Jan. 12, 2022 – The Wisconsin Supreme Court will hear oral arguments on a lawsuit filed over the decennial re-drawing of the state’s congressional and legislative districts at 9 a.m. Wednesday, Jan. 19. The date and time were set in an order issued on Jan. 11.​

Redistricting must take place every 10 years to account for shifts in population, and comply with other federal and state laws. The Republican-controlled Wisconsin Legislature drew new maps after the 2020 census, but Gov. Tony Evers, a Democrat, vetoed the maps, creating an impasse.

Four Wisconsin voters filed an original action petition, asking the court to redraw the existing maps, enacted in 2011 under then-Gov. Scott Walker. Petitioners argued that the existing maps are malapportioned and no longer comply with constitutional requirements. Numerous parties intervened.

The issue centers on just how much “redrawing” the Wisconsin Supreme Court can do in formulating a remedy – under state and federal law – on a matter that the state constitution delegates to the Legislature.

Court Divided Over Factors

In a 4-3 decision issued last December, the supreme court ruled that it would redraw the maps only where necessary to fix malapportionment between districts caused by population changes reflected in the 2020 census.​

​In​ Johnson v. Wisconsin Elections Commission, 2021AP1450-OA, (Nov. 30, 2021) the supreme court ruled that it would not consider the partisan makeup of districts when deciding whether to redraw district boundaries.

In an opinion written by Justice Rebecca Bradley, the court also ruled that it would make the minimum changes necessary – a “least-change approach” – to bring district boundaries into compliance with constitutional and statutory standards.

The existing maps had been adopted by the legislature, signed by the governor, and upheld by federal courts, R. Bradley noted.

Consequently, separation of powers principles enshrined in the Wisconsin Constitution required the supreme court to do the minimum necessary to accord the maps with the applicable constitutional and statutory requirements.

In her dissent, Justice Rebecca Dallet wrote that the majority’s opinion guaranteed that the court could not remain neutral and nonpartisan, because it adopted the “‘sharply partisan’” 2011 maps as the template for its least-change approach and because it ruled that challenges to partisan gerrymanders were non-justiciable.

Court Will Choose New Maps

Having decided on the factors it will use to redraw the maps, the court must now choose new maps.

Two weeks before the
Johnson v. Wisconsin Elections Commission opinion was issued, the supreme court issued an order under which the parties and intervenors could file proposed congressional and legislative maps.

Among the intervenors who will present oral arguments in support of their proposed maps on Jan. 19 are the State Senate Democratic Caucus, League of Women Voters of Wisconsin, the Wisconsin Legislature, Governor Tony Evers, and Republican Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom Tiffany, and Scott Fitzgerald.

Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.