Redistricting again took center stage at the Wisconsin Supreme Court this past month, with the court declaring Wisconsin’s state legislative maps unlawful under the Wisconsin Constitution. Let’s dive right in.

Cases Decided

Clarke v. Wisconsin Elections Commission, No. 2023AP1399


Decision Filed: December 22, 2023

Public Citation: 2023 WI 79

Nearly four months into its 2023–24 term, the Wisconsin Supreme Court finally issued its first authored decision of the term—a 225-page behemoth on the hot button topic of redistricting. Admittedly, Justice Karofsky’s majority opinion constitutes only 49 pages of the volume, with three separate dissents accounting for the other 176 pages. Regardless, here’s the bottom line: Wisconsin’s legislative maps violate the Wisconsin Constitution’s requirement that districts be contiguous, and the Wisconsin Supreme Court plans to implement new maps to remedy this deficiency.

Relative to the stakes of this case, the central legal issue is relatively mundane. Article IV, Sections 4 and 5 of the Wisconsin Constitution direct that state assembly and senate districts must consist of “contiguous territory.” The current legislative maps (which the supreme court implemented just two years ago) include districts that contain territory that is detached from the rest of their districts. For decades, this districting practice has been permitted, so long as the detached territories are so-called “municipal islands”—i.e., territory that is part of a municipality included in the district but which is nevertheless physically separated from the rest of the municipality. Here, the petitioners challenged this practice, arguing that the constitution’s contiguity provisions require that every part of a district must be physically connected to the rest of the district, regardless of what municipality that territory belongs to.

In a 4-3 decision authored by Justice Karofsky, and joined by Justices Ann Walsh Bradley, Dallet, and Protasiewicz, the court declared the current maps unconstitutional because they include districts with detached territory. In the court’s view, the text of the constitution plainly required that districts be “touching” or “in actual contact.” The court therefore enjoined the Wisconsin Elections Commission from administrating elections under the current legislative maps. Along the way, Justice Karofsky’s opinion also addressed several defenses asserted by the Legislature and other respondents. These included arguments that the petitioners’ lacked standing and that the claims were barred by other equitable defenses, such as laches, issue preclusion, claim preclusion, and estoppel. The court held none of these defenses applied in this unusual case.

Perhaps the most immediately significant aspect of the court’s decision is its discussion of remedy. The court announced its plan to implement new maps and to have them in effect in time for the 2024 fall primary elections. It invited parties to submit proposed maps to the court and announced that it would appoint two redistricting consultants to assist the court in analyzing the proposals. The court laid out five factors that will guide its selection of new maps: (1) compliance with population equality requirements; (2) compliance with state constitutional requirements, such as contiguity; (3) compliance with federal law (e.g., the Equal Protection Clause and the Voting Rights Act of 1965); (4) adherence to other traditional districting criteria, such as preserving communities of interest; and (5) partisan fairness.

Court watchers will note that this list looks considerably different than the principles that guided the court when it adopted remedial maps in 2022. In Johnson v. Wisconsin Elections Commission, the court adopted a “least change” approach, under which it strove to adopt maps that would hew as closely as possible to the maps most recently enacted into law via the legislative process. 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469. The majority in this case overruled Johnson’s “least change” principle, casting it aside as unworkable in practice, and announced its new maps would be drawn from scratch. Also new is the court’s willingness to consider partisan fairness when implementing remedial maps. In Johnson, the court declined to consider the partisan impact of its remedy, reasoning that partisan fairness in redistricting was neither protected under the Wisconsin Constitution nor susceptible to a judicially administrable standard. The court took a different approach in this case, announcing that it would consider partisan impact to ensure its remedial maps do not advantage one political party over the other.

Each of the three dissenting justices filed solo dissenting opinions. Chief Justice Ziegler and Justice Rebecca Grassl Bradley devoted several pages to arguments that the majority incorrectly applied the Wisconsin Constitution’s contiguity requirements. But all three dissenters, Justice Hagedorn included, focused much of their energy on the impropriety of the court hearing this case at all. The opening lines from each dissent offer a flavor of their author’s views on this case:

  • Chief Justice Ziegler: “This deal was sealed on election night. Four justices remap Wisconsin even though this constitutional responsibility is to occur every ten years, after a census, by the other two branches of government.”
  • Justice Rebecca Grassl Bradley: “Riding a Trojan horse named Contiguity, the majority breaches the lines of demarcation separating the judiciary from the political branches in order to transfer power from one political party to another.”
  • Justice Hagedorn: “This is a sad turn for the Wisconsin Supreme Court. Today, the court dives headlong into politics, choosing to wield the power it has while it has it. Wisconsinites searching for an institution unpolluted by partisan warfare will not find it here.”

This is not the last time Clarke will make an appearance in this column. The court issued a separate order outlining the next steps for this case. In the coming weeks, the parties will propose remedial maps, and the court’s appointed consultants will evaluate those submissions. Then, perhaps as early as March, the court will release another decision adopting new maps. It is widely expected a petition for certiorari to the U.S. Supreme Court will follow.

Up for Review

The state’s high court has two cases set for argument on its January oral argument calendar: one termination-of-parental-rights case and one criminal case. Those are both areas that are generally outside the scope of this column. The court’s oral argument calendar for March is also now available.

New to the Docket

No new cases were added to the court’s docket in December.

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For more news on the Wisconsin Supreme Court, visit MTFN’s Wisconsin Supreme Court News webpage.

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