​​Dec. 1, 2021 – The Wisconsin Supreme Court will redraw the state's voter redistricting maps, enacted in 2011 and litigated all the way to the U.S. Supreme Court, only where necessary to fix malapportionment between districts caused by population changes reflected in the 2020 census.

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 draw 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 centered 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.

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. 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.

“We adopt the least-change approach to remedying any constitutional or statutory infirmities in the existing maps because the constitution precludes the judiciary from interfering with the lawful policy choices of the legislature,” wrote Justice Rebecca Bradley for the four-justice majority, joined in full by Chief Justice Annette Ziegler and Justice Patience Roggensack.

The decision was a declaration of what the court can consider when redrawing the voter district boundaries as a remedy – which will be its next task – following the decision’s limitations.

Justice Brian Hagedorn, a swing justice in various cases last term, joined the majority opinion “in almost all respects,” but wrote a concurring opinion to note that “a court is not necessarily limited to considering legal rights and requirements alone when formulating a remedy.”

Justice Rebecca Dallet wrote a dissent in which Justice Ann Walsh Bradley and Justice Jill Karofsky joined. They said the federal courts – “comprised of judges insulated from partisan politics” – are best suited to handle redistricting cases. The dissent also said redrawing can’t start with the 2011 maps.

“In effect, a least-change approach that starts with the 2011 maps nullifies voters' electoral decisions since then,” Dallet wrote. “In that way, adopting a least-change approach is an inherently political choice.”

A Political Question

As interpreted by the Wisconsin Supreme Court, Article IV, Section 3 of the Wisconsin Constitution requires, to greatest extent practicable, that each state senate district and each assembly district must include the same number of residents – in effect, “one person, one vote.”

Furthermore, in 2019 the U.S. Supreme Court held in Rucho v. Common Cause that the partisan makeup of legislative districts was a non-justiciable political question.

“The United States Supreme Court declared partisan gerrymandering claims to be non-justiciable under the United States Constitution, and the very existence of such claims is doubtful,” wrote Justice R. Bradley, referencing Rucho. “Chief Justice Roberts noted at the outset the Court has never struck down a map as an unconstitutional partisan gerrymander and acknowledged that several decades of searching for a judicially manageable standard by which to judge maps' partisan fairness had been in vain.”

Whether a legislative map is unfair to one party is a quintessential political question because no judicially discoverable and manageable standards exist with which to judge partisan fairness, R. Bradley wrote, and the Wisconsin Constitution assigns redistricting to a political body – the state legislature.

Proportional Representation?

Claims that maps confer an unfair advantage on one party, Justice R. Bradley wrote, are really claims for proportional representation, and such claims had no basis in state or federal law.

It would be difficult to measure the state’s partisan divide, R. Bradley wrote. Even if it could be measured, “what constitutes a ‘fair map’ poses an entirely subjective question with no governing standards grounded in law.”

The Wisconsin Constitution does not authorize the supreme court to “recast itself as a redistricting commission” and substitute its own judgment for the legislatures in order to ensure partisan fairness, R. Bradley wrote.

A Least-Change Approach

The existing maps had been adopted by the legislature, signed by the governor, and blessed 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.

“Treading further than necessary to remedy [the maps’] current legal deficiencies, as many parties urge us to do, would intrude upon the constitutional prerogative of the political branches and unsettle the constitutional allocation of power,” Justice R. Bradley wrote.

The supreme court has the authority to issue mandatory injunctions, but not to make law, R. Bradley wrote. Therefore, she reasoned, the remedy for reapportioning the districts should entail the least amount of change necessary to bring into line with the applicable constitutional requirements – and that means using the existing maps.

“Using the existing maps ‘as a template’ and implementing only those remedies necessary to resolve constitutional or statutory deficiencies confines our role to its proper adjudicative function, ensuring we will fulfill our role as apolitical and neutral arbiters of the law,” Justice R. Bradley wrote.

To hold otherwise would plunge the court “into the ‘deepest of political thickets’” and put the court at odds with the concept of a nonpartisan judiciary a – a concept embodied in SCR 60.06(2)(a), she noted.

“Attempting to redress the criticisms of the current maps advanced by multiple intervenors would amount to a judicial replacement of the law enacted by the people’s elected representatives with the policy preferences of unelected interest groups, an act totally inconsistent with our republican form of democracy,” Bradley wrote.

‘Dangerously Broad Judicial Power’

In his concurrence, Justice Hagedorn wrote that the court was not bound to fashion a remedy that is no broader than the redistricting requirements established by state law.

For instance, the affect redrawing legislative maps would have on “communities of interest” has been widely recognized as a legitimate criterion for redrawing legislative maps, he noted.

“Suppose we receive multiple proposed maps that comply with all relevant legal requirements, and that have equally compelling arguments for why the proposed map most aligns with current district boundaries,” Justice Hagedorn wrote. “In that circumstance, we still must exercise judgement to choose the best alternative. Considering communities of interest … may assist us in doing so.

But the court’s remedies aren’t unbounded, Hagedorn wrote, and he criticized Justice Dallet for advancing the argument that the court should redraw the maps and substitute its judgement for tthat of the legislature

“The reader should look past pleas for fairness and see this for what it is: a claim of dangerously broad judicial power to fashion state policy,” Justice Hagedorn wrote.

‘Fooling No One’

In her dissent, Justice 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.

“The upshot of those two decisions, neither of which is politically neutral, is to elevate outdated partisan choices over neutral redistricting criteria,” she wrote. “That outcome has potentially devastating consequences for representative government in Wisconsin.”

Adopting a least-change approach and picking the 2011 maps as a template, Dallet wrote, “nullifies voters’ electoral decisions since then.

“In that way, adopting a least-change approach is an inherently political choice. Try as it might, the majority is fooling no one by proclaiming its decision is neutral and apolitical.”

No state or federal court in Wisconsin has ever adopted the least-change approach, Justice Dallet noted. Cases from courts in other states that have done so, Dallet wrote, either involved congressional maps, court-drawn maps, or maps drawn for local board or commissions, not legislative maps.

True Neutrality?

By adopting the least-change approach, Dallet wrote, the majority “affirmatively perpetuates the partisan agenda of politicians no longer in power. It doesn’t matter which political party benefits, from the 2011 maps, only that we cannot start with them and maintain judicial neutrality.”

True neutrality, Dallet wrote, would require the court to employ the factors listed in the state and federal constitutions, the Voting Rights Act, and traditional redistricting criteria – “criteria glaringly absent from the majority/lead opinion.” Moreover, wrote Justice Dallet, “the least-change principle is found nowhere in the Wisconsin or U.S. Constitutions.”

Dallet also criticized the majority for going out​​ of its way to hold claims of partisan gerrymandering were non-justiciable. It reached that holding, Dallet wrote, “by answering a constitutional question that we never asked, that the parties did not brief, and that is immaterial to this case.

“The majority seems to think that, because it fails to ‘find a right to partisan fairness in…the Wisconsin Constitution,’ the court cannot consider, for any reason, the partisan effects of remedial maps.

“But there is no logical connection between these conclusions. In fact, willfully blinding the court to the partisan makeup of districts increases the risk that we will adopt a partisan gerrymander.”

The majority’s holding, Dallet wrote, “gives future legislatures and governors a green light to engage in a practice that robs the people of their most important power – to select their elected leaders.”