May 18, 2021 – The Wisconsin Supreme Court has concluded that proposed procedures for anticipated redistricting litigation ”are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge.”

The court declined to adopt procedures that would send any redistricting litigation directly to the state supreme court, rather than federal courts, as an “original action.”

Scott Jensen, former speaker of the state Assembly, joined the Wisconsin Institute for Law and Liberty (WILL) in filing the petition (20-03), which included provisions on how the case would proceed procedurally as an original action at the supreme court.

The court held a public hearing in January, with numerous speakers either opposing or supporting the petition. This week the court declined to adopt it, with a caveat.

“Our decision in this rule matter should not be deemed predictive of this court's response to a petition for review asking this court to review a lower court's ruling on a redistricting challenge or a request that we assume original jurisdiction over a future redistricting case or controversy,” the court stated in its order. “It remains well-settled that redistricting challenges often merit this court's exercise of its original jurisdiction.”  

Redistricting Litigation Common

By state constitution, the Wisconsin Legislature redraws the voting districts every 10 years to account for shifts in population. A basic requirement is that voting districts be relatively equal in population, giving each voter in each district equal voting power.

Redistricting litigation has occurred every 10 years since 1972, the last time the Wisconsin Legislature enacted a redistricting plan without court intervention.

In “Battle Maps: A History of Wisconsin Redistricting Law” – in the May Wisconsin Lawyer – attorney and legal historian Joseph Ranney noted that “[r]edistricting fights have a long history in Wisconsin, which, together with recent federal decisions arising out of the post-2010-census fight, provide clues to the possible battles ahead.”

Under Section 2 of the Voting Rights Act of 1965, redistricting plans cannot discriminate against minority groups through racial gerrymandering.

But litigation also focuses on partisan gerrymandering, the practice of manipulating voting districts by dividing, consolidating, or otherwise arranging voters in a way that dilutes voting strength and favors one party’s incumbents to the detriment of the other.

In the last redistricting cycle, Democratic voters challenged redistricting maps drawn by a Republican-controlled Legislature and signed by former Gov. Scott Walker.

That challenge to the 2011 maps meandered up to the U.S. Supreme Court, which in 2018 remanded the caseto district court for plaintiffs to show particularized injuries using evidence “that would tend to demonstrate a burden on their individual votes.”

The U.S. Supreme Court subsequently decided Rucho v. Common Cause, 139 S. Ct. 2484(2019), which held (5-4) that “partisan gerrymandering present political questions beyond the reach of the federal courts.” The Wisconsin case was dismissed under Rucho. The majority opinion by Chief Justice John Roberts put the issue in state hands.

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Chief Justice Roberts wrote.

“Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions,” the chief justice continued.

Gov. Tony Evers, in January, issued an executive ordercreating an independent commission designed to curb partisan gerrymandering. The Republican-controlled Legislature reportedly intendsto draw maps without the commission’s input.

Anticipated Litigation

By state constitution, electoral districts must “be bounded by county, precinct, town, or ward lines, to consist of contiguous territory and be in as compact form as practicable.”

“Beyond that, the redistricting process is guided only by court precedents and the weight of recent practice,” according to a Wisconsin Legislative Reference Bureau article on redistrictingby Michael Keane, a senior research analyst. “There are no statutory guidelines or requirements for legislative redistricting in Wisconsin.”

Jensen and WILL, in their petition to the Wisconsin Supreme Court, noted that redistricting litigation is likely again in 2021.

“The State of Wisconsin currently has divided government with a Democratic Governor and a Republican Legislature,” the petition stated.

“That state of affairs is likely to continue after the November 2020 elections which means that adopting a new map for redistricting after the 2020 census will likely be difficult and any dispute will end up in the courts.”

The petitioners noted a 2002 Wisconsin Supreme Court per curiam decision in which the court deferred redistricting litigation to federal court to accommodate the requirements of the case but vowed to “initiate rulemaking proceedings regarding procedures for original jurisdiction” in future in redistricting cases.

“It is time to redeem that promise,” the petitioners note in a supporting memo. “It is incumbent on this Court to have rules in place that allow the Court to meet this State’s responsibility for the redistricting process rather than defer to federal courts.”

In its latest order, however, the court noted that a Redistricting Committee appointed by then-Chief Justice Shirley Abrahamson in 2003 worked on developing procedural redistricting rules for future litigation, but the court ultimately voted to “take no further action” on a report developed by the Redistricting Committee.