Jan. 2, 2024 – The Wisconsin Supreme Court (4-3) has struck down the state’s legislative maps, concluding they violate the contiguity requirement established by Sections 4 and 5 of Article IV of the Wisconsin Constitution.

In Clarke v. Wisconsin Elections Commission, 2023AP1399 (Dec. 22, 2023), the majority urged the legislature to draw and adopt new maps before the August 2024 primary election. If the legislature does not draw the maps or the governor exercises his veto power, the majority indicated that it would “proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process.”

Justice Jill Karofsky wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Janet Protasiewicz. Chief Justice Annette Ziegler, Justice Rebecca Bradley, and Justice Brian Hagedorn each filed a dissenting opinion.

Fight Over Maps

As it is required to every 10 years, the legislature enacted new maps after the completion of the 2020 census. Gov. Tony Evers vetoed the maps, which meant that legislative maps adopted in 2011 remained in effect.

A group of voters sued the Wisconsin Elections Commission (WEC) and asked the Supreme Court to re-draw the 2011 maps.

In Johnson I, the Supreme Court ruled that the 2011 maps no longer met the requirement, found in both the state and federal constitutions, that districts be equally populated.

The court then asked the parties to submit new maps, guided by the principal that the news maps should make ‘the least change necessary’ to bring the maps into constitutional compliance.

In Johnson II, the Supreme Court adopted maps submitted by Gov. Evers. But that decision was reversed by the U.S. Supreme Court, and on remand, in Johnson III, the Wisconsin Supreme Court adopted maps proposed by the legislature.

Rebecca Clarke and other voters challenged those maps in April 2023 by filing a direct action with the Wisconsin Supreme Court, which allowed a number of intervenors, including Gov. Evers and the legislature, to join the Clarke lawsuit.

Contiguity is Binary

Justice Karofsky began her opinion for the majority by pointing out that 50 out of 99 Assembly districts and 20 of 33 State Senate districts contain separate, detached territories.

These territories are bits of a precinct or a ward or a municipality carved out and floating inside a legislative district while being unlinked to the remainder of the precinct, ward, or municipality, with the remainder sometimes residing in a different legislative district.

Based on the dictionary definitions of the word “contiguous,” Karofsky wrote, “a district must by physically intact such that a person could travel from one point in the district to the other without crossing district lines.”

WEC argued that districts that contained “municipal islands” – disconnected bits of a municipality – were “politically contiguous,” as long as the main body of the municipality were contained in the same legislative district as the disconnected bits.

But, Justice Karofsky reasoned, to adopt the concept of “political congruity” would be to read an exception into Sections 4 and 5 of Article IV of the Wisconsin Constitution.

“Contiguity is binary: territory is either contiguous (touching, in contact) or it is not (separate, detached),” Karofsky wrote.

Justice Karofsky noted that the Supreme Court had twice before (in 1880 and 1892) held that the contiguity requirement prohibits the inclusion of separate, detached territories in legislative districts.

She also noted that decisions from other states, almost without exception, have held that “contiguous territory” means territory that touches and is not separate or detached.

Karofsky reasoned that the holding in Johnson I that political contiguity was acceptable was based on Prosser v. Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992) – a case that ignored Wisconsin Supreme Court precedent and relied on a statute that had been repealed by the time Johnson I was decided.

No Issue or Claim Preclusion

WEC argued that the lawsuit should be barred by issue or claim preclusion.

But Justice Karofsky concluded that issue preclusion didn’t apply because the contiguity issue hadn’t previously been litigated.

In any event, claim preclusion didn’t apply, the majority concluded, because the Johnson litigation involved the 2011 maps and the 2020 census.

In Clarke, the governor and other petitioners argued that the remedy in Johnson III was unconstitutional on grounds not raised by any of the parties in that lawsuit.

Principles for New Maps

Justice Karofsky wrote that the majority would appoint one or more consultants to evaluate maps submitted by the parties.

If the legislature and governor cannot agree on new maps, Karofsky wrote, the supreme court would use the following principles to adopt new maps:

• population equality;
  

• bounded by county, precinct, town, or ward lines;

• made up of contiguous territory;

• as compact as possible;

• compliance with federal law;

• other traditional redistricting criteria, including reducing municipal splits and preserving communities of interest; and

• partisan impact.

Regarding the final factor, Karofsky wrote that “we will take care to avoid selecting remedial maps designed to advantage one political party over another. Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan impact entirely.”

Parties are to submit proposed maps by Jan. 12 and briefs in support of the maps by Jan. 22. The consultants will evaluate proposed maps by Feb. 1.

Ziegler Dissent: ‘Terribly Dangerous’

Chief Justice Annette Ziegler began her dissent by stating: “This deal was sealed on election night,” referring to the election of Justice Protasiewicz in April 2023.

“The new majority seems to assume that their job is to remedy ‘rigged’ maps,” Ziegler wrote. “These departures from the judicial role are terribly dangerous to our constitutional, judicial framework.”

Chief Justice Ziegler noted that all the parties in Johnson stipulated that municipal islands were legally continuous with the municipalities to which they belonged.

As a result, Ziegler argued, Gov. Evers should be judicially estopped from arguing that the maps violate the Wisconsin Constitution’s contiguity requirement.

She also noted that parties to the Johnson litigation could have sought reconsideration of that decision but didn’t.

Chief Justice Ziegler also argued that the majority mistakenly alleged that the discussion of the contiguity issue in Johnson I was dicta.

“The majority dismisses 50 years of precedent, a federal court determination in Prosser, and three successive binding determinations by this court in Johnson I, II, and III in order to do away with a necessary stare decisis analysis which does not trend in their favor,” Ziegler wrote.

R.G. Bradley Dissent: ‘Handmaidens of the Democratic Party’

Justice R. Bradley began her dissent by arguing that the majority had “shed their robes” and usurped the legislature to “deliver the spoils to their preferred political party.”

“These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary, and undermine democracy,” R. Bradley wrote.

R. Bradley noted that for 50 years, legislative maps in Wisconsin had contained districts that included separate and detached territories.

She also argued that under the majority’s reasoning, new legislative maps could be drawn each time a new member comes on the supreme court, instead of every ten years as specified in the Wisconsin Constitution.

Justice R. Bradley also noted that the majority had: 1) ignored dictionary definitions of “contiguous” that included things proximate, adjacent, or adjoining; and 2) failed to provide a standard for measuring the partisan impact of proposed new maps.

Hagedorn Dissent: ‘Tenuous Legal Hook’

Justice Hagedorn argued in his dissent that the majority had found a “tenuous legal hook” to redistribute political power in the state.

“Call it ‘promoting democracy’ or ‘ending gerrymandering’ if you’d like, but this is good, old fashioned power politics,” Hagedorn wrote.

Justice Hagedorn acknowledged that the majority’s analysis of the contiguity issue was likely correct.

“But that does not give litigants a license to ignore procedure and initiate a new case to try arguments they had every opportunity to raise in the last action, but did not,” he wrote.

Hagedorn predicted that the majority decision would come to haunt the high court.

“A court that has long been accused of partisanship will be enmeshed in it, with no end in sight,” Hagedorn wrote.