Oral arguments challenging Wisconsin’s maps face Republican court backlash

Oral arguments began Nov. 21 on a Wisconsin Supreme Court case that alleges Wisconsin’s Republican-drawn legislative maps are illegally gerrymandered and demands a map redrawing prior to the 2024 election.

The case, Clarke v. Wisconsin Elections Commission, was filed directly with the Wisconsin Supreme Court on Aug. 2, the day after Justice Janet Protasiewicz was sworn in last April. Petitioners sought to give the Supreme Court original jurisdiction rather than waiting for lower courts to pass it up in hopes of procuring a ruling before the 2024 election.

Since its filing, Republicans have called for Protasiewicz to recuse herself and threatened impeachment based on campaign comments in which she called the maps “rigged.” Protasiewicz declined to recuse herself. 

Protasiewicz’s victory formed the first liberal majority on the Wisconsin Supreme Court in 15 years. 

Conservatives accuse petitioners of weaponizing new liberal majority

Conservative Justice Rebecca Bradley stopped Mark Gaber, an attorney arguing in favor of redrawing maps, in the first minute of his remarks to point out the timing of the challenge to the current maps. 

“Everyone knows the reason why we’re here is because of the change in the membership of the court,” Bradley said. 

To sidestep a ruling from the Supreme Court, Assembly Republicans followed up in September with a proposal to enlist a nonpartisan agency to draw maps, backtracking on previous impeachment threats.

Democrats dismissed the bill as a “bogus” attempt to undermine the lawsuit by retaining the Legislature's control over redistricting. A similar proposal previously introduced by Democrats was swiftly struck down by Republicans in 2019.

Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg, slammed the legal groups behind the map challenge, saying in a statement they “waited two years to file their meritless redistricting claims—and yet they waited only one day after Justice Protasiewicz’s investiture.”

Lawsuit is the latest challenge in years-long redistricting fight

The case is not a sudden standalone effort. Wisconsin’s current maps have been under fire from multiple federal and state lawsuits since they were drawn in 2011.

Proceedings last week focused on the constitutionality of the current map’s lack of contiguity — a requirement that all parts of a voting district are physically in contact — and the previous Supreme Court’s decision to select Republican-drawn maps that Democratic Gov. Tony Evers vetoed, according to the AP.

Maintained contiguity “limits the Legislature’s power to engage in distortions of representational government,” Gaber said. Wisconsin has several districts which are not contiguous, though some follow non-contiguous municipal boundaries.

To take effect in the 2024 election, the challenge would also require all Senate and Assembly seat districts to be redrawn, including “odd year” Senate seats that would otherwise not be on the ballot until 2026. The lawsuit declares the election of senators in “unconstitutionally configured districts to be unlawful” and names 17 state senators as additional respondents in the case.

A clause of the lawsuit details a special election for these seats, effectively halving the terms of senators currently occupying those seats and the hypothetical senators elected in the special election. 

Attorneys arguing to keep current state maps said it would be unconstitutional to remove lawmakers before their elected term ends, according to the Cap Times.

Several law firms, including Law Forward, the Election Law Clinic at Harvard Law School, Campaign Legal Center and Arnold & Porter planned to file the lawsuit alleging gerrymandering the moment Protasiewicz flipped the court, according to the Cap Times. 

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