(Updates with additional background in the 20th paragraph and chart showing differences proposed by a nonpartisan commission.)
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A group of liberal voters sued in the Wisconsin Supreme Court Wednesday, arguing that gerrymandered state Legislature maps ought to be thrown out and redone to more accurately reflect the swing state’s political preferences.
If successful, the challenge to the current Republican-favoring lines could lead to statehouse power becoming more evenly divided, thwarting supermajorities that could give the GOP veto-proof power over election rules, tax rates, and more.
The suit, brought by the advocacy group Law Forward, will have wide implications in one of the country’s tightest presidential battlegrounds.
“The current districts are invalid, the representatives and senators elected from them unconstitutionally hold office, and this Court’s urgent action is required to ensure that not one more Wisconsin election is held using state legislative districts that brazenly flout the language of Wisconsin’s Constitution and the rights of its residents,” the petition says.
Wisconsin GOP Executive Director Mark Jefferson criticized the suit as an effort to turn the state’s highest court into a super-legislature that would give Democrats power they haven’t earned at the ballot box. “Republicans for over a generation now have been out-hustling Democrats in legislative races,” he said.
The litigation came a day after Justice Janet Protasiewicz was sworn in, creating the first liberal majority on the state’s highest court in over a decade. Protasiewicz had openly campaigned against the state’s GOP-drawn maps, calling them “rigged.”
The case could move rapidly. New district lines, if ordered, would have to be completed in time to let local officials prepare for candidate filing deadlines in April.
A challenge to the state’s congressional map—which could make it easier for Democrats to beat two GOP US House incumbents—will come later, Ruth Greenwood, director of Harvard Law School’s election law clinic, said in a press conference.
“We are not shying away from filing suit against the federal maps,” she said. “Wisconsin is remaining at the forefront in the challenge against partisan gerrymandering across the country.”
The state Supreme Court race won by Protasiewicz was the most expensive judicial contest in US history, largely because of the potential for decisions on abortion and the 2024 Electoral College presidential count.
When it had a conservative majority, the court came within one justice’s vote of overturning President Joe Biden’s victory in the state in 2020. Now justices with a more liberal point of view outnumber conservatives 4-3.
Politically, Wisconsin voters are evenly divided. They favored Biden by less than a percentage point, and they’re represented by Democrat Tammy Baldwin and Republican Ron Johnson in the US Senate.
The configuration of statehouse maps, though, has benefited Republicans, who have a two-thirds majority in the state Senate and are three seats away from a supermajority in the Assembly.
Political sentiment on the whole is “basically 50/50,” said University of Wisconsin-Madison political science Professor Barry Burden. “But these maps give Republicans a substantial bonus.”
‘1,000 Little Pieces’
The suit contends that the political boundaries drawn by Republican lawmakers “systematically classify voters based on partisan affiliation and target the disfavored class of voters with an unequal opportunity to elect their preferred political candidates.”
One of the plaintiffs’ attorneys, Mark Gaber of the Campaign Legal Center, said the maps are so skewed that when Gov. Tony Evers (D) won more than 51% of votes in his 2022 re-election,he carried only 38 of the state’s 99 state assembly districts.
“When Ron Johnson won by 1% he carried 23 of the 33 state Senate seats; that’s 70% in a 1-point spread,” Gaber said. “State courts across the country have invalidated partisan gerrymandered maps that are less extreme than this.”
The suit also says that more than half of the Assembly and Senate seats include districts that aren’t contiguous, with islands of precincts separated from the rest of the communities. One example: a glob of more than 600 Madison residents are stranded from their fellow voters two districts away, according to the lawsuit.
“If you just zoom in and look at the map it looks like nothing anywhere else across the country,” Gaber said at a press conference. “There are perhaps 1,0000 little pieces that are strewn across the map.”
The Republican-controlled legislature drew maps with a GOP edge in 2011, and then the state Supreme Court ruled in 2021 that it would only accept maps with the “least change,” sidelining the dramatic alterations with a different partisan balance proposed by a nonpartisan commission. It’s possible that the commission’s dead-end maps could be revived if there’s a new round of redistricting.
Federal court wasn’t an option because of another Wisconsin case, Gill v. Whitford, in which the US Supreme Court held in 2018 that the liberal Wisconsin voters didn’t have standing to bring their case. Then in 2019’s Rucho v. Common Cause decision the US Supreme Court held partisan gerrymandering claims could only be brought in state courts.
The lead plaintiff in that unsuccessful challenge, retired UW Law Professor Bill Whitford, said he expects the outcome of the new litigation to be different.
“This is a chapter that needs to be written, and the chances of success are substantial,” he said in an interview. “I feel more confident that the state Supreme Court wants to be bold and get a hold of this problem.”
State Sen. Majority Leader Devin LeMahieu defended the lines, calling the maps “valid and constitutional.”
“Instead of redefining their radical political platform to match the values of everday Wisconsinites, liberal Democrats are counting on judicial fiat to help them gain power,” he said in a statement.
The case, which has not received a docket number yet, is: Clarke v. Wisconsin Elections Comm’n, Wis., 8/2/23.
To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at email@example.com