Wisconsin Supreme Court signals openness to congressional map challenges

(CN) — In a marathon session Wednesday, the Wisconsin Supreme Court signaled it may allow challenges to the state’s long-disputed congressional maps to proceed.While Wisconsin sees nearly dead-even results in statewide elections, existing congressional lines drawn by Republican lawmakers yield six Republicans and two Democrats in the U.S. House. One group claims the maps unfairly benefit Republicans, while another argues they are anti-competitive to protect incumbents.The court’s liberal majority pressed counsel for Wisconsin’s Republican-controlled Legislature on why justices cannot combat “extreme” partisan gerrymandering tracing back to 2011.Chief Justice Jill Karofsky criticized the legitimacy of current boundaries, noting the lawmakers who enacted those lines were elected under the controversial districts.“The Legislature that passed those maps, they came from districts that many people claim were the most gerrymandered in the entire country,” she said. “Many people felt their votes were diluted, that they weren’t representative of the people. They said those maps weren’t fair, some people even called those maps rigged.”Those lines became the foundation for the 2022 boundaries after a deadlock between the legislature and Governor Tony Evers forced the court’s former conservative majority to step in and apply a “least change” standard that preserved the framework with minimal adjustments.When liberals took the high court majority in 2023, the court abandoned “least change” — setting off a push by voting rights groups to strike down existing boundaries.Special judicial panels dismissed both cases earlier this year, ruling lower courts lack authority to overturn state Supreme Court precedent, and plaintiffs now urge justices to reverse those dismissals and either strike down the maps or order the panels to begin fact-finding.Abha Khanna, representing voters challenging the maps, said applying least change to fundamentally skewed maps makes neutrality “impossible.”“Citizens are entitled to equal treatment under the law and cannot be arbitrarily treated based on their viewpoint or residence,” she said. “Politicians don’t get to choose their voters, the deck can’t be stacked, there can’t be an arbitrary disadvantage of the disfavored party.”Justice Brian Hagedorn, one of two conservative justices on the bench, said Khanna wants the court to “invent a new right.”“You’re saying it’s a violation of separation of powers for this court to not take that power for itself, but to defer to the legislature?” he said. “That is quite a creative argument to me.”Hagedorn, the most skeptical of the suits, noted partisanship has long existed in redistricting — questioning where to draw the line on unfairness.If Khanna found cold weather from the bench’s conservative wing, Taylor Meehan — representing the Wisconsin State Legislature — walked into a storm when arguing the court lacks authority to weigh in on congressional maps outside of breaking deadlocks.Justice Chris Taylor — sitting just below a mural depicting the signing of the U.S. Constitution — noted it is contrary to Wisconsin’s own constitution to allow vote dilution to render ballots meaningless.Meehan, in her own tribute to the canvas above the bench, said the constitution dictates courts cannot declare a map unconstitutional just because one party is disfavored.“Our founders risked their lives so that our representatives, who we elect, can represent the people, not a king, and with all due respect, not courts,” she said.Wisconsin is hardly the first state to deal with partisan gerrymandering. After the U.S. Supreme Court ruled in 2019 that such claims are “non-justiciable” political questions for federal courts, the nationwide debate turned to state judicial systems, where definitive answers are few and far between.“Doesn’t that show us something, the fact that these issues have been raised repeatedly and that courts have struggled with them repeatedly?” Justice Susan Crawford said. “Doesn’t that show there is a problem that is infecting our political landscape?”In a rebuke of the Legislature’s argument that existing maps were adopted within constitutional boundaries, Karofsky said the defense is asking the court to ignore real concerns from citizens.“It feels like what you’re asking us to do is to stick our head in the sand,” she said.Luke Berg, representing a group of voters supporting the existing maps, told the court the Wisconsin Constitution lacks an explicit guarantee of “free and fair elections” found in other states — warning that court intervention would amount to “legislating from the bench.”“I find your argument so disconnected from the text of the Constitution,” Taylor countered, calling it absurd that a legislature created through gerrymandering is the only body capable of fixing itself.Khanna urged the court to intervene for that very reason.“It is this court’s job to enforce those constitutional principles. The legislative process failed and then this court was forced to step in,” she said. “It behooves this court to act as a judiciary to protect voters and citizens from the lawlessness and the self-interest of its lawmakers.”Running parallel to the partisan gerrymandering and separation of powers lawsuit is the secondary challenge brought by Wisconsin Business Leaders for Democracy.The voter group’s suit targets the U.S. House map as an “anti-competitive gerrymander,” asserting the boundaries were drawn to insulate incumbents from facing meaningful competition.While some justices appeared receptive to the underlying premise, the bench largely pushed back on whether courts can define a workable standard for how much competition the constitution requires without judges arbitrarily choosing what makes a district “fair.”Neither case will change Wisconsin’s maps ahead of the midterms, but could affect the 2028 elections.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads