Billie Johnson v. Wisconsin Elections Commission , 2021 WI 87 ( 2021 )

2021 WI 87SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1450-OA
COMPLETE TITLE: Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
Intervenors-Petitioners,
v.
Wisconsin Elections Commission, Marge Bostelmann
in her official capacity as a member of the
Wisconsin Elections Commission, Julie Glancey in
her official capacity as a member of the
Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert Spindell,
Jr. in his official capacity as a member of the
Wisconsin Elections Commission and Mark Thomsen
in his official capacity as a member of the
Wisconsin Elections Commission,
Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.
ORIGINAL ACTION
OPINION FILED: November 30, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to all parts except ¶¶8, 69-72, and 81,
in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ.,
joined, and an opinion with respect to ¶¶8, 69–72, and 81, in
which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J.,
filed a concurring opinion. DALLET, J., filed a dissenting
opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin
Institute for Law & Liberty, Milwaukee.
For the intervenors-petitioners Black Leaders Organizing
for Communities, Voces de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin,
briefs, including amicus briefs, were filed by Douglas M.
Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe,
Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and
Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice),
Christopher Lamar (pro hac vice)and Campaign Legal Center,
Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign
Legal Center, Chicago.
For the intervenors-petitioners Congressmen Glenn Grothman,
Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald
there were briefs, including amicus briefs, filed by Misha
Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders
LLP, Chicago.
For the intervenors-petitioners Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz and Kathleen
Qualheim, there were briefs, including amicus briefs filed by
2
Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik
Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C.
Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina
A. Ford (pro hac vice), William K. Hancock (pro hac vice) and
Elias Law Group LLP, Washington, D.C.
For the intervenors-petitioners Citizens Mathematicians and
Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright,
Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael
P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman &
Clark LLP, Madison, and David J. Bradford (pro hac vice) and
Jenner & Block LLP, Chicago.
For the respondents Wisconsin Elections Commission, Marge
Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert
Spindell, Jr. and Mark Thomsen there were letter-briefs filed by
Steven C. Kilpatrick, assistant attorney general, Karla Z.
Keckhaver, assistant attorney general, Thomas C. Bellavia,
assistant attorney general.
For the intervenors-respondents the Wisconsin Legislature
there were briefs filed by Kevin M. St. John and Bell Giftos St.
John LLC, Madison; Jeffrey M. Harris (pro hac vice), Taylor A.R.
Meehan (pro hac vice), James P. McGlone and Consovoy McCarthy
PLLC, Arlington, Virginia and Adam K. Mortara and Lawfair LLC,
Chicago.
For the intervenor-respondent Governor Tony Evers there
were briefs filed by Joshua L. Kaul, attorney general, Anthony
D. Russomanno, assistant attorney general and Brian P. Keenan,
assistant attorney general.
For the intervenor-respondent Janet Bewley, State Senate
Democratic Minority Leader on behalf of the State Senate
3
Democratic Caucus there were briefs filed by Tamara B. Packard,
Aaron G. Dumas and Pines Bach LLP, Madison.
There was an amicus brief filed by Daniel R. Suhr,
Thiensville.
4
2021 WI 87NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1450-OA
STATE OF WISCONSIN : IN SUPREME COURT
Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha, FILED
Intervenors-Petitioners, NOV 30, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Wisconsin Elections Commission, Marge
Bostelmann in her official capacity as a member
of the Wisconsin Elections Commission, Julie
Glancey in her official capacity as a member of
the Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert
Spindell, Jr. in his official capacity as a
member of the Wisconsin Elections Commission,
and Mark Thomsen in his official capacity as a
member of the Wisconsin Elections Commission,
Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to all parts except ¶¶8, 69-72, and 81,
in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ.,
joined, and an opinion with respect to ¶¶8, 69–72, and 81, in
which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J.,
filed a concurring opinion. DALLET, J., filed a dissenting
opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
ORIGINAL ACTION. Rights declared.
1 REBECCA GRASSL BRADLEY, J. The Wisconsin
Constitution requires the legislature "to apportion and district
anew the members of the senate and assembly, according to the
number of inhabitants" after each census conducted under the
United States Constitution every ten years. Wis. Const. art.
IV, § 3. In fulfilling this responsibility, the legislature
draws maps reflecting the legislative districts across the
state. Every census invariably reveals population changes
within legislative districts, and the legislature must
thereafter satisfy the constitutional requirement that each
district contain approximately equal numbers of people by
developing new maps, which are subject to veto by the governor.
When this occurs, courts are often asked to step in and draw the
2
No. 2021AP1450-OA
maps.
¶2 This year, the legislature drew maps, the governor
vetoed them, and all parties agree the existing maps, enacted
into law in 2011, are now unconstitutional because shifts in
Wisconsin's population around the state have disturbed the
constitutionally guaranteed equality of the people's
representation in the state legislature and in the United States
House of Representatives. We have been asked to provide a
remedy for that inequality. Some parties to this action further
complain that the 2011 maps reflect a partisan gerrymander
favoring Republican Party candidates at the expense of Democrat
Party candidates, and ask us to redraw the maps to allocate
districts equally between these dominant parties, although no
one asks us to assign districts to any minor parties in
proportion to their share of Wisconsin's electoral vote.
¶3 The United States Supreme Court recently declared
there are no legal standards by which judges may decide whether
maps are politically "fair." Rucho v. Common Cause, 139
S. Ct. 2484, 2499-500 (2019). We agree. The Wisconsin
Constitution requires the legislature——a political body——to
establish the legislative districts in this state. Just as the
laws enacted by the legislature reflect policy choices, so will
the maps drawn by that political body. Nothing in the
constitution empowers this court to second-guess those policy
choices, and nothing in the constitution vests this court with
the power of the legislature to enact new maps. Our role in
redistricting remains a purely judicial one, which limits us to
3
No. 2021AP1450-OA
declaring what the law is and affording the parties a remedy for
its violation.
¶4 In this case, the maps drawn in 2011 were enacted by
the legislature and signed into law by the governor. Their
lawfulness was challenged in a federal court, which upheld them
(subject to a slight adjustment to Assembly Districts 8 and 9 in
order to comply with federal law). Baldus v. Members of Wis.
Gov't Accountability Bd., 862 F. Supp. 2d 860, 863 (E.D. Wis.
2012). In 2021, those maps no longer comply with the
constitutional requirement of an equal number of citizens in
each legislative district, due to shifts in population across
the state. This court will remedy that malapportionment, while
ensuring the maps satisfy all other constitutional and statutory
requirements. Claims of political unfairness in the maps
present political questions, not legal ones. Such claims have
no basis in the constitution or any other law and therefore must
be resolved through the political process and not by the
judiciary.
I. PROCEDURAL HISTORY AND HOLDING
¶5 Billie Johnson et al., four Wisconsin voters
("Wisconsin voters"), filed a petition for leave to commence an
original action in this court following the release of the
results of the 2020 census. Claiming to live in malapportioned
congressional and state legislative districts, they have asked
us to declare the existing maps——codified in Chapters 3 and 4 of
the Wisconsin Statutes——violate the "one person, one vote"
principle embodied in Article IV, Section 3 of the Wisconsin
4
No. 2021AP1450-OA
Constitution. They also have asked us to enjoin the
respondents, the Wisconsin Elections Commission (WEC) and its
members in their official capacity, from administering
congressional and state legislative elections until the
political branches adopt redistricting plans meeting the
requirements of Article IV. Because the legislature and the
governor reached an impasse, the Wisconsin voters request a
mandatory injunction,1 remedying what all parties agree are
unconstitutional plans by making only those changes necessary
for the maps to comport with the one person, one vote principle
while satisfying other constitutional and statutory mandates (a
"least-change" approach).
¶6 We granted the petition and permitted the legislature,
the governor, and several other parties to intervene. The
intervenors raised numerous issues of federal and state law. In
addition to the requirements of Article IV of the Wisconsin
Constitution, we have been asked to consider the following laws
in shaping any judicial remedy for the malapportioned
congressional and state legislative districts: (1) Article I,
Section 2 of the United States Constitution; (2) the Equal
Protection Clause of the Fourteenth Amendment of the United
1A "mandatory injunction" is "[a]n injunction that orders
an affirmative act or mandates a specified course of conduct."
Mandatory injunction, Black's Law Dictionary (11th ed. 2019).
When a court orders elections be conducted pursuant to modified
maps, it is effectively ordering a mandatory injunction. See
Reynolds v. Sims, 377 U.S. 533, 541 (1964).
5
No. 2021AP1450-OA
States Constitution; (3) the Voting Rights Act (VRA) of 1965;2
and (4) multiple provisions of the Wisconsin Constitution's
Declaration of Rights.
¶7 In anticipation of implementing a judicial remedy upon
the expected impasse the political branches have now reached, we
ordered the parties to address four issues:
(1) Under the relevant state and federal laws, what
factors should we consider in evaluating or
creating new maps?
(2) Is the partisan makeup of districts a valid
factor for us to consider in evaluating or
creating new maps?
(3) The petitioners ask us to modify existing maps
using a "least-change" approach. Should we do
so, and if not, what approach should we use?
(4) As we evaluate or create new maps, what
litigation process should we use to determine a
constitutionally sufficient map?[3]
We addressed the fourth question, at least preliminarily, in a
prior order.
¶8 We hold: (1) redistricting disputes may be judicially
resolved only to the extent necessary to remedy the violation of
a justiciable and cognizable right protected under the United
States Constitution, the VRA, or Article IV, Sections 3, 4, or 5
2One intervenor invoked the Fifteenth Amendment of the
United States Constitution, but did not develop an argument
distinguishable from the intervenor's VRA argument. See Hunter
et al. Br. at 20, 30. Accordingly, we do not address the
Fifteenth Amendment further.
3Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis.
Oct. 14, 2021) (per curiam) (ordering supplemental briefing).
6
No. 2021AP1450-OA
of the Wisconsin Constitution; (2) the partisan makeup of
districts does not implicate any justiciable or cognizable
right; and (3) this court will confine any judicial remedy to
making the minimum changes necessary in order to conform the
existing congressional and state legislative redistricting plans
to constitutional and statutory requirements. The existing maps
were passed by the legislature and signed by the governor. They
survived judicial review in federal court. Revisions are now
necessary only to remedy malapportionment produced by population
shifts made apparent by the decennial census. Because the
judiciary lacks the lawmaking power constitutionally conferred
on the legislature, we will limit our remedy to achieving
compliance with the law rather than imposing policy choices.
II. BACKGROUND
A. Legal Context
¶9 Historical context helps frame the Petitioners' claims
by illustrating the one person, one vote principle. The phrase
"one person, one vote" is a relatively modern expression, but
the concept of equal representation by population, as well as
its alternatives, were familiar at the founding. In eighteenth-
century England, over half of the members of the House of
Commons were elected from sparsely populated districts, later
branded the "rotten boroughs." Such a system of representation
undermined popular sovereignty. 5 T.H.B. Oldfield, The
Representative History of Great Britain and Ireland 219 (1816)
("The great Earl of Chatham called these boroughs the
7
No. 2021AP1450-OA
excrescences, the rotten part of the constitution, which must be
amputated to save the body from a mortification.").
¶10 In contrast, representation by population gives an
area with a larger population more influence in the legislative
body than an area with a smaller population. Our nation's
founders enshrined this principle in Article I, Section 2 of the
United States Constitution. Its third clause specifies that the
House of Representatives, unlike its predecessor, the House of
Commons, must be apportioned "among the several
States . . . according to their respective Numbers[.]" To
account for population shifts, it requires the federal
government to conduct a census every ten years and then
reapportion representatives. U.S. Const. art. I, § 2, cl. 3.
¶11 The Framers established a bicameral legislature. They
viewed per capita representation in the House of Representatives
as essential to the preservation of the people's liberty. The
Federalist No. 52, at 327 (James Madison) (Clinton Rossiter ed.,
1961). With respect to the Senate, the Framers enshrined the
concept of state sovereignty by allocating senators equally
among the states, regardless of population size. See U.S.
Const. art. I, § 3, cl. 1 ("The Senate of the United States
shall be composed of two Senators from each State.").
Accordingly, Senate seats are unaffected by redistricting.
¶12 Redistricting involves many political choices, and the
United States Constitution does not substantially constrain
state legislatures' discretion to decide how congressional
elections are conducted. See U.S. Const. art. I, § 4.
8
No. 2021AP1450-OA
Nevertheless, redistricting must comply with the one person, one
vote principle. Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964).
Even if a state does not gain or lose congressional seats,
redistricting is often a constitutional imperative after each
census due to geographic population shifts.
¶13 Wisconsin's founders also guaranteed equal
representation by population in our state constitution, which
places an affirmative duty on the legislature to implement
redistricting plans for the state legislature every ten years,
after the federal census, to account for population shifts.
Wis. Const. art. IV, § 3. No provision of the Wisconsin
Constitution requires the legislature to apportion or district
anew the state's congressional districts.4 Other federal and
state laws, discussed in more detail in the remainder of this
opinion, place further limitations on the legislature's
discretion when implementing redistricting plans.
B. The 2020 Census
¶14 The legislature enacted the current maps in 2011.
2011 Wis. Act 44; 2011 Wis. Act 43. Wisconsin's eight
congressional districts are mapped in Wis. Stat. §§ 3.11 to 3.18
(2019–20).5 See also Wis. Stat. § 3.001 ("This state is divided
into 8 congressional districts."). The state's 99 assembly
The Petitioners agree this court has never held any
4
provision of the Wisconsin Constitution imposes a one person,
one vote requirement on congressional districts. Omnibus Am.
Pet., ¶1 n.2.
All subsequent references to the Wisconsin Statutes are to
5
the 2019–20 version.
9
No. 2021AP1450-OA
districts are mapped in Wis. Stat. §§ 4.01 to 4.99, although a
federal district court made a slight adjustment to Assembly
Districts 8 and 9 after concluding the map violated the VRA.
Baldus, 862 F. Supp. 2d at 863. The state's 33 senate districts
are mapped in Wis. Stat. § 4.009. See also Wis. Stat. § 4.001
("This state is divided into 33 senate districts, each composed
of 3 assembly districts.").
¶15 In August 2021, the United States Census Bureau
delivered redistricting data to the State of Wisconsin based
upon the 2020 census. According to census data, the population
of Wisconsin grew from 5,686,986 to 5,893,718. In order to
realize equal legislative representation across districts, the
ideal congressional district should have 736,715 people, the
ideal assembly district should have 59,533, and the ideal senate
district should have 178,598. While the ideal size of each
district has changed, the number of districts remains the same.
Wisconsin has not lost or gained any congressional seats, and
the number of assembly and senate districts is set by Wisconsin
statutes. Wis. Stat. §§ 3.001, 4.001.
¶16 The Wisconsin voters and many intervenors live in
malapportioned districts, meaning they live in districts that
are overpopulated. For example, one Wisconsin voter, Johnson,
lives in Assembly District 78, which has a population of 66,838—
—7,305 more than ideal. If the districts are not reapportioned,
Johnson's vote will be diluted in the ensuing elections.
C. The Impasse
¶17 On November 11, 2021, the legislature passed
10
No. 2021AP1450-OA
redistricting plans. One week later, the governor vetoed the
legislation. The legislature has failed to override his veto.
¶18 At this point, the political branches have reached an
impasse, and our involvement in redistricting has become
appropriate. See Johnson v. WEC, No. 2021AP1450-OA, unpublished
order, at 2 (Wis. Sept. 22, 2021, amended Sept. 24) (per curiam)
(granting the petition for leave to commence an original action)
("[J]udicial relief becomes appropriate in reapportionment cases
only when a legislature fails to reapportion according to
constitutional requisites in a timely fashion after having had
an adequate opportunity to do so." (citation omitted)). The
parties present diametrically opposed views regarding the manner
in which this court should remedy what all parties agree is an
unconstitutional malapportionment of congressional and state
legislative districts.
¶19 Notwithstanding a history of judicial involvement in
redistricting, in our constitutional order it remains the
legislature's duty. State ex rel. Reynolds v. Zimmerman
(Zimmerman I), 22 Wis. 2d 544, 569–70, 126 N.W.2d 551 (1964).
Article IV, Section 3 of the Wisconsin Constitution commands,
"[a]t its first session after each enumeration made by the
authority of the United States, the legislature shall apportion
and district anew the members of the senate and assembly,
according to the number of inhabitants." "The Framers in their
wisdom entrusted this decennial exercise to the legislative
branch because the give-and-take of the legislative process,
involving as it does representatives elected by the people to
11
No. 2021AP1450-OA
make precisely these sorts of political and policy decisions, is
preferable to any other." Jensen v. Wis. Elections Bd., 2002 WI
13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537 (per curiam). The
political process failed this year, necessitating our
involvement. As should be self-evident from this court's lack
of legislative power, any remedy we may impose would be in
effect only "until such time as the legislature and governor
have enacted a valid legislative apportionment plan." State ex
rel. Reynolds v. Zimmerman (Zimmerman II), 23 Wis. 2d 606, 606,
128 N.W.2d 16 (1964) (per curiam).
III. OUR REVIEW
A. Exercising Our Original Jurisdiction
¶20 We review this case under our original jurisdiction
conferred by Article VII, Section 3(2) of the Wisconsin
Constitution, pursuant to which "[t]he supreme court . . . may
hear original actions and proceedings." Generally, we exercise
our original jurisdiction when the case concerns "the
sovereignty of the state, its franchises or prerogatives, or the
liberties of its people." Petition of Heil, 230 Wis. 428, 436,
284 N.W. 42 (1938) (per curiam) (quoting Att'y Gen. v. Chi. &
N.W. Ry., 35 Wis. 425, 518 (1874)). We granted the petition in
this case because "[t]here is no question . . . that this matter
warrants this court's original jurisdiction; any reapportionment
or redistricting case is, by definition publici juris,
implicating the sovereign rights of the people of this state."
Jensen, 249 Wis. 2d 706, ¶17 (citing Heil, 230 Wis. at 443).
12
No. 2021AP1450-OA
B. Principles of Interpretation
¶21 This case requires us to interpret the United States
Constitution and the Wisconsin Constitution. "Issues of
constitutional interpretation . . . are questions of law."
James v. Heinrich, 2021 WI 58, ¶15, __ Wis. 2d __, 960
N.W.2d 350 (citation omitted). We are bound by United States
Supreme Court precedent interpreting the United States
Constitution. State v. Jennings, 2002 WI 44, ¶18, 252
Wis. 2d 228, 647 N.W.2d 142 (citation omitted). As the state's
highest court, we are "the final arbiter of questions arising
under the Wisconsin Constitution[.]" Jensen, 249 Wis. 2d 706,
¶25.
¶22 Our goal when we interpret the Wisconsin Constitution
is "to give effect to the intent of the framers and of the
people who adopted it[.]" State v. Cole, 2003 WI 112, ¶10, 264
Wis. 2d 520, 665 N.W.2d 328 (quotation marks and citations
omitted). "[W]e focus on the language of the adopted text and
historical evidence [of its meaning] including 'the practices at
the time the constitution was adopted, debates over adoption of
a given provision, and early legislative interpretation as
evidenced by the first laws passed following the adoption.'"
State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953
N.W.2d 847 (quoting Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020
WI 67, ¶28 n.10, 393 Wis. 2d 38, 946 N.W.2d 35).
¶23 This case also requires interpretation of statutory
provisions governing redistricting. "Issues of statutory
13
No. 2021AP1450-OA
interpretation and application present questions of law."
James, __ Wis. 2d __, ¶15 (citation omitted).
IV. DISCUSSION
A. Relevant Considerations Under Federal and State Law
1. Federal Constitutional Requirements
¶24 Both federal and state laws regulate redistricting.
Article I, Section 2 of the United States Constitution requires
members of the House of Representatives to be chosen "by the
People of the several states." The United States Supreme Court
construed this section to mean "that as nearly as is practicable
one man's vote in a congressional election is to be worth as
much as another's." Wesberry, 376 U.S. at 7–8. Similarly, the
United States Supreme Court held, "the Equal Protection Clause
requires that a State make an honest and good faith effort to
construct districts, in both houses of its legislature, as
nearly of equal population as practicable." Reynolds v. Sims,
377 U.S. 533, 577 (1964); see also Maryland Comm. for Fair
Representation v. Tawes, 377 U.S. 656, 674–75 (1964) (holding
even state senate districts must comply with the one person, one
vote principle).
¶25 As a matter of federal constitutional law, the one
person, one vote principle applies more forcefully to
congressional districts than to state legislative districts.
The United States Supreme Court declared: "[There is] no excuse
for the failure to meet the objective of equal representation
for equal numbers of people in congressional districting other
than the practical impossibility of drawing equal districts with
14
No. 2021AP1450-OA
mathematical precision." Mahan v. Howell, 410 U.S. 315, 322
(1973). "[P]opulation alone" is the "sole criterion of
constitutionality in congressional redistricting under Art. I,
§ 2[.]" Id. For congressional districts, even less than a one
percent difference between the population of the largest and
smallest districts is constitutionally suspect. Karcher v.
Dagget, 462 U.S. 725, 727 (1983). "[A]bsolute population
equality" is "the paramount objective." Abrams v. Johnson, 521
U.S. 74, 98 (1997) (quoting Karcher, 462 U.S. at 732).
¶26 In contrast, the Equal Protection Clause, as applied
to state legislative districts, imposes a less exacting one
person, one vote principle. Mahan, 410 U.S. at 322. Consistent
with principles of federalism, states have limited flexibility
to pursue other legitimate policy objectives, such as
"maintain[ing] the integrity of various political subdivisions"
and "provid[ing] for compact districts of contiguous territory."
Brown v. Thomson, 462 U.S. 835, 842 (1983) (quoting Reynolds,
377 U.S. at 578) (modifications in the original).
2. Federal Statutes
¶27 Federal statutes also govern redistricting. 2 U.S.C.
§ 2c prohibits multimember congressional districts. See also
Wis. Stat. § 3.001 (same). The VRA prohibits the denial or
abridgment of the right to vote on account of race, color, or
membership in a language minority group, which implicates
redistricting practices. It provides, in relevant part:
(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed
15
No. 2021AP1450-OA
or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the
right of any citizen of the United States to vote on
account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2)[, which
protects language minority groups,] of this title, as
provided in subsection (b).
(b) A violation of subsection (a) is established if,
based on the totality of circumstances, it is shown
that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) in that its
members have less opportunity than other members of
the electorate to participate in the political process
and to elect representatives of their choice. The
extent to which members of a protected class have been
elected to office in the State or political
subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a protected
class elected in numbers equal to their proportion in
the population.
52 U.S.C. § 10301. The "dispersal" of a minority group among
several districts can render the group an "ineffective" voting
bloc. Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (quoting
Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986)). Such a
result may violate the VRA, even if the map drawers lacked
discriminatory intent. Thornburg, 478 U.S. at 71. All parties
in this case agree we should ensure any remedy we impose
satisfies the requirements of the VRA.
3. Wisconsin Constitutional Requirements
¶28 Via the Wisconsin Constitution, the people of
Wisconsin have imposed additional requirements on redistricting.
Article IV, Section 3 of the Wisconsin Constitution provides,
"[a]t its first session after each enumeration made by the
16
No. 2021AP1450-OA
authority of the United States," i.e., the census, "the
legislature shall apportion and district anew the members of the
senate and assembly, according to the number of inhabitants."
(Emphasis added.) As we stated in our seminal decision in State
ex rel. Attorney General v. Cunningham:
It is proper to say that perfect exactness in the
apportionment, according to the number of inhabitants,
is neither required nor possible. But there should be
as close an approximation to exactness as possible,
and this is the utmost limit for the exercise of
legislative discretion.
81 Wis. 440, 484, 51 N.W. 724 (1892). Our decision in
Cunningham comports with the provision's original meaning.
¶29 The one person, one vote principle had been
"germinating" since the nation's founding——although the phrase
is a twentieth-century invention. James A. Gazell, One Man, One
Vote: Its Long Germination, 23 W. Pol. Q. 445, 462 (1970). As
a delegate to the federal constitutional convention, founding
father James Wilson was an outspoken advocate for equal
representation by population: "[E]qual numbers of people ought
to have an equal no. of representatives. . . . Representatives
of different districts ought clearly to hold the same proportion
to each other, as their respective constituents hold to each
other." 1 The Records of the Federal Convention of 1787 179–80
(Max Farrand ed., 1911) (statement of James Wilson, Penn.); see
also James Wilson, Of the Constitutions of the United States and
of Pennsylvania——Of the Legislative Department (1790–91), in 2
The Works of the Honourable James Wilson, L.L.D., 117, 129
(1804) ("Elections are equal, when a given number of citizens,
17
No. 2021AP1450-OA
in one part of the state, choose as many representatives, as are
chosen by the same number of citizens, in any other part of the
state.").
¶30 In choosing per capita representation for the House of
Representatives, the founders rejected England's infamous rotten
boroughs:
The number of inhabitants in the two kingdoms of
England and Scotland cannot be stated at less than
eight million. The representatives of these eight
millions in the House of Commons amount to five
hundred and fifty-eight. Of this number, one ninth
are elected by three hundred and sixty-four persons,
and one half, by five thousand seven hundred and
twenty-three persons. It cannot be supposed that the
half thus elected . . . can add any thing either to
the security of the people against the government, or
to the knowledge of their circumstances and interests
in the legislative councils.
The Federalist No. 56, at 349 (James Madison). In contrast, the
equal proportion of representation prescribed by the
Constitution "will render the [House of Representatives] both a
safe and competent guardian of the interests which will be
confined to it." Id. at 350.
¶31 The Northwest Ordinance of 1787 further evidences the
founders' regard for equal representation by population. It
states, in relevant part, "[t]he inhabitants of the said
territory shall always be entitled to . . . a proportionate
representation of the people in the legislature[.]" Northwest
Ordinance § 14, art. 2 (1787). Its enactment guaranteed the
equality of representation for newly admitted states.
¶32 In the first redistricting case this court decided, a
18
No. 2021AP1450-OA
concurring justice referenced the Northwest Ordinance.
Cunningham, 81 Wis. at 512 (Pinney, J., concurring). He
explained the phrase "according to the number of inhabitants" in
Article IV, Section 3 of the Wisconsin Constitution was
"intended to secure in the future" a pre-existing right of the
people, specifically, "'proportionate representation,' and
apportionment 'as nearly equal as practicable among the
several counties for the election of members' of the
legislature[.]" Id.
¶33 Early legislative redistricting practices confirm this
original meaning. Id. In 1851, the state's first governor,
Nelson Dewey, vetoed the legislature's first redistricting plan,
explaining in his veto message:
I object to the provisions of this bill, because the
apportionment in many cases, is not made upon the
constitutional basis. A comparison of some of the
senatorial districts with the ratio and with each
other, will clearly present its unconstitutional
features.
1851 Wis. Assemb. J. 810. Consistent with its federal
counterpart, Article IV, Section 3 of the Wisconsin Constitution
gives the legislature the duty to enact a redistricting plan
after each federal census to prevent one person's vote——in an
underpopulated district——from having more weight than another's
in an overly populated district. Zimmerman I, 22 Wis. 2d at
564–69.
¶34 In addition to proportional representation by
population, the Wisconsin Constitution establishes principles of
"secondary importance" that circumscribe legislative discretion
19
No. 2021AP1450-OA
when redistricting. Wis. State AFL-CIO v. Elections Bd., 543
F. Supp. 630, 635 (E.D. Wis. 1982). In this case, the parties
raise only malapportionment claims; no one claims the current
maps violate one of these secondary principles. Nevertheless,
in remedying the alleged harm, we must be mindful of these
secondary principles so as not to inadvertently choose a remedy
that solves one constitutional harm while creating another.
¶35 Article IV, Section 4 of the Wisconsin Constitution
directs assembly districts "be bounded by county, precinct, town
or ward lines[.]" Applying the one person, one vote principle
may make bounding districts by county lines nearly impossible.
See Wis. State AFL-CIO, F. Supp. at 635 (stating the maintenance
of county lines is "incompatib[le] with population equality");
see also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("[T]he Wisconsin
Constitution no longer may be considered as prohibiting assembly
districts from crossing county lines, in view of the emphasis
the United States Supreme Court has placed upon population
equality in electoral districts."). Nonetheless, the smaller
the political subdivision, the easier it may be to preserve its
boundaries. See Baumgart v. Wendelberger, No. 01-C-0121, 2002
WL 34127471, at *3 (E.D. Wis. May 30, 2002) ("Although avoiding
the division of counties is no longer an inviolable principle,
respect for the prerogatives of the Wisconsin Constitution
dictate that wards and municipalities be kept whole where
possible.").
¶36 Article IV, Section 4 of the Wisconsin Constitution
further commands assembly districts be "contiguous," which
20
No. 2021AP1450-OA
generally means a district "cannot be made up of two or more
pieces of detached territory." State ex rel. Lamb v.
Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892). If annexation
by municipalities creates a municipal "island," however, the
district containing detached portions of the municipality is
legally contiguous even if the area around the island is part of
a different district. Prosser v. Elections Bd., 793
F. Supp. 859, 866 (W.D. Wis. 1992).
¶37 Article IV, Section 4 of the Wisconsin Constitution
also requires assembly districts to be "in as compact form as
practicable[.]" We have never adopted a particular measure of
compactness, but the constitutional text furnishes some latitude
in meeting this requirement. Additionally, Article IV,
Section 4 prohibits multi-member assembly districts; therefore,
each district may have only a single representative. Finally,
Article IV, Section 5 states no assembly district can be
"divided in the formation of a senate district," and senate
districts must consist of "convenient contiguous territory" with
each senate district served by only a single senator.
¶38 In summary, the Wisconsin Constitution "commits the
state to the principle of per capita equality of representation
subject only to some geographical limitations in the execution
and administration of this principle." Zimmerman I, 22
Wis. 2d at 556. In determining a judicial remedy for
malapportionment, we will ensure preservation of these
justiciable and cognizable rights explicitly protected under the
United States Constitution, the VRA, or Article IV, Sections 3,
21
No. 2021AP1450-OA
4, or 5 of the Wisconsin Constitution.
B. This Court Will Not Consider the Partisan Makeup of
Districts
¶39 The simplicity of the one person, one vote principle,
its textual basis in our constitution, and its long history
stand in sharp contrast with claims that courts should judge
maps for partisan fairness, a concept untethered to legal
rights. The parties have failed to identify any judicially
manageable standards by which we could determine the fairness of
the partisan makeup of districts, nor have they identified a
right under the Wisconsin Constitution to a particular partisan
configuration. Because partisan fairness presents a purely
political question, we will not consider it.
1. Partisan Fairness Is a Political Question
¶40 "Sometimes, . . . 'the law is that the judicial
department has no business entertaining [a] claim of
unlawfulness——because the question is entrusted to one of the
political branches or involves no judicially enforceable
rights.'" Rucho, 139 S. Ct. at 2494 (quoting Vieth v.
Jubelirer, 541 U.S. 267, 277 (2004) (plurality)). For this
reason, "political questions" are non-justiciable, that is,
"outside the courts' competence[.]" Id. (quoting Baker v. Carr,
369 U.S. 186, 217 (1962)). Whether a map is "fair" to the two
major political parties is quintessentially a political question
because: (1) there are no "judicially discoverable and
manageable standards" by which to judge partisan fairness; and
(2) the Wisconsin Constitution explicitly assigns the task of
22
No. 2021AP1450-OA
redistricting to the legislature——a political body. See Baker,
369 U.S. at 217.
¶41 The lack of standards by which to judge partisan
fairness is obvious from even a cursory review of partisan
gerrymandering jurisprudence. Partisan "gerrymandering" is
"[t]he practice of dividing a geographical area into electoral
districts, often of highly irregular shape, to give one
political party an unfair advantage by diluting the opposition's
voting strength." Gerrymandering, Black's Law Dictionary (11th
ed. 2019). The United States Supreme Court declared partisan
gerrymandering claims to be non-justiciable under the United
States Constitution, and the very existence of such claims is
doubtful. Rucho, 139 S. Ct. 2484; Vieth, 541 U.S. 267. See
generally Daniel H. Lowenstein, Vieth's Gap: Has the Supreme
Court Gone from Bad to Worse on Partisan Gerrymandering, 14
Cornell J.L. & Pub. Pol'y 367 (2005). Writing for the Court in
Rucho v. Common Cause, Chief Justice Roberts noted at the outset
the Court has never struck down a map as an unconstitutional
partisan gerrymander and acknowledged that several decades of
searching for a judicially manageable standard by which to judge
maps' partisan fairness had been in vain. 139 S. Ct. at 2491.
¶42 "Partisan gerrymandering claims invariably sound in a
desire for 'proportional representation.'" Id. at 2499.
Advocated by several parties in this case, proportional
representation is the political theory that a party should win a
percentage of seats, on a statewide basis, that is roughly equal
to the percentage of votes it receives. See Proportional
23
No. 2021AP1450-OA
representation, Black's Law Dictionary. This theory has no
grounding in American or Wisconsin law or history, and it
directly conflicts with traditional redistricting criteria.
Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O'Connor, J.,
concurring in judgment), abrogated on other grounds by Rucho,
139 S. Ct. 2484. "It hardly follows from the principle that
each person must have an equal say in the election of
representatives that a person is entitled to have his political
party achieve representation in some way commensurate to its
share of statewide support." Rucho, 139 S. Ct. at 2501.
¶43 To begin with, measuring a state's partisan divide is
difficult. Wisconsin does not have party registration, so
voters never formally disclose their party membership at any
point in the electoral process. Democratic Party v. Wisconsin,
450 U.S. 107, 110–11 (1981). According to one recent survey,
more than one-third of Wisconsinites self-identify as
independents, affiliating themselves with no party at all.
Marquette Law School Poll (Aug. 3–8, 2021),
https://law.marquette.edu/poll/wp-
content/uploads/2021/10/MLSP66Toplines.html.
¶44 Even if a state's partisan divide could be accurately
ascertained, what constitutes a "fair" map poses an entirely
subjective question with no governing standards grounded in law.
"Deciding among . . . different visions of fairness . . . poses
basic questions that are political, not legal. There are no
legal standards discernable in the Constitution for making such
24
No. 2021AP1450-OA
judgements[.]" Rucho, 139 S. Ct. at 2500. Nor does the
Wisconsin Constitution provide any such standards.
¶45 The people have never consented to the Wisconsin
judiciary deciding what constitutes a "fair" partisan divide;
seizing such power would encroach on the constitutional
prerogatives of the political branches. Vieth, 541 U.S. at 291.
In contrast to legislative or executive action, "'judicial
action must be governed by standard, by rule,' and must be
'principled, rational, and based upon reasoned distinctions'
found in the Constitution or laws." Rucho, 139 S. Ct. at 2507(quoting Vieth, 541 U.S. at 278–79). Nothing in the Wisconsin
Constitution authorizes this court to recast itself as a
redistricting commission in order "to make [its] own political
judgment about how much representation particular political
parties deserve——based on the votes of their supporters——and to
rearrange the challenged districts to achieve that end." Id. at
2499.
¶ 46 Nothing in the United States Constitution or the
Wisconsin Constitution commands "that farmers or urban dwellers,
Christian fundamentalists or Jews, Republicans or Democrats,
must be accorded political strength proportionate to their
numbers[.]" Vieth, 541 U.S. at 288; see also id. at 308(Kennedy, J., concurring in judgment) (stating there is "no
authority" for the notion that a Democrat majority of voters in
Pennsylvania should be able to elect a Democrat majority of
Pennsylvania's congressional delegation); Nathaniel Persily, In
Defense of Foxes Guarding Henhouses: The Case for Judicial
25
No. 2021AP1450-OA
Acquiescence to Incumbent-Protecting Gerrymanders, 116 Harv. L.
Rev. 649, 672–73 (2002) ("So long as the state's majority has
its advocate in the executive, is it necessarily true that the
state's majority should control the legislature as well?").
¶47 Not only is a right to proportional party
representation nonexistent in either constitution but the theory
conflicts with principles that are constitutionally protected.
The theory is irreconcilable with the requirement that
congressional and state legislative districts be single-member
districts. See 2 U.S.C. § 2c; Wis. Const. art. IV, §§ 4–5. For
state legislative districts, the theory is particularly ill
suited because Article IV of the Wisconsin Constitution
specifies requirements that favor the preservation of
communities of interest, irrespective of individual partisan
alignment. See Wis. Const. art. IV, §§ 4–5 (explaining state
assembly districts must be compact, contiguous, and respect
political boundary lines and state senate districts must be
contiguous and not divide assembly districts in their
formation); Prosser, 793 F. Supp. at 863 (stating there is a
"correlation between geographical propinquity and community of
interest, and therefore compactness and contiguity are desirable
features in a redistricting plan").
¶48 A proportional party representation requirement would
effectively force the two dominant parties to create a
"bipartisan" gerrymander to ensure the "right" outcome——
obliterating many traditional redistricting criteria mandated by
federal law and Article IV of the Wisconsin Constitution. See 2
26
No. 2021AP1450-OA
U.S.C. § 2c; Wis. Const. art. IV, §§ 4–5. Democrats tend to
live close together in urban areas, whereas Republicans tend to
disperse into suburban and rural areas. See Baumgart, 2002 WL
34127471, at *6 ("Wisconsin Democrats tend to be found in high
concentrations in certain areas[.]"). As a result, drawing
contiguous and compact single-member districts of approximately
equal population often leads to grouping large numbers of
Democrats in a few districts and dispersing rural Republicans
among several. These requirements tend to preserve communities
of interest, but the resulting districts may not be politically
competitive——at least if the competition is defined as an inter-
rather than intra-party contest. Davis, 478 U.S. at 159; see
also Larry Alexander & Saikrishna B. Prakash, Tempest in an
Empty Teapot: Why the Constitution Does Not Regulate
Gerrymandering, 50 Wm. & Mary L. Rev. 1, 42 n.117 (2008)
(explaining "competitive primaries" often produce
"responsiveness, accountability, and 'ritual cleansing'").
Democrats in urban cities may win by large margins, thereby
skewing the proportion of Democrat votes statewide relative to
the proportion of Democrat victories.
¶49 Perhaps the easiest way to see the flaw in
proportional party representation is to consider third party
candidates. Constitutional law does not privilege the "major"
parties; if Democrats and Republicans are entitled to
proportional representation, so are numerous minor parties. If
Libertarian Party candidates receive approximately five percent
of the statewide vote, they will likely lose every election; no
27
No. 2021AP1450-OA
one deems this result unconstitutional. The populace that voted
for Libertarians is scattered throughout the state, thereby
depriving them of any real voting power as a bloc, regardless of
how lines are drawn. See Robert Redwine, Comment,
Constitutional Law: Racial and Political Gerrymandering——
Different Problems Require Different Solutions, 51 Okla. L. Rev.
373, 396–97 (1998). Only meandering lines, which could be
considered a gerrymander in their own right, could give the
Libertarians (or any other minor party) a chance. Proportional
partisan representation would require assigning each third party
a "fair" share of representatives (while denying independents
any allocation whatsoever), but doing so would in turn require
ignoring redistricting principles explicitly codified in the
Wisconsin Constitution.
¶50 To sacrifice textually grounded requirements designed
to safeguard communities of interest in favor of proportional
representation between dominant political parties mandated
nowhere in the constitution would ignore not only the text but
its history. "The roots of Anglo-American political
representation lie in the representation of communities[.]"
James A. Gardner, One Person, One Vote and the Possibility of
Political Community, 80 N.C. L. Rev. 1237, 1243 (2002). "The
idea that the political interests of communal groups of
individuals correlated strongly with territory served, for
example, as an axiom in Madison's famous defense of the large
republic in The Federalist No. 10." James A. Gardner, Foreword,
Representation Without Party: Lessons from State Constitutional
28
No. 2021AP1450-OA
Attempts to Control Gerrymandering, 37 Rutgers L.J. 881, 935
(2006). Proportional party representation is simply
incompatible with the constitutionally prescribed form of
representative government chosen by the people of Wisconsin.
¶51 The Wisconsin Constitution's "textually demonstrable
constitutional commitment" to confer the duty of redistricting
on the state legislature evidences the non-justiciability of
partisan gerrymandering claims. Baker, 369 U.S. at 217.
Article IV, Section 3 of the Wisconsin Constitution
unequivocally assigns the task of redistricting to the
legislature, leaving no basis for claiming that partisanship in
redistricting raises constitutional concerns. "[P]artisan
intent is not illegal, but is simply the consequence of
assigning the task of redistricting to the political branches of
government." Whitford v. Gill, 218 F. Supp. 3d 837, 939 (W.D.
Wis. 2016) (Griesbach, J., dissenting), rev'd sub nom., Gill v.
Whitford, 138 S. Ct. 1916 (2018). "[P]oliticians pass many
statutes with an eye toward securing their elections and giving
their party a leg up on the competition. Gerrymandered
districts are no different in kind." Alexander & Prakash,
Tempest in an Empty Teapot, at 7.
¶52 The Wisconsin Constitution, like its federal
counterpart, "clearly contemplates districting by political
entities, . . . and unsurprisingly . . . [districting] turns out
to be root-and-branch a matter of politics." Vieth, 541 U.S. at
285 (citations omitted). For the same reasons cited by the
United States Supreme Court, we "have no license to reallocate
29
No. 2021AP1450-OA
political power between the two major political parties,"
because "no legal standards [exist] to limit and direct [our]
decisions." Rucho, 139 S. Ct. at 2507. The Wisconsin
Constitution contains "no plausible grant of authority" to the
judiciary to determine whether maps are fair to the major
parties and the task of redistricting is expressly assigned to
the legislature. Id. Adjudicating claims of "too much"
partisanship in the redistricting process would recast this
court as a policymaking body rather than a law-declaring one.
2. The Wisconsin Constitution Says Nothing About Partisan
Gerrymandering
¶53 The United States Supreme Court has been unable to
identify "what it is in the Constitution that . . . might be
offended by partisan gerrymandering." Lowenstein, Vieth's Gap,
at 369. We are told if we look hard enough, we will find a
right to partisan fairness in Article I, Sections 1, 3, 4, or 22
of the Wisconsin Constitution. Having searched in earnest, we
conclude the right does not exist. As the United States Supreme
Court explained when it considered a partisan gerrymandering
challenge to Wisconsin's current state legislative maps, courts
are "not responsible for vindicating generalized partisan
preferences." Gill, 138 S. Ct. at 1933.
¶54 The first section in the Wisconsin Constitution's
Declaration of Rights states: "All people are born equally free
and independent, and have certain inherent rights; among these
are life, liberty and the pursuit of happiness; to secure these
rights, governments are instituted, deriving their just powers
30
No. 2021AP1450-OA
from the consent of the governed." Wis. Const. art. I, § 1.
This section enshrines a first principle of our nation's
founding: "[T]he only source of political power is in the
people; . . . they are sovereign, that is to say, the aggregate
community, the accumulated will of the people, is sovereign[.]"
Cunningham, 81 Wis. at 497.
¶55 Article I, Section 1 of the Wisconsin Constitution has
nothing to say about partisan gerrymanders. "The idea that
partisan gerrymandering undermines popular sovereignty because
the legislature rather than the people selects representatives
is rhetorical hyperbole masked as constitutional argument. When
legislatures draw districts, they in no way select who will
occupy the resulting seats." Alexander & Prakash, Tempest in an
Empty Teapot, at 43. Voters retain their freedom to choose
among candidates irrespective of how district lines are drawn.
Id.
¶56 Contriving a partisan gerrymandering claim from the
text of the Wisconsin Constitution (aside from overstepping our
judicial role) would require us to indulge a fiction——that
partisan affiliation is permanent and invariably dictates how a
voter casts every ballot. Of course, political affiliation "is
not an immutable characteristic, but may shift from one election
to the next[.]" Vieth, 541 U.S. at 287. "[V]oters can——and
often do——move from one party to the other[.]" Davis, 478 U.S.
at 156. Not only is political affiliation changeable, but self-
identified partisans can——and do——vote for a different party's
candidates.
31
No. 2021AP1450-OA
¶57 If the constitution were misinterpreted to make
changeable characteristics relevant factors in evaluating
redistricting plans, "we fail to see why it demands only a
partisan political mix." Alexander & Prakash, Tempest in an
Empty Teapot, at 21. "[W]hy would a Constitution that never
mentions political parties, much less Republicans[] [and]
Democrats . . . grant special status to partisan identity?" Id.If we opened the floodgates, what would stop claims seeking
proportional representation for "gun owners" or "vegetarians"?
Id. Nothing distinguishes partisan affiliation from hundreds——
perhaps thousands——of other variables. Id. at 22.
Dispositively, none of these factors are mentioned in the text
of the constitution.
¶58 Nothing supports the notion that Article I, Section 1
of the Wisconsin Constitution was originally understood——or has
ever been interpreted——to regulate partisanship in
redistricting. After discussing the concept of popular
sovereignty in Cunningham, Justice Pinney declared: "The rules
of apportionment and the restrictions upon the power of the
legislature are very simple and brief." 81 Wis. at 511. He
then proceeded to discuss only those requirements found in
Article IV of the Wisconsin Constitution. Id. Regulation of
partisanship is not among them.
¶59 Likewise, Article I, Sections 3 and 4 of the Wisconsin
Constitution do not inform redistricting challenges. These
sections state:
32
No. 2021AP1450-OA
Section 3. Every person may freely speak, write and
publish his sentiments on all subjects, being
responsible for the abuse of that right, and no laws
shall be passed to restrain or abridge the liberty of
speech or of the press. In all criminal prosecutions
or indictments for libel, the truth may be given in
evidence, and if it shall appear to the jury that the
matter charged as libelous be true, and was published
with good motives and for justifiable ends, the party
shall be acquitted; and the jury shall have the right
to determine the law and the fact.
Section 4. The right of the people peaceably to
assemble, to consult for the common good, and to
petition the government, or any department thereof,
shall never be abridged.
Collectively, these sections protect four related freedoms:
(1) freedom of speech; (2) freedom of the press; (3) freedom of
assembly; and (4) freedom of petition. The First Amendment of
the United States Constitution also secures these rights.
¶60 Nothing about the shape of a district infringes
anyone's ability to speak, publish, assemble, or petition. Even
after the most severe partisan gerrymanders, citizens remain
free to "run for office, express their political views, endorse
and campaign for their favorite candidates, vote, and otherwise
influence the political process through their expression."
Radogno v. Ill. State Bd. of Elections, No. 11-CV-04884, 2011 WL
5025251 at *7 (N.D. Ill. Oct. 21, 2011) (quoted source omitted).
¶61 Parties urging us to consider partisan fairness appear
to desire districts drawn in a manner ensuring their political
speech will find a receptive audience; however, nothing in
either constitution gives rise to such a claim. "The first
amendment's protection of the freedom of association and of the
rights to run for office, have one's name on the ballot, and
33
No. 2021AP1450-OA
present one's views to the electorate do not also include
entitlement to success in those endeavors. The carefully
guarded right to expression does not carry with it any right to
be listened to, believed or supported in one's views."
Washington v. Finlay, 664 F.2d 913, 927–28 (4th Cir. 1981).
Associational rights guarantee the freedom to participate in the
political process; they do not guarantee a favorable outcome.
See Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Cal. 1988). As
the United States Supreme Court has explained, "[n]one of our
cases establishes an individual's right to have a 'fair shot' at
winning[.]" New York State Bd. of Elections V. Torres, 552
U.S. 196, 205 (2008). Nor does the constitution.
¶62 Article I, Section 22 of the Wisconsin Constitution
provides: "[t]he blessings of a free government can only be
maintained by a firm adherence to justice, moderation,
temperance, frugality and virtue, and by frequent recurrence to
fundamental principles." Wis. Const. art. I, § 22. To
fabricate a legal standard of partisan "fairness"——§ 22 does not
supply one——would represent anything but "moderation" or
"temperance[.]" Whatever operative effect Section 22 may have,
it cannot constitute an open invitation to the judiciary to
rewrite duly enacted law by imposing our subjective policy
preferences in the name of "justice[.]"
¶63 Unlike the Declaration of Rights, Article IV,
Sections 3, 4, and 5 of the Wisconsin Constitution express a
series of discrete requirements governing redistricting. These
are the only Wisconsin constitutional limits we have ever
34
No. 2021AP1450-OA
recognized on the legislature's discretion to redistrict. The
last time we implemented a judicial remedy for an
unconstitutional redistricting plan, we acknowledged Article IV
as the exclusive repository of state constitutional limits on
redistricting:
[T]he Wisconsin constitution itself provides a
standard of reapportionment 'meet [sic] for judicial
judgment.' The legislature shall reapportion
'according to the number of inhabitants' subject to
some geographical and political unit limitations in
execution of this standard. We need not descend into
the 'thicket' to fashion standards whole-cloth.
Zimmerman I, 22 Wis. 2d at 562 (emphasis added) (quoted sources
omitted). In other words, the standards under the Wisconsin
Constitution that govern redistricting are delineated in Article
IV. To construe Article I, Sections 1, 3, 4, or 22 as a
reservoir of additional requirements would violate axiomatic
principles of interpretation, see James, __ Wis. 2d __, ¶¶21–22,
while plunging this court into the political thicket lurking
beyond its constitutional boundaries. Zimmerman I, 22
Wis. 2d at 562.
C. We Will Utilize a "Least-Change" Approach
¶64 The constitutional confines of our judicial authority
must guide our exercise of power in affording the Petitioners a
remedy for their claims. The existing maps were adopted by the
legislature, signed by the governor, and survived judicial
review by the federal courts. See Gill, 138 S. Ct. 1916;
Baldus, 862 F. Supp. 2d 860. Treading further than necessary to
remedy their current legal deficiencies, as many parties urge us
35
No. 2021AP1450-OA
to do, would intrude upon the constitutional prerogatives of the
political branches and unsettle the constitutional allocation of
power.
¶65 For the paramount purpose of preserving liberty, the
Wisconsin Constitution embodies a structural separation of
powers among the three branches of government, restraining this
court from exercising anything but judicial power. "No
political truth is certainly of greater intrinsic value, or is
stamped with the authority of more enlightened patrons of
liberty" than the separation of powers. The Federalist No. 47,
at 301 (James Madison); see also The Federalist No. 51, at 321–
22 (James Madison) ("[The] separate and distinct exercise of the
different powers of government . . . is admitted on all hands to
be essential to the preservation of liberty."). "While the
separation of powers may prevent us from righting every wrong,
it does so in order to ensure that we do not lose liberty."
Morrison v. Olson, 487 U.S. 654, 710 (1988) (Scalia, J.,
dissenting).
¶66 This court's precedent declares that the legislature's
enactment of a redistricting plan is subject to presentment and
a gubernatorial veto. Zimmerman I, 22 Wis. 2d at 559. If the
legislature and the governor reach an impasse, the judiciary has
a duty to remedy the constitutional defects in the existing
plan. See Zimmerman II, 23 Wis. 2d 606 (implementing a
judicially-created plan). But a duty to remedy a constitutional
deficiency is not a prerogative to make law. See Cunningham, 81
Wis. at 482–83 (majority opinion) (describing the lawmaking
36
No. 2021AP1450-OA
prerogative).
¶67 While courts sometimes declare statutes
unconstitutional and may enjoin their enforcement, typically the
judiciary does not order government officials to enforce a
modified, constitutional version of the statute. See generally
Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 496, 154
N.W. 998 (1915) (citing 1 James High, A Treatise on the Law of
Injunctions § 2 (edition and year not specified in the
citation)) ("While the power to issue mandatory injunctions is
vested in courts of equity, it is a power which is sparingly
used."). Courts issue mandatory injunctions, an equitable
remedy, "with extreme caution" and "only in cases of equitable
cognizance[.]" 1 James High, A Treatise on the Law of
Injunctions § 2 (4th ed. 1905) (emphasis added).
¶68 Redistricting litigation presents a unique problem.
Unlike the constitutional monarchies of old England, which could
exist in the absence of Parliament, our republican form of
government presupposes the existence of a legislature. U.S.
Const. art. IV, § 4 ("The United States shall guarantee to every
State in this Union a Republican Form of Government[.]"). If
the legislature and the governor reach an impasse, merely
declaring the maps unconstitutional and enjoining elections
pursuant to them creates an intractable impediment to conducting
elections, imperiling our republican form of government.
Judicial action becomes appropriate to prevent a constitutional
crisis. But we must "limit the solution to the problem." See
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,
37
No. 2021AP1450-OA
328 (2006).
¶69 Court involvement in redistricting, as in any other
case, is judicial in nature. In Jensen v. Wisconsin Elections
Board, we stated: "Courts called upon to perform redistricting
are, of course, judicially legislating, that is, writing the law
rather than interpreting it, which is not their usual——and
usually not their proper——role." 249 Wis. 2d 706, ¶10. With
few exceptions confined to the judicial sphere——none of which
are relevant to this case——we have no power to "judicially
legislate."6 "Safeguarding constitutional limitations on the
exercise of legislative power is particularly important in light
of its awesome sweep." Fabick v. Evers, 2021 WI 28, ¶55, 396
Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl Bradley, J.,
concurring). The people vested the power in the legislature——
not the executive and certainly not the judiciary. Id."Because the people gave the legislature its power to make laws,
the legislature alone must exercise it." Id., ¶56.
¶70 "From the very nature of things, the judicial power
cannot legislate nor supervise the making of laws." League of
Women Voters of Wis. v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511,
929 N.W.2d 209 (quoting State ex rel. Rose v. Sup. Ct. of
Milwaukee Cnty., 105 Wis. 651, 675, 81 N.W. 1046 (1900)). By
design, the judicial power has long been kept distinct from the
6We have limited legislative power to regulate certain
subject matter related to the court system. See, e.g., Rao v.
WMA Sec., Inc., 2008 WI 73, ¶35, 310 Wis. 2d 623, 752
N.W.2d 220.
38
No. 2021AP1450-OA
legislative power. See Neil Gorsuch, A Republic, If You Can
Keep It 52–53 (Forum Trade Paperback ed., 2020) (2019) ("To the
founders, the legislative and judicial powers were distinct by
nature and their separation was among the most important
liberty-protecting devices of the constitutional design, an
independent right of the people essential to the preservation of
all other rights later enumerated in the Bill of Rights.").
¶71 We have the power to provide a judicial remedy but not
to legislate. We have no authority to act as a "super-
legislature" by inserting ourselves into the actual lawmaking
function. Flynn v. Dep't of Admin., 216 Wis. 2d 521, 528–29,
576 N.W.2d 245 (1998) ("If we are to maintain the public's
confidence in the integrity and independence of the judiciary,
we must exercise that power with great restraint, always resting
on constitutional principles, not judicial will. We may differ
with the legislature's choices, as we did and do here, but must
never rest our decision on that basis lest we become no more
than a super-legislature."). Courts "lack the authority to make
the political decisions that the Legislature and the Governor
can make through their enactment of redistricting
legislation[.]" Hippert v. Ritchie, 813 N.W.2d 374, 380 (Minn.
Spec. Redistricting Panel 2012) (citing LaComb v. Growe, 541
F. Supp. 145, 151 (D. Minn. 1982), aff'd sub nom. Orwoll v.
LaComb, 456 U.S. 966). Stated otherwise, "[o]ur only guideposts
are the strict legal requirements."7 In re Legislative
7The judiciary lacks the institutional competency to make
the kind of factual determinations necessary to properly
39
No. 2021AP1450-OA
Districting of the State, 805 A.2d 292, 298 (Md. 2002) (emphasis
added).
¶72 Because our power to issue a mandatory injunction does
not encompass rewriting duly enacted law, our judicial remedy
"should reflect the least change" necessary for the maps to
comport with relevant legal requirements. See Wright v. City of
Albany, 306 F. Supp. 2d 1228, 1237 (M.D. Ga. 2003) (citations
omitted). Using the existing maps "as a template" and
implementing only those remedies necessary to resolve
constitutional or statutory deficiencies confines our role to
its proper adjudicative function, ensuring we fulfill our role
as apolitical and neutral arbiters of the law.8 See Baumgart,
consider various extra-legal factors. In re Legislative
Districting of the State, 805 A.2d 292, 298 (Md. 2002) ("When
the Court drafts the plan, it may not take into account the same
political considerations as the Governor and the Legislature.
Judges are forbidden to be partisan politicians. Nor can the
Court stretch the constitutional criteria in order to give
effect to broader political judgments, such as . . . the
preservation of communities of interest. More basic, it is not
for the Court to define what a community of interest is and
where its boundaries are, and it is not for the Court to
determine which regions deserve special consideration and which
do not. . . . Our instruction to the consultants was to prepare
for our consideration a redistricting plan that conformed to
federal constitutional requirements, the Federal Voting Rights
Act, and the requirements of Article III, § 4 of the Maryland
Constitution.").
8 The legislature asks us to use the maps it passed during
this redistricting cycle as a starting point, characterizing
them as an expression of "the policies and preferences of the
State[.]" Legislature Br. at 16 (quoting White v. Weiser, 412
U.S. 783, 795 (1973)). The legislature's argument fails because
the recent legislation did not survive the political process.
The existing plans are codified as statutes, without a sunset
provision, and have not been supplanted by new law.
40
No. 2021AP1450-OA
2002 WL 34127471, at *7 ("The court undertook its redistricting
endeavor in the most neutral way it could conceive——by taking
the 1992 reapportionment plan as a template and adjusting it for
population deviations."); see also Robert H. Bork, The Tempting
of America: The Political Seduction of the Law 88–89 (First
Touchstone ed. 1991) (1990) (describing how Robert H. Bork, as
special master in a redistricting case, drew lines without any
consideration of the partisan effect of his remedy). A least-
change approach is nothing more than a convenient way to
describe the judiciary's properly limited role in redistricting.
¶73 The least-change approach is far from a novel idea;
many courts call it the "minimum change doctrine," reflecting
its general acceptance among reasonable jurists. It was applied
in numerous cases during the last two redistricting cycles.
See, e.g., Crumly v. Cobb Cnty. Bd. of Elections & Voter
Registration, 892 F. Supp. 2d 1333, 1345 (N.D. Ga. 2012) ("In
preparing the draft map, the Court began with the existing map
drawn by Judge Carnes in 2002. The Court followed the doctrine
of minimum change[.]"); Martin v. Augusta-Richmond Cnty., Ga.,
Comm'n, No. CV 112-058, 2012 WL 2339499, at *3 (S.D. Ga. June
19, 2012) ("Essentially, the Court is required to change only
the faulty portions of the benchmark plan, as subtly as
possible, in order to make the new plan constitutional. Keeping
the minimum change doctrine in mind, the Court only made changes
it deemed necessary to guarantee substantial equality and to
honor traditional redistricting concerns." (Internal citation
omitted)); Stenger v. Kellet, No. 4:11-cv-2230, 2012 WL 601017,
41
No. 2021AP1450-OA
at *3 (E.D. Mo. Feb. 23, 2012) ("A frequently used model in
reapportioning districts is to begin with the current boundaries
and change them as little as possible while making equal the
population of the districts. This is called the 'least change'
or 'minimal change' method . . . . The 'least change' method is
advantageous because it maintains the continuity of
representation for each district and is by far the simplest way
to reapportion[.]"); Below v. Gardner, 963 A.2d 785, 794 (N.H.
2002) ("[W]e use as our benchmark the existing senate districts
because the senate districting plan enacted in 1992 is the last
validly enacted plan and is the clearest expression of the
legislature's intent." (Quotation marks and quoted source
omitted)); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002)
("A court, as a general rule, should be guided by the
legislative policies underlying the existing plan. The starting
point for analysis, therefore, is the 1991 Plan."); Bodker v.
Taylor, No. 1:02-cv-999, 2002 WL 32587312, at *5 (N.D. Ga. June
5, 2002) ("The court notes . . . that its plan represents only a
small, though constitutionally necessary, change in the district
lines in accordance with the minimum change doctrine."); Markham
v. Fulton Cnty. Bd. of Registrations & Elections, No. 1:02-cv-
1111, 2002 WL 32587313, at *6 (N.D. Ga. May 29, 2002) ("Keeping
the minimum change doctrine in mind, the Court made only the
changes it deemed necessary to guarantee substantial equality
and to honor traditional redistricting concerns.").
¶74 In declaring this court's role in resolving
redistricting cases, we are mindful that "Wisconsin adheres to
42
No. 2021AP1450-OA
the concept of a nonpartisan judiciary." SCR 60.06(2)(a). "In
the debate over the Wisconsin Constitution, objections to an
elected judiciary had centered upon the dangers of partisanship.
The debate was resolved with the mandate that elections for
state courts be distinctly non-partisan in character." Ellen
Langill, Levi Hubbell and the Wisconsin Judiciary: A Dilemma in
Legal Ethics and Non-Partisan Judicial Elections, 81 Marq. L.
Rev. 985, 985 (1998). The Wisconsin Constitution discourages
judicial partisanship. Wis. Const. art. IV, § 9 ("There shall
be no election for a justice or judge at the partisan general
election for state or county officer, nor within 30 days either
before or after such election."). Similarly, the Judicial Code
of Conduct prohibits judges from "be[ing] swayed by partisan
interests[.]" SCR 60.04(1)(b).
¶75 To dive into the deepest of "political thicket[s],"9 as
redistricting has been described, with the intention of doing
anything more than securing legal rights would be profoundly
incompatible with Wisconsin's commitment to a nonpartisan
judiciary. If a simple majority of this court opted to draw
maps from scratch, thereby fundamentally altering Wisconsin's
political landscape for years, it would significantly "increase
the political pressures on this court in a partisan way that is
9 Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality),
abrogation recognized by Evenwel v. Abbott, 577 U.S. 937 (2016)
("Courts ought not to enter this political thicket. The remedy
for unfairness in districting is to secure State legislatures
that will apportion properly, or to invoke the ample powers of
Congress.").
43
No. 2021AP1450-OA
totally inconsistent with our jobs as [a] nonpartisan
judiciary." Wisconsin Supreme Court Open Administrative
Conference (Open Administrative Conference), at 33:36 (Jan. 22,
2009) (statements of Roggensack, J.),
https://wiseye.org/2009/01/22/supreme-court-open-administrative-
conference-3/.
¶76 Many intervenors have argued the 2011 maps entrenched
a Republican Party advantage, so using them as a starting point
perpetuates a partisan gerrymander. In other words, these
intervenors argue we must tip the partisan balance to benefit
one party in order to avoid accusations of partisanship. We
reject this demand to "[s]imply undo[] the work of one political
party for the benefit of another[.]" Henderson v. Perry, 399
F. Supp. 2d 756, 768 (E.D. Tex. 2005), rev'd in part on other
grounds sub nom., League of United Latin Am. Citizens v. Perry,
548 U.S. 399, 420 (2006) (plurality). Endeavoring to rebalance
the allocation of districts between the two major parties would
be a decidedly nonjudicial exercise of partisanship by the
court. Instead, we adopt a neutral standard. While the
application of neutral standards inevitably benefits one side or
the other in any case, it does not place our thumb on any
partisan scale, as some intervenors urge us to do.
¶77 "Putting courts into politics, and compelling judges
to become politicians, in many jurisdictions has almost
destroyed the traditional respect for the Bench." Roscoe Pound,
The Causes of Popular Dissatisfaction with the Administration of
Justice (1906), as reprinted in Roscoe Pound Kindles the Spark
44
No. 2021AP1450-OA
of Reform, 57 A.B.A. J. 348, 351 (1971). A least-change
approach safeguards the long-term institutional legitimacy of
this court by removing us from the political fray and ensuring
we act as judges rather than political actors.
¶78 The judiciary has been repeatedly subject to "purely
political attacks" by people who "did not get the result from
the court . . . [they] wanted." Patience Drake Roggensack,
Tough Talk and the Institutional Legitimacy of Our Courts,
Hallows Lecture (Mar. 7, 2017), in Marq. Law., Fall 2017, at 45,
46. These often partisan onslaughts threaten the
"[i]nstitutional legitimacy" of the judiciary, which, in turn,
threatens the "rule of law" itself. Id. By utilizing the
least-change approach, we do not endorse the policy choices of
the political branches; rather, we simply remedy the
malapportionment claims. Attempting to redress the criticisms
of the current maps advanced by multiple intervenors would
amount to a judicial replacement of the law enacted by the
people's elected representatives with the policy preferences of
unelected interest groups, an act totally inconsistent with our
republican form of democracy.
¶79 We close by addressing Article IV, Section 3 of the
Wisconsin Constitution, which says, in each redistricting cycle,
"the legislature shall apportion and district anew[.]"
(Emphasis added.) Focusing on the word "anew," an intervenor
and an amicus curiae argue the court must make maps from
45
No. 2021AP1450-OA
scratch.10 Although the proponents of this interpretation
attempt to ground their argument in the provision's text, they
miss the forest for the trees. Read as a whole, the provision
means the legislature must implement a redistricting plan each
cycle and the language cannot reasonably be read to require the
court to make maps at all, let alone from scratch.
V. CONCLUSION
¶80 This case illustrates the extraordinary danger of
asking the judiciary to exercise "FORCE" and "WILL" instead of
legal "judgment." The Federalist No. 78, at 465 (Alexander
Hamilton). Manufacturing a standard of political "fairness" by
which to draw legislative maps in accordance with the subjective
preferences of judges would refashion this court as a committee
of oligarchs with political power superior to both the
legislature and the governor. See In re Review of the Code of
Judicial Ethics, SCR Chapter 60, 169 Wis. 2d xv, xxv (1992)
(Day, J., concurring, joined by a majority) ("Tyranny need not
be dressed in a military uniform, it can also wear a black
robe!"). Judges must refuse to become "philosopher kings
empowered to 'fix' things according to the dictates of what we
fancy is our superior insight[.]" Tyler v. Hillsdale Cnty.
Sheriff's Dep't, 837 F.3d 678, 707 (6th Cir. 2016) (Batchelder,
J., concurring in part).
¶81 In this case, we will implement judicial remedies only
to the extent necessary to remedy the violation of a justiciable
10 BLOC Br. at 31–36; Whitford Amicus Br. at 5–6.
46
No. 2021AP1450-OA
and cognizable right found in the United States Constitution,
the VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin
Constitution. We will not consider the partisan makeup of
districts because it does not implicate any justiciable or
cognizable right. We adopt the least-change approach to
remedying any constitutional or statutory infirmities in the
existing maps because the constitution precludes the judiciary
from interfering with the lawful policy choices of the
legislature.
By the court.——Rights declared.
47
No. 2021AP1450-OA.bh
¶82 BRIAN HAGEDORN, J. (concurring). To the extent
feasible, a court's role in redistricting should be modest and
restrained. We are not the branch of government assigned the
constitutional responsibility to "apportion and district anew"
after each decennial census; the legislature is.1 The job of the
judiciary is to decide cases based on the law.2 Here, the laws
passed in 2011 establishing legislative and congressional
districts cannot govern future elections as written due to
population shifts. Accordingly, our role is appropriately
limited to altering current district boundaries only as needed
to comply with legal requirements.3 The majority opinion so
concludes, and I join it in almost all respects.4
1 Wis. Const. art. IV, § 3; Jensen v. Wis. Elections Bd.,
2002 WI 13, ¶6, 249 Wis. 2d 706, 639 N.W.2d 537.
2 Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶1,
393 Wis. 2d 38, 946 N.W.2d 35.
3 Upham v. Seamon, 456 U.S. 37, 43 (1982) ("Whenever a
district court is faced with entering an interim reapportionment
order that will allow elections to go forward it is faced with
the problem of 'reconciling the requirements of the Constitution
with the goals of state political policy.' An appropriate
reconciliation of these two goals can only be reached if the
district court's modifications of a state plan are limited to
those necessary to cure any constitutional or statutory defect."
(citation omitted)); White v. Weiser, 412 U.S. 783, 795 (1973)
("In fashioning a reapportionment plan or in choosing among
plans, a district court should not pre-empt the legislative task
nor 'intrude upon state policy any more than necessary.'"
(quoting another source)).
4 I concur in the majority's conclusions that: (1) remedial
maps must comply with the United States Constitution; the Voting
Rights Act; and Article IV, Sections 3, 4, and 5 of the
Wisconsin Constitution; (2) we should not consider the partisan
makeup of districts; and (3) our relief should modify existing
maps under a least-change approach. I join the entirety of the
majority opinion except ¶¶8, 69-72, and 81. The paragraphs I do
1
No. 2021AP1450-OA.bh
¶83 Where the political process has failed and modified
maps are needed before the next election, the court's function
is to formulate a remedy——one tailored toward fixing the legal
deficiencies.5 The majority opinion asserts that only legal
requirements may be considered in constructing a fitting remedy.
That is not quite correct. Legal standards establish the need
for a remedy and constrain the remedies we may impose, but they
are not the only permissible judicial considerations when
constructing a proper remedy.6 For example, one universally
recognized redistricting criterion is communities of interest.7
It is not a legal requirement, but it may nonetheless be an
not join contain language that would foreclose considerations
that could be entirely proper in light of the equitable nature
of a judicial remedy in redistricting. I address this below.
The dissent uses the term "majority/lead opinion" to
reflect that not all paragraphs of the court's opinion reflect
the opinion of four justices. While this is true, I use
"majority opinion" for ease of use and to convey that the
opinion is a majority except in the limited area of disagreement
with the paragraphs I do not join.
5North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017)
(per curiam) ("Relief in redistricting cases is 'fashioned in
the light of well-known principles of equity.'" (quoting
Reynolds v. Sims, 377 U.S. 533, 585 (1964))); New York v.
Cathedral Acad., 434 U.S. 125, 129 (1977) ("[I]n constitutional
adjudication as elsewhere, equitable remedies are a special
blend of what is necessary, what is fair, and what is workable."
(quoting another source)).
6Covington, 137 S. Ct. at 1625 (explaining that a court in
a redistricting action "must undertake an 'equitable weighing
process' to select a fitting remedy for the legal violations it
has identified" and noting "there is much for a court to weigh"
(quoting another source)).
7 See Abrams v. Johnson, 521 U.S. 74, 99-100 (1997).
2
No. 2021AP1450-OA.bh
appropriate, useful, and neutral factor to weigh.8 Suppose we
receive multiple proposed maps that comply with all relevant
legal requirements, and that have equally compelling arguments
for why the proposed map most aligns with current district
boundaries. In that circumstance, we still must exercise
judgment to choose the best alternative. Considering
communities of interest (or other traditional redistricting
criteria) may assist us in doing so.9 In other words, while a
remedy must be tailored to curing legal violations, a court is
not necessarily limited to considering legal rights and
requirements alone when formulating a remedy.
¶84 This does not mean our remedial powers are without
guardrails.10 And this is where the dissent errs. The dissent
argues we can take over the responsibility of the legislature
entirely, discard policy judgments we don't like, and craft a
new law from scratch consistent with our own policy concerns.
8Id. (noting with approval that a federal district court
properly considered traditional redistricting criteria
"includ[ing] maintaining core districts and communities of
interest" when adopting a redistricting plan).
9Another example of a traditional and neutral redistricting
criterion that may assist us, but does not implicate a legal
right per se, is the goal of minimizing the number of voters who
must wait six years between voting for their state senator. See
Prosser v. Elections Bd., 793 F. Supp. 859, 864 (W.D. Wis.
1992).
10Schroeder v. Richardson, 101 Wis. 529, 531, 78 N.W. 178(1899) ("[W]hile the power of a court of equity is quite broad
where a remedy is called for and legal remedies do not meet the
situation, it does not extend so far as to clothe the court with
power to substitute judicial notions of justice for the written
law.").
3
No. 2021AP1450-OA.bh
The reader should look past pleas for fairness and see this for
what it is: a claim of dangerously broad judicial power to
fashion state policy. According to the dissent, this court
should simply ignore the law on the books——one the dissent makes
clear it is not fond of——and draft a new one more to its liking.
¶85 The majority opinion aptly explains that our judicial
role forecloses this; our remedial powers are not so unbounded.11
It is appropriate for us to start with the laws currently on the
books because they were passed in accordance with the
constitutional process and reflect the policy choices the people
made through their elected representatives.12 Our task is
therefore rightly focused on making only necessary modifications
to accord with legal requirements.13 A least-change approach is
the most consistent, neutral, and appropriate use of our limited
Whitcomb v. Chavis, 403 U.S. 124, 161 (1971) ("The
11
remedial powers of an equity court must be adequate to the task,
but they are not unlimited.").
Laws do not become any less authoritative simply because
12
newly-elected politicians disapprove of them. This court has no
license to ignore laws based on our own personal policy
disagreements or those of today's elected officials. The law
changes by legislation, not by elections. See Vos, 393
Wis. 2d 38, ¶1.
It appears that we also used the pre-existing statutory
13
maps as our starting point in State ex rel. Reynolds v.
Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964). While we did
not expressly adopt a least-change approach, the similarities
between the remedial maps and the pre-existing statutory maps
are striking. For example, of the 33 senate districts the court
drew, 31 consisted of some or all of the same counties as the
parallel predecessor districts. Compare Reynolds, 23 Wis. 2d at
617-18 with Wis. Stat. § 4.02 (1963-64). In contrast, only two
districts——the 28th and the 31st——contained none of the same
counties as they did under the prior maps. Id.
4
No. 2021AP1450-OA.bh
judicial power to remedy the constitutional violations in this
case.14
¶86 We asked the parties to brief whether we should use a
least-change approach, and if not, what approach we should use.
The main alternative we received15 was an entreaty to use this as
an opportunity to rearrange district boundaries with the goal of
reversing what the dissent calls "an obsolete partisan agenda."16
As the majority opinion explains, the Wisconsin Constitution
does not preclude the legislature from drawing districts with
partisan interests in mind.17 In reality, we are being asked to
make a political judgment cloaked in the veneer of neutrality.
Namely, we are being asked to conclude that the current maps are
likely to result in the election of too many representatives of
one party, so we should affirmatively and aggressively redesign
maps that are likely to result in the election of more members
of a different political party. The petition here——that we
should use our equitable authority to reallocate political power
The legislature, on the other hand, may decide for itself
14
whether to defer to prior maps when enacting new districts into
law. The Wisconsin Constitution gives the legislature wide
discretion to draft new maps from scratch based on the policy
considerations it chooses. Wis. Const. art. IV, §§ 1, 3.
The Legislature suggested we start with their proposed
15
maps. But those maps, if not enacted into law, are mere
proposals deserving no special weight.
16 Dissent, ¶114.
The majority opinion concludes a claim for partisan
17
gerrymandering is neither cognizable nor justiciable under the
Wisconsin Constitution. I agree and join the majority's
holdings and analysis explaining why this is so.
5
No. 2021AP1450-OA.bh
in Wisconsin——is not a neutral undertaking. It stretches far
beyond a proper, focused, and impartial exercise of our limited
judicial power.
¶87 With this in view, parties are invited to submit
congressional and state legislative maps that comply with all
relevant legal requirements, and that endeavor to minimize
deviation from existing law.18 Parties should explain in their
proposals why their maps comply with the law, and how their maps
are the most consistent with existing boundaries. Parties
should not present arguments regarding the partisan makeup of
proposed districts. While other, traditional redistricting
criteria may prove helpful and may be discussed, our primary
concern is modifying only what we must to ensure the 2022
elections are conducted under districts that comply with all
relevant state and federal laws.
The
18 Wisconsin Constitution explicitly requires the
legislature to draw new state assembly and state senate
districts after each census. Wis. Const. art. IV, § 3. This
section does not refer to congressional districts. The parties
dispute whether other provisions of the Wisconsin Constitution
have anything to say about congressional districts. Regardless
of the answer to that question, we have explained that
"congressional reapportionment and state legislative
redistricting are primarily state, not federal, prerogatives,"
and that "the United States Constitution and principles of
federalism and comity dictate that the states' role is primary."
Jensen, 249 Wis. 2d 706, ¶5. Where judicial action is
necessary, this includes the primary role of state supreme
courts. Id., ¶11. Accordingly, it is fitting for us to address
congressional malapportionment claims as well, whether under
state or federal law.
6
No. 2021AP1450-OA.rfd
¶88 REBECCA FRANK DALLET, J. (dissenting).
Redistricting is an "inherently political and legislative——not
judicial——task," even when judges do it. See Jensen v. Wis.
Elections Bd., 2002 WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537(per curiam). That is one reason why I said that the federal
courts, comprised of judges insulated from partisan politics by
lifetime appointments, are best suited to handle redistricting
cases. See Johnson v. WEC, No. 2021AP1450-OA, unpublished
order, at 15-16 (Wis. Sept. 22, 2021) (Dallet, J., dissenting).
But now that we have stepped out of our traditional judicial
role and into the "the political thicket" of redistricting, it
is vital that this court remain neutral and nonpartisan. See
Evenwel v. Abbott, 136 S. Ct. 1120, 1123 (2016). The majority1
all but guarantees that we cannot. First, the majority
adopts 2011's "sharply partisan" maps as the template for its
"least-change" approach. See Baldus v. Members of Wis. Gov't
Accountability Bd., 849 F. Supp. 2d 840, 844 (E.D. Wis. 2012).
And second, it effectively insulates future maps from being
challenged as extreme partisan gerrymanders. The upshot of
those two decisions, neither of which is politically neutral, is
to elevate outdated partisan choices over neutral redistricting
criteria. That outcome has potentially devastating consequences
for representative government in Wisconsin. I therefore
dissent.
1I refer to Justice Rebecca Grassl Bradley's opinion as the
"majority/lead opinion," because a majority of the court does
not join it in its entirety. I refer to the "majority" only
when discussing conclusions in the majority/lead opinion that
garnered four votes.
1
No. 2021AP1450-OA.rfd
I
¶89 The majority/lead opinion's adoption of a "least-
change" approach to evaluating or crafting remedial maps does
not "remov[e] us from the political fray and ensur[e] we act as
judges rather than political actors." Majority/lead op., ¶77.
It does the opposite, inserting the court directly into politics
by ratifying outdated partisan political choices. In effect, a
least-change approach that starts with the 2011 maps nullifies
voters' electoral decisions since then. In that way, adopting a
least-change approach is an inherently political choice. Try as
it might, the majority is fooling no one by proclaiming its
decision is neutral and apolitical.
¶90 Although no court in Wisconsin, state or federal, has
ever adopted a least-change approach, the majority/lead opinion
would have you believe that other jurisdictions commonly use
such an approach when starting from legislatively drawn maps.
But the cases it cites provide virtually no support for this
approach. One simply involves a state's supreme court approving
the trial court's selection of a congressional map. Alexander
v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002). All but one of the
remaining cases began with court-drawn maps or involved local
maps drawn for county boards and commissions. See Below v.
Gardner, 963 A.2d 785, 794 (N.H. 2002). The bottom line is that
the least-change approach has no "general acceptance among
reasonable jurists" when the court's starting point is a
legislatively drawn map. See majority/lead op., ¶73.
¶91 To be sure, there may be limited circumstances in
which a least-change approach is appropriate. For example, when
2
No. 2021AP1450-OA.rfd
a court is redrawing maps based on a prior court-drawn plan, it
may make sense to make fewer changes since the existing maps
should already reflect neutral redistricting principles.
See, e.g., Hippert v. Ritchie, 813 N.W.2d 374, 380 (Minn.
Special Redistricting Panel 2012) (explaining that the panel
utilizes a least-change strategy "where feasible"); see also
Zachman v. Kiffmeyer, No. C0-01-160, unpublished order, at 6
(Minn. Special Redistricting Panel Mar. 19, 2002) (adopting the
plan that the Hippert court used as its template). Another
situation where minimizing changes may be appropriate is when a
court finds localized problems with a plan validly enacted
through the political process. See Baldus, 849 F. Supp. 2d
at 859-60 (E.D. Wis. 2012) (holding that two Milwaukee-area
assembly districts violated the Voting Rights Act, but
emphasizing that "the re-drawing of lines for [those districts]
must occur within the combined outer boundaries of those two
districts" to avoid disrupting the otherwise valid state map).
¶92 Here, however, we are dealing with neither of those
situations. We are adopting statewide maps to replace a 2011
plan that the parties all agree is now unconstitutional. More
to the point, however, the 2011 map was enacted using a "sharply
partisan methodology" by a legislature no longer in power and a
governor who the voters have since rejected. See id.
at 844, 851 (adding that it was "almost laughable" that anyone
would assert that those maps "were not influenced by partisan
factors"). The partisan character of the 2011 maps is evident
both in the process by which they were drawn——"under a cloak of
3
No. 2021AP1450-OA.rfd
secrecy," totally excluding the minority political party2——and in
their departure from neutral traditional redistricting criteria.
See id. at 850 (explaining that the court shared "in many
respects" plaintiffs' expert's concerns that the 2011 maps
contained "excessive shifts in population, disregard for core
district populations, arbitrary partisan motivations related to
compactness, and unnecessary disenfranchisement").
¶93 It is one thing for the current legislature to
entrench a past legislature's partisan choices for another
2At the outset of the 2011 redistricting process, "the
Republican legislative leadership announced to members of the
Democratic minority that the Republicans would be provided
unlimited funds to hire counsel and consultants" to assist in
redistricting, while "Democrats . . . would not receive any
funding." Baldus, 849 F. Supp. 2d at 844-45. One of the
drafters met with "every single Republican member of the State
Assembly," but "[h]e did not meet with any Democrats." Id. at
845. Before each meeting, the participants were required to
sign confidentiality agreements. Id. Another drafter held
meetings "with the Republican members [of Congress]," who
"expressed their desire to draw districts that would maximize
the chances for Republicans to be elected." Id. at 846. In
addition to keeping the plan secret from Democratic legislators,
"[e]very effort was made to keep this work out of the public
eye." Id. at 845.
4
No. 2021AP1450-OA.rfd
decade.3 It is another thing entirely for this court to do the
same. For starters, the least-change approach is not the
"neutral standard" the majority/lead opinion portrays it as.
Rather, applying that approach to 2011's maps affirmatively
perpetuates the partisan agenda of politicians no longer in
power. It doesn't matter which political party benefits from
the 2011 maps, only that we cannot start with them and maintain
judicial neutrality. Moreover, a least-change approach risks
entrenching 2011's partisan agenda in future redistricting
cycles. If the party that benefits from the maps adopted in
this case controls only the legislature for the next
redistricting cycle, it has every incentive to ensure an
impasse. After all, an impasse will result in the court
changing the maps as little as possible——thus preserving that
party's hold on power. The point is, the least-change approach
is anything but a "neutral standard." Majority/lead op., ¶76.
The majority/lead opinion hints that a least-change
3
approach is appropriate because the 2011 maps were "codified as
statutes, without a sunset provision, and have not been
supplanted by new law." Majority/lead op., ¶72 n.8. But both
the Wisconsin and U.S. Constitutions require that all maps be
redrawn every ten years to account for population shifts since
the prior census. See Wis. Const. art. IV, § 3 (requiring the
legislature to "apportion and district anew the members of the
senate and assembly" in the first session after each census);
see also Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr,
369 U.S. 186 (1962). These are the sunset provisions. In this
respect, the 2011 maps are unlike an ordinary unconstitutional
statute, since they were enacted without any expectation of
longevity. Indeed, at this point they are a practical nullity.
Accordingly, the majority/lead opinion's comparisons to the
typical remedies when a court finds a statute unconstitutional
are inapt. See id., ¶¶67, 72 & n.8. And the fact that the maps
have "not been supplanted by new law," id., ¶72 n.8, is
precisely the reason why the court is redistricting at all. It
is hardly a reason to treat the prior maps as a valid template.
5
No. 2021AP1450-OA.rfd
¶94 True neutrality could be achieved by instead adhering
to the neutral factors supplied by the state and federal
constitutions, the Voting Rights Act, and traditional
redistricting criteria. The population equality (i.e., "one
person, one vote") principles in the state and federal
constitutions and the federal Voting Rights Act, 52
U.S.C. § 10301(a), are universally acknowledged as politically
neutral and central to any redistricting plan. Likewise for the
remaining requirements of the Wisconsin Constitution,
compactness, contiguity, and respect for political subdivision
boundaries. Wis. Const. art. IV, §§ 3, 4. In addition to these
constitutional and statutory baselines, neutral factors include
other "traditional redistricting criteria" such as compactness,4
preserving communities of interest, and minimizing "senate
disenfranchisement."5 E.g., Baumgart v. Wendelberger,
No. 01-C-0121, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002).
¶95 The traditional redistricting criteria, however, are
glaringly absent from the majority/lead opinion. A charitable
4Unlike the Wisconsin Constitution, the U.S. Constitution
does not impose a compactness requirement on congressional
districts. Nonetheless, compactness is one of the traditional
redistricting criteria applied by courts drawing congressional
maps or reviewing legislatively-drawn ones. See, e.g.,
Baldus, 849 F. Supp. 2d at 850; Prosser v. Elections Bd., 793
F. Supp. 859, 863 (W.D. Wis. 1992).
5Senate disenfranchisement occurs when a voter is shifted
from an odd-numbered senate district (which votes only in
midterm election years) to an even-numbered senate district
(which votes only in presidential election years), thereby
delaying for two years the voter's ability to vote for her state
senator. See Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL
34127471, at *3 (E.D. Wis. May 30, 2002).
6
No. 2021AP1450-OA.rfd
read of the majority/lead opinion is that whatever factors it
doesn't discuss——preserving communities of interest and
minimizing senate disenfranchisement, for example——are
sufficiently baked into the 2011 maps such that we can simply
rebalance the populations of existing districts and call it a
day. But, as mentioned previously, there is good reason to
doubt that the 2011 maps meaningfully balanced any of the
traditional redistricting criteria.
¶96 For one thing, while the 2011 maps were attacked in
federal court for failing to satisfy some of the traditional
redistricting criteria, the federal court examined those
criteria only to the extent needed to justify constitutionally
suspect population deviations between districts. See
Baldus, 849 F. Supp. 2d at 849-52. As a result, the federal
court made no finding, for example, that the prior maps
adequately accounted for communities of interest. In fact, the
federal court noted that it shared many of plaintiffs' expert's
concerns that the maps did not do so. See id. at 851.
¶97 For another thing, even if the 2011 maps reflected the
traditional redistricting criteria when they were adopted, we
cannot assume that they still reflect those criteria today.
Population shifts over the last ten years may have expanded or
altered existing communities of interest, and various ways of
equalizing the populations of state legislative districts may
result in unnecessary senate disenfranchisement. This is why
even when other courts use a least-change approach, they
acknowledge that traditional redistricting criteria might still
require more substantial changes. See, e.g., Alexander, 51 P.3d
7No. 2021AP1450-OA.rfd
at 1211 (starting with the prior legislatively enacted map but
considering "[w]idely recognized neutral redistricting criteria"
including core retention, communities of interest, and avoiding
incumbent pairing); Hippert, 813 N.W.2d at 380-82, 385-86 (using
"a least-change strategy where feasible" alongside
considerations of communities of interest and incumbent
residences).
¶98 In this case we are adopting new maps, not reviewing
legislatively enacted ones. We should therefore ensure that the
maps we adopt are the "best that c[an] be managed" under all
relevant criteria, especially since we know that there is no
single dispositive factor in crafting districts. See Prosser v.
Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992); see also
Baldus, 849 F. Supp. 2d at 850 (explaining that "factors like
homogeneity of needs and interests, compactness, contiguity, and
avoidance of breaking up counties, towns, villages, wards, and
neighborhoods," not just population equality, "are all necessary
to achieve" a representative democracy). Adopting the best maps
possible based on all the relevant criteria protects our
neutrality and ensures that the resulting districts foster a
representative democracy. That is, in part, why the last three
federal courts to draw Wisconsin's districts took a similar
tack. See Baumgart, 2002 WL 34127471, at *2 ("The
reapportionment of state legislative districts requires
balancing of several disparate goals."); Prosser, 793 F. Supp.
at 865 ("The issue for us is therefore remedy: not, [i]s some
enacted plan constitutional? But, [w]hat plan shall we as a
court of equity promulgate in order to rectify the admitted
8
No. 2021AP1450-OA.rfd
constitutional violation? What is the best plan?"); Wis. State
AFL-CIO v. Elections Bd., 543 F. Supp. 630, 637 (E.D. Wis. 1982)
(discussing the traditional redistricting criteria before
adopting the court's own plan, without deference to the last set
of maps adopted by the legislature). Along the way, we may have
to make fewer changes in some places, and more changes in
others. See Robert Yablon, Gerrylaundering, 97 N.Y.U. L. Rev.
(forthcoming 2022) (explaining that in redistricting "we should
not reflexively embrace the past for the sake of stability," but
"we also should not reflexively embrace change above all else").
But resorting to a least-change approach does not help us
balance the relevant factors.
¶99 More concerning than its silence regarding the
traditional redistricting criteria is the possibility that the
majority/lead opinion will prioritize its atextual least-change
approach over the text of the Wisconsin Constitution. The
Wisconsin Constitution imposes several substantive requirements
on assembly districts, including that they be in "as compact
form as practicable." Wis. Const. art. IV, § 4. The
majority/lead opinion's reasoning suggests that, despite that
constitutional directive and even if a more compact set of
population-equalizing assembly maps is "practicable," the court
is free to adopt a less compact set of maps simply because they
make fewer changes to the 2011 plan. That cannot be right. The
least-change principle is found nowhere in the Wisconsin or U.S.
Constitutions. Constitutionally mandated criteria do not take a
back seat to extra-constitutional methods like least-change.
See Yablon, supra (explaining that nothing would "license the
9
No. 2021AP1450-OA.rfd
legislature to adopt a map that subordinates the[] criteria [of
the Wisconsin Constitution] to an extra-legal preference" for
minimal changes to the previous maps).
¶100 Likewise, the text of the Wisconsin Constitution
provides no support for the majority's hierarchical distinctions
between its various criteria. Nowhere does the Constitution
relegate to "secondary importance" the requirements of
compactness, contiguity, and respect for political subdivision
boundaries found in Article IV, § 4. Contra majority/lead
op., ¶34 (citing Wis. State AFL-CIO, 543 F. Supp. at 635). And
the majority offers no legitimate explanation for why some
constitutional requirements are more important than others. The
source it cites for this supposed primary/secondary
distinction——Wisconsin State AFL-CIO——is of no help because that
case found the distinction in an Illinois case citing the
Illinois Constitution. See Wis. Stat. AFL-CIO, 543 F. Supp.
at 635 (citing People ex rel. Scott v. Grivetti, 277 N.E.2d 881(Ill. 1971)). Just as we cannot allow an atextual approach,
such as least-change, to supersede the Constitution's text, we
cannot pretend that some constitutional provisions are more
important than others.
¶101 Finally, the majority fails to flesh out exactly what
a least-change approach entails, thus leaving the parties with
little actual guidance. What exactly, should the parties change
the least? Does "least change" refer to the fewest changes to
districts' boundary lines? The fewest number of people moved
from one district to the next? Moreover, based on recent
population shifts, what is the feasibility of a least-change
10
No. 2021AP1450-OA.rfd
approach? Hippert, 813 N.W.2d at 381 ("[P]opulation shifts
within the state, however, sometimes [render] a least-change
approach . . . not feasible."). For example, Dane County has
gained more than 73,000 residents since the last census——more
than the optimal population of an entire assembly district.6
Meanwhile, Milwaukee County and many of the state's rural areas
have seen slow growth or outright declines in population.7 These
population shifts suggest that the 2011 district lines,
particularly on a legislative level, may not provide a very
useful template for crafting a remedial plan.
II
¶102 In an unnecessary and sweeping overreach, the majority
effectively insulates future maps from constitutional attack by
holding that excessive partisan gerrymandering claims are not
viable under the Wisconsin Constitution. It gets there by
answering a constitutional question that we never asked, that
the parties did not brief, and that is immaterial to this case.8
The majority seems to think that, because it fails to "find a
right to partisan fairness in . . . the Wisconsin Constitution,"
the court cannot consider, for any reason, the partisan effects
of remedial maps. Majority/lead op., ¶53. But there is no
6 See https://www.census.gov/quickfacts/fact/table/milwaukee
countywisconsin,danecountywisconsin,marinettecountywisconsin/PST
045219.
7 See id.
8 The question we actually asked was whether the "partisan
makeup of districts [is] a valid factor for us to consider in
evaluating or creating new maps." Johnson v. WEC,
No. 2021AP1450-OA, unpublished order, at 2 (Wis. Oct. 14, 2021).
11
No. 2021AP1450-OA.rfd
logical connection between these conclusions. In fact,
willfully blinding the court to the partisan makeup of districts
increases the risk that we will adopt a partisan gerrymander.
A
¶103 The majority's gratuitous discussion of whether claims
of extreme partisan gerrymandering are cognizable under the
Wisconsin Constitution starts with a flawed reading of the
United States Supreme Court's decision in Rucho v. Common Cause,
139 S. Ct. 2484 (2019). There, the Court held that excessive
partisan-gerrymandering claims were not justiciable under the
federal constitution because there were no judicially manageable
standards by which federal courts could determine that
gerrymandering had gone too far. Id. at 2498-2502 (clarifying
that the Court does "not condone excessive partisan
gerrymandering"). The Court observed, however, that this
remained an open question under state constitutions. Id.
at 2507-08. It should be obvious that here, because we have no
partisan gerrymandering claim before us, Rucho is irrelevant.
Several parties have urged us not to adopt a map tantamount to a
partisan gerrymander, and some have pointed out that Wisconsin's
current legislative and congressional districts are the result
12
No. 2021AP1450-OA.rfd
of a "sharply partisan methodology."9 See Baldus, 849
F. Supp. 2d at 844. But nobody argues that we should strike
down any existing map on the basis that it is an extreme
partisan gerrymander. Without an excessive partisan-
gerrymandering claim before us, there is no reason for the
majority to issue an advisory opinion about whether such claims
are cognizable under the Wisconsin Constitution.
¶104 That said, even if someone had brought such a claim,
the majority is wrong that determining when partisan
gerrymandering has gone too far is a non-justiciable political
question under the Wisconsin Constitution. It is not, as the
majority claims, "obvious[ly]" impossible to develop judicially
manageable standards for judging when partisan gerrymandering is
excessive. Indeed, other state courts have done it. See League
of Women Voters of Pa. v. Pennsylvania, 178 A.3d 737, 814, 821
(Pa. 2018) (holding that claims of extreme partisan
gerrymandering are cognizable under the Pennsylvania
Constitution and striking down the state's congressional map on
that basis); Common Cause v. Lewis, No. 18CVS014001, 2019
WL 4569584, at *2-3 (N.C. Super. Ct. Sept. 3, 2019) (striking
down state legislative maps as "extreme partisan
The majority mischaracterizes this argument as advocating
9
a "proportional party representation" requirement. See
majority/lead op., ¶¶42, 47. No party has suggested that the
court should radically reform our system of government to ensure
the political parties are represented in proportion to their
percentage of the statewide vote. In fact, the only party that
argues for a constitutional requirement that the court consider
partisan metrics acknowledges that proportional representation
by political party is unattainable given single-member districts
and the political geography of Wisconsin.
13
No. 2021AP1450-OA.rfd
gerrymandering"). And the federal courts had done it before
Rucho. See, e.g., Ohio A. Philip Randolph Inst. v.
Householder, 373 F. Supp. 3d 978, 1078 (S.D. Ohio 2019)
(concluding that "workable standards, which contain limiting
principles, exist so that courts can adjudicate [partisan]
gerrymandering claims just as they have adjudicated other types
of gerrymandering claims"), vacated and remanded sub nom. Chabot
v. Ohio A. Philip Randolph Inst., 140 S. Ct. 102 (2019); League
of Women Voters of Mich. v. Benson, 373 F. Supp. 3d 867, 911-12
(E.D. Mich. 2019) (explaining that "lower federal courts have
formulated judicially-manageable standards for adjudicating
partisan gerrymandering claims"), vacated and remanded sub nom.
Chatfield v. League of Women Voters of Mich., 140 S. Ct. 429(2019). There is no reason why we could not develop similar
standards to judge such claims in Wisconsin.
¶105 In any case, there is no need for us to decide this
question now. We have no claim of excessive partisan
gerrymandering before us. We should wait until we do and then
decide——with the benefit of full briefing from the parties——
whether our Constitution protects a practice that is
"incompatible with democratic principles." See Ariz. State
Legis. v. Ariz. Ind. Redistricting Comm'n, 135 S. Ct. 2652, 2658
(2015).
B
¶106 Although the majority's rejection of extreme partisan-
gerrymandering claims has no effect on the outcome of this case,
it likely has far-reaching consequences for future redistricting
14
No. 2021AP1450-OA.rfd
cycles. Discarding a potential limitation on partisan
gerrymandering gives future legislators and governors a green
light to engage in a practice that robs the people of their most
important power——to select their elected leaders. See The
Federalist No. 37, at 4 (James Madison) ("The genius of
republican liberty seems to demand on one side, not only that
all power should be derived from the people, but that those
[e]ntrusted with it should be kept in independence on the
people.").
¶107 Extreme partisan gerrymandering strikes at the
foundation of that power. Representative government demands
"that the voters should choose their representatives, not the
other way around." Ariz. State Legis., 135 S. Ct. at 2677(internal quotation marks omitted). Extreme partisan
gerrymandering turns that on its head. It allows a party in
power to draw district lines that guarantee its hold on power
for a decade or more, no matter what the voters choose.
¶108 No problem, the majority says, "[e]ven after the most
severe partisan gerrymanders, citizens remain free" to run for
office, express their views, and vote for the candidates of
their choice. Majority/lead op., ¶60. But the problem with
extreme partisan gerrymandering isn't that it literally denies
people the right to vote or run for office. It's that extreme
gerrymandering distorts the political process so thoroughly that
those rights can become meaningless. No matter how warped the
process becomes, post-Rucho, the federal courts cannot
intervene. Now, the majority all but guarantees that we won't
either.
15
No. 2021AP1450-OA.rfd
C
¶109 The majority's misapplication of Rucho leads it to
conflate how the court might analyze legislatively drawn maps
with how it should select or draw remedial ones. That error is
evident from the start, as the majority frames the analysis
around the question of whether we "should judge maps for
partisan fairness," regardless of who draws them. Majority/lead
op., ¶39. But "who draws them" makes all the difference. There
is a significant difference between second-guessing the partisan
fairness of a map drawn by an inherently partisan legislature,
which "would have the virtue of political legitimacy," and our
task here, which is to "pick[] the [plan] (or devis[e] our own)
most consistent with judicial neutrality." See Prosser, 793 F.
Supp. at 867. We are not asked to determine if maps enacted by
the legislature through the normal legislative process amount to
an unconstitutional partisan gerrymander. Cf. Rucho, 139 S. Ct.
at 2507. Rather, we are adopting maps because that process has
failed. In doing so, we must act consistent with our role as a
non-partisan institution and avoid choosing maps designed to
benefit one political party over all others. See Prosser, 793
F. Supp. at 867. The people rightly expect courts to redistrict
in neutral ways.
¶110 The majority claims that considering partisanship for
any reason is inconsistent with judicial neutrality. That all-
or-nothing position distorts the nuanced reality of the court's
role in redistricting. Other courts' redistricting experience
shows that partisanship is just another one of the many factors
a court must balance when enacting remedial maps.
16
No. 2021AP1450-OA.rfd
¶111 The last three courts to tackle redistricting in
Wisconsin all considered partisan effects alongside other
generally accepted neutral factors when evaluating and choosing
remedial maps. See Baumgart, 2002 WL 34127471, at *3-4
(rejecting maps proposed by the parties on the grounds that they
were drawn to preserve or obtain partisan advantage);
Prosser, 793 F. Supp. at 867-68, 870-71 (analyzing the partisan
effects of several proposals before ultimately adopting a court-
drawn plan that was "the least partisan"); Wis. State
AFL-CIO, 543 F. Supp. at 634. Those courts considered the
partisan effects of their decisions not to enact their
subjective view of what is politically fair but because courts,
unlike legislatures, should not behave like political entities:
Judges should not select a plan that seeks partisan
advantage——that seeks to change the ground rules so
that one party can do better than it would do under a
plan drawn up by persons having no political agenda——
even if they would not be entitled to invalidate an
enacted plan that did so.
Prosser, 793 F. Supp. at 867; see also Baumgart, 2002
WL 34127471, at *3 (following Prosser); Jensen, 249
Wis. 2d 706, ¶12 (quoting Prosser). The Indiana Supreme Court
likewise declined to enact "a plan that represents one political
party's ideas of how district boundaries should be drawn
[because doing so] does not conform to the principle of judicial
independence and neutrality." Peterson v. Borst, 786
N.E.2d 668, 675 (Ind. 2003).
¶112 Indeed, although it sounds contradictory, the only way
for the court to avoid unintentionally selecting maps designed
to benefit one political party over others is by considering the
17
No. 2021AP1450-OA.rfd
maps' likely partisan effects. The United States Supreme Court
has suggested as much, explaining that taking a "politically
mindless approach" to redistricting may lead to "grossly
gerrymandered results," "whether intended or not." Gaffney v.
Cummings, 412 U.S. 735, 753 (1973). Refusing to consider
partisan effects only increases the risk that the court will be
used, intentionally or not, to achieve partisan ends. This is
especially true when our starting point is 2011's indisputably
partisan maps.
III
¶113 I close with a lingering question that the
majority/lead opinion surprisingly leaves unaddressed: Exactly
what maps are we talking about——congressional and state
legislative maps or only the latter? There is evidence in the
majority/lead opinion to support both answers. On the one hand,
the majority/lead opinion begins by discussing the legislature's
duty under Article IV, § 3 of the Wisconsin Constitution "to
apportion and district anew the members of the senate and
assembly," and later explains that this requirement does not
apply to congressional districts. See majority/lead op., ¶¶1,
13 & n.4. That suggests only state legislative maps are at
play. On the other hand, the majority/lead opinion identifies
redistricting principles applicable to congressional maps under
the federal constitution, but without stating that it intends to
draw new congressional maps. See id. ¶¶24-25. Similarly, the
majority/lead opinion states at different times that it intends
to remedy the "malapportionment" of "each legislative district,"
18
No. 2021AP1450-OA.rfd
id., ¶4 (emphasis added), but also that "any judicial remedy" in
this case will be confined "to making the minimum changes
necessary in order to conform the existing congressional and
state legislative redistricting plans to constitutional and
statutory requirements." Id., ¶8 (emphasis added). At least
two parties, the Hunter Plaintiffs and the Congressmen, have
suggested that they intend to litigate what, if anything, the
Wisconsin Constitution has to say about congressional
redistricting, but so far the court has no motion or other
briefing on that question. So it is unclear from the start what
the majority/lead opinion is even addressing.
IV
¶114 The majority repeatedly protests that any approach
other than its preferred one would undermine our non-partisan
role and imperil the legitimacy and independence of the
judiciary. But the neutral principles supplied by the U.S. and
Wisconsin Constitutions, the Voting Rights Act, and the
traditional redistricting criteria can preserve our independence
while still guiding the parties and the court towards resolving
this case. The majority deals a striking blow to representative
government in Wisconsin by ignoring those neutral principles and
committing the court to an approach that prioritizes an obsolete
partisan agenda. I therefore dissent.
¶115 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this dissent.
19
No. 2021AP1450-OA.rfd