Rebecca Clarke v. Wisconsin Elections Commission , 2023 WI 79 ( 2023 )

2023 WI 79SUPREME COURT OF WISCONSIN
CASE NO.: 2023AP1399-OA
COMPLETE TITLE: Rebecca Clarke, Ruben Anthony, Terry Dawson,
Dana Glasstein, Ann Groves-Lloyd, Carl
Hujet, Jerry Iverson, Tia Johnson, Angie
Kirst, Selika Lawton, Fabian Maldonado,
Annemarie McClellan, James McNett, Brittany
Muriello, Ela Joosten (Pari) Schils,
Nathaniel Slack, Mary Smith-Johnson, Denise
Sweet and Gabrielle Young,
Petitioners,
Governor Tony Evers in his official
capacity, Nathan Atkinson, Stephen Joseph
Wright, Gary Krenz, Sarah J. Hamilton,
Jean-Luc Thiffeault, Somesh Jha, Joanne Kane
and Leah Dudley,
Intervenors-Petitioners,
v.
Wisconsin Elections Commission, Don Millis,
Robert F. Spindell, Jr., Mark L. Thomsen,
Ann S. Jacobs, Marge Bostelmann, Carrie
Riepl, in their official capacities as
Members of the Wisconsin Election
Commission;, Meagan Wolfe in her official
capacity as the Administrator of the
Wisconsin Elections Commission;, Andre
Jacque, Tim Carpenter, Rob Hutton, Chris
Larson, Devin LeMahieu, Stephen L. Nass,
John Jagler, Mark Spreitzer, Howard
Marklein, Rachael Cabral-Guevara, Van H.
Wanggaard, Jesse L. James, Romaine Robert
Quinn, Dianne H. Hesselbein, Cory Tomczyk,
Jeff Smith and Chris Kapenga in their
official capacities as Members of the
Wisconsin Senate,
Respondents,
Wisconsin Legislature, Billie Johnson, Chris
Goebel, Ed Perkins, Eric O'Keefe, Joe
Sanfelippo, Terry Moulton, Robert Jensen,
Ron Zahn, Ruth Elmer and Ruth Streck,
Intervenors-Respondents.
ORIGINAL ACTION
OPINION FILED: December 22, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 21, 2023
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET and PROTASIEWICZ, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a
dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Daniel S.
Lenz, T.R. Edwards, Elizabeth M. Pierson, Scott B. Thompson, and
Law Forward, Inc., Madison; Douglas M. Poland, Jeffrey A.
Mandell, Rachel E. Snyder, and Stafford Rosenbaum LLP, Madison;
Elisabeth S. Theodore (pro hac vice), John A. Freedman (pro hac
vice), and Arnold & Porter Kaye Scholer LLP, D.C.; Mark P. Gaber
(pro hac vice), Brent Ferguson (pro hac vice), Hayden Johnson
(pro hac vice), Benjamin Phillips (pro hac vice), and Campaign
Legal Center, D.C.; Annabelle E. Harless (pro hac vice), and
Campaign Legal Center, Chicago; Ruth M. Greenwood (pro hac
vice), Nicholas O. Stephanopoulos (pro hac vice), and Election
Law Clinic at Harvard Law School, Cambridge. There was an oral
argument by Mark Gaber.
For the intervenor-petitioner, Governor Tony Evers in his
official capacity, there were briefs filed by Anthony D.
Russomanno, assistant attorney general, Faye B. Hipsman,
assistant attorney general, Brian P. Keenan, assistant attorney
general, with whom on the brief was Joshua L. Kaul, attorney
2
general; Mel Banes, and Office of Governor Tony Evers, Madison;
Christine P. Sun (pro hac vice), Dax L. Goldstein (pro hac
vice), and States United Democracy Center, Los Angeles; John
Hill (pro hac vice), and States United Democracy Center, DuBois.
There was an oral argument by Anthony D. Russomanno, assistant
attorney general.
For the intervenor-petitioner, Nathan Atkinson, Stephen
Joseph Wright, Gary Krenz, Sarah J. Hamilton, Jean-Luc
Thiffeault, Somesh Jha, Joanne Kane and Leah Dudley, there were
briefs filed by Sarah A. Zylstra, Tanner G. Jean-Louis, and
Boardman Clark LLP, Madison; Sam Hirsch (pro hac vice), Jessica
Ring Amunson (pro hac vice), Elizabeth B. Deutsch (pro hac
vice), Arjun R. Ramamurti, (pro hac vice), and Jenner & Block
LLP, D.C. There was an oral argument by Sam Hirsch.
For the respondents, Tim Carpenter, Chris Larson, Mark
Spreitzer, Dianne H. Hesselbein, and Jeff Smith, in there
official capacities as Members of the Wisconsin Senate, there
were briefs filed by Tamara B. Packard, Eduardo E. Castro, and
Pines Bach LLP, Madison. There was an oral argument by Tamara B.
Packard.
For the intervenors-respondents, Wisconsin Legislature, and
respondents, Andre Jacque, Rob Hutton, Devin LeMahieu, Stephen
L. Nass, Howard Marklein, John Jagler, Rachael Cabral-Guevara,
Van H. Wanggaard, Jesse L. James, Romaine Robert Quinn, Cory
Tomczyk, and Chris Kapenga, in there official capacities as
Members of the Wisconsin Senate, there were briefs filed by
Kevin M. St. John, and Bell Giftos St. John LLC, Madison; Jessie
Augustyn, and Augustyn Law LLC, Appleton; Adam K. Mortara, and
Lawfair LLC, Nashville; Taylor A.R. Meehan (pro hac vice),
Rachael C. Tucker (pro hac vice), Daniel M. Vitagliano (pro hac
vice), C’Zar D. Bernstein (pro hac vice), and Consovoy McCarthy
3
PLLC, Arlington; Scott A. Keller (pro hac vice), Shannon Grammel
(pro hac vice), Gabriela Gonzalez-Araiza (pro hac vice), and
Lehotsky Keller Cohn LLP, D.C.; Matthew H. Frederick (pro hac
vice), and Lehotsky Keller Cohn, LLP, Austin. There was an oral
argument by Taylor A.R. Meehan.
For the intervenors-respondents, Billie Johnson, Chris
Goebel, Ed Perkins, Eric O’Keefe, Joe Sanfelippo, Terry Moulton,
Robert Jensen, Ron Zahn, Ruth Elmer and Ruth Streck, there were
briefs filed by Richard M. Esenberg, Luke N. Berg, Nathalie E.
Burmeister, and Wisconsin Institute for Law & Liberty, Inc.,
Milwaukee. There was an oral argument by Richard M. Esenberg.
An amicus curiae brief was filed by Nathan J. Kane, and WMC
Litigation Center, Madison, on behalf of the Wisconsin
Manufacturers and Commerce, Inc.
An amicus curiae brief was filed by Margo S. Kirchner, and
Wisconsin Justice Initiative, Inc, Milwaukee; Daniel J.
Schneider, and Wisconsin Fair Maps Coalition, Chicago, on behalf
of the Wisconsin Justice Initiative, Inc. & Wisconsin Fair Maps
Coalition.
An amicus curiae brief was filed by Matthew W. O’Neill, and
Fox, O’Neill & Shannon, S.C., Milwaukee, on behalf of Matthew
Petering, PhD.
An amicus curiae brief was filed by Nicholas E.
Fairweather, and Hawks Quindel S.C., Madison; Jonathan B. Miller
(pro hac vice), Michael Adame (pro hac vice), and Public Rights
Project, Oakland, on behalf of Local Elected Officials.
4
An amicus curiae brief was filed by Robert Yablon, Bryna
Godar, and State Democracy Research Initiative, University of
Wisconsin Law School, Madison, on behalf of Legal Scholars.
An amicus curiae brief was filed by Samuel T. Ward-Packard,
and Elias Law Group LLP, D.C.; Abha Khanna (pro hac vice), and
Elias Law Group LLP, Seattle; William K. Hancock (pro hac vice),
Julie Zuckerbrod (pro hac vice), and Elias Law Group LLP, D.C.,
on behalf of Jo Ellen Burke, Jennie Tunkieicz and John Persa.
An amicus curiae brief was filed by Tony Wilkin Gibart,
Adam Voskuil, Daniel P. Gustafson, and Midwest Environmental
Advocates, Madison, on behalf of Coalition on Lead Emergency.
5
2023 WI 79NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2023AP1399-OA
STATE OF WISCONSIN : IN SUPREME COURT
Rebecca Clarke, Ruben Anthony, Terry Dawson,
Dana Glasstein, Ann Groves-Lloyd, Carl Hujet,
Jerry Iverson, Tia Johnson, Angie Kirst, Selika
Lawton, Fabian Maldonado, Annemarie McClellan,
James McNett, Brittany Muriello, Ela Joosten
(Pari) Schils, Nathaniel Slack, Mary Smith-
Johnson, Denise Sweet and Gabrielle Young,
Petitioners,
Governor Tony Evers, in his official capacity;
Nathan Atkinson, Stephen Joseph Wright, Gary
Krenz, Sarah J. Hamilton, Jean-Luc Thiffeault,
Somesh Jha, Joanne Kane and Leah Dudley,
Intervenors-Petitioners, FILED
v.
DEC 22, 2023
Wisconsin Elections Commission, Don Millis,
Robert F. Spindell, Jr., Mark L. Thomsen, Ann Samuel A. Christensen
Clerk of Supreme Court
S. Jacobs, Marge Bostelmann, Joseph J.
Czarnezki in their official capacities as
Members of the Wisconsin Election Commission;,
Meagan Wolfe in her official capacity as the
Administrator of the Wisconsin Elections
Commission;, Andre Jacque, Tim Carpenter, Rob
Hutton, Chris Larson, Devin LeMahieu, Stephen
L. Nass, John Jagler, Mark Spreitzer, Howard
Marklein, Rachael Cabral-Guevara, Van H.
Wanggaard, Jesse L. James, Romaine Robert
Quinn, Dianne H. Hesselbein, Cory Tomczyk, Jeff
Smith and Chris Kapenga in their official
capacities as Members of the Wisconsin Senate,
Respondents,
Wisconsin Legislature; Billie Johnson, Chris
Goebel, Ed Perkins, Eric O'Keefe, Joe
Sanfelippo, Terry Moulton, Robert Jensen, Ron
Zahn, Ruth Elmer and Ruth Streck,
Intervenors-Respondents.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET and PROTASIEWICZ, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a
dissenting opinion.
ORIGINAL ACTION. Rights declared.
¶1 JILL J. KAROFSKY, J. In Wisconsin the number of state
legislative districts containing territory completely
disconnected from the rest of the district is striking. At
least 50 of 99 assembly districts and at least 20 of 33 senate
districts include separate, detached territory. A particularly
stark example is the Madison-area 47th Assembly District (shown
in yellow below). This district contains more than a dozen
separate, detached parts that are home to thousands of people
who must cross one or more other districts before reaching
another part of the 47th.1
1The following images of assembly and senate districts are
from the Legislative Technology Services Bureau's Geographic
Information Services website. Legislative Technology Services
Bureau, Geographic Information Services, Wisconsin District Maps
(https://gis-ltsb.hub.arcgis.com/pages/district-maps). This
court "take[s] judicial notice of the location of the various
political subdivisions of the state," including the location of
legislative districts. See Ryan v. State, 168 Wis. 14, 15, 168
N.W. 566 (1918).
2
¶2 Here we are asked to determine whether these districts
violate Article IV, Sections 4 and 5 of the Wisconsin
Constitution, which provide that state legislative districts
must consist of "contiguous territory." Wis. Const. art. IV,
§§ 4-5. Two groups of Wisconsin voters (the Clarke Petitioners2
2 The Clarke Petitioners are Rebecca Clarke, Ruben Anthony,
Terry Dawson, Dana Glasstein, Ann Groves-Lloyd, Carl Hujet,
Jerry Iverson, Tia Johnson, Angie Kirst, Selika Lawton, Fabian
Maldonado, Annemarie McClellan, James McNett, Brittany Muriello,
Ela Joosten (Pari) Schils, Nathaniel Slack, Mary Smith-Johnson,
Denise (Dee) Sweet, and Gabrielle Young.
3
and Wright Petitioners3), the Governor, and a group of state
senators4 (collectively, Petitioners), argue that the current
districts are non-contiguous, and therefore violate the
Wisconsin Constitution. Petitioners ask us to enjoin their use
in future elections and to order the adoption of remedial maps.
Additionally, they ask us to issue a writ quo warranto declaring
the November 2022 state senate elections unlawful, and to order
special elections for these offices that would otherwise not be
on the ballot until November 2026. The Legislature, several
senators elected in 2022,5 and a group of Wisconsin voters6
(collectively, Respondents)7 argue that the current state
3 The Wright Petitioners are Nathan Atkinson, Stephen Joseph
Wright, Gary Krenz, Sara J. Hamilton, Jean-Luc Thiffeault,
Somesh Jha, Joanne Kane, and Leah Dudley, several of whom
participated in the Johnson litigation. See Johnson v. Wis.
Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469("Johnson I"); Johnson v. Wis. Elections Comm'n, 2022 WI 14, 400
Wis. 2d 26, 971 N.W.2d 402 ("Johnson II"); Johnson v. Wis.
Elections Comm'n, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559("Johnson III"). After we denied their petition for leave to
commence an original action, see Wright v. Wis. Elections
Comm'n, 2023 WI 71, 409 Wis. 2d 417, 995 N.W.2d 771, they
subsequently filed a motion to intervene in this case, which the
Court granted.
4 They are Senators Carpenter, Larson, Spreitzer,
Hesselbein, and Smith.
5 They are Senators Cabral-Guevara, Hutton, Jacque, Jagler,
James, Kapenga, LeMahieu, Marklein, Nass, Quinn, Tomczyk, and
Wanggaard.
6 Four of these voters——Billie Johnson, Eric O'Keefe, Ed
Perkins, and Ronald Zahn——were petitioners in Johnson. They
intervened in this case along with Chris Goebel, Robert Jensen,
Ruth Elmer, Ruth Streck, and Terry Moulton, who were not parties
to Johnson.
7 One of the named Respondents, Wisconsin Elections
Commission, takes no position on the issues presented.
4
legislative districts comply with the Wisconsin Constitution's
contiguity requirements. Respondents also contend that
Petitioners' claims are barred by various defenses, and that the
relief the Petitioners seek is otherwise unavailable.
¶3 We hold that the contiguity requirements in Article
IV, Sections 4 and 5 mean what they say: Wisconsin's state
legislative districts must be composed of physically adjoining
territory. The constitutional text and our precedent support
this common-sense interpretation of contiguity. Because the
current state legislative districts contain separate, detached
territory and therefore violate the constitution's contiguity
requirements, we enjoin the Wisconsin Elections Commission from
using the current legislative maps in future elections.8 We also
reject each of Respondents' defenses. We decline, however, to
issue a writ quo warranto invalidating the results of the 2022
state senate elections.
¶4 Because we enjoin the current state legislative
district maps from future use, remedial maps must be drawn prior
to the 2024 elections. The legislature has the primary
authority and responsibility to draw new legislative maps. See
Wis. Const. art. IV, § 3. Accordingly, we urge the legislature
to pass legislation creating new maps that satisfy all
requirements of state and federal law. We are mindful, however,
that the legislature may decline to pass legislation creating
Because we determine that non-contiguous districts violate
8
the constitution, we need not address Petitioners' alternative
argument that the process by which the current state legislative
districts were adopted violated the Wisconsin Constitution's
separation-of-powers doctrine. Md. Arms Ltd. P'ship v. Connell,
2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("Issues that
are not dispositive need not be addressed." (citation omitted)).
5
new maps, or that the governor may exercise his veto power.
Consequently, to ensure maps are adopted in time for the 2024
election, we will proceed toward adopting remedial maps unless
and until new maps are enacted through the legislative process.
At the conclusion of this opinion, we set forth the process and
relevant considerations that will guide the court in adopting
new state legislative districts——and safeguard the
constitutional rights of all Wisconsin voters.
I. BACKGROUND
¶5 Following the 2020 census, the legislature passed
legislation creating new state legislative district maps, the
governor vetoed the legislation, and the legislature did not
attempt to override his veto. Because the legislature and the
governor reached an impasse, the 2011 maps remained in effect,
even though they no longer complied with the Wisconsin or United
States Constitutions due to population shifts.
¶6 Billie Johnson and other Wisconsin voters asked this
court to redraw the unconstitutional 2011 maps. See Johnson v.
Wis. Elections Comm'n, 2021 WI 87, ¶2, 399 Wis. 2d 623, 967
N.W.2d 469 ("Johnson I"). In that case, we first confirmed that
the 2011 maps no longer complied with the state and federal
requirement that districts be equally populated. See id. Next,
we identified the principles that would guide the court in
adopting new maps, including the proposition that remedial maps
"'should reflect the least change' necessary for the maps to
comport with relevant legal requirements." Id., ¶72 (quoting
Wright v. City of Albany, 306 F. Supp. 2d 1228, 1237 (M.D. Ga.
2003)). We then invited the parties to submit proposed state
6
legislative maps for our review. See id., ¶87 (Hagedorn, J.,
concurring). Of the proposed maps, we adopted the Governor's.
See Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶52, 400
Wis. 2d 626, 971 N.W.2d 402 ("Johnson II"). The United States
Supreme Court summarily reversed that decision, holding that the
Governor's proposed legislative maps violated the Equal
Protection Clause of the Fourteenth Amendment because they
increased the number of majority-Black districts in the
Milwaukee area without sufficient justification. Wis. Legis. v.
Wis. Elections Comm'n, 595 U.S. 398, 403, 406 (2022) (per
curiam). On remand, we adopted the legislative maps proposed by
the Legislature. See Johnson v. Wis. Elections Comm'n, 2022 WI
19, ¶3, 401 Wis. 2d 198, 972 N.W.2d 559 ("Johnson III").
¶7 In this case, the Clarke Petitioners filed a petition
for leave to commence an original action challenging the maps
adopted in Johnson III, arguing that they: (1) are an extreme
partisan gerrymander; (2) do not comply with the contiguity
requirements contained in Article IV, Sections 4 and 5 of the
Wisconsin Constitution; and (3) were created via a process that
violated the separation of powers. We granted leave in part,
allowing Petitioners' contiguity and separation-of-powers claims
to proceed, while declining to review the issue of extreme
partisan gerrymandering. We explained that although
Petitioners' extreme-partisan-gerrymandering claim presented an
important and unresolved legal question, we declined to address
it due to the need for extensive fact-finding. See Clarke v.
Wis. Elections Comm'n, 2023 WI 70, 409 Wis. 2d 372, 995 N.W.2d
779.
7
¶8 After granting the petition in part, we permitted
several parties to intervene. We ordered the parties to provide
briefing on the following four questions:
1.) Do the existing state legislative maps violate the
contiguity requirements contained in Article IV,
Sections 4 and 5 of the Wisconsin Constitution?
2.) Did the adoption of the existing state legislative
maps violate the Wisconsin Constitution's separation
of powers?
3.) If the court rules that Wisconsin's existing state
legislative maps violate the Wisconsin Constitution
for either or both of these reasons and the
legislature and the governor then fail to adopt state
legislative maps that comply with the Wisconsin
Constitution, what standards should guide the court in
imposing a remedy for the constitutional violation(s)?
4.) What fact-finding, if any, will be required if the
court determines there is a constitutional violation
based on the contiguity clauses and/or the separation-
of-powers doctrine and the court is required to craft
a remedy for the violation? If fact-finding will be
required, what process should be used to resolve
questions of fact?
Id. After all parties submitted initial briefs, Respondents
filed a motion to dismiss, asserting various defenses. Oral
argument was held on November 21, 2023.
¶9 In this opinion, we first address whether the existing
state legislative districts violate the Wisconsin Constitution's
contiguity requirements. We determine that a substantial number
of districts do so. Next, we turn to Respondents' motion to
dismiss and the defenses asserted therein. Because none of
Respondents' proffered defenses apply here, we deny Respondents'
motion to dismiss. Finally, we enjoin the Wisconsin Elections
Commission from using the maps in future elections, and we
8
explain the process and relevant considerations that will guide
the court in adopting remedial maps.
II. CONTIGUITY
¶10 We begin by determining the meaning of "contiguous
territory" set out in Article IV, Sections 4 and 5 of the
Wisconsin Constitution. To do so, we examine the constitutional
text, our precedent interpreting that text, and other
jurisdictions' interpretations of similar provisions. Next, we
apply that meaning to the current legislative districts to
determine whether the districts violate the contiguity
requirements. We conclude that the current legislative maps
contain districts that are not composed of "contiguous
territory" and therefore violate the Wisconsin Constitution.
A. Text
¶11 We start our analysis with Article IV, Section 4 of
the Wisconsin Constitution, which sets the ground rules for how
Wisconsin Assembly members are elected and how their districts
are to be established. That section reads in full as follows:
The members of the assembly shall be chosen
biennially, by single districts, on the Tuesday
succeeding the first Monday of November in even-
numbered years, by the qualified electors of the
several districts, such districts to be bounded by
county, precinct, town or ward lines, to consist of
contiguous territory and be in as compact form as
practicable.
Wis. Const. art. IV, § 4 (emphasis added). The underlined
portion of Section 4 imposes three separate requirements for
establishing assembly districts. The districts must: (1) "be
bounded by county, precinct, town or ward lines;" (2) "consist
9
of contiguous territory;" and (3) "be in as compact form as
practicable."
¶12 Article IV, Section 5 sets out rules for how senators
are elected and how their districts are established:
The senators shall be elected by single districts of
convenient contiguous territory, at the same time and
in the same manner as members of the assembly are
required to be chosen; and no assembly district shall
be divided in the formation of a senate district. The
senate districts shall be numbered in the regular
series, and the senators shall be chosen alternately
from the odd and even-numbered districts for the term
of 4 years.
Wis. Const. art. IV, § 5 (emphasis added). The underlined
portion of Section 5 imposes three requirements on senate
districts. The senate districts must (1) be "single districts;"
(2) be "of convenient contiguous territory;" and (3) not divide
any assembly districts.
¶13 Sections 4 and 5 both impose a contiguity requirement
on districts——specifically, assembly and senate districts must
consist of "contiguous territory." Given the language in the
constitution, the question before us is straightforward. When
legislative districts are composed of separate, detached parts,
do they consist of "contiguous territory"? We conclude that
they do not.
¶14 Much of the Wisconsin Constitution is set out in broad
terms, the interpretation of which may lead to difficult
questions and require a complex balancing of interests. For
instance, at what point does a search or seizure become
unreasonable? See Wis. Const. art. I, § 11. What does it mean
for a person to be "entitled to a certain remedy in the laws for
all injuries"? See Wis. Const. art. I, § 9. Or even, how
10
compact does a district have to be in order to be in "as compact
form as practicable"? See Wis. Const. art. IV, § 4.
¶15 In other places, however, our constitution imposes
specific requirements whose meaning is immediately apparent from
the words themselves. For instance, assembly elections must be
held "on the Tuesday succeeding the first Monday in November in
even-numbered years." See Wis. Const. art. IV, § 4. And judges
must have been licensed to practice law for "5 years immediately
prior to appointment." See Wis. Const. art. VII, § 24.
¶16 The contiguous territory requirement fits squarely
into the latter category. It is immediately apparent, using
practically any dictionary, that contiguous means "touching" or
"in actual contact." See, e.g., Contiguous, Black's Law
Dictionary, (11th ed. 2019) ("Touching at a point or along a
boundary."); Contiguous, Oxford English Dictionary (2d ed. 1989)
("touching, in actual contact, next in space; meeting at a
common boundary, bordering, adjoining"); Contiguous, Merriam
Webster Dictionary (11th ed. 2019) ("being in actual contact:
touching along a boundary or at a point"). These definitions
make clear that contiguous territory is territory that is
touching, or in actual contact. In other words, a district must
be physically intact such that a person could travel from one
point in the district to any other point in the district without
crossing district lines. See Bernard Grofman, Criteria for
Districting: A Social Science Perspective, 33 UCLA L. Rev. 77,
84 (1985) ("A district may be defined as contiguous if every
part of the district is reachable from every other part without
crossing the district boundary.").
11
¶17 We find additional support for this understanding of
contiguity in historical definitions and early Wisconsin
districting practices. In examining historical definitions of
the word "contiguous," we see that the definition has not
changed since the Wisconsin Constitution was adopted. See
Contiguous, A Dictionary of the English Language (1756)
("meeting so as to touch; bordering upon each other; not
separate"); Contiguous, An American Dictionary of the English
Language (1828) ("touching: meeting or joining at the surface or
border"). Turning to early districting practices, the first
state legislative districts, set forth in the Wisconsin
Constitution, were all physically contiguous. See Wis. Const.
art. XIV, § 12 (1848). Additionally, the constitution specified
that if existing towns were split or new towns were created, the
districts had to remain physically intact. See id. In short,
historical definitions and practices related to contiguity
bolster our conclusion that contiguity does indeed require
"touching," or "actual contact."
¶18 Respondents assert that a district with separate,
detached territory can still be contiguous——so long as the
detached territory is a "municipal island"9 and the main body of
9Municipal islands are portions of a municipality separated
from the main body of the municipality. Municipal islands are
created via annexation, either because a municipality has
annexed the island, or because a municipality has annexed
territory in such a way as to isolate a portion of another
municipality. No party disputes that municipal islands created
by annexation are themselves permissible. This court said as
much in Town of Blooming Grove v. City of Madison, 275 Wis. 342,
347-48 81 N.W.2d 721 (1957), when it held that the City of
Madison was not prohibited from annexing portions of the Town of
Blooming Grove in such a way that separated unincorporated
portions of Blooming Grove from one another.
12
the municipality is located elsewhere in the district. The
Legislature refers to this as "political contiguity." Adopting
the concept of political contiguity would essentially require us
to read an exception into the contiguity requirements——that
district territory must be physically touching, except when the
territory is a detached section of a municipality located in the
same district.
¶19 We decline to read a political contiguity exception
into Article IV's contiguity requirements. The text contains no
such exception. Both Section 4 and Section 5 include the
discrete requirement that districts be composed of contiguous
territory. There are no exceptions to contiguity in the
constitution's text, either overt or fairly implied. True,
assembly districts must also be "in as compact form as
practicable" and "bounded by county, precinct, town or ward
lines," but the existence of additional requirements does not
constrain or limit the separate requirement that district
territory be contiguous.
¶20 Contiguity is binary: territory is either contiguous
(touching, in contact) or it is not (separate, detached). See
Johnson v. State, 366 S.W.3d 11, 24, 30 (Mo. 2012) (en banc)
(describing contiguity as "an absolute standard that either is
satisfied or not satisfied by the challenged map" because it is
"free of any phrase that could broaden the meaning of
'contiguous.'"). In this respect, the contiguity requirements
are unlike, for example, the provision of Article IV, Section 4
that requires districts be "in as compact form as practicable."
13
Contiguity is not required only when it is practicable——it is a
constitutional imperative for all districts.
B. Precedent
¶21 This straightforward understanding of contiguity has
been twice confirmed by this court: first in Chicago & Northwest
Railway Co. v. Town of Oconto, 50 Wis. 189, 196, 6 N.W. 607(1880), and then twelve years later in State ex rel. Lamb v.
Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892). In Oconto, we
determined that "separate, detached" territory was not
contiguous:
To so construe the constitution as to [allow towns to]
be composed of separate, detached, and non-contiguous
territory, would most unquestionably restrict the
sovereign power of the legislature in the organization
of assembly districts 'consisting of contiguous
territory, and bounded by county, precinct, town, or
ward lines.' Article 4, § 4, Const.10
50 Wis. at 196. In Lamb, we addressed the question of district
contiguity head on, stating that Article IV, Section 4 "requires
that each assembly district must consist of contiguous
territory; that is to say, it cannot be made up of two or more
pieces of detached territory." Lamb, 83 Wis. at 148. Simply
put, this court understood the contiguity requirement to mean
just what it says: Districts must be made up of contiguous
This court later clarified that Oconto's holding on town
10
contiguity did not prohibit municipalities from annexing
territory in a way that created municipal islands, reasoning in
part that annexation of some areas within a town did not change
town boundaries, which stretched across both incorporated and
unincorporated areas. Thus, all parts of the town remained
contiguous. Town of Blooming Grove v. City of Madison, 275 Wis.
342, 346-47, 81 N.W.2d 721 (1957). Blooming Grove expressly
declined to address the impact of town contiguity on legislative
districts, and did not revise our underlying definition of
contiguity itself. Id. at 346-48.
14
territory——i.e., territory that is not separate or detached, but
physically touching.
¶22 Respondents argue that this court's Johnson decisions
support their position——that the contiguity requirements are
satisfied even when a district includes detached territory, so
long as that territory is a municipal island. The following is
the full extent of our municipal island analysis in Johnson I:
Article IV, Section 4 of the Wisconsin Constitution
further commands assembly districts be "contiguous,"
which 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).
Johnson I, 399 Wis. 2d 623, ¶36. We twice repeated our cursory
treatment of contiguity in Johnson II and Johnson III. See
Johnson II, 400 Wis. 2d 626, ¶36; Johnson III, 401 Wis. 2d 198,
¶70.
¶23 We take a moment to briefly examine Prosser v.
Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992), the source
of Johnson I's proposition that districts can be legally
contiguous if they include detached portions of a municipality.
In Prosser, a federal district court determined that lack of
contiguity in legislative maps was not "a serious demerit," and
noted that the Wisconsin Legislature "treat[ed] islands as
contiguous with the cities or villages to which they belong."
Prosser, 793 F. Supp. at 866. The Prosser court did not examine
15
this court's precedent, but instead cited to two statutes,11 one
of which had been repealed by the time of our Johnson I
decision. Id.¶24 Our reliance on Prosser was in error. To the extent
that Johnson's passing statements about the contiguity
requirements of Article IV, Sections 4 and 5 represent binding
precedent, we overrule them. As a court, "we have repeatedly
recognized the importance of stare decisis to the rule of law."
State v. Johnson, 2023 WI 39, ¶19, 407 Wis. 2d 195, 990 N.W.2d
174. But one situation in which we may depart from stare
decisis is when a decision is "unsound in principle" because it
"misapplies the Wisconsin Constitution." State v. Roberson,
2019 WI 102, ¶51, 389 Wis. 2d 190, 935 N.W.2d 813. Johnson is
unsound in principle because it misapplied the constitution in
three ways. First, Johnson failed to analyze the contiguity
requirements evident in the text of the constitution. Second,
Johnson did not attempt to square its view of contiguity with
the court's precedential decisions regarding the constitution's
contiguity requirements in Oconto or Lamb. Third, Johnson I
relied entirely upon Prosser12 which itself ignored the ordinary
meaning of the constitutional text and instead pointed to two
statutes, one of which had been repealed by the time of the
Johnson I decision. Under these circumstances, we would "do
Namely, Wis. Stat. §§ 4.001(3); 5.15(1)(b) (1991-92).
11
Neither statute defines what the constitution requires, and in
any event, § 4.001(3) was repealed in 2011. 2011 Wis. Act 43.
§ 2.
We note that "federal district court cases are not
12
binding authority on this court." State v. Wood, 2010 WI 17,
¶18, 323 Wis. 2d 321, 780 N.W.2d 63.
16
more damage to the rule of law by obstinately refusing to admit
[our] error, thereby perpetuating injustice, than by" overruling
this part of Johnson. Roberson, 389 Wis. 2d 190, ¶49. We
therefore hold that, notwithstanding any statements to the
contrary in Johnson, Article IV, Sections 4 and 5 mean what they
say——districts must be composed of contiguous territory; i.e.,
territory that is touching, not separate or detached.
C. Persuasive Authority
¶25 Although we are not bound by other states'
interpretations of district contiguity requirements, we are
persuaded by their near-uniform acceptance that "contiguous
territory" does indeed mean territory that is touching, not
separate or detached.13 See, e.g., Below v. Gardner, 963 A.2d
785, 792 (N.H. 2002) ("Courts generally agree that contiguous
territory is territory that touches, adjoins or is connected, as
distinguished from territory that is separated by other
territory."); In re Legislative Districting of State, 475 A.2d
428, 437 (Md. 1982) ("[C]ontiguous territory is territory
touching, adjoining and connected, as distinguished from
territory separated by other territory."); Hickel v. Se. Conf.,
846 P.2d 38, 45 (Alaska 1992) ("Contiguous territory is
See Yunsieg P. Kim & Jowei Chen, Gerrymandered by
13
Definition: The Distortion of "Traditional" Districting Criteria
and A Proposal for Their Empirical Redefinition, 2021 Wis. L.
Rev. 101, 167 (noting that 49 states have imposed contiguity
requirements on their legislative maps); Richard G. Niemi, The
Relationship Between Votes and Seats: The Ultimate Question in
Political Gerrymandering, 33 UCLA L. Rev. 185, 187 (1985) ("That
political districts should be contiguous——that all parts of a
district should be connected——is not likely to be important in
gerrymandering cases because it is relatively
noncontroversial.").
17
territory which is bordering or touching."); Sherill v. O'Brien,
81 N.E. 124, 131 (N.Y. 1907) ("The ordinary and plain meaning of
the words 'contiguous territory' is not territory nearby, in the
neighborhood or locality of, but territory touching, adjoining,
and connected, as distinguished from territory separated by
other territory."). This understanding of contiguous remains
the same even for states, like ours, that allow non-contiguous
municipal annexation. See, e.g., Stephenson v. Bartlett, 582
S.E.2d 247, 254 (N.C. 2003) (upholding a lower court decision
holding that contiguity means sharing "a common boundary", even
though N.C. Gen. Stat. § 160A-58.1 allows for non-contiguous
municipal annexation). Clearly, the holding of this court is
not novel. We are simply giving effect to a constitutional
contiguity requirement as so many other courts have done.
¶26 The few contiguity-related issues that other courts
have genuinely grappled with are edge cases that arise when
district territory is connected only by water, or when
contiguity is technically achieved, but barely (for example,
when territory is connected only at a single point). When edge
cases arise, courts still understand that parts of a district
may not be separated by other districts. See Wilkins v. West,
571 S.E.2d 100, 109 (Va. 2002) (holding a district was
contiguous over water, while noting that "clearly, a district
that contained two sections completely severed by another land
mass would not meet this constitutional requirement [of
contiguity]."). In other words, the existence of edge cases
does not justify abandoning the requirement that territory must
18
indeed be touching to be contiguous. To clarify matters for the
remedial process, we discuss these ancillary issues next.
D. Ancillary Issues: Water Contiguity and Touch-Point
Contiguity
¶27 Like many other states, Wisconsin's geography is such
that certain districts span bodies of water.14 This does not, by
itself, violate the contiguity requirement. A district can
still be contiguous if it contains territory with portions of
land separated by water. See Johnson v. State, 366 S.W.3d at 31
(noting that "the dictionary definition of 'territory'
references a geographic area without regard to whether the
portions of the land within the geographic area are split by
large rivers or other bodies of water."). This understanding of
water contiguity is common in states that include or border
bodies of water. See, e.g., Wilkins, 571 S.E.2d at 109 ("[N]o
one disputes that the geography and population of this
Commonwealth necessitate that some electoral districts include
water, and that land masses separated by water may nevertheless
satisfy the contiguity requirement in certain circumstances.");
Hickel, 846 P.2d at 45 ("Absolute contiguity of land masses is
impossible in Alaska, considering her numerous archipelagos.
Accordingly, a contiguous district may contain some amount of
open sea."); Parella v. Montalbano, 899 A.2d 1226, 1255 (R.I.
2006) ("In the instant matter, while the districts are not
contiguous on land, this Court finds that the districts are
For instance, Madeline Island in Ashland County does not
14
have sufficient population to constitute its own district, so
any district that includes it will have to span across a portion
of Lake Superior.
19
contiguous on the basis of shore-to-shore contiguity."). As in
these states, the fact that a district's territory includes land
separated by water will not, by itself, defeat the contiguity
requirements in Article IV, Sections 4 and 5.
¶28 In addition to water-contiguity, we must also address
the issue of "touch-point contiguity." Touch-point contiguity
occurs when territory is contiguous only because it is joined at
a single point. Some states allow touch-point contiguity, and
some do not. Compare Stephenson, 582 S.E.2d at 254 (affirming a
trial court's finding that "a district whose parts are 'held
together' by the mathematical concept of 'point contiguity' does
not meet the . . . criteria for contiguity."), with In re 1983
Legislative Apportionment of House, Senate, & Cong. Districts,
469 A.2d 819, 831 (Me. 1983) (holding that a district that was
contiguous only at a single point "approach[ed] the limits of
what is constitutionally permissible," but still met the
contiguity requirement).
¶29 For our purposes, since territory that touches at a
single point is indeed touching, touch-point contiguity alone
does not violate the contiguity requirement. Although touch-
point contiguity can be a "sign that traditional districting
criteria were compromised," Covington v. North Carolina, 316
F.R.D. 117, 141 (M.D.N.C. 2016), aff'd, 581 U.S. 1015 (2017)
(citing Shaw v. Reno, 509 U.S. 630, 636 (1993)), such concerns
are better addressed by examining redistricting criteria as a
20
whole rather than complicating the otherwise simple contiguity
requirement.15
E. The Current Maps' Non-Contiguity
¶30 Having determined that "contiguous territory" means
that the territory must be actually touching, we now turn to the
current legislative maps. We examine the current maps and
conclude that the non-contiguous districts violate the
requirements set out in Article IV, Sections 4 and 5 of the
Wisconsin Constitution.
¶31 None of the parties disputes that the current
legislative maps contain districts with discrete pieces of
territory that are not in actual contact with the rest of the
district. We again look at the example of Assembly District 47
which plainly includes separate, detached parts:
15A district with only touch-point contiguity may not be as
compact as reasonably practicable, for example. See Wis. Const.
art. IV, §§ 4-5.
21
¶32 Assembly district 53 in the Oshkosh area is another
such example, with multiple separate, detached parts:
22
Assembly district 68 in the Eau Claire area (in yellow below) is
another:
23
¶33 Many senate districts also contain separate, detached
parts. District 22 in the Racine area, shown in orange and
purple below, is one example:
District 27, shown in orange, purple, and green below, is
another:
24
¶34 In total, at least 50 assembly districts and at least
20 senate districts include separate, detached parts. That is
to say, a majority of the districts in both the assembly and the
senate do not consist of "contiguous territory" within the
meaning of Article IV, Section 4, nor are they "of convenient
contiguous territory" within the meaning of Article IV, Section
5. Therefore, we hold that the non-contiguous legislative
districts violate the Wisconsin Constitution.
¶35 We would be remiss to end our discussion on contiguity
without emphasizing that contiguity is "not just a gracenote in
the score of democracy; it is crucial, both practically and
theoretically." Daniel D. Polsby & Robert D. Popper, The Third
Criterion: Compactness as a Procedural Safeguard Against
Partisan Gerrymandering, 9 Yale L. & Pol'y Rev. 301, 330 (1991).
The contiguity requirement (along with compactness) helps make
for districts that are more geographically cohesive——and
therefore more likely to reflect a reasonably homogeneous slate
of interests than districts with scattered pockets of isolated
communities. Additionally, drafters of contiguity requirements
have viewed contiguity as no mere technical requirement, but as
an important tool to constrain districting practices they
consider undesirable. See Rucho v. Common Cause, 588 U.S. ___,
139 S. Ct. 2484, 2495 (2019) (noting that the Apportionment Act
of 1842 required contiguity "in an attempt to forbid the
practice of the gerrymander"); Pearson v. Koster, 359 S.W.3d 35,
38 (Mo. 2012) (stating that the purpose of a contiguity
requirement was "to guard, as far as practicable, under the
system of representation adopted, against a legislative evil,
25
commonly known as the gerrymander" (citation omitted)); Hickel,
846 P.2d at 45 ("[T]he requirements of contiguity, compactness
and socio-economic integration were incorporated by the framers
of the reapportionment provisions to prevent gerrymandering").
We decline to chip away at such a consequential districting
requirement by approving an exception not found in our
constitution's text.
III. DEFENSES
¶36 Having determined that the non-contiguous legislative
districts violate the Wisconsin Constitution, we now turn to
Respondents' motion to dismiss and explain why none of their
proffered defenses preclude us from holding in favor of
Petitioners on the merits.
¶37 In their motion to dismiss and other briefing,
Respondents maintain that Petitioners lack standing to challenge
the contiguity of the current legislative districts, and that
their claims are barred by laches, preclusion, and estoppel.
Additionally, Respondents contend that this case is an
impermissible collateral attack on this court's judgment in
Johnson III, and that, as a result, neither the declaratory nor
the injunctive relief Petitioners seek is available.16 We
conclude that Respondents' defenses do not apply, and that
Respondents also make a brief argument that adjudicating
16
this case in Petitioners' favor will violate Respondents' due
process rights under the Fourteenth Amendment of the United
States Constitution. These arguments are underdeveloped, and as
such, we do not address them. See Casanova v. Polsky, 2023 WI
19, ¶44, 406 Wis. 2d 247, 986 N.W.2d 780 ("[W]e need not address
underdeveloped arguments.").
26
declaratory and injunctive relief are available. Accordingly,
we deny the motion to dismiss.17
A. Standing
¶38 At the outset, we deny Respondents' motion to dismiss
for lack of standing. The Governor indisputably has standing,
and that is all that is required for this case to proceed.
¶39 Respondents do not argue that the Governor lacks
standing, nor could they. Our cases make clear that "the state,
acting either through the Governor or the Attorney General, may
challenge the constitutionality of a state reapportionment plan
as a violation of state constitutional rights of the citizens."
State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 552, 126
N.W.2d 551 (1964) (emphasis added).18 Importantly, as long as
17The Clarke and Wright Petitioners assert that the motion
to dismiss is procedurally improper because the rules governing
original actions do not permit it, see Wis. Stat. § (Rule)
809.70, and because we implicitly rejected these arguments when
we granted in part leave to commence this original action.
Since we reject Respondents' arguments on the merits, we need
not address the procedural propriety of the motion.
18 State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126
N.W.2d 551 (1964) involved a challenge based on equal
population, but it supported its proposition that the governor
had standing by pointing to cases in which the executive branch
challenged maps on other state constitutional grounds, including
contiguity. Id. at 552 n.3 (citing State ex rel. Att'y Gen. v.
Cunningham, 81 Wis. 440, 51 N.W. 724 (1892)). Therefore, it is
difficult to see why Reynolds' holding would be limited to equal
population challenges, particularly given Reynolds' broad
language referring to "violation[s] of state constitutional
rights of the citizens." Id. at 552.
27
one of the Petitioners has standing, this case may proceed.19
See City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 232,
332 N.W.2d 782 (1983) ("Having determined that one party has
standing to maintain this action, we next turn to the merits.");
see also Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 894
F.3d 807, 813 (7th Cir. 2018) ("As long as there is at least one
individual plaintiff who has demonstrated standing to assert
these rights as his own, a court need not consider whether the
other plaintiffs . . . have standing to maintain the suit."
(quoting Bond v. Utreras, 585 F.3d 1061, 1070 (7th Cir. 2009))
(quotation marks omitted)). Accordingly, we need not address
Respondents' standing arguments further.
B. Laches, Issue Preclusion, Claim Preclusion, and Judicial
Estoppel
¶40 For a myriad of reasons, Respondents have failed to
demonstrate that Petitioners' claims are barred by laches, issue
preclusion, claim preclusion, or judicial estoppel.
1. Laches
¶41 Laches is an affirmative defense that applies when the
failure to promptly bring a claim prejudices the party defending
against that claim. See Wis. Small Bus. United, Inc. v.
Brennan, 2020 WI 69, ¶12, 393 Wis. 2d 308, 946 N.W.2d 101. A
laches defense has three elements: "(1) a party unreasonably
delays in bringing a claim; (2) a second party lacks knowledge
The fact that the Governor is an intervenor-petitioner is
19
immaterial. When a party intervenes, they become "a full
participant in the proceedings, having all the same rights as
all other parties to the action." Democratic Nat'l Comm. v.
Bostelmann, 2020 WI 80, ¶9, 394 Wis. 2d 33, 949 N.W.2d 423.
28
that the first party would raise that claim; and (3) the second
party is prejudiced by the delay." Id. (citing State ex rel.
Wren v. Richardson, 2019 WI 110, ¶15, 389 Wis. 2d 516, 936
N.W.2d 587).
¶42 Respondents have failed to demonstrate two necessary
elements of laches: unreasonable delay and prejudice. Taking
unreasonable delay first, this case was filed less than a year-
and-a-half after Johnson III adopted the state legislative
district maps at issue in this case. Johnson III was decided on
April 15, 2022, the last possible day for districts to be
established prior to the 2022 fall elections. See Johnson III,
401 Wis. 2d 198, ¶138 (Rebecca Grassl Bradley, J., concurring)
(explaining that "Wisconsin law authorizes candidates to begin
circulating nomination papers for [the fall] primary on April
15."). Petitioners ran out of time and could not obtain relief
prior to the 2022 elections. As a result, Petitioners decided
to request relief in time for the 2024 elections——the soonest
elections for which relief could be granted. Given the timing of
legislative elections, filing this case in August of 2023 is not
unreasonable delay. See also State ex rel. Lopez-Quintero v.
Dittmann, 2019 WI 58, ¶28 387 Wis. 2d 50, 928 N.W.2d 480("'[T]he overriding responsibility of [the Supreme] Court is to
the Constitution of the United States' and of this court, to the
Wisconsin Constitution as well, 'no matter how late it may be
that a violation of the Constitution is found to exist.'"
(quoting Chessman v. Teets, 354 U.S. 156, 165 (1957))).
¶43 As for prejudice, Respondents have not demonstrated
any relevant prejudice stemming from Petitioners' delay. The
29
only harms Respondents cite are litigation costs (both in
Johnson and in this case) and vague assertions about disruption
to the status quo. But litigation costs alone cannot constitute
prejudice for laches purposes, and any disruption to the current
state legislative districts is necessary to serve the public's
interest in having districts that comply with each of the
requirements of the Wisconsin Constitution. See, e.g., Goodman
v. McDonnell Douglas Corp., 606 F.2d 800, 808 (8th Cir. 1979)
(rejecting the argument that "the cost of litigation . . . by
itself could constitute prejudice within the contemplation of a
laches defense."). Accordingly, we hold that laches does not
apply.20
2. Issue Preclusion
¶44 Issue preclusion is an equitable defense that "is
designed to limit the relitigation of issues that have been
actually litigated in a previous action." Dostal v. Strand,
2023 WI 6, ¶22, 405 Wis. 2d 572, 984 N.W.2d 382 (quoting Aldrich
v. LIRC, 2012 WI 53, ¶88, 341 Wis. 2d 36, 814 N.W.2d 433). In
an issue preclusion analysis, we determine: (1) whether issue
preclusion can be applied as a matter of law, and (2) if so,
whether applying issue preclusion would be "fundamentally fair."
Id., ¶23. Issue preclusion can be applied as a matter of law
We also note that this case is distinguishable from Trump
20
v. Biden, 2020 WI 91, Wis. 2d 629, 951 N.W.2d 568, where we were
asked to overturn the results of a legally conducted election,
and we held that several of the claims failed under the doctrine
of laches. Here we are asked to determine whether state
legislative maps are constitutional, and because we determine
they are not, we establish a process going forward so that
constitutional maps are adopted in time for the next election.
30
when a factual or legal issue was "actually litigated and
determined in the prior proceeding by a valid judgment in a
previous action" and "the determination was essential to the
judgment." Id., ¶24; see also N. States Power Co. v. Bugher,
189 Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995).
¶45 Issue preclusion does not bar Petitioners' contiguity
claims because contiguity was not actually litigated in
Johnson.21 In Johnson, all agreed that the state legislative
districts enacted in 2011 were unconstitutional due to
population shifts that occurred prior to the 2020 census.
Johnson I, Wis. 2d 623, ¶2. The sole claim in Johnson was
malapportionment. Of import, none of the parties argued that
either the 2011 state legislative districts or any of the
parties' proposed remedial district maps violated the
constitution's contiguity requirements. Indeed, in their
briefing, the Johnson parties scarcely mentioned contiguity at
all. As discussed above, when the parties did mention
contiguity, they primarily cited Prosser, 793 F. Supp. at 866, a
non-binding federal district court decision, which said
(contrary to this court's prior precedent), the Wisconsin
Since we determine that issue preclusion cannot be
21
applied because Petitioners' contiguity claim was not actually
litigated, we do not reach the second question of whether the
application of issue preclusion is "fundamentally fair." See
Dostal v. Strand, 2023 WI 6, ¶23, 405 Wis. 2d 572, 984 N.W.2d
382.
31
constitution does not require "literal contiguity."22 Under
these circumstances, we hold that no party in Johnson "actually
litigated" whether the current state legislative districts
satisfy Article IV, Sections 4 and 5's contiguity requirements.23
Therefore, issue preclusion does not apply in this case.
22 Moreover, before we decided Johnson I, we ordered the
parties to submit a joint stipulation of facts and law. In that
joint stipulation, the parties agreed that "[c]ontiguity for
state assembly districts is satisfied when a district boundary
follows municipal boundaries. Municipal 'islands' are legally
contiguous with the municipality to which the 'island' belongs."
This further underscores the fact that no party in Johnson
actually litigated the issue of contiguity. See also City of
Sheboygan v. Nytsch, 2006 WI App 191, ¶12, 296 Wis. 2d 73, 722
N.W.2d 626 (quoting Restatement (Second) of Judgments § 27 cmt.
e (1982)) (explaining an issue is not actually litigated for
issue-preclusion purposes when the issue is resolved by
stipulation of the parties), vacated in part on other grounds
2008 WI 64, ¶5, 310 Wis. 2d 337, 750 N.W.2d 475. Such an
agreement also undermines Respondents' argument that judicial
estoppel should bar the Petitioners' contiguity claim, as will
be explained later.
23 Even if contiguity were actually litigated, the Clarke
Petitioners (and several of the Wright Petitioners) were not
parties in Johnson, nor do they have a "sufficient identity of
interest" with any of the Johnson parties to preclude them from
litigating the issue here. See Paige K.B. ex rel. Peterson v.
Steven G.B., 226 Wis. 2d 210, 223, 594 N.W.2d 370 (1999). The
United States Supreme Court has emphasized that applying "issue
preclusion to nonparties" raises due process issues and "runs up
against the 'deep-rooted historic tradition that everyone should
have his [or her] own day in court.'" Taylor v. Sturgell, 553
U.S. 880, 892-93 (2008) (quoting Richards v. Jefferson County,
517 U.S. 793, 798 (1996)). Respondents' only argument regarding
the Clarke Petitioners is that they have sufficient identity of
interest with the parties in Johnson since some of the Clarke
Petitioners' attorneys represented other parties in Johnson.
But the identity of the lawyers hired by the Clarke Petitioners
is irrelevant to whether the Clarke Petitioners' due process
rights were protected. See Taylor, 553 U.S. at 892-93. Thus,
our decisions in Johnson cannot preclude the Clarke Petitioners
from raising the contiguity issue here.
32
3. Claim Preclusion
¶46 We also reject Respondents' argument that the
Governor's and the Wright Petitioners' contiguity claims are
barred by claim preclusion. Unlike issue preclusion, which
applies only to issues that were actually litigated in a prior
proceeding, claim preclusion prevents relitigation of "all
matters 'which were litigated or which might have been litigated
in the former proceedings.'" Kruckenberg v. Harvey, 2005 WI 43,
¶19, 279 Wis. 2d 520, 694 N.W.2d 879 (quoting Sopha v. Owens-
Corning Fiberglas Corp., 230 Wis. 2d 212, 233, 601 N.W.2d 627(1999)). Claim preclusion has three requirements: "(1)
identity between the parties or their privies in the prior and
present suits; (2) prior litigation resulted in a final judgment
on the merits by a court with jurisdiction; and (3) identity of
the causes of action in the two suits." Sopha, 230 Wis.2d at
233-34.
¶47 Claim preclusion does not apply to the Governor's or
the Wright Petitioners' claims because this case and Johnson
involve different causes of action. In determining whether
causes of action are identical for claim-preclusion purposes,
Wisconsin applies the "transactional approach," which views
claims "in factual terms and coterminous with the transaction,
rather than in terms of legal theories." Fed. Nat'l Mortg.
Ass'n v. Thompson, 2018 WI 57, ¶¶33-34, 381 Wis. 2d 609, 912
N.W.2d 364. Put another way, we look to whether there is a
shared set of operative facts at issue in the two proceedings,
not whether the two cases involved similar or related legal
theories. See id., ¶34.
33
¶48 Applying the transactional approach, we conclude that
the causes of action in Johnson and here are fundamentally
different. Johnson involved claims regarding the legislatively
enacted 2011 state legislative maps which became
unconstitutionally malapportioned after the 2020 census.
Everyone agreed that the maps were unconstitutionally
malapportioned. The operative facts in Johnson thus concerned
only the 2011 maps and the 2020 census results. In this case,
by contrast, the Governor and the Wright Petitioners argue that
the Johnson remedy was unconstitutional on grounds not raised in
Johnson. None of the apportionment facts underlying Johnson are
relevant to that remedy question; only the maps the court
adopted at the conclusion of that case are pertinent.
Therefore, the judgment in Johnson does not preclude either the
Governor's or Wright Petitioners' contiguity claims.24
4. Judicial Estoppel
¶49 Respondents also contend that the Governor and Wright
Petitioners are judicially estopped from asserting contiguity
Additionally, because claim preclusion requires "identity
24
between the parties or their privies in the prior and present
suits," it cannot apply to Wright Petitioners Atkinson, Kane,
and Dudley, who were not parties in Johnson. Kruckenberg v.
Harvey, 2005 WI 43, ¶21, 279 Wis. 2d 520, 694 N.W.2d 879.
Although the Legislature argues that these individuals may be
precluded based on their "identity of interest" with the other
Wright Petitioners, the case they cite involves issue
preclusion, not claim preclusion. See Paige K.B., 226
Wis. 2d at 226. In the claim-preclusion context, privity or an
"absolute identity of interest," such as successorship-in-
interest, is required. Pasko v. City of Milwaukee, 2002 WI 33,
¶18, 252 Wis. 2d 1, 643 N.W.2d 72. Because Respondents have not
established such a relationship, claim preclusion cannot be
applied to these individuals.
34
arguments inconsistent with those asserted in Johnson. See
Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶22, 281 Wis. 2d 448,
699 N.W.2d 54 ("Judicial estoppel precludes a party from
asserting one position in a legal proceeding and then
subsequently asserting an inconsistent position."). There are
three requirements for applying judicial estoppel: "(1) the
later position must be clearly inconsistent with the earlier
position; (2) the facts at issue should be the same in both
cases; and (3) the party to be estopped must have convinced the
first court to adopt its position." Salveson v. Douglas County,
2001 WI 100, ¶38, 245 Wis. 2d 497, 630 N.W.2d 182. Even when
all of these elements are met, the court applies judicial
estoppel at its discretion. See State v. Harrison, 2020 WI 35,
¶21, 391 Wis. 2d 161, 942 N.W.2d 310. Because judicial estoppel
is meant to prevent "cold manipulation and not unthinking or
confused blunder, it has never been applied where plaintiff's
assertions were based on fraud, inadvertence, or mistake."
State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996)
(citing State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837(Ct. App. 1993)).
¶50 We decline to exercise our discretion to apply
judicial estoppel here. Even assuming the elements of judicial
estoppel were met, there are compelling public policy reasons
why this court should not exercise its discretion to apply
estoppel in this case. As for the Governor, "[a]s a general
rule the doctrine of estoppel will not be applied against the
public, the United States government, or the state governments,
where the application of that doctrine would encroach upon the
35
sovereignty of the government and interfere with the proper
discharge of governmental duties." Park Bldg. Corp. v. Indus.
Comm'n, 9 Wis. 2d 78, 88, 100 N.W.2d 571 (1960) (quoting P.H.
Vartanian, Comment Note, Applicability of Doctrine of Estoppel
Against Government and its Governmental Agencies, 1 A.L.R.2d
338, 340-41 (1948)). Additionally, given the parties'
stipulation in Johnson, it is difficult to view any
inconsistency in position as "cold manipulation" which judicial
estoppel seeks to deter. Instead any inconsistency is more
easily explained as "inadvertence" or "mistake," which does not
merit judicial estoppel. Given our past case law on contiguity,
as well as the primacy of our constitution, preventing parties
from litigating this issue would not serve the goals of this
doctrine. Therefore, we decline to apply judicial estoppel.
C. Availability of Relief
¶51 Respondents contend that this case should be dismissed
because it is an impermissible collateral attack on this court's
judgment in Johnson III. According to the Respondents, the
relief Petitioners seek is unavailable as a result.
¶52 This argument comes in two parts. First, Respondents
argue that a declaratory judgment is unavailable because the
Declaratory Judgments Act, Wis. Stat. § 806.04 (2021-22),25 does
not allow the court to declare its own prior judgment
All subsequent references to the Wisconsin Statutes are
25
to the 2021-22 version unless otherwise indicated.
36
unconstitutional.26 Second, Respondents assert that in order to
challenge this court's judgment in Johnson III, Petitioners must
either: (a) demonstrate that the judgment was either issued
without jurisdiction or procured by fraud; or (b) move to reopen
or modify the judgment under Wis. Stat. § 806.07. Respondents
urge that since Petitioners have done neither, the judgment in
Johnson III may not be disturbed.
¶53 Respondents first argue that declaratory judgment is
unavailable under the Declaratory Judgments Act. Respondents
point to Wis. Stat. § 806.04(2), which provides that courts may
issue declarations resolving "any question of construction or
validity arising under" a "deed, will, written contract, or
other writings constituting a contract" or "a statute, municipal
ordinance, contract or franchise." Because prior judgments of
this court are absent from this list, Respondents reason that we
cannot declare the state legislative districts adopted in
Johnson III unconstitutional. But Respondents ignore Wis. Stat.
§ 806.04(1) and (5), which together make clear that we "have
power to declare rights, status and other legal relations" and
that sub. (2) "does not limit or restrict the exercise of" that
26In a single sentence in both its opening brief and motion
to dismiss, the Legislature additionally asserts that
declaratory relief is unavailable because Petitioners have not
complied with Wis. Stat. § 806.04(11), which requires that "all
persons shall be made parties who have or claim any interest
which would be affected by the declaration." This argument is
underdeveloped. The Legislature cites no authority suggesting
that dismissal is the proper remedy for failing to comply with
§ 806.04(11) and, in any event, the prevailing parties in
Johnson are parties to this case. Accordingly, we decline to
address this argument further. See Casanova v. Polsky, 2023 WI
19, ¶44, 406 Wis. 2d 247, 986 N.W.2d 780 ("[W]e need not address
underdeveloped arguments.").
37
general power. See § 806.04(5) (emphasis added). For this
reason, the non-exhaustive list in § 806.04(2) does not prohibit
the court from issuing the declaratory relief Petitioners
request.
¶54 Respondents' assertion that injunctive relief is not
available in this case is similarly unavailing. The argument
that injunctive relief is available only by "reopening" Johnson
and modifying its injunction under Wis. Stat. § 806.07 flies in
the face of decades of practice in redistricting cases. The
court-ordered redistricting plan adopted by the federal court in
Prosser, 793 F. Supp. 859, was enjoined by the federal court in
Baumgart v. Wendelberger, Nos. 01-C-0121, 02-C-0366, 2002 WL
34127471, at *8 (E.D. Wis. May 30, 2002). And Johnson itself
enjoined the use of a court-ordered plan adopted by the federal
courts in Baldus v. Members of Wis. Gov't Accountability Bd.,
862 F. Supp. 2d 860 (E.D. Wis. 2012). Yet neither the Johnson
nor Baumgart courts "reopened" these prior cases or modified the
injunctions issued in them. Instead, those courts simply issued
their own injunctions, superseding the previously issued
injunctions.
¶55 In summary, we determine that none of Respondents'
defenses preclude us from deciding this case on the merits. We
now turn to remedy.
IV. REMEDY
¶56 As we declared above, the current legislative maps
contain districts that violate Article IV, Sections 4 and 5 of
the Wisconsin Constitution. At least 50 of 99 assembly
districts and at least 20 of 33 senate districts contain
38
territory completely disconnected from the rest of the district.
Given this pervasiveness, a remedy modifying the boundaries of
the non-contiguous districts will cause a ripple effect across
other areas of the state as populations are shifted throughout.
Consequently, it is necessary to enjoin the use of the
legislative maps as a whole, rather than only the non-contiguous
districts. We therefore enjoin the Wisconsin Elections
Commission from using the current legislative maps in all future
elections. Accordingly, remedial legislative district maps must
be adopted. We recognize that next year's legislative elections
are fast-approaching, and that remedial maps must be adopted in
time for the fall primary in August 2024. With that in mind,
the following section first describes the role of the court in
the remedial process. Second, we articulate the principles the
court will follow when adopting remedial maps. Third, we
explain why the court is denying Petitioners' quo warranto
claim. We conclude with the next steps in the remedial process.
A. This Court's Role in Redistricting
¶57 It is essential to emphasize that the legislature, not
this court, has the primary authority and responsibility for
drawing assembly and senate districts. Jensen v. Wisconsin
Elections Board, 2002 WI 13, ¶6, 249 Wis. 2d 706 (citing Wis.
Const. art. IV, § 3). Therefore, when an existing plan is
declared unconstitutional, it is "appropriate, whenever
practicable, to afford a reasonable opportunity for the
legislature to meet constitutional requirements by adopting a
substitute measure." Wise v. Lipscomb, 437 U.S. 535, 540
(1978). There may be exceptions to this general rule, but we
39
decline Petitioners' request to apply one here. Should the
legislative process produce a map that remedies the contiguity
issues discussed above, there would be no need for this court to
adopt remedial maps.
¶58 We remain cognizant, however, of the possibility that
the legislative process may not result in remedial maps. In
such an instance, it is this court's role to adopt valid
remedial maps. Zimmerman, 22 Wis. 2d at 571 ("[W]e do not
abdicate our power to draft and execute a final plan of
apportionment which conforms to the requirements of art. IV,
Wis. Const., should the other arms of our state government be
unable to resolve their differences and adopt a valid plan.").
The United States Supreme Court has specifically recognized the
ability of a state judiciary to remedy unconstitutional
legislative districts by crafting new remedial maps. Growe v.
Emison, 507 U.S. 25, 33 (1993) ("[S]tate courts have a
significant role in redistricting. 'The power of the judiciary
of a State to require valid reapportionment or to formulate a
valid redistricting plan has not only been recognized by this
Court but appropriate action by the States in such cases has
been specifically encouraged.'" (quoting Scott v. Germano, 381
U.S. 407, 409 (1965))). And this court has exercised such
authority in the past when faced with unconstitutional maps.
See, e.g., Zimmerman, 22 Wis. 2d at 571; Johnson III, 401
Wis. 2d 198, ¶73. If the legislative process does not result in
remedial legislative maps, then it will be the job of this court
to adopt remedial maps.
40
¶59 It is important (though perhaps obvious) to note that
although we enjoin the Wisconsin Elections Commission's use of
the present maps because they contain districts that are non-
contiguous, this court must consider other districting
requirements, in addition to contiguity, when adopting remedial
maps. Just as a court fashioning a remedy in an apportionment
challenge must ensure that remedial maps comply with state and
federal law, so too must this court in remedying a different
constitutional violation.
¶60 Before laying out the principles this court will use
in adopting remedial maps, we pause to address the "least
change" approach articulated by this court in Johnson I. The
parties differ over the extent to which this court should rely
on least change in our evaluation of remedial maps. In
Respondents' view, least change should not just serve as one
principle among others, but as the predominant principle driving
the court's process in adopting new maps. Petitioners, by
contrast, offer various rationales for why least change should
not be applied at all. For the reasons set forth below, this
court will not consider least change when adopting remedial
maps.
¶61 At first glance, the concept of least change might
appear simple. At its most basic level, it is the idea that our
remedial maps "'should reflect the least change'" from the prior
maps "necessary . . . to comport with relevant legal
requirements." See Johnson I, 399 Wis. 2d 623, ¶72 (quoting
Wright, 306 F. Supp. 2d at 1237). But as this court learned
during the Johnson litigation, what appeared simple in theory
41
was far more complicated in reality. The fundamental problem in
Johnson was the inability of this court to agree upon the actual
meaning of "least change" in practice. Some members of the
court argued that least change simply meant "core retention——a
measure of voters who remain in their prior districts." Johnson
II, 400 Wis. 2d 626, ¶7 (explaining that core retention is "the
best metric of least change"). Others, who had initially
endorsed the least-change approach, insisted that core retention
was "a previously unknown[] judicial test" and an "extra-legal
criterion," and that least change actually meant minimizing
population deviations or splits of local government units. See
id., ¶¶67, 74-75 (Ziegler, C.J., dissenting); id., ¶211 (Rebecca
Grassl Bradley, J., dissenting). Because no majority of the
court agreed on what least change actually meant, the concept
amounted to little more than an unclear assortment of possible
redistricting metrics. The Johnson majority opinions never
fully enumerated these metrics or explained their relative
importance, let alone defined a least-change approach in a
coherent way. See Johnson III, 401 Wis. 2d 198, ¶¶71-72.
¶62 Additionally, least change did not fit easily or
consistently into the balance of other requirements and
considerations essential to the mapmaking process. As will be
discussed below, we must consider numerous constitutional
requirements when adopting remedial maps. We cannot allow a
judicially-created metric, not derived from the constitutional
text, to supersede the constitution. Conceivably, least change
(if actually agreed upon) could be relevant to traditional
districting criteria, commonly considered in redistricting but
42
not constitutionally or statutorily mandated. See infra, ¶68.
In that instance, least change would be secondary to the
constitutional requirements and balanced with other factors,
such as "preserving communities of interest." However, Johnson
I did not adopt a cabined approach to least change. Instead,
Johnson I declared that the overarching approach to adopting
remedial maps was for them to "reflect the least change
necessary" from the previous maps. See Johnson I, 399
Wis. 2d 623, ¶72.
¶63 As illustrated across the course of the Johnson
litigation, "least change" is unworkable in practice. As such,
we overrule any portions of Johnson I, Johnson II, and Johnson
III that mandate a least change approach. See Johnson Controls,
Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶¶98-99, 264
Wis. 2d 60, 665 N.W.2d 257 (explaining that the unworkability of
a decision is one justification for departing from precedent).
It is impractical and unfeasible to apply a standard that (1) is
based on fundamentals that never garnered consensus, and (2) is
in tension with established districting requirements. Here we
must first focus on established districting requirements set out
in state and federal law, and only then on other districting
criteria. With that in mind, we set out the following
principles that will guide the court's process in adopting
remedial maps.
B. Redistricting Principles
¶64 The following principles will guide our process in
adopting remedial legislative maps. First, the remedial maps
must comply with population equality requirements. State and
43
federal law require a state's population to be distributed
equally amongst legislative districts with only minor
deviations. Wis. Const. art. IV, § 3; Zimmerman, 22 Wis. 2d at
555-56; U.S. Const. amend XIV; Reynolds v. Sims, 377 U.S. 533,
577-79 (1964). When it comes to population equality, courts are
held to a higher standard than state legislatures as we have a
"judicial duty to 'achieve the goal of population equality with
little more than de minimis variation.'" Connor v. Finch, 431
U.S. 407, 420 (1977) (quoting Chapman v. Meier, 420 U.S. 1, 26-
27 (1975)); see Wis. State AFL-CIO v. Elections Bd., 543 F.
Supp. 630, 637 (E.D. Wis. 1982) (allowing a deviation of 1.74%
for assembly districts); Prosser, 793 F. Supp. at 866, 870(formulating a map with a total deviation of 0.52% and noting
that "[b]elow 1 percent, there are no legally or politically
relevant degrees of perfection"); Baumgart, 2002 WL 34127471, at
*7 (1.48% deviation for assembly districts); Baldus, 849 F.
Supp. 2d at 851 (0.62% deviation for senate districts and 0.76%
for assembly districts); Johnson II, 400 Wis. 2d 626, ¶36 (1.20%
for senate districts and 1.88% for assembly districts); Johnson
III, 401 Wis. 2d 198, ¶61 (0.57% deviation for senate districts
and 0.76% deviation for assembly districts).
¶65 Second, districts must meet the basic requirements set
out in Article IV of the Wisconsin Constitution. Assembly
districts must be (a) bounded by county, precinct, town or ward
lines; (b) composed of contiguous territory; and (c) in as
compact form as practicable. Wis. Const. art. IV, § 4. Senate
districts must be composed of "convenient contiguous territory."
Wis. Const. art. IV, § 5 Additionally, districts must be
44
single-member districts that meet the numbering and nesting27
requirements set out in Article IV, Sections 2, 4, and 5.
¶66 The contiguity requirement for assembly and senate
districts was discussed at length above. To reiterate, for a
district to be composed of contiguous territory, its territory
must be touching such that one could travel from one point in
the district to any other point in the district without crossing
district lines. As to the "bounded" requirement, this court
considers the extent to which assembly districts split counties,
towns, and wards28 (particularly towns and wards as the smaller
political subdivisions), although we no longer interpret the
requirement to entirely prohibit any splitting of the enumerated
political subdivisions, as we once did. See Johnson I, 399
Wis. 2d 623, ¶35; AFL-CIO, 543 F. Supp. 630, 635-36 (E.D. Wis.
1982); Baumgart, 2002 WL 34127471, at *3. Compactness is
generally defined as "closely united in territory," see AFL-CIO
543 F. Supp. at 634, although this court has never adopted a
particular measure of compactness. See Johnson I, 399
Wis. 2d 23, ¶37.
¶67 Third, remedial maps must comply with all applicable
federal law. In addition to the population equality requirement
27 Assembly districts must be "nested" within a senate
district——that is, "no assembly district shall be divided in the
formation of a senate district." Wis. Const. art. IV, § 5.
Additionally, Wis. Stat. § 4.001 requires that there be "33
senate districts, each composed of 3 assembly districts."
28 The "bounded" requirement also refers to precincts, but
"the precinct of the constitution disappeared when the uniform
system of town and county government prescribed by the
constitution (article 4, § 23) became fully operative."
Cunningham, 81 Wis. at 520 (Lyon, C.J., concurring).
45
discussed above, maps must comply with the Equal Protection
Clause and the Voting Rights Act of 1965. See Wis. Legislature
v. Wis. Elections Comm'n, 595 U.S. 398, 401 (2022) (explaining
that race-conscious districting is permitted by the Equal
Protection Clause only if strict scrutiny is satisfied).
¶68 Fourth, the court will consider other traditional
districting criteria not specifically outlined in the Wisconsin
or United States Constitution, but still commonly considered by
courts tasked with formulating maps. These other traditional
districting criteria include reducing municipal splits29 and
preserving communities of interest. See AFL-CIO, 543 F. Supp.
at 636 (comparing the number of municipal splits across maps);
Baldus, 849 F. Supp. 2d at 856-57 (considering whether district
lines were disruptive to a community of interest). These
criteria will not supersede constitutionally mandated criteria,
such as equal population requirements, but may be considered
when evaluating submitted maps. AFL-CIO, 543 F. Supp. at 636(considering the number of municipal splits, but acknowledging
that "the splitting of municipal boundaries is necessary to
adhere to the one person, one vote, principle.").
¶69 Fifth, we will consider partisan impact when
evaluating remedial maps. When granting the petition for
original action that commenced this case, we declined to hear
Municipalities include towns, cities, and villages.
29
Although Article IV, Section 4's "bounded by" requirement refers
to towns, it does not refer to city or village boundaries, or
"municipal" boundaries in general. As such, consideration of
municipal splits does not derive from our constitution.
Nonetheless, this court has still considered the number of
municipal splits when evaluating maps. See Johnson III, 401
Wis. 2d 198, ¶69.
46
the issue of whether extreme partisan gerrymandering violates
the Wisconsin Constitution. As such, we do not decide whether a
party may challenge an enacted map on those grounds.
¶70 However, that does not mean that we will ignore
partisan impact in adopting remedial maps. Unlike the
legislative and executive branches, which are political by
nature, this court must remain politically neutral. We do not
have free license to enact maps that privilege one political
party over another. Our political neutrality must be maintained
regardless of whether a case involves an extreme partisan
gerrymandering challenge. As we have stated, "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." Jensen, 249 Wis. 2d 706, ¶12
(quoting Prosser, 793 F. Supp. at 867). Other courts have held
the same. See Baumgart, 2002 WL 34127471, at *3 (also quoting
Prosser, 793 F. Supp at 867); Burling v. Chandler, 804 A.2d 471,
483 (N.H. 2002) (devising its own redistricting plan because
"[e]ach plan ha[d] calculated partisan political consequences");
Peterson v. Borst, 786 N.E.2d 668, 673 (Ind. 2003) ("Whatever
role politics may legitimately play in the decisions and
maneuverings of the legislative and executive branches, if those
branches cannot reach a political resolution and the dispute
spills over into an Indiana court, the resolution must be
judicial, not political."); Maestas v. Hall, 274 P.3d 66, 76
(N.M. 2012) ("A court's adoption of a plan that represents one
47
political party's idea of how district boundaries should be
drawn does not conform to the principle of judicial independence
and neutrality.").
¶71 It bears repeating that courts can, and should, hold
themselves to a different standard than the legislature
regarding the partisanship of remedial maps. As a politically
neutral and independent institution, we will take care to avoid
selecting remedial maps designed to advantage one political
party over another. Importantly, however, it is not possible to
remain neutral and independent by failing to consider partisan
impact entirely. As the Supreme Court recognized in Gaffney v.
Cummings, 412 U.S. 735, 753 (1973), "this politically mindless
approach may produce, whether intended or not, the most grossly
gerrymandered results." As such, partisan impact will
necessarily be one of many factors we will consider in adopting
remedial legislative maps, and like the traditional districting
criteria discussed above, consideration of partisan impact will
not supersede constitutionally mandated criteria such as equal
apportionment or contiguity.
C. Petitioners' Quo Warranto Claim
¶72 Before we explain the process by which the court will
adopt remedial maps, we turn to the Petitioners' request for us
to order special elections in 2024 for senators in odd-numbered
districts who would otherwise not be up for reelection until
2026. The Petitioners ground this request in a request for a
writ quo warranto, arguing that state senators have "usurp[ed],
intrud[ed] into or unlawfully [held] or exercise[d] any public
office" and therefore should be "excluded from the office"
48
because they took office in unconstitutionally configured
districts. Wis. Stat. §§ 784.04(1)a; 784.13.
¶73 As a preliminary matter, quo warranto actions may be
brought by private individuals under Wis. Stat. § 784.04, but
the action must be in the name of the state. Wis. Stat.
§ 784.04(2); Boerschinger v. Elkay Enterprises, Inc., 26
Wis. 2d 102, 110, 132 N.W.2d 258 (1965). The Petitioners have
not brought a quo warranto action in the name of the state;
therefore, Wis. Stat. § 784.04 does not provide us the authority
to determine whether any party has a right to hold office, much
less to order any special elections. Boerschinger, 26
Wis. 2d at 110 ("In quo warranto brought under the
statute . . . the action must be in the name of the state.").
¶74 Although the quo warranto statute does not apply in
this case, we acknowledge that a party's right to a public
office can also be determined in a declaratory judgment action
when the right "is only ancillary to the principal cause of
action in the complaint." See id. at 114. However, as the
Petitioners acknowledge, courts tasked with remedying
unconstitutional maps in Wisconsin have not ordered special
elections as a remedy. Nor are special elections the standard
remedy elsewhere. See North Carolina v. Covington, 581 U.S.
486, 488 (2017) (noting that the Supreme Court has never
addressed whether a special election may be a proper remedy for
an unconstitutional racial gerrymander, and reversing a federal
district court that ordered special elections without adequately
weighing the interests at stake). We decline to implement such
a drastic remedy here.
49
D. Remedial Process
¶75 The process by which the court will adopt remedial
maps will be set out in an order issued concurrently with this
opinion. In broad strokes, all parties will be given the
opportunity to submit remedial legislative district maps to the
court, along with expert evidence and an explanation of how
their maps comport with the principles laid out in this opinion.
The court will appoint one or more consultants who will aid in
evaluating the remedial maps. Parties will have the opportunity
to respond to each other, and to the consultant's report.
¶76 We set out this process in order to afford all parties
a chance to be heard, while bearing in mind the need for
expediency given that next year's elections are fast-
approaching. We begin our process now instead of waiting to see
whether the legislative process results in new maps. In other
words, both the legislative process (should there be one) and
our process will proceed concurrently. This will allow the
court to adopt remedial legislative maps in time for the
upcoming elections if legislation creating remedial maps is not
enacted.
V. CONCLUSION
¶77 Article IV, Sections 4 and 5 of the Wisconsin
Constitution mean what they say: state legislative districts
must be composed of "contiguous territory." At least 50 of 99
assembly districts and at least 20 of 33 senate districts
violate this mandate, rendering them unconstitutional. We
therefore enjoin the Wisconsin Elections Commission from using
the current maps in all future elections. As such, remedial
50
maps must be adopted prior to the 2024 elections. We are
hopeful that the legislative process will produce new
legislative district maps. However, should that fail to happen,
this court is prepared to adopt remedial maps based on the
criteria, process, and dates set forth in this opinion and the
concurrent order.
By the Court.—Rights declared.
51
No. 2023AP1399-OA.akz
¶78 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). This
deal was sealed on election night. Four justices remap
Wisconsin even though this constitutional responsibility is to
occur every ten years, after a census, by the other two branches
of government.1 The public understands this.2 Nonetheless, four
justices impose their will on the entire Assembly and half of
the Senate, all of whom are up for election in 2024. Almost
every legislator in the state will need to respond, with
lightning speed, to the newly minted maps, deciding if they can
or want to run, and scrambling to find new candidates for new
districts.3 All of this remains unknown until the court of four,
and its hired "consultants," reveal the answer. The parties'
dilatory behavior in bringing this suit at this time should not
The Legislature exercises its constitutional authority to
1
redistrict per Wis. Const. art. IV, § 3 ("At 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 Governor exercises his constitutional
authority to either sign the legislature's maps into law or veto
them per Wis. Const. art. V, § 10(2)a.
See Marquette Law School Poll: Oct. 26-Nov.2, 2023,
2
https://law.marquette.edu/poll/wp-content/uploads/2023/11/
MLSP76Toplines.html#E8:_SCOWIS_map_case (51% of registered
voters surveyed want to "keep [current] maps in place").
Neither citizens nor legislators will know if they will
3
have the same representation or constituency, whether the
legislator still lives in the district they once represented,
whether legislators will be pitted against one another in newly
combined districts, or whether the district even resembles its
former self. We will not know implications of dual
representation for citizens who may have new and old
representation, as they may have just elected their senator
under the existing maps.
1
No. 2023AP1399-OA.akz
be rewarded by the court's granting of such an extreme remedy,
along such a constrained timeline. Big change is ahead. The
new majority seems to assume that their job is to remedy
"rigged" maps which cause an "inability to achieve a Democratic
majority in the state legislature."4 These departures from the
judicial role are terribly dangerous to our constitutional,
judicial framework. No longer is the judicial branch the least
dangerous in Wisconsin. See The Federalist No. 78, (Alexander
Hamilton) (Clinton Rossiter ed., 1961).
¶79 Redistricting was just decided by this court in the
Johnson litigation.5 This court was saddled with the
responsibility to adopt maps because the legislative and
executive branches were at an impasse, and absent court action,
4Pet. to Take Juris. of Original Action, at 8; Aug. 2,
2023, https://acefiling.wicourts.gov/document/eFiled/
2023AP001399/687203
5The phrase "Johnson litigation" (and "Johnson") throughout
this dissent refers to the redistricting original action,
Johnson v. Wisconsin Elections Commission, No. 2021AP1450-OA,
which this court decided during the 2021-22 term. See Johnson
v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623, 967
N.W.2d 469 ("Johnson I"); Johnson v. Wis. Elections Comm'n, 2022
WI 14, 400 Wis. 2d 626, 971 N.W.2d 402 ("Johnson II"), summarily
rev'd sub nom. Wis. Legislature v. Wis. Elections Comm'n, 595
U.S. 398, 142 S Ct. 1245 (2022) (per curiam); and Johnson v.
Wis. Elections Comm'n, 2022 WI 19, 401 Wis. 2d 198, 972
N.W.2d 559 ("Johnson III").
2
No. 2023AP1399-OA.akz
there would be a constitutional crisis.6 Johnson v. Wisconsin
Elections Comm'n, 2021 WI 87, ¶68, 399 Wis. 2d 623, 967
N.W.2d 469 ("Johnson I"). As a result of Johnson, there are
census-responsive maps in place. Nonetheless, the four robe-
wearers grab power and fast-track this partisan call to remap
Wisconsin. Giving preferential treatment to a case that should
have been denied smacks of judicial activism on steroids. The
court of four takes a wrecking ball to the law, making no room,
nor having any need, for longstanding practices, procedures,
traditions, the law, or even their co-equal fellow branches of
government. Their activism damages the judiciary as a whole.
Regrettably, I must dissent.
¶80 The court of four's outcome-based, end-justifies-the-
means judicial activist approach conflates the balance of
governmental power the people separated into three separate
branches, to but one: the judiciary. Such power-hungry
activism is dangerous to our constitutional framework and
undermines the judiciary. When four members of this court
"throw off constraints, revise the rules of decision, and set
6Clarke presents none of the time constraints this court
faced in Johnson I, where "judicial action [became] appropriate
to prevent a constitutional crisis." Johnson I, 399
Wis. 2d 623, ¶68. Nonetheless, the court of four rushes ahead,
making every attempt to evade judicial review, crafting the
selection of only one, not both petitions for original action,
and only two, not all, issues having no need for traditional
practice and procedure. See Clarke v. Wis. Elections Comm'n,
2023 WI 70, 409 Wis. 2d 372, 995 N.W.2d 779 (granting petition
for original action, but only with respect to issues 4 and 5);
Wright v. Wis. Elections Comm'n, 2023 WI 71, 409 Wis. 2d 417,
995 N.W.2d 771 (denying petition for leave to commence original
action).
3
No. 2023AP1399-OA.akz
the law on a new course," it is prudent for all of us to
"question whether that power has been exercised judiciously" or
whether it is instead an exercise in judicial activism.7 Today
is the latest in a series of power grabs by this new rogue court
of four, creating a pattern of illicit power aggregation which
disrupts, if not destroys, stability in the law.
¶81 This pattern of conduct is entrenched even further to
achieve particular political outcomes regardless of principles
fundamental to the constitution and the law. The court of four
accepted and now begin to decide a procedurally and legally
flawed original action in order to "take a fresh look at the
gerrymandering question"8 over maps one of them has repeatedly
called "absolutely, positively rigged."9 What other settled
areas of law might be next? Without all four members of this
court acting in lockstep, there could be no such overreach and
disrespect for the law. To be clear, it is sheer will, not the
law, which drives the decision of Justices Ann Walsh Bradley,
Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz. They may
7Diane S. Sykes, Reflections on the Wisconsin Supreme
Court, 89 Marq. L. Rev. 723, 725-26 (2006).
8Jessie Opoien and Jack Kelly, Protasiewicz would "enjoy
taking a fresh look" at Wisconsin voting Maps, The Cap Times
(Mar. 2, 2023), https://captimes.com/news/government/
protasiewicz-would-enjoy-taking-a-fresh-look-at-wisconsin-
voting-maps/article_d07fbe12-79e6-5c78-a702-3de7b444b332.html
9Paul Fanlund, Supreme Court election is a chance to beat
the far right at its long game, The Cap Times (Jan. 13, 2023),
https://captimes.com/opinion/paul-fanlund/opinion-supreme-court-
election-is-a-chance-to-beat-the-far-right-at-its-
long/article_af9b5d76-a584-54ad-9226-7c9d7a806d12.html.
4
No. 2023AP1399-OA.akz
please a particular constituency, but it is at great cost to the
judicial institution. Any one of the four could change the
trajectory set, with the courage to change their seemingly
preordained vote. But instead, each fall in line, and, like the
past, allow pure will, instead of the law, to drive and guide
the outcomes they invent.
¶82 Unfortunately, this latest unlawful power grab is not
an outlier, but is further evidence of a bold, agenda-driven
pattern of conduct. To set the stage, recall that these four
members of the court came out swinging, when they secretly and
unilaterally planned and dispensed with court practices,
procedures, traditions, and norms.10 Preordained and planned
even before day one of the new justice's term on August 1, 2023,
but unknown to the other members of the court, the four acted to
aggregate power, meeting in secret as a "super-legislature."
They met behind closed doors, at a rogue, unscheduled and
illegitimate meeting, over the protestations of their
colleagues, in violation of longstanding court rules and
procedures. Even before day one of the newest justice's term,
and before the court term started in September, they met, in
secret, to carry out their plan, only known to them, to dispense
with over 40 years of court-defined precedent. They even took
the unprecedented action to strip the constitutional power of
the chief justice, which had been understood for decades of
chief justices and different court membership, instead usurping
Press Release, Chief Justice Annette Kingsland Ziegler
10
(Aug. 4, 2023), https://www.wispolitics.com/wp-content/uploads/
2023/08/230804SCOWIS.pdf
5
No. 2023AP1399-OA.akz
that role through an administrative committee. For nearly four
decades and five chief justices, every member of the court had
respected the power the people of Wisconsin constitutionally
vested in the chief justice to administrate the court system.11
¶83 Not content with taking over the chief justice's
power, they secretly pre-planned the firing of, for admittedly
no reason, then-Director of State Courts Randy Koschnick before
the official court term had begun and before our newest
justice's term began on August 1.12 The court of four presumed
to hire a sitting circuit court judge, Audrey Skwierawski, as
the Interim Director of State Courts even though that decision
violated the public trust doctrine as set forth in the
It is noteworthy that for the first time in 26 years,
11
since 1996, our court released to the public all of its opinions
from the 2022-23 term by June 30, 2023. In addition, the court
did not have a backlog of cases entering into the 2023-24 term.
12This was another shameful incident in this raw judicial
power pattern, as Justice Jill Karofsky made it known before
Justice Protasiewicz was even sworn in that the yet-to-be-
officially-formed court of four would fire Director Koschnick.
Molly Beck and Daniel Bice, New Liberal Majority on State
Supreme Court fires Director of State Court System, Milwaukee
Journal Sentinel (Aug. 1, 2023),
https://www.jsonline.com/story/news/politics/2023/08/01/new-
majority-on-supreme-court-to-fire-director-of-state-court-
system/70502650007/
6
No. 2023AP1399-OA.akz
constitution, statutes, and case law.13 Judge Audrey Skwierawski
was recently permanently hired as Director of State Courts
despite these significant issues.14 The court should have hired
a fully qualified candidate who did not have any of these legal
impediments.
¶84 But wait: there's more. Also in an underhanded and
unprecedented manner, these four members of the court met in
secret, before the court term began, conniving and then
implementing a plan to eliminate the court of its longstanding
See Wis. Const. art. VII, § 10(1) ("No . . . judge of any
13
court of record shall hold any other office of public trust,
except a judicial office, during the term for which elected.");
Wis. Stat. § 757.02(2) ("The judge of any court of record in
this state shall be ineligible to hold any office of public
trust, except a judicial office, during the term for which he or
she was elected or appointed."); see also Wagner v. Milwaukee
Cnty. Election Comm'n, 2003 WI 103, ¶2, 263 Wis. 2d 709, 666
N.W.2d 816 (holding that the Wisconsin Constitution prohibits a
judge or justice from holding a non-judicial position of public
trust during the entire term for which he or she was originally
elected).
I requested to see and have input on the contents of the
14
press release announcing the hiring of Judge Skwierawski as the
Director before its release. However, the court of four issued
it on December 14, 2023, without that occurring. Interestingly,
they use the words "transparency and accountability" in the
press release, but those words must mean something else to them.
See "The Supreme Court of Wisconsin announces Judge Audrey K.
Skwierawski as the next Director of State Courts" (Dec. 14,
2023), https://www.wicourts.gov/news/view.jsp?id=1604#:~:text=
MADISON%2C%20Wis.,is%20effective%20December%2031%2C%202023.
In addition, aside from the public trust doctrine's
constitutional and statutory roadblocks to her serving as
Director, Judge Skwierawski is supposed to be on the bench, in
Milwaukee, serving the citizens as a duly elected, full-time
judicial officer. The court could have hired a fully qualified
candidate who did not have any of these impediments.
7
No. 2023AP1399-OA.akz
practices and procedures in violation of the existing internal
operating procedures and rules. The four conjured up new rules
and procedures that are designed to ensure complete control
over, and no speed bumps to, their preferences.
¶85 We all know that the Johnson litigation definitively
decided all issues, including contiguity. Nonetheless, the four
eagerly received this original action which the parties filed to
coincide with Justice Protasiewicz's swearing in, ensuring that
she would sit in judgment.15 And because the four had met
previously to attempt to grab all the power they could find,
this case was set to be fast-tracked and skip to the front of
the line.
¶86 The court of four conduct themselves in a manner that
lacks accountability and transparency. They exhibit a striking
pattern of disrespect for their colleagues, court practices and
procedures, the law, and the constitution. They upend the
15The majority opinion fails to mention or even acknowledge
this glaring fact, that this petition was intentionally brought
the day after the court composition changed. Why is this?
Steve Schuster, Lawsuit to challenge Wisconsin's legislative
maps to be filed, Wis. Law Journal (Apr. 6, 2023),
https://wislawjournal.com/2023/04/06/lawsuit-to-challenge-
wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law
firm is planning to challenge the state's gerrymandered
legislative maps . . . . The lawsuit will be filed after
Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole
Safar, executive director of Madison-based Law Forward,
said . . . ."); see also Jack Kelly, Liberal law firm to argue
gerrymandering violates Wisconsin Constitution, The Cap Times
(Apr. 6, 2023), https://captimes.com/news/government/liberal-
law-firm-to-arguegerrymandering-violates-wisconsin-
constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.
8
No. 2023AP1399-OA.akz
constitutional call for a court of seven, not a court of four.16
Historically, our court of seven has always met at agreed upon
dates and times, with ample notice of the issues to be
discussed, and the opportunity to hear respective, knowing
positions, only then reaching determinations. Traditions,
practices, procedures, and constitutional mandates were long
respected over many decades. Regardless of the fact that these
have been time-honored through many variations and machinations
of court membership, and over a span of five chief justices,
four rogue members of the court nonetheless brazenly seized all
the power they can find. Power at any cost is the new normal
for this crew. So, in true form to the new court of four, the
law will not stand in the way of what they wish to accomplish.
¶87 This original action, filed to coincide with the
change in court membership,17 requests this court to remedy an
"inability to achieve a Democratic majority in the state
legislature" which in turn, "harms their ability to see laws and
16Wis. Const. art. VII, § 4(1) ("The supreme court shall
have 7 members. . . .").
17Steve Schuster, Lawsuit to challenge Wisconsin's
legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023),
https://wislawjournal.com/2023/04/06/lawsuit-to-challenge-
wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law
firm is planning to challenge the state's gerrymandered
legislative maps . . . . The lawsuit will be filed after
Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole
Safar, executive director of Madison-based Law Forward,
said . . . ."); see also Jack Kelly, Liberal law firm to argue
gerrymandering violates Wisconsin Constitution, The Cap Times
(Apr. 6, 2023), https://captimes.com/news/government/liberal-
law-firm-to-arguegerrymandering-violates-wisconsin-
constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.
9
No. 2023AP1399-OA.akz
policies they favor enacted."18 As much as the majority and
others like to call this case "redistricting," it is not.
Redistricting occurs once every ten years and that fact was just
conclusively decided.19 They know contiguous maps, responsive to
the census, were fully litigated in Johnson. The people of
Wisconsin, through their constitution, placed the partisan
officeholders——the legislature, with oversight by the governor——
in charge of the partisan process of redistricting.20 The
constitution does not call for maps to be redrawn every time a
18 Pet. to Take Juris. of Original Action supra note 4, at
8.
Wis. Const. art. IV, § 3 ("At its first session after
19
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.");
see also State ex rel. Smith v. Zimmerman, 266 Wis. 307, 312, 63
N.W.2d 52 (1954) ("It is now settled that without a
constitutional change permitting it no more than one legislative
apportionment may be made in the interval between two federal
[censuses].")
The legislature exercises its constitutional authority to
20
redistrict per Wis. Const. art. IV, § 3, and the governor
exercises his constitutional authority to either sign the
legislature's maps into law or veto them per Wis. Const. art. V,
§ 10(2)a.
10
No. 2023AP1399-OA.akz
new justice is elected.21 This court of four abandons its
judicial responsibility and instead reimagines the law to
achieve an outcome.
¶88 More specifically, just last year in Johnson, the
court determined, and all agreed, that the maps complied with
the contiguity requirement. "Contiguity for state assembly
districts is satisfied when a district boundary follows the
municipal boundaries. Municipal 'islands' are legally
contiguous with the municipality to which the 'island' belongs."
Joint Stip. of Facts & Law, at ¶20 (Nov. 4, 2021)
https://acefiling.wicourts.gov/document/uploaded/2021AP001450/45
0892. Even the parties now arguing that the maps are not
contiguous recognize that the contiguity requirement has been
deemed satisfied not only in the maps the parties submitted in
21As the new court of four knows, this court just
conclusively addressed redistricting in the Johnson litigation,
observing that "[t]he 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" under Article
IV, Section 3. Johnson I, 399 Wis. 2d 623, ¶51 (quoting Baker
v. Carr, 369 U.S. 186, 217 (1962)). It is only natural——in
fact, it is inevitable——that a partisan body engaging in a
partisan process will reach a result that is in some measure
partisan. See Whitford v. Gill, 218 F. Supp. 3d 837, 939 (W.D.
Wis. 2016) (Griesbach, J., dissenting) ("[P]artisan intent is
not illegal, but is simply the consequence of assigning the task
of redistricting to the political branches of government."),
rev'd sub nom., Gill v. Whitford, 585 U.S. ___, 138 S. Ct. 1916
(2018).
11
No. 2023AP1399-OA.akz
the Johnson litigation, but also in the maps the state has
relied on for the last 60 to 70 years.22
¶89 Moreover, every person who wished to have a say or
participate in the Johnson litigation was welcome to do so and
did. No one sought reconsideration of the Johnson litigation
while it was within their power to do so. Johnson went all the
way to the United States Supreme Court and back. Some of the
litigants now were part of the Johnson litigation, some chose
not to engage. But the law imposes consequences for those who
choose to sit out of litigation entirely, and for those who
stipulate to or do not make an argument in litigation. Finality
of litigation does not endow one with the authority to wait to
see what happens in that litigation cycle, forego timely filing
a motion for reconsideration, and then bring arguments years
after the fact, with the only intervening change being the
court's composition. Four members of this court choose to not
let pesky parameters like finality or other foundational
judicial principles, or even the constitution, stand in the way
of the predetermined political outcome which they seem
preordained to deliver. Given the new court of four's conduct
so far, we can expect more such judicial mischief in the future.
On their watch, Wisconsin is poised to become a litigation
nightmare. What is next?
Oral argument in Clarke v. Wis. Elections Comm'n, No.
22
2023AP1399-OA, held Nov. 21, 2023, available on WisconsinEye
https://wiseye.org/2023/11/21/wisconsin-supreme-court-rebecca-
clarke-v-wisconsin-elections-commission/ (Rebuttal arguments of
Attorneys Sam Hirsch and Mark Gaber at 2:53:00 and 3:01,
respectively.)
12
No. 2023AP1399-OA.akz
¶90 The processes normally required in litigation before
the supreme court seem nothing more than window dressing in this
case. Briefing and oral argument occurred, but the conclusion
seemed preordained. It seems all that is left are the words to
be written in a fast-tracked, handpicked case wherein the issues
were chosen in an effort to evade any judicial review.23
Apparently process is now unimportant to the court of four.24
¶91 It is the parties who are required to develop the
facts and a full record for the court to review. We are not a
factfinding court. One would think that the very justices who
previously believed factfinding critically important in
Johnson,25 would pause and allow factfinding to occur by the
parties instead of handpicking their hired "consultants."
Factfinding in this case should occur utilizing traditional
process, as there are no time constraints which would otherwise
drive the need for a legal determination by original action.
Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409
23
Wis. 2d 372, 995 N.W.2d 779 (granting petition for original
action, but only with respect to issues 4 and 5); Wright v. Wis.
Elections Comm'n, 2023 WI 71, 409 Wis. 2d 417, 995 N.W.2d 771(denying petition for leave to commence original action).
Recently, members of the majority declined to hear "hot"
24
issues because process was important. But now, members of the
majority decide to hear "hot" issues because process is not
important. Have they changed their position on process? See
Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, ¶39, 403
Wis. 2d 369, 976 N.W.2d 584 ("Litigation rules and processes
matter to the rule of law just as much as rendering ultimate
decisions based on the law."); see also Trump v. Biden, 2020 WI
91, 394 Wis. 2d 629, 951 N.W.2d 568.
Johnson
25 III, 401 Wis. 2d 198, ¶161 (Karofsky, J.,
dissenting).
13
No. 2023AP1399-OA.akz
Particularly for something as important as "redistricting," why
be afraid of developing a full record and considering all legal
principles subjecting the decision to further review? What of
the fact that the citizens of Wisconsin and the litigants are
forced, by judicial fiat, to have out-of-state, not stipulated
to, unreviewable "consultants" who are seemingly unaccountable
to anyone but the court of four. In fact, the idea of hiring
"consultant map drawers" was sprung on counsel at oral
arguments. The court of four has now hired these "consultants"
who will presumably affect the outcome of the case. We have no
idea what, if any, parameters exist to guide the "consultants,"
the litigants, or the court. Will they have free reign to do
whatever they see fit, to achieve the requested remedy of making
the state legislature more Democratic? Deference to these
"consultants" and a hidden, unreviewable process smacks of
outcome-based decision making. What gives them that authority?
They rely on no statutes to give them that authority.26 It is
What
26 are the parameters of the consultant's
responsibilities, and under what constitutional or statutory
authority do they operate? Are they and their decisions
reviewable and subject to cross-examination, as court-appointed
expert witnesses are? Wis. Stat. § 907.06. Can they make
findings of fact and conclusions of law as referees can? Wis.
Stat. § 805.06(5)(a). Additionally, the majority fails to
answer, in either its order appointing these "consultants" or
its majority opinion, how the parties are to consider and
implement the majority's newly contrived "partisan impact"
factor in their proposed maps. How will these "consultants"
measure "partisan impact" in the parties' proposed maps, or
their own submissions? It is hard to say, given the majority's
painstaking efforts to avoid providing any such clarity or
methodology. The majority cites no statutory authority these
"consultants" are appointed under, because none exists: this
court does not hire third-party "consultants" to assist it in
decision making. Wis. Stat. § 751.09 ("In actions where the
14
No. 2023AP1399-OA.akz
not normal process for our court to hire experts to present new
evidence and influence decision making with information outside
the record. The "consultants," unchecked by the parties, will
most certainly influence, if not decide, the outcome of this
litigation. The parties do not stipulate to proceeding with
this forced factfinding map drawing method. Is the procedure
the court imposes on the litigants even constitutional as
applied? Reaching for evidence outside of the record is highly
unusual. The court should not require it here. Yet, the court
of four imposes its will to rush to an outcome. This is
completely unnecessary and violative of every notion of
traditional factfinding, fairness and judicial decision making.
The constitution certainly does not call for "consultants" to
redistrict anew; instead the constitution vests that power in
the legislative branch as approved by the executive branch. In
fact, the constitution makes no room for unreviewable
"consultants" to be arbiters of the state's maps. These
consultants sure do seem like hand-picked cover for the court of
four's decision to throw out "rigged maps" and remedy the
parties' "inability to achieve a Democratic majority in the
state legislature."27
supreme court has taken original jurisdiction, the court may
refer issues of fact or damages to a circuit court or referee
for determination.") See also Justice Rebecca Grassl Bradley's
dissent to order appointing Dr. Bernard Grofman and Dr. Jonathan
Cervas as court "consultants," Clarke v. Wis. Elections Comm'n,
No. 2023AP1399-OA, unpublished order at 5-7 (Wis. Dec. 22, 2023)
(Rebecca Grassl Bradley, J., dissenting).
27 Pet. to Take Juris. of Original Action supra note 4, at
8.
15
No. 2023AP1399-OA.akz
¶92 Turning to the text and content of this opinion, fully
joined by all four, it clearly lacks in legal discourse and
analysis that should accompany such an important determination.
The opinion is a sea change in the law. While a picture may
generally be worth a thousand words, pictures do not replace the
need to properly conduct the required legal analysis. Yet, the
new rogue court of four continues its pattern of being quick to
engage in partisan political power grabs, while short on
respecting legal traditions, practices, procedures, and the law.
It is the law, not personal preference, that should be the
judicial lodestar. In short, the opinion is sorely lacking in
sound jurisprudential analysis.
¶93 More specifically, this original action is wrongly
taken and decided for a host of heretofore understood and
respected legally-binding tenets. However, the court of four
glosses right over them.
 For starters, this original action fails as it amounts
to nothing more than an untimely motion for
reconsideration of this court's decision in Johnson,
which is now time-barred. Wis. Stat. (Rule) § 809.64.
 The proponents of this case and the majority fail to
meaningfully address stare decisis. This legal
principle demands a "respect for prior decisions" such
as this court's decisions throughout the Johnson
litigation "[as] fundamental to the rule of law."
Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003
WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257.
16
No. 2023AP1399-OA.akz
 It overlooks that parties such as the Governor and the
Citizen Mathematicians and Scientists28 are judicially
estopped from advancing different positions now from
the positions they took in the Johnson litigation.
State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817(1996) (citing Coconate v. Schwanz, 165 Wis. 2d 226,
231, 477 N.W.2d 74 (Ct. App. 1991)) ("[A] party [is
precluded] from asserting [one] position in a legal
proceeding and then subsequently asserting an
inconsistent position.").
 Similarly, laches bars these claims, as "equity aids
the vigilant, not those who sleep on their rights."
Kenosha Cnty. v. Town of Paris, 148 Wis. 2d 175, 188,
434 N.W.2d 801 (Ct. App. 1988).
 The majority's analysis turns a blind eye to the fact
that "[i]n order to have standing to sue, a party must
have a personal stake in the outcome of the
controversy," a personal stake not met by those who do
not reside in these alleged municipal islands and
especially for those who merely border these
"municipal islands" of which more than a third contain
zero residents. City of Madison v. Town of Fitchburg,
28 Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright,
Jean-Luc Thiffeault, and Somesh Jha were labeled the "Citizen
Mathematicians and Scientists" in the Johnson litigation. They
are each intervenors-petitioners in this case. For ease of
reference, I refer to them collectively as "Citizen
Mathematicians and Scientists" in this writing.
17
No. 2023AP1399-OA.akz
112 Wis. 2d 224, 228, 332 N.W.2d 782 (1983) (emphasis
added).
 And, this case is barred by claim and issue preclusion
principles, which "are designed to limit the
relitigation of issues that have been actually
litigated in a previous action," Aldrich v. LIRC, 2012
WI 53, ¶88, 341 Wis. 2d 36, 814 N.W.2d 433, and
"extends to all claims that either were or could have
been asserted in the previous litigation." Dostal v.
Strand, 2023 WI 6, ¶24, 405 Wis. 2d 572, 984
N.W.2d 382.
¶94 But the court of four gives little consideration to
that jurisprudence. Instead of letting the law get in the way,
they proceed to the task at hand: to redraw the "rigged" maps
and remedy an "inability to achieve a Democratic majority in the
state legislature."29
¶95 To be clear, this case is nothing more than a now
time-barred motion to reconsider Johnson.30 An honest look at
the plain law would require that this petition be dismissed.
Instead, the creative legal machinations engaged in by the
masters of this lawsuit, emboldened and encouraged by the new
court of four, requires mind-boggling contortion of the law to
29 Pet. to Take Juris. of Original Action supra note 4, at
8.
30Wis. Stat. (Rule) § 809.64 ("A party may seek
reconsideration of the judgment or opinion of the supreme court
by filing a motion under s. 809.14 for reconsideration within 20
days after the date of the decision of the supreme court.")
18
No. 2023AP1399-OA.akz
achieve a particular political outcome. Sadly, judicial
activism is once again alive and well in Wisconsin, creating
great instability.
¶96 In addition, the demanding legal analysis of stare
decisis is completely absent from the majority opinion. Stare
decisis, the requirement to follow legal precedent, means this
case ends before it even starts, since the Johnson litigation
already declared what the law is. This petition is a political
quest masquerading as a legal query, filed to coincide with the
seating of the parties' "judge of choice" and not coincidently,
filed the day after she assumed the bench.31 Judge shopping
should be verboten to all. Allowing this sham experiment to
continue under a nebulous guise of "fairness," should be beneath
my colleagues.32 In any court, but especially a court of last
resort, sound legal principles, including stare decisis, should
31Steve Schuster, Lawsuit to Challenge Wisconsin's
Legislative Maps to Be Filed, Wis. L.J. (Apr. 6, 2023),
https://wislawjournal.com/2023/04/06/lawsuit-to-challenge-
wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law
firm is planning to challenge the state's gerrymandered
legislative maps . . . . The lawsuit will be filed after
Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole
Safar, executive director of Madison-based Law Forward,
said . . . ."); see also Jack Kelly, Liberal Law Firm to Argue
Gerrymandering Violates Wisconsin Constitution, The Cap Times
(Apr. 6, 2023), https://captimes.com/news/government/liberal-
law-firm-to-arguegerrymandering-violates-wisconsin-
constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.
32Wis. Stat. § 757.02(1) ("I. . . . do solemnly swear that
I will support the constitution of the United States and the
constitution of the state of Wisconsin; that I will administer
justice without respect to persons and will faithfully and
impartially discharge the duties of said office to the best of
my ability. So help me God.") (emphasis added).
19
No. 2023AP1399-OA.akz
prevail over political and personal preferences, even when one
might not like the results. Numerous jurisprudential tenets
require that this matter now be deemed improvidently granted, as
application of the law so clearly dictates that this original
action never should have been granted in the first instance.33
It fails legal scrutiny. Any remedy which this court might now
conjure up to justify this preordained outcome is devoid of
legal merit.
¶97 In no small measure, Justice Ann Walsh Bradley, the
most senior member of the court, knows better than to join this
judicial mischief. She used to respect the doctrine of stare
decisis.34 And, if the shoe were on the other foot——much like
when some on the court previously tried to usurp the role of
Chief Justice Abrahamson——she would be raucously objecting.35
Then, she declared that this court should "call a spade a
spade. . . . This is about personal ambition, politics and
33Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409
Wis. 2d 372, 995 N.W.2d 779 (order granting petition for
original action) (Ziegler, C.J., dissenting).
34See Mayo v. Wis. Injured Patients & Fams. Comp. Fund,
2018 WI 78, ¶110, 383 Wis. 2d 1, 914 N.W.2d 678 (Ann Walsh
Bradley, J., dissenting) ("The decision to overturn a prior case
must not be undertaken merely because the composition of the
court has changed."); Johnson Controls, Inc. v. Empr's Ins. of
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257 ("Stare
decisis is fundamental to the rule of law. Indeed, this court
follows the doctrine of stare decisis scrupulously because of
our abiding respect for the rule of law.")
35In 1998, Justice Ann Walsh Bradley was convinced that the
creation of an administrative committee, which would take over
the role of the chief justice, was unconstitutional. She
threatened to sue her colleagues over the matter. What changed?
Shirley Abrahamson is no longer the chief justice.
20
No. 2023AP1399-OA.akz
pettiness. . . . [The four] justices are interested in toppling
the chief."36 Her fondness for sound legal principles like stare
decisis seems to vary depending on whether she is in the
majority or the minority.
¶98 Justice Ann Walsh Bradley's former colleague, now
federal Seventh Circuit Judge Diane Sykes, reminded us all of
the inherent institutional and reputational dangers the court
faced when it previously departed from its constitutional role.
History teaches us that when the balance of power on the court
shifted for the 2004-2005 court term, making then a new majority
consisting of Ann Walsh Bradley and three others, the newly
constituted court majority of four, issued a series of blatantly
activist decisions. See Diane S. Sykes, Reflections on the
Wisconsin Supreme Court, 89 Marq. L. Rev. 723 (2006). In one of
many such activist-driven decisions from that new majority, she
and three others appeared to yield to political pressure and
abrogated its barely two year-old decision in Panzer v. Doyle,
2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, with Dairyland
Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719
N.W.2d 408. Similarly, though the court a year prior had upheld
noneconomic damage caps for medical malpractice in personal
injury cases in Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682
N.W.2d 866, the new court abruptly changed course and undermined
the notion of judicial deference to legislative policy choices
Statement of Justice Ann Walsh Bradley, printed in, Cary
36
Segall, Justice Lay Bare Problems with Abrahamson; Four Upset
They're Left Out of Decisions, Wis. State Journal (Feb. 14,
1999).
21
No. 2023AP1399-OA.akz
in Ferdon, justifying their unprecedented move by declaring that
"a statute may be constitutionally valid when enacted but may
become constitutionally invalid because of changes in the
conditions to which the statute applies." Ferdon v. Wis.
Patients Comp. Fund, 2005 WI 125, ¶114, 284 Wis. 2d 573, 701
N.W.2d 440. In yet another instance, the court expanded its
supervisory role beyond the permissible bounds of saying what
the law is, to endow themselves with a "broad authority to
mandate desirable policy ostensibly related to judicial
proceedings" in the vein of the executive branch, which then
"extend[ed] far beyond the litigants in [that] specific case."37
The activism that took over that new court majority's decision-
making coursed through virtually every area of the law: civil,
criminal, juvenile, and even rule-making. Throughout that time,
members of the court lay aside their robes of judicial
independence to affix their campaign pins of judicial activism
and tipped the scales of the court's independent decision making
power in their favor. Here we go again.
¶99 Will this redistricting original action be the first
in a series of outcome-based legal decisions of the new court of
four? In the 2004-2005 term, when Justice Ann Walsh Bradley was
Rick Esenberg, A Court Unbound? The Recent Jurisprudence
37
of the Wisconsin Supreme Court 10 (Federalist Society White
Paper Mar. 2007), https://fedsoc-cms-
public.s3.amazonaws.com/update/pdf/IhZ6cE38iAto3CRWgllVqKrbM9j2I
kM6y7zNZE56.pdf.
22
No. 2023AP1399-OA.akz
then in the new majority,38 the court "signaled a dramatic shift
in [their] jurisprudence." Sykes, supra ¶98 at 725. With Ann
Walsh Bradley in tow, that iteration of the court of four
throughout the 2004-2005 term and beyond, "depart[ed] from some
familiar and long-accepted principles that normally operate as
constraints on the court's use of power" including such
principles as "the presumption that statutes are constitutional,
judicial deference to legislative policy choices, respect for
precedent and authoritative sources of legal interpretation, and
the prudential institutional caution that counsels against
imposing broad-brush judicial solutions to difficult social
problems." Sykes, supra ¶98 at 725-26. The 2004-2005 court
majority proceeded to make a mockery of the law, throwing wide
open the door of judicial activism in cases that ranged from
criminal law to civil law to torts to juvenile to rulemaking and
everything in between. As Judge Sykes recounts in her Hallows
lecture39 reflecting on the court's activist missteps from that
term, that court of four:
 "rewrote the rational basis test for evaluating
challenges to state statutes under the Wisconsin
Constitution, striking down the statutory limit
on noneconomic damages in medical malpractice
cases;[40]
The new majority consisted of Shirley Abrahamson, Ann
38
Walsh Bradley, N. Patrick Crooks, and Louis Butler (who filled
the vacancy created by Diane Sykes' appointment to the Seventh
Circuit Court of Appeals).
Case summary excerpts taken from Sykes, Reflections on
39
the Wisconsin Supreme Court, supra note 7.
Ferdon v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284
40
Wis. 2d 573, 701 N.W.2d 440.
23
No. 2023AP1399-OA.akz
 eliminated the individual causation requirement
for tort liability in lawsuits against
manufacturers of lead-paint pigment, expanding
"risk contribution" theory, a form of collective
industry liability;[41]
 expanded the scope of the exclusionary rule under
the state constitution to require suppression of
physical evidence obtained as a result of law
enforcement's failure to administer Miranda
warnings;[42]
 declared a common police identification procedure
inherently suggestive and the resulting
identification evidence generally inadmissible in
criminal prosecutions under the state
constitution's due process clause; [43] and
 invoked its supervisory authority over the state
court system to impose a new rule on law
enforcement that all juvenile custodial
interrogations be electronically recorded."[44]
Sykes, supra ¶98 at 725.
¶100 Most of our current court composition knows about the
historic missteps of that court second-hand. But Justice Ann
Walsh Bradley knows about it first-hand, as she was one of the
then court of four. She has the benefit of having been a
justice on the Wisconsin Supreme Court for about three decades,
41 Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701
N.W.2d 523.
42 State v. Knapp, 2005 WI 127, 285 N.W.2d 86, 700
N.W.2d 899.
43 State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699
N.W.2d 582.
44 State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699
N.W.2d 110.
24
No. 2023AP1399-OA.akz
since 1995, and a member of the bench for nearly 40 years.45
Past error should counsel her to depart from lending her name to
the activism embraced by the new majority.
¶101 Instead, all of Justice Ann Walsh Bradley's years of
collective judicial experience takes the majority right back
full-circle to the 2004-2005 court and its penchant for judicial
activism. Any one of the current court of four could refrain
from lending her vote to the exploration of such judicial
mischief. The 2004-2005 court term became irrevocably branded,
which should serve as a cautionary tale against justices
engaging in judicial activism. Activism is destructive to the
institution of the court, whether to achieve liberal or
conservative outcomes. That is the point. The court's role is
only to declare what the law is.46 The Johnson litigation
declared what the law is.
¶102 Does anyone wonder how Wisconsin became a nationwide
hotbed for political spending, a record holder for the most
For added perspective, at the time Ann Walsh Bradley
45
first started serving as a judge, her three other colleagues
were not even lawyers yet: Justice Rebecca Dallet was in high
school, Justice Jill Karofsky was just starting out as a
freshman at Duke University, and Justice Janet Protasiewicz was
wrapping up her undergraduate studies at U.W.-Milwaukee.
In doing so, as United States Supreme Court Chief Justice
46
John Roberts reminds us, "[j]udges are [to be] like umpires.
Umpires don't make the rules; they apply them. . . . ."
Confirmation Hearing on the Nomination of John G. Roberts, Jr.
to be Chief Justice of the United States: Hearing Before the S.
Comm. on the Judiciary, 109th Cong. 56 (Sept. 12, 2005).
25
No. 2023AP1399-OA.akz
expensive judicial campaign in our nation's history?47 Is this
the new norm? The state Democratic Party chair has already said
that "[t]he stakes [of Ann Walsh Bradley's upcoming campaign]
will be enormous," and that "[a]s a party, [Democrats will] be
just about ready to do anything to avoid returning to a 'rogue
court.’"48 Ann Walsh Bradley once upon a time found this
problematic.49 She claimed to "have [had] a vision for our court
system where political parties [do not] hav[e] undue input" on
judicial races, as she "strongly believe[d] political parties
should stay out of judicial races."50 Time will tell whether Ann
Walsh Bradley will change her position on that as well.
¶103 The majority leaves behind fundamental judicial tenets
giving no deference to longstanding legal parameters. These
47Wisconsin Supreme Court Race Cost Record $51 Million,
Wisconsin Democracy Campaign (July 18, 2023),
https://www.wisdc.org/news/press-releases/139-press-release-
2023/7390-wisconsin-supreme-court-race-cost-record-51m.
48Steven Walters, Schimel Could Be Potent Supreme Court
Candidate, Urban Milwaukee (Dec. 4, 2023),
https://urbanmilwaukee.com/2023/12/04/the-state-of-politics-
schimel-could-be-potent-supreme-court-candidate
49Quote of Ann Walsh Bradley, Wisconsin Public Television,
Candidate Debate, Mar. 27, 2015, https://ballotpedia.org/
Wisconsin_Supreme_Court_elections,_2015 ("This has never
happened before in the state of Wisconsin to this degree that a
political party would be inserted into a nonpartisan race.
Political parties have agendas and we can't have courts with
agendas because that undermines the public's trust in the people
in our decisions.")
50Scott Bauer, Supreme Court candidates spar over partisan
influences, Green Bay Press Gazette (Mar. 24, 2015),
https://www.greenbaypressgazette.com/story/news/politics/2015/03
/24/supreme-court-candidates-partisan-influences/70405490/
26
No. 2023AP1399-OA.akz
four members of the court exhibit a continuing and escalating
pattern of power-starved behavior which amounts to an exercise
of sheer raw power accumulation, at any cost. This original
action is their latest power grab. Power-aggregation of this
nature is often "clad, so to speak, in sheep's clothing," in
hopes that others will not recognize the danger they are in
until it is too late. Morrison v. Olson, 487 U.S. 654, 699
(1988) (Scalia, J., dissenting). The court of four hopes that
their innocuously clad actions can escape immediate detection as
usually "the potential of the asserted principle to effect
important change in the equilibrium of power [between the
branches] is not immediately evident," so it "must be discerned
by a careful and perceptive analysis. But this wolf comes as a
wolf." Id. (Scalia, J., dissenting). The four justices'
evident lack of regard for fundamental sound judicial principles
requires me to vociferously dissent.
I
¶104 The legislative power, per the Wisconsin Constitution,
is vested in the legislative branch, not the judicial branch.
Wis. Const. art. IV, § 1 ("The legislative power shall be vested
in a senate and assembly.") This grant of legislative power
includes the power to carry out redistricting. Per the
Wisconsin Constitution, it is the legislature, following the
United States census, who shall "apportion and district anew the
members of the senate and the assembly, according to the number
of inhabitants." Wis. Const. art. IV, §3. It is the
legislature, not the judiciary, who is responsible for creating
27
No. 2023AP1399-OA.akz
maps which comply with the limited expressed apportionment
guidelines under both the federal and state constitutions.
Under normally functioning political process, when the
legislature "redistricts anew" every 10 years and passes
compliant maps, those maps take effect upon being signed into
law by the governor or when the governor's veto of those maps is
overridden. Wis. Const. art. V, § 10(2)a.
¶105 As a political process delegated to the political
branches, redistricting was not, and is not, the responsibility
of the courts. The court's responsibility as an impartial,
apolitical branch is to declare what the law is. See Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added) ("It
is emphatically the province and duty of the judicial department
to say what the law is."); see also Wis. Justice Initiative v.
Wis. Elections Comm'n, 2023 WI 38, ¶18, 407 Wis. 2d 87, 990
N.W.2d 122 ("The main power we have been given in the
constitution is the judicial power, which by necessity means the
power to interpret the law in appropriate cases."). Thus, the
apolitical judicial branch normally has no role to play in this
political process.
¶106 But sometimes that traditional political process
fails. Where that political process fails, and there is a
constitutional crisis such that there are no compliant maps in
place with which to conduct state elections, then the judiciary
does have an important——albeit limited——role to play in
providing a judicial remedy to solve the issue.
28
No. 2023AP1399-OA.akz
¶107 Such was the unappealing situation we found ourselves
in during the Johnson redistricting litigation cycle. The
majority's discussion of our expansive Johnson redistricting
history was underdeveloped. Their framing, all two scant
paragraphs of it, combined with their assertion that this
court's treatment of the issue of contiguity was somehow
"cursory,” majority op. at ¶22, conveniently lacks important
context and pertinent details on how this court——which included
three current members of the majority——definitively answered
these and all redistricting questions multiple times,
conclusively, throughout our Johnson litigation these last two
years.
¶108 Following the 2020 census, Wisconsin voters filed a
petition for an original action in this court claiming the then-
existing congressional and state legislative maps were
malapportioned under the state and federal constitutions,
requiring that new maps be drawn. See State ex rel. Reynolds v.
Zimmerman, 22 Wis. 2d 544, 556, 126 N.W.2d 551 (1964) (finding
"the principle of per capita equality of representation" in
Article IV, Section 3 of the Wisconsin Constitution). We
granted the petition. Johnson v. Wis. Elections Comm'n, No.
2021AP1450-OA, unpublished order (Sept. 22, 2021). The majority
seems to overlook the inconvenient fact that during the
resulting litigation, this court liberally permitted parties to
intervene, and then "grant[ed] intervention to all parties that
sought it." Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶2,
400 Wis. 2d 626, 971 N.W.2d 402 ("Johnson II"), summarily rev'd
29
No. 2023AP1399-OA.akz
sub nom., Wis. Legislature v. Wis. Elections Comm'n, 595 U.S.
398, 142 S. Ct. 1245 (2022) (per curiam). These intervenors are
listed below.51 This original action commenced an "odyssey" that
brought this court face-to-face with every issue and claim the
parties could garner in support of their proposed maps——
including the contiguity issue raised here. See Johnson v. Wis.
Elections Comm'n, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559(Karofsky, J., dissenting) ("Johnson III").
A. Johnson I
¶109 It is worth remembering how this most recent
redistricting challenge came to the court. In Johnson I, we
laid the groundwork for how we would proceed with the unenviable
task of settling the inter-branch dispute over redistricting
maps. Johnson I, 399 Wis. 2d 623. That year, "[t]he political
process failed . . . , necessitating our involvement." Id.,
¶19. Called upon to remedy this failure so a map would be in
place for the upcoming election, this court resolved to remedy
the existing malapportionment by selecting a map submitted to us
by the parties. Johnson II, 400 Wis. 2d 626, ¶6. This
approach sought to preserve our role as an independent judiciary
free of the political thicket. "[N]othing in the constitution
vests this court with the power of the legislature to enact new
Black Leaders Organizing for Communities, Voces de la
51
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.
30
No. 2023AP1399-OA.akz
maps. Our role in redistricting remains a purely judicial one,
which limits us to declaring what the law is and affording the
parties a remedy for its violation." Johnson I, 399
Wis. 2d 623, ¶3. We therefore proceeded, seeing our only
permissible task as "ensuring the maps satisfy
all . . . constitutional and statutory requirements"; not to
adjudicate "[c]laims of political unfairness in the maps[,
which] present political questions, not legal ones." Id., ¶4.
After all, "[t]he job of the judiciary is to decide cases based
on the law." Id., ¶82 (Hagedorn, J., concurring).
¶110 This court began by stating the obvious: the map
selected must comply with state law, but also federal
constitutional and statutory requirements. Id., ¶¶24-27. These
include the Equal Protection Clause's one-person-one-vote
requirement, the prohibition on multimember congressional
districts under 2 U.S.C. § 2c, and the Voting Rights Act's
("VRA's") prohibition of "the denial or abridgment of the right
to vote on account of race, color, or membership in a language
minority group." Id.; see Reynolds v. Sims, 377 U.S. 533, 577
(1964) ("[T]he 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."); 52 U.S.C. § 10301 (establishing the framework
for so-called vote dilution claims). Like the federal
constitution, we recognized that Article IV, Section 3 of the
Wisconsin Constitution also imposes a one-person-one-vote rule,
requiring reapportionment "according to the number of
31
No. 2023AP1399-OA.akz
inhabitants" in new districts. Johnson I, 399 Wis. 2d 623,
¶¶28-38 (confirming that this interpretation comports with the
constitution's original meaning).
¶111 The parties further asked this court to consider
partisan fairness in selecting a new map. This ask ran headlong
into our role as an apolitical branch whose sole purpose is to
resolve legal disputes. See Wis. Justice Initiative, 407
Wis. 2d 38, ¶18 ("The main power we have been given in the
constitution is the judicial power, which by necessity means the
power to interpret the law in appropriate cases."). We do not
resolve partisan power politics. We resolve parties' rights and
responsibilities under the law by "focus[ing] on the language of
the adopted text and historical evidence" of its meaning. State
v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953 N.W.2d 847.
Some questions, while they may be intriguing, nonetheless lie
outside the legal boundaries of what courts can answer.
¶112 The majority calls partisan gerrymandering an
"important and unresolved legal question," majority op., ¶7,
that they declined to take up in the petition for original
action over concerns of the extensive factfinding required. See
Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409 Wis. 2d 372,
995 N.W.2d 779. But this court answered the question of
partisan gerrymandering in Johnson I, when this court concluded
the Wisconsin Constitution has nothing to say about partisan
gerrymandering, and therefore it is not a justiciable legal
claim this court can resolve. Johnson I, 399 Wis. 2d 623, ¶81
(lead op.). Partisan gerrymandering is "[t]he practice of
32
No. 2023AP1399-OA.akz
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). This
begs the question: "Diluted relative to what benchmark?"
Gonzalez v. Aurora, 535 F.3d 594, 598 (7th Cir. 2008)
(recognizing that VRA vote-dilution claims beg the same
question). That benchmark is proportional partisan
representation——"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." Johnson I, 399
Wis. 2d 623, ¶42. We recognized that nothing in the law
authorizes this court to grant parties relief based on whether a
particular map achieves proportional partisan representation.
"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." Id., ¶45. Seats in a representative body
must be earned via the political process. That is what makes
the political branches accountable to the people. "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." Id., ¶42
(quoting Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484,
2501 (2019)).
33
No. 2023AP1399-OA.akz
¶113 Not only did this court conclude partisan fairness is
a political question assigned to the legislature, but our
searching review of the Wisconsin Constitution revealed nothing
setting forth any cognizable right to partisan fairness in
redistricting. We concluded, "[n]othing 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."52 Johnson I, 399 Wis. 2d 623,
¶58. "Likewise, Article I, Sections 3[53] and 4[54] of the
Wisconsin Constitution do not inform redistricting challenges"
because "[n]othing about the shape of a district infringes
anyone's ability to speak, publish, assemble, or petition."
Id., ¶¶59-60. We further said finding a legal standard for
partisan fairness in Article I, Section 22, which provides,
"All people are born equally free and independent, and
52
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 from the consent of
the governed." Wis. Const. art. I, § 1.
"Every person may freely speak, write and publish his
53
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."
Wis. Const. art. I, § 3.
"The right of the people peaceably to assemble, to
54
consult for the common good, and to petition the government, or
any department thereof, shall never be abridged." Wis. Const.
art. I, § 4.
34
No. 2023AP1399-OA.akz
"[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," and to "fabricate a legal standard of partisan
fairness . . . would represent anything but 'moderation' or
'temperance[.]'" Id., ¶62. 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." Id. Instead,
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 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 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.
Id., ¶63 (quoting Zimmerman, 22 Wis. 2d at 562 (alterations in
original).
¶114 Finally, rejecting the Johnson I dissent's assertion
that the task of adopting remedial maps required this court to
35
No. 2023AP1399-OA.akz
rule as a partisan actor,55 we adopted "[a] least-change
approach[, which] is the most consistent, neutral, and
appropriate use of our limited judicial power to remedy the
constitutional violations in this case." Id., ¶85 (Hagedorn,
J., concurring); see also id., ¶¶69-72. Least change, as a
framework this court put forward throughout the Johnson
litigation, properly reflects the limited role the judicial
branch plays in redistricting, as it is the legislature, not the
judiciary, which is granted constitutional authority to
redistrict. Least change remains the law. Until today. Now,
the majority, citing to nothing, declares instead that the
standard this court implemented barely two years ago "is
unworkable in practice," majority op., ¶63, simply so that they
can overrule it, and move this institution down the darkened
path of outcome-based judicial activism.
B. Johnson II
¶115 Having made clear the ground rules in Johnson I, this
court proceeded to select remedial maps in Johnson II, 400
Wis. 2d 626. To repeat, we decided the proper way for this
court to select remedial maps is to "implement judicial remedies
only to the extent necessary to remedy the violation of a
justiciable and cognizable right found in the United States
Constitution, the VRA, or Article IV, Sections 3, 4, or 5 of the
The Johnson I dissent incorrectly interpreted the
55
majority's "least change" approach as "inherently political" in
its determination to limit the judiciary's role in a political
process granted to the legislature and the governor. Johnson I,
399 Wis. 2d 623, ¶¶88-89 (Dallet, J., dissenting).
36
No. 2023AP1399-OA.akz
Wisconsin Constitution." Johnson I, 399 Wis. 2d 623, ¶81 (lead
op.). As the judiciary, we cannot "consider the partisan makeup
of districts because it does not implicate any justiciable or
cognizable right," and we implement "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." Id. Instead of requesting a hearing or a referee
to engage in factfinding, the parties agreed to proceed on
stipulated facts and expert reports. Parties, including the
Governor, Senate Democrats, and Citizen Mathematicians and
Scientists, stipulated at the outset of the Johnson litigation
that Article IV's contiguity requirement is satisfied by
municipal islands, and these islands are constitutionally
permissible. Joint Stip. of Facts & Law, supra ¶88 ("Contiguity
for state assembly districts is satisfied when a district
boundary follows the municipal boundaries. Municipal 'islands'
are legally contiguous with the municipality to which the
'island' belongs.").
¶116 Applying this framework to the maps, a majority of the
court first concluded that the Governor's proposed congressional
map "best follow[ed] our directive to make the least changes
from existing congressional district boundaries while complying
with all relevant state and federal laws." Johnson II, 400
Wis. 2d 626, ¶25. A majority of the court accordingly adopted
Democratic Governor Evers' proposed congressional map as the
remedial map. Id. Curiously, no challenge is made to that
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No. 2023AP1399-OA.akz
Democratically drawn map which was chosen with the "least
change" methodology. Could it be that it already achieves the
desired partisan outcome?
¶117 In selecting the proper remedial maps for the state
legislature, however, a majority of this court initially went
astray. The Johnson II majority adopted Governor Evers'
proposed legislative maps——"which carve[d] seven Assembly
districts with populations that [were] curiously at almost
exactly 51% African-American populations"——based on an erroneous
application of Section 2 of the VRA and the Equal Protection
Clause. Id., ¶72 (Ziegler, C.J., dissenting). A majority of
this court misunderstood and misapplied VRA § 2 in creating a
race-based remedy in the absence of a VRA violation or
wrong: creating such an untethered race-based remedy out of
thin air, as a majority of the court had done, is in fact,
unconstitutional.
¶118 "A State may not use race as the predominant factor in
drawing district lines unless it has a compelling reason."
Cooper v. Harris, 581 U.S. 285, 291 (2017). If there is no
compelling reason, using race as the predominant factor in
drawing district lines creates an unjustified, unconstitutional
racial gerrymander in violation of the Equal Protection Clause.
Shaw v. Reno, 509 U.S. 630 (1993). The United States Supreme
Court has specified three elements, known as the "Gingles
preconditions," which must be established in order to
demonstrate a VRA § 2 violation necessitating the creation of an
additional minority opportunity district:
38
No. 2023AP1399-OA.akz
(1) the racial group must be "sufficiently large and
geographically compact to constitute a majority in a
single-member district"; (2) the group must be
"politically cohesive"; and (3) the white majority
must "vot[e] sufficiently as a bloc to enable
it . . . usually to defeat the minority's preferred
candidate."
League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425
(2006) (quoting Thornburg v. Gingles, 478 U.S. 30, 50-51
(1986)). "If all three Gingles requirements are established,
the statutory text directs us to consider the 'totality of
circumstances' to determine whether members of a racial group
have less opportunity than do other members of the electorate."
Id. at 425-26. Section 2 further provides, though "[t]he extent
to which members of a protected class have been
elected . . . may be considered," "nothing in [VRA § 2]
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(b). Unless "each of the three Gingles
prerequisites is established, 'there neither has been a wrong
nor can be a remedy.'" Cooper, 581 U.S. at 306 (quoting Growe
v. Emison, 507 U.S. 25, 41 (1993)). The Supreme Court therefore
"insist[s] on a strong basis in evidence of the harm being
remedied" under the VRA in order to survive strict scrutiny.
Miller v. Johnson, 515 U.S. 900, 922 (1995); accord Shaw, 509
U.S. at 653 ("[R]acial bloc voting and minority-group political
cohesion [the requirements of a VRA redistricting violation]
never can be assumed, but specifically must be proved in each
case in order to establish that a redistricting plan dilutes
minority voting strength in violation of § 2."). "[T]he purpose
39
No. 2023AP1399-OA.akz
of strict scrutiny is to 'smoke out' illegitimate uses of race
by assuring that the legislative body is pursuing a goal
important enough to warrant use of a highly suspect tool." City
of Richmond v. J.A. Croson Co,, 488 U.S. 469, 493 (1989).
¶119 The Johnson II majority improperly concluded that
Democratic Governor Evers' racial gerrymander was proper, even
though it did not meet this minimum threshold necessary to
survive strict scrutiny. Johnson II, 400 Wis. 2d 626, ¶¶47, 50
("[W]e cannot say for certain on this record that seven
majority-Black assembly districts are required by the VRA. But
based on our assessment of the totality of the circumstances and
given the discretion afforded states implementing the Act, we
conclude the Governor's configuration is permissible."). The
majority's violation of the law was sufficient cause for the
United States Supreme Court, three weeks after the Johnson II
majority selected the Governor's maps, to take the rarely
invoked action of summarily reversing the majority's
40
No. 2023AP1399-OA.akz
interpretation of the VRA56 and the Equal Protection Clause,
while leaving the rest of the analysis intact. Wis. Legislature
v. Wis. Elections Comm'n, 595 U.S. 398, 142 S. Ct. 1245 (2022)(per curiam). The Supreme Court determined that the majority of
this court had "failed to answer" "whether a race-neutral
alternative that did not add a seventh majority-black district
would deny black voters' equal political opportunity" in trying
to determine whether there was a VRA violation which justified
First, the United States Supreme Court determined that
56
the Johnson II majority mistook the VRA § 2 as requiring the
creation of as many majority opportunity districts as possible,
thus "embracing just the sort of uncritical majority-minority
district maximization that [the Supreme Court] ha[s] expressly
rejected." Wis. Legislature v. Wis. Elections Comm'n, 595 U.S.
398, 142 S. Ct. 1245, 1249 (2022) (per curiam) (citing Johnson
v. De Grandy, 512 U.S. 997, 1017 (1994) ("Failure to maximize
cannot be the measure of § 2.")). The Johnson II majority
improperly took Cooper's "leeway" language as indicating that
"it had to conclude only that the VRA might support race-based
districting——not that the statute required it." Id.; Cooper v.
Harris, 581 U.S. 285, 306 (2017). The Supreme Court explained
that its "precedent instructs otherwise"; "that 'leeway' does
not allow a State to adopt a racial gerrymander that the State
does not, at the time of imposition 'judg[e] necessary under a
proper interpretation of the VRA.'" Wis. Legislature, 142 S.
Ct. at 1250 (quoting Cooper, 581 U.S. at 306).
Second, the Court observed that the Johnson II majority's
"analysis of Gingles' preconditions fell short of [the Court's]
standards" by "improperly rel[ying] on generalizations to reach
the conclusion that the preconditions were satisfied" "[r]ather
than carefully evaluating evidence at the district level." Id.
In fact, the "sole piece of cited record evidence came from an
intervenor who argued that the Governor's map violated the VRA."
Id. at 1250 n.2.
Finally, the Supreme Court faulted the Johnson II majority
for "improperly reduc[ing] Gingles' totality-of-circumstances
analysis to a single factor" and "focus[ing] exclusively on
proportionality," an approach the Court previously rejected as
contrary to the VRA's language. Id. at 1250.
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the Governor's racially gerrymandered maps. Wis. Legislature,
142 S. Ct. at 1250-51.
¶120 The Supreme Court's repudiation of this court was only
the third time that this court has ever been summarily reversed.
The first was about 73 years ago, and the second being about 55
years ago.57 As a result of that rare repudiation, the court was
required to revisit state legislative maps for the upcoming
election, but congressional maps selected by the court majority
were left intact.
C. Johnson III
¶121 We finally brought this line of cases to an end——or so
we thought!——and settled this issue in Johnson III on remand
from the Supreme Court's summary reversal. Johnson III, 401
Wis. 2d 198. It is worth repeating that any map this court
could select as a judicial remedy had to first comply with
federal constitutional and statutory requirements, including the
VRA, Equal Protection Clause, one-person-one-vote requirement,
and the Wisconsin Constitution, and then had to align with the
court's "least change approach" adopted in Johnson I. The maps
also had to comply with state law. All parties were free to,
and invited to, submit maps for our consideration which met
these foundational compliance requirements. Among the five maps
submitted to us, we ultimately selected the Legislature's maps
because, of the maps submitted, these maps were "the only
legally compliant maps" and were thus "the best, and only,
57Plankinton Packing Co. v. Wis. Emp. Rels. Bd., 338 U.S.
953 (1950); Greenwald v. Wisconsin, 390 U.S. 519 (1968).
42
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viable proposal." Johnson III, 401 Wis. 2d 198, ¶22. These
court-selected remedial maps——the Democratic Governor's
congressional map and the Republican Legislature's state senate
and assembly maps——were then used to conduct the state's 2022
elections and remained in place and in effect until this most
recent collateral attack on the court's judgment in Johnson III.
Notably, all parties agreed, and the court concluded, that the
selected maps complied with contiguity.
II
¶122 The majority's decision to hear this present case and
now overrule its own less than two-year-old decision following a
change in court membership is a resurrection of the contempt
voiced by the Johnson III dissenters following the United States
Supreme Court's summary reversal. The Johnson III dissenters
demonstrated an open and notorious disregard for their
fundamental duty to neutrally apply the law. "Rather than
admitting [their] error" the Johnson III dissenters "launche[d]
an indignant attack on this nation's highest court," echoing
arguments from Justice Sotomayor's dissent to the per curiam and
chastising this court for applying binding Supreme Court
precedents that the dissenters felt were "gaslighting." Johnson
III, 401 Wis. 2d 198, ¶¶137-39 & n.33 (Rebecca Grassl Bradley,
J., concurring); id., ¶175 (Karofsky, J., dissenting). Not
content with the outcome of the Johnson litigation, the majority
hopes that having a fourth "kick at the cat" provides them with
the predetermined outcome they desire——both state and federal
all Democratic maps.
43
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¶123 This original action comes camouflaged as something
other than what it is: a motion for reconsideration of this
court's decision in Johnson III, a procedurally problematic
avenue these parties cannot avail themselves of as it is now
time-barred. Wis. Stat. § (Rule) 809.64 ("A party may seek
reconsideration of the judgment or opinion of the supreme court
by filing a motion under s. 809.14 for reconsideration within 20
days after the date of the decision of the supreme court.").
All other legal bases and procedural mechanisms for this court
to reexamine these maps once again are likewise barred. Yet
here we are.
¶124 This case, along with all the factual disputes and
legal issues it presents, or could even possibly present, have
already been thoroughly litigated at the highest courts of this
state and the nation. The parties are precluded from bringing
new claims now over the same maps this court has already
rendered judgment on. Accordingly, this court should not be
reexamining the congressional or state legislative maps we
imposed as a judicial remedy less than two years ago under the
guise of seeking district "contiguity" or avoiding violation of
the principle of "separation of powers."
¶125 The new court majority's handling of this case strikes
a resounding blow at the root of our shared foundational
judicial principles and duties. We should never have taken this
case. This court should not have engaged in a vaunted show of
judicial window dressing in pretending that the outcome of this
case was not already predetermined from the outset. There is
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only one way the majority can justify its extraordinary steps
taken in flagrant defiance of our precedent, our law, and our
nation's highest court: raw judicial power.
¶126 This case should be dismissed as improvidently
granted. Be that as it may, this court cannot now address
issues which these parties had a prior opportunity to raise,
decided not to, and now seek to raise before Johnson III is even
cold, and do so in an unnecessarily constrained timeframe that
runs up against our 2024 election cycle. Justice, due process,
and the court system's reliance on finality of judgments, demand
this case's dismissal and its arguments precluded under stare
decisis, standing, judicial estoppel, issue preclusion, claim
preclusion, laches, and due process. Unlike the majority
opinion, I will address them in detail.
A. Stare Decisis
¶127 These four members of the court fundamentally
undermine this essential legal principle in their quest to
deliver a predetermined outcome to their constituents.
¶128 The doctrine of stare decisis inhibits the majority's
exercise of raw judicial power in seeking to overrule a case so
recently decided. We do not formulaically adhere to, or quickly
dispense with, stare decisis simply as a means for avoiding hard
questions. Stare decisis is not judicial window dressing.
Rather, stare decisis is a foundational concept in our legal
system because "respect for prior decisions is fundamental to
the rule of law." Johnson Controls, Inc., 264 Wis. 2d 60, ¶94.
Stare decisis "ensures the integrity of the judicial system by
45
No. 2023AP1399-OA.akz
developing consistency in legal principles and establishing that
cases are grounded in the law, not in the will of individual
members of the court." State v. Roberson, 2019 WI 102, ¶97, 389
Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting). "This
court follows the doctrine of stare decisis scrupulously because
of our abiding respect for the rule of law." Hinrichs v. DOW
Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37 (quoting
Johnson Controls, Inc., 264 Wis. 2d 60, ¶94). "That is why we
require a special justification in order to overturn our
precedent." State v. Johnson, 2023 WI 39, ¶19, 407 Wis. 2d 195,
990 N.W.2d 174. A mere change in the composition of the court
does not rise to the high level of the "special justification"
standard required to overturn a prior case. Mayo v. Wis.
Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383
Wis. 2d 1, 914 N.W.2d 678 (Ann Walsh Bradley, J., dissenting)
("The decision to overturn a prior case must not be undertaken
merely because the composition of the court has changed.").
¶129 Adherence to stare decisis is essential because there
is no finality in judgment "[w]hen constitutional interpretation
is open to revision in every case, [as] 'deciding cases becomes
a mere exercise of judicial will, with arbitrary and
unpredictable results.'" Citizens Util. Bd. v. Klauser, 194
Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, C.J.,
dissenting) (quoting Appeal of Concerned Corporators of
Portsmouth Sav. Bank, 525 A.2d 671, 701 (N.H. 1987) (Souter, J.,
dissenting)). Departing from a prior decision——decided so
recently and affecting the same set of facts——erodes "public
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faith in the judiciary as a source of impersonal and reasoned
judgments." Moragne v. States Marine Lines, Inc., 398 U.S. 375,
403 (1970).
¶130 From the start of this Johnson litigation cycle, the
relevant parties, including the Governor, Senate Democrats, and
the Citizen Mathematicians and Scientists, agreed and this court
determined that "municipal islands" are "legally contiguous even
if the area around the island is part of a different district."
Johnson I, 399 Wis. 2d 623, ¶36; see also Joint Stip. of Facts &
Law supra ¶88 ("Contiguity for state assembly districts is
satisfied when a district boundary follows the municipal
boundaries. Municipal 'islands' are legally contiguous with the
municipality to which the 'island' belongs."). And they have
been, for years.58 That holding was reiterated by this court
again in Johnson II and yet again in Johnson III when we adopted
proposed remedial maps——including remedial maps proposed by
parties who now argue for a different interpretation of
contiguity——which contained municipal islands. These holdings
on contiguity, which three members of the current majority did
not take fault with in their dissents, were in line with the
court's understanding of contiguity, as reflected in the maps
that existed since the 1950s or 1960s, according to counsel,
previous 50 years of law on the topic, the parties own agreement
Oral argument in Clarke v. Wis. Elections Comm'n, No.
58
2023AP1399-OA, held Nov. 21, 2023, available on WisconsinEye
https://wiseye.org/2023/11/21/wisconsin-supreme-court-rebecca-
clarke-v-wisconsin-elections-commission/ (Rebuttal arguments of
Attorneys Sam Hirsch and Mark Gaber at 2:53:00 and 3:01,
respectively.)
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that the maps are contiguous, and the court's reliance on
Prosser v. Elections Bd., 793 F. Supp. 859, 866 (W.D. Wis. 1992)
(per curiam) ("Since the distance between town and island is
slight, we do not think the failure of the legislative plan to
achieve literal contiguity a serious demerit; and we note that
it has been the practice of the Wisconsin legislature to treat
islands as contiguous with the cities or villages to which they
belong.").
¶131 The court's determination that municipal islands were
constitutionally permissible in Johnson I was essential to the
court's provision of a remedy, so the allegation that these
repeated holdings and determinations were dicta or simply
"cursory" comments is farcical. Majority. op., ¶¶22-23. Using
a dicta allegation as an "end run around stare decisis" in this
present case "undermines our common law tradition of fidelity to
precedent." Est. of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶85,
318 Wis. 2d 553, 769 N.W.2d 481 (Ann Walsh Bradley, J.,
concurring in part and dissenting in part); State v. Picotte,
2003 WI 42, ¶61, 261 Wis. 2d 249, 661 N.W.2d 381.
¶132 The majority dismisses 50 years of precedent, a
federal court determination in Prosser, and three successive
binding determinations by this court in Johnson I, II, and III
in order to do away with a necessary stare decisis analysis
which does not trend in their favor. As an analysis shows, this
contiguity precedent did not demand a literal physically
touching definition. Johnson I, 399 Wis. 2d 623, ¶36; see also
Prosser, 793 F. Supp. at 866 ("Since the distance between town
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No. 2023AP1399-OA.akz
and island is slight, we do not think the failure of the
legislative plan to achieve literal contiguity a serious
demerit; and we note that it has been the practice of the
Wisconsin legislature to treat islands as contiguous with the
cities or villages to which they belong."). The court then, as
the court should now be, was "not persuaded . . . that the
Wisconsin Constitution requires literal contiguity." Id. Stare
decisis, as a principle, does not require the court to "retain
constitutional interpretations that were objectively wrong when
made." Koschkee v. Taylor, 2019 WI 76, ¶8 n.5, 387 Wis. 2d 552,
929 N.W.2d 600. But "objectively wrong" is a high bar to
overcome, one which is not overcome here, as there is simply no
reason for overruling Johnson I and Johnson III that would not
also counsel overruling any other case.
¶133 The law demands a stare decisis analysis. That is
notably absent from the majority opinion. The court's new
composition does not dispense with the need for such analysis,
and the opinion they put forward does not satisfy the "special
justification" bar required to overturn a precedential case.
See Mayo, 383 Wis. 2d 1, ¶110 (Ann Walsh Bradley, J.,
dissenting) ("The decision to overturn a prior case must not be
undertaken merely because the composition of the court has
changed.")
¶134 Given that the court's membership is all that has
changed, it lends credence to the fact that overruling a case so
recently decided——in violation of foundational legal
principles——is little more than the majority's impermissible
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No. 2023AP1399-OA.akz
exercise of raw judicial power for activist means. Fidelity to
stare decisis and the rule of law impedes these activist means.
B. Standing
¶135 The majority donates barely a paragraph to dispel of a
rather glaring issue——whether the parties even have the
requisite standing necessary to bring their claims. The
majority's retreat to a position of "we need not address" the
arguments that we find potentially problematic is unsurprising,
yet disappointing. The issue of standing is not so easily
dispensed with as the majority opinion suggests. Majority op.,
¶¶38-39. Standing may actually prove to be rather problematic
to them.
¶136 Standing in Wisconsin is "not a matter of
jurisdiction, but of sound judicial policy." Friends of Black
River Forest v. Kohler Co., 2022 WI 52, ¶17, 402 Wis. 2d 587,
977 N.W.2d 342; Wis. Bankers Ass'n Inc. v. Mut. Sav. & Loan
Ass'n of Wis., 96 Wis. 2d 438, 444 n.1, 291 N.W.2d 869 (1980);
State ex rel. First Nat'l Bank of Wisconsin Rapids v. M & I
Peoples Bank of Coloma, 95 Wis. 2d 303, 308 n.5, 290 N.W.2d 321(1980). "[T]he Wisconsin standing analysis is conceptually
similar to the federal analysis." Waste Mgmt. of Wis., Inc. v.
DNR, 144 Wis. 2d 499, 509, 424 N.W.2d 685 (1988). With this
approach, the court asks, "Does the challenged action cause the
petitioner injury in fact?" And "is the interest allegedly
injured arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in
question?" Friends of Black River Forest, 402 Wis. 2d 587, ¶18
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No. 2023AP1399-OA.akz
(citing Ass'n of Data Processing Serv. v. Camp, 397 U.S. 150,
153 (1970)). "'Standing' is a concept that restricts access to
judicial remedy to those who have suffered some injury because
of something that someone else has either done or not done."
Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis. 2d 288, 766
N.W.2d 517 (quoting Three T's Trucking v. Kost, 2007 WI App 158,
¶16, 303 Wis. 2d 681, 736 N.W.2d 239). "In order to have
standing to sue, a party must have a personal stake in the
outcome of the controversy." Madison v. Fitchburg, 112 Wis. 2d
at 228 (emphasis added); see also Mast v. Olsen, 89 Wis. 2d 12,
16, 278 N.W.2d 205 (1979); Tri-State Home Improvement Co. Inc.
v. LIRC, 111 Wis. 2d 103, 113, 330 N.W.2d 186 (1983); Moedern v.
McGinnis, 70 Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975). Being
harmed "without more, does not automatically confer standing."
Krier, 317 Wis. 2d 288, ¶20.
¶137 Standing analysis can vary "depending on the nature of
the claim asserted." Chenequa Land Conservancy, Inc. v. Village
of Hartland, 2004 WI App 144, ¶13, 275 Wis. 2d 533, 685
N.W.2d 573. In dealing with redistricting claims however, the
United States Supreme Court has determined that residents cannot
allege harms "result[ing] from the boundaries" of other
residents' districts, but the harms allegedly suffered must
emanate from the boundaries of the particular resident's
"particular district": they must be "district specific" harms
suffered. Gill v. Whitford, 585 U.S. ___, 138 S. Ct. 1916, 1930
(2018). If a harm is found, "the remedy that is proper and
sufficient lies in the revision of the boundaries of the
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individual's own district"; a remedy "does not necessarily
require restructuring all of the State's legislative districts."
Id. at 1930-31.
¶138 Petitioners' assertion that they have standing because
the allegedly non-contiguous districts render a "less responsive
and less representative" legislature, and they are thus harmed
by legislators who have "difficulty advancing constituent
interests" in fragmented districts, cannot advance a cognizable
injury which this court can remedy. Many of the petitioners do
not live in the municipal islands in question, let alone the
supposedly non-contiguous districts surrounding them.59 For
these parties who do not live in these scrutinized districts,
the Supreme Court outlined in Sinkfield v. Kelley that they also
cannot allege a harm or present a cognizable injury on the basis
of residing in districts which merely border allegedly
unconstitutional districts. Sinkfield v. Kelley, 531 U.S. 28,
30-31 (2000) (per curiam). The majority seems to have misplaced
these pertinent facts somewhere along the way, and has not had
the good fortune to stumble back over them. Parties cannot
assert a generalized grievance when they themselves do not live
in, nor are directly harmed by, the presence of municipal
islands which have been in place for over 50 years. In many of
Only some of the petitioners allege to live in a district
59
with a municipal island, and none articulate a concrete
injury: two petitioners live in districts with islands of zero
residents, three petitioners live in districts with islands of
one to four residents, and the remaining petitioners and Citizen
Mathematicians and Scientists don't claim to live in districts
with municipal islands.
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the districts of which they complain, the "islands" can be
absorbed into the existing district so not to require much
judicial map drawing at all.
¶139 The majority also fails to advance a compelling answer
for how the petitioners' alleged initial harm, that they are
unable "to achieve a Democratic majority in the state
legislature," is the fault of municipal islands which
overwhelmingly contain zero to 20 residents.60 Nor is it clear
why this court, in order to remedy that far-fetched alleged
harm, must toss statewide maps it adopted as a judicial remedy
just last year. The majority's lack of methodology leaves the
public and members of the legislature in limbo. Majority op.,
¶3. The majority plays the game without letting anyone else
know the rules.
¶140 Connections between the alleged harm and the extreme
remedy initially sought are strained to the point of breaking.
Perhaps the majority recognizes this, as they duck any and all
discussion or analysis of Gill v. Whitford. Gill helpfully
limits alleged harms to what parties can show is "district
specific," not "result[ing] from the boundaries" of other
people's districts, and would, if harms were nonetheless found,
limit remedy to "revision of the boundaries of the individual's
own district" instead of "requir[ing] restructuring all of the
State's legislative districts." Gill, 138 S. Ct. at 1930-31.
In briefing and oral argument, the parties identified 211
60
"municipal islands," of which approximately 33% have zero
residents, more than 80% have less than 20 residents, and a mere
5% of these contain 100 or more residents.
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No. 2023AP1399-OA.akz
Parties alleging generalized grievances lack standing to demand
the extreme statewide remedy they seek.
¶141 While this court has previously recognized that the
Governor has standing to bring a redistricting challenge on
behalf of the state's citizens,61 a point the majority clings to,
the Governor had his day in court and agreed the maps were
contiguous. The majority fails to wrestle with the very real
reality of what happens when the Governor——who they argue has
the clearest claim to standing——was a party in the previous
judicial proceedings and is precluded for a host of reasons from
bringing these claims now. Evidently then, the rest of this
hastily erected house of cards starts to crumble, and the
majority would then be forced to address the numerous standing
issues of the remainder of the parties. But it fails to even
begin this analysis.
¶142 Stated differently, if the one party who may have the
clearest claim to standing, the Governor, is nonetheless
estopped and precluded from relitigating claims this court has
already addressed, then the others are left without a leg to
stand on. Nothing plus nothing is still nothing, unless your
judges do not require that the parties have standing in order to
wholesale redraw only the maps that do not lean Democratic.
C. Judicial Estoppel
61 "[The] state, acting . . . through the Governor . . . ,
may challenge the constitutionality of a state reapportionment
plan as a violation of state constitutional rights of the
citizens." State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544,
552, 126 N.W.2d 551 (1964).
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¶143 Judicial estoppel is a preclusion principle "intended
to protect the judiciary as an institution from the perversion
of judicial machinery[.]" Petty, 201 Wis. 2d at 346 (quoting
Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.
1982)). Simply, judicial estoppel "protect[s] [courts] against
a litigant playing 'fast and loose with the courts' by asserting
inconsistent positions" at different stages of the litigation
cycle. State v. Fleming, 181 Wis. 2d 546, 557, 510 N.W.2d 837(1993) (quoting Yanez v. United States, 989 F.2d 323, 326 (9th
Cir. 1993)). Thus, a party is judicially estopped from
"asserting a position in a legal proceeding and then
subsequently asserting an inconsistent position." Petty, 201
Wis. 2d at 347; see also State v. Mendez, 157 Wis. 2d 289, 294,
459 N.W.2d 578, 580 (Ct. App. 1990); Coconate, 165 Wis. 2d at
231. "[T]he doctrine is not reducible to a pat formula."
Petty, 201 Wis. 2d at 348. But the analysis conducted
"recognize[s] certain boundaries," Levinson v. United States,
969 F.2d 260, 264-65 (7th Cir. 1992), including whether (1) the
party's later position is clearly inconsistent with the earlier
position; (2) whether the facts at issue are the same in both
cases; and (3) whether the party to be estopped convinced the
first court to adopt its position. State v. Harrison, 2020 WI
35, ¶27, 391 Wis. 2d 161, 942 N.W.2d 310.
¶144 In the Johnson litigation, the parties' "earlier
position" was that Article IV's contiguity requirement was
satisfied without requiring literal physical contiguity. Both
Governor Evers and the Citizen Mathematicians and Scientists
55
No. 2023AP1399-OA.akz
stipulated that municipal islands are legally contiguous with
the municipality to which the "island" belongs, so literal
contiguity was essentially not required. Joint Stip. of Facts &
Law supra ¶88; see Prosser, 793 F. Supp. at 866 (three-judge
panel). And that made sense. So the court concluded municipal
islands were thus allowable within the understanding and
precedent of contiguity. According to counsel at oral argument,
Wisconsin has utilized faulty, "non-contiguous" maps since the
1950s or 1960s.62 The Governor had no quarrel with this, as just
last year he proposed remedial maps containing the municipal
islands which he now decries. He now argues in direct
opposition to the argument then made. He now avers that our
constitution requires literal physical contiguity and municipal
islands are not allowable. Why the change of heart? A change
in the court. The facts at issue between the earlier round of
Johnson litigation and this current round of litigation are the
same, satisfying the second element.
¶145 The Governor and the Citizen Mathematicians and
Scientists persuaded the court to adopt a position on
contiguity, as evidenced in their initial briefing in Johnson.
These parties also stipulated to contiguity. Joint Stip. of
Facts & Law supra ¶88 ("Contiguity for state assembly districts
is satisfied when a district boundary follows the municipal
Oral argument in Clarke v. Wis. Elections Comm'n, No.
62
2023AP1399-OA, held Nov. 21, 2023, available on WisconsinEye
https://wiseye.org/2023/11/21/wisconsin-supreme-court-rebecca-
clarke-v-wisconsin-elections-commission/ (Rebuttal arguments of
Attorneys Sam Hirsch and Mark Gaber at 2:53:00 and 3:01,
respectively.)
56
No. 2023AP1399-OA.akz
boundaries. Municipal 'islands' are legally contiguous with the
municipality to which the 'island' belongs.") The Governor
proposed maps in Johnson that contained what he now argues is
noncontiguous territory, yet he then argued it was a
constitutionally compliant map.63 This court initially adopted
his maps in Johnson II on the grounds of their purported
constitutional compliance. These facts collectively beggar
belief then that the court was not "convinced" by the parties to
adopt a position on contiguity one way or the other. The
parties convinced this court to adopt their positions related to
contiguity in Johnson and now attempt to convince this
differently constituted court to adopt their changed position.
¶146 Judicial estoppel is an equitable doctrine which is a
matter of discretion. That fact should not give the court pause
when that analysis is overlaid on the facts of the case before
us now. Even where courts have hesitated to exercise their
judicial discretion in invoking this doctrine, they have
nonetheless recognized that such hesitancy arises in cases where
courts are "more uncertain . . . that the two judicial actions
concern the same factual issues or positions," as judicial
estoppel "should be used only when the positions taken are
clearly inconsistent." Harrison v. LIRC, 187 Wis. 2d 491, 497-
See, generally, State v. English-Lancaster, 2002 WI App
6374, 252 Wis. 2d 388, 642 N.W.2d 627; see also Cnty. of Milwaukee
v. Edward S., 2001 WI App 169, 247 Wis. 2d 87, 633 N.W.2d 241(concluding when a party asks the court for something, and the
court provides it, the party cannot later argue that the very
thing they requested was unlawful.).
57
No. 2023AP1399-OA.akz
98, 523 N.W.2d 138 (Ct. App. 1994). Petitioners64 advanced
positions here which are clearly inconsistent with their
positions advanced in Johnson I and II. Hesitation to invoke
judicial estoppel is not necessary. These parties are
judicially estopped from launching this unprincipled attack on
the court's prior decisions in the Johnson litigation. And, as
referenced earlier in this dissent's section on standing, supra
section II B., the fact that the Governor can be judicially
estopped from bringing this claim directs the court majority
back to the foundational——and in this instance, foundationally
problematic——issue of addressing the other parties' severely
weakened assertions of standing to bring these claims in the
first place.
D. Issue Preclusion
¶147 Any trial lawyer or judge knows that parties in
litigation often stipulate to certain elements of that
litigation. And when they do, those stipulations are largely
accepted by the court, and not necessarily analyzed to the same
extent as the remaining live issues before the court.
Stipulations often streamline litigation and allow resources to
be devoted to the crux of the case. Quite obviously then, when
all parties agree on an issue, that matter may not receive the
same precise, detailed scrutiny and analysis as the matters that
are fully at issue and being fully litigated without
stipulation. Contiguity was agreed upon and concluded in
Johnson.
64 Governor Evers and Citizen Mathematicians and Scientists.
58
No. 2023AP1399-OA.akz
¶148 Were this problematic original action to somehow
survive the numerous procedural issues already facing it, it
would still not hold up under an issue and claim preclusion
analysis. The doctrine of issue preclusion, previously known as
collateral estoppel, clearly bars the parties from relitigating
what was already decided in the Johnson litigation. "The
doctrine of issue preclusion . . . is designed to limit the
relitigation of issues that have been actually litigated in a
previous action." Aldrich, 341 Wis. 2d 36, ¶88. The focus of
the analysis is on whether a particular issue——that is, the
application of law to a given set of facts——was decided in a
previous case. See N. States Power Co. v. Bugher, 189
Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995). "[T]he rights of
persons not parties to the original litigation may be
implicated . . . ." Kruckenberg v. Harvey, 2005 WI 43, ¶57, 279
Wis. 2d 520, 694 N.W.2d 879.
¶149 "In the first step of the analysis, we must determine
whether the issue or fact was actually litigated and determined
in the prior proceeding by a valid judgment in a previous action
and whether the determination was essential to the judgment."
Dostal, 405 Wis. 2d 572, ¶24. "An issue is 'actually litigated'
when it is 'properly raised, by the pleadings or otherwise, and
is submitted for determination, and is determined.'" Id.; see
also Randall v. Felt, 2002 WI App 157, ¶9, 256 Wis. 2d 563, 647
N.W.2d 373 (quoting Restatement (Second) of Judgments § 27 cmt.
d (1980)). If the issue is properly raised and thus actually
litigated, then a court conducts a fundamental fairness analysis
59
No. 2023AP1399-OA.akz
based on the facts of the case, to see if applying the doctrine
of issue preclusion comports with principles of fundamental
fairness. Est. of Rille v. Physicians Ins. Co., 2007 WI 36,
¶38, 300 Wis. 2d 1, 728 N.W.2d 693; see also Mozrek v. Intra
Fin. Corp, 2005 WI 73, ¶17, 281 Wis. 2d 448, 699 N.W.2d 54.
¶150 Contiguity was actually litigated and determined in a
prior proceeding. The assertion that an essential element of
the Johnson litigation which parties stipulated to, was not
"actually litigated," struggles to find basis in the law. The
majority cites to the Restatement (Second) of Judgments to
bolster their claim.65 The parties' stipulation was, "Contiguity
for state assembly districts is satisfied when a district
boundary follows the municipal boundaries. Municipal 'islands'
are legally contiguous with the municipality to which the
'island' belongs." Joint Stip. of Facts & Law supra ¶88.
¶151 The parties' stipulation and conclusions of the court
in Johnson end the analysis. In Johnson this court asked the
parties to address in their briefing the constitutional
parameters that the court should be bound by in drawing or
appointing constitutionally compliant maps. The parties did so.
This court, as the parties did, determined that municipal
islands were constitutionally permissible within the
understanding of contiguity: the parties drew and proposed
remedial maps containing municipal islands, arguing that their
maps containing these islands satisfied contiguity, and the
"An issue is not actually litigated if . . . it is the
65
subject of a stipulation between the parties." Restatement
(Second) of Judgments 27 cmt. e (1982).
60
No. 2023AP1399-OA.akz
court accepted three times that municipal islands satisfied
contiguity in Johnson I, II, and III. The court's decision in
the Johnson litigation was central to the judgment. The issue
of contiguity was thus "properly raised" by the parties and
"actually litigated."
¶152 Parties' stipulations in litigation are an everyday
occurrence, and they are relied upon. The court should not
upend this commonplace understanding.
¶153 Though a court "may permit or deny the application of
the doctrine of issue preclusion on the basis of fundamental
fairness," no recognized factors counsel against the doctrine's
application. Est. of Rille, 300 Wis. 2d 1, ¶60. We consider
five factors for determining whether issue preclusion should be
applied:
1) Could the party against whom preclusion is sought
have obtained review of the judgment as a matter of
law;
2) Is the question one of law that involves two
distinct claims or intervening contextual shifts in
the law;
3) Do significant differences in the quality or
extensiveness of proceedings between the two courts
warrant relitigation of the issue;
4) Have the burdens of persuasion shifted such that
the party seeking preclusion had a lower burden of
persuasion in the first trial than in the second;
and
5) Are matters of public policy and individual
circumstances involved that would render the
application of collateral estoppel to be
fundamentally unfair, including inadequate
opportunity or incentive to obtain a full and fair
adjudication in the initial action?
61
No. 2023AP1399-OA.akz
Id., ¶61. None of these factors are applicable to this case.
The Governor and the Citizen Mathematicians and Scientists
obtained review when this court addressed redistricting in
Johnson. We "granted intervention to all parties that sought
it." Johnson II, 400 Wis. 2d 626, ¶2. As for the second
factor, nothing has changed. We are looking at the same maps
and the same sort of claims. There has not even been an
intervening change in the law, merely an intervening change in
the court's membership. Despite requests by Alabama for the
Supreme Court to significantly rework its voting rights
jurisprudence, the Court recently reaffirmed the very same VRA
framework we applied in Johnson. See Allen v. Milligan, 599
U.S. 1, 143 S. Ct. 1487 (2023).
¶154 The parties have insisted on bringing these claims as
original actions and decline to go the route of traditional
factfinding. This court may use factfinding procedures such as
referees in actions where it has taken original jurisdiction.66
This court cannot delegate to this referee the judicial power
vested solely in them by the Wisconsin Constitution, however.
Universal Processing Servs. v. Cir. Ct. of Milwaukee Cnty., 2017
WI 26, ¶36, 374 Wis. 2d 26, 892 N.W.2d 267. Nor is there
anything in the permissive language of this statute enabling
this court to force parties to utilize such factfinding
procedures now after the fact. If the parties now have issues
or complaints with the quality of this court's proceedings in
the Johnson cases, they have only themselves to blame in
66 Wis. Stat. § 751.09.
62
No. 2023AP1399-OA.akz
foregoing the routine factfinding process. The opportunity to
address contiguity was in Johnson or via a possible motion for
reconsideration. At any measure, this court is not a
factfinding tribunal. The parties have decided to bring this
case as an original action and forego the traditional
factfinding processes. So, it is this court's loss that we do
not have a record before us to otherwise help inform on our
decision.
¶155 Finally, the fifth factor counsels against
relitigation. Redistricting is a process that, under our state
constitution, is only supposed to occur once every decade. Wis.
Const. art. IV, § 3 ("At 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.").
"It is now settled that without a constitutional change
permitting it no more than one legislative apportionment may be
made in the interval between two federal [censuses]." State ex
rel. Smith v. Zimmerman, 266 Wis. 307, 312, 63 N.W.2d 52 (1954).
"No doubt, one of the objections of the constitutional provision
was to prevent juggling with apportionments." State ex rel.
Hicks v. Stevens, 112 Wis. 170, 180, 88 N.W. 48 (1901).
Reopening these previously resolved issues wreaks havoc on
judicial finality and distorts our constitutional policy of
ensuring that settled legislative and congressional maps remain
that way. Issue preclusion effectively bars the Governor and
63
No. 2023AP1399-OA.akz
the Citizen Mathematicians and Scientists from undermining these
settled principles.
¶156 This original action involves the same maps, the same
redistricting processes, many of the same parties, and already-
addressed claims. This court reviewed the proposed maps for
compliance with federal and state constitutional law, as well as
compliance with this court's limited judicial role (least
change), ultimately selecting the Legislature's maps on those
grounds. Johnson III, 401 Wis. 2d 198, ¶¶60-73. Now, after the
litigation cycle has run its course, these parties, the Governor
and the Citizen Mathematicians and Scientists, are dissatisfied
with the outcome and want to make claims and raise issues which
we have already decided and are now precluded. Issue preclusion
effectively bars their attempt to do so. While the outcome may
not have been what these parties wanted, they must nonetheless
live with the court's decision.
¶157 As a side note, the parties attempted to backdoor
considerations of "partisan fairness" or "partisan
gerrymandering" back into the court's analysis by way of at
least initially confining it to the remedy phase. The majority
continues that ill-fated venture of taking up an issue that both
this court and the United States Supreme Court have determined
is non-justiciable,67 by attempting to wrap it up in the perhaps
more pleasant euphemism of "partisan impact," which the majority
"will consider. . . . when evaluating remedial maps." Majority.
67 See Johnson I, 399 Wis. 2d 623; Rucho v. Common Cause,
588 U.S. ___, 139 S. Ct. 2484 (2019).
64
No. 2023AP1399-OA.akz
op., ¶69. Never mind figuring out how exactly the majority
plans to go about evaluating "partisan impact" or determining
how much "partisan impact" is permissible and how much is too
much. They provide no measurable standard for calculating it.
Apparently then, it is for them to know, and for us to find out!
"The fact that the majority imposes its own unique and undefined
standard further demonstrates that it exercises its will rather
than its judgment." Hawkins v. Wis. Elections Comm'n, 2020 WI
75, ¶49, 393 Wis. 2d 629, 948 N.W.2d 877 (Ziegler, J.,
dissenting).
¶158 Why backdoor an issue that they did not think merited
full consideration as they refused to take it up in the petition
for original action? Perhaps because in going about it this
way, members of the majority hope to evade appellate review.
Perhaps because with this issue, members of the majority are
more wary of stare decisis. The majority knows that this court
has already directly addressed the issue at length. We already
considered and settled the issue of partisan gerrymandering as
related to these maps, determining that the Wisconsin
Constitution has nothing to say about partisan gerrymandering or
partisan fairness, and therefore it is not a justiciable legal
claim which this court can resolve. Johnson I, 399 Wis. 2d 623.
This court, in line with the United States Supreme Court,
determined previously that "[t]he Wisconsin Constitution
contains 'no plausible grant of authority' to the judiciary to
determine whether maps are fair to the major parties . . . ."
Id., ¶52 (quoting Rucho, 139 S. Ct. at 2507). Finally, this
65
No. 2023AP1399-OA.akz
court recognized that nothing in the law authorizes this court
to grant parties relief based on whether a particular map
achieves proportional partisan representation. Johnson I, 399
Wis. 2d 623, ¶45 ("The people have never consented to the
Wisconsin judiciary deciding what constitutes a 'fair' partisan
divide."). So, if this court were to get involved in this
discussion, it would violate the separation of powers principle
these parties are concerned with by "encroach[ing] on the
constitutional prerogative of the political branches." Id.¶159 As explained above, Johnson I thoroughly examined the
question of whether the Wisconsin Constitution prohibits the
legislature from engaging in partisan gerrymandering. Id.,¶¶39–63. We explained that partisan fairness is a political
question constitutionally assigned to the legislature, and that
no provision of our state constitution forbids the legislature
from gerrymandering to produce a partisan advantage. Id.Again, this court is not a political body empowered to resolve
political disputes: it is a judicial body empowered to resolve
legal disputes. Wis. Justice Initiative, 407 Wis. 2d 87, ¶¶68-
69 (Rebecca Grassl Bradley, J., concurring). It is inevitable
that a partisan body, such as the legislature, would reach a
result that is in some measure, partisan. See Whitford v. Gill,
218 F. Supp. 3d 837, 939 (W.D. Wis. 2016) (Griesbach, J.,
dissenting) ("[P]artisan intent is not illegal, but is simply
the consequence of assigning the task of redistricting to the
political branches of government.") rev'd sub nom., Whitford v.
Gill, 138 S. Ct. 1916 (2018).
66
No. 2023AP1399-OA.akz
¶160 The majority's reliance on foreign case law fares no
better in propping up their attempt to relitigate partisan
fairness outside of the pesky limitations of "least change."
Foreign cases are not binding on this court. Additionally, the
United States Supreme Court concluded in Rucho that "judicial
review of partisan gerrymandering does not meet th[e] basic
requirements" that 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" so partisan gerrymandering claims are non-justiciable.
Rucho, 139 S. Ct. at 2507. The parties rush right past the
clear directive in Rucho and fail to cite to or even address its
influence over the various federal cases they cite.
¶161 This court must not allow a non-justiciable, political
question like partisan fairness to be camouflaged into the
majority's decision. The majority declines to put forward a
measurable standard by which this court is supposed to define or
determine "partisan impact," demonstrating that they
"exercise[]. . . . [their] will rather than [their] judgment."
Hawkins, 393 Wis. 2d 629, ¶49 (Ziegler, J., dissenting). Their
standard-deficient approach evokes recollections of the
"eyeballing" tests from bygone legal eras encapsulated in "we'll
know it when we see it" terminology.68 This court has already
68 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart,
J., concurring) ("I shall not today attempt further to define
the kinds of material I understand to be embraced within that
shorthand description; and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it. . . .").
67
No. 2023AP1399-OA.akz
addressed the issues of partisan gerrymandering and political
fairness, as well as contiguity. Issue preclusion bars us now
from allowing these relevant parties to relitigate what has
already been litigated.
E. Claim Preclusion
¶162 The Governor and the Citizen Mathematicians and
Scientists raise an issue which was decided in Johnson——
contiguity——and raised an issue which was not decided in Johnson
——separation of powers. Regardless, the doctrine of claim
preclusion bars both claims from being brought now. See Dostal,
405 Wis. 2d 572, ¶24 ("[C]laim preclusion . . . extends to all
claims that either were or could have been asserted in the
previous litigation.").
Three elements must be present for an earlier action
to bar a subsequent action: "(1) an identity between
the parties or their privies in the prior and present
suits; (2) an identity between the causes of action in
the two suits; and, (3) a final judgment on the merits
in a court of competent jurisdiction."
Fed. Nat'l Mortgage Ass'n v. Thompson, 2018 WI 57, ¶31, 381
Wis. 2d 609, 912 N.W.2d 364 (quoting N. State Power Co., 189
Wis. 2d at 551). "A final judgment is conclusive in all
subsequent actions between the same parties [or their privies]
as to all matters which were litigated or which might have been
litigated in the former proceedings." Lindas v. Cady, 183
Wis. 2d 547, 558, 515 N.W.2d 458 (1994) (quoting Depratt v. West
Bend Mutual Ins. Co., 113 Wis. 2d 306 310, 334 N.W.2d 883(1983)).
68
No. 2023AP1399-OA.akz
¶163 The first element of claim preclusion is easily met.
Both the Governor and the Citizen Mathematicians and Scientists
were parties to the initial Johnson litigation.
¶164 In order to satisfy the remaining second element
necessary for claim preclusion to apply, Wisconsin has adopted a
"transactional approach" from the Second Restatement of
Judgments to inform when there is an "identity between the
causes of action in the two suits." N. States Power Co., 189
Wis. 2d at 551, 553-55; see also Restatement (Second) of
Judgments § 24 (1982). Simply, "if both suits arise from the
same transaction, incident, or factual situation, [claim
preclusion] generally will bar the second suit." N. States
Power Co., 189 Wis. 2d at 554. "The concept of a transaction
connotes a common nucleus of operative facts." Kruckenberg, 279
Wis. 2d 520, ¶26. "It is irrelevant that 'the legal theories,
remedies sought, and evidence used may be different between the
first and second actions.'" Menard v. Liteway Lighting Prods.,
2005 WI 98, ¶32, 282 Wis. 2d 582, 698 N.W.2d 738; see also N.
States Power Co., 189 Wis. 2d at 555 ("[T]he number of
substantive theories that may be available to the plaintiff is
immaterial——if they all arise from the same factual
underpinnings."). To determine whether claims arise from one
transaction, the court "consider[s] whether the facts are
related in time, space, origin, or motivation." Menard, 282
Wis. 2d 582, ¶30 (citing Restatement (Second) of Judgments § 24
cmt. B (1982)).
69
No. 2023AP1399-OA.akz
¶165 The majority contends that these causes of action are
"fundamentally different." Majority op., ¶48. In this current
case, there is far more than a "common nucleus of operative
facts," Kruckenberg, 279 Wis. 2d 520, ¶26, connecting the prior
and current actions, sufficient to satisfy the requirements of
the second element of claim preclusion. We have the Governor
and the Citizen Mathematicians and Scientists, which are
identical to the parties from our Johnson litigation. These
parties brought claims and advanced legal theories "arising from
the same transaction and factual situations" as those this court
already addressed in Johnson I and Johnson III. These parties'
claims are based on the same maps, which are rooted in the same
"factual situations" previously addressed by this court. The
causes of action are related in time, as this most recent
petition was filed a little over a year after this court
concluded this line of litigation involving these legislative
maps in Johnson III, and less than two years since this court
initiated this line of litigation in Johnson I. The
motivations, declaring the current maps unconstitutional on
various grounds, remains the same. While the remedies sought
and some of the legal theories advanced in the subsequent action
differ from those of the prior action, that discrepancy is
immaterial as "they all arise from the same factual
underpinnings": this court's adoption of the Legislature's
redistricting maps. N. States Power Co., 189 Wis. 2d at 555.
The common thread running through this line of Johnson
litigation connects them all to this "common nucleus of
70
No. 2023AP1399-OA.akz
operative facts." The second element of claim preclusion is
satisfied.
¶166 The doctrine of "claim preclusion . . . extends to all
claims that either were or could have been asserted in the
previous litigation." See Dostal, 405 Wis. 2d 572, ¶24.
Contiguity was already raised, addressed, and decided on
previously by a court of competent jurisdiction: this court.
See Johnson I, 399 Wis. 2d 623; Johnson III, 401 Wis. 2d 198.
Claim preclusion forbids the Governor and the Citizen
Mathematicians and Scientists from relitigating the question of
contiguity. Additionally, though they were free to do so, these
parties failed to present their additional separation of powers
claim or advance their additional legal theories in our prior
Johnson litigation cycle. Following this court's decision in
Johnson III, claims which could have been, but for whatever
reason were not raised (separation of powers) are now barred, as
this court's final judgment "is conclusive in all subsequent
actions between the same parties as to all matters which were
litigated or which might have been litigated in the former
proceedings." Lindas, 183 Wis. 2d at 558 (quoting Depratt, 113
Wis. 2d at 310). While claim preclusion bars this separation of
powers argument from being brought now, this argument seemed
destined to be relegated to an honorable mention in a footnote
anyway; perhaps the result of an over-eager party grasping at
baseless straws emanating from a disgruntled dissenter to this
court's decision in Johnson III.
71
No. 2023AP1399-OA.akz
¶167 If the majority's logic holds true, and contiguity was
not properly raised and actually litigated, then there is
nothing stopping any party from waiting this litigation round
out and in similar fashion, waiting until next year and
litigating other issues or points which the court did not
address here. Could parties raise the remaining issues which
the majority declined to take up in the Clarke petition for
original action,69 since they have not been fully litigated
either? What about those similarly raised in Wright which this
court declined to take up? The resulting application of the
majority's logic should be enough to condemn it.
F. Laches
¶168 Where were these parties throughout the Johnson
redistricting litigation? Just over two years ago in Johnson,
under a different court composition, we liberally and freely
"granted intervention to all parties that sought it." Johnson
II, 400 Wis. 2d 626, ¶2. Nothing prevented any of the previous
or new parties to this case from presenting their claims, along
with everyone else, when it was appropriate to do so in Johnson.
Some of these parties, like the Clarke petitioners, for whatever
reason, chose not to accept the open invitation to participate
The three remaining issues which the court declined to
69
take up all center around whether the state legislative
redistricting plans proposed by the legislature and judicially
imposed by this court in Johnson III are "extreme partisan
gerrymanders" implicating various Wisconsin constitutional
provisions and protections.
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at the time this court addressed these issues in Johnson.70
While we should tackle issues that remain to be decided and not
abdicate our responsibility, we should not relitigate issues
that were just decided. The fact that these parties chose not
to participate, or at best made no effort to do so, should not
necessitate the court to now reward that unexplainable dilatory
behavior and encourage litigants to play the same "wait and see"
game.
¶169 "Laches is founded on the notion that equity aids the
vigilant, and not those who sleep on their rights to the
detriment of the opposing party . . . ." State ex rel. Wren v.
Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936 N.W.2d 587;
see also Town of Paris, 148 Wis. 2d at 188 ("[E]quity aids the
vigilant, not those who sleep on their rights."); 27A Am. Jur.
2d Equity § 108 (2023). At its core, laches is "an equitable
defense designed to bar relief when a claimant's failure to
promptly bring a claim causes prejudice to the party having to
defend against that claim." Wis. Small Business United, Inc. v.
Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101.
Courts may apply laches where (1) a party unreasonably delays in
bringing a claim; (2) a second party lacks knowledge that the
first party would raise that claim; and (3) the second party is
prejudiced by that delay. Id., ¶12. Laches, as an equitable
The Clarke petitioners were not parties in the Johnson
70
litigation. However, many of the same law firms and lawyers who
represented parties previously in the Johnson litigation are now
continuing their redistricting litigation fight through new
representation of the Clarke petitioners, including Law Forward,
Inc.; Stafford Rosenbaum LLP; and the Campaign Legal Center.
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No. 2023AP1399-OA.akz
bar, is "designed to bar relief when a claimant's failure to
promptly bring a claim causes prejudice to the party having to
defend against that claim." Id. (quoting Sawyer v. Midelfort,
227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999)).
¶170 This court had a different composition two years ago,
but that fact alone cannot be why these parties chose not to
actively participate in that litigation at that time. To the
dispassionate observer, such contortions of the law appear
questionable and should come with consequences. Surprisingly,
the parties are forthright enough to tell us themselves that
this is in fact their reason for bringing this claim now——after
waiting two years in alleged ongoing state of harm——to ensure
that this case coincided with the changed composition of the
court.71 It defies reason for parties to sit out litigation,
obtain the benefit of seeing how arguments are presented, and
then with that benefit of hindsight, bring their now modified
claims over the same issues, with the same legal representation,
at their leisure, years later. It further defies reason that
given those same facts, and the fact that the respondents would
not have had knowledge of the parties bringing new claims over
the same maps a year later, that the parties can now demand that
71Steve Schuster, Lawsuit to challenge Wisconsin's
legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023),
https://wislawjournal.com/2023/04/06/lawsuit-to-challenge-
wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law
firm is planning to challenge the state's gerrymandered
legislative maps . . . . The lawsuit will be filed after
Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole
Safar, executive director of Madison-based Law Forward,
said . . . .").
74
No. 2023AP1399-OA.akz
this court provide them an extraordinary remedy (overturning
decades of precedent and the votes of millions of
Wisconsinites), and do so in a constrained timeframe of mere
months before another round of elections gets underway. Such
unnecessary fast tracking due to the parties' own inexplicable
delay may rightfully raise questions of intrusion on the
opposing party's rights to fully litigate the claims presented.
¶171 There was unreasonable delay and prejudice here
because "unreasonable delay in laches is based not on what
litigants know, but what they might have known with the exercise
of reasonable diligence." Wren, 389 Wis. 2d 516, ¶20.
Additionally, "[w]hat amounts to prejudice . . . depends upon
the facts and circumstances of each case, but it is generally
held to be anything that places the party in a less favorable
position." Id., ¶32. Respondents could not have known that
parties which brought claims in Johnson would bring claims again
after the result did not go their way: nor could the
respondents have known that parties which could have
participated in Johnson but chose not to, would bring modified
claims after the fact. Rather, respondents as well as millions
of Wisconsinites relied on the court's judicially imposed maps
to conduct the 2022 elections.
¶172 If ever a case was foreclosed by laches, this is that
case. A laches analysis essentially asks, "whether a party
delayed without good reason," and then beyond that, whether that
party's delay "prejudiced the party seeking to defend against
that claim." Brennan, 393 Wis. 2d 308, ¶11; see also Wren, 389
75
No. 2023AP1399-OA.akz
Wis. 2d 516, ¶14. When correctly applied, laches forbids the
court from addressing issues the court has already decided.
This present case is unlike our prior election-related cases
where laches was at issue because in those cases, the court
shirked its responsibility to consider and address live issues
the court had not already decided, but were issues that would
recur and be left uncertain for future elections.72 See Trump v.
Biden, 2020 WI 91, ¶107, 394 Wis. 2d 629, 951 N.W.2d 568(Ziegler, J., dissenting) ("Once again, in an all too familiar
pattern, four members of this court abdicate their
responsibility to [declare what the law is]."); Hawkins, 393
Wis. 2d 629, ¶32 (Ziegler, J., dissenting); Trump v. Evers, No.
2020AP1971-OA, unpublished order (Wis. Dec. 3. 2020); Wis.
Voters Alliance v. Wis. Elections Comm'n, No. 2020AP1930-OA,
unpublished order (Wis. Dec. 4, 2020) (Roggensack, C.J.,
dissenting). Choosing rather to kick the can down the road to
some indeterminate time in the unknown future for anyone but
72The majority misrepresents what happened in Trump v.
Biden, focusing on the remedy rather than the issues. Majority
op., ¶43 n.20. Trump v. Biden was not singularly about a
requested remedy, of this court "overturn[ing] the results of
[an] election." Id. Rather, Trump v. Biden posed four
election-related issues which, absent this court declaring what
the law is, would be left uncertain for future elections;
namely, "[a]bsentee ballots lacking a separate application;
absentee envelopes that are missing or have a defective witness
address; indefinitely confined voters/faulty advice from
election officials; and ballots cast at Madison's Democracy in
the Park/ballot drop boxes." Trump v. Biden, 394 Wis. 2d 629,
¶114 (Ziegler, J., dissenting). To say that the Trump v. Biden
case was limited to a decision regarding one remedy lacks an
understanding about the many issues that were ripe for legal
analysis and should have been decided regardless of the
requested remedy.
76
No. 2023AP1399-OA.akz
that current court majority to have to deal with, is not a
proper application of laches. Here though, we have already
decided the case and its issues throughout the Johnson
litigation. This is not a live, undecided issue. There is no
constitutional crisis whereby absent a court decision there are
no existing maps.
¶173 The parties present no compelling reason why they
should have been allowed to "sit on their hands" and prejudice
the opposing party in not bringing their claims at the time that
the door to such claims was open. The majority echoes the
questionable assertions of counsel at oral argument, that they
could not participate in Johnson because they "ran out of time"
to do so. Majority op., ¶42. Surely, both counsel and the
majority are familiar with the existence of varied deadlines
which constrain parties' actions and reactions throughout a
litigation cycle. Additionally, the majority appears to make
the mistake of starting to toll the laches clock at the
conclusion of Johnson III, instead of where it properly should
start: at Johnson I, when this court invited parties to
participate and granted intervention to those who sought it.
Johnson I, 399 Wis. 2d 623, ¶6. These contortions around laches
to reach a pre-determined outcome make a mockery of our legal
system and prejudice the opposing party who relies on the
finality of this court's decision. This court should not reward
such behavior. Laches applies, and laches bars these untimely
claims.
G. Due Process
77
No. 2023AP1399-OA.akz
¶174 Not only has the majority ignored procedural and legal
principles which would bar consideration of this case, but it
hides from the law concerning due process,73 contributing a mere
two sentences to the important issue. They relegate litigants'
fundamental due process rights to hopeful inconspicuousness in a
footnote.74 What's the rush? Why hide from the issue?
¶175 The foundational legal principle that "no [wo]man can
be a judge in [her] own case" is essential to maintaining a
fair, independent, and impartial judiciary. Williams v.
Pennsylvania, 579 U.S. 1, 8—9 (2016). An independent judiciary
protects "[t]he Constitution and the rights of individuals from
the effects of those ill humors, which the arts of designing
men, or the influence of particular conjectures, sometimes
disseminate among the people themselves." The Federalist No.
78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
It instills public confidence in the fairness of the judicial
process and system, and in the judiciary's role "as apolitical
and neutral arbiters of the law." Johnson I, 399 Wis. 2d 623,
¶72. In contrast, it is the legislature's duty to write the
law, and "until the legislature changes the law it is [the
court's] duty to construe the law as we find it." Fredricks v.
The United States Constitution provides that no state may
73
"deprive any person of life, liberty, or property, without due
process of law." U.S. Const. amend. XIV, § 1.
"Respondents also make a brief argument that adjudicating
74
this case in Petitioners' favor will violate Respondents' due
process rights under the Fourteenth Amendment of the United
States Constitution. These arguments are underdeveloped, and as
such, we do not address them." Majority op., ¶37 n.16.
78
No. 2023AP1399-OA.akz
Kohler Co., 4 Wis. 2d 519, 525-26, 91 N.W.2d 93 (1958); see also
State v. Doxtater, 47 Wis. 278, 288, 2 N.W. 439 (1879) ("It is
our duty to expound and execute the law as we find it . . . .").
These principles are not only fundamental to our governmental
system, but they protect a litigant's constitutional right to
due process of law. This right to due process includes the
right to have one's day in court and to have one's case heard by
a neutral arbiter, as "[a] fair trial in a fair tribunal is a
basic requirement of due process." In re Murchison, 349 U.S.
133, 136 (1955). "The operation of the due process clause in
the realm of judicial impartiality, then, is primarily to
protect the individual's right to a fair trial." People v.
Freeman, 222 P.3d 177, 181 (Cal. 2010). A justice violates
litigants' constitutional rights to due process if there is
"objective proof of actual bias" or "a serious risk of actual
bias." State v. Herrmann, 2015 WI 84, ¶113, 364 Wis. 2d 336,
867 N.W.2d 772 (Ziegler, J., concurring) (citing Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 883-84 (2009)).
¶176 In Caperton, the United States Supreme Court concluded
that a justice was disqualified from hearing an appeal because
his sitting as a judicial officer on the case violated
litigants' due process rights. In a very fact-specific
decision, the Supreme Court reversed the state supreme court
because a recently elected justice failed to recuse himself when
the justice had an "unconstitutional potential for bias."
Caperton, 556 U.S. at 882. A future litigant had spent
significant funds ensuring the judge's election, including the
79
No. 2023AP1399-OA.akz
statutory minimum $1,000 to his campaign committee, another
nearly $2.5 million to a political organization supporting the
candidate, and another over $500,000 on independent expenditures
to support the candidate. Id. at 873. This future potential
litigant's $3 million contribution was "more than the total
amount spent by all other [] supporters and three times the
amount spent by [the candidate's] own committee.” Id. The
contributor had a case that would most certainly be heard by the
newly elected justice. In other words, that contributor made
sure that candidate would decide his case. The Court concluded
that his sitting on a case that would come to him shortly after
his election, was a due process violation because "’under a
realistic appraisal of psychological tendencies and human
weakness,' the interest 'poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee
of due process is to be adequately implemented.'" Id. at 883-84
(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
¶177 The crux of Caperton is that a due process violation
occurs when a party who would like that judicial officer to hear
their case, essentially picks that judicial officer to hear
their case, by funding that judge's election, and knowing that
the newly minted judge will surely sit in judgment of that
interested party's case in the near future. "Approximately 11
months after [the judge] won the election, and shortly before
A.T. Massey filed its petition for appeal, Caperton moved to
disqualify [the judge] in the particular case that was pending
the entire election . . . ." Miller v. Carroll, 2020 WI 56,
80
No. 2023AP1399-OA.akz
¶70, 392 Wis. 2d 49, 944 N.W.2d 542 (Ziegler, J., concurring).
The judge denied the motion nearly six months later, eight
months before the appeal was filed. Caperton, 556 U.S. at 874.
Based on the relative size of [the] contribution in
comparison to the total amount of money contributed to
the campaign; the total amount spent in the election;
the apparent effect such contribution had on the
outcome of the election; and the temporal relationship
between the contribution, the election, and the
pendency of the case, the Supreme Court concluded
there was a serious, objective risk of the [the
justice]'s actual bias in sitting on that particular
case . . . .
State v. Allen, 2010 WI 10, ¶268, 322 Wis. 2d 372, 778
N.W.2d 863 (per curiam) (Ziegler, J., concurring). The facts of
Caperton were so extreme75 that the Supreme Court found that "due
process require[d] recusal" as "the probability of actual bias
[rose] to an unconstitutional level." Caperton, 556 U.S. at
872, 887.
¶178 Reviewing the facts of Caperton versus the facts of
Clarke, it is clear that due process deserves more than a two-
sentence consideration. In Caperton, the interested party knew
that whoever "won the[] election would most certainly be on the
court when it decided whether to sustain or overturn" the
court's verdict against him but that case did not arise for 11
months. Miller v. Carroll, 392 Wis. 2d 49, ¶70 (Ziegler, J.,
concurring) (citing Caperton, 556 U.S. at 872). With Clarke,
"Caperton involved extreme and extraordinary facts which
75
the Supreme Court recognized in its majority opinion no less
than a dozen times." State v. Herrmann, 2015 WI 84, ¶128, 364
Wis. 2d 336, 867 N.W.2d 772 (Ziegler, J., concurring) (citing
State v. Allen, 2010 WI 10, ¶261, 322 Wis. 2d 372, 778 N.W.2d
863 (per curiam) (Ziegler, J., concurring)).
81
No. 2023AP1399-OA.akz
the interested parties filed this case directly with the
Wisconsin Supreme Court just after its candidate was sworn in.
With Caperton, the interested party knew the state's highest
court would consider his pending case on appeal, so he supported
the candidate he wanted to have sit in judgment of his case.
With Clarke, the interested parties supported their candidate so
she would be sitting on their future redistricting case. In
Caperton, the interested party donated or spent $3 million to
help elect his candidate of choice. In Clarke, the interested
parties donated at least $10 million, in a record-breaking
election, to elect their judge who spoke freely of her thoughts
on redistricting.76 In Caperton, the interested party's
"outsized" donation was "more than the total amount spent by all
other[] supporters and three times the amount spent by the [the
candidate's] own committee." Caperton, 556 U.S. at 873. With
Clarke, nearly $60 million was spent,77 ranking Justice
Protasiewicz's campaign as the most expensive judicial campaign
WisPolitics tracks $56 million in spending on Wisconsin
76
Supreme Court race (July 19, 2023), https://www.wispolitics.com/
2023/wispolitics-tracks-56-million-in-spending-on-wisconsin-
supreme-court-race/; see also Wisconsin Supreme Court Race Cost
Record $51 Million, Wis. Democracy Campaign (Mar. 29, 2023),
https://www.wisdc.org/news/press-releases/139-press-release-
2023/7351-protasiewicz-received-2-of-every-3-from-democratic-
party.
Id., https://www.wispolitics.com/2023/wispolitics-tracks-
77
56-million-in-spending-on-wisconsin-supreme-court-race/.
82
No. 2023AP1399-OA.akz
in United States history.78 In Caperton, the interested parties'
chosen judicial candidate won with 53.3% of the vote.79 In
Clarke, the interested parties' chosen judicial candidate won
with 55.5% of the vote.80 In Caperton, the petitioner moved to
disqualify the recently elected justice before bringing his
appeal, but the newly elected judge denied the motion to recuse
six months later. Caperton, 556 U.S. at 874-75. With Clarke,
members of the Wisconsin Legislature filed a recusal motion
against Justice Protasiewicz, but she, also a recently elected
justice, denied their recusal motion. Clarke v. Wis. Elections
Comm'n, 2023 WI 66, ¶5, 409 Wis. 2d 249, 995 N.W.2d 735.
¶179 The parties interested in Justice Protasiewicz's
election are intricately involved with, and beneficiaries of,
the case they filed directly before her in this original action
right after she was sworn in. Their timing of selecting her as
78 This campaign's spending is five times higher than the
previous state record ($10 million for the 2020 Wisconsin
Supreme Court race) and more than three times higher than the
national record spent on a judicial race ($15 million on a 2004
Illinois race). See Wisconsin Supreme Court Race Cost Record
$51 Million, Wis. Democracy Campaign (July 18, 2023),
https://www.wisdc.org/news/press-releases/139-press-release-
2023/7390-wisconsin-supreme-court-race-cost-record-51m.
79 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 873
(2009).
80Liberal judge Janet Protasiewicz won a seat on
Wisconsin's state Supreme Court, flipping the body's ideological
majority, Politico (last updated Nov. 26, 2023),
https://www.politico.com/2023-election/results/wisconsin/
supreme-court/
83
No. 2023AP1399-OA.akz
their judge and then bringing this petition is irrefutable.81
Now, the four members of the court have fast-tracked this
litigation, bypassing and rushing the traditional court steps,
processes, and the law.
¶180 To be clear, Justice Protasiewicz was not shy
expressing her personal viewpoint during her campaign. For
example, at a candidate forum hosted by WisPolitics, then-
candidate Protasiewicz indicated that she entered the race
because she "could not sit back and watch extreme right-wing
partisans hijack our Supreme Court" and remarked, "let's be
clear here, the maps are rigged . . . bottom line, absolutely,
positively rigged. They do not reflect the people of this
state."82 Then-candidate Protasiewicz went on to criticize this
court's "least change approach" to redistricting, saying that it
"might sound good for some people, [but] I see no basis for it
in the constitution, no basis in case law. Basically, what the
Steve
81 Schuster, Lawsuit to challenge Wisconsin's
legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023),
https://wislawjournal.com/2023/04/06/lawsuit-to-challenge-
wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law
firm is planning to challenge the state's gerrymandered
legislative maps . . . . The lawsuit will be filed after
Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole
Safar, executive director of Madison-based Law Forward,
said . . . ."); see also Jack Kelly, Liberal law firm to argue
gerrymandering violates Wisconsin Constitution, The Cap Times
(Apr. 6, 2023), https://captimes.com/news/government/liberal-
law-firm-to-arguegerrymandering-violates-wisconsin-
constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.
Paul Fanlund, Supreme Court election is a chance to beat
82
the far right at its long game, The Cap Times (Jan. 13, 2023),
https://captimes.com/opinion/paul-fanlund/opinion-supreme-court-
election-is-a-chance-to-beat-the-far-right-at-its-
long/article_af9b5d76-a584-54ad-9226-7c9d7a806d12.html.
84
No. 2023AP1399-OA.akz
least-change approach has done, it has taken . . . meaningful
votes away from people in larger communities in Dane County and
Milwaukee County."83 From the outset, then-candidate
Protasiewicz indicated what she, as a presumed future member of
the court, would do: remove least change as an "unworkable"
governing standard in order to clear the way for the newly
constituted court to redraw the maps. Even more directly, then-
candidate Protasiewicz celebrated via her Facebook page,
Politico's highlighting of the Wisconsin Supreme Court race,
exclaiming "POLITICO says that our race could challenge the
court's narrow 4-3 conservative majority and have ramifications
over future redistricting decisions in Wisconsin. Judge Janet
Protasiewicz (@Janet for Justice) Facebook, (Jan. 9, 2023)
(emphasis added) https://www.facebook.com/JanetforJustice. Her
colleague, Justice Rebecca Dallet, campaigned invoking
tremendous out-of-state support, and when at a Democratic-hosted
California fundraiser she said, "I know that [California] values
are our Wisconsin values that we've lost along the way."84
Justice Protasiewicz, also having received much out-of-state
support, has remarked, "I would anticipate that at some point,
we'll be looking at those maps" and that she "would anticipate
that [she] would enjoy taking a fresh look at the gerrymandering
83 Id.Patrick Marley, Court candidate Rebecca Dallet rells San
84
Francisco crowd "your values are our Wisconsin values,"
Milwaukee Journal Sentinel (Mar. 21, 2018),
https://www.jsonline.com/story/news/politics/2018/03/21/court-
candidate-rebecca-dallet-tells-san-francisco-crowd-your-values-
our-wisconsin-values/445869002/.
85
No. 2023AP1399-OA.akz
question."85 The parties even said that this case would be filed
once the new justice was sworn in. And it was.86
¶181 A person, including a justice, has the right to free
speech as protected under both our federal and state
85Jessie Opoien and Jack Kelly, Protasiewicz would "enjoy
taking a fresh look" at Wisconsin voting Maps, The Cap Times
(Mar. 2, 2023), https://captimes.com/news/government/
protasiewicz-would-enjoy-taking-a-fresh-look-at-wisconsin-
voting-maps/article_d07fbe12-79e6-5c78-a702-3de7b444b332.html.
86While then-candidate Protasiewicz did then say, "I can't
ever tell you what I am going to do on a particular case, but I
can tell you my values and common sense tells that it's wrong,"
can you un-ring the bell? Id.86
No. 2023AP1399-OA.akz
constitutions.87 But, that free speech may affect whether that
justice may sit on a case.88
¶182 Due Process does not reward the petitioners' "judge
shopping," as "'[j]udge shopping' has always been taboo."
Allen, 322 Wis. 2d 372, ¶262 (Ziegler, J., concurring). "In
Caperton, the Supreme Court reaffirmed that basic tenet when it
concluded that a litigant's efforts to "choose[] the judge,"
through directing a justice's election campaign and thus placing
that justice on that contributing party's pending case did not
pass constitutional muster." Id., ¶262 (Ziegler, J.,
U.S.
87 Const. amend. I ("Congress shall make no
law. . . . abridging the freedom of speech."); Wis. Const. art.
I, § 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.").
The Supreme Court's decision in Republican Party of
88
Minnesota v. White, 536 U.S. 765, 788 (2002) (holding that a
restriction on an announcement by a candidate for judicial
office of his or her views on disputed legal and political
issues during a campaign violates the First Amendment), is not
incompatible with the Court's decision in Caperton. Put
together, these cases address issues that while complementary,
are yet distinct. In White, the Court was more concerned with
the First Amendment claims and concerns of the judicial
candidate. In Caperton, the Court was more concerned with the
due process claims and concerns of the litigant. Neither
invalidates the other; rather, when contextually read together,
both cases shed some light on the careful balancing act that
courts are routinely engaged in. In the case before us, we must
conduct the unenviable yet necessary act of balancing a judicial
candidate's right to freedom of speech against a claimant's
fundamental right to due process and having his or her claim
heard before a neutral arbiter. The constitutional right to
speak freely is not without its limits. It must yield to
Wisconsin claimants' constitutional rights to due process before
an impartial tribunal.
87
No. 2023AP1399-OA.akz
concurring) (citation omitted). Judges with an
"unconstitutional potential for bias" are required to recuse
themselves to preserve litigants' due process rights. Caperton,
556 U.S. at 881. Even before Caperton, "if a justice should
have been disqualified from considering the case and
nevertheless participates, the decision is void." State v.
Henley, 2011 WI 67, ¶45 n.5, 338 Wis. 2d 610, 802 N.W.2d 175(Abrahamson, C.J., Ann Walsh Bradley and Crooks, JJ.,
dissenting) (citing State v. Am. TV & Appliance of Madison,
Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989)); see also
Caperton, 556 U.S. 868. That determination is even clearer
post-Caperton.
¶183 We don't know whether Caperton will be reviewed by the
Supreme Court. But if not, it seems a new bar has been set.
III. CONCLUSION
¶184 This original action should never have been accepted.
It is nothing more than a motion for reconsideration, which is
time-barred; it ignores stare decisis, standing, judicial
estoppel, issue preclusion, claim preclusion, and laches. Not
only is this a fundamentally legally flawed proceeding for these
preceding listed reasons, but it also raises serious questions
regarding Caperton and whether this proceeding is a violation of
litigants' due process rights. What's next? Pre-selected
"consultants" who will decide the fate of Wisconsin voters even
though the Wisconsin Supreme Court already decided these issues
conclusively in the Johnson litigation? Will these
"consultants" be endowed with the authority to reach all factual
88
No. 2023AP1399-OA.akz
and legal conclusions necessary to draw the maps, while evading
review and the constitutional protections due the parties? The
four rogue members of the court have upended judicial practices,
procedures, and norms, as well as legal practices, procedures,
and precedent, yielding only to sheer will to create a
particularized outcome which will please a particular
constituency. At a minimum, this is harmful to the judicial
branch and the institution as a whole. I dissent.
89
No. 23AP1399-OA.rgb
¶185 REBECCA GRASSL BRADLEY, J. (dissenting). Riding a
Trojan horse named Contiguity, the majority breaches the lines
of demarcation separating the judiciary from the political
branches in order to transfer power from one political party to
another. Alexander Hamilton forewarned us that "liberty can
have nothing to fear from the judiciary alone, but would have
everything to fear from its union with either of the other
departments." The Federalist No. 78, at 523 (J. Cooke ed.,
1961). With its first opinion as an openly progressive faction,
the members of the majority shed their robes, usurp the
prerogatives of the legislature, and deliver the spoils to their
preferred political party. These handmaidens of the Democratic
Party trample the rule of law, dishonor the institution of the
judiciary, and undermine democracy.
¶186 The outcome in this case was preordained with the
April 2023 election of a candidate who ran on a platform of
"taking a fresh look"1 at the "rigged" maps.2 As promised just
Jessie Opoien & Jack Kelly, Protasiewicz Would 'Enjoy
1
Taking a Fresh Look' at Wisconsin Voting Maps, The Cap Times
(Mar. 2, 2023),
https://captimes.com/news/government/protasiewicz-would-enjoy-
taking-a-fresh-look-at-wisconsin-voting-maps/article_d07fbe12-
79e6-5c78-a702-3de7b444b332.html.
Corrinne Hess, Wisconsin Supreme Court Candidate Janet
2
Protasiewicz Assails State's Election Maps as 'Rigged',
Milwaukee J. Sentinel (Jan. 9, 2023),
https://www.jsonline.com/story/news/politics/2023/01/09/wisconsi
n-supreme-court-candidate-protasiewicz-assails-election-
maps/69790966007/.
1
No. 23AP1399-OA.rgb
two days after Protasiewicz's election,3 petitioners filed this
case only one day after she joined the court. The majority
chooses contiguity as a convenient conduit by which to toss the
legislative maps adopted by this court in 2022 as a remedy for
malapportionment, but any issue grounded in state law would
suffice in order to insulate the majority's activism from review
by the United States Supreme Court. The majority's machinations
do not shield it from the Court vindicating the respondents' due
process rights, however. See Appendix A. Litigants are
constitutionally entitled to have their cases heard by a fair
and impartial tribunal, an issue of primary importance the
majority absurdly dismisses as "underdeveloped." Majority op.,
¶37 n.16. The parties fully briefed the due process claim,
which Protasiewicz unilaterally rejected. Clarke v. Wis.
Elections Comm'n, 2023 WI 66, 995 N.W.2d 735. While this court
is powerless to override her recusal decision,4 the United States
Supreme Court is not.
¶187 The majority's treatment of the remaining issue
sophomorically parrots the petitioners' briefing
and undermines the rule of law. The Wisconsin Constitution
requires assembly districts "to consist of contiguous territory"
3Jack Kelly, Liberal Law Firm to Argue Gerrymandering
Violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023),
https://captimes.com/news/government/liberal-law-firm-to-
arguegerrymandering-violates-wisconsin-
constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.
4State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d
175 (per curium).
2
No. 23AP1399-OA.rgb
and senate districts "of convenient contiguous territory." Wis.
Const. art. IV, §§ 4-5. For fifty years, maps drawn by both
Republican and Democratic legislative majorities contained
districts with detached territory. State and federal courts
uniformly declared such districts to be "legally contiguous even
if the area around the island is part of a different district."
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶36, 399
Wis. 2d 623, 967 N.W.2d 469 (Johnson I); Prosser v. Elections
Bd., 793 F. Supp. 859, 866 (W.D. Wis. 1992). Just last year,
three members of the majority in this very case adopted maps
containing districts with detached territory. Johnson v. Wis.
Elections Comm'n, 2022 WI 14, ¶¶34-36, 400 Wis. 2d 626, 971
N.W.2d 402 (Johnson II), rev'd sub nom. Wis. Legislature v. Wis.
Elections Comm'n, 595 U.S. 398 (2022) (per curiam). This well-
established legal conclusion having become politically
inconvenient, the same three justices now deem the existence of
such districts "striking." Majority op., ¶1. If this creative
constitutional "problem" were so glaringly obvious, then the
attorneys who neglected to raise the issue over the last five
decades committed malpractice, and the federal and state judges
who adopted maps with districts containing detached territory
should resign for incompetency.
¶188 No one is fooled, however. The members of the
majority refashion the law to achieve their political agenda.
The precedent they set (if anything remains of the principle)
devastates the rule of law. The Wisconsin Constitution commands
redistricting to occur once every ten years. Wis. Const. art.
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IV, § 3. Both state and federal courts have always respected
"the command in the Wisconsin Constitution not to re-district
more than once each 10 years." Baldus v. Members of Wis. Gov't
Accountability Bd., 849 F. Supp. 2d 840, 859 (E.D. Wis. 2012)
(citing State ex rel. Smith v. Zimmerman, 266 Wis. 307, 63
N.W.2d 52 (1954)).
¶189 The majority's machinations in this case open the door
to redistricting every time court membership changes. A supreme
court election in 2025 could mean Clarke is overturned, Johnson
is restored, and new maps adopted. In 2026 or 2027, Johnson
could be overturned (again), Clarke resurrected, and new maps
adopted. This cycle could repeat itself in 2028. And in 2029.
And in 2030.
¶190 Although the majority endorses repeated kicks at the
redistricting cat, this is not normal in redistricting, or any
other sort of case. The majority rewrites history to suggest
otherwise. As but one example, the majority claims "Johnson
itself enjoined the use of a court-ordered plan adopted by the
federal courts [sic] in Baldus v. Members of Wis. Gov't
Accountability Bd., 862 F. Supp. 2d 860 (E.D. Wis. 2012)."
Majority op., ¶54. The majority disingenuously ignores the fact
that this court's actions in Johnson occurred ten years after
Baldus and only after the 2020 census rendered the prior
decade's maps malapportioned. See Johnson I, 399 Wis. 2d 623,
¶4. After the federal court in Baldus identified a violation of
federal law——shortly after the legislature enacted the maps——the
federal court (there was only one) decided it "will not tread
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into the black water of re-drawing the redistricting boundaries
itself. Instead, as discussed above, the Court will allow the
Legislature to sort out the redistricting maps' infirmities on
its own." Baldus, 849 F. Supp. 2d at 861 (internal citation
omitted). The federal court in Baldus ultimately ordered "that
the redistricting plans adopted pursuant to Act 43 for all
Assembly Districts and Senate Districts, with the exception of
Assembly Districts 8 and 9 to the extent noted above, shall
remain unchanged." Baldus 862 F. Supp. 2d at 863. A "slight
adjustment" to two assembly districts hardly transforms
legislatively-enacted plans into court-developed ones as the
majority misleadingly insinuates. Johnson I, 399 Wis. 2d 623,
¶4 (citing Baldus, 862 F. Supp. 2d at 863).
¶191 Upon completion of the 2020 census, the governor vetoed
the redistricting plans passed by the legislature, so the court
in Johnson enjoined the 2011 legislative maps that had become
unconstitutionally malapportioned due to population shifts.
Political impasse left the judiciary as the only branch able to
act. There is absolutely no precedent for a supreme court to
enjoin its own remedy one year later. Perhaps if the majority
focused on studying the law rather than rushing to set its
political machinations on a ridiculous fast track, it would
avoid such embarrassing errors.
¶192 When the people shift political power to a different
party, they vote for changes in the law. The constitution
limits the judicial power, however, to declaring what the law
is. The majority elevates its political desires over the
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structural separation of powers on which the preservation of our
republic depends. The majority imperils freedom and opens the
door to judicial tyranny. I dissent.5
I. JOHNSON I RESOLVED THE CONTIGUITY QUESTION
¶193 Riddled with non sequiturs, heavy on hypocrisy, and
laden with law review citations but light on actual law, the
majority opinion presents a misleading caricature of the court's
decision in Johnson I, necessitating an overview of what that
opinion actually says. Just twenty months ago, this court used
its limited remedial powers to reapportion Wisconsin's
legislative districts in order to bring them into compliance
with the constitutional guarantee of equality in representation.
See Johnson v. Wis. Elections Comm'n, 2022 WI 19, ¶73, 401
Wis. 2d 198, 972 N.W.2d 559 (Johnson III). The inability of the
legislature and the governor to agree on new legislative maps
after the 2020 census necessitated the court's involvement in
redistricting. Johnson I, 399 Wis. 2d 623, ¶¶17-18, 68
("Judicial action becomes appropriate to prevent a
constitutional crisis."). The 2011 legislative maps——enacted by
5The majority punts on the petitioners' nonsensical
separation of powers argument, which was inspired by the
rhetorical bluster of a dissenting justice unhappy with the
court's decision. See Johnson v. Wis. Elections Comm'n, 2022 WI
19, ¶187, 401 Wis. 2d 198, 972 N.W.2d 559 (Johnson III)
(Karofsky, J., dissenting). While dissents may embellish for
rhetorical effect, their "silly extravagances" should not
migrate into an official court opinion. See Obergefell v.
Hodges, 576 U.S. 644, 719 (2015) (Scalia, J., dissenting). If
the separation of powers argument had any legal merit, it is
inexplicable why the majority doesn't embrace it. Three-fourths
of the justices comprising today's majority already did, in
Johnson III.
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the legislature, signed into law by the governor, and upheld by
a federal court (with a slight adjustment)——had become non-
compliant "with the constitutional requirement of an equal
number of citizens in each legislative district, due to shifts
in population across the state." Id., ¶4. This court allowed
every interested party to participate in Johnson, granting every
motion for intervention. See Johnson II, 400 Wis. 2d 626, ¶2.
¶194 Every party in Johnson stipulated before we decided
Johnson I that the contiguity requirements under Article IV,
Sections 4 and 5 of the Wisconsin Constitution permit municipal
islands detached from their assigned districts. See Joint Stip.
of Facts and Law, Johnson v. Wis. Elections Comm'n, No.
2021AP1450, at 15 (Nov. 4, 2021). We agreed. Johnson I, 399
Wis. 2d 623, ¶36. So did the dissenters. See id., ¶¶88-115
(Dallet, J., dissenting). Every party——including the Governor——
submitted maps containing municipal islands. A majority in
Johnson II,6 selected the Governor's proposed legislative maps,
municipal islands and all; three justices in this current
majority blessed those maps as constitutional.7 400 Wis. 2d 626,
¶36.
Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶8, 400 Wis.
6
2d 626, 971 N.W.2d 402 (Johnson II), rev'd sub nom. Wis.
Legislature v. Wis. Elections Comm'n, 595 U.S. 398 (2022) (per
curiam). The United States Supreme Court summarily reversed
Johnson II because the majority in that case improperly applied
the constitutional guarantee of equal protection in its
selection of the Governor's maps, which sorted voters based on
race without constitutionally permissible justification. Wis.
Legislature, 595 U.S. at 406.
For example, Assembly Districts 3, 5, 26, 46, and 96 in
7
the Governor's proposed maps contain detached municipal islands.
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¶195 The majority in this case misrepresents the Johnson I
court's holding on contiguity, misleadingly asserting the court
"failed to analyze the contiguity requirements evident in the
text of the constitution" and "did not attempt to square its
view of contiguity with" our past cases, such as State ex rel.
Lamb v. Cunningham. Majority op., ¶24. Quoting Lamb in Johnson
I, the court acknowledged constitutional contiguity "generally
means a district 'cannot be made up of two or more pieces of
detached territory.'" 399 Wis. 2d 623, ¶36 (quoting State ex
rel. Lamb v. Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892)).
We continued, "[i]f 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." Id.(citing Prosser, 793 F. Supp. at 866).
¶196 After the court decided Johnson I, the Governor, or
any other petitioner who participated in the case, could have
filed a motion for reconsideration8 on contiguity, asking the
court to correct the allegedly flagrant constitutional error
somehow repeatedly overlooked by countless lawyers, federal
judges,9 and justices of this court for five decades.10 To no
8 Wis. S. Ct. IOP, IV, J. (Aug. 4, 2023).
9In 1992, a panel of three federal judges declared that the
Wisconsin Constitution did not require "literal contiguity"
because "it has been the practice of the Wisconsin legislature
to treat islands as contiguous with the cities or villages to
which they belong." Prosser v. Elections Bd., 793 F. Supp. 859,
866 (W.D. Wis. 1992).
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one's surprise, they instead waited for the Clarke petitioners
to file this suit immediately after the makeup of the court
changed, courtesy of an election bought and paid for by the
Democratic Party of Wisconsin.11
¶197 "Legal opinions are important . . . for the reasons
they give, not the result they announce[.] . . . An opinion
that gets the reasons wrong gets everything wrong . . . ."
Antonin Scalia, The Dissenting Opinion, 1994 J. Sup. Ct. Hist.
33, 33 (1994). An apt description of the majority opinion.
Although the majority purports to interpret our constitution, it
fails to follow our judicial methodology——or any methodology at
all. See Wis. Just. Initiative, Inc. v. Wis. Elections Comm'n,
2023 WI 38, 407 Wis. 2d 87, 990 N.W.2d 122 (originalism).
Unbounded by methodological discipline, the majority opinion is
devoid of an intellectual foundation and without integrity.
¶198 The majority misuses dictionaries to declare the
constitutional contiguity requirements "mean what they say."
Majority op., ¶3. Although the words "contiguous territory"
come from our original constitution of 1848, the majority relies
most heavily on modern dictionaries, considering contemporaneous
dictionaries and practices from the founding of the state mere
"support." Id., ¶17. It is elementary that words don't have
It appears that at least since the 1970s, Wisconsin's
10
legislative maps, whether drawn by the legislature or adopted by
a court, have contained municipal islands.
See WisPolitics Tracks $56 Million in Spending on
11
Wisconsin Supreme Court Race, WisPolitics (July 19, 2023),
https://www.wispolitics.com/2023/wispolitics-tracks-56-million-
in-spending-on-wisconsin-supreme-court-race/.
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meaning on their own; their meaning comes from the context in
which they are used. See Towne v. Eisner, 245 U.S. 418, 425
(1918) (citing Lamar v. United States, 240 U.S. 60 (1916) ("A
word is not a crystal, transparent and unchanged, it is the skin
of a living thought and may vary greatly in color and content
according to the circumstances and the time in which it is
used."). The majority's reliance on modern dictionaries is
misplaced.
¶199 The majority resorts to verifiable fibs, maintaining
that "using practically any dictionary" "contiguous means
'touching' or 'in actual contact.'" Majority op., ¶16. That is
patently untrue, and the majority knows it. The respondents
cited a litany of contemporaneous dictionaries defining
contiguous to mean "near" or "close" to, but not necessarily
touching:
Nathan Bailey, An Universal Etymological English
Dictionary (1775) (Contiguous: "that touches, or is
next; very near, close, adjoining"); Samuel Johnson &
John Walker, A Dictionary of the English Language 153
(1828) (Contiguity: "Actual contact; nearness of
situation"; Contiguousness: "Close connection"); John
Ogilvie & Charles Annandale, The Imperial Dictionary
of the English Language 571 (1885) (Contiguity:
"Actual contact of bodies; a touching; nearness of
situation or place; a linking together, as a series of
objects; a continuity."; Contiguous: "Touching;
meeting or joining at the surface or border; close
together; neighbouring; bordering or adjoining");
Contiguity, Black's Law Dictionary (1st ed. 1891) ("In
close proximity; in actual close contact."); James
A.H. Murray, A New English Dictionary on Historical
Principles 903 (1893) (Contiguity: "loosely. Close
proximity, without actual contact"; Contiguous:
"loosely. Neighbouring, situated in close proximity
(though not in contact)"); Robert Hunter & Charles
Morris, Universal Dictionary of the English Language
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1238 (1897) (Contiguity: "Ordinary language: (1)
Contact with, or (more loosely) immediate proximity
to, nearness in place"; Contiguous: "Ordinary
language: 1. Meeting so as to touch; adjoining,
touching, close together, connected. . . . 2. Used
more loosely in the sense of neighbouring, close,
near.").
It is intellectually dishonest to pretend these definitions do
not exist and that the respondents never provided them. The
majority also neglects to mention that this court has recognized
the term "contiguous" is often used to mean near, but not
necessarily touching. N. Pac. Ry. Co. v. Douglas Cnty., 145
Wis. 288, 291, 130 N.W. 246, 248 (1911) ("'Adjacent' is
sometimes used for touching on or bounded by; but strictly
speaking it signifies, near to but not touching; contiguous is
probably sometimes also used in the former sense and sometimes
and more properly in the latter, while 'adjoining' is really the
proper term for in contact with, though each of such words is
occasionally used in a perverted way. It will be found that
they have been construed variously by courts according to
circumstances."); Hennessy v. Douglas Cnty., 99 Wis. 129, 136-
37, 74 N.W. 983 (1898) ("'Adjacent' signifies, in this
connection, 'lying near, close to, or contiguous, but not
actually touching.'").
¶200 The majority's misuse of dictionaries betrays a
profound misunderstanding of how these resources are used in
legal analysis. A dictionary is not a talisman that a judge can
invoke to provide the definitive meaning of a term used in a
statute or constitution. It is merely a tool among several a
judge may use to understand a text's meaning. Care must be
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taken for a number of reasons. Dictionaries "define the core
meanings of a term" but often omit "the periphery." Antonin
Scalia & Brian A. Garner, Reading Law: The Interpretation of
Legal Texts 418 (2012). Dictionaries also often omit typical,
ordinary uses of terms, or list the order of possible
definitions differently and for different reasons. Ellen P.
Aprill, The Law of the Word: Dictionary Shopping in the Supreme
Court, 30 Ariz. State L.J. 275, 298 (1998). Because words often
have more than one meaning, context matters a great deal.
Dictionaries cannot tell you what, in context, a word means. A
dictionary is merely a "museum of words." Frank H. Easterbrook,
Text, History, and Structure in Statutory Interpretation, 17
Harv. J.L. & Pub. Pol'y 61, 67 (1994). Accordingly, "a
comparative weighing of dictionaries is often necessary" when
they are employed. Scalia & Garner, supra, at 417.
Dictionaries cannot communicate what words mean in a specific
context.
¶201 The majority does not seem to recognize the limits of
dictionaries, or the importance of acknowledging and weighing
different definitions. The majority resorts to fabrication with
its obviously false claim that all dictionaries define the term
"contiguous" the way the majority prefers. The remarkable power
to declare something unconstitutional——and forever remove it
from democratic decision making——should be exercised carefully
and with humility. The majority's drive-by dictionary citations
exhibit a slipshod analysis.
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¶202 The majority's lack of intellectual foundation is on
full display with its asymmetrical treatment of cases and
dictionaries. For reasons left unexplained, the majority treats
dictionaries contemporaneous to the constitution's ratification
as less authoritative than modern dictionaries. Majority op.,
¶¶16-17. But the majority treats older cases as more
authoritative than recent cases. See id., ¶¶21-23. The
majority does not even attempt to square the circle. This
inconsistency reveals the majority is not searching for the
constitution's meaning, but carefully cherry-picking sources to
feign support for its preferred outcome.
¶203 True to form, the majority mischaracterizes the
respondents' contiguity argument. The majority contends that
respondents claim "a district with separate, detached territory"
is contiguous provided it is a municipal island and "the main
body of the municipality is located elsewhere in the district."
Id., ¶18. But the respondents' actual argument on the
contiguity requirement doesn't resemble the majority's
retelling.
¶204 The respondents argue the term "contiguous territory"
in Article IV, Sections 4 and 5 of the Wisconsin Constitution
allows for the use of existing municipal boundaries to form a
single district. For example, if town and city boundaries are
used to form an assembly district, as long as the town and city
share a border, or are near each other, the "contiguous
territory" requirement is met, even if the city or town has
municipal islands.
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¶205 Central to respondents' interpretation, the term
"territory" in the phrase "contiguous territory" refers to the
various government entities (like towns and wards) that are used
to create an assembly or senate district. See State ex rel.
Reynolds v. Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964) (per
curium) (requiring "individual senate districts [to] consist[ ]
of contiguous assembly districts"). Under respondents' theory,
an assembly district contains "detached territory" if, for
example, it includes a town that does not touch, or is not near,
any other government entity used to form the assembly district.
Accordingly, respondents believe their interpretation is
consistent with Lamb's statement that an assembly district
"cannot be made up of two or more pieces of detached territory."
Lamb, 83 Wis. at 148. Contrary to the majority's recasting of
respondents' argument, respondents do not believe that "detached
territory can still be contiguous——so long as the detached
territory is a 'municipal island[ ].'" Majority op., ¶18.
Respondents reject the idea that municipal islands are "detached
territory" in the context of the contiguity requirement.
¶206 Based on its own mischaracterization of respondents'
argument, the majority claims the respondents' contiguity
interpretation "would essentially require us to read an
exception into the contiguity requirements——that district
territory must be physically touching, except when the territory
is a detached section of a municipality located in the same
district." Id. And because "the text contains no such
exception," the court rejects the respondents' argument. Id.,14
No. 23AP1399-OA.rgb
¶19. This is sophistry. The respondents never even suggested
the "district['s] territory" must be touching. Nor did the
respondents ask the majority to create an exception to the
constitution's commands. Instead, the respondents provided an
interpretation of "contiguous territory" the majority finds too
difficult to refute. In response, the majority tilts at
windmills——pretending the respondents made an argument that is
easier for the majority to dismiss. After completing its
exercise in deception, the majority simply assumes——without any
analysis whatsoever——that the word "territory" refers to the
land comprising a district.
¶207 Glossing over these glaring analytical errors, the
majority obliges its political benefactor, seizing the exclusive
constitutional roles of the legislature and the governor in the
redistricting process, and anointing itself an all-powerful
committee of four to supplant the political choices of the
coordinate branches with its subjective notions of what is
"fair." Such "accumulation of all powers legislative, executive
and judiciary in the same hands, whether of one, a few or many,
and whether hereditary, self appointed, or elective, may justly
be pronounced the very definition of tyranny." The Federalist
No. 47, supra, at 324 (Madison).
II. THE CONSTITUTION CONSTRAINS THIS COURT FROM OVERSTEPPING
ITS AUTHORITY AND INVADING THE POLITICAL BRANCHES' DOMAIN
¶208 If the current maps were unconstitutional, the only
proper exercise of this court's power would be a remedy that
respects the legislature's and the governor's constitutionally
prescribed roles in the redistricting process. If the members
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of the majority were acting as a court rather than a super
legislature of four, they would modify the maps only to the
extent necessary to comply with the law. Specifically, if the
majority wished to remedy only detached municipal islands, as it
professes, it would adopt the respondents' proposal and redraw
only those districts containing detached territory. The
majority refuses to do so, with nothing more than a single
sentence explanation in which the majority says a more modest
remedy would "cause a ripple effect across other areas of the
state" so new maps are "necessary." Majority op., ¶56. The
majority offers zero support for this conclusory assertion
because none exists. The majority instead dispenses with the
existing maps in order to confer an advantage on its preferred
political party with new ones.
¶209 The majority abandons the court's least-change
approach adopted in Johnson I in order to fashion legislative
maps that "intrude upon the constitutional prerogatives of the
political branches and unsettle the constitutional allocation of
power." 399 Wis. 2d 623, ¶64. The least-change approach in
Johnson I guaranteed the court would ground any reapportionment
decisions in the law alone, leaving the political decisions of
redistricting to the political branches where they belong. Id.,
¶71. The majority's decision to discard the judicially
restrained methodology of Johnson I unveils its motivation to
redraw the legislative maps for the benefit of Democratic state
legislative candidates. By design, the majority's transparently
political approach will reallocate political power in Wisconsin
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via a draconian remedy, under the guise of a constitutional
"error" easily rectified by modest modifications to existing
maps.
¶210 The majority misrepresents the least-change approach
as "an unclear assortment of possible redistricting metrics,"
majority op., ¶61, a hypocritical stance for justices who
replace it with a "partisan impact" factor bereft of any
definition. The majority misleads the public to disguise what
it is actually doing: abandoning the law and giving itself free
reign to shift political power from Republicans to Democrats.
In overruling the following holding, the majority rejects the
notion that it should confine its actions to the powers the
people gave the judiciary: "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." Johnson I, 399 Wis. 2d
623, ¶72; accord id., ¶85 (Hagedorn, J., concurring) ("A least-
change approach is the most consistent, neutral, and appropriate
use of our limited judicial power to remedy the constitutional
violations in this case").
¶211 The majority professes to overrule Johnson I's least-
change approach because it is supposedly "unworkable in
practice." Majority op., ¶63. The voters of Wisconsin should
remember that four justices have confessed an inability to
conform their official actions to the law. It should be neither
"impracticable" nor "unfeasible," id., for any jurist to set
aside policy preferences and instead apply the law. As a
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barrier to judges basing their decisions on political leanings,
the least-change approach is only "impracticable" and
"unfeasible" for justices who wish to act as a super
legislature, as the members of the majority do in this case. A
majority may dismantle that barrier but the judicial oath of
office remains.
¶212 As the respondents proposed, any contiguity violation
could be remedied by simply dissolving municipal islands into
their surrounding assembly districts. The majority dismisses
the idea without explaining why the maps must instead be redrawn
in their entirety. To say the quiet part out loud, confining
the court's remedy to districts with municipal islands would
deprive the majority of its desired political outcome. Its
overreach flouts not only Johnson I but also black-letter law
limiting the judiciary's remedial powers.
¶213 "The remedial powers of an equity court must be
adequate to the task, but they are not unlimited." Whitcomb v.
Chavis, 403 U.S. 124, 161 (1971). Under this longstanding
principle of judicial restraint, the remedy in this case——as in
all cases——should be tailored to the actual violation. If a
district contains unconstitutionally noncontiguous territory,
then dissolving the detached territory into its surrounding
district represents the most logical and adequate remedy. This
more modest remedy would minimize disruption to Wisconsin
voters. The majority's drastic remedy of overhauling the
entirety of the legislative maps will maximize it.
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¶214 A district-by-district remedy rather than a full
redrawing of the legislative maps would follow the federal
approach to redistricting cases the majority once professed to
revere. Johnson I, 399 Wis. 2d 623, ¶88 (Dallet, J. dissenting)
("[T]he federal courts . . . are best suited to handle
redistricting cases."). In Gill v. Whitford, the United States
Supreme Court considered whether voters had federal standing to
challenge the entirety of the 2011 Wisconsin state legislative
maps as an unfair partisan gerrymander. 585 U.S. ___, 138 S.
Ct. 1916, 1929-30 (2018). Without deciding the merits of the
voters' partisan gerrymandering claims, the Court said if a harm
were found it "does not necessarily require restructuring all of
the State's legislative districts." Id. at 1931. This holding
relied on the following principle: A "remedy must of course be
limited to the inadequacy that produced the injury in fact that
the plaintiff has established." Lewis v. Casey, 518 U.S. 343,
357 (1996). A court's modifications of an otherwise
constitutional map should be confined to those necessary to
remedy the constitutional violations. Upham v. Seamon, 456 U.S.
37, 42-43 (1982).
¶215 The parties identified approximately 200 municipal
islands surrounded by another assembly district in violation of
the majority's crabbed reading of the contiguity requirement in
Article IV, Sections 4 and 5 of the Wisconsin Constitution. The
vast majority of these districts contain few people; many are
uninhabited. The majority opinion does not address these facts
and instead emphasizes a few districts it believes are the most
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egregious to justify the unwarranted redrawing of the
legislative maps in their entirety. Majority op., ¶¶31-33.
Less than five percent of the roughly 200 municipal islands have
more than 100 people. The court could easily satisfy the
majority's new definition of contiguity by dissolving each
municipal island into its surrounding district. Some tinkering
would have to be done to bring the maps into compliance with the
one-person, one-vote principle, but this remedy would stop short
of wading into the political morass of redrawing maps from
scratch. The majority shuns a modest remedy because it would
foreclose consideration of the partisan "impact" factor the
majority buries at the end of its opinion but which will
dominate the entire process going forward.
III. PARTISAN FAIRNESS IS NOT A JUDICIALLY MANAGEABLE STANDARD
¶216 Buried at the end of its opinion, the majority
identifies "partisan impact" as the fifth and last
"redistricting principle" it will consider in reallocating
political power in this state. Id., ¶69. Its placement
disguises the primacy this factor will have in the majority's
schemes. The majority neglects to offer a single measure,
metric, standard, or criterion by which it will gauge "partisan
impact." Most convenient for the majority's endgame, there
aren't any, lending the majority unfettered license to design
remedial maps fulfilling the majority's purely political
objectives. See Harper v. Hall, 881 S.E.2d 156, ¶124 (2023)
(Newby, J., dissenting), opinion withdrawn and superseded on
reh'g, 886 S.E.2d 393 (2023) ("By intentionally stating vague
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standards, it ensures that four members of this Court alone
understand what redistricting plan is constitutionally
compliant.").
¶217 In considering "partisan impact," the majority acts
without authority. Unlike other state constitutions,12
"[n]othing 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.'" Johnson I, 399 Wis. 2d 623, ¶45 (quoting
Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484, 2499
(2019)). "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." Id., ¶45 (citing Vieth
v. Jubelirer, 541 U.S. 267, 291 (2004) (plurality opinion)).
¶218 The majority's decision to consider the "partisan
impact" of proposed maps lacks any legal foundation, enabling
the majority to engage in a purely political exercise. As the
court explained in Johnson I, the "lack of standards by which to
12 See Fla. Const. art. III, § 21(a) ("No apportionment plan
or district shall be drawn with the intent to favor or disfavor
a political party or an incumbent[.]"); Ohio Const. art. XI, § 6
(prohibiting redistricting commission from creating a
legislative district plan that favors or disfavors a political
party); Mo. Const. art. III, § 3 ("Districts shall be designed
in a manner that achieves both partisan fairness and,
secondarily, competitiveness."); Colo. Const. art. V, §
48.1(3)(a) (directing the redistricting commission to "maximize
the number of politically competitive districts").
21
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judge partisan fairness is obvious from even a cursory review of
partisan gerrymandering jurisprudence." 399 Wis. 2d 623, ¶41.
Accordingly, courts "'have no license to reallocate political
power between the two major political parties,' because 'no
legal standards [exist] to limit and direct [our] decisions.'"
Id., ¶52 (quoting Rucho, 139 S. Ct. at 2507).
¶219 The majority says it will "take care to avoid
selecting remedial maps designed to advantage one political
party over another," but provides no guiding principles to
govern its actions. Majority op., ¶71. The majority doesn't
offer any limiting principles because there aren't any. By its
nature, redistricting involves political decisions entrusted to
the legislative branch. Despite its unconvincing attempts to
shroud its "partisan impact" lodestar with empty invocations of
judicial neutrality and impartiality, adjudicating "partisan
impact" unavoidably "recast[s] this court as a policymaking body
rather than a law-declaring one." Johnson I, 399 Wis. 2d 623,
¶52.
¶220 The majority says it won't select a map "designed to
advantage one political party over another" or one that
"privilege[s] one political party over another." Majority op.,
¶¶70-71. Words like "advantage" and "privilege" imply a
baseline of fairness, but the court never defines it. It can't;
no law says what an "unfair" political advantage in a
legislative map looks like. And what about third parties? The
majority will marginalize and exclude minority interests if it
fails to bestow proportional representation on every minor
22
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party; after all, the constitution does not privilege the
dominant parties. The novice map drawers in the majority would
then discover what "unworkable in practice," id., ¶63, really
means.
¶221 The United States Supreme Court comprehensively
described the impossibility of judicially defining or
identifying what constitutes politically "fair" maps, an
irrefutable point we echoed in Johnson I. 399 Wis. 2d 623,
¶¶40-41. In Rucho v. Common Cause, the Court documented the
presence of partisanship in the drawing of legislative
districts——by the political branches——dating back to the
founding of our nation. 139 S. Ct. at 2494-95. There is
nothing surprising about it; the legislative and executive
branches are, well, political. The judiciary is not supposed to
be.13 In declaring such claims nonjusticiable, the Court
highlighted two of its prior cases,14 in which it attempted to
define what constitutes an unfair partisan apportionment. Id.
at 2497-98. In doing so, it reiterated Justice Anthony
Kennedy's earlier admonition that judicial standards must be
"'clear, manageable, and politically neutral.'" Id. at 2498(quoting Vieth, 541 U.S. at 308-09 (Kennedy, J., concurring in
See Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437 (2015)
13
("Judges are not politicians, even when they come to the bench
by way of the ballot.").
In both of those cases, the United States Supreme Court
14
did not reach a majority and the number of separate writings
reveal the utter confusion over what judicial standard to apply
when judges are tasked with determining what level of
partisanship is "fair." See Davis v Bandemer, 478 U.S. 109(1986); Vieth v. Jubelirer, 541 U.S. 267 (2004).
23
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the judgment)). Because the Court was unable to identify any
legal standards by which to adjudicate partisan fairness, it
determined such claims involve nonjusticiable political
questions "beyond the competence of the federal courts." Id. at
2500. The majority in this case believes it possesses a
judicial ability the United States Supreme Court somehow lacks.
What extraordinary hubris.
¶222 In successfully convincing the majority to consider
partisan fairness, petitioners point to the difference between
the statewide percentage of votes received by Democrats compared
to the number of Democrats in the state legislature. Their
argument presumes that an individual voter who votes for a
Democrat at the top of the ticket will automatically support a
Democratic state legislative candidate. Voters do not, however,
blindly cast their ballots for one party. Whitford v. Gill, 218
F. Supp. 3d 837, 936 (W.D. Wis. 2016) (Griesbach, J.,
dissenting), vacated, 138 S. Ct. 1916 (2018) ("Party affiliation
is not set in stone or in a voter's genes[.]"). A variety of
factors influence electoral choices. See Rucho, 139 S. Ct. at
2503. Partisan preferences can change rapidly and social
science cannot reliably predict voters' future choices among
candidates. Id. Political identification is not an immutable
24
No. 23AP1399-OA.rgb
characteristic; election results in Wisconsin reveal recurring
shifts in party preferences and loyalties.15
¶223 What the majority calls "partisan impact" will mean
proportional representation. See id. at 2499 ("Partisan
gerrymandering claims invariably sound in a desire for
proportional representation."). Proportionality is far from
politically neutral and is incompatible with the constitution,
which requires single-member legislative districts. Wis. Const.
art. IV, §§ 4–5. Requiring single-member districts renders
proportionality impossible because single-member district
elections unavoidably produce disproportionate results. See
Whitford, 218 F. Supp. 3d at 950 (Griesbach, J., dissenting)
("Another reason proportionality is not a right is that
disproportionality is built in, and in fact even assumed, in
winner-take-all systems of voting."). Proportionality is also
in tension with our state constitution "because Article IV of
the Wisconsin Constitution specifies requirements that favor the
preservation of communities of interest, irrespective of
individual partisan alignment." Johnson I, 399 Wis. 2d 623,
¶47. The majority attacks our representative form of government
by introducing the extra-constitutional criterion of "partisan
impact."
Craig Gilbert, What 30 Years of Voting History Tells Us
15
about Wisconsin's Shifting Suburban Vote, Milwaukee J. Sentinel,
May 10, 2023,
https://www.jsonline.com/story/news/politics/analysis/2023/05/10
/how-the-2024-presidential-race-in-wisconsin-hinges-on-suburban-
trends/70179579007/.
25
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¶224 Perfect political symmetry between the statewide vote
and the composition of the legislature is unattainable because
of the geographic distribution of the state's voters. While
Wisconsin has had close statewide races over the prior decade,
the concentration of voters differs dramatically among urban,
suburban, and rural areas of the state. For example, in the
2020 presidential election, Dane County and Milwaukee County,
the two largest counties by total votes, cast approximately 35
percent of the total statewide votes for Joe Biden.16 Waukesha
and Brown County17 accounted for only 14 percent of the total
statewide votes for Donald Trump. Increasingly, the large
percentage of Democratic votes from Dane County has been a
determining factor in otherwise close statewide elections.18
Republican statewide candidates receive support from more rural
and less densely populated counties throughout the state. This
16 President Biden received 1,630,866 total votes in
Wisconsin in 2020 and Dane County recorded 260,121 votes for
Biden and Milwaukee County recorded 317,527 votes for Biden.
2020 Wisconsin Election Results, N.Y. Times, (Accessed Nov. 30,
2023),
https://www.nytimes.com/interactive/2020/11/03/us/elections/resu
lts-wisconsin.html.
17 These two counties were chosen for comparison because
their voters cast the two highest number of ballots for Donald
Trump. Of the 1,610,184 total votes Donald Trump received in
Wisconsin in 2020, Waukesha County recorded 159,649 votes and
Brown County recorded 75,871 votes. Id.18 Ruth Conniff, How Dane County is Making Wisconsin Less
Red, Isthmus, Dec. 3, 2022,
https://isthmus.com/opinion/opinion/how-dane-county-is-making-
wisconsin-less-red/.
26
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political reality19 illustrates why the statewide vote is a
flawed indicator of what the makeup of the state legislature
"should" be. Even if representative proportionality were an
attainable goal, the constitution gives the judiciary, the only
non-partisan branch of state government, no role to play in such
political calculations.
¶225 Supreme Court Justice Sandra Day O'Connor, a former
state legislator, recognized the unsound premises underlying
proportional representation, which the majority fails to grasp
in its quest to enforce partisan "fairness":
This preference for proportionality is in serious
tension with essential features of state legislative
elections. Districting itself represents a middle
ground between winner-take-all statewide elections and
proportional representation for political parties. If
there is a constitutional preference for
proportionality, the legitimacy of districting itself
is called into question: the voting strength of less
evenly distributed groups will invariably be
diminished by districting as compared to at-large
proportional systems for electing representatives.
Moreover, one implication of the districting system is
that voters cast votes for candidates in their
districts, not for a statewide slate of legislative
candidates put forward by the parties. Consequently,
efforts to determine party voting strength presuppose
a norm that does not exist——statewide elections for
representatives along party lines.
Davis v. Bandemer, 478 U.S. 109, 159 (1986) (O'Connor, J.,
concurring in the judgment) (emphasis added). Justice Antonin
Scalia explained that the federal Constitution, like ours, does
19 "Democrats have often been concentrated in cities while
Republicans have often been concentrated in suburbs and
sometimes rural areas." Vieth, 541 U.S. at 359 (2004) (Breyer,
J., dissenting).
27
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not guarantee "equal representation in government to
equivalently sized groups. It nowhere says 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.
¶226 By shoehorning consideration of "partisan impact" into
the remedial phase of this litigation, the majority strikes a
blow against our republican form of government. Forcing
legislative representation reflecting the statewide strength of
a political party on citizens in less populated areas of the
state overrides their choice of candidates without their
consent. "Proportional party representation is simply
incompatible with the constitutionally prescribed form of
representative government chosen by the people of Wisconsin."
Johnson I, 399 Wis. 2d 623, ¶50.
¶227 The majority says it must consider "partisan impact"
in redrawing the state's legislative maps in order to remain
politically "neutral and independent." Majority op., ¶71. If
that "sounds contradictory," Johnson I, 399 Wis. 2d 623, ¶112
(Dallet, J., dissenting), that's because it is. The court
concedes its decision does not derive from the Wisconsin
Constitution or any other law. And the gerrymander-claim-
versus-judicial-remedy distinction, which "appears at first to
be an escape hatch" for the majority is "upon reflection, a trap
door." Nathaniel Persily, In Defense of Foxes Guarding
Henhouses: The Case for Judicial Acquiescence to Incumbent-
Protecting Gerrymanders, 116 Harv. L. Rev. 649, 673 (2002). The
28
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majority's fixation on "partisan impact" might, intentionally or
unintentionally, run afoul of the Voting Rights Act. 52 U.S.C.
§ 10301. Historically, a preoccupation with "fair maps" has
come at the expense of communities of color. Johnson III, 401
Wis. 2d 198, ¶¶96-104 (Rebecca Grassl Bradley, J., concurring).
By injecting "partisan impact" into the calculation, the
majority transforms itself into a legislative body making
political and policy decisions. A pledge to be "neutral and
independent" cannot be fulfilled when the majority appropriates
the political tasks of redistricting that belong to the
political branches.
¶228 Since the majority recognizes its focus on partisan
fairness is untethered to law, it must explain, in a politically
neutral way, why judicial neutrality does not require the
consideration of countless other factors. The majority's choice
to consider "partisan impact" is imbued with policy
determinations necessitating overtly political choices. Opening
the door to judicial policymaking in this manner invites
interest groups of every kind to demand "fairness" in
representation on any basis whatsoever: sex, religion, age,
socioeconomic status, gender identity, etc. As a matter of
policy, why wouldn't the majority ensure that farmers, union
members, property owners, renters, small business owners, and
hunters have representation in proportion to their numbers? See
Vieth, 541 U.S. at 288; Johnson I, 399 Wis. 2d 623, ¶57 (citing
Larry Alexander & Saikrishna B. Prakash, Tempest in an Empty
Teapot: Why the Constitution Does Not Regulate Gerrymandering,
29
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50 Wm. & Mary L. Rev. 1, 21-22 (2008)) (noting that if
proportionality for partisan affiliation is required, every
group, including gun owners and vegetarians, has a valid claim
to proportional representation in the legislature because
"[n]othing distinguishes partisan affiliation from hundreds——
perhaps thousands——of other variables"). Is it acceptable to
increase partisan fairness at the expense of the ability of
Evangelical Christians to elect their preferred candidates? Why
does the majority prioritize partisan fairness over the
interests of the elderly? The answer is obvious; the majority's
decision is deeply partisan. So much for judicial neutrality.
¶229 "A government of laws means a government of rules."
Morrison v. Olson, 487 U.S. 654, 733 (1988) (Scalia, J.,
dissenting). The majority replaces rules with whim, preferring
its own malleable notions of fairness over constitutional
commands, in order to engineer districts more favorable for
Democratic state legislative candidates. The majority succumbs
to the temptation of results at the expense of its own
legitimacy. Robert H. Bork, The Tempting of America: The
Political Seduction of the Law 2 (1990).
IV. LACHES AND JUDICIAL ESTOPPEL SHOULD BAR THIS CASE
¶230 Redistricting is the quintessential "political
thicket." See Colegrove v. Green, 328 U.S. 549, 556 (1946)
(plurality opinion). We should not decide such cases unless, as
in 2021, we must. In this case, we need not enter the thicket.
Unlike the majority, I would not address the merits. A
collateral attack on a supreme court judgment, disguised as an
30
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original action petition, would ordinarily be dismissed upon
arrival. Allowing petitioners' stale claims to proceed makes a
mockery of our judicial system, politicizes the court, and
incentivizes litigants to sit on manufactured redistricting
claims in the hopes that a later, more favorable makeup of the
court will accept their arguments. The doctrines of laches and
judicial estoppel exist to prevent such manipulation of the
judicial system.
A. Laches
¶231 Two days after Protasiewicz's election, one of the six
law firms representing the petitioners announced its plan "to
challenge the state's voting maps based on the assertion that
partisan gerrymandering violates the Wisconsin Constitution,"
although at that point the lawyers were "still putting the
pieces together about what we think the most successful
arguments will be."20 It is hard to imagine a more fitting case
for the application of laches than a tardy litigant calling to
collect on judicial campaign trail promises. To preserve its
institutional legitimacy, the court should have applied the
doctrine and dismissed this action.
¶232 The doctrine of laches bars relief "when a claimant's
failure to promptly bring a claim causes prejudice to the party
having to defend against that claim." Wis. Small Bus. United,
Inc. v. Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946
N.W.2d 101 (citation omitted). This affirmative, equitable
20 Kelly, supra note 3.
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defense ensures that "'equity aids the vigilant, and not those
who sleep on their rights to the detriment of the opposing
party.'" State ex rel. Wren v. Richardson, 2019 WI 110, ¶14,
389 Wis. 2d 516, 936 N.W.2d 587 (quoting 27A Am. Jur. 2d Equity
§ 108). "Application of laches is within the court's discretion
upon a showing by the party raising the claim of [1]
unreasonable delay, [2] lack of knowledge the claim would be
raised, and [3] prejudice." Trump v. Biden, 2020 WI 91, ¶10,
394 Wis. 2d 629, 951 N.W.2d 568 (citation omitted). The
doctrine of laches is of particular importance in election-
related disputes. Id., ¶11.
¶233 All three elements of laches exist in this case. The
constitution limits redistricting to occur once every ten years,
after the federal census, and the constitution gives the
legislature the power of reapportionment. Only political
stalemate triggers court involvement. See Wis. Const. art. IV,
§ 3; Johnson I, 399 Wis. 2d 623, ¶18; Baldus, 849 F. Supp. 2d at859 (citing Zimmerman, 266 Wis. 307) (noting the Wisconsin
Constitution's "command" "not to re-district more than once each
10 years."). We should not indulge litigants who sat out
Johnson——or worse yet, were parties in Johnson——and who
strategically conjure legal claims that could have been made
more than two years ago. "The doctrine of laches is derived
from the maxim that those who sleep on their rights, lose them."
Chattanoga Mfg., Inc. v. Nike, Inc., 301 F.3d 789, 792 (7th Cir.
2002).
32
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¶234 As a preliminary matter, the doctrine of laches
applies to redistricting claims, as well as requests for
injunctive relief, notwithstanding an alleged ongoing harm.
Petitioners contend laches does not apply in this case because
an alleged harm——constitutionally noncontiguous districts——is
ongoing and they are requesting prospective relief. The
majority appears to agree. See majority op., ¶43 n.20. But as
one court explained, an ongoing-violation theory "is contrary to
well settled reapportionment and laches case law." Fouts v.
Harris, 88 F. Supp. 2d 1351, 1354 (S.D. Fla. 1999), aff'd sub
nom. Chandler v. Harris, 529 U.S. 1084 (2000) (citation omitted)
(barring claim that districts were racially gerrymandered
contrary to the United States Constitution with the doctrine of
laches); see also White v. Daniel, 909 F.2d 99 (4th Cir. 1990)
(applying laches to bar redistricting claim under Section 2 of
the Voting Rights Act of 1965); Sanders v. Dooly County, 245
F.3d 1289 (11th Cir. 2001) (applying laches to deny request for
injunctive relief related to a districting plan containing
racially gerrymandered districts violating the Equal Protection
Clause); Knox v. Milwaukee Cnty. Bd. of Elections Comm'rs, 581
F. Supp. 399 (E.D. Wis. 1984) (applying laches to deny request
to enjoin implementation of a Milwaukee reapportionment plan,
which plaintiffs claimed violated Section 2 of the Voting Rights
Act of 1965); Mac Govern v. Connolly, 637 F. Supp. 111 (D. Mass.
1986) (applying laches to bar injunctive relief for plaintiffs
claiming the state legislative maps where not equally
apportioned under the Equal Protection Clause); Chestnut v.
33
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Merrill, 377 F. Supp. 3d 1308 (N.D. Ala. 2019) (applying laches
to deny injunctive relief under Section 2 of the Voting Rights
Act of 1965 against challenged districts). Wisconsin precedent
accords with federal cases. This court has approved the use of
laches to deny prospective injunctive relief, even against
government actors seeking to vindicate public rights. Forest
Cnty. v. Goode, 219 Wis. 2d 654, 681-84, 579 N.W.2d 715 (1998)
(stating that laches should be considered by the circuit court
when deciding whether to issue an injunction against one
violating a zoning ordinance). The doctrine of laches applies
to claims for prospective relief, even in the redistricting
context.
1. Unreasonable Delay
¶235 The first element of laches concerns whether the
petitioners "unreasonably delayed" in bringing their claim.
Trump, 394 Wis. 2d 629, ¶13. "What constitutes an unreasonable
delay varies and 'depends on the facts of a particular case.'"
Id. (quoting Brennan, 393 Wis. 2d 308, ¶14). Because
redistricting cases require the court to enter the political
thicket, and in light of the disruption another round of
redistricting may cause, this requirement has extra force in
redistricting cases and analogous contexts. See id., ¶30
("Parties bringing election-related claims have a special duty
to bring their claims in a timely manner."). This element is
met.
¶236 The Wisconsin legislature last enacted legislative
maps in 2011 and those maps contained municipal islands. 2011
34
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Wis. Act 44; 2011 Wis. Act 43. None of the petitioners argued
the maps were unconstitutional for containing noncontiguous
territory within one or more districts. The maps created in
2011 became unconstitutionally malapportioned due to population
shifts identified following the census of 2020. Johnson I, 399
Wis. 2d 623, ¶16. Four voters filed an original action with
this court, seeking a mandatory injunction to remedy
malapportionment. Id., ¶5. We invited any prospective
intervenor to move to participate in Johnson and granted every
motion to intervene. Johnson II, 400 Wis. 2d 626, ¶2. Many of
the parties in this case——the Governor and all but two of the
Atkinson intervenor-petitioners21——participated in Johnson. They
did not argue the 2011 maps contained unconstitutionally
noncontiguous districts nor did they propose the definition of
contiguity advanced and adopted in this case. In fact, the
petitioners who participated in Johnson stipulated that
municipal islands are constitutionally contiguous. The
petitioners who participated in both cases could have raised the
contiguity issue in Johnson. They didn't. They could have
moved the court for reconsideration after we issued our
decision. They didn't. To wait nearly two years after our
decision in Johnson I addressed the meaning of contiguous
territory constitutes unreasonable delay, even setting aside the
admitted gamesmanship of the litigants.
¶237 The majority starts the unreasonable-delay clock after
Johnson III was decided and insists the Clarke petitioners did
21 The two newcomers are Nathan Atkinson and Leah Dudley.
35
No. 23AP1399-OA.rgb
not immediately raise the contiguity issue after Johnson III
because petitioners "could not obtain relief prior to the 2022
elections." Majority op., ¶42. But the majority presupposes
something prevented the Clarke petitioners from participating in
the Johnson litigation. Nothing did. The petitioners who sat
out Johnson have never explained why they did not participate in
Johnson, even when given the opportunity to explain themselves
at oral argument. Nor did they show they were reasonably
unaware of the contiguity issue at that time. "[U]nreasonable
delay in laches is based not on what litigants know, but what
they might have known with the exercise of reasonable diligence.
This underlying constructive knowledge requirement arises from
the general rule that 'ignorance of one's legal rights is not a
reasonable excuse in a laches case.'" Wren, 389 Wis. 2d 516,
¶20 (quoting 27A Am. Jur. 2d Equity § 138) (emphasis added).
Everyone knows this action was brought promptly after
Protasiewicz joined the court because the petitioners knew she
and the three dissenters in Johnson would welcome any
opportunity to redraw the maps they viewed as "rigged." Laches
bars such tactics. See Knox, 581 F. Supp. at 403-04 (finding
unreasonable delay when the plaintiffs were given opportunities
to participate in the districting process, voice their concerns,
and even submit alternative plans, but chose not to).
¶238 If waiting to file this original action until August
2, 2023, one day after Protasiewicz's investiture, were not
blatant enough, the law firm representing the petitioners said
the quiet part out loud two days after Protasiewicz won her
36
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election, promising to file a gerrymandering claim and admitting
the firm would not have brought any claim if Protasiewicz had
lost the election.22 Contrary to the majority's telling, the
petitioners did not just wait until "August of 2023" to bring
their claims, majority op., ¶42; they waited until the day after
the composition of the court changed——a fact so embarrassing the
majority never acknowledges it. Such gamesmanship and delay
would not be rewarded by a court with integrity. Trump v. Biden
conveyed the court's expectation for parties to act diligently
when bringing election-related claims. Relaxing the rule when
the petitioners seek partisan advantage on behalf of Democrats
signals that different standards apply to Republicans. Putting
a partisan thumb on the scales of justice calls into question
the court's legitimacy.
2. Lack of Knowledge
¶239 The second element of laches asks whether the
respondents lacked knowledge that the petitioners would bring
the contiguity claim. Brennan, 393 Wis. 2d 308, ¶18.
Respondents assert they were unaware the petitioners would bring
the contiguity claim. Nothing in the record suggests otherwise.
The petitioners who did participate in Johnson all stipulated
that municipal islands were constitutionally contiguous. The
Kelly, supra note 3 ("When asked if she and her
22
colleagues would be discussing a potential legal challenge if
Protasiewicz hadn't won on Tuesday, Safar said, 'There wouldn't
be an opportunity to have a fair argument, I don't think, under
Justice Kelly.'"). This undermines——to put it mildly——the
believability of counsel's statement at oral argument that
petitioners would have filed this original action even if
Protasiewicz had lost the election.
37
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second element is met. See id. (holding the second element of
laches is met if respondent "had no advance knowledge or warning
of [the] particular claim").23
3. Prejudice
¶240 The third and final element of laches requires a
showing of prejudice, which means "'anything that places the
party in a less favorable position.'" Trump, 394 Wis. 2d 629,
¶24 (quoting Wren, 389 Wis. 2d 516, ¶32). In a context
analogous to redistricting, this court has considered prejudice
to third parties. See id., ¶¶25-27 (considering prejudice to
voters in election-related context); id., ¶125 (Ziegler, J.,
dissenting) (noting the majority focused "on the prejudice to
third parties"). Other courts have likewise considered
prejudice to third parties in redistricting cases. White, 909
F.2d at 103-04 (considering the prejudicial effect judicially
mandated redistricting would have on voters not party to the
suit); Chestnut, 377 F. Supp. 3d at 1317 (similar); Fouts, 88 F.
Supp. 2d at 1354 (similar); see Sanders, 245 F.3d at 1291. The
third element of laches is met.
¶241 The respondents assert they spent considerable time
and resources in the Johnson litigation to ensure Wisconsin
voters would have constitutionally permissible maps for future
elections. This court also spent considerable time and
Although the respondents meet the second element of
23
laches, it does not always apply because the requirement
"focuses on the ability of the asserting party to mitigate any
resulting prejudice when notice is provided. But this may not
be possible in all types of claims." Trump v. Biden, 2020
WI 91, ¶23 n.10, 394 Wis. 2d 629, 951 N.W.2d 568.
38
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resources on Johnson. Petitioners seek to wipe out all of the
work done in Johnson——and the majority obliges. This is an
accepted form of prejudice to respondents. See Wren, 389 Wis.
2d 516, ¶33 (noting economic prejudice is a cognizable form of
prejudice for purposes of laches); 27A Am. Jur. 2d Equity § 144
(footnotes omitted) ("Prejudice may also be invoked by the
expenditure of time and the effort that the plaintiff's delayed
claim would defeat.").
¶242 Because the majority errs by starting the clock at the
end of Johnson III, the majority fails to find any prejudice
against the respondents. The respondents do not claim the costs
of litigating this suit cause them prejudice. Instead, the
respondents claim that wiping away all of the money, time, and
effort devoted to Johnson is prejudicial. Contrary to what the
majority asserts, prejudice in the form of wasted money, time,
and effort on an action already concluded distinguishes
respondents' claim of prejudice from the case on which the
majority relies, which states that costs incurred in litigating
a current suit are not prejudicial. Majority op., ¶43 (citing
Goodman v. McDonnell Douglass Corp., 606 F.2d 800, 808 (8th Cir.
1979)). The prejudice to respondents is especially acute
because all of the petitioners were either parties in Johnson or
could have been. The contiguity challenge could have been
resolved in that case. It is extremely prejudicial to the
respondents for the petitioners to sit out litigation they were
invited to join, "'gamble on the outcome'" of the litigation,
"'and then challenge it when dissatisfied with the results.'"
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See Trump, 394 Wis. 2d 629, ¶11 (quoting 29 C.J.S. Elections §
459 (2020)). But the majority doesn't care about that kind of
unfairness.
¶243 Respondents are not the only ones to suffer prejudice
as a result of the majority entertaining the petitioners' claim.
The petitioners waited until after the maps adopted in Johnson
had been used and after voters and legislators became accustomed
to their new districts. Both voters and legislators are
prejudiced by this suit because many legislators have developed
relationships with their constituents. Redrawing the maps so
soon after Johnson, and after elections have occurred under
those maps, risks severe voter confusion——a well-recognized form
of prejudice in the redistricting context. E.g., White, 909
F.2d at 104 ("We believe that two reapportionments within a
short period of two years would greatly prejudice the County and
its citizens by creating instability and dislocation in the
electoral system and by imposing great financial and logistical
burdens."); Chestnut, 377 F. Supp. 3d at 1317 ("[W]hile
congressional races are better funded and more highly
publicized, the court remains unconvinced that a more publicized
election will necessarily educate voters on where the newly
drawn district lines lay."); see also 27A Am. Jur. 2d Equity §
144 (Prejudice "may further arise from delayed actions
challenging elections or election procedures, due to confusion
to voters . . . .").
¶244 The majority unconvincingly attempts to dismiss the
prejudice to voters engendered by redrawing the state
40
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legislative maps. First, the majority minimizes this well-
recognized form of prejudice as merely "vague assertions about
disruption to the status quo." Majority op., ¶43. Second, the
majority insists that "any disruption . . . is necessary to
serve the public's interest in having districts that comply with
each of the requirements of the Wisconsin Constitution." Id.,
¶43. The majority's dismissiveness perfunctorily discounts the
prejudice to confused voters. The majority surely did not apply
this logic in Trump v. Biden. In that case, the petitioners
sought the invalidation of several thousands of ballots because
they were cast unlawfully or were otherwise invalid. 394 Wis.
2d 629, ¶1. The court held laches barred the petitioners from
bringing their claims. Id., ¶3. The court held that voters
would be prejudiced if their ballots were struck. Id., ¶¶24-28.
The court did not disregard prejudice to voters simply because
the public also has an interest in elections being conducted in
accordance with state law. It would be one thing if the
majority acknowledged this prejudice and then, using its
discretion, decided not to apply laches because it thinks other
interests outweigh the prejudice to confused voters. But to
pretend no prejudice exists, because concluding otherwise would
thwart the majority's political agenda, is shameful.
¶245 This court has applied the laches doctrine in
election-related disputes specifically when the relief sought
"would be an extraordinary step for this court to take." Trump,
394 Wis. 2d 629, ¶31. The petitioners in this case seek the
extraordinary remedy of tossing the legislative maps in their
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entirety and upending the political balance of the state
legislature just months before the 2024 elections, yet the
majority entertains a claim that could have been brought in
Johnson I. Petitioners waited until the court's membership
changed with the hope of achieving a more favorable outcome. An
impartial application of this court's recent laches doctrine
would bar the petitioners' claims.
4. Discretion
¶246 Even though all of the elements of laches are met, it
remains within our discretion to apply the doctrine. Wren, 389
Wis. 2d 516, ¶15 (citing State ex rel. Washington v. State, 2012
WI App 74, ¶26, 343 Wis. 2d 434, 819 N.W.2d 305). Applying the
doctrine of laches is the only "appropriate and equitable"
decision in this case. Id. The constitution does not permit
redistricting to be a yearly affair. It is a fundamentally
political process in which this court acted in Johnson only to
avoid a constitutional crisis. Johnson I, 399 Wis. 2d 623, ¶68
("Judicial action becomes appropriate to prevent a
constitutional crisis."). Absent political impasse, for the
sake of our institutional legitimacy and out of respect for
roles the constitution assigns to the political branches, we
keep ourselves out of the process. Failure to bring
redistricting claims promptly poses a great danger "to the
entire administration of justice." Trump, 394 Wis. 2d 629, ¶30.
Entertaining political claims delayed until the seating of a
justice who had prejudged the existing maps as "rigged" poses a
great danger to the integrity of this court. The majority could
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have its integrity by properly applying the doctrine of laches
but instead forges ahead to the detriment of this court's
institutional legitimacy.
B. Judicial Estoppel
¶247 The doctrine of judicial estoppel bars the Governor
and the Atkinson petitioner-intervenors who participated in the
Johnson litigation24 from arguing municipal islands are
unconstitutionally noncontiguous. "The equitable doctrine of
judicial estoppel . . . is intended to protect against a
litigant playing fast and loose with the courts . . . . The
doctrine precludes a party from asserting a position in a legal
proceeding and then subsequently asserting an inconsistent
position." State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817(1996) (internal quotation marks and citations omitted).
Judicial estoppel applies if: (1) the party's later position is
inconsistent with its earlier position; (2) the facts at issue
are the same in both cases; and (3) the party convinced the
first court to adopt its position. Id. at 348 (quoted source
omitted).
¶248 Both the Governor and the Atkinson petitioner-
intervenors deny taking a position in this case at odds with
their position in Johnson and further claim the court never
adopted their initial position. The facts betray their
duplicity.
Stephen Wright, Gary Krenz, Sarah Hamilton,
24 Jean-Luc
Thiffeault, and Somesh Jha all participated in Johnson.
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¶249 The Governor and Atkinson petitioner-intervenors
contend they never argued that municipal islands are
constitutionally contiguous in Johnson. This is false. The
Atkinson petitioner-intervenors, then identifying as "Citizen
Mathematicians and Scientists," argued for the permissibility of
municipal islands in Johnson I.25 Both the Governor and Atkinson
petitioner-intervenors stipulated that municipal islands are
constitutionally contiguous.26 The stipulation verifies the
parties' position that municipal islands are constitutional.27
Having lost in Johnson, the Governor and the Atkinson
petitioner-intervenors now argue municipal islands are
unconstitutional, the opposite of the position they advanced in
Johnson. The court adopted their position in Johnson I, holding
25"This Court has defined 'contiguous' to mean that 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, 57 (1892); but cf. Prosser, 793 F. Supp. at 866(holding that the Wisconsin Constitution does not require
'literal contiguity' where a town had annexed noncontiguous
'islands' and 'the distance between town and island is
slight')." Br. Intervenors-Pet'rs Citizen Mathematicians and
Scientists, Johnson v. Wis. Elections Comm'n, No. 2021AP1450, at
22 (Oct. 25, 2021).
26"Contiguity for state assembly districts is satisfied
when a district boundary follows the municipal boundaries.
Municipal 'islands' are legally contiguous with the municipality
to which the 'island' belongs. Wis. Stat. §5.15(1)(b); Wis.
Stat. §4.001(2) (1972); see Prosser v. Election Bd., 793 F.
Supp. 859, 866 (W.D. Wis. 1992) (three-judge court)." Joint
Stip. of Facts and Law, Johnson v. Wis. Elections Comm'n, No.
2021AP1450, at 15 (Nov. 4, 2021).
27A stipulation, by definition, is an "agreement between
opposing parties concerning some relevant point[.]"
Stipulation, Black's Law Dictionary 1712 (11th ed. 2019).
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municipal islands are constitutional. 399 Wis. 2d 623, ¶36. No
justice dissented on this point. Shifting majorities in Johnson
II and Johnson III adopted maps with municipal islands. See
Johnson II, 400 Wis. 2d 626, ¶¶8-10; Johnson III, 401 Wis. 2d
198, ¶70. No justice dissented on this point in either of those
decisions. Notably, the court adopted the Governor's proposed
state legislative maps in Johnson II, municipal islands and all.
In his brief urging the court to adopt his legislative maps in
Johnson II, the Governor argued his maps were constitutionally
contiguous despite having municipal islands.28
¶250 The Governor contends the court was not convinced to
adopt his position because there was no adversarial briefing on
the issue of municipal islands in the Johnson litigation. The
Governor, however, fails to cite any legal authority requiring
adversarial briefing on an issue before judicial estoppel may
apply. Precedent supports its application even absent
adversarial briefing. E.g., Cnty. of Milwaukee v. Edward S.,
2001 WI App 169, ¶11, 247 Wis. 2d 87, 633 N.W.2d 241 (estopping
a litigant from arguing an adjournment was improper when the
parties stipulated to the adjournment). Regardless, courts may
not blindly accept a stipulation of law; they have a duty to
independently determine what the law is. "[W]e are not bound by
the parties' interpretation of the law or obligated to accept a
party's concession of law. This court, not the parties, decides
questions of law." State v. Carter, 2010 WI 77, ¶50, 327 Wis.
28Gov. Tony Evers's Br. Support Proposed Maps, Johnson v.
Wis. Elections Comm'n, No. 2021AP1450, at 17 (Dec. 15, 2021).
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2d 1, 785 N.W.2d 516. Irrespective of the parties' stipulation
of law, this court was duty-bound to satisfy itself that
remedial maps met the constitutional command of contiguity and
it did so, irrespective of the parties' shared position on the
issue.
¶251 The Governor fundamentally misconstrues the
requirement that the party to be estopped must have convinced
the earlier court to adopt its position. Applying judicial
estoppel does not require us to peer into the minds of judges to
ascertain whether a court was actually convinced of the party's
position. The requirement merely means that the party estopped
needs to have "succeed[ed] in maintaining that position," Matter
of Cassidy, 892 F.2d 637, 641 (7th Cir. 1990) (quoting Davis v.
Wakelee, 156 U.S. 680, 689 (1895)); or, stated differently, the
party is estopped if "the court maintains that [same] position."
State v. English-Lancaster, 2002 WI App 74, ¶19, 252 Wis. 2d
388, 642 N.W.2d 627 (citing State v. Gove, 148 Wis. 2d 936, 944,
437 N.W.2d 218 (1989)). Stated conversely, "[a] party is not
bound to a position it unsuccessfully maintained." Matter of
Cassidy, 892 F.2d at 641; Olson v. Darlington Mut. Ins. Co.,
2006 WI App 204, ¶6, 296 Wis. 2d 716, 723 N.W.2d 713 ("Because
'a litigant is not forever bound to a losing argument,' there
must be an action of the court adopting a party's position to
give rise to judicial estoppel."). If the estopped party
advanced a position the court later adopted, the requirement is
met. See English-Lancaster, 252 Wis. 2d 388, ¶22 (holding that
a defendant was judicially estopped from arguing that a
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cautionary instruction was inadequate because it was the
defendant who asked for the cautionary instruction and accepted
the wording of the court's proposed instruction, calling it a
case of "classic judicial estoppel"). The Governor and Atkinson
petitioner-intervenors stipulated that municipal islands are
constitutional, and the court held as much in Johnson I. 399
Wis. 2d 623, ¶36. The Governor proposed state legislative maps
containing municipal islands, and this court adopted them in
Johnson II. 400 Wis. 2d 626, ¶¶8-10. The court clearly adopted
their position on contiguity in the Johnson litigation.
¶252 The Governor and the Atkinson petitioner-intervenors
do not advance their contiguity arguments in good faith. Like
the majority, they could not care less what "contiguous
territory" means in Article IV, Sections 4 and 5 of the
Wisconsin Constitution. Everyone understands their argument is
not based on a newfound concern for the court's fidelity to the
constitution. It is merely an argument onto which the parties
have latched in order to smuggle a partisan "fairness" claim
through the court. The call for a partisan power shift
permeates their briefs. The Atkinson petitioner-intervenors
falsely deny asserting the contiguity of municipal islands in
Johnson and falsely claim they argued that municipal islands are
not constitutionally contiguous. Not only did the Atkinson
petitioner-intervenors argue such islands are constitutional in
their brief in Johnson I, they also stipulated to the
constitutionality of municipal islands. Judicial estoppel bars
such duplicity. Petty, 201 Wis. 2d at 354 ("The doctrine looks
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toward cold manipulation, not an unthinking or confused
blunder."). The Governor and the Atkinson petitioner-
intervenors should be barred by the doctrine of judicial
estoppel from arguing that municipal islands are
unconstitutional.
¶253 The majority does not contest that the elements of
judicial estoppel are met. See majority op., ¶50. Instead, the
majority simply "decline[s] to exercise [its] discretion to
apply judicial estoppel here." Id. In doing so, the majority
invokes "compelling public policy reasons." Id.¶254 Harkening back to the monarchical principle that the
king can do no wrong,29 the majority privileges the Governor's
duplicity because he is a government actor. See id. No
precedent insulates the Governor from application of the
doctrine. While some courts have been reluctant to apply
judicial estoppel to government actors,30 this court has never
limited the doctrine to non-government actors. To bolster their
flawed argument, the Governor and the majority rely solely on
cases concerning equitable estoppel, and fail to cite a single
case involving judicial estoppel: Turkow v. DNR, 216 Wis. 2d
273, 576 N.W.2d 288 (Ct. App. 1998); DOR v. Moebius Printing
Co., 89 Wis. 2d 610, 279 N.W.2d 213 (1979); Vill. of Hobart v.
29 See Holytz v. City of Milwaukee, 17 Wis. 2d 26, 33, 115
N.W.2d 618 (1962) (quoting Britten v. Eau Claire, 260 Wis. 382,
386, 51 N.W.2d 30 (1952)) (holding that the government does not
have common law immunity from tort suits for harms wrongfully
caused by it, noting that the doctrine was rooted "'in the
ancient and fallacious notion that the king can do no wrong'").
30 See New Hampshire v. Maine, 532 U.S. 742, 755-56 (2001).
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Brown Cnty., 2005 WI 78, 281 Wis. 2d 628, 698 N.W.2d 83; State
v. Chippewa Cable Co., 21 Wis. 2d 598, 124 N.W.2d 616 (1963);
Park Bldg. Corp. v. Indus. Comm'n, 9 Wis. 2d 78, 100 N.W.2d 571(1960). This court has hesitated to apply equitable estoppel
only when applying it would interfere with the state's exercise
of its police powers. Vill. of Hobart, 281 Wis. 2d 628, ¶29
n.9. But hesitancy does not translate to immunity. The
Governor changed his position on the issue of contiguity to
benefit his political party, not the public interest.31 There
has been no change in state public policy or material facts
since the Johnson litigation. Notably, some of the respondents
in this case are also government actors, and "each owes the
other a full measure of respect." New Hampshire v. Maine, 532
U.S. 742, 756 (2001). The Governor's change in position
embodies political gamesmanship, and the majority's embrace of
it belies their hollow professions of neutrality. The Governor
"'make[s] a mockery out of justice,'" and the court should bar
him from doing so. Blumberg v. USAA Cas. Ins. Co., 790 So. 2d
1061, 1066 (Fla. 2001).
¶255 The majority's feeble defense for declining to apply
judicial estoppel in this case is a procession of non sequiturs.
The majority posits that "[g]iven our past case law on
contiguity, as well as the primacy of our constitution,
preventing parties from litigating this issue would not serve
the goals" of judicial estoppel. Majority op., ¶50. It should
Tony Evers was the Governor during the Johnson litigation
31
and currently holds that office. There has not been a change in
officeholder to justify the Governor's flip-flop on the issue.
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be self-evident that neither our past cases on contiguity nor
the primacy of the constitution have anything to do with
preventing the Governor and the Atkinson petitioner-intervenors
from re-litigating the issue of contiguity in order to protect
the court from assaults on its integrity. Petty, 201 Wis. 2d at
354. The majority dismisses the judicial estoppel doctrine
because "[g]iven the parties' stipulation in Johnson, it is
difficult to view any inconsistency in position as 'cold
manipulation' which judicial estoppel seeks to deter." Majority
op., ¶50. There is, however, no relationship between a party's
stipulation to a legal position and the party's later
manipulation of willing justices. In a footnote the majority
states it will "explain" why the stipulation "undermines
Respondents' argument that judicial estoppel should bar the
Petitioners' contiguity claim" "later." Id., ¶45 n.22. The
majority, however, neglects to provide its promised explanation.
Regardless, the majority's myopic focus on the parties'
stipulation misses the point. The Governor not only stipulated
that municipal islands are constitutionally contiguous. The
Governor also proposed state legislative maps——containing
municipal islands——in Johnson II and argued that those maps were
constitutionally contiguous. The majority's non sequiturs and
narrow focus on the stipulation create a smoke screen to obscure
the bad faith of the Governor and the Atkinson petitioner-
intervenors. Because the majority yearns to redraw the state
legislative maps, it rebrands the petitioners' manipulations as
mere "mistakes." Id., ¶50.
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¶256 The Governor offers one final reason to not apply the
doctrine of judicial estoppel: public policy.32 See May v. May,
2012 WI 35, ¶14, 339 Wis. 2d 626, 813 N.W.2d 179 ("If a trial
court's decision to apply estoppel would violate public policy,
a reviewing court must reverse that decision as an erroneous
exercise of discretion."). Public policy interests squarely
favor estopping the Governor's gamesmanship. Because this
second round of redistricting litigation seeks to shift the
balance of political power, this court should be a bulwark
against such attacks on the integrity of our court system. The
majority's indulgence of the Governor's manipulation of the law
for political advantage only confirms suspicions that
redistricting cases are nothing more than exercises of raw
political power by judicial partisans. Judicial estoppel
developed as a doctrine to protect the judiciary's integrity——an
interest at its apex when this court enters the "'political
thicket' that judges 'ought not to enter.'" See Jensen v. Wis.
Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537(quoting Colegrove, 328 U.S. at 556).
¶257 In any ordinary case, the Governor and the Atkinson
petitioner-intervenors would be barred by the doctrine of
judicial estoppel from arguing that municipal islands are
unconstitutional. Both previously argued that municipal islands
are constitutional. The court accepted their argument, holding
The majority similarly says there are "compelling public
32
policy reasons why this court should not exercise its discretion
to apply estoppel in this case." Majority op., ¶50. The
majority fails to actually articulate any reasons.
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municipal islands are constitutional. The Governor and the
Atkinson petitioner-intervenors made an about-face as soon as it
was advantageous to do so. This is a textbook example of when
judicial estoppel applies. Just like its selective application
of laches, the majority abuses its discretion, applying
equitable doctrines against Republicans, Trump, 394 Wis. 2d 629,
but not Democrats. The doctrine of judicial estoppel is meant
to protect the integrity of courts by prohibiting parties from
manipulating the judicial process. Petty, 201 Wis. 2d at 354(stating that the "doctrine of judicial estoppel is designed to
combat" "manipulative perversion[s] of the judicial process").
The majority's rejection of the doctrine in this political case
betrays its lack of integrity and its complicity in the
manipulation.33
V. STARE DECISIS
¶258 "To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in
every particular case that comes before them." The Federalist
No. 78, supra, at 529 (Hamilton). Expounding the value of
following prior precedent, the court recognizes this judicial
maxim "ensures that existing law will not be abandoned lightly.
See Clarke v. Wis. Elections Comm'n, 2023 WI 70, 995
33
N.W.2d 779, 801-02 (Hagedorn, J., dissenting) (noting that the
court was "happy to oblige" the petitioners' requests, despite
their obvious partisan ambitions, going so far as to "dutifully
adopt[ ] an accelerated briefing and oral argument schedule" and
"change[ ] our internal writing deadline on original actions to
ensure this case would be fast-tracked").
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When existing law is open to revision in every case, deciding
cases becomes a mere exercise of judicial will, with arbitrary
and unpredictable results." Schultz v. Natwick, 2002 WI 125,
¶37, 257 Wis. 2d 19, 653 N.W.2d 266 (footnotes and internal
quotation marks omitted). The Johnson litigation concluded last
year. The constitution's meaning has not changed in the
interim——just the court's membership.
¶259 Two members of the majority once extolled the
importance of stare decisis "'because it promotes evenhanded,
predictable, and consistent development of legal
principles . . . and contributes to the actual and perceived
integrity of the judicial process.'" Mayo v. Wis. Injured
Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383 Wis. 2d 1,
61, 914 N.W.2d 678, 707 (Ann Walsh Bradley, J., dissenting)
(quoting Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI
108, ¶95, 264 Wis. 2d 60, 665 N.W.2d 257 (2003)). "Stare
decisis, the principle that courts must stand by things decided,
is fundamental to the rule of law." State v. Prado, 2021 WI 64,
¶67, 397 Wis. 2d 719, 960 N.W.2d 869 (Per Ann Walsh
Bradley, J.). "We have repeatedly recognized the importance of
stare decisis." State v. Johnson, 2023 WI 39, ¶19, 407
Wis. 2d 195, 90 N.W.2d 174 (Per Dallet, J.). Justice Ann Walsh
Bradley has specifically lamented, "[a] change in membership of
the court does not justify a departure from precedent." St.
Croix Cnty. Dep't of Health & Hum. Servs. v. Michael D., 2016 WI
35, ¶93, 368 Wis. 2d 170, 880 N.W.2d 107 (Abrahamson & Ann Walsh
Bradley, JJ., dissenting). Despite their lip service to the
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doctrine in previous cases, the justices now "throw[ ] the
doctrine of stare decisis out the window" and retread paths this
court only just traveled. Koschkee v. Taylor, 2019 WI 76, ¶62,
387 Wis. 2d 552, 929 N.W.2d 600 (Ann Walsh Bradley, J.,
dissenting).
¶260 While this court is not inexorably bound by stare
decisis, respecting this well-established legal maxim "reduces
incentives for challenging settled precedents, saving parties
and courts the expense of endless relitigation." Kimbel v.
Marvel Ent., LLC, 576 U.S. 446, 455 (2015). The doctrine's
preservation of stability and finality are especially important
in the context of redistricting.
¶261 Reopening the redistricting door and rehearing the
same arguments we addressed and resolved in the Johnson cases——
just two terms ago——feeds the perception that the majority will
discard settled cases when politically advantageous for
implementing the four justices' policy preferences. Voters and
their representatives should now expect their districts to
change after each state supreme court election cycle. The
majority sows confusion and disorder that will inexorably lead
to instability in the balance of power and conflict between the
political branches.
VI. CONCLUSION
¶262 "[T]here is no liberty, if the judiciary power be not
separated from the legislative and the executive," the French
philosopher Montesquieu warned. "Were it joined with the
legislative, the life and liberty of the subject would
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be exposed to arbitrary control; for the judge would be
then the legislator." Baron De Montesquieu, The Spirit of
Laws 152 (Thomas Nugent trans., Hafner Publishing Company 1949)
(1748). The majority appoints itself as a redistricting
commission to impose legislative maps it deems politically
"fair." The court arrogates unto itself the power to make
purely political decisions——untethered to any law, and with no
lawful authority. Democrats may cheer the majority's mission to
bestow political power on their party, but the majority's
abandonment of neutrality delegitimizes the institution. See
Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J.,
dissenting) ("The Court's authority . . . ultimately rests on
sustained public confidence in its moral sanction. Such feeling
must be nourished by the Court's complete detachment . . . from
political entanglements and by abstention from injecting itself
into the clash of political forces in political settlements.").
The majority crowns itself supreme over the governor and the
legislature, but the people never gave the judiciary such
authority. An election never overrides the constitution.
¶263 "Do Justice!" counsel for the Democratic Senators
proclaimed as she concluded her oral argument before the court.
"[A] [c]ourt-managed version of the French Revolution,"34
however, is not the kind of justice this court is supposed to
dispense. Hohri v. United States, 793 F.2d 304, 313 (D.C. Cir.
1986) (Bork, J., dissenting from denial of reh. en banc), rev'd,
See Robert H. Bork, The Tempting
34 of America: The
Political Seduction of the Law 207 (1990).
55
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482 U.S. 64 (1987)) ("[W]e administer justice according to law.
Justice in a larger sense, justice according to morality, is for
[the legislature] and the [governor] to administer . . . .").
The majority's diktat transforms the judiciary from the "least
dangerous"35 branch into one of the greatest threats to liberty
the people of Wisconsin have ever faced.
35 The Federalist No. 78, at 522 (Alexander Hamilton) (J.
Cooke ed., 1961)
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Appendix A
Clarke v. Wisconsin Elections Commission, No. 2023AP1399-OA, 2023 WI 70, 995
N.W.2d 779 (Rebecca Grassl Bradley, J., dissenting).
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¶264 BRIAN HAGEDORN, J. (dissenting). This is a sad turn
for the Wisconsin Supreme Court. Today, the court dives
headlong into politics, choosing to wield the power it has while
it has it. Wisconsinites searching for an institution
unpolluted by partisan warfare will not find it here.
¶265 No matter how today's decision is sold, it can be
boiled down to this: the court finds the tenuous legal hook it
was looking for to achieve its ultimate goal——the redistribution
of political power in Wisconsin. Call it "promoting democracy"
or "ending gerrymandering" if you'd like; but this is good, old-
fashioned power politics. The court puts its thumb on the scale
for one political party over another because four members of the
court believe the policy choices made in the last redistricting
law were harmful and must be undone. This decision is not the
product of neutral, principled judging.
¶266 The matter of legislative redistricting was thoroughly
litigated and resolved after the 2020 census. We adopted a
judicial remedy (new maps) and ordered that future elections be
conducted using these maps until the legislature and governor
enact new ones. Johnson v. Wis. Elections Comm'n, 2022 WI 19,
¶3, 401 Wis. 2d 198, 972 N.W.2d 559 (Johnson III). That remedy
remains in place, and under Wisconsin law, is final. Now
various parties, new and old, want a mulligan. But litigation
doesn't work that way. Were this case about almost any other
legal matter, the answer would be cut-and-dried. We would
unanimously dismiss the case and reject this impermissible
collateral attack on a prior, final decision.
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¶267 So why are the ordinary methods of deciding cases now
thrown by the wayside? Because a majority of the court imagines
it has some moral authority, dignified by a black robe, to
create "fair maps" through judicial decree. To be sure, one can
in good faith disagree with Johnson's holding that adhering as
closely as possible to the last maps enacted into law——an
approach called "least change"——is the most appropriate use of
our remedial powers. And the claim here that the constitution's
original meaning requires the territory in all legislative
districts to be physically contiguous is probably correct,
notwithstanding decades of nearly unquestioned practice
otherwise. But that does not give litigants a license to ignore
procedure and initiate a new case to try arguments they had
every opportunity to raise in the last action, but did not.
Procedural rules exist for a reason, and we should follow them.
As we have previously explained, "Litigation rules and processes
matter to the rule of law just as much as rendering ultimate
decisions based on the law. Ignoring the former to reach the
latter portends of favoritism to certain litigants and
outcomes." Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, ¶39,
403 Wis. 2d 369, 976 N.W.2d 584. Indeed it does.
¶268 The majority heralds a new approach to judicial
decision-making. It abandons prior-stated principles regarding
finality in litigation, standing, stare decisis, and other
normal restraints on judicial will——all in favor of expediency.
But principles adopted when convenient, and ignored when
inconvenient, are not principles at all. It is precisely when
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one's principles are tested and costly——yet are kept
nonetheless——that they prove themselves truly held. The
unvarnished truth is that four of my colleagues deeply dislike
maps that give Republicans what they view as an inappropriate
partisan advantage. Alas, when certain desired results are in
reach, fidelity to prior ideals now seems . . . a bit less
important than before. No matter how pressing the problem may
seem, that is no excuse for abandoning the rules of judicial
process that make this institution a court of law.
¶269 The majority's outcome-focused decision-making in this
case will delight many. A whole cottage industry of lawyers,
academics, and public policy groups searching for some way to
police partisan gerrymandering will celebrate. My colleagues
will be saluted by the media, honored by the professoriate, and
cheered by political activists. But after the merriment
subsides, the sober reality will set in. Without legislative
resolution, Wisconsin Supreme Court races will be a perpetual
contest between political forces in search of political power,
who now know that four members of this court have assumed the
authority to bestow it. A court that has long been accused of
partisanship will now be enmeshed in it, with no end in sight.
Rather than keep our role in redistricting narrow and
circumspect, the majority seizes vast new powers for itself. We
can only hope that this once great court will see better days in
the future. I respectfully dissent.
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I. REDISTRICTING BACKGROUND——HOW WE GOT HERE
¶270 I begin by answering the question that many are
probably asking: why is the Wisconsin Supreme Court involved in
drawing maps in the first place? The short story is as follows.
¶271 The Wisconsin Constitution requires the legislature to
draw new state legislative maps after the federal census every
ten years. Wis. Const. art. IV, § 3. This means the
legislature must enact new maps into law, which requires the
governor's signature or an override of the governor's veto.
Wis. Const. art. V, § 10. In 2011, after the 2010 census, the
legislature did enact new maps into law. See 2011 Wis. Act 43
(state legislative maps); 2011 Wis. Act 44 (congressional maps).
Following the 2020 census, however, the governor and legislature
could not agree on district lines and, thus, no maps were
enacted. Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶2, 399
Wis. 2d 623, 967 N.W.2d 469 (Johnson I). The 2011 maps remained
the law.
¶272 In 2021, this court entered the fray at the request of
a group of voters. Johnson, No. 2021AP1450-OA, Order (Wis.
Sept. 22, 2021). Given the constitutional right of citizens to
proportionate representation following updated census numbers,1
we were asked to fill the void and adopt temporary maps (what I
will call "remedial maps") reflecting population changes. We
invited almost anyone to participate in the litigation as a
party, including interest groups, voters, elected officials, the
1See Reynolds v. Sims, 377 U.S. 533, 577 (1964); State ex
rel. Att'y Gen. v. Cunningham, 81 Wis. 440, 484, 51 N.W. 724(1892).
4
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Governor, and the Legislature. Id. Each party briefed us on
all relevant legal requirements, including contiguity. In the
end, we adopted remedial maps for use until either new maps are
enacted into law or a new census triggers the constitutional
duty to reapportion again. Johnson III, 401 Wis. 2d 198, ¶3.
To this day, the governor and legislature have not complied with
their constitutional obligation to enact new maps into law, so
the remedial maps remain in place.
¶273 It is important to understand that when a court draws
legislative maps, it is not making new law. When this court
adopted new maps two years ago, it only imposed a temporary
legal remedy. It is the legislature's responsibility to
"district anew" through the legislative process. Wis. Const.
art. IV, § 3. The constitution does not contemplate courts
drawing maps in the ordinary course. Redistricting is, after
all, "an inherently political and legislative——not judicial——
task." Jensen v. Wis. Elections Bd., 2002 WI 13, ¶10, 249
Wis. 2d 706, 639 N.W.2d 537. We step in if and only if the
political process fails.
¶274 In Johnson I, we concluded that remedial maps should
be based on the last maps enacted into law, and that they should
only modify what is necessary to remedy any constitutional
violations. 399 Wis. 2d 623, ¶¶76-78. This respects the
constitutional role of the political branches and keeps the
judiciary out of policymaking to the maximum amount possible.
Id. Thus, our aim was to alter existing law only as necessary
to vindicate the constitutional rights at stake, and no more.
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Additionally, we concluded that partisan outcomes would not and
should not guide our decision, and that partisan gerrymandering
is neither a cognizable nor justiciable legal claim under the
Wisconsin Constitution. Id., ¶¶39-63. We further agreed with
all the parties and held that when annexation creates municipal
islands, "the district containing detached portions of the
municipality is legally contiguous even if the area around the
island is part of a different district." Id., ¶36.
¶275 Now, a year and a half after the dust settled, the
petitioners come to us requesting a do-over. They raise several
claims regarding the remedial maps we adopted in Johnson. But
in timing and substance, the petitioners have proven their goal
is to obtain new maps that give more political power in the
state legislature to Democratic Party candidates.2 The majority
has the same goal, but sidestepped taking this issue directly
when it chose not to hear the petitioners' partisan
gerrymandering claim. Clarke v. Wis. Elections Comm'n, No.
2023AP1399-OA, Order (Wis. Oct. 6, 2023). Rather, the court has
chosen to shift the political balance of power indirectly by
tossing out the maps adopted barely two years ago and drawing
new ones more to its liking.
¶276 The court today rests its conclusion on the grounds
that maps must be physically contiguous. Majority op., ¶¶3, 24.
The petition alleges that the remedial maps we adopted in
2
Johnson harmed the petitioners because they cannot "achieve a
Democratic majority in the state legislature." Clarke v. Wis.
Elections Comm’n, 2023AP1399-OA, Petition at 8, ¶5 (Aug. 2,
2023).
6
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The court also holds that it will not confine its remedy to
curing the purported unlawfulness, but will fashion new maps
from scratch. Id., ¶56. It sees itself as being empowered to
"district anew," even though the constitution gives that
responsibility to the legislature. Wis. Const. art. IV, § 3.
Further, the court holds that political outcomes should, and
will, guide its decision.3 Id., ¶¶69-71. Each of these
overrules and departs from our decision in Johnson.
¶277 All in all, the court's opinion ignores inconvenient
facts and issues, mischaracterizes the relevant arguments, and
finds dubious grounds on which to achieve its politically
motivated goals.4 And to boot, the remedial process we now
embark on is hazy at best, and perfectly tailored for political
manipulation. An odd recipe for "fair" maps.
3 The majority also says that the petitioners' partisan
gerrymandering claim is an "unresolved legal question."
Majority op., ¶7. It is not. Johnson did address it, because
we needed to address all relevant legal requirements necessary
to draw lawful maps. 2021 WI 87, ¶¶53-63, 399 Wis. 2d 623, 967
N.W.2d 469. The majority here, like it does elsewhere, simply
ignores statements and holdings that do not support its goals——
now or in the future.
4 Take, for example, the majority's conclusion that it is
"immediately apparent, using practically any dictionary, that
contiguous means 'touching' or 'in actual contact.'" Majority
op., ¶16. Seems simple enough. But a cursory look under the
hood reveals quite a different picture. As Justice Rebecca
Grassl Bradley explains, the respondents pointed us to heaps of
dictionaries defining contiguity as "very near" or "close" or
"adjoining." Justice Rebecca Grassl Bradley's dissent, ¶199.
Maybe those definitions do not comport with the original meaning
of the contiguity requirement. But rather than face the issue
head-on, the majority ducks for cover.
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II. THE MAJORITY'S PROCEDURAL ERRORS
¶278 The majority opinion offers only a perfunctory
analysis of the significant procedural objections that should
dispose of this case.
¶279 Among them, the majority falls woefully short in
supporting its conclusion that the parties met the requirements
for standing. "Standing is the foundational principle that
those who seek to invoke the court's power to remedy a wrong
must face a harm which can be remedied by the exercise of
judicial power." Teigen v. Wis. Elections Comm'n, 2022 WI 64,
¶160, 403 Wis. 2d 607, 976 N.W.2d 519 (Hagedorn, J.,
concurring). Courts do not have the power to "weigh in on
issues whenever the respective members of the bench find it
desirable." Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n,
Inc., 2011 WI 36, ¶131, 333 Wis. 2d 402, 797 N.W.2d 789(Prosser, J., concurring). As three members of today's majority
have previously opined, "standing is important . . . because it
reins in unbridled attempts to go beyond the circumscribed
boundaries that define the proper role of courts." Fabick v.
Evers, 2021 WI 28, ¶92, 396 Wis. 2d 231, 956 N.W.2d 856 (Ann
Walsh Bradley, J., dissenting); see also Teigen, 403
Wis. 2d 607, ¶160 (Hagedorn, J., concurring) (standing "serves
as a vital check on unbounded judicial power").
¶280 So what is the harm being claimed here? The
petitioner-voters say they suffer the harm of a "less responsive
and representative" legislature because of the contiguity
deficiency. That is, they are claiming that legislators
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representing districts with municipal islands (the detached
parts of a municipality) surrounded by another district are less
able to respond to the constituents residing in those islands.
Given that almost all of the challenged municipal islands have a
population smaller than the roster of the Milwaukee Brewers, and
that the citizens living in them are kept in the same district
as the rest of their municipality, this alleged harm might
charitably be called a head-scratcher. The majority surely
recognizes this, so it goes another route. It quotes State ex
rel. Reynolds v. Zimmerman for the proposition that the Governor
"may challenge the constitutionality of a state reapportionment
plan as a violation of state constitutional rights of the
citizens."5 Majority op., ¶39. Then, it argues that because the
Governor has standing, there's no need to consider the standing
problems of the other parties seeking relief. Id.¶281 But relying on the Governor here does not work. Under
claim preclusion, and other equitable bars,6 the Governor cannot
5 22 Wis. 2d 544, 552, 126 N.W.2d 551 (1964).
My colleagues lay out a convincing case for judicial
6
estoppel as well. Chief Justice Ziegler's dissent, ¶¶143-46;
Justice Rebecca Grassl Bradley's dissent, ¶¶247-57. Judicial
estoppel generally precludes parties from convincing a court to
adopt a position in one case, only to take an inconsistent
position in a later case. See State v. Harrison, 2020 WI 35, ¶27,
391 Wis. 2d 161, 942 N.W.2d 310. The majority says the Governor's
changed position on contiguity arises from inadvertence or
mistake, but as Justice Rebecca Grassl Bradley's dissent
explains, his "about-face" is a "textbook example of when
judicial estoppel applies." Justice Rebecca Grassl Bradley's
dissent, ¶257.
In addition, the Governor and the petitioners deliberately
delayed bringing this case until August 2, 2023, the day after a
new justice joined the court. Justice Rebecca Grassl Bradley
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No. 2023AP1399.bh
litigate contiguity again and should be dismissed from the case.7
And it's not a close call.
¶282 The Governor's legal positions throughout this
redistricting litigation saga are astonishing; any other
litigant in any other lawsuit would be promptly dismissed from
the case. In Johnson, the Governor initially argued that the
constitution's contiguity requirement mandated physical
contiguity, just like the petitioners argue in this case.8 Then,
the Governor changed course and agreed with all the other
parties that keeping municipalities together did not violate the
contiguity requirement.9 We agreed and so held, and invited map
proposals consistent with our decision. Johnson I, 399
Wis. 2d 623, ¶36; id., ¶87 (Hagedorn, J., concurring). The
Governor then submitted proposed remedial maps with municipal
islands——the very thing the Governor now argues violates the
lays out a strong case that laches, which bars litigants from
sitting on their hands to the detriment of others, also
prohibits the relief being sought. Justice Rebecca Grassl
Bradley's dissent, ¶¶231-46.
7Claim preclusion also bars the Governor's separation-of-
powers claim because he could have argued in Johnson that
adopting the Legislature's proposed maps would be unlawful on
this basis.
8In his initial brief in Johnson, he argued that contiguous
"means not 'made up of two or more pieces of detached
territory.'" Brief of Intervenor-Respondent Governor Tony Evers
at 6, No. 2021AP1450-OA (Oct. 25, 2021) (quoting another
source).
9All parties eventually stipulated that municipal islands
"are legally contiguous with the municipality to which the
'island' belongs" and therefore do not affront Article IV's
contiguity requirement. Johnson, No. 2021AP1450-OA, Joint
Stipulations of Law 15, ¶20 (Nov. 4, 2021).
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constitution!10 And in briefing regarding the other map
proposals, which also contained municipal islands, the Governor
never questioned their legality——even though he was invited to
address any and all legal deficiencies in those proposals.
Johnson, No. 2021AP1450-OA, Order (Wis. Nov. 17, 2021).
¶283 Yet the Governor now tells us that our judicial remedy
violates the constitution's contiguity requirement. Lady
Justice may be blind, but she need not let a party pull the wool
over her eyes. The doctrine of claim preclusion exists to
prevent this kind of gamesmanship. Parties cannot relitigate
"any claim that arises out of the same relevant facts,
transactions or occurrences" underlying a final judgment on the
merits. Teske v. Wilson Mut. Ins. Co., 2019 WI 62, ¶23, 387
Wis. 2d 213, 928 N.W.2d 555 (quoting another source). This
applies to claims that were litigated, and to claims that could
have been litigated. Id. Claim preclusion is not concerned
simply with the initial cause of action, but rather, the
"transaction or factual situation." Id., ¶31. A "transaction"
involves "a natural grouping or common nucleus of operative
facts." Id., ¶32. When we ask "if the claims of an action
arise from a single transaction, we may consider whether the
facts are related in time, space, origin, or motivation." Id.
(quoting another source).
¶284 The Governor's flip-flopping is classic claim
preclusion. The Governor came before this court to litigate how
https://www.google.com/maps/d/viewer?mid=1fPl8On9q8ZyTa6A
10
1V3CJDzry3YR_pGNt&ll=43.04928877881408%2C-
89.34731737718982&z=12.
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to remedy malapportionment; argued that contiguity permits
municipal islands; submitted maps (that this court initially
adopted) containing dozens of municipal islands; and now, in a
subsequent action, complains that this court's remedy violated
the constitution because its map contained municipal islands.
This argument was litigated in Johnson. And even if it wasn't,
it obviously could have been litigated. If the legislature's
proposed maps that we ultimately adopted violated the contiguity
requirements, the Governor could have said so. He did not; no
one did. The Governor is barred by claim preclusion from
litigating the issues before us again.
¶285 Courts do not usually welcome Harvey Dent impressions
from litigants before them. The majority, however, is just fine
with it. It argues that claim preclusion does not apply because
the causes of action were different. Majority op., ¶¶47-48.
We're told that Johnson was about the 2011 maps, but this case
is about the maps we adopted in our Johnson decision. Different
maps, different facts, they say. But this makes no sense.
Imagine how this would play out in a contract dispute. If
parties stipulate to a breach of contract but litigate the
contractual remedies, claim preclusion would apply to the
remedial claims that were and could have been litigated. A
party could not come back later, file a new case, and seek a
modified remedy because it made ill-advised arguments about the
contractual remedies the first time. So too here.
¶286 The Johnson litigation arose because the 2011 maps
were no longer lawful. The case was entirely about the legal
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and equitable principles that must govern remedial maps, and
which remedial maps should be adopted. The petition here is
nothing more than a continuation of Johnson. It simply seeks a
different remedy to address the ongoing unlawfulness of the last
maps enacted into law——those passed in 2011. Contrary to the
majority's conclusion, the facts here are part of the same
common nucleus of facts: the nature and substance of the
judicial remedy that must be in place due to the continued
unlawfulness of the 2011 maps.
¶287 If the majority is correct that the only transaction
in Johnson was the malapportionment problem with the 2011 maps,
then almost everything litigated in that case was part of a
different transaction that apparently could not have been
litigated in any preclusive way. The Voting Rights Act?
Different transaction, despite a decision from the U.S. Supreme
Court and two decisions from this court on the matter.
Political impact as a relevant consideration in remedial maps?
Different set of facts apparently, despite published decisions
from this court addressing the issue. If the majority is right
that we look only to the narrow legal argument made rather than
the factual situation, then everything that this court says and
decides in this case, other than the contiguity issue itself,
will lack preclusive effect. That's absurd, of course. The
majority's attempt to get past claim preclusion by defining the
set of facts so narrowly disrupts the law and does not withstand
scrutiny.
13
No. 2023AP1399.bh
¶288 Given this, I do not see how the court can bypass the
voter standing problems by relying on the Governor's purported
authority to challenge a districting plan. Even if the Governor
has standing to litigate on behalf of Wisconsinites to ensure a
districting plan complies with the constitution, this does not
end the matter. The question the majority must answer——but does
not——is whether the Governor has the right to litigate on behalf
of Wisconsin voters over and over again, taking different
positions each time, until he gets the result he wants. The
ordinary application of claim preclusion prohibits the Governor
from relitigating the issues he either raised or could have
raised during the last litigation. The majority's standing
decision——resting on a party that should be dismissed——once
again looks like an outcome in search of a theory.
¶289 Next, the majority ignores the impropriety of the
court issuing an injunction on our own injunction. The majority
enjoins the Wisconsin Elections Commission from using the
legislative maps that we, just 20 months ago, mandated they use.
Majority op., ¶¶3, 77. I've never seen anything quite like it.
The general rule is that judgments——and injunctions along with
them——are final and, absent fraud, cannot be collaterally
attacked. Oneida Cnty. Dep't of Soc. Servs. v. Nicole W., 2007
WI 30, ¶28, 299 Wis. 2d 637, 728 N.W.2d 652. This case is
exactly that——an impermissible collateral attack on a prior,
final case.
¶290 The majority's response is that courts regularly
modify prior injunctions in redistricting cases without
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No. 2023AP1399.bh
reopening old cases. Majority op., ¶54. This is true, but only
because there is an intervening event every ten years: the U.S.
Census. And following completion of the census, the
constitution requires that population shifts be accounted for
afresh. Wis. Const. art. IV, § 3. So when courts issue a new
injunction in new redistricting cases, they do so because the
law provides that every districting plan, whether adopted by a
court or the legislature, must be updated following the census.
Id. That is not the case here.
¶291 The majority also zooms by the question of whether we
can even issue a declaratory judgment in the first place. I
have serious doubts. The purpose of the Uniform Declaratory
Judgments Act is to resolve uncertainty. Wis. Stat.
§ 806.04(12). The Act evinces a strong preference for that
goal. See Wis. Stat. §§ 806.04(5) (the enumerated subject
matter upon which courts can declare rights can only be expanded
where the judgment would "remove an uncertainty"); 806.04(6)
(courts may refuse to render declaratory judgments where the
judgment "would not terminate the uncertainty"). These textual
clues have been "universally accepted by courts and
commentators" as prohibiting courts from issuing declaratory
judgments that revisit prior adjudications——a move that
perpetuates uncertainty, rather than resolves it (as this case
exemplifies). Oregonian Publ'g Co., LLC v. Waller, 293
P.3d 1046, 1052 (Or. Ct. App. 2012); see also Royal v. Royal,
271 S.E.2d 144, 145 (Ga. 1980) ("The Act does not authorize a
petitioner to brush aside previous judgments of the same court,
15
No. 2023AP1399.bh
and seek a determination of his rights as if they had never been
adjudicated.") (cleaned up); E.H. Schopler, Validity and effect
of former judgment or decree as proper subject for consideration
in declaratory action, 154 A.L.R. 740 (Originally published in
1945) ("As a general observation from the cases, it may be
stated that an action for a declaratory judgment cannot be used
as a subterfuge for the purpose of relitigating a question as to
which a former judgment is conclusive."). True to form, the
majority never wrestles with this.
III. THE MAJORITY'S REMEDIAL ERRORS
¶292 The majority pushes past all these procedural
roadblocks and still declares the maps this court adopted
unconstitutional. With remarkably little content, it then gives
the parties vague directions on what it wants for the new maps
it intends to adopt.
¶293 The court first overturns Johnson's least change
approach to redistricting. Majority op., ¶63. The majority
then discards the policy choices the legislature made in passing
the 2011 districting law still on the books, and determines it
can and should draft a new law from scratch, consistent with its
own policy concerns. The majority never grapples with the
limited remedial powers of courts, which is the main idea
animating the least change approach. That's because here, the
majority sees itself as a substitute legislature rather than a
court. The majority does not try to fix the contiguity
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problems; it uses its contiguity holding as an excuse to create
new maps reflecting its own policy and partisan concerns.
¶294 In particular, the majority says "partisan impact"
will guide its decision in selecting new remedial maps. But
what does this mean? Should the maps maximize the number of
competitive districts? Should the maps seek to achieve
something close to proportionate representation?11 Should the
maps pick some reasonable number of acceptable Republican and
Democratic-leaning seats in each legislative chamber? I have no
idea, and neither do the parties. The court nonetheless invites
the submission of maps motivated by partisan goals, just as the
petitioners hoped. And with a certain amount of gusto, the
majority insists it is being neutral by openly seeking maps
aimed at tilting the partisan balance in the legislature. The
court announces it does not have "free license to enact[12] maps
that privilege one political party over another," all the while
obliging the wishes of litigants who openly seek to privilege
one political party over another. Majority op., ¶70. The irony
could not be any thicker.
¶295 The court does not provide any meaningful guidance to
the parties on how to satisfy its "political impact" criteria.13
11 For an excellent discussion of the problems with this
approach, see Justice Rebecca Grassl Bradley's dissent, ¶¶223-
25.
12 Courts do not enact anything, however. The legislature,
in our constitutional order, enacts laws.
13 This even though the petitioners urged us during oral
argument to give "clear instructions" regarding the criteria we
would use to evaluate proposals.
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No standards, no metrics, nothing. Instead, it appears the
majority wishes to hide behind two "consultants" who will make
recommendations on which maps are preferable. Those consultants
will presumably use some standards to make this kind of
judgment,14 but the majority will not permit them to be subject
to discovery or witness examination.15 Like the great and
powerful Oz, our consultants will dispense wisdom without
allowing the parties to see and question what is really behind
the curtain. And at the end of this, the consultants will offer
options from which the court can choose. This attempt at
insulating the court from being transparent about its decisional
process is hiding in plain sight.
¶296 The court also fails to interact with the
constitutional requirement that districts "be bounded by county,
precinct, town or ward lines." Wis. Const. art. IV, § 4.
Currently, districts that are not physically contiguous are that
way because the legislature (and courts) have attempted to
comply with the requirement that counties, towns, and wards not
One of the experts has already opined on how he thinks
14
partisan fairness should be measured. Brief of Professors Gary
King, Bernard Grofman, et al. as Amici Curiae Supporting Neither
Party, League of United Latin American Citizens v. Perry, 548
U.S. 399 (2006), 2006 WL 53994.
To the extent the consultants either pick which party's
15
map is best or compose their own, they may be acting as court-
appointed experts. Our rules of evidence expressly give parties
the opportunity to depose and cross-examine court-appointed
experts. Wis. Stat. § 907.06(1); see Martin v. Mabus, 700
F. Supp. 327, 331 (S.D. Miss. 1988) (permitting parties to
depose court-appointed expert who assisted court in drawing new
electoral maps).
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No. 2023AP1399.bh
be split——thus, keeping municipal islands in the same
legislative district as the rest of the municipality. The court
now determines that strict compliance with contiguity is
required, but it ignores how that may be in tension with the
equally required constitutional command to keep county, town,
and ward lines sacrosanct. See State ex rel. Att'y Gen. v.
Cunningham, 81 Wis. 2d 440, 521, 51 N.W. 724 (1892). While
absolute compliance with the "bounded by" clause is impossible
given the one-person, one-vote decisions of the United States
Supreme Court, a return to a more exacting constitutional
standard would likely prohibit running districts across county
lines, or breaking up towns or wards (of which municipalities
are composed) unless necessary to comply with Supreme Court
precedent. This could conflict with strict physical contiguity.
¶297 In the past, the legislature and the courts permitted
some play in the joints, allowing deviation from strict physical
contiguity to keep towns and municipalities together. But in
demanding perfect adherence to physical contiguity, the court
once again pits the two requirements against each other. Will
we receive maps that accomplish physical contiguity, but do not
comply with the requirement that county lines not be crossed,
towns not be broken up, and ward lines (from which
municipalities are constructed) not be split? If so, will the
court bless one constitutional infirmity to remedy the other?
In requiring strict physical contiguity, the majority may end up
picking and choosing which constitutional provisions to honor
based on which ones will serve its goals.
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IV. WHERE DO WE GO FROM HERE?
¶298 Although this litigation is not yet over, it is clear
to me that the Wisconsin Supreme Court is not well equipped to
undertake redistricting cases without a set of rules governing
the process. In Jensen, this court recognized the need for
special procedures governing future redistricting cases. 249
Wis. 2d 706, ¶20. We received a rule petition seeking to do
exactly that prior to Johnson, but this court could not come to
an agreement about what such a process would look like or
whether we should have one. I believed then, and am now fully
convinced, that some formalized process is desperately needed
before we are asked to do this again.
¶299 The problem with this and the Johnson case is that the
parties were and are largely concerned with serving their own
interests. In Johnson, for example, we asked the parties to
propose constitutionally compliant maps that made the fewest
changes from existing law. Johnson I, 399 Wis. 2d 623, ¶87
(Hagedorn, J., concurring). From my vantage point, none of the
parties followed our directive well. Each submitted maps that
sought their own parochial and partisan interests, making many
unnecessary changes, while trying to stay somewhat close to the
prior maps. In this case, I have no doubt we will see the same
kind of partisan maneuvering, which the court here explicitly
invites. This is a mistake.
¶300 Having parties submit maps also leaves little space
for factual determinations in adjudicating Voting Rights Act
issues. While federal panels handling redistricting cases can
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take and receive evidence, manage discovery, and are otherwise
institutionally equipped to make factual findings, we have no
easy mechanism for resolving complicated factual questions. And
our process last time simply did not account for the fact-
intensive VRA adjudication the Supreme Court said was necessary.
See Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398,
403-04 (2022) (per curiam). The majority in this case barely
mentions the VRA, but that doesn't mean it won't be a problem
down the line. Whether the parties submit maps that are race-
neutral, or determine the VRA requires race-conscious line
drawing, could pose a significant problem. The court gives no
instruction on how to handle this, and we have no mechanism in
place for resolving these disputes.
¶301 Perhaps a better approach in the future is for the
court to draw a politically agnostic and race-neutral base map
using the most recent maps enacted into law, and then allow the
parties to seek refinements. No matter the approach, without
any kind of structure to govern a case that is plainly our
responsibility, this court is left to the whims of partisan
agendas. This has not——and will not——serve us well. An orderly
and predictable process may also incentivize the regular
enactment of new maps into law the way the constitution
envisions, rather than litigating over every inch of political
power.
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V. CONCLUSION
¶302 In a politically charged world, the judiciary should
be a bulwark against the tribalism so prevalent among us. We
should neutrally and consistently apply our rules of judicial
process, no matter where that leads us. We should have no
favored litigants or preferred outcomes. At the end of the day,
the majority acts not to vindicate some legal principle, but to
achieve a long sought-after goal: the redistribution of
political power in the Wisconsin legislature. Rather than start
with the law and see it through to the end, the court starts
with the goal and works backwards to justify it. This is not
faithful judging, and I will have no part of it. I dissent.
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1