With a federal court already moving ahead on a redistricting trial, the state Supreme Court has agreed to take original action in a case asking the justices to draw Wisconsin’s legislative and congressional boundaries if Capitol leaders fail to reach a deal.

The 4-3 conservative majority didn’t explain in Wednesday’s order its rationale for taking the case at the request of the Wisconsin Institute for Law & Liberty. But conservative Justice Rebecca Bradley wrote in a concurring opinion that the court taking the case sends a message to the federal court that the justices are prepared to wade into the dispute.

“If instead we chose to sit idly by, the federal courts would logically interpret our inaction as a sign that we would not act should the political branches reach an impasse,” Bradley wrote. “As a matter of comity, we owe the federal courts an answer on how we plan to proceed, and we furnish that answer by granting this petition.”

The ruling comes one day after a three-judge panel in the federal cases put in motion a January trial on redistricting suits.

In her dissent, Justice Rebecca Dallet argued the federal courts are better suited to handle the dispute. They have had a hand in drawing Wisconsin’s legislative maps after every Census since 1980 save 2011, when Republicans had unified control of the Legislature and guv’s office.

What’s more, Dallet noted the Supreme Court rejected a request earlier this year to create a process to handle redistricting suits, but now interjects the justices “into the redistricting wilderness without even a compass.”

She accused the majority of ignoring a state statute that allows a party to challenge a legislative or congressional map in circuit court. That law lays out a process in which the state Supreme Court appoints three circuit court judges to hear the case. The panel’s ruling may then be appealed to the state Supreme Court.

“Although I trust my colleagues as jurists, I do not share their confidence that we can simultaneously be legislators, cartographers, and mathematicians,” Dallet wrote. “Acting as if we can is bad for the court and worse for the people of Wisconsin. Redistricting is a difficult process when it involves only two branches of government. The majority now prematurely, inappropriately, and recklessly involves the third.”

Fellow liberal justices Ann Walsh Bradley and Jill Karofsky joined Dallett’s dissent.

In her concurring opinion, Rebecca Bradley argued Dallet was mistaken in her reading of Supreme Court precedence and the task for drawing new lines belongs in state courts, not at the federal level.

Bradley also rejected Dallett’s assertion that the state case was premature since the Legislature hadn’t even drawn a map yet. She noted a federal three-judge panel had already rejected that argument in moving forward with the federal lawsuits.

She also argued the court shouldn’t defer to the federal courts just because they’ve often handled Wisconsin’s redistricting disputes.

“We should not abrogate our duty now just because we have done so in the past,” Bradley wrote.

WILL filed the request for original action in August, arguing it is unlikely Dem Gov. Tony Evers and the GOP-controlled Legislature would reach a deal on new legislative and congressional boundaries.

The suit asked the court to declare the current lines are unconstitutional due to population shifts and to put in place plans to draw lines if the Legislature and Evers fail to reach a deal in a timely fashion.

The suit also asked the court to stay the matter until the Legislature has adopted a new plan. If that happens, the suit wants the justices to weigh in on the constitutionality of those lines. If the Legislature and guv fail to reach an agreement, the suit asks the court to draw new districts.

In Wedensday’s order, the court declined to address the other requests, saying they were premature.

As part of order, the court set an Oct. 6 deadline for parties to address when a new redistricting plan must be in place and “what key factors were considered to identify this date?”

The Wisconsin Elections Commission indicated in the federal redistricting suits that it needed maps in place by March 1 so it could implement them in time for nomination papers to begin circulating April 15. GOP lawmakers dispute that deadline.

Read the order

Note: Updated 5 p.m., Sept. 22, 2021, with additional information.

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