Conservative Justice Rebecca Bradley asked a series of pointed questions during sometimes-tense oral arguments Tuesday suggesting she believes the redistricting lawsuit now before the court threatens its integrity and legitimacy and that her liberal colleagues have already predetermined the outcome.
Mark Gaber, an attorney for the Dem plaintiffs, only got out a few words before Bradley opened her line of questioning. Asking why his clients hadn’t raised a similar line of arguments when the court took up redistricting two years ago, she charged the only reason they were now before the justices was the change in the makeup of the court, inspired by new liberal Justice Janet Protasiewicz’s comments during this spring’s election that the currents maps are “rigged.”
Gaber rejected Bradley’s assertion. He said GOP lawmakers hadn’t yet proposed maps that featured noncontiguous territory until after the court had set a deadline to intervene in the prior redistricting suit that was before the justices two years ago. That means the plaintiffs didn’t know it would be an issue with the map the court eventually put in place and only now have the opportunity to challenge districts that have municipal islands.
“I don’t see that as a partisan issue,” he said. “It’s just the plain text of the Constitution.”
The court’s previous 4-3 conservative majority in April 2022 put in place legislative maps that GOP lawmakers had drawn only to see Dem Gov. Tony Evers veto them. The suit before the justices Tuesday, filed shortly after control of the court flipped to liberals, seeks a declaration those maps are unconstitutional and to have new lines put in place.
Tuesday’s arguments largely focused on several issues, including whether the current maps violate state standards by including noncontiguous territory. Municipal islands, where one municipality is surrounded by a different one, are sometimes created by annexations. The plaintiffs argue Wisconsin’s standards for redistricting require that districts are bounded by “county, precinct, town, or ward lines,” as well as that they are contiguous and compact. The Dem plaintiffs maintain that means the parts of a district must be touching and municipal islands aren’t allowed.
Lawyers defending the maps, meanwhile, argued the current lines meet constitutional muster even if points of the district don’t physically touch. They argued the standard allows towns, for example, that are split up by other municipalities to be all in one legislative district to keep them intact.
The arguments also touched on other issues, including whether the plaintiffs in the case were able to bring the suit in the first place.
Bradley’s questions often made clear she didn’t believe the court should be addressing the case, period.
Bradley opened her questions to Rick Esenberg, of the conservative Wisconsin Institute for Law & Liberty, by asking whether he considered the court to be a “fair tribunal” that will independently and impartially rule in the case considering three of her liberal colleagues already indicated in the 2022 decision they had problems with the GOP-drawn maps. She also said Protasiewicz had indicated her “predetermined position” during the campaign by saying she supported the dissent the three liberals wrote in that case.
Liberal Jill Karofsky interjected, “It’s interesting when only one justice on this court has a legal writing on the case …” before Bradley cut her off.
“Excuse me, justice, I would appreciate the courtesy of you not interrupting me, and I would like to hear a response to my question,” Bradley said.
“Consistent with the provisions of the attorney oath,” liberal Justice Ann Walsh Bradley instructed Esenberg. The oath includes a vow to show “respect due to courts of justice and judicial officers.”
Esenberg said it’s remarkable to see the court in a position of having issued a ruling in a case that had been fully litigated before the justices and then asked to effectively reopen it a year later.
“My view would be that this court finds itself in a precarious situation,” Esenberg said, saying it’s unusual to see a suit filed seeking to essentially overturn a previous ruling after a change in the composition of the court.
Karofsky countered, “More concerning to me, though, is this. Should we find these maps to be unconstitutional, you would just have us sit with it, then. We just shouldn’t worry about it,” she said. “We should just say, ‘You know what, state of Wisconsin, we have unconstitutional maps, live with it until 2031.”
Esenberg represents a group of conservative voters that brought the 2021 redistricting case. He also wrote letters of recommendation for Rebecca Bradley as she sought judicial appointments from former GOP Gov. Scott Walker. Liberals have complained about her hearing cases in which Esenberg has argued before the court, particularly as the justice has accused Protasiewicz of being biased and suggesting it was inappropriate for her to hear the case.
Taylor Meehan, an attorney for GOP lawmakers, argued the maps now in place already meet state standards for contiguity.
She added even if a majority of the court disagrees, the remedy is to fix the districts with issues, not to draw a new map.
According to court records, 54 Assembly districts and 21 in the Senate have noncontiguous territory. Gaber, the attorney for the Dem plaintiffs, said he has counted seven in the rest of the country, saying the current maps are a shock to those who look at them.
Meehan, though, noted in 11 of those seats, no one lives in the municipal islands. In another 10, less than 10 people live there. Of those remaining, 13 involve areas with more than 100 residents.
She argued the noncontiguous territory could simply be absorbed into the surrounding district.
“That’s no reason to draw an entire state map,” she said.
But Karofsky questioned that approach. Redistricting standards require keeping the population of each legislative district as even as possible. Following the approach Meehan suggested, Karofsky noted, would result in a district with a deviation of more than 9% from the population of others. That would “completely blow apart what any court has ever done.”
Karofsky and fellow liberal Justice Rebecca Dallet frequently asked the parties for names of experts who could help the court either draw new lines or select a new map submitted to the justices if they decided to throw out the current district.
Rebecca Bradley took umbrage at the request to order new elections for state senators who were elected just last fall under the map the court previously blessed.
She said along with that, the plaintiffs were essentially asking the court to throw out of office every member of the Assembly who had been elected in 2022.
Rebecca Bradley raised those points while the justices questioned Tamara Packard, an attorney representing five Dem state senators who were elected last fall under the current maps.
Packard said the five were “ready, willing and able to prove to the voters of the districts they are placed in that they are the right representatives to carry the people’s voice to the statehouse.”
Rebecca Bradley called the remedy extreme.
“I can’t imagine something less democratic than unseating most of the Legislature that was just elected last year,” she said.
Protasiewicz added she agreed it was an “extreme remedy” and asked if there was any precedent for such a request.
Packard said she didn’t know of any.
There was also the occasional tense moment among justices.
One of the arguments raised in the case is that the court violated the separation of powers by selecting a map GOP lawmakers drew, but Evers vetoed. They argue the court usurped the guv’s veto power by essentially overriding him even though the GOP-controlled Legislature didn’t attempt to.
Rebecca Bradley and fellow conservative Chief Justice Annette Ziegler frequently peppered Dem attorneys over that argument.
Ziegler, for example, asked Packard why it was wrong for the court to accept the map Republicans drew for the legislative lines, but OK to select the districts Evers drew for House seats. That congressional map hasn’t been challenged.
Packard noted the maps Evers drew were never part of the legislative process. They were only submitted to the court as part of the last redistricting suit.
Bradley expressed exasperation with the answer, charging Packard was suggesting it was OK to usurp the Legislature’s role in redistricting, but not the guv’s.
Karofosky then interjected, “I believe it’s because the Legislature was a party.”
Rebecca Bradley quickly cut her off.
“Are you arguing the case?” she said.
Rebecca Bradley also asked Packard if the Legislature’s map would’ve met the separation of powers standard that Dems had laid out if GOP lawmakers had simply moved a few lines compared to what they passed.
Packard said that was a hypothetical question she couldn’t answer.
Watch the oral arguments at WisconsinEye.
