The state Supreme Court has agreed to fast-track key parts of a challenge to the state’s legislative maps, following quickly on a decision by liberal Supreme Court Justice Janet Protasiewicz to rebuff recusal demands from GOP lawmakers.
Friday’s 4-3 ruling, with conservatives dissenting, applies to two key issues raised by a group of 19 voters–that the districts do not have continuous borders, and that the maps violate the separation of powers.
Republicans control both houses of the Legislature by wide margins, with Democrats hoping for a major redistricting in time for the November 2024 elections.
The original challenge argued that 55 Assembly districts and 21 Senate districts “consist of a patchwork of disconnected pieces that do not share a common border with other parts of the same district.”
The separation of powers argument stems from the then-conservative court’s final ruling in April 2022, selecting maps drawn by GOP lawmakers and vetoed by Dem Gov. Tony Evers. The petition argues that action amounted to a judicial override of a gubernatorial veto, transgressing “separation-of-powers boundaries and impermissibly intruded upon core powers of the executive and legislative branches.”
The petition argues the maps are such an extreme partisan gerrymander that all 33 members of the state Senate should be forced to run in new lines next fall. If granted, that could mean members elected to odd-numbered districts last fall would have to run in special elections in 2024 before being on the ballot again in 2026.
The court declined to directly take up other issues presented in the case, noting they would require “extensive fact-finding (if not a full-scale trial).” But advocates say the now-liberal court’s action signals that it wants to act quickly on redistricting.
Among the claims the court will not address are that the maps violate the Wisconsin Constitution’s guarantee of equal protection under law and that they violate the free-speech and association rights of the plaintiffs.
The court also declined to directly take up claims in a separate case brought by a group of seven voters. Those voters were part of a group dubbed “Citizen Mathematicians and Scientists” that submitted maps to the courts during the previous redistricting lawsuit.
Justices have set a short briefing window on the two issues it will consider now.
Those wishing to intervene are ordered to file documents by Oct. 10, with any responses from parties due Oct. 12.
Initial briefings are due by noon on Oct. 16, with responses due by noon Oct. 30.
Oral arguments are set for Nov. 21.
Conservative Chief Justice Annette Ziegler in a dissent argued liberal members of the court had chosen to “chip away at the public’s faith in the judiciary as an independent impartial institution,” undermine previous legal precedent, and “cast a hyper-partisan shadow of judicial bias over the decisions of this court.”
“Such short-sighted behavior demonstrates the court majority’s sheer will to expedite a preconceived outcome for a particular constituency. This abandonment of their judicial oath is disappointing,” she wrote.
State Dem Party Chair Ben Wilker in a statement said Wisconsinites voted for Protasiewicz in a landslide.
“That vote for change was reflected in the decisions handed down by the Court tonight, and it is imperative that the constitutional challenges to Wisconsin’s legislative maps move forward and receive their day in court—free from impeachment threats by Republican politicians desperate to overturn last April’s election and maintain their grip on power,” Wikler said.
The four questions to be considered, according to the order from the liberal-controlled court:
–Do the existing state legislative maps violate the contiguity requirements contained in Article IV, Sections 4 and 5 of the Wisconsin Constitution?
–Did the adoption of the existing state legislative maps violate the Wisconsin Constitution’s separation of powers?
–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)?
–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?
In deciding to remain on the redistricting case, Protasiewicz earlier rebuffed arguments from Republicans that she couldn’t be impartial due to the Wisconsin Democratic Party having contributed nearly $10 million to her campaign and because she had called the GOP-drawn maps “rigged” during her run for the high court.
The recently elected judge, whose April win flipped court control to liberals, in an order this evening said she has searched the books and found no legal reason to remove herself from either of the two cases.
“Allowing politics or pressure to sway my decision would betray my oath and destroy judicial independence,” she wrote, citing a former conservative member of the court. “As Justice Prosser has warned, unjustified recusal can affect the integrity of the judicial branch.”
Protasiewicz wrote she found no other justice has recused due to donations from a political party not involved in a case.
“First, the Legislature has not cited—and I have not found—any case in which a judge recused because a political party that was not involved in the litigation had contributed to their campaign,” she wrote. “To the contrary, judges of all political affiliations have denied such motions.”
She also wrote recusing due to the donations would create problems for other justices.
“Accepting the Legislature’s theory would also raise a swarm of continuing difficulties for each justice,” she wrote. “In recent Wisconsin Supreme Court races, the victor has received substantial financial support from a single entity.”
She also argued her “rigged” maps comment was not a “commitment to voters about how I would decide any case.”
She noted that on the campaign trail she emphasized that her comments “were descriptions of my personal ‘values,’ not pledges of ‘what I’m going to do on a particular case.”
“I will set aside my opinions and decide cases based on the law,” she wrote. “There will surely be many cases in which I reach results that I personally dislike. That is what it means to be a judge.”
Shortly after, the high court tonight released orders to directly take the cases, bypassing the lower courts.
Assembly Speaker Robin Vos, R-Rochester, Senate Majority Leader Devin LeMahieu, R-Oostburg, and Senate President Chris Kapenga, R-Delafield, did not immediately respond to requests for comment.
Senate Minority Leader Melissa Agard on Twitter said Protasiewicz made the right decision.
“Despite the GOP’s desperate efforts to hold onto their gerrymandered majority, their push for recusal was never more than a blatant political maneuver and an effort to ignore the will of the people,” the Madison Dem said.
Dem AG Josh Kaul in a tweet said Protasiewicz’s decision “should put talk of impeachment to rest.”
“Such an extreme act would be a baseless attack on the independence of the judiciary and the will of Wisconsin voters,” Kaul said.
Republican Party of Wisconsin Chair Brian Schimming in a tweet argued Protasiewicz’s comments were plain.
“She clearly prejudged (the) case, called maps ‘unfair’ and ‘rigged’ and said there needs to be “a fresh look at the gerrymandering question,” he said.
See the orders pertaining to original jurisdiction:
https://www.wispolitics.com/wp-content/uploads/2023/10/2023AP1399o7.pdf
https://www.wispolitics.com/wp-content/uploads/2023/10/2023AP1412.pdf
See the original suit accepted for original jurisdiction:
https://www.wispolitics.com/wp-content/uploads/2023/08/230802Petition.pdf
See the Protasiewicz documents:
https://www.wispolitics.com/wp-content/uploads/2023/10/2310062023AP1412recuse.pdf
https://www.wispolitics.com/wp-content/uploads/2023/10/2310062023AP1399recuse.pdf
Note: This story was updated at 9:50 p.m. to include new developments.
