MADISON, Wis. — Law Forward and the Election Law Clinic at Harvard Law School today filed a reply brief with the Wisconsin Supreme Court in Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission (WBLD v. WEC), urging the Court to reverse a circuit court order dismissing WBLD’s challenge to Wisconsin’s congressional map and send the case back for trial to a panel of three circuit court judges.

Law Forward and the Election Law Clinic argue that anti-competitive gerrymandering is a legal claim distinct from partisan gerrymandering and grounded in the Wisconsin Constitution’s text, drafting history, and case law. They further argue that courts have a workable standard for deciding when a map has been unconstitutionally engineered to shield officeholders from being held accountable by voters. The brief is a response to arguments from the Wisconsin Legislature, a group of Republican members of Congress, and other intervenors defending the current unconstitutional map, which is the same map those same parties opposed in prior Court proceedings.

“This case is about whether Wisconsin voters have a meaningful opportunity to participate in elections for Wisconsin’s representatives to the U.S. House, or whether politicians are given free reign to collude in drawing district lines to protect incumbents, avoid competitive races, and create safe districts that decide the outcome of congressional elections before anyone gets a chance to vote,” said Doug Poland, Law Forward Director of Litigation. “The Wisconsin Constitution, our state’s history, and this Court’s own precedent support recognizing that drawing congressional districts to eliminate competition defeats the constitutional rights of Wisconsin voters. We look forward to arguing this case in front of the Court next month and continuing the work to strengthen democracy in our state.”

Wisconsin’s current congressional map, the brief argues, was created by making the “least changes” to districts jointly drawn by legislators from both major political parties last decade to protect incumbents in both parties; not a single incumbent has lost a congressional race, and no district has changed party hands, in more than a decade under the map and its predecessor. Recent races have been decided by a median margin of roughly 30 percentage points, even as Wisconsin remains one of the most closely divided states in the country in statewide elections.

The brief lays out a two-part test for courts to apply to test the anti-competitive intent and anti-competitive effect of proposed maps, including asking whether a map was drawn with the intent to suppress competition, and whether it has that effect, measured against the level of competition that would naturally result from following the state’s own redistricting criteria.

“We know this test works because the intervenors relied on all of its methods a couple years ago, when they were involved in the case about Wisconsin’s state legislative districts,” said Nicholas Stephanopoulos, Kirkland & Ellis Professor of Law at Harvard Law School. ”The intervenors’ experts measured competition exactly as we propose, and used the same approach of comparing plans to ensembles of many computer-generated maps. What worked two years ago is still reliable today.”

“Wisconsin’s economy depends on elected officials who are actually accountable to the people and businesses they represent. When a map is drawn so that almost no race is competitive, there’s no pressure on anyone in Congress to solve problems or respond to what their constituents need,” said Anoop Prakash, with Wisconsin Business Leaders for Democracy. “That’s bad for democracy, and it’s bad for business. Our courts have the ability to fix this and order new maps that strengthen democracy and accountability.”

Oral arguments before the Wisconsin Supreme Court are scheduled for 10:30 am on September 16.

Read the full reply brief here.