Wisconsin Supreme Court Accepts Redistricting Case; Protasiewicz Will Not Recuse

The Wisconsin Supreme Court has accepted a lawsuit challenging the legality of Wisconsin’s state legislative maps. As we covered here, two petitions for original action were filed in August, each asking the supreme court to bypass the typical trial and appellate court process and rule that Wisconsin’s current state legislative maps are unconstitutional.

On October 10, the court published orders responding to both petitions. The justices voted 4-3 along ideological lines to accept Clarke v. Wisconsin Elections Commission. The petitioners, a group of Wisconsin voters, allege that “the existing legislative maps are an extreme partisan gerrymander that violates various parts of the Wisconsin Constitution.” The justices unanimously rejected a separate but similar lawsuit, Wright v. Wisconsin Elections Commission.

The parties to Clarke v. WEC are as follows:

  • Petitioners: Several Wisconsin voters, represented by a group of liberal legal advocacy groups and law firms.
  • Named respondents: The Wisconsin Elections Commission and its commissioners and administrator, and the 17 state senators that were elected in 2022 under the current maps.
  • Intervenor-petitioners: Gov. Tony Evers and Stephen Wright et al.
  • Intervenor-respondents: A group of Wisconsin voters, including several former Republican state legislators, represented by the Wisconsin Institute for Law & Liberty, a conservative public interest law firm.
  • Amicus parties: The Wisconsin Legislature and Charles Fried, a Harvard Law School professor and legal activist.

Per the court’s order, the case will proceed by the following schedule:

  • Initial party and intervenor briefs were due October 16. Response briefs are due October 30.
  • Proposed non-party (amicus curiae) briefs and motions for leave to file such a brief are due November 8.
  • The court will hear oral argument on November 21.
  • The court does not typically provide a timeline for when it will issue a decision, and has not done so in this case.
  • According to the court’s order, “requests for additional briefing or extensions will be viewed with disfavor.”

The court’s order directs parties to the case to address the following questions in their briefs:

  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?

As we reported here, Janet Protasiewicz was sworn in as a justice of the Wisconsin Supreme Court on August 1, replacing retiring Justice Patience Roggensack. This shifted the ideological balance of the court to a 4-3 majority of judicial liberals, including Justices Protasiewicz, Jill Karofsky, Ann Walsh Bradley, and Rebecca Dallet. Judicial conservatives previously enjoyed 5-2 and 4-3 majorities on the court for several years. The conservative minority now includes Chief Justice Annette Ziegler and Justices Rebecca Bradley and Brian Hagedorn.

The judicial conservatives dissented from the court’s order accepting Clarke v. WEC, with all three filing written dissents criticizing the court’s decision to take up the case as an original action. They characterized the lawsuit as a veiled motion to reconsider the ruling last year that put the current maps in place prior to the 2022 election. Chief Justice Ziegler wrote that the present case “appears to have been filed only because of a change in the court’s membership. Where does this cycle end? Must this court also allow additional future parties to simply sit this litigation cycle out and come forward next court term–or after the next court election–and present already litigated claims again?”

The Wisconsin Legislature, as represented by Republican legislative leaders, asked Justice Protasiewicz to recuse herself from participation in the redistricting lawsuits because of campaign contributions she received from the Democratic Party of Wisconsin and statements about redistricting that she made during her campaign earlier this year, including that the state’s current maps are “rigged” in favor of legislative Republicans. On October 6, Justice Protasiewicz issued two identical orders denying the motions seeking her recusal in each redistricting case.

The state’s current legislative maps were adopted following the 2020 U.S. Census and a series of rulings by the Wisconsin and United States Supreme Courts. Justice Protasiewicz made redistricting one of her key campaign issues earlier this year, and the issue continues to loom large for Wisconsin officials and political operatives. Redistricting is a significant political conflict that is being closely followed by all sides, especially Republican legislators, who have held strong majorities since the early days of former Gov. Scott Walker’s administration.

Other important political issues including abortion, election law, and union rights are expected to come before the Wisconsin Supreme Court within the next few years. Recently, the Minocqua Brewing Company Super PAC filed an original action challenging the constitutionality of the state’s private school voucher program. The Wisconsin Institute for Law & Liberty is intervening to defend the program.