The Wisconsin Supreme Court has ruled that the state legislative maps adopted by the same court in April 2022 are unconstitutional. The court issued a decision in Clarke v. WEC on December 22, 2023. The justices of the court voted 4-3 along ideological lines to find that the current maps are unconstitutional and to order that new maps be put in place for the 2024 election.

Justice Karofsky delivered the opinion of the court, joined by the court’s other judicial liberals, Justices Dallet, Protasiewicz, and Walsh Bradley. The majority opinion focused on the issue of contiguity and the fact that many state legislative districts in the 2022 maps include small pieces of detached territory.

The petitioners that brought the case, a group of Wisconsin voters, also alleged that “the existing legislative maps are an extreme partisan gerrymander that violates various parts of the Wisconsin Constitution” and that the process by which the maps were adopted violated the separation of powers guaranteed by the state constitution. The court declined to rule on these questions in part “due to the need for extensive fact-finding.” News coverage of the oral arguments that were held in November 2023 is available here and here.

Each judicial conservative on the court (Chief Justice Ziegler and Justices R. Bradley and Hagedorn) filed a separate dissenting opinion. When the court accepted this case by granting a petition for original action in October of last year, the court’s conservative minority characterized the lawsuit as a veiled motion to reconsider its 2022 decision.

The court enjoined the Wisconsin Elections Commission from using the 2022 maps in any future election but rejected the petitioners’ request for an order invalidating the results of the 2022 state senate elections (which would have required all 33 senators to stand for reelection in 2024). This means that new maps must be adopted in time for the 2024 election, including the August primary and November general elections.

The court noted “that the legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power. Consequently, to ensure maps are adopted in time for the 2024 election, we will proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process.”

The court set a deadline of January 12 for the various parties to the case to submit proposed remedial maps. The court also appointed two “referees,” political science academics who have worked as redistricting consultants in other states, to help the court evaluate the proposals. In a letter to the court, the referees explain how they will analyze the proposals by using demographic and election data to assess the following factors based on the court’s directive:

1. Population equality
2. Political subdivision splits
3. Contiguity
4. Compactness
5. Federal law compliance
6. Community considerations
7. Political neutrality

The referees are to return their evaluations to the court by February 1.

For more information about redistricting in Wisconsin, see the following articles:

• Wisconsin Supreme Court Accepts Redistricting Case; Protasiewicz Will Not Recuse (Oct. 24, 2023)
• Fall 2023 Floor Period: Taxes, Child Care, and Redistricting Emerge as Key Issues (Sept. 27, 2023)
• Protasiewicz Joins Wisconsin Supreme Court as New Majority Asserts Control; Redistricting Lawsuits Filed (Aug. 17, 2023)
• Supreme Court Candidates Discuss Philosophy and Key Cases at WisPolitics Forum (Jan. 11, 2023)
• Wisconsin Supreme Court Reverses Earlier Redistricting Decision, Selects Republican Legislative Maps (Apr. 19, 2022)
• S. Supreme Court Rejects Gov. Evers’ State Legislative Maps (Mar. 31, 2022)
• Wisconsin Supreme Court Adopts Gov. Evers’ Redistricting Plan (Mar. 10, 2022)
• Wisconsin High Court Adopts “Least Change” Approach to Redistricting (Dec. 21, 2021)
• Governor Evers Vetoes Redistricting Bills, Setting Up Court Battles (Nov. 19, 2021)
• Wisconsin Legislature to Vote on Redistricting Next Week (Nov. 5, 2021)
• Republican Legislators Release Redistricting Proposals (Oct. 22, 2021)

Updates on Other Key Cases

Beyond redistricting, other important political issues including abortion, election law, and union rights could come before the Wisconsin Supreme Court within the next few years. Following are updates on several key cases:

• The court heard oral arguments last month in a case in which Wisconsin regulators argue that delivery drivers working for the Amazon Logistics Flex program should have been classified as employees, rather than independent contractors as the company contends. The case could have a significant impact on the wider “gig economy” of app-based services like ridesharing, food delivery, and home repair.
• The court declined to accept a lawsuit filed by the Minocqua Brewing Super PAC challenging the constitutionality of the state’s school voucher programs. The court did not rule on the merits of the case, and the claims could be re-filed in a state circuit court and eventually appealed. Assembly Speaker Vos and an Evers Administration official both filed briefs arguing that the case should not be taken up as an original action. School choice was upheld by the Wisconsin Supreme Court in the face of various constitutional challenges in 1992 and 1998.
• A lawsuit has been filed by several unions seeking to overturn 2011 Act 10, the Budget Repair Bill that limited the collective bargaining authority of most public employee unions. The suit alleges that the law violated the state constitution’s guarantee of equal protection because it exempted certain unions (those representing public safety employees) from the bargaining limitations. The case was filed in Dane County Circuit Court but could eventually be appealed to the Wisconsin Supreme Court. Act 10 has been upheld multiple times by the state supreme court and in federal court.