Oral arguments at the Wisconsin supreme court got off to a heated start on Tuesday in a closely-watched case in which challengers are seeking to strike down the state’s legislative maps, which are considered among the most distorted in the US.
Related: ‘Deliberate and anti-democratic’: Wisconsin grapples with partisan gerrymandering
The case, Clarke v Wisconsin Elections Commission, could bring an end to more than a decade of Republican dominance in the Wisconsin legislature. In 2011, Republicans drew districts for the state legislature that were so distorted in their favor that it made it impossible for them to lose their majorities. Last year, the state supreme court implemented new maps that made as little change as possible from the old ones when lawmakers and the state’s Democratic governor reached a redistricting impasse.
Justice Rebecca Bradley, one of the three conservatives on the seven-member court, interrupted Mark Gaber, a lawyer for challengers, less than 10 seconds after he began his argument on Tuesday. “Where were your clients two years ago?” she asked.
The question set the tone for many of the questions from Bradley and the court’s conservative minority. They pressed Gaber and other attorneys seeking to get rid of the maps on why they did not raise their arguments two years ago when the court picked the current maps. At one point Bradley bluntly said that the challengers were only bringing the case because the composition of the court had changed.
The case was filed the day after Janet Protasiewicz formally took her seat on the supreme court in August, flipping control of the bench and giving liberals a 4-3 majority. Protasiewicz, who called the maps “rigged” during her campaign last year, a comment that has prompted Republicans in the legislature to threaten impeaching her.
“You are ultimately asking that this court unseat every assemblyman that was elected last year,” said Bradley, comparing the plaintiffs’ request to implement a new map before the 2024 elections – and additionally, to hold early special elections for representatives not up for election in 2024 – to Trump’s attempt to overturn the 2020 election.
Several of Bradley’s questions were pointed. At one point, she yelled at Justice Jill Karofsky, a liberal on the court, for cutting her off during a question and asked: “Are you arguing the case?”
The map for Wisconsin’s state assembly may be the most gerrymandered body in the US. It packs Democrats into as few districts as possible while splitting their influence elsewhere. Even though Wisconsin is one of America’s most politically competitive states, Republicans have never held fewer than 60 seats in the state assembly since 2012. The gerrymandering in the assembly carries over to the state senate, where Wisconsin law requires districts to be comprised of three assembly districts.
The challengers in the case argue that the maps are unconstitutional for two reasons. First, they say, 75 of the state’s 132 legislative districts are non-contiguous. That is a clear violation of a mandate in the state’s constitution that says districts have to “be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable”
Second, they argue that the way the maps came to be implemented ran afoul of the state constitution. In 2021, the state supreme court took over the redistricting process after Governor Tony Evers, a Democrat, vetoed a GOP-drawn plan. The court, which then had a conservative majority, invited a range of submissions for a new map, but announced it would pick a proposal that made as little change as possible to the existing maps. It initially chose a plan drawn by Evers, but that map was rejected by the US supreme court. The state supreme court then chose a different plan submitted by legislative Republicans. It was the same map Evers had vetoed in 2021.
That decision, the challengers argue, allowed the legislature to essentially override Evers’s veto, the challengers say, violating the separation of powers between governmental branches.
Republicans argue that the districts are constitutional. Several localities in Wisconsin have annexed non-contiguous territories so to keep localities whole. The state supreme court also exercised a constitutionally permissible role in choosing a map, they say, because the governor and lawmakers had reached an impasse.
Pressed by Justice Brian Hagedorn, another conservative on the bench, Gaber said that it was possible to draw districts that preserved county and ward lines and were also contiguous.
“There’s not a single place in Wisconsin where it’s not possible to bound the districts with county, town, and ward lines and to be 100% contiguous,” Gaber said.
The state elections commission has said that it would need any maps to be in place for next year’s elections no later than 15 March 2024 so a decision from the supreme court is expected relatively quickly.
Several of the justices on the court asked lawyers for names of non-partisan special masters who may be able to assist them if they needed to put maps in place, a sign that the justices are aware of the tight timelines of the case.
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