By: Kayla Burris

What happens when the governor and state legislature disagree on how to draw a state’s legislative districts? Should the courts get involved? And how soon should they get involved—at the beginning of the process, or closer to the primaries?

State and federal courts in Wisconsin are grappling with these questions. Two tandem tracks of cases are proceeding—one in the Wisconsin Supreme Court and one consolidated case in the District Court for the Western District of Wisconsin.

To set the scene, Wisconsin is one of the most politically divided states in the country with a Republican legislature and a Democratic governor—both of which are required to agree on a legislative map according to Wisconsin law. Thus far in the redistricting cycle, the two sides seem unlikely to come to an agreement on the new legislative map. The Democratic governor has said that “it’s unlikely he would sign into law any maps drawn by the Republican-controlled [l]egislature that are based on the current boundary lines that have solidified GOP majorities for decades.” The governor instead favors using a nonpartisan commission to draw the maps. The Republican-controlled legislature on the other hand argues for retaining the current maps to the extent possible under the law.

These lawsuits started the day after the legislature received the results of the 2020 Census, when Democratic-backed organizations filed suit in federal court. The plaintiffs alleged that, given the new census results, the existing legislative districts were malapportioned because they violated the constitutional requirement of one-person, one vote and the First Amendment right to associate. In an amended complaint, the plaintiffs also alleged that the state districts violated Section 2 of the Voting Rights Act by “packing” Black voters in districts in excess of what is required and by failing to draw an additional Black-majority district.

To emphasize, the plaintiffs alleged that the census results showed that the old maps violated Wisconsin citizens’ rights. Most would say that is why states redistrict every decade, to account for population changes reflected in the new census. However, given the updated census results, the problems with the current map, and the low probability that the Democratic governor and Republican-controlled legislature will agree on a map, plaintiffs asked that the district court prepare to intervene in the redistricting process. They stressed that starting earlier in the process was necessary in order to protect citizens’ rights and to not hold up the 2022 primaries, for which the nomination process begins in April 2022.

The Republican-controlled legislature intervened in the case and argued that the federal court should dismiss the case. The legislature stressed that (1) the lawsuit isn’t ripe because the legislature has not had a chance to fail, (2) courts should not impose artificial deadlines on the process, and (3) that states, not federal courts, should be responsible for redistricting.

The federal court denied the legislature’s motion to dismiss, but will consider a limited stay to give the legislative process and the state courts time to agree on a map.

In its order, the district court recognized that states should be primarily responsible for redistricting efforts, citing to Growe v. Emison, where the U.S. Supreme Court held that a federal court in Minnesota erred by enjoining and not deferring to a state court’s redistricting efforts. However, the court concluded that setting a deadline for the state bodies to agree did not run afoul of Growe. The court was simply considering a timeline, after which, it would intervene if the state had not agreed on a map—it was not actively stopping concurrent state processes or cases. In making its decision, the court also pointed to the fact that a state political process breakdown would not be new for Wisconsin—federal courts have been involved in three of the last four redistricting cycles in Wisconsin. In response to the district court’s order, the legislature asked the U.S. Supreme Court to intervene in the case, arguing that the suit should be dismissed for lack of standing.

Soon after the federal lawsuit began, a Conservative organization, backed by the Republican legislature, filed suit in the Wisconsin Supreme Court. The complaint argued first that the Wisconsin Supreme Court should “accept jurisdiction and stay it until the [l]egislature adopts a constitutionally adequate apportionment plan.” They argued that if the political branches are unable to agree on a legal map, then the Wisconsin Supreme Court should do so, “applying the principle of making the least number of changes to the existing maps as are necessary” to meet constitutional requirements.

Should the political branches fail, Republicans are hoping that the Wisconsin Supreme Court will draw the map because the court has a conservative majority. For that same reason, Democrats are hoping that the federal court will draw the map.

Less than a week after the district court’s order, the Wisconsin Supreme Court responded with its own order allowing the case to go forward. The court emphasized the importance of giving the legislature and governor time to agree on a plan; however, it did not foreclose giving the political branches a deadline and welcomed parties’ input on when exactly the court should get involved.

On October 6, the district court responded to the Wisconsin’s Supreme Court order. In its opinion, the court recognized that the Wisconsin Supreme Court and the Wisconsin political branches are primarily responsible for drawing the legislative maps. However, the court also recognized that “[f]ederal rights are at stake,” so it declined to dismiss the lawsuit altogether and leave redistricting entirely in the state’s hands. It instead decided to strike a middle ground and stayed discovery until at least November 5, and reserved trial dates beginning on January 31, 2022. The court reasoned that this timeline balanced respect for the states with the need to have settled district lines by Spring 2022 when candidates start preparing for the primaries.

Given the importance of Wisconsin’s legislative maps and the current state of litigation, this situation begs an important institutional question—are we comfortable with unelected judges making these decisions? And assuming we are under certain circumstances, what should those circumstances be? These are all questions that the Wisconsin courts will be grappling with over the next few months. For the peoples’ sake, one hopes that the parties involved will be able to compromise and put aside (at least some) of their partisan interests, but that seems unlikely as of yet.

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