Anthony Sanders · December 4, 2021

This week I’m just going to quickly note a really interesting set of opinions from the Wisconsin Supreme Court on redistricting which the court issued this Tuesday, Johnson v. Wisconsin Elections Commission. The case follows a petition by a group of Wisconsin voters asking the court to redraw congressional and legislative districts following the legislature’s and governor’s failure to do so following the results of the 2020 Census.

The majority determined it was within the court’s authority to draw new districts based on the one-person-one-vote principle under the U.S. Constitution and the Wisconsin Constitution, but also stated it would redraw the new maps based on the “least-change approach.” Under this method the mapmaker starts as its basis the former district lines and moves them to adjust for population change but without taking into consideration other factors. And, it further stated it would not draw new lines based upon the distribution of voters for one party versus another, following the U.S. Supreme Court’s 2019 decision in Rucho v. Common Cause. The dissenting justices disagreed both with using “least-change” in this instance, and with applying the reasoning of Rucho to the Wisconsin Constitution. The dissent also pointed out that here Wisconsin went a different path from the Pennsylvania Supreme Court, which in 2018 said partisan gerrymandering claims are justiciable under the Pennsylvania Constitution.

There’s a lot of discussion of various provisions in the Wisconsin Constitution and the history of the one-person-one-vote principle going back to the Philadelphia convention of 1787 and the Framer’s rejection of the “rotten boroughs” of the British Parliament. Readers of this blog are encouraged to check out the majority, concurrence, and dissent. Here’s a taste from the majority:

The Wisconsin Constitution’s “textually demonstrable constitutional commitment” to confer the duty of redistricting on the state legislature evidences the non-justiciability of partisan gerrymandering claims. Baker, 369 U.S. at 217. Article IV, Section 3 of the Wisconsin Constitution unequivocally assigns the task of redistricting to the legislature, leaving no basis for claiming that partisanship in redistricting raises constitutional concerns. “[P]artisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government.”

And from the dissent:

In an unnecessary and sweeping overreach, the majority effectively insulates future maps from constitutional attack by holding that excessive partisan gerrymandering claims are not viable under the Wisconsin Constitution. It gets there by answering a constitutional question that we never asked, that the parties did not brief, and that is immaterial to this case. The majority seems to think that, because it fails to “find a right to partisan fairness in . . . the Wisconsin Constitution,” the court cannot consider, for any reason, the partisan effects of remedial maps. Majority/lead op., ¶53. But there is no logical connection between these conclusions. In fact, willfully blinding the court to the partisan makeup of districts increases the risk that we will adopt a partisan gerrymander.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.

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