The state of Wisconsin does not choose its state legislature in free and fair elections, and it has not done so for a very long time. A new lawsuit, filed just one day after Democrats effectively gained a majority on the state Supreme Court, seeks to change that.
The suit, known as Clarke v. Wisconsin Elections Commission, seeks to reverse gerrymanders that have all-but-guaranteed Republican control of the state legislature — no matter which party Wisconsin voters supported in the last election.
In 2010, the Republican Party had its best performance in any recent federal election, gaining 63 seats in the US House of Representatives and making similar gains in many states. This election occurred right before a redistricting cycle, moreover — the Constitution requires every state to redraw its legislative maps every 10 years — so Republicans used their large majorities in many states to draw aggressive gerrymanders.
Indeed, Wisconsin’s Republican gerrymander is so aggressive that it is practically impossible for Democrats to gain control of the state legislature. In 2018, for example, Democratic state assembly candidates received 54 percent of the popular vote in Wisconsin, but Republicans still won 63 of the assembly’s 99 seats — just three seats short of the two-thirds supermajority Republicans would need to override a gubernatorial veto.
The judiciary, at both the state and federal levels, is complicit in this effort to lock Democrats out of power in Wisconsin. In Rucho v. Common Cause (2019), for example, the US Supreme Court held that no federal court may ever consider a lawsuit challenging a partisan gerrymander, overruling the Court’s previous decision in Davis v. Bandemer (1986).
Three years later, Wisconsin drew new maps which were still very favorable to Republicans, but that included an additional Black-majority district — raising the number of state assembly districts with a Black majority from six to seven. These new maps did not last long, however, because the US Supreme Court struck them down in Wisconsin Legislature v. Wisconsin Elections Commission (2022) due to concerns that these maps may have done too much to increase Black representation.
In response to this US Supreme Court decision, the state Supreme Court, which was then controlled by Republicans, adopted another set of maps proposed by the state’s gerrymandered legislature — maps that had previously been vetoed by Democratic Gov. Tony Evers. As Justice Jill Karofsky wrote in dissent, by implementing the new Republican maps over the governor’s veto, “this court judicially overrides the Governor’s veto, thus nullifying the will of the Wisconsin voters who elected that governor into office.”
These judicially imposed maps maintained the GOP’s lock on the state legislature. The 2022 Wisconsin electorate was fairly evenly divided between Democrats and Republicans (Evers won his reelection bid by a little more than 3 percentage points, but US Sen. Ron Johnson, a Republican, also won his race by about a single point). Yet Republicans won 64 seats in the state assembly (out of 99), and 22 of the 33 seats in the state senate.
Legally, not much has changed since the state Supreme Court imposed the Republican Party’s preferred maps on the state in 2022. But politically, there has been one enormous change. Former Justice Patience Roggensack, who joined the decision implementing the Republican maps, retired. On Tuesday, she was replaced by Justice Janet Protasiewicz, who campaigned against the gerrymandered maps and then won her election in a landslide.
Protasiewicz’s elevation to the state’s highest court also gave Democrats a 4-3 majority (technically, Supreme Court races in Wisconsin are nonpartisan, but every recent race has pitted a liberal supported by Democrats against a conservative supported by the GOP), meaning that there’s now a very high likelihood that the state’s Republican gerrymander will fall. Indeed, the plaintiffs in Clarke ask the Wisconsin Supreme Court to require every member of the state legislature, including state senators who would not ordinarily run for election until 2026, to stand for election in 2024 — a remedy that may be necessary if the court does strike down the state senate maps, because otherwise there will be some senators who represent districts drawn using the old maps and some who represent districts under new maps.
If the court grants this request, that would mean that Wisconsin would have its first competitive state legislative election in over a decade.
So what are the Clarke plaintiffs’ legal arguments?
The Clarke plaintiffs raise several constitutional objections to Wisconsin’s gerrymandered maps, some of which will be familiar to anyone who follows partisan gerrymandering lawsuits closely, and others that are specific to Wisconsin.
Like most states and the federal government, for example, Wisconsin’s constitution includes a ban on certain forms of discrimination (Wisconsin’s equal protection provision states that “all people are born equally free and independent”). The Clarke plaintiffs argue that partisan gerrymandering violates this anti-discrimination guarantee by allowing “a majority of the Legislature to create superior and inferior classes of voters based on viewpoint” — that is, by drawing maps that effectively give Republicans more voting power than Democrats.
Additionally, Wisconsin’s constitution includes a provision similar to the federal First Amendment, which provides that “every person may freely speak, write and publish his sentiments on all subjects.” The Clarke plaintiffs argue that partisan gerrymanders violate this provision because, by giving less representation to Democrats, the state effectively retaliates against those voters because of their political views.
These sorts of claims, that partisan gerrymanders amount to unlawful discrimination on the basis of viewpoint, are a mainstay of lawsuits challenging such gerrymanders, and they have been for a very long time.
But the Clarke plaintiffs also raise several additional claims that are unique to Wisconsin. One of their most potent arguments is that the state Supreme Court, when it was controlled by Republicans in 2022, violated the state’s separation of powers when it implemented the exact same maps that were previously vetoed by the governor.
“The Constitution grants the Governor — not the Judiciary — the power to approve or reject by veto, legislation,” the plaintiffs argue. Similarly, the state constitution “grants the Legislature — not the Judiciary — exclusive power to override gubernatorial vetoes.” Yet, when the state Supreme Court implemented the very same map that the governor had previously vetoed, it effectively seized the legislature’s power to decide whether to override that veto.
Additionally, the state constitution provides that legislative districts must “consist of contiguous territory,” meaning that every part of the district must be geographically connected to the rest of the district. But the plaintiffs claim that, under the GOP’s maps, “a remarkable 55 assembly districts, consisting of between 2 and 40 disconnected pieces of territory, and 21 senate districts, consisting of between 2 and 34 disconnected pieces of territory, are noncontiguous.” They also include a map of one of these noncontiguous districts in their brief (the yellow areas are all parts of a single noncontiguous district).
It remains to be seen which of these arguments are embraced by the state Supreme Court’s new majority. It is possible that the court will hand down a fairly narrow decision, which might require the noncontiguous districts to be redrawn but that does not reach any of the more philosophical questions about when gerrymandering crosses the line into unconstitutional discrimination. It is equally possible that the new majority will hand down a more sweeping decision that lays out broader rules prohibiting partisan gerrymanders in the future.
Even a decision striking down only the noncontiguous districts could result in a wholesale redrawing of the maps, however, because the plaintiffs claim that so many districts are noncontiguous. And, given that the court’s more liberal justices have long complained about partisan gerrymandering, the fact that Protasiewicz openly campaigned against such gerrymandering, and the fact that she won in a landslide, it is very likely that the court will hand down some kind of decision ordering Wisconsin to redraw its maps.
Indeed, it would be a catastrophic outcome for democracy if the court did not do so. The US Supreme Court’s decision in Rucho locked Democrats who wanted to be able to fairly compete for election in Wisconsin out of federal court. And the gerrymander itself prevents Democrats from appealing to the state legislature for relief. In electing Protasiewicz, Wisconsin’s voters turned to the only remaining institution that can eliminate the state’s gerrymandered maps.
If the state Supreme Court does not act, pursuant to the clear mandate voters gave Protasiewicz in her recent election, there is no one left to restore democracy to the state of Wisconsin.