MADISON, Wis. (Legal Newsline) - Wisconsin conservatives are fighting the state Supreme Court’s attempt to redraw legislative voting districts after a liberal majority threw out existing maps over so-called “municipal islands” that have existed for decades and were upheld by the court as recently as 2022.
In a December 2023 decision that drew harsh dissents from the court’s three conservative justices, a four-justice majority ruled existing maps for state assembly and senate voting districts violated a provision in the Wisconsin Constitution requiring “contiguous” districts.
The decision came in a case that Democratic voters filed the same day Justice Janet Protasiewicz was sworn in at the court, flipping the majority to liberal from conservative. Justice Protasiewicz was elected in a campaign that drew tens of millions of dollars in contributions from Democratic donors nationwide.
The Wisconsin Supreme Court majority declined to rule on claims the maps gave an unfair advantage to Republican candidates but did find the districts contained too many “municipal islands,” or territory assigned to one district that is entirely surrounded by another.
Those islands are a legacy of municipal annexation and conservative critics of the decision note that most contain few or no voters. Two islands in the Racine voting district, for example, contain a golf course and a dog park. Only three islands contain more than 1,000 voters.
“This is not what courts should be doing,” said Luke Berg, deputy counsel for the Wisconsin Institute for Law and Liberty, a conservative group. “It’s a fig leaf for what they really want to do, which is redraw the voting districts.”
The fight over Wisconsin’s voting districts has raged since the 2020 census, when the Republican-controlled legislature proposed a new map and Democratic Gov. Tony Evers vetoed it. The Wisconsin Supreme Court intervened, first imposing a redistricting plan devised by Gov. Evers, and after the U.S. Supreme Court struck that down as a racial gerrymander, a plan drawn up by the legislature.
The then-conservative majority on the Wisconsin Supreme Court adopted a “least change” principle under which maps would retain as many existing voters as possible. The new majority threw out that idea as “unworkable,” instead saying it will judge maps according to a number of criteria including municipal boundaries, population and federal civil rights law.
It has given legislators several weeks to come up with new maps, after which it will select its own.
The court majority said it will also revisit the question of whether the maps were impermissibly partisan, calling that an “important and unresolved legal question” that it will consider when approving new maps. Congressional voting districts are not an issue in this litigation, although Wisconsin is likely to be a key battleground state in the next presidential election.
The majority decision drew a strident dissent from Chief Justice Annette Kingsland Ziegler, who called out her liberal colleagues by name and accused them of taking “a wrecking ball to the law” to achieve their goal of forcing another redistricting a year after the same court approved a different voting map.
“This deal was sealed on election night,” Justice Ziegler wrote. “The court of four's outcome-based, end-justifies-the-means judicial activist approach conflates the balance of governmental power the people separated into three separate branches, to but one: the judiciary.”
Justice Rebecca Grassl Bradley echoed the chief justice, opening her dissent by writing: “Riding a Trojan horse named Contiguity, the majority breaches the lines of demarcation separating the judiciary from the political branches in order to transfer power from one political party to another.”
The Article IV of the Wisconsin Constitution sets out a number of requirements for voting districts, including that they be bounded by municipal border lines, be “composed of contiguous territory,” and “in as compact form as possible.”
As cities and towns expanded through annexation in the 20th century, they sometimes surrounded existing pockets of another municipality. The voting district around the capitol city of Madison has more than a dozen islands with thousands of residents and more than half of the 132 assembly and senate districts have at least one island.
Conservative critics of the Supreme Court majority’s decision say those islands have existed for decades, however, and were dismissed by a federal court in 1992 as not “a serious demerit” since they all lay within the same counties. The Wisconsin Supreme Court endorsed the finding of that federal court in in its so-called Johnson I ruling in 2021, with all seven justices voting to approve maps with islands.
Three of those justices flipped their opinions after Justice Protasiewicz joined the court, saying the contiguity requirement means “just what it says.”
“To the extent that Johnson's passing statements about the contiguity requirements of Article IV, Sections 4 and 5 represent binding precedent, we overrule them,” the majority ruled.
The decision handed responsibility to the Wisconsin legislature to draw up new maps, but with a tight deadline, possibly as early as April 15. In the meantime, the court is accepting proposals from various groups including legislators, the organizations behind the lawsuit that overturned existing maps and WILL.
In a court filing, WILL says the simplest solution would be to simply eliminate the municipal islands, which would move less than 5,000 people into new voting districts. Failing that, the group says the Supreme Court should adopt the map that affects the fewest number of voters and has the smallest differences in population between voters. WILL says its map would have a population deviation of less than 1% and affect about 4.3 million voters, 1 million less than the map proposed by Senate Democrats.
“There’s really in our view, no real reason to accept the contiguity argument,” said Berg of WILL. “There's a simple way to fix the problem.”
As a candidate, Justice Protasiewicz called the maps approved by the predecessor Supreme Court "absolutely, positively rigged." Conservative groups called for her recusal from the latest redistricting case but she refused. That case is pending.