Empower Wisconsin | March 4, 2022
By M.D. Kittle
MADISON — The Republican-controlled Legislature will ask the U.S. Supreme Court to weigh in on a political boundary dispute a day after Gov. Tony Evers prematurely declared victory for Democrats.
In a motion filed Friday, Republicans asked the Wisconsin Supreme Court to stay its injunction on the current GOP-draw maps following the court’s narrow 4-3 ruling Thursday adopting Evers’ redistricting plan.The Legislature seeks appellate review from the U.S. Supreme Court.
That petition is expected to be filed on Monday, and the motion expresses confidence the Legislature is”likely to succeed on the merits of the appeal.”
Here’s why, according to the motion:
“Yesterday’s decision orders that Wisconsin’s forthcoming elections use the Governor’s unconstitutional senate and assembly district lines. The Governor’s districts cannot be justified by any reasonable interpretation of the Voting Rights Act. And the lacking scrutiny of the Governor’s proposed districts as a violation of the Fourteenth Amendment’s Equal Protection Clause contradicts the Supreme Court’s controlling caselaw and is ripe for summary reversal.”
On Thursday, liberal Justice Brian Hagedorn voted with the three other liberals on the Wisconsin Supreme Court in approving Evers’ redistricting proposal, writing in his majority opinion that, “No other proposal comes close” to following the “least change approach” to the maps.
The conservative members of the court he occasionally aligns with blasted the decision.
“The majority opinion demonstrates a complete lack of regard for the Wisconsin Constitution and the Equal Protection Clause. Short on legal analysis and long on ipse dixit (a dogmatic and unproven statement), the majority opinion amounts to nothing more than an imposition of judicial will,” wrote Supreme Court Chief Justice Annette K. Ziegler in the dissenting opinion.
Hagedorn, who ran as a conservative, sided with the seven-member court’s far left justices again. He did so in favoring a far left governor’s political maps proposal that was drawn in secret after his fellow Democrats in the Legislature rejected his People’s Maps Commission redistricting plan.
The majority opinion, according to conservative Justice Rebecca G. Bradley, defies the court’s original directive to adopt maps with the “least change” from the existing political boundaries drawn by legislative Republicans a decade ago. Instead, it emphasizes a “blatantly political” measure that unconstitutionally gives the court legislative powers.
“The majority’s decision represents a startling departure from the rule of law and an alarming affront to the people of Wisconsin who elected us to uphold the constitutions,” the justice wrote.
Evers did a victory lap.
“Hell yes,” the governor said in a statement following the ruling. “The maps I submitted to the Court that were selected today are a vast improvement from the gerrymandered maps Wisconsin has had for the last decade and the even more gerrymandered Republican maps that I vetoed last year.”
It was premature celebration.
Rick Esenberg, president of the Wisconsin Institute for Law & Liberty, said the Legislature could have a case. He pointed to a recent case in which the U.S. Supreme Court has weighed in on the kind of questions the Legislature is posing.
While the courts have held strict adherence to equal population representation on congressional districts, they have given more leeway to state political boundaries. And Evers’ secretly-drawn maps took full advantage of the more relaxed standards.
“The governor helped himself to that,” Esenberg said. “He basically left the maps out state the way they were then gerrymandered Milwaukee.”
Evers justified doing so because of the demand to comply with the Voting Rights Act, but Milwaukee Democrats voted against his plan because it obliterates minority districts. And Evers’ vaunted People’s Maps Commission, shot down by Democrats and Republicans, was even worse.
“The worst part of the People’s Commission plan is not that it violates the Voter Rights Act, it is that the commission purposefully and completely ignored the VRA, only to eventually issue a vague promise to come back and fix it later,” Joe Handrick, executive director of Common Sense Wisconsin and redistricting expert wrote. “Following the VRA and the Fourteenth Amendment is foundational to protecting the civil rights of Wisconsin citizens – it cannot be an afterthought.”
Evers’ final plan remakes some key Republican districts. For instance, State. Sen. Dale Kooyenga (R-Brookfield) would be bumped into the the 8th Senate District, represented by Sen. Alberta Darling (R-River Hills). Unless he moves into the newly configured 5th Senate District, he would have to square off against Darling, a popular long-time lawmaker in her district.
On the congressional lines, Evers’ maps effectively turn a traditionally conservative 1st Congressional District into a much bluer zone, making re-election for U.S. Rep. Bryan Steil (R-Janesville) this fall much more challenging.
But the “least change” measurement still gives Republicans a decent advantage in Wisconsin’s state legislative and congressional districts. Esenberg said Evers’ declaring victory is kind of like winning the bronze medal in the consolation game.
“It’s disappointing from a Republican perspective, but they averted something they didn’t want to see,” he said. “They didn’t get everything they wanted, they got a glass more half full than full.”