Tense opening arguments began Tuesday before the Wisconsin Supreme Court in a lawsuit challenging the state’s wildly distorted legislative maps — a case whose outcome has the potential to alter politics in this closely watched swing state .
The first major case heard by the Court’s new liberal majority has become a flashpoint for the state’s purple politics. Tuesday morning’s three hours of debate in Madison, the capital, were preceded by resentment and partisan attacks, which continued throughout the proceedings.
Lawyers for 19 Democratic electors filed a lawsuit in August directly with the Supreme Court – just days after liberals officially took control of their majority for the first time in 15 years – asking the bench to declare the state legislative maps and order that new maps be drawn by March. Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, quickly joined the suit. Experts said the state’s current map is one of the most structured in the United States.
Although the court is technically nonpartisan, its seven justices have nevertheless made their ideological leanings clear. During Tuesday’s proceedings, its three conservative members aggressively questioned Democratic lawyers about why the justices were being asked to overturn maps they agreed to just a year ago. year, repeatedly suggesting that the reason was political.
“Everyone knows that the reason we are here is because there has been a change in the composition of the court. You wouldn’t have brought this action, would you? — if the new justice had lost,” said Justice Rebecca Bradley, one of the court’s conservatives.
Bradley was referring to Janet Protasiewicz, whose resounding victory in April shifted control of the court to liberals.
During her campaign, Protasiewicz criticized the state’s maps as “unfair” and “rigged” — comments that conservatives said amounted to her planning how she would rule on the issue. They demanded she recuse herself — Protasiewicz refused to do so — and some Republicans threatened to impeach her.
That conflict has also been the center of infighting within the court itself — tensions that were on display again during Tuesday’s proceedings, with the justices constantly interrupting attorneys and each other.
During a particularly tense exchange over whether the court had the constitutional authority to decide the maps, Bradley brought up liberal Justice Jill Karofsky, who had interrupted her.
“I would like to get my question answered first, justice,” Bradley said. “Are you making your case?”
The court’s four liberal justices, including Protasiewicz, spent much of their time questioning lawyers about the criteria and rules by which new maps would be drawn if their ruling required it.
The state’s current map was approved last year by the state Supreme Court’s previous conservative majority after Evers and the GOP-controlled Legislature couldn’t agree on the maps. (As is the case in many states, if Wisconsin’s governor and legislature cannot agree on legislation, the issue goes to the state Supreme Court.)
Democratic lawyers based their argument that the current maps should be rejected largely on two assertions.
The first is that the map is unconstitutional because it violates the state constitution’s requirement that districts be contiguous — a complex and ill-defined rule requiring legislative districts to be physically adjacent to each other. Critics of current maps note that some Wisconsin districts include “islands” (or isolated areas) within other districts. Some have compared the state map to Swiss cheese. Justices and lawyers spent most of Tuesday’s proceedings debating how best to define the concept of “contiguity” so that future maps comply with the requirement.
The suit also argues that the state Supreme Court violated separation of powers laws in 2022 after approving a map that Evers vetoed in 2021. Lawyers arguing for upholding the current maps have often mentioned the fact that the separation of powers clause could not be applied. This was not violated because the constitution also specifies that the decision on the maps rests with the state Supreme Court if the governor and Legislature are deadlocked.
Wisconsin’s current legislative maps heavily favor Republicans — who control 64 of 99 seats in the state Assembly and 22 of 33 in the state Senate — despite the fact that the last two presidential elections were both decided by less than one percentage point in the elections. The state and last two gubernatorial races were both decided by less than 4 points.
At stake in a decision to reject the current maps would not only be the maps themselves, but also the fate of decades of conservative laws in this perennial battleground state.
A court decision to order new maps could allow all members of the Legislature to be re-elected in 2024. Such a decision could mean that some Legislators would have to run in new districts, in November special elections, for new two-year terms (including state senators, all of whom would only partially serve four-year terms).
While such a move would certainly not shift Republican control of either chamber into Democratic hands, it would likely weaken the Republican Party’s hold in both chambers — the party has controlled each for 12 years — according to recent analyzes of the maps by the Milwaukee Journal Sentinel and The Associated Press. That, in turn, could help bolster efforts to reverse years of conservative policies in the state on issues related to election administration, unions and abortion. New maps could also push Republicans further away from a supermajority (the party currently has one in the State Senate and is just two seats short of one in the State Assembly), and with her, the possibility of overriding Evers’ vetoes.
Growing political acrimony resulting from Protasiewicz’s victory this year is also behind Tuesday’s tense debates.
Her criticism of the maps — as well as her support for abortion rights — were central to her successful campaign, and these issues have remained hot-button topics since she was sworn in over the summer.
Republican lawmakers in Wisconsin began talking openly about the possibility of impeaching her just days after her victory in April. State Assembly Speaker Robin Vos, a Republican, asked a panel of former Wisconsin Supreme Court members to provide an analysis of whether Protasiewicz’s impeachment was possible.
Her refusal to recuse herself from the case – outlined in a lengthy brief filed last month in which she explained that she never suggested that she would not hear the case fairly despite having expressed various critical opinions on the state legislative maps — has only served to amplify those calls.
Members of the secret group assembled by Vos, however, ultimately advised him not to proceed with the impeachment, although Vos has not yet ruled out the possibility. He suggested last month that he might still do so if Protasiewicz came out against the current cards.