by The Badger Project, The Badger Project
April 29, 2022
While Wisconsin Supreme Court gave Republicans major wins, the 2023 election could reverse them.
BY PETER CAMERON, The Badger Project
After a whirlwind of court decisions, Wisconsin’s political district maps are set. For 2022 at least.
The maps for the two houses of the state legislature — the Senate and Assembly — are projected by some to give Republicans, who drew them, an even greater advantage over their maps from the previous decade, which some experts called the most gerrymandered in the country.
The new maps for Congress also contain a minor victory for Democrats and competition in politics. The makeup of the red 1st District in southeastern Wisconsin, Paul Ryan’s seat for 20 years and currently held by Republican Bryan Steil, changed enough to become winnable for Democrats, experts say. In a state where the incumbent party did not lose a single congressional election in the past decade, two of the eight congressional districts are now competitive.
But overall, experts agree the Wisconsin Supreme Court’s decision to base all the new maps off the old, gerrymandered ones, then to choose maps for state legislature that Republicans had drawn, are huge wins for the GOP, and huge losses for Democrats and competitive elections.
“Simply put, it was a terrible decision that eliminates democracy in Wisconsin for the next ten years,” said Spencer Black, a former Democratic state legislator. “It’s what Vladimir Putin would like to achieve in Ukraine, if he didn’t have to send his tanks and could just get the Supreme Court to do it for him.”
Black, who retired from the state Assembly in 2010, for years pushed his party to enact a nonpartisan redistricting commission that would draw maps without partisan tilt. Democrats had the chance in 2009, when they held complete control of state government.
Despite pleas from Black and pro-democracy groups such as the League of Women Voters, party leadership did not act. That was a “big mistake,” Black said.
“I wish they had heeded my advice back then,” he said. “I suspect in hindsight they have changed their minds.”
The Tea Party wave followed in the 2010 elections, wiping out Democratic majorities. Fortified by gerrymandering, Republicans have been in near-total control of the state legislature since.
But while the maps likely will be in place for the 2022 election, more legal challenges are almost certainly on the way. And an upcoming election could upend everything.
How we got here
Every decade, the political districts for state legislature and U.S. Congress must be redrawn across the country, a task normally left to the legislature. In Wisconsin, the governor can veto the maps, which is what Democratic Gov. Tony Evers did to the Republican-drawn districts last year.
Wisconsin state government also failed to agree on redistricting maps after the Census in 1980, 1990 and 2000. In litigation over those years, the state Supreme Court declined to take the case or plaintiffs took their arguments directly to the federal courts. Both paths led to federal courts drawing the political districts, leading to generally competitive maps, experts say.
But when Republicans won complete control of the state legislature and governor’s office in 2010, they were able to draw the maps without interference. The results were heavily partisan-skewed districts in a state that’s almost evenly split between Democratic and Republican voters. Those maps allowed Republicans to hold large majorities in the legislature for nearly the entire decade, even when its candidates’ vote totals across the state were less than Democrats’ totals.
With little fear of losing those majorities, state Republicans have made little to no effort to adopt some measures that have strong public support across Wisconsin. Those include legalizing marijuana, mandating universal background checks on all firearms purchases, enacting red flag laws on guns, and expanding Medicaid, said Charles Franklin, director of the Marquette Law School Poll.
The latest round of redistricting in Wisconsin has been a rollercoaster ride.
First, the conservative majority on the state Supreme Court decided to take the case, despite recent history and the court’s own decision in 2000 to let the federal courts handle it. Democrats had hoped the case would again be decided in the federal courts, where they thought they had a more favorable chance.
Then, the state Supreme Court gave Republicans another major win. It agreed with the Republican argument that the new maps should change as little as possible from the maps of the past decade. Maps Republicans had drawn to maximize their advantage.
While other courts have accepted this “least-change” argument in the past, usually the new maps in those cases are based on court-drawn versions with little to no political lean, said Robert Yablon, an associate professor at the UW Law School who focuses on political and election law.
“What is virtually unheard of is to rely on a “least change” approach when the prior maps clearly have a partisan skew,” Yablon said.
Courts sometimes use outside experts to draw nonpartisan maps to settle redistricting disputes, as the federal courts had done for Wisconsin in the past. But the Wisconsin Supreme Court asked the plaintiffs in the case, Democrats and Republicans, to submit maps.
Despite being constrained by the court’s “least change” mandate, Democrats tried to claw back some of the partisan advantage Republicans had given themselves, while Republicans submitted maps maintaining or increasing their advantage.
Initially, the right-leaning Justice Brian Hagedorn, an occasional swing vote, sided with the left-leaning wing of the court, and chose the maps Democrats had drawn.
Republicans then made an emergency request for the U.S. Supreme Court to intervene. Using its “shadow docket,” which allows it to issue decisions without explanation or declaring how the individual justices ruled, the U.S. Supreme Court said Democrats had not provided sufficient justification for adding an extra majority Black district in the state Assembly, a potential violation of the federal Voting Rights Act, and kicked the maps for the state legislature back to the Wisconsin Supreme Court.
The U.S. Supreme Court left the Congressional maps in place, giving Democrats and pro-democracy advocates their minor win.
Back at the Wisconsin Supreme Court, Hagedorn rejoined the state court’s conservative wing and ruled that the Republican-drawn state legislative maps, which subtracted one Black majority district from the state Assembly, more closely followed the U.S. Supreme Court’s ruling.
New lawsuits over the maps are “highly likely,” Yablon said, specifically on the issue of whether the Republican-drawn state legislature maps intentionally discriminate against Black voters. But the maps are unlikely to change before the 2022 election, he said.
The Future
Across the country, Democrats have tried to match Republican ruthlessness by gerrymandering the states they control. Many experts now project a more evenly divided national map for the House of Representatives for the next decade, compared to the previous maps that generally favored Republicans.
And in some states, like Michigan, which previously had badly gerrymandered maps, citizens banded together to take the redistricting process out of the hands of politicians. After gathering the necessary signatures, the movement got an initiative onto the ballot in the 2018 election to create a nonpartisan restricting commission. It passed with more than 60% of the vote, and Michigan will now have competitive maps for the 2022 election and beyond.
But Wisconsin is one of many states that does not allow citizen ballot initiatives, and the national outlook doesn’t help Democrats in the Wisconsin State Legislature.
Looking forward, it’s possible the state Supreme Court could reverse its previous decisions on redistricting, but that’s only likely if the court’s makeup changes, Yablon said.
It could. Conservative Justice Patience Roggensack is up for reelection in April 2023. The winner of that race will decide which political party controls the court. Conservatives currently have a tight 4-seat majority on the 7-seat court.
“The election of 2023 is the best hope,” Black said.
Black has publicly argued for recalling state Supreme Court justices if they did not prevent another decade of partisan gerrymandering. But noting the lengthy process to launch a recall, and the fact that Roggensack’s seat is enough to swing control of the court, Black said the 2023 election will have the same effect.
“That should be really the only issue in that election: will we have democracy in the state of Wisconsin or not?” Black asked.
Democrats have introduced a bill in Congress that would ban partisan gerrymandering nationally, requiring redistricting to be done by a nonpartisan commission, but that bill has no Republican support and has stalled. Its prospects for passage become even dimmer if Republicans take back the House this year, as many project them to do.
Former state Sen. Dale Schultz, a Republican in the Wisconsin State Legislature for decades, takes the long view on redistricting reform.
Since his retirement from the legislature in 2015, he has worked to raise the issue of nonpartisan redistricting with the public. An issue that used to make voters’ eyes glaze over is now firing up people across the state, he said. That’s a positive he takes from the redistricting fight, and one encouraging him that grassroots push for reform isn’t going away.
“I didn’t get into this with the idea that it was going to be easy,” Schultz said. “Any great social and governmental change in our country has taken an enormous amount of effort.”
The Badger Project is a nonpartisan, citizen-supported, investigative journalism nonprofit in Wisconsin.
This article first appeared on The Badger Project and is republished here under a Creative Commons license.
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