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New lawsuit seeks to overturn Wisconsin’s Republican-drawn legislative maps

The lawsuit comes 1 day after liberals took control of the court for the first time since 2008

An attendee wears a purple shirt that says "end gerrymandering" on the back.
An attendee sits in the crowd and listens as state legislators discuss redistricting during a hearing Thursday, Oct. 28, 2021, in at the Wisconsin State Capitol in Madison, Wis. Angela Major/WPR

A coalition led by progressive law firms and Democratic voters has filed a lawsuit with the Wisconsin Supreme Court to overturn the state’s Republican-drawn legislative maps, a move that comes one day after liberals took control of the court for the first time in 15 years.

The lawsuit argues the state’s current legislative district lines, drawn originally by Republicans in 2011 and updated in 2021, violate the Wisconsin Constitution. It asks the court to declare them invalid and eventually decide on new maps.

Should plaintiffs succeed, every state senator would have to run for election under new districts in 2024, effectively resetting a chamber where Republicans currently hold a veto-proof two-thirds majority that gives them the power to impose their legislative will on Democrats.

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Attorney Jeff Mandell, a partner at the law firm Stafford Rosenbaum and president of the board for the liberal group Law Forward, said the current legislative map has distorted the state for more than a decade, calling it an affront to democracy.

“Every day that it continues is a violation of the most fundamental rights of every Wisconsinite,” Mandell said. “It must be ended as soon as possible.”

A challenge to Wisconsin’s legislative maps was widely expected after Justice Janet Protasiewicz won her race in April. During her campaign for the Wisconsin Supreme Court, Protasiewicz repeatedly called the legislative maps “rigged,” saying she hoped the court would get a chance to reconsider the maps.

In a statement issued after the lawsuit was filed, Senate Majority Leader Devin LeMahieu, R-Oostburg, criticized the timing of the case.

“Instead of redefining their radical political platform to match the values of everyday Wisconsinites, liberal Democrats are counting on judicial fiat to help them gain power,” LeMahieu said. “The timing of this lawsuit questions the integrity of the court.”

LeMahieu vowed to defend the current maps.

Wisconsin’s redistricting plan has survived multiple federal and state lawsuits since it was enacted more than a decade ago, including one that went all the way to the U.S. Supreme Court.

In that case, plaintiffs argued the maps were so heavily tilted toward Republicans that Democrats would never have a shot at a majority in the Legislature. That partisan gerrymander, they argued, violated their rights under the U.S. Constitution.

While the U.S. Supreme Court never decided the merits of Wisconsin’s lawsuit, the court’s conservative majority ruled in a later case that partisan gerrymandering lawsuits were “non-justiciable” in the federal court system, meaning federal judges were not allowed to decide them.

But the ruling left the door open to partisan gerrymandering lawsuits in state court, said Mark Gaber, the director of redistricting for the Campaign Legal Center, a Washington D.C. group that was involved in previous challenges to Wisconsin’s map.

“The Wisconsin Supreme Court is the only court that has the power to adjudicate these claims,” Gaber said. “We have no choice but to bring them here. And we are happy to do so.”

Even though Wisconsin Democrats won races for governor, attorney general and secretary of state last year, and they fell just short of winning the race for U.S. Senate, they were crushed in races for the Legislature. There, Republicans won two-thirds of all Senate districts and fell just short of that veto-proof margin in the Assembly.

Graber called Wisconsin’s map the most extreme partisan gerrymander in the country.

The Wisconsin Supreme Court upheld Wisconsin’s map just last year, but the path it took to arrive at a decision was anything but routine.

Following the release of new U.S. Census data in 2021, GOP leaders released their version of a map, one that followed the broad strokes of their 2011 plan but skewed more heavily Republican. The Legislature passed the map, which was then vetoed by Democratic Gov. Tony Evers.

That sent the matter to the Wisconsin Supreme Court, whose conservative majority instructed parties to submit new maps to the court that make the “least changes” to the 2011 plan. The idea was that the 2011 map was passed by a Legislature, signed by then Republican Gov. Scott Walker, and upheld in federal court.

Several parties complied with the order, including Evers, who submitted his own maps to the court. The court initially chose Evers’ maps before the U.S. Supreme Court ruled that justices had erred in their decision.

In a subsequent decision, the court’s conservative majority chose the legislative maps drawn by Republicans and vetoed by Evers, helping the GOP win even bigger majorities in the Legislature in 2022.

That’s a key point in the latest redistricting lawsuit filed by Democrats, who argue that the current maps circumvented the usual path for a bill to become law, which they argue is a violation of the state Constitution’s separation of powers guarantee.

The new lawsuit also argues that the map violates the state Constitution’s equal protection guarantee, and its promises of free speech and free assembly.

“This case is entirely different,” said attorney Doug Poland, who has represented Democrats in redistricting challenges dating back more than a decade. “This is very, very new.”

The case also argues that the current map drawn by Republicans is unconstitutional on its face because it includes districts which are not contiguous, a must for any redistricting plan.

Assembly Speaker Robin Vos, R-Rochester, issued a statement after the lawsuit was filed that went after Protasiewicz for statements she made about redistricting while a candidate.

“We expect Justice Protasiewicz to recuse from this matter, given her statements and promises on the campaign trail,” Vos said.

The Wisconsin Supreme Court’s recusal standards are loosely defined, and largely leave it up to justices to decide for themselves when they should sit out cases.

Evers issued a statement celebrating news of the lawsuit.

“The people of Wisconsin deserve fair maps and a Legislature that listens, and this lawsuit brings us one step closer to ensuring Wisconsinites’ voices are heard,” Evers said.

The lawsuit would not challenge Wisconsin’s congressional map, but it would not close the door to a lawsuit down the road. Republicans currently hold six out of eight U.S. House districts, but Democrats are vying to flip two of those seats in the next election.

The case was filed with the Wisconsin Supreme Court Wednesday as an “original action” petition, meaning it asks the court to hear the case directly rather than let the lawsuit proceed through the state court system first. Four of the court’s seven justices would need to agree to that expedited timeline, meaning that if all four liberal justices want to pursue the case, they could.

Should the lawsuit succeed, the court could then decide whether to accept maps from parties or appoint a “special master” to handle redistricting itself.

If plaintiffs get their way, a victory would also apply throughout the state, and all at once. While state Senators normally run on staggered four-year terms, it would have all 33 Senate districts up for election in 2024. That would mean half of all Senators would be running in special elections, and they’d need to run for reelection in 2026. All 99 Assembly races would also take place under the new map.

For more on the history of redistricting in Wisconsin and how it impacts political power in the state, check out WPR’s investigative podcast series, “Mapped Out.”