America’s Tightest Swing State Goes to Court for Election Power

The power to change election laws in America’s tightest swing state is on the line Tuesday as lawyers clash over whether the Wisconsin Supreme Court has the legal authority to unskew legislative lines designed to favor Republicans.

The GOP is fighting to preserve a potent gerrymander that locked down advantages in about two-thirds of the districts in a state that’s generally divided 50-50 between Democrats and Republicans.

Democrats want those district lines to be thrown out and new districts drawn before next year’s elections. Republicans are within striking distance of a veto-crushing supermajority and want to keep the districts as-is.

The maps have “created superior and inferior classes of voters based on viewpoint, subordinating one class to the abusive fiat of the other,” the liberal voters argue in a brief. “Wisconsinites have long endured unconstitutional legislative districts, which have eroded the very core of this State’s democracy. It is time to end this injustice.”

The purple lines show some of the boundaries of Wisconsin State Assembly District 88, which includes noncontiguous “islands.”

Source: Wisconsin State Legislature

Part of the Democrats’ argument is that the maps violate the state constitution by creating numerous patchwork seats where some residents live outside the boundaries of the rest of their voting districts. State law requires contiguous—geographically connected—districts.

The Wisconsin Supreme Court in 2021 largely upheld the state’s current political lines. The justices said if that if Gov. Tony Evers (D) and the GOP couldn’t compromise, the court should accept only the “least change” to existing maps.

That ruling cemented maps in which Republicans in 2011 drew themselves a 2-to-1 advantage in the state Senate and Assembly districts, despite the state’s overall more evenly divided political picture.

Swingiest State

Wisconsin is the only state where both the 2016 and 2020 presidential elections were decided by less than 1 percentage point.

It’s represented in the US Senate by Democrat Tammy Baldwin and Republican Ron Johnson. Its other big statewide contest, for governor, was won by a Democrat.

Republicans in the state legislature have been trying to eject Wisconsin’s nonpartisan elections commissioner and are at odds with Evers over the ground rules for voting in Wisconsin.

The governor has vetoed at least 27 election-related bills, including measures that would have imposed stricter absentee ballot rules, allowed for more poll observers, and overhauled the nonpartisan Wisconsin Elections Commission, according to Bloomberg Government data.

In 2020, Donald Trump’s campaign challenged an absentee ballot rule in key Democratic counties that put 220,000 votes in jeopardy. Trump lost that case by a single Wisconsin Supreme Court vote.

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This year, voters put liberal Janet Protasiewicz on the bench after the highest-spending state court race in US history.

She ran a campaign directly attacking the state’s political maps as “rigged.”

“The Court should consider the demands of the people of Wisconsin,” a coalition of voting groups wrote in a brief to the court. “To ignore the demands of the people would leave them aggrieved and echoing in the void.”

‘Legislative Power’

The case boils down to whether picking the GOP maps over the ones favored by Evers violated the state’s separation of powers, and whether stranded bits of towns and cities outside of districts violate state law.

Seeking “‘least change’ tends to benefit already advantaged political parties, it removes an in-power party’s incentive to cooperate with the minority party during the legislative process,” Evers argued in his brief. “It also encourages redistricting failure and impasse.”

The court should leave the maps alone, proponents of the map contend, because the legislature is the body closest to the people.

“To scrap a map and draw a wholly new one, however, would be to exercise legislative power,” the Wisconsin Manufacturers & Commerce, Inc., the state’s primary business lobbying group, said in a court brief. “Indeed, doing so would be like using judicial review not only to strike down a statute but to then also rewrite the statute.”

If the justices side with the maps’ opponents, a special master or judicial panel would have to be created quickly so that new lines could be drawn in time for candidates to know where to circulate nominating petitions. Filing for the November races opens April 15.

To prepare for the arguments, attorneys had to prioritize themselves. The state Supreme Court hearing room can seat roughly 50 people, including clerks and press, while 60 attorneys represent the litigants in this case.

Among them is Rick Esenberg, the founder and president of the conservative Wisconsin Institute for Law & Liberty. He’s long said there’s no good test for courts to impose “fairness” in political districts, and the court shouldn’t improperly take the legislature’s line-drawing job.

“The question could be how far you can really go to fix these municipal islands given the small population and relatively few voters affected,” he said in an October interview. “You should not use this municipal island issue to smuggle in the partisan gerrymandering issue that the court declined to hear in the case.”

The case is Clarke v. Wisconsin Elections Comm’n, Wis., No. 2023AP1399, oral argument set for 11/21/23.