Digging in in the Badger State

Justin here. There’s an oddity in the most recent round of Wisconsin’s redistricting travails.  Democratic legislators (and later, the Democratic Governor) seem to be voting against an ostensible olive branch extended by the Republican legislative leadership.  And I wonder if that’s because the olive branch isn’t what it seems.

(Caution: deep dive ahead.  If you’re already all caught up on the backstory, jump ahead here.)


A (necessarily) brief recap: the redistricting fight in Wisconsin has been bitter.  On a strict party-line vote, the 2021 Republican-controlled legislature passed a legislative map vetoed by the Democratic Governor; the state Supreme Court drew “least-change” maps preserving the extreme partisan gerrymander of the previous decade.  In the 2023 campaign for a state Supreme Court seat, the maps’ bias was a campaign issue, and when Justice Janet Protasiewicz won the seat and refused to recuse from a new legal challenge to the maps, the legislature threatened impeachment.

Much of the commentary portrayed that legal challenge as a partisan gerrymandering case under the state constitution.  But though plaintiffs presented that issue, the state Supreme Court never agreed to hear it.  Instead, the court focused on whether the new map obeyed state constitutional requirements of contiguity, and held that the map failed to ensure that all the parts of each district were connected.  In selecting a remedy from among plans that otherwise satisfied state constitutional criteria, the court also announced that it would decline to put its judicial imprimatur on a plan designed to confer extreme partisan advantage — including “gerrylaundering” that just locked in the existing extreme bias of past cycles.

Parties — including the Governor — have now submitted remedial proposals, which have been evaluated by the court’s consultants on multiple fronts, including a measure of “majoritarian concordance” that tracks how often the districts translate a statewide majority vote to a majority of legislative seats.   The current map, and the remedial plan that the legislature submitted to the court, both do exceedingly poorly on this and other measures of bias: the extreme partisan gerrymanders do what they’re designed to do.  Several other submissions — including the Governor’s — fix the contiguity problem without nearly as much skew.  The court’s remedial decision is likely on its way.


The legislature has howled about purported process violations throughout this case.  But their recent filings also claim that all of the other remedial submissions violate the federal constitution.  (The claim is based on a theory of “disenfranchisement” inherent in redrawing maps when state Senate terms are staggered.  If half of the voters choose a Senator in 2020, 2024, 2028, … and half of the voters choose a Senator in 2022, 2026, 2030, … then a voter moved from a district on the 2020 path to a district on the 2022 path will have to wait until 2026 to vote for state Senate (in California, at least, this is known as “deferral”).  A bunch of states stagger state Senate elections in this way, and I don’t know of any case finding a constitutional problem in the deferral that results from redistricting.)  That includes the Governor’s map.

Now we get to the weird part.  A few weeks ago, the Republican legislature tried to short-circuit the court case by passing a plan they claimed was “99% of the way” to the Governor’s map (including the purported constitutional violation).  No Democrat voted for it, and the Governor vetoed it (in part because it tinkered with the Governor’s proposal, offering additional protection for some Republican incumbents).  The legislative leadership has now floated the possibility of the extra 1%, passing the Governor’s proposal as is (including the purported constitutional violation).  And still there seems to be Democratic resistance.

Why would the Republican legislature fighting tooth and nail for advantage suddenly try to pass a Democratic Governor’s plan that they claim is constitutionally infirm?  And why would Democrats vote against it? 

It’s possible that this is just belated resignation: the legislators think that the state Supreme Court is likely to impose an alternative worse for them than the Governor’s map, and are trying to limit their losses by taking the decision out of the court’s hands.  (And it’s possible that Democrats would rather take their chances with the court.)  That’s certainly Ockham’s razor.

But hat-in-hands enlightened conciliation isn’t quite this legislature’s style.  I can’t help wondering whether Professor Ackbar has it right.  Specifically, I wonder whether the unusual behavior might be explained in part by the prospect of forum-shopping. 

An equally bitter redistricting fight has been proceeding in Louisiana, where the legislature just passed a map to remedy a VRA violation, while vehemently protesting that the map was unconstitutional.  (The legislature’s claims were mostly rejected by the Fifth Circuit (!), following last year’s SCOTUS case from Alabama.)  A new set of plaintiffs has just picked up the legislature’s arguments, challenging that new map as unconstitutional.  But they didn’t file that objection in the ongoing federal case — they filed in a different federal district, drawing a three-judge court with a conservative majority.  (The legislature asserts that the court ordering the VRA remedy no longer has jurisdiction over the case now that a new map exists.)  The legislature has already successfully stalled relief for the VRA claim through the 2022 elections, and the new lawsuit appears to bait a hook for further stalling through 2024.

What does any of this have to do with Wisconsin?  Well, if the state Supreme Court selects a map, refuting a fringe federal constitutional theory in the process, the natural avenue to contest that claim is to ask SCOTUS for relief.  That’d be a real longshot here.

But if the Governor signs a new map through the legislative process that resolves the state issues, the state Supreme Court case goes away.  And someone else would be free to forum-shop a federal constitutional claim in the Wisconsin federal district of their choice, with the remainder of a three-judge court appointed by Chief Judge Sykes of the 7th Circuit.  To be clear, I don’t think the ostensible constitutional objection has much merit.  But trying to sell two judges on a longshot claim — at least long enough to stall through the 2024 elections — may seem easier than trying to sell five of them.

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