This piece comments on the new lawsuit challenging Wisconsin’s congressional map on the ground that it’s an anti-competitive (not a partisan) gerrymander that artificially suppresses competition in most districts. HLS’s Election Law Clinic is working with Law Forward to represent the plaintiffs in this case.
The third complaint was filed with the Dane County circuit court shortly after the first two were rejected. For reasons I’ll discuss below, this latest case makes arguments which may bear more fruit for those seeking new maps. . . .
The third court case couples its new arguments with an alternative legal strategy. Wisconsin Business Leaders for Democracy vs WEC was filed on July 8th by several firms, including Law Forward, who brought the successful challenge to the state legislative maps in 2023. Unlike the two previous petitions, it was filed not under the Supreme Court’s original jurisdiction, but as a lawsuit in Dane County circuit court.
The complaint alleges that the existing boundaries are indeed unconstitutional due to gerrymandering, but not, as Bothfield claimed, partisan gerrymandering. Instead, the complaint argues that the map is an anti-competitive gerrymander because it “was intentionally designed to create districts that protected the incumbent members of Wisconsin’s delegation in the U.S. House of Representatives.”
The argument is not that the existing map benefits Republicans over Democrats, but that it was drawn by incumbents to protect themselves from future challengers (of either party). “An anti-competitive gerrymander occurs when elected officials work in concert to draw district lines to suppress electoral competition, thereby benefiting incumbent politicians to the detriment of voters.”
Specifically, the plaintiffs argue that such anti-competitive gerrymanders violate the Wisconsin Constitution’s “guarantees of equal protection to all citizens, the promise to maintain a free government, and the right to vote.” The complaint recognizes that no Wisconsin court has previously recognized such a claim, so they propose a new two-part test. “Under this approach, an unconstitutional anti-competitive gerrymander exists where there is evidence (1) of an intent to suppress competition, and (2) that competition was indeed suppressed relative to alternative maps that satisfy all applicable legal requirements.”
In this way, the Wisconsin Business Leaders for Democracy complaint seeks to offer the courts a way to identify and strike down gerrymanders without relying on any particular partisan outcome.