Redistricting – Remedial Maps

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WI Supreme Court

Case Name: Billie Johnson, et al., v. Wisconsin Elections Commission, et al.,

Case No.: 2021 WI 87

Focus: Redistricting – Remedial Maps

The Wisconsin Constitution requires the legislature “to apportion and district anew the members of the senate and assembly, according to the number of inhabitants” after each census conducted under the United States Constitution every ten years. Wis. Const. art. IV, § 3. In fulfilling this responsibility, the legislature draws maps reflecting the legislative districts across the state. Every census invariably reveals population changes within legislative districts, and the legislature must thereafter satisfy the constitutional requirement that each district contain approximately equal numbers of people by developing new maps, which are subject to veto by the governor. When this occurs, courts are often asked to step in and draw the maps.

This year, the legislature drew maps, the governor vetoed them, and all parties agree the existing maps, enacted into law in 2011, are now unconstitutional because shifts in Wisconsin’s population around the state have disturbed the constitutionally guaranteed equality of the people’s representation in the state legislature and in the United States House of Representatives. We have been asked to provide a remedy for that inequality. Some parties to this action further complain that the 2011 maps reflect a partisan gerrymander favoring Republican Party candidates at the expense of Democrat Party candidates and ask us to redraw the maps to allocate districts equally between these dominant parties, although no one asks us to assign districts to any minor parties in proportion to their share of Wisconsin’s electoral vote.

The United States Supreme Court recently declared there are no legal standards by which judges may decide whether maps are politically “fair.” Rucho v. Common Cause, 139 S. Ct. 2484, 2499-500 (2019). We agree. The Wisconsin Constitution requires the legislature——a political body——to establish the legislative districts in this state. Just as the laws enacted by the legislature reflect policy choices, so will the maps drawn by that political body. Nothing in the constitution empowers this court to second-guess those policy choices, and nothing in the constitution vests this court with the power of the legislature to enact new maps. Our role in redistricting remains a purely judicial one, which limits us to declaring what the law is and affording the parties a remedy for its violation.

In this case, the maps drawn in 2011 were enacted by the legislature and signed into law by the governor. Their lawfulness was challenged in a federal court, which upheld them (subject to a slight adjustment to Assembly Districts 8 and 9 in order to comply with federal law). Baldus v. Members of Wis. Gov’t Accountability Bd., 862 F. Supp. 2d 860, 863 (E.D. Wis. 2012). In 2021, those maps no longer comply with the constitutional requirement of an equal number of citizens in each legislative district, due to shifts in population across the state. This court will remedy that malapportionment, while ensuring the maps satisfy all other constitutional and statutory requirements. Claims of political unfairness in the maps present political questions, not legal ones. Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary.

Rights declared

Concur: HAGEDORN, J., filed a concurring opinion.

Dissent: DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined

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