Supreme Court (copy)

The Wisconsin Supreme Court chambers. 

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The Wisconsin Supreme Court on Wednesday agreed to hear a case brought by a conservative law firm on behalf of several voters that asks the court to throw out the state’s current legislative districts and, if necessary, redraw the maps itself.

The lawsuit, filed by the Wisconsin Institute for Law & Liberty after last month’s release of U.S. census data, claims that the state’s current legislative maps are unconstitutional in light of shifts in Wisconsin’s population. The lawsuit also asks the court to take on redrawing the state’s legislative districts based on the prediction that Republican lawmakers and Democratic Gov. Tony Evers won’t be able to reach consensus on new maps.

The high court’s decision to take direct jurisdiction over the case is uncommon. In a 19-page order accepting the original action, the court’s conservative justices said they are willing to hear the case because this “court has long deemed redistricting challenges a proper subject for the court's exercise of its original jurisdiction.”

However, the justices cautioned, “We are mindful that judicial relief becomes appropriate in reapportionment cases only when a legislature fails to reapportion according to constitutional requisites in a timely fashion after having had an adequate opportunity to do so.”

The court said that “both the governor and the legislature are indispensable parts of the legislative process” and, accordingly, are asking those involved in the lawsuit to submit suggested timetables for how long lawmakers should have to attempt reapportionment before the court steps in.

The court deemed WILL’s request to throw out the maps as “premature.” 

“We decline to formally declare, at the onset, that a new apportionment plan is needed,” the justices said. “While the parties and amici generally concur that this is true, we have, as yet, an inadequate record before us upon which to make such a pronouncement.”

The court also denied the request of petitioners to prevent any elections from being held until new maps are drawn.

“In Wisconsin's modern history, redistricting has primarily fallen to the judiciary,” Justice Rebecca Bradley, a conservative, wrote in a concurring opinion. “Fundamentally, this court has a duty to resolve redistricting disputes; doing so does not threaten the separation of powers nor does it risk a concentration of power in the judicial branch.”

The court’s three liberal justices dissented on the decision. Writing on behalf of her two colleagues, Justice Rebecca Dallet proclaimed that “now is not the time and this petition is not the way.”

“As is often the case with original jurisdiction petitions, the question is not whether we can grant the petition but whether we should,” Dallet wrote. “After the political process has an opportunity to play out, we may need to get involved in redistricting. … The majority’s order prematurely injects the court into the political process, risks undermining the court’s independence and circumvents the statutory process for addressing redistricting challenges.”

She also made the claim that redistricting fights should be handled by federal courts — as they have been over the last 40 years.

“The majority’s order charts no course whatsoever,” Dallet wrote. “It drops the court into the redistricting wilderness without even a compass. The order sets forth no plan for how seven Justices with no experience in drawing district maps should go about this Herculean task while simultaneously attending to the rest of the court’s docket.” 

“Although I trust my colleagues as jurists, I do not share their confidence that we can simultaneously be legislators, cartographers and mathematicians,” she concluded.

Sachin Chheda, director of the Fair Elections Project, an organization seeking to end partisan gerrymandering in the state, called the order “a disappointing decision that ignores both the law and practical considerations.”

“The state Supreme Court has no experience in these complex cases, and no procedure for the necessary fact-finding,” Chheda said in a statement. “Both the current and former chief justice have previously said so, and nothing has changed from their original concerns. It unfortunately looks like a politicization of the process, and that gives the people of Wisconsin even less confidence in the state high court.”

He said absent the Legislature and governor agreeing on maps, “federal court is the appropriate venue to write maps for the next decade.”

Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty, lauded the decision from the high court.

“Adopting new state legislative and congressional maps is a state responsibility,” he said in a statement. “We are pleased the Wisconsin Supreme Court reaffirmed this longstanding principle and accepted jurisdiction in the event the courts have to act.”

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